SKEIKH HUB ALI v. WAZIR-UN-NISSA — 1906 DIGILAW 8 (SC)

Judgement Appeal from a decree of the above Court (January 7, 1902), which set aside a decree of the District Judge of Fyzabad (February 4, 1898), and decreed the respondents claim for possession of the eight annas share of two villages, the subject of suit, with mesne profits. The suit was brought by Sughra Bibi (since deceased), the daughter of Raza Ali, Wazir-un-nissa, who was described as the widow of Raza Ali, and Sheikh Inayet-ul-lah, a purchaser from them of half of their rights in the property in suit, to recover the said eight annas share from Kazim Husain Khan and the appellant with mesne profits from date of suit to date of recovery. The plaint alleged that Raza Ali was absolute owner thereof and died on January 2, 1881, leaving his daughter and widow as his heirs, having mortgaged the property on May 11, 1871, for thirty years without possession to Raja Tajammul Husain Khan, the predecessor of Kazim Husain Khan, by deed of mortgage by conditional sale of that date; that Husain Khan on January 4, 1881, took possession thereof without foreclosure proceedings 11 contrary to the terms of the mortgage deed " and got mutation of names for the same in his own name as proprietor ; but that the appellant subsequently obtained possession thereof under a decree in a pre-emption suit dated November 4, 1884, to which the plaintiffs were not parties and by which they were not bound. Kazim Husain Khan pleaded that he took possession under the deed of 1871, and that he was entitled to keep it for thirty years. The appellant denied that the respondent Wazur-un-nissa was ever married to Raza Ali; and alleged that even she were she was a ghair kuf woman (not of the brotherhood), and that under the terms of the wajib-ul-arz relating to the property neither she nor her daughter could inherit to Raza Ali. He also contended that the transaction of May 11, 1871, became an absolute sale on Raza Alis death, and that there was no necessity for taking foreclosure proceedings. He pleaded that Husain Khan lawfully entered into possession, and that he himself lawfully obtained possession under a decree of Court on payment of Rs.4400 and was not a trespasser; that the plaintiffs should have sued for redemption, and that the suit in its present form does not lie. He pleaded that Husain Khan lawfully entered into possession, and that he himself lawfully obtained possession under a decree of Court on payment of Rs.4400 and was not a trespasser; that the plaintiffs should have sued for redemption, and that the suit in its present form does not lie. The transaction between Raza Ali and Tajammul Husain Khan, the predecessor of Husain Khan, was evidenced by two deeds, of September 28, 1866, and May 11, 1871. The first was an hypothecation of the property now in suit for Rs.2000 for five years, without any stipulation as to interest. It also provided for an absolute sale thereof on the mortgagor dying within the period of five years without having paid the debt, a contingency which did not happen. Towards the expiration of that period, without payment, the second deed, of 1871, was executed, the effect of which was to extend the period to thirty years from that year, again without stipulation as to interest. The deed contained the following provisions— "3. The third condition is, if, God forbid, within the fixed period I die, then, after me, the whole share of zamindari of villages Hasanpur Tanda and Asauna, as detailed below, in part and entirety, exclusive of Sadrapur, owned and possessed by me, and hypothecated as above, shall be considered as a complete sale in favour of Muhammad Tajammul Husain Khan, creditor, in lieu of the debt, and none of my sharers, representatives and heirs, shall, expressly or otherwise, have remaining any claim or right, and the said creditor thenceforward shall be taken as the real owner of the said property; and this very deed shall be considered as a complete sale-deed. " 4. " 4. The fourth condition is, after my death, when the said creditor becomes entitled to, and possessed of, the property covered by this deed of mortgage by conditional sale, as proprietor thereof, he shall have to maintain Hadi Husain, Mehdi Husain and Muhammad Husain, brothers of Kazi Zain-ul Abdin, residents of Sehali, on this scale "150 village bighas of land within the boundaries of village Hasanpur Tanda, and 11 houses of weavers, an occupied house and one-half of the grove, and the power of exacting suitable services from rayets (service tenants), residents of Hasanpur Tanda; you shall also have to give according to this recommendation, and this land and the houses of the rayets above noted shall remain for the three sons, each in equal shares, without any interference on the part of anybody. "Therefore, these few words as a mortgage by conditional