ABDUL WAHID KHAN Vs. SHALUKA BIBI

JUDGEMENT

(1.) THE suit in this appeal was brought against Abdul Wahid Khan for possession of a half-share of property left by Muradi Bibi deceased. She was the daughter of Shaluka Bibi and the wife of Abdul Wahid, and died on the 10th of January, 1881, leaving them her only heirs. On her death Abdul Wahid took possession of all the property left by her. These facts were not denied by Abdul Wahid. His first ground of defence was that Shaluka Bibi, by a deed dated the first of February, 1881, in consideration of a maintenance of Rs. 50 a month during her lifetime, withdrew her claim to any right and interest in the estate of Muradi Bibi; and the first issue in the suit was, whether this deed was executed by Shaluka Bibi. It has been found by both the lower Courts that it was not, and this ground of defence is therefore disposed of.

(2.) ANOTHER defence as to part of the property claimed was founded on a right of pre-emption in the Defendant. On the 26th of January, 188(i, Shaluka Bibi executed a deed, in which it is stated that Abdul Wahid had taken possession of the whole of the property left by Muradi Bibi, and that Shaluka Bibi could not raise funds to defray the costs of litigation and personal expenses, and that Niamat Khan, Ramzan Khan, 'and Wazir Khan, her brothers and legal heirs, had consented to arrange for payment of all costs of litigation and her personal expenses, on condition that whatever she obtained by way of inheritance and as dower (meaning dower due from Abdul Wahid to Muradi Bibi) should be shared and possessed with them, and that she should join them in the suit against, Abdul Wahid. The deed, after providing against any compromise of the suit without the consent of the brothers, and agreeing to the aforesaid terms, concluded thus:" Let it also be known that Niamat Khan, Ramzan Khan, and Wazir Khan shall hold themselves responsible for all costs of suit and my maintenance, and that the said costs of the suit and the said maintenance of the executant, which will be incurred from the Court of first instance to that of the last resort, will be consideration for the transfer made by virtue of this deed, which is and will be binding upon the executant. Approximate value of the property, and the dower, &c., to the extent of a moiety thereof is and will be rupees 10,000." The three brothers were joined as Plaintiffs in the suit with Shaluka Bibi. The Defendant in his written statement alleged that the sale-deed was invalid, because by the deed of the 1st of February, 1881, Shaluka Bibi had no longer any power of alienation, and if she had, the Defendant had a right of pre-emption in respect of the property, and that no notice as required by law was issued. He claimed that upon payment of Rs. 10,000, the price entered in the sale-deed, the suit should be dismissed. It is an error to treat the Rs. 10,000 as the price; it is given as the value of the property sold, apparently for the purpose of stamp duty. The price is really what would be incurred for costs, the amount of which was uncertain and would depend upon the resistance which the Defendant made in the suit.

(3.) THE Defendant also claimed that if the Plaintiffs should be held to be entitled to a decree they should also be declared liable to pay according' to shares all the debts of Muradi Bibi liquidated by the Defendant, as well as all sums of money which the Defendant expended in good faith in prosecuting suits instituted for protecting the property. The District Judge found that of eleven debts due from Muradi Bibi in a list given by the Defendant, amounting to Rs. 43,956 5a. 4tp., six remained due which the Plaintiffs would have to pay in proportion to their share. Muradi Bibi died on the 10th of January, 1881. The suit was brought on the 16th of September, 1886. The Defendant had therefore been in possession and receiving the mesne profits for upwards of five and a half years. The plaint only claimed mesne profits accrued during the pendency of the suit till the date of obtaining possession. The Defendant alleged that he had paid the remaining five debts, and he contended that, the mesne profits before the suit not being claimed in the plaint, he was entitled to keep them and also to receive what he had paid in discharge of the debts. The District Judge rightly refused to allow this, and the Judicial Commissioner on appeal affirmed this decision. It is true that the Plaintiffs could not claim to have a decree for those mesne profits, but if an account was to be taken of the Defendant's payments, it must also be taken of his receipts. Apparently his receipts from the Plaintiffs' share of the property were much more than sufficient to satisfy the debts.