Patna High Court
Shiekh Abdul Rahman vs Sheikh Wali Muhamad on 14 December, 1921
Equivalent citations: 65IND. CAS.224A
JUDGMENT Bucknill, J.
1. This is a second appeal made by the defendant (appellant) from a decision of the Subordinate Judge of Shababad, dated the 26th August 1919, reversing a decision of the Munsif of Sasaram, dated the 13th January of the same year. The facts in this case are of a simple character, but they raise somewhat difficult questions of law which have been extremely well argued at great length before me by the learned Vakils for both parties. The circumstances which gave rise to this litigation may be very shortly explained as follows:
2. A Muhammadan gentleman, named Sajjad Hussain, married a lady Musammat Kabiran. A marriage dower of Rs. 4,000 was fixed but, as a matter of fast, was never actually paid. In 1899 Sajjad Husain died leaving surviving him his widow, Sajjad Husain also left surviving him two brothers, one Sheikh Wali Muhammad, who is the present plaintiff, and the other Sheikh Ezid Baksh, who is the first defendant. The second defendant is the minor son of the first defendant. On the death of Sajjad Husain his widow Musammat Kabiran same, with the permission of the plaintiff and of the first defendant, into possession and occupation of the whole of her husband's property, in view of the fact that her dower had not been paid or, as it is put in legal language, "holding in lieu of dower." In 1900, however, Musammat Kabiran executed a document as to the true construction of which the main arguments in the present litigation arise. Although the construction of this document necessarily formed the subject matter of most of the argument which had to be plated before me by the learned Vakil for the appellant, no translation of it was produced by him nor did it appear as part of the record. I felt considerable difficulty in coming to a conclusion as to whether or not I should allow it, under these circumstances, to form the subject-matter of an enquiry as to its construction; but, as it was so obviously vital to a proper consideration of the case, I eventually had it translated officially and have utilised this translation in dealing with the matter throughout. It is necessary to refer to this document in some detail. The material parts read as follows:
I am Musammat Bibi Kabiran, daughter of Bikan Khan and widow of Sheikh Sajjad Hussain, deceased, a Sheikh resident of Mohalla Shah Juma in the town of Sasaram, Thana Sasaram, Sub registry office at Sasaram, District Registry, Shahabad, by occupation a Zemindar.
3. "Out of the shares in the mauzas and properties specified below, one third belonged to my husband Sheikh Sajjad Husain, Since the death of my husband, I have been in possession of his estate--the shares in the said mauzas--by virtue of inheritance and in lieu of dower-debt, I cannot manage and look after the properties on account of my being a female. I am alone and a widow and have neither a male nor a female issue. In the family of my husband, too, there is only one male child, Sheikh Abdur Rahman by name, a minor son of Sheikh Ezid Bakhsh, the elder brother of my husband, Sheikh Sajjad Hussain. That boy is loved by all the members of my husband's family. I also fully desire that he should be comfortably maintained and indelicately brought up. For myself I do not require anything other than maintenance till my death. Therefore, I wish to give away all my properties, in my lifetime, to the said dear child, subject to my right of maintenance. Sheikh Ezid Bakhsh, the father and guardian of the said minor child Abdur Rahman, has agreed to pay me till my death Rs. 5 per month or Rs. 60 per year, which amount is quite sufficient for me, in lieu of the said properties. I fully trust his words. Besides, the liability for the payment of the said allowance shall rest on the said properties." (Then comes an immaterial portion). "Therefore. I, of my own free-will and accord in a sound state of body and mind, in the exercise of all legal rights, in good faith, without undue pressure or fraud from any quarter, do here by willingly sell and absolutely vend without; reserving the right of cancellation to Sheikh Abdur Rahman, minor son of Sheikh Ezid Bakhsh, under the guardianship of the said Sheikh Ezid Bakhsh, resident of Mohalla Shah Juma, in the town of Sasaram, Thana Sasaram, by occupation a Zemindar, the whole and entire one-third share of mine, namely 10 pies 13 karants 6 masants 10 decinue out of 16 annas (then follows a long description of the property which is given in much detail) owned and possessed by me, together with all rights and appurtenances, for a consideration of a monthly allowance of Rs. 5, amounting to Rs. 60 per annum, with effect from to-day up till my death. I have, by making over this deed of sale to the vendee, put him in possession of the vended property as absolute proprietor in my place. I give up, forego and relinquish all claims, disputes and contentions which may be existing now or which may arise hereafter, for getting this sale-deed declared null and void. In short the proprietary interest and all rights, title and interest which I had in the vended properties have, under this sale-deed, been transferred (from me) and (become) extinct (in so far as I am concerned), and have devolved on and vested in the said purchaser and his heirs and representatives. Now, I have not and shall not have any claim for realization of (a word unfortunately undecipherable or torn) (claim?) or any dispute, contention or right in respect of the vended properties other than getting Rs. 5 per mensem or Rs. 60 per annum till my death. After my death my heirs and representatives shall not have any right of interference is or objection or claim to the vended properties. If they advance any claim in contravention to (the terms of) this deed, the same shall be deemed to be null and void, illegal and inoperative. The said vendee shall get his name recorded in the Collectorate Office in my place in respect of the vended properties, after getting the name of my husband expunged therefrom, and shall remain in possession and occupation of the vended properties."
