ZULEKABAI Vs. EBRAHIM HAJI VYEDINA

JUDGEMENT

(1.) Haji Oomer Ebrahim, a Cutchi Memon, died about twenty-eight years ago leaving him surviving his widow Zulekabai the plaintiff herein, two sons named Elias and Oomer, and a daughter named Asibai also called Amibai. At the time of his death, he was possessed of two immoveable properties situated at Mauritius. Two years after the death of Haji Oomer, his son Elias died and the other son Oomer died in 1899. They were both minors and unmarried at the time of their death. Oomer s daughter Asibai was married to Kaderdina alias Kadu Vyedina, a brother of the defendants herein. Asibai died on the 31st of January 1909 childless and intestate and Kaderdina died on the 26th of December 1908. The plaintiff claims that on the deaths of both her sons she became entitled to the Mauritius properties " for a Hindu mother s interest therein." She has filed this suit praying, amongst other things, " that the defendants may be ordered to deliver to the plaintiff forthwith the title-deeds of the Mauritius properties."

(2.) All the three defendants have filed their written statements. The first defendant did not appear at the hearing. The third defendant appeared in person. Evidently they have left the fight in the hands of the second defendant who is admittedly in possession of the title-deeds relating to the Mauritius properties. All the written statements run on very much the same lines except for one or two small differences in details. I propose to confine my attention to the second defendant s written statement. With regard to the Mauritius properties he denies that the plaintiff took a Hindu mother s interest therein. He says that succession to those properties is governed not by Hindu law but by Mahomedan law, and contends that on the death of Haji Oomer, the Mauritius properties devolved on his heirs, namely, his widow, his two sons and his daughter, and that on the respective deaths of those two sons, the widow and the daughter of Haji Oomer got by inheritance additions to their original shares in the said properties. He further sets up an agreement between the plaintiff and her daughter Amibai whereby the plaintiff agreed to sell her interest in the Mauritius properties to her daughter Amibai for Rs. 1062. As one of the heirs of Amibai he says he is ready and willing to pay to the plaintiff Rs. 1062 and counterclaims that on payment of this sum to the plaintiff she may be ordered to execute the necessary conveyance. He has added two of his remaining brothers as parties to the counterclaim.

(3.) On behalf of the second defendant the first two issues raised by the learned Advocate General are ;- (1) Whether if this suit be regarded as suit for land this Court has jurisdiction to entertain it as the land in question is situated at Mauritius ; and (2) Whether if it be not so regarded the suit is maintainable to far as it claims possession of title-deeds of the said land.