MT RAZINA KHATUN Vs. MTABIDA KHATUN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit brought for a declaration that the properties in suit are owned and possessed by the plaintiff and cannot be attached and sold in execution of a decree obtained by the principal defendants against the plaintiff's husband. According to the plaintiff, a sum of Rupees 52,000 was due to her as her dower from her husband and in satisfaction of that claim the husband transferred the property in suit to her on 4 January 1930 and got the sale deed registered, followed by mutation of names in her favour. Her case is that the defendants who have a money claim under an award, later incorporated in a decree, have no right to attach these properties. The defendants in their written statement denied that any dower was due to the plaintiff and pleaded that the sale deed relied on by her had been fraudulently and fictitiously executed without any consideration, with the intention dishonestly to evade payment of the defendant's decretal amount and that the plaintiff is not the owner in possession of the properties in suit. The issue framed as regards this plea was: Does the sale deed relied on by the plaintiff represent a genuine and valid transaction of sale for consideration, or was it executed fraudulently and without consideration to defeat the defendants decree- holders?

(2.) There was another issue as to whether the claim was barred by Secs.52 and 53, T.P. Act. The Court below has found that the amount of the dower debt due to the plaintiff was in fact Rs. 52,000 and has accepted as proof of it an entry in a diary in the handwriting of the deceased husband of Mt. Bazina Khatun, who was the own brother of the plaintiff's husband. The learned Counsel for the defendant is unable to contest this finding. The Court below has further found that the dower was in fact prompt and that the transaction of sale was a genuine one with the intention that the properties should pass from the husband to the wife, and that the wife thereafter obtained actual possession of the properties. It has therefore upheld the transaction as being a good transaction for value and made in good faith. In appeal the findings of the learned Subordinate Judge are challenged, except as to the amount of the dower debt. In the first place, it is contended that no dower debt was payable because the plaintiff Abida Khatun in her cross- examination admitted that she and her husband had been on good terms upto the period of eight or nine years and said: I demanded my dower debt as soon as our relations became strained. I demanded the dower debt on the very next day about eight or nine years ago. Maulvi Izduddin (her husband) replied that he would pay off when the property would be divided. I demanded the dower debt for the first time eight or nine years ago and thereafter I continued to make demands after a period of every two or three months.

(3.) It is therefore contended that time began to run against her some eight years before she was examined when she first made the demand. But under Art. 103, Lim. Act, time begins to run not from the date of the demand but from the date of the refusal. In the absence of any allegation in the written statement, we are unable to interpret the admission made by the plaintiff as meaning that her husband had refused the payment of the dower debt. Indeed her statement rather suggests that he promised to pay it, though he wanted time until the property was divided. We are therefore unable to hold, on any admission made by the plaintiff, that her claim for dower had become barred by the time when the sale deed was [made] in her favour. No doubt there are some circumstances which are very suspicious. Apart from the relationship of husband and wife between the parties, the sale deed appears to have been executed by the husband himself at Amroha and not in their residential village, and stamp-papers had been purchased by him and it was he himself who presented the document for registration. He was however at that time accompanied by his son, who might be representing his own mother. There is also this fact in favour of the appellants that shortly before the execution of the sale deed the present defendants had obtained an award in their favour under which Azd Uddin was liable to pay Rs. 5,962-9-0.