[This Original Side Appeal first came on for hearing on the 24th and 27th days of March 1916, before their Lordships the Chief Justice and Mr. Justice Phillips.]

The Chief Justice. - This is an appeal from a judgment of Bakewell, J., in a suit brought by the Receiver appointed in a creditors suit for the administration of the estate of a deceased Muhammadan for a declaration that a sale-deed executed by the widow of the deceased was void and not binding on the creditors and was in any event inoperative except as to the extent of the widows one-fourth share and for possession. The learned Judge held that the sale was valid only to the extent of the widows one-fourth share, but gave the 1st defendant her alienee a charge on the whole property for Rs. 3,452 paid by him in satisfaction of a mortgage decree against the deceased with further interest on the mortgage money till the date of payment. The learned Judge after discussing the authorities came to the conclusion as against the creditors of the deceased on whose behalf the suit was brought, the widow, even though she was in possession of all the properties of the deceased, had no authority to take upon herself the administration of the estate even to the extent of selling the suit properties to raise money to satisfy the mortgage decree in respect of these very properties which had been passed against the deceased. For the appellant it is contended that this decision is opposed to Pathummabi v. Vittil Ummachabi (I.L.R., 26 Mad., 734).

The whole subject is one of considerable difficulty. If a Muhammadan appoints an executor, the executor has no doubt power to sell for the discharge of the debts of the deceased, and in the absence of the executor this could have been done by the Kazi. The High Courts, as is well-known, have differed as to whether a sale under a decree obtained by a creditor against one of the coheirs in possession of property of the deceased is binding on the other co-heirs who were not parties to the suit, and the question has been answered in the affirmative both in Calcutta and Bombay. In Davalava v. Bhimaji Dhondo (I.L.R., 1 All), this was limited to the case where as here one of the co-heirs was in sole de facto possession of the whole estate and this limitation was adopted in I.L.R., 26 Mad., 734, where it was further held that a co-heir in possession of the whole estate could equally sell property belonging to the estate in satisfaction of debts without any suit having been instituted and decree passed against such co-heir. At the same time the Court set aside as regards the other co-heirs the sale of item 11 to the 13th defendant in consideration of a debt of Rs. 25 and a further payment of Rs. 50, apparently on the ground that it was unnecessary and improper in the circumstances though this is not expressly stated. This case was cited with approval on another point by Abdur Rahim, J, in Ayderman Kutti v. Syed Ali (I.L.R., 37 Mad., 514), with reference to the validity of sales by the de facto guardian of a minor. The learned Judge in the couse of his judgment referred to the general rule relating to sales by a person professing to deal with anothers property but without legal authority so to do, and observed that such sales are generally treated as manquf or dependent, and upheld if made of necessity or if they are manifestly beneficial, and similar considerations may possibly apply in a case like the present. Bakewell, J., was apparently of opinion that the decision in I. L. R., 26 Mad., 734 was inapplicable where as in the present case the alienation is being questioned by the other creditors. If the balance of convenience may be regarded, I am not sure that it is for the benefit of creditors any more than of co-heirs to lay down a rigid rule that alienations can be made only by the whole body of co-heirs in a suit to which they are parties. The question is one of importance and difficulty, and as the authorities are by no means consistent, we have decided to refer the following question to a Full Bench:

When one of the co-heirs of a deceased Muhammadan in possession of the whole estate of the deceased or of any part of it sells property in his possession forming part of the estate for the discharge of the debts of the deceased, is such sale binding on the other co-heirs or creditors of the deceased, and, if so, to what extent

