MUSAMMAT MAINA BIBI Vs. CHAUDHARI WASI AHMAD

JUDGEMENT

(1.) The following pedigree to the appeal are disputing:-will explain the right under which the parties

(2.) Muinuddin died on the 6th of May 1890 possessed of immoveable property the inheritance to which is in dispute in the present case. He died leaving him surviving his widow, Musammat Maina, and his cousin, Musammat Barkatunnissa. Musammat Maina entered into possession of the entire estate and professed to remain in possession in lieu of her unsatisfied claim for dower. Musammat Barkatunnissa died on the 27th of June 1892 and her husband Maslahuddin died on the 17th of August 1897. Her mother Musummat Khairunnissa died on the 22nd of December 1898. We refer to the husband and the mother of Musammat Barkatunnissa as under the Muhammadan Law they and her children would be her heirs on her death. After her death and that of her mother and husband her sons became entitled to 72 sihams and her three daughters to 36 sihams in the estate of Muinuddin. Musammat Maina, the widow, was entitled to the remaining 36 sihams. On the 13th of May 1899 two of her daughters, namely, Musammats Ummahani Bibi and Muizunnissa Bibi instituted a suit for the recovery of their share in the inheritance, namely, 24 sihams, impleading Musammat Maina and the other descendants of Musammat Barkatunnissa as defendants in the case. One of the pleas on behalf of Musammat Maina was that at the time of the death of Muinuddin, his aunt and his step aunt were alive and Barkatunnissa was not an heir under the Muhammadan Law to Muinuddin. She further pleaded that her dower debt was Rs. 51,000 and in lieu of it Muinuddin before his death had gifted the immoveable property to her. The pleas in defence were disallowed. The Court held that Musammat Barkatunnissa was an heir of Muinuddin; that the dower debt of Musammat Maina was Rs. 51,000; and that no gift had been made by Muinuddin of the property in question in lieu of dower, The claim of the two ladies was decreed for the recovery of 24 sihams on the payment of Rs. 3,913-12-10, the proportionate amount of dower payable by them. The money was paid and the two ladies recovered possession of their share. On the 25th of April 1902 the three sons of Barkatunnissa and her third daughter, Musammat Muhibunnissa, brought a suit for the recovery of 81 sihams impleading as defendants in the case Musammat Maina Bibi, Musammat Ayesha Bibi and Masammat Ummahani Bibi and Musammat Muizunnissa Bibi. The last two were pro forma defendants. Musammat Ayesha Bibi was impleaded as a defendant in the case on the allegation that her right to succeed to the property left by Muinuddin was set up by Musammat Maina in the suit of 1899. The plaintiffs alleged in their plaint that the dower of Musammat Maina was fatmi dower, that is Rs. 107 which had been realised by her from the income of the estate, and that they were entitled to immediate possession without payment of any sum. They, however, said that in case the Court found that any part of the dower had not been paid, they were willing to pay the amount determined by the Court. They accordingly prayed for possession of 7/12th of the property without payment or in the alternative on payment of such sum as the Court might find due. Musammat Maina was the chief contesting defendant in the ease. She pleaded that the dower was Rs. 51,000; that the entire property of Muinuddin was gifted by him to her in lieu of her dower; that the whole amount of the dower was still due; that she was entitled to interest on her dower at the rate of 1 per cent. per mensem. She also advanced a plea of jus tertii by stating that Musammat Ayesha Bibi was the step-aunt of Muinuddin and that the descendants of a real aunt were alive at the time. We may also mention that one Abdul Shakur and some others had brought, about the same time, suits to recover the property left by Muinuddin, on the allegation that they were his cousins. Musammat Ayesha Bibi had also brought a suit for the recovery of her share in the property by right of inheritance on the ground that she was the step-aunt of Muinuddin. All the suits including the one of the three sons of Musammat Barkatunnissa were transferred for trial to the Judge of the Small Cause Court. The suits of Musammat Ayesha Bibi and others in which the descendants of Musammat Barkatunnissa were also defendants with Musammat Maina were decided first and the learned Judge held that neither Musammat Ayesha Bibi nor Abdul Shakur and others were entitled to inherit the property left by Muinuddin, as they had failed to prove their alleged relationship. When the case of the sons of Musammat Barkatunnissa came to be tried, their title had already