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Mohammad Mohit Ullah Khan and anr. Vs. Bibi Halima Begam - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1932All666
AppellantMohammad Mohit Ullah Khan and anr.
RespondentBibi Halima Begam
Excerpt:
.....the full bench decisions in muhammad sadiq v. the respondent's learned counsel contends for the proposition that if the plaintiff could have claimed a larger share under section 111 and failed to do so, then she is debarred from raising the question in the present suit. as each party has partly succeeded and partly failed, we make no order regarding costs......masrur un nissa. | |----------|------------------|-------------| amanat mohit halima azmat ullah= ullah ullah begam kaniz fatma def. 1. plff. def. 2.2. hidayat ullah. khan, the father of halima begam, the plaintiff, had zamindari property in two villages, akbarpur and bisaulia. his wife mt. masrur-un-nissa (the plaintiff's mother) owned property in two other villages bilauna and hamirpur. hidayat ullah died in 1885 and masrur-un-nissa died in 1890 leaving three sons amanat ullah, azmab ullah and mohit ullah (defendant 1) and one daughter, halima begam, the plaintiff.:3. the plaintiff's case is that on the death of her father and mother she succeeded to a share of 40 sihams out of 280 sihams. in her parents' property in the four villages. her eldest brother amanat ullah died in 1905 and.....
Judgment:

King, J.

1. These two connected appeals arise out of a suit for possession of zamindari shares in certain villages specified in the plaint and for mesne profits. The relationship between the parties would appear from the following pedigree:

Hidayat Ullah Klian = Masrur un nissa.

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|----------|------------------|-------------|

Amanat Mohit Halima Azmat Ullah=

Ullah Ullah Begam Kaniz Fatma

Def. 1. Plff. Def. 2.

2. Hidayat Ullah. Khan, the father of Halima Begam, the plaintiff, had zamindari property in two villages, Akbarpur and Bisaulia. His wife Mt. Masrur-un-nissa (the plaintiff's mother) owned property in two other villages Bilauna and Hamirpur. Hidayat Ullah died in 1885 and Masrur-un-nissa died in 1890 leaving three sons Amanat Ullah, Azmab Ullah and Mohit Ullah (defendant 1) and one daughter, Halima Begam, the plaintiff.:

3. The plaintiff's case is that on the death of her father and mother she succeeded to a share of 40 sihams out of 280 sihams. in her parents' property in the four villages. Her eldest brother Amanat Ullah died in 1905 and she inherited a further share of 1G sihams out of 280 as his heir; She therefore claims 56 sihams out of 280 sihams in the four villages as heir to her father, mother and eldest brother.

4. Azmat Ullah her younger brother died on 29th January 1925 leaving a widow : Kaniz Eatima (defendant 2). Plaintiff claims as heir of Azmat Ullah 28 sihams out of 280 sihams in the ancestral property and a quarter share in 6 bighas 12 biswas which Azmat Ullah purchased in Bilauna. Azmat Ullah's property is in possession of his widow Kaniz Fatima in lieu of her dower debt. According to the plaintiff, the dower debt was Rupees 1,000 only and the plaintiff claims possession of her share in Azmat Ullah's estate upon payment of her proportionate share, namely one-quarter of the dower debt, to Kaniz Fatima.

5. The plaintiff alleges that she lived on good terms with her brothers and did not know whether mutation had been effected in her favour as heir of her parents and of her brother Amanat Ullah, but on the death of Azmat Ullah, a dispute arose regarding the mutation and she discovered that she was only recorded as the owner of 16 out of 280 sihams in Bilauna, Hamirpur Bisaulia. She claims therefore 56 sihatns in Akbarpur and 40 sihams in the ether three villages without any payment and claims further 28 sihams in all the four villages and one-quarter of 6 bighas 12 biswas in Bilauna on payment of Rs. 250 to Kaniz Fatima. The plaintiff's claim in respect of Akbarpur and Bisaulia is not disputed.

