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Abdul Wahab Khan Vs. Mushtaq Ahmad Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1944All36
AppellantAbdul Wahab Khan
RespondentMushtaq Ahmad Khan and ors.
Excerpt:
.....defendant on this latter point is also very weak. the two thumb-impressions on the will, one of rasul bandi, and the other of sheo baran, one of the attesting witnesses, are clearly in different inks. on the whole, our conscience is not satisfied that the will set up by the defendant was executed by ataullah and rasul bandi. it is well settled that if the dower debt has not been paid by the husband in his lifetime or by his heirs after the husband's death, the widow, if she has lawfully and without force or fraud obtained possession of the property of the husband in lieu of her dower, is entitled as against the heirs of the husband and as against the creditors of the husband to retain that possession until her dower is satisfied. it is true that the right to hold possession does not..........mentioned properties were owned and possessed by one shaikh. ataullah who died leaving a widow mt. rasul bandi bibi. the case of the plaintiffs, mushtaq ahmad khan, ishtiaq ahmad khan and ashfaq ahmad khan, was that the dower of mt. easul bandi bibi was fixed at rs. 36,000, and five asharfis and the entire dower was deferred and that after the death of ataullah khan, easul bandi bibi entered into possession of the plaint property to the extent of one-fourth as an heir and to the extent of the remaining three-fourths in lieu of the aforesaid unpaid dower with the consent of the heirs of shaikh ataullah. mt. rasul bandi bibi died on 4th december 1934, whereas ataullah had died sometime in 1923 and the dower debt had not been paid either during the lifetime of ataullah or in. the lifetime.....
Judgment:

Bajpai, J.

1. This is an appeal by the defendant Abdul Wahab Khan, and the suit was for recovery of possession of certain zamindari property mentioned in Schedule A, a house mentioned in Schedule B and certain ornaments mentioned in Schedule C. The above mentioned properties were owned and possessed by one Shaikh. Ataullah who died leaving a widow Mt. Rasul Bandi Bibi. The case of the plaintiffs, Mushtaq Ahmad Khan, Ishtiaq Ahmad Khan and Ashfaq Ahmad Khan, was that the dower of Mt. Easul Bandi Bibi was fixed at Rs. 36,000, and five asharfis and the entire dower was deferred and that after the death of Ataullah Khan, Easul Bandi Bibi entered into possession of the plaint property to the extent of one-fourth as an heir and to the extent of the remaining three-fourths in lieu of the aforesaid unpaid dower with the consent of the heirs of Shaikh Ataullah. Mt. Rasul Bandi Bibi died on 4th December 1934, whereas Ataullah had died sometime in 1923 and the dower debt had not been paid either during the lifetime of Ataullah or in. the lifetime of Mt. Rasul Bandi Bibi. The plaintiffs were the heirs of Rasul Bandi Bibi being the sons of her brother Azmat Ali, and the defendant Abdul Wahab without any title entered into possession of the plaint i property and in spite of the plaintiffs' remonstrances and repeated demands refused to deliver possession of the property mentioned above. It might be mentioned that the defendant Abdul Wahab Khan is the son of Gauhar Ali Khan who is the son of Sardar Khan, the grandfather of Mt. Rasul Bandi, but the defendant is no heir to Rasul Bandi in the presence of the plaintiffs. Ataullah's heirs were Rasul Bandi, the widow, to the extent of one-fourth and a nephew Abdul Syed to the extent of three-fourths.

2. The case of the defendant was that Shaikh Ataullah, the husband of Mt. Rasul Bandi, was the owner in possession of the immovable property only (not the ornaments) that Shaikh Ataullah died without leaving any male or female issue, that the amount of dower alleged by the plaintiffs was simply fictitious--the dower being Rs. 1000, and having been paid by Ataullah three years before his death-that' Ataullah and his wife Rasul Bandi executed a will in favour of the defendant on 9th November 1922, that the contesting defendant had been in possession of the property in dispute for over twelve years ever since the death of Ataullah and the plaintiffs' suit was, therefore, barred by time. It was true that after the death of Ataullah mutation of names was effected in favour of Rasul Bandi but that was only for the sake of Rasul Bandi's consolation; and in pursuance of the terms of the will after the death of Rasul Bandi mutation was effected in favour of the defendant and the plaintiffs were not entitled to maintain the present suit. In the course of arguments it was pleaded that under no circumstances were the plaintiffs entitled to maintain the suit after the expiry of six months (which was the period of limitation prescribed by Article 3, Limitation Act), from the date of Rasul Bandi's death.