Phillips. J. In this case the plaint property was alienated by a Muhammadan widow, who was in sole possession of the whole property belonging to her late husband in order to discharge debts due by him. No doubt the sale was voluntary, but it purports to have been made because a creditor was threatening to execute a decree against the property, and the consideration for the sale was not paid until after execution had been taken out against the suit property, the widow and the other heirs being parties to the execution petition. Two of the other heirs admit that they took no interest in the property, because deceaseds debts exceeded his assets but the Receiver of the deceaseds estate now questions the validity of the alienation. If the sale to the appellant had been effected by Court it would apparently have been upheld both by the Calcutta and Bombay High Courts in accordance with the decisions in Khurshetbibi v. Keso Vinayek (I.L.R., 12 Bom., 101) [LQ/BomHC/1887/39] , Davalava v. Bhimaji Dhondo (I.L.R., 20 Bom., 338), Muttyjan v. Ahmed Ally (I.L.R., 8 Cal, 370), and Amir Dulhin v. Baij Nath Singh (I.L.R., 21 Cal, 311) [LQ/CalHC/1894/1] . In Allahabad, however, it has been held by the Full Bench that when property of a Muhammadan intestate is sold in execution of a decree passed against the heirs in possession of the estate, the sale is not binding on an heir who was not a party, but in order to recover possession of his share that heir must pay the purchaser a proportionate amount of the decree debt, Jafri Begam v. Amir Muhammad Khan (I.L.R., 7 All,. 822). In this Court in Pathummabi v. Vittil Ummachabi (I.L.R., 26 Mad., 734), it was held that it was immaterial whether the sale was voluntary or effected by Court in execution of a decree, provided that the seller was in possession of all the effects of the deceased and the Bombay cases were followed, but in applying the law as regards sales in which only part of the consideration money was applied in discharge of a debt due by the deceased the principle laid down in I.L.R., 7 All., 822 was followed, although that case is not referred to in the judgment. In I.L.R., 7 All., 822 Mahmood, J., discusses fully the Muhammadan Law on the subject and criticises the rulings of the Calcutta High Court referred to above. The decisions in Bombay and Calcutta are not based on the same grounds and the view taken in I.L.R., 26 Mad., 734 appears to be somewhat different to the view of other Courts. In these circumstances I agree in making the proposed reference to a Full Bench.

[This Appeal came on for hearing on the 30th and 31st days of October 1916, as per above order before the Full Bench as constituted above.]

Abdur Rahim, J

[1] The question referred to us is in these words: When one of the co-heirs of a deceased Muhammadan, in possession of the whole estate of the deceased or of any part of it, sells property in his possession forming part of the estate for discharging the debts of the deceased, is such sale binding on the other co-heirs or creditors of the deceased and, if so, to what extent The answer must be in the negative.

[2] On the death of a Muhammadan, the inheritance vests in his heirs according to their respective shares, although in the administration of the estate the funeral expenses, debts and legacies must be paid first and it is only the residue that is available for distribution among the heirs. It is not correct to say that the devolution of the estate on the heirs does not take place or is postponed until the funeral expenses and the debts and legacies have been paid. This is evident from the following facts : if an heir designated by the law dies after the death of the propositus his share descends on his own heirs and does not lapse to the i general estate. Bach heir is entitled to the income that has accrued since the testator s death in proportion to his share and s he can transfer his share by sale or gift subject, it may be, as to the latter form of disposition to such restrictions as are imposed by the doctrine of Musha.

[3] The theory of Muhammedan jurisprudence, on Which the right of succession and inheritance is based, is that even after death, the deceased s rights in properties still inhere in him, to the extent necessary for meeting the funeral charges and the legal obligations and liabilities iucurred in his lifetime and also for carrying out his wishes, as expressed in his last will and testament, within the limits laid down by the law. A deceased person is classed among persons of defective capacity and his rights and obligations are considered not merely with reference to matters pertaining to this world but also with respect to his spiritual concerns. The payment of his funeral expenses and debts is described as his last need. And as for testamentary bequests, it is stated that, according to strict juristic theory, they should not be lawfull at all but have been sanctioned in order that the testator might make up for his shortcomings in life by making gifts to deserving objects.

[4] It is argued that, as soon as a man is seized with death illness, (i.e., illness which results in his death), the right of succession of his relatives comes into existence, although it remains in an inchoate state that is, in the nature of a spes successiones until death actually takes place, and the heirs entitled to succession are not ascertained until then. It is upon this theory that the right to bequeath by will is treated as a concession to the deceased and is limited to one-third of his possessions. The result is, on the death of a person his estate is to be divided in this way, one portion for the deceased himself equivalent to so much of the estate as is necessary and sufficient for meeting his funeral expenses, debts, obligations and bequests the last not exceeding one-third of the estate and what remains is to be distributed among the heirs according to their respective shares. Funeral expenses, debts and legacies are given preference because they are allowed by virtue of the rights of the deceased.

