MAHMADBHAI PEERBHAI Vs. BAI HAVABAI

JUDGEMENT

(1.) The original applicants in this case were the widow and three daughters of One Haji Nabi, who died in or about the mon October, 1922 at his residence, within the jurisdiction of the District Court of Broach. The application purported to be made under Act XIX of 1841. It stated that deceased had died leaving a considerable amount of property, that opponent No. 1, who was the nephew of the deceased, together with two daughters by a previous wife of the deceased residing with him, had taken into possession all the property of the deceased with the intention of appropriating it to himself, and prayed that an inventory of the estate and effects of the deceased Haji Nabi Miyaji should be made and some officer of the Court appointed as curator of the property belonging to the deceased. It is true that the applicants prayed for any other relief that might be deemed fit and proper to be granted. But that prayer can only be read in conjunction with the main prayer for the relief which was for the appointment of a curator and the taking of an inventory.

(2.) On that application an order for inventory was made after hearing opponent No. 1 on December 18, 1922. On September 6, 1923, an order was made by the District Judge at the applicants request which runs as follows:-- Whereas on the application of Bai Havabai widow of Nabi Miyaji danger is apprehended that before the summary suit can be determined there is danger of waste or misappropriation of the property by the opponent No. 1, Mahomed-bhai Pirbhai, who is alleged to have taken all the property, and though his pleader has made various promises which he has never carried out, I order that the said Mahomedbhai do furnish security to the extent of two lakhs within three days or a Curator will be appointed. This embodies the oral order issused by the Court on Thursday 30 August 1923.

(3.) Against this order the original opponent No. 1 has applied to us in revision. It has been contended that the District Judge hart no jurisdiction under the Act to make the order, on the ground that the opponent No. 1 was an heir of the deceased, and was entitled to be in possession of the whole, until the question had been decided how the estate should be distributed. There might have been some weight in that argument had it not been that the first opponent had claimed a half share of the property as belonging to himself during the lifetime of the deceased. He was, therefore, setting up a claim to at least half the property against the heirs.