4. Now it will be observed that by this document Musammat Kabiran certainly purported to convey a proprietary interest in the estate to the son of one of her late husband's brothers, and it is common ground that under the Muhammadan Law she had no right to do so. It is not argued that she had, but what is suggested is that by this deed she purported and intended to transfer her dower-debt to her assignee. The Musammat died in 1911 and after her death the plaintiff, who, I should add, incidentally was a witness (though not a party) to the deed, brought this suit against the defendants, claiming that the deed was inoperative and invalid and that the defendants had under it acquired no sort of title. He asked, therefore, that it should be adjudicated that the defendants possession was that of a trespasser and that the heirs of the deceased Sajjad Hussain were entitled to be placed in possession of the property in their rightful proportions. To this main proposition the defendants do not now contend that there was any legal answer on the point of the invalidity of the deed; but, what they do contend and what has been argued most strenuously before me is, that the deed conveyed to them the dower-debt of Musammat Kabiran, that they are in her shoes with regard to the possession of the property and that, in consequence, until the amount of the dower-debt is paid off, they are entitled to remain in possession of the estate. There are other smaller legal questions which arise, with which I shall, however, deal later, with regard to limitation and estoppel. At present I will confine myself to dealing with the possession as it arises with regard to the questions, firstly, of what is the proper construction of the deed, and secondly, what is the true legal position with regard to dower-debt under Muhammadan Law. The law relating to the exact character of a dower-debt under Muhammadan Law appears in the last few years to have gone through considerable and interesting modifications by reason of case-law decisions. But after much argument and citation of a large number of authorities, the learned Vakils for both parties have agreed that the main position is fairly well covered and settled; a conclusion with which I, myself, quite concur. When a Muhammadan has promised a woman, whom he marries, a dower but that dower has not been paid, she, when he dies, can lawfully remain in possession of his property until her dower is paid by her husband's heir's or until she has succeeded in realising it out of the usufruct which she enjoys by reason of her being in possession; but she has to render to the heirs an account. Sometimes, of course, where the estate is large and the dower is small, her dower is quickly realised; in other cases, such as in this case, where the dower is comparatively large and the estate comparatively small, the dower may not be realised at all. As to the accounts we have no information. This curious right, which has been sometimes designated as "a widow's lien" and which has sometimes been defined as "putting her in the position of a mortgagee in possession," does not, it is admitted, give the widow any right to alienate any part of her deceased husband's property in order definitely to raise the amount of her dower from the proceeds of such sale: Ameer oon nissa v. Mooradoon-nissa 6 M.I.A. 211 at p. 212 : 1 Sar. P.C.J. 538 : 19 E.R. 79. It is not so long ago that this widow's right was regarded as a purely personal one, which died with the widow; but within the last few years, this former doctrine has been the subject of considerable expansion, and it is now thought and has been held that the right is heritable and, further than that, that she can assign her right to a stranger. Vide The Hedaya (Hamilton, Volume III, page 122, 1791), Mahomed Ussud ool lah Khan v. Musammat Ghasheea Beebee 1 Agra. H.C.R. 150, Wahidoonissa v. Musammat Subrattun 14 W.R. 239 : 6 B.L.R. 54, Bebee Bachun v. Hamid Hussein 14 M.I.A. 377 at p. 383 : 17 W.R. 113 : 10 B.L.R. 45 : 2 Suth. P.C.J. 531 : 3 Sar, P.C.J. 39 : 20 E.R. 828, Azizullah Khan v. Ahmad Ali Khan 7 A.353 : A.W.N. (1885) 54 : 4 Ind. Dec. (N. s.) 574, Ali Muhammad Khan v. Azizullah Khan 6 A. 50 : A.W.N. (1883). 204 : 3 Ind. Dec. (N.S.) 617, Hadi Ali v. Akbar Ali 20 A. 262 : A.W.N. (1898) 32 : 9 Ind. Dec. (N.S.) 529, Muzaffar Ali Khan v. Parbati 29 A. (sic): 4 A.L.J. 521 : A.W.N. 1907. 221, Ali Bakhsh v. Allah Dad Khan 6 Ind. Cas. 376 : 32 A. 551 : 7 A.L.J. 567, Majidmian v. Bibi Saheb Jan 30 Ind. Cas 870 : 40 B. 34 : 17 Bom. L.R. 770 and Beeju Bee v. Moorthiya Saheb 53 Ind. Cas. 905 : 43 M. 214 : 37 M.L.J. 627 : 26 M.L.J. 419 : 11 L.W. 150 (F.B.). It is now--and I venture to think--the correct view that the dower-debt is a definite portion of the widow's estate and that her heirs entitled to hold the possession of her deceased husband's property with the same legal incidences as were possessed by the widow herself; that is to say, with a right to continue in possession until from the usufruct the dower is realised or until the heirs of the widow's deceased husband pay the amount of the dower. I take it, therefore, as a corollary of the most modern opinion that if a widow transfers her dower right and its security to a stranger, such a conveyance may also include in law the right to possession of her husband's property until the dower debt is in some way liquidated. It is, as a sequela, extremely difficult to see why, logically, the purchaser of the widow's right coupled with her security should not be in precisely the same legal status as is the widow's heir. Vide Beeju Bee v. Moothiya Saheb. 53 Ind. Cas. 905 : 43 M. 214 : 37 M.L.J. 627 : 26 M.L.J. 419 : 11 L.W. 150 (F.B.).
