Judgement Consolidated Appeals from four decrees of the above Court (September 7, 1904, and January 19, 1905, respectively) modifying and reversing decrees of the Court of the Subordinate Judge of Hardoi (December 12, 1900, and August 81, 1903). The major portion of the property in suit formed the estate of Martaza Bakhsh, named in the pedigree in their Lordships judgment, who was entered in lists 1 and 3 made under s. 8, Act I. of 1869. He died on January 18, 1865, leaving him surviving his mother, Musammat Munirunnissa, and two widows, namely, Musammat Bhagbhari, the senior, and Imtiaz Fatima, the junior. On his death mutation of names for the whole estate was effected in favour of his mother. She died in 1870, and the names of the two widows were then entered in the Revenue registers as each entitled to an 8 anna share. Bhagbhari died childless on January 24, 1888, and her co-widow Imtiaz Fatima retained possession of the whole estate till her death on December 19, 1894. Mutation of names was then made in favour of the appellants Muhammad Kamil, Muhammad Akil, and Muhammad Fazil for a 12 anna share, and in favour of the fourth defendant, Abdussamad, for the remaining share of 4 annas. In 1895 these four persons (nephews of Mubarak hereinafter mentioned) were sued by the next heirs of Imtiaz Fatima, who obtained a final decree (See ( 1903) L. R. 31 Ind. Ap. 30.) for possession of the 8 anna share which had been registered in her name; and in execution a 6 anna share was taken from the three appellants and a 2 anna share from the said fourth defendant, Abdussamad. The present appeals relate to the 8 anna share which had been registered in the name of Bhagbhari. Another Imtiaz Fatima, a sister of Bhagbhari, sued on October 31, 1899. The defendants were the three appellants, Abdussamad being subse quently added at their request. The claim was for her share of Bhagbharis estate, being a 1 anna 1 5/7 pie share to be taken from the 6 anna share of the appellants. She alleged that Bhagbhari was absolute owner of her 8 anna share and that on her death the succession was governed by the Mahomedan law of the Sunni sect, under which she was entitled as prayed, and Abdussamad was in possession of less than he was entitled to. She alleged that Bhagbhari was absolute owner of her 8 anna share and that on her death the succession was governed by the Mahomedan law of the Sunni sect, under which she was entitled as prayed, and Abdussamad was in possession of less than he was entitled to. The appellants pleaded that Act I. of 1869 governed the succession and that Bhagbhari held only a life estate, and that if the Mahomedan law were applicable the plaintiff was excluded as a female from inheritance by custom, and that her share, if any, should be recovered from Abdussamad, who was not entitled by that law to any share at all. The Subordinate Judge decided that the succession was governed by the Mahomedan law, that the custom of excluding female heirs from succession was not proved, and that the suit was not barred by limitation. He also held that the plaintiff could recover her share from all the defendants, and accordingly made a decree in her favour for a share amounting to 1 anna 1 5/7 pie as claimed by her. On the first three points the Court of the Judicial Commissioner of Oudh affirmed this judgment. But it held that Abdussamad was not entitled to any share in the estate, that the appellants had by arrangement allowed him to have a 2 anna share, and that the decree of the plaintiff should be limited to the recovery from the appellants of three-fourths of the share decreed to her. The first of these consolidated appeals was from that decree. The second suit was also instituted by the same Imtiaz Fatima in the same Court. It was brought in Law Rep. 36 Ind. App. 210 ( 1908- 1909) Muhammad Kamil V. Musammat Imtiaz Fatima 105 1903 and related to the whole estate of her brother Muhammad Mubarak, who died in 1891. His estate had been taken possession of by the appellants and included a 2 anna 3 3/7 pie share out of Bhagbharis said 8 anna share of her husbands estate, to which it was alleged that he had succeeded on her death. To this suit all the members of the family, including Musammat Tamiz-un-nisa, the widow of Muhammad Mubarak, were made defendants. To this suit all the members of the family, including Musammat Tamiz-un-nisa, the widow of Muhammad Mubarak, were made defendants. The plaintiff claimed as sole heir on the ground that the widow and daughters of Muhammad Mubarak were excluded by custom from inheriting, and that Muhammad Amir and Muhammad Ahmad having both predeceased Muhammad Mubarak, there was no right of representation in their children. The appellants in this suit admitted