ABDUL AZIZ Vs. MTMARIYAM BIBI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession of part of the property sold and for pre-emption of the rest. The vendor was Mt. Maryam Bibi, the widow of Ali Raza. The property sold is admittedly what originally belonged to Ali Raza. The plaintiff claimed to be an "asba" (a residuary) of Ali Raza and entitled to a three-fourths share in his estate. The widow however transferred the entire property. On 31 March 1924, the vendee Akbar Ali was examined by the Court under Order 10, Rule 1.

(2.) He made a clear statement that the plaintiff was the uncle of the deceased husband of Mt. Maryam Bibi and was removed by four degrees, and that after Ali Raza's death he began to make collections for a year, and it was in consequence of her not being able to get the profits that she transferred the property to him. This was undoubtedly an admission of the plaintiff's allegation that he was a relation within four degrees of the deceased Ali Raza. This admission ought to have been taken as conclusive, In spite of it the learned Subordinate Judge owing to some oversight or perhaps misapprehension did frame an issue on the question of relationship. But when he came to write out his judgment he referred to this admission and treated it as an admission of Akbar Ali in the suit. Independently of it he relied on the statement on oath of the plaintiff and other oral evidence as wall as a pedigree filed by the plaintiffs, and held that the relationship was established. On appeal the learned District Judge has come to the conclusion that this admission was made by Akbar Ali in an unguarded moment and was apparently a mistaken admission because Akbar Ali could not have any satisfactory knowledge of his own on the point. Both these conclusionsare startling. The learned Judge has thought that the admission was governed by Section 31, Evidence Act, which did not make admissions absolutely conclusive. He has entirely ignored the fact that this was not an admission made on a previous occasion which was sought to be produced as an admission in a case to which Section 31 would have applied. It was actually an admission of fact made in a suit and ought to have been treated as conclusive for the purposes of the suit. It is also difficult to understand why the learned Judge thought that Akbar AH may not have knowledge of this pedigree. Ignoring this important admission the learned Judge has thought that the evidence of the plaintiffs is not strong. We are of opinion that the finding of the learned District Judge has been vitiated by the circumstances referred to above. It must therefore be assumed that the plaintiff is related to Ali Raza as mentioned by him.

(3.) It has been urged on behalf of the respondent that the plaintiff's "claim is arrred by Section 41, T.P. Act because the vendee has purchased this property from an ostensible owner. But Akbar Ali has himself admitted that the plaintiff began to make collections of the profits soon after Ali Raza's death and that his widow sold this property to Akbar Ali because she was not able to get the profits. It cannot therefore be suggested that she was put in possession of the estate with the consent of the plaintiff. Section 41 therefore would have no application.