MURADUDDIN Vs. MT. UMRAOBI

JUDGEMENT

(1.) 1. The plaintiff-respondent is the daughter of Ahmed Saheb who died in 1894, 32 years before the institution of her suit : the defendants are the sons and widow of Ahmed Saheb. In accordance with the Mahomedan law the plaintiff became entitled to a share in the estate of Ahmed Saheb when he died. The plaintiff was then a minor and it may be conceded that there is a presumption that the entry into possession of the land by the sons of Ahmed Saheb was for the benefit of all the co-owners. This presumption however may be rebutted. Their Lordships of the Privy Council in Abdul Hussain Khan v. Sofia Dero AIR 1917 PC 181 (at pp. 464 and 465 of 45 Cal.) have entirely agreed with the following statements : It must be admitted that instances have been adduced in which the claims of daughters and sisters to a share have been ignored, or they have been allotted maintenance, though the cases mentioned by the Judge of a partition in the father's lifetime are not inconsistent with Mahomedan law. There are also cases in which married daughters have been treated as estranged from the family. But instances of this kind will be found to occur where there is no doubt that the family is governed by pure Mahomedan law. Indeed, in many parts of the country it is unusual for Mahomedan ladies to insist on their unquestioned rights. They will often prefer being maintained by their brothers to taking a separate share for themselves, and when they are married, the marriage expenses and presents are often, by express or implied agreement, taken as equivalent to the share which they could claim. Moreover Mahomedan females are so much under the influence of their male relations, that the more partition of the property among the males without reference to them cannot count for much.

(2.) THE practice to which this statement refers does not count for much towards proof that Mahomedan ladies have no rights; but does make probable that the sons of Ahmed Saheb may have held the land on their own behalf adversely to their sisters. There is cogent evidence that they did so hold the land. There were partitions between the brothers in 1896 and in 1902; shares were allotted in a manner which shows that the brothers claimed the whole estate and were not holding the land on behalf of the female co-heirs. It seems to me probable that the plaintiff who kept up her connexion with the brothers must have known of these partitions: but assuming that, she did not, it is quite sufficient that the assertion of the title at the time of partition was open. The learned Judge of first appeal appears to have taken a mistaken view of the law when he refers to his opinion that the plaintiff did not know of her exclusion from her share. It is sufficient if adverse possession is adequate, continuous and exclusive: the true owner must be vigilant and it does not prevent time running if she could have obtained, but did not actually obtain, knowledge of the adverse possession. The learned Judge refers to the fact that the claims of the plaintiff's sisters in respect of the property left by their father were adjusted only two years ago; but this seems to show only that they were prepared to put forward claims such as the plaintiff has done but were induced by receipt of some consideration to refrain from putting forward the claim. It has been found that the plaintiff up to the time of filing this suit did not participate in the profits.