MAHAMED KERAMUT ULLA MIAH; CHINTAMANNESSA BIBIAND REFATULLA MEAH; KURAMANNESSA BIBI Vs. KEAMUTULLA MEAH; KURAMANNESSA BIBI; CHINTAMANNESSA BIBI

JUDGEMENT

(1.) These four appeals have been heard together as were the three suits in the lower Court out of which they arise. The principal appeal is Appeal No. 11 of 1915 arising out of Suit No. 275 of 1913. The parties to this litigation are all either the direct descendants or married to the direct descendants of one Damu, who died about, 1870 A. D, He left two sons Enat and Kismat. Kismat died in 1S89 leaving a widow, four sons and a daughter who are defendants Nos. 1--6 in the principal suit. The eldest son s name is Kismat and that of the daughter Nurjahannessa. Damu s elder son Enat died on the 2nd May 1902. By his first wife Budhimonnessa, who predeceased him, Enat had a son and a daughter. The son, Hefazatulla, died in February 1905 leaving two widows, Nurjahannessa (defendants No. 5), the above mentioned daughter of Kismat, and Monjudanessa (pro forma defendant No. 9) who has Bold her interest in her husband s property to other members of the family and gone to live in her father s village. The daughter of Enat by Budhimonnessa is Kuramonnessa (defendant No. 7), who is the wife of Refatulla (defendant No. 8). Enat s second wife was Chintamonessa (plaintiff No. 2) and by her he had three sons Keramatulla (plaintiff No. 1), Jiaratulla and Rahmatulla. Jiaratulla died after Hefazat and Rahmatulla died after Jiaratulla before the institution of this suit.

(2.) It is admitted that from the time of Damu until the death of Hefazat all the members of the family lived in jointness and that the property left by Damn was owned as joint property by them. The first main point in dispute in this appeal, as it has been argued before us, is whether the joint property of the family consisted only of property acquired in Damu s name, as the plaintiffs appellants allege, this property being that described in schedule ka of the plaint or whether, as the defendants respondents allege, the property described in schedule kha of the plaint, which was acquired in the name of Enat, was also joint property. The second main point in this appeal is whether the rights of the parties to the property in dispute were finally settled by an amicable family arrangement set out in a solenama which was filed in the District Judge s Court on the 27th February 1903. The learned Subordinate Judge who tried these suits has decided both these points in favour of the defendants-respondents. The second of these points is the one on which the decision of the appeal really depends and we will deal with it first.

(3.) Enat, as stated above, died on the 2nd May 1902. On the 11th November of that year two applications were filed in the Court of the District Judge, one for succession certificate under Act VII of 1689 for the collection of debts due to the estate of Enat, the other for the guardianship of the persons and properties of Enat s minor sons. The first of these applications, Exhibit 15 (1), purported to be signed by Chitamonnessa for herself and as guardian of her three minor sons and by Hefazatulla and Kurmonnessa, that is to gay, all the heirs of Enat. The second, Exhibit 15 (2), purported to be signed by Chintamonnessa alone. On 28th November following Kismat, the eldest son of Kismat, filed petitions of objection in both cases alleging that the properties described in those petitions as having belonged to Enat alone belonged to the two brothers, Enat and Kismat, jointly in equal shares. On the 7th February 1903 a petition was filed on behalf of both parties asking for a month s time to compromise the case. The Court directed a draft of the compromise to be filed on the 9th February and this was done. Then, on the 27th February 1903, the petition of compromise, Exhibit 15(3), was filed. The remaining heirs of Kismat were made parties and the two cases were decided in accordance with the petition of compromise. Chintamonnessa was appointed guardian of the persons and property of her minor children and the certificate of succession to the estate of Enat was granted to the applicants in that case and Kiamatulla jointly. The Court, in the order granting permission for the cases to be settled in the terms of the compromise petition, stated that the arrangements proposed in that petition appeared to be for the benefit of the minors concerned. The principal terms of the compromise were that the heirs of Enat were to get a 9 annas 15 gandas share and the heirs of Kismat a 6 annas 5 gandas share of the whole family property with some exceptions. The heirs of Kismat were to make no claim to the money accumulated in the time of Enat and the heirs of Enat were to make no claim to the cash in the hands of the heirs of Kismat or the business carried on in their separate names, nor were they to claim 49 bighas of jote land. As between the heirs of Enat, Hefazatulla was to get a larger share than his half-brothers on the ground that there was no money in his hand, nor any separate business in his name. Special provision was made as to certain moveable property and the document concluded with three schedules, the first two stating the individual shares of each member of the two branches of the family and the third containing a list of the jotes which were to belong to the heirs of Kismat only.