NOOR MOHD Vs. JANNI

JUDGEMENT

(1.) Fakiria's estate is the subject matter of controversy in this appeal. His sister Mst. Janni filed a suit for possession of the estate left by him, which was 1/6th share in the land described in the suit.

(2.) Noor Mohammed, Fakiria's father's brother denied the claim of Mst. Janni on the plea that the estate left by Farkiria was ancestral and under custom he was preferential heir. The trial Court decreed the suit of Mst. Janni with regard to half of the estate i.e. for 1/12th share in the total land shown in the plaint by joint possession, by judgment and decree dated 28th August, 1971, after recording finding that it was not proved that the parties were governed by custom and under Mohammedan Law, she and Noor Mohammed succeeded equally.

(3.) Noor Mohammed filed appeal before the District Court but Smt. Janni remained content with the judgment and decree of the trial Court as she neither filed cross appeal nor filed cross-objections in the appeal filed by Noor Mohammed. The lower appellate Court held that the property was not proved to be ancestral and that to non-ancestral property sister was a preferential heir as compared to the father's brother. In view of the aforesaid finding Mst. Janni was to succeed to the entire estate of Farkiria. The lower appellate Court took the shelter of Order 41 Rule 33 of the Civil Procedure Code and the decision of the Supreme Court in Giani Ram v. Ramji Lal, 1969 AIR(SC) 1144 and while dismissing the appeal of Noor Mohammed it decreed that suit of Mst. Janni for the entire estate of Farkiria and not for share as was done by the trial Court by judgment and decree dated 8th April, 1977. This is second appeal by Noor Mohammed.