JUDGMENT Harries, J.
1. This is a defendants' appeal against a decree of the lower Appellate Court modifying to some extent a decree of the Court of first instance passed in favour of fcka plaintiff-respondents. The plaintiffs brought the suit out of which this appeal arises for a declaration that they were the owners of 4078 sihams out of 17,280 sihams in the property left by Kunwar Khan and for possession of such share in the property if it was found that they were out of possession. The plaintiffs were Mt. Sahibzadi, a daughter of the said Kunwar Khan, and the heirs of Mt. Zaiban, deceased, another daughter of Kunwar Khan. It was the case for the plaintiffs that on Kunwar Khan's death they were entitled to 4078 sihams out of 17,280 sihams in the property left by the deceased. It was alleged that they entered into possession of their shares and that the other heirs of Kunwar Khan had without their know-ledge and consent mortgaged or transferred certain portions of Kunwar Khan's property and this suit was brought to obtain a declaration that they were the owners of their shares and possession of the property if found to be out of possession. The defendants were the other heirs of Kunwar Khan and various mortgagees or transferees of the property in question. They denied that the plaintiffs were heirs of Kunwar Khan and alleged that in any event they had never been in possession of their shares within 12 years of this suit, consequently their claim was barred by limitation. It was further pleaded that these transfers were made with the full knowledge of the plaintiffs and consequently they were estopped from making any claim to the property. Lastly, the defendants relied upon Section 41, T.P. Act.
2. The learned Civil Judge who tried this suit found as a fact that the plaintiffs were heirs of Kunwar Khan and were entitled upon his death to the shares claimed. He further held that the plaintiffs were in possession of their shares and the suit was not barred by limitation or by Section 41, T.P. Act, and that the plaintiffs were not estopped from making this claim. He however found that the transfers in question had been made by the other heirs of Kunwar Khan in order to raise money to pay off a mortgage executed by Kunwar Khan in 1894 in favour of one Hora Lal. He found that a sum of Rs. 1318 had been obtained by means of these transfers and such sum had been paid to discharge the mortgage held by Hora Lal. The learned Civil Judge was of opinion that the plaintiffs could not in equity obtain a declaration of their right unless they contributed their proportion of the money advanced by the transferees to the other heirs for the purpose of paying off Kunwar Khan's debts. The proportionate share of the plaintiffs was found to be Rs. 311 and a decree was passed in favour of the plaintiffs for a declaration of their right of ownership conditional upon the payment by them to the defendant transferees of the sum of Rs. 311.
3. The contesting defendants filed an appeal in the Court of the learned District Judge and the plaintiffs filed a cross-objection relating to such part of the decree which made the declaration conditional upon payment of Rs. 311 to the defendant transferees. The learned District Judge uphold the findings of the learned Civil Judge and dismissed the appeal and further allowed the cross-objection holding that there was no equity in favour of the defendant transferees. In the view of the learned District Judge, the plaintiffs were entitled to the declaration claimed in the suit and were in no way liable to the transferees to pay their share of the moneys advanced by the latter to pay off Kunwar Khan's debts. The only point taken in this appeal relates to this sum of Rs. 311. It has been strenuously argued by counsel for the appellants that the plaintiffs are not entitled to a declaration that they are owners of their shares in the property except on payment of the transferees of their proportionate share of the debts of Kunwar Khan discharged by means of the moneys advanced by the defendants. Upon the findings it is dear that upon the death of Kunwar Khan all his heirs entered into possession of his property and later the defendant heirs dealt with the property as if it belonged entirely to them. The mortgages or transfers in question were made by such heirs purporting to be the full owners of the property though it is undoubtedly true that the transfers in question were made in order to raise money which the defendant heirs eventually paid to creditors of Kunwar Khan deceased.
