second appeal has been preferred against the order of the lower appellate
Court confirming the decree of the Court of first instance.
Now it seems to me, in the first place, that the main ground upon
which the judgment of the lower appellate Court proceeds is that under
the second paragraph of s. 93 of the Transfer of Property Act (IV of 1882)
the judgment-debtors, appellants, mortgagees, were bound to seek an
order for foreclosure or sale of the property to which the decree of the
2nd October 1888, related. This seems to be an erroneous view of the
law. A careful perusal of that paragraph indicates that an order for
foreclosure or sale does not concern a mortgage such as that in this case,
which is a usufructuary mortgage with possession. That paragraph has
therefore no application, and I may say that the provisions of clause (a),
s. 67 of the same enactment fortify the view that a usufructury mort-
gagee is not entitled as such to ha.ve the right of bringing the mortgaged
property to sale.
I need not dwell upon this aspect of the case because, the terms of
the decree df the 2nd October, 1888, are themselves clear and specific,
limiting the right of redemption to 60 days, and those terms, whether
right or wrong, must be adhered to by the Court executing the decree.
In arguing the case, Mr. Jwala Prasad for the respondents has
property conceded that no order was made by the Court extending the
period mentioned in the decree for the payment of the mortgage-money,
and the learned vakil also conceded that the mere circumstance of the
deposit being received by the Court on the 21st May 1889, cannot amount
to an order extending the period of 60 days which was prescribed by the
The principle laid down by their Lordships of the Privy Council in a
recent unreported case of * Raja Har Narain Singh v.  Chaudhrain
Bhagwant Kuar (decided on the 27th January 1891), is that when a period
is fixed, as in that case ib was fixed, by order of the Court under s. 521 of
the Code of Civil Procedure for delivery of an award, and that period has
elapsed, a subsequent granting of another period cannot amount to an
extention of time already elapsed.
Applying the principle of that ruling to the present case, I am of
opinion that after the lapse of 60 days allowed by the decree of the 2nd
October 1888, which decree became final, the decree-holders, respondents,
A VII 33
* Since reported, 13 A. 300.
13 All. 404
INDIAN DECISIONS, NEW SERIES
1891 forfeited their right to execute the decree, and that the order of deposit
JUNB 2. made so late as 21st May 1889, by the Courb executing the decree, could
not cure the effect of the lapse of the period.
APPEL* The proper order to be made in this case was that the application for
LATE execution should stand dismissed.
ClVIL ^ make that order now by saying that I decree the appeal, and, revers-
_ ' ing the decrees of both the lower Courts, direct that application for
ISA. 400= execution stand dismissed, and that the decree-holders, respondents, do
11 A.W.N. pay the costs of this litigation in all the Courts to the judgment-debtors,
(1891) 150. appellants.
13 A. 403 = 11 A.W.N. (1891) 141.
Before Mr. Justice Straight.
USUP KHAN AND OTHERS (Defendants) v. SARVAN AND OTHERS
(Plaintiffs)* [15th June, 1891.]
Occupancy holding, tran^far of First and second mortgages of occupincy holding Suit
by second mortgagee to eject first mortgagee in possession,
Where an occupancy holding was mortgaged under two successive mortgage-
deeds to different parties, and the mortgagees under the first mortgage having
been put in possession, the mortgagees under the second mortgage sued to eject
Held, that, both parties being wrong-doers, inasmuch as both mortgages were
illegal, the defendants, who were in possession, had a right, as against the
plaintiffs, to retain possession.
THE facts of this case are fully stated in the judgment of Straight, J.
 Mr. Amir-ud-din, for the appellants.
Babu Durga Char an, for the respondents.
STRAIGHT, J. This appeal has reference to a suit brought by the
plaintiffs-respondents upon a basis of a mortgage for a period of ten years
of an occupancy holding of Musammat Sugra, dated the 30th September
Musammat Sugra apparently acquired the occupancy right of one
Basawan on the 5th May 1874, and that person had, prior to the sale to
her, mortgaged possessorily the occupancy holding under two mortgages.
