Patna High Court
Musammat Sogia And Ors. vs Musammat Kitaban And Ors. on 28 October, 1927
Equivalent citations: 107IND. CAS.319
JUDGMENT Kulwant Sahay, J.
1. This is an appeal by the defendants. The principal question for decision is as to whether Musammat Murti had the right to transfer and whether Eid Mohammad obtained a valid title under the transfer of the property by Musammat Murti under a deed of gift. Musammat Murti was the widow of one Basu, and it has been found that she was in possession of the property in lieu of her dower debt. Musammat Murti executed a deed of gift in favour of Eid Mohammad, the husband of the plaintiff No. 1 and the father of the plaintiffs Nos. 2 and 3. The defendants claim to be some of the heirs entitled to the property by right of inheritance, and their case is that the transfer by means of the deed of gift by Musammat Murti did not pass any interest in the property to Eid Mohammad and that the defendants were entitled as the heirsat-law to the property.
2. The Courts below have held that the transfer by Musammat Murti to Eid Mohammad was a valid transfer and the suit has been decreed in favour of the plaintiffs.
3. The question is as to whether Musammat Murti had the right to transfer the property under the gift to Eid Mohammad. The finding of the learned District Judge is that what was transferred under the deed of gift was the security and not the dower debt itself, and one of the questions raised is whether the security could be transferred apart from the dower debt. This question was considered by this Court in Bibi Makbulunnissa v. Bibi Umatunnissa 70 Ind. Cas. 312 : 4 P.L.T. 272 : (1922) Pat. 348 : A.I.R. 1923 Pat. 33 : 2 Pat. 84 and it was held that such a transfer of the security is a valid transfer and is binding against the widow and persons claiming through the widow, as also against the heirs-at-law so long as there is a debt due to the widow. The same view was taken in another case by a Division Bench of this Court in Nabijan v. Sahifan 67 Ind. Cas. 635 : 4 P.L.T. 278 : A.I.R. 1923 Pat. 153. This view is supported by a decision of the Allahabad High Court in Abdulla v. Shams-ul-Haq 58 Ind Cas. 833 : 43 A. 127 : 18 A.L.J. 969 : 2 U.P.L.R. (A.) 329. A different view was taken by another Division Bench of this Court in Abdur Rahman v. Wali Mohammad 68 Ind. Cas. 601 4 P.L.T. 267 : (1922) Pat. 313 : A.I.R. 1923 Pat. 72 : 2 Pat. 75; but with very great respect to the learned Judges who decided that case, I am of opinion that the view taken in the other two cases is the correct view. There seems to be no reason in law or in equity why such a transfer should not be held to be a valid transfer. The widow is in possession of the property which is clearly transferable in law and the transferee of such a property from the widow would acquire a valid title so long as the debt is not satisfied. The interest which the widow had to remain in possession of the property would pass to the transferee, and there seems no reason why such a transfer should be held to be invalid apart from the debt itself. The view taken by the learned Judge on this point must, therefore, be accepted as correct.
4. Another point was taken by the learned Advocate for the appellants to the effect that the heirs of the widow and of her husband in the present case happen to be common and, therefore, the debt must be held to be extinguished and the heirs would be entitled to take the property according to their legal shares. This point, however, does not appear to have been taken in the Courts below and we are not in a position to say as to whether the heirs of the widow and of her husband are the same.
5. Lastly it is contended that there has been no finding in the judgment of the District Judge as to whether Eid Mohammad, the husband of the plaintiff No. 1, is really dead. The question, however, does not appear to have been raised either in the trial Court or in the Court of Appeal below.
6. The result is that this appeal is dismissed with costs.
Das, J.
7. I agree.