5. With the above propositions neither of the learned Vakils who appeared before me are prepared to disagree; and it is, now, common ground that we are thrown back upon what is the proper construction of the deed in the present case. I should, however, here point out that the learned Vakil for the respondent shows quite clearly that the ingenious argument with regard to the construction of the document which has been so strongly pressed before me by the learned Vakil for the appellant, never seems to have been raised in the Courts below analytically in the way in which it has been so ably placed before me on this appeal. The point, as it is now presented to me by the learned Vakil for the appellant, is, that, although it is admitted that the deed (so far as it purported to convey to the assignee a proprietary estate in the property was invalid), did, in addition, contain an alienation or transfer of the widow's do war-debt and of its security; and, that, in consequence, as it is now common ground that the widow could have legally transferred her dower-debt and her security therefor (that is to say, the right, until the dower-debt was satisfied, to the possession of the property), the plaintiff's cause of action for recovery of possession must fail, as, at the best, the sole cause of action which can accrue to him is merely a claim for proper accounts. See Ameer oon nissa v. Moorad-oon-Nissa 6 M.I.A. 211 at p. 212 : 1 Sar. P.C.J. 538 : 19 E.R. 79, Ahmed Hossein v. Khadija 10 W.R. 388 at p. 369 : 3 B.L.R. 28n. Now according to such authorities as I have been able to discover, it would appear that in order to effect the transfer of a widow's dower-debt with fits security, express words so doing must be proved, but I am not at all sure that such a proposition concludes satisfactorily that question; as, in law, it is difficult for me to understand why if express words of transfer are sufficient, a clearly implied covenant should not be equally effective.
6. Now, in considering the nature of this deed, it is interesting to observe the conclusions to which the Munsif and the Subordinate Judge came as to what it really meant; the Munsif says that Musammat Kabiran was only in possession of the disputed properties as security for her dower, and that she had a right to transfer the dower-debt together with that security; but, apart from that right, she had no power to transfer the security alone; that in the deed in dispute the recital is, that the properties were given to her not in satisfaction of her dower but in lieu thereof, and that this interpretation is supported by a recital in a subsequent partition-deed dated 1912 (which I may say has not been placed before me) in which the plaintiff and the first defendant attempted to settle their dispute. He consequently considered that there was no doubt that the deed purported to convey a proprietary interest alone and not the dower-debt and its security and he, therefore, regards it as invalid. The Subordinate Judge came to the same conclusion. But it will be observed that the point which is raised before me, namely, that the wording of the deed should be construed as conveying the dower-debt and its security, was not so CLEARLY raised (if indeed it was raised at all) as it has been raised in this appeal. The Munsif in his remarks suggests the useful idea that the widow, by executing this deed, disclaimed the security for her dower-debt; but this point, although it may be of importance should the widow's heirs maintain their right to recovery of the widow's dower-debt, does not directly arise in this case: and in any event, such a finding is directly against the contention of the present appellant.