sale, complete, have been executed on a stamped paper of full value and registered under seal of the registration office, that it may be of use at the time of need." On November 14, 1884, the appellant obtained a final decree for pre-emption against Husain Khan "on condition of his giving to the sons of Zain-ul-Abdin or their representatives the provision made for them by Raza Ali." Both the Courts below held in this suit that the deed of 1871 must be construed as a mortgage by conditional sale, and that Regulation XVII. of 1806 gave the mortgagor a years grace from the time of the issue of a notice to him thereunder. The District Judge dismissed the suit, finding on the evidence that Wazir-un-nissa was not the lawful wife, and that Sughra Bibi was not the legitimate daughter of Raza Ali; and that, if a lawful wife and a legitimate daughter, they were excluded from inheritance by custom. He decided the issue as to custom excluding a ghair kuf wife from inheritance on the ground that " there is no evidence that there were any inter-marriages between the families of Mahbub Ali (i.e., the father of Wazir-un-nissa) and Raza Ali or their relations prior to Raza Ali taking Musammat Wazir-un-nissa, and according, therefore, to the literal meaning of ghair kuf, and as it is understood by Hadi Husain, Mehdi Husain, and other witnesses, Musammat Wazir-un-nissa was a ghair kuf woman, that is, a woman belonging to a strange family. There have been no analogous instances cited in which such a woman has not succeeded to her husbands property. The wajib-ul-arz, however, which was signed by Raza Ali, is clear on the point that they cannot succeed, and that must be evidence of the custom until the contrary be proved. No evidence to the contrary has been given. Whether it is a hard and unfair custom is not for me to decide." The appellate Court found in favour of Wazir-un-nissas marriage with Raza Ali, and the consequent legitimacy of Sughra Bibi. With regard to the custom, the judgment found that Wazir-un-nissa was not a ghair kuf wife; that if she were, the wajib-ul-arz did not establish a custom to exclude her, nor did the evidence. The custom, it says, " is recorded in the wajib-ul-arz of the village; but the wajib-ul-arz begins with the words ba ikrar, or by agreement, and it therefore cannot be presumed to be necessarily the record of an old and established custom. It does not purport to be more than an agreement between the parties who signed it, and there is no clear evidence of instances in which the custom was recognised and acted on." Cowell, for the appellant, contended that the intention and effect of the deed of 1871 were to vest an absolute title to the property in suit in Tajammul Husain Khan or his heir on the death of the mortgagor. The deed did not create a debt or a mortgage. Both were existing at its date, and the mortgagor of the earlier deed could by deed subsequent relase the existing equity of redemption. There was no consideration other than the release for the extension of the period of mortgage by a further thirty years without interest. In the provision for the three nephews a kind of family settlement was provided of a portion of the property originally mortgaged; and neither Regulation XVII. of 1806 nor the Transfer of Property Act contemplated such a transaction in the light of a mortgage by conditional sale. So far as this deed was one of hypothecation there was no sale, and so far as it was a sale there was no condition as to payment- of debt. It did not, therefore, fall within s. 58, clause 3, of the Act. So far as this deed was one of hypothecation there was no sale, and so far as it was a sale there was no condition as to payment- of debt. It did not, therefore, fall within s. 58, clause 3, of the Act. It fell within s. 98, and was to be construed according to the intention of the parties, freed from the technical rules applicable to a mortgage by con ditional sale. If the transaction was one of redeemable mortgage the only remedy is that given by Regulation XVII. of 1806, which was in force at its date, or by the Transfer of Property Act, which regulated the procedure to be adopted at the time the suit was brought. The respondents have not followed that remedy nor offered to redeem, but have brought ejectment, to which they are not entitled, either under the contract, the Regulation, or the Act. Reference was made to Sayyid Mansur Ali Khan v. Sarju Prasad (( 1886) L. R. 13 Ind. Ap. 113.); Bhagwan Sahai v. Bhagwan Din. (( 1890) L. R. 17 Ind. Ap. 98.) It was also contended on the evidence that the plaintiffs did not represent Raza Ali, for there had been no marriage; otherwise the wajib-ul-arz, which had been signed by Raza Ali, proved a custom to exclude the wife as ghair kuf, and no evidence had been given to the contrary. De Gruyther, for the respondents, contended that