WASI AHMAD Vs. MAINA BIBI; MUHAMMAD FAKHIR

JUDGEMENT

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

(2.) Muin-ud-din died on the 6th of May, 1890, possessed of immovable 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 Barkat-un- nissa. Musammat Maina entered into possession of the entire estate and professed to remain in possession in lieu of her unsatisfied claim for dower. Musammat Barkat-un-nissa died on the 27th of June, 1892, and her husband Maslah-ud-din died on the 17th of August, 1897. Her mother, Musammat Khair-un-nissa, died on the 22nd of December, 1898. We refer to the husband and the mother of Musammat Barkat-un-nissa 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 Muin-ud-din. 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 Muiz-un-nissa 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 Barkat-un-nissa, as defendants in the case. One of the pleas on behalf of Musammat Maina was that at the time of the death of Muin-ud-din, his aunt and his step-aunt were alive, and Barkat-un-nissa was not an heir under the Muhammadan law to Muin-ud-din. She further pleaded that her dower-debt was Rs. 51,000 and in lieu of it Muin-ud-din before his death had gifted the immovable property to her. The pleas in defence were disallowed. The court held that Musammat Barkat-un-nissa was an heir of Muin-ud-din; that the dower debt of Musammat Maina was Rs. 51,000, and that no gift had been made by Muin-ud-din 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. 3,943-12-10, the proportionate amount of dower payable by them. The money was paid and the two ladies recovered possession of their share.

(3.) On the 25th of April, 1902, the three sons of Barkat-un-nissa and her third daughter, Musammat Muhib-un-nissa, brought a suit for the recovery of 84 sihams impleading as defendants in the case Musammat Maina Bibi, Musammat Ayesha Bibi and Musammat Ummahani Bibi and Musammat Muiz-un-nissa 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 Muin-ud-din 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 realized 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 7/12 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 case. She pleaded that her dower was Rs. 51,000; that the entire property of Muin-ud-din 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 Muin-ud-din 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 Muin-ud-din, 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 Muin-ud-din, All the suits including the one of the three sons of Musammat Barkat-un-nissa 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 Barkat-un-nissa 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 Muin-ud-din, as they had failed to prove their alleged relationship. When the case of the sons of Musammat Barkat-un-nissa 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 property 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 Muin-ud-din 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 plaintiff s 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.