MT ZABAISHI BEGAM Vs. NAZIRUDDIN KHAN

JUDGEMENT

(1.) This dispute in this and the connected Appeal No. 175 of 1930, is about the property that belonged to one Nadir Ali who died before the year 1877 A.D., leaving a widow Nadirjan and two sons, Slier Ali and Hamza Ali and a daughter named Shafat Begam. Nadirjan transferred the share that devolved on her by right of inheritance from Nadir Ali to her two sons. The plaintiffs in the suit, were the heirs of Shafat Begam, viz., Nasiruddin, her husband and Fakhurddin, her sort, and they are the contesting respondents in both the appeals. The claim by them was with respect to the share that on the death of Nadir Ali devolved on Shafat Begam by right of inheritance, and to which share the plaintiffs became entitled, on the death of Shafat Begam in the year 1916, as her heirs. Admittedly Shafat Begam was entitled to a 14-80 share in the property left by Nadir Ali and the plaintiffs claim was with respect to that share.

(2.) The property owned by Nadir Ali was zemindari share in Mahal Sher Ali in village Datauji. It is not disputed that Shafat Begam was never in actual possession of that share, and it is common ground that sometime before the year 1910 a partition between Sher Ali and Hamza Ali took place. By that partition the zemindari share was divided into two holdings, holding No. 1, and holding No. 4. The former holding; was allotted to Hamza Ali and the latter to Sher Ali. Between the years. 1911 and 1920, by various transfers effected by Sher Ali and his widow, the whole of holding No. 4 passed bit by bit into the hands of certain trails ferees who have built glass factories, over portions of the property transferred. Hamza Ali also sold a portion of holding No. 1 to certain persons, but practically the whole of that holding is still with Hamza Ali's heirs. Hamza Ali died in the year 1919 leaving a widow Zabaishi Begam and three sons and two daughters. One of his daughters was a lady named Muzammil Begam who was arrayed as defendant 6 in the suit. The widow and the sons and the daughters of Hamza Ali were all defendants in the suit. Sher Ali also, died in the year 1921 leaving two eons who were defendants 1 and 2, in the suit. All the transferees were also impleaded as defendants. It would thus-appear that the defendants in the suit were the heirs of Sher Ali and Hamza Ali and their transferees.

(3.) The case formulated in the plaint was that the brothers of Shafat Begam who were in actual possession of the zemindari ishare left by Nadir Ali, were qua the share of Shafat Begam, in the position of trustees and that Shafat Begam must be deemed to have all along been in constructive possession of the share to which she was entitled. Almost all the defendants, except the sons of Sher Ali, contested the suit mainly on the allegation that on 12 April 1890, Shafat Begam executed a deed of reliquishment with respect to the share that devolved on her by right of inheritance from Nadir Ali in favour of her two brothers and thus ceased to be the owner of the share in dispute. The allegation of the plaintiffs that Shafat Begam was in receipt of the profits of the property was also denied by the contesting defendants and the plea of limitation was put forward in bar of the plaintiffs claim. The transferees claimed to be transferees in good faith for valuable consideration and contended that they were protected by Section 41, T.P. Act. The plea of estoppel was also raised by the transferees.