Wednesday 20 March 2013

Mohammedan Law does not make any distinction for the purposes of inheritance in respect of a property owned by a Mohammedan female or male,


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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