MAHOMEDALLY TYEBALLY Vs. SAFIABAI

JUDGEMENT

(1.) THIS case concerns the administration of the estate left by one Ebrahimji who died in 1904. He was a Dawoodi Borah governed by the Shia School of Mahomedan law and had carried on business in Bombay with his brother Sarafally as merchants and commission agents. A pedigree table of the family is given hereunder. They belonged to Kapadvanj in the Kaira District of the Bombay Presidency, and the brothers were co-owners of certain immovable properties there in addition to their interests in their ancestral home. Their Bombay business was a profitable one and a house in Samuel Street in Bombay had been acquired out of the profits.

(2.) THE heirs of Ebrahimji, according to the Shia system of "sharers" and "residuaries" were (1) his mother" Jelumboo entitled to a sixth share, (2) his widow Fatmabai entitled to an eighth share, (3) his son Kikabhai, and his two daughters by different wives (4) Safiabai and (5) Khatizabai. THEse children took shares in the residue left after deduction of the mother's and widow's shares, the son taking twice as much as a daughter. His brother Sarafally and his two sisters Sakinaboo and Amtoolaboo were not heirs. THE business was continued by Sarafally, the share of Ebrahimji being left in the business. Jelumboo lived with her son Sarafally until her death in 1912. Another Bombay house-in Abdul Rehraan Street-was acquired out of the profits in or about 1917. Amtoolaboo died in 1920 leaving as her heirs two daughters the plaintiff Safiabai and Asmabai (defendant No.8).

(3.) ON Sarafally's death (August 5, 1923), his estate devolved on his widow, his four sons and his four daughters. ON September 24, 1924, an agreement in writing was made between them as Sarafally's heirs of the one part and the widow and three children of Ebrahimji as representing Ebrahimji's estate of the other part. No notice was taken in this agreement of Jelumboo or her heirs as having any interest in the estate of Ebrahimji. The agreement of July 13, 1923, was approved. The house at Abdul Rehman Street and its contents and two immovable properties at Kapadvanj were to be taken by Ebrahimji's heirs, and Sarafally's heirs were to get the Samuel Street house and the business. These assets were to be taken at certain valuations: the figure for the business to be fixed by one Metaji Chaturbhuj Motichand who was to make up the final account. Some properties at Kapadvanj were not included in this arrangement but it was recited that these had already been divided.