BIBI TASLIMAN Vs. BIBI KASIMAN

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for partition brought by two Mahomedan ladies, daughters of one Amir-ud-din The defendants Nos. 2 to 5 are the four sons of Amir-ud- din. The widow is defendant No. 1, and the son of defendant No. 2 who is defendant No. 6, and the wife of defendant No. 2 who is defendant No. 7 claim certain portions of the properties as their own.

(2.) The defendants objected to the partition on the ground that the properties left by Amir- ud-din were by family arrangement in the possession of defendant No. 1, his widow, in lieu of her dower and that the plaintiffs were not in possession of the properties in dispute. They contended, inter alia, that three of the properties belonged to the defendants Nos. 6 and 7. The learned Subordinate Judge found that two of the properties claimed by defendants Nos. 6 and 7 were really the properties of Amir-ud-din. The third, evidenced by the kobala (Exhibit C), he found, was not the property of Amir-ud-din and that the plaintiff could not, therefore, claim any share therein.

(3.) As regards the defendant No. 1's claim to retain the whole of the property in lieu of her dower, the Subordinate Judge has found that there is no evidence worthy of credit to show that Amir-ud-din settled the property with his wife. We have gone through the evidence and we find that as regards the first item, namely Rs. 8,277-8-0, which the learned Judge erroneously states as Rs. 8,000 evidenced by Exhibit B, that sum is undoubtedly duo to the estate of Amir-ud-din in the absence of any evidence that his wife really owned the money which was in his name. As regards Exhibit D, we find that Amir-ud-din used to pay the rent for the 5 bighas, 17 cottahs, although the land stands in the name of the lady defendant No. 7. After Amir-ud-din's death, no body seems to have paid the rents. Bnt the present landlord, Lukhdeo Singh, who is the son of the grantor of the tenancy, proves his father's signature on Exhibit A and proves the facts which we have just set out. We can find no reason to disbelieve him. He is a respectable gentleman and has no possible interest in the result of this suit. As regards the receipts Exhibits E1 to E6 filed by the defendants, we need only say that the evidence of the handwriting of the patwaris who are admittedly alive, given by the defendant himself, is absolutely worthless. It would appear that whatever lands the sons did get on their father's death have gone away to strangers, and their sisters immediately after their father's death got their names registered in the land registration department after a contest with their mother. It was held on the authority of the case of Amanat-un-nissa V/s. Bashir-un-nissa 17 A. 77, which we find applies to this case, that if a Mahomedan widow entitled to dower has not obtained possession lawfully, that is, by contract withher husband, by his putting her into possession or by her being allowed with the consent of the heirs on his death to take possession in lieu of dower and thus to obtain a lien for her dower, she cannot obtain that lien by taking possession adversely to the other heirs of property to the possession of which they, and she in respect of her share in the inheritance, are entitled". Now the evidence of Sheikh Shams-ud-din, defendant No. 3, in this case only amounts to this, that the sons allowed their mother to take their inheritance in lieu of dower, He cannot contend as he appears to have done in the land registration proceedings, his evidence in which has been put in to contradict him, that the daughters who obtained registration in opposition to their mother shortly after their father's death were parties to any such family arrangement. There is no proof of the amount of dower due to this lady and there is, as we have said, no evidence that she lawfully obtained possession of the whole of the property in lieu of dower. There is, therefore, no reason why the daughters should not get partition of their inherited shares and we think that the learned Judge was right in directing that the plaintiffs should get a decree. We find that after the preliminary decree as soon as the Commissioner had settled the shares by metes and bounds, no party to the suit raised any objection whatsoever. The partition, therefore, may be taken to have been finally made and we accordingly dismiss this appeal, and direct that the final decree of the Court below do stand, with costs of this appeal to the respondent.