3. It will thus appear that the important questions that arose for decision in the case were: (1) what was the dower of Mt. Rasul Bandi, (2) was the will propounded by the defendant a genuine will and (3) was the plaintiff's suit barred by time? The Court below has decided almost all the issues in favour of the plaintiffs and has decreed their suit for recovery of possession of the properties specified in Schedules A and B of the plaint, but the claim for possession of the ornaments mentioned in Schedule C has been dismissed on the ground that it had not been proved that the defendant was in possession of any of the ornaments belonging to Mt. Rasul Bandi or Ataullah. The plaintiffs are satisfied with the decree of the Court below dismissing their suit regarding the ornaments, but the present appeal has been filed by Abdul Wahab Khan, the defendant, and the contention is reiterated before us that the dower of Mt. Rasul Bandi was only Rs. 1000 and had been paid during the lifetime of Ataullah, that the will set up by the defendant was a genuine will and that the plaintiffs' suit was barred by time.

4. We are satisfied that the dower of Mt. Rasul Bandi was fixed at Rs. 36,000, and five asharfis. The evidence on behalf of the plaintiffs consists of the oral testimony of Mushtaq Ahmad, one of the plaintiffs, and six other witnesses, namely, Nasrat Ali, Mt. Qudrat Bandi, Qasim Ali Khan, Zahid Ali Khan, Majid Nabi Khan and Mohammad Shafi. Nasrat Ali, Qudrat Bandi, Qasim Ali Khan and Zahid Ali Khan, according to their statements, were present at the time of the marriage of Rasul Bandi with Ataullah, and they uniformly say that the dower was fixed at Rs. 36,000 and five asharfis. Majid Nabi Khan and Mohammad Shafi say that the dower of the other members of the family of Rasul Bandi was fixed at the same amount and from this it was probable that the dower of Rasul Bandi would also be the same. It is true that regard being had to the financial position of Ataullah the dower appears to be excessive, but Mahomedan dowers are notoriously fixed at large amounts in order, to prevent divorce, and dowers are usually fixed according to the respectability of the wife and according to what is usual in the family of the wife. The evidence produced by the defendant to prove that the dower was Rs. 1000 consisted of the statement of one Thakur Pandey, and we agree with the Court below that that evidence is not at all satisfactory. The case of the defendant that the dower was fixed at Rs. 1000, was not set up definitely in the written statement but was only developed later on in evidence and that also is a circumstance which goes against the defendant. The other evidence on behalf of the, defendant consists of the testimony of Mahbub Ali Khan and Khun Khun, and the Judge says that he 'was not at all favourably impressed with their evidence and was not prepared to believe them.' Rasul Bandi would not have been allowed by the heir Abdul Syed (a nephew of Ataullah) to remain in possession of the entire inheritance for a period of 11 years if the dower had only been Rs. 1000 or if it had been paid in the lifetime of Ataullah. But it is said that Rasul Bandi was in possession of the property in pursuance of the will. We shall, however, presently point out that the will set up by the defendant has not at all been established. If the dower was Rs. 36,000 and five asharfis, as we and the Court below think, then it is obvious that even on the case of the defendant the dower could not have been paid up in the lifetime of Ataullah for it is the case of the defendant that only Rs. 1000 had been paid by Ataullah and evidence of the defendant on this latter point is also very weak.

