Mohammedan Law does
not make any distinction for the purposes of inheritance in
respect of a property owned by a Mohammedan female or
male, like one which exists under the provisions of
Sections 8 and 15 of the Hindu Succession Act, prescribing
different modes of succession to the property of a Hindu
male and female. The property of a Mohammedan female
dying intestate will, therefore, be governed by the same
rules of inheritance and succession, as if it is a property
owned by a Mohammedan male dying intestate. In view of
this, though the uterine brothers and sisters are the real
sons and daughters of the same mother, they cannot be
classified as ‘Residuaries’ under Section 65 of the
Mohammedan Law to inherit the estate of their mother, but
they are to be classified as ‘Sharers’ under Section 63 of the
Mohammedan law, as if they are inheriting the estate of
putative father. Hence, the substantial question of law is
answered accordingly
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 334 of 1995
1] Mohammed Jaheer s/o Abdul Rehman,
... VERSUS ...
M.V. Mohammed Hussain Walayata,
Citation;2013 (2)MH L J 294
1. Heard Shri M. Hussain, the learned counsel
appearing for the appellants; and Shri V.R. Mundra, the
learned counsel appearing for the respondents.
2. In Regular Civil Suit No.201 of 1983, the learned Joint
Civil Judge, Senior Division, Gondia, passed a decree on
13111991 declaring the plaintiffs as the owners in respect
of their 1/3rd share in the suit property. The further
declaration is granted that the saledeed dated 2411983 in
respect of the suit property executed in favour of the original
defendant M.V. Mohammad Hussain Walayata is inoperative
and does not give a complete title of the suit property. A
decree for permanent injunction is also passed restraining
the defendant from disturbing the possession of the plaintiffs
to the extent of their respective share in the suit property.
3. Since the claim of the plaintiffs was for half of the
share in the suit property and the Trial Court granted only
1/3rd share in the suit property, the plaintiffs preferred
Regular Civil Appeal No.14 of 1992. The defendant preferred
Regular Civil Appeal No.18 of 1992 challenging the
judgment and decree passed by the Trial Court. Both these
appeals are decided by a common judgment and order
dated 22121994 by the learned Additional District Judge,
Gondia. The appeals are partly allowed and a decree
passed by the Trial Court is modified and substituted. It is
held that the plaintiffs are the owners of 1/7th share in the
suit property, whereas the defendant is the owner of 6/7th
share in the suit property. The saledeed dated 2411983 is
held to be invalid to the extent of 1/7th share of the plaintiffs
in the suit property and the order of permanent injunction is
passed restraining the defendant from obstructing the
possession of the plaintiffs over 1/7th share in the suit
property.
4. The original defendant M.V. Mohammad Walayata
seems to have died, and hence on the basis of the aforesaid
common judgment and order dated 22121994, his legal
heirs, who are the respondents herein, filed Special Civil
Suit No.96 of 1998 (reregistered as Regular Civil Suit
No.185 of 2000) for partition and separate possession of
6/7th share in the suit property. The appellants herein were
joined as the defendants in the said suit. The learned Civil
Judge, Senior Division, Gondia decreed the said suit for
partition and separate possession in respect of 6/7th share
in the suit property. The direction to appoint the
Commissioner for effecting partition is passed and the
permanent injunction is granted restraining the defendants
therein from demolishing or changing the nature of the suit
property in any manner.
5. In Regular Civil Appeal No.71 of 2003 therefrom
preferred by the appellants herein, challenging the decision
in Special Civil Suit No.96 of 1998, the learned Additional
District Judge, Gondia, by his judgment and order
dated 1612006, modified the decree. A decree for partition
and separate possession of 6/7th share in the suit property
passed by the trial Court is maintained, whereas the claim
for permanent injunction is dismissed.
6. Second Appeal No.334 of 1995 is preferred by the
original plaintiffs in Regular Civil Suit No.201 of 1983. The
respondents in the said Second Appeal are the legal heirs of
the original defendant M.V. Mohammed Hussain Walayata.
