SM MASUDA KHATUN BIBI Vs. MAHOMED EBRAHIM

JUDGEMENT

(1.) This is an appeal by defendant 1 from a preliminary decree in a partition suit. The following genealogy will show the relationship of the parties: The two plaintiffs commenced the action on a plaint filed on 28 February 1927. The properties in respect of which partition was asked for were described in three schedules annexed to the plaint; schedule Ka, consisting of securities and cash, schedule Kha, moveable properties and schedule Ga, immovable properties. The shares claimed were on the basis of a genealogy, which was the same as given above, except that there was no mention therein of defendant 4 or of defendant 5, and the only persons impleaded as defendants in the suit were the first three defendants. It was maintained in the plaint that Badrul Alum had. one wife only, namely, defendant 3 Srimati Aheda Khatun and as regards his relations with Mrs. Katharine Alum the following statement was made in para. 4 of the plaint: The late Badrul Alum, the only son of Bazlul Karim was sent away by the father to qualify himself for the Bar, and when he returned from England as a Barrister, he brought with him an English lady. At this his father was very much annoyed, and Badrul Alum being involved in debts for various reasons was compelled to file a petition in insolvency and sent the lady back to England. Defendant 3 is the legally married wife of Badrul Alum under the Mahomedan law, and to her misfortune she survived (not predeceased as in the paper book) the said Badrul Alum.

(2.) Defendant 1 filed a written statement on 27 April 1927 in which she denied the correctness, in several respects of the genealogy which the plaintiffs had sat up; but with these details we are not concerned at the present stags, except that it was pleaded that the suit was not maintainable as the daughter of Badrul Alum who was an infant had not been made a party (para. 7). On the merits it was alleged that Bazlul Karim had no personal interest in any of the immovable properties in suit at the time of his death, because he had made a wakf in respect of them by a registered dead on 30 April 1920, and had since then and till his death dealt with them as muttawali under the said wakf (para. 9); that after Bazlul Karim's death his son Badrul Alum and after the death of Badrul Alum defendant 1 had acted as such muttawalia (para 13); and that the heirs of Bazlul Karim did not inherit any of the said properties (para, 12). It was also alleged that the moveables had not been correctly scheduled and that such moveables as wore in existence belonged exclusively to defendant 1.

(3.) On 13 December 1928, the plaintiffs amended their plaint by impleading Mrs. Katherina Alum, the English lady referred to by them in their plaint, as defendant 4 and an infant daughter of hers named Badre Manir alias Topi as defendant 5, adopting the averments which defendant 1 had made in her written statement, as already stated, that they ware wife and daughter respectively of the said Badrul Alum.