5. We now come to the question whether the will dated 9th November 1922, and printed at p. 26 of our record is a genuine will. In this connexion Abdul Wahab has examined himself and has produced two witnesses, namely, Kesri Narain, the scribe, and Mahbub Ali Khan, one of the attesting witnesses. There are several suspicious features in the will and we find it very difficult to get over them. The signature of Ataullah seems to have been written over and that became necessary in order to make it appear that all the writing on the will was with one ink. The two thumb-impressions on the will, one of Rasul Bandi, and the other of Sheo Baran, one of the attesting witnesses, are clearly in different inks. The will was never set up by the defendant after the death of Ataullah and was produced in the course of mutation proceedings after the death of Easul Bandi and what is important is that it was produced not by Abdul 'Wahab but by the witness Sheo Baran. It is not quite clear why Ataullah and Rasul Bandi both should have joined in the execution of the will. The will is alleged to have been written on 9th November 1922; Ataullah died on 19th and yet the will was not registered. The learned Judge of the Court below thinks that the defendant who had some connexion with Ataullah and Mt. Rasul Bandi got possession of some stamp paper bearing the signature and thumb-impression respectively of Ataullah and Mt. Rasul Bandi and manufactured this alleged will either during the lifetime of Mt. Rasul Bandi with whom he was living or some time after her death and this explains the peculiar nature of the recitals in the will. We also share the same suspicion, and it is noteworthy that page 2 of the will does not bear the signature of Ataullah or the thumb-impression of Rasul Bandi. The will is not witnessed by any person of the family of Ataullah and Rasul Bandi but by witnesses who are more or less under the influence of Abdul Wahab Khan, the defendant. The signature of one Azmat Ali Khan also appears on page 2 of the will. This Azmat Ali Khan is the father of the plaintiffs, but the signature has been smudged, and it is not possible to prove with certainty whether the signature is that of Azmat Ali Khan or not, but the idea of the defendant was to estop the plaintiffs by alleging that Azmat Ali Khan was a consenting party to the will. On the whole, our conscience is not satisfied that the will set up by the defendant was executed by Ataullah and Rasul Bandi.

6. The last question is the question of limitation. It is well settled that if the dower debt has not been paid by the husband in his lifetime or by his heirs after the husband's death, the widow, if she has lawfully and without force or fraud obtained possession of the property of the husband in lieu of her dower, is entitled as against the heirs of the husband and as against the creditors of the husband to retain that possession until her dower is satisfied. In the present case there is not question that Mt. Rasul Bandi entered into possession of the property of her husband to the extent of one-fourth as an heir and to the extent of the remaining three-fourths in lieu of her dower with the consent of or at least without any protest by Abdul Syed, the only other heir of Ataullah. When mutation was effected in favour of Rasul Bandi after the death of Ataullah, Abdul Syed made no opposition whatsoever and that is enough under the Mahomedan law to show that Rasul Bandi entered into possession lawfully, in lieu of her dower, without any force or fraud. It is true that the right to hold possession does not give the widow any title to the property, but it is also well settled so far as this Court is concerned that the right to hold possession is heritable. The plaintiffs are the heirs of Rasul Bandi according to the relationship which we have mentioned in an earlier portion of our judgment, and as was held in Ali Bakhsh v. Allahadad Khan ('10) 32 All. 561 and in Amir Hasan Khan v. Muhammad Nazir Husain : AIR1932All345 , the plaintiffs became entitled to inherit the right and to hold possession after the death of Rasul Bandi.

7. The death of Rasul Bandi took place in December 1934 and the defendant obtained mutation in his favour without any protest by the plaintiffs, and learned Counsel for the defendant strongly relies upon this fact. The plaintiffs, however, allege that they were poor and were not in a position to fight Abdul Wahab. We note that the present suit has been instituted in forma pauperis and it may be that the plaintiffs were not possessed of sufficient funds to raise a contest in the revenue Court. Be that as it may, the plaintiffs cannot be non-suited simply on the ground that they did not dispute the mutation, unless the plaintiffs' suit is barred by time.

8. Ordinarily in the case of a claim for possession of immovable property the period of limitation is twelve years and if that period is applied in the present case under Article 142, Limitation Act, the plaintiffs' suit would be well within time because the suit was instituted on 4th March 1938 and Rasul Bandi died on 4th December 1934. It is, however, said on behalf of the defendant that the limitation applicable to the present case is one provided by Article 3 which says that a suit must be instituted within six months of the dispossession.

9. The contention is that the suit must be instituted under Section 9, Specific Relief Act. We do not think that the plaintiffs were bound to sue under Section 9, Specific Relief Act. The defendant is not an heir of Rasul Bandi or of Ataullah and is, for all practical purposes, a trespasser, and the question is whether the plaintiffs, who are the heirs of Rasul Bandi and who have inherited the right to retain possession, have on the basis of their possessory title a period of twelve years for instituting the suit. The way to test this problem is to find out first what period of limitation would be applicable if Rasul Bandi herself had to institute a suit for possession against a trespasser.

