Patna High Court
Musammat Bibi Makbulunnissa And Anr. vs Musammat Bibi Umatunnissa And Anr. on 18 July, 1922
Equivalent citations: 70IND. CAS.312, AIR 1923 PATNA 33
JUDGMENT Das, J.
1. On the death of one Amzad Ali, his widow Musammat Hafizan took possession of the disputed properties which admittedly belonged to Amzad Ali. The plaintiffs are two of the daughters of Amzad Ali. The defendant No. 1 is the only other daughter of Amzad Ali, and defendant No. 2 is the husband of defendant No. 1. In September 1915 Musammat Hafizan conveyed the properties in suit by two several deeds to the defendants, the deed in favour of defendant No. 1 being a deed of gift, and the deed in favour of defendant No. 2 being a deed of sale. Musammat Hafizan died on the 1st March 1918, and on the 22nd March 1918 the plaintiffs commenced the present action for setting aside the deeds executed by Musammat Hafizan in favour of the defendants and for recovery of possession of the properties covered by the deeds. The case of the plaintiffs is that the deeds were procured by the defendants from Musammat Hafizan by fraud and undue influence and that they did not operate so as to convey any interest in the properties dealt with to the defendants, and that, in any event, Musammat Hafizan who took the properties as a security for her dower-debt and entered into possession as a mortgagee, was wholly incompetent to convey the properties to the defendants. The defendants met the case of the plaintiffs with an assertion that, Amzad Ali made over the properties in dispute to Musammat Hafizan in Satisfaction of her dower debt, and that Musammat Hafizan as the sole and absolute owner of the properties was competent to and did, in fact, convey the properties to the defendants, and that there was no, fraud or undue influence in the matter of the execution of the deeds challenged by the plaintiffs.
2. The learned District Judge in the Court of Appeal below, has recorded the following findings of facts which are binding on us, in second appeal; first, that Musammat Hafizan entered into possession of the properties on the death of Amzad Ali as security for her dower-debt, and that Amzad Ali did not make over the properties to her during his lifetime in satisfaction of the dower-debt; and, secondly, that Musammat Hafizan fully understood the nature of the deeds Which she was executing and that they were not obtained by the defendants by undue influence. On these-findings the learned District Judge had to consider the question whether any interest passed to the defendants, and he answered the question in the negative. In his view Musammat Hafizan could not transfer the security itself, though she could transfer the dower-debt together with the security. Again the judgment of the learned District Judge, Musammat Hafizan did not purport to transfer the dower-debt itself. He came to the conclusion that the deeds upon which the defendants rely did not operate to confer any title on the defendants. In the result, he passed a decree in favour of the plaintiffs to the extent of their shares in the properties.
3. I am not prepared to assent to the view of the learned Judge that a transfer of the security without an assignment of the debt itself does not operate to create any title in the transferee. The Case as put raises the presumption that the debt itself was assigned for the transfer of the security carries with it the right to enforce the security and, as a consequence thereof to receive payment of the debt. That is the view of the Full Bench of the Madras High Court : See Beeju Bee v. Syed Moorthiya Sahib 53 Ind. Cas. 905 : 43 M. 214 : 37 M.L.J. 627 : 26 M.L.T. 419 : 11 L.W. 150 : (1920) M.W.N. 26 and, notwithstanding the decision of the Allahabad High Court in Bindeshri Pershad v. Afzal Khan 63 Ind. Cas. 344 : 19 A.L.J. 706 I am of opinion that the view presented by the Officiating Chief Justice of the Madras High Court is right in principle and is covered by authorities. It is worthy of note that, even in Allahabad, it has been held that it is competent to a Muhammadan widow in possession of property belonging to her deceased husband "in lieu of dower," to sell it without necessarily selling her right to receive the dower : See Abdullah v. Shamsul Haq 58 Ind. Cas. 833 : 43 A. 127 : 18 A.L.J. 969 : 2 U.P.L.R.A. 309. There is a passage in the judgment of the Officiating Chief Justice of the Madras High Court which may give rise to some misconception. The passage is this: "She, however, could transfer her right to possession along with the dower-debt, and, in my opinion, the alienation must be upheld to that extent." But when the whole judgment is carefully read, there is no room for doubt that, in the opinion of the learned Judge, the assignment of the dower-debt is incident to the assignment of the security itself. In my opinion where a Muhammad an widow in possession of her husband's property "in lieu of dower" transfers the security either with or without the dower-debt, the transferee is Entitled to retain possession of the property until the dower-debt is paid, though, where the transfer is without the privity of the persons bound to discharge the dower-debt, the transferee takes the security subject to the state of account between the widow and the persons bound to discharge the dower-debt at the date of the transfer; and any payment made by these person to the widow after, but without notice of the transfer, must, in the absence of collusion, be allowed to these persons as against the transferee. This is a view of equity which is of general application : See Matthews v. Wallwyn (1798) 4 Ves. Jur. 118 : 31 E.R. 62; Williams v. Sorrell (1799) 4 Ves. Jur. 389 : 53 R.R. 11 : 31 E.R. 198; Norrish v. Marshall (1821) 5 Madd. 475 : 53 R.R. 36 : 56 E.R. 977; Southampton's (Lord) Estate; In re; Allen v. Southampton (Lord); Banfather's claim (1881) 16 Ch. D. 178 : 50 L.J. Ch. 218 : 43 L.T. 687 : 29 W.R. 231; Dixon v. Winch (1900) 1 Ch. 736 : 69 L.J. Ch. 465 : 82 L.T. 437 : 48 W.R. 612 : 16 T.L.R. 276; Turner v. Smith (1901) 1 Ch. 213 : 70 L.J. Ch. 144 : 83 L.T. 704 : 49 W.R. 186 : 17 T.L.R. 143 and there is no reason why we should not apply the principle in a case of a transfer of the security by a Muhammadan widow holding possession of her husband's estate as security for the dower-debt due to her.
