MUSAMMAT MAINA BIBI AND AFTER HER DEATH CHAUDHRI KHALILURRAHMAN Vs. CHAUDHRI WASI AHMAD AND AFTER HIS DEATH CHAUDHRI VAKIL AHMAD

JUDGEMENT

(1.) THIS is an application for leave to appeal to His Majesty in Counsel. The value of the property in dispute in the Court of first instance and also in the Court of Appeal was over Rs. 10,000, but the dearer of this Court on appeal affirmed the decision of the Court below. It is, therefore, necessary for the applicants to show that some substantial question of law is involved or some question of general interest before leave can be given to them to appeal. The facts of the case are very clearly set forth in the judgment of this Court which is to be found in Maina Bibi v. Wasi Ahmad 51 Ind. Cas. 242 41 A. 538 : 17 A.L.J. 629 : 1 U.P.L.R. (A.) 106, It is urged before us that the second suit, that is the one out of which the present application has arisen, is barred by the rule of res judicata, that the former suit having been dismissed, no further suit will lie and that possession should not have been granted to the plaintiffs without their paying their share of the dower debt due at the data of the degree. No other point is pressed before us. So, far as the rule of re judicata is concerned, an examination of the plaints in the two case s will show clearly that that" rule has no application at all. In the present suit the plaintiffs name into Court with an entirely different cause of Act ion. In the former suit the rights of the parties were defined and the plaintiffs were given the option of paying the amount due at that time and taking possession. There is nothing in that decision to bar a fresh suit when fresh circumstances have arisen. So far as the plea is taken that possession should not be granted without payment of the dower-debt or a proportionate part thereof, the only basis on which this plea was placed when the appeal was argued in this Court was that the widow, in transferring the complete ownership of the property, might be said to have transferred her right to the dower debt and her right to possession, this being a lesser right which was included in the larger right that she transferred. Before us it is sought to base this plea on the fact that there are decisions that as long as a Muhammadan widow is alive, no matter how she may deal with if, the heirs cannot demand possession from her or her transferees so long as they do not pay their proportionate share of the dower-debt, and reference is made to certain old decisions of this Court with a view to showing that there is really a substantial question of law for decision and also a question of general interest, In view of the fast that this is not the position that was taken up in the argument at the hearing of thin appeal in this Court, we do not think that it should be allowed to be taken up now. In our opinion this is not a fit case for leave to be granted and the application is, therefore, disallowed with costs including fees on the higher scale.