Mohammadi Begum vs Mir Mahdi Ali Khan Shamsheer Nawaz Jung and Others

Qamar Hasan, J.—This appeal arises from a suit filed by Muhammadi Begum since deceased and now represented by her sons Kazim Jung. and Jafar Nawaz, Jung and a daughter Khursheed Begum on 9th Meher 1338 F., in the Court of Darul Qaza at Hyderabad for her share in the assets left by her father Mir Mahdi Ali Khan Nawab Sliamsher Jung.

The trial Judge while substantially deciding all the other issues in favour of the Plaintiff dismissed the claim on the ground that it was barred by limitation. The Plaintiff then appealed to this Court and here the question of limitation became highly controversial and had to be referred to a Bench of five Judges. The Full Bench held that the suit was governed by Article 110, Hyderabad. Limitation Act, and on the basis of this opinion the referring Judges allowed the appeal and remanded the case to the trial Judge for the final adjudication in the light of his findings on other issues.

Against this judgment and decree, Defendant 5 and legal representatives of Defendant 1, who had died during the pendency of the appeal, filed separate appeals before the Judicial Committee of Hyderabad. The Plaintiff also appealed to the Committee against the order of remand. The Committee advised H.E.H. the Nizam that the judgment of the High Court in regard to the question of limitation was correct and the Defendants appeals should be dismissed.

The Plaintiff''s appeal was, however, allowed with a direction that the High Court is to dispose of the appeal on merits. The judgment of the Judicial Committee has been, reported in 11 Nazair-e-Osmania 49(A). Thus the appeal has again come up for decision. Before we advert to the arguments addressed to us on the merits of the appeal, it would be convenient to dispose of a preliminary objection based on our order of 12-12-1950.

On that date, when the question of the representation of Respondent 2 came before us, the learned Advocate for the appellant stated that he did not desire to bring the legal representative of the deceased on record. Consequently, we order ed a partial abatement of the appeal. It is now contended that, as result of abatement the whole appeal would become infructuous on the ground of the absence of a necessary party. This contention has no force.

While going through the unprinted record for the purposes of this judgment, we came across the unnoticed fact that names of Nawab Mir Zulifiqar Ali Khan and Shamsunnisa Begum appear on the back of the third page of the memorandum of appeal as the legal representatives of the deceased Respondent 2. It would thus appear that no question of partial abatement or total failure of appeal can arise in this case and that our order of 12-12-1950 was based on a statement of fact which we are bound to correct, and in the exercise of our inherent powers we do accordingly set it right.

Even if the case were otherwise, the preliminary objection would have carried no force in view of the authority of the Judicial Committee in - ''Syed, Maliboob Ali v. Husani Begum'' 33 Deccan LR 103 (B), wherein it has been held that in cases where the interest of the deceased Respondent can be separated from those of the others, only a partial abatement of appeal would result.

The learned Judges, it is to be noted, were dealing with a case in which a share in inheritance was claimed by a Mahomedan heir. The reason for the rule is that according to Mahomedan law, the whole estate of a deceased Mahomedan it he dies intestate devolves on his heirs at the time of his death. The heirs succeed to the estate as tenants-in-common in specific shares.

As the interest of each heir is separate and distinct, the failure to bring the legal representatives of a co-heir on record within the prescribed period of limitation would in the words of Sub-section (3) of Section 399, Hyderabad CPC its counter part in Order 22, Rule 4(3), Indian CPC result in partial abatement only without affecting the whole suit or appeal. The preliminary objection is therefore disallowed.

In order to appreciate the arguments advanced before us, it is appropriate that the facts so far as they are relevant for purposes of this appeal may briefly be stated.

Mir Mahdi, Ali Khan Nawab Shamsheer Jung died, on 25th Aban 1290 F., leaving behind him a widow Amatul Butul, two sons Nawab Shah Yar Jung and Mir Ali Muhammed Khan Sham sheer Jung, and three daughters Amatus Salam, Amatual Husaini, and Muhammadi Begum. On 6th Aban 1332 F., Muhammadi Begum made a written demand on her brothers Shah Yar Jung, and Mir Ali Muhammad Khan Shamsheer Jung, for her distributive share in the paternal estate.

