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. 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 sixth share of his estate, and that of her interest only a half had devolved on Sarafally, the other half belonging to his sister Sakinaboo and the two daughters of his deceased sister Amtoolaboo—namely, the plaintiff and Asmabai. On this footing the agreement provided that the respective shares of Sarafally and Ebrahimjis estate should as to two Esmailji Bha….=Jelumboo d. before 12.2 |d.17.11.12 | | = Halimabai, d. | | Ebrahim=Fatmabai | after 8.11.26 and Sakinaboo=TyeballyAmtoolaboo=Esufally = d.12.2.04| d.9.2.26 | before suit Orig. | Lookmanji d. 1920 | Tyebally | | | 7th Dft. |D.14.3.32| ||| || Abdul=safiabai | | | | | | | | Hussein | 6th | Sarafally=Fatmabai 17th 18th 19th Rukhiaboo Substitted safiabai Asmabai Dft. | d.5.8.23|d.Aug. 1925Dft. 7th Dft. 3rd Resp. Pltf. 1st 8th Dft. Moh. |d.9.8.37 | | Dft. Dft.Resp. Predeceased his | | wife| | | | | 2nd daughter | | | || Sarabai=Kikabhai =Zubedabai | Katizabai=Moh. divorced| 1st Dft. 18th Respt| d.23.5.27 | Tyebally | | | 2nd Dft. | ||||| 16th & 17th 19th Respt. | Ruhabai Salmabai Shirinbai Respts.| 3rd Dft. 4th Dft. 5th Dft. || 4 sons Dft. 9-12 4 daughters Dft. 13-16 Respts. 5-8 Respts. 9-12 plots of land in Kapadvanj be equal, but as to the business and the houses in Abdul Rehman Street and Samuel Street should be as follows 10 annas to Sarafally and 6 annas to Ebrahimjis estate. The ancestral house at Kapadvanj had already been partitioned by metes and bounds. On Sarafallys death (August 5, 1923) his estate devolved on his widow, his four sons and his four daughters. On September 24, 1924, an agreement in writing was made between them as Sarafallys heirs of the one part and the widow and three children of Ebrahimji as representing Ebrahimjis estate of the other part. No notice was taken in this agreement of Jelumboo or her heirs as having any interest in the estate of Ebrahimji. The agreement of July 13, 1923, was approved. The house at Abdul Rehman Street and its contents and two immovable properties at Kapadvanj were to be taken by Ebrahimjis heirs, and Sarafallys heirs were to get the Samuel Street house and the business. These assets were to be taken at certain valuations the figure for the business to be fixed by one Metaji Chaturbhuj Motichand, who was to make up the final account. Some properties at Kapadvanj were not included in this arrangement, but it was recited that these had already been divided. These assets were to be taken at certain valuations the figure for the business to be fixed by one Metaji Chaturbhuj Motichand, who was to make up the final account. Some properties at Kapadvanj were not included in this arrangement, but it was recited that these had already been divided. On December 11, 1924, the widow and son of Ebrahimji, together with one daughter (Khatizabai), sued for partition in accordance with the agreement of September 24, 1924. The other daughter (Safiabai)was made a defendant, but the suit was brought against Sarafallys eight children and widow as representing his estate a preliminary decree for partition and accounts was obtained on May 5, 1925, and a final decree on June n, 1926. The widow of Ebrahimji died meanwhile in 1925, and her interest passed to her children. The widow of Sarafally died in 1926; this produced certain changes in the representation of Sarafallys estate which will be taken account of in due course. On July 17, 1926, Ebrahimjis son, Kikabhai, sued his sister Khatizabai and his half-sister Safiabai for sale and division of the property which had come to them under the decree in the previous suit. Safiabai, by her written statement filed on November 8, 1926, set up that Jelumboo, her fathers mother, was one of his heirs, and that the present plaintiff, together with her sister, Asmabai, and her aunt, Sakinaboo, and other persons should be brought before the Court as necessary parties. Khatizabai having died in 1926, her husband and children were substituted in her stead. On February 21, 1929, a decree was passed by consent directing that Safiabai should take a sum of Rs. 51,500, with certain interest, in full satisfaction of her share in her father Ebrahimjis estate. This was paid to her, and a release was executed by her on January 31, 1930. Their Lordships do not stop to consider the propriety of these proceedings having regard to the facts brought to notice by the ladys own written statement as already mentioned. On July 23, 1930, the present suit was filed. At some date before that, but after 1926, the death of Halimabai occurred. She was the mother of Sarafallys wife, and had been one of her heirs. On July 23, 1930, the present suit was filed. At some date before that, but after 1926, the death of Halimabai occurred. She was the mother of Sarafallys wife, and had been one of her heirs. The result of Halimabais death was that the persons entitled to the estate of Sarafally were now his four sons, his four daughters, and three sisters of his wife. These eleven persons may be described as the second set of defendants to the present suit—namely, defendants 9-19 inclusive. The plaintiff was Safiabai, one of the two daughters of Amtoolaboo, sister to