On the 10th March 1885, Musammat Sugra mortgaged the occupancy
holding with possession to the defendants-appellants for the sum of
Es. 599-10-6, which amount included the sum of Es. 85-10-6 paid in respect
of one prior mortgage and Es. 299 paid in respect- of the other, and there
was a present advance of Es. 115 in cash. Now I have said that under the
mortgage of the 10th March 1885, the defendants-appellants became entitled
to possession of the occupancy holding, and we must take it from the form
the decrees of the two lower Courts have taken that they were of opinion
that the defendants got possesion and were in possession at the date of
Suit. This explains the alternative prayer of the plaintiffs to their claim
* Second Appeal, No. 1557 of 1888. from a decree of Maulvi S.iyyid Akbar Husain,
Officiating Subordinate Judge of Ghazipur, dated the 16th July 1S88, confirming a decree
of Sayyid Zain-ul-Abdin, Munsif of Korantadih, dated the 28th April 1888,
YII] USUF KHAN V. SARVAN 13 All. 406
for declaration of title, if in possession, namely, that if found to be out of 1894
possession their title be declared, and they be given possession. Both the JUNE 15
Courts below have found for the plaintiffs and have given a decree for -
ejectment of the defendants. Thia appeal is preferred to this Court by APPEL-
the defendants, and the ground upon which it has been put, and which LATE
seems to me to be a substantial and sound ground, is that the plaintiffs
on the one hand by a later document being transferees from an occupancy
tenant, and the defendants on the other baud by an earlier document being 13 A. 403=
transferees of an occupancy tenant and in possession of the occupancy 11 A.W.N.
holding, they cannot be disturbed by a party like the plaintiffs who have an (1891) 111.
infirmity in their title created by the provisions of s. 9 of the Eent Act ; that
is to say, if the plaintiff is a transferee of an occupancy tenant as prohi-
bited by s. 9 of the Rent Act he has no title that he can sustain in a
 Court of justice. Now I am committed to this view that a lessee
for a term of years, as in this case, for a term of 10 years, is a transferee
of the right of occupancy. I have already expressed the view that I take
upon the point in Wali Muhammad v, Raghubar (1) and Nugpal v. Sital
Puri (2) and also expressed my views in the Full Bench ruling in Abadi
Husain v. Jurawan Lai (3) which views, I may remark -in passing, were
not given expression to without due advertence to s. 117 of the .Transfer
of Property Act. According to these rulings I am committed to the
' opinion chat a lease of an occupancy holding of a term of years is
a transfer, in other words, that, as contemplated by s. 9 of the Eent Act,
it is a transfer of a right of occupancy, that is to say, of a right to
occupy the land. Now s. 9 was, in my opinion, framed in the inter-
ests of the persons who were jointly interested in the cultivation
with those who had the occupancy right, and it was intended* to limit
the transfer of the occupancy right within a certain circumscribed area
of persons who are mentioned in the section. As I pointed out to the
learned pleader for the plaintiffs-respondents, if a lease was made by an
occupancy tenant for a period of 10 or 20 years, as the case might be, of
an occupancy right, the interest of the persons who would be entitled upon
the occupancy tenant's death to take the occupancy holding might be very
seriously prejudiced. In the present case,,, a pardanashin lady was the
occupancy tenant and it might well be that the party who would succeed
upon her death would be a male who would wish for his personal advantage
and profit to cultivate the occupancy holding with his own hand. I have
heard nothing in the course of the discussion of the case which leads me
to depart from the opinion that I have expressed in the two rulings to
which I have referred. I think therefore that where there is a conflict
between two wrongdoers, as the plaintiffs and thedefendants are, the person
who is in possession of the property is entitle to be maintained in possession,
and that the plaintiffs in this case are not entitled to succeed. This being so,
I  decree the appeal, reverse the decrees of both the Courts below,
and dismiss the plaintiffs' suit; with costs in all the Courts.