[5] As far back as 1878, the Judicial Committee in Bazayet Hossein v. Dooli Chund (1878) I.L.R. 4 C. 402, held that an heir-at-law was entitled to alienate his share in spite of the fact that there were debts of the deceased still outstanding and it would not have been possible to hold this if the inheritance did not devolve on the heir on the death of the propositus. Mr. Justice Mabmood in Jafri Begam v. Amir Muhammad Khan (1885) I.L.R. 7 All. 822, has fully discussed the question and I do not think it would be of any use to add anything more to his reasoning. As regards the nature of the tenure of the co-heirs shares, the heirs of a deceased Muhammadan take their shares in severalty, their rights being analogous, to those of tenants-in-common, and not of members of a Joint Hindu Family. (See Abdul Khader v. Chidambaram Chettiyar (1908) I.L.R. 32 M. 276.

[6] There cannot be the slightest doubt therefore upon the principles of Muhammadan law and also upon the authorities that one heir has no right to deal with the shares of the other heirs. In the Muhammadan system such a tenure of property is called Shirhat which literally means "participation" and, in law, joint rights , and which is translated as partnership by Mr. Hamilton in his translation of the Hedaya.

[7] The definition of Shirhat as given by him is, "Shirkat, in its primitive sense, signifies the conjunction 1 of two or more estates, in such a manner, that one of them is not distinguishable from the other. The term Shirkat, however, is extended to contracts, although there be no actual conjunction of estates, because a contract is the cause of such conjunction. In the language of the law it signifies the union of two or more persons in one concern." (See Grady, Book XIV, p. 217.) This definition, however, must be read with what follows and, so reading, it will be clear that Shirkat is a generic term of law and applies both to joint ownership and to contracts of partnership. The former is called Shirkat-ul-Milk which is translated by Mr. Hamilton as " partnership by the right of property"; and the latter, which is partnership proper in the sense of the English law, is called Shirkat-ul-Akd. In Shirkat-ul-Milk, the ownership acquired is either "optional" or "compulsive," to use the terms of Mr. Hamilton, and in the latter category are included the rights of co-heirs. With respect to such rights it is laid down," In this species of partnership, (i.e., the rights of two persona inheriting one property) therefore, it is not lawful for one partner to perform any act with respect to the other s share, without his permission each being as a stranger with respect to the other s share. It is however, lawful for either partner (i.e., one of the heirs) to sell his own share to the other partner (i.e., the co-heir) in all the cases here stated:-and he may also sell his share to others, without his partners consent, excepting in certain cases with which we I. are not concerned.

[8] This is absolutely clear authority in proof of the position that one heir has no authority, in law, to deal with the shares of his co-heirs. In face of it it is not necessary to refer to other original text books. It is stated, however, in Pathummaubi v. Vittil Ummachabi (1902) I.L.R. 26 M. 734 that, "if the creditor of the deceased can seek his relief against one of several co-heirs in a case where all the effects of the deceased are in the hands of that heir, it can make no difference; whether the heir meets the demand by a bona fide voluntary sale or the property is brought to sale in execution of a decree obtained against him." To the same effect is a decision of the Allahabad High Court in Hasan Ali v. Mehdi Hussain (1877) I.L.R. 1A. p. 53

3. The statement in Pathummabi v. Vittil Ummachabi (1902) I.L.R. 26 M. 734 was purely by way of obiter dictum and, with all respect to the learned Judges they failed to bear in mind that, the provision of the Muhammadan law, that a decree against one heir in possession of ail the effects of the deceased, is binding on all if obtained after contest, is part of the processual law of that system and is not based on the ground that a single heir, if he happens to be in possession of the estate of the deceased, represents the rest of the heirs for the purposes of administration generally. The ground on which a decree against one of the heirs, in such circumstances, is treated as res judicata is, as stated in the books, that the decree in such cases is, in law, against the deceased and not against the particular heir who is made defendant in the suit.

