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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 57 of 155)
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13 A. 432, supra,
371



I.L.R., 14 ALLAHABAD. ,



JAN. 18.
14 A. 1 (F.B.) = U A W.N (1891) 211 = 11 A. 423.

FULL
[1] FULL BENCH. BENCH>

Before Sir John Edge, Kt., Chief Justice, Mr. Justice Straight, 14 A 1

and Mr. Justice Mahmood. /p '

\CiO.f

- - 11 A.W.H.



ASHPAQ AHMAD AND OTHERS (Plaintiffs) v. WAZIB ALI AND

OTHERS (Defendants.)* [18oh January, 1889.] 11 A. 428.

Mortgagi Joint Mortgage Re iemptim cf the while by one co-mortyapnr Rights of
redeeming co mortgagor r,s against the oth?rs Limit tion Act XV of 1677 (Limi-
ta'i'.n Act), Schedule II. Art. 148.

Where one of several co-mortgagors redeems the wholn mortgage he thereby
puts himself iota the position of the mortgagee as regards that portion oi the
mortgaged property which represents the interests of the other co-mortgagors,
and the period of limitation applicable to a suit for redemption brought by the
other oo-morteagora is thai provided for by Art. 148 of Sch. II of tbe Limitation
Aot (XV of 1S77). Such period begins to run from the date when the original
mortgage was redeemable and not from the date nf its redemption by the aforesaid
co-mortgagor. Nura Bibi v. Jagat Narain (1) and Raghubir Sahai v. Bunyad
Ali (2) followed: Umr-un nissa v. Muhammad Far Khan (3) distinguished ;
Ram Singh v. Bzlleo Singh (4) referred to.

[Diss.. 26 B. 500; 3 Bom. L.R. 685 (689j; 9 O.C. 91 ; P., U.B.R. 1892-1896. Vol.
If. 490 1491). R.. 61 P. L.R. 1904 ; 32 P.R. 1905 = 39 P.L.R. 1905 ; U.B.R.
18921896, Vol. II. 502 ; D , U.B R. (18971901). Vol. II, 469 (472).]

[N.B. - This very case Is reported more fully in 11 A. 423, supra. Ed.]

IN this case one Ahmad Ali, the common ancestor of both parties,
mortgaged certain property by a usufructuary mortgage on tbe 5th July
1S22. Ahmad Ali died in 1825 leaving four daughters, who also subse-
quently died. After this Khwaj Bakhsh, the husband of one of them,
redeemed the whole of the property in 1828. On the 5th February 1886,
the plaintiffs, who were the representatives of one of the daughters of
Ahmad Ali, brought their suit against the defendants, who were represen-
tatives of the other three [2] daughters, to recover possession of a i share
of the property redeemed by Khwaj Bakhah. The Court of first instance
decreed the plaintiffs' clauu. The defendanfs then appealed, and the
lower appellate Court decreed the appeal and dismissed the plaintiffs' suit,
on the ground that it was barred by limitation ; holding that, if the
plaintiffs claimed on the hypothesis that the defendants, the representatives
of Khwaj Bakhsh were representatives of tbe original mortgagee, then
Art. 148 of the second schedule of tbe Limitation Aot applied and limitation
began to run from tbe date of the original mortgage in 1822 ; while on
any other hypothesis the possession of Khwaj Bakhsh and his represen-
tatives would havn been adverse and the suit would be barred under
Art. 144 of Sch. II of the same Act. The case came in second appeal before

* Second Appeal No. 403 of 1887.
(1)8 A, 295. (3) 3 A. 24.

(3) 6 A.W.N. (1886), 152. (4) 5 A.W.N. (1885), 300,

373



14 All. 3 INDIAN DECISIONS, NEW SERIES [Vol.

1889 Mahmood, J., who, by his order of the 17fch July 1888, directed it to be

JAN. 18. J & id before the Chief Justice for orders as to its being referred to a

. Division Bench. Subsequently, on the recommendation of Straight and

FULL Mahmood, JJ., the case was laid before a bench consisting of Edge,

BE&QH. G. J., Straight and Mahmood, JJ.

