BASIR ALI Vs. HAFIZ NAZIR ALI

JUDGEMENT

(1.) "This is a suit brought by one Basir Ali an infant by his grandmother and next-friend Elahi Jan Begum and by Elahi Jan Begum in her personal capacity. Basir Ali has since the institution of the suit attained full age and Elahi Jan Begum now remains on the record only in her personal capacity as plaintiff. The defendants are the father of Basir Ali, Hafiz Nazir Ali, and the three daughters of the first defendant, who are all infants. The suit is for a declaration that a partition effected by a decree of 1903 is not binding on Basir Ali and (it may be presumed) on his minor sisters. The plaintiff asks for an enquiry as to the estate of his mother Kobra Begum, for the administration of that estate and for an account against the father Hafiz Nazir Ali. The plaintiff also seeks to include in his claim, his share in a sum of Rs. 32,000, the dower agreed upon between his father and mother and a further sum of Rs. 23,800 which he alleges to have been due to his mother for arrears of pin-money.

(2.) "There is no dispute as to the main facts which are as follows: One Morad Ali died in 1880 leaving property of very considerable value, estimated at some twenty lacs. He left several children and a widow, the plaintiff Elahi Jan Begum. One of his daughters Kobra Begum on the 30 of August, 1882, was married to the first defendant, who was then a boy of 14 years of age. On the 16 September 1882, a deed was executed by the first defendant's father under which it was arranged that the first defendant should pay his wife a sum of Rs. 32,000 as dower, one half prompt and the other half deferred. The deed also arranged for an allowance of Rs. 100 a month to the wife as pin-money. The wife's family was wealthy, the husband's family impecunious; and there is no doubt that the first defendant had not then and indeed had no immediate expectation of becoming possessed of so large a sum as Rs. 32,000. By a contemporaneous document, it was agreed that the first defendant should not remove his wife from her parent's house or take her away to his country but that he should continue to reside in the house of his father-in-law as; khana damad. On the 4 of September 1901, Kobra Begum filed a suit in this Court No. 746 of 1901 claiming her share, 7/48ths of her father Morad Ali's estate and asking for partition of that share. The plaintiff Elahi Jan Begum was a party defendant to that suit with the other members of Morad Ali's family. In March 1902, Kobra Begum died leaving her surviving the first defendant, her husband, and the plaintiff Basir Ali and the minor defendants, her four children. She left a Will of which she appointed her husband sole executor and he took out probate of that Will on the 12 of April 1902. The Will purported to make no disposition of the property but left it to pass according to Muhammadan Law. As such executor, the first defendant got himself substituted as party plaintiff in suit No. 746 of 1901. Some attempt seems to have been made to bring his children also on the record in that suit but it was disallowed. On the 5th. of March, 1903, a consent- decree was passed in that suit, under which, inter alia, the first defendant as representing Kobra Begum accepted 6/48ths instead of 7/48ths as her share in Morad Ali's property. That decree also provided for a partition of that share and it went further and provided for partition of the share between the husband and children of Kobra Begum, 1/4 to the husband and three-fourths to the children. Elahi Jan Begum, who as an heir of her daughter would be entitled to one-sixth of her estate, gave up her claim to that so far as Kobra Begum's share in Morad Ali's property was concerned. On the 12 July 1904, the Commissioner made his return in that case. It should be mentioned that Hafiz Nazir Ali was appointed Receiver in that case of the property of himself and his children. He has been appointed and still is the guardian of the property of his three infant daughters. Elahi Jan Begum was the guardian of the person and property of the plaintiff Basir Ali, who has since attained his majority."

(3.) Seven issues were raised in this case which were as follows: I. Whether the plaintiff Basir Ali is bound by the decree of the 5 March 1903. II. What is the effect of the decree, regard being had to subsequent dealings with the property? III. Whether the shares can be re-adjusted. IV. Was the agreement as to dower ever intended to be an effectual one or was it introduced as a penalty to induce the first defendant to be a khana damad? V. Whether it is binding on the first defendant. VI. Whether it was excessive. VII. Whether Elahi Jan Begum is not barred from claiming her share.