It appears that no notice of the demand was taken by the brothers who had all along been in possession of the property of the deceased. A few years passed after this notice and the widow Amatul Butul died on 15th Aban 1357F. On her death, her two sons and three daughters including the Plaintiff became entitled to her undivided share in the property.

Shah Yar Jung also died on 6th Khurdad 1338 F., leaving behind a widow Najeebunissa, Defendant 4, two sons Mahdi Ali and Hadi Ali, Defendants 5 and 6 and two daughters Mahdi Begum and Murtuza Begum Defendants 7 and 8. Ultimately, the present suit was instituted on 9th Meher 1338 F., in which Ali Muhammad Khan Shamsheer Jung, Defendant 1, Amatus Salam and Amatul Hussaini Defendants 2 and 3 were also impleaded as co-heirs interested in the distribution of assets.

The Plaintiff attached two lists A and B to the plaint mentioning thereto the property left by the deceased and its approximate value. List A contained seven items consisting of a residential house, four gardens, and two muqtas. List B had fourteen items comprising jewellery, arms, library, furniture, cash, a debt realised from one Imadad Jung, Government Promissory Notes, Railway shares and interest realised on Government Promissory Notes.

Of the eight Defendants, Amatus Salam, Amatul Husaini, and Mahdi Begum did not take steps to defend the suit. Consequently, they were declared ex parte by the orders of the Court dated 23rd Aban 1338 F., and 11th Dai 1340 F. However, when Amatul Husaini appeared as a witness on behalf of the Plaintiff, she admitted the correctness of the Plaintiff''s claim.

Hadi Ali and Murtuza Begum had only one paragraph in reply that they had no personal knowledge of the facts mentioned in the plaint nor had they any item of suit property in their possession. Najeebunnisa, the widow of Shah Yar Jung, asserted that she was in possession of item No. 1 of list A in lieu of her dower debt amounting to B.G. Rs. 100,000/-. Defendant 1 Mir Ali Muhammad Khan demurred to the approximate valuation put upon the suit property by the Plaintiff.

He however admitted that out of the movables mentioned in list A, he had received on an unequal division, jewellery worth Rs. 11,500/- and Railway shares of the face value of Rs. 46,000/- and the remaining shares of the value of Rs. 69,000/- were alleged to be in the possession of Defendant 5. In regard to item No. 4 of list A, he claimed ownership on the ground that it was at one time attached by the Government for arrears of revenue which he had paid and got the patta mutated in his name.

As to item No. 3 of list A, he alleged ownership by virtue of a gift alleged to have made by the propositus. Item No. 6 of list A was sought to be excluded from distribution on the allegation that it was a Jagir.

The whole defence of Defendant 5 apart from the plea of limitation is contained in paras 12 and 13 of his written statement. It is a loosely worded and ungrammatic document. While dealing with properties enumerated in list B, it has only one sentence saying that

which does not show whether any particular item or all the items in the list were intended to be denied.

In so far as items mentioned in list A were concerned, he dealt only with items Nos. 6, 7. As to item No. 1, his allegation was that inasmuch as his father Shah Yar Jung had spent Rs. 1,15,000/- in making additions to and renovating the residential house originally not worth more than Rs. 5000/-, it cannot now be regarded as a distributable asset. As to items Nos. 6 and 7, it was averred that they belong to Defendant''s grandmother and never form part of his grandfather''s property.

Further assertions were that the deceased had left a debt of Rs. 65000/- which the Defendant''s father paid out of his own pocket, and that the funeral expenses of the deceased amounted to Rs. 4668. The last defence was that Shah Yar Jung had given jewellery worth two lakhs rupees as dowry on the occasion of the Plaintiff''s marriage, therefore, the Plaintiff, even if the deceased had left any assets would not be entitled to any relief.

