AWAZ BIN ABDULLA Vs. OBIBIN AAZAAM

JUDGEMENT

(1.) This appeal is against the judgment and decree of the First Additional Judge, City Civil Court, Hyderabad, dated 29th October, 1959, passed in O.S. No. 297 of 1958. That was a suit for declaration of the plaintiff's right to recover 1 /3rd share from out of her father's share in the income and compensation amounts of Jagir of Umar Bin Ewaz Nawab Shamsheer-ud-dowla. Sultan Nawaz Jung was the original grantee from H. E. H. the Nizam. On his death his son Omar Bin Ewaz Shamsheer-ud-dowla became his successor to the Jagirs on a fresh grant made under the firman of the Nizam. He died leaving surviving him 5 sons Ali Bin Omar, Mehmood Bin Omar, Saleh Bin Omar, Ewaz Bin Omar and Sultan Abdullah. Only two of these sons were declared, by the firman, entitled to the Jagirs while the three others to maintenance. The maintenance-holders were Ali Bin Omar, Mehmood Bin Omar and Sultan Abdullah. Mehmood Bin Omar died leaving three sons: (1) Ahmed, (2) Sayeed, and (3) Saleh. All the three died in course of time one after the other. Saleh died childless. Sayeed left Jameela Begum. Ahmed died leaving behind him his daughter, Salma Begum the plaintiff, and a son Abdullah. Abdullah also died leaving Ali, Hussain, Awaz, 'Saleh who are defendants 2 to. 5 There was inordinate delay in the succession proceedings relating to Shamsheer-ud-dowla. When the inquiry started as to the quantum of maintenance to be granted to the branches of the three sons held entitled to maintenance, an Arzdasht was submitted by the Council of Ministers to H. E. H. the Nizam showing the quantum of the maintenance amounts and the arrears that may be rateably paid to persons in the branches of Sultan Abdullah, Mehmood Bin Omer and Ali Bin Omar. There was a division of opinion as to the quantum between the President of the Council and the other Ministers. While all the ministers were of the view that an annual maintenance of Rs. 5,250 to each branch should be granted, the President Sir Maharajah said only half of it was the proper quantum under the circumstances and that the arrears should be granted from 1343 Hijri and not from 1338 Hijri as recommended by the Ministers. When the Arzadasht showing this divided opinion was placed before the Nizam for his firman, the Nizam thought it necessary before he could come to a decision on these points to ask for certain details as to the financial position of the various heirs of the said three sons of Shamsheer-ud-dowla and also of the estate so that it may be ascertained how much burden the estate can reasonably bear and he further asked whether aftef determination of the sums the amounts should be paid to various share-holders in the line according to their " Sharai" shares on having regard to their financial stability. Thereafter several querries followed at intervals from time to time.

(2.) At long last, the Council prepared a statement B of the maintenance amounts and the arrears fixing the rate at Rs. 5,250 as originally recommended by the Council of Ministers and the Nizam accorded sanction to it. Mehmood Bin Omar, according to the statement was entitled to 1/3rd share. Similarly, the other two sons of Shamsheer-ud-dowla were entitled to 1/3rd share each in the maintenance amounts. The annual maintenance amount falling to each line was a sum of Rs. 5)250. At that rate, the arrears due to them were calculated and were prepared in the shape of a statement B. The recommendation of the Council as originally made was that the shares will be paid according to Sharah Shariff, but the ladies will not be entitled to their share after their marriage. The payment of share amounts will be stopped on their marriage. The firman does not contain any express direction in this behalf. It merely says that according to the opinion of the Council maintenance amounts with arrears as shown in Statement B be paid. After this sanction Salema Begum, who was married long before the sanction was accorded, claimed her share before the Nazim Atiyat. Her right was negatived by the Nazim Atiyat and also by the Revenue Board, on appeal. She then laid her present action for recovery of her 1 /3rd share as the daughter of Mehmood Bin Omar.

(3.) The only other heirs in the line of Mehmood Bin Omar were the sons of Abdullah, (i.e.), D-2 to D-S. These defendants disputed her rights on the ground that according to the terms of the firman, the female sharers were not entitled to the maintenance after their marriage. This plea of the defendants Was negatived by the trial Court. A declaratory decree was consequently given as against them (i.e.) defendant Nos. 2 to 5 for the amount. Hence this appeal. D-3 and D-5 are the only appellants. D-2 and. D-4 did not join in the appeal and they were made party respondents, their respective order in the array of respondents being respondents Nos. 5 and 6. The Jagir Administrator against whom the suit was dismissed was impleaded as R-4. The appeal as preferred thus was duly constituted as all the necessary parties were on record. It, however, appears during the pendency of the appeal, one of the necessary parties, Hussain Bin Abdulla, R-6 (D-4) died on 10th September, 1963. His legal representatives were not brought on record with the result that the appeal abated as against him. The order to that effect was also passed on 1st April, 1965. No steps for setting aside the abatement were ever taken. Further, of the legal representatives of the plaintiff who died during the pendency of the suit itself, only R-1, to R-3 were brought on record in this appeal and no steps were taken to effect service of notice on other legal representatives viz., R-7 and R-8. Eventually the appeal against them was dismissed on 22nd june, 1962.