JUDGMENT
1. The plaintiff is the appellant. The genealogical tree found at page 16 of the printed papers is admitted to be correct and I shall reproduce it here for easy reference.
SYED SULTAN ABDUL KADIR SAHIB
|
____________________|____________________
| |
Mahomed Kaliba Kaliba Syed
Sahib Hussain Kabir
Sheikh Sultan Sahib
Sahib |
| Kaliba Syed
Syed Sultan Mahomed Sahib
Bava Moideen |
Sahib Syed Mahomed
| Hussain Kaliba
______________|__________ Sahib alias
| | | Haji Sheikh
Syed Muthuvalli Sheikh Hussain
Mahomed Syed Peer Mahomed _______________|_______________
Bakir Mahomed Sahib | |
Sahib Syed Mohidin Assan Kudas
| Sahib Kaliba Sahib
Kaliba Moula | alias Santhi
Mahomed Ghouse Syed Kader Kaliba
Sahib Mohidin Sahib |
| _______|__________ Mahomed
Kaliba | | Kaliba
Syed Peer Kaliba Mastan Kaliba Sahib |
Mahomed Sahib (1st Defendant) Foster
Sahib Son
______|________ Vappuchi
| | Sahib
Kaliba Syed Hamid |
Moula Bibi Syed
Mahomed | Mahomed
Ghouse Abdul Samad Kaliba
Sahib Sahib |
(Plaintiff). Sahib
(P.W. 5).
On one question of fact which was in dispute in this case, namely whether plaintiff was appointed by his maternal grandfather Syed Peer Mahomed Sahib to the office of Kalibath, I take it that the lower appellate Court finds against the plaintiff in the negative, and that finding being a finding of fact is binding on us in second appeal. I shall, now assume (without deciding) the validity of the plaintiffs contention that his maternal grandfather Syed Peer Mahomed Sahib who held Kaliba office till 1913 for more than 30 years was the full and sole owner of that office at his death and that it was a hereditary office to which Peer Mahomed Sahib’s heir was entitled to succeed. On that assumption, the question of Mahomadan Law which arises for decision is whether the plaintiff (the daughter’s son of the last holder of the office) is entitled to inherit it as the nearest kindred or whether the 1st defendant who is descended from the great grandfather’s great grandfather of the deceased in the agnate line, as residuary, the next heir. The plaintiff’s contention is that the great grandfather’s great grandfather’s descendant is not a residuary heir at all under the Mahomadan Law it being admitted, by him that the residuaries inherit under the Mahomadan Law in priority to distant kindred. The contention of the appellant is that agnates who are descended from an ancestor more remote than the grandfather’s grandfather are not residuaries in their own right according to the Mahomadan Law. So far as the descendants of the grandfather’s grandfather are concerned, he is obliged to make the admission that they are residuaries because even the original texts relied on by him (from the Durrul Mukhtiar Sirajya and Fatwa Alamgiri) do mention the descendants of the grandfather’s grandfather as residuaries. As regards the descendants of remoter ancestors, we have got two direct decisions one (so long ago as in 1805) in Shah Ilahi Buksh v. Shah Karim Ali Sudder (1805) S.D.A. Reports Bengal, Select Report, page 131 and the other in MuhameU Haneef v. Mahomed Masoon and Ors. (1874) 21 W.R. 371. These decisions interpret the texts of the Mahomadan Law as laying down that agnates however remote are entitled to inherit as residuaries in the absence of nearer agnates, that residuary heirship is not confined either to the grandfather’s (father’s father’s) descendants (as argued in some cases) or to grandfather’s grandfather’s descendants but extends to the agnate descendants of a ” true ” grandfather however high in scale. (In those two cases the right of a person descended from a remoter ancestor than the grandfather’s grandfather was upheld). The learned Judges evidently treat the examples given in the texts (which extend only up to the grandfather’s paternal uncle’s descendants as merely illustrative and not exhaustive. All the notable text writers including Bailee, Ameer Ali, Sarcar and Wilson (See the table at page 291 of Wilson’s Digest, 4th Edn.) adopt the same interpretation of the texts. In two decisions of this court also (Mohideen Ahmad Khan v. Sayyad Mohamed (1862) 1 M.H.C. R. 92 and Indian jurist old series) the same interpretation is followed. The word grandfather seems to be used to indicate an ancestor in the paternal line however remote in the Mahomadan Law books just as the word “pita maha” in Sanscrit is used to denote even the remotest ancestor of man, Brahma himself. I do not think I am competent to pass criticisms on all the above Mahomadan Law authorities and the criticisms we have listened to from Mr. T. R. Ramachandra Aiyar on them have not satisfied me that they fell into any error in formulating their considered opinions as above. Following them, I hold that the first defendant though descended from the great grandfather’s grandfather of the propositus is, (as an agnate descended from the nearest ancestor of Peer Muhamad who has left descendants in the male line) to be preferred as Peer Muhamad Sahib’s heir to the plaintiff who is only a daughter’s son (a cognate) and who comes therefore among the inferior class of distant kinsmen. I shall repeat that it is unnecessary to decide whether the Kalibath office was really a hereditary office in the hands of Peer Mahomed as the plaintiff’s suit fails even if it was so. The second appeal is therefore dismissed with costs, two sets.
2. The memorandum of objections is dismissed. There will be no costs.