KNOX, J. As regards the facts of the case I will not recapitulate
them, as I agree entirely with my brother Straight in the view that he
has taken of them, and I only propose adding what I consider to be the
state of the law as it now stands. As regards the question whether or not
the right of occupancy which the law has conferred upon occupancy
tenants is capable of transfer by way of lease or not, I hold that there can
be no other interpretation of the word transfer than the one which includes
(1) 9 A. W.N. (1889) 115. (2) 10 A.W.N. (1890) 3. (3) 7 A. 866,
13 All. 407 INDIAN DECISIONS, NEW SERIES [Yol.
1891 the process whereby one person conveys to another for consideration the
JUNE 15, right to cultivate the land, whether the right be so conveyed for one
or more years. Under Act XII of 188J, s. 9, it is expressly stated that
APPEL- " The right of tenants at fixed rates may devolve by succession or be
LATE transferred. No other right of occupancy shall be transferable in execution
OlVIL ^ a Decree, or otherwise that by voluntary transfer . between persons in
' favour of whom as co sharers such right originally arose, or who have
ISA. 400= become by succession co-sharers therein,"
11 A.W.N. I do not intend now to discuss what was the object in view of those
(1891) 141, who framed the law. I have to deal with the words of the Act as they
stand, and I can find nothing in the Act which entitles me to construe the
word transfer otherwise than it is generally accepted in all statues so far
as I know. It is contended that the chapter relating to leases contained
in Act IV of 1882, so far as these provinces are concerned, is not applicable
to agricultural leases, and the contention is that the definition of lease
contained in s. 105 is therefore not applicable to agricultural leases ; but I
do not see how this alters the question. Granted that the definition con-
tained in s. L05 is not to be applied to agricultural leases, we are driven
back to the construction of the words transfer and transferable in the way
such words are ordinarily interpreted. I. also concur in holding that in
the case of two wrongdoers the person in possession is entitled to be
maintained in possession.
For these reasons I entirely concur in the order made by my learned
13 A. 407 = 11 A.W.N. (1891) 46.
 APPELLATE CIVIL.
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Tyrrell. .
BDSTAM ALI KHAN (Defendant) v. ABBASI BEGUM (Plaintiff)*
[25th June, 1891.]
Wajib-ul-an, effect of as evidence of village custom Wajib-ul-arz not signed by lambardar
or co-sharers Construction of icajib-ul-arz.
Where a wajib ul-arz was not signed by the lambardar or by any of the co-
sharers of the village for which it was framed, but was found to have been in
existence without having been questioned by any of the parties who might have
been affected thereby for a period of some thirteen years : Held that the wajib-ul-
art might be taken as prima facie evidence of the custom of the village for
which it was framed.
The said wajib-ul-arz contained a clause relative to pre-emptive rights to the
following effect : " When any muafidar in the ^ntti desires to transfer his share,
then first a shareholder in the y.atti takes it, and if he does not take it, then
another man who desires to take it, takes it." Bold that this clause was declara-
tory of the village custom and that it was not intended thereby to adopt the
Muhammadan law of pre-emption.
THE plaintiff-respondent sued (on the 9th November 1889) to enforce
her right of pre-emption in respect of certain land sold by two of the
defendants to the third, alleging that she was a sharer in the land sold
and, as such, entitled to pre-empt under the terms of a certain wajib-ul-arz
prepared in 1874, and that, immediately on hearing of the sale, she had
Second Appeal, Ho. 1375 of 1888, from a decree of W.H. Hudson, Esq., District
Judge of Farakhabad, dated the 26th May 1888, confirming a decree of Babu Madan
Mohan Lai, Munsif of Farakhabad, dated the 12th December 1887.
BUSTAM ALI KHAN V. ABBASI BEGUM
tendered the price to the defendants. The defendant-vendee alone
appeared and pleaded that the plaintiff was not a co- sharer ; that the land
was muafi and no wajib-ul-arz was recorded in respect thereof ; and he
also traversed the plaintiff's allegation of tender of price. The wajib-ul-arz
in question was not signed by any of the co-aharers but was prepared by
the Settlement Officer and attested by the patwari. The Court of first
instance (the Munsif of Farakhabad), holding the wajib-ul-arz on which
the plaintiff's claim was based to have been prepared in accordance with
law, decreed the claim. The defendant-vendee appealed to the District
Judge, who upheld the decision of the Munsif and dismissed the appeal.
The defendant thereupon appealed to the High Court.
 Mr. G. H. Hill and Pandit Ajudhia Nath, for the appellant.
The Hon'ble Mr. Spankie, for the respondent.
EDGE, 0. J., and TYRRELL, J. This is a seccond appeal arising out
of a suit for pre-emption brought upon a tvajib-ul-arz. The appellant
before us is the defendant. The wajib-ul-arz in question was framed in
May 1874. It was'not'exeouted by any lambardar or any of the co-sharera.
It has not been shown that any person interested in the mahal took any
steps to challenge the correctness of the wajib-ul-arz before the settlement
was confrmed by the Local Government, or indeed until the legality of
the wajib-ul-arz was challenged by the defendant in this suit. Although,
no doubt, ib would have been better if the wajib-ul-arz had been attested
by the lambardar or lambardars if any, and by the co-sharers, or some of
them, we cannot, at this distance of time, and having regard to the fact
that the correctness of the wajib-ul-arz remained all these years unchal-
lenged, hold that it is not prima facie evidence of the village rights and
customs recorded in it.
