SUNDER DEVI Vs. JHABOO LAL

JUDGEMENT

(1.) This second appeal arises an interesting point of law.

(2.) It appears that one Srimati Kaniz Begam started living with one Maheshi Lal sometime about the year 1892. Maheshi Lai was a Hindu while Kaniz Begam was a Muslim. There were some children born of Kaniz Begam and begotten by Maheshilal and they are plaintiffs 1 and 2 and defendants 1 to 5. Kaniz Begam continued to live with Maheshi Lal till his death in about 1941 and she herself died in 1946. She left some movable property in the shape of a share in a sugar mill and, according to the plaintiffs, also some jewellery etc. The share and jewellery were taken over by defendants 1 to 4 and the suit which has given rise to this appeal was then brought for the recovery of this property on the allegations that Srimati Kaniz Begam had been living with Maheshi Lal as his wife, that she had also undergone a regular ceremony of conversion in the year 1927 and that she died as a Hindu woman in 1946. The property in dispute was her stridhan property and the plaintiffs were entitled to succeed to that property in preference to defendants 1 to 4. A succession certificate had been obtained by defendants 1 to 4 in respect of the share and the plaintiffs alleged that this was brought about by practising fraud and deception upon the Court which necessitated the institution of a suit in respect of the share on the will.

(3.) Jhabbu Lal, defendant No. 4, alone contested the suit. Defendant No. 5 who was the own sister of the plaintiffs admitted the plaintiffs' claim. The other defendants remained absent and the suit proceeded ex parts against them. The defence raised by defendant No. 4 was two-fold. He alleged that the share in the sugar mill worth Rs. 1,000/- had been purchased) by Maheshi Lal with his own money in the name of Srimati Kaniz Begam, but Maheshi Lal was the owner of the share and as such it was not the stridhan property of Kaniz Begam and the plaintiffs were not entitled to succeed to that property in preference to defendants 1 to 4. The other contention of the defendant was that amongst the Agarwals of Mohalla Alinagar in Gorakhpur there was a custom under which daughters were not preferential heirs in the matter of movable stridhan. Some other pleas were also raised but they are not material for the decision of this appeal.