HUSSAIN AND Vs. RAHIM KHAN

JUDGEMENT

(1.) The plaintiff is the brother and defendant 1 is the widow of one Dilawar Khan to whom the plaint schedule house belonged. The plaintiff sued defendant 1, and defendant 2 who has purchased it from her, for partition and possession of his 3/4th share in it. Defendant 1 pleaded that her husband had settled 39 tolas of gold on her as her mahar or dower; she had borrowed and spent some monies for meeting the medical charges and funeral expenses of the deceased. She had also paid some arrears of Municipal assessment due on the property. In order to pay off those debts and for her maintenance she had sold and conveyed all her rights in the suit property including her right to retain possession till she was paid off, to defendant 2 for Rs. 1000/- and delivered over possession of the same to him. She, and therefore, her alienee defendant 2 were entitled to retain possession till the plaintiff was paid off his proportionate share of the dower debt. Defendant 2 also raised the same defence.

(2.) The plaintiff denied the amount of the mahar as well as the other items claimed by defendant 1.

(3.) Both the Courts below have however found that the mahar fixed was 39 tolas of gold and that it has remained unpaid. That finding is binding on me in second appeal. The learned Munsiff fixed the amounts due to defendant 2 for medical charges and funeral expenses at Rs. 150/- and Rs. 250/- respectively. The Subordinate Judge has fixed them at Rs, 507- each and has made the same a first charge on the suit property. The amounts fixed by the learned Subordinate Judge appear to be more probable considering the status of the parties and the paucity of the evidence and I see no reason to differ from his finding in this matter.