JHARKHAND HIGH COURT

MUKHTAR AHMAD & ORS. VS MAHMUDI KHATOON & ORS. ON 19 MAY, 2010

Summarised Judgement (Scroll for Complete Judgement)

Introduction:

This appeal is directed against the judgment and decree dated 11.07.2000 (decree signed on 22.07.2000) passed by Sri Ajit Prasad Verma, Sub- Judge-IX, Ranchi in Partition Suit No. 164 of 1993 | 53 of 2000, by which judgment after discussing the case of the parties, the learned Subordinate Judge came to a conclusive finding that the plaintiff is entitled to get partition with respect to the properties mentioned in Item nos. 1, 2 and 3 of Schedule A of the plaint, Item no.3 of Schedule B of the plaint and Item no.12 of Schedule C of the Plaint.

Fact of the Case:

 In fact, the properties of most Jainab will be only distributed among the three sons, who are the three appellant- defendant nos. 1, 2 and 3, who will get 2/10th share each and their sister, the plaintiff, Mahmudi Khatoon, defendant no.4, Ahmadi Khatoon, defendant no.5, Shagira Khatoon and defendant no.6, Munira Khatoon will get 1/10th share each being the sons and daughters of Md. Yakub from his wife Most. Jainab, in whose name, the properties stand.

On the other hand, the plaintiff, who have appeared in the appeal as respondent no.1 admits the claim of the defendant nos. 1, 2 and 3 and submits that although the plaintiffs, who are daughters of Md. Yakub and Most. Jainab claimed in the plaint that the properties in Schedule A Item no.1 and Item no.2 were acquired by Md. Yakub, her father, but in the face of the sale deeds Ext. A/2 and A/3 admits that they are exclusive properties of Most. Jainab and also admits that she is entitled to only 1/10th share in Schedule A Item nos. 1, 2 and 3, Item no.3 of Schedule B.

Observation of Court:

After hearing both the parties and after going through the evidences on record, I find that the plaintiff-respondent no.1, Mahmudi Khatoon preferred the partition suit no. 164 of 1993 before the Sub Judge, Ranchi against the three defendant-appellant nos. 1, 2 and 3 and her three sisters namely Ahmadi Khatoon, Sagira Khatoon and Munira Khatoon as defendant nos. 4, 5 and 6.

In the light of the aforesaid discussions, it appears that the properties of Item no. 1, 2 and 3 of Schedule A were proved by defence nos. 1 to 3. The Schedule A Item no.1 property was purchased by Bibi Jainab from one Arthar Barla on 06.03.1964, which was marked as Ext. A/2. Item no.2 is a registered sale deed executed by Md. Yakub in favour of his wife Bibi Jainab on 27.02.1953 which is marked as Ext. A/3 and another registered sale deed executed by Md. Yakub in favour of Bibi Jainab on 10.02.1956 has been marked as Ext. A/4.

No discussion of witnesses is required, since the finding arrived at by the trial court with regard to the properties available for partition have been accepted by the appellant- defendant nos. 1, 2 and 3 and also plaintiff-defendant no.1 and the rest of the non-contesting respondents-defendant nos. 7 to 11 have only objected the case of the plaintiff.

Judgement:

Accordingly, this appeal is allowed and the claim of the appellants that the properties of Schedule A and B can only be partitioned among the sons and daughters of Bibi Jainab is accepted and allowed.

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Complete Judgement

JHARKHAND HIGH COURT

MUKHTAR AHMAD & ORS. VS MAHMUDI KHATOON & ORS. ON 19 MAY, 2010

First Appeal (S.J.) No.107 of 2000 (Against the judgment and decree dated 11.07.2000 (decree signed on 22.07.2000) passed by Sri Ajit Prasad Verma, Sub- Judge-IX, Ranchi in Partition Suit No. 164 of 1993 | 53 of 2000.)

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1. Mukhtar Ahmad

2. Eqbal Ahmad

3. Aftab Ahmad ------- Defendant-appellants

-Versus-

1. Mahmudi Khatoon ------- Plaintiff-respondent

2. Shakila

3. Sabnam Khatoon

4. Shabana

5. Asfaque

6. Mahtab

7. Ahmadi Khatoon

8. Sagira Khatoon 9 (a). Md. Shahid 9 (b). Nuzhat Parveen 9 (c). Ashad Jamal 9 (d). Ishrat Parveen 9 (e). Md. Ashraj 9 (f). Irshad Alam 9 (g). Shabana Naaz 9 (h). Khurshid Alam ------- Respondents / Defendants

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For the Appellants : Mr. Sohail Anwar, Sr. Advocate Mr. Afaque Ahmed, Advocate For Respondent no.6 : Mr. A. Allam, Sr. Advocate Ms. Nehala Sharmin For the Respondents : Mr. P.K. Prasad, Sr. Advocate

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PRESENT THE HON'BLE MR JUSTICE PRADEEP KUMAR

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C.A.V. on 20.04.2010 Pronounced on 19/5/2010 Pradeep Kumar, J. Heard learned counsel for the appellants and learned counsel appearing on behalf of the respondent-plaintiffs and respondent-defendants.

