JUDGMENT Banerji and Aikman, JJ.
1. This was a suit for redemption of a mortgage of a nine biswa share made by one Husaini Begam in 1865 in favour of the predecessors in title of the defendants, Husaini Begam was a Muhammadan lady of the Shiah persuasion, who had gone through the ceremony of marriage according to Muhammadan rites with Mr. Linnasus Gardner, who was a Christian. The plaintiffs derive their title under a mortgage made in favour of their ancestor in 1868 by the said Linnaeus Gardner after the death of Hueaini Begam. The plaintiffs obtained a decree upon that mortgage, and in execution thereof caused the mortgaged property, which included the nine biswas now claimed, to be sold at auction and purchased it themselves. It is by virtue of this purchase that they have advanced the present claim. The defendants were not joined as parties to the suit brought upon the mortgage of 1868. They resisted the present claim, on the ground, among others, that the plaintiffs had no title to redeem, inasmuch as their mortgagor Linnaeus Gardner was not the legal heir and representative of Husaini Begam, his alleged marriage with that lady being void under the Muhammadan Law. This plea has been sustained by the Court below, and the claim has been dismissed.
2. The first contention raised in this appeal has reference to the correctness of the finding of the lower Court against the validity of the marriage of Linnaeus Gardner with Husaini Begam. The Subordinate Judge has based his decision upon passages to be found on pages 30 and 40 of Baillie's Digest of Muhammadan Law, Imameea Code. It is there laid down that if the wife of a Kitabee should embrace the faith of Islam, that circumstance would cancel the marriage. The author infers from this that a Muhammadan cannot be legally married to anyone who is not of that faith. At page 40 it is stated that a Muhammadan woman cannot enter into a moota contract with any other than one of her own religion. Since a moota or temporary marriage cannot be entered into by a Muhammadan woman with any one other than a Muhammadan, it follows as a natural inference that a permanent marriage valid according to Muhammadan Law cannot be contracted under similar circumstances. No authority to the contrary has been shown to us on this point. We think that the decision of the Court below must be upheld. As the alleged marriage of Linnaeus Gardner with Husaini Begam was thus an invalid marriage, the property left by that lady could not be inherited by him, according to Muhammadan Law.
3. It is next contended that under a custom prevailing in the family to which Husaini Begam belonged, such a marriage was regarded as valid. The evidence as to this is in our opinion insufficient to establish the custom set up, and does not justify our acting upon it.
4. The defendants mortgagees were not bound to surrender the mortgaged property to anyone who could not establish a title to the equity of redemption as against them. As the person from whom the plaintiffs derived title had, according to the above finding, no right to the property mortgaged to the defendants, the plaintiffs acquired no higher title than that possessed by their mortgagor, and they had no right to claim redemption.
5. It was urged on behalf of the appellants that the defendants mortgagees were by their conduct precluded from denying the title of the plaintiffs. This contention was based on the fact that in 1872 the defendants brought two suits upon two simple mortgages executed by Husaini Begam in which they described Linnaeus Gardner as the heir and legal representative of Husaini Begam, and it is stated that by reason of the defendants so describing Linnaeus Gardner the plaintiffs were induced to purchase his interest in the property now in question. Had it been shown that it was, in consequence of the description of Linnaeus Gardner above referred to that the plaintiffs purchased the property, the provisions of Section 115 of the. Indian Evidence Act might have applied, and the defendants might have been held estopped from denying the plaintiffs' title, but anything which took place in 1872 could not have induced the predecessors in title of the plaintiffs to take a mortgage of the property from Linnaeus Gardner in 1868, or the plaintiffs to purchase that property in execution of the decree obtained on that mortgage. In our opinion therefore the plea of estoppel cannot be sustained. We affirm the decree below and dismiss the appeal with noses.
6. There are objections under Section 561 of the Code of Civil Procedure on behalf of the respondents, as to the disallowance of costs to the respondents by the Court below. Those objections are in our opinion untenable.
7. It appears that in dakhil kharij proceedings the defendants stated that until the plaintiffs brought a suit for redemption they would not be entitled to obtain possession of the property. In those proceedings they did not deny the plaintiffs' title. Under these circumstances the Court below exercised a proper discretion in not allowing costs.
8. We dismiss the objections.