Dawson Miller, C.J.@mdashThis is an appeal from a decision of a learned Judge of this Court, under Clause 10 of the Letters Patent.
2. The defendant No. 1, Ram Lagan Sah is the appellant. The plaintiffs and the remaining defendants are the heirs of one Teg Ali who held during his lifetime the four bighas of land which forms the subject of the present suit. Sheikh Teg Ali died in the year 1886 and it is not now disputed that before his death he made over this property to his widow in lieu of dower. The question which formed the main dispute in the suit was, whether this was an absolute gift out and out, thereby discharging the liability for dower entirely, or whether it was, what there is reason to believe is more u(sic) amongst Muhammadans, a mere putting the wife in possession for the purpose of satisfying herself for the arrears of her dower out of the proceeds of the property, in which case (sic) would be entitled to remain in possession so long, and so long only, as the arrears of dower ware not satisfied from the proceeds of the property.
3. The appellant, the defendant No. 1, in the year 1909, long after the death of Teg Ali purchased from his widow the property in dispute. Subsequently, in 1913, a suit was decided in which one of the defendants (defendant No. 2) and the defendant No. I, the present appellant, wore parties in which it was found that Musammat Maniran, the widow of Teg Ali, had an absolute interest in the property in suit. The other parties to the present suit are, of course, not bound by anything which was decided in that case. Either in, or sometime before, the year 1915 Musammat Maniran died and in that year the present suit was instituted by the plaintiffs claiming possession jointly with the other defendants than the appellant of the property in question. The defence put forward by the appellant was that Musammat Maniran was the absolute owner of the property and, therefore, entitled to convey it to him as she did in the year 1909. Secondly, he pleaded that the suit was barred by limitation because, more than 12 years before the institution of the suit, namely, in the year 1895, Musammat Maniran had got her name recorded as kashtkar of the property in question in the Record of Rights and that that was an open assertion of title and from that moment her possession became hostile to the heirs or any body else claiming under Teg Ali.
4. When the matter same before the learned Munsif there was evidence by both parties as to what happened on the occasion when the property was, to use a neutral word, made over to Musammat Maniran, the plaintiffs contending that, she was merely put in possession in order to satisfy the arrears due to her in respect of her dower, the defendants, on the other hand, endeavouring to make out that there had been an absolute gift. The learned Munsif considered, having regard to the fact that the Musammat''s name had been recorded as the kashtkar in the Record of Rights, that the strong probabilities were that the defendants'' case was the true one and he considered that the evidence adduced by the plaintiffs to prove that the disputed property was not given to Maniran absolutely was extremely inadequate and did not rebut the presumption arising from the entry in the Record of Rights, and found that the disputed property belonged absolutely to Maniran and that the plaintiffs had no title.
5. On appeal the learned Subordinate Judge unfortunately made use of some expressions which have given rise to considerable difficulty in this appeal. He said, after dealing with the case put forward by the parties: "it is an admitted fact that Teg Ali died more than 30 years ago and it is common ground that he gave the land to his wife in lieu of dower before his death." If the learned Judge meant by that that it was common ground that there was an absolute gift to the wife then, clearly, that is not justified by the facts of the case; but he cannot have meant more than that it was common ground that the land was transferred into the control and possession of the wife because the next sentence goes on as follows: "The only question is whether Teg Ali gave the land absolutely to his wife or only allowed her to remain in possession until the dower was paid up." That really was the question in dispute between the parties. Then he goes on and says: "There is no evidence worth the name on either side to prove their respective allegations." By that the learned Judge, I think, clearly was referring to the oral evidence which was given by the parties relating to the incidents which took place shortly before Teg Ali''s death. He then goes on: "The facts can be gleaned from the subsequent events only. Where a husband gives land to his wife during his lifetime in lieu of dower it is usually an absolute right that is given. The subsequent circumstances in the present case also point to the same conclusion." The learned Judge then dealt with the circumstances and came to the conclusion that the widow had an absolute right in the property even before her husband''s death and, therefore, that the suit against the defendant No. 1 must fail.