Mr. Abdul Majid and Pandit Moti Lai, for the appellants.
II JL1' Pandit Sunder Lai, for the respondents.

(p.B.y- ' - *

11 A.W.N JUDGMENT,

!!- EDGE, 0. J. This was a suit for redemption of mortgage. The ori-
|23. ginal mortgage Was a usufructuary mortgage of 1822. One of mortgagors
v -. -, redeemed the whole of the property in 1828. -This suit was brought
.%.'.i ''". against his heirs on the 5th February 1886. The lower appellate Court
,. -i dismissed te>suit o.n,jbhe ground that it was barred by limitation. In
\ 1 ? my opinion the limitation applicable in a case of this kind 19 the limitation
which would have been applicable' if the original mortgagee or his heirs
had been- the* defendants to the'Tedemption suit, that is, if 'Art-. 148 of
thd Limitation Act applies, the period does not run from the date of the
redemption of the whole property by one of the co-mortgagors, but from
the time it would have run against the original mortgagee if he had
been a defendant in the suit. As I understand the law, when one
of two or more s eor mortgagors redeems the whole, he, as to the
portion which represents the interest of his co-mortgagors, stands in the
[3] shoes of the mortgagee from whom he redeems, and, standing in those
shoe's, it appears to me that he has gat the same rights and the same
UabiiifeieSi If Art. 148 applies, as I think it does, this suit is barred by
time. If the ruling of the Full Bench in the case of Umr-un-nissa v.
Muhammad Yar Khan Q) be correct and exhaustive, then also the suit is*
barr-ed, alstnore than 12 years have run since the date of the redemption of
the mortgage' by the ancestor of the defendants : so in either case the plain-
tiffs' suit must fail, The ruling of the Full Bench above referred to was
explained by my brother Straight and my brother Tyrrell in the case of
Nura Bibi v. Jag at Narain (2). It appears from that explanation that the.
attention of the Full Bench was not drawn to the question whether Art. 148
of the Limitation Act was one applicable to the case. There the attention
of the Full Bench having been confined to the article before them, the result
arrived at was that Art. 144 was held applicable. This appeal therefore
must be dismissed with costs.

, ., STRAIGHT. J. The facts out of which the question raised by this
reference arose are very fully stated in the referring order of my brother
Mahmood, and it is wholly unnecessary to repeat them now. The learn-
ed Chief Justice has suoqmarizad the position of the parties to the
litigation, out of which this appeal arose, by saying that this is a suit by
the plaintiffs, appellants! before us, for redemption of their share of certain
property mortgaged in the year 1822 from the defendants- respondents,
who are the representatives of one of the original mortgagors, who in the
year 1828 -redeemed the whole of the mortgaged property. The three
questions stated by my brother Mahmood in his referring order are :
(1) Is this suit governed by Art. 148 or Art. 144 of the Limitation



(2) If by Art. 148, is the starting point of the period of limitation
the date of ^the mortgage of 1822 or the date of the redemption of 1828 ?

(1) 3 A. 24, . : (2) 8 A. 295,

374



YII] ASHFAQ AHMAD V. WAZIR ALI IS All. 5

(3) If Art. 144 applies, is the defendants' possession acquired under 1889
the redemption of 1828 to be taken as adverse to the plaintiffs' from that JAN. 18,
date ?

