AHMAD ZAMAN KHAN Vs. BALDEO DAS

JUDGEMENT

(1.) On the issues remitted by our order, dated 18 March 1930, the learned District Judge, has found that the plaintiff did not acquire any right in that half of the house No. 4912 which originally belonged to Imamuddin. He thought no finding was necessary on the question of adverse possession. We have considered the grounds on which the finding of the learned Judge proceeds and heard the learned Counsel at great length. We are unable to accept the finding of the learned District Judge in its entirety. He has found that the half share of Imamuddin in the aforesaid house was in possession of Mt. Narain Dei, as heiress to one Salig Ram, who was a usufructuary mortgagee of the house. The learned Counsel for the parties have not been able to give us the date and particulars of this mortgage. The learned advocate for the contesting respondent has urged that besides the usufructuary mortgage there were certain simple mortgages in favour of Salig Ram in respect of Imamuddin's share of the house in dispute. The learned Judge has also found that Mt. Narain Dei, instituted a suit in 1880 for enforcement of a certain mortgage in respect of the portion of the house in dispute and obtained a decree, that Huseni Jan and Bani Bibi, two of several heirs of Imamuddin, paid Rs. 500, in full satisfaction of the claim of the mortgagee and obtained possession of the mortgaged property. On evidence the learned Judge has found further that Huseni Jan and Bani Bibi remained in possession from 1886 to 1907 when they made a gift of half of the house in dispute to Mashihuzzaman, the second defendant, the judgment-debtor of the contesting respondent, and that the latter has remained in possession ever since. On these facts the learned Judge is of opinion that the plaintiff acquired no right in Imamuddin's half of the house, though he concedes that a fraction of Imamuddin's interest should have devolved on the plaintiff through Hasanuddin the grandson of Imamuddin.

(2.) It is not disputed before us that Imamuddin died leaving a son Muniruddin, two daughters and a widow. Muniruddin did inherit a part of what belonged to his father. Muniruddin died leaving his son Hasanuddin who inherited his father's share. Hasanuddin died in 1909 without leaving any widow or issue. The plaintiff was the nearest residuary heir of Hasanuddin. It follows that Hasanuddin's rights in Imamuddin's half of the house devolved upon the plaintiff on the death of Hasanuddin. It has, of course, to be considered whether such right was subsequently lost by adverse possession of Huseni Jan and Bani Bibi, or otherwise. The extent of the interest which eventually devolved upon the plaintiff in respect of Imamuddin's half of the house has also to be determined. It has been already mentioned that at least Imamuddin's half of the house was in possession of Mt. Narain Dei as mortgagee in 1886. It is not disputed before us that the mortgage under which Mt. Narain Dei, was in possession was binding on all the heirs of Imamuddin. Muniruddin and after him Hasanuddin could therefore be entitled to no more than a fraction of the equity of redemption. The plaintiff attempted to make out that the extent of Hasanuddin's share was 1365 sihams out of 4608. This was not controverted either before the lower appellate Court or in second appeal before us. We accept the extent of Hasanuddin's share as 1365/4608 of the equity of redemption which belonged to all the heirs of Imamuddin.

(3.) By the deed of gift executed by Huseni Jan and Bani Bibi in favour of Masihuzzaman Khan, defendant 2, the right, title and interest of the doners was conveyed to the donee. The right to possession which the donors had acquired by virtue of redemption must be deemed to have been likewise conveyed to the done. Neither the plaintiff nor any of his predecessors-in-interest had any right to possession till he redeemed his interest in the property held by the mortgagee and thereafter by two of the co-heirs who had redeemed the whole Taking the view which has prevailed in this Court since the decision of Ashfaq Ali V/s. Wazir Ali (1891)14 All 1, the position of a redeeming co-mortgagor is that of a mortgagee so as to make Art. 148. Limitation Act, applicable to a suit for possession by the other co-mortgagors. The possession of Huseni Jan and Bani Bibi was by virtue of redemption perfectly lawful and of right as mortgagees and therefore not adverse to their coheirs who had a right to possession only on redemption of their share of the mortgaged property. The donee Masihuzzaman Khan's possession was likewise that of a mortgagee and not adverse. The plaintiff has the right to redeem what he inherited from Hasanuddin at any time within 60 years from the date of the original mortgage under which Salig Ram held possession of the house in dispute: Surat Singh V/s. Utnrao Singh AIR 1922 All 410.