that Mubaraks daughters were excluded by the custom, but raised the defence that the plaintiff was estopped by her conduct from advancing her claim. This contention referred to a suit instituted by her on November 25, 1895, and to a compromise filed therein dated September 10, 1896. The suit was against the three appellants and Abdussamad for arrears of maintenance based upon an agreement which their fathers, Sheikh Muhammad Amir and Sheikh Muhammad Ahmad, had entered into with her. It was alleged by the plaint that on the death of the plaintiffs father his three sons and three daughters (the plaintiff being one of them) " became the legal heirs and owners of the estate," that they (the brothers), having flattered her, got her to agree to take Rs. 5 per month as maintenance for herself and her heirs generation after generation, provided she gave up "her share in the paternal estate," and that she had consented. To that claim the appellants and Abdussamad also pleaded that "no maintenance was ever fixed or given." The compromise was to the effect that the appellants were to pay her Rs. 30 annually, and the same amount was to be paid by Abdussamad for her lifetime, the maintenance not being transferable nor heritable. Upon that defence the Subordinate Judge held that the plaintiff had renounced her right to Mubaraks property before filing her suit on November 25, 1895, for maintenance. He said "I have very little doubt that the acts and omissions in that suit will be taken to afford an implication of actual renunciation. The plaintiff by her conduct in that suit can be said to have caused the defendants to believe that she had no claim to the property of Mubarak, and to enter into an agreement whereby they undertook to pay Rs. 60 per annum to the plaintiff for her life. She is, in my opinion, estopped from claiming the property of Muhammad Mubarak as his sole heir. 60 per annum to the plaintiff for her life. She is, in my opinion, estopped from claiming the property of Muhammad Mubarak as his sole heir. This disposes of the suit." The Court of the Judicial Commissioner held that the plea of estoppel could not apply to so much of the claim as referred to Bhagbharis estate. In their judgment the learned judges referred to Ramamani v. Kulanthai Natchear (( 1871) 14 Moo. Ind. Ap. 346; S. C. 17 Suth. W. R. at p. 5.), and quoted a passage where, inter alia, it is stated that the weight of the acknowledgment depended " on the just belief that the parties whose interests are affected by acquiescence possess knowledge of their right, means to enforce it, &c.....One of the plaintiffs in this case is an infant, the other is a Hindu female. Against neither is it the practice of the Courts in India to press a presumption by acquiescence in a rival claim," &c. And the Court held that it would not be right to infer from the plaintiffs inaction in 1895 and 1899 that she intended to abandon her claim to a share of the property which had devolved upon Mubarak upon the death of Bhagbhari. Then entering into a consideration of plaintiffs claim to the paternal property of Mubarak, the judgment states "Her conduct during a long period suggests to my mind that she did not intend to claim her brothers property, and that she was under the impression, for several years at least, that she could not claim it. But before a purdanashin lady can be held by implication to have renounced her rights, it must, I think, be shewn that she was aware of them." And after a consideration of the Privy Council Law Rep. 36 Ind. App. 210 ( 1908- 1909) Muhammad Kamil V. Musammat Imtiaz Fatima 106 decision in Sarat Chunder Dey v. Gopal Chancier Laha (( 1892) L. R. 19 Ind. Ap. 203; I. L. R. 20 Calc. 296.), as applicable to the facts of this case, they arrived at the conclusion that it was for the defendants to make good the estoppel, and they had failed to do so. Ap. 203; I. L. R. 20 Calc. 296.), as applicable to the facts of this case, they arrived at the conclusion that it was for the defendants to make good the estoppel, and they had failed to do so. They also held that s. 43 did not bar the present suit; and finally, upon a consideration of what share the plaintiff was entitled to, they arrived at the conclusion that she was entitled to 1 anna If pie share in the properties specified in lists 1 to 5 of the plaint, being lists comprising properties which had belonged to Musammat Bhagbhari (excepting some small items), and to one half of all property specified in lists 6 to 10 of the plaint, being the paternal properties of Mubarak (excluding certain small items). The reasons given were as follows "The next question is what share the plaintiff is entitled to in the property in the suit. Except in regard to one or two