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Mt. Nawasi Begam and anr. Vs. Mt. Dilfaroz Begam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All39
AppellantMt. Nawasi Begam and anr.
RespondentMt. Dilfaroz Begam
Excerpt:
.....so they remained out of possession. in 1915 the plaintiffs, who had sued in 1902, again brought a suit for possession alleging that in the meantime the dower-debt had been satisfied and that they were entitled to possession without payment of anything. none of those points were in issue in the suit of 1915. also it was held that the plaintiff's failure to pay the sum necessary for recovering possession under the decree in the suit of 1902 did not extinguish their right to recover possession at a future date by a separate suit. 50,000. it would appear therefore that some discretion is allowed to the courts in determining whether interest should be allowed, and the disproportion between the value of the property and the dower is a good ground for holding that interest cannot equitably be..........possession of the said property in 1896 on condition of paying a certain sum. in the case of maina bibi a suit was brought against the widow, who was in possession in lieu of dower, by some of the heirs of her husband in 1902 and was decreed on condition of payment of a sum of rs. 25,000 within a certain time; in default of which the suit was to stand dismissed with costs. the sum was never paid. in 1915 the plaintiffs, who had sued in 1902, again brought a suit for possession alleging that in the meantime the dower-debt had been satisfied and that they were entitled to possession without payment of anything. it was held that the suit would not be barred by the principle of res judicata as the it was only for adjustment of accounts since the decree in the suit of 1902. the points in.....
Judgment:

King, J.

1. This appeal arises out of a suit for possession of certain immovable property together with mesne profits. The property belonged to one Afzal Shah, who died on the 9th of October 1881, leaving as his heirs a nephew Mansur Shah and a widow Zamani Begam. The former was entitled to three-quarters of the property and the latter to one-quarter. The widow retained, possession of the whole property in lieu of her dower-debt. The nephew assigned half of his share to, Muhammad Zaman Khan and Usman Shah, and then, together with his transferees, instituted a suit against Zamani Begam on the 20th of April 1892, for possession of his share. Zamani Begam asserted her right to retain possession until her dower-debt had been discharged. The amount of the dower-debt and of the profits received by the widow were disputed, but by the decree of the High Court, dated the 2nd of June 1896, it was finally decided that the amount of dower-debt was Rs. 50,000, and after making allowance for the profit received by Zamani Begam from the estate, and for the debts which she discharged, the plaintiff's got a decree for possession of the share, conditional on the payment of Rs. 35,223, minus the profits accruing from the date of the decree of the District Judge up to the date of delivery of possession. The plaintiff failed to pay anything and so they remained out of possession.

2. This suit was instituted on the 18th of January 1919, by Dilfaroz Begam, a daughter of Mansur Shah, and one of his heirs. The Defendants 3-9 are also heirs of Mansur Shah and have been impleaded as pro forma defendants since they have not joined in the suit. The plaintiff claims a 7/72 share of the property as an heir of Mansur Shah. The Defendants 1 and 2 are the representatives of Zamani Begam and are in possession of the property. The Defendants10-29 are the representatives of the transferees, Muhammad Zaman Khan and Usman Shah. The suit was resisted by the Defendants 1 and 2 on a number of pleas, which were repelled by the trial Court. In the result the plaintiff's claim was decreed subject to the payment of Rs. 107 minus the profit accruing from the plaintiff's share in the property between the 30th of June 1921, up to the date of recovery of possession. The Defendants 1 and 2 have raised three points before us in appeal. Firstly, it is argued that the suit was barred by the rule of res judicata. The contention is that the decree obtained by the plaintiff's predecessor-in-interest in 1896 bars the present suit, and the decree itself is no longer enforceable.

3. The Court below, relying mainly upon the decision of this High Court, in the case of Maina Bibi v. Wasi Ahmad [1919] 41 All. 538, held that the present suit was not barred by reason of the fact that the plaintiff's predecessor-in-interest had obtained a decree for possession of the said property in 1896 on condition of paying a certain sum. In the case of Maina Bibi a suit was brought against the widow, who was in possession in lieu of dower, by some of the heirs of her husband in 1902 and was decreed on condition of payment of a sum of Rs. 25,000 within a certain time; in default of which the suit was to stand dismissed with costs. The sum was never paid. In 1915 the plaintiffs, who had sued in 1902, again brought a suit for possession alleging that in the meantime the dower-debt had been satisfied and that they were entitled to possession without payment of anything. It was held that the suit would not be barred by the principle of res judicata as the it was only for adjustment of accounts since the decree in the suit of 1902. The points in issue in the suit of 1902 were he amount of dower, the rate of interest and the sum payable by the plaintiffs before obtaining possession, up to the date of the decree. None of those points were in issue in the suit of 1915. Also it was held that the plaintiff's failure to pay the sum necessary for recovering possession under the decree in the suit of 1902 did not extinguish their right to recover possession at a future date by a separate suit. The decision of this High Court in Maina Bibi's case [1919] 41 All. 538 was upheld on appeal by their Lordships of the Privy Council, whose judgment is reported in Maina Bibi v. Vakil Ahmad 47 All. 250. Their Lordships' remark (at page 260):

