Benson and Krishnaswami Ayyar, JJ

[1] We agree with the decision in Umardaraz Ali Khan v. Wilyat Ali Khan (1897) I.L.R. 19 A. 169, where it is held that Article 123 applies only when the suit is for a share of an estate which it is the legal duty of the defendant to distribute. In the case of a Mahomedan dying intestate the estate is at once vested in the heirs as tenants in common and there is no one charged by law with its distribution, and as pointed out in Abdul Khader v. Aishamma (1893) I.L.R. 16 M. 61 it does not appear that in Patcha v. Mohidin (1892) I.L.R. 15 M. 57 or Kasim v. Aishamma (1892) I.L.R. 15 M. 60 there was any contention that the defendant was not the lawful personal representative of the deceased. In Patcha v. Mohidin (1892) I.L.R. 15 M. 57 the question whether Article 123 applied was not discussed or expressly decided but in Kasim v. Ayishamma (1892) I.L.R. 15 M. 60 the learned Judges do apply Article 123 but as we think, wrongly.

[2] We think the answer to the question referred must be that Article 144 is applicable when the property is immoveable and Article 120 when it is moveable property.