ABDUL SATTAR Vs. MTAQIDA BIBI

JUDGEMENT

(1.) This second appeal arises out of a suit brought by Sheikh Abdul Sattar plaintiff as heir of one Muhammad Ishaq against Mt. Aqiba Bibi, the widow, for a declaration that he was entitled to a 3/4 the share of the property and that the widow had no right to resist his claim. An alternative prayer was that if he should be found to be out of possession, he should be given a decree for possession. The first Court found that Muhammad Ishaq died five years ago and that the widow had been in possession of his property in lieu of her dower-debt of Rs. 5,000 ever since his death. The lower appellate Court upheld this finding.

(2.) In this second appeal the only point taken is that the finding of the Courts below that the widow had been in possession of Sheikh Abdul Sattar's property in lieu of her dower was a finding not of fact but of law and was a wrong finding. If that finding be set aside, then under Art. 104 of the Limitation Act the widow's claim to dower would be time-barred. The first question that arises in respect to this question is whether the finding of the lower Courts as to the widow's possession in lieu of dower was a finding of law or finding of fact. It appears to have been regarded by the lower Courts as a finding of fact but, in my opinion, it cannot be regarded in this light. There was no doubt that the widow was in actual possession for the last five years and long before her husband had not been heard of for 14 years and all that time she must have been in actual possession. The finding to this effect was a finding of fact but the question arises whether she was in possession in lieu of her dower or whether she was in possession merely because her husband was absent.

(3.) It appears that some five years ago the widow applied to the mutation Court for entry of her name. Her application is not on the file but it must be presumed that she wished her name to be entered in place of her husband as she considered his long absence was sufficient proof of his death. The Mutation Officer, owing probably to what may be regarded as an excess of caution, directed that her name should be entered "along with her husband Muhammad Ishaq who had not been heard of for a long time." The form of this entry, however, is of no evidential value. Nor indeed does the entry prove anything one way or the other as to possession. What is significant is that an application for alteration of the entry was made and allowed. This shows that from the date of the entry the intention of Mt. Aqida Bibi was to hold the property of her husband in lieu of her dower. It was not, however, necessary for the Courts below nor for this Court to base a finding as to her intention on the evidence, provided that it is possible to hold that her husband was dead and that she continued to be in possession of his property after his death. As to the first fact this Court is bound by the concurrent finding of the lower Courts that the husband died five years before suit. This finding apparently was based on a single witness. That is no reason for its not being binding on this Court.