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Sayad Mira Saheb, Sayed Sahaji Mia Rafi and ors. Vs. Bai Chhoti Begam and anr. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1924Bom281; 73Ind.Cas.427
AppellantSayad Mira Saheb, Sayed Sahaji Mia Rafi and ors.
RespondentBai Chhoti Begam and anr.
Excerpt:
construction of document - 'auladdar aulad,' meaning of. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - 7 clearly shows that 'auladdar aulad' include descendants whether male or female except descendants through females......whether male or female except descendants through females. the plaintiffs had to admit that female descendants had a right of residence until their marriage, and also if a female of the family was forsaken by her husband or became a widow and. has no house of her own, she could come and live in the house. but there can be no distinction between female descendants through males, for the right of residence belongs to them by reason of their descent, and not merely by reason of their being unmarried, or widows, or forsaken, as defendant no. 1 has a right of residence in the house, then it must follow the plaintiffs are not entitled to recover the property mentioned in the plaint. if they are dissatisfied with the arrangement which exists at present with regard to the residence of.....
Judgment:

1. The plaintiffs sued to recover possession of the plaint property on the allegation that defendant No. 1 to whom it was given for residence, delivered it to defendant No. 2 after executing a gift-deed. The plaintiff's suit was decreed in the Trial Court, but after a remand this decree was reversed by the District Judge. The house was admittedly wakf property. By the document, Exhibit 40, which has been relied upon by both sides, undoubtedly the descendants of the person who executed that document were entitled to reside in the suit house. It was argued the term 'auladdar aulad' only meant male descendants, but there is no authority for that argument. On the contrary, the decision in Abdul Ganne Kasam v. Hussen Miya Rahimtulla 10 B.H.C.R. 7 clearly shows that 'auladdar aulad' include descendants whether male or female except descendants through females. The plaintiffs had to admit that female descendants had a right of residence until their marriage, and also if a female of the family was forsaken by her husband or became a widow and. has no house of her own, she could come and live in the house. But there can be no distinction between female descendants through males, for the right of residence belongs to them by reason of their descent, and not merely by reason of their being unmarried, or widows, or forsaken, as defendant No. 1 has a right of residence in the house, then it must follow the plaintiffs are not entitled to recover the property mentioned in the plaint. If they are dissatisfied with the arrangement which exists at present with regard to the residence of various members of the family, then they can take the necessary proceedings for claiming distribution of the premises. The appeal is dismissed with costs.


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