ABDUL SAYED Vs. MUBARAK BIBI

JUDGEMENT

(1.) The subject-matter of this appeal consists of three items of property,-(a) a house at Delaneypur, (b) a paddy field at Lamba Line measuring a little over two acres, and (c) a garden and paddy field at Pahargaon also measuring a little over two acres. The two Respondents and deceased wife of the Appellant are three sisters, being daughters of a lady named Kariman Bibi who died in the month of May, 1931. Zamiran Bibi, the deceased wife of the Appellant died on January 27, 1955.

(2.) The two Respondents instituted the suit out of which this appeal arises claiming two-thirds share of all the properties as heirs and legal representatives of the deceased Zamiran Bibi. The Appellant resisted the Plaintiff Respondents' claim to all the three properties on the ground that the Plaintiffs Respondents were not the heirs and legal representatives of the deceased Zamiran Bibi under the Andaman and Nicobar Islands (Land-tenure, Regulation, 1926 (Regulation No. III of 1926) hereinafter referred to as the Regulation). With regard to the house at Delaneypur the Appellant further pleaded that although the house stood in the name of his wife Zamiran Bibi, she was really a benamidar of the Appellant, and that the Appellant was the beneficial owner of that house. It is unnecessary for the purpose of the present appeal to recite the previous history of the title of Zamiran Bibi, although that title has been set out in the plaint and negatived by the judgment under appeal. For the purpose of the present appeal I shall proceed on the footing that all the properties stood in the name of Zamiran Bibi at the time of her death. Zamiran Bibi had occupancy rights in respect of lands in Mouza Lamba Line, and she had non-occupancy rights in respect of lands in Mouza Pahargaon.

(3.) The learned District Judge has held that in respect of the agricultural lands in Mouza Pahargaon and Lamba Line the two Plaintiffs are not the heirs under Section 13 of the Regulation and he has dismissed the Plaintiffs claim in respect of those lands. He has further held that are respect of the house at Delaneypur Zamiran Bibi's right was neither that of an occupancy nor that of a non occupancy tenant, since the land upon which the house was built was non-agricultural in character. The learned District Judge has further held that as there is no provision in the Regulation regulating succession to non-agricultural land the rights of the parties will be governed by their personal law, and since the parties to the litigation are Mahomedans of the Hanaf School, the Plaintiffs are entitled to four-sevenths share of the Delaneypur house and the Defendant Appellant is entitled to the remaining three-sevenths share. With regard to these shares the learned District Judge has relied upon a passage in Tyabji's Mahomedan Law. Against that decree the Defendant has filed the present appeal, and the Plaintiffs Respondents have also filed a cross objection challenging the constitutional validity of Section 13 of the Regulation.