MOHAMMAD BAQAR Vs. NAIM UN NISA BIBI

JUDGEMENT

(1.) This appeal arises out of a suit instituted on 31-5-1935 by the first respondent, Mst. Naimunnisa Bibi and her sister, Khadijaul-Kubra Bibi, since deceased, for partition of their shares in the estates of their father, Sheik Ataullah, who died sometime in 1892. The defendants to the action were their brothers. Sheik Kifayatullah and Sheik Mohammad Baqar. The plaintiffs alleged that after the death of their father, Sheik Ataullah, they and the defendants were living together as members of one family, that the first defendant was in management of the properties on behalf of all of them, that on 10-8-1933 the defendants executed a deed of waqf-alal-aulad for the benefit of their descendants, and that the said deed was a denial of their rights. They accordingly prayed for partition and delivery of 14/48th share in the estate of the deceased Sheik Ataullah, which they claimed as belonging to them, for an account of the management of the same by the first defendant from 1892 and for future mesne profits from 2-2-1934. The defendants contested the suit on only three grounds, viz., (1) that there was a family custom excluding the female heirs from sharing in the inheritance (2) that in 1893 there was a family settlement under which the plaintiffs gave up their rights to share in the estate, and (3) that the claim of the plaintiffs was extinguished by adverse possession on the part of the defendants, and that the suit was barred by limitation.

(2.) The Additional Subordinate Judge of Jaunpur who heard the suit, held by his judgment dated 14-5-1936 that the alleged custom was not made out, that there was, in fact, no family settlement, and that even if it were true it would not be binding on the plaintiffs as they were minor at the date of the alleged settlement, and that the suit was not barred by limitation, as they had been at all times in enjoyment of the income from the properties. He, however, held that the plaintiffs were entitled to 34/168th share in the estate of Sheik Ataullah and not 14/48th share as claimed in the plaint, and granted a decree for partition and possession of that share, and for rendition of accounts by the first defendant from 1892. The claim for future mesne profits was however, negatived.

(3.) Against this judgment, the defendants preferred an appeal to the High Court of Allahabad contending that the suit was liable to be dismissed on all the three grounds put forward in the trial court, and further that the decree for rendition of accounts from 1892 was bad. The plaintiffs preferred a cross-appeal claiming that they were entitled also to their share of the profits from the estate from the date of the institution of the suit until they were put in separate possession. By their judgment dated 22-10-1943 the learned Judges of the High Court agreed with the Subordinate Judge that the defendants had failed to establish the family custom excluding female heirs from inheritance, that further the family settlement which was alleged to have been entered in 1893 was not proved, and that on the facts no question of limitation arose. They, however, set aside the decree in so far as it directed rendition of accounts by the first defendant from 1892, but awarded the plaintiffs a decree for future mesne profits from the date of the plaint to be ascertained in further proceedings under O. 20, R. 12. They also held - and that was accepted by both parties - that the correct share to which the plaintiffs were entitled was 153/672 and not 34/168, as decreed by the Subordinate Judge. It is against this judgment that the present appeal by the defendants is directed.