4. It is now well settled that upon the death of a Mahomedan the property left by him vests immediately in the heirs according to their respective shares as defined by the Mahomedan law of inheritance. In Mahomedan law, there is no representation of the family by one or more members of it as under Hindu law and further Mahomedan law does not recognize a head of the family or karta whose acts under the Hindu law bind the other members of the family, The law upon this subject has been very elaborately discussed in the Full Bench case in Abdul Majeeth Khan v. Krishnamachariar (1918) 5 A.I.R. Mad. 1049 in which it was held that where one of the co-heirs of a deceased Mahomedan, in possession of the whole or part of the estate of the deceased, sell property in his possession forming part of the estate in order to discharge debts of the deceased, such sale is not binding on; the other co-heirs or creditors of the deceased. The difference between the principles of Mahomedan law and Hindu law relating to representation of the family and the rights of the various heirs was also discussed at length in Sukur Mahomed v. Asmot Mandal (1924) 11 A.I.R. Cal 384 in which it was laid down that in Mahomedan law there is no representation of the family, as under the Hindu law, by one or more members of it, so that the act of the karta or the head binds the other members of the family.
5. It is therefore dear that upon the death of a Mahomedan, heirs who are in possession of the property do not represent the other heirs who are out of possession, and further the acts of the heirs in possession of the property do not bind the heirs who are out of possession unless it can be shown that the heirs in possession have authority from the heirs out of possession, to act on their behalf. Where heirs in possession without the knowledge and consent of heirs out of possession transfer the property of the deceased such transfers are not binding upon the heirs out of possession and the latter are entitled to recover possession of their shares. The question in this case is somewhat different. Here the plaintiff heirs were in possession though the defendant heirs dealt with the property as if the plaintiffs had no interest whatsoever in it. In such circumstances are the plaintiffs entitled to a declaration of their rights without contributing their proportionate share of the debts discharge by the defendant heirs by means of mortgages of the property executed by the latter? The transfers are dearly not binding on them, but does equity insist that they should contribute their share of the deceased's debts before they can obtain relief? In the present case, the transferees did not purport to advance money to the whole of the heirs of Kunwar Kham deceased but only to the heirs who deal with them. It is clear that the latter represented themselves as the absolute owners of such property and were regarded as such by the different transferees who advanced the money, Further, the debt of the deceased were paid not by the transferees but by the heirs who executed the mortgages. There can be little doubt that the heirs who paid the debts could have claimed contribution from the plaintiffs if the latter's interest had not been dealt with as they had paid more than their due proportion of the deceased's debts. This however is not a claim for contribution but a claim by transferees to something in the nature of a lien on the property until the plaintiffs have paid their due proportion of the debts of the deceased discharged by means of such transfers. The different transferees were not the creditors of Kunwar Khan and are not even creditors of the estate. They are creditors of the different heirs who transferred the properties representing that they were solely entitled to the same.
6. Great reliance has been placed by counsel for the appellants upon a Full Bench case of this Court, viz. Jafri Begam v. Amir Muhammad Khan (1885) 7 All. 822. In that case it was laid down in the first place that upon the death of Mahomedan intestate, who leaves unpaid debts, whether large or small, the ownership of such estate devolves immediately on his heirs, and such devolution is not contingent upon, and suspended till, payment of such debts. In the second place it was held that where a representative of a deceased Mahomedan sues such heirs of the deceased as are in possession of his estate and obtains a decree and in execution of that decree sells property of the deceased and purchases the same, then the heirs who are out of possession and who are no parties to the proceedings cannot recover possession of their shares in the property so attached and sold unless they pay to the creditors their proportionate share of the deceased's debt. It is to be observed that this case does not purport to lay down any general principle. One of the questions referred to the Full Bench by Straight and Mahmood JJ. as originally framed was amended and this question refers to the rights of heirs out of possession to recover property attached and purchased by a creditor in execution of his decree. The question as originally framed was in wide terms, but as amended by the Full Bench it was a question confined to the particular facts of that case. It is therefore dear that the lull Bench decision upon this point is not of general application as it was only in. tended to cover the precise facts of the case before it. In my judgment, the Full Bench case in Jafri Begam v. Amir Muhammad Khan (1885) 7 All. 822 is clearly distinguishable from the present case. In the Full Bench case the person in possession of the property was the actual creditor of the deceased Mahomedan and the plaintiffs were never in possession of their shares and it is only equitable that, if a creditor holding property of the deceased in lieu of his debt is made to deliver possession of part of it to the heirs who were no parties to the transfer, such heirs should be made to contribute their proportionate share of the deceased's debts. If this were not so, the creditor would be deprived of what in both law and equity is due to him, viz. the full amount of the debt. However, in my view, different considerations arise where the transferee of the property of the deceased is not a creditor of the deceased or his estate, but on the contrary is only a creditor of certain of the heirs. In my view the Full Bench decision does not cover the present case.
