MT AMINA KHATOON Vs. MOHAMMAD HASAN

JUDGEMENT

(1.) This is an appeal by the plaintiffs, whose suit for recovery of Rs. 273 odd was dismissed by the lower appellate Court, though it had been decreed by the Court of first instance. A preliminary objection has been taken by the learned advocate for the defendant-respondent that no appeal lies having regard to Section 102, Civil P.C., which provides that no second appeal shall lie in any suit of the nature cognizable by a Court of small causes when the amount or the value of the subject matter of the original suit does not exceed Rs. 500. I shall deal with the preliminary objection in the latter part of this judgment. Suffice it to say here that, in my opinion, it is not well founded. One Ali Hasan had two wives and issues by both of them. The plaintiffs are one of the wives and a son by her. The defendants are his children by the other wife named Kaniz Fatima. Ali Hasan had executed a lease in favour of one Farzand Ali in respect of a property known as "Dhara" property. The latter was liable to pay, under the lease, a sum of Rs. 500 on 1st July each year. He did not pay rent for the Fasli year 1335, which expired on 30th June 1928. Ali Hasan died on 26 June 1928, that is to say, 4 days before the date on which Farzand Ali was liable to pay rent for the Fasli year 1335. There was some dispute between Ali Hasan and his wife Kaniz Fatima in respect of the "Dhara" property. The dispute was referred to arbitration. The award, dated 2nd October 1922, made by the arbitrators provided that Ali Hasan should remain in possession of the dhara property for life and thereafter it should belong to the sons of Kaniz Fatima. The lessee Farzand Ali paid Rs. 500 on 1 July 1928 as the rent payable by him in respect of 1335 F. The payment was made to the defendants probably in the belief that on Ali Hasan's death a few days before the defendants alone were entitled to receive rent which fell due after his death in view of the award already referred to.

(2.) The plaintiffs instituted the suit which has given rise to this appeal for recovery of their share of the sum of Rs. 500 paid by the lessee after Ali Hasan's death to the defendants treating it as Ali Hasan's property, in which the plaintiffs were entitled to their share according to Mahomedan Law. The defence was that, Ali Hasan having died before the rent for 1335 F., became payable and his life interest having ceased before that date, the defendants were solely entitled to receive Rs. 500 which could not be considered to be part of Ali Hasan's assets. The first Court decreed the plaintiffs suit. The lower appellate Court however has dismissed it upholding the defence. In my opinion, the view taken by the lower appellate Court is not correct, nor was that of the Court of first instance, which decreed the plaintiffs claim in its entirety. Rent payable by a lessee accrues due from day to day, though actual payment is to be made on the expiry of a year. As between Ali Hasan, or those representing his estate, and the defendants, rent payable by the assessee for 1335 F., is to be apportioned. Those representing the estate of Ali Hasan are entitled to rent in respect of the greater part of the year, that is, from 1 July 1927 to 26 June 1926; while rent for the remaining four days belonged to the defendants. It is inequitable, and obviously not warranted by any rule of law, that the person who is on the scene when rent falls due is entitled to appropriate for the entire period for which it is paid, even though the right to receive rent for part of that period was not vested in him. The principle underlying Section 36, T.P. Act, is clearly applicable. This view is supported by Muhammad Abdul Jalil Khan V/s. Mohammad Abdus Salam Khan , the plaintiffs share of the amount of rent payable by the lessee for the period 1 July 1927 to 26 June 1928, comes to Rs. 232-4-0. He had erroneously claimed Rs. 237 odd, which is his share of the rent for the entire year ending 30 June 1928. The facts hereinbefore stated make it perfectly clear that the plaintiffs suit is not one cognizable by a Court of Small Causes. It is excepted from its cognizance by Art. 28, Schedule 2, Provincial Small Cause Courts Act, according to which a suit "for the whole or a share of the property of an intestate" is not cognizable by a Court of small causes. The plaintiffs suit is clearly one for a share in a property of Ali Hasan, who died intestate. In this view the preliminary objection that no appeal lies has no force and is repelled.

(3.) The result is that this appeal is allowed. The decree appealed from is reversed and the decree passed by the trial Court is modified so that the claim is decreed for Rs. 231-4-0. As the plaintiffs have substantially succeeded they shall have their costs in all the Courts from the defendants.