HAMIRA BIBI; AMINA BIBI Vs. ZUBAIDA BIBI

JUDGEMENT

(1.) A short statement of the facts which have given rise to this litigation will explain the point for determination involved in these consolidated appeals.

(2.) One Shaikh Inayat-ullah, a Muhammadan inhabitant of the district of Gorakhpur, in the United Provinces of India, died in March, 1892, leaving him surviving a widow and a daughter, named respectively Zubaida Bibi and Najm-un- nissa; a sister, Hamira Bibi; and two brothers, Khadim Husain and Ihsan-ullah, all of whom became entitled under the Sunni law, to which Inayat-ullah was subject, to certain specific shares in his estate. Besides the widow s share of one-eighth, Zubaida was entitled to her unpaid dower. This has been found in a previous proceeding to have amounted to the large sum of one lakh of rupees. The other heirs of Inayat-ullah not being in a position to pay this sum without apparently alienating at least a considerable part of the estate, allowed the widow to take or remain in possession of the whole to satisfy her claim out of the rents and issues of the landed property. It is not clear whether the widow was lot into possession in the life-time of Inayat-ullah or after his death. But it is not disputed that since 1892, Zubaida has been in possession.

(3.) In 1902, the other heirs of Inayat-ullah brought a suit against her to recover possession of their shares. Their action was dismissed on the ground that it was misconceived, inasmuch as it was not a suit for the purpose of taking accounts, and thus ascertaining what portion of the dower-debt was then unsatisfied. The present suits were instituted with that object on the 15th of March, 1906, in the court of the Subordinate Judge of Gorakhpur, one by Hamira Bibi and the other by the widow and sons of Khadim Husain who had died either before or after the suit of 1902. The reliefs prayed for in both actions were the same, viz., (a) for the taking of accounts; (b) for decree to plaintiffs of their respective shares in case the dower-debt was found to be discharged, and (c) for an award to the plaintiffs of any sum found to have been received by her in excess of her dower. Zubaida in her defence, among other pleas, set up a claim for interest on her unpaid dower; she alleged that the income of the property was less than the interest she claimed; that, consequently the debt was still unsatisfied and that the plaintiffs were accordingly not entitled to recover possession of their shares in Inayat-ullah s estate.