Allahabad High Court
Siddiq Ahmad And Others vs Shaukat Ali And Others on 13 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Reserved A.F.R. Case :- SECOND APPEAL No. - 447 of 1986 Appellant :- Siddiq Ahmad And Others Respondent :- Shaukat Ali And Others Counsel for Appellant :- Dr. Vinod Kumar Rai,Dr. Vinod Kumar Rai Counsel for Respondent :- D.C. Srivastava,A.K. Srivastava,Amit Khanna,Jugal Kishor Khanna,Kameshwar Rao,Mahendra Narain Singh,Pankaj Mishra,S.K. Srivastava,S.P. Lal,Sanjay Kumar Singh, Shrawan Kumar Pandey,Vinod Kumar Singh Hon'ble J.J. Munir,J.
1. This is a defendant's second appeal, arising out of a preliminary decree passed in a suit for partition.
2. Original Suit No. 22 of 1976 was instituted by Shaukat Ali, arraying Nasiban Bibi as defendant no.1 and Rasheed @ Kallu, Shaukat Ali's son as the second defendant. Jogendra Nath @ Lahiri and Lallu were arrayed as defendant nos. 3 and 4 to the suit and Jamir Ahmad @ Jhamman Driver as the fifth defendant.
3. Shaukat Ali sought partition of the four houses, shown in Schedule A to the plaint. The relief of partition is confined to Shaukat Ali, defendant nos. 1 and 2. The other three defendants have been impleaded for reasons that shall be shortly indicated. The four houses set out in Schedule A to the plaint shall hereinafter be referred to as ''the suit property'.
4. The plaintiff pleaded a pedigree to indicate the relationship between himself and defendant nos. 1 and 2. The said pedigree, set out in Paragraph No.1 of the plaint, is detailed below:
Shakuran = Khoob Ali = Smt. Niranjani Bibi
Nasiban Bashiran
(Daughter) (Daughter)
Bashiran = Shaukat Ali
Rasheed @ Kallu
5. The plaintiff asserted a case that the suit property, comprising four houses together with a courtyard, is located at Town Area Robertsganj, District Mirzapur (now District Sonbhadra). The late Khoob Ali was the owner in possession of the suit property until his demise. After his death, his widow Smt. Niranjani Bibi was recorded in the Municipal Records as the owner. After Niranjani's demise, the names of Smt. Shakuran, the other widow of Khoob Ali, besides that of his daughters, Nasiban and Bashiran were recorded. It is asserted that Shakuran, Smt. Nasiban and Smt. Bashiran - all three were recorded as owners in possession of the suit property after Smt. Niranjani. Smt. Bashiran passed away leaving behind her, her husband Shaukat Ali, the plaintiff and son Rasheed, defendant no.2, as heirs and LRs, entitled to inherit.
6. It is the plaintiff's case that by succession, he and defendant no.2, the plaintiff's son, together have a half share in the suit property, whereas defendant no.1, Smt. Nasiban has the other half. Specifying the shares further, it is the plaintiff's case that a one-fourth share is held by him, one half by defendant no.1 and the remainder one-fourth by defendant no.2, and all parties are in possession of the suit property, in accordance with their shares. It is the plaintiff's case that defendant no.1, Nasiban, out of the houses, comprising the suit property, has sold off two, all by herself, vide registered sale deeds dated 25.01.1969 and 29.11.1971, in favour of Jogendra Nath @ Lahiri and Lallu, defendant nos. 3 and 4 to the suit, in that order.
7. It is also the plaintiff's case that the vendees have been put in possession of the two houses, sold to them through the sale deeds aforesaid by defendant no.1, and these two houses are detailed in Schedule B to the plaint. It is asserted by the plaintiff that notwithstanding the execution of the two sale deeds under reference by defendant no.1 in favour of defendant nos. 3 and 4, the two houses sold by defendant no. 1 exclusively, are also owned by the plaintiff and defendant no.2 together, to the extent of a half share, or a one-fourth share for each of them. The plaintiff has asserted that he repeatedly expressed his wish with defendant no. 1 that he wanted her to partition the suit property, but she remained elusive. This gave rise to the cause of action necessitating the suit for partition.
8. It is the plaintiff's further case that in a part of the houses comprised in Schedule B, defendant no. 5, Jamir Ahmad stays as a tenant of the plaintiff's. Accordingly, Jamir Ahmad has been impleaded as defendant no. 5 (proforma), in order to avoid any legal objection as to non-joinder, though no relief has been claimed against him. The plaintiff claimed a decree for partition by metes and bounds, praying that the Court may partition the suit property, set out in Schedule A to the plaint, granting him a one-fourth share, to defendant no. 1 a half share, and to defendant no. 2 a one-fourth share. It was alternatively prayed that if for some reason, it be not possible to partition the suit property according to the shares claimed, the plaintiff and defendant no.2 be given their entire half share together, in the remainder of the two houses (not sold) by defendant no. 1.
