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TMI Blog1927 (12) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... n favour of Mt. Mughlani Bibi and has since been in possession of the mortgagees. After the death of this lady possession of such of the immovable property as was in her actual possession at the time of her death was taken by her sister Mt. Rani and mutation of the same, as well as of the property in possession of the mortgagees, was made in the revenue records in her favour on 21st October 1913 by the Naib Tahsildar. The order of the Naib Tahsildar was however, on appeal by Mt. Umrao Bibi and Mt. Jindwaddi, widows of Muhammad Hamid Shah, reversed by the Collector of Multan on 11th November 1913, and it was ordered that the properties be entered in the names of the aforesaid widows of Muhammad Hamid Shah. It appears that there was an appeal from this order to the Financial Commissioner but without success. The result was that on 4th January 1917 the name of Mt. Rani was removed from the proprietary column in the revenue records in respect of the properties in dispute and the names of Mt. Umrao Bibi and Jindwaddi substituted in its place, and thereupon the two widows dispossessed Mt. Rani of the property which was in her possession and took possession thereof. 2. The suit out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Mt. Mughlani was the real sister of Mt. Rani and was a Shiah. 4. The next question that we have to consider is whether the property in dispute, which was admittedly given to Mt. Mughlani Bibi by her husband and was his ancestral property, descends to the heirs of Mt. Mughlani Bibi under the Shiah law, or whether it reverts to the heirs of Muhammad Hamid Shah under the customary law. The proposition is not contested before us that the ordinary custom in this province is that in the case of a gift of ancestral immovable property to a relation on the failure of the issue of the donee the property reverts to the donor and his heirs, the presumption in such cases being that the object of the gift is to make a settlement for the benefit of the donee and his issue, and therefore on the failure of the issue of the donee the object of the gift fails and the property reverts to the original donor. The contention of Mr. Badri Das, advocate, for the appellant, is that Muhammad Hamid Shah was governed by the customary law and not by the Mahomedan law and, therefore, the rule of reverter, already mentioned, applies to the ancestral property gifted by him to his wife Mt. Mughlani Bibi. I w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the Mahomadan law a gift by a husband of landed property in lieu of dower in favour of his wife amounts to a hiba-bil-iwaz which was held to be tantamount to a sale. 8. The Calcutta High Court in Abbas Ali Shikdar v. Karim Bakhsh 13 C.W.N. 160 held that a transfer of immovable property by a Mahomedan to his wife purporting to be made in consideration of a dower debt of ₹ 49 and on account of right of inheritance was a sale and that such a transaction was wrongly described as a hiba-bil-iwaz. It was also held in that case that a copy of the Koran was a valid consideration for a hiba-bil-iwaz. The matter was again elaborately discussed by a Division Bench of the same Court in Sarif-ud-din Muhammad v. Mohi-ud-din Mohamed AIR1927Cal808 , and it was held that the transaction which was called by the learned Judges as a false hiba-bil-iwaz was not a hiba at all but was nothing more or less than sale and was therefore governed not by the Mahomedan law of hiba but was amenable to the general law in India relating to contracts and transfer of property. The transfer in that case was in consideration of the promise by the donee to maintain the donor and to pay her S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the customary law of the Province. But this view is opposed to 5 P.R. 1888 and if the question is raised in any proceedings hereafter it will have to be considered in the light of the evidence produced therein. As it is not necessary for the purposes of this case to decide this question I refrain from doing so. 13. A half-hearted contention was raised by counsel for the appellants that Mt. Mughlani Bibi was governed by the Sunni Law in matters of succession and it was contended that under that law Mt. Rani would be entitled to only half of her estate. This matter must be deemed to have been disposed of by what I have stated above and it will suffice to add that there is absolutely no material on the record in support of the contention of the learned Counsel. 14. At this stage it will be convenient to dispose of another contention raised on behalf of the appellants which was that Mt. Mughlani Bibi being a prostitute before her marriage was governed by the custom relating to the prostitutes, and that as there is a custom among the prostitutes that if one of them contracts a marriage she forfeits all rights in her original family, in other words, that she becomes practically an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 120, Schedule 1, Lim. Act, governs the case so far as this prayer for declaration is concerned. Article 120 provides: that the time within which a suit for which no other period is provided in Schedule 1, Lim. Act, must be filed is six years and that this period must be counted from the date when the right to sue accrues. 