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Mt. Wahidan Vs. Nasir Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1930All434a
AppellantMt. Wahidan
RespondentNasir Khan and anr.
Excerpt:
- - munni was married to farid khan an 20th march 1923. this marriage proved a failure. munni, it was clearly stipulated that in consideration of the divorce given by the husband, mt. 12. in this aspect of the case the plaintiff's suit is bound to fail......eve of the divorce proceedings litigation between the parties about this house was pending. mt. munni in consideration of procuring a divorce from her husband agreed to withdraw the suit. the suit was withdrawn and divorce obtained. after obtaining her release from the matrimonial bondage mt. munni could not be permitted to institute a second suit against the same party upon the same cause of action. where a person obtains a release from a liability upon the understanding of forgoing a definite claim against a third party, that person is estopped from asserting or enforcing the claim to the detriment of that party. the rule of estoppel although primarily a rule of evidence affects substantive rights. the legal effect of the document dated 14th august 1906 is that mt. munni has.....
Judgment:

Sen, J.

1. The suit which has given rise to this appeal was originally instituted by Mt. Munni, minor daughter of Nasir Khan through one Mashir Baksh, who claimed to be the guardian and sarparast of the minor. The claim related to a moiety share in a house situate in mohalla Panni Gali in the city of Agra and to mesne profits.

2. Mt. Munni died on 7th September 1926 and the suit was continued by her father Nasir Khan.

3. The house in dispute belonged to Mt. Wahidan defendant-appellant and Nawab Khan who is the pro forma respondent is the husband of this lady. They have a son of the name of Farid Khan who is no party to this suit.

4. On 10th March 1923, Mt. Wahidan in contemplation and consideration of Mt. Munni's marriage with her son Farid Khan sold an undivided moiety of the house to Mt. Munni for Rs. 500. Though no marriage had taken place, the amount of dower appears to have been settled for Rs. 500. A formal deed was executed, which was duly registered.

5. Mt. Munni was married to Farid Khan an 20th March 1923. This marriage proved a failure. Dissensions began between the married couple. On 2nd July 1926, Mt. Munni brought a suit for possession of her half share in the house. About a month and a half later, a mutual divorce took place between the husband and the wife. Two documents were executed and registered with due formality, one by Mt. Munni and the other by Farid Khan. These documents bear the same date namely 14th August 1926. In the documents executed on behalf of Mt. Munni, it was clearly stipulated that in consideration of the divorce given by the husband, Mt. Munni agrees to forgo her right to dower and maintenance and further agrees to withdraw the suit which she had instituted against Mt. Wahidan for possession of a moiety share of the house. The suit was accordingly withdrawn.

6. Curiously enough, a second suit was instituted by her on 20th August 1926 in which she claimed partition of this house and also mesne profits.

7. Mt. Munni was a minor at the date of the suit and she died a minor. She could not be held responsible for the suit but the responsibility lay heavily with her guardian and we cannot avoid the conclusion that important facts have studiously been omitted from the plaint. It would have been fair and holiest on the part of the plaintiff to state in the plaint the terms and conditions under which Mt. Munni obtained her divorce.

8. The suit was directed against Nawab Khan and his wife Mt Wahidan of whom the latter only contested the suit. She denied that the plaintiff was the owner of the property and contended that the sale deed dated 10th March 1923 was obtained from her fraudulently and was without consideration. There were also other pleas but we are not concerned with any in the present appeal. No issue was framed on the question of title. The first Court decreed the claim on the finding that the sale deed was duly executed by Mt, Wahidan and that it was for consideration. The lower appellate Court has affirmed the decision.

9. No attempt has been made to challenge the findings of fact arrived at by the lower appellate Court and these findings are not open to any criticism. It has been argued, however, that the execution of the sale deed by the mother in satisfaction of the contemplated dower of her daughter-in-law must in law be held to be without consideration. This contention is opposed to the principle enunciated by the Privy Council in Khwaja Mohammad Khan v. Hussaini Begum [1910] 32 All. 410. The Privy Council refused to apply the rule of common law laid down in the case of Tweddle v. Atkinson [1861] 1 B & Section 393. Their Lordships laid stress upon the fact that:

In India and among communities circumstanced as the Mahomedans, among when marriages are contracted for minors by parents and guardians, it might occasion serious injustice if the common law doctrine was applied to agreements or arrangements entered into in connexion with such contracts.

10. Under Section 2, Clause (d), Contract Act it is clear that consideration may move either from the promise or any other person. We are, therefore, of opinion that the sale deed dated 10th March 1923 was supported by consideration and passed an absolute title to the vendee.

11. The crucial question, however, was whether Mt. Munni was the owner of the property at the date of the suit, The defendant-appellant had impugned her title in the clearest terms. No issue has been framed on this point and neither of the Courts below has recorded any finding as to plaintiff's ownership. From the facts that we have stated above it is abundantly clear that it was intended to bo one of the articles of divorce between the parties that Mt. Munni must forgo her claim to a moiety share in the house in dispute. That is the identical share which is the subject of the present controversy. On the eve of the divorce proceedings litigation between the parties about this house was pending. Mt. Munni in consideration of procuring a divorce from her husband agreed to withdraw the suit. The suit was withdrawn and divorce obtained. After obtaining her release from the matrimonial bondage Mt. Munni could not be permitted to institute a second suit against the same party upon the same cause of action. Where a person obtains a release from a liability upon the understanding of forgoing a definite claim against a third party, that person is estopped from asserting or enforcing the claim to the detriment of that party. The rule of estoppel although primarily a rule of evidence affects substantive rights. The legal effect of the document dated 14th August 1906 is that Mt. Munni has definitely precluded herself from asserting a title to the house in dispute, The result is that she had no title to claim a partition of the house at the date of the suit. Her father Nasir Khan is bound by this disability.

12. In this aspect of the case the plaintiff's suit is bound to fail. The plea was not specifically raised in the ground of appeal in this Court but we allowed this point to be argued because it cuts at the root of the plaintiff's claim.

13. We allow the appeal and set aside the decrees of the Courts below. For the reasons set forth above, we make no order as to costs.


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