Delhi District Court
Sher Mohd vs Smt. Khadija on 30 October, 2012
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 63/2012
IN THE MATTER OF:
Sher Mohd.
S/o Shri Adbul Sattar
R/o 149, Village Hauz Rani,
Malviya Nagar, New Delhi ........Plaintiff
VERSUS
1. Smt. Khadija
W/o Shri Ashok Kumar
D/o Late Sh. Abdul
2. Ms. Asma
D/o Late Shri Abdul
Both R/o 144, Village Hauz Rani,
Malviya Nagar, New Delhi ......Defendants
Date of Institution: 03082007
Date of Reserving for Judgment: 05102012
Date of Judgment : 30102012
SUIT FOR PERMANENT INJUNCTION
JUDGMENT: ( Exparte)
1. By way of this judgment, I shall decide suit for permanent injunction filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are as follow: The Suit No. 63/2012 Page No. 1 of 11 father of the plaintiff Late Sh. Abdul Sattar and the father of the defendants Late Sh. Abdul orally partitioned the properties bearing no.144 and 149 village Hauz Rani, Malviya Nagar, New Delhi by meets and bounds and as per the said partition the property bearing no.144 and one portion of the property bearing no.149, Village Hauz Rani, Malviya Nagar, New Delhi came under the share of Late Sh. Abdul, the father of defendants. The remaining portion of the property bearing no.149 Village Hauz Rani, Malviya Nagar, New Delhi fell in the share of Late Sh. Abdul Sattar and the same is shown in green colour and the share of Late Sh. Abdul has been shown in red colour in the site plan annexed with the plaint. After partition the aforesaid properties, the share of late Sh. Abdul is identified as property bearing no.149/1, Village Hauz Rani, Malviya Nagar, New Delhi. After the death of Sh. Abdul Sattar, father of the plaintiff, Sh. Abdul filed a suit for permanent injunction restraining the plainitff from creating any third party interest in the suit property which was shown in red, green and yellow colours in the site plan filed with the plaint. The same was decided vide judgment and decree dated 29.09.2000 and the plaintiff was restrained from dealing with or creating third party interest in the property shown in red colour specifically marked as A, B, C, D and the yellow portion in the site plan. The said decreed portion has Suit No. 63/2012 Page No. 2 of 11 been specifically shown in red colour as WXYZ in the site plan appended to the present suit. Sh. Abdul died intestate on 24.03.2005. Sh. Abdul is survived by his two daughters.
3. In Muslim Law if a person dies leaving behind only daughters, then the daughters get a share to the extent of 2/3rd of the entire rd property and the remaining 1/3 share always goes to the residuary. The plaintiff being the son of the brother of the rd deceased is entitled to 1/3 share in the suit property. In the month of May, 2005 an oral partition took place in between the plaintiffs and the defendants and as per the same the property bearing no.149, Village Hauz Rani, Malviya Nagar, New Delhi on which the judgment and decree dated 29.09.2000 was passed fell in the hand of the plaintiff and the property bearing no.144 and 149/1, Village Hauz Rani, Malviya Nagar, New Delhi fell in the share of the defendants. After the partition of the properties, the defendants became dishonest and are trying to dispose of, deal with or sell out the share of the plaintiff in the property bearing no.149, Village Hauz Rani, Malviya Nagar, New Delhi which is under the possession of the plaintiff and therefore, the plaintiff has filed the present suit.
4. On the other hand the defendant No. 1 was duly served through publication in newspaper " Veer Arjun" dt. 15092008. But none Suit No. 63/2012 Page No. 3 of 11 had appeared on behalf of the defendant No. 1, hence the defendant No. 1 was proceeded exparte vide order dt. 0707 2009. Similarly, the defendant No. 2 was duly served through publication in newspaper " Veer Arjun" dt. 13122010. But none had appeared on behalf of the defendant No. 2 also, hence the defendant No. 2 was also proceeded exparte vide order dt. 1301 2011.
5. To prove his case the plaintiff has examined himself as PW1. PW1 has filed his evidence by way of affidavit Ex. PW1/1. In his evidence the PW1 has reiterated the facts mentioned in the plaintiff and relied upon the following documents:
i) The site plan of the suit property is Ex. PW1/A.
ii) The certified copy of Judgment and decree dt. 23092000 is Ex. PW1/B Colly.
iii) The death certificate of Shri Abdul is Ex. PW1/C.
iv) The copy of order dt. 21042006 is Ex. PW1/6.
v) The copy of agreement to sell dt. 21052005 is Mark A.
6. I have heard Ld. counsel for the plaintiff, perused the record & gone through the relevant provision of law.
7. The testimony of PW1 remained unrebutted and uncontested. Therefore, there is no reason to disbelieve the testimony of PW1.
8. Before delving on the facts of the present case it would be Suit No. 63/2012 Page No. 4 of 11 relevant to discuss the muslim law of inheritance. The law of inheritance in case of a muslim dying intestate is derived from the Shariat. The Holy Book in Sura 4 Verse 33 says, "To benefit everyone, we have appointed sharers and heirs to property left by parents and relatives. Also, those to whom you owe your right hand, give them their due portion. For truly, God is witness to all things."
9. This gives us the first indication that Muslim law recognises two types of heirs, the first being Sharers, and the second being residuaries. A relative who is a Sharer will take a specified portion of the deceased's estate irrespective of anything else (excepting for one important exception being the Rule of Awl and Radd which are explained in full later). A relative who is a Residuary will take whatever is left over, once the Sharers have taken their specified shares. The Holy Book in Sura 4 Verse 7 says, "From what is left by parents and close relatives, there is a share for men and a share for women, whether the property left behind be small or large -- and this share shall be fixed."
