CHAND KHAN Vs. ALI KHAN

JUDGEMENT

(1.) This was a suit for recovery of possession over certain house property situated in the city of Jhansi. The lower Appellate Court has dismissed a considerable portion of the plaintiffs suit, and I am only concerned with that portion of the claim which has been decreed. The finding in respect of this is that it belonged to one Namdar Khan, who died somewhere about the year 1894 A. D. He left surviving him his widow, Raj Bibi, and two nephews (sons of his own brother Jawahir Khan) named, Ali Khan and Ghasi Khan. The latter has since died, leaving a son named Rahim Khan, a widow Musammat Muradi and a daughter Musammat Mahtabi. On the 22nd of February 1903, Musammat Raj Bibi executed a deed by which she purported to sell the property, with which I am now concerned, to Chand Khan and Moti Khan. In the present suit, the plaintiffs are Ali Khan and the heirs of Ghasi Khan, that is to say, his son, widow and daughter already named. The defendants are Musammat Raj Bibi, Chand Khan and Moti Khan, that is to say, the vendor and the vendees, under the sale-deed dated the 22nd of February 1903.

(2.) The lower Appellate Court has found that the property in dispute devolved on the death of Namdar Khan in accordance with the ordinary rules of Muhatumadan Law, so that Raj Bibi was entitled to the same to the extent of 1/4th share only. It has accordingly decreed the claim of the plaintiffs to the extent of a 3/4th share in the property conveyed by Musammat Raj Bibi under the deed of the 22nd of February 1903. It may be noted that Musammat Raj Bibi did not defend the suit at all, and that Moti Khan in effect admitted the plaintiffs claim. Chand Khan has contested the suit throughout and has now brought it before this Court in second appeal.

(3.) The first point taken is substantially a matter of pleadings. The plaintiffs un- doutedly came into Court with the allegation that their family, although converts to Islam, continued to be bound as amongst themselves by the Hindu Law, and in fact always constituted a joint Hindu family. There was also a special plea that the plaintiff Ali Khan had been adopted by his uncle, Namdar Khan. These points have been decided against the plaintiff by both the Courts below and are no longer in dispute. It is suggested, however, that on the pleadings as they stood, the Courts below were not entitled to carry their own findings to their correct legal conclusion but were bound to dismiss the plaintiffs suit altogether without considering how the inheritance to Namdar Khan s estate would in fact devolve under the Muhammadan Law, when that was held to be the law applicable to the parties concerned. I am unable to accept this contention. No doubt the plaintiffs in their anxiety to invalidate altogether the transfer made by Musammat Raj Bibi came into Court with statements going beyond what they were able to prove. But the alternative plea that in any case the plaintiffs had rights as sharers, or rather as residuary heirs under the Muhammadan Law, underlay the whole case for the plaintiffs, and particularly the 7th paragraph of the plaint to which the learned District Judge has referred. On the issues as framed, I do not think that the defendants were in any way prejudiced by defective pleadings, and I am of opinion that the Courts below, having found that the estate of Namdar Khan devolved in accordance - with the Muhammadan Law of inheritance, were right in giving the plaintiffs the benefit of that finding in so far as it operated in their favour.