The Trial Court granted 1/3rd share to the
appellants/plaintiffs, whereas the Appellate Court reduced it
to 1/7th share. Hence, this Second Appeal is filed by the
original plaintiffs to claim half share in the suit property. The
original defendant in the said suit was held entitled to 6/7th
share in the suit property by the ultimate common judgment
and order of the Appellate Court delivered on 22121994.
The legal heirs of the original defendant are satisfied with
the said judgment and order of the Appellate Court and
hence they have not preferred any appeal against it before
this Court.
7. Second Appeal No.508 of 2006 has been preferred by
the plaintiffs in Regular Civil Suit No.201 of 1983, who were
the defendants in Special Civil Suit No.96 of 1998
challenging the concurrent findings of fact recorded by the
Courts below in Special Civil Suit No.96 of 1998 and in
Regular Civil Appeal No.71 of 2003, arising therefrom,
holding the respondents entitled to possession of 6/7th share
on the partition.
8. Both these Second Appeals are connected, in the
sense that the Second Appeal No.508 of 2006 arises out of
a decree for partition and separate possession passed by
the Courts below on the basis of the common judgment and
order dated 22121994 passed in Regular Civil Appeal
Nos.14 of 1992 and 18 of 1992, which is the subjectmatter
of challenge in Second Appeal No.334 of 1995. The
appellants and the defendants in both these appeals are
same. The controversy to be decided in Second Appeal
No.334 of 1995 shall also govern the decision in Second
Appeal No.508 of 2006. Hence, basically the Second
Appeal No.334 of 1995 is heard and it is now taken up for
decision first.
9. The undisputed factual aspects of the matter are
stated below :
One Sharifanbee had two husbands. The first was
Sk. Karim and the second was Sk. Kalu. Sharifanbee had
three sons, viz. Gulam Nabi, Gulam Haider and Gulam
Mohammad, from her first husband Sk. Karim. She had one
daughter Johrabee from her second husband Sk. Kalu. The
appellants in both these appeals are the descendants of
Johrabee and they are the plaintiffs in Regular Civil Suit
No.201 of 1983. The original defendant M.V. Mohammad
Hussain Walayata in the said suit was the purchaser of the
suit property by a registered saledeed dated 2411983
from Gulam Nabi and his descendants. The original
defendant has died and his legal representatives are
brought on record as the respondents in both these appeals.
Thus, the basic dispute is about the inheritance of the suit
property by the two divisions of the uterine brothers and
sister – one of Sk. Karim and the other of Sk. Kalu.
10. The Trial Court has held that the plaintiffs have failed
to establish a case that the suit property was purchased by
Sk. Kalu in the name of Sharifanbee and the defendants
have also failed to establish that it was the property
purchased in the name of Sharifanbee by Sk. Karim. On the
basis of Exhibits 39 and 40, the record of rights, it is held
that the suit property was owned exclusively by Sharifanbee.
On the basis of Section 63 in the Principles of Mahomedan
Law by M. Hidayatullah, it is held that Johrabee, Gulam Nabi
and Gulam Haider were the children of Sharifanbee and
hence they fall in the category of ‘Residuaries’. On the basis
of rule of double share to the male, the Trial Court has held
that the sons will take 2/3rd, whereas the daughter will take
1/3rd share. The Appellate Court has agreed with the finding
of the Trial Court that Johrabee, Gulam Nabi and Gulam
Haider were the children of Sharifanbee. However, it has
held that seven shares are required to be carved out in the
suit property and the sister will get one share and each
brother will get double than the sister’s share, i.e. 2/7th
share. The Appellate Court has, therefore, reduced the
share of the plaintiffs from 1/3rd to 1/7th, whereas the share
of the predecessorsintile of the defendant has been
increased from 2/3rd to 6/7th
11. In the background of the concurrent finding of fact that
Johrabee, Gulam Nabi and Gulam Haider are to be treated
as the real brothers and sister and they fall in the category
of ‘Residuaries’, a detailed order was passed by this Court
on 5102006, framing the substantial questions of law for
determination as under :
(I) Whether each uterine brother has equal share
and all uterine brothers and sister be treated
as real brothers and sister ?
