ASADULLAH KHAN Vs. BIBI KHAIRUN NISA

JUDGEMENT

(1.) This second appeal by the plaintiffs has come before us for hearing and disposal on being referred to a division Bench by a learned Single Judge of this Court. It arises out of a suit filed by the appellants against the defendant-respondents for realisation of Rs. 2587.50 paise, being half the cost of prosecuting an appeal in the Supreme Court under the circumstances stated hereinafter.

(2.) Salamat Ali Khan and Sakhawat Ali Khan were brothers. The former had a son named Nazir Md. Khan and a daughter named Bibi Hamidan. The latter had two sons named Basir Md. Khan and Nasir Md. Khan and a daugher named Bibi Jamila Khatoon. Jamila was married to Nazir, and Hamidan was married to Basir. Hamidan died during the lifetime of Basir. On her death, defendant No. 2, one of the sons of Nazir and Jamila, being an heir of Basir to the extent of 1/6th share filed a suit against him for realization of l/6th amount of the dower debt, said to be due to Hamidan from Basir. According to the case of defendant No. 2, the amount of the whole of the dower debt was Rs. 40,000.00. There was a contest by Basir, who said that the amount of dower debt was only Rs. 500.00 and resisted the suit on other grounds also. The suit was dismissed by the trial court, but on appeal to the High Court it was decree, Basir went up in appeal to the higher Court which eventually came to be pending in the Supreme Court, during the pendency of which Basir died. Basir died leaving without any issue. His heirs were Jamila Khatoon to the extent of half and the sons of Nasir to the extent of the other half. Jamila did not apply to be substituted as an appellant in the appeal in the Supreme Court in place of Basir. The only applicants were the plaintiffs, the sons of Nasir, who were substituted as appellants. Jamila was substituted as respondent No. 4. The appeal eventually succeeded, and the decree of the High Court in favour of defendant No. 2 was set aside. The plaintiffs filed the present suit for realisation of half the amount of cost claimed to have been incurred by them in the Supreme Court appeal on the ground that by the setting aside of the decree for dower debt, Jamila Khatoon, who was the heir of Basir to the extent of half, was also benefited.

(3.) Jamila Khatoon was defendant No. 1 in the suit and, after her death, she has been substituted by her daughter named Bibi Khairun Nisa. whereas her sons are defendants 2 to 4. The defence of Jamila Khatoon was that she was not benefited by the result of the appeal. She did not like to prosecute the appeal in the Supreme Court. Certain facts were stated on her behalf to show that the plaintiffs really prosecuted the appeal in the Supreme Court for their own benefit and not for the benefit of Jamila Khatoon.