[4] It will be convenient for me at once to deal with the obvious FULL
matter that was passing through the mind of my brother Mahmood at BENCH.
the time he made the reference of these questions with regard to the
applicability of Art. 144 to facts like those disclosed here. No doubt ** *' *
what was present to his mind was a decision of the Full Bench passed in
the year 1880 and reported in I.L.R., 3 All. 24 (Umr-un-nissa v. Muham- J1 A - W - N<
mad Yar Ehan). I have already, as the learned Chief Justice has observed, "
taken occasion, in conjunction with my brother Tyrrell, in the case of a *

Nura Bibi v. Jagat Narian (1) to explain the circumstances under which
that particular ruling was delivered by the Full Bench. Having again
refreshed my memory by reference to it, I am convinced that I was right in
saying that the whole argument of the Full Bench proceeded upon the
assumption that Art. 144 of the Limitation Act was the^article applicable to
those particular facts, and, assuming that particular article applicable, the
question was whether, as stated in the order of reference of the two learned
Judges, there had been such physical possession as would lay the foundation
for finding adverse possession. I am quite convinced that the equitable prin-
ciple which was then recognized, under which a co-mortgagor redeeming for
his other mortgagors was entitled upon redemption of the whole mortgage to
hold their share as against them as security for the mortgage, was never
referred to or discussed, and there was at that time no statutory provision
in force which could have been brought to the attention of the Judges of
the Full Bench to show that Art. 148 was the Limitation article
applicable. Therefore, in so far as there is anything in that case to
militate with the contention now raised, it must be taken that that casa
never did decide and must not be regarded as an authority for deciding
that Art. 148 is not applicable to such facts as we have here. Therefore
it must, be dismissed from consideration in dealing with the questions
submitted to us.

Then arises the question whether Art. 148 is applicable, and if so
from what date does the limitation begin to run ? Does it run from the
dafee of the original mortgage, or does it run from the date [5] of the
redemption of the whole mortgage by one of the co-mortgagors ? As
to Art. 148 being applicable, I have no doubt. I have already committed
myself to that view in the case of Nura Bibi v. Jagat Narain (1) and
there have been several other rulings to the same effect ; among others,
one reported in the Weekly Notes of 1886, page 152, Baghubir Sahai v.
Bunuad Ali. Further, even before the Transfer of Property Act came into
operation, I took the view that a co-mortgagor redeeming the whole mort-
gage stood in the shoes of the original mortgagee and was entitled to all the
rights and incidents connected with his estate. The principle that underlies
that is, that he, having paid off the obligation to the creditor, is entitled to
take advantage of all the incidents connected with the security as it stood
in the hands of the mortgagee, or, in other words, he is entitled to
all the rights and incidents connected with the mortgage as they
were in the hands of the mortgagee at the time the redemption took
place. Amongst others he cannot say that a new mortgage transaction
commenced from that particular date, but bis position as mortgagee
stands upon the same footing as it would have if the original mortgage

<l) 8 A. 295.
375



14 All. 6 INDIAN DECISIONS, NEW SERIES [Yol.

1889 had assigned over to him by sale bis mortgage interest. Not only do I
JAN. 18. think that a co mortgagor redeeming the whole mortgage stands in the
position of the original mortgagee, but that time runs from the date
of the original moitgage. No doubt this view is inconsistent with one
BENCH, expressed hy the late Obief Justice, Sir Comer Patheram, in tbe case

of Bam Singh v. Baldeo Singh (1). Tbat learned Judge was of the same

opinion as I am as to the applicability of Art. 148 to the facts then before

(F.B.) = n j m> But j(j <j oeg no ti appear to have been seriously discussed before him

It A.W N. ag {JQ w h a |j waa the precise date from which the limitation would run.

(1891) 211= Mr. Abdul Majid is entitled to use that judgment in his favour, and it is

11 A. 423. entitled to all the respect which every utterance of the learned Chief

Justice deserves. But I cannot myself agree with the view that the

limitation runs from the date when the redemption took place. It must,

in my opinion, relate back to the date of the original mortgage, and

upon this I have explained my reasons in the cage [6] of Nura Bibi v. Jagat

Narain (2\ The conclusion I have arrived at is the same as that of the

learned Chief Justice, viz., that this suit was barred and that this appeal

must bedismssed with costs.

MAHMOOD, J. The facts of the case, as also the points of law raised
by the arguments of the parties before me when the case first came up
before me in the Single Bench, are fully stated in my order of the 17th
July 1888, and I regard what I then said as a portion of my judgment
to-day.

That order shows that, at- any rate, the case was a fit one for being
disposed of by a Bench consisting of more than one Judge, and it was in
consequence of that circumstance that the case was laid before my brother
Straight and myself ; and by our order of the 6th December 1888 it was
laid before the learned Chief Justice for consideration as to whether it may
not go before a Bench of three Judges. It is in consequence of this
circumstance that this is the third time that this Court is hearing the case,
and it has not been due to any other cause than my desire to obtain such
authoritative ruling upon the points raised in the case as this Court can
give.

The points which arise in the case have been so completely dealt
with by the learned Chief Justice and my brother Straight that I should
be unnecessarily taking up their time if I dwelt upon the same points or
made any endeavour to give expression to any exposition of the law which
would minutely deal with tbe various cases that may arise under it.
The question, however, upon which the fact of the case turns requires two
things : first, that it should beheld by us that Art. 144 of Sch. II of the
Limitation Act has no reference to suits of this character ; and secondly,
that suits of this character are governed by Art. 148. Upon both these
questions I, who am never content with dealing with any case without
dealing also with the ratio,viz., the essential steps of reasoning upon which
the judgment proceeds, have no hesitation in saying, with all deference,
that the judgment of tha Full Bench in Um-un-nissa v. Muhammad Yar
Khan (3) proceeds upon a theory of law as to the application of the
Art. 144 which I find it impossible to accept. Not- [7] withstanding the
clear distinction which my learned brother Straight drew in the case of
Nura Bibi v. Jagat Narain (2) tbe result of what we have held to-day is to
say that tbe Full Bench ruling need no longer be referred to for the purpose
of finding out tbe periods of limitation for suits.

(1) 5 A. W. N, 1885, 300. (2) 8 A, 195. (3) 3 A. 24,

376



YII] MABIAM BIBI V, SAKINA 14 All. 8

Again, it is also clear, and I do not wish to add a single word to what 1889
has fallen from my brother Straight upon the subject, that the ruling JAN. 18.
referred to in my referring order, viz., Ram Singh v. Baldeo Singh (1) cannot
possibly be consistent with the ratio upon which our judgment proceeds. FULL
The truth is, as I understand the law, that there are various manners and BENCH
methods whereby a person may stand in the shoes of a mortgagee. There
may be a case such as that of an assignee, or there may be a case such as ** *' *
that which the broad principle of equity known as subrogation involves. ( F ' B ')~
A co-sharer suing for the redemption of the whole of the property and *.
obtaining redemption thereof is not a person in adverse proprietary posses-
sion, as the Full Bench ruling would probably require. He is simply by *
subrogation on the same footing as an ordinary person would be as repre-
senting the mortgagee, or rather the mortgagee's interest in the property
qua such of his co-sharers as have not either secured redemption or sued
for it.

When in a suit the question arises whether or not a co-sharer can obtain
his share from a redeeming co-sharer, the case to my mind is a suit such
as art. 148 contemplates, and such a suib is governed by the 60 years'
period. In the present case the original mortgage was so old as the 5th of
July 1822. There was no endeavour made to prove that the redemption
which took place in 1828 was other than an ordinary redemption by one
co-sharer of other co-sharers' property ; the present defendants represent
the right of the redeeming co-sharer and they are entitled to rely upon the
same limitation as art. 148 would require.

There is, however, because it is on account of that reference of mine
that the case has come up before us, one point more that I wish to add.

The reference of course relates to four properties, as [8] mentioned in
my referring order, and what we have held with regard to this mortgage
renders it unnecessary for us to consider the other mortgages mentioned in
the judgment of the Court below. The view we have now taken defeats
the whole suit. The result is exactly what the learned Chief Justice and
my brother Straight have said, viz., that this appeal stands dismissed with
costs.