9. The suit was contested by defendant no. 1, Smt. Nasiban Bibi, who put in her written statement dated 07.04.1977. She denied the plaint allegations generally and in her additional pleas, propounded a pedigree indicating the relationship of parties, very different from that pleaded by the plaintiff. The pedigree pleaded by defendant no. 1, set out in Paragraph No. 13 of her written statement, is depicted below:
Khoob Ali = Gujarati Bibi = Niranjani Bibi = Shakuran Bibi (first wife) (second wife) (third wife) (died issueless) Nasiban = Tasadduq Ali Wazir Khan = Niranjani Bibi Bashiran = Shaukat Ali (husband) (died issueless)
10. There is no quarrel at the instance of the first defendant to the extent that the suit property was self-acquired property of the late Khoob Ali and that during his lifetime, he remained its exclusive owner in possession. But, beyond this commonality of stance, there is a sharp digression of stand between parties about their relationship and the way the suit property devolved, including the parties' share(s) therein. According to Smt. Nasiban, defendant no. 1, Khoob Ali's first wife was Smt. Gujrati Bibi. Smt. Nasiban was born of the wedlock of Khoob Ali and Smt. Gujrati Bibi. After Smt. Gujrati Bibi passed away, Khoob Ali married a second time. His second wife was Smt Niranjani Bibi, the widow of one Wazir Khan. Smt. Niranjani Bibi brought along with her, her daughter Bashiran, then a young child, begotten of Niranjani's first husband, Wazir Khan. Smt. Bashiran is not Khoob Ali's daughter. Smt. Niranjani was never blessed with a child during wedlock with Khoob Ali. Smt. Niranjani Bibi passed away during the lifetime of Khoob Ali and he married a third time. His third wife was Shakuran Bibi.
11. It is the first defendant's case that soon after, Khoob Ali passed away, Shakuran Bibi contracted a second marriage and went away. It is also pleaded by the first defendant that Bashiran Bibi was married to the plaintiff, while still a minor. Smt. Bashiran Bibi, within a year of her marriage, suffered injury by fire and died in the year 1958. No child was born of the wedlock between the plaintiff, Shaukat Ali and Smt. Bashiran Bibi. After Bashiran Bibi's demise, the plaintiff married a woman from Varanasi. The second defendant, Rasheed @ Kallu was born of the woman from Varanasi, whom the plaintiff married after Smt. Bashiran Bibi's demise. It is, thus, the first defendant's case that the second defendant is not at all Bashiran Bibi's son and the plaintiff. It was pleaded falsely, to assert the second defendant to be so. There are then some pleas raised about the boundaries of the suit property being incorrect. But, that is not very material to the present suit.
12. The first defendant, on the basis of whatever has been recapitulated hereinabove for her pleaded case, asserted that the plaintiff and defendant no.2 are not entitled to claim any share in the suit property.
13. The next material part of the first defendant's case is her assertion that in the house tax assessment records of the Town Area Committee, Bashiran Bibi's name had been incorrectly mutated, which did not bind the first defendant at all. It is also said that after Bashiran Bibi's demise, the plaintiff made an application to the Town Area Committee, Robertsganj, seeking mutation in place of Smt. Bashiran Bibi, on the basis of a Will left by her. The plaintiff's application for mutation, as aforesaid, was rejected on 16.02.1960. The plaintiff did not take any steps consequent upon the aforesaid rejection of his claim by the Town Area Committee. The plaintiff also did not lay any further claim to the suit property, but now has brought the present suit on the basis of a false case, that is contrary to facts and events, besides being the result of ill-advice, motivated by persons, hostile to the first defendant. It is also asserted that over Houses nos. 1 and 2, detailed in Paragraph No. 18 of the written statement, the first defendant always exercised her dominion and right of ownership, and as the owner thereof, transferred these houses to Jogendra Nath @ Lahiri, defendant no. 3 and Lallu, defendant no. 4, through sale deeds. In the remainder of the two houses, bearing nos. 3 and 4, shown in Paragraph No. 18 of the written statement, defendant no. 5 was a tenant in one i.e. House no. 3 and in House no. 4, the first defendant resides herself. It is asserted that the plaintiff had no control or dominion, much less possession, over the suit property at any time whatsoever.
14. Almost identical but separate written statements were put in on behalf of defendant nos. 3 and 4, Jogendra Nath @ Lahiri son of Daya Ram and Lallu son of Mohan, respectively.
15. In the written statement filed on behalf of defendant no. 3, Jogendra Nath @ Lahiri, apart from supporting the stand of the first defendant, it has been pleaded that defendant no. 3 is a bona fide purchaser for value without notice. He has purchased House No. 1, shown in Schedule B to the plaint. Likewise is the stand of the fourth defendant, Lallu.
16. On the pleadings of parties, the following issues were struck (translated into English from Hindi):
(1) Whether the plaintiff is entitled to a share of 1/2 in the disputed house?
(2) Whether the suit is undervalued and the court-fee paid insufficient?
(3) Whether the plaintiff has a right to sue?
(4) Whether the suit is barred by estoppel and acquiescence?
(5) Whether defendant nos. 3 and 4 are bona fide purchasers for value?
(6) Whether the suit is barred by limitation?
(7) To what relief, if any, is the plaintiff entitled?
17. The learned Civil Judge tried the suit and decreed it for a half share in favour of the plaintiff and defendant no.2 vide judgment and decree dated 30.08.1982.
