SHUKRULLA Vs. MTZUHRA BIBI

JUDGEMENT

(1.) This is an appeal by defendants 1 to 3 and 10 from the decree passed by the Additional Subordinate Judge of Gorakhpur, in a suit for joint possession of a large number of immovable properties, including three mills, all detailed in Schedule A annexed to the plaint, and for a declaration of their right to a share in the sums due from third persons under a number of bonds, detailed in Schedule O, together with mesne profits. The share of the plaintiffs in all the properties in dispute is alleged to be 16 out of 72 "sihams," that is two-ninths belonging to the first three plaintiffs, who have assigned half of their rights to the other three plaintiffs. The contesting respondents are five of the original plaintiffs and the legal representatives of the assignee plaintiff, Maqsud Ali, who died during the pendency of this appeal and is now represented by his heirs. Other defendants, who do not appeal, have been impleaded as pro forma respondents. The following pedigree will explain the position of the first three plaintiffs and the defendants, including the appellants, and will also elucidate the nature of the. plaintiffs claim:

(2.) This pedigree is admitted, except in some particulars to be presently mentioned. Rahimullah, plaintiff 3, is a cousin of Khuda Bakhsh, defendant 2, being the son of the latter's maternal uncle. The defendants deny that Dihu had any daughter. In particular they deny that he left a daughter named Jumman alias Minti. On the contrary, they allege that Dihu had a son named Jumman, who predeceased him, and that Mt. Nakchhedi, an alleged daughter of Shukrullah, defendant 1, was also known as Minti. Plaintiff 2, Mt. Zulekha, though admittedly the daughter of Rahimullah, is not admitted to be the daughter of a daughter of Dihu, so that if the defendants allegation on this part of the case is correct, plaintiffs 2 and 3 can have no interest in the property in. dispute.

(3.) The plaintiffs case, as stated in the plaint and supplemented by counsel s- statements in the earlier stages of the suit, is that the three sons of Hingan had a joint business consisting of trade and banking on a small scale. They were joint in mess and residence. Their joint savings were invested in business and acquisition of properties. After the death of Muharram his sons remained joint with Dihu and Shukrullah, their uncles, and after Dihu's death his son Ismail was similarly joint with Shukrullah, defendant 1, and the sons of Muharram, and that all the properties acquired up to-the year 1907 belonged jointly to Shukrullah, defendant 1, and the heirs of Muharram and Dihu, including Ismail. No male descendant of Dihu was left after the death of Ismail, and the latter's widow and sister, who were his heirs-and who inherited a share in the property, remained joint with Shukrullah, defendant 1, and the descendants of Muharram. Mt. Zohra, plaintiff 1, was-maintained by the defendants like other members of the family. Ever since the death of her mother, which occurred in; 1910, Mt. Zulekha lived with and was- brought up by Mt. Zohra, plaintiff 1, all her expenses being defrayed out of the property in. which she had a share. According to the plaintiffs, no one was considered to own any definite share in the joint property which descended from the common ancestor or was subsequently acquired with joint funds; each person interested in it had his expenses defrayed out of joint funds; and the entire property was managed by some male member of the family. Muharram, Dihu, Wazir and Noori Mian successively managed the business and the property. The family became very prosperous during the management of Noori Mian, which lasted from 1902 to 1921, when he died leaving no less than three mills at three different places which yielded considerable income to the family, The gist of the plaintiffs case is that the three sons of Hingan, their descendants and the heirs of such descendants constituted a joint family, similar in all respects to a joint Hindu family, with the difference that fresh interests were created not by birth but by death of those owning an interest, that there was commensality in mess, residence and business and that the entire property was join and manged by the male co-owners on behalf of all interested in it. On these facts, according to the plaintiffs, the widow and sister of Ismail were entitled to S/9ths of the entire property.