SUKUR MAHOMED Vs. ASMOT MANDAL

JUDGEMENT

(1.) The facts giving rise to the suit from which this appeal arises are these. One Naibulla was the owner of a jote of Rs. 4-6. He died leaving three sons, Bisha, Bahulla and Abdul, and a widow, the defendant No. 5 in the present case, and three daughters, defendants Nos 6, 7 and 8, as his heirs. There was a mortgage of this jote ffected by Naibulla. A suit was brought upon the mortgage and a decree obtained and the property was sold in execution of that decree. The plaintiff's case is that thereafter two of the sons of Naibulla, namely, Bisha and Bahulla, who were in possession of the property left by Naibullah sold two pakhis of land to them for Rs. 100 and some other land to another person and with the money thus realised they paid off the mortgage-decree and got back the property. The plaintiff further says that he was in possession of the two pakhis purchased by him from October 30th, 1900, the date of his purchase, till he was dispossessed from a moiety of the said land by the defendants Nos. 1, 2 and 3, who were the purchasers from defendants Nos. 4 to 8, that is, the heirs of Naibulla except the plaintiff's vendors. The case before the Court was that these two sons of Naibulla, namely, Bisha and Bahulla, were in possession of the entire property and they sold a portion of it in order to pay off the ancestral debt, and, therefore, the sale was binding upon all the heirs of Naibulla, even though they were not parties to the sale. The plaintiff further claimed title to the land in suit by adverse possession.

(2.) The learned Munsif gave effect to the plaintiff's contentions and gave him a decree for the entire land in suit which is one pakhi out of the two pakhis purchased by him. On appeal, the learned Subordinate Judge held that the sale by Bisha and Bahulla was not binding upon the other heirs of Naibulla as they were not parties to the transaction even though the sale was made for payment of ancestral debts, He further found that it was not a case of representation, namely, that Bisha and Bahulla represented the other heirs of Naibulla in the transaction, and he did not distinctly find that these two persons were in possession of the entire property on behalf of the co-sharers. On the findings arrived at by the learned Judge, I am of opinion, that the Conclusion he has drawn from the facts is correct and in accordance with the principles of the Muhammadan law. In that system of law, there is no representation of the family, as under the Hindu law, by one or more members of it so that the act of the karta or the head binds the other members of the family. As soon as succession opens, under that law, each heir gets his speoified share in the inheritance. The law upon this subject has been very elaborately discussed in the Full Bench case of Abdul Majeeth Khan Sahib v. Krisknamachariar 40 Ind. Cas. 210 : 40 M 243 : M.L.J. 195 : (1917) M.W.N. 346 : 5 L.W. 767, It has been held in that case that the act of one of the heirs meddling with the property of a deceased Muhammadan is not binding upon any of the other heirs. Reference in this connection is made to the case of Khiarajmal V/s. Bairn 32 C. 296 : 32I.A. 23 : 1 C.L.J. 584 : 8 Sar. P.C.J. 734 : 9 C.W.N. 201 : 2 A.L.J. 71 : 7 Bom. L.R. 1 (P.C.), where it has been laid down that the sale by one of the heirs of a Muhammadan for discharging the debt due by the ancestor would prima facie pass only his share in the property. Reliance has been placed before us on certain decisions of this Court. Without examining now the view expressed in those oases, which may require reconsideration when a proper occasion arises, it seems to me that these cases proceeded upon the assumed representation by one of the heirs of a deceased Muhammadan in alienating the ancestral property for the benefit of all the other heirs. But here the learned Judge's finding on this point is in these words: "In the present case, it was not even alleged that Bahulla and Bisha represented the other coheirs," It is further found by the learned Judge that, at the time of this sale, three of the heirs of JaIaibulla, namely, his son Abdul and two of his daughters, were minors and, as being minors, they could not give their consent express or tacit, it cannot be said that the vendors of the plaintiff represented all the co sharers in the property. On the findings come to by the learned Judge, it appears to me that his decision on this point is correct.

(3.) The next point taken on be half of the plaintiff-appellant is that the learned Judge ought to have granted the plaintiff some relief against the defendants Nos. 1, 2 and 3 on equitable considerations. No relief has been asked for upon any equitable ground by the plaintiff, nor do I see on what consideration the plaintiff is entitled to any relief against the defendants Nos. 1, 2 and 3, who are as much bona fide purchasers of the other heirs of Naib-ulla as the plaintiff is from his vendors. Besides, any equitable relief that the plaintiff may olaim must be against the other defendants, namely, the other heirs of Naibulla who have not parted with possession of the property and the claim against them cannot but be of a different character and must be asked for in a differently constituted suit.