Appeal dismissed.



14 A 8 = 11 A W.N. (1891) 213.
APPELLATE CIVIL.

Before Mr. Justioe Straight and Mr. Justice Tyrrell.



MABIAM BIBI (Plaintiff] v. SAKINA AND OTHERS (Defendants)*

[16th February, 1891.]
Pardah-nashin woman Conditions necessary to the valid execution of a document by.

Where a deed executed by a pardah-nashin woman is sought to be set aside, it
is foe the party wishing to uphold tha deed to show affirmatively that the
transaction intended to be carried out by the deed was a raasonable one, that tha
executant was fully cognizant of the meaning and legal and praotioal effect
thereof and that she executed the same with her full and free consent, that is to
say, that she had independent advice on the subject and was not otherwise, as,
e,g., by reason of bodily or mental infirmity, or by reason of fraud or coercion
practised upon her, incapable of giving a rational consent to the transaction.

* First Appeal, No. 189 cf 1899, from a decree of Maulvi Shah Ahmad-ullah,
Subordinate Judge of Allahabad, dated the 20th August 1889.

(1) 5 A. W.N. 300.

377

A VII 48



14 All. 9



INDIAN DECISIONS, NEW SERIES



[Yol.



1891



16.

APPEL-
LATE i
OIVIL.

11 i. fi-

ll A. WN.
(1891) 213.



One Mariain Bibi a pardah-nashin lady of some 70 years of age, and more ot
lees illiterate, executed on the llth September 1858, a deed which purported to
divest her immediately of all her property in favour of her eon Murtaza Ilusen,
who was dumb and imbeoile, her daughter Sakina, who was named in the deed
as guardian of Murtaza Husen. and that daughter's son, Muhammad Yakub.
Muhammad Yakub was betrothed to a daughter of one Fakir Husen and one of
Sakina's daughters was married to one Bhakurul Husen. Those two persons,
viz,, Fakir Husen and Shakurul Husen were mainly instrumental in procuring
the execution of the deed in question. The deed was drafted in very artificial
language, and it was not shown that the executant ever understood its contents
or effect. Ths executant was moreover at the time of execution in ill-health and
great mental distress, owing to the death of her son, Muhammad Husen, which
had happened some months previously. The deed was also executed in the
absence of the person who was at that time the executant's chief adviser and
the manager of her property. Lastly, it appeared that as soon as the executant
came to know what the true nature of the deed was and that proceedings had
[9] been initiated in the .Revenue Department for mutation of names, she took
immediate measures to show her dissent from the provisions of the deed and her
disapproval of what had been done thereunder.

Held that under the circumstances above set forth the deed in question could
not be considered as having been executed under the conditions necessary in such
oases and must be set aside. Ashgar Aliv. Delross Banu Begum (1) Mahomed
BuUsh Khan v. Eosseini Bibi (2), Behari Lai v. Babiba Bibi (3), and Kaniz
Fatima v. Abbas Ali (4) referred to.

[R,, 3 Bom. L.E. 658 ; 3 Ind. Gas. 330 (334) = 12 C.LJ. 115 ; D., 2 A.L.J. 436.]

THE facts of this case are sufficiently stated in the judgment of
Tyrrell, J.

Pandit Sundar Lai and Munshi Lai Ghulam Mujtabajoic the appellant.
Munshi Kashi Prasad, for the respondents.

JUDGMENT.