10. We have already said-that the widow's right to hold possession of her husband's property in lieu of dower does not give the widow any title to the property; it enables her only to retain possession of the property; but in spite of this her right against a trespasser is something more than what can be vindicated only by means of a suit under Section 9, Specific Relief Act. When a person is illegally dispossessed, that is 'without his consent otherwise than in due course of law,' he is entitled under Section 9, Specific Belief Act, to recover possession even as against the rightful owner of the property provided the suit is brought within six months of the date of dispossession. But in the present case it is clear from what we have said above that the defendant is not the rightful owner of the property, and the question which we have, therefore, got to decide is whether the defendant being a trespasser, Rasul Bandi, if she had been alive, would have been entitled to recover possession after six months and within twelve years of dispossession on the basis of such right of possession as she had under the Mahomedan law. On this point there is a conflict of decisions between the High Courts of Bombay, Allahabad, Madras, Patna and the Punjab on the one side and the High Court of Calcutta on the other. The High Court of Calcutta is alone of the view that land to which the plaintiff is unable to make out a title cannot be recovered merely on the ground of previous possession except on a suit under Section 9, Specific Belief Act, brought within six months of dispossession. It is not necessary for us to notice all the decisions of the other Courts for we find ourselves in agreement with what has been decided by this Court in Wali Ahmad Khan v. Ajudhia Kandu ('91) 13 All. 537, Umrao Singh v. Ramji Das ('14) 1 A.I.R. 1914 All. 54, Ram Dayal v. Saraswati : AIR1927All526 and Gajraj Puri v. Raja Ram ('37) 1937 A.L.J. 1189.

11. In Sunder v. Parbati ('90) 12 All. 51, their Lordships of the Privy Council approved of the case in Asher v. Whitlook (1866) 1 Q.B. 1, in which it was held that a person in possession of land without other title had a devisable interest, and that the heir of his devisee could maintain ejectment against any person who had entered upon the land and could not connect himself with some one having title or possession prior to the testator. In Sunder v. Parbati ('90) 12 All. 51 possession was lawfully obtained in the sense that it was not procured by force or fraud but peaceably by certain widows of the deceased person, and it was held that they were entitled to maintain their possession against all comers except the rightful claimant. In Ismail Ariff v. Mahomed Ghous ('93) 20 Cal. 834, it was held by their Lordships of the Privy Council that lawful possession of land was sufficient evidence of right as owner as against a person who had no title whatever and who was a mere trespasser. We can see nothing in the provisions of Section 9, Specific Belief Act, which in any way militates against the principle that previous possession enjoyed peaceably by a Mahomedan widow--or anybody else who has obtained possession even for a period short of the statutory period of 12 years-entitles the person who has been in such possession to a decree for possession in a suit against a trespasser provided the suit is brought within 12 years of the date of dispossession. This being our view as to the right of Mt. Rasul Bandi and it being settled in this Court that the right of possession enjoyed by Rasul Bandi was heritable, the plaintiffs as the heirs of Rasul Bandi were entitled to institute the present suit under Article 142, Limitation Act. The ease on which strong reliance is placed by the appellant was the case in Mashal Singh v. Ahmad Husain : AIR1927All534 . In this case the plaintiff as transferee of certain property from a Mahomedan widow who was in possession of her husband's property in lieu of her dower brought a suit for possession against the heir of the husband and it was held that the suit ought to have been instituted within six months of the dispossession. It is important to note that the suit was against the heir of the husband, and we have already said in an earlier portion of our judgment that as against the rightful owner the suit must be instituted within six months. In this case Ashworth J. observed that the

title based on mere prior possession is only available against some one other than the rightful owner. The heir is the rightful owner and the widow only having a right of lien, has no title.

The transferee from the widow could not, therefore, bring a suit otherwise than under the provisions of Section 9, Specific Relief Act. In the present case we point out again that the defendant is a rank trespasser and, in our judgment, the article of the Limitation Act applicable is Article 142 and the plaintiffs' suit is within time. For the reasons given above, we dismiss this appeal with costs.


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