KHADERSA HAJEE BAPPU Vs. PUTHEN VEETTIL AYISSA DMMAH

JUDGEMENT

(1.) We agree with the decision in Umardaraz Ali Khan V/s. Wilayat Ali Khan (1897) I.L.R. 19 All. 169 where it is held that Art. 123 applies only when the suit is for a share of an estate which it is the legal duty of the defendant to distribute, In the case of a Muhammadan dying intestate the estate is at once vested in the hairs as tenants in common and there is no one charged by law with its distribution, and as pointed out in Abdul Kader V/s. Aishamma (1891) I.L.R. 16 Mad. 61 it does not appear that in Patcha V/s. Mohidin (1892) I.L.R. 15 Mad. 60 or Kasmi V/s. Ayishamma (1892) I.L.R. 15 Mad. 57 there was any contention that the defendant was not the lawful personal representative of the deceased. In Patcha V/s. Mohidin (1892) I.L.R. 15 Mad. 60 the question whether Art. 123 applied was not discussed or expressly decided but in Kasmi V/s. Ayishamma (1892) I.L.R. 15 Mad. 57 the learned Judges do apply Art. 123 but, as we think, wrongly.

(2.) We think the answer to the question referred must be that Art. 144 is applicable when the property is immoveable and Art. 120 when it is moveable property.

(3.) The second appeal again came on for hearing before Benson and Krishnaswami Ayyar, JJ., after the expression of opinion of the Fall Bench, the Court delivered the following