DURGA DAS Vs. MUHAMMAD NAWAB ALI KHAN

JUDGEMENT

(1.) The order of the subordinate Judge in this case dismissing, the suit of the plaintiff's is erroneous and must be set aside. The suit was a suit for partition, the plaintiffs being the assignees of the interests of a lady named Mt. Kaniz Sughra in the estate of her deceased husband Mr. Hamid Ali Khan. Mr. Hamid Ali Khan died in the year 1918. He belonged to the Shia persuasion and the law which regulates the course of inheritance in this case is the Shia Law. The heirs left by Mr. Hamid Ali Khan were his brother Nawab Ali Khan, his sister Mt. Salim-un-nissa and his widow Mt. Kaniz Sughra. Admittedly the share of the widow in the inheritance is a one-fourth share according to the Shia Law where the widow is childless as Kaniz Sughra is. On the 22 December, 1920 this lady assigned the whole of her interest in this inheritance to the plaintiffs in consideration of a sum of Rs. 15,000. The deed of transfer is printed at page 43 of the record. It appears that out of this Rs. 15,000 the plaintiffs were to be allowed to retain a sum of Rs. 7,500 for the purpose of fighting out certain cases in which the lady was interested. As regards the balance it was to be recovered from the transferees after the passing of a decree in their favour.

(2.) It is on the basis of this deed of transfer that the plaintiffs came into Court asking for a partition of the estate of the deceased and claiming that they were entitled to a one-fourth share in certain property, both moveable and immovable. At this stage it may be observed at once that the plaintiffs are not entitled on the basis of this transfer in their favour to any share in any land left by the deceased.

(3.) The Shia Law is that the childless widow of a Shia is not entitled to a share in the value of any land belonging to her husband including land which constitutes the sites of buildings. Her one-fourth share includes a share in the proceeds of the sale of the buildings. Therefore, when the plaintiffs set up a claim to a one fourth share in certain landed properties, their claim was unsustainable.