6. As regards Bilauna the principal defence is that the plaintiff relinquished her share in her mother's estate in Bilauna and that the defendants have boen in adverse possession of the share claimed by the plaintiff for more than 12 years. Kaniz Fatima contended that her dower debt was Rs. 12,000 and not Rs. 1,000. As regards the 6 bighas 12 biswas purchased by Azmat Ullah in Bilauna, Mohit Ullah contended that although the property was purchased in the name of Azmat Ullah it was in fact purchased jointly by Azmat Ullah and Mohit Ullah who each paid half the purchase money; so the plaintiff is only entitled to a quarter-share in one-half of that property. As regards the claim to a share in Hamirpur, the principal defence was that the claim was barred under Section 233-K, U.P. Land Revenue Act, 1901, as the village had been partitioned and in the partition proceedings the plaintiff was allotted a share corresponding to the share entered in her name in the khewat and her suit for a larger share is now barred.

7. The trial Court held that the alleged relinquishment by the plaintiff of her share in her mother's estate in Bilauna was not proved and it was not proved that the defendants have been in adverse possession of the plaintiff's share. As regards the property purchased in the name of Azmat Ullah, the finding wag that he purchased it for himself and that Mohit Ullah was not a joint owner. This finding is not challenged in appeal. The dower debt was found to be Rupees 12,000 and the plaintiff's claim to a further share in Hamirpur was held to be barred by Section 233-K, Land Revenue Act. Both parties have appealed against the decree. We first deal with the defendants' appeal.

8. The first point for consideration is whether it has been proved that the plaintiff relinquished her share in her mother's estate in Bilauna. (Here the judgment considered facts and evidence and came to the following conclusion). In our opinion the plaintiff's statement recorded in Ex. D-1, coupled with her subsequent conduct, shows that she really did relinquish her share in her mother's estate in Bilauna.

9. It has been argued that in any case the defendants have established title by adverse possession as against the plain-till for more than 12 years. We are not prepared to accept this contention. The plaintiff and the defendants were co-sharers in the Bilauna property. They were moreover brothers and sister and were living amicably together. In such circumstances, we consider that it would not be possible for the defendants to establish title by adverse possession against the plaintiff unless they had expressly set up an adverse title to her knowledge. The principle of the ruling in Mutarakunnissa v. Muhammad Raza Khan A.I.R. 1924 All. 384 is applicable to the facts of this case. We do not find any evidence of sue mister or hostile assertion of title as would justify a finding that the defendants had established their title by adverse possession. The plaintiff was receiving sums of money from her brothers and it is not shown that she received merely her share of profits according to the share recorded in her name, neither more nor less. We agree with the Court below that the defendants have not established title by adverse possession. This disposes of the points which have, been argued before us on behalf of the defendants-appellants. We now turn to the plaintiff's appeal No. 512 of 1927. The main question is whether the trial Court was right in holding that the plaintiff's claim for a larger share in village Hamirpur was barred either by Section 233K, Land Revenue Act or by the rule of res judicata.

10. In 1906, two cosharers of village Hamirpur made an application to the Revenue Court for separation of their shares by partition. It must be presumed that notice was given to all the other recorded cosharers including the present plaintiff Mt. Halima Begam. We find from the khewat of the village (Ex. K-l) for the year 1515 Fasli that the result of the partition was to divide the mahal into four pattis. One of the pattis was allotted to the two brothers Mohitullah Khan and Azmatullah Khan and to their sister Mt. Halima Begam jointly, the two brothers being recorded as owning 14 shares and Halima Begam being recorded as owning one share in this patti, Presumably the members of this family must have applied for having their shares formed into a separata patti. The imperfect partition of the mahal and village into four pattis was sanctioned and declared to come into force on lat July 1908 (Ex. A-1, p. 69). Now the question is whether the plaintiff can claim in a civil Court a share larger than the share allotted to her in the partition.