the evidence established that Wazir-un-nissa was the lawfully married wife of Raza Ali, and that Sughra Bibi was his legitimate daughter. The custom relied upon for excluding them was not proved. In the first place it was doubtful what was the true meaning of ghair kuf. If it meant, as several of the witnesses said, that a woman was ghair kuf to a man if there had been no previous inter-marriage between the families, there could be no marriage at all except where a previous affinity existed, which would be an unreasonable and impossible custom. The entry in the wajib-ul-arz would, even if admissible, be insufficient evidence by itself of custom, and no instances had been given. The onus was on the appellant to prove it, and he could not use the entry as shifting the onus to the respondents of giving instances to the contrary. The entry in the wajib-ul-arz would, even if admissible, be insufficient evidence by itself of custom, and no instances had been given. The onus was on the appellant to prove it, and he could not use the entry as shifting the onus to the respondents of giving instances to the contrary. With regard to the effect of the deed of 1871, it was recited to be a mortgage by conditional sale, and that was the intention of the parties. It was governed by Regulation XVII. of 1806 see Act XVIII. of 1876, ss. 5 and 10, and Macpherson on Mortgages, 7th ed. p. 293. It was contended that no action of ejectment would lie, and that the proper remedy was redemption; but see Forbes v. Ameeroonissa Begum, (( 1865) 10 Moo.Ind.Ap.343,348.) Both Courts have rightly held that possession was illegally taken by the mortgagee, who ought to have followed the procedure prescribed by the Regulation. Cowell, replied, referring to Limitation Act (XV. of 1877), Sched II., art. 116, as to taking possession in breach of contract, and to Rani Lekraj Kuar v. Mahpal Singh (( 1879) L. R. 7 Ind. Ap. 63, 70.), as to the effect of the wajib-ul-arz. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. The suit out of which this appeal arises was instituted on August 13, 1890. The plaintiffs were Sughra Bibi and Wazir-un-nissa (claiming to be daughter and widow, and as such co-heiresses, of one Raza Ali, deceased) and Inayet-ul-lah, an assignee from the ladies of a share of their inheritance. The defendants were Kazim Husain Khan and the present appellant, Hub Ali, whose connection with the matters in dispute will be explained later. The case presented on behalf of the plaintiffs was -that about 1856 or 1857 Raza Ali, whose home was then at Seota, was lawfully married to Wazir-un-nissa, and resided with her there for some time, and that Sughra Bibi was the legitimate daughter of that marriage; that subsequently Raza Ali migrated to Tanda, whither he was shortly followed by his wife and daughter, who lived with him there until his death, which took place on January 2, 1881; and that they, as such widow and daughter, were his lawful heirs according to Mahomedan law. It was further alleged that Raza Ali, at the time of his death, was the owner of an eight annas share in the villages Hasanpur Tanda and Asauna; and that on May 11, 1871, he had mortgaged that property by deed of conditional sale to Raja Tajammul Husain Khan for a period of thirty years, without possession, to secure a principal sum of Rs.2000 without interest. It was then said that on January 4, 1881, immediately after the death of Raza Ali, the defendant Kazim Husain Khan, the representative of the original mortgagee, without any foreclosure or other legal proceedings, procured mutation of names for the mortgaged pro perty in his own favour, and shortly afterwards entered into possession; and that the other defendant had obtained a decree in a pre-emption suit against Kazim Husain Khan, to which the plaintiffs were no parties, and acquired possession of the property. On the basis of the case thus indicated the plaintiffs asked for a decree for possession of the property and mesne profits. In answer to this case the defendant Hub Ali, now appellant, denied that Wazir-un-nissa was the wife, or Sughra Bibi the daughter, of Raza Ali. He alleged, secondly, that, if there had been a marriage, both wife and daughter were excluded from inheritance under the terms of the wajib-ul-arz, on the ground that the wife was a ghair kuf woman. It was set up, thirdly, that by the terms of the alleged mortgage the property vested absolutely in the mortgagee on the death of Raza Ali, and that the mortgagee, and after his death his representative, was entitled to take possession without any legal proceedings. It was said, lastly, that the plaintiffs ought, upon their own view of the case to have sued for redemption and could not sue for possession. These were the four questions discussed before the Courts in India, and again argued on the appeal before their Lordships. The