1927 (12) TMI 7 - HC - Indian Laws

Summary

Issues Involved:
1. Determination of whether Mt. Mughlani Bibi was a Shiah before her marriage and whether Mt. Rani is her real sister.
2. Determination of the legal framework governing the devolution of the property in dispute.
3. Consideration of whether the transfer to Mt. Mughlani Bibi amounted to a gift or a hiba-bil-iwaz.
4. Examination of the custom relating to prostitutes and its impact on inheritance rights.
5. Consideration of the limitation period applicable to the suit for possession and declaration of title.

Detailed Analysis:

1. Determination of whether Mt. Mughlani Bibi was a Shiah before her marriage and whether Mt. Rani is her real sister:
The court found overwhelming evidence supporting the conclusion that Mt. Mughlani Bibi was a Shiah and that Mt. Rani was her real sister. Testimonies from witnesses such as Hashim Ali Shah, Raza Ali Shah, Gulab, and Khuda Bakhsh corroborated this. Additionally, the appellant, Fateh Ali Shah, admitted that Mt. Mughlani Bibi was buried in the Shiah graveyard and that she and Mt. Rani were both daughters of Ghulam Muhammad. Therefore, the court concluded that "Mt. Mughlani was the real sister of Mt. Rani and was a Shiah."

2. Determination of the legal framework governing the devolution of the property in dispute:
The court had to decide whether the property, which was given to Mt. Mughlani Bibi by her husband, would descend to her heirs under Shiah law or revert to the heirs of Muhammad Hamid Shah under customary law. The court noted that the ordinary custom in the province was that a gift of ancestral immovable property would revert to the donor and his heirs upon the failure of the issue of the donee. However, the court also acknowledged that this rule of customary law applied only to cases of pure gifts.

3. Consideration of whether the transfer to Mt. Mughlani Bibi amounted to a gift or a hiba-bil-iwaz:
The court examined the deed of gift and found that the transfer was in lieu of dower due to Mt. Mughlani Bibi and her right of maintenance. The deed stated that she became the absolute owner of the property, and the donor had no further concern with it. The court concluded that the transfer was not a pure gift but amounted to a hiba-bil-iwaz, which is tantamount to a sale and confers an absolute heritable title on the donee. The court cited several cases, including Nur Muhammad v. Mt. Allah Wassi and Abbas Ali Shikdar v. Karim Bakhsh, to support this conclusion.

4. Examination of the custom relating to prostitutes and its impact on inheritance rights:
The appellants contended that Mt. Mughlani Bibi, being a prostitute before her marriage, was governed by the custom relating to prostitutes, which allegedly disqualified her from inheriting property from her original family. However, the court found no substantial evidence to support this custom. The court also deemed such a custom, if it existed, to be "opposed to public policy and is immoral and consequently unenforceable in the British Indian Courts." The court held that even if such a custom existed, it did not necessarily disqualify the heirs under Mahomedan law from inheriting the estate of a former prostitute who had contracted marriage.

5. Consideration of the limitation period applicable to the suit for possession and declaration of title:
The court considered whether the suit was barred by limitation. The appellants argued that the right to sue accrued on 11th November 1913, when the Collector ordered the mutation in favor of the widows. The plaintiffs contended that the right to sue accrued on 4th January 1917, when the order was given effect, and Mt. Rani was dispossessed. The court agreed with the plaintiffs, stating that the limitation period began when the plaintiffs' rights were actually jeopardized. The court held that the suit was within limitation, as it was filed within six years from the date of dispossession.

Conclusion:
The court affirmed the decree of the Senior Subordinate Judge, holding that Mt. Rani was entitled to succeed to the whole of the property left by Mt. Mughlani Bibi. The court dismissed the appeal with costs, concluding that the plaintiffs' suit was within limitation and that the appellants had not displaced Mt. Rani's title to the property.