MT AKRAM-UN-NISSA Vs. MTMUSTAFA-UN-NISSA

JUDGEMENT

(1.) This appeal arises out of a suit for a declaration that certain zamindari property and a house belonged to the plaintiff, Mt. Mustafa-un-nissa, and are not liable to attachment and sale in execution of a decree obtained by the contesting defendants against Shaukat Ali, the plaintiff's husband. Shaukat Ali had two wives, namely, Qutub-un-nissa, the first wife, and Mustafa-un-nissa, the plaintiff, the second wife. Shaukat Ali had practically no property of his own and was maintained by his father, Qudrat Ali. On 15 April 1924 Qudrat Ali died and the bulk of his property passed to Shaukat Ali by inheritance. The first wife, Qutub-un- nissa, had died some time before Shaukat Ali inherited the property, and soon after Qudrat Ali's death the heirs of Mt. Qutub-un-nissa demanded her dower debt from Shaukat Ali. They filed a suit on 3 July 1924 claiming Rs. 23,000 as the dower debt and obtained a decree against Shaukat Ali for Rs. 18,750 on 17th September 1924. The decree-holder sought to attach the property in suit in execution of their decree but were resisted by the plaintiff who claimed that the property had been transferred to her by a decree dated 8 July 1924 which had been passed on the basis of an award in lieu of her dower debt. The decree- holders maintained that the transfer of the property by Shaukat Ali to Mt. Mustafa- un-nissa was a colourable transaction. The execution Court gave effect to their contention and dismissed the plaintiff's objection. Hence the present suit for the establishment of the plaintiff's title to the property in dispute.

(2.) The plaintiff's case was that her dower was fixed at Rs. 51,000 at the time of her marriage, about 27 years before the suit. Soon after Qudrat Ali's death she demanded her prompt dower from her husband and the matter was referred to an arbitrator who delivered an award on 28 May 1924 deciding that Rs. 17,000 of the dower was prompt dower and that the plaintiff should be owner of the property in suit in lieu of her claim for dower. Mutation was effected in the plaintiff's name and she claims to have been in proprietary possession. The defence was that the amount of dower was much less than Rs. 51,000 and that the award and decree upon which the plaintiff bases her title are collusive and fraudulent and were obtained with a view to defeat the defendants claim for the dower debt of the deceased wife, Qutub-un-nissa. There was an issue whether the plaintiff was the legally wedded wife of Shaukat Ali, but this contention was not seriously pressed in the trial Court and has been abandoned in appeal. We must take it, therefore, that the plaintiff is the lawful wife of Shaukat Ali.

(3.) The trial Court found that the plaintiff's dower was Rs. 51,000 and held that there was a real transfer of the property in suit in accordance with the decree passed on the basis of the award. The Court took the view that Shaukat Ali was merely preferring one creditor to another and that the transfer was not vitiated by collusion or fraud. The trial Court accordingly decreed the plaintiff's suit.