11. The question of res judicata may be disposed of briefly. The parties to the present suit, or their predecessors-in-title, were arrayed upon the same side in the partition proceedings. If (hey applied jointly for having their shares formed into a separate patti, as appears probable, then they were in the position of co-plaintiffs. Otherwise they were in the position of co-defendants. No partition was effected between the parties inter se. A separate patti was allotted to them jointly, proportionate to the total value of their recorded shares. There was no conflict of interest; between them and for the purpose of effecting the partition it was unnecessary to determine the shares of the parties inter se. In such circumstances we hold that the plaintiff's claim to a larger share as against her brothers is not barred by the rule of res judicata. The extent of the shares of the parties inter se was not raised or decided by the Revenue Court. Although it was open to the plaintiff to have raised the question of title in the partition proceedings, it is difficult to say that she ought to have raised such question and in any case it cannot be held that aha ought to have raised the question as a ground of defence or attack, since there was no conflict of interest between the parties inter se. 'We hold therefore that the rule of res judicata does not bar the present suit.

12. The next question is whether the plaintiff's claim is barred by Section 233-K. Section 233-K prohibits the institution of a civil suit or proceeding in respect to 'partition...except as provided in Sections 111 and 112.' The present suit was certainly not instituted as provided in Section 111; so the only question is whether it is a 'suit with respect to partition.' This language is very wide, but ever since the decision of the Full Bench in Mohammad Sadiq v. Laute Ram [1901] 23 All. 291 it has been understood as referring to a suit which aims at altering the distribution of property effected by the partition. In the absence of authority we should find it difficult to hold that the present suit is of such a nature. There was no division of property between the parties. One patti was allotted to them jointly. It is true that the extent of their respective interests was recorded in accordance with Section 114 but it would be difficult to hold that any alternation of the recorded shares of the parties inter se would amount to an alteration in the distribution of property effected by the revenue authorities.

13. The plaintiff's advocate has cited a number of rulings in which it has been held that where a civil suit does not aim at disturbing the distribution of property effected by the Revenue Court, so as to alter the total amount of shares in any mahal or patti or to alter the area of any mahal or patti, but merely aims at substituting the plaintiff for the defendant as owner of a share or plot of land in a mahal or uatti, then the suit is not barred by Section 233-K. We may refer to Data, Din v. Nohra : AIR1930All419 , Ram Rekha Misir v. Lallu Misir : AIR1931All462 and the Full Bench decision in Kalka Prasad v. Man Mohan Lal [1916] 38 All. 302. In all these cases the parties had conflicting interests in the partition proceedings, i.e., they were allotted separate mahals or pattis. Nevertheless, it was held that a civil suit by one party claiming a share in property allotted by partition to the opposite party, was not barred by Section 233-K. In the present case the Revenue Court made no division of property between the parties and there, was no conflict of interest between them. The rulings cited are therefore distinguishable upon the facts. Although we hold that Section 233-K does not bar the present suit, we wish it to be clearly understood that we do not arrive ac that conclusion on the strength of these rulings which seem to be hardly reconcilable with the Full Bench decisions in Muhammad Sadiq v. Laute Ram [1901] 23 All. 291 and Bijai Misir v. Kali Prasad Misir [1917] 39 All. 469. Our decision is supported by two other rulings cited by the plaintiff, to which we shall presently refer. The respondent's learned Counsel contends for the proposition that if the plaintiff could have claimed a larger share under Section 111 and failed to do so, then she is debarred from raising the question in the present suit. He relies strongly upon the Full Bench decision in Muhammad Saddiq v. Laute Ram [1901] 23 All. 291. This is undoubtedly the most authoritative Full Bench decision on this point as it was passed by five Judges unanimously. The decision turns upon the construction of the corresponding provisions of the North. Western Provinces Land Revenue Act 187-3 which laid down that 'no civil Court shall exercise jurisdiction over any of the following matters' one of the mat-tets mentioned in Clause (f) being;

the distribution of land or allotment of the revenue of a mahal by partition.

