Judgement

Petition by the appellants to allow, with the consent of the respondents, the appeal (No. 8 of 1934) from a decree of the High Court (May 26, 1932).

The petition stated that a substantial part of the plaintiffs claim having been decreed against all the defendants the defendants-appellants preferred this appeal from the decree of the High Court impleading as respondents Nos. 1 to 12 the plaintiffs in the suit, and as pro forma respondents Nos. 13 to 16 the defendants who had not joined the appellants in the appeal. Ten of the plaintiffs-respondents subsequently withdrew their claims in the suit, and in the case of plaintiff-respondent No. 3 the High Court, on October 3, 1935, passed an order that the appellants and that respondent had com promised their dispute and that their compromise should be forwarded to the Registrar of the Privy Council in a supplementary record. On January 16, 1936, the remaining plaintiffs-respondents, Nos. 1 and 2, filed an application consenting to the appeal being allowed, without costs.

The petition further stated that plaintiffs Nos. 1 to 3 were representatives of one Dihu, deceased, and the defendants were the legal representatives of Dihus brothers Muharram and Shukrullah. The various members of the family had carried on profitable businesses, and in this suit the plaintiffs Nos. 1 to 3 claimed to be entitled according to Mohammadan law to certain shares, i.e., 16/72 namely 2/9 of

88 Law. Rep. 64 Ind. App. 1 ( 1936- 1937)

Shaikh Shukrullah V. Zohra Bibi 189

the properties in suit together with mesne profits. On December 13, 1924, plaintiffs Nos. 1 to 3 executed a sale deed and on April 22, 1925, a supplementary sale deed in favour of plaintiffs Nos. 4 to 6 in respect of half the property which they claimed. The consideration money was Rs. 1,00,000, out of which Rs.25,000 were paid in cash and the remainder was kept by the purchasers to defray expenses of the litigation. The subject-matter of the suit was valued by the plaintiffs at Rs. 12,00,000. The Subordinate Judge passed a decree on April 27, 1927, decreeing the plaintiffs claim for recovery of 16 sahams out of 72 of the properties specified in the plaint. An appeal to the High Court by four of the defendants was dismissed on May 26, 1932. From the decree of the High Court the present appeal was preferred to the Judicial Committee of the Privy Council, the High Court having certified that very substantial questions of law were involved in the case. On July 22, 1932, the respondents Nos. 6 to 12 filed an application supported by an affidavit stating that the defendants-appellants had compensated them for all their expenses, troubles and rights in the litigation by paying them Rs.23,000, which they had received, and that they had therefore decided to withdraw their claim to the extent of their share, i.e., one-third of 8 out of 72 sahams purchased under the sale deed of December 13, 1924, and April 22, 1925. The affidavit further stated that in view of the questions of law involved the result of the appeal could not be foreseen and that in the event of the plaintiffs losing the appeal they would be involved in con siderable loss and worry. A further affidavit by respondent No. 6, the brother and guardian ad litem of respondent No. 7, a minor, stated that it was highly beneficial to them, including the minor, to settle their differences with the defendants-appellants in the manner stated and thereby protect him against possible loss in the future.

In conclusion the petition stated that there were no adverse interests between the defendants-appellants and the pro forma defendants-respondents Nos. 13 to 16, and that the dismissal of the plaintiffs suit would be as much for the benefit of those respondents as of the defendants-appellants, and that the defendants-respondents Nos. 13 to 16 agreed that the plaintiffs suit should be dismissed in toto.

The petitioners accordingly prayed that the appeal be allowed, without costs, that the plaint