TYRRELL, J. The appellant brought a suit to obtain a declaration
that a deed executed by heron the llth September 1888, may be declared
null and void, on the ground that it was fraudulently framed so as not to
express her intentions in executing it and is therefore inoperative and null.
The defendants are her daughter, the minor son of that daughter, and the
plaintiff's adult son, who is dumb and imbecile. The suit was instituted
on the 22nd February 1889, and was dismissed by bhe Subordinate Judge
of Allahabad on the 20th August 1889. The defence to the suit was that
the deed expresses the declared and true intentions of the plaintiff, who
with full knowledge of its contents was a party to its registration and to
the subsequent application for mutation of names in favour of the defend-
ants under the terms of the deed and to the possession of the defendants
in accordance with the deed. The plaintiff is over 70 years of age, and on
the llth September 1888, was the absolute owner in her own right 6f
an 8-anna share in Eahmanpur in the Allahabad district, with groves
appertaining to the same, and a house in Eahmanpur, and also of a
2-anna 8-pie muafi estate in the village Amwa in the Mirzapur district,
and also of certain decrees and outstanding claims for money, the
entire property being valued roundly at 10,000 or 11,000 rupees. Half
[10] of the 8-annas zemindari share of Eahmanpur was at the time in
possession of a mortgagee, but the rest of the property was in the posses-
sion of the plaintiff and the plaintiff had acquired this property, not
through ner deceased husband, but from her own family and otherwise.
She had by her deceased husband two sons, the eider, now about 50,
being the defendant Murtaza Husen, alias Chatar, dumb and imbecile, who



(1) 3 0. 324. (2) 15 C. 694.



(3) 8 A. 267.
378



(4) 7 A.W.N, (1887) 84.



YII] MARIAM BIBI V. SBKINA 14 All. 11

lived with and on his mother, the younger named Syed Muhammad 1891
Husen, who died in February, 1888, aged 45 years, and a daughter, the FEB. 16.
female defendant, whose minor son, the defendant Muhammad Yakub,
is engaged to be married to the daughter of Fakir Husen of Sheikhpur, APPEL-
who was the principal agent in the execution of the deed in question. LATE
The loss of her second son, who was the prop of his mother's old age
and manager of her estate and business, plunged the plaintiff into the
deepest grief, and in August, 1888, she fell into severe sickness which 14 4. 8=
made her anxious to dispose of her property before she died. She says 11 A.W.H,
in her plaint that her idea was to set apart 3- of her estate for religious (1891) 213*
objects to the spiritual benefit of herself and her deceased son and to devise
the remaining f to her daughter Sakina and her imbecile son, who were to
take possession thereof in shares in accordance with their interest under
the Muhammadan law of succession after her death. At this time her
daughter and the minor defendant, whose place of residence is in the
Jaunpur district, were on a visit to the plaintiff, who had recently
negotiated the marriage of Musammat Sakina's daughter with one Shakurul
Husen, a resident of Sheikpur, and the betrothal of Musammat Sakina's
minor son, the defendant Yakub, with the daughter of Fakir Husen, also a
resident of Sheikpur in the Allahabad district. In the month of Septem-
ber, 1888, the plaintiff says that her daughter Sakina, in co-operation
with this Shakurual Husen and Fakir Husen, under pretence of bringing
about the execution of a deed to carry out the above intentions of the
plaintiff, took her away from her house in Rahmanpur to their own place,
some 7 or 8 kos distant, and there made her a party to the execution and
registration of the deed of the llth September, 1888, and to the initiation
of proceedings in the local Revenue Office in connection therewith. Tha
plaintiff alleged [11] that she was wholly unaware of the main content8
and of the legal ahd actual effect of the deed ; that she had no idea that it was
a deed which would or could have operative effect in her lifetime ; that she
vras also ignorant of the purport of the application in the Revenue Depart-
ment and that it was not till late in October, 1888, that she became aware
that proceedings were on foot to expunge her name from the public records of
title and possession of her Allahabad property. She promptly protested in
the Phulpur tahsil office against the proposed alteration in the publio record,
but without success, and her anpeal in this respect to the Collector of the
district was disallowed on the llth February, 1889. In those objections
she stated from the first that the respondents had taken advantage of her
old aga and practised deceit and fraud upon her in the execution and
registration of a deed. She derives her cause of action from these



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 57 of 155)