Syed Yusuf Saheb vs Subhan Bibi

This is an appeal against an order made in the course of the trial of a suit brought by a Mahomedan widow to recover her share in the properties

of her deceased husband in the hands of the other sharers and residuaries of his estate. The order of the learned Judge was to the effect that the

plaintiff should be paid Rs. 25 a month for her maintenance.

A preliminary objection has been taken that an appeal will not lie, as the order is not a judgment. But there is no substance in this objection, for

the order in question clearly falls within the definition in the judgment of Sir Arnold White, C. J. in Tuljaram Rao v. Alagappa Chettiar ILR (1910)

M 1 : 1910 21 MLJ 1 where he says : ""An order on an independent proceeding which is ancillary to the suit, not instituted as a step toward

judgment, but with a view to rendering the judgment effective if obtained, is a judgment within the meaning of Clause 15 of the Letters Patent."" An

order imposing an obligation of this nature in a pending suit is clearly more than a mere step towards final judgment or a mere interlocutory order

necessary for proceeding with the suit.

The defendants did not admit that the plaintiff was entitled to any share in her husband''s property, as it was their case that she and other widows

had executed a release deed and obtained certain items of property in consideration thereof. The plaintiff alleged that she executed the document

of 27th July, 1915 upon a misrepresentation. Until the release deed is set aside, which can only be done as the result of the suit, she is clearly

debarred from claiming any share. This is therefore not a case where the plaintiff is clearly entitled to obtain some relief in the suit. In cases where

the plaintiff is not ""clearly entitled"" to some relief in the suit, English Courts have refused to make an order for advancement of income. [Vide

Rowley v. Burgess 2 W.R. 652 and Daniel''s Chancery Practice, p. 863]. We should therefore ordinarily have to set aside an order of this kind

made under no provision of law, but the appellant has in our presence consented to continue to pay the amount of Rs. 25 a month for two years

from the date of the order, that is, till 15th October, 1925 without prejudice to any defence he may make in the suit and subject to the plaintiff

furnishing security to the satisfaction of the Deputy Registrar on the Original Side within one month for the sum of Rs. 600. If the security is not

furnished within one month as directed by us, the order will be vacated. If the suit is not decided by 15th October, 1925, the parties will be at

liberty to apply to the Trial Court for a fresh order. Costs of this Appeal will be payable by the respondent to the appellant out of any decree that

she may obtain as the result of the suit.