Judgement

Appeal (No. 15 of 1939) from a judgment and decree of the High Court in its appellate civil jurisdiction (September 8, 1936) reversing a judgment and decree of that Court in its ordinary original civil jurisdiction (February 17, 1936).

This appeal arises out of a suit brought by one Safiabai, alleging (inter alia)-that she was entitled to a share in the estate of one Ebrahimji, a Shia Mahomedan, through his mother, Jelumboo. The plaintiff prayed (inter alia) that it might be declared that Jelumboo was entitled at the time of her death to a one-sixth share of Ebrahimjis estate, and that after her death her heirs became entitled thereto; and that the share of Jelumboo might be ascertained by and under the directions of the Court and be divided among her heirs.

The facts, and a pedigree table showing the relationship of the parties, appear from the judgment of the Judicial Committee.

The trial judge (Barlee J.) held that the plaintiffs claim was within art. 106 of the First Schedule to the Limitation Act, 1908, and he dismissed the suit as being time-barred-.

On appeal the High Court (Beaumont C. J. and Rangnekar J.) held that art. 106 had no application. They set aside the decree of the trial judge and directed an account to be taken of the estate of Ebrahimji come to the hands of one Kikabhai, Ebrahimjis son, and the heirs of one Khatizabai, a daughter of Ebrahimji, who were defendants in the suit. The High Court ordered that the estate of Ebrahimji be applied in due course of administration.

The present appeal from the decree of the High Court was brought by the heirs of Khatizabai.

1940. June 12, 13. Sir Thomas Strangman K.C. and A. G. P. Pullan for the appellants.

J. M. Parikh for the respondents.

July 8. The judgment of their Lordships was delivered by SIR GEORGE RANKIN. This case concerns the administration of the estate left by one Ebrahimji, who died in 1904. He was a Dawoodi Borah, governed by the Shia school of Mahomedan law, and had carried on business in Bombay with his only brother, Sarafally, as merchants and commission agents. A pedigree table of the family is given hereunder. They belonged to Kapadvanj, in the Kaira district of the Bombay Presidency, and the brothers were co-owners of certain immovable properties there in addition to their interests in their ancestral home. Their Bombay business was a profitable one, and a house in Samuel Street, in Bombay, had been acquired out of the profits.

The heirs of Ebrahimji, according to the Shia system of "sharers" and "residuaries," were (1.) his mother, Jelumboo, entitled to a sixth share, (2.) his widow, Fatmabai, entitled to an eighth share, (3.) his son, Kikabhai, and his two daughters by different wives (4.) Safiabai and (5) Khatizabai, These children took shares in the residue left after deduction of the mothers and widows shares, the son taking twice as much as a daughter. His brother Safarally and his two sisters Sakinaboo and Amtoolaboo were not heirs. The business was continued by Sarafally, the share of Ebrahimji being left in the business. Jelumboo lived with her son Safarally until her death in 1912. Another Bombay house—in Abdul Rehman Street—was acquired out of the profits in or about 1917. Amtoolaboo died in 1920, leaving as her heirs two daughters, the plaintiff Safiabai and Asmabai (defendant No. 8).

In 1923 Sarafally was ill; he died in August of that year. On July 13 before his death he entered into an agreement in writing intended to regulate and define the respective interests of himself and Ebrahimjis estate in the business and in the various properties at Bombay and Kapadvanj. The other parties to this agreement were Ebrahimjis son Kikabhai, his daughter Safiabai, and his widow Fatmabai. Provision was made for the other daughter, Khatizabai, joining therein, which she afterwards did. The agreement treated the widow, son and daughters of Ebrahimji as his only heirs, ignoring the facts that his mother Jelumboo had inherited from him a s