2. It is important to note that defendant nos. 1, 2 and 3 have filed this appeal and the plaintiff is respondent no.1 and rest defendant nos. 7 to 11 are respondents in the case.

3. This appeal is directed against the judgment and decree dated 11.07.2000 (decree signed on 22.07.2000) passed by Sri Ajit Prasad Verma, Sub- Judge-IX, Ranchi in Partition Suit No. 164 of 1993 | 53 of 2000, by which judgment after discussing the case of the parties, the learned Subordinate Judge came to a conclusive finding that the plaintiff is entitled to get partition with respect to the properties mentioned in Item nos. 1, 2 and 3 of Schedule A of the plaint, Item no.3 of Schedule B of the plaint and Item no.12 of Schedule C of the Plaint. Separate takhta will be carved out by appointment of survey knowing pleader commissioner at the time of preparation of final decree. The decree was passed against contesting defendant nos. 1, 2 and 3 and ex-parte against other defendant, since they did not contest the suit.

4. It is submitted by learned counsel for the appellants that the properties in Schedule A item nos. 1, 2 and 3 were recorded properties in the name of their mother Bibi Jainab and they were purchased vide Ext. A/2, A/3 and A/4. Ext. A/3 was executed by Md. Yakub, the father of the appellants and defendants, to his wife Most. Jainab in lieu of Dawar debt and Ext. A/2 was also purchased by Most. Jainab in her name. Ext. A/4 was also purchased by Bibi Jainab, and as such, these properties of Item nos. 1, 2 and 3 of Schedule A and Item no.3 of Schedule B can be partitioned only between the sons and daughters of Bibi Jainab as per the Muslim law. He has submitted that the trial court has wrongly decided the issue considering the principles of Hindu law, where a property is not the absolute property of a female, if the source, from which, the property has been purchased is proved to be of the joint family or by the husband, then it will not be considered to the property of the female. But, in the Muslim law, all the properties in the name of muslim lady belongs to her irrespective of source of money, from which, it was purchased. There is no concept of jointness in Muslim law, and as such, the learned trial court committed an error of law in deciding that entire properties will be partitioned between all the seventeen heirs of Md. Yakub and thereby granting 1/17 shares to the plaintiffs and defendants.

5. In fact, the properties of Most. Jainab will be only distributed among the three sons, who are the three appellant- defendant nos. 1, 2 and 3, who will get 2/10th share each and their sister, the plaintiff, Mahmudi Khatoon, defendant no.4, Ahmadi Khatoon, defendant no.5, Shagira Khatoon and defendant no.6, Munira Khatoon will get 1/10th share each being the sons and daughters of Md. Yakub from his wife Most. Jainab, in whose name, the properties stand.

6. On the other hand, the plaintiff, who have appeared in the appeal as respondent no.1 admits the claim of the defendant nos. 1, 2 and 3 and submits that although the plaintiffs, who are daughters of Md. Yakub and Most. Jainab claimed in the plaint that the properties in Schedule A Item no.1 and Item no.2 were acquired by Md. Yakub, her father, but in the face of the sale deeds Ext. A/2 and A/3 admits that they are exclusive properties of Most. Jainab and also admits that she is entitled to only 1/10th share in Schedule A Item nos. 1, 2 and 3, Item no.3 of Schedule B. The properties of Schedule C, which is the property of her father, all the sons and daughters are entitled to get equal shares in the same. However, other defendants, who are respondent nos. 2 to 9

(h), who had not contested the suit in the trial court submitted that since the plaintiff admitted in her plaint that the properties namely, Item nos. 1, 2 and 3 in Schedule A, Item no.3 of Schedule B and Schedule C properties were acquired by Md. Yakub, and hence, now the plaintiff cannot turn back and say that the properties in Item nos. 1, 2 and 3 in Schedule A and Item no.3 of Schedule B are exclusive properties of Most. Jainab and the finding of the trial court that all the sons and daughters of Md. Yakub are entitled to equal shares of 1/17 is well founded and requires no interference by this court. Although, these appellants have not adduced any documents in the trial court nor they have put up any specific defence nor they have filed any appeal, and hence, they adopted the defence taken by the plaintiffs.

