ALLISAHEB ISAMOHADINSAHEB Vs. SHESHO GOVIND KULKARNI

JUDGEMENT

(1.) This is an appeal from the judgment of the F. C. Subordinate Judge of Dharwar. The appeal is presented by defendants Nos. 6, 7, 1, 2, 3 and 5, but Mr. Coyajee who appears for the appellants has abandoned all the points, except two which affect defendant No. 6, and those points arise in this way. In 1871 there was a mortgage of properties by Hayatmir I, who appears in the pedigree set out in the judgment of the trial Court. Hayatmir I died in 1872, and in 1873 his son Hussain created a second mortgage in favour of the same mortgagee, and in 1879 there was another mortgage to the same mortgagee and the mortgagee was put in possession of the property. Hussain died in 1890 leaving four sons and a daughter. Two of the sons Hayatmir II and Ibrahim died in 1906. In the year 1907 the other two sons Abu and Mohadin created a mortgage of the lands in favour of defendant No. 6 and to that mortgage I will refer more in detail presently. That is Exhibit 82. In 1909 the two sons Abbu and Mohidin purported to sell part of the lands being survey Nos. 26 and 55 to defendant No. 6, the sale-deed being Exhibit 83. The plaintiff in this suit has purchased the interests of various defendants but in substance he claims through the two sons and daughter of Hussain who were not parties to the mortgage and sale to defendant No. 6. The first point which is raised is that the mortgage of 1907 and the sale of 1909 being made by two of the heirs of Hussain could not bind the interest of the other heirs but could only bind the interests of the two heirs who sold. Against that contention Mr. Coyajee relies on the case of Hasan Ali V/s. Mehdi Hussein (1877) I.L.R. 1 All. 533. In that case the deceased was a Mahomedan, as in the present case, and the heirs were two minor sons of a nephew, and a niece, and the niece sold the deceased's property in order to pay his debts. The sale was upheld, but I think it was upheld mainly on the ground that the niece who made the sale was the guardian of the infants and that the sale was one for their benefit, being to discharge debts for which they were liable. On the other hand it has been held by a full bench of the Madras High Court in Abdul Majeeth V/s. Krishnamachariar (1916) I.L.R. 40 Mad. 243, F.B. that one of the co-heirs of a deceased Mahomedan in possession of the whole or part of the estate cannot make a sale of the estate which is binding on his co-heirs. That decision has been followed by this Court in Bhagirthibai V/s. Roshanbi: Mirkha v. Bhagirthibai, s.c. 21 Bom. L.B. 329. The proposition is accepted by Sir Dinshah Mulla in his book on Mahomedan Law and by Mr. Tyabji in his book on Mahomedan Law as correct, and I think we must follow it.

(2.) Then the second point taken by Mr. Coyajee on behalf of defendant No, 6 is that even assuming that the mortgage of 1907 and the sale of survey Nos. 25 and 55 to him are invalid except in respect of the shares of the two vendors, nevertheless he is entitled to a charge on the family property, the subject of the mortgage of 1907, for the moneys advanced by him in so far as they were used to pay off prior mortgages. The mortgage of 1907, which is Exhibit 82, recites the prior mortgages made by Hayatmir and Hussain Miya and then it says: For the purpose of redeeming these our lands by filing a suit against those persona and for the necessity of our household expenses we wanted monies; so having this day agreed to pay interest at the rate of Rs. 1 per cent, per month, we have taken Rs. 1,500 in cash from you as debt. and then they proceed to charge the land. It saems to me clear that the intention was to use the money or part of it for the purpose of paying off the prior mortgages and to give defendant No. 6 as the mortgagee a first charge on the property.

(3.) What happened subsequenty was that suits Were brought to redeem the mortgages and they wore subsequently redeemed and presumably the mortgages wore retained by defendant No, 6 in respect of his mortgage though. I do not think that fact is in evidence. In 1909 when the two properties were purported to be sold to defendant No.6 by a sale-deed which is Exhibit 88, the amount due on the mortgage to him was taken as part payment of the purchase money and no doubt on that occasion the mortgage was treated as discharged. Defendant No.6 has not got the mortgage in possession now and we must presume that it was handed back to the mortgagor. But I think it does not lie in the mouth of the present plaintiff who challenges that sale in be far as it affects the lands of his predecessors-in-title to rely on that part of the sale which involved discharging the mortgage. I think that so far as the plaintiff is concerned, if the sale is set aside at all, it must be set aside in its entirety and the vendor and purchaser must be left to the rights which they then had in respect of the mortgage.