[9] In the Hedaya the matter is discussed in the chapter relating to the duties of the Kazzee and in some other text books in the chapter dealing with claims, in which chapters the rules of procedure of the Muhammadan system are mostly laid down. In dealing with the question whether one of the heirs obtains a decree for the recovery of the property of the deceased in possession of a third person more than his share in that property should be made over to him in execution of the decree, it is stated that all the three Doctors, that is, Abu Haneefa and his two disciples, agree that the decree enures not only in favour of the heir who actually is the plaintiff but also of the heir who did not join on account of absence from the country though there is a difference of opinion as to whether the decree bolder shall be given possession of more than his share. This is how the principle is enunciated in the Hedaya (Grady, p. 349 "for anyone of the heirs of a deceased person stands as litigant on the part of all the others with respect to anything due to, or by the deceased, whether it be debt, or substance; since the decree of the Kazee, in such case, is in reality either in favour of or against a deceased; and any one of the heirs may stand as his representative with respect to such decree." The qualifying words "with respect to such decree" which I have italicised are a material part of the proposition and, negative, by implication, the suggestion that, apart from a decree of Court, a single heir represents the entire estate of the deceased and can deal with the shares of the co-heirs without their consent. In other text books of Muhammadan law, such as Bahrurraiq and Alimajullab, the same proposition is laid down under the heading of Claims . Nowhere have I found any general statement that, apart from representation in suits, one heir is entitled by his acts to bind the shares of the others. The dictum to the contrary, therefore, in Pathummabi v. Vittil Ummachabi (1902) I.L.R. 26 M. 734, and the decision in Hasan Ali v. Mehdi Husain (1877) I.L.R. 1 A. p. 533, seem to be without, sufficient authority and inconsistent with clear statements of the law in books of authority.

[10] There are a number of rulings, especially of the Calcutta High Court in which the rule of Muhammedan law as to one heir representing the other co-heirs in suits, has been adopted. (See Assamathem Nessa Bibee v. Roy Lutchmeeput Singh(1878) I.L.R. 4 C. 142 followed by Muttyjan v. Ahmed Ally (1882) I.L.R. 8 C. 370, Bussenteram Marwary v. Kamaluddin Ahmed (1885) I.L.R. 11 C. 421 and Amir Dulhin v. Baij Nath Singh (1894) I.L.R. 21 C. 31

1. In the Allahabad High Court, on the other hand, the decision of the Full Bench in Jafri Begum v. Amir Muhammad Khan (1885) I.L.R. 7 A. 822, where it was held, dissenting from Assamathem Nessa Bibee v. Roy Lutchmeeput Singh (1878) I.L.R. 4 C. 142, that this question is not governed by the Muhammadan law, but by the Civil Procedure Code, has been followed in the later rulings of that Court (See Dalla Mal v. Hari Das (1901) I.L.R. 23 A. 26

3. In Bombay (Khurshet Bibi v. Kaso Vinayek (1887) I.L.R. 12 B. 101, the view taken by the Calcutta High Court on this point has been adopted by the learned Judges, though proceeding to a considerable extent on the analogy of the Hindu Law.

[11] It is not necessary for us to pronounce any definite opinion upon this class of cases which deal with the question how far a decree against one of the heirs of a deceased Muhammadan binds the others and under what circumstances.

[12] So far as voluntary alienations are concerned, which alone form the subject-matter of reference, the Muhammadan law is clear that one of the heirs of a deceased person is not competent to bind the other heirs by his acts.

Spencer, J.

[13] I agree with the judgment of Mr. Justice Abdur Rahim just now pronounced.

Srinivasa Aiyangar, J.

[14] I agree. In the absence of any right in one of the heirs to represent the co-heirs, one of several co-heirs can only deal with his or her interest in the ancestor s property inherited by them. My learned brother has shown that there is nothing in the Muhammadan law giving such a right to one of the co-heirs who may happen to be in actual possession of the whole of the ancestor s estate; such possession, it must be remembered, is presumably on behalf of all the co-heirs. He is not constituted the representative of the deceased and cannot administer his property even for the limited purpose of paying off his debts. In Khiarajmal v. Daim (1904) L.R. 32 I.A. 23 : I.L.R. 32 C. 29 6, Lord Davey referring to a sale by one of the heirs of a Muhammadan for discharging the debt due by the ancestor said "prima facie his conveyance would pass only his share" See. p. 3

7. Representation in a suit may conceivably stand on a different footing for as stated by their Lordships in the same judgment at page 35 " The Indian Courts have exercised a wide discretion in allowing the estate of a deceased debtor to be represented by one member of the family, and in refusing to disturb judicial sales on the mere ground that some members of the family, who were minors, were not made parties to the proceedings, if it appears that there was a debt justly due from the deceased, and no prejudice is shown to the absent minors. But these are usually cases where the person named as defendant is, de facto, manager of a Hindu family property, or has the assets out of which the decree is to be satisfied under his control;" and they applied this principle in that very case to the estate of Nabibaksh. However, that is not the question here.