AKBAR ALI Vs. MTADAR BIBI

JUDGEMENT

(1.) This is an appeal by one of the defendants Sheikh Akbar Ali from a preliminary decree for partition passed by the Second Additional District Judge of Hooghly reversing a decision of the Subordinate Judge of that district by which the plaintiffs suit was wholly dismissed. The properties which are the subject matters of partition are contained in two schedules to the plaint, namely schedule Ka and Schedule Kha. They belonged to one Amir who is the brother of Jamir. It has been now found by both the Courts below that Jamir was the consanguine brother of Amir and the plaintiffs to the litigation are the daughters of Jamir, and some of the defendants to the suit amongst whom the appellant is one are the children of Ashiran Bibi, full sister of Amir. Several defences were taken in the suit some of which it is necessary to mention, having regard to the points raised in this second appeal. The first defence taken was that with regard to the Kha schedule properties Amir conveyed during his lifetime by deeds of sale in favour of some of the defendants and that consequently the plaintiffs could not get by inheritance the Kha schedule properties. This defence prevailed in the Court of first instance. That Court came to the conclusion that there was an admission in the plaint that Amir did execute these deeds of sale in respect of the Kha schedule properties and that plaintiffs only contention was that these deeds were executed by Amir at. the time when he was on his death-bed-illness, when he was not of sound mind and that these deeds were extorted from him by some of the defendants.

(2.) The Subordinate Judge negatived the plaintiffs case that Amir was not of sound-mind. He found that the deeds were really executed by Amir in full possession of his senses and that the case made by the plaintiffs of coercion employed for the purpose of wresting these deeds from Amir was not true. It is to be observed that the defendants did not produce in Court the deeds by which the Kha schedule properties were said to have been conveyed to the defendants. On appeal the learned Additional District Judge rightly held that these transfers by Amir during his lifetime in respect of the Kha schedule properties have not been proved by the production of the deeds of sale. It has been argued in second appeal on this part of the case that the lower appellate Court was wrong in holding that these transfers have not been proved, seeing that the plaintiffs themselves admitted in their plaint that Amir did execute these deeds. He raised the contention that those deeds were executed under circumstances to which I have already referred. Para. 5 of the plaint was read to us and it appears clear from that paragraph that there was no admission by the plaintiffs of the execution of these deeds by Amir. Consequently, there being no such admission, it did not relieve the defendants from the burden of establishing these transfers which can only be proved by the production of the deeds of transfer. In the absence of the deeds the learned District Judge has rightly come to the. conclusion that the transfer during Amir's lifetime of the Kha schedule properties had not been proved. Another defence which it is necessary to mention, was that with regard to the Kha schedule properties there was a compromise in the suit of 1922. To that compromise Karimannessa, the widow of Jamir and the mother of the present plaintiffs, was not a party and consequently that compromise was not binding on the present appealing defendant. The answer to that contention is that the defendant I was a party to the compromise. He did take the benefit under the compromise having got a certain portion of the Kha schedule lands on the basis of the compromise and it is not open to him to praise the contention that the compromise was not binding because all the necessary parties interested in the Kha schedule properties were not parties to the compromise. This contention of the appellant must therefore fail.

(3.) The only point of substance argued before us is that the learned District Judge should not have granted a preliminary decree following the system of Imam Mahammad, one of the disciples of Abu Hanifa, who is the founder of the Sunni School of Mahomedan law, by which the present case is governed. It is contended that the system which the District Judge should have followed is i he system of Abu Yusuf, one of the two disciples of Abu Hanifa and reference has been made in this connexion to several authorities. The first case upon which reliance has been placed is the decision of Kemp and Markby, JJ., in the case of Khajah Hossain Ali v. Shahzadee Hazara Begum 12 W.R. 344. Reference has also soon made to the decision of Woodroffe, J., sitting on the original side in the case of Kulsom Bibi V/s. Golam Hossain Cassim Arriff [1906] 10 C.W.N. 449 at p. 488. Another case relied on is the decision of Sir Ashutosh Mukerjee in the case of Jinjira Khatun V/s. Mohammad Fakirulla Mia A.I.R. 1922 Cal. 429. All these cases however, it is to be noticed, are not cases on that branch of law, namely the law of inheritance with which we are at present concerned. But they are cases relating to the law of wakf. Consequently these cases are of no assistance. In the present controversy the question to be considered is whether in reference to the succession of a distant kindred the authority of Abu Yusuf should prevail over the authority of Imam Mahammad. It appears on an examination of the authorities that the preponderance of opinion of the jurists dealing with Mahomedan law is in favour of the system of Imam Mahammad in connexion with the succession of the class of a distant kindred. As I have already stated, the controversy in the present case is with regard to the partition of the properties of Amir as between the full sisters children on the one side and the consanguine brothers daughters on the other. Both of them fall within one class of distant kindred and it appears that Abu Hanifa's opinion is in favour of Imam Mahammad's system with regard to "zavil arham" or succession of distant kindred. In this connexion reference may be made to the principles of Mahomedan law, Edn. 1919 by Tayabji, J., of the Madras High Court. At p. 892 the learned author points out that Abu Hanifa's opinion appears to have been in favour of Imam Mahammad's system. A query however is put by the learned author to the effect as to whether the Courts in British India will not prefer Abu Yusuf's system for its simplicity: see Section 629 (A). In the comment to that section the learned author quotes a passage from Fatawa Alamgiri a book on Faraiz which is to the following effect: Be it known (i) that there are two reports about Abu Hanifa's view as regards this and of the two the better known report is that as regards all the rights of the zavil arham [distant kindred) he agrees with Imam Mahammad and the Fatwa, is upon the same view but (ii) Shaikh Asbijabi has said in the "Musbut" that the view of Imam Abu Yusuf is more correct inasmuch as it is more easy of application and (iii) the author of the "Muhit" states that the Shaikhs of Bukhara have adopted in such questions the opinion of Imam Abu Yusuf.