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Ahmad Ali Khan and ors. Vs. Azizullah Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All353
AppellantAhmad Ali Khan and ors.
RespondentAzizullah Khan and ors.
Excerpt:
.....the question of the amount of such dower, the matter being one which could be settled properly in a suit for an account of what is due as dower. , kulsum and khadija, filed a written statement, in which, after stating that they were on good terms with their brothers, the plaintiffs, and that the suit had been instituted with then-knowledge and permission, they prayed that the suit might be decreed, subject to the condition that they would on some future occasion 'settle with their own brothers as to their right and costs......courts arrived, the plaintiffs, as heirs of the deceased lady, wore not entitled to maintain a suit for possession, and that their only remedy was to sue for recovery of such sum as may be due to the estate of the deceased lady as her dower. i am of opinion that this contention is based upon an erroneous view of the law. it has been held in many cases by this court and the lords of the privy council, that a muhammadan widow, lawfully in possession of her husband's estate, occupies a position analogous to that of a mortgagee, whose possession cannot be disturbed until the dower-debt has been satisfied. jamiyat's position having been found to be of this nature, the plaintiffs, as her heirs, are entitled to succeed her in possession of the property.2. in support of the fifth ground of.....
Judgment:

Mahmood, J.

1. The first ground of appeal has no force, because the record fails to show that the subject-matter of the suit exceeds Rs. 5,000 in value. Nor do the findings of the lower Courts on the merits of the evidence leave room for the entertainment of the question raised in the second, third, sixth, and seventh grounds of appeal. The lower Courts have found that the deceased Musammat Jamiyat was a Sunni; that upon the death of her husband, Ziaullah, she obtained, with the acquiescence of his heirs, possession of the whole of his estate in lieu of dower; that the houses (to which the seventh ground of appeal before us relates) form part of his estate, and were in possession of the deceased lady whose dower has never yet been paid, These findings, which are based upon the evidence before the lower Courts, cannot be disturbed in second appeal. But it is contended by the appellants in their fourth ground of appeal that, even upon the findings at which the lower Courts arrived, the plaintiffs, as heirs of the deceased lady, wore not entitled to maintain a suit for possession, and that their only remedy was to sue for recovery of such sum as may be due to the estate of the deceased lady as her dower. I am of opinion that this contention is based upon an erroneous view of the law. It has been held in many cases by this Court and the Lords of the Privy Council, that a Muhammadan widow, lawfully in possession of her husband's estate, occupies a position analogous to that of a mortgagee, whose possession cannot be disturbed until the dower-debt has been satisfied. Jamiyat's position having been found to be of this nature, the plaintiffs, as her heirs, are entitled to succeed her in possession of the property.

2. In support of the fifth ground of appeal, the learned pleader for the appellants has cited the ruling of this Court in Balund Khan v. Janee N.W.P.H.C. Eep. 1870 p. 319 in which it was held that, where a defendant is found to be in possession of landed property in lieu of dower, and it is held that the plaintiff is not entitled to sue for possession of the [388] property until such claim for dower has been satisfied, it is unnecessary to determine the question of the amount of such dower, the matter being one which could be settled properly in a suit for an account of what is due as dower. Belying upon this ruling, the learned pleader asks us to set aside so much of the judgments of the lower Courts as relate to the finding that Jamiyat's dower amounted to Rs. 17,000. Without doubting the authority of the ruling cited, I am of opinion that it is not on all fours with the present case, as here the plaintiffs, who seek to recover possession, do not claim as heirs of Ziaullah, but as heirs of his widow Jamiyat. Whatever the effect of the finding may be, I do not think we are called upon to consider the question in this case, because the decree for possession passed in favour of the plaintiffs would remain undisturbed, even if an amount less than Rs. 17,000 was found to be the deceased lady's dower.

3. The only ground of appeal which remains to be considered is the last, which raises the question whether the lower Courts were right in law in decreeing the whole of the estate of Jamiyat in favour of the plaintiff's. The plaintiff Ahmad Ali is the brother of the deceased lady, and the plaintiffs Nasir Ali, Abdul Karim, and Amin Khan are the sons of Dulari, sister of the deceased lady. Jamiyat died in 1878, and her sister Dulari died in 1881, leaving, not only the three sons, but also three daughters, namely, Kulsum, Khadija, and Shafia, who have not joined the suit as plaintiff's. It is obvious that, under these circumstances, the share inherited by Dulari devolved also upon her three daughters to the extent provided by the Muhammadan Law. There is no allegation that they have conveyed their rights and interests to the plaintiffs; but it appears that, in the course of the trial of the suit in the Court of First Instance they were impleaded as defendants under Section 32 of the Civil Procedure Code, and on the 12th March 1883, only two of them, viz., Kulsum and Khadija, filed a written statement, in which, after stating that they were on good terms with their brothers, the plaintiffs, and that the suit had been instituted with then-knowledge and permission, they prayed that the suit might be decreed, subject to the condition that they would on some future occasion 'settle with their own brothers as to their right and costs.' The lower Courts have treated this admission as sufficient to entitle the plaintiffs to a decree for possession, not only of their own share but also of the share of the three daughters of Dulari. Shafia did not appear to defend the suit. I am of opinion that the view of the case taken by the lower Courts was erroneous in law. I take it as a fundamental proposition connected with our system of administering justice that a plaintiff cannot sue for more than his own right, and that no defendant can, by an admission or consent of this kind, convey the right, or delegate the authority, to one for more than his own share in property. A similar question was decided in the case of Lachman Singh v. Tansukh I.L.R. 6 All. 395 in which I concurred in the views of my learned brother Oldfield. I still entertain the same opinion upon this question of law, and if it were necessary to add anything to what was said by my learned brother in that case, I should say that one reason for not giving effect to such admissions against a co-defendant is, that it deprives the defendant against whom such admissions are used of the opportunity of raising pleas which might be raised, if the defendants making the admission appear in Court as plaintiffs suing for their rights.

4. Under this view of the case the decree of the lower Courts should be modified by dismissing the suit to the extent of the share of the three daughters of Dulari.

Oldfleld, J.

5. concurred.

6. The case was remanded to the Lower Appellate Court for a finding on the following issue:

What is the exact extent of the share of the plaintiffs, exclusive of the shares of Kulsum, Khadija, and Shafia


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