7. It is suggested by the learned Vakil for the respondent that the findings of the Munsif and the Subordinate Judge are findings of fact and that, therefore, I should not consider them in any way. But with this broad proposition I am not altogether in accord, as the consideration of the proper construction of a document is very often a mixed question of fact and of law. Now if one peruses carefully this deed, one can, I think, but some to one conclusion; and that is that this lady assumed that she had a complete proprietary interest in the property and that she purported to convey the whole of that interest to the transferee. The dower-debt and its security were a separate and entirely different interest from the proprietary ownership; it may very well be that her intention really was to relinquish any claim she may herself have had in connection with her dower debt and, in view of the somewhat pathetic language which she utilises, it would almost seem as if she did wish, so to do; but I can find nothing in the document itself which would justify me in any way in coming to the conclusion that she intended to transfer to the assignee her dower-debt and its security. The learned Vakil for the respondent cleverly points out that the stamp fee which was paid on the deed is based, upon 12 times the value of the annual subsidy secured by the deed, to the widow, that is to say, on Rs. 720, where as the dower-debt alone was Rs. 4,000. I have therefore, come to the conclusion after very careful consideration that, agreeing with the decisions of both the Munsif and the Subordinate Judge, this instrument did not in fact transfer the widow's dower-debt and its security.
8. The learned Vakil for the appellant further argued with great ability that because the lady had recited in the preamble to the deed that she was in possession of the estate both by virtue of inheritance and in lieu of dower-debt and that because she had, in operative words of transfer, conveyed "the whole and entire one-third-share of mine in the properties," and, later on, added "owned and possessed by me, together with all rights and appurtenances," that it was possible to divide the document into two parts: the first set of words of power conveying the estate and the second set conveying the dower-debt and its security. I am afraid that I am not impressed by this argument. The, general trend of the deed indicates an out-and-out sale of the whole estate; the words of complete self-renunciation towards the conclusion of the deed only, in my opinion, indicate a possible renunciation on the widow's part of her dower-debt claim. I have mentioned above that, besides this point upon which I have already given my decision, other questions arose in this matter which have been argued before me. These points contain the suggestion that the plaintiff's claim is barred by limitation in some way. In the first place, I will settle at once the question of whether the plaintiff, because he was a witness to the deed now in question, is, by that fact, estopped from disputing, subsequently, its validity. There is no arguable proposition upon this question, and I do not think it is necessary to refer to any authority to reject it.
9. The question of the actual limitation barring the suit is, however, of more importance. It has to be decided when the plaintiff's right of action accrued to him and it is upon this point that the Munsif and the Subordinate Judge differed. The Munsif thought that as soon as the transferee obtained possession of the property, his, possession became adverse to the plaintiff, who, consequently, at that date (that is to say in 1900) became entitled to sue for recovery of possession; and, that, as he did not commence his action until 1918, he was barred in time in view of Article 144 of the Limitation Act, where the period of bar is 12 years. The Subordinate Judge, however, thought that this was not so; and that the date of the death of the widow was the crucial date. The Munsif dismissed the plaintiff's action on the ground of this limitation bar; but the Subordinate Judge, coming to a contrary decision as to the question of limitation, reversed the Munsif's decision, Before me, the learned Vakil for the appellant has very ingeniously put forward not only the suggestion that the action was barred by Article 144 of the Limitation Act but also by Article 91.
10. I think I had better deal with the consideration of the effect of Article 144. It is quite true that the plaintiff was well aware of the fact that the defendants had entered into possession of the property, but this possession, particularly in view of the fact that he signed as a witness to the deed, could not, in my opinion, be regarded as in any way the basis for an assertion of adverse possession. On the contrary it was a possession just as much permissive as was the possession of the widow herself; and whilst the widow was alive, the plaintiff could not have demanded recovery of possession of the property unless he had been in a position to pay off the widow's dower debt. It may be said that on a true construction of this deed the widow renounced her claim to her dower-debt; and that the rights of the plaintiff and the heirs of the deceased Sajjad Husain arose when she did so and when the defendants entered into possession; but, as I have pointed out before, this question does not directly arise here. So far as this case is concerned, I have no hesitation in coming to the conclusion that the Subordinate Judge was right and that it was only upon the widow's death that the plaintiffs cause of action really arose. With regard to the skillful attempt to call in aid the provisions of Section 91 of the Limitation Act, namely, that in order to rectify a document an action must be brought within three years from the time when the necessity for rectification comes to the knowledge of the party see king to have it so rectified or set aside, I need only say that where the contention is that a document is altogether invalid, such considerations as Section 91 of the Limitation Act do not arise: vide Priyasokhi Debi v. Bireshwer Samanta 37 Ind. Cas. 277 : 21 C.W.N. 177 : 44 C. 425 : 27 C.L.J. 212. I may mention that this point as to the possible operation of Section 91 of the Limitation Act was not apparently brought forward before the lower Court, but I have dealt with it because I thought it advisable that I should do so. With regard to a document which is altogether invalid and void, the applicability of limitation under Section 91 does not at all occur.
11. I must thank both the learned Vakils for the able arguments which they have placed before me. I have given to this case my best consideration and have some to the conclusion that the Subordinate Judge is correct in his decision and that the appeal must be dismissed with costs.