RAM PRASAD SINGH Vs. MTBIBI KHODAIJATUL KUBRA

JUDGEMENT

(1.) This is an appeal by the plaintiffs who are dissatisfied with the decision of the learned Subordinate Judge, third Court, Patna, dated 20 December 1937, by which he granted them a partial decree against the mortgagor restricted to her share in the mortgaged properties. The principal question for determination in this appeal is whether a Mahomedan widow in possession in lieu of dower debt can grant a simple mortgage of the properties of which she is in possession assuming that upon a construction of the mortgage bonds in suit she had purported to make such a transfer.

(2.) The facts are these. One Zahurul Hasan was the son of Abnl Hasan and Mt. Saliman. He died in 1915 leaving a widow, Mt. Rahmatul Bari defendant 1 in the action?to be referred to hereinafter as the mortgagor. He also left two minor children Khudaijatul Kubra, defendant 2 and Saiyid Hasan, defendant 3. He had another daughter Bibi Habiba but she died after his death many years ago. Mt. Saliman, the widow of Abul Hasan, applied to the District Judge of Patna in the year 1916 for being appointed a guardian of the person and property of the minor children of Zahurul Hasan (Ex. A (1) p. 12) and she was so appointed on 25th June h 1916. She apparently failed to furnish security as desired by the District Judge and a petition was filed for her removal from the guardianship. In the year 1920, the mortgagor made an application stating these facts to the District Judge of Patna and prayed that she may be appointed guardian in place of Mt. Saliman (Ex. A p. 14). In these petitions it is stated that the minors are Mahomedans of the Sunni sect that Mt. Khodaijatul Kubra was born in 1324 Hijri and Saiyid Hasan was born in 1332 Hijri. Apparently she was appointed a guardian.

(3.) Before the year 1920 however the mortgagor had applied to the Collector in the Land Registration Department that her name a should be mutated in respect of the villages left by her husband, who died on 13 April 1915, in lieu of her dower, but the Deputy Collector recorded her name in respect of seven villages only in spite of objection by Mt. Saliman. In appeal the Collector made a reference to the District Judge for deciding the question summarily under Section 55, Land Registration Act. There was also a dispute as to whether the amount of dower due to the widow was Rs. 1,00,000 and one dinar surkh or a lesser sum as was apparently the case of Mt. Saliman. The judgment of the learned District Judge who disposed of the reference on 4 June 1918 shows that the Collector desired the civil Court to decide what the amount of the dower was and whether any portion of that dower was still due and also to decide whether the mortgagor had obtained possession of the undistributed properties of her deceased husband without force or fraud and whether she was entitled to retain possession of them against the other heirs. The case was heard ex parte as we are informed the parties had come to some terms by that time. The concluding portion of the judgment of the learned District Judge is: It is ordered and decreed that this case be decided ex parte as Mt. Rahmatul Bari alone appeared. The questions referred to this Court are decided in favour of Mt. Rahmatul Bart. It is proved that dower was one lac of rupees and one dinar surkh. It was deferred dower and nothing was paid and it is all due. It is further proved that Rahmtul Bari is in possession without force or fraud of tauzi No. 10777 gilani.