Ebrahimji. The first sets of defendants (so to call them) were Kikabhai and Khatizabais representatives; these were defendants 1-5. Among other defendants was Kalahari’s half sister, Safiabai (defendant 6), who has been paid out as already mentioned. The plaintiffs sister, Asmabai, was defendant 8, and the plaintiffs aunt, Sakinaboo, was defendant 7. These two ladies were in the same position as the plaintiff, being perons entitled along with the plaintiff to a half of the one-sixth interest which Jelumboo had in her son Ebrahimjis estate. The other half of that one-sixth interest belonged at the date of the suit to Sarafallys representatives—that is, defendants 9-19—unless by the agreements of 1923 and 1924 they had lost their interest. It is necessary to direct attention to the frame and scope of the suit. It was brought on the Original Side of the High Court at Bombay. The plaint set forth the various relationships of the parties and the devolution of interests in the respective estates of Ebrahimji and Sarafally. It recited the agreements of July 13, 1923, and September 23, 1924, and the two previous suits brought thereupon; it stated that the plaintiff had had no knowledge thereof and had not consented thereto; but it did not claim that the plaintiffs interest in the estate of Ebrahimji should be ascertained as between herself and the estate of Sarafally as though these agreements had never been made. In effect, as their Lordships read the plaint, it merely asked that Jelumboos one-sixth share in what Ebrahimjis widow and children had received as representing his estate should be given to the persons entitled thereto. Defendants 9-19, Sarafallys representatives, supported the plaintiff the contesting defendants were the defendants 1-5. In effect, as their Lordships read the plaint, it merely asked that Jelumboos one-sixth share in what Ebrahimjis widow and children had received as representing his estate should be given to the persons entitled thereto. Defendants 9-19, Sarafallys representatives, supported the plaintiff the contesting defendants were the defendants 1-5. The suit having been filed on July 23, 1930, Sakinaboo (sister of Ebrahimji), who was defendant No. 7, died on March 14, 1932, leaving her daughter, Rukhiaboo, as her heir. No application to make the daughter a party to the suit having been made within 90 days, the suit abated as against Sakinaboo under Order 22, r. 4, cl. 3, of the Civil Procedure Code. No application was made within 60 days thereafter to set aside the abatement under r. 9 of the same Order. But on May 10, 1936, Rukhiaboo herself applied to be brought on the record in her mothers stead, and claimed to share in the relief asked by the plaint. Acting under r. 10 of Order 1 of the Code, Barlee J., on January 22, 1936, added her as 7th defendant to the suit. At the trial the learned judge, on February 17, 1936, dismissed the suit, holding that the plaintiffs claim was within art. 106 of the Schedule to the Limitation Act, 1908, which prescribes a period of three years from the date of dissolution for a suit for an account and a share of the profits of a dissolved partnership. On appeal this decree was set aside by a Division Bench (Beaumont C.J. and Rangnekar J.) who directed an account to be taken of the estate of Ebrahimji come to the hands of Kikabhai and the heirs of Khatizabai, and ordered that the estate of Ebrahimji be applied in due course of administration. This decree was dated September 8, 1936, and is the decree from which the present appeal is brought by the heirs of Khatizabai. It is not contended that the plaintiffs claim is for anything more than her prima facie rights in Ebrahimjis estate, but three points are taken for the appellants. This decree was dated September 8, 1936, and is the decree from which the present appeal is brought by the heirs of Khatizabai. It is not contended that the plaintiffs claim is for anything more than her prima facie rights in Ebrahimjis estate, but three points are taken for the appellants. It is said (1.) that the suit had come to an end by reason that it had abated as against Sakinaboo, (2.) that it is barred by limitation, and (3.) that defendants 9-19 can make no claim against the appellants in respect of Sarafallys interest in Jelumboos estate as this would be contrary to the agreements of July 13, 1923, and September 23, 1924, and to the decree of the Court, made (June 11, 1926) in the suit of 1924, which gave effect to these agreements. On the first point their Lordships are of opinion that it is impossible to hold that the suit for administration of Ebrahimjis estate came to an end by reason of abatement as against Sakinaboo. Sakinaboo and her daughter Rukhiaboo are persons having the same interest as the plaintiff, and though the plaintiff by reason of laches may be supposed in certain circumstances to lose her rights as against them, it is paradoxical to suppose that the plaintiffs laches have deprived them of rights. There is nothing in Order 22 to take away their interest in the estate of Ebrahimji, and they could (so far as that Order is concerned) have brought an administration suit of their own, notwithstanding any abatement of the plaintiffs suit. The presence of someone