The next question is, what is the meaning of the particular clause
which relates to pre-emption ? That clause is as follows : " When any
muafidar in the patti desires to transfer his share, then first a shareholder
in the patti takes it ; and if he does not take it, then another man who
desires to take it takes it." We cannot construe the clauses in a wajib-
ul-arz as if they had been carefully prepared by a conveyancing counsel. We
must try to find what was probably meant, so far as we can. ,Now, we think
this clause shows that there was a local village custom of pre-emption, and
that by that custom any shareholder in the patti was entitled to buy in
preference to an outsider ; and that the custom was not the custom of the
Muhammadan law, pure and simple, but partook of the character ordinarily
found in loajib-ul-arzes, and that it was the duty of the shareholder
desiring to transfer to give a co-sharer an opportunity of purchasing.
Every wajib-ul-arz has to be construed, so far as is possible, on its own
wording. Few wajib-ul-arzes  which have come before us are
worded precisely alike. This wajib-ul-arz in question was anterior to the
issue of the rules to settlement officers of 1875. We accordingly, holding
the views we do, dismiss this appeal with costs.
13 All. 410 INDIAN DECISIONS, NEW SERIES [Vol.
1891 N 13 A. 409 = 11 A.W.N. (1891) 159.
M tl_ 15 ' APPELLATE CIVIL.
APPEL- Before Sir John Edge, Kt., Chief Justice, Mr. Justice Tyrrell,
LATE Mr. Justice Mahmood and Mr. Justice Knox.
is A^409 ANGAN LAL (Defendant) v. MUHAMMAD HUSAIN AND OTHERS
11 A.W.N. (Plaintiffs)* [15th May, 1891.]
(1891) 139. Construction of document Deed Sale deed or deed- of -gift.
A deed which puported on the faoe of it to be a deed of sale contained a recital
that the consideration had been received by the vendor and returned as a gift to
the vendee. The words used were " Hath * * * nawasia pneki bai katai karke
zar-i-samman tamam wo kamal wasul paker bakhsh diva aur hiba kardiya."
The deed was stamped as a sale-deed and was duly registered, but no posses-
sion was given under it, and there was apparently no evidence external to the
deed that any oonsideration had passed between the parties.
Held by EDGE, C.J., and TYRRELL and KNOX, JJ., that in the absence of
any evidence external to the deed itself of the intention of the parties, the deed
in question must be taken to be a deed of sale.
Per MAHMOOD, J., contra The lower appellate Court having found that no
oonsideration had passed, the deed must be considered as a deed-of-gift, though
wearing the appearance of a sale-deed, and, possession not having been given,
under Muhammadan Law, the gift was invalid.
THE facts of this case sufficiently appear from the judgments of
Edge, C.J., and Mahmood, J.
Mr. T. Gonlan and the Hon'ble Mr. Spankie, for the appellant.
The respondents were not represented.
MAHMOOD, J. This is an appeal preferred from the judgment of the
late Mr. Justice Brodhurst as to the interpretation of a deed to which
reference will be made by me presently.
The case out of which the appeal arises was a second appeal, and it
came before my brother Straight and the late Mr. Justice Brodhurst, and
they dissented in opinion and the decree passed by Mr. Justice Brod-
hurst was that the appeal should stand dismissed.  The judgment
of my brother Straight was that the appeal stand decreed and the plaintiff's
claim should also stand decreed.
This is the state of things under which this appeal has been pre-
ferred as an appeal under s. 10 of the Letters Patent. What I have to
consider is, whether the appeal should or should not prevail, and, in
doing so, it is important to state tha facts which require consideration for
the purpose of deciding the point of law which arises in the case. Those
facts are these :
On the 3rd June, 1878, Musammat Wilaiti Begam executed a docu-
ment in favour of her daughter's daughter, Ilahi Begam, purporting to be
a deed of sale in lieu of Eg. 700, and that document was duly registered.
Matters stood thus when, on the 1st August, 1884, Ilahi Begam, the vendee
of the deed of the 3rd June, 1878, executed a document purporting to be a
deed of sale in favour of Angan Lai, present; plaintiff-appellant, for a sum
of-Bs. 1,000, and this document was also registered. This happened as
any.other documents. of this description may be executed, and naturally
* Appeal No. 26 of 1889 under section 10 of the Letters Patent.
YII] ANGAN LAL V. MUHAMMAD HU9AIN 13 All. 412
as too often occurs in India, such documents are questioned as to their 1891
validity. MAY 15.
