SHIEKH ABDUL RAHMAN Vs. SHEIKH WALI MUHAMAD

JUDGEMENT

(1.) This is a second appeal made by the defendant (appellant) from a decision of the Subordinate Judge of Shababad, dated the 26th August 1919, reversing a decision of the Munsif of Sasaram, dated the 13th January of the same year. The facts in this case are of a simple character, but they raise somewhat difficult questions of law which have been extremely well argued at great length before me by the learned Vakils for both parties. The circumstances which gave rise to this litigation may be very shortly explained as follows:

(2.) A Muhammadan gentleman, named Sajjad Hussain, married a lady Musammat Kabiran. A marriage dower of Rs. 4,000 was fixed but, as a matter of fast, was never actually paid. In 1899 Sajjad Husain died leaving surviving him his widow, Sajjad Husain also left surviving him two brothers, one Sheikh Wali Muhammad, who is the present plaintiff, and the other Sheikh Ezid Baksh, who is the first defendant. The second defendant is the minor son of the first defendant. On the death of Sajjad Husain his widow Musammat Kabiran same, with the permission of the plaintiff and of the first defendant, into possession and occupation of the whole of her husband's property, in view of the fact that her dower had not been paid or, as it is put in legal language, "holding in lieu of dower." In 1900, however, Musammat Kabiran executed a document as to the true construction of which the main arguments in the present litigation arise. Although the construction of this document necessarily formed the subject matter of most of the argument which had to be plated before me by the learned Vakil for the appellant, no translation of it was produced by him nor did it appear as part of the record. I felt considerable difficulty in coming to a conclusion as to whether or not I should allow it, under these circumstances, to form the subject-matter of an enquiry as to its construction; but, as it was so obviously vital to a proper consideration of the case, I eventually had it translated officially and have utilised this translation in dealing with the matter throughout. It is necessary to refer to this document in some detail. The material parts read as follows:

(3.) "Out of the shares in the mauzas and properties specified below, one third belonged to my husband Sheikh Sajjad Husain, Since the death of my husband, I have been in possession of his estate--the shares in the said mauzas--by virtue of inheritance and in lieu of dower-debt, I cannot manage and look after the properties on account of my being a female. I am alone and a widow and have neither a male nor a female issue. In the family of my husband, too, there is only one male child, Sheikh Abdur Rahman by name, a minor son of Sheikh Ezid Bakhsh, the elder brother of my husband, Sheikh Sajjad Hussain. That boy is loved by all the members of my husband's family. I also fully desire that he should be comfortably maintained and indelicately brought up. For myself I do not require anything other than maintenance till my death. Therefore, I wish to give away all my properties, in my lifetime, to the said dear child, subject to my right of maintenance. Sheikh Ezid Bakhsh, the father and guardian of the said minor child Abdur Rahman, has agreed to pay me till my death Rs. 5 per month or Rs. 60 per year, which amount is quite sufficient for me, in lieu of the said properties. I fully trust his words. Besides, the liability for the payment of the said allowance shall rest on the said properties." (Then comes an immaterial portion). "Therefore. I, of my own free-will and accord in a sound state of body and mind, in the exercise of all legal rights, in good faith, without undue pressure or fraud from any quarter, do here by willingly sell and absolutely vend without; reserving the right of cancellation to Sheikh Abdur Rahman, minor son of Sheikh Ezid Bakhsh, under the guardianship of the said Sheikh Ezid Bakhsh, resident of Mohalla Shah Juma, in the town of Sasaram, Thana Sasaram, by occupation a Zemindar, the whole and entire one-third share of mine, namely 10 pies 13 karants 6 masants 10 decinue out of 16 annas (then follows a long description of the property which is given in much detail) owned and possessed by me, together with all rights and appurtenances, for a consideration of a monthly allowance of Rs. 5, amounting to Rs. 60 per annum, with effect from to-day up till my death. I have, by making over this deed of sale to the vendee, put him in possession of the vended property as absolute proprietor in my place. I give up, forego and relinquish all claims, disputes and contentions which may be existing now or which may arise hereafter, for getting this sale-deed declared null and void. In short the proprietary interest and all rights, title and interest which I had in the vended properties have, under this sale-deed, been transferred (from me) and (become) extinct (in so far as I am concerned), and have devolved on and vested in the said purchaser and his heirs and representatives. Now, I have not and shall not have any claim for realization of (a word unfortunately undecipherable or torn) (claim ) or any dispute, contention or right in respect of the vended properties other than getting Rs. 5 per mensem or Rs. 60 per annum till my death. After my death my heirs and representatives shall not have any right of interference is or objection or claim to the vended properties. If they advance any claim in contravention to (the terms of) this deed, the same shall be deemed to be null and void, illegal and inoperative. The said vendee shall get his name recorded in the Collectorate Office in my place in respect of the vended properties, after getting the name of my husband expunged therefrom, and shall remain in possession and occupation of the vended properties."