7. The appellants also strongly relied upon a Bench deoision of this Court, viz. Abdul Aziz Khan v. Muhammad Husain (1927) 14 A.I.R. All. 415. In that case the heirs of a deceased Mahomedan who were in actual possession of the estate executed a mortgage to pay off and discharge an earlier mortgage executed by the deceased in favour of the mortgagee. It was held by Dalai and Pullan JJ. that the mortgagee was entitled to enforce the mortgage against the whole estate including the shares of the heirs who did not join in the execution of the mortgage and who were not in possession. The facts of this case are very different from the facts of the case before me. The present case is not a claim by a mortgagee to enforce his mortgage but is in the nature of an assertion by a mortgagee or transferee to retain property belonging to the plaintiffs until the latter pay to him their proportionate share of the consideration for the transfer which was utilized to pay off the deceased's debts. Again, the mortgagee seeking to enforce his mortgage in Abdul Aziz Khan v. Muhammad Husain (1927) 14 A.I.R. All. 415 was originally a creditor of the deceased. The mortgage sought to be en. forced in that case bad been executed in lieu of a previous mortgage executed by the deceased himself in favour of the mortgagee. The mortgagee therefore had been an actual creditor of the deceased though later he had accepted a mortgage by the heirs in possession in lieu of his earlier mortgage. It is to be observed that in the present case the appellants were at no time creditors of the deceased. They became creditors for the first time by reason of the mortgages or transfers made to them by the defendant heirs who were in possession. The case in Sukur Mahomed v. Asmot Mandal (1924) 11 A.I.R. Cal. 384 is clearly distinguishable on its facts from the present case and in my view the decision in no way governs the present ease. The learned Judges who decided Sukur Mahomed v. Asmot Mandal (1924) 11 A.I.R. Cal. 384 purported to follow the Full Bench case in Jafri Begam v. Amir Muhammad Khan (1885) 7 All. 822 but with great respect to the learned Judges there is little in common between the oases. Indeed, it might well be argued on some other occasion that the decision in Sukur Mahomed v. Asmot Mandal (1924) 11 A.I.R. Cal. 384 is in conflict with the undoubted rule that the heirs in actual possession of a deceased Mahomedan's property do not represent the whole body of heira and that their acts are not binding on the other heirs who have not assented to any particular transaction. In A I B 1927 All 4152 it was undoubtedly bald that a mortgage by some of the heirs of a deceased Mahomedan bound the shared of other heirs who were out of possession and who were not parties to the mortgage and this view may have to be reconsidered in a proper case.
8. A later case decided by a Bench of this Court, viz. Muhammad Khan v. Nt. Nasiban (1930) 17 A.I.R. All. 592, is strongly in favour of the plaintiff-respondents. In that case the son of a deceased Mahomedan in his own capacity executed a promissory note in payment of one of the debts of his father and later the creditor in execution of his decree attached a house forming part of the deceased's estate and put it up for sale. The daughters of the deceased Mahomedan who were no parties to this transaction brought a suit claiming a declaration that they were entitled to their share in the house sought to be attached and sold and that they were not under any liability to contribute towards the creditor's debt. Mukherji and Bennet JJ. held that the daughters were entitled to such declaration and that they were not liable to contribute towards the payment of the debt under the promissory note. In that case it was argued that the daughters could not in equity obtain a declaration of their right to their share in the house in question without contributing towards the creditor's debt because the debt under the promissory note had been incurred by the son in order to pay off the debts of the deceased. The learned Judges, however, point out that the debt of the deceased had ceased to exist and had been replaced by a personal debt of the son. The creditor had given up his right against the estate and had by the transaction of the promissory note acquired new rights against the son in his own capacity. The moment the promissory note transaction was entered into between the creditor and the son, the debt due from the estate was extinguished and a new debt came into existence, viz. a debt due from the son to the creditor. In those circumstances there was in the view of the learned Judges no equity which demanded that the daughters should contribute a proportionate share of the debt due not from the estate but rather from the son to the creditor before they could obtain the relief claimed. In Muhammad Khan v. Nt. Nasiban (1930) 17 A.I.R. All. 592 the Full Bench case in Jafri Begam v. Amir Muhammad Khan (1885) 7 All. 822 was considered and distinguished and there is a very clear distinction between them. In the Full Bench oase3 the creditor of the estate was in possession of property in lieu of his debt due from the estate, whereas in Muhammad Khan v. Nt. Nasiban (1930) 17 A.I.R. All. 592 the debt due to the estate had been extinguished and a new debt created between the transferees of the property and one of the heirs. It is equitable that the heirs should be made to contribute their proportionate share of the deceased's debts, but there is no equity which requires them to contribute their proportionate share of a debt incurred by one particular heir who deals with the whole of the property as his own.