7. After hearing both the parties and after going through the evidences on record, I find that the plaintiff-respondent no.1, Mahmudi Khatoon preferred the partition suit no. 164 of 1993 before the Sub Judge, Ranchi against the three defendant-appellant nos. 1, 2 and 3 and her three sisters namely Ahmadi Khatoon, Sagira Khatoon and Munira Khatoon as defendant nos. 4, 5 and 6.

8. Plaintiff's case in the plaint was that the plaintiff and defendants are muslims and are governed by Hanife School of Muslim law in the matter of succession and inheritance and the plaintiff is the full blood sister of the defendants. It is further stated that Md. Yakub was the father of plaintiff and defendants. He was married to Bibi Jainab Khatoon, through them, the plaintiff and the defendants namely defendant nos. 1 to 6 were born. She further stated that Md. Yakub died sometime in the year 1993 and after one and half month, after the death of her husband, their mother, Most. Jainab Khatoon died in the year 1994. Thus, the plaintiff and the defendants (defendant nos. 1 to 6) are the legal heirs and successors of their deceased father, Md. Yakub and deceased mother, Jainab Khatoon. She asserted that the house property having an area of 14 Kathas at Kanta Toli, Ranchi, which is Item no.1 of Schedule A to the plaint was acquired by Md. Yakub. Similarly, the properties i.e. the land measuring 5 kathas and house property comprised within Municipal Survey Holding No. 683 within Ward No. IV of the Ranchi Municipality situated at Gudari Road, P.S. Lower Bazar, Ranchi in Item no.2 of Schedule A was also acquired by Md. Yakub and the house property along with land comprised within Municipal Holding No. 694 within Ward No. IV of the Ranchi Municipality situated at Mouza Konka, Old Hazaribagh Road, near Kantatoli Chawk, P.S.- Lower Bazar, Ranchi in the name of her mother, Most. Jainab Khatoon detailed in Item no.3 of Schedule A of the plaint was also acquired by her father. She also stated that her father acquired immovable properties described in Schedule B of the plaint, which will also devolved among the defendants and plaintiffs. She also alleged that her father had also extensive business and other movable properties, which are illegally retained by the defendant nos. 1 to 3 and she gave the list of some movable properties belongs to the joint family comprising her brothers and sisters in Schedule C of the plaint. The plaintiff claimed that Schedule A to C are the properties belong to the joint family of the plaintiffs and defendants and are under the illegal possession of defendant nos. 1 to 3, and since, defendant nos. 1 to 3 have mis-managed the properties, the plaintiffs are also entitled to get 1/12th share of the properties in the suit and the defendant nos. 1 to 3 are jointly entitled to get 2/3rd and defendant nos. 4 to 6 are to get 1/12th of the properties.

9. Accordingly, the partition suit was filed for preparing of separate 'takhta' for the plaintiff after granting a decree of 1/12th share in the properties of her father, Md. Yakub and her mother, Most. Jainab.

10. It is important to note that defendant nos. 1 to 3 appeared in the suit and filed their written statements. The defendants stated that the suit is bad for non-joinder of parties. Md. Islam is the purchaser of Item 4 of Schedule B property of the plaint and he is also the purchaser of Item 5 of Schedule B of the plaint. The suit was also bad for mis-joinder of Item nos. 6 and 7 of the Schedule B of the plaint, since, they were not owned by the parties, but the premises were taken on rent by the defendant no.1. The defendants also claimed that there is also no unity of right, title, interest and possession between the parties with respect to any portion of suit property. These defendant nos. 1 to 3 also claimed that the suit was under- valued. They admitted that Md. Yakub and Most. Jainab Khatoon are their parents, but denied the assertions made in Para 9 of the plaint and stated that Item 1 as detailed in Scheduled B is owned and possessed by Aftab Ahmad, the defendant no.3 and Item no.2 of Schedule B is owned and possessed by Eqbal Ahmad, defendant no.3. It is also stated that Item no.2 (c) and 3 of Schedule B to the extent of 17 ½ Kathas was acquired, owned and possessed by the mother of the parties namely Bibi Jainab Khatoon since the deceased by virtue of registered deed of sale and Item no.4 of Schedule B belonged to Mumtaz Ahmed, the eldest son of Md. Yakub, which was gifted by him to his younger brother Mokhtar Ahmed and accepted by him as gift in presence of her father, which was subsequently transferred to Md. Islam S/o Md. Chhote by two registered deeds of sale dated 31.07.1989 and 04.01.1991 and the properties are in the possession of the purchaser.