18. Aggrieved by the said decree, Nasiban Bibi preferred Civil Appeal No. 113 of 1982 to the District Judge of Mirzapur, praying that the Trial Court's decree be set aside and the suit dismissed. The said appeal came up for hearing, upon assignment, before the Third Additional District Judge, Mirzapur on 15.11.1985. The learned Additional District Judge dismissed the appeal, but with a modification of the decree, indicated in the judgment (not the operative order) that in the final decree to be prepared, the plaintiff's share and that of defendant no. 2 should not be mixed up. The fact as to why the aforesaid modification was made to the Trial Court's decree and whether it was in accordance with the shares of parties determined by the Courts below, bearing in mind the distinct stages of the passing of a preliminary decree and preparation of the final decree would be dealt with a little later in this judgment.
19. Aggrieved by the decree passed by the Lower Appellate Court, the heirs and LRs of Smt. Nasiban, who died pending appeal and substituted before the Lower Appellate Court, have moved this Court, invoking our jurisdiction under Section 100 of the Code of Civil Procedure, 1908 (for short, ''CPC').
20. The heirs and LRs of Smt. Nasiban shall hereinafter be jointly referred to as 'the appellants'. However, any reference to Smt. Nasiban, would either be as defendant no.1 or by name. Shaukat Ali, the plaintiff to the suit and respondent no.1 to this appeal, died pending the present appeal and his heirs and LRs, to wit, Suggan wife of Shaukat Ali, Anwar, Jamshed and Parvez sons of Shaukat Ali, were substituted as respondent nos.1/1, 1/2, 1/3 and 1/4 in that order. Hereinafter, any reference to Shaukat Ali, would either be by name or as ''the plaintiff'. Any reference to his heirs would be by their number in the array.
21. This appeal was admitted to hearing vide order dated 28.04.2017 on the following substantial question of law:
"Whether the courts below applied the correct principle of law while dividing the share between Shaukat Ali, the plaintiff, husband of the Bashiran Bibi and Nasiban Bibi -the defendant- who is the sister of Bashiran Bibi?"
22. The appeal was heard on the aforesaid question and it must be remarked at the outset that the question postulates not only the determination of the plaintiff's entitlement to a share in the suit property claimed, but also includes within the half share that the plaintiff claims, the one-fourth that the plaintiff says, belongs to defendant no.2.
23. Heard Dr. Vinod Kumar Rai, learned Counsel for the appellants, Mr. Amit Khanna, learned Counsel appearing on behalf of respondent No.1/1, Mr. Sanjay Kumar Singh and Mr. Shrawan Kumar Pandey, learned Counsel appearing for respondent No.8. No one appeared on behalf of the other respondents.
24. The Trial Court decided Issue No. 1 as the most substantial issue between parties, which relates to the plaintiff's claimed share in the suit property. In deciding that issue, the Trial Court went into the question as to whether Smt. Bashiran and Smt. Nasiban were sisters, born to the same parents. This question arose in the context of the defendant's plea that Smt. Nasiban was Khoob Ali's daughter, begotten of his wife, Smt. Gujrati Bibi, whereas Smt. Bashiran was a stranger to Khoob Ali's family, who had come to that household along with her mother, Smt. Niranjani Bibi, when Khoob Ali married a second time. Smt. Bashiran has been claimed to be the daughter of Smt. Niranjani Bibi, begotten of her first husband, Wazir Khan, who passed away, leaving her behind as his widow. The Trial Court opined that since it was a case set up by defendant no.1 that Bashiran was not Khoob Ali's daughter, burden lay upon her to prove the fact.
25. The evidence that the Trial Court considered, was the registered sale deed dated 25.01.1969 executed by Nasiban in favour of defendant no. 3, where she has acknowledged Bashiran to be her sister and the daughter of Khoob Ali, who was married to Shaukat Ali, the plaintiff. In the opinion of the Trial Court, this recital in the sale deed was made at a time when there were no hostilities between parties. This recital in the sale deed has been regarded as an admission on Nasiban's part by the Trial Judge. It has further been opined that Nasiban never entered the witness-box to prove her case that Bashiran was not Khoob Ali's daughter, or her sister, or to explain her admission in the sale deed.
26. The Trial Court has also concluded against defendant no.1 on the premise that since she avoided entering the witness-box, a presumption of fact would arise against her under Section 114 of the Indian Evidence Act, 1872 to the effect that if she did, and faced cross-examination, her testimony might have gone against her. The Trial Judge has also looked into the Khasra-Abadi relating to Town Area Robertsganj, District Mirzapur for the year 1940-41, Ex. 8, which shows that on 10th January, 1947 in place of Niranjani Bibi, the names of defendant no. 1, Smt. Nasiban, Smt. Bashiran, a minor at that time and Smt. Shakuran, Khoob Ali's widow, were mutated in the Town Area Records by succession over the suit property.
27. There are then remarks that there are no reasons to disbelieve this cogent record of rights. The Trial Judge has also observed that defendant no.1 says that she is the sole heir and LR of Khoob Ali, but the circumstance that upon Smt. Niranjani's death, who had been mutated in place of Khoob Ali, the plaintiff's wife, Bashiran, defendant no.1, Smt. Nasiban and Khoob Ali's third wife, Shakuran, who survived him, were all mutated in the record of rights by succession, does not support Smt. Nasiban's case. On these facts and circumstances, the Trial Court has inferred that both Bashiran and Nasiban are daughters of Khoob Ali, who would inherit his property. Khoob Ali's third wife went away after his demise and her civil death has been presumed by the Trial Court, because she never came back again or claimed a right.