been settled by the decision of the other suits and the only points for determination were the amount of the dower, the alleged gift of the properly in lieu of dower and the rate of interest. The learned Judge held that the dower of Musammat Maina Bibi was Rs. 51,000 and not the fatmi dower; that Muinuddin had not made a gift of the property in suit in lieu of dower; that Musammat Maina Bibi was in possession of her deceased husband s estate in lieu of her dower; and that 3 per cent, per annum should be allowed to her by way of interest. He further held that she was liable to account for the profits received since the death of her husband. The accounts were taken and the proportionate amount due from the plaintiffs was found to be Rs. 25,387-5-5. A decree was accordingly passed in favour of the plaintiffs on the 28th of November 1903 for possession of 84 sihams out of 144 sihams, on payment of the said sum within six months, and in default the claim of the plaintiffs was to stand dismissed with costs. The plaintiffs appealed to this Court and Musammat Maina Bibi filed cross objections. The only point urged in appeal related to interest. Both the appeal and the cross objections were dismissed and the decree of the first Court was affirmed on the 3rd of July 1906. The plaintiffs did not pay the sum of Rs. 25,387-5-5 and did not recover possession of the 84 sihams. Musammat Maina Bibi exeouted two deeds of gift in respect of the property in question on the 16th of March 1907 and the 12th of June 1907 respectively in favour of Khalilur Rahman, Obaidur Rahman, Shafiur Rahman and Musammat Humairah Bibi, sons and daughter of Muhammad Isa, her nephew, that is, her sister s son. On the 5th of March 1908 Khalilur Rahman and Obaidur Rahman made a Wakf of a portion of the gifted property and appointed their father Muhammad Isa as Mutwalli. On the 22nd of July 1915 the suit out of which this appeal has arisen was instituted by Wasi Ahmad, Wakil Ahmad and Zubair Ahmad, the three sons of Barkatunnissa, for the recovery of 72 sihams out of 144 sihams in the estate of Muinuddin. Musammat Muizunnissa had died in the meantime. The plaintiffs impleaded in the case as defendants Musammat Maina Bibi, her donees, Muhammad Isa, the Mutwalli, and the husband and the two sons of Musammat Mohibunnissa. The last three were pro forma defendants. In their plaint the plaintiffs after reciting the former litigation of 1902 stated that a considerable part of the sum of Rs. 25,387-5-5 had been realised by Musammat Maina from the income of the estate, and that she having parted with possession of the property, the plaintiffs were entitled to possession of the 72 sihams without payment. In case the Court was of opinion that they could not get possession without payment, they were willing to pay whatever sum was found due by the Court in respect of the balance of the dower debt payable by them. They stated their cause of action to have arisen on the 18th of March 1907 and the 12th of June 1907, the dates on which the two deeds of gift were executed and possession passed out of the hands of Musammat Maina, and on the 1st of July 1915, the date of refusal by the donees to make over possession to them, the plaintiffs. The contesting defendants raised various pleas in defence. We need mention three of them only which have been pressed here before us, namely, that the claim was barred by res judicata; that the plaintiffs could not recover possession without payment of the proportionate sum found due for dower and that interest at 12 per cent. per annum should be allowed on the dower debt. The Court of first instance repelled all the pleas in defence, The objection based on the plea of res judicata was disallowed on the ground that the position of Musammat Maina Bibi who was in possession in lieu of her dower was analogous to that of a mortgagee, and that position was not altered or affected in any way by the decree (of 1902). What was done in the former suit was that the account was settled between the parties up to a certain date and the plaintiffs were given the option of paying the amount found due by a certain date if they wanted to recover immediate possession." The second objection that the plaintiffs could not get possession without payment was rejected for the reason that Musammat Maina Bibi was no more in possession in lieu of her dower and the donees from her were not the donees of her dower debt. As to interest, the rate allowed in the former suit, viz. 3 per cent. per annum was maintained. The Judge, however, recorded a linding on the proportionate amount of dower payable by the plaintiffs after taking into consideration the profits of the estate received by Musammat Maina Bibi. He oame to the conclusion that the sum of Rs. 16,297-15-3 was due to her. The claim of the plaintiffs for possession was decreed without payment of any sum to Musammat Maina or her donees. The latter and the Mutwalli preferred the present appeal to this Court and Musammat Maina died during the pendency of the appeal,

