MT SIRAJ FATIMA Vs. MAHMOOD ALI

JUDGEMENT

(1.) This is a second appeal by the defendants arising out of a suit for a declaration of title to certain zamindari properties consisting of shares in certain villages, and for recovery of possession and niesne profits. One Afzal Ali had two daughters Siraj Fatima and Nisar Fatima from his first wife, and ho had a second wife Sagirunnisa whose children are the plaintiffs. Abid Ali defendant 2 is the husband of Nisar Fatima and Kaniz Fatima defendant 3 is her daughter. Afzal Ali died in 1918, leaving his two daughters from the first wife, his second wife and her children. Two annas share in his estate devolved on his wife Mt. Sagirunnisa. Sagirunnisa also died later in the same year and according to the strict Mahomedan law her share devolved upon her own children and not on her stepdaughters. But the narn03 of all the children of Afzal Ali wore recorded in the revenue papers against the two annas share left to Sagirunnisa on her death. Some time after this Nisar Fatima also died and her share devolved on her husband and her daughter and sister.

(2.) An application for partition was filed in the Revenue Court by Abid Ali the husband of Niaar Patima (presumably both on his own behalf and on be-half of his minor daughter) and Siraj Patima against the other children of Afzal Ali, who are the present plaintiffs. The application is not before us, and it is not clear whether it was for a perfect partition of the mahal or for an imperfect partition. It appears however that the minors were represented in the proceeding by Wajid Ali who was the grand-father-in-law of the plaintiff Mahmood Ali. It is also clear that Wajid Ali had been the certificated guardian of the minors.

(3.) An objection was filed by the guardian ad litem that the plaintiffs were entitled to the entire share left by Sagirunnisa and that the applicants had no interest in that share. As the names of the applicants were already recorded in the revenue papers the partition Court decided to proceed under Section 111(1)(b), Land Revenue Act, and directed that the plaintiffs through their guardian should institute a suit in the civil Court within three months for the determination of that question. Admittedly no suit was filed by the guardian. The Revenue Court therefore acting under Sub-section (2) decided the question against the objectors and ordered partition. The final order for partition was made on 18 October 1922. Mahmood Ali attained majority in 1923, and the present suit was filed by him, his brothers and sisters on 9 July 1924 against the defendants who had been the applicants for partition in the Revenue Court and also against Wajid Ali. The plaint was very badly drawn up and there were allegations in para. 8 of the plaint to the effect that defendant 2 Abid Ali won over the plaintiffs guardian Wajid Ali and colluded with him to cause harm to the plaintiffs; accordingly the plaintiffs guardian did not properly look after the partition case on behalf of the plaintiffs, nor did he put forth any objection with respect to the plaintiffs right of ownership while the minor plaintiffs were unable to take any proceedings and when the defendants came out successful in the partition case they wanted to deprive the plaintiffs of their right, but; the proceeding has legally no effect as against the plaintiffs. The reliefs sought; wore for the establishment of the plaintiffs right of ownership and proprietary possession over the property and for the dispossession of the defendants, mesne profits, interest and costs. There was a general prayer for any other relief which may be just and beneficial to the plaintiffs. The defendants contested the claim on the ground that there was no fraud, collusion or negligence on the part of the guardian and that the claim was barred by Section 233-K, Land Revenue Act,. They further pleaded that there had been an oral gift of the share made by Sagirunnisa to the defendants.