MASHKUR AHMAD Vs. MTZAHUR-UL-NISSA

JUDGEMENT

(1.) This is an appeal against a preliminary decree in a suit for partition. The plaintiff is the widow of Muhammad Ahmad Khan and claims her share in his property. There is no doubt that she would have a share under the Mahomedan law. The defence was that there was a custom in the family by which women were excluded if there were any sons in existence. The learned Judge found against the custom and passed a decree in favour of the plaintiff.

(2.) It is argued in appeal that the custom was established. Learned Counsel bases his argument upon the fact that this family migrated from the Nabha State to Saharanpur about the year 1880 and that they were Rajput Mussalmans who, according to him, were governed by the custom prevailing in the Punjab among the agricultural tribes. It seems to us that it is not necessary to go with any detail into the question whether there was a custom, governing the tribe of which this family were members, by which females were excluded. The matter is of no great importance because we are satisfied that the learned Judge was right in holding that the history of the family since it migrated to Saharanpur about sixty years ago shows that the custom, if it existed, had been abandoned. On no occasion where there has been a question of succession in the last sixty years has any member of the family, until this suit was instituted, alleged that the custom pleaded by the defendants was binding upon the family.

(3.) The ancestor of the family when it migrated from Nabha to Saharanpur was Wazir Ali Khan. His wife was Mt. Amna and they had four sons, Safdar Ali Khan, Imdad Ali Khan, Aftab Ali Khan and Ruknuddin and daughter, Mt. Neki who was married to a man called Ali Muhammad who remained in the Nabha State in the village where the family had originally lived. In 1887 the first death occurred in this family. Aftab Ali Khan died and the khewat of that year shows that his property passed according to the Mahomedan law. His widow, Mt. Mani, his daughter, Mt. Amtul, and his mother, Mt. Amna received shares in the property. The guardian ad litem of the appellants, Asghar Ali Khan, gave evidence and deposed that Mt. Amtul had given up her share of her own free will. This allegation was supported by the fact that the name of Mt. Amtul's son does not, at a later stage, appear in the khewat. The khewat, however, shows that it was not alleged that the women of the family had no right to have any share. Mt. Amna sold her share in the property to her grandsons and there was no question of her relinquishing it. Thereafter there were other cases of succession and learned Counsel for the appellants has told us that there were six widows and six daughters involved. It does not appear whether Mt. Amna received her share of the property on the death of her husband, Wazir Ali Khan. In the same way when Safdar Ali Khan died we do not know whether his widow, Mt. Qutb-un-nissa, received her share because the khewats have not been produced. Safdar Ali Khan's son was Muhammad Umar. When he died, his widow, Mt. Khair-un-nissa, voluntarily relinquished her right to a share in the property in exchange for maintenance. This fact is of no great value because even under the custom alleged Mt. Khair-un-nissa being childless, would have had a share for her life. It is alleged that widows obtained a life interest if they had no sons. Aftab Ali Khan's widow, Mt. Mani, received a share, as we have already mentioned, and it appears that she never gave it up. One of Aftab Ali Khan's sons was Ramzan Ali. His widow, Mt. Matluban, according to the khewat, obtained a share in his property. She joined other members of the family in making a transfer. There was an exchange to which she was a party and she retained the property which she received in exchange. It appears that Mt. Amtul did not get a share in the property, but her two brothers at the time of the exchange executed a bond to secure the other parties, who were also members of the family against any claim which might be made by Mt. Amtul. It is evident that the members of the family thought that she might be entitled to make a claim. The other two widows involved are Mt. Majidan and Mt. Zainab, the widows of Imdad Ali Khan. The learned Judge has pointed out that Imdad Ali Khan had transferred practically the whole of his property and the question of their getting any share in it did not really arise. It is possible that he still had a very small share by inheritance but the learned Judge has quite rightly pointed out that these two women were being supported by their husband's brother, Safdar Ali Khan and two of Safdar Ali Khan's sons and that it would probably not have been to their advantage to arouse the Antagonism of these people by making a claim as of right to get any very small share belonging to Imdad Ali Khan which might have remained his at his death.