RAFIQA BEGAM Vs. AISHA BEGAM

JUDGEMENT

(1.) This is a defendant's appeal. The plaintiff has filed a cross-objection. There is a Second Appeal NO. 507 of 1940 connected with it which we shall dispose of by a separate judgment. The plaintiff is the daughter of defendant l, Rafiqa Begam alias Kundan Jan, who is the widow of Mohammad Naqiuddin Ahmad Khan to whom she was married in the last decade of this nineteenth century the date of the marriage, however, is one of the matters in dispute between the parties. Naqiuddin Ahmad died on 17 November 1924. The plaintiff is one of the children of this marriage. Plaintiff's case was that Kundan, Jan who was a Naik by caste was a prostitute before her marriage to her father Naqiuddin Ahmad. That at the time of her marriage she changed her religion and was known as Rafiqa Begam that after Naqiuddin Ahmad's death Mt. Rafiqa Begam alias Kundan Jan went back to her previous profession of a prostitute, was reconverted and began to live with her relations who are defendants 3 to 8. Defendant 2 Dalip Singh alias Nuruddin Ahmad, was the son of Mt. Kundan Jan alias Rafiqa Begam. Plaintiff's case was that this Dalip Singh was born previous to the nikah between her father and her mother and he was therefore illegitimate. The plaintiff was married to one Shaukat Ali who died on 2l May, 1924. There were two daughters born to the plaintiff of this marriage, one was Hasina and the other was Saida. After the death of Shaukat Ali the plaintiff with her two daughters came to the house of Naqiuddin and started living in his house. On his death, on 17 November 1924, the plaintiff with her two daughters continued to live in the same house with Kundan Jan. According to the plaintiff when her daughters grew up Mt. Kundan Jan wanted that these young girls should also be brought up in her own profession of prostitution, while the plaintiff wanted that they should be true Muslims and should be married in respectable families. There was a dispute on account of this and the elder daughter Hasina sided with her grandmother though the younger Saida was with the plaintiff and on 4 August 1935 the plaintiff and Saida were beaten and turned out of the house. Plaintiff's claim is for the recovery of certain moveable properties, valued in all at Rs. 14,707-14-0 on the ground that the properties belonged to her and she wanted that the defendants should be directed either to return to the plaintiff the ornaments and goods, etc., mentioned in list (A) or pay the price thereof which the plaintiff fixed at the figure mentioned above. The plaintiff also claimed possession of the property in mauza Aniari, mahal Surkh and a grove given in list (B) on the ground that the defendant had by fraud got from her a sale deed of the said property on 28 June 1931. The plaintiff alleged that she was not bound by the sale deed and was entitled to possession of the property and a sum of Rs. 900 as mesne profits prior to the date of the suit. The plaint was later amended by an order dated 4 February 1939 and a further relief that the defendants should be directed to hand over to the plaintiff certain papers and documents, etc., detailed in list (C) of the plaint was added. It was alleged that plaintiff's signature had been taken on certain blank papers which were included in list (c).

(2.) The plaint was filed on 27 July 1938 and along with the plaint the plaintiff filed an application for appointment of a Commissioner. The reason given in the application for the appointment of the Commissioner was that the plaintiff's ornaments, articles and cash were in the unlawful possession of the defendants and if the defendants came to know of the suit, then they might remove the same. It was, therefore, prayed that a Commissioner be appointed for the purpose of preparing an inventory. On the same date the learned Civil Judge of Moradabad appointed a Commissioner who was to make an inventory of the property and goods and put them in charge of a respectable person in case it was difficult to bring them into Court and put them in the Court's safe. The Commissioner went to the spot on 29 July 1938 and subsequent days, and the plaintiff's entire case is based on certain documents which are said to have been found among the papers taken possession of by the commissioner. We have to consider the question of this Commission in detail later on when we come to deal with those documents. We may however mention here that the Commissioner was not examined by either party as a witness in the case. The plaint was amended and list (c) added after this commission.

(3.) The defence was that the plaintiff left the house with her younger daughter of her own accord as there was a difference between her and defendant 1 about the marriage of Hasina and she did not leave the properties detailed in the plaint in the house of the defendant. It was further alleged that defendant 2, Nuruddin alias Dalip Singh, was the son of Naqiuddin Ahmad and had been born after his marriage with Kundan Jan. As regards-the sale deed, the defendants case was that, the sale deed had been executed for proper consideration after the plaintiff had duly understood what she was doing and it was binding on the plaintiff. The other allegations in the plaint as regards defendant 1 and the other defendants were also denied. The lower Court decreed the plaintiff's suit as against defendant 1 for recovery of Rs. 10,000 as the value of moveables and ornaments mentioned in list (A) of the plaint, for recovery of landed property mentioned in list (B) of the plaint along with Rs. 435 as mesne profits and 2/llth share in the grove and for recovery of the papers actually recovered by the Commissioner from the house of defendants l and 2 and mentioned in list (C) of the plaint, this last relief being given both against defendants 1 and 2. As against the other defendants the suit was dismissed. Defendants 1 and 2 have filed this appeal, while the plaintiff has filed a cross-objection with respect to the grove which, according to the cross- objection is a part of 2 sihams of village Aniyari mentioned in list (c). The plaintiff has submitted to the dismissal of her claim to the extent of rupees 4707-14-0 mentioned in list (a).