items there is no dispute as to the extent of the property which Muhammad Mubarak inherited from his father and held at his death. It is set out in lists 6, 7, 8, 9, and 10 attached to the plaint. There is also no dispute as to the extent of the property left by Musammat Bhagbhari. It is set out in lists 1 to 5 attached to the plaint. If Abdussamad was excluded from succession to Bhagbhari the share of Mubarak amounted to 3 annas 2 2/5 pies, but the plaintiff allows a share to Abdussamad with the result that, according to her, Mubaraks share was only 2 annas 3 3/7 pies. The question is what portion of this share and of the property inherited by Mubarak from his father descended to the plaintiff on the death of Mubarak. According to the Mahomedan law Mubaraks share would devolve as follows A. P. Tamiz-un-nisa, widow, 1/8 . . . . 0 3 3/7 Daughters, 2/3...... 1 6 2/7 Plaintiff, 5/24. . . . . . According to the Mahomedan law Mubaraks share would devolve as follows A. P. Tamiz-un-nisa, widow, 1/8 . . . . 0 3 3/7 Daughters, 2/3...... 1 6 2/7 Plaintiff, 5/24. . . . . . 0 5 5/7 2 3 3/7 "But the daughters are excluded by custom, and therefore the question arises whether they should be treated as non-existent or whether they should be treated as existing, but not taking any share (i.e., as existing for the purpose of making the plaintiff a residuary), or whether their shares under the Mahomedan law should be divided among the widow and the plaintiff by the analogy of the doctrine of the increase. If the daughters are treated as non-existent, then Mubaraks share devolved as follows A. P. Tamiz-un-nisa, 1/4 . . . . 0 6 6/7 Plaintiff, 1/2 . . . . . . 1 1 5/7 Defendants Nos. 1, 2, 3, and 4, residue in equal shares, i.e., If pies each . . 0 6 6/7 Total 2 3 3/7 " If they are treated as existing for the purpose above stated but as taking no share, then the share devolved as follows A. P. Tamiz-un-nisa, 1/8 . . . . 0 3 3/7 Plaintiff, residue . . . . . 2 0 Total 2 3 3/7 If the daughters shares are divided between the widow and the plaintiff then the widow would take Law Rep. 36 Ind. App. 210 ( 1908- 1909) Muhammad Kamil V. Musammat Imtiaz Fatima 107 1/8 + 3/8 + 2/3…. 0 10 2/7 and the plaintiff 5/24+ 5/8+2/3…. 1 5 1/7 Total 2 3 3/7 " There is no authority on this question, but, seeing that the custom by which daughters are excluded is founded on the notion that property should not be allowed to pass into another family, I think that the exclusion of the daughters should operate for the benefit of other persons, who become heirs in default of daughters, and therefore the daughters should be treated as non-existent so as to let in the nephews. The plaintiffs share in the property, specified in lists 1 to 5, is therefore, in my opinion, 1 anna 1 pies." De Gruyther, K.C., and Kyffin, for the appellants, contended {hat the succession to such portion of the property in suit as formed the estate of Martaza Bakhsh was governed by Act I. of 1869, under which the respondent Imtiaz Fatima had no claim thereto. By its provisions Bhagbhari had succeeded and held only a life estate, not becoming a fresh stock of descent. If Mahomedan law regulated the succession a custom was established by the evidence which excluded female heirs. Sir B. Wilsons Mahomedan Law, 2nd ed., pp. 180, 181, c. 8, ss. 219, 233, and 234, were referred to. As regards Muhammad Mubaraks estate, so far as concerned his inheritance from Bhagbhari the suit was barred by limitation, not having been instituted within twelve years from the date of Bhagbharis death, namely, January 24, 1888. Though limitation had not been pleaded, the Court was bound to take notice of it see s. 4 of Act XV. of 1877 and Har Narain Singh v. Chaudhrain Bhagwant Kuar. (( 1891) L. R. 18 Ind. Ap. 55.) The respondent, moreover, was estopped from asserting any claim by inheritance to the property in suit. Her suit for maintenance in 1895 and compromise filed therein in 1896 were relied on, as also the omission of the present claim from that and the litigation in 1899, and ss. 13 and 43, C. C. P., were referred to. Kenworthy Blown and St. George Jackson, for the respondent Imtiaz Fatima, contended that the law regulating the succession to the property in suit was settled by the decision in Muhammad Abdussamad v. Kurban Husain(( 1903) L. R 31 Ind. Ap. 30.) to be Mahomedan law. There were concurrent findings that the custom relied on by the appellants in the first suit had not been proved. As to her right to a sisters share see Meherjan Begam v. Shajadi Begam. (( 1899) I. L. R. 24 Bomb. 112.) The Judicial Commissioner was right, for the reasons assigned by him that no case of estoppel was made out or any bar by conduct or acquiescence from recovering her share in this