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1905 DIGILAW 84 (ALL)

Humera Bibi v. Zubeda Bibi

1905-04-12

BURKITT, STANLEY

body1905
JUDGMENT : STANLEY, J. 1. This litigation has arisen out of a claim by the plaintiff-appellant, Musammat Humera Bibi, for recovery of the share of the immovable property of the late Inayat-ul-lab, deceased, the husband of the principal defendant, Musammat Zubeda Bibi. In the plaint the plaintiff sets out a genealogical table of the family showing that she was interested in the estate of Inayat-ul-lah as one of his heirs. In the plaint it is stated that Inayat-ul-lah died on the 10th of March, 1892, leaving a widow, the defendant, Musammat Zubeda Bibi, a daughter, two brothers, and the plaintiff, his sister, him surviving; that the legal share of the plaintiff in the estate of Inayat-ul-lah amounts to 1 anna 2 2/5 pies out of 16 annas; and that, the entire estate is in the possession of Zubeda Bibi. It is then alleged that the dower debt of Zubeda Bibi amounted to Rs. 40 only, and the plaintiff expresses her willingness that if any portion of this debt remains due, a decree for possession may be made conditionally on payment of it. Then follows, after a statement as to the amount of the revenue of the property, a prayer for a decree awarding (1) possession of the share of the plaintiff in the property, (2) mesne profits for three years, and (3) the costs of the suit. The main defence of Zubeda Bibi is that her dower debt was one lakh of rupees, and that shortly before his death her husband gave her the whole of his property then in his possession in satisfaction of the dower debt, and that she remained and now is in possession of the property in lieu of her dower debt. 2. Three issues were framed upon these pleadings. The first is an issue as to the amount of the dower and whether it had been repaid, and if not, whether the defendant Zubeda Bibi was in possession of her husband's property in, lieu of her dower; and also whether she as put into possession of the property by her husband, and whether the heirs of her husband acquiesced in her possession. 3. It is not necessary to set forth the other two issues, as no question arises upon them in this appeal. 3. It is not necessary to set forth the other two issues, as no question arises upon them in this appeal. The learned Subordinate Judge, after a careful review of the evidence came to the conclusion that the dower of the defendant did amount to a lakh of rupees and he also found that Zubeda Bibi was put into possession of the property of her husband before his death in lieu of the dower debt. He further found that the dower debt has not up to the present time been repaid. 4. Against this decree this appeal has been preferred and a number of points have been raised before us on behalf of the appellants. On the questions of fact which have been determined in favour of Zubeda Bibi by the lower court we have been referred to some of the evidence which was adduced in the court below and comment at great length has been made on that evidence. We do not propose to deal with it at any length because the comments and criticisms of the learned counsel for the appellant have wholly failed to induce us to think that the court below came to a wrong determination upon the issue raised before it. It appears to us that the evidence in support of the case of the defendant, Zubeda Bibi, that her dower was one lakh of rupees and that her husband gave her possession of his property in lieu of the dower debt, is credible and convincing. We see no reason whatever for distrusting the truthfulness of the witnesses who depose to the case set up by Zubeda Bibi or to the truthfulness of Zubeda Bibi herself. Therefore, so far as regards the questions of fact raised in the suit, the case was in our opinion rightly decided. 5. The learned counsel for the appellant, however, raised a question which was not raised in the pleadings and upon which no issue whatever was framed in the court below. Therefore, so far as regards the questions of fact raised in the suit, the case was in our opinion rightly decided. 5. The learned counsel for the appellant, however, raised a question which was not raised in the pleadings and upon which no issue whatever was framed in the court below. His contention is that even admitting that the dower of the defendant Zubeda Bibi was a lakh of rupees and that she was put into possession of her husband's property in lieu of that dower, yet the Court ought to have directed an account to be taken of the profits of the property received by her during the time of her possession, and the amount of those profits should be set off against the dower debt, and that an opportunity should be given to his client of paying so much of the sum so ascertained to be due to the defendant as is attributable to his client's share of the property, that is, that a decree should be passed in favour of the plaintiff putting her into possession of her share conditional upon payment of the amount of the dower debt properly attributable to the share. We are of opinion that this contention cannot prevail. If the plaintiff had been desirous of claiming an account of this kind, she ought to have done so in the prayer to her plaint. It is nowhere suggested in the relief asked for in the plaint that an account should be taken of the profits, and no issue as to profits was raised at the trial, It does appear that a suggestion that an account should be taken was made before the court below, because we find a reference to this in the judgment. The learned Subordinate Judge, however, came to the conclusion that that question would be best raised in a suit for an account. We agree with him as to this. 6. We think that if the plaintiff is desirous that an account should be taken of the rents and profits for the purpose of ascertaining what portion of the, dower debt remains unsatisfied, he ought to ask for this in a suit framed for the purpose, A similar question came before their Lordships of the Privy Council in the case of Musammat Bebbee Bachun v. Sheikh Hamid Hossein, [1871] 14 M.I.A., 377. In that case their Lordships considered whether in a suit for possession in which there was no prayer or claim for an account, the Court ought to direct an account to be taken and came to the conclusion that it was not a convenient course to follow. They say, at page 390 of the report:— ”With regard to the suit for possession their Lordships have considered whether they ought to advice Her Majesty to direct an account to be taken in that suit; but, considering the way in which the litigation has been conducted, that no account has ever been asked for by the respondents, and that mesne profits were not even claimed in the suit, they think it will be more convenient to follow the course taken in the case of Amir-oon-nissa v. Moorad-oon-nissa, [1855] 6 Moo. I.A., 811 and to advice Her Majesty that this suit, so far as it prays for possession, should be dismissed as against the appellant without prejudice to any suit which may be instituted by the respondents for an account and administra-tion of Sheikh Wilayat Ali's estate consistently with the above declaration as to the appellant's dower,”. In the case to which their Lordships referred, their Lordships say, at page 230:— “Lastly, there remains the question of the distribution and administration of the deceased's estate. No such relief is asked by the plaint. The claim made by plaintiff is as sole heir against the defendants charging them with collusion in keeping him out of possession. He does not claim in the alter-native that if the marriage of the respondent Moorad-oon-nissa and the deed of dower are proved, then that he may have his share of the estate. It is possible it might have been competent to the courts below in their discretion, to have entertained such a question, but it was a matter of discretion for the Judge of the Sudder Dewany Adalat. It is possible it might have been competent to the courts below in their discretion, to have entertained such a question, but it was a matter of discretion for the Judge of the Sudder Dewany Adalat. Independently of this, Moorad-oon-nissa was in possession by the consent of the local authorities, a possession very analogous, to that of an executrix here.” Later on they observe:— ” We are of opinion, therefore that the Judges, before whom the case has been heard in India, took the right and convenient course in dismissing his suit and leaving him to bring another suit to obtain an account.” For this foregoing reason we think that the court below adopted a right course and we dismiss the appeal with costs, including fees on the higher scale.