District Judge dismissed the suit. He held that the marriage of Wazir-un-nissa was not proved. He held, further; that, if a marriage did take place, the wife was ghair kuf within the meaning of the wajib-ul-arz, and that therefore mother and daughter were excluded from inheritance. The District Judge dismissed the suit. He held that the marriage of Wazir-un-nissa was not proved. He held, further; that, if a marriage did take place, the wife was ghair kuf within the meaning of the wajib-ul-arz, and that therefore mother and daughter were excluded from inheritance. On the other hand, he thought that the document called a mortgage by conditional sale was really so ; that the mortgagee or his representative had no right except to have recourse to foreclosure proceedings; and that, in taking possession as he did, he was a trespasser, against whom a suit for possession might properly lie. In the Court of the Judicial Commissioner it was held that Wazir-un-nissa was the lawfully married wife of Raza Ali, and Sughra Bibi their legitimate daughter; that the alleged custom, based upon the wajib-ul-arz, to exclude a ghair kuf wife and her daughter was not proved, and that if it were proved, Wazir-un-nissa was not a wife of that class. It was further held, in concurrence with the first Court, that the document of May 11, 1871, was a mortgage by conditional sale, and that the entry by the representative of the mortgagee was a mere trespass; and accordingly a decree was given to the plaintiffs for possession and mesne profits. Their Lordships agree with the conclusions arrived at by the Court of the Judicial Commissioner on all points. As to the fact of the marriage, it was spoken to by the Qazi, who says he performed the ceremony, and by four other witnesses who profess to have been present. Those witnesses were disbelieved by the first Court, for reasons which are not very convincing—reasons which are quite sufficient to demand an examination of the evidence in support of the marriage as a whole and with care, but not sufficient to justify the summary rejection of the testimony of the witnesses in question. The next branch of the evidence in support of the marriage relates to the position and treatment of the alleged wife and of her daughter. With regard to this it seems clear that from the time of the alleged marriage Wazir-un-nissa lived with Raza Ali as his wife down to his death. She and her daughter lived in the inner apartments of the house, whereas a mistress who was kept by Raza Ali lived at the same time in the outer apartments. With regard to this it seems clear that from the time of the alleged marriage Wazir-un-nissa lived with Raza Ali as his wife down to his death. She and her daughter lived in the inner apartments of the house, whereas a mistress who was kept by Raza Ali lived at the same time in the outer apartments. As to the amount of social intercourse between the two ladies and others more or less connected with Raza Alis family, the evidence is loose, as is usual in such cases. The daughter, Sughra Bibi, whose parentage is not disputed, was married by her father, with considerable ceremony and publicity, to a man of respectable family. Upon the death of Raza Ali, the Patwari, in his official report, declared that Wazir-un-nissa, his wife, and Sughra, his daughter, were his heirs. The present appellant himself, in his evidence on a former occasion, describes Wazir-un-nissa as the wife of Raza Ali. From all this their Lordships think the proper inference is that the marriage did take place ; and it follows that the widow and daughter were heirs of Raza Ali, under the Mahomedan law unless there was something special to exclude them. The special circumstance relied upon as excluding them from the inheritance was that Wazir-un-nissa (it was said) was a ghair kuf wife, and that she and her daughter were excluded by custom. Apart from the wajib-ul-arz, it appears to their Lordships that there is absolutely no evidence of any custom on the subject. There is simply a series of statements by witnesses, as to what is usual and what they consider becoming, with reference to inter-marriages between different groups of Mahomedan families, but there is no instance produced of anybody having been excluded from inheritance in consequence of a marriage not in accordance with the witnesses views of propriety. The District Judge based his finding upon a statement in the wajib-ul-arz of the village of Hasanpur Tanda. The District Judge based his finding upon a statement in the wajib-ul-arz of the village of Hasanpur Tanda. That document, under the heading " Transfer of Property and Eight of Inheritance, says "A married wife belonging to a (ghair kuf) different caste, and an unmarried wife, or their descendants will, provided they bear good conduct, be entitled to maintenance according to their status, and