Abdul Samad vs Alimuddin and Others

Reuben, J.—This appeal by the plaintiff arises out of a suit for a declaration of the plaintiff''s title to, and for confirmation of his possession over, a specific portion representing one-third share of a house standing on plot No. 12112 in village Rasoolpur Massian, tauzi Nos. 11332 and 11334. According to the case of the plaintiff, this house originally belonged to three brothers Ali Karim, Tasadduq Husain and Wazir Ali. His story is that the house was partitioned between the three brothers in equal shares, the eastern portion which is claimed in the suit being allotted to Ali Karim, deceased husband of plaintiff''s vendor Mt. Bibi Eqbalan. After the death of Ali Karim his widow came into possession of this portion of the house as his heir and also in lieu of her dower debt. The purchase under which the plaintiff claims was by a registered kebala executed on 11th November 1938, for a consideration of Rs. 50. In the plaint there was also an alternative prayer for recovery of possession over the share purchased by the sale deed and for partition.

The case of the contesting defendants was that the house in question originally belonged to Reyaz Ali, the father of Ali Karim, and that after the death of Reyaz Ali the house was inherited by the three brothers, their two sisters Mts. Gafooran and Sayeedan, and their mother Mt. Fazilan. Subsequently, according to the defence, by means of a series of transfers by the different heirs the 16 annas interest in the house became vested in Nazir Ali, and after his death it was transferred by his widow Mt. Tamizan (defendant 2) to Ali-muddin (defendant 4).

The suit was tried by the first additional Munsif of Bihar who rejected the story of the defence and found the facts entirely in favour of the plaintiff. Ho decreed the suit, granting the plaintiff the primary reliefs asked for by him. The appeal against this decree was heard by the Subordinate Judge, second Court, Patna, who concurred with the Munsif in rejecting the defence story. He found that the house originally belonged to the three brothers and that they had equal shares therein. He also found that Mt. Eqbalan came into possession of her husband''s share and remained in possession thereof in lien, of her dower debt, and that she transferred her interest in the property to the plaintiff by a bona fide sale for consideration and put him in possession. He held, however, that the partition of the house between the three brothers had not been proved and that Ali Karim was in possession of the eastern portion of the house merely by mutual agreement with his brothers and for convenience of occupation and enjoyment of the property. He therefore held that by his sale deed the plaintiff did not acquire a right to any specific portion of the house. He further held that Mt. Eqbalan''s interest in the property was confined to her one-fourth share as an heir of her husband, that is to say, a one-twelfth share in the, whole house, and that by the sale deed only this one-twelfth share passed to the plaintiff. As regards the remaining portion of her husband''s share the learned Subordinate Judge held that under the sale deed the plaintiff did not acquire Mt. Eqbalan''s right to remain in possession of it in lieu of her dower debt. Upon these findings the learned Subordinate Judge modified the decree of the original Court. He declared that the plaintiff is entitled to one-twelfth share in the house and directed that the plaintiff should remain in joint possession of this share along with the defendants "till the house is partitioned through a Commissioner appointed by Court."

In the argument before us, the correctness of the findings of fact has not been challenged. Indeed, these findings are binding upon us and cannot be challenged. What has been challenged very strongly is the learned Subordinate Judge''s interpretation of the sale deed and his finding as to the interest transferred thereby. The operative portion of the sale deed (Ex. 1) is as follows:

Therefore, I, the declarant, have of my entire free will and accord, in a sound state of body and mind and in enjoyment of my proper senses, without any coercion, undue influence and fraud of any one else and without reserving to myself any condition of cancellation and election, sold and absolutely vended the whole and entire 1/3rd share in the house, the full details whereof have been given in column 5 of this deed and which has been and is in my possession and occupation as absolute proprietor in lieu of dower debt for a fair consideration of Rs. 50 to Abdus Samad, claimant entered in column 2 together with all the rights.

