MT WAZIRAN Vs. MTRASHIDAN

JUDGEMENT

(1.) This is an appeal from the final decree passed by the learned Subordinate Judge of Cawnpore in a suit for partition of moveable and immoveable property left by one Mohammad Yusuf. The plaintiffs are his mother, Mt. Waziran, and his children by his first wife, Mariam. The defendants to the action were Mt. Rashidan, the seoond wife of Mohammad Yusuf, and Tufail Ahmad, a Bon of Mohammad Yusuf by her. The present appeal is confined to two points only. The decree of the lower Court has been submitted to by the parties in all other respeots. A number of ornaments were detailed in list C annexed to the plaint, and it was alleged by the plaintiffs that these ornaments were the property of Mt. Mariam, the first wife of Mohammad Yusuf, and that they had been taken possession of by Mt. Rashidan. The plain, tiffs case was that in making a division of the property in dispute the value of their share of these ornaments should be allotted to them. The weight and the value of each ornament was mentioned in list C. The defence on this part of the case was a denial of the plaintiffs claim in toto. No positive case appears to have been set up in defence. After a preliminary decree was passed, a Commissioner was appointed to divide the entire property. The Commissioner took elaborate proceedings to ascertain the value of certain properties including the ornaments. He also took evidence in support of the plain, tiffs allegation that the ornaments entered in list C had been taken possession of by Mt. Rashidan. He recorded a finding that the plaintiffs allegation was untrue and that the ornaments mentioned in list C had been sold by Mt. Waziran her. self. Having recorded that finding, he assumed that the ornaments in question were the property of Mohammad Yusuf and as such divisible among his heirs. The Commissioner did not accept the weight and the value of the ornaments given in list C and found, on the evidence before him, that the weight was 46 tolas, 2 mashas and 6 rattis. (There is a clerical error in the Commissioner's report in which we find the weight 56.2 6). He was able to ascertain that the ornaments had been sold by Mt. Waziran to one Sidheshwar, whose evidence showed that the same had been sold to him for Rupees 1,107-11-9. Accordingly he declared this sum to be divisible among the heirs, allot, ting one-third thereof to the defendants and debiting the whole of that amount to the plaintiffs. On objection being taken to this part of the Commissioner's report before the lower Court, the latter held that the weight and the value of the ornaments mentioned in list C should be accepted. Accordingly the report of the Commissioner was modified to that extent. In the present appeal by the plaintiffs, it is contended that there was no justification for the lower Court to reject the conclusion arrived at by the Commissioner.

(2.) We find that the Commissioner held, on the statements of certain witnesses examined by him, that a hansli and certain bangles were hollow and that their weight and value were not correctly mentioned in list C. He expressed the opinion that the plaintiffs exaggerated the value of the ornaments, because they falsely alleged that Mt. Rashidan had taken possession of them. Sidheshwar's evidence satisfied the Commissioner that the value of the ornaments was Rs. 1,107-11-9 We may mention in passing that a few months before the institution of the suit Mt. Waziran had stated in certain guardianship proceedings that the value of the ornaments was Rs. 1,107-11.9, which is identical with the figure given by Sidheshwar. The learned Subordinate Judge did not consider the ground on which the Commissioner's finding was based, namely that the hansli and the bangles were hollow. We think that the reasons given by the Commissioner for his finding that the value of the ornaments was Rs. 1,107-11-9 are convincing. The learned Subordinate fudge has pinned down the plaintiffs to what is stated in list G, and did not consider the evidence on which the Commissioner based his conclusion. The learned advocate for the defendant-respondents strenuously argued before us that the plaintiffs are bound by their pleadings and that they should not be allowed to contradict the facts stated by them in their pleadings. As a general proposition of law it is correct. In the peculiar circutn. stances of this case, the plaintiffs allegations in the pleadings cannot be considered to have been departed from by the Commissioner. Incidental mention of the weight and value of the ornaments in list G cannot be considered to be conclusive or irrebuttable. The Commissioner had before him evidence which could not be disbelieved, and he was entitled to base his conclusion on such evidence. On the whole, we think that the value of the ornaments in question was no more than Rs. 1,107-11-9, as held by the Commissioner.

(3.) Another question in controversy in this appeal is whether the amount of rent, which Mt. Waziran admittedly collected on behalf of all the heirs, was Rs. 1,560, as found by the Commissioner, or Rs. 2,667, which is the gross amount as alleged by the defendants. The rent was collected by one Abdur Rahim on behalf of Mt. Waziran. No accounts of collection were produced. The Commissioner accepted the evidence of Abdur Rahim in holding that out of the gross rental of Rs. 2,667 he was able to collect only Rs. 1,560 during the relevant period. The lower Court has not considered Abdur Rahim's evidence to be sufficiently reliable to warrant the conclusion that only Rs. 1,560 could be collected. We are unable to say that the learned Judge was in error in arriving at that finding. We may however point out that some expenses must have been incurred by Mt. Waziran in collecting the rent and otherwise managing the property. Abdur Eahim has stated that he was in receipt of a salary of Rs. 10 a month. We think it reasonable to allow costs of collection to that extent. Accordingly the amount which Mt. Waziran should be deemed to have collected is Rs. 2,667 minus Rs. 210, which represents the salary of Abdur Rahim for 21 months for which the income has to be ascertained.