to represent Sakinaboos interest was very proper and highly desirable in the interest of every other party, but it is putting it too high to say that the suit could not possibly go on without her. It not uncommonly happens, in a suit for administration, that for one reason or another a particular interest is not represented before decree, but is either provided for by the decree, or is asserted at a later stage under the decree, or is given effect by a party being permitted to attend certain accounts and enquiries so as to be bound by the result. Still, it would have been very bad practice if in the present case Rukhiaboo had not been joined as a party, and this was properly done by Barlee J. on her own application under Order I. r. 10. Their Lordships are of opinion that it is open to the judge in his discretion under Order I, r. 10, to add as a party to the suit the representative of a person against whom the suit has abated for the purpose of giving effect to the rights of the parties. The contention that the plaintiffs suit had abated as a whole is fundamentally mistaken. It involves that the plaintiff was claiming relief against Sakinaboo, that because Sakinaboos heirs were entitled to resist the grant of this relief in the present suit by reason of the plaintiffs laches, the plaintiff could not be given relief against the present appellants. No step in this reasoning can be justified. It was not contended before the Board that the plaintiffs suit is of the character mentioned in art.106 of the Limitation Act. It is a suit against certain Mahomedan co-heirs by a person entitled to part of the interest of an heir, and the High Court on appeal rightly held that to such a suit neither art.106 nor art.123 is applicable. The heirs of a Mahomedan succeed to his estate in specific shares as tenants in common, and the plaintiffs suit against the son and daughters of Ebrahimji for due administration of what came to their hands as property left by their father is governed as regards immovable property by art.144 and as regards movables by art.120 Mahomed Riasat AH v. Hasin Banu (( 1893) L. R. 20 I. A. 155.), Ghulam Mohammad v. Ghulam Husain.(( 1931) L. R. 59 I. A. 74.) Upon the proper application of art. 120 as between tenants in common it will be sufficient to refer to Bolo v. Koklan (( 1930) L. R. 57 I. A. 325.), and Yerukola v. Yerukola.(( 1922) I. L. R. 45 M. 648.) It does not appear that the widow, son or daughters of Ebrahimji received what was to come to them under the agreement of September 24, 1924, until the suit of 1924 had been decreed in 1926, which is well within six years of the filing of the present suit on July 23, 1930. But their Lordships think it right to add that on the evidence they find no reason for holding that there had been an ouster or exclusion of the plaintiffs prior to July 23, 1924; indeed, there are concurrent findings of the courts in India which are inconsistent with any such contention. The third point taken by the appellants is, in their Lordships opinion, good against those claiming under Sarafally an interest in Jelumboos one-sixth share of Ebrahimjis estate. As the suit of 1924 resulted in a decree there is an element of estoppel by record, but the matter may be put sufficiently as resting on agreements made in 1923 and 1924 between Sarafally and Sarafallys heirs on the one part and the widow and children of Ebrahimji on the other. Defendants 9-19 cannot claim to make the present appellants liable on the footing that Sarafally was entitled to more than these agreements gave him, though it be true enough that since 1912 he had been entitled to a half of his mothers one-sixth share. If the plaintiff by her suit had challenged the rights of Sarafallys heirs under the agreements of 1923 and 1924 it may well be that she could have required Sarafallys heirs to account upon a footing which would have made it impossible to give any effect to these agreements, even as between the parties to them. But the plaintiff by her suit has not sought relief upon any such basis, and the agreements have their effect between Sarafally(and his representatives) and the children of his brother. Their Lordships are of opinion that on this point the appeal succeeds, but only as against defendants 9-19 (respondents 5-15). The decree of the High Court, dated September 8, 1936, should be varied (a) by limiting the second of the declarations therein made to a declaration that the plaintiff and the 7th and 8th defendants are entitled to a one-twelfth share in the estate of Ebrahimji Esmailji Bhagat, the plaintiff and the 8th defendant being each entitled to one-quarter of the said one-twelfth share, and the 7th defendant being entitled to the remaining half thereof; (b) by adding to the order for administration the words " so far as regards the one-twelfth " share to which the plaintiff and the 7th and 8th defendants "are entitled as aforesaid." Their Lordships will humbly advise His Majesty accordingly. They see no need to disturb the High Courts order as to costs. As regards the costs of this appeal, the appellants must pay one-half of one set of costs to the contesting respondents— that is, respondents 1, 3 and 5-12, who have joined in resisting the appeal.