AMEEROONISSA KHATOON Vs. ABEDOONISSA KHATOON

JUDGEMENT

(1.) THE facts necessary to the understanding of the question which arises in this appeal may be thus shortly stated:

(2.) WAHED Ali brought a suit against his father Abdool Ali to recover the possession of a considerable quantity of landed property, and it may be enough for the present purpose to describe the subject of contention between them thus: The father had executed certain hibbanamahs in favour of his son when that son was an infant. It was alleged on the part of the father that the son had subsequently executed certain ikrarnamahs, whereby he divested himself of the benefit which he derived under the previous hibbanamahs. The Court of first instance dismissed the suit of the son, with the exception of that part which related to some property which he derived from his mother, and about which no question arose. Upon that Waited appealed to the High Court. Pending the appeal Wahed died: and thereupon the High Court, as it appears to their Lordships, under the powers given them by Section 103 of Act VIII. of 1859, substituted his widow Abedoonimi for Waited for the purpose of prosecuting the appeal. The appeal was prosecuted; the High Court found the ikrarnamas to have been invalid, and reversed the decision of the Court below. The Court observe that since the death of Wahed " disputes have arisen, and litigation is now ponding concerning his proper legal representative; and for the purpose of prosecuting this appeal we have admitted his widow Mussumat Abedoonissa Khatoon to be his legal representative." At the conclusion of the judgment they thus express themselves: "The decree of the Court below is reversed, with costs. Confining ourselves to the matters in issue in the present suit, our decree will proceed on the basis of the validity of the three deeds of gift, and the invalidity of the later documents. We shall declare that Moulvi Wahed Ali was, in his lifetime, and that those who are now by law his heirs and representatives are, entitled to a decree for setting aside the documents relied upon by the Respondents, and for the recovery of the property sued for." It is to be observed that the decree drawn up in pursuance of this judgment does not conform to that portion of the judgment in which it is said that the representatives of Wahed are entitled to a decree for the recovery of the property sued for. The decree is in these terms: " It is declared that the several ikrarnamas and miras pottahs, dated respectively the 29th Falgoon, 1259, 16th Aughrau, 1263, 6th Jeyt, 1264, and the 15th Aughrau, 1263, were of no effect, and void against Moulvi Wahed Ali in his lifetime, and are void against his lawful representatives. And it is further ordered and decreed that the Defendants, Respondents, who appeared in this appeal, do pay to the Plaintiff's, Appellants, the sum of Rs. 3000." So, in fact, all that could be executed under this decree is the order for costs, the rest of the decree being declaratory only.

(3.) AN appeal was preferred from this judgment to Her Majesty in Council, and in 1875, the judgment was reversed. In the meantime, however, pending the appeal, certain execution proceedings were taken. The widow Abedoonissa applied for execution on behalf of herself, and also, in a different character, as guardian of an infant son, Waged Ali, whom she alleged to have been born to her husband after her husband's death. The legitimacy of this child was disputed by Abdool Ali. Certain other parties also applied for execution, Messrs. Wise and Dunne; but as nothing appears to turn on the proceedings taken by them, no further mention will be made of them.