suit. Reference was made to s. 115, Act I. of 1872, and it was contended that the facts as proved did not satisfy its requirements. Sect. 112.) The Judicial Commissioner was right, for the reasons assigned by him that no case of estoppel was made out or any bar by conduct or acquiescence from recovering her share in this suit. Reference was made to s. 115, Act I. of 1872, and it was contended that the facts as proved did not satisfy its requirements. Sect. 43, C. C. P., had no application, for the cause of action in this case was distinct from that in the other suit and could not, or at least need not, have been joined therewith. As to limitation it was submitted that it ran not from the date of Bhagbharis death, but from that of Imtiaz Fatima, the junior widow, who died in 1894 see Mahomed Riasat Ali v. Hasin Banu (( 1893) L. R. 20 Ind. Ap. 155, 158, 159.), Kesharo Jagannath v. Narayan Sakharam (( 1889) I. L. R. 14 Bomb. 237, 241.), and art. 123 of Sched. II., Act XV. of 1877. This was not a suit for a distributive share of the property of an intestate within the meaning of art. 123; and the appellants did not obtain adverse possession of the property in suit till 1894, on the death of Imtiaz. They could not add the period of Imtiazs possession to their own, for she was not a person from or through whom they derived their liability to be sued within the meaning of the definition clause of s. 8 of Act XV. of 1877. On the cross-appeal it was contended that the sister took the whole residue after the widows one-eighth was provided for. The Appellate Court in letting in the nephews to share did so on the theory that the custom was intended to keep the estate in the males of the family. But the appellants were not entitled to participate in any of Mubaraks estate, and a custom excluding daughters could not give them the right to do so. The Appellate Court should have affirmed the finding of the First Court in that respect. Law Rep. 36 Ind. App. But the appellants were not entitled to participate in any of Mubaraks estate, and a custom excluding daughters could not give them the right to do so. The Appellate Court should have affirmed the finding of the First Court in that respect. Law Rep. 36 Ind. App. 210 ( 1908- 1909) Muhammad Kamil V. Musammat Imtiaz Fatima 108 De Gruyther, K.C., replied, contending that the appellants claimed from or through Imtiaz, the younger widow of Martaza, who was in possession as a taluqdars widow within the meaning of s. 3, and that therefore limitation ran from 1888, the date of Bhagbharis death. Otherwise, if Imtiaz and they were indepen dent trespassers, her period of six years possession should be added to that of the appellants for the purposes of s. 28, under which section accordingly the appellants had obtained a pre- secretive title. See Willis v. Lord Howe. ([ 1893] 2 Ch. 545.) [Kenworthy Brown referred to Agency Co. v. Short. (( 1888) 13 App. Cas. 793.)] On the question of the appellants shares he contended that the judgment of the Court below was right for the reasons given therein. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. These are three consolidated appeals from decrees of the Court of the Judicial Commissioner of Oudh, dated September 7, 1904, and January 19, 1905, modifying or reversing those of the Subordinate Judge of Hardoi. These decrees arise out of two suits, and the suits in question will become intelligible from the following pedigree — From that pedigree it will be seen that the name of Musammat Bhagbhari occurs twice, first in the position which she occupied by birth, and, secondly, as the senior widow of Martaza Bakhsh. She had, amongst others, a brother Mubarak and a sister Imtiaz Fatima, plaintiff in the two suits, and the principal respondent in the first two of these appeals. Another Imtiaz Fatima was the junior widow of Martaza Bakhsh, co-widow therefore with Bhagbhari. This Imtiaz Fatima is called in the Courts below No. 1. Martaza Bakhsh died in January, 1865, Bhagbhari, his senior widow, on January 24, 1888, Imtiaz Fatima No. 1, the junior widow, on December 19, 1894, and Mubarak in 1891. Martaza died possessed of propertywhich passed first to his mother, and after her death to his two widows, of whom each held an 8 anna share. Martaza Bakhsh died in January, 1865, Bhagbhari, his senior widow, on January 24, 1888, Imtiaz Fatima No. 1, the junior widow, on December 19, 1894, and Mubarak in 1891. Martaza died possessed of propertywhich passed first to his mother, and after her death to his two widows, of whom each held an 8 anna share. After the death of Bhagbhari, her co-widow, Imtiaz Fatima No. 1, retained possession of the whole estate until her death. On her death mutation of names was made in favour