RUSTAM KHAN Vs. MTJANKI

JUDGEMENT

(1.) This appeal has been referred to a Pull Bench for considering whether the observations of their Lordships of the Privy Council in the case of Maung Tun The V/s. Ma Thit A.I.R. 1916 P.C. 145 have the effect of overruling the previous rulings of this Court.

(2.) The appeal arose out of a suit brought by the plaintiffs for recovery of a 3/8th share in the estate of Wazir Khan, deceased, against his widow, daughter and daughter's son. It appears that Wazir Khan died about 1908 and his legal heirs were his widow, Mt. Janki, his daughter Mt. Dhora, and the present plaintiffs, who are the sons of the first cousin of Wazir Khan. Under the Mahomedan law they became entitled to a 3/8 share The property consists of zamindari, paying a small amount of revenue. On 1 February 1921, Mt. Janki executed a deed of gift in favour of her daughter and daughter's son. The plaintiffs claimed that from that moment the defendant's possession became adverse and they were entitled to recover their share. Both the Courts below held that Art. 144, Lim. Act. applied to the case, and that possession did not become adverse till 1921. The suit was accordingly decreed. On appeal a learned Judge of this Court came to the conclusion that in view of the pronouncement of their Lordships of the Privy Council in the case mentioned above, the suit must be taken to be governed by Art. 123, and having bean brought more than 12 years after the death of Wazir Khan, was barred by limitation. The decree was reversed and the suit was dismissed.

(3.) Mr. Zahur Ahmad, who had prepared the case thoroughly, placed before us all the relevant rulings in his opening address. There can be no doubt that prior to 1916 the view which prevailed in all the High Courts in India was that a suit brought by a Mahomedan co-heir for possession of his legal share was not governed by Art. 123 at all. The leading case in this Court is Umardaraz Ali Khan V/s. Wilayat Ali Khan [1897] 19 All. 169. The learned Judges who decided that case thought that Art. 123 referred to a suit in which a plaintiff seeks to obtain his share from a person who, either as an executor or an administrator, represents the estate of a deceased person and is under a legal obligation to distribute shares to those entitled to them. They relied on a Madras case as well as on the case of Mahomed Riasat Ali V/s. Hasin Banu [1894] 21 Cal. 157. But in the last-mentioned case decided by their Lordships of the Privy Council the plaintiff widow was claiming the whole of the moveable and immovable estate under a family custom and not a fractional share in it. Their Lordships therefore held that Art. 123 was not applicable to the case.