MT SAMPATIA BIBI Vs. MIR MAHBOOB ALI

JUDGEMENT

(1.) This is a second appeal by Mt. Sampatia Bibi and Alam Ali defendants, against a decree of the lower appellate Court in favour of the plaintiff, decreeing possession of a house to the plaintiff. The following pedigree is relevant:

(2.) Defendant Alam Ali, appellant, is the son of one Zahur Ali, and Mt. Sampatia married Zahur Ali after the death of her husband Sher. The claim of the plaintiff was that Sher was a Shia, and as he had no children his childless widow Mt. Sampatia did not inherit any share in the house. He further pleaded that on the death of Sher, Shamsher inherited the whole house as sole heir, and on the death of Shamsher his son Shamsad inherited the house, and on 9 July 1932 Shamsad sold the house by a sale deed to the plaintiff. As that defendant , Mt. Sampatia, was allowed by the plaintiff to live in the house and he now desires to resume possession of the house. The Court of first instance dismissed the suit on the finding that Shamsad Ali was not the legitimate son of Shamsher Ali but was an illegitimate son and did not inherit any rights from Shamsher Ali. The plaintiff appealed to the lower appellate Court and the lower appellate Court held that Sher was a Sunni and not a Shia and therefore Mt. Sampatia, as widow of Sher, inherited l/8 share in the house. The lower Court further held that Shamsad was a legitimate son of Shamsher Ali and therefore inherited 7/8 of the house from Shamsher Ali. It also found that plaintiff obtained possession on his sale deed and plaintiff permitted Mt. Sampatia to come to reside in the house at a later date, and her claim that she was residing in the house in lieu of dower was not established. The Court below therefore granted a decree to the plaintiff for joint possession with Mt. Sampatia, the share of the plaintiff being 14 annas and the share of Mt. Sampatia being two annas. The appeal of Mt. Sampatia claims that she is entitled to the whole house of which she is in possession in lieu of dower and also that if that be not established then the plaintiff has no right to suit as he is illegitimate, and that the Court below was wrong in relying on the presumptions of legitimacy as there is no absolute presumption of legitimacy under the Mahomedan law. Turning to the question of dower first, learned Counsel for the appellants relied on Muhammad Shoaib Khan V/s. Zaib Jahan Begam 1927 50 All 423, Imtiaz Begam v. Abdul Karim Khan 1930 ALJ 1587 and Zamin Ali V/s. Azizunnissa 1933 ALJ 483. In Muhammad Shoaib Khan V/s. Zaib Jahan Begam 1927 50 All 423 it was held that the right of a Muhammadan widow is founded on her power as creditor for her dower to hold the property of her husband of which she has lawfully and without force or fraud obtained possession until her debt is satisfied. But it does not follow from this that unless and until the widow actually enters into possession of the estate on the express assertion that she is taking possession in lieu of her dower debt, she cannot subsequently be allowed to raise such plea. On p. 425 it is shown in the ruling that the widow in question obtained possession of the property by mutation, that is, she was entered as the owner of the property and she was in possession as an owner. Now the finding in the present case of the lower appellate Court is as follows: I would also agree that it has not been proved that Mt. Sampatia is in possession in lieu of dower. It is in evidence that Sher Ali died 3 or 4 years after his marriage; in this period it is difficult to believe that she could have thought about or demanded her dower. No occasion for the demand is shown, the story therefore does not strike me as true. Sampatia then re-married, and this husband died say about 6 years ago; she was during her marriage living with him and the evidence for the defendant concedes that plaintiff took possession of a privy in the house about the same time; it is difficult to believe that if Sampatia was in possession she would keep silent about it; it is more reasonable to think that plaintiff was in possession so that when the woman was turned out she was allowed by plaintiff to live here, so that I believe she is living in the house not in lieu of dower but permissively through plaintiff.

(3.) The lower Court may not be correct in its view that there was any legal necessity for an admission of dower to be made or for the defendant to assert that she was taking possession in lieu of dower, but the lower Court has found as a definite fact that her possession was merely permissive by license of the plaintiff, and the case is therefore altogether different from that in Muhammad Shoaib Khan V/s. Zaib Jahan Begam 1927 50 All 423, where the widow was entered in the khewat as a proprietor. A similar principle was laid down in Imtiaz Begam V/s. Abdul Karim Khan 1930 ALJ 1587 and in Zamin Ali V/s. Azizunnissa 1933 ALJ 483. In all these cases however the widow was in proprietary possession and in Imtiaz Begam v. Abdul Karim Khan 1930 ALJ 1587 her name was also entered in the khewat by mutation. I consider that in the present case as the widow was not in proprietary possession but merely in permissive occupation as shown by the finding of the lower appellate Court, which is binding on this Court in second appeal, the rule of Mahomedan Law that she has a right to retain possession until payment of her dower debt does not apply. The next point which was argued was in regard to the finding of the lower Court that the vendor of the plaintiff Shamsad Ali was legitimate. Now the argument in ground No. 1 of appeal was: Because there is no absolute presumption of legitimacy under the Mahomedan law and in the particular circumstances of this case the Court below has erred in relying on any such presumption.