11. Similarly, Item no.5 of schedule property was sold during the life time of Md. Yakub. The defendants also stated that Item nos. 6 and 7 of the Schedule B of the plaint are rented premises and are in possession of the defendant no.1, Mokhtar Ahmed and he was regularly paying rent. The allegations made in para 10 and 11 of the plaint are stated to be imaginary. They claimed that there are no golden ornaments as alleged in Item no.8 of Schedule C. They also gave detail of Schedule C that Item no. 1 was started jointly by Mokhtar Ahmed, Eqbal Ahmed, Aftab Ahmed, the defendant nos. 1, 2 and 3 out of their own funds and earning. Similarly, Item no.2 of Schedule C was started by Aftab Ahmed, the defendant no.3 out of his own funds and earning and the same was later on wound up. Item no.3 of the Schedule C was purchased by Eqbal Ahmed, the defendant no.2 out of his own funds and earning. Item no.4 of Schedule C was purchased by Eqbal Ahmed out of his own funds. Item no.5 of Schedule C was purchased by the defendant no.1 through Union Bank of India, Kanta Toli Branch, Ranchi. Item no.7 of Schedule C were purchased recently by defendant nos. 2 and 3 out of their separate funds and earning. Item no.9 of the Schedule C are only two in number were given to defendant no.1 and 3 by their father-in-law. Item nos. 10 and 11 of Schedule C are not existent. Item no.12 of Schedule C are some furniture in damaged conditions.

12. The defendant nos. 1, 2 and 3 alleged that no property is joint as claimed by the plaintiff. They also claimed that after the death of their parents, the parties have amicably settled their properties and the defendant nos. 1 to 6, in which the plaintiff was allotted specific share. The defendants denied that there was any mis-management and submitted that the plaintiff has got only 1/10th share in the properties and not 1/12th share as claimed by her.

13. It is important to note that subsequently the name of defendant nos. 7 to 11 were also inserted being the sons and daughters of Md. Yakub from his second wife, Most. Churki. But, these defendants did not file any written statement under their affidavits and a formal written statement was filed, affidavited by one Sunil Tiwary, in which they denied the cause of action for the suit as claimed by the plaintiff in Para 23 of her plaint. They also stated in para 3 that these defendants have no knowledge about the statement made by the plaintiff in para 11 with regard to the properties and they admitted the statements made in para 1 to 10, 12 and 13 and they have got no knowledge with regard to the statements made in para 14. Rest paragraphs 15, 16, 17, 18 and 20 were also admitted. So, there was no specific case of the rest of the defendant nos. 7 to 11 and they did not contest about the suit preceded ex-parte against them as it appears from the final judgment itself.

14. Now, it appears from the arguments advanced from the plaintiffs that they admitted the finding of the trial court at Para 28 that only Item nos. 1, 2 and 3 of Schedule A of the plaint, Item no.3 of Schedule B of the plaint and Item no. 12 of Schedule C of the plaint are available for partition among heirs of Md. Yakub. The appellants have submitted that the trial court wrongly found that the properties were purchased by Md. Yakub from his own fund in the name of Most. Jainab, and as such, the properties belong to joint family of Md. Yakub, his wife and children, since, it was purchased from the common fund of the family. The learned counsel for the appellants have submitted that there was no concept of jointness known in the Muslim law.

15. Let us first consider the Muslim law as given by Tahir Mahmood in Chapter 12 (Law of Inheritance) Para II: II. Muslim Law-Concepts Known and Unknown:

1. "The Muslim law of succession is basically different from the parallel indigenous systems of India. The doctrine of janmswatvavada (right by birth), which constitutes the foundation of the Mitakshara law of succession, is wholly unknown to Muslim law. The law of inheritance in Islam is relatively close to the classical Dayabhaga law, though it differs also from that on several fundamental points. The modern Hindu law of succession as laid down in the Hindu Succession Act, 1956 is, however, much different from both the aforesaid classical systems; it has a remarkable proximity, in certain respects, to the Muslim law of inheritance.

2. The division of heritage (daya) into sapratibandh (obstructed) and apratibandh (unobstructed)- self- acquired and ancestral- is equally foreign to Muslim law. Whatever property one inherits (whether from his ancestors or from others) is, at Muslim law, one's absolute property-whether that person is a man or a woman.

3. In Muslim law, so long as a person is alive he or she is the absolute owner of his or her property; nobody else (including a son) has any right, whatsoever, in it. It is only when the owner dies- and never before-that the legal rights of the heirs accrue. There is, therefore, no question of a would be- heir dealing in any way with his future right to inherit.

4. The Indian legal concepts of 'joint' or 'undivided' family, 'coparcenary', karta, 'survivorship', and 'partition', etc., have no place in the law of Islam. A father and his son living together do not constitute a 'joint family'; the father is the master of his property; the son (even if a minor) of his, if he has any. The same is the position of brothers or others living together.

5. Unlike the classical Indian law, female sex is no bar to inherit property. No woman is excluded from inheritance only on the basis of sex. Women have, like men, right to inherit property independently, not merely to receive maintenance or hold property 'in lieu of maintenance'. Moreover, every woman who inherits some property is, like a