1. The plaintiff brought this suit to enforce her right as his widow to a share of the estate of the late Syed Nawab Azam Ali Khan Bahadur, who was known to the public as the Nawab of Jafargunge in the district of Murshidabad. He was the eldest of five brothers and traced his descent from the eldest son of the historic Mir Jafar, Nawab Nazim of Bengal, the present Nawab of Murshidabad being, it is said, descended from a younger son of Mir Jafar.
2. The principal defendant (defendant No. 1) is the eldest son of Nawab Nazim Ali Khan and the pro forma defendants are other members of the same family.
3. It is common ground that the Nawab went on pilgrimage to Mecca and afterwards died at karbala, in Turkish territory, on the 20th February 1896.
4. Part of his estate appears to be still in the custody of the British Counsel at Bagdad and consists of the articles enumerated in schedule ka of the plaint. As to the remainder, it is not now denied that the defendant No. 1 is or has been in possession of the movable and immovable properties of which a list is given in schedule kha of the plaint.
5. The family has always been of the Shia persuasion and this suit, therefore, is governed by the Shia Law, so far as it is applicable to the circumstances of the case. It is no longer contended that the plaintiff was not a lawful wife of the late Nawab and the plea that she was a mere concubine has been abandoned. It follows that as a childless widow the plaintiff is entitled, unless the defendant No. 1 can show some good reason to the contrary, to the ordinary rights of such a widow according to the Shia Law. She claims one-sixteenth of the movable and immovable properties detailed in the schedules of the plaint, or the money value of that share. There is no dispute as to the fraction but some attempt has been made before us to draw a distinction between the two kinds of property. That, however, is not the main defence to the suit and the point will be noticed later. The main defences are, firstly, that the claim is barred in whole or in part by limitation, and, secondly, that a customary rule of devolution, founded on primogeniture, obtains in the family, according to which the defendant No. 1 as the eldest son has succeeded to the whole of his father's estate. The Subordinate Judge has determined the two issues thus arising in favour of the plaintiff and against the defendant No. 1, the appellant before us.
6. The greater portion of the argument addressed to us was devoted to the question of limitation. It appears that in 1898, the defendant No. 1 applied for Letters of Administration to the estate. As similar applications had been made by the other members of the family (including the defendant No. 3 of this suit), there was a contest. The District Judge (Mr. Teunon) decided in favour of the defendant No. 1 by a judgment, dated the 22nd December, 1899. An appeal to the High Court from that decision was dismissed on the 22nd January, 1902, but in spite of his success in this litigation, the defendant No. 1 never perfected his rights as administrator. He did not give security and he did not take out formal letters of administration.
7. Upon these facts it was contended for the defendant No. 1 that the Subordinate Judge was in error in applying Article 123 of the second Schedule of the Limitation Act of 1877 to this suit, because the defendant No. 1 never in fact became the legal representative of the late Nawab, and there was, therefore, nothing payable or deliverable, within the meaning of that article by the defendant No. 1 to the plaintiff. It was contended further that Article 123 being inapplicable, and a Mahomedan widow being entitled only to the money value of her share of her deceased husband's estate, the claim in respect of both movable and immovable properties was governed by Article 120 and the period of six years allowed by that article had expired before the suit was instituted, the right to sue having accrued at latest when the defendant No. 1 applied for letters of administration in 1398 and the suit not having been instituted till 1907. In support of these contentions, so far as they relate to the particular article to be applied, reference was made to the cases of Issur Chunder Doss v. Juggut Chunder Shaha 9 C. 79 and Sithamma v. Narayana 12 M. 487 decided in India and to the case of Mahomed Riasat Ali Khan v. Hasin Banu 21 C. 157 : 20 I.A. 155, decided by the Privy Council. It may be doubted whether on the facts before us these authorities are conclusive in the appellant's favour and whether in a suit by the respondent against the appellant and other members of the family interested, the appellant can obtain for himself any advantage from the circumstance that having applied for Letters of Administration and obtained an order for the grant of such letters, he did not take the requisite steps to make the order effectual. But in the view which we take, it is unnecessary for us to express any opinion on that point. We think that the suit, even if it is governed by Article 120 and not by Article 123, is within time. Until the contest as to the right to obtain Letters of Administration was determined, the person entitled to represent, the estate was unknown and it was, if not impossible, at any rate inexpedient and unnecessary for the plaintiff to take any action. The facts that the defendant No. 1 finally succeeded in that contest and afterwards resisted her claim to a share of the estate are part of her cause of action and for the purpose of Article 120, time began to run at the earliest from the date of the High Court's judgment, which was within six years of the date of the institution of the suit.
8. As to the alleged custom, the learned Subordinate Judge has dealt with the question very briefly, but this defence was not pressed upon us with great insistence and there is not much to be added to what the Subordinate Judge has said. The question was raised in the contest for the right to administer the estate and the learned District Judge, in the judgment of 1899, to which we have already referred, found against the custom. It is true that the High Court, when the case came up on appeal, held that it was unnecessary to enter into the question and expressly left it open to be decided, if it was raised, in some future suit. The appellant, therefore, is not concluded by Mr. Teunon's judgment. But the question was raised and dealt with in a subsequent suit brought by one of the appellant's brothers against him and other members of the family for a share of the estate. In that suit, the trial Court again decided against the appellant (vide the Subordinate Judge's judgment of 11th July 1905) and when the case came up to the High Court, the suit was, pursuant to a deed of agreement dated the 25th March 1896, compromised on terms, which from the judgment of the High Court, dated the 2nd April 1900 appear to have been very beneficial at any rate to the minor respondents on whose behalf the existence of the custom had been denied. It appears, moreover, that the present plaintiff was a party to that suit as the defendant No. 3, that she appeared in the High Court, that she refused to take part in the compromise on the ground of the insufficiency of the amount offered to her and that as against her the appeal was dismissed with costs. It was not contended that the question is res judicata as between the parties before us, but regard being had to the course of the controversy and to the evidence given in this suit, we see no reason to dissent from the conclusion of the learned Subordinate Judge that the custom had not been established.
9. There remain one or two minor matters to be considered.
10. It was argued before us, on the authority of the case of Umardarez Ali Khan v. Wilayat All Khan 19 A. 169, that the plaintiff was entitled to nothing in respect of the late Nawab's landed properties. This contention, however, does not seem to have been advanced in the lower Court and we are not disposed to allow it to be put forward for the first time in appeal.
11. As to the house known as the Osmani mahal, the Subordinate Judge in his judgment gave the plaintiff not only the right to live in it but also a one-sixteenth share of its value. We do not think that she can have both and indeed it does not appear that the light to live in the house is given by the decree. We content ourselves, therefore, with setting aside so much of the judgment as purports to give that right.
12. As to the cross-objections of the plaintiff, the only objection urged before us relates to the valuation of the palace of the late Nawab. The valuation is based on a valuation made for the purposes of the suit for Letters of Administration and it is contended that the damage caused by the earthquake has been twice deducted. We are not satisfied, however, that the Subordinate Judge's valuation is wrong and we think it is safer to let it stand.
13. With these observations, the appeal and cross-objections are dismissed with costs and, the decree of the lover Court is confirmed.
14. We may mention that we delayed the delivery of our judgment in order to give the parties time to come to an agreement but they have not found it possible to do so.