SALIM ULLAH Vs. FAQIR ULLAH

JUDGEMENT

(1.) This is an appeal by the defendants and arises out of a suit for partition. The only question which now awaits decision is whether the appellants are entitled to the benefit of Section 4, Partition Act (Act 4[iv] of 1893). The Courts below have refused them this benefit and they have come to this Court in second appeal. For a proper appreciation of the true legal position it is necessary to go into the facts in some detail. There is a pedigree attached to the plaint:

(2.) The property in dispute consists of three houses and originally belonged to Mohammad husain. The appellants Salimullah is the son, Mt. Moquima Bibi the daughter and Mt. Salima Bibi the widow of Shafiullah. This Shafiullah was the father of Mt. Masooma, the widow of Mohammad Husain. The other defendants, Mt. Ulfat, Nasrullah, Mohd. Shafi and Mt. Amina Bibi are to be found in the above genealogical table. The story which is unfolded in the plaint is briefly this.

(3.) Mohammad Husain died in 1924 leaving a widow Mt. Masooma, two sons Moqimullah and Mohammad, and three daughters Rasulaii, Saleha, and Amina. Moqimullah died leaving a widow Mt Ulfat, mother, Mt. Masooma, and a brother, Mohammad and three sisters, who all became his heirs. Mohammad also died some time after and left, as his heirs, his mother and two sisters. Waliullah is the father of the three plaintiffs, Faqir Ullah, Salamat Ullah and Inayat Ullah. The next to die was Rahmat Ullah leaving as his heirs Nasrullali, Ishaqullal and Khairullah and Mt. Bodha. His death was followed by the death of Mt. Masooma, who left, as her heirs, her three daughters and her mother Mt. Salima, and her brother Salimullah. Then took place some other deaths in the family, with which we are not concerned.