6. When the matter came before the learned Judge of this Court on appeal from that decision much was made of the fact that the learned Subordinate Judge had stated that, where a husband gives land to his wife during his lifetime in lieu of dower, it is usually an absolute right that is given and it was argued that that could only mean, in the mind of the learned Judge, that where a wife had been put in possession of property in lieu of dower there was a presumption that the transaction was an absolute gift and not merely a putting of the wife in possession for the purpose of satisfying her dower out of the proceeds. There was clearly no evidence on the record to support that view of the learned Judge which, if it means anything, means that he thought there was a presumption in favour of a gift, and it was argued that his decision on the question of fact must have been considerably influenced by assuming that such a presumption in such a case arose, and, therefore, his judgment could not stand. It was contended, in addition, that so far from there being any such presumption the presumption was in fact the other way and a passage in Mr. Tyabji''s well-known book on Muhammadan Law was referred to and is quoted in the judgment of the learned Judge of this Court from whose decision this appeal is brought. The passage appears at page 124 of the first edition of that book. It is says, "Where a Mussalman widow is in possession of property of her deceased husband in lieu of her dower:
(1) she is under the liability to account to the heirs of the deceased for the profits received by her; and
(2) she is herself entitled to charge interest on the dower due to her and to set it off against the said profits.
7. The learned Judge having quoted that passage came to the conclusion that, in all cases where a Muhammadan widow is found in possession of property in lieu of dower after her husband''s death, her position is that of a usufructuary mortgagee and that she is entitled to remain in possession merely as a mortgagee in order that her claim for dower might be satisfied out of the rents and profits and that she is in no case entitled to any larger interest. He came to the conclusion that, if her position was that of a mortgagee in possession, she was clearly not entitled to execute a conveyance in respect of the property in favour of the defendant No. 1, and that, having regard to what her actual position was, namely, that of a mortgagee in possession she could not acquire a title by adverse possession by having her came recorded as a kashtkar in the Record of Rights, and that no act on her part could bar the right of the heirs of Teg Ali to sue for possession of the property as against the widow or her transferees on the ground that her claim for dower had been satisfied and that, therefor, they were entitled to the equity of redemption in the property. With great respect to the learned Judge, I think that he was not justified in assuming from the passage which he quoted from Mr. Tyabji''s work on Muhammadan Law that in no case could an absolute gift of property be made to a Muhammadan wife in lieu of her dower. I can see no reason in law why the husband should not during his lifetime satisfy his liability to pay his wife''s dowen just as much out of real property as out of personal property, such as money. The dower can be paid off at any time during the joint lifetime of the husband and wife. "It can certainly be paid in money, although it may not be usual to do so, and I can see no reason why a conveyance of landed property should not be made to the wife as an out and out transfer of ownership for the purpose of satisfying the dower. In fast, in another passage in the work of the learned author to which reference has already been made, at page 318 of the First Edition, it is clearly stated that a gift by a husband to a wife during his lifetime by way of payment of her dower is a gift for which there is a good consideration and may be treated as a hiba-bil-iwaz. In these circumstances, it seems to me, although I agree with the learned Judge of this Court that the decision of the Subordinate Judge cannot stand because he assumed a presumption to exist which, in my opinion, has no legal foundation, nevertheless, the matter is not concluded and ought to go back again to the Subordinate Judge for further consideration for him to determine upon the evidence already given and upon the surrounding circumstances of the case whether in fact the transaction which took place shortly before the death of Teg Ali was an out and out gift to his wife or was merely a transaction whereby she was put in possession of the property in satisfy herself for her arrears of dower out of the rents and profits of that property.
8. It was contended on behalf of the appellant that it was not necessary to send the case back because, in any view of the facts, he and his predecessor in-title, the widow, had acquired by adverse possession an absolute title to the property the adverse possession being evidenced by the fact that the Record of Rights recorded the widow as the kashtkar of the property. That point, of course, only arises upon the hypothesis that the widow was in possession to satisfy herself out of the proceeds for arrears of dower, in other words, that she was in possession as a usufructuary mortgagee because that is practically the position with regard to the property in such a case. It seems to be well settled, as the learned Judge has pointed out, that in such a case the act of the mortgagee cannot alter the nature of the possession as to make the Statute of Limitation ran against those who are entitled to the equity of redemption. If that be so, and I see no reason to differ from the learned Judge on that part of the case, it follows that no question of limitation can arise in this case out of the facts which have been either proved or admitted. At the same time, these facts, namely, that the widow has been recorded in the Record of Rights as the kashtkar and the fact that nothing has been done by those who are now claiming to recover the property may have a material bearing in the mind of the learned Subordinate Judge when he comes to decide the real question in the case and he is entitled to take these facts into consideration in endeavouring to arrive at the truth. With these directions, I think that the case should be remanded to the Subordinate Judge to arrive at a conclusion of fact upon the main question in the case without giving any weight to the consideration which influenced him in the first instance where he found that in such a case as this it is usually an absolute right which, is given. There is no such presumption that it is usually an absolute right and therefore, that matter must be left out of consideration by the Subordinate Judge and must not be allowed to influence his judgment in any way. The costs of this appeal and of the appeal to the learned Judge of this Court will abide the ultimate result of the suit.
Ross, J.
9. I agree.