The suit out of which this appeal arises only asks for adjudication as to the account since 1908. The right to get immediate possession of land at the date when a suit to recover it is, in fact, instituted, is a wholly different thing, a wholly different res, from the right to recover it, at some future time and possibly under wholly altered circumstances. The non-fulfillment of the condition attached to the decree in the earlier suit only extinguished the right to recover immediate possession as actually claimed, and could not and did not, in their Lordships' opinion, extinguish the right of the plaintiffs to the inheritance of, or their rights to recover possession of, the lands at some future time.

4. These observations apply to the present case, and in the face of this authoritative ruling it is impossible to hold that the suit is barred by the rule of res judicata, or that it is not maintainable.

5. The next question for our decision is whether the representatives of the widow are entitled to interest upon their dower-debt. The amount of the dower-debt was fixed by the previous decree of the High Court in 1896 as Rs. 35,223. The defendants claim that they are entitled to charge interest upon this sum, and rely upon the case of Maina Bibi [1919] 41 All. 538, which has already been referred to, and the case of Hamira Bibi v. Zubaida Bibi [1916] 38 All. 581. In the case of Maina Bibi [1919] 41 All. 538 interest was allowed at the rate of 3 per cent, but it was not definitely laid down that a Muhammadan widow can in all cases claim interest on her dower as a matter of right. In the case of Hamira Bibi v. Zubaida Bibi [1911] 33 All, 182 Mr. Justice Karamat Husain went so far as to lay down (at page 193) that:

a Mahomedan widow in possession of her husband's estate in lieu of her dower could claim interest on it, and that the Courts in British India should not refuse to grant her a decree for it on the ground that the. Mahomedan law prohibits usury.

6. This seems to indicate that interest could be claimed as a matter of right. But when this case came before the Privy Council in appeal (reported in Hamira Bibi v. Zubaida Bibi [1916] 38 All. 581 their Lordships did not lay down any rule of law to, the effect that the widow was entitled to claim interest on dower debt in all cases, but held that she was entitled to interest on certain equitable considerations.

7. The Calcutta High Court in the case of Bakreedan v. Ummatul Fatma [1906] 3 C.L.J. 541 took the view that where the dower is fixed at a sum very much larger than the value of the entire property belonging to the husband, the widow is not entitled to claim interest on the dower. If that principle is applied to the present case, the defendant would not be entitled to claim interest since the value of the property left by the husband is much less than the dower. The value of the property would not be more than Rs. 18,000, whereas the dower is Rs. 50,000. It would appear therefore that some discretion is allowed to the Courts in determining whether interest should be allowed, and the disproportion between the value of the property and the dower is a good ground for holding that interest cannot equitably be allowed. In the present case we are decidedly of opinion that no interest should be allowed.

8. But, apart from equitable considerations, we hold that the claim to interest is barred by the principle of res judicata. In the earlier litigation the widow claimed no interest. She certainly could and should have claimed interest if she had not deliberately omitted such claim. So the decree in the former suit must be taken as having decided that no interest should be allowed. The widow's representatives are precluded from claiming interest in the present suit.

9. Lastly, the appellant claims that 10 per cent, should be allowed for the costs of collection. It appears from the Commissioner's report that 7 per cent, on collections was allowed on account of ordinary village expenses and expenses of settlement and of suits but nothing was allowed on account of collection charges. The Commissioner did not allow anything on account of collection charges because no instructions to this effect had been given to him. The trial Court allowed 2& frac12; per cent, extra on collections so as to raise the total allowance to 10 per cent. But the appellant claims that he is entitled to 7& frac12; per cent, on account of village expenses, etc., in addition to 10 per cent, on account of collection charges. In our opinion the allowance of 10 per cent, for collections is reasonable and it is usually given in cases of this sort. It has been contended for the respondent that the defendant in paragraph 23 of the written statement did not claim a deduction of more than 10 per cent, both on account of village expenses and collection charges, and this is exactly what has been allowed. It appears, however, that the 10 per cent, which was asked for was on the gross rental and not on the actual collections, so the defendant has not received the full amount of allowance which he claims. We hold that the defendant should be allowed 10 per cent, on the actual collections. It has been agreed between the parties that on this finding the additional sum payable to the defendants comes to Rs. 2,147. We therefore add this to the amount which the plaintiff has to pay to the Defendants 1 and 2 before taking possession. We therefore alter the decree of the Court below to this extent only: that we substitute the sum of Rs. 2,254 instead of Rs. 107. In all other respects the decree of the trial Court is upheld. As the respondents have succeeded on the principal issues we allow two-thirds of the respondents' costs and one-third of the appellants' costs in this Court together, in each case. We do not disturb the order of the lower Court as to costs.


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