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Ahmad Bakhsh Vs. Saira Bibi - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.3
AppellantAhmad Bakhsh
RespondentSaira Bibi
Cases ReferredAli Baksh v. Ala Dad Khan
Excerpt:
.....say, from the widow of sheikh najibuddin, the right to peaceful possession in lieu of the unpaid dower-debt previously enjoyed by the widow herself so that the plaintiff was not entitled to dispossess him without first paying her rateable share of the aforesaid debt he then proceeded to come to a finding on such evidence as had been produced before him as to the amount of the dower debt which he held to be us. the present case seems to me a peculiarly strong one, because the defendant had actually proved a part of the case set up by him. he failed to establish this, but satisfied the court of first instance that there had been an arrangement between the mother and the daughter which went to this extent that the mother was permitted to retain possession not only of the 1/8th share of..........her father's estate in favour of her mother, the consideration being the claim of the latter for dower-debt.' this being the case, the defendant further claimed that upon the death of the plaintiff's' mother, he succeeded lawfully by inheritance to the 5/16ths share in the estate left by sheikh najibuddin which is actually in his possession. the other 5/16ths share then passed by inheritance to the plaintiff, that is to say, by inheritance from her mother. but the case set up by the defendant was that she had no title whatsoever to dispossess him from any portion of the property actually in his possession. the case went to trial upon issues framed in accordance with these pleadings, but the court of first instance came to the conclusion that the defendant only partially proved his.....
Judgment:

Piggott, J.