28. Nasiban and Bashiran, the two sisters, daughters of Khoob Ali, were held entitled to inherit a half share each in the suit property. The plaintiff being admittedly Bashiran's husband, who survived her, was held entitled to Bashiran's half share, along with the parties' son, defendant no.2. Nothing was said by the Trial Court about the issue, that was also raised by defendant no. 1, that the second defendant, Rasheed was not Bashiran's son, but born to the plaintiff after Bashiran's death from a subsequent marriage to a woman from Varanasi. There is no finding recorded by the Trial Court on the said question. The Trial Court has also opined that the testimony of Nasiban's husband, who entered the witness-box in support of the case that she pleaded, is not reliable. He is a partisan witness and his evidence not dependable. To the contrary, the plaintiff, Shaukat Ali's case is well established by documentary evidence on record and the circumstances. The Trial Court, therefore, passed a decree for a half share in the suit property in favour of the plaintiff and defendant no.2.
29. The Lower Appellate Court in its concurring opinion has more or less drawn the same conclusions on the totality of evidence on record as the Trial Court. It has been opined that defendant no. 1, Smt. Nasiban, upon whom burden lay to prove the case that Bashiran was not Khoob Ali's daughter, had not led any evidence on the point. The documentary and oral evidence on the other hand, besides circumstances which include the sale deed executed by Smt. Nasiban, the mutation made in the Khasra Abadi relating to the year 1940-41, Ex. 8, under orders of the Town Magistrate dated 10.01.1947 in favour of Smt. Bashiran, after the death of Smt. Niranjani Bibi, in their totality have been held to support the plaintiff's case that his wife, Smt. Bashiran was Smt. Nasiban's sister and daughter of Khoob Ali. The two sisters, therefore, inherited the suit property from Khoob Ali. The plaintiff inherited his wife's share, which is a one-half along with defendant no.2, the parties' son. The Lower Appellate Court also examined that part of defendant no.1's case, where it was said that defendant no. 2, to wit, Rasheed @ Kallu, was not Bashiran's son, but born to the plaintiff, Shaukat Ali of another woman, whom he married after Bashiran's demise. On this point, the Lower Appellate Court has opined that the burden of proving the fact, that defendant no.2 was born of a later marriage contracted by Shaukat Ali, lay upon Smt. Nasiban Bibi.
30. It is recorded by the Lower Appellate Court that the evidence offered on this point is that of Tasadduq, DW-1, who happens to be the Nasiban Bibi's husband. On the other hand, the plaintiff, Shaukat Ali, who, without doubt, is the second defendant's father, has said on oath that the said defendant was born to him and Smt. Bashiran Bibi. The Lower Appellate Court has remarked that normally the evidence of the father about the mother of his child has to be given preference and may be disbelieved, if there is some cogent and convincing evidence to the contrary. The Lower Appellate Court has refused to disbelieve the plaintiff on this point and has rather disbelieved Tasadduq, Nasiban's husband, saying that he is an interested witness. The Lower Appellate Court has, about the shares of parties, held that the plaintiff would have a one-fourth share and defendant no.2 a one-fourth share, which the defendant no.2 would be entitled to claim on payment of court-fee at the time of preparation of the final decree. Likewise, defendant no.1, Smt. Nasiban, represented by her LRs, the appellants would be entitled to her half share, which too, they can get partitioned in the final decree to be passed.
31. There is remark by the Lower Appellate Court that defendant no.1, who was in appeal before him, objected to the decree on the ground that the plaintiff could claim a share for himself and not defendant no. 2. This objection has been disposed of by saying that in a partition suit, the Court has to determine and declare the share of every co-sharer. Once the preliminary decree is passed, it is open to all the co-shares to apply for the preparation of a final decree, relating to their share, upon payment of the requisite court-fee. It is on the basis of these remarks that the Lower Appellate Court has directed that it is desirable that the final decree be drawn in favour of the plaintiff with regard to his share alone and the second defendant's share should not be mixed up with the plaintiff for the purpose of preparation of the final decree.
32. At the hearing of this appeal, it has been submitted that the Courts below have perversely concluded about the relationship of parties. It is urged on behalf of the appellants that neither is Smt. Bashiran a sister of Smt. Nasiban, as the evidence would show, nor Rasheed @ Kallu, defendant no.2, Bashiran's son. This Court finds that the Courts below, on these matters, have taken a reasonable view of the evidence on record. The findings recorded by the Courts below that Bashiran is Nasiban's sister and defendant no.2, Rasheed @ Kallu is Bashiran's son are based on evidence, from which plausible conclusions have been drawn. There is no reason for this Court to permit a re-agitation of the said issue now. No substantial question of law on the said issue has been framed for the said reason, and this Court, at the hearing, has not been successfully persuaded by the learned Counsel for the appellants to frame any additional substantial question of law, that may permit scrutiny of the findings hereinabove referred, concurrently recorded by the two Courts below.
33. Now, the substantial question of law, on which this appeal has been admitted to hearing, is whether the Courts below have applied the correct principle of law while dividing shares between the plaintiff, Shaukat Ali, Smt. Bashiran's husband and defendant no.1, Smt. Nasiban, Bashiran's sister. It goes without saying that the substantial question of law would take within its fold the principle applied to allocate a share in the suit property to the second defendant, Rasheed @ Kallu. There is no quarrel between parties that the principles that would govern the inter se allocation of shares, would be the Mahomedan Law, an uncodified law, governing Muslims, immediately before commencement of the Constitution. The principles continue to apply so long as a competent legislature does not legislate on the subject. The principles of Mahomedan Law, governing inheritance, have not so far, received attention of the legislature and continue to apply as an uncodified body of rules, found in various sources. These have been recognized and expounded over time by Courts, including learned Commentators on the subject.
