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Mahfuz Ali Khan Vs. Seth Radha Kishen - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad
Decided On
Reported inAIR1925All297; 85Ind.Cas.477
AppellantMahfuz Ali Khan
RespondentSeth Radha Kishen
Excerpt:
- - but that, if their claims were satisfied, the property will be wholly insufficient to satisfy their claims. they, therefore, decided that the best thing to do was to agree that the property, should from the date of the award be construed the property of mashuq ali and musammat ijari......was the owner of certain zamindary property. he married first musammat sharifan and then musammat ijari. musammat sharifan died leaving her surviving a son, mashuq ali. on behalf of mashuq ali, who is a minor, a demand was made for the dower debt due to his mother from mahfuz ali khan. as this dower debt was far more than the property was worth, it appears that musammat ijari also put in a claim for dower on her own account. the matter was referred to arbitration and the arbitrators after reciting the circumstances under which they were called upon to make their award, came to the conclusion that both mashuq ali and musammat ijari were entitled to dower; but that, if their claims were satisfied, the property will be wholly insufficient to satisfy their claims. they, therefore, decided.....
Judgment:

Ryves, J.

1. The facts that give rise to this appeal are as follows:

One Mahfuz Ali Khan was the owner of certain zamindary property. He married first Musammat Sharifan and then Musammat Ijari. Musammat Sharifan died leaving her surviving a son, Mashuq Ali. On behalf of Mashuq Ali, who is a minor, a demand was made for the dower debt due to his mother from Mahfuz Ali Khan. As this dower debt was far more than the property was worth, it appears that Musammat Ijari also put in a claim for dower on her own account. The matter was referred to arbitration and the arbitrators after reciting the circumstances under which they were called upon to make their award, came to the conclusion that both Mashuq Ali and Musammat Ijari were entitled to dower; but that, if their claims were satisfied, the property will be wholly insufficient to satisfy their claims. They, therefore, decided that the best thing to do was to agree that the property, should from the date of the award be construed the property of Mashuq Ali and Musammat Ijari. At the same time Mahfuz Ali Khan was allowed to remain in possession of the property and to manage it and to collect the income. Out of this income he was to pay Rs. 150 a year in cash and nine maunds of wheat to Mashuq Ali and Rs. 300 and eighteen maunds annually to Musammat Ijari, the balance of the income he was to retain himself and and it is said that, out of it, he could pay his debts. This arrangement is described in the award as having been come to to enable Mahfuz AliKhan to maintain himself. It appears that this arrangement was carried out. Although Mahfuz Ali Khan remained in possession of the property, he was not allowed to charge it for the payment of any debts and was forbidden to transfer it by sale or mortgage or otherwise. Similarly, Mashuq Ali and Musammat Ijari had no right to deal with the property as owners during his life-time except, of course, with his express consent. In 1922, Seth Radha Kishen obtained a simple money decree against Mahfuz Ali Khan for a debt incurred in 1919 and in execution of his decree sought to attach and sell Mahfuz Ali Khan's right of possession as a life tenant in the property in suit, which was described as having been acquired by him under the award above-mentioned. Mahfuz Ali Khan objected on the ground that what he had acquired under the award was a right to future maintenance and that as such it was not liable to attachment under Section 60(n) of the Code of Civil Procedure. Both the courts have overruled this plea and he comes here in second appeal.

2. It is argued on his behalf that under this arrangement he ceased to be owner of the property and became entitled to the balance of the income for his maintenance and thus came within Clause (n) of Section 60. On the other hand, it is argued that he remained a restricted owner of the property and was entitled to a great deal more than maintenance, that, subject to the payment of the amounts mentioned in the award, he was entitled to possession for his life and could dispose of the balance of the profits in any way he pleased, and that this was a great deal more than a right of future maintenance as contemplated in the section. The words in the section are a right of future maintenance'. It seems to us that construing the award as a whole, what was reserved to Mahfuz Ali Khan, was certainly something more than a right of future maintenance, and, that being so, we think that the decision arrived at by the court below was correct. We accordingly dismiss the appeal with costs including in this Court fees on the higher scale.


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