M AMIR HASAN KHAN Vs. HMOHAMMAD NAZIR HASAN

JUDGEMENT

(1.) This second appeal has arisen out of a suit brought by the plaintiff-respondent for recovery of possession of a 6 anna share in village Bahrampur, District Fatehpur. The Subordinate Judge, in whose Court the suit had been instituted, dismissed it; but on appeal by the plaintiff it was decreed by the District Judge.

(2.) Village Bahrampur above mentioned belonged to Saghir Hasan, husband of Kulsum Bibi, defendant 2, and Munshi Amir Hasan Khan, a vakil practising in Fatehpur in equal shares. The two do not appear to belong to the same family, and the fact that they were cosharers may be due to circumstances which are not material for the purposes of this case. Saghir Husain died in or about 1920, leaving his brother Nazir Husain, plaintiff-respondent, and Mb. Kulsum Bibi, defendant 2, as his heirs, the latter being entitled to one-fourth of Saghir Husain's property, and the former to the remaining three-fourths. The widow however entered into possession of the entire 8 anna share belonging to her husband, and obtained mutation of names, as owner to the extent of 2 annas (one-fourth), and in lieu of dower to the extent of 6 annas (three-fourths). The plaintiff contested her claim in the proceedings for mutation, but was unsuccessful. He acquiesced in the order of the Revenue Court upholding the widow's right to remain in possession of the plaintiff's share till her dower debt was paid. She executed on 22 September, 1925, a deed of sale in favour of defendant 1 the validity of which is in question in the present case. The deed recites that a largo sum of money was due to the executant, Mt. Kulsum Bibi, in respect of her unpaid dower debt, (the exact amount of which is not specified) and that she was in possession of a 6 anna share in lieu thereof. The deed purports to convey the entire 8 anna share to the vendee in consideration of Rs. 3,875, part of which was left with the vendee. The deed also purports to assign to the vendee the vendor's right to recover her dower debt and the right to remain in possession of a 6 anna share until it is paid. Defendant 1 obtained possession of the entire 8 anna, share sold, by defendant 2.

(3.) The present suit was instituted on 18 May 1927 for recovery of possession of 6 anna share belonging to the plaintiff but previously held by the widow (defendant 2) in lieu of dower. The validity of the sale deed so far as it relates to 6 anna share belonging to the plaintiff is impugned on the ground that defendant 2 had no right to transfer her dower debt and her right to possession of 6 anna share to defendant 1. According to the plaintiff the dower of defendant 2 stipulated at the time of her marriage with Saghir Husain was no more than Rupees 1,700. It was pleaded by defendant 1 in defence that the dower of defendant 2 agreed to by her husband was Rupees 50,000 and that she was entitled to possession of her husband's share till the aforesaid amount was paid, which right she validly transferred to defendant 1.