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Chuhi Bibi Vs. Shams-un-nissa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All19
AppellantChuhi Bibi
RespondentShams-un-nissa Bibi and ors.
Excerpt:
muhammadan law - dower--mortgage by widow in possession in lieu of dower. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board...........any portion of the property. she cannot give a good title to any portion of the property, inasmuch as her position is only that of a widow in possession in lieu of her dower. it has never been held, so far as we are aware, that a muhammadan widow, under such circumstances, can grant a valid mortgage of any portion of the property in her possession in lieu of dower, and the principle of the decisions in which it has been held that she may not sell, appears to us to apply equally to the case of her attempting to mortgage,4. we allow this appeal to the extent of giving the plaintiff a decree declaring that the mortgage is inoperative and passes no title to the male defendants.5. in other respects we dismiss the appeal. each party will bear its own costs.
Judgment:

John Edge, Kt., C.J. and Banerji, J.

1. This was a suit for possession of immovable property and for the cancellation of a mortgage. The suit was brought against a Muhammadan widow and two men who held as, mortgagees under her. She 'was in possession of the property in lieu of her Muhammadan dower, and had no other title to it. She, however, granted a mortgage to the other two defendants. The plaintiff would be the person entitled to possession of the property, if the widow had no right to possession in lieu of her dower.

2. The Privy Council have held that where a Muhammadan widow is lawfully in possession in lieu of her dower, her possession cannot be disturbed except on payment of the dower debt: consequently this suit, so far as it claims possession, must fail, the dower debt being still due.

3. It has been held on several occasions in this Court that a Muhammadan widow in possession in lieu of her dower cannot sell any portion of the property. She cannot give a good title to any portion of the property, inasmuch as her position is only that of a widow in possession in lieu of her dower. It has never been held, so far as we are aware, that a Muhammadan widow, under such circumstances, can grant a valid mortgage of any portion of the property in her possession in lieu of dower, and the principle of the decisions in which it has been held that she may not sell, appears to us to apply equally to the case of her attempting to mortgage,

4. We allow this appeal to the extent of giving the plaintiff a decree declaring that the mortgage is inoperative and passes no title to the male defendants.

5. In other respects we dismiss the appeal. Each party will bear its own costs.


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