SAHIB NASIB KHAN Vs. MTKUTBUNNISA

JUDGEMENT

(1.) This appeal arises out of a suit for the partition of a bungalow within the municipal limits of the town of Roorkee in the district of Saharanpur. Before stating the questions that arise for decision in the present appeal, it would be convenient to set forth, as briefly as possible, the facts that have given rise to those questions. The bungalow in dispute along with other house properties belonged to one Kale Khan who died leaving four sons and two daughters. The family tree of Kale Khan is as follows:

(2.) After the death of Kale Khan his sons and daughters partitioned amongst themselves the properties left by Kale Khan, and it is common ground that by partition the bungalow in dispute and a house in Saharanpur, called haveli, were allotted to the two daughters Qutb-un-nisa and Majid-un-nisa, in equal shares. In other words, by virtue of partition, Qutb-un-nisa and Majid-un-nisa each became entitled to a half share in the bungalow in dispute and to a half share in the haveli. Majid-un-nisa died on 19 May 1919 leaving, as the pedigree noted above shows, a daughter Zahur Fatima and three children by that daughter. Zahur Fatima was married to one Ayub Khan. Ayub Khan has figured as a witness on behalf of the contesting defendants, viz., defendants 3 and 4 who are his children by Zahur Fatima. It appears that Ayub Khan was a military contractor and mostly resided in Bombay in connexion with his contract business. It is said and there is considerable evidence in support of the allegation, that during the absence of Ayub Khan from Roorkee Zahur Fatima contracted illicit connexion with some person and eventually eloped with him, taking with her youngest child, Nazir Fatima. Mohammad Said Khan and Masooda Begum, the other two children of Zahur Fatima however continued to reside in Eoorkee with their grand-mother, Majid-un- nisa. The bungalow in dispute was entered in the municipal papers in the names of Qutb-un-nisa and Majid-un-nisa and continued to be so recorded till the year 1921. In that year, however, the name of Majid-un-nisa was expunged and the names of Mohammad Said and Masooda Begum were entered in the municipal papers as owners of a half share in the bungalow. It may be stated at this stage that Zahur Fatima never applied for the entry of her name in the municipal papers, nor was her name ever recorded in those papers against the bungalow in dispute. On 22 February, 1926 Zahur Fatima executed a deed, of gift with respect to a one-fourth share in the bungalow in favour of Qutb-un-nisa. It was recited in the deed that she had inherited that share from her mother, Majid-un-nisa. Qutb-un- nisa, however, took no steps to have her name recorded in the municipal papers against the share gifted to her.

(3.) At or about the time of the execution of the deed of gift just mentioned, Qutb- un-nisa and Ismail Khan executed a sale deed of the haveli in Saharanpur in favour of one Mohammad Yasin Khan. The execution of the deed of gift and of the sale deed brought to a head the dispute between Qutb-un-nisa and Ismail Khan on the one hand, and Mohammad Said and Masooda Begum, defendants 3 and 4, on the other. Mohammad Said and Masooda Begum were minors then and their father, Ayub Khan, as their next friend, filed a suit for accounts in April 1927 in the Court of the Munsif against Qutb-un-nisa and Ismail Khan. In the plaint of that suit it was stated that Majid-un-nisa had before her death bequeathed her half share in the bungalow and the haveli to Mohammad Said and Masooda Begum, the plaintiffs of that suit, and that the will was, after the death of Majid-un-nisa, consented to by all her heirs, viz., her daughter, Zahur Fatima, her four brothers and her sister Qutb-un-nisa. It was recited in the plaint that on the assurance held out by the defendants of that suit that they would deposit the profits of the share of Mohammad Said and Masooda Begum in the savings bank, those defendants were allowed to act as managers and agents of the plaintiffs so far as the bungalow in dispute and the Saharanpur haveli were concerned. On these allegations the plaintiffs prayed for a decree for rendition of accounts by the defendants. Both Qutb-un-nisa and Ismail Khan contested the suit. They filed a joint written statement in which they denied the fact of a will having been made by Majid-un-nisa and alleged that Ayub Khan had "by a trick" caused the names of the plaintiffs to be recorded in the municipal papers in respect of the bungalow. They asserted that Majid-un-nisa died intestate and that on her death her half share in the bungalow devolved by right of inheritance on her daughter, Zahur Fatima, her four brothers and her sister Qutb-un-nisa. They pleaded that Zahur Fatima's share in the inheritance of Majid-un-nisa was to the extent of half and the remaining half devolved on the brothers and the sister. They therefore maintained that Zahur Fatima was entitled to execute the deed of gift of 1926. They denied that Mohammad Said and Masooda Begum, the plaintiffs of the suit of 1927, had any share either in the bungalow or in the haveli and accordingly pleaded that the suit was not maintainable. The allegation that Qutb-un-nisa and Ismail's position was that of managers or agents was also denied. The suit was eventually compromised and the compromise was embodied in a decree dated 16 December 1927. The terms of the compromise were as follows: Compromise has been arrived at between the parties to the effect that the plaintiffs shall remain the owners in possession of 21 sihams out of 80 sihams in the bungalow in dispute and the remaining share shall be owned by defendant, Qutb-un-nisa. The plaintiffs as the defendants shall have no concern with the haveli in dispute or the consideration thereof. Mohammad Yasin, the vendee, is the owner of this haveli in dispute. Defendant Qutb-un-nisa shall pay Rs, 520-10-0 in all to the plaintiffs, but Rs. 25-0-0 shall be paid monthly. The first instalment shall be due on 31 January 1928. The prayer has been made that the suit may be decided in accordance with the terms of this compromise. The plaintiffs shall be entitled to the produce of the grove for 1928 and the bungalow. In case of non-payment of four successive instalments the entire amount together with interest at the rate of Re. 1/- per cent, per month shall be due in a lump sum.