(II) If they are uterine brothers and sister, whether
the shares determined by the Courts below
were proper ?
12. The learned counsels appearing for the parties have
tried to reopen all the questions decided by the Courts
below. Shri M. Hussain, the learned counsel appearing for
the appellants, has urged that the suit property was owned
by Sk. Kalu, the second husband of Sharifanbee, who
purchased it in the name of Sharifanbee. According to him,
Johrabee, being the only daughter of Sk. Kalu from
Sharifanbee, would be treated as ‘Sharer’ at Serial No.7 in
the Table of Shares annexed to Section 63 under The
Principles of Mahomedan Law by M. Hidayatullah, and
hence she would be entitled to half share in the suit
property. After going through the judgments and orders
delivered by both the Courts below and the evidence on
record, with the assistance of the learned counsels, I do not
find any perversity in the finding recorded by the Courts
below that the plaintiffs have failed to establish that the suit
property was purchased by Sk. Kalu in the name of
Sharifanbee and the defendant has also failed to establish
that it was purchased by Sk. Karim in the name of
Sharifanbee. Hence, this finding of fact cannot be
reopened and it, therefore, follows that the suit property
exclusively belonged to Sharifanbee.
13. Shri M. Hussain, the learned counsel appearing for
the appellants, has invited my attention to the definition of
‘Uterine Blood’ in Clause (viii) of Rule 215 read with Item (7)
under The Principles of Mohammedan Law by Purohit,
which is reproduced below :
“(viii) Uterine Blood.When two persons have the
same mother but different fathers they are
related to each other by uterine blood.”
“(7) Uterine Blood (Rule 215(viii)).When two
persons, (male and female) have the same
mother but different fathers, they are related to
each other by uterine blood. For example if B,
a female marries A, a male and a son Q is born
to B, A dies and B remarries C is male and a
daughter R from C is born to B. Q and R are
related to each other as brother and sister by
uterine blood.
See the diagram No.6.
MH(M)
l l
l l
MHS (P)
Diagram (6)
Here, P is related to MHS as his brother
through uterine blood.”
He has also invited my attention to the other provisions
contained in various books of Mohammedan Law, which
state that uterine brothers and sisters take equal share and
the rule of male taking double share does not apply to them.
14. Shri Hussain submits that Johrabee, Gulam Nabi and
Gulam Haider have the same mother but different fathers ,
and hence they are related to each other by uterine blood
and shall fall in the category of ‘Sharers’ at Serial Nos.9
and 10 in the Table of Shares annexed to Section 63 of the
Sharers. According to him, the condition of ‘no child’
mentioned in column No.3 in the said Table for inheritance
by uterine brothers and sisters, exists. He submits that in
such situation, the uterine brothers and sister of two
divisions – one led by Sk. Karim and the other led by
Sk. Kalu – will take half share in the property of
Sharifanbee.
15. Shri Mundra, the learned counsel appearing for the
respondents, submits that the property is the property of a
Mohammedan female, viz. Sharifanbee, and though
Johrabee, Gulam Nabi and Gulam Haider are covered by
the definition of uterine brothers and sister, they are the real
sons and daughter of Sharifanbee. According to him, they
will fall in the category of ‘Residuaries’ under Section 65,
and both the Courts below were right in holding that the
principle of son taking double portion, is attracted. He
submits that the real sons and daughter of Sharifanbee
cannot be classified as ‘Sharers’ under Section 63. He
submits that the uterine brothers and sister are the children
of Sharifanbee, Sk. Karim and Sk. Kalu, and hence the
condition of ‘no child’ in column No.3 of the said Table, does
not exist. He, therefore, submits that the claim as uterine
brothers and sister is totally excluded. Shri Mundra,
however, does not dispute the legal position that if Johrabee,
Gulam Nabi and Gulam Haider are to be treated as uterine
brothers and sister, then the principle of son taking double
portion under Section 65 of Residuaries, does not apply. He
also concedes to the position that in such eventuality,
Johrabee will be entitled to equal share in the suit property.
