JUDGMENT

Grimwood Mears, Kt., C.J. and Piggott, J. - This is an appeal under the Letters Patent in a case in which two learned Judges of this Court have differed on a question of law raised before them in a second appeal. As might be expected, the question is one of some delicacy, but in its essence it is simple enough. The facts are as follows:

One Musammat Ashraf-un-nissa died on the 28th of January, 1914. Her heirs, under the Muhammadan law, were her husband Abdul Rashid, her sister Qudrat-un-nissa and a daughter Kaniz Fatma, at that time a minor.

2. On the 10th of November, 1914, Musammat Qudrat-un-nissa filed a suit in which she impleaded Abdul Rashid and Kaniz Fatma as defendants. The suit was one for recovery of possession of the one-fourth share in certain specified zamindari property which had come to the plaintiff by inheritance on the death of her sister. The allegation made in the plaint was that the defendant Abdul Rashid had improperly taken possession of the whole of the zamindari property of the deceased, and that he was purporting to do this in the name and in the interests of his minor daughter Kaniz Fatma. This last allegation was supported by the fact that mutation of names in the revenue court had been effected at the instance of Abdul Rashid in the name of Kaniz Fatma.

3. On the 30th of January, 1917, the suit was brought out of which the present appeal has arisen. Musammat Qudrat-un-nissa was again the plaintiff and the defendants were the same, namely, Abdul Rashid and Kaniz Fatma. In this plaint the allegations are that the dower debt due from Abdul Rashid to Musammat Ashraf-un-nissa was Rs. 10,000 which was unpaid on the date of Ashraf-un-nissa's death. Her husband being himself an heir to the estate to the extent of one-fourth, it was assumed that one-fourth of this debt had been automatically discharged inasmuch as the husband had himself inherited the right to receive the same. The plaintiff had obtained a succession certificate in respect of the balance of Rs. 7,500 which then constituted the whole of the debt due to the estate of the deceased. She sued to recover one-third of this, or Rs. 2,500, for her own benefit and the remainder of Rs. 5,000 for the benefit of the defendant Kaniz Fatma, whom she described (somewhat loosely) as being "in collusion" with the first defendant in this matter. The fact of course was that Kaniz Fatma as a minor, living under the guardianship of her father, was not in a position to prefer any claim in respect of her own share in this dower debt. Kaniz Fatma died while this suit was pending and, after making necessary amendments in the plaint Qudrat-un-nissa obtained a decree for Rs. 2,500 due to her from the defendant Abdul Rashid alone. The suit was resisted on various grounds, one of the pleas taken being that the dower debt was not Rs. 10,000 but Rs. 160 only. The suit was decreed by the trial court as stated above and an appeal by Abdul Rashid was eventually dismissed by the District Judge, after most unfortunate delay, due to the fact that the defendant had wrongly filed the appeal in the first instance in this Court. Upon a second appeal the learned Judges of this Court have differed, as already noted, upon the question of law. The result of their difference was that Abdul Rashid's appeal was again dismissed.

4. The question of law is as follows: It was contended throughout that the present suit was barred by the provisions of Order II, Rule 2, of the Code of Civil Procedure, on the ground that Musammat Qudrat-un-nissa was under an obligation by law to have claimed in the previous suit, instituted by her on the 10th of November, 1914, the relief which she sought in the present suit.

5. In considering this point, we are bound to treat the subsequent death of the girl Kaniz Fatma as a mere accident which has no bearing on the determination of the question before us. That question refers us back to the 10th of November, 1914, the date of the institution of the first sui