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Mumtaz-ud-dIn Vs. Musammat Saidunnissa - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.687
AppellantMumtaz-ud-din
RespondentMusammat Saidunnissa
Cases ReferredRamzan Ali Khan v. Asghari Begum
Excerpt:
muhammadan law - dower--widow in possession of property left by her husband--her title to retain possession until dower is paid. - - 466. but it seems to me that the subordinate judge was clearly right in holding that the respondent is entitled to retain possession of the property until her dower-debt is paid......her defence was that the property had been transferred to her by masitullah in lieu of her dower-debt. the munsif held that the ' alleged transfer of the property amounted to a sale and inasmuch as the value of the property exceeds rs. 100. the transfer could not be effected except by a registered instrument. accordingly, he decreed the claim. the present respondent appealed to the lower appellate court challenging the decision of the munsif with regard to the validity of the transfer and pleading also that the appellant was not entitled to possession of his share in the estate of masitullah until the dower- debt due to the respondent was paid. the subordinate judge held that the transfer was valid and that even if it was invalid, the respondent was in possession of the property.....
Judgment:

Chamier, J.

1. This was a suit by the appellant for recovery of his share in the property of one Masitullah Khan who died in January 1902. One of the defendants to the suit was the respondent Saidunnisa. Her defence was that the property had been transferred to her by Masitullah in lieu of her dower-debt. The Munsif held that the ' alleged transfer of the property amounted to a sale and inasmuch as the value of the property exceeds Rs. 100. the transfer could not be effected except by a registered instrument. Accordingly, he decreed the claim. The present respondent appealed to the lower Appellate Court challenging the decision of the Munsif with regard to the validity of the transfer and pleading also that the appellant was not entitled to possession of his share in the estate of Masitullah until the dower- debt due to the respondent was paid. The Subordinate Judge held that the transfer was valid and that even if it was invalid, the respondent was in possession of the property and was entitled to retain it until her dower debt was paid. On the question of the validity of the transfer the Subordinate Judge has referred to a decision of this Court in Ram Bakhsh v. Mughlani Khanam 26 A. 266 : A.W.N. (1904) 8. If it were necessary in the present appeal to decide the question of the validity of the transfer to the respondent, I should have referred this appeal to a Bench of two Judges, for I doubt whether this Court intended to hold in the case which I have mentioned that a transfer of the kind now in question is not governed by Section 54 of the Transfer of Property Act. The Calcutta High Court has held that such a transfer is governed by Section 54 of the Transfer of Property Act see Abbas Ali Shikdar v. Karim Baksh Shikdar 13 C.W.N. 160 : 4 Ind. Cas. 466. But it seems to me that the Subordinate Judge was clearly right in holding that the respondent is entitled to retain possession of the property until her dower-debt is paid. She got into possession of the property peacefully and quietly and it must be taken that her dower-debt has not been paid if the transfer of the property to her is held to be invalid. It seems to me that the decisions of this Court in Ali Baksh v. Allah Dad Khan 7 A.L.J. 567 : 6 Ind. Cas. 376 : 32 A. 551 and in Ramzan Ali Khan v. Asghari Begum 7 A.L.J. 614 : 6 Ind. Cas. 405 : 32 A. 563 show that the respondent is entitled, in the circumstances of the present case, to retain possession of the property until her dower-debt is paid. I, therefore, dismiss this appeal with costs.

2. After I had delivered judgment, Mr. Muhammad Ishaq suggested that I should send the case back in order that the amount of dower may be determined. I declined to recall my judgment. The suggestion now made should have been made in the lower Appellate Court or at the latest daring the ' arguments in this Court. If the appellant is really anxious to pay off the dower-debt, which I doubt, it would appear that not only must the amount of the dower-debt be determined but the amount of rents and profits received by the respondent since she has been in possession. In the circumstances, the appellant should be left to bring another Suit.


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