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1940 Supreme(SC) 40
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT MAUGHAM, LORD WRIGHT, AND SIR GEORGE RANKIN.
MAHOMEDALLY TYEBALLY - Appellant
Versus
SAFIABAI - Respondents
On appeal from the High Court at Bombay.
Decided On : July. 8. 1940.
Solicitors for appellants: T. L. Wilson & Co.
Solicitors for respondents 1, 3 and 5-12: Lattey & Dawe.
In administration suits for Mahomedan estates, heirs are tenants in common, making the suit subject to limitation periods for recovery of property rather than partnership dissolution. Abatement against one co-heir with the same interest as the plaintiff does not abate the entire suit.
Headnote:(A) Limitation Act, 1908 - Articles 106, 120, and 144 - Civil Procedure Code - Order I, Rule 10 and Order XXII, Rule 4 - Administration of estate of a deceased person governed by Shia Mahomedan law - Suit for administration brought by a person entitled to a share of an heir's interest - Suit not barred by limitation as it is not a suit for dissolution of partnership under Article 106 - Governed by Article 144 for immovable property and Article 120 for movables - Suit filed within six years of the final decree of a previous partition suit.
(B) Civil Procedure Code - Order XXII, Rule 4 - Abatement of suit - Suit for administration of estate - Abatement against one party having the same interest as the plaintiff does not result in the abatement of the entire suit - Court has discretion under Order I, Rule 10 to add representatives of a party against whom the suit has abated to give effect to the rights of the parties.
(C) Estoppel - Agreements and decrees - Rights of parties to an estate defined by written agreements and subsequent court decrees - Representatives of a party cannot claim interests beyond those defined in such agreements and decrees, provided the suit does not challenge the validity of those agreements.
Facts of the case:
A suit was filed for the administration of the estate of a deceased person governed by Shia Mahomedan law, claiming a share through the deceased's mother. Previous written agreements and court decrees had partitioned the estate among the widow and children, ignoring the mother's share. The suit was filed several years after the death of the original owner and subsequent partition decrees. During the proceedings, the suit abated against one defendant who shared the same interest as the plaintiff, and their representative was subsequently added to the record.
Findings of Court:
The suit did not abate as a whole despite the abatement against one co-heir with the same interest as the plaintiff. The claim was not barred by limitation as it was a suit between tenants in common for administration, not a partnership dissolution. However, the representatives of the deceased's brother were bound by previous agreements and decrees and could not be held liable for more than what those agreements provided.
Issues: Whether the suit abated entirely due to the death of one defendant; whether the suit was barred by limitation under Article 106 of the Limitation Act; and whether previous agreements and decrees created an estoppel against certain defendants.
Ratio Decidendi: In a suit for administration, the abatement of the suit against one party with the same interest as the plaintiff does not terminate the entire action. For the purpose of limitation, heirs to a Mahomedan estate succeed as tenants in common; thus, suits for administration are governed by Articles 120 and 144 of the Limitation Act rather than Article 106. Furthermore, written agreements and court decrees regulating the distribution of an estate operate as an estoppel by record between the parties and their representatives.
Result: Appeal allowed in part; decree varied to limit the declaration of interest to a one-twelfth share of the estate.
Legal Category Hierarchy
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family law
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succession and inheritance
- shia mahomedan law
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succession and inheritance
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practice and procedure
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civil procedure
- abatement of suits
- joinder of parties
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limitation
- tenants in common
- partnership dissolution
-
civil procedure
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
