JAMADAR MIAN Vs. AMIR HASSAN

JUDGEMENT

(1.) This appeal is by the plaintiffs, who are two in number. Plaintiff No. 2 is the widow of one Taiyab Mian of village Mohammadpur and is the mother of, plaintiff No. 1. The appeal is directed against the judgment and decree dated the 30th June, 1950, passed by the 1st Additional subordinate Judge, Chapra, affirming the decision in the suit given on 23rd December, 1948, by the Munsif, 2nd Court, Siwan. It arises out of a suit for redemption of zarpeshgi deed dated the 15th June 1919, executed for a sun) of Rs. 399/- by plaintiff No. 2 for self and as guardian of her minor son Khodadin in favour of defendant No. 1 and one Lalmohammad, who subsequently assigned his interest to defendant No. 2, whose name is also Lal Mohammad and who is the 'sala' of defendant No. 1. The property mortgaged therein was 3 bighas 7 khatas and 9 dhurs of kasht land which originally belonged to Taiyab Mian. It appears that Taiyab Mian died leaving his widow (plaintiff No. 2) and his son Khodadin. Subsequently after his death plaintiff No. 2 got another posthumous son (plaintiff No. 1). Thereafter her first son Khodadin died issueless leaving his mother and his brother plaintiff No. 1 as his heirs. The case alleged in the plaint was that Taiyab Mian in his own lifetime executed a baimokasha' deed in favour of plaintiff No. 2 transferring the property under mortgage to her and she on the basis of that 'baimokasha' deed came in possession of the same. During the revisional survey, however, plaintiff no. 2, who had by then her posthumous son, plaintiff No. 1, got the name of Khodadin recorded in the survey papers in respect of the lands given to her by the 'baimokasha' deed, though, according to her, the possession of that property remained with her. Shortly thereafter, plaintiff No. 2 being in need of money, executed the aforesaid zarpeshghi deed for a sum of Rs. 399/- in favour of defendant No. 1 and one other person Lal Mohammad. Her case was that she executed this deed for self and as guardian of Khodadin simply for the satisfaction, of the mortgagees though in fact Khodadin had no interest in the property mortgaged. On the execution of the document, Khodadin died while he was still Unmarried leaving the two plaintiffs as his heirs. Thereafter the present suit for redemption was instituted on 25th September, 1947, and the case of plaintiff No, 2 was that it was instituted both on her behalf and on behalf of her posthumous son (plaintiff No. 1) just to avoid future complications in her suit; otherwise according to her plaintiff No. 1 was not a necessary party to it. It was further alleged in the plaint that the zarpeshgi money had been originally tendered to the defendants orally but as they refused to take it the same was deposited in court under Section 83 of the Transfer, of property Act.

(2.) The defence pleaded was that the plaintiffs had no right of redemption in the property under mortgage. The defendants denied the execution of the 'baimokasha' deed by Taiyab Mian in favour of plaintiff No. 2 and they, in the alternative, alleged that the 'baimokasa' deed, even if executed by him, remained inoperative and was never acted upon. Their case was that Taiyab Mian before his death made an oral gift of his entire property in favour of his son Khodadin and put him in possession over it and it was On the basis of that gift that the name of Khodadin was recorded in the revisional survey papers. It was further alleged by the defendants that the zarpeshgi deed was in fact executed by plaintiff No. 2 only as the guardian of Khodadin, and the same having been executed by her as the mother and 'de facto' guardian of her son Khodadin was under Mohammadan Law illegal and void. They also alleged that after execution of the zarpeshgi deed plaintiff No. 2 married one Nazir Mian of village Saranpur and deserted her minor son Khodadin in village Mohamadpur and that Jamadar Mian (Plaintiff No. 1) was in fact the son of plaintiff No. 2 by her second husband Nazar Mian. They further pleaded that as Khodadin had been deserted by plaintiff No. 2 on her marriage with Nazir Mian, he took shelter under the care of defendant No. 3 with whom he lived till he became major and thereafter according to the case of the defendants Khodadin while ha was major, though still unmarried, made an oral gift of his entire property to defendant No. 3 and put him in possassion of the same. Thus, according to the defendants, title in the property passed to defendant No. 3 and he on the basis of that got the zarpeshgi deed redeemed sometime in 1347 fasli and in proof of that got the necessary endorsements also made on it in his favour by defendants 1 and 2. On account of these allegations made by defendants 1 and 2 in their written statement, the plaintiffs subsequently impleaded defendant No. 3 too as a party to the suit. And defendant No. 3 in his written statement adopted all what was alleged by defendants 1 and 2 and in addition thereto advanced a case of paramount title on the basis of adverse possession.

(3.) The trial court found firstly that the story of oral gifts made by Taiyab Mian in favour of his son Khodadin and then by Khodadin in favour of defendant No. 3 was a myth and the case of redemption of the zerpeshgi deed by defendant No. 3 was illegal. It also did not accept the story of 'baimokasa'. Thus, the conclusion to which the trial court arrived was that the land given in mortgage under the zarpeshgi deed remained the property, of Taiyab Mian till his lifetime and on his death it was inherited by his son Khodadin to the extent of fourteen annas and by his wife (plaintiff no. 2), to the extent of the remaining two annas. It, however, accepted the case of the defendants that plaintiff No. 2 being mother and only a de facto guardian had no authority under the Muhammadan Law to execute the zerpeshgi deed on behalf of Khodadin, and, therefore, that was void to the extent of his share. In that view of the matter, the trial court rejected the claim for redemption so far as the interest of Khodadin in the property under mortgage was concerned and held that the prayer for the recovery of that interest was barred by adverse possession. It accordingly decreed the suit in part only allowing plaintiff No. 2 to redeem the property under the zerpeshgi deed to the extent of her two annas interest only. Against this judgment both the plaintiffs and the defendants preferred appeals in the lower appellate court but both were ultimately dismissed. In dismissing these appeals the lower appellate court as well rejected the story of the gifts said to have been made firstly by Taiyab Mian in favour of his son Khodadin and thereafter by Khodadin in favour of defendant No. 3 and also disbelieved the story regarding redemption by defendant No. 3. On the point of 'baimokasa' deed, it affirmed the finding of the trial court and in view of these facts found by the learned Subordinate Judge he came to the conclusion, as the trial court did, that the property belonged at the time of the zerpeshgi deed to plaintiff No. 2 and her son Khodadin and that on the death of Khodadin the plaintiffs inherited his interest in the property. But so far as the claim for the fourteen annas interest of Khodadin was concerned, the lower appellate court also came to the conclusion that it could not be redeemed as by then the defendants had acquired therein an absolute title by adverse possession. Hence this second appeal by the plaintiffs.