SUMSUDDIN GULAM HOOSEIN Vs. ABDUL HOOSEIN KALIMOODIN

JUDGEMENT

(1.) Before us the suit has been treated as one brought by Fatamboo to establish her right as one of the heirs of her deceased father Kalimudin Amirudin, who died on the 25 of June 1900.

(2.) Kalimudin's heirs at his death were his two sons, the first and second defendants and his daughter, the original plaintiff Fatamboo. He left no will, so that if the case rested there, Fatamboo's claim would be unanswerable. But it is pleaded that by a document of the 25 of October 1895, Ext. F, her rights as one of her father's heirs were extinguished, and the only question argued before us has been as to the soundness of this plea.

(3.) Exhibit F is addressed to Kalimudin, and it runs as follows :- To Mulla Kalimudin Amirudin an inhabitant of Horwad at Cambay...Written by Bai Fatambu Kalimudin wife of Grulam Husen Abdulaly, an inhabitant of the aforesaid place. To wit. You are my respected father. You have two sons besides myself. And as to whatever immovcable and moveable properties (and) house-hold furniture belonging to you there are at Cambay, Bombay and Bakha and Bassein and other places, and as to what property there may be at your death after additions and deductions shall have been hereafter made to and from the same during your lifetime, thereto I have a right by way of inheritance according to the Mahomedan Law. And my mother had directed (you), to give (me) ornaments. For all (my) rights including the said right, you, having agreed by the agreement (herein) below mentioned to pay me Rs. 9000 namely nine thousand of Bombay currency have credited (the same) to my account from this day. Consequently, I having in consideration of the said sum, relinquished all my rights and claims, have given this release in writing and have agreed as follows:-As to any property (belonging to you) that there may be either in (this) country or in any other country, (i.e.) wherever (the same be situate) at your death, I have no right or claim whatever thereto. Only the above mentioned amount which has been fixed in consideration of all my rights 1 have caused to be credited (to me). I am to receive only that (amount) by the undermentioned agreement. 1 The moneys mentioned in this Release, have been caused to be credited to my account, at your place. In consideration of the interest thereon, I am, or my children that there may be, are to receive Rs. 250 namely Rupees two hundred and fifty of Bombay currency every year up to your lifetime. (I or my children) have no right to receive the principal amount during your life time but when at your death, I or my children may demand the principal amount for the purpose of purchasing a property yielding income or of depositing the same at interest at the place of some one, at that time your heirs, whoever they may be are bound to pay the same. As long as we do not withdraw the said money so long we are, after your death, to receive interest at the rate of eight annas. 2 On your death taking place we may purchase a property yielding income or we may deposit the principal moneys either with your heirs or at some other sahukars (i.e. a banker s). I or my children are to use the income or the interest in respect of the said amount and I or my heirs can withdraw (moneys) out of principal amount for urgent purposes (but) we cannot make an improper use of the same. And if I or my children or any one of their progeny be not alive, and if anything out of the property mentioned in this release should have remained duo to us, (then) the ownership thereof belongs to your heirs. 3 Prior to this release, Abdul Hussein had taken from me in writing a document in respect of my right. The same is cancelled and (I) have given this release in writing Consequently the responsibility in respect of the said document is on your head. And in future even if I should not be living at the time of your death, you or your heirs are bound to pay the abovementioned sum to my children. 4 You can give your heirs your property including the charge in respect of the aforesaid moneys mentioned in (this) Release that is to say those (persons) who may become your heirs are to enjoy your property after paying off the incumbrance in respect of the abovementioned sum, that is to say, your heirs or the persons taking your property are bound to pay the abovementioned sum. I have given this release in writing of my free will and pleasure (and) while in a conscious state, and under such a distinct agreement that any contention on my part or on the part of my children on the score of (your) giving your other heir (your) property except the abovementioned sum or on the score of (their) getting (the same) shall not prevail. The same is agreed to and approved of by me and my heirs. The 7 of Kartak Sud of Samvat 1952, Friday the 25 day of October in the Christian year, 1895.