17. The question therefore that we have to decide is when the plaintiff's right to sue accrued in this case. 18. The contention of the appellants is that the right to sue accrued at the latest on the 11th November 1913 when the Collector of Multan ordered that the mutation in the name of Mt. Rani be substituted by one in favour of the two widows, Mt. Umrao Bibi and Mt. Jindwaddi. The case of the plaintiffs, on the other hand, is that the time began to run from the 4th January 1917 when the order of the Collector was actually given effect to and the name of Mt. Rani was removed from the revenue records, and as a result she was dispossessed of the properties which had been formerly in her possession. It is asserted that it was on this occasion that her rights were really jeopardized by any action taken by, or at the instance of, the defendants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption was made by a proprietor more than six years before the institution of the suit and later a gift of his property was made by him to the adopted son. In a suit by the reversioners to set aside the gift it was held by this Court that the right to impeach the adoption having become barred by limitation the suit to set aside the gift was also barred by time as the gift did not involve any further denial of the rights of the reversioners than was involved in the adoption. This case in my opinion does not assist us in the present case. The adoption of a son amounts to a complete infringement of the rights of the reversioners and the gift to the adopted son is merely an acceleration of what is bound to happen in course of time. No fresh cause of action in favour of the reversioners therefore arises by virtue of the gift. In the present case it cannot be predicated that the defendants by merely asserting their title to the mortgaged property and denying the plaintiffs' title thereto in any way interfered with the rights of the latter and improved their own position with regard to such rights. In the second reported case the right of the plaintiff to claim a partition of the prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout the actual alteration of the entry cannot by itself extinguish the right unless the other party can prove adverse possession for the statutory period or some similar reason in support of his plea of such extinction. In the present case the mere assertion of a claim by the defendants followed by an order to substitute their names in place of the plaintiff's name cannot be held to extinguish the undoubted title of the latter to the mortgaged property and to pass it to the defendants. The true test seems to me to be whether, if Mt. Rani files a redemption suit against the mortgagees, the latter can defeat it on the plea that she has lost her right by the adverse claim of the defendants or in the alternative whether the defendants can succeed in a suit for redemption in the presence of Mt. Rani. In my opinion the answer must in both cases be in the negative. 23. On behalf of the respondents the cases of Muhammad Hanif v. Batan Chand A.I.R. 1922 Lah. 94 and Bela Singh v. Lakhmi Das A.I.R. 1925 Lah. 391 and Hakim Singh v. Waryama [1907] 140 P.R. 1907 were cited in which it was held that each invasion of the plaintiffs' right gave them a fresh cause action for a suit for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexion with this part of his case the learned Counsel for the appellants invited our attention to para. 4 of the plaint and contended that the plaintiff's did not in that paragraph base their cause of action on the reversal of the entries in favour of the defendant and consequent dispossession of the plaintiff, but that they definitely stated that the cause of action accrued on 13th June 1913. 27. Now, it is no doubt true that in the plaint the plaintiffs did not mention the date of the reversal of the entries in favour of the defendants nor of their dispossession by them, but the learned Senior Subordinate Judge has held that this took place on 4th January 1917. This finding is not attacked before us by the appellants. Moreover, the Civil Procedure Code nowhere provides that the plaintiff shall state in a separate paragraph of the plaint the date of the accrual of the cause of action. All that it requires is that the facts constituting the cause of action and when it arose should be stated in the plaint. Order 7, Rule 1, Civil P.C., is quite clear on this point and the forms of the plaints and the pleadings in Appendix A of Schedule 1, Civil Procedure Code, do not contain a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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