1. The plaintiff in this case claims certain immoveable property as heir to her father and to her mother. For a reason which is sufficiently obvious the plaint is carefully silent on the question of the actual division of inheritance upon the father's death. But the case for the plaintiff may be put as follows : Her father, Sheikh Najibuddin, died leaving him surviving a daughter, a widow and a brother. The brother took possession of a 6/16ths share of the estate and has continued in possession since. The mother died shortly afterwards and her surviving heirs were her daughter (the plaintiff) and her father, who is the defendant in the present suit. What actually followed upon the widow's death was that the plaintiff and the defendant each obtained possession of one half of the estate of Najibuddin after excluding the 6/16ths share in the possession of his surviving brother, that is to say, they took possession of 5/16ths of the estate each. Now the plaintiff's case is that, when her father died, the devolution of the estate according to the rules of Muhammadan Law was 6/16ths to the brother, 2/16ths to the widow and 8/16ths to the plaintiff, the daughter of the deceased. Then, when the widow died, her share of 2/16ths should be apportioned equally between the plaintiff and the defendant. Consequently, the plaintiff's case is that the defendant is in wrongful possession of the immoveable property left by his late son-in-law to the extent of 4/16ths, or one-quarter of the whole. To this the defendant replied by calling attention to the question deliberately passed over in the plaint, namely, the actual devolution of the inheritance on the death of Sheikh Najibuddin. He said that the widow Musammat Naziran actually took possession of 10/16ths of the estate, and the daughter (the present plaintiff) took nothing at all. He further pleaded that this took place in virtue of a transaction which constituted a transfer by the plaintiff of her share in her father's estate in favour of her mother, the consideration being the claim of the latter for dower-debt.' This being the case, the defendant further claimed that upon the death of the plaintiff's' mother, he succeeded lawfully by inheritance to the 5/16ths share in the estate left by Sheikh Najibuddin which is actually in his possession. The other 5/16ths share then passed by inheritance to the plaintiff, that is to say, by inheritance from her mother. But the case set up by the defendant was that she had no title whatsoever to dispossess him from any portion of the property actually in his possession. The case went to trial upon issues framed in accordance with these pleadings, but the Court of first instance came to the conclusion that the defendant only partially proved his case. The finding of the learned Munsif was that, upon the death of Najibuddin, nothing took place which could amount in law to a transfer by the plaintiff of her rights as heir of her father, but that the plaintiff did consent to her mother's taking possession of the entire 10/16ths share, that is to say, of the whole estate excluding the portion which devolved upon the brother of the deceased, and continuing in possession of the same in lieu of her dower-debt. Having arrived at this finding of fact, the Court of first instance proceeded to apply the law as laid down by a Bench of this Court in Ali Baksh v. Ala Dad Khan 7 A.L.J. 567 at. p. 576 : 6 Ind. Cas. 376 : 32 A. 551 and held that the defendant had inherited from his daughter, that is to say, from the widow of Sheikh Najibuddin, the right to peaceful possession in lieu of the unpaid dower-debt previously enjoyed by the widow herself so that the plaintiff was not entitled to dispossess him without first paying her rateable share of the aforesaid debt He then proceeded to come to a finding on such evidence as had been produced before him as to the amount of the dower debt which he held to be Us. 5,000. Without pausing to take into consideration any question as to the liability of Sheikh Najibuddin's brother in this matter, he went on to hold the plaintiff liable for the whole of the debt thus ascertained then, holding further that one-half of this liability had been extinguished by the fact that the plaintiff had inherited her mother's claim to this extent; he finally passed a decree in plaintiff's favour for recovery of the property claimed, subject to a previous payment by the plaintiff to the defendant of Rs. 2,500. When the case was taken by the plaintiff to the Court of the District Judge in first appeal, the learned District Judge, beyond expressing a doubt as to the trustworthiness of the evidence which had been accepted by the Court below as proving that the plaintiff's mother was in possession in lieu of her claim for dower-debt, recorded no finding on any of the issues of law or of fact which had determined the decision of the first Court. What he held was that these findings were not open to the Court on the pleadings of the parties and in view of the issues on which the parties went to trial. On full consideration, I am not able to accept this position. There have been analogous cases in which a defendant has resisted a claim to the recovery of immoveable property in his possession on the ground of some alleged transfer in his favour and the Courts have found against the validity of such transfer in which it has, nevertheless, been held that upon the evidence it was just and proper to put the plaintiff to terms and to decree the suit for recovery of possession subject to such payment as appeared to the Court necessary in order to do justice to the defendant. The present case seems to me a peculiarly strong one, because the defendant had actually proved a part of the case set up by him. He undertook to prove that the plaintiff had bargained away her right of inheritance in respect of her father's property in return for the extinguishing of her mother's claim for dower-debt. He failed to establish this, but satisfied the Court of first instance that there had been an arrangement between the mother and the daughter which went to this extent that the mother was permitted to retain possession not only of the 1/8th share of the father's estate which passed to her under the Muhammadan Law, but of the one-half share which devolved on her daughter, and that her possession in respect of this half share was to be in lieu of her claim for dower-debt and to continue until that claim was satisfied. I am of opinion that although the defendant's pleadings might have been more carefully drafted, such a finding as this was fairly open to the learned Munsif on the pleadings as they stood, and that if he arrived at this conclusion it was his duty to give proper effect to it in his decree. If the lower Appellate Court was of opinion that the plaintiff had been prejudiced by the defective pleadings, and that there had been a finding as to the amount of the dower-debt upon insufficient evidence and upon evidence which the plaintiff had been allowed no reasonable opportunity of meeting, it would have been proper to remit an issue on this point. I have also suggested a difficulty as to the position taken up by the learned Munsif in saddling the plaintiff with the liability for the entire amount of dower-debt. It seems to me also that upon pleadings properly framed a question might have been raised as to partial satisfaction of the dower-debt out of the usufruct of the property by the time of the widow's death or even up to the time of the institution of the suit. I mention these matters which may require further consideration; but, as the case at present stands, it seems to me that the lower Appellate Court has based its decision on a preliminary point and that I am unable to accept the decision on that point as correct. I accordingly set aside the decree of the lower Appellate Court and remand; the case under the provisions of Order XLI, Rule 23 of the Code of Civil Procedure for a decision on the merits. Costs will abide the event.


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