MOHAMMAD EJAZ HUSAIN Vs. MOHAMMAD IFTIKHAR HUSAIN

JUDGEMENT

(1.) This is an appeal by the plaintiffs in the suit against a judgment and two decrees of the Chief Court of Oudh, dated 18 October 1928, which reversed the decree of the Subordinate Judge dated 17 January 1928, as amended by his order dated 8 March 1928. The suit was brought by Mohammad Ejaz Husain and his sister Khaliqunnisa against their full and half-brothers and sisters, their mother Faiyazunnissa and Hamidunnisa, the wife of Amir Hasan, defendant 4.

(2.) The relationship between the parties to the suit appears from the pedigree which was attached to the judgment of the Chief Court, and which is as follows: The suit was brought for a declaration that an agreement dated 25 March 1912, and an award dated 2 April, 1912, were null and void and inoperative, and for a partition of certain properties alleged to have been the properties of the plaintiffs' father Mohammad Husain. The learned Subordinate Judge, who tried the suit, made a decree in the plaintiffs' favour; this decree was subsequently amended on an application for review, and it was thereby directed that the plaintiffs should get from defendant 4 (i.e., Amir Hasan) a 21/104 share, first, out of the sum of Rs. 25,526, being the capitalized value of a factory, and secondly a declaration of their rights to that extent out of the property No. 10 of the plaint list A, in so far as it was left: " .... after meeting claims of the original owners and the acquisition by the Improvement Trust, and also out of property No. 20 of the list, which is a family graveyard. Possession over the share out of property No. 10 can be obtained only after redemption of the mortgage assigned to defendant 4 (vide Ex. 11), the trust compensation money being taken to have satisfied pro rata a part of this mortgage debt.

(3.) Plaintiffs shall further get interest on the amount under the first head at the rate of Rs. 12 per cent per annum from 4 March 1912, to the date of realization. Costs on parties. A preliminary decree for partition to be prepared in those terms." From this decree both Amir Hasan, defendant 4, and the plaintiffs appealed to the Chief Court of Oudh. The learned Judges of the Chief Court allowed the appeal of Amir Hasan and dismissed the appeal of the plaintiffs. The result was that the plaintiffs' suit was dismissed the Chief Court directing that the parties should bear their own costs in both Courts. These are the decrees from which the plaintiffs have appealed to His Majesty in Council. Amir Hasan has died since the decree of the Chief Court was made, and his representatives are now on the record, and they are the only respondents contesting this appeal.