FATMA KANI AMMAL Vs. SHAIKH DAWOOD

JUDGEMENT

(1.) Plaintiff 1 is the appellant. This second appeal arises out of a suit for partition of the properties left by one Haji Muhammad Esuff, husband of plaintiff 1. Defendant 2 is a sister of the deceased Haji Muhammad Esuff and defendant 1 is the husband of defendant 2. Defendant 3 is the son of plaintiff 1.

(2.) Haji Muhammad Esuff went to Singapore about four years before the date of the plaint and died there on 18 July 1928. The case of plaintiff 1 is that she is entitled to l/8 share and her son, defendant 3, to the remaining 7/8ths share in the plaint properties which belonged to her husband. Defendants 1 and 2 contended that Haji Muhammad Esuff left a will under which he bequeathed the plaint properties to defendant 2; they also raised the plea that the suit was bad for non-joinder of another widow of Haji Muhammad Esuff and the children by her at Singapore. Both the lower Courts upheld the contentions of the defendants that the will alleged to have been executed by Haji Muhammad Esuff is true, valid and binding on plaintiff 1 and that the suit for partition was bad on account of the nonjoinder of the widow and children of Haji Muhammad Esuff at Singapore.

(3.) In arriving at the finding about the genuineness and validity of the will, the probate that was granted by the Supreme Court of Singapore in respect of that will namely Ex. 1, was also taken into consideration by both the lower Courts. It is now alleged by the appellant that that probate was revoked by the Supreme Court, and an application has been filed to admit the subsequent judgment and order of the Supreme Court, Singapore, in evidence. The judgment is admitted in evidence and marked as Ex. D, and the order as Ex. D-l. The contention now raised by the appellant is that, as the probate originally granted in respect of the will, has been now revoked, it must be held that Haji Muhammad Esuff never executed a will at all, but died intestate. The effect of that contention is that Ex. D should be treated as a judgment in rem, as a consequence of which it has to be held that Haji Muhammad Esuff died intestate and that there was no will left by him in respect of his properties. But it is specifically stated in Ex. D: It follows therefore that the probate must be revoked and although the matter is not strictly before me for decision, it is to my mind clear that the testator revoked the will of May 25 by attempting to execute a later will and that as this attempt failed, he died intestate.