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Khamrunnisa Alias Bibijanbi and ors. Vs. Shah Hazarath Saib - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1911)21MLJ958
AppellantKhamrunnisa Alias Bibijanbi and ors.
RespondentShah Hazarath Saib
Cases ReferredMubarak Karim v. Nissa I.L.R.
Excerpt:
- - according to the terms of the document doolhum bibi, the wife, was to enjoy the property till the end of her life, paying the assessment thereon but was not entitled to alienate it......shah, nurullah, is entitled to succeed to certain properties as heir oh the death of doolhum bibi, shah nurullah's wife, in whose favour he executed the instrument which is marked as exhibit i. according to the terms of the document doolhum bibi, the wife, was to enjoy the property till the end of her life, paying the assessment thereon but was not entitled to alienate it. it was executed in consideration of dower due to her. on her death the property was to go to the heirs of shah nurullah. it does not purport to be a deed of wife. the defendants, the daughter's daughters of doolhum bibi, who claim under a deed of gift executed by her, contend that she acquired an absolute right to the properties transferred to her under exhibit 7. the subordinate judge decided the question with.....
Judgment:

1. The question in this case is whether the plaintiff, the son of a Muhammadan named Shah, Nurullah, is entitled to succeed to certain properties as heir OH the death of Doolhum Bibi, Shah Nurullah's wife, in whose favour he executed the instrument which is marked as Exhibit I. According to the terms of the document Doolhum Bibi, the wife, was to enjoy the property till the end of her life, paying the assessment thereon but was not entitled to alienate it. It was executed in consideration of dower due to her. On her death the property was to go to the heirs of Shah Nurullah. It does not purport to be a deed of wife. The defendants, the daughter's daughters of Doolhum Bibi, who claim under a deed of gift executed by her, contend that she acquired an absolute right to the properties transferred to her under Exhibit 7. The Subordinate Judge decided the question with reference to the law of gifts governing Mahotnedans. He was of opinion that it was cot shown that according to the Shafei School Mahomedan Law, by which admittedly the parties1 were governed, a gift for life should not be made. Before us the appellants' counsel contends that a life estate given to a Mahomedan under a deed of gift would enure as an absolute estate according to the Sbafei School of Law. A passage from Mr. Justice Abdur Rahim's Law Lectures on Mukammadan Jurisprudent was relied on in support of the contention. We, however, consider it unnecessary to decide this question because, on the correct construction of Exhibit I, we are of opinion that it must be regarded not as a gift but as a transfer of property for a term for consideration. It has been decided both by this Court and by other High Courts that a transfer of property to a Mahomedan lady for a term by her husband in consideration of dower must be regarded as a sale - see Sahiba Begum v. G. Atchamma (1868) 4 M.H.C.R. 115, Ghulam Mustafa v. Hurmat I.L.R. (1880) A. 854, Abbas Ali Shaikdar v. Karim Baksh Shaikdar (1908) 13 C.W.N. 160 and also BAILLIE'S Digest, p. 122. Such a transfer was regarded as unimpeachable in Mubarak Karim v. Nissa I.L.R. (1910) A. 121. There is nothing in the Mahomedan Law, so far as we are aware, against the legality of such a transfer. On this ground we think the decree of the lower appellate court is right and dismiss the second appeal with costs.


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