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1919 Supreme(SC) 9
Privy Council
Ameer Ali, Sir John Edge , Lord Phillimore, Cave, Justice Viscounts Haldane , JJ.
Basar Khan and others -Appellant
Versus
Moulvi Syed Leakat Hossein and others -Resopndent
Decided On : 18-02-1919
E. Dalgado, Hunter, Watkins , B. Dube, De Gruyther
A mortgage of a lesser interest is valid to the extent of the mortgagor's proprietary interest. In unpartitioned property, a decree for possession of a specific share allows the decree-holder to follow that share into any allotment made during the final partition.
Headnote:(A) Mahomedan Law - Succession and Benami Transactions - Validity of grants by a benamidar - Where property is held by a person as a benamidar, any grants made by such person are limited to the share to which the benamidar is entitled by succession. However, if a mortgagor possesses a proprietary interest in the property by succession, a mortgage of a lesser interest (mokurari) is effectively valid to the extent of that proprietary interest.
(B) Execution of Decree - Possession of Share in Unpartitioned Property - A decree for possession of a specific share in property where partition is incomplete entitles the decree-holder to obtain that share from any allotment made to the defendants during the final partition proceedings.
(C) Mortgage and Sale - Title of Purchaser - Persons claiming title under a mortgagor are bound by a decree for sale and are not competent to dispute the title of a purchaser under such a decree.
Facts of the case:
Property was purchased in the name of a spouse, who later executed fixed-rent grants to other heirs. These interests were mortgaged to a third party to secure a loan. Following a suit to enforce the mortgage, a portion of the property was sold by the court and purchased by the mortgagee. The mortgagee subsequently instituted a suit for recovery of possession and mesne profits. The appellants argued that the original grants were invalid because the grantor was merely a benamidar and not the real owner. However, one of the mortgagors was an heir entitled to a proprietary share in the property by succession.
Findings of Court:
The court found that regardless of the validity of the fixed-rent grants, the mortgage effectively conveyed the proprietary interest of the mortgagor who was an heir. Consequently, those claiming under said mortgagor are bound by the decree for sale and cannot challenge the purchaser's title. Regarding other defendants, the decree for possession allows the plaintiff to follow the decreed share into any allotment made during the final partition.
Issues: Whether the purchaser of a share under a court decree for sale can recover possession from all defendants, and whether the validity of the initial grants affects the title if the mortgagor held a proprietary interest by succession.
Ratio Decidendi: A mortgage of a lesser interest is valid to the extent of the mortgagor's actual proprietary interest. Furthermore, a decree for possession of a specific share in unpartitioned property allows the decree-holder to follow that share into any allotment made to the defendants during the final partition.
Result: Appeal dismissed.
Legal Category Hierarchy
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property law
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mortgages
- validity of mortgage
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land tenure
- benamidari
- succession
- partition
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mortgages
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practice and procedure
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execution of decrees
- recovery of possession
- mesne profits
-
execution of decrees
Viscount Cave:-
This is an appeal by the defendants from the decree of the High Court of Judicature at Fort William in Bengal, reversing a decree of the District Judge at Bhagalpur, and restoring the decree of the Subordinate Judge of Monghyr, whereby he gave the Plaintiff possession of a share in certain property purchased by him under a decree for sale.
The short facts of the case are as follows:-
One Kasim Ali purchased a 15 annas 6 gundas share in property known as Mouza Pohi Khashalpur in Pergunnah Bisthazari, Touzi No. 3036; the purchase being made in the name of his wife, Musammat Aso. There is a question, which will be referred to later, whether the property was intended as a gift to Musammat Aso, or was held by her as benamidar (or trustee) for her husband.
Kasim Ali died in 1881 without issue and leaving as his heirs under the Mahomedan law, two widows, Musammat Aso and Musammat Dhupan, a brother, Karamat Khan, and two sisters, Musammats Nanho and Palto, these persons succeeding to his real estate in the following shares :-
Two widows, 1 anna, 18 gundas, 5 cowries each.
Brother, 5 annas, 14 gundas, 15 cowries.
Two sisters, 2 annas, 17 gundas, 7½ cowries each.
In the year 1882, Musammat Aso executed a mokarrari grant (or grant at a fixed rent) of a 4 annas share of the property in favour of Jaggu Khan, son of Musammat Nanho, and in the year 1883, she executed a similar grant of an 8 annas 6 gundas share in favour of Karamat Khan. There is a question whether Jaggu took as benamidar for Karamat, but in the circumstances of the present case this question is immaterial. On the 23rd September, 1884, these two persons, Jaggu and Karamat, mortgaged their mokarrari interests under the above grants in a 12 annas share of the property to the original Plaintiff, Syed Leakat Hossein, to secure a loan advanced to them. There were many subsequent dealings by the heirs with their interests, or alleged interests, in the property; but the plaintiff was not a party to these dealings, and it is unnecessary to state them in detail. Proceedings for batwara. (or partition) of the property among the heirs or their representatives have been commenced but are incomplete.
On the 18th April, 1895, the plaintiff instituted a suit (No. 422 of 1895) against the representatives of his mortgagors and other persons interested in the property to enforce his mortgage. This suit was contested, but on the 31st July, 1895, judgment was given in the plaintiff's favour, and it was held that he was mortgagee of a mokarrari interest in a 12 annas share, of the property; but as a 6 annas 5 gundas share had been alienated by the heirs to a stranger, Mangni Ram, while in the remaining 5 annas 15 gundas share there was no encumbrance, it was ordered that the latter share should be sold first, and if the proceeds should be insufficient for payment of the mortgage debt, the remaining 6 annas and 5 gundas should then be sold. On the 15th January 1896, the 5 annas 15 gundas mokarrari share was sold by the Court in pursuance of the decree, and was purchased by the plaintiff himself for a sum which more than covered the amount of his mortgage-debt. On the 15th April, 1896, the sale was confirmed by the Court, on the 13th August, 1896, a sale certificate was duly granted to the purchaser, and on the 11th September, 1896, a writ was issued for the delivery to the purchaser of the share sold to him under the decree.
Nothwithstanding the formal confirmation of his purchase, the plaintiff was unable to obtain possession of the share sold to him, and on the 10th May, 1904, he instituted the present suit (No. 185 of 1904) against the several persons interested in the property for recovery of possession of the share purchased by him (which he stated to be actually 5 annas, 14 gundas, 15 cowries), and for mesne profits. The Subordinate Judge, on the 7th August, 1905, delivered judgment in this suit in favour of the plaintiff, and decreed that the plaintiff should get possession from the
