66

obvious that if the mortgagor, by an act of trespass, dispossessed the mortgagee, the mortgage would still continue in force, because the contract is not thereby annulled. It is declared in the authority above-quoted, -“If the pawner sell the pledge without the consent of the pawnee, and again, before the pawnee has signified his assent, sell it to another person, in that case whichever of these two contracts the pawnee may confirm is valid; for as the first sale is dependant on the consent of the pawnee, it cannot prevent the second from being so likewise. If therefore, the pawnee chuse, he may ratify the second sale. If on the contrary, the pawner, after having first sold the pawn as above, should let, give or pawn it to another person, and the pawnee give his consent to such lease, gift or pawn, the sale which preceded either of these deeds is valid. The difference between these two cases is, that in the first (where one sale is made after another) the pawnee may derive an advantage from confirming either of them (as his right lies in the price) and whichever therefore he approves is valid. In the case of a lease or gift, on the contrary, no advantage can accrue to the pawnee, as his right lies in the return for the article, not in the usufruct. If therefore, the pawnee approve of either of these, he by consequence impliedly assents to the abolition of his own right; and the previous sale (which was suspended on his consent only because of his right) becomes valid of course." Agreeably to the above doctrine, it is evident that if a mortgagee* give his consent to the gift of the mortgage to another person, such assent implies the abolition of his own right; consequently if the mortgagee in the present case gave his consent to the gift of the property, the gift is valid and

• The term rahn signifies both pawa and mortgage, and the rules by which the one description of pledge is governed are equally applicable to the other,

A woman has

a lien for her

band's estate.

the mortgage is rescinded. So also in the Hidaya,— "If also the pawner discharge the debt in part, still it remains with the pawnee to keep possession until he shall have received payment of the balance. In the same manner, if the pawner and pawnee should, by mutual consent, dissolve the contract of pawn, the pawnee may, nevertheless, keep possession of the pledge until such time as he receive payment of his debt, or exempt the pawner therefrom."*

CASE X.

Q. 1. A man dies, being indebted to his wife for her dower. Has she a lien on the personal property left by her husband in satisfaction of such dower, in preference to the other heirs?..

R. 1. If the other heirs pay the widow the amount of dower on her her dower, she has no claim on the property left by her deceased hus-husband, except for her legal share of the inheritance; and if they do not pay her the amount of her dower, she has, in the first instance, a prior claim on account of her dower on the property left by her husband, whether real or personal. The residue, after her claim of dower is satisfied, will be divided between her and the other heirs, according to their respective shares of inheritance.

A contract to

pay the debts

Q. 2. A certain deed, purporting to be a Mocurreree sunnud or lease in perpetuity, having been shown to the law officer, he was desired to declare, whether or not it was valid; and if valid, whether the grantee could, by virtue of it, possess himself of the landed estate of the grantor?

R. 2. This Mocurreree sunnud is invalid, because it of a lessor in may be inferred from the tenor of it, that it signified a

*For the doctrine in cases of Pawns and Mortgages, see Prin: Debts, &c. 14 to 20.

of a lease is

lease, in return for which lease it is stipulated, that the consideration grantee or lessee shall liquidate the demands of the invalid. creditor of the grantor. In Law such a contract vitiates the lease; and even admitting the condition to be valid, the grant would expire with the grantor.

Q. 3. Admitting, for the sake of argument, that the lease would not be determined by the death of one of the contracting parties, should the amount of the widow's dower be paid out of the property, which is now in the possession of the lessee, or, according to the terms of the contract, may the lessee pay the debts in any mode that he can, retaining possession of the lease; or should the land be transferred to the possession of the widow?

dies in debt,

in satisfac

R. 3 Admitting that the lease would not be deter- When a lessor mined, still if the amount of the dower cannot be paid his estate without the sale of the property left, the lease will be must be sold determined by a sale to liquidate the dower, and the tion. proceeds will be employed for the payment of the dower and the other debts; and if the proceeds should be found insufficient to discharge the whole of the claims, the widow and the other creditors will share proportionately; for instance, if the amount of the dower is three And a pro-ratâ hundred rupees, and the claims of other creditors amount distribution of the proceeds to two hundred and the proceeds furnish only five rupees, made. the widow will obtain three rupees in liquidation of her claim of dower, and the other creditors will obtain two. This goes on the supposition that the estate is not mortgaged: if mortgaged, the debt due thereon must be first discharged, and the surplus shared proportionately amongst the creditors and the widow.*

The above opinions were delivered by the Mooftee of the Patna Provincial Court, and the same questions having been propounded to the Kazee of the Court, his replies were similar in purport, but rather more, full, to the following effect:

CHAPTER XI.

