ABDUL WAHID KHAN Vs. MUSSUMAT NURAN BIBI

JUDGEMENT

(1.) THE main question in this appeal arises upon the construction of an instrument of compromise, dated the 28th of April, 1866, consisting of two parts, one part being executed by one and the other by the other of the parties to the compromise. It was made in a suit instituted in the Court of the Extra Assistant Commissioner, Settlement Department, in the district of Sultanpur. In order to construe it, it is necessary to see what was the position of the parties when it was made. Between 1821 and 1825, one Mouzzam Khan acquired the ilaka Audari, consisting of seven villages, now in the Rao Bareli, but formerly in the Sultanpur district, and about the year 1849 he purchased, in the name of his sons Abdul Rahman and Aldus Subhan, the ilaka Lewana, consisting of eleven villages, in the district of Partabgarh. Mouzzam Khan died on the 22nd of January, 1850, leaving three widows, Gauhar Bibi, Musammat Chameli, and Musammat Bakhtavar, and two sons, Abdul Rahman, the son of Chameli, and Abdus Subhan, the son of Bakhtawar. It was admitted that Gauhar Bibi was his lawfully married wife, but it was contended on behalf of the Appellant that Ghameli and Bahhtawar were never married to him, and that their sons were therefore illegitimate. Musammat Bahhtawar had also a daughter, Musammat Nuran, the Respondent, who it was contended was not Mouzzani's daughter, having been born only three months after her mother first entered his harem. In 1855 or 1856, before the annexation of Oudh, a settlement of the whole estate was made with Ganhar Bibi, and a kabuliat executed in her name, and from that time until her death she remained in possession of it. In April, 1858, shortly after Lord Canning's Proclamation of the 15th of March, which all the estates in Oudh were confiscated to the Government, a summary settlement of the estate was made with her. No sannad was granted to her, and her name is not entered in the list of persons who were to be considered talookdars within the meaning of Act I. of 1869 (the Oudh Estates Act). On the 31st of January, 1866, Aldus Subhan brought a suit in the Court of the Extra Assistant Commissioner, Settlement Department, against Gauhar Bibi, to recover one half of the village of Sarah Mahesa, one of the villages in Audari. In the plaint the tenure is described as talookdari without a sanad, and Gauhar Bibi is named as talookdar. The ground of the claim is stated to be, that Mouzzam Khan, during his lifetime, caused the kabuliat of the village in suit, together with the entire talooka, to be executed in the name of the Plaintiff and Abdul Rahman, so that in virtue thereof they continued in possession during their father's lifetime, and after their father's death they held continuous possession till 1263 F.; in the middle of 1263 F., when British rule was established, the entire talooka was settled with strangers for non-payment of the arrears of Government revenues; after 1266 F. (1859), on the re-occupation of the province, the settlement of the entire talooka was made with the Defendant in the absence of the Plaintiff.

(2.) THE Plaintiff did not rely upon any title in the sons as heirs of their father. He relied upon the kabuliat, and the possession under it, as evidence that their father in his lifetime made them real owners of the estate, and that they were not furzidars. He would have had to prove this, there being, according to the law in India, no presumption in their favour from the fact of their being sons of Mouzzam. It does not appear in the record of the present suit what defence was made by Gauhar Bibi. Possibly no formal defence was made before the compromise was come to. Her case would be that in 1855 or 1856 a settlement of the estate was made with her and a kabuliat executed in her name, and she had ever since been in possession of it; and further, that in April, 1858, after the confiscation, the Government had made a summary settlement with her. The compromise was made by two petitions to the Settlement Court, one by Abdus Subhan, and the other by Gauhar Bibi. The former is in these words: Whereas the Petitioner has instituted a suit in the Settlement Court against his mother, Musammat Gauhar Bibi, for proprietary right in half of talooka Sarai Mahesa, in porgana Rokha, in the Sultanpur district. Now, an amicable settlement having been made between the Petitioner and his said mother, a deed of compromise is filed this day in the Settlement Court, therefore I, the declarant (man mukir) commit to writing that (my) mother, Defendant, shall during her lifetime continue as heretofore (ba dastur) to hold possession of and be mistress of the talooka, and manage the estate through agents, but she shall not, without any special emergency, alienate any property so as to deprive me of my right, and that after her death I, the declarant (mau mukir), and my step-brother, Abdul Rahman, shall possess and enjoy each one half of the entire ilaka, situate in the districts of Sultanpur and Parlabgarh, arid that so long as the Defendant may be living I shall obey her.

(3.) ALDUS Subhan died on the 25th of February, 1868, and Abdul Rahman on 10th of March, 1874, leaving a daughter, Muradi Bibi. On the 30th of April, 1874, Gauhar Bibi executed a deed of gift in favour of Muradi Bibi, and on the 18th of October, 1875, Gauhar Bibi died, leaving Muradi in possession of the entire estate. There had been some litigation between Mustafa Khan, the nephew of Mouzzam, and Gauhar Bibi, but it is not necessary to notice those suits, nor a suit brought by him against Muradi Bibi after Gauhar Bibi's death.