(3.) The decree of the lower Court is challenged on three grounds only which we have already mentioned above. In support of the first ground, viz., that of res judicata, it is urged that the lower Court and the plaintiffs are under a misapprehension in thinking that the position of a Muhammadan widow in possession of the estate of her deceased husband in lieu of dower is analogous to that of a mortgagee or that a suit by his heirs against the widow for the recovery of possession of their share in his estate is similar to a redemption suit. It may be that in some cases her possession is described, for want of a better expression and in a loose way, as that of a mortgagee, but the incidents appertaining to the position of a mortgagee are wanting in her case. The case of Ghulam Ali v. Sagir- ul-nissa Bibi 23 A. 432 ; A.W.N. (1901) 124 is cited in support of the argument. In that case it was laid down that there was nothing to prevent a Muhammadan widow, who was in possession of the property of her late husband in lieu of dower, from suing to recover her dower from the heirs of her deceased husband. If the analogy of a mortgagee were applicable to a Muhammadan widow in possession of her husband s estate in lieu of dower, she could not sue for the recovery of her unsatisfied dower even by offering to surrender or surrendering her possession of the estate. The remarks of the learned Judges who decided the case of Mirza Mohammad Sharafat Bahadur v. Shazadi Wahida Sultan Begum 28 Ind. Cas. 191 ; 19 C.W.N. 502 ; 21 C.L.J. 319 are relied upon to show that the suit by a widow for the recovery of her unsatisfied dower or by the heirs against her for the recovery of their share in the estate of her deceased husband is really in the nature of an administration suit, And where a decree in an administration suit is not executed and is allowed to be barred by lapse of time, no second suit would lie. It is further contended that if the position of a Muhammadan widow in possession of her husband s estate in lieu of her unsatisfied dower is analogous to that of a mortgagee, no second suit by the heir who shares in the inheritance would lie as was held in Sheikh Golam Hussein v. Musammat Alla Rukhee 3 N.W.P.H.C.R. 62 and Muhammad Zakariya v. Muhammad Hafiz 41 Ind. Cas. 233 ; 15 A.L.J. 557 ; 39 A. 506. In any ease the present suit is barred by the condition attached to the decree of 1903 to the effect that in case of default the suit was to stand dismissed. Reliance is placed on the case of Lachman Singh v. Madsudan 29 A. 481 ; 4 A.L.J. 447 : A.W.N. (1907) 137. For the plaintiffs-respondents the reply is that as far as this Court is concerned, it has been held more than once that the position of a Muhammadan widow in possession of her late husband s estate in lieu of her unsatisfied dower is analogous to that of a mortgagee, vide Anzullah Khan v. Ahmad Ali Khan 7 A. 353; A.W.N. (1885) 54 ; 4 Ind. Dec. (N.S.) 574 and Sita Ram v. Modho Lal 24 A. 44 ; A.W.N. (1901) 194 is cited as authority for the proposition that a second redemption suit would lie where the right to redeem is not barred by act of the parties or by an order of Court. The case of Lachman Singh v. Madsudan 29 A. 481 ; 4 A.L.J. 447 : A.W.N. (1907) 137 is distinguished on the ground that in that case the decree provided that if the redemption was not made within the time specified, the right to redeem would be barred. The learned Counsel for the plaintiffs-respondents contends that his right to inherit the property left by Muinuddin was not in dispute in the litigation of 1902. All that was in dispute in that case was whether the then plaintiffs could recover their share in the property without payment or if on payment, on the payment of what sum. The amount of dower as also the rate of interest were in dispute in that case. The amount of dower, the rate of interest and the amount payable at the time of the decree were determined by the Court and are questions which cannot be re-opened. In the present case the plaintiffs are asking for an adjudication on the accounts since 1903. Their cause of action for the present suit is quire distinct from that in the suit of 1902. As to the conditions attached to the decree, that in case of non- payment within sis months the suit should stand dismissed, the order did not extinguish the right of inheritance but only the right to get immediate possession.