It is true that the vendor mentions that she is in possession of the property in lieu of dower debt. This right to possession is not an estate or interest in the property such as a mortgagee has under an ordinary mortgage, (1925) 48 MLJ 667 (Privy Council) . What Mt. Eqbalan-purported to transfer by the sale deed was the "whole and entire 1/3rd share in the house," that is, her right, title and interest in the property. I do not see my way to interpret this as including her right to possession of the property in lieu of her dower debt.

Deeds of transfer in similar terms have been considered in several previous decisions of this Court with similar results. Among these decisions I may mention the cases in Abdur Rahman v. Wali Mohamad AIR 1923 Pat. 72, Mt. Bibi Makbulunnissa v. Mt. Bibi Umatunnissa AIR 1923 Pat. 33, Mohamad Zobair v. Bibi Sahidan AIR 1942 Pat. 210 and Ram Prasad Singh v. Mt. Bibi Khodaijatul Kubra. Reported in ) AIR 1944 Pat. 163 disposed of on 10th. March 1942. There was some difference of opinion between the Benches which decided the different cases as to the power of a Mahomedan widow in possession of her husband''s property in lieu of her dower debt to transfer the security, whether with or without the dower debt, and as to the effect of a transfer '' by the widow of her entire interest in the property without transferring her dower debt upon her right to remain in possession of the property in lieu of her dower debt. On behalf of the plaintiff it has been contended before us that, even if it be held that the operative portion of the deed of transfer does not include the vendor''s right of possession of the property in lieu of her dower debt, the effect of the deed is that the vendee should get whatever right the vendor had in respect of the property and, therefore, should beheld to be entitled to retain possession of all the property so long as the dower-debt remains unsatisfied, or at least so long as the widow is alive and the dower-debt remains vested in her and is unsatisfied. In support of this contention reference has been made to the cases in Nabijan v. Mt. Sahifan AIR 1923 Pat. 153, Abdur Rahman v. Wali Mohamad AIR 1923 Pat. 72, Mt. Bibi Makbulunnissa v. Mt. Bibi Umatunnissa AIR 1923 Pat. 33 and Mt. Sogia v. Mt. Kitaban AIR 1928 Pat. 224.

All these decisions have been considered and discussed in Mohamad Zobair v. Bibi Sahidan AIR 1942 Pat. 210 and Ram Prasad Singh v. Mt. Bibi Khodaijatul Kubra Reported in AIR 1944 Pat. 163 which have been mentioned above. In the former case, Shearer J. expressed the opinion that the right of a Mahomedan widow to remain in possession of her husband''s property until satisfaction of her dower debt is a right restricted to her personally and is, therefore, not capable of alienation whether with or without the dower debt. Meredith J. reserved his opinion upon the point. The case before their Lordships was a case of a gift by a Mahomedan widow and it was not necessary to consider whether the effect of a deed of gift by which the property was purported to be transferred without any mention either of the dower debt or the widow''s lien would be to transfer to the donee on equitable principles the widow''s right of possession. The case in First Appeal Ram Prasad Singh v. Mt. Bibi Khodaijatul Kubra Reported in AIR 1944 Pat. 163 was a case of a simple mortgage by the widow and the point now at issue did arise for decision. The Division Bench, of which my learned brother Varma J. was a member pointed out that upon this question there have been a number of contradictory decisions both of this Court and in: other High Courts and stated that the matter has now been set at rest by the recent decision of their Lordships of the Judicial Committee in (1925) 48 MLJ 667 (Privy Council) . It was contended in (1925) 48 MLJ 667 (Privy Council) that Mt. Mainaiiibi had by the deeds of 1907 assigned both her dower debt and her right to hold possession of her husband''s estate until that debt was paid. Their Lordships of the Judicial Committee said:

It is doubtful whether she could have done either of these things, but however that may be, it is clear she, in fact, never purported or attempted to do either of them. On the contrary, in those deeds she describes herself as the absolute owner of the property of her deceased husband, and purports to convey, that absolute ownership to her donees. There is no ground for the contention, if it has been really put forward, that because these deeds fail to effect a transfer of the absolute interest with which they purport to deal they operate to transfer the widow''s dower-debt and her right to hold possession of the lands till that debt is paid. By giving up the possession of the lands, as in her deeds she alleges she has done, she has undoubtedly lost her right to hold the possession of them.

