SYED NADIR HOSSEIN Vs. BISHEN CHAND BASAWUT

JUDGEMENT

(1.) IN a suit filed in the Court of the Subordinate Judge the Plaintiff prayed that an order passed in certain execution cases might be reversed and set aside.

(2.) THE Defendant, as the purchaser of a decree which had been made against Mahomed Ali, obtained an order in execution against the heirs, or persons alleged to be the heirs of Mahomed Ali, for the attachment of certain property which he alleged to be the assets of Mahomed Ali. The Plaintiff objected to the attachment of the property, and the present suit was brought to set aside the order.

(3.) KHAIRUNNISSA died in the year 1859, leaving her son, Enait Ali, who lived until the 5th of February, 1860, and her daughter, Mobaruckunnissa, who died on the 23rd of April, 1869. It was contended that this document, being the will of Khairunnissa, she could not dispose of more than one-third of her interest in the estate, and that the other two-thirds went to her heirs-at-law, her heirs-at-law at the time of her death, in 1859, being Enait Ali, her son, and Mobaruckunnissa, her daughter. Their Lordships consider it unnecessary to decide whether the instrument was a will or a deed. Upon the death of Enait Ali, Mahomed Ali, who had been appointed the trustee by Khairunnissa, was his heir-at-law. It appears that after the death of Khairunnissa, Enait Ali made some claim as heir to his share of the property which he said his mother could not dispose of. Mahomed Ali, on the other hand, contended that the will of his grandmother was a valid one; that the whole of the property passed under that document to himself, and did not vest in his father, and that his grandmother had the right to dispose of the whole of the property. Mahomed Ali never claimed upon the death of Enait to succeed to any portion of the property as having been undisposed of by his grandmother, but during the whole of his life treated the property of his grandmother as having been disposed of by her will for the purposes therein expressed. He could not therefore in his lifetime have claimed any portion of the estate as heir to his father Enait. Mobaruckunnissa, as already observed, died on the 23rd of April, 1869, and neither she nor any of her heirs have ever claimed to be entitled to any portion of the property as not having been disposed of by Khairunnissa.