LALA MIYA SHAIKH ABBAS POTRIK Vs. MANUBIBI

JUDGEMENT

(1.) The plaintiffs sued to recover possession by redemption of the property described in Clause (e) of para 2 of the plaint. The properties originally belonged to Bhaudin who left a widow Hamidabibi, a son Daud, and two daughters who are plaintiffs Nos. 2 and 3. After Bhaudin's death, a suit was filed by a creditor of his, and only Daud was made a party, but as he was a minor, Hamidabibi, his mother, was impleaded as his guardian and filed a written statement on his behalf. In execution of the decree which was passed in favour of that creditor, certain property belonging to the estate of Bhaudin was put up for sale. That property had already been mortgaged to one Abbas in 1878, so that the heirs of Bhaudin were only entitled to the equity of redemption, which was purchased by AH, father of Abbas. The present defendants Nos. 1 and 2 are the sons of Abbas. A decree for redemption was passed in favour of plaintiffs Nos. 2 and 3 by the trial Court, and that has been confirmed in appeal.

(2.) The main question is whether the daughters of Bhaudin were deprived of their rights to the property by the decree passed against Daud and the subsequent sale. Ordinarily speaking they would not be bound by the decree in a suit to which they were not parties, nor would their interests in their father's estate pass by the sale in execution of that decree. That was decided by a Bench of this Court in Bhagirthibai V/s. Roshanbi (1918) I.L.R. 43 Bom. 412 : 21 Bom. L.R. 329 333.

(3.) The learned Judges in that case considered the decisions in Khurshetbibi v. Keso Vinayak (1887) I.L.R. 12 Bom. 101, and Davalava V/s. Bhimaji Dhondom. Mr. Justice Heaton said (p. 426): My learned brother and myself have considered the matter moat carefully and have come to the conclusion that it would not be incumbent on us to follow the case of Khnmhetbibi V/s. Keso Vinayak (1887) I.L.R. Bom. 101 if that case be held to affirm that the theory of substantial representation derived from the Hindu law applies to Mahomedans. For, to follow that case, if it so decides, would be to accept, without any stated reason for doing so, the application to Mahomedans of a rule evolved out of Hindu law; and to do this would, we think, be to set aside the principles underlying the decision of the Full Bench of this Court in Isap Ahmed V/s. Abhramji Ahmadji (1917) I.L.R. 41 Bom. 588 : 19 Bom. L.R. 579 F.B.