Oldfield and Mahmood, JJ.
1. The property to which this litigation relates formed part of the estate of one Ahmaduddin, who died in September 1871, leaving heirs whose names appear in the following table:
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Mumtazunnisa, Jeoni Begam, Shahabuddin, Imtiazunissa,
(daughter.) (sister.) (brother.) (widow.)
Under the Muhammadan law of inheritance, the estate of the deceased, being divided into 32 sehams, devolved upon the heirs in the following proportions:
Mumtazunnissa ... ... 16 sehams.Jeoni Begam ... ... 4 'Shahabuddin ... ... 8 'Imtiazunnissa ... ... 4 '
2. But it appears that, on account of an alleged will executed by the deceased in favour of his daughter Mumtazunnissa, her name alone was entered with reference to the property, and she alone obtained possession of her father's estate, to the exclusion of his other heirs. The deceased and his brother Shahabuddin appear to have been indebted to the defendant under a hypothecation-bond, dated the 8th May 1867, and subsequent to his death he instituted a suit against Mumtazunnissa alone as representing Ahmaduddin, and against the heirs of Shahabuddin. The suit was decreed on the 20th December 1876, for recovery of the money by enforcement of lien; and, in execution of that decree, the property in suit, along with the shares of other parties--defendants in that suit--was sold by auction on the 21st March 1878, and purchased by the defendant himself, and under that purchase he is in possession. To none of these proceedings was Jeoni Begam, a party, and she died, leaving Ahmad Husain her son and heir, who, on the 19th November 1882, executed a deed of sale, whereby he conveyed to the present plaintiff the rights and interests in the property inherited by him from his mother, namely, the 4 sehams in the estate of Ahmaduddin. This share represents the property in dispute in this litigation. Such being the plaintiff's title, the object of the suit was to recover possession of the share which he had purchased. The defendant, without disputing the question of inheritance and the extent of the rights purchased by the plaintiff, resisted the suit mainly upon the ground that the execution-sale of the 21st March 1878, having taken place in execution of a decree passed against the estate of the deceased Ahmaduddin of his debts, in a suit to which his daughter Mumtazunnissa, the heir in possession, was a party, the auction-sale at which he purchased conveyed to him absolute ownership of the property, as, under the Muhammadan law, the debts of the deceased ancestor took precedence over the rights of the heirs, and inheritance did not therefore open up in favour of Jeoni Begam till the payment of the debts of the deceased--the payment of such debts being a condition precedent to the devolution of property upon the heirs.
3. Both the lower Courts have concurred in accepting this defence and in dismissing the suit, and the plaintiff has appealed upon the ground that, as representing the interests of Jeoni Begam, he was not bound by the decree of the 20th December 1876, to which she was no party: that Mumtazunnissa could not in that litigation represent so much of the estate of Ahmaduddin as had devolved upon Jeoni Begam, and therefore all that the plaintiff purchased in the auction-sale of the 21st March 1878, was the rights and interests of those who were parties to the decree, without affecting the rights which the plaintiff had purchased from the sou and heirs of Jeoni Begam.
4. We are of opinion that this contention has force. The question of law involved in this case arose in the case of Jafri Begam v. Amir Muhammad Khan Weekly Notes 1885 p. 248 which was referred to the Full Bench, and the answers given by the whole Court in that case dispose of the contentions of the parties in this litigation. Following the ruling in that case, we hold that, immediately upon the death of Ahmaduddin, the share of his estate claimed in this suit devolved upon his sister Jeoni Begam; that, she being no party to the decree of the 20th December 1876, her share in the property could not be affected by that decree, nor by the auction-sale of the 21st March 1878, which took place in execution of that decree; that upon her death that share devolved upon her son Ahmad Husain, who conveyed his rights to the present plaintiff under the sale-deed of the 9th November 1882, which, upon the findings of the lower Courts, was a bond fide transaction. The plaintiff is therefore entitled to recover possession of the share which he has purchased; but, according to the Full Bench ruling to which we have already referred, he cannot do so without payment to the defendant of his proportionate share of the debts of Ahmaduddin, which were paid oft from the proceeds of the auction-sale of the 21st March 1878. But no decree giving effect to this view can be framed here without ascertaining--(1) What was the amount for which Ahmaduddin would have been liable under the bond of the 18th May 1867, at the date of the auction-sale of the 21st March 1878? (2) How much of the proceeds of that sale went to pay off Ahmaduddin's debt? (3) What is the exact amount which the plaintiff, according to the view above expressed, is bound to pay the defendant before obtaining possession of the share claimed by him in the estate of Ahmaduddin
5. We remand the case under Section 566 of the Civil Procedure Code for clear findings upon these issues, and ten days will be allowed to the parties for objections under Section 567* of the Civil Procedure Code.