Mears, C.J and Lindsay, J.:— The order of the Sub-ordinate Judge in this case dismissing the suit of the plaintiffs is erroneous and must be set aside. The suit was a suit for partition, the plaintiffs being the assignees of the interests of a lady named Musammat Kaniz Sughra in the estate of her deceased husband, Mr. Hamid Ali Khan. Mr. Hamid Ali Khan died in the year 1918. He belonged to the Shia persuasion, and the law which regulates the course of inheritance in this case is the Shia law. The heirs left by Mr. Hamid Ali Khan were his brother Nawab Ali Khan, his sister Musammat Salim-un-nissa and his widow Musammat Kaniz Sughra. Admittedly the share of the widow in the inheritance is a one-fourth share according to the Shia law where the widow is childless, as Kaniz Sughra is.
On the 22nd of December, 1920, this lady assigned the whole of her interest in this inheritance to the plaintiffs in consideration of a sum of Rs. 15,000.
It is on the basis of this deed of transfer that the plaintiffs came into court asking for a partition of the estate of the deceased and claiming that they were entitled to a one-fourth share in certain property, both movable and immovable.
At this stage it may be observed that the plaintiffs are not entitled to any share in any land left by the deceased. The Shia law is that the childless widow of a Shia is not entitled to a share in the value of any land belonging to her husband, including land which constitutes the sites of buildings. Her one-fourth share includes a share in the proceeds of the sale of the buildings. This was the view of the law which was laid down by their Lordships of the Privy Council in the case of Aga Mahomed Jaffer Bindanim v. Koolsom Beebee. Therefore, when the plaintiffs set up a claim to a one-fourth share in certain landed properties, their claim was unsustainable.
The learned judge of the court below arrived at the conclusion that the plaintiffs were not entitled to maintain the suit for partition, which he dismissed entirely. In doing so the Sub-ordinate Judge was clearly wrong. It is necessary, therefore, for us to send the case back to the Sub-ordinate Judge in order that he may pass a proper preliminary decree in the partition suit.
We have to point out for the guidance of the court below that the decision of the Sub-ordinate Judge regarding the plaintiffs' interest in certain usufructuary mortgages is erroneous. The Sub-ordinate Judge seems to have thought that the usufructuary mortgages executed in favour of the deceased owner constituted immovable property in the sense of land, so as to disentitle the widow to any share in property of this nature. This is an erroneous view, of the law. The lady is without doubt entitled, to her proper share in all debts which were owing to her deceased husband, whether those debts were secured by usufructuary mortgages or otherwise. Her share in the debts must be declared and awarded.
We should like to add for the direction of the court below that if the defendants put forward, as they would be well advised to do, an estimate of the value of the buildings as separate from the land, this valuation should be considered by the plaintiffs as an alternative to a sale; but if the parties cannot agree as to what is the fair one-fourth value of the buildings as distinguished from the site, then the properties will have to be brought to sale. In that event there might also be an agreement that the land and the buildings-should be sold as one lot, there being an apportionment as to the value of the buildings and the value of the site, otherwise if the value of the buildings alone is put on to the market the result may be that the price fetched will be very small. We make these observations in the interests of the defendants, who should endeavour to come to a settlement with the plaintiffs as to the valuation of the buildings, if they can possibly do so, so as to avert a sale.
We allow the appeal, set aside the decree of the court below and send the case back to the court of the Sub-ordinate Judge for the preparation of a proper preliminary decree. The preliminary decree having been passed, the court will then take such proceedings as are necessary for the preparation of the final decree.
Costs here and hitherto will abide the result.