34. Dr. Vinod Kumar Rai, learned Counsel for the appellants submits that the Courts below have committed a manifest error of law in determining the share of defendant no.1, Smt. Nasiban while passing the preliminary decree for partition. It is his vehement submission that whereas partition that has to be ordered in the suit is about the property left behind by Khoob Ali, the succession, that is involved here, is about the heirs of the deceased Bashiran alone. The issue about devolution of Khoob Ali's estate is no longer open in view of the findings of fact recorded by the two Courts below. It is Dr. Rai's submission that this Court has to determine on the basis that out of Khoob Ali's estate, a half share each has gone to Smt. Bashiran and Smt. Nasiban, and upon Smt. Bashiran's demise, who would be her heirs, entitled to inherit and in what share each. The learned Counsel for the appellants, therefore, says that the half share of Smt. Nasiban stays intact with her in the hands of her heirs, that is to say, the appellants before this Court, whereas the half share in the suit property, that already vests in Smt. Bashiran, is to be regarded as unity wherein Nasiban would receive a share as an heir of her sister, Smt. Bashiran along with the plaintiff, Shaukat Ali, her sister's husband and defendant no.2, Bashiran's son. It is argued that the Courts below have erred in dividing the entire half share in the suit property that Bashiran inherited from her father, between her husband, the plaintiff and son, defendant no.2. Nasiban's share, upon Bashiran's demise, has been completely ignored from consideration by the Courts below, vitiating the decree passed by them.
35. In aid of his submissions, Dr. Vinod Kumar Rai has relied upon principles, governing allocations of shares of a Muslim intestate, amongst his/ her heirs, enunciated in the celebrated Treaties on Mahomedan Law, The Principles of Mahomedan Law by Sir D.F. Mulla, Nineteenth Edition by M. Hidayatullah and Arshad Hidayatullah. Learned Counsel for the appellants has drawn the Court's attention to the three types of heirs of a Muslim intestate, that is to say, the Sharers, who are twelve in number, the Residuaries and the Distant Kindred. A reference would be made to the three classes of heirs during the course of this judgment. It is submitted by the learned Counsel for the appellants that the position of Sharers amongst the three classes of heirs is the most superior and they have to be allotted their specified share. He has referred to Section 63 of Mulla's Principles of Mahomedan Law, which reads:
"63. Sharers.- After payment of funeral expenses, debts, and legacies, the first step in the distribution of the estate, of a deceased Mahomedan is to ascertain which of the surviving relations belong to the class of sharers, and which again of these are entitled to a share of the inheritance, and, after this is done, to proceed to assign their respective shares to such of the sharers as are, under the circumstances of the case, entitled to succeed to a share. The first column in the accompanying table (p. 48A) contains a list of Sharers; the second column specifies the normal share of each sharer; the third column specifies : the conditions which determine the right of each sharer to a share, and the fourth column sets out the shares as varied by special circumstances. Illustrations Note.-- The italics in the following and other illustrations in this chapter indicate the surviving relations. It will be observed that the sum total of the shares in all the following illustrations equals unity i.e. exhausts the inheritance:--
FATHER, HUSBAND AND WIFE
(a) Father .. .. 1/6 (as sharer, because there are daughters) Father's father .. .. .. (excluded by father) Mother .. .. 1/6 (because there are daughters) Mother's mother .. .. .. (excluded by mother) Two daughters .. .. 2/3 Son's daughter .. .. .. (excluded by daughters) (b) Husband .. .. 1/2 Father .. .. 1/2 (as residuary)
(c) Four widows .. .. 1/4 (each taking 1/16) Father .. .. 3/4 (as residuary)"
36. The learned Counsel for the appellants has further invited the Court's attention to the Table at Page 48A of Mulla's Principles of Mahomedan Law, to indicate the list of shares and further show that a full sister is mentioned as a sharer at serial no. 11 of the Table. It is submitted that the normal share of the sister is a one-half and two-third, if there are two or more sisters, who inherit collectively. The submission is that since Smt. Nasiban was the lone full sister of Bashiran, upon the latter's death, she would inherit a half share in Bashiran's estate along with the other two heirs, that is to say, Bashiran's husband and son. It is mooted that out of the suit property, of which partition has to be effected, Smt. Nasiban would be entitled to her half share, inherited from her father like Smt. Bashiran, to which has to be added another share from Smt. Bashran's estate, upon the latter's demise intestate. Smt. Bashiran's husband and son would be entitled to receive a one-fourth share each out of Smt. Bashiran's estate; not out of the entire suit property left behind by Khoob Ali.
37. Going by the aforesaid division of the suit property, that is to say, the property left behind by Khoob Ali, treating it as unity, according to the learned Counsel for the appellants, Smt. Nasiban would be entitled to total share of three-fourth, whereas a share of one-eighth each in the suit property would go to the plaintiff and defendant no.2, respectively.
38. Mr. Amit Khanna, learned Counsel appearing on behalf of respondent no.1/1, Suggan wife of Shaukat Ali submits that in the presence of the deceased Bashiran's son, Kallu, her sister would not be entitled to any share, as she stands excluded by a reputed principle in this behalf. And, that is the presence of the son.
