A. Banerji, J. - (1.) A very interesting question of law arises in this Second Appeal. The question is what would be the share of the plaintiff-respondents who comprise of the widow, four sons and a daughter in the estate left by their father ? The applicant claims that her share was rightly determined by the Trial Court and wrongly set aside by the lower Appellate Court. It was reduced to only seven sehams out of 80 sehams It was urged that her share would be 1/3 of 7/8 j. e, after deducting 1/8 share of the widow, According to her, her share ought to be 11.65 sehams instead of only 7 sehams granted to her by the court below.
(2.) LEARNED counsel for the respondents, Mr. Haider Husain, urged that a daughter has been allotted only a half portion of the residuary which goes towards the son. In other words their portions have to be adjudged individually and not collectively. He urged that the view taken by the lower appellate court is in accordance with law and must be upheld. Having heard learned counsel for the parties I am satisfied that the view taken by the lower appellate court is right and must be upheld. First, a few essential facts : Hafiz Mohammad Shubrati died leaving his widow Mst. Sabira Bibi, four sons Mohammad Siraj, Mohammad Meraj, Imtiaz Ahmad and Ilyas Ahmad and two daughters Kumari Shabana and Mst. Zulekha Bibi. The widow, four sons and one of the daughters Kumari Shabana filed the suit for partition of their share in the house left by their father. The suit was contested by the other daughter, Mst. Zulekha Bibi. The dispute is in regard to their individual share in the house in dispute. Under the Hanafi law of inheritance the wife is a sharer and her share is 1/8 in the property. The daughter becomes a sharer to the extent of half share when there is no son. However, if there be a son, the daughter or daughters become residuary. A perusal of the table of residuary in order of succession Sunni Law page 72-A in Mulla's Principles of Mohammedan Law, 18th edition, by M. HidyatuIIah lays down the following proposition as the law of succession of residuaries : " 1. Descendants : (1) Son. Daughter takes as residuary with the son, the son taking a double portion. "
(3.) THIS is the proposition of law which is to be interpreted. It will be significant to notice that the expression daughter or son used in the above sentence nowhere uses the term in plural. The daughter has been mentioned as an individual and so has the son. The ordinary meaning of the proposition quoted above is that a daughter takes a portion as residuary with the son and in that case the sons' portion is twice that of the daughter. In other words individually each son takes a double holding than that of a daughter. In other words the share of each son has to be double of each daughter. In the present case there are four sons and two daughters. So the share of four sons would be four times that of the two daughters, in the ratio of 8 portions to 2. It must be remembered that the mother is a sharer under the Hanafi Law of Inheritance and her share would be 1/8 in a property of 80 sehams. Her share would be 1/8 i. e. 10 sehams. The remaining 70 sehams are to be distributed thereafter amongst the sons and daughters in the ratio 8:2. Thus the four sons would collectively have 56 sehams and the two daughters 14 sehams. In other words each son would be entitled to 14 sehams and each daughter 7 sehams. The total shares of the sons and daughters in the present case would be 70 sehams and if 10 sehams of the mother's share is added to it, the total becomes 80 sehams;