GHOUSE YAR KHAN Vs. FATIMA BEGUM

JUDGEMENT

(1.) The defendants are the appellants. The plaintiffs filed the suit for recovery of possession of the house bearing No. 5-9-1108 situate at Gunfoun- dry, Hyderabad together with an amount of Rs. 60,000/- towards mesne profits.

(2.) The averments in the plaint may be briefly stated : After thedeath of Nawab Emad Jung in 1920 in a suit fot partition of Matruka property his widow Waheedunissa Begum was granted a decree to hold possession of the plaint schedule house in consideration of her dower amount to the tune of Rs. 2,15,000/-. Waheedunissa Begum sold the house and she has no authority to sell as she had right of enjoyment only during her life time. The plaintiffs are the heirs of late Samiuddin Mohd., the son of late Emad Jung and therefore the plaintiffs are entitled to the property. The plea of the 1st defendant is that after the death of Nawab Emad Jung his widow Waheedunissa Begum filed O.S. 1/1346 Fasli for recovery of dower and for partition of Matruka. The Darul Qaza Court passed a declaratory decree that Begum is entitled to retain posession of half portion of the property bearing Door No. 1190 till Meher amount is paid. The said half portion of the house was excluded from the properties liable for partition and the preliminary decree was passed for the rest of the properties. The decree was finally confirmed by the Judicial committee of the Dominions of the Nizam. Pursuant to the decree Begum was enjoying possession of the suit property. Late Samiuddin Mohammed was having only 1/9th share in the entire Matruka property and he never questioned the right of Begum in the house property. The sale of the property in favour or defendants 1 to 8 is for a valid consideration.

(3.) The question of claiming any share in the suit property by late Saimiuddinor plaintiff does not arise when this property was not made available for partition. The heirs of late Emad Jung failed to pay the Meher amount and as such she was exercising her rights as exclusive owner of the suit property. Samiuddin Ahmed during his life time did not choose to file a suit for recovery of possession of the plaint schedule property. The suit is barred by time and the suit seeking possession without asking for relief to the title is not maintainable. Defendants 2 to 6 adopted the written statement of the 1st defendant and defendants 7 and 8 remained cxparte. The plea of the 9th defendant is that Waheedunissa Begum was holding the property in consideration of her dower and she had a right to retain possession till the payment of Meher. She could not have executed sale deed as she was suffering from paralysis two years before her death and the sale deed is a fabricated one. 9th defendant has l/8th share in the entire Matruka left by her father Samiuddin Mohammad and consequently the 9th defendent is entitled to 1/8th share. Waheedunissa Begum is not entitled to alienate the suit house house and she is not entitled to deliver posesssion of the nouse to defendants 1 to 8.