MUHAMMAD SIDDIQ Vs. MUHAMMAD NUH

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for damages on the ground for breach of a covenant for title and quiet enjoyment. It is now an admitted fact that four annas share was in the possession of Mt. Badam Kunwar which had been originally acquired by her deceased husband, Ajodhia Prasad. On 17 February 1877 she along with her husband's brother and nephew and her own daughters executed a sale deed of this share in favour of Abdul Majid in the name of his wife, Mt. Wahidunnisa (p. 23). She asserted in the deed that she was the absolute owner of the property and had full power to transfer it, and this assertion was accepted by the other executants. There was also a recital in this document that a sum of Rs. 5,000, which was the sale consideration, had been required by her for various necessities. It is an admitted fact that Abdul Majid had owned the remaining twelve annas share in the three villages in dispute. Thus after 1877 Abdul Majid became the sole owner of the entire villages. On his death some dispute arose between his heirs which resulted in a compromise decree dated 31st January 1890(p. 29). Under this decree the property was divided among his various heirs in this way: that the whole estate was split up into 80 sihams out of which 40 sihams went to Wahidunnisa, 12 sihams to his daughter Hamidunnisa, and the remaining 28 sihams to four ladies, Hikmatunnisa, Niamat Bibi, Anisunnisa and Azmatunnisa. The widow appears to have got more than her legal share, presumably on account of her dower debt remaining outstanding. It is noteworthy that in this compromise decree there was no reference to the previous sale of 1877, nor to the fact that Abdul Majid had acquired four annas share from a Hindu widow, Mt. Badam Kunwar.

(2.) On 6 March 1891 a sale deed was executed by the four ladies mentioned above of their 28 sihams in favour of a stranger, Bishun Dat, for Rs. 15,000. This covered the entire interest which the four ladies had in three villages. The deed as it stands contained a clear covenant for title as well as quiet enjoyment, and provided that if any part of the whole of the property sold was claimed and found to be the property of anyone else, or if the vendee had to pay anything as costs or damages on account of any rate by anyone else, then in any and every case the vendors, their heirs and representatives and executors, jointly and severally, as well as their movable and immovable properties, would be liable for the costs, damages and loss. So far as this deed went it did not refer to the sale of 1877 and merely referred to the compromise decree of 1890, which in itself had contained no reference to that sale of 1877. The sale to Bishun Dat was pre-empted by Mt. Wahidunnisa, and her suit resulted in a decree for pre-emption on 30 November 1892.

(3.) Mt. Badam Kunwar appears to have remained alive for a very long time, and some years after her death a suit was instituted by Brij Behari Lal and others claiming to be her daughter's sons. This suit was decreed on the 29 September 1921 by the first Court on a finding that Mt. Badam Kunwar had a Hindu widow's interest in the property and had no authority to transfer it without legal necessity. Mt. Wahidunnisa's representative appealed to the High Court, but the decree of the first Court was affirmed on 16 April 1924. The possession of the property was finally delivered on 23 August 1924. There is the dakhalnama printed on p. 101 which shows the delivery of possession with regard to a grove.