MAJIDMIAN BAXUMIAN Vs. BIBI SAHEB JAN

JUDGEMENT

(1.) This appeal arises out of a suit for the declaration of a certain lien over a house and for confirmation and recovery of possession of different parts of the same house. The owner of the house was one Nanumiyan, a Sunni Mahommadan, who died in May 1897. He left behind him his mother Misri Bibi, two widows Bibi Lalkhatum and Bibi Saheb Jan, one daughter Bibi Fazl-un-nissa and one brother Majidmiyan. The mother died a year or two later. The senior widow Lalkhatum died in December 1906. The widows lived in the house at the time of their husband s death and their case is that they continued to live there until their return to Shikarpur in Sindh to their paternal relations in 1906. The junior widow Saheb Jan and the heirs of the senior widow join in bringing the present suit against the brother and daughter of Nanumiyan. Their case is that the dower fixed for Lalkhatum at the time of her marriage was Rs. 50,000 and that fixed for Saheb Jan was Rs. 7,500, that Nanumiyan died without paying any part of the said dower, that the widows remained in possession of the house in lieu of their dower until 1906 and that thereafter the surviving widow and the heirs of the deceased widow had been in peaceful possession of the house until 1908, when the brother disputed their claim to retain possession of the house and tried to disturb them in their possession. They filed the suit on the 23rd April 1909 asserting their claim to the house in respect of the whole dower of Rs. 57,500. The brother disputed the claim on various grounds. He contended that the amount of the dower was not fixed as stated by the plaintiffs, that the widows had renounced their claim to the dower at the time of Nanumiyan s death, that the house in suit did not belong to his deceased brother exclusively but to both of them jointly, that the widows had never been in possession of the house in lieu of their dower, and that according to the Muhammadan law they had no right to the house. He also maintained that the two rooms, which were admittedly in his possession, were not held by him with the permission of the widows but in his own right. The daughter, defendant No. 2, admitted the plaintiffs claim.

(2.) The trial Court raised several issues of fact and law and decided them in favour of the plaintiffs except as to two rooms. The learned First Class Subordinate Judge held that the dower due to the two widows was Rs. 57,500, that the widows had been in possession of the house except the two rooms, which were found to be lawfully in the possession of defendant No. 1, in lieu of their dower, that the plaintiffs were in possession up to 1908 when the cause of action arose against defendant No. 1 and that they were entitled to the reliefs claimed. He disallowed the plaintiffs claim as to the two rooms in the possession of defendant No. 1. A decree was passed on the 25th April 1913 giving effect to the findings in favour of the plaintiffs.

(3.) The defendant No. 1 has appealed against this decree in respect of the main part of the house, and the plaintiffs have filed cross-objections in respect of the two rooms. The cross- objections, however, are not pressed, and we have only to consider the points urged in support of the appeal. It will be convenient to keep the questions of fact and law distinct and to deal with the former in the first instance.