16. None of the learned counsels have addressed this
Court on the question of allotment of shares, if Johrabee,
Gulam Nabi and Gulam Haider are to be treated as uterine
brothers and sister. The position that in such eventuality,
Johrabee will be entitled to equal share in the suit property,
is not disputed. It is also not disputed that in such
eventuality, the rule of son taking double portion, does not
apply. Hence, out of the two substantial questions of law
framed by this Court on 5102006, only the substantial
question of law at Serial No.(I) survives. After hearing the
learned counsels for the parties, the said substantial
question of law is reframed as under :
In respect of the property of a female Mohammedan,
whether the sons and daughter born to her
from different husbands are to be classified as
‘Sharers’ under Section 63 or as ‘Residuaries’ under
Section 65 of the Mohammedan Law ?
17. Section 61 under the Principles of Mahomedan Law
by M. Hidayatullah deals with the classes of heirs and the
same is reproduced below :
“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.”
18. Section 63 of the said Mohamedan Law deals with the
‘Sharers’ and it states that the first column in the
accompanying Table 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, and the fourth column sets out the shares as
varied by special circumstances. At Serial No.7 in the list of
Sharers in the Table is the daughter. If there is only one
daughter, in the absence of son, she will take half share,
and if there are more than one daughter, then they will
collectively take 2/3rd share in the absence of son. At Serial
Nos.9 and 10 in the said Table are the uterine brother or
sister. The normal share of one in the second column is
1/6th, whereas two or more will take collectively 1/3rd share.
They are entitled to inherit the property of a Mohamedan
only when there is no child, child of a son h.l.s., father, or
true grandfather. Clause (b) below the said Table states that
the collective share is always divided equally among those
to whom it is allotted. Clause (c) states that a Mahomedan
can have as many as four wives at a time.
19. Section 65 of the said Mahomedan Law deals with
‘Residuaries’ and it is reproduced below :
“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).”
At Serial No.1 below Section 65 are the sons and daughters
entitled to 2/3rd and 1/3rd share respectively as ‘Residuaries’.
In the Table of Residuaries In Order of Succession, under
Section 65, it is stated that a daughter takes as a Residuary
with the son, the son taking a double portion. The property
of a Mahomedan devolves upon ‘Residuaries’ either wholly
or the residue, as the case may be, in the order set forth in
the annexed Table, if there are no Sharers or if there are
Sharers but there is a residue left after
satisfying their claims.
20. The Mohammedan Law contemplates a situation
where a Mohammedan can have as many as four wives at a
time. Hence, the children born from all such four wives
being the children of the same father, would be treated as
his real sons and daughters entitled to inherit his estate as
‘Residuaries’. There is no prohibition under the
Mohammedan Law for a Mohammedan female to perform a
second marriage, if her earlier marriage does not subsist.
The children born out of such marriages from different
husbands, shall be the legitimate children called as uterine
brothers and sisters entitled to be classified as ‘Sharers’ at
Serial Nos.9 and 10 in the Table of Shares under
Section 63; to inherit the estate of a deceased
Mohammedan. Significantly, the Mohammedan Law does
not make any distinction for the purposes of inheritance in
respect of a property owned by a Mohammedan female or
male, like one which exists under the provisions of
Sections 8 and 15 of the Hindu Succession Act, prescribing
different modes of succession to the property of a Hindu
male and female. The property of a Mohammedan female
dying intestate will, therefore, be governed by the same
rules of inheritance and succession, as if it is a property
owned by a Mohammedan male dying intestate. In view of
this, though the uterine brothers and sisters are the real
sons and daughters of the same mother, they cannot be
classified as ‘Residuaries’ under Section 65 of the
Mohammedan Law to inherit the estate of their mother, but
they are to be classified as ‘Sharers’ under Section 63 of the
Mohammedan law, as if they are inheriting the estate of
putative father. Hence, the substantial question of law is
answered accordingly.
