MIRZA SADIK HUSAIN Vs. MUSAMMAT KANIZ ZOHRA BEGAM

JUDGEMENT

(1.) This appeal is presented from an Order dated the 27th November 1906, made by the Court of the Judicial Commissioner of Oudh, which affirmed an Order dated the 5th September 1906, made by the District Judge of Lucknow.

(2.) It appears that one Mirza Agha Hasan Khan died on the 27th December 1901. He was survived by a widow, a daughter and a son. They were heirs of the deceased under the Mahomedan law of the Shiah sect, and the property fell to be divided amongst them in certain proportions. Mirza Agha Hasan Khan s property, however, was situated in various districts, and while the arithmetical division of " the shares fell to be determined by law, it was considered by the heirs that it would be to their advantage that, instead of a large variety of fractional portions of property being taken by each heir in subjects situate, it might be, at a considerable distance from each other, and arrangement should be carried out by arbitrators whereby the shares falling to the ladies should be consolidated in one district, and other arrangements for convenience of management entered upon. Accordingly a compromise and agreement in this sense was drawn up.

(3.) In April 1903 the respondents had brought a suit claiming administration of the estate, and on the 1st August 1905 the compromise was made, and on the following day, namely, the 2nd August 1905, the decree which raises the crucial question in this case was pronounced by the Subordinate Judge of Lucknow, which bore that "It is ordered that in terms of the compromise herewith annexed marked A .... plaintiffs claim be decreed under Sections 157 and 375, Civil Procedure Code; and as regards costs, the Court orders that parties do bear their own costs." Section 157 seems to have no bearing upon the procedure and to have appeared in the judgment by mistake, but Section 375 deals with the matter of compromise of suit and provides that "if a suit be adjusted wholly or in part by any lawful agreement or compromise...... such agreement, compromise, or satisfaction shall be recorded and the Court shall pass a decree in accordance therewith, so far as it relates to the suit, and such decree shall be final so far as it relates to so much of the subject-matter of the suit as is dealt with by the agreement, compromise, or satisfaction."