Jharkhand High Court
Razia Begam vs Ahmad Kalimulla on 28 April, 2022
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 55 of 2005
1. Razia Begam
2. Md. Yasir .... .... Appellants
Versus
Ahmad Kalimulla
.... .... Respondent
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellants : M/s Manjul Prasad, Sr. Advocate & Baban Prasad, Advocate For the Respondent : Mr. Shadab Eqbal, Advocate C.A.V. ON 25.03.2022 PRONOUNCED ON 28 / 04 / 2022
1. The plaintiff is before this Court in second appeal against the affirmance of the judgment and decree passed by the trial court in Partition Suit No. 54 of 1984 in which the suit was dismissed and subsequently, first Appellate court dismissed the appeal in Title Appeal No. 06 of 2003.
2. The parties shall be referred by their original placement in the suit and shall include the legal representatives substituted at different stages.
3. Plaintiff Razia Begam, wife of Md. Hanif Madina and her son Md. Yasin filed the suit for partition of the schedule property jointly owned and possessed by Md. Hanif Madina @ Manjur, Md. Mustafa Kalam and Ahmad Kalimulla, all sons of Md. Hussain in equal shares. For better appreciation the genealogy of the parties is set out herein-below:
Abdul Latif Md. Hussain Md. Hanif Madina Mustafa Kalam Ahmad Kalimulla (dies issueless) (sole defendant) Razia Begam (Widow) (P-1) Md. Yasir
4. Md. Hanif Madina @ Mansoor Ali died leaving behind the plaintiff who inherited his share as his heir, successor and legal representative.
25. Md. Mustafa Kalam died issueless leaving behind the only widow who remarried after the death of her husband.
6. Share of Late Mustafa Kalam devolved on the plaintiff and defendant in equal share. The parties are joint and there has been no partition by metes and bounds and there was unity of title and possession. Plaintiff demanded partition which was refused by the defendant. Hence the present suit.
7. The case of the defendant is that the suit land was recorded in the name of Abdul Latif in the record of rights and said Abdul Latif grand- father of the defendants gave suit property to the defendant's grand- mother Mostt. Johra in Den Mohar, who came in possession of the suit land. Mostt. Johra sold the suit land to Balian Khatoon mother of the defendant by registered deed of sale dated 24.11.1979, and since then the defendant's mother and the defendant are in exclusive possession of the land. It is contended that in the said sale deed proper description of land was not given in the said sale deed and inadvertently wrong plot numbers were mentioned in it. The plaintiff taking advantage of the mistake are now making false claim over this property. In the said sale deed Plot Nos. 732 and 732/1592 have been mentioned which never belonged to Mostt. Johra grand-mother of the defendant and, therefore, she could not have sold the suit land and it was only a clerical mistake.
8. It is further contended that Md. Hanif Madina @ Mansoor Ali was never in possession of the suit land or Abdul Latif as it had been given to the defendant's grand-mother in denmohar. In view of the assertion made that the property was given to grand-mother the question of devolution of the property of Abdul Latif to his sons did not arise.
9. In sum and substance, the plaintiffs claim the property by way of inheritance and reversion of the share of Mustafa Kalam who died issueless whereas the defendant claim it by virtue of registered sale deed executed by his grand-mother to his wife.
10. On the basis of the pleadings of the parties, following main issues were framed:
Issue No. III - Is there any unity of title and possession between the parties?
Issue No. IV - Are the plaintiffs entitled for partition of the suit property?3
Issue No. V - Are the plaintiffs entitled to the decree as claimed?
11. Learned Trial court dismissed the suit by recording the following findings of fact:
Firstly, the defendant has not pursued the defence of the claim of title over the property by sale deed but has laid emphasis on Hanafi Law of inheritance under which the son will not get any share in the family property in the life time of his father. The plaintiffs' plea that this plea was not raised in the written statement did not find favour of the trial court since legal plea can be raised at any stage. The claim of partition had been made during the life time of the father. Secondly, the documentary evidence showed that the name of grand- son of the recorded tenant Abdul Latif was entered in the suit property but mere entry in the revenue record cannot be a basis for a claim of title or interest in the property, as admittedly the property was joint and as per Hanafi Law a son cannot claim his share in the family property during the life time of his father.
Thirdly, there is no document to show how the property was transferred by the recorded tenant Abdul Latif to his grand-sons and, therefore, learned Trial court did not attach any significance to the entry in the revenue record as Md. Hanif Madina @ Mansoor Ali and his brothers.
Fourthly, it has been noted that Md. Hussain was still alive and there was sufficient evidence to this effect.
12. Learned court of First Appeal concurred with the findings of fact of the trial court and dismissed the appeal on facts as well as law relying on Sections 41, 52, 54, 56, and 63 of the Mohammedan Law by Mulla. The main ground for dismissing the partition suit was that as per Mohammedan law sons cannot claim any share in the ancestral property during the life time of the father. It was admitted case of the plaintiff that Md Hussain was the son of Abdul Latif. The husband of the plaintiff and his three brothers were sons of Md Hussain who was alive and was examined as D.W.2. The identity of D.W.2 has not been challenged by the plaintiffs. The partition suit was therefore not maintainable during the lifetime of Md. Hussain.
13. This appeal has been admitted to be heard on the following substantial questions of law:
4I. Whether the Courts below have committed serious error in deciding the issue whether Abdul Latif is dead or alive without any pleading on record?
II. Whether the Courts below have erred in reading the evidences without any pleading on record and in deciding the suit on erroneous perceptions and consideration? III. Whether the Courts below have committed error in making out a third case deviating from the pleadings of the parties.
14. I do not find that courts below have committed any error in fact or law while recording the findings of fact that as per Hanafi School of Mohammedon law the sons cannot claim partition during the lifetime of their father. This is a question of law which need not be pleaded. The clinching evidence is the evidence of Md. Hussain (D.W.2) who is admittedly the father-in-law of the plaintiff who was alive and examined during trial. During the life time of the father the partition suit was not maintainable and the learned courts below did not commit error in dismissing the suit of plaintiff.
The substantial questions of law are accordingly answered in favour of the defendant/respondent.
The appeal stands dismissed with cost.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 28th April, 2022
AFR / AKT