MT HABIB FATMA Vs. MTARJUMAND KHATUN

JUDGEMENT

(1.) Two points have been raised in this appeal: one relates to the interpretation of a document and the other to a question of fact. The question of fact is whether a certain oral gift did take place or not, and the finding on the point given by both the Courts below is that there was no such gift. This is a finding of fact and the reasons given by the Courts below are satisfactory. We do not propose to go into the evidence even if we could. This point clearly fails.

(2.) To appreciate the first point it will be necessary to state the facts in some detail. They are these: One Tahar-ud-din had children by two wives. By one wife, who was dead in 1877 there was a son Noor-ud-din and by the other wife, Mt. Mashkur-un-nissa, he had two children: a son Mahbub Ahmad and a daughter Mt. Arjumand Khatun. Mahbub Ahmad's daughter is the appellant before us, and she was the plaintiff in the First Court. Arjumand Khatun was the defendant in the Court of first instance and is the respondent in this Court. It appears that a dispute arose as to the dower debt of the two wives of Tahar-ud-din. Noor-ud-din claimed the dower of his deceased mother and Mashkur-unnissa claimed her own dower. A certain gentleman was chosen to arbitrate and he made an award on the 28 of April 1877, and this is the document which we have to interpret. By this award the arbitrator divided the property in three classes. In Class No. 1 he set apart those properties which belonged to Noor-ud-din in his own right. We have nothing to do with these properties. Then he divided the properties which belonged to Tahar-ud-din alone into two equal shares and declared that one share should be taken by Noor-ud-din and the other by Mt. Mashkur-un-nissa. He said that these two people, namely Noor-ud-din and Mashkur-un-nissa were, to be the owners of the two halves respectively. Then follows the list of properties and then come certain provisions which are to be interpreted. Mashkur-un-nissa, it was declared, was to have no right to transfer the property given to her. Then it was said that the property given to her was to remain for the benefit of her children and she was to manage the property during their minority. Then comes another provision and it is this: that out of the children of Mt. Mashkur-un-nissa the property ought to go to the male children, provided the male children performed the customary duties which fall on brothers towards their sisters. It was provided that in case the male children failed in their duties the female children would have a right to obtain their usual shares according to the Muhammadan Law.

(3.) Tahar-ud-din died many years ago and Mashkur-un-nissa died some time about 1900 A.D. Mahbub Ahmad died in 1921. On the death of Mahbub Ahmad, his daughter brought the suit, out of which this appeal has arisen, for a declaration that she was the owner of the entire property which once belonged to Mashkur- un-nissa being, the one-half of the property that once belonged to Tahar-ud-din. She tried to make out her case like this: According to the award, the entire property, that had been set apart for Mashkur-un-nissa, went to Mahbub Ahmad. Mahhub Ahmad was in possession of this entire property during his lifetime. Before his death he became a Shia and made a gift orally of the entire property to his own daughter, the plaintiff. The appellant's case, therefore, was that Mahbub Ahmad being a Shia his entire property went to his daughter although under the Sunni Law only one-half share would go to her, the other half going to his sister, Arjumand Khatun. The second string to the bow was that Mahbub Ahmad made an oral gift of the entire property to her. This claim was opposed by Ajumand Khatun and she said that she got her legitimate one-third share on the death of her mother and that she was in possession of that property. She denied that he had ever made a gift to his daughter.