they will not be entitled to any share whether the property be partitioned or unpartitioned." That document bears the signatures, amongst others, of Raza Ali and the present appellant; and the fact that Raza Ali signed it makes it admissible, for what it is worth, against those who are claiming as his heirs. But the Judicial Commissioner has pointed out that the document commences with words meaning " by agreement,* so that it does not purport to be a record of immemorial custom. The learned counsel for the first respondent drew attention to the fact that, though the parties were all Mahomedans, the rules of inheritance laid down are really based, not upon Mahomedan, but on Hindu law. In the absence of other evidence in support of the alleged custom, their Lordships are of opinion that the entry in the wajib-ul-arz is insufficient to establish it. They further agree with the Judicial Commissioner that, supposing such a custom to be established, the case of Wazir-un-nissa has not been shewn to fall within it. Raza Ali was by family a Syed, Wazir-un-nissa was by family a Sheikh, and the social position of her father is stated to have been good. If any conclusion can be drawn from the vague and conflicting statements of the witnesses, it appears to their Lordships to be that such a marriage would not fall within the ban implied by the term "ghair kuf." The nature of the mortgage transaction and its legal effect have next to be considered. On September 28, 1866, Raza Ali executed a deed of mortgage in favour of Tajammul for Rs.2000, repayable in five years, hypothecating the two villages in question as security, and providing in paragraph 3 that if " I die within the fixed period without paying the said loan then after me the whole share of my zamindari which has been hypothecated, shall be considered as a complete sale to Tajammul .... in lieu of the debt." The same paragraph describes the deed as a " mortgage deed by conditional sale." On May 11, 1871, the mortgagor executed a second deed in favour of the mortgagee. This deed recited the former mortgage. It recited that the time for payment had nearly expired, and the mortgagor could not pay off the debt, and that at his request the mortgagee had extended anew the period for payment to thirty years from the next year, upon terms which are stated. First the mortgagor pledged himself for payment at the prescribed time. Thirdly, it was agreed that if the mortgagor should die within the fixed period, then "after me the whole share of zamindari .... hypothecated as above shall be considered as a complete sale " to Tajammul. The fourth condition provided that when the creditor became entitled to and possessed of the property, he should be bound to make provision for the maintenance of certain male members of the family to which the mortgagor belonged. At the time when the mortgage of May 11, 1871, was entered into, and also at the time when the representative of the mortgagee took possession of the property, after the death of Raza Ali, the law governing the matter was Bengal Regulation XVII. of 1806; the Transfer of Property Act had not passed. Their Lordships think it clear, as did both the Courts in India, that the mortgage of 1871 was in substance, what it describes itself as being, a mortgage by way of conditional sale. For the appellant it was suggested that the document might be read as containing two separate and distinct transactions—first, a mortgage by mere hypothecation, which was not a conditional sale, and, secondly, a conditional sale which was not a mortgage. This, in their Lordships opinion, would be to apply an artificial and illegitimate method of construction to a document which can be naturally, and without difficulty, construed and applied as a whole. Such being the nature of the transaction, the rights of the parties under the Regulation admit of no doubt. This, in their Lordships opinion, would be to apply an artificial and illegitimate method of construction to a document which can be naturally, and without difficulty, construed and applied as a whole. Such being the nature of the transaction, the rights of the parties under the Regulation admit of no doubt. The mortgagee or his representative had the right to take legal proceedings with a view to foreclosure; and that foreclosure he could have obtained, if, after the proper steps had been taken, the representatives of the mortgagor had failed to redeem within the time limited for that purpose by the terms of the Regulation. But there was no right to take possession of the property without the proceedings prescribed by law. In entering as he did, therefore, the representative of the mortgagee was a mere trespasser, and the heirs of the mortgagor are entitled to sue him in ejectment as such. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellant will pay the costs.