ROSHAN ALI KHAN Vs. ASGHAR ALI

JUDGEMENT

(1.) The main question in these consolidated appeals is whether in the family of the late Muzaffer Husain Khan who died without issue in 1865, leaving two widows, there is a customary rule of succession which supersedes the Mahomedan Law and entitles plaintiff 1 in this suit, Roshan Ali Khan, to succeed to his estate as his nearest male agnate on the death of the junior widow, Mahmudunnisa, who died on 16 May 1911, nearly forty-years after the death of the senior widow Mithanunnisa.

(2.) This suit, which was instituted on 15 May 1923. the day before it would have become barred, was brought for the recovery of the shares owned by Muzaffer Husain Khan, in the village of Dewa and the other villages in the pargana of the same name specified in Sch. B of the plaint, which at the date of suit were in possession of some of the defendants claiming under transfers from the widows themselves or from their heirs. To raise funds for this litigation plaintiff 1 has parted with three-fourths of his interest in the suit to Shankar Sahai plaintiff 2.

(3.) The family is a very ancient one, claiming descent from the earliest Mahomedan invaders from Afghanistan but the earlier steps in the pedigree will not bear examination. One Amir Ali in command of an armed force from Bagdad is said to have taken part in one of the numerous invasions by which Mahmud of Gahzni and his family harried northern India at the beginning of the eleventh century. He is said to have returned to Bagdad after marrying his son Ziauddin to the daughter of Syed Wesh, one of the Gahzni family who had conquered Dewa where their descendants have since resided. Aladad, the issue of this marriage, who must therefore have been born in the eleventh century, is shown in the pedigree as the father of Qazi Mahmud from whom this family is descended. This Qazi Mahmud's daughter is said to have been married to an Usmani Sheik from Persia and her son was Maulana Abdus Salam, who held high office in the reign of the Emperor Shah Jahan which ended in 1658. Obviously Qazi Mahmud cannot have had a father who was born before the Norman couquest and a grandson who was a contemporary of Cromwell.