of the principal appellants in respect of a 12 anna share, and in favour of Abdussamad for the remaining 4 annas. The position of Abdussamad appears from the pedigree, as does that of the principal appellants. The first of the present suits was instituted on October 31, SHEIKH MUHAMMAD BASAWAN. | | | (SENIOR) (JUNIOR) Sheikh Kadir Sheikh Bakhsh. Muhammad | Bakhsh | | | | | | | | Sheikh Sheikh Muhammad Sheikh Musammat Musammat Mussamat Karim Muhammad died in 1891. Muhammad Bhagbhari, Lehaz Imtiaz Fatima, Bakhsh Amir, died in | Ahmad, died died on 24th Fatima, died wife of Mir | October, | 24 years ago. January, 1888. issueless. Subhan Ali of 1890. | | Bilgram, | | Plaintiff. Law Rep. 36 Ind. App. 210 ( 1908- 1909) Muhammad Kamil V. Musammat Imtiaz Fatima 109 | | | | | | | Iartaza | | Muhammad Musammat Musammat Musammat Bakhsh, died | | Abdussamd Siraj-un-nisa. Iftikhar Maryam-un- on 18th | | Defendant Fatima. nisa. January, | | No. 4. 1865, A.D. | | | | | | | | | | | | Jia Bibi. Nannhi Bibi. Bano Bibi. Musammat | | Tamiz-un-ni | | sa widow (3 | | daughters). | | | | | | | | | | Muhammad Muhammad Muhammad Musammat Musammat Musammat | Kamil, Akil, Fazil Shams-un-nisa Ikram-un-ni Abida Bibi. | Defendant Defendant Defendant . sa. No. 1. No. 2. No. 3. | | Musammat Musammat Bhagbhari, Imtiaz senior Fatima, widow died junior on 24th widow, January, daughter of 1888. Muhammad Husain, of Bilgram, died on 19th December, 1894. 1899. It related to a share in the 8 anna share of Martazas estate which had been held by his senior widow, Bhagbhari. sa. No. 1. No. 2. No. 3. | | Musammat Musammat Bhagbhari, Imtiaz senior Fatima, widow died junior on 24th widow, January, daughter of 1888. Muhammad Husain, of Bilgram, died on 19th December, 1894. 1899. It related to a share in the 8 anna share of Martazas estate which had been held by his senior widow, Bhagbhari. The judgment of the First Court in this case decided that the rights of the parties were governed by the Mahomedan law, and not by family custom, as had been alleged, and this was affirmed on appeal. The existence of such a custom is a question of fact, and as to this question the Courts in India concurred in their judgment. On this point, therefore, their Lordships see no reason why they should not follow their usual practice of accepting concurrent findings of fact. The second of the suits now in question was instituted on February 11, 1903, in the same Court as the first suit. The dispute related to the estate of Muhammad Mubarak, who died on February 7, 1891, including in that estate a share of the estate which had been that of Martaza Bakhsh, and which Mubarak was said to have inherited from Bhagbhari, and also property which he took by inheritance from his father. With regard to the property taken by Mubarak from Bhagbhari a question was raised which does not apply to the estate which he took from his father—the question of limitation. As to this question of limitation, their Lordships are of opinion that it was properly dealt with in the Courts below, and that the time began to run, at soonest, from the death of Imtiaz Fatima, the co-widow of Bhagbhari, and not from any earlier period. Law Rep. 36 Ind. App. 210 ( 1908- 1909) Muhammad Kamil V. Musammat Imtiaz Fatima 110 Another question raised was whether the now plaintiff, Imtiaz Fatima, had relinquished her claim, or was estopped from pressing it. Their Lordships are of opinion that the question has been rightly and satisfactorily dealt with by the Judicial Commissioners. It lay upon those who alleged such relinquishment or estoppel to establish their case, and their Lordships agree in thinking that they have failed to do so. Their Lordships are of opinion that the question has been rightly and satisfactorily dealt with by the Judicial Commissioners. It lay upon those who alleged such relinquishment or estoppel to establish their case, and their Lordships agree in thinking that they have failed to do so. There remains one question, namely, what shares did the plaintiff, Imtiaz Fatima, take in property inherited by Mubarak from Bhagbhari, and that inherited by him from his father, respectively ? Upon this point their Lordships see no reason to dissent from the view taken by the Judicial Commissioners, or from the reasons given in support of that view. This disposes of the questions raised upon these appeals. The result is that their Lordships will humbly advise His Majesty that all the appeals should be dismissed. The appellants in the first two appeals will pay to Imtiaz Fatima (who alone appeared in those appeals) her costs of the appeals, and Imtiaz Fatima will pay the respondents costs of her cross-appeal, and these costs will be set off against one another in the usual way.