The plaintiff came into Court claiming possession of property which
he alleged that he had purchased from Ilahi Begam under sale-deed of
the 1st August, 1884, that is to say, such rights as she, Ilahi Begam, LATE
possessed under the earlier deed of 3rd June, 1878. ClVIL.
The suit was resisted upon the ground of a total denial of title in the ._ /""Tjjg^
plaintiff, either under the deed of the 3rd June, 1878, or the deed of the 1st .. ' w
August, 1884, and it is clear that under these circumstances it was for the | 1891 ', An'
plaintiff to prove, and not for the defendants to disprove, that the plaintiff
had full title under either of those deeds.
Now this being so, it is important in the first place to consider the
terms of the deed of the 3rd June, 1878. The document need not behead
fully, though it is necessary before I interpret it to say that I have read
the whole of it. It is necessary also to site some  parts of the docu-
ment upon which Mr. Conlan has relied. The words of the document are
C5 c5 l^" J) u"' 5 ^- ;)
#( I AVA i^ ^ja. r ;i;Stf lcu> ^.j,? ^
Now these words or words of which the meaning requires specific
determination, because, indeed, if they mean that the document was a
deed of sale, then, undoubtedly, the conclusion is right that Angan Lai is
entitled to his decree.
Reading these words as I have done, they leave no doubt in my mind
that it was nob a deed of sale, though it was a pretended deed of sale, as
apparent from the deed itself ; and it was, as has been held by the Courts
below and by Mr. Justice Brodhursfc in this Court, simply a deed of gift.
It is therefore important to consider whether or not there should have
been delivery of possession under the deed.
Now upon this point there has been some doubt as to whether or nofe
the Muhammadan law applies to such a case. A Full Bench of this
Court has decided the question in the affirmative in cases of pre-emption
(Musammat Chandu v. Hakim Alimuddin) (1), the same principle has been
applied also to questions of gift (Nizamuddin v. Zabeda Bibi) (2), and so
far as the interpretation of the document now in question is concerned, the
Muhammadan law is the law which governs the adjudication of the case;
not only because this may be required by section 37 of the Civil Courts
Act (XII of 1887), but also, because, even if there is no specific statute
law, I think it has been held by their Lordships of the Privy Council
that in such cases respecting transactions between  Muhammadana
(1) N.W.P.H.C R. (1874), 28. (2) 6 N.W.P.H.C.R. 338,
13 All. 413 INDIAN DECISIONS, NEW SERIES [Yol.
1891 it is only administering the rules of justice, equity and good conscience to
MAY 15, bear in mind what rules that law requires.
This being so, I have in the first place to determine whether the deed,
as I have read it, is a deed of sale or a deed of gift. Mr. Conlan has refer-
LATE red us to the case of Rahim Bakhsh v. Muhammad Hasan (1); the learned
ClVIL. Counsel has argued with such ability that the judgment; does in some
parts of it give colour to the contention which is necessary for his case.
13 A, 409- TJte matter, however, is clear from the judgment in that case that, before
11 A.W.N. a (^(j can DQ interpreted to be a deed of gift, or Hiba-bil-aiwaz or a deed
(1891) 159, o f 8a ] ei it must be known what the conditions were under which the deed
was executed, what its terms were, and what the consideration was upon
which the contractual relation created by tke engagement was established.
So considered, the ruling does not support the laarned Counsel. The ques-
tion then is, is the deed of the 3rd June, 1878, a deed of gift or not ? I have
no hesitation in holding that when property is conveyed by what is
merely called a gift, but is in exchange of property which is taken in
consideration, that consideration being of a pecuniary character, the
transaction is one called Hiba-bil-aiwaz, which stands upon the same
footing as sale under the Muhammadan law. Equally am I certain that
when there is only a pretension of such a state of things having occurred,
and there is no proof that such things did occur, and when the document
itself shows that such things did not occur, the transaction is neither
a Hiba-bil-aiwaz nor a sale.
This, I understand, is what the learned Judge of the first Court held.
Also I understand this interpretation of the deed was upheld by the lower
appellate Court. I also understand that Mr. Justice Brodhurst, dealing
with the findings of the Court below, held, to use his own words :
" Whatever the intention of Musammat Wilaiti Begam in executing
the deed may have been, I am quite satisfied, from her never having caused
mutation of names in the Government records nor transferred possession up
to the present time, that she had no  intention to relinquish posses-
sion of the property during her lifetime. Considering the near relationship
that existed between the alleged vendor and vendee, the fact that, the