9. The learned Judges who decided the case in Muhammad Khan v. Nt. Nasiban (1930) 17 A.I.R. All. 592 relied upon a decision of their Lordships of the Privy Council in Balwant Singh v. Maharaj Singh (1912) 34 All. 296. The facts of that case are very different from the facts of the case before me, but it does appear as if their Lordships of the Privy Council were of opinion that where one of two co-owners transfers property representing that he is the sole owner, then the co-owner who was not a party to the transaction can recover his share unconditionally even though such transfer was made to pay the debts of the estate. This is not clearly held but it appears to me that the principle can be implied from the decision in the case. In my judgment the present case falls within the principles laid down in Muhammad Khan v. Nt. Nasiban (1930) 17 A.I.R. All. 592 which in my view should be followed. There is no debt due from the estate in the present case as such has been discharged by the defendant heirs who transferred the property. Further, the defendant transferees are in no way creditors of the estate because they dealt with the defendant heirs as the sole owners of the property and advanced the money to them personally and not to the general body of heirs of the deceased. The debt due to the estate has been paid off and the only debt now in existence is one due from the defendant heirs to the defendant transferees. In my view the plaintiffs who were no parties to the transactions and who knew nothing of them cannot be made to contribute any portion of the debt due from the defendant hairs to the defendant transferees before obtaining a declaration of their right to their shares which were improperly dealt with by the defendant heirs. For the reasons which I have given, I am of opinion that the learned District Judge was right in giving the plaintiffs a declaration as to the ownership of their shares without imposing any condition and I would therefore dismiss this appeal with costs.
Niamatullah, J.
10. I agree with the conclusion arrived at by my learned brother. I think the appellants are not entitled to call upon the respondents to pay their share of the debts of the ancestor which have been paid out of the consideration of the transfer made by the male co-heirs of the respondents. The facts found by the lower Courts, which cannot be questioned in second appeal, may be briefly stated. The common ancestor, Kunwar Khan, was indebted to certain usufructuary mortgagees. After his death, his sons, who claimed to be entitled to the whole of Kunwar Khan's property, exe-fluted certain deeds of transfer in favour of the appellants and applied the whole or part of the consideration received from the appellants for satisfaction of the usufructuary mortgages, thus redeeming the ancestral property. They acted throughout on their own behalf and to the exclusion of their sisters, plaintiff 1 and the mother of the remaining plaintiffs. It has been found that a sum of Rs. 311 represents the share of the sisters in the debts paid off by the sons of Kunwar Khan. The question is whether the appellants are entitled to this sum being paid by the plaintiff, respondents as a condition of their right to the share claimed by them being declared.
