MARIAM BIBEE Vs. SHAIKH MUHAMMAD IBRAHIM

JUDGEMENT

(1.) This is an appeal by the plaintiff from the judgment of Greaves, J., dismissing her suit. The nature of the claim and the defence are fully set out at the beginning of the learned Judge s judgment as follows : "The plaintiff in this case is the daughter of one Haji Kader Bux, deceased, a Muhammadan of the Eraki sect or community who died on the 28th August 1907, leaving him surviving three sons, the defendants Shaik Mahomed Ibrahim, Shaik Mahomed Solaiman and Abdus Samad, five daughters, namely, the plaintiff and the defendants Hakima Bibi, Khadija Bibi, Ayesha Bibi and Khairunnessa Bibi, and two widows, Waziran Bibi and Mohatabo Bibi, the last named being the mother of the three sons and five daughters. The plaintiff claims to be entitled to 7/88 of her father s estate and amongst other reliefs asks for an enquiry of what the estate consists, and for partition thereof. The defendants other than those above mentioned are two sons of a brother of Haji Kader Bux named Hazir Bux, with whom he used to carry on business in Calcutta and elsewhere, and who succeeded to - their father s share in business, and one Mahomed Siddick who was and is entitled to a share in the profits of the Calcutta business.

(2.) The plaintiff s claim is resisted upon three grounds which appear in the written statement of Shaik Mahomed Ibrahim and which are as follows: (1) That Haji Kader Bux left no property, having during his lifetime disposed of it by two Hebas, the first of which was made on the 22nd April 1897 in favour of the defendant Shaik Mahomed Ibrahim and of the share of Haji Kader Bux in the Calcutta business, and the second of which was made on the 19th July 1907 in favour of his three sons and of the rest of his property. (2) That the Eraki community, although governed in all other respects by the Sunni School of Muhammadan Law, is governed in matters of succession and inheritance by Hindu Law, and that by the law and custom governing the parties the plaintiff is not entitled to any share in the estate of Haji Kader Bux if he in fact left any estate. (3) That by a deed of release, dated the 10th January 1908 the plaintiff for valuable consideration released any right and interest she had in her father s estate.

(3.) It will be convenient to set out the material dates: 22nd April 1897 was the date on which the 1st Heba relating to the Calcutta business is alleged to have been made by Kader Bux. 13th October 1904--The purchase of the house 47, Taltolla Lane. 7th February 1907--The dissolution of partnership so far as Abdul Gunny was concerned. 19th July 1907--The alleged 2nd Heba by Kader Bux. 28th August 1907--The death of Kader Bux. 31st October 1907--The Hebanama of Hadjee Bux. 5th November 1907--Hadjee Bux died. 9th January 1908--The deed of re-lease. 9th June 1908--Petition of Mahomed Ibrahim for guardianship.