The Sharers are 12 in number and are as follows:
(1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son's son or son's son's son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full Suit No. 63/2012 Page No. 5 of 11 sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.
In the general Sunni rules, there are four classes of heirs:
(a) the heirs specified in the Qur'an to receive fixed shares of the estate, who are called "sharers";
(b) agnatic heirs, or those who trace their relationship to the decedent only through males, who are known as 'asaba or "residuaries" and take no fixed share but receive the residue after the fixed shares are claimed by the sharers.
(c) and more distant relatives of the decedent, often called "distant kindred", who inherit if there are no sharers nor residuaries.
(d)Unrelated successors are those who are acknowledged kinsman, universal legatee and government by escheat. In the absence of relations, the acknowledged kinsman shall succeed. In the absence of any in the group, it will go to universal legatee, and if there is none, the principle of escheat will apply.
Not all of these heirs will necessarily inherit, and certain classes of heirs or closer kin may exclude those of other classes or those in the same class who are more distant relatives of the deceased.
SHARERS TWELVE HEIRS Suit No. 63/2012 Page No. 6 of 11 There are twelve heirs designated in the Qur'an to receive fixed shares of the decedent's estate: the father, mother, husband, wife, grandfather, grandmother, daughter, son's daughter, full sister, paternal halfsister, maternal halfsister, and maternal halfbrother (as discussed above). Such shares ranged from 1/8 to 2/3 of the estate for designated individuals or groups of individuals. Although the sharers inherit first, they generally do not take all of the inheritance. Instead, they receive their fixed portions and the rest of the estate is passed to the male agnates (residuaries). After the fixed shares are distributed, the balance of the estate goes to the residuaries.
RESIDUARIES.
The agnatic heirs in the residuary class are generally male, including the decedent's son(s), any son of that son (howsoever low), his father (in certain instances), his brother, and his paternal uncle. When there is a male counterpart who has the same relationship to the deceased, certain of the women sharers, such as the decedent's daughter, son's daughter, sister, and paternal halfsister, turn into 'asaba or residuary heirs and receive onehalf of the share of their male counterpart instead of the fixed share laid out in the Qur'an. The relatives who are nearer in degree to the decedent generally exclude those farther in degree, and those of full blood relationships Suit No. 63/2012 Page No. 7 of 11 with the decedent are preferred over those related only through the father.
If only one daughter is present and there are no sons are alive then daughter's share is equal to 1/2 share in the estate of the deceased. If two or more daughters are alive and there are no sons then daughters get 2/3 share,to be shared equally between all of them, in the estate of the deceased. Nephews and Nieces are ONLY entitled in the absence of Brothers and Sisters. This means that they take the shares of the Brothers/Sisters of the deceased in their absence. Hence a Nepew/Niece will receive what his/her parent (Brother/Sister of the deceased) would have received if he/she was alive. They will also NOT inherit if the children (or children's children) of the deceased are living. Proportions here are also 2:1 for Male:Female.
10.It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. It is also well settled that if the relief claimed by the applicant is hit by the provisions of Section 41 of the Specific Relief Act, then such reliefs cannot be granted to the party.
Suit No. 63/2012 Page No. 8 of 11
11.The present suit for permanent injunction has been filed by the plaintiff claiming his 1/3 share in the suit property shown in red colour marked as WXYZ in the site plan exhibited as Ex. PW1/A on the ground that his father's brother Sh. Abdul expired intestate leaving behind only two daughters i.e. The defendants and thus he has 1/3 share and the defendants have 2/3 share in the suit premises, which the defendants are selling off with the intention of dispossessing the plaintiff. The plaintiff through the present suit is seeking decree of permanent injunction restraining the defendants from dispossessing the plaintiff from as well as alienating, selling and parting with the portion shown in red colour and marked as WXYZ in the site plan exhibited as Ex. PW1/A of the property bearing no. 149, Hauz Rani, Delhi. But in the present case, the plaintiff has not shown that the deceased Sh. Abdul is survived by no other heirs apart from the plaintiff and the defendants. It was essential for the plaintiff to show that the said deceased is not survived by any of the 12 sharers apart from the defendants and further has not left behind any of the agnate or cognate residuaries apart from the plaintiff. In the absence of the proof of the same, the plaintiff cannot be granted decree of permanent injunction. Thus, the plaintiff has failed to show a prima facie case in his favour. In this regard, following decision of the Hon'ble Apex Court is worth Suit No. 63/2012 Page No. 9 of 11 mentioning.
12.In Kashi Math Samsthan v. Srimad Sudhindra Thirtha Swamy AIR 2010 SC 296, it was observed as under (AIR @ p. 299) :
"13. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted." (emphasis added)
13.In view of the foregoing discussion, since the plaintiff has failed to show a prima facie case in his favour, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, therefore, the suit deserves to be dismissed on this ground.
Suit No. 63/2012 Page No. 10 of 11
14.Be that as it may, when the title of the plaintiff is not established then also the simplicitor suit for permanent injunction is not maintainable and the plaintiff should have filed a suit for declaration as well as permanent injunction in this regard. Thus, the present suit is also hit by the provisions of S. 41 (h) of the Specific Relief Act, as the plaintiff had an equally efficacious remedy available to him in the form of suit for declaration with the consequential relief of permanent injunction, thus the present suit is barred on this ground.
15.Relief In view of the above discussion, the suit of the plaintiff is dismissed. There are no orders as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 30102012. Civil Judge/Central05 Delhi Suit No. 63/2012 Page No. 11 of 11