PRECEDENTS OF CLAIMS AND JUDICIAL MATTERS.

CASE I

Q. A person being dispossessed of certain slaves, did not lay claim to them for a period of upwards of twelve years: does his dispossession in this instance operate to extinguish his right to them, as is the case with respect to other property under similar circumstances?

First, It is not necessary that the amount of dower should be specified in writing: deeds of dower and other legal documents are merely used to preserve the memory of a transaction. Between two contracting parties a verbal stipulation is sufficient, and should the matter be contested, the dower will be established at such an amount as may be proved to have been stipulated by the husband, by two competent witnesses. The claim will in this manner be legally established.

Secondly,-As this is a claim of dower, which must be satisfied before claims of inheritance, the dissent of the heirs cannot avail. The whole property left by the husband, whether real or personal, must first be applied to the liquidation of the claim of dower.

Thirdly,-This grant in perpetuity virtually signifies a contract of lease, and a lease without a term, whether long or short, is not good or valid; and, as in a lease in perpetuity, there is no term specified, the legal condition is wanting, and, according to the Moohummudan Law, such lease cannot be valid and binding. Although this deed sets out with declaring, that the lease shall endure for a century, commencing from the year 1207, which may be construed into a long term, yet it goes on to declare, that it shall continue hereditarily to the latest posterity, which manifests a clear intention, that it is to remain in perpetuity. This condition is repugnant and fatal to the declaration of a term, and the term no longer exists. And even admitting that the term specified, namely, one hundred years, should be held to continue in force, still it can only endure so long as the contracting parties live. As this is a contract of lease, it expires and is determined by the death of one of the contracting parties, because on this point the Law is explicit, that "a lease is determined by the death of one of the contracting parties," that is to say, the lessor or lessee. Under these circumstances the property, which was leased must be held to form a constituent part of the estate of the deceased; and out of it the dower must be paid.

Fourthly,-As by Law the contract of lease expires and is determined by the death of the lessor, it is not incumbent on or competent to the lessee, to liquidate the claim of dower. The lands which were let in lease must revert to the widow of the lessor, who is both his heir and his creditor.

of time to bar

R. When the right of any person shall have been No limitation established to any thing, whether consisting of slaves a claim. or other property, real or personal, his right thereto cannot be extinguished by dispossession for any length of time, whether exceeding or falling short of twelve years.*

CASE II.

Q. The law officers were desired to inspect a certain power of attorney and to state, whether, under it, the agent had or had not a right to sell, according to the Moohummudan Law; and if he had, what illegality had occurred in his drawing up the deeds of sale, and supposing those deeds to be valid according to Law, in virtue of the authority of the agent, whether the deeds of sale and receipt had been drawn out by such agent in the form prescribed by Law; what objection was apparent, and whether the sale of the estate conveyed in those deeds was good in Law or not?

a deed does

founded

R. The power of attorney is not drawn out according Informality in to the language and form required by legal technicali- not vitiate ties; but from its tenor it may be collected, that Chut- a contract tersal Narain made over to his son Byjnath Narain the thereon. conduct of all his affairs, and conferred on him a general power of attorney to sell, mortgage, and manage his estate. Therefore, if it be proved by competent witnesses, that Chuttersal Narain really authorized his son

This question seems to have been propounde: with a view to the regulations of Government, rather than to the principles of Moohummudan Law. According to the provisions of the regulations, no claim for personal property can be entertained if the cause of action have arisen twelve years antecedent to the institution of the suit, nor a claim to land or other immoveable property, unless injustice or dishonesty be alleged; but even with regard to this species of property the term of sixty years is an absolute limitation in bar. According to the Moohummudan Law, however, there is no limitation in point of time to defeat any claim of right, which must be determined solely by its merits. See Prin: Claims &c. 1 and Note.