On these pleadings, the contesting parties went to trial and as many as seventeen issues were framed. The Plaintiff produced as her witnesses, Defendants 1, 2, 3, 5 and 6, and one Bhoneshwar Gir, Lal Gir''s statement was partially recorded on behalf of the Plaintiff but it appears that this witness was dropped as the Plaintiff did not desire to have him examined further. Lal Gir along with another witness Mirza Nasir Ali Beg was later produced on behalf of Defendant 5. The other Defendants led no evidence in rebuttal in support of issues which they had to prove.

As Defendants 2, 3 and 7 had preferred to let the proceedings be ex parte, the Plaintiff had to prove not only the existence of assets claimed in the suit but also her relationship with the deceased, and the number of heirs the deceased had left. The learned trial Judge held that the Plaintiff had succeeded in proving that she was the daughter of Mir Mahdi Ali Shamsheer Jung, that the deceased had left two sons, three daughters, and a widow as heirs, that the immoveable properties mentioned in list A existed and was liable to distribution, and that the defences to exclude some items of immoveable property from the assets of the deceased propositus had been established. He however reserved a further opportunity in favour of the Defendant to prove in execution proceedings that item No. 6 of list A was a jagir and consequently not distributable among the heirs. He also held that the Railway shares of the value of Rs. 1,15,000 along with its dividends and jewellery worth Rs. 150,000/- were distributable assets. In so far as items Nos. 7 and 8 i.e., arms, library, and furniture were concerned, he was of the opinion that Ex. 1, which is a memorandum of a partition between Defendant 1 and Shah Yar Jung, may be taken as a safe basis for believing their existence, and for the purpose of assessing their value. The remaining items i.e., the cash in hand at the time of the deceased''s death, the promissory notes, and the debt of the deceased alleged to have been recovered from Imadad Jung were held as not satisfactorily proved.

In this appeal, Mr. Muhammad Hussain Farooqi appeared for the legal representatives of Respondent 1 Mir Ali Muhammad Khan Shamsheer Jung, Shri Gopal Rao represented the legal representatives of late Mahdi Ali Respondent 5, and Mr. Nurullah Ansari argued on behalf of Hadi Ali Respondent 6. Respondents 7 and 8 the legal representatives of Respondent 2 did not appear before us.

The names of deceased Respondents 3 and 4 had been struck off from the memorandum of appeal u/s 397, Hyderabad CPC because their legal representatives were already on the record. The contesting Respondents were given an opportunity u/s 585, Hyderabad CPC to support the decree under appeal on the findings decided against them in the Court below.

The findings in respect of immovable properties mentioned by the Plaintiff-Appellant in list A were not seriously challenged before us. Shri Gopal Rao urged two points, the first being that item No. 6 in list A was a muqta in the nature of a royal grant therefore it could not be included in the distributable assets of the deceased unless previous sanction of competent Revenue authority was obtained, and secondly, the improvement and addition made by Shah Yar Jung, and Defendant 5 in item No. 1 of list A should be proportionately deducted from the shares of the other heirs or that it should be left out of the partition.

In regard to the first point, it is sufficient to say that the special defence set up has not been supported by any reliable documentary evidence which is the only way of proving the fact of the property being a royal grant. Similarly, the second plea is also not sustainable because there is no reliable proof in support of it.

If the statement of Mirza Nasir Ali Beg who was produced on behalf of Respondent 5 is to be believed, it would appear that one of the portions demolished to make room for a tennis court, was more than fifty or sixty thousand rupees, and that Shah Yar Jung had not spent more than forty or fifty thousand rupees on additions or renovations.

It was urged by Shri Shah Ali Husain, the learned Advocate for the Appellant that the Court below has erred in reserving a further opportunity for the Respondent to prove item No. 6 of list A to be a royal grant. This contention is not controverted by the Advocates for the contesting Respondents. The plea formed the subject-matter of issue No. 16, the burden of proving which lay on Respondents 1 and 5. If they had failed to discharge it in the suit, they cannot be allowed to re-agitate it in execution proceedings.

The main controversy centred round the properties detailed in list B. The whole of the evidence on this part of the case has been carefully analysed by the learned trial Judge in his judgment. The evidence has again been read over to us at the time of hearing the appeal. We do not deem it necessary to subject it to further recapitulation and analysis. It will be sufficient for us to refer to the salient points upon which stress may be laid to ascertain how far the contentions raised on behalf of the parties are supported by the evidence viewed in the light of their pleadings.

