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Sayad Jiaul Hassankhan Vs. Sitaram Bhau Deshmukh - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtMumbai
Decided On
Case NumberFirst Appeal No. 144 of 1910
Judge
Reported in(1911)13BOMLR1040; 12Ind.Cas.720
AppellantSayad Jiaul Hassankhan
RespondentSitaram Bhau Deshmukh
Excerpt:
mahomedan law--pre-emption--right services to executors or administrators on the pre-emtors death--probate and administration act (v of 1881), section. 89--actio personalis (sic) person--maxim. ; the right of pre-emption which a mahomedan has under mahomedan law, survives on his death to his executors or administrators by virtue of section 89 of the probate and administration act, 1881 - - comparing that section with section 268 of the indian succession act, which governs englishmen, as well as the various peoples of this country, we cannot doubt but that the intention of the legislature in both enactments was to make a large innovation upon the personal law of englishmen as expressed in the old maxim actio personalis moritur cum persona, as well as necessarily upon the personal law of..........deceased pre-emptor was a shafer. accordingly the learned judge below held that the pre-emptor's right died with him and that the suit abated.3. in appeal the appellant while still contending that the pre-emptor belonged to the shafei sect, takes a further point that under section 89 of the probate and administration act, which is expressly extended to mahomedans, a right of this kind does not die, but survives to the executors and administrators. comparing that section with section 268 of the indian succession act, which governs englishmen, as well as the various peoples of this country, we cannot doubt but that the intention of the legislature in both enactments was to make a large innovation upon the personal law of englishmen as expressed in the old maxim actio personalis moritur.....
Judgment:

Beaman J.

1. This suit was brought by the plaintiff to enforce his right of pre-emption. The suit was originally brought by the pre-emptor himself who has since died, and it is, therefore, now being carried on by his heirs and legal representatives. The main ground of contention in the first Court upon the preliminary issue, whether the right to sue died with the pre-emptor; and whether the suit abated; was that the pre-emptor was a Shafer and that according to the Mahomedan Law of that sect the right of pre-emption survived.

2. The first Court recorded the plaintiff's evidence and held that it was insufficient to establish the feet that the deceased pre-emptor was a Shafer. Accordingly the learned Judge below held that the pre-emptor's right died with him and that the suit abated.

3. In appeal the appellant while still contending that the pre-emptor belonged to the Shafei sect, takes a further point that under Section 89 of the Probate and Administration Act, which is expressly extended to Mahomedans, a right of this kind does not die, but survives to the executors and administrators. Comparing that section with Section 268 of the Indian Succession Act, which governs Englishmen, as well as the various peoples of this country, we cannot doubt but that the intention of the legislature in both enactments was to make a large innovation upon the personal law of Englishmen as expressed in the old maxim actio personalis moritur cum persona, as well as necessarily upon the personal law of Mahomedans and Hindus. Since that, in our opinion, is unmistakably the effect of Section 89 of the Probate and Administration Act, we think that its operation must be strictly confined to the persons named in it. We are, therefore, unable to accede to Mr. Jinnah's contention that the section is capable of being extended so as to include heirs and representatives who are neither executors nor administrators, within the clear definition of those terms contained in the Probate Act.

4. We see, however, no objection to the course proposed, should the Court adopt this view, namely, that the plaintiffs be now allowed to take out Letters of Administration with the least possible delay and that pending doing so, the hearing of this appeal be adjourned.


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