39. We have considered the rival submissions of the learned Counsel for the parties and perused the record.
40. According to the Mulla's Principles of Mahomedan Law vide Section 61, the three classes of heirs of a Mahomedan intestate are spelt out thus:
"61. Classes of heirs.- There are three classes of heirs, namely, (1) Sharers, (2) Residuaries, and (3) Distant Kindred:
(1) "Sharers" are those who are entitled to a prescribed share of the inheritance; (2) "Residuaries" are those who take no prescribed share, but succeed to the "residue" after the claims of the sharers are satisfied; (3) "Distant Kindred" are all those relations by blood who are neither Sharers nor Residuaries."
41. So far as Smt. Nasiban's entitlement to a share in the late Bashiran's estate is concerned, no doubt she is a sharer. In ''Outlines of Muhammadan Law' by Asaf A.A. Fyzee, the entitlement of the full sister to her share has been enunciated at Page 328 thus:
"(9) Full sister, (10) Consanguine sister The full sister is not a primary heir; she is excluded by son, son's son hls, and father or true grandfather. It is to be noticed that male agnates in the descending and the ascending lines exclude her as a collateral. With the full brother and in certain cases with the daughter, she becomes a residuary.
The consanguine sister is excluded by a full brother or two full sisters, and by all the four relations who exclude a full sister. With the consanguine brother the consanguine sister becomes a residuary. With a single full sister she takes a specified share.
The full sister or consanguine sister co-existing with full brother or consanguine brother, respectively, inherit collectively as agnatic heirs, the brother taking a double share. But if there were two full sisters, the consanguine sister would be excluded.
Illustrations
(a) husband, sister: H 1/2; Si ½
(b) husband, two sisters: H 1/2; Si's 2/3 (divided equally)
(c) full sister, consanguine sister: FSi 1/2; CSi 1/6 (remainder of sisters' joint share)
(d) daughter, sister: D 1/2 (as Quranic heir); Si 1/2 (as agnatic heir)
(e) two daughters, sister: Ds 2/3 (as Quranic heirs, divided equally); Si 1/3 (as aganatic heir)
(f) daughter, two sisters: D 1/2 (as Quranic heir); Si's 1/2 (as agnatic heirs, divided equally)"
(emphasis by Court)
42. A perusal of the aforesaid enunciation would show that a sister, notwithstanding her position as a sharer, is excluded by a son, son's son how low soever and father or true grandfather. The same position of the law has been enunciated in the Commentaries on Mahommedan Law by Ameer Ali (Syed) P.C., Fifth Edition 2007, Revised, Enlarged and Updated by Justice S.H.A. Raza and published by the Hind Publication House, Allahabad. In Ameer Ali's Mahommedan Law, the share of the full sister has been indicated as half at Pages 1025 and 1026 in the following words:
"10. The full sister (when only one and no son, son's how low soever, father, true grandfather, daughter, son's daughter or brother, 1/2. When two or more and no such excluder, 2/3."
(emphasis by Court)
43. There is this further principle about a full sister inheriting as an agnate or residuary, where she inherits as a residuary in another's right as it is called. This entitlement comes to a sister or the four specified females, daughters, son's daughters, the full sister and a consanguine sister, when they co-exist with certain males. The said rule is enunciated in Amir Ali's Mahomedan Law at Page 1028 as follows:
(2) Residuaries in another's right.- The Residuaries in another's right are those females who become residuaies only when they co-exist with cerrtain males, that is, when there happen to be males of the same degree, or who, though of a lower degree, would take as such.
These are four in number, viz.-
(a) Daughters (with sons);
(b) Son's daughters (with a son's son or a male descendant still further removed in the direct line).
This applies to the daughters of all lineal male descendants however low. For example, when there is a son's son's daughter co-existing with a son's daughter, the latter takes her half (like the daughter of the deceased), and the one-sixth goes to the son's son's daughter and so on. If there are two son's daughters, the son's son's daughter will take nothing unless she has a lineal male. descendant of the same or lower degree co-existing, such as a brother or a nephew.
(c) The full sister (with her own or full brother).
(d) The sister by the same father, or, in other words, a consanguine sister (with her brother).
When the females are of the same degree as the males (or as in the case of son's daughters or the daughters of a son's son how low soever-when they co-exist with lineal male descendants though of a lower degree), each female takes half the share of a male. For example, where there are two sons and three daughters of two brothers and three sisters, each daughters or sister, as the case may be, will take one-seventh, whilst each son or brother two sevenths.
It must be remembered, however, that many males may become, in certain contingencies, residuaries, but it does not follow that in all cases their sisters would become residuaries with them. It is only when the female is a sharer herself that, instead of taking a share, she takes as a residuary when co existing with a male residuary. For example, if a man dies leaving behind him a widow, paternal uncle, and an aunt, "be the latter by the same father and mother, or by the same father only," the aunt, not being a sharer according to law, is not entitled to any share in the inheritance of her deceased nephew, and her brother (the uncle) takes the entire estate after allotment of the widow's share.
When there is one sister of the whole blood, and consanguine brothers and sisters, the full sister will take her half, and the residue will be divided among the half brothers and sisters in the proportion of two to one.