We shall at the outset take up the pleadings. The witnesses produced on behalf of the parties have deposed that the properties left by the deceased were divided between Shah Yar Jung and Respondent 1 ignoring the sisters and despite the fact they had already received a written notice from the Plaintiff demanding her distributable share.

As a statement of the fact of partition, two documents were exchanged by the parties to the division, one of which was produced by Respondent 5 in the witness-box, and the other in possession of Respondent 1, even on demand was not produced. The document produced by Respondent 5 is printed at page 22 of the paper book. This document shows that the division took place on or about 28th Azur 1338F., i.e., some eleven months before the institution of the suit.

Thus it would appear that Respondents 1 and 5, and Respondent 6 whose signature appears on the document as an attesting witness were in a better position to give a correct inventory of the divisible assets if those mentioned in the lists A and B were incorrect.

Respondents 6 and 8 based their written statement on a denial of knowledge. It has been held in the case of - Lakhmi Chand Vs. B. Ram Lal Kapoor Vakil, that a pleading of not known is not tantamount to a pleading of not (admitted, and is not sufficient to put the other party to the proof of the allegation made.

The reason for the rule as given in P.L.N.K.L. Chettiar, firm v. Ko Lu Doke AIR 1934 Rang 278 (D) is that a denial of a knowledge of a fact is not a denial of the fact nor is it even putting the fact in issue. It merely means that the Defendant denies that he has any knowledge of it, but any man can of course admit a fact of which he has no personal knowledge.

In Respondent 5, we find a party whose father a few months" before the institution of the suit had divided the assets between himself and his brother Respondent 1, and who in turn made a sub-division of the assets which had fallen to his father''s shares, with his brother Respondent 6. In this state of proof, it is surprising that Respondent 5 should have resorted to general and evasive allegation instead of meeting the claim with specific asseverations as to the assets of the deceased.

Owing to the absence of some Defendants, the contesting Respondent gained a technical advantage over the Appellant by putting her to proof of each and every allegation in the plaint. The suit according to the Appellant''s own showing was brought 42 years after the death of her father. This long interval probably depleted the number of uninterested witnesses who might. have been in a portion to depose on one side or other.

The Plaintiff therefore had to rely upon the conscience of her brother, nephews, and sisters. Her brother, and nephew Respondent 5 as appears from the proceedings of 13th Shahrewar 1341 F., 12th Aban 1341F and 10th Azur, 1342 F., were reluctant witnesses whom the compulsion of law could only force into the witness-box.

Taking advantage of their position as Appellant''s witnesses, some of the Respondents raised pleas which they ought to have set up in written statements.

A long and tortuous argument was based on that portion of the evidence by which it was sought to establish that the deceased ancestor of the parties had in his life-time prepared jewellery; and other customary things worth two lakhs of rupees for being presented to the Appellant on the occasion of her marriage but before that contingency could happen, the intending donor died, and the brothers of the Appellant gave that dowry to the Appellant.

It was therefore contended on behalf of the legal representative of Respondent 1 that either that dowry must be brought into the hotchpot or the suit be dismissed on the ground that the Appellants had received more than her share in the assets of her deceased father. No doubt, the argument is attractive, but having regard to the provisions of Section 106, Hyderabad CPC we are not prepared to allow the Respondent to put forward such a plea.

Section 106 of the Code provides that the Defendants must raise by their pleadings all matters which show the suit not to be maintainable, and all such grounds of defence as if not raised, would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the plaint. Their Lordships of the Privy Council have laid down in the case of - AIR 1930 57 (Privy Council) that no amount of evidence can be looked into upon a plea which was never put forward.

If this plea could be allowed to be urged, there appears no reason why we should not allow the Respondents to rely upon the plea of custom deposed to by Respondent 1 in his testimony at page 120 line 9 of the printed paper book that daughters of the family do not inherit and what is presented to them as dowry is supposed to be their share in the inheritance.

