- (1.) It appears to me that the decision of Mr. Justice Kamp ought to be affirmed. The Judges appear to agree that the contention before them had reference to the first point only, which Mr. Justice Kemp says was the main point on which the decision of ''the lower Court turned, vis., whether the subsistence of a mortgage at the time the endowment was made renders such an endowment wholly invalid under the Mahomedan law, or not." Mr. Justice Markby says: The respondents have thought fit to support only the first of the grounds on which the Subordinate Judge held the gift to be invalid. We are, therefore, relieved from the necessity of considering the other "grounds taken by the lower appellate Court," In deciding upon the point which the two Judges considered to be the only one before them for decision, there was a difference of opinion. The judgment of the senior Judge, that of Mr. Justice Kemp, therefore prevailed. An appeal lies to us because the Judges have differed, and I think that on this appeal it is not now open to the parties to go into the whole of the case and to raise before us points which were not raised before the Judges of the Division Bench. The question, then, which we have to determine is, whether the existence of a mortgage at the time at which the endowment was made rendered the endowment invalid under the Mahomedan law.--I am of opinion that it did not. The authority which is referred to by Mr. Justice Kemp in his judgment appears to support his view of the case; for it contemplates the case of an endowment after the land has been mortgaged and before the redemption of the mortgage. It is from the Fatwa Alumgiri, page 458, and runs thus : If a man mortgages land, and then makes an endowment of it previous to redemption of the mortgage, the endowment shall be binding, and this shall not cancel the mortgage;" that is, the endowment is binding, the mortgage remains, and consequently the endowment is an endowment subject to the rights of the mortgagee. The quotation proceeds: If the land after remaining some years in the hands of the mortgagee, the mortgage be redeemed, it "shall revert to the purpose to which it was appropriated; should be (that is, the endower) die and leave sufficient assets with which to redeem the "land, the redemption shall be effected, and the endowment shall be rendered effectual." As I understand this passage, it is intended to point out that if after a mortgage, the mortgagor endows the land and dies previously to redemption, leaving sufficient assets, the heirs are bound to apply those assets to the redemption of the mortgage, so that the endowment may take effect free from the mortgage, by the application of other assets of the endower. Then comes the passage should be not have sufficient assets, the land will be sold and the endowment shall be rendered void." The meaning of that, as I understand it, is that the land will be liable to be sold by the mortgagee and the endowment rendered void, that is, that the mortgagee will have power to enforce the mortgage by the sale of the land, if necessary, and the endowment will be rendered void as against the purchaser under the mortgagee. It does not, as I understand, mean that the endowment will be rendered void as against the heirs of the endower.
(2.) The authority quoted by Mr. Justice Markby, Mr. Perron's translation of Khalil-ibu-ishak's work, does not appear to be binding in this country. Mr. Justice Markby himself remarks that the author belongs to a sect of sannis "said not to be known in India." But even if the authority of that work is to be admitted as binding in India, it does not appear to support the position for which it was cited, viz., that if there be a mortgage prior to endowment and no assets are left by the endower to pay off that mortgage, the endowment is absolutely void as against every one. I am of opinion, therefore, that the endowment was valid as against the heirs of the endower, and consequently that by virtue of the endowment the matwali is entitled to the surplus proceeds of the sale, the mortgage having been satisfied.
(3.) For the above reasons I am of opinion that the decision of Mr. Justice Kemp, by which the decision of the Subordinate Judge was reversed, and the plaintiff's suit dismissed, ought to be affirmed with costs. Macpherson, J.;