COOVERBAI NASARWANJI BULSARA Vs. HAYATBI BUDHANBHAI

JUDGEMENT

(1.) THIS appeal arises from a decree of the First Class Subordinate Judge of Nasik in a suit to enforce what is described as the right of the heirs of a Mohammedan widow to retain possession of her husband's estate in lieu of her unpaid dower. The suit has been instituted by the assignee of some of the heirs of the father of the deceased widow. The facts, which are material for the present purpose, may be shortly stated.

(2.) THE estate in suit, which consists of agricultural lands and houses, belonged originally to one Gafar who died in 1890 leaving behind him two sons and five daughters. One of those sons was Lalsaheb, and he died in 1906 leaving behind two widows Rahimunnissa and Pyarasaheba. Rahimunnissa is alive, and was defendant No.17 to this action. Pyarasaheba died in 1920. THE claim in this suit relates to the alleged right of Pyarasaheba to retain her husband's estate to satisfy her unpaid dower debt which, it is alleged, devolved on her heirs the plaintiff's assignors. Pyarasaheba's heir was her father who was alive at the time of her death, but died later on. THE exact date of his death is not a matter of record in this case. THE heirs of Pyarasaheba's father were his five children, three of whom by his first wife have assigned their interest to the plaintiff by two documents dated September 24, 1938, and January 9, 1939. In the later deed the right to recover the amount of the meher of Pyarasaheba is transferred to the assignee, and also the right to retain possession of Pyarasaheba's husband's estate in lieu thereof. In the other there is a conveyance only " of the right in law to recover the amount of meher from Lalsaheb's estate or from his heirs." It may be noted that the husband of the assignee plaintiff had in 1917 obtained a lease for ninetynine years of certain lands known as Gadhi lands from the two widows of Lalsaheb and the plaintiff is in possession of these lands.

(3.) IT may be noted that the claim of the plaintiff was of a two-fold character, first to enforce the right of her assignors to succeed to that portion of the estate of Lalsaheb to which his widow Pyarasaheba was entitled to succeed as his heir, and secondly to enforce the alleged right which had descended to the heirs of Pyarasaheba to retain possession of Lalsaheb's estate in lieu of the unpaid dower. In regard to the former claim, the learned trial Judge has given a declaration in favour of the plaintiff that she, as assignee from the three brothers of Pyarasaheba, was entitled to get 5 1/9th pies in a rupee by partition. There are no cross-objections against that part of the decree. On the other part of the case the learned trial Judge held that Pyarasaheba's meher was fixed at Rs. 30,000, that it was not paid nor remitted, but that as the heirs of Pyarasaheba were never in possession of any part of the estate of Lalsaheb in lieu of her unpaid dower, since her death in 1920 both the claim to the meher as well as the claim to the estate were barred by limitation. Consequently the plaintiff's claim to retain possession or to recover possession by separation on partition was dismissed. Against that decree the plaintiff has filed this appeal.