MUSAMMAT MAHTAB-UN-NISSA Vs. RIFAQAT-ULLAH

JUDGEMENT

(1.) This is an execution first appeal arising from an objection raised to the attachment of certain property.

(2.) The respondent is a purchaser of a decree for dower which had been passed in favour of Saiyid-un-nissa deceased against Ali Hasan her husband. Ali Hasan died during the execution proceedings and Saiyid-un-nissa brought on the record the present appellant Musammat Mahtab-un-nissa and her daughters treating them as the heirs of the deceased Ali Aasan. The first application for execution which was made against these persons was ultimately struck off. A subsequent application was put in and these persons were again treated as the heirs of Ali Hasan deceased. Musammat Mahtab-un-nissa put in an objection that part of the properly sought to be attached belonged to her exclusively as it had been transferred to her under a registered sale deed executed on the 9th of April 1913 by Ali Hasan in her favour for a sum of Ks, 7,000. The decree-holder "by way of reply put in the plea inter alia, that the marriage of Musammat Mahtab-un-nissa with Ali Hasan was illegal inasmuch as she was a Thakur woman and the wife of a living husband, that she had been kidnapped by Ali Hasan unlawfully and without the consent of her husband and could, therefore, not have been lawfully married to the deceased. It was also pleaded that the sale deed in question was a fictitious and collusive transaction executed in order to defeat and delay the execution of the decree.

(3.) Evidence was recorded. on both the points in question, but the learned Subordinate Judge has unfortunately not gone into the question of the collusive and fictitious nature of the sale transaction but has disallowed the objections on the facts admitted or said to have been proved that the marriage of Musammat Mahtab-un-nissa could not have been a legal and valid one.