4. But the case is different. Where there is a sale of the property and not an assignment of the security. The distinction has not always been kept in view in the numerous cases which have been decided on the point; but the distinction is an important one and cannot be ignored. The light to hold the property as a security for the dower-debt and to continue in possession thereof until the dower-debt is satisfied is property, and is both heritable and transferable : See Ali Bakhsh v. Alah Dad Khan 6 Ind. Cas. 376 : 32 A. 551 at p. 561 : 7 A.L.J. 567. But the widow has no proprietary title in the property, except to the extent of her share therein, and where she purports to sell the property, and not the security only, the sale is utterly ineffectual so as to confer any title on the vendee. But though the vendee takes no title to the property by virtue of the sale he is entitled to retain possession of the property if he is put in possession thereof, not indeed by virtue of the deed of sale but because, so long-as the debt remains unsatisfied, the heirs at law could not claim to be put in possession of the property and the widow herself would be bound to make good her representation to the vendee to the extent of such interest as she could lawfully transfer. The widow is entitled to retain possession of the property so long as her claim is not satisfied. There is nothing to prevent her from putting some one else in possession of the property and conferring on him the same right which she could exercise over the property. Having done so, she could not maintain ejectment suit against him, if she has received consideration for the transaction and it follows that, though the sale does not operate to confer any title on the vendee, he is still entitled to retain possession of the property as against the widow and all persons claiming through the widow so long as there is a debt due to the widow. He is also entitled to maintain his possession as against the heirs-at-law, so long as they do not discharge the dower debt, for it is well settled that a person in juridical possession of the property has an interest which he can maintain against every one except the rightful owner entitled to possession of the property, and it is an interest which is capable of being inherited, devised or conveyed: See Beeju Bee v. Syed Moorthiya Saheb 53 Ind. Cas. 905 : 43 M. 214 : 37 M.L. 627 : 26 M.L.T. 419 : 11 L.W. 150 : (1920) M.W.N. 26 and the cases cited therein. The position, then, is this, where a Muhammadan widow in possession of her husband's property as a security for her dower-debt, purports to sell the property and puts the vendee in possession of the property, the vendee is entitled to retain possession of the property so long as her claim to the dower remains unsatisfied. But the moment the dower-debt is satisfied either by payment to the widow or to her heirs; the heirs of the husband are entitled to recover possession of the property from the transferee; and the same result follows where the heirs of the widow happen to be the heirs of her husband; for, in such an event the right; to receive the dower-debt and the liability to pay the dower-debt unite in the same persons, and there is a consequent extinction both of the debt and the security and, therefore, of the right to retain possession of the property as a security for the debt.
5. The critical question then is, was the transfer to the defendants in this case a transfer of the property itself or a transfer of the security? The learned District Judge has assumed that the transfer was a transfer of the security but with this view I am unable to agree. No doubt, the document recites that the widow entered into possession of the property left by Her husband with the consent of the other heirs of her husband and because her dower-debt had not been paid; but the Whole document shows that she considered her possession as that of an absolute proprietress. She recites in the document that she had her name recorded in the land registration department as the absolute proprietress of the property' and she, undoubtedly conveys the property as an absolute proprietress. I have no doubt whatever that she purport to convey to the defendants an absolute interest in the properties. As such, the document is wholly inoperative. The defendants were nevertheless entitled to retain possession of the property not only as against the widow, but as against her heirs so long as the security was outstanding. The widow is now dead; and it is conceded that her heirs are also the heirs of her deceased husband. There is thus a merger of the security in the ownership and the plaintiffs not indeed as heirs of Bibi Hafizan, for, as such, they are bound by the representation made by Bibi Hafizan, but as heirs of Amzad Ali are entitled to recover possession of the properties to the extent of their shares therein from the defendants. Although I am unable to agree with the reasonings which have been employed by the learned District Judge, I am of opinion that the conclusion at which he has arrived is right.
6. I would accordingly dismiss this appeal with costs.
Coutts, J.
7. I agree.