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Hashmat Begam and anr. Vs. Mazhar HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Family
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All343
AppellantHashmat Begam and anr.
RespondentMazhar HusaIn and ors.
Excerpt:
.....father kamar-ud-din, which have been satisfied by the defendant. if this be so, then it is clear that knowledge of their exclusion from their shares therein was not acquired by the plaintiffs till a date which would bring the suit well within the period provided by that article. in this view the matter stands thus, that the plaintiffs are persons who, as the daughters of sakina bibi and kamar-ud-din, are entitled to a share in the inheritance of the estates left by those two persons, and it rests with the defendant mazhar husain to show either that, by relinquishment formally made and clearly and satisfactorily established, they have abandoned their interests in both properties, or that by his adverse possession for a period of more than twelve years prior to the date of suit, he..........no. (4), had a brother of the name of zain-ul-abid; and that his first wife was one musammat sakina bibi, who predeceased him. the property, which is the subject of the present suit is of two kinds: first, the interest which the plaintiffs claim as the daughters of musammat sakina bibi in their deceased mother's estate; and secondly, their shares in the estate left by their deceased father, kamar-ud-din, who died upon the 25th may 1874. the ease for the plaintiffs in regard to these two properties was that as to each of them they were severally entitled to six sihams; that their sister, the defendant khudayat-ul-kubra was also entitled to six sihams; and that the principal defendant, mazhar husain, their brother, was entitled to the residue of 12 sihams out of the 30 sihams into.....
Judgment:

Straight, J.

1. In the suit to which this appeal relates there were two plaintiffs, the appellants before us, Musammat Hasmat Begam and Musammat Ishrat Begam. The defendants to that suit, who are respondents before us, were Mazhar Husain, the brother of the plaintiffs, Husaini Begam, wife of Mazhar Husain, Musammat Khudayat-ul-Kubra, the sister of the plaintiffs, and Musammat Wajid-un-nissa, the second wife of Kamar-ud-din, the deceased father of the plaintiffs and defendants (l) and (3). It may be convenient also to state here that Kamar-ud-din, the father of the plaintiffs and defendants (1) and (3) and the husband of defendant No. (4), had a brother of the name of Zain-ul-Abid; and that his first wife was one Musammat Sakina Bibi, who predeceased him. The property, which is the subject of the present suit is of two kinds: first, the interest which the plaintiffs claim as the daughters of Musammat Sakina Bibi in their deceased mother's estate; and secondly, their shares in the estate left by their deceased father, Kamar-ud-din, who died upon the 25th May 1874. The ease for the plaintiffs in regard to these two properties was that as to each of them they were severally entitled to six sihams; that their sister, the defendant Khudayat-ul-Kubra was also entitled to six sihams; and that the principal defendant, Mazhar Husain, their brother, was entitled to the residue of 12 sihams out of the 30 sihams into which the properties were divisible. Such were the claims in respect of which the plaintiff's brought their present suit, and the grounds upon which they based their cause of action for coming into Court was, that by reason of certain alienations of the property of their deceased father and mother made by their brother Mazhar Husain in favour of his wife, the second defendant and daughter of their father's brother, Jamal-ud-din, they had been prejudiced in their rights by inheritance. In regard to that portion of the property which belonged to the estate of their mother Sakina Bibi, they no doubt said in their plaint, as part of their statement of the facts, that her death took place upon the 2nd February 1873. The nature of their claim being that which I have indicated, it was met by a long statement of defence filed by the defendant Mazhar Husain, the real answering defendant, which, when we come to analyze it, sets up three main contentions: First, that Musammat Sakina Bibi did not die on the 2nd February 1873, but on the 22nd January 1873, and, threfore, that the suit, quoad that portion of the property claimed is, as to both the plaintiffs, barred by limitation; secondly, that if it is not barred, then that, quoad the claims of the plaintiffs to the property both of Musammat Sakina Bibi and of Kumar-ud-din, there has been upon their parts a relinquishment of their rights of inheritance; and, lastly, it is urged that, even assuming the rights of the plaintiffs have not been relinquished, they are bound to repay to the defendant, before they can succeed in this suit, their shares of certain debts of their deceased father Kamar-ud-din, which have been satisfied by the defendant.

2. As to the first of these matters, an issue was framed and tried by the learned Judge below, namely, whether Musammat Sakina Bibi died upon the 2nd February 1873, as alleged by the plaintiffs, or on the 22nd January 1873, as alleged by the defendant. Upon this point the Subordinate Judge found against the plaintiffs and in favour of the defendant, and his finding was that the death of Musammat Sakina Bibi took place upon the 22nd January 1873. The learned Subordinate Judge acting upon that finding has, so I understand him, held that Article 141 of the Limitation Law is applicable to the suit, and that it, having been instituted upon the 29th day of January 1885, is beyond time, such date being more than twelve years from the date of the death of Musammat Sakina.

3. As to the first point impeaching this finding of fact, I listened to Mr. Conlan's argument with very great attention, and gave full weight to his criticisms of the witnesses for the defendants, and of the views expressed by the Subordinate Judge as to the value to be attached to the testimony on the one side and the other. Having fully considered all that evidence as it bears upon this point, I think it enough to say, without travelling through it in detail, that I am of opinion the Subordinate Judge was right in coming to the conclusion he did, and that the weight of evidence does appear to me to be in favour of the allegations made on the part of the defendants, that the 22nd January 1873 was the date of the decease of Sakina Bibi.

4. Then arises the question whether Article 141 of the Limitation Act is applicable. Upon consideration, I am inclined to think that it is not. I have come to the conclusion, though not without doubt, that the suit therein provided for is one by a Hindu or Muhammadan who, prior to the date of the death of the female, occupied the position of a remainder-man, or reversioner, or of a devisee, by devise, after the death of the female, instituting a suit on the basis of such title as remainder-man, reversioner, or devisee, and that it does not apply to the case of an heir-at-law suing for the possession of immoveable property in that character. I say I have come to this conclusion not without doubt; but it seems to me that when there is doubt upon a question of limitation, and another article can be found which reasonably applies to the suit, it is right to adopt it. From the assertion of the defendant himself in the 9th paragraph of his statement of defence, and from the circumstances disclosed, I think that the property left by Sakina Bibi and Kamar-ud-din may be regarded as joint family property of the kind mentioned in Article 127 of the Limitation Act. If this be so, then it is clear that knowledge of their exclusion from their shares therein was not acquired by the plaintiffs till a date which would bring the suit well within the period provided by that article. But if this article he not applicable, the plaintiffs can fall back upon the limitation of Article 144, and as no adverse possession has been pleaded or shown--indeed, the inference from the relation between them and the defendant rather pointing to a contrary inference--the suit under that article would also be within time. In this view the matter stands thus, that the plaintiffs are persons Who, as the daughters of Sakina Bibi and Kamar-ud-din, are entitled to a share in the inheritance of the estates left by those two persons, and it rests with the defendant Mazhar Husain to show either that, by relinquishment formally made and clearly and satisfactorily established, they have abandoned their interests in both properties, or that by his adverse possession for a period of more than twelve years prior to the date of suit, he has obtained a proprietary title to their shares. [The rest of the judgment deals with the other questions of facts, which is not material for the purposes of this report to set out. The appeal was ultimately decreed with costs.]

Tyrrell, J.

5. I entirely concur.


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