SYED YUSUF SAHEB Vs. SUBHAN BIBI

JUDGEMENT

(1.) This is an appeal against an order made in the course of the trial of a suit brought by a Mahomedan widow to recover her share in the properties of her deceased husband in the hands of the other sharers and residuaries of his estate. The order of the learned Judge was to the effect that the plaintiff should be paid Rs. 25 a month for her maintenance.

(2.) A preliminary objection has been taken that an appeal will not lie, as the order is not a judgment. But there is no substance in this objection, for the order in question clearly falls within the definition in the judgment of Sir Arnold White, C. J. in Tuljaram Rao V/s. Alagappa Chettiar (1910) ILR 35 M 1 : 21 MLJ 1 (F.B.) where he says : "An order on an independent proceeding which is ancillary to the suit, not instituted as a step toward judgment, but with a view to rendering the judgment effective if obtained, is a judgment within the meaning of Clause 15 of the Letters Patent." An order imposing an obligation of this nature in a pending suit is clearly more than a mere step towards final judgment or a mere interlocutory order necessary for proceeding with the suit.

(3.) The defendants did not admit that the plaintiff was entitled to any share in her husband's property, as it was their case that she and other widows had executed a release deed and obtained certain items of property in consideration thereof. The plaintiff alleged that she executed the document of 27 July, 1915 upon a misrepresentation. Until the release deed is set aside, which can only be done as the result of the suit, she is clearly debarred from claiming any share. This is therefore not a case where the plaintiff is clearly entitled to obtain some relief in the suit. In cases where the plaintiff is not "clearly entitled" to some relief in the suit, English Courts have refused to make an order for advancement of income. [Vide Rowley V/s. Burgess 2 W.R. 652 and Daniel's Chancery Practice, p. 863]. We should therefore ordinarily have to set aside an order of this kind made under no provision of law, but the appellant has in our presence consented to continue to pay the amount of Rs. 25 a month for two years from the date of the order, that is, till 15 October, 1925 without prejudice to any defence he may make in the suit and subject to the plaintiff furnishing security to the satisfaction of the Deputy Registrar on the Original Side within one month for the sum of Rs. 600. If the security is not furnished within one month as directed by us, the order will be vacated. If the suit is not decided by 15 October, 1925, the parties will be at liberty to apply to the Trial Court for a fresh order. Costs of this Appeal will be payable by the respondent to the appellant out of any decree that she may obtain as the result of the suit.