21. Now coming to the factual aspects involved in the
matter, Gulam Nabi, Gulam Haider and the other son of
Sharifanbee born from the first husband Sk. Karim and
Johrabee, a daughter from the second husband Sk. Kalu,
will have to be treated as uterine brothers and sister, having
the same mother, but different fathers. They are, therefore,
required to be classified as ‘Sharers’ under Section 63 and
not as ‘Residuaries’ under Section 65 of the Mohammedan
Law. In view of this position, both the Courts below have
committed an error of law in holding that the uterine brothers
and sister are to be treated as real brothers and sister, and
hence are required to be classified as ‘Residuaries’ under
Section 65 of the Mohammedan Law.
22. Column No.3 in the Table of Shares under Section 63
prescribes the condition under which normal share by the
uterine brother and sister is inherited. The condition is that
‘when no child exists’. The argument of Shri Mundra is that
this condition is attracted in the present case, as Sk. Karim,
the first husband, had three sons, and Sk. Kalu, the second
husband, had a daughter. The contention cannot be
accepted, for the reason that the method to determine right
of inheritance under the Mohammedan Law is to first see
the Table of sharers. If any of the heirs are sharers, to find
out in what circumstance, they would succeed as sharers
and what share they would get. It is only if there are no
sharers or if the sharers do not exhaust the estate, the
question of finding out Residuaries shall arise. As per this
method, if the sons and daughter in this case are classified
as ‘Sharers’ under Section 63, the question of again
classifying them as ‘Residuaries’ under Section 65, does not
arise. Hence, the condition of ‘no child’ exists, which makes
the uterine brother and sister entitled to inherit the suit
property.
23. The learned counsels appearing for the parties agree
that if Gulam Nabi, Gulam Haider. Gulam Mohammed and
Johrabee are to be treated as uterine brothers and sister,
then the principle of son taking double portion under
Section 65 of Residuaries, does not apply. The position is
conceded that in such eventuality, Johrabee will be entitled
to a share equal to that of her uterine brothers. Hence,
Regular Civil Appeal No.71 of 2003, decided by the lower
Appellate Court, will have to be sent back for decision afresh
in the light of this judgment to carve out the exact share of
the plaintiffs and the defendants in Special Civil Suit No.96
of 1998 (Reregistered as Regular Civil Suit No.185 of 2000)
and for passing appropriate decree in accordance with law.
24. In the result, both the second appeals are allowed as
under :
(I) The judgment and decree dated 13111991
passed in Regular Civil Suit No.201 of 1983 by
the learned Joint Civil Judge, Senior Division,
Gondia, as well as the common judgment and
order dated 22121994 passed in Regular Civil
Appeals Nos.14 of 1992 and 18 of 1992 by the
learned Additional District Judge, Gondia, are
quashed and set aside.
(II) The judgment and decree dated 1032003
passed in Special Civil Suit No.96 of 1998
(Reregistered as Regular Civil Suit No.185 of
2000) as well as the judgment and order
dated 1612006 passed in Regular Civil Appeal
No.71 of 2003 by the learned Additional District
Judge, Gondia, are also quashed and set aside.
(III) Regular Civil Suit No.201 of 1983 filed by the
appellants/plaintiffs is hereby allowed, declaring
the appellants/plaintiffs as the owners of share
equal to that of uterine brothers of Johrabee in
the suit property.
(IV) The saledeed dated 2411983 in respect of
the suit property executed in favour of the
original defendant M.V. Mohammad Walayata,
is held to be inoperative to the extent of the
share of the appellants (plaintiffs in Regular
Civil Suit No.201 of 1983), in the suit property.
(V) The defendants in Regular Civil Suit No.201 of
1983, either by themselves or through their
agents, are restrained permanently from
obstructing the possession of the
appellants/plaintiffs over the suit property
without due process of law.
(VI) Regular Civil Appeal No.71 of 2003 is
remanded back to the Appellate Court at
Gondia for decision afresh in the light of the
decision in Second Appeal No.334 of 1995 in
accordance with law, within a period of six
months from the date of receipt of writ from this
Court.
(VII) No order as to costs.
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