Patna High Court
Abdur Rahman vs Wali Mohammad on 13 July, 1922
Equivalent citations: 68IND. CAS.601, AIR 1923 PATNA 72
JUDGMENT Dawson Miller, C.J.
1. This is an appeal under the Letters Patent on behalf of Sheikh Abdur Rahman, the second defendant in the suit, against a decision of Mr. Justice Bucknill, dated the 14th December last. The plaintiff, Sheikh Wali Mahommed, and the first defendant, Sheikh Ezid Baksh, are brothers and the appellant, the second defendant, is the son of Sheikh Ezid Baksh. The suit was instituted before the Munsif of Sassaram in January 1918 claming possession of a 6 annas share in the estate of his deceased brother, Sajjad Hussain, to which lie was entitled as one of his defendant brother's heirs subject to the widow's right to retain possession as security for her unpaid dower. Sajjad Hussain, the elder brother of the plaintiff and the first defendant, died in 1699 leaving surviving him his widow, Musammat Kabiran, and his two brothers. His widow whose unpaid dower debt is said to amount to Rs. 4,000 was left in possession of the estate of her deceased husband holding it in lieu of dower, as she was admittedly entitled to do, until, out of the profits of the estate, her dower-debt bad been discharged, The estate was a email one and we are not told what the net annual profits arising therefrom amounted to. It is not suggested, however, that the debt, at the date of that lady's death in 1911, had been discharged. On the 15th October 1900 Musammat Kabiran transferred to the appellant the whole of her interest in her deceased husband's estate. As one of his heirs she was entitled by inheritance to a quarter share in that estate and this she could undoubtedly transfer. The document, however, purports to transfer, in one place at all events, the whole of the interest which had come into her possesion from her deceased husband and gets out in detail tie properties, which, it is agreed, included the whole of her husband's estate. It recites that the donor has been in possession of the estate by virtue of inheritance and in lieu of dower-debt, and that she wishes to give away all her properties in her lifetime to the donee, subject to her right of maintenance during her lifetime, which she reserves at the rate of Rs. 60 per annum which is to be a charge on the property. It then purports to sell without reserving the right of cancellation "the whole and entire property owned and possessed by me together with all rights and appurtenances, for a consideration of a monthly allowance of Rs. 5, amounting to Re. 60 per annum, with effect from to-day up to my death. I have, by making cer this deed of sale to the vendee, put him in possession of the vended property as absolute proprietor in my place." It subsequently adds: "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 extinguished in so far as I am concerned and have devolved on and vested in the said purchaser and his heirs and representatives." It is not absolutely clear from this document whether the vendor intended merely to transfer her own interest in the property, that is, the quarter share which she acquired by inheritance, or whether she intended to transfer the whole of the interest of her husband of which she was then in possession. But, whatever her intentions may have been, it is clear, and cannot be disputed, that she had no power of disposition over the property beyond the quarter share to which she was entitled by inheritance and to this extent alone could the transfer of the property be valid.
2. Both the learned Munsif and the learned Subordinate Judge, before whom the case cams on appeal, took the view that the widow had no right to transfer the property beyond the extent of her own vested interest, viz., a quarter share and that, although she was in possession of the remainder in lieu of dower, she could not transfer the remainder or even the possession thereof so as to be binding after her lifetime without also transferring her right to dower. The learned Munsif, however, considered that the plaintiff's right to one accrued in 1900 when the deed was executed and the donee was put in possession, and that, therefore, the suit which was instituted more than 12 years after that date was barred by limitation. The learned Subordinate Judge, on the other hand, came to the conclusion that the plaintiff's right to sue for possession did not arise until the widow's death in 1911, and that the suit having been brought within 12 years of that date was not barred.
3. On appeal to this Court, Mr. Justice Bucknill took the same view as the learned Subordinate Judge and dismissed the appeal.