When there are several full sisters, they will take their two-thirds, and the remainder will be divided as above.
When the deceased leaves only a full sister and a consanguine sister, they take a moiety and one-sixth respectively, and the residue is divided among them pro rata.
When there are two or more full sisters and several consanguine sisters, but no (consanguine) half-brother, the full sisters take the whole, the consanguine sisters take nothing.
44. In case of a full sister, she takes as a residuary if there is a brother of full blood. This rule also finds mention in Fyzee's exposition, hereinabove extracted, but on the facts of the present case, it is not attracted, because Smt. Nasiban did not have a brother. It is a case where the deceased Bashiran was survived by a lone sister, a husband and a son. In the Table at Page 48A of Mulla's Principles of Mahomedan Law, relied upon by Dr. Vinod Kumar Rai, the position of the full sister, no doubt, is shown as a sharer at serial no. 11. In the second column, the normal share is shown in both its contingencies. In the third column, however, are mentioned the conditions, under which the normal share is inherited. In the said column, against the entry relating to a full sister, the following words occur:
When no(1) child, (2) child of a son h.l.s., (3) father (4) true grandfather, or (5) full brother.
45. Thus, according to Mulla's Principles of Mahomedan Law, there is exclusion of the full sister's share in the presence of a son, how low soever.
46. In the present case, it is undisputed that the deceased Bashiran left behind her a son, besides her husband. The son's presence would, therefore, exclude the right of the sister to inherit as a sharer to the extent of a one-half share by virtue of being the lone sister of Bashiran.
47. In the opinion of this Court, therefore, the half share that Bashiran inherited from her father, Khoob Ali would be shared between her husband, Shaukat Ali and their son, Rasheed @ Kallu.
48. Now, if the share inherited by Bashiran from her father, Khoob Ali is considered the unity, its division between her husband, Shaukat Ali and their son, Rasheed @ Kallu, would be governed by Sections 63 and 65 of Mulla's Principles of Mahomedan Law. Section 65 together with the annexed Table at Page 54A reads:
"65. Residuaries. If there are no Sharers, or if there are Sharers, but there is a residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves upon Residuaries in the order set forth in the annexed table (p. 54A). (illustrations omitted) TABLE OF RESIDUARIES IN ORDER OF SUCCESSION -Sunni Law I.- DESCENDANTS:
1. SON.
Daughter takes as a residuary with the son, the son taking a double portion.
2. SON'S SON h.l.s. - the nearer in degree excluding the more remote. Two or more son's son inherit in equal shares. Son's daughter h.l.s. takcs as a residuary with an equal son's son. If there be no equal son's son, but there is a lower son's son, she takes as a residuary with him, provided she cannot inherit as a sharer [see ill. (k)]. In either case, each son's son h.l.s. takes double the share of each son's daughter h.l.s.
Note.- When the son's daughter h.I.s. becomes a residuary with a lower son's son, and there arc son's daughters h.l.s. equal in degree with the lower son's son she shares equally with them, as if they were all of the same grade [scc ill. (m)].
II.- ASCENDANTS:
3. FATHER
4. TRUE GRANDFATHER h.h.s.- the nearer in degree excluding the more remote.
III.- DESCENDANTS OF FATHER:
5. FULL BROTHER.
FULL SISTER - takes as a residuary with full brother, the brother taking a double portion.
6. FULL SISTER.- In default of full brother and the other residuaries above-named, the full sister lakes the residue if any, if there be (1) a daughter or daughters, or (2) a son's daughter or daughters h.l.s., or even if there be (3) one daughter and a son's daughter or daughters h.l.s. See Sir. pp. 24-25.
7. CONSANGUINE BROTHERS.
CONSANGUINE SISTER- takes as a residuary with consanguine brother, the brother, taking a double portion.
8. CONSANGUINE SISTER.- In default of consanguine brother and the other residuaries above-named, the consanguine sister takes the residue, if any, if there be (1) a daughter or daughters or (2) a son's daughter or daughters h.l.s. or even if there be (3) one daughter and a son's daughter or daughters h.l.s. See Sir. pp. 24-25.
9. FULL BROTHER'S SON.
10. CONSANGUINE BROTHER'S SON.
11. FULL BROTHER'S SON'S SON.
12. CONSANGUINE BROTHER'S SON'S SON.
Then come remoter male descendants of No. 11 and No. 12, that is, the son of No. 11, then the son of No. 12, then the son's son of No. 11, then the son's son of No. 12 and so on in like order.
IV.- DESCENDANTS OF TRUE GRANDFATHER h.h.s.
13. FULL PATERNAL UNCLE.
14. CONSANGUINE PATERNAL UNCLE.
15. FULL PATERNAL UNCLE'S SON.
16. CONSANGUINE PATERNAL UNCLE'S SON.
17. FULL PATERNAL UNCLE'S SON'S SON.
18. CONSANGUINE PATERNAL UNCLE'S SON'S SON.
Then come remoter male descendants of Nos. 17 and 18, in like order and manner as descendants of Nos. 11 and 12.
19. MALE DESCENDANTS OF MORE REMOTE TRUE GRANDFATHERS- in like order and manner as the deceased's paternal uncles and their sons and son's sons."