Manohar Lall and Varma JJ. stressed the last sentence of this passage and pointed out that if the plaintiffs in the case before them attempted to enforce their mortgage by selling the property and forcing the widow to give up possession of it the situation which was contemplated by their Lordships of the Judicial Committee would arise with the result that the very instant the auction-purchaser of the property entered into possession the co-heirs of the widow who were liable to pay the dower debt would be entitled to treat the auction-purchaser as a trespasser and to sue for recovery of possession. Manohar Lall J., Varma J. agreeing, concludes:

This means that the estate or interest in that property belongs all the time to the real owners, namely, defendants 2 and 3 in this case. She (the widow) has a mere right of possession that remains with her so long as she is in possession and by giving up possession she loses her right to hold possession of them. For these reasons I am of opinion that the plaintiffs have neither obtained a transfer of the dower-debt (this was admitted) nor have they in law obtained a mortgage of the right of possession of the villages which was in the widow so long as the dower-debt was not paid off and so long as she does not give up possession.

The decision in First Appeal Ram Prasad Singh v. Mt. Bibi Khodaijatul Kubra Reported in AIR 1944 Pat. 163 is binding upon us, and in view of this decision there is no room for the contention that under the sale deed in question here the plaintiff can have any right in the property in suit beyond the widow''s title to one-twelfth share of the house. The decision of the learned Subordinate Judge on the point is, therefore, correct. In the course of argument before us Mr. Section Saleem on behalf of the appellant has urged that the contesting respondents themselves stand in the same position as the plaintiff, namely, that they claim to have acquired the whole property by virtue of a transfer from a widow in possession of her deceased husband''s property in lieu of her dower debt. He urges that it is not open to the contesting respondents, therefore, to object that Mt. Bibi Eqbalan could not transfer the whole of her husband''s share to the plaintiff. No circumstances are alleged which would give rise to an estoppel as against the contesting defendants. Admittedly, the contesting defendants are in possession of the portion of the house which is not claimed by the plaintiff. The nature of the title of the contesting defendants would not, in the circumstances, affect the extent of the interest acquired by the plaintiff by virtue of the kobala under which he claims. This objection, therefore, has no substance.

The position in the circumstances is as follows: The plaintiff purchased the property from Mt. Eqbalan. The Munsif has found that Mt. Eqbalan was in possession of a definite portion of the entire house and that the plaintiff got possession of this portion of the house from Mt. Eqbalan after the execution of the sale deed. This finding of the learned Munsif has not been interfered with by the learned Subordinate Judge in appeal; nor has the correctness of this finding been challenged before us. The learned Subordinate Judge has held, however, and in my opinion rightly, that by virtue of this sale deed the plaintiff acquired a title not to the whole share of Ali Karim deceased but merely to Mt. Eqbalan''s share, that is, one-twelfth of the house. So far, therefore, as the question of possession goes, the plaintiff having lawfully acquired possession of the eastern portion of the house is entitled to remain in possession of it until he is ejected therefrom by someone having a better title; that is to say, by one or more of the co-heirs of Mt. Eqbalan entitled to a share in the property of Ali Karim. The plaintiff''s prayer for partition, however, can only be granted as regards the one-twelfth share in which he has a good title. The decree granted to him by the learned Subordinate Judge for a partition of this share is to that extent correct. My findings above, however, as also the fresh objection now raised regarding the title of the contesting defendants indicate that there is another difficulty as regards the decree for partition, viz., that all the persons interested in the property sought to be partitioned have not been impleaded. The attention of Mr. Saleem appearing on behalf of the appellant was drawn to this difficulty in Court. After consideration of the matter he informs the Court that he does not consider it necessary to withdraw the prayer for partition under the provisions of Order 23, Rule 1, Civil P.C.

In these circumstances, since there is no appeal by the defendant, the decree for partition must remain and the present appeal must be dismissed with costs.

Yarma J.

I agree.