14. The language of Section 233-K of the present Land Revenue Act is even wider, and we think that any civil suit which would be barred under the Act of 187 3 would also be barred under the present Act of 1901. In that case it was held that if a party to a partition desires to raise any question of title affecting the partition, he must do so according to the procedure laid down in Sections 112 to 115 of the Act. If a question of title affecting the partition which might have been raised under Sections 112 and 113 of the Act during the partition proceedings is not so raised and the partition is completed, Section 241(f) bars the parties to the partition from raising subsequently in a civil, Court any such question of title. In our opinion the Full Bench decision does not go to the length of laying down the proposition for which the respondent contends. The decision does not refer to every question of title which might be raised by a party to a partition but only to a question of title affecting the partition. We consider this qualification very important. In the case before the Full Bench, the question of title which might have been raised did affect the partition, because there was a conflict of interest between the parties to whom separate mahals were being allotted in the partition proceedings.

15. Supposing A, B and C are cosharers in a mahal, their respective shares being recorded as 8 annas, 5 annas and 3 annas. Supposing A applies for separation of his share into a separate mahal. If B and G do not wish for any partition inter se and prefer to remain joint in one mahal, then the Revenue Court would only be concerned in dividing the original mahal into two shares of equal value. If after the partition G claims as against B a declaration that his share in the new mahal which has been allotted to them jointly is not 3/8ths but 1/2, then we understand that his suit would not be barred, on the authority of the Full Bench ruling, because the question of title would not have affected the partition even if it had been raised during the partition proceedings. If on the other hand B and C applied to have their property divided inter se, in accordance with their recorded shares, so that the Revenue Court formed three mahals proportionate to 8 annas, 5 annas and 3 annas respectively. Then if after the confirmation of the partition C claims a 1 anna share in B's mahal, such suit would, in accordance with the Full Bench ruling, be barred, because it is a question of title which might have been raised during the partition proceedings and which would have affected the partition. If C had raised the question during the partition proceedings and had established his claim, then the Revenue Court instead of allotting be B and C unequal mahals proportionate to 5 annas and 3 annas respectively, would have allotted two equal mahals proportionate to 4 annas each. Interpreting the Full Bench ruling in this light, we find that it is no authority for the contention that the plaintiff's suit is barred by Section 233-K, because the question of title, though it might have been raised under Section 111, did not affect the partition.

16. Not a single ruling has been cited in which it has been held that Section 233-K bars a suit raising a question of title between joint cosharers in a unit formed by partition, because such questions might have been raised in the partition proceedings. On the other hand, the plaintiff's learned advocate has cited clear authority for the view that a suit in such circumstances is not barred, namely Lal Bihari v. Parkali Kunwar A.I.R. 1920 All. 21, which was followed by a single Judge of the Chief Court in Oudh in Mt. Phuljhari v. Har Prasad A.I.R. 1926 Oudh. 338. These rulings are directly in point and the former is of special importance, as the two learned Judges who decided that case were parties to the Full Bench decision in Muhammad Sadiq Laute Ram [1901] 23 All. 291 and must have found that decision distinguishable upon the facts. We agree with them and follow their ruling.

17. We find therefore that the plaintiff's suit is not barred by Section 233-K. This finding relates to the plaintiff's share inherited from her mother before the date of the partition. The trial Court seems to have made a mistake in dismissing the plaintiff's claim to her share in the estate of Azmat Ullah who died after the partition. Her claim in respect of her share in Azmat Ullah's estate could not possibly be barred either by Section 233-K or the rule of res judicata. The plaintiff's appeal on this ground has not been contested. The last point is whether the trial Court is right in fixing the dower debt of Bibi Kaniz Fatima at Rs. 12,000 instead of Rs. 1,000. (Here the judgment considered evidence and finding that the dower debt was proved to be Rs. 12,000). The result is that the defendants' appeal succeeds to this extent that we set aside the decree for 40 out of 280 sihams in Bil-auna (relief A) and set aside the decree for Rs. 172, mesne profits, in respect of that share in Bilauna. The plaintiff's appeal succeeds to this extent: that we decree the plaintiff's claim in reliefs A and B in respect of Hamirpur also with pendente lite and future mesne profits to be determined hereafter by the Court below. In other respects both appeals are dismissed. As each party has partly succeeded and partly failed, we make no order regarding costs.


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