SULAIMAN PIR MOHAMMAD Vs. ABDUL SHAKOOR SHEIKH CHHOTE

JUDGEMENT

(1.) ONE Taj Mohammad died in 1920 leaving an estate which consisted of a 15 annas share in mouza Ponia, a malik makbuza field in mauza Gosalpur, and a house in Jubbulpore. This property devolved on his heirs who were his widow Mt. Punia and his two daughters, Shakuranbi, a daughter by an earlier wife Kassabi and Nurbi, a daughter by Punia. In 1929, after the death of Nurbi, Shakuranbi filed a civil suit against Punia, Civil Suit No. 10/166 of 1929 in the Court of the Subordinate Judge of the Second Class, Jubbulpore, for partition and separate possession of her share of Taj Mohammad's estate. On 20th January 1930 a decree was passed in that suit declaring that Shakuranbi was entitled to a-/9 and 3/128th share in mauza Ponia and a-/9/71/2 share in the field and the house, subject to a payment of Rs. 300 to Punia which represented the proportionate share of her unpaid dower. Punia's contention that she had paid the debts of Taj Mohammad failed, as it was held that there were no debts except Punia's unpaid dower. On 7th August 1930 Shakuranbi is alleged to have executed a deed assigning her rights under the decree to her step-father Abdul Shakur, who married Kassabi after Taj Mohammad had divorced her. The consideration for the assignment was alleged to be Rs. 1000 in cash. Shakuranbi died on the following day. Abdul Shakur then applied to the Court to be recorded as the decree-holder in place of Shakuranbi. Punia's contention that the document was a forgery and that there had been no assignment was rejected, and Abdul Shakur was recorded as the decree-holder.

(2.) IN the meantime Punia had executed a sale deed in favour of Suleman and Ramzan, the sons of Taj Mohammad's brother, Pir Mohammad, by which she purported to sell to them Taj Mohammad's entire estate for a consideration of Rs. 3000. Possession however was not delivered. In 1930, shortly after Shakuranbi had obtained her decree against Punia, Suleman and Ramzan brought a suit against Punia, Civil Suit No. 179/30 in the same Court, for possession of Taj Mohammad's estate. Shakuranbi was not made a party to that suit. The suit was referred to arbitration. The arbitrators gave an award on 12th December 1931 (Ex. D. 11) in which they held that Punia had received only Rs. 1500 out of the alleged consideration, that she had paid off Taj Mohammad's debts to the extent of Rs. 1641 due to Rajaram and Seth Sunderlal, that she should repay Rs. 1500 with interest thereon and that the entire amount due, which was Rs. 2254, should be a charge on the entire estate. This was embodied in the decree of the Court on 24th February 1932, Ex. D-6. In execution Suleman and Ramzan attached the estate and a part of it was sold in execution. The present suit was accordingly brought by Abdul Shakur against Suleman, Ramzan, and Punia for a declaration that he was the owner of the share defined in the decree in Civil Suit No. 10/166 of 1929 and for an injunction to suspend the confirmation of the auction sale. That suit succeeded in the two lower Courts, except in regard to the injunction, and Suleman and Ramzan have now appealed.

(3.) THE next question is whether the finding in Civil Suit No. 10/166 of 1929, that Taj Mohammad left no unpaid debts except Punia's dower or whether the decision of the panchas in Civil Suit No. 179 of 1930 that Taj Mohammad left debts amounting to Rs. 1641 due to Rajaram and Seth Sunderlal now operates as res judicata. The lower Courts held that the decision in Civil Suit No. 10/166 of 1929 operates as res judicata. The reason for this view was that, though the sale to Suleman and Ramzan was made before Shakuranbi instituted her suit, yet the rights of Suleman and Ramzan were based not on that sale deed but on the decree which was decided after Shakuranbi's suit had been decided. It has been argued that, if Suleman and Ramzan based their claim only on the decree in their favour and not on the previous sale, then their position is that of creditors who have obtained a decree against Punia, so that no previous decision against Punia would be binding against them. Mr. Dutt for the plaintiff-respondent said that he did not propose to argue this point and would concede it. The question whether a decree against one Mahomedan heir binds the other heirs has been the subject of a certain amount of difference of opinion between the various High Courts, but that difference of opinion seems to be disappearing. In Muttyjan v. Ahmed Ally (1882) 8 Cal 370 it was held that where a suit is brought by a creditor against a Mahomedan heir in possession of the assets and a decree is obtained, the deoree is binding on the assets of the deceased because the suit is to be regarded as an administration suit. This decision was adversely criticized in a lengthy and learned judgment by Mahmood J. in Jafri Begam v. Amir Muhammad Khan (1885) 7 All 822. These objections were considered in Amir Dulhin v. Baij Nath (1894) 21 Cal 311 and, though the Court recognised that there was considerable force in the objections of Mahmood J., it adhered to the view hitherto taken in Calcutta that such a suit should be regarded as an administration suit. The Allahabad High Court has consistently followed the view taken in Jafri Begam v. Amir Muhammad Khan (1885) 7 All 822.