11. I note that the suit brought by the plaintiff-respondents was one for a declaration of their right and, in the alternative, for possession, in case they were found not to be in actual or constructive possession of it. The trial Court granted to them the first relief, holding impliedly, at any rate, that the plaintiffs are in possession. The lower Appellate Court has not taken a different view on this aspect of the case. It has not been argued before us that the plaintiff-respondents were not entitled to the declaratory relief. I must therefore take it that the plaintiff-respondents were in possession of the share claimed by them but had a cause of action for a declaration of their right. I emphasize this point as, where a plaintiff sues for possession and is found by a Court to be entitled to it, it may nevertheless put the plaintiff on terms. A familiar instance of the exercise of such power is a suit in which the plaintiff sues for recovery of possession of property transferred by him under a void deed for consideration. It has been held repeatedly that it is open to the Court to grant the relief of possession on condition of the plaintiff restoring to the defendant any benefit that he derived under the void deed. Where however the plaintiff is in possession and does not stand in need of the assistance of the Court to recover possession of property wrongly in possession of the defendant, there is no case for the Court to put the plaintiff on terms. It is easily conceivable that the Court may provide by its decree that the plaintiff will not be entitled to take delivery of possession without fulfilling the conditions imposed by it; but where the Court passes a declaratory decree, the imposition of a condition precedent is meaningless. After a decree has been passed and the plaintiff's right is declared, the plaintiff's object is achieved. Where the Court, after declaring the right of the plaintiff to the property claimed, goes on to direct the plaintiff to pay a certain sum of money within a certain time and to provide that on failure of payment being made within the time the plaintiff's suit shall be dismissed, it passes in effect, a foreclosure decree, which it has no power to do in a declaratory suit.
12. On the merits of the appellants' claim the position of the parties may be stated thus: The plaintiff-respondents were certainly liable to pay the debts of their ancestor, Kunwar Khan, part of whose property was inherited by them. They were liable to redeem the usufructuary mortgages. The sons, acting for themselves and all the sole ostensible owners of Kunwar Khan's property, redeemed the usufructuary mortgages by borrowing money from the appellants. If the sons obtained possession from the usufructuary mortgagee the daughters or their sons could recover their share on payment to the sons of their share of the expenses properly incurred by them (the sons) in redeeming the usufructuary mortgages. The sons could have in that case retained the entire property, unless the plaintiffs paid their share of such expenses (Section 95, T.P. Act). If for some reason or other, the sons did not obtain possession or allowed the plaintiffs' mother or the plaintiffs to take possession without payment, they could sue the latter for contribution. There was no privity between the plaintiffs and the appellants, who accepted the sons alone as their debtors. The only right which the appellants can possibly claim is that they were subrogated to the position of the usufructuary mortgagees, to whom they paid out of the consideration of the deeds executed in their favour by the sons. In such a case, assuming they wore subrogated to the position of the usufructuary mortgagees, their rights are not better than those of the usufructuary mortgagees themselves, and in seeking to enforce those rights they have to base them on the usufructuary mortgages and not on the deeds in their favour executed by the sons. Such a case has not been pleaded by the appellants. There is nothing to substantiate it, and it is very doubtful, to say the least of it, that it can succeed as a defence in view of the finding that the plaintiffs are in possession.
13. Jafri Begam v. Amir Muhammad Khan (1885) 7 All. 822 was a suit for possession, and all that the Court held was that the plaintiffs, who are bound to pay their share of the ancestral debt, could be put on terms before they were allowed to recover possession of their share in the inheritance of their deceased ancestor.
14. Abdul Aziz Khan v. Muhammad Husain (1927) 14 A.I.R. All. 415 goes too far in making heirs, who are not parties to the mortgage deed executed to pay off the ancestral debt, liable thereunder. It is, in my opinion, contrary to the Privy Council ruling in Balwant Singh v. Maharaj Singh (1912) 34 All. 296 and a Division Bench ruling of this Court, Muhammad Khan v. Mt. Nasiban (1930) 17 A.I.R. All. 592 and is clearly not good law. I feel at liberty to refuse to follow it, assuming it is not distinguishable. It is impossible to hold that persons who do not join in the execution of a mortgage deed are bound by it only because the executant utilized the consideration received thereunder for payment of a debt to which those others were also bound to pay. The correct view of the position of the parties, in those circumstances, was that, on one hand, the mortgagee is entitled to enforce his mortgage deed against the persons who executed it the latter were, in their turn, entitled to obtain contribution from their coheirs.
15. For the reasons explained above I agree to the order which my learned brother proposes to pass.