49. Section 63 and the Table at Page 48A of the Mulla's Principles of Mahomedan Law show that the husband is a sharer and receives as such the normal share of one-fourth. However, according to the contingencies enumerated in Column 4, the husband's share is enlarged to a one-half, when no child or child of son, how low soever is there. In the present case, since Bashiran left behind a son, her husband's share would be one-fourth. The son's share would be the residue of a three-fourth, as he would inherit it as a residuary in accordance with Section 65 (supra).
50. The Courts below have erred in allocating the shares of a one-half in the estate left behind by Bashiran to the plaintiff, her husband, Shaukat Ali and the other half to the parties' son, Rasheed @ Kallu. On this basis, the Courts below have determined the share of the plaintiff and defendant no.2 in the suit property (that includes the estate of defendant no.1, Smt. Nasiban) as one-fourth each. Going by the law applicable to the allocation of shares between the plaintiff and defendant no.2 in the estate left behind by Bashiran, the plaintiff would be entitled to a one-fourth share and the parties' son, defendant no.2, a three-fourth share. This share, when applied to the entire suit property, would work out for the plaintiff to a moiety of one-eighth in the suit property and for defendant no.2, Rasheed @ Kallu, a moiety of three-eighth. The balance half share in the suit property would, of course, go to Nasiban, as rightly determined by the two Courts below.
51. The Court has determined the shares of parties as done by the two Courts below according to the law of inheritance applicable to Sunni Muslims governed by the Hanafi School in view of Section 28 of the Mulla's Principles of Mahomedan Law and the comments elucidating the said Section based on judicial authority. Section 28 of the Mulla's Principles of Mahomedan Law and the comments by the learned Commentator read:
"28. Sunni sub-sects.- The Sunnis are divided into four sub-sects, namely, the Hanafis, the Malikis, the Shafeis and the Hanbalis. The Sunni Mahomedans of India belong principally to the Hanafi School.
Presumption as to Sunnism.- The great majority of the Mahomedans of this country being Sunnis, the presumption will be that the parties to a suit or proceeding are Sunnis, unless it is shown that the parties belong to the Shia sect. But the Shia law is not foreign law. It is part of the law of the land, and so no expert evidence can be led to prove it as in the case of foreign law. As most Sunnis are Hanafis, the presumption is that a Sunni is governed by Hanafi law.
The Wahhabis are an off-shoot of the Hanbalis. Considerable groups of Mahomedans in the South of India, such as Kerala and Malabar, are Shafeis."
52. Now, the question is that for this error in working out the inter se share between the plaintiff and defendant no.2, should this Court interfere and vary the decree? We do not think so. No doubt, this Court is empowered under the provisions of Order XLI Rule 33 CPC to pass any order or decree, which ought to be passed, notwithstanding that all or any of the respondents or parties may not have filed an appeal or objection. The said power of the Appellate Court, in our opinion, ought not to be exercised in this appeal to vary the shares between the plaintiff and defendant no.2, because there has not been the slightest issue between them from the Court of instance to this Court. The plaintiff and defendant no.2 have never raised any grievance about the shares allocated to them inter se by the Courts below. No arguments have been addressed on the said issue before this Court by the learned Counsel appearing for the parties.
53. The contention in this appeal has been about the inter se share in the suit property between the plaintiff and defendant no.2 on one hand and defendant no.1, Smt. Nasiban on the other. The preliminary decree has rightly determined the share inter se the plaintiff and defendant no.2 on one hand and defendant no.1, Smt. Nasiban on the other, in the suit property. The error in the shares inter se the plaintiff and defendant no.2, for the reason indicated, is nowhere subject matter of the present appeal and in any case, ought not to be the basis for varying the preliminary decree passed by the Courts below.
54. At this stage, reference may be made to the modification of the Trial Court's decree that the Lower Appellate Court has directed by saying that a final decree ought to be prepared in regard to the plaintiff's share alone and the share of defendant no.2 should not be mixed up with the plaintiff's, for the purpose of preparation of the final decree. In a suit for partition, the preliminary decree declares the inter se shares of parties in the suit property and nothing more. A final decree is to be prepared on an application of parties, whose shares have been declared after hearing the other parties, where the partition of property as per shares declared, is to be made by metes and bounds and specific possession delivered.
55. The direction of the Lower Appellate Court, therefore, that the plaintiff's share should not be mixed up with the defendants at the time of preparation of the final decree is superfluous in the sense that it states only the obvious. To the understanding of the Court, what the Lower Appellate Court has called a modification to the decree is no more than a remark or observation without any change, modification or variation of the Trial Court's decree and this observation came from the Lower Appellate Court in the face of an objection on behalf of defendant no.1 on the ground that the plaintiff could claim a share for himself and not defendant no.2. The objection itself was misplaced, because in the preliminary decree the entire suit property has to be partitioned, declaring the share of each co-sharer.
56. The substantial question of law framed in this appeal is answered in the terms that the share in the suit property between the plaintiff and defendant no.2 on one hand, and defendant no.1 on the other, has been rightly determined to the extent of one-half each; there is an error in allocating the shares inter se the plaintiff and defendant no.2 as one-fourth each, whereas it ought to be one-eighth and three-eighth in the suit property.
57. For the reasons indicated hereinabove, this Court does not find any good ground to interfere with the impugned decree. The appeal is dismissed with costs throughout payable by the heirs and LRs of defendant no.1 to the heirs and LRs of the plaintiff.
58. Let a decree be drawn up, accordingly.
Order Date :- 13.9.2022 Anoop