The other argument feebly contended before us was that the Appellant has failed to prove the value of the jewellery, and the existence and value of library, arms and furniture. We do not see any reason to differ from the finding of the Court below that in view of the statements of Respondent 1, Bhoneshwar Gir, and Lal Gir, and reluctance of Respondents 1, 3 and 6 to produce in the Court the jewellery which they had divided among themselves, the value of the jewellery can safely be held to be Its, 15,000/-.

The existence of library, furniture and armory is proved by the recitals in memorandum of partition Ex. 1. As the value put upon them by the Appellant has not specifically been denied by the contesting Respondent, Rs. 30,000/- can safely be taken to be their value. So far as Railway shares, and its dividends are concerned, the Respondents have conceded they had nothing to contend on that score.

The learned Advocate for the Appellant contested the findings of the lower Court in respect of items Nos. 10, 11, and 12 of list B. It was argued that inasmuch as these items have not been specifically denied their existence according to Section 109, Hyderabad Code of Civil Procedure, shall be taken to be admitted. This argument suffers from the defect that this plea does not find place in the memorandum of appeal.

Apart from this Section 109 contains a proviso which, makes it discretionary with the trial Court either to take any allegation of fact not specifically denied as admitted or to require it to be proved otherwise than by such admission. Because of the absence of some of the Defendants, the trial Court had to raise issues even to those facts which were expressly admitted by the contesting Defendants.

In the circumstances of this case, we do not think we would be justified in basing our judgment on the assumption that the contesting Respondents should be deemed to have admitted what they had not specifically denied. It is conceded before us that there is no satisfactory proof aliunde to hold that items Nos. 10, 11, 12 and 14 existed in fact and. were distributable assets.

The last argument advanced on behalf of the Appellant was that through some inadvertence, her legal share in the inheritance has been shown in the plaint to be 1/8 while because her mother had died before the institution of the suit, her share should, have been computed as 1/7. This argument has force and must be acceded to. In Mulla''s Principles of Muluuaeclan Law, Edn. 13, Article 56 runs as follows:

A ''vested, inheritance'' is the share which vests in an heir at the moment of the ancestor''s death. If the heir dies before distribution, the share of the inheritance which has vested in him will pass to such persons as are his heirs at the time of his death.

In Ballie''s Muhammedan Law, Vol. II at page 318 there is a passage which says that if a man dies and before a partition has been made of his estate one of his heirs has died also so that two petitions are to be made of one original estate, the way to dispose of this case is to arrange the first estate and to take a portion out of it for the second, then if the heirs of the second deceased are the heirs of the first, without any difference in the partition, there is in fact one estate to divide.

It is, therefore, clear that the shares have to be determined on the occasion of each death and according to this rule, we have to calculate the Appellant''s share to which she is entitled at the present time.

The question that remains to be decided is to what relief the Appellant is entitled. The evidence shows that the jewellery and Railway shares have either been transferred or otherwise disposed of by Respondents 1, 5 and 6. It is also very doubtful that the library, furniture, and arms have been kept, intact by those in possession.

It would serve no useful purpose if a decree for a share in specie is passed in favour of the Appellant. Having regard to the circumstances of this case, a money decree for the value of these items would, serve the ends of justice.

Therefore, we allow the appeal and declare that the Appellant is entitled to 1/7 share in the assets held proved by the Courts below. Items 3 and 7 of list A will be partitioned by the Collector in accordance with the provision of Section 54, Indian CPC to the extent of the share declared above. The remaining items of list A will either be partitioned by the Court itself or through a commissioner appointed under Order 26, Rule 11 of the Code.

There will be a money decree for Rs. 94,422-9-0 for the Appellant''s share in jewellery, library etc., and Railway shares and its dividend, the dividends being calculated at the well known lower rate of 5 per cent, per annum. The money decree will be executable against the assets of the deceased Respondents 1 and 5 and against Respondent 6 because they have appropriated the assets among themselves.

The Appellant will get costs of this Court and that of the trial Court.

Manohar Pershad, J.

I have read the judgment prepared by my learned brother. I agree, and I have nothing more to add.

Mohd. Ahmed Ansari, J.

I have read the judgment of my brother, Qamar Hasan J. and agree with his conclusions and the final order.