KATHOOM BI Vs. ABDUL WAHAB SAHIB

JUDGEMENT

(1.) The question involved in this appeal is whether respondents 1 to 3 at times material to the suit stood in a fiduciary position with regard to the appellant. The appellant is the only daughter of one Abdul Rahiman Sahib, who died on the 18th June, 1921, when she was about six years of age. The appellant's mother had pre- deceased the appellant's father, who was a Sunni Mohammadan. Under the Sunni Law, his heirs were: the appellant, his three brothers, Waheb, Majeeth and Hameed (respondents 1 to 3), his second wife, Sakina Bi (who died during the pendency of the suit) and his mother Rabia Bi, who died before the suit was instituted. Abdul Rahiman was a dealer in rope, thread, coir, carpets and other articles. His business was a very successful one and when he died he left a considerable fortune. All the members of his family lived together and the heirs continued to live together after his death. In the year following his death the third respondent married his widow, Sakina Bi, and by her had four children, respondents 4 to 7. After his death the appellant lived with respondents 1 to 3 until 1929 when she left the family house and married one Abdul Aziz. She was then more than 15 years of age. According to the appellant's uncles, respondents 1 to 3, Abdul Aziz removed the appellant from their lawful custody. In fact they filed a complaint charging him with kidnapping the appellant. The complaint was dismissed and the appellant having married Abdul Aziz instituted the suit out of which this appeal arise.

(2.) Abdul Rahiman carried on the business in his own name, but the day after he died, respondents 1 to 3 changed the name of the business to "Abdul Rahiman Sahib and Brothers" and set up a claim that they had throughout been partners in the business, each brother having a quarter share. In the month of October, 1921, respondents 1 to 3 caused a panchayat to assemble with a view to the Panchayatdars distributing the estate on the footing that respondents 1 to 3 were each entitled to a fourth share in the business. The proceedings of the Panchayatdars have been referred to here and below as arbitration proceedings and for the purposes of this appeal this description may be adhered to. The arbitrators submitted their award on the 10 October, 1921, but as it was unstamped a fresh award was made on the 24 April, 1922. It has not been suggested in the proceedings before us that the arbitrators acted improperly. They gave an award distributing the assets of the deceased's estate on the basis that respondents 1 to 3 were partners. So far as the arbitrators were concerned this was not in issue. Respondents 1 to 3 were not in fact partners and the arbitration proceeded on an entirely wrong basis. At the trial of the suit an issue was framed on the question whether respondents 1 to 3 were partners with Abdul Rahiman and the issue was found against them. This finding has not been challenged before us and the appeal has been argued on the footing that it was a false claim. It is not suggested that the appellant is in any way bound by the award. In fact it is conceded that she is not. The appellant's grandmother, Rabia Bi, purported to act as her guardian when the question of the distribution of the estate was before the arbitrators, but she was not in law the guardian of the minor's property and so far as the minor was concerned the proceedings were a nullity.

(3.) The appellant filed the suit on the Original Side of this Court on the 7 March, 1930. She claimed that on the death of her father she became entitled to one-half share of his estate, her grandmother to one-sixth, her stepmother to one-eighth, and respondents 1 to 3 to the remaining 5/24 share in all the assets left by Abdul Rahiman. It is not disputed that Sunni Law requires the estate to be distributed in these proportions. The appellant, however, alleges, and again the truth of her allegation is accepted, that after her father's death her uncles took charge of all his assets, including the business, which they continued to carry on. The business continued to prosper and out of the profits respondents 1 to 3 purchased the properties set out in Part 1 of Schedule B in the plaint. The appellant claimed before the trial Court and contends now that she is entitled to a half share in these properties, and in all the accretions to the estate arising from the business. In law the heirs became tenants in common of the estate as it stood at the time of his death and the learned trial Judge held that the appellant was entitled to a moiety of the estate distributed by the arbitrators with profits from the date of her father's death, but he rejected her claim to a half share in the profit made out of the business after her father's death on the ground that a co- owner in management "does not per se stand in a fiduciary relation". In accordance with his decision the learned trial Judge passed a preliminary decree directing the Official Referee to take accounts on the basis that the appellant was entitled to a moiety of the properties left by her father, but to no share in the acquisitions made by respondents 1 to 3 out of the profits of the business subsequent to the death of Abdul Rahiman. This meant that the appellant was not to be given any share in the properties set out in Part 1 of Schedule B. It is this finding which the appellant challenges. She says that the learned trial Judge should have held that respondents 1 to 3 were in the position of trustees and have given her a half share in all the profits made in the business after the death of her father.