4. It does not appear to have been argued, either in the Trial Court or before the Subordinate Judge on appeal, that the conveyance by the widow transferred to the appellant her dower debt. It was, however, argued before Mr. Justice Bucknill and the argument has been repected before us in this appeal, that, on a proper construction of the document, the dower-debt must be taken to have been transferred. It was also contended that, even if the dower-debt was not in fait transferred, the widow had a lien or charge upon the property as security for the enforcement of the debts which she could transfer not only during her lifetime but even so as to enure for the benefit of the transferee after her death. The learned Judge, whose judgment is now under appeal, carefully considered these questions and decided them against the appellant. In my opinion, his decision was right. Although the instrument of transfer recites that the widow is in possession both by virtue of inheritance and in lieu of dower-debt, it purports only to transfer the proprietary interest and all right", title and interest whish the vendor had in the vended properties. There is not a word, from first to last, relating to any transfer of her dower-debt and I am unable to construe the document as purporting to transfer the dower-debt. Nor, in my opinion, was it possible for her to transfer the lion on the property 10 as to be binding after her lifetime without transferring also the dower debt The lien on the property which gives the widow the right to possession until the debt has been discharged is not, in my opinion, an interest in property which tan be severed from the right to dower and transferred as a separate interest. It is a right to the possession of the property by the person entitled to be paid the dower as long as the debt is not discharged either by the income from the property or by payment by the heirs or others interested in discharging the debt. It certainly gives the widow the right to possession and it may be assumed, I think, that, as long as she does not transfer her dower debt and that debt remains undischarged, she may transfer, for her lifetime possession of the property the proceeds of whish belong to her until the debt is paid off, The position of the transferee in such a ease might be regarded as so instructively her possesion, and, in this sense, it would not be severed from the dower debt Just as she could dispose of the proceeds in any way she chose during her lifetime and until the debt was discharged, so also I apprehend she could transfer possession of the property in the same circumstances, the transferee being entitled to the usufruct. But if she should transfer the dower-debt or if she should die and her estate devolve upon her heirs or assignees, the transferee's right to possession would be extinguished, as the debt and the security cannot be severed, thereby converting the security into a separate interest in the property. It would appear, therefore, that even if the instrument in question purported to transfer to the appellant possession of the property forming the security for the debt this would not enure to the benefit of the transferee after the widow's death when the dower-debt passed to her heirs. The possession of the donee, in such a case, must, I think, be regarded as constructive possession of the widow. It is not an interest in property which is capable of absolute transfer. In any view of the ease, therefore, in my opinion, the decision under appeal, upon this point, cannot be assailed.
5. It remains to consider the question of limitation. It is found as a fast, and cannot now be disputed, that the appellant was in actual possession of the whole of the property. He contends that from the moment he obtained possession, in the year 1900, his possession was adverse to that of the plaintiff who cannot, after more than 12 years had elapsed, be held to assert his right to the property. The plaintiff, no doubt, knew that the defendant was in possession but he was not entitled to possession himself as long as the widow was alive and the debt remained undischarged. It is not suggested that the debt was discharged during the widow's lifetime. Had the plaintiff sued for possession before 1911, when the widow died, the appellant-would have had a complete answer to such a suit. He was in possession of the property with the consent of Musammat Kabiran, the only person at the time entitled to possession and the cause of action, which the plaintiff now seeks to enforce, had not at that time arisen and did not arise until after her death in 1911.
6. A further point, however, was taken by the appellant whish must be considered. On the assumption that the widow retained her dower debt and did not transfer it to the appellant, he argued that the right to the dower debt does not belong to the plaintiff but to Musammat Kabiran's heirs. It is not shown, however, that Mummmat Kabiran left any heirs and, in the absence of such, the plaintiff, as the heir of her deceased husband, has a better title to his a annas share in the property than the appellant who has no title at all.
7. A further point which does not appear to have been suggested before was that in any case the Grown would be the ultimate heir to Musammat Kabiran. It is not shown, however, in this ease that the Crown, even if the point is one which is sustainable, had any better title than the present plaintiff and in these circumstances it seems to me that: there is no force in this argument. In my opinion this appeal should be dismissed with costs.
Mallick, J.
8. In my opinion there are only two points of any substance in this appeal. The first is the construction of the deed of transfer by Musammat Kabiran in favour of Abdul Rahman. Both Courts below have found that the document was a deed of sale for consideration, and that what the widow transferred was neither her dower debt nor the right to retain possession of the estate of her deceased husband as security far that debt but her interest in the property as proprietor of that estate which admittedly includes the three-eighths share claimed by the plaintiff.
9. Now, it is admitted that it is the plaintiff who is the sole proprietor of that three eighths share by right of inheritance and that Musammat Kabiran had no proprietary in terest in it, and that if she did not sell her dower debt together with the right to possession of the property as security, then the plaintiff has a good title against her transferee.
10. The Munsif, however, found that the transferee came into possession in 1900 immediately upon the sale and was in adverse possession as against the plaintiff from that date. The Munsif has accordingly dismissed the suit on the ground that the suit has not bean brought within 12 years of the date from which possession became adverse.
11. The Subordinate Judge agrees with the Munsif as to the obstruction of the document bit not as to the question of the limitation. He is of opinion that as the plaintiff was not entitled to eject the transferee during the lifetime of the widow, the possession of the letter could not have been adverse to him and that therefore, limitation began to run only from the date of the widow's death which took place in 1911, He finds that the it having been instituted in 1918, it was within time and he has given a decree to the plaintiff in respect of the disputed share,
12. That judgment was affirmed by Mr. Justice Backnill and there can be no doubt that his construction of the deed of sale is correct. Except in the preamble, whish states that Musammat Kabiran is in possesion of her husband's estate by right of inheritance and in lieu of dower debt, there is no mention in the document of the dower debt. Throughout the transferor purports to transfer her proprietary interest in the whole and entire estate of her husband together with all rights and appurtenances. She sums up the effect of her dispositions in the following words:---"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."
13. It is contended on behalf of the appellant that the words of transfer are perfectly general and must be construed as meaning that it was intended to include not only a proprietary interest in the land in suit, which she thought she possessed but which it is now admitted she did not, bat also the dower-debt and the right to retain possession till it was paid. In my opinion, this contention cannot be accepted. In Maina Bibi v. Wasi Ahmed 51 Ind. Cas. 242 : 17 A. L. T. 629 : I. U. P. h. Rule (A.) 106 : 41 A. 538, their Lordships of the Allahabad High Court had to construe a deed of gift of which the terms were very similar, and it was argued in that case that the greater right includes the lesser and that if the transferor had no right of ownership in the property, she at least had the right to retain possession of it and she should be taken to have transferred that right. The recital in that deed stated that the widow was is possesion by virtue of two separate titles: the first was in lieu of dower and the second by virtue of a former decree under which, the hairs of her deceased husband having failed to pay her dower debt within the time appointed by the Court, she claimed to have become absolute owner. Their Lordships declined to accede to the contention that because she transferred the whole property believing herself to be the owner of it, she should, in the absence of clear and definite words, be taken to have transferred also her dower debt and her right to retain possession.
14. In the present csgi the eonditions are similar and I, think, it will be wrong 4without express words indisating an intention to transfer the dower debt to assume that the debt was also transferred.
15. The right of a Muhammadan widow to retain the possession of her husband's estate in lien of dower has been sometimes described as a lien and sometimes as a charge. Strictly speaking, it is neither, but it is agreed that she has a right to transfer the debt coupled with the security and that the transfer will be binding upon her coheirs till they discharge the debt. She may also during her lifetime transfer the right of possession apart from the debt, but that is a matter between herself and her transferee and the transfer will not be binding upon the co-heirs after her death, That is the meaning of the proposition that a Muhammadan widow in possession of her husband's estate in lieu of unsatisfied dower cannot alienate the estate. This view of the law is in accord with the decision of the Fall Bench in 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 (F. B.) and in my opinion the defendants in the present suit have no answer to the plaintiff's claim.
16. The second point in the case relates to the question of limitation. Now, the onus of proving adverse possession for more than 12 years is clearly upon the defendants; the plaintiff was obviously not entitled to take possession during the widow's lifetime and there is no evidence that when the transferee took possession in 1900 the plaintiff had any notice that he was claiming to hold adversely to him.
17. The Munsif finds that possession became adverse from the moment of the transfer but that finding has been set aside by the Subordinate Judge and in second appeal upon the facts found no case of adverse possession arises.
18. It was finally contended that the widow's heirs, and, perhaps remotely, the Crown may have a right to resist the plaintiff's possession, it trash a cue was not made in the Courts 3alow and cannot be inquired into at this stage. On the findings there is nothing to show that any one has at present a batter right than the plaintiff. The appeal should, therefore, be dismissed.