1. This is a suit for recovery of possession of a holding of 6 bighas which originally belonged to one Enayatulla. Enayatulla sold the land in 1301 be his wife Sakhijan in consideration of what was due to her as her dower. He subsequently sold it again to the defendant No. 2. Throe days after the gale to defendant No. 2, Sakhijan executed a registered kabuliat in favour of the landlords in respect of the land, Subsequently, the landlords brought a suit for rent against Sakhijan and obtained a decree and in execution the plaintiff purchased the holding. The defendants are in possession of the holding and the plaintiff accordingly brought this suit which has been decreed by the Courts below.
2. The defendant No. 2 appeals to this Court.
3. The principal point taken on behalf of the appellant is that the conveyance to Sakhijan is invalid under the Muhammadan Law. This point was not taken in the written statement or in the grounds of appeal in the Court below and can only be considered in this Court, on appeal, as a pure question of law.
4. I have, therefore, to see what are the findings of fact in the Court below. They are to the effect that this was a perfectly honest sale executed in good faith for substantial consideration. The Courts below have apparently believed that a sum of money was due to Sakhijan on account of her dower and that Enayatulla honestly sold the property to her in discharge of that dower and she accepted it in lieu of what was due to her. The terms of the hobala are that the property shall be transferred to Sakhijan and that the rights of Enayatulla in it shall come to an end, but there is a condition that during the life-time of Enayatulla the land shall remain in his khas possession and that Sakhijan shall not be entitled to alienate the property. As Enayatulla and Sakhijan were husband and wife, it is likely enough that any transfer of the ownership of the land between the two would not have much practical effect in the manner in which the property was enjoyed. The learned Pleader, who appears for the appellant, has not shown me any authority under the Muhammadan Law which would justify me in holding that a stipulation of this kind would render the whole sale invalid. It is possible enough that the stipulation itself was invalid; but it has not been shown that the whole arrangement which the parties came to with apparent willingness on both sides is void under the Muhammadan Law; on the other hand, certain cases have been cited to show that such a transaction is allowed. I may specially refer to the case of Muhammad Esuph Ravutan v. Pattamsa Ammal 23 M. 70 where the learned Judges remark: 'In a case where, for example, a husband made a gift of the house, in which he and his wife were living, to her and after the gift they both continued to reside in the building, it might be held that the gift was accompanied with such change of possession as was consistent with the continuance of the relation of husband and wife between the donor and the donee.' In such a case, the fact that the parties--husband and wife--continued in possession of the property in much the same way as before, would not, in any way, invalidate the transfer. The condition against alienation seems to me to stand on precisely the same footing. Probably, the husband and wife had come to an agreement, that the real ownership henceforth would be in the wife but that the property should continue to be enjoyed in the same manner during the life-time of the husband. Possibly, the stipulation may not be valid, but I see no reason for holding that the existence of the stipulation invalidates the original transfer.
5. The observation of the learned Subordinate Judge that the decree for rent, in execution of which the property was purchased, was obtained by the whole body of landlords, has been attacked, It is argued that this is based on a mistaken impression of the learned Subordinate Judge of the effect of the deposition of a witness named Nitai, That, however, is not a point that can be taken in second appeal.
6. The appeal is dismissed with costs.