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Judgment
We agree with the decision in Umardaraz Ali Khan v. Wilyat Ali Khan ILR (1897) A. 169, where it is held that Article 123 applies only when
the suit is for a share of an estate which it is the legal duty of the defendant to distribute. In the case of a Mahomedan dying intestate the estate is at
once vested in the heirs as tenants in common and there is no one charged by law with its distribution, and as pointed out in Abdul Khader v.
Aishamma ILR (1893) M. 61 it does not appear that in Patcha v. Mohidin ILR (1892) M. 57 or Kasim v. Aishamma ILR (1892) M. 60 there
was any contention that the defendant was not the lawful personal representative of the deceased. In Patcha v. Mohidin ILR (1892) M. 57 the
question whether Article 123 applied was not discussed or expressly decided but in Kasim v. Ayishamma ILR (1892) M. 60 the learned Judges
do apply Article 123 but as we think, wrongly.
We think the answer to the question referred must be that Article 144 is applicable when the property is Immovable and Article 120 when it is
moveable property.