ZAINUDDIN HUSSAIN MIRZA Vs. SOHAN LAL PACHISIA

JUDGEMENT

(1.) THIS appeal was heard by a Division Bench of this Court presided over by Mr. Justice Ahmad and Mr. Justice Misra but, as there was difference of opinion between the two learned Judges, the appeal has been placed be-fore me.

(2.) IN order to appreciate the points raised at the bar before me it is necessary to state briefly the relevant events preceding the institution of the suit which gave rise to the present appeal. On 30-11-1867, Raja Enayet Hussain executed a will by which he made provisions for various persons including one Mt. Bibi Phuso who was born of the womb of a kept mistress of the Raja. The salary of Rs. 200/- per month granted to Bibi Phuso under the will was paid to her as long as she was alive. After her death there was some agreement between; Syed Ata Hussain, the legitimate son of Raja Enayet Hussain, and Sk. Salamat Hussain, husband of Bibi Phuso by which the latter was accepted to have inherited half of the monthly grant of Rs. 200/- payable to Mt. Bibi Phuso. On this basis Salamat Hussain was paid Rs. 100/- per month by Ata Hussain who was in possession of the estate of Raja Enayet Hussain as the sole legatee under the will dated 30-11-1867. IN execution of a decree of Syed Ata Hussain the monthly salary payable to Sk. Salamat Hussain which he had inherited from his wife was put to sale in Execution case No. 7 of 1885. Bindraj and Ramchandra purchased at auction the right sold for a sum of Rs. 7,500. The auction sale was confirmed on 18-11-1885. The auction purchasers and their successors-in-interest were regularly receiving Rs. 100/- per month as the salary payable to Sk. Salamat Husain which they had purchased at the auction sale. On, 7-11-1933, the successors-in-interest of the auction purchasers sold their right purchased at the auction sale to Babu Santalal, the ancestor of the plaintiffs 2 to 4 and the plaintiff No. 1 for a sum of Rs. 20,000/-. The plaintiffs received Rs. 100/-per month from the estate of. Raja Enayet Hus-sain until June 1939, after which the payment was discontinued by the Court of Wards which was in possession of the properties left by the said Raja. The plaintiffs thereafter instituted the present suit for realisation of Rs. 10,000/- as per account given below at the foot of the plaint. IN the suit the plft's. impleaded the descendants of Syed Ata Hussain through the Manager, Court of Wards, as defendants first party and the heirs and legal representatives of the auction-purchasers as defendants second party. They pleaded, inter alia, that the grant made to Bibi Phuso alias Bibi Pasiunnissa was a heritable grant. According to them, the auction-purchasers had, in Execution case No. 7 of 1885 purchased the right of Sk. Salamant Hussain in respect of his salary of Rs. 100/- per month which he had inherited from his wife Bibi Phuso. They also pleaded that the defendants first party were estopped from challenging the right of the plaintiffs.

(3.) THE issues framed in the suit on which the parties went to trial were these: