Karnataka High Court
Smt. Ashabi vs Smt. Faziyabi And Ors. on 19 July, 2004
Equivalent citations: AIR2004KANT476, ILR2004KAR3599, 2004(6)KARLJ267, AIR 2004 KARNATAKA 476, 2004 AIR - KANT. H. C. R. 2886, (2004) ILR (KANT) (3) 3599, (2004) 4 CIVLJ 325, (2004) 6 KANT LJ 267, (2005) 1 MARRILJ 482, (2005) 1 RECCIVR 360
Author: R. Gururajan
Bench: R. Gururajan
JUDGMENT R. Gururajan, J.
1. This appeal is directed against the Judgment and Decree passed in O.S.No. 46/1990 on the file of the additional Civil Judge, Shimoga. The 3rd defendant is the appellant. Plaintiff-respondent filed a plaint and it was stated in the plaint that the plaintiff-defendant Nos. 1 and 2 and the husband of defendants 3, and 4 were the children of Chotima W/o. Buden Sab Chotima died on 30.12.1986. Abdul Samad S/o. Chotima predeceased his mother. He died on 7.4.1985 in an accident. He left behind defendants 3 and 4 and their children. Defendants 3 and 4 are the two wives of deceased Abdul Samad. They claim compensation and a sum of Rs. 30,000/- was awarded to the defendants 3 and 4. According to the plaint averments, defendants 3 and 4 have no right, title or interest in the properties left by the mother of the plaintiff and defendants 1 and 2. The plaintiff's husband has contributed a lot to Smt. Chotima and given cash amount also for purchasing the Municipal site in her name. Deceased Chotima had two Municipal sites bearing Nos. 414 and 310 and the houses have been constructed by the plaintiff and her husband at their own cost in order to uplift the widow and to maintain her minor children. They have performed the marriages of the defendants 1, 2 and 4 at their own costs. Defendants 1 and 2 were residing in the site No. 414 and the 3rd defendant has continued to live in the tenement on site No. 310. The plaintiff got 1/3rd share in all the suit properties. She sought for the same and in the absence, of any response, she filed the present suit.
2. The first defendant filed her written statement. She admitted the relationship between the parties. According to her, the suit schedule properties were self acquired properties of Smt. Chotima and she purchased it out of regular income from doing dhobi work. She was also giving nati medicines and earned lot of money. She purchased the site for a valuable consideration and before getting the sale certificate, she died.
3. The 2nd defendant filed a separate written statement admitting the relationship. She also stated that the deceased Smt. Chotima was doing dhobi work and she earned lot of money. She has virtually reiterated what the first defendant has stated in her statement. The 3rd defendant filed a separate statement. She admits that her husband was a converted Muslim. Smt. Chotima and her son Abdul Samad, the husband of the defendant purchased the Municipal sites and constructed the schedule houses thereon. The plaintiff was always quarrelling with her mother and her brother to extract money. There was an oral partition during the lifetime of Abdul Samad. Her husband was a Guzzari merchant and he purchased the sites and constructed the houses in the name of his mother as she Was the eldest member in the family. The 4th defendant was given cash in lieu of her share and she is residing separately. Smt. Chotima had willed away the property orally to the son of the 3rd defendant during her lifetime. The defendants 1 and 2 have no manner of right, title or interest in the properties.
4. Learned Trial Judge framed 9 issues. He has answered the same in para 7 of the Judgment. 4 witnesses were examined for plaintiff in addition to the production of 13 documents in support of the plaint. 3 witnesses were examined on behalf of the defendant and 22 documents were filed on behalf of the defendant. The learned Trial Judge ultimately has passed the following order:
"The plaintiff is entitled for 1/3rd share in the suit 'A' and 'B' Schedule properties. The defendants 1 and 2 are also entitled each 1/3rd share in the suit 'A' and 'B' Schedule properties. The defendants 1 and 2 are also entitled for 1/3rd share in site No. 413 and 1/3rd share in the sale proceeds of site No. 75 i.e., in a sum of Rs. 28,000/-and in the amount of Rs. 1,535/- which was deposited by Smt. Chotima in the Urban Co-operative Society, and withdrawn by the plaintiff. The defendants 3 and 4 have no right in the suit properties 'A' to 'C'. The defendants 1 and 2 are directed to furnish the schedule to site No. 413, within one week from the date of judgment.
The house properties are to be divided by the Commissioner. The plaintiff and defendants 1 and 2 are entitled for their respective possession also as per the shares stated above. Thus the suit is decreed.
In the circumstances, the parties to bear their own costs."
5. This Judgment is challenged by the 3rd defendant-appellant W/o. Abdul Samad in so far as plaintiff 'B' property is concerned.
6. Heard the Counsel for the parties. Learned Counsel for the appellants says that the appellant has a right in the property being a successor to Smt. Chotima. Scheduled properties were acquired by the joint earning of Smt. Chotima and the husband of the appellant. Learned Counsel says that the appellant is entitled for a share in so far as 'B' schedule property is concerned.
7. Learned Counsel for the contesting respondent says that the appellant is none other than the widow of the deceased S/o. Smt. Chotima. The 3rd defendant-husband has pre-deceased his mother and that therefore she is excluded from getting any share in terms of the Mahomedan Law.
8. After hearing, I have carefully perused the material on record.
9. Issues 1, 2 and 3 have been answered by the learned Judge. We arc not concerned with the findings in the light of the appeal having been filed by the 3rd defendant. Issues 4, 5 and 6 and additional issue deal with proof of defendant with regard to the purchase by Smt. Chotima and with regard to the proof by defendants that the plaintiff held withdrawn the money deposited by Smt. Chotima from Urban Society. These issues have been answered in para 11 of the Judgment. The finding on issue No. 7 is found in para 19 of the Judgment. In this case, the appeal is only by the 3rd defendant. Her only prayer is with regard to 'B' schedule property. Learned Judge has considered the rights of the parties in paragraphs 11 to 18 of the Judgment. In the light of the restricted appeal at the instance of the 3rd defendant, let me see as to whether the 3rd defendant has any right in the matter of property left behind by Smt. Chotima. Admitted facts would reveal that the 3rd defendant is none other than the widow of Abdul Samad. Abdul Samad is none other than the son of late Smt. Chotima. He predeceased Smt. Chotima. He died on 7.4.1985, whereas Smt. Chotima died on 30.12.1986. Learned Trial Judge notices the pre-death of Abdul Samad in the Judgment and thereafter he holds that in the light of his prior death his widow is not entitled for any share in respect of a property left behind by Smt. Chotima in terms of the Mahomedan Law. Let me see as to whether this finding is sustainable in law.
10. It is fairly well settled that the heirs of a Muslim can claim their shares only in what remains, if at all, after all the statutory liabilities have been met out of the property and the debts and valid legacies and death-bed gifts (if any) paid, out of the property of the propositus. A person who according to Muslim law is an heir of the deceased remains so and gets his legal due. He or she cannot be excluded either by other heirs and survivors of the deceased or even under a specific direction left in that behalf by the deceased himself. One can be excluded from inheritance only under a rule of Muslim law, if applicable in India. It is also well settled that only that relative can be an heir of the deceased who is alive at the moment of the latter's death. A person who died before the deceased cannot be his heir. The survivors of such a person can in some cases inherit direct from the propositus, but not in place of or in the right of the said person who died before the propositus (Ref: Muslim law of India by Tahir Mahmood). (Underline is mine).
11. Therefore, what is clear to me is that a pre-deceased son or a daughter gets excluded in view of the prior death in the given circumstances. This proposition is also considered by various Courts.
12. In AIR 1951 SC 327, the Court has ruled in para 52, as under
"It is well known principle of Mohammadan law that if any of the children of a man dies before the opening of the succession to his estate, leaving children behind, these grand children are entirely excluded from the inheritance by their uncles and aunts. This is what their lordships of the P.C. have stated in MOOLLA CASSIM v. MOOLLA ABDUL RAHIM, 33 Cal 173 at Page 178. Clearly, therefore, the whole of Amin Ali's line is excluded from succession to the estate."
13. In , the Supreme Court has ruled in para 20 that "It is a well- recognised proposition of law that the estate of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death."
14. In , the Division Bench of the Court has ruled that the Presumption of Hindu Law regarding joint family, joint family property or joint family funds does not apply in deciding cases between parties who are Muhammadans."
15. In , the Division Bench of Madras High Court after referred to various Judgments has ruled that "the theory of representation is not recognised under the Mohammed Law and the interest of each heir is separate and distinct."
16. In , the Full Bench of Patna High Court has ruled in para 5 as under:
"Unlike Hindu Law, estate of a deceased Mohamedan if he has died intestate, devolve on his heirs at the moment of his death. Under the Mohammedan Law, birthright is not recognised. The right of an heir apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor."
(Underline is mine)
17. From these decisions and in the light of the principles of Muslim law, the widow of the pre-deceased son cannot claim any share in the property left behind her mother-in-law. She is excluded from claiming any share in the light of her husband dying prior to the death of his mother. The learned Judge after noticing the facts and law has rightly ruled against the 3rd defendant. I accept his findings.
18. Learned Judge in the impugned Judgment also notices the contention of a Will in favour of her son during her lifetime. Learned Judge notices (he contradiction between the pleadings and the evidence. Pleadings show one of oral Will and the evidence speaks of the written Will. Written Will is not produced. In these circumstances, the learned Judge has rightly rejected the theory of Will in the case on hand.
19. In the result, I accept the Judge and Decree impugned in this appeal. No acceptable grounds are shown to interfere with a well reasoned order of the learned Judge.
20. Appeal stands dismissed. Parties are to bear their costs.