MOHAMMAD RAZA Vs. MT ABBAS BANDI BIBI

JUDGEMENT

(1.) The facts necessary for the decision of this appeal are within a small compass. In 1868 one Sughra Bibi brought a suit against her cousin Afzal Husain, claiming a half-share in certain immovable properties in Oudh which had been entered in his name at the post-mutiny settlement. The litigation ended in a compromise upon which a decree was passed in the suit on 19 September 1870. The compromise was in the following terms: "We are Mt. Sughra Bibi, plaintiff, claimant of a share in Mahal Shadipur, Nusha, and c., pargana Tanda, and Surhurpur, and Syed Afzal Hasan, son of Syed Tegh Ali Qanungo, Lambardar of the aforesaid Mahal, defendant.

(2.) Whereas between the parties to the above-mentioned case in which a share is claimed an amicable settlement has been arrived at to the effect that the plaintiff's marriage by way of nikah with the defendant may be performed in the next month, accordingly in view of a marriage settlement, there no longer exists any dispute regarding a share, and insomuch as the defendant's first wife, the daughter of Raja Syed Abbas Ali, deceased, is alive, it has been settled that both wives should, in accordance with this agreement, in their capacity as wives from this very time be declared permanent owners (malik mustaqul) of a moiety each of the entire Mahal Shadipur, and that the names of Mt. Fatima Begam, the first wife, and Mt. Sughra Bibi, plaintiff, be entered in the public records as owners of half and half (bil munasfa milkiatan). The said females shall not have power to transfer this property to a stranger ; but the ownership thereof as family property shall devolve on the legal heirs of both the abovenamed wives, from generation to generation ; and the management and collections of the entire estate of Shadipur shall be in the hands of their husband, Syed Afzal Hasan, in his capacity of a husband; if on the part of the husband there is any act of neglect or estrangement towards either of the wives, then, in that case, the wife's only remedy will be to have the management of her share performed by the Government through the Court of Wards ; but during the lifetime of Afzal Hasan neither of the wives shall have the power on her own authority to have the management of the share which is owned by her performed by any member of her father's family, and if in contravention of this agreement the defendant refuses to marry the plaintiff by way of nikah, then the plaintiff shall in accordance with this document remain owner of a moiety, and if the plaintiff acts contrary to the stipulation of nikah, she shall cease to have any rights whatever. If, God forbid, contrary to custom the divorce of either of the wives takes place, then, even in that case, ownership shall remain vested in the wives, as before, subject to the conditions mentioned above ; provided that the divorced wife should regard herself as an undivorced wife, and like a. woman without a husband continue to live in the house, and be it understood that the aforesaid conditions shall apply to whatever share exists in the villages comprised in Mahal Shadipur, as detailed below : (1) Shadipur, (2) Niniwan, Bechrai, Daudpur, Nandapur, Qutubpur Belahri, Daryapur; moreover, whatever property, such as Chitoi and Nausanda and Mnsha, andc., pargana Tanda and Halimpur and Lodhna and Nathupur, pargana Surhurpur, andc., exists at present, or may be acquired in future, shall, during the lifetime of Mir Teg Ali and myself (the defendant), continue to remain in possession of the defendant, and after me (the defendant) this properly also shall devolve on the two wives or their descendants (aulad) in equal shares.

(3.) Hence this agreement is made in writing in order that it may serve as evidence thereof and the pending case may be decided in accordance with its terms." Afzal Husain thereafter duly married Sughra Bibi and died in 1872 childless, his first wife Fatima "Begum having predeceased him in 1871. Sughra Bibi took possession of her share in the properties, hut had sold or mortgaged it all before her death, which occurred on 26 July 1914. Her transferees remained in undisturbed possession for nearly 12 years after her death. On 20 March, 1926, the, suit out of which this appeal has arisen was instituted by the respondent in the Court of the Subordinate Judge of Fyzabad for the recovery of two-thirds of Sughra Bibi's share from the appellants, in whose possession the properties had come under the alienations above referred to.