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Tamizan Vs. Nanhey Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All334; 117Ind.Cas.111
AppellantTamizan
RespondentNanhey Lal and ors.
Excerpt:
- .....when admitting the appeal. the plaintiff who was the heir of one channu khan was entitled to seven siham property on his death and her brother farid khan only to fourteen. mutation was made accordingly on the death of channu khan, but in 1319 fasli, that is, in 1912, an alteration was specifically made in the knewat and the name of mt. tamizan was recorded against one siham and of farid khan against 20. when farid khan died the distribution of his property was made on the basis of his owning 20 sihams plus two sihams inherited from his mother. his daughter inherited a correspondingly large share, and munnu lal, defendant is purchaser of the share of the daughter. there has also been an auction sale of the assets of farid khan in the hands of his two sisters. that sale also took place on.....
Judgment:

Dalal, J.

1. The name of respondent 9 shall be removed from the record. Reference should be made to the order passed by another learned Judge on 27th June 1927 when admitting the appeal. The plaintiff who was the heir of one Channu Khan was entitled to seven siham property on his death and her brother Farid Khan only to fourteen. Mutation was made accordingly on the death of Channu Khan, but in 1319 Fasli, that is, in 1912, an alteration was specifically made in the knewat and the name of Mt. Tamizan was recorded against one siham and of Farid Khan against 20. When Farid Khan died the distribution of his property was made on the basis of his owning 20 sihams plus two sihams inherited from his mother. His daughter inherited a correspondingly large share, and Munnu Lal, defendant is purchaser of the share of the daughter. There has also been an auction sale of the assets of Farid Khan in the hands of his two sisters. That sale also took place on the basis of Farid Khan owning 22 siham property. After all these transfers Mt. Tamizan came to Court to obtain possession of her proper share of the property, eight sihams, from the purchaser of Mt. Taufiqan and from the successor-in-interest of her sister Mt. Rahiman Bibi. She has sought no relief against the decree-holder, Munnu Lal. The lower appellate Court held that the entry in 1319 Fasli was not wrong, that it was correct, and that it was made according to an understanding between brother and sister. The learned Judge of the lower appellate Court has pointed out that Mt. Tamizan paid revenue according to her share as recorded in the khewat and not in excess, that there were several mutations when she did not object. He also pointed out that Mt. Tamizan received no profits and, that her explanation that she held sir land was not true. There is thus a definite finding of fact that in 1912 the record was correctly prepared and by some arrangement by which Mt. Tamizan was bound she was recorded as cosharer of one siham only. The learned Judge of this Court has added another reason that if Farid Khan was cheating his sister Tamizan out of seven sihams of her eight sihams, there is no explanation why he should have been cheating her when he did not cheat her sister, Rahiman Bibi who was recorded for her full eight sihams. It is obvious to me that Mt. Tamizan has taken steps against strangers when the property passed out of the family. A portion of the share in possession of the family had also to be included in the suit not to expose her real desire of depriving strangers of family property which they had rightly acquired. I hold that since 1319 Fasli, that is, 1912, Mt. Tamizan has been entitled to only one siham property of her father, and not seven sihams. On this finding her entire suit was to be dismissed.

2. It was argued that the lower appellate Court was not entitled to give relief to the defendant who had not appealed. I am of opinion that the provisions of Order 41, Rule 33, Civil P, C, will apply, and the Court was entitled to grant relief to a defendant who had not appealed. The case of Mohsham Ali Khan v. Mulu : AIR1927All37 may be quoted in support. On behalf of the appellant reference was made to the Full Bench ruling in the case of Rangam Lal v. Jhandu [1912] 34 All. 32. The facts of that case were not analogous to the facts of the present case. There as between the appellant and the respondent the respondent had submitted to a certain decree passed in favour of the appellant. In the present case there was no submission by any respondent to a decree passed in favour of the appellant in the lower appellate Court. The case was of a respondent who could have appealed but has not appealed, and in such a case the lower appellate Court was entitled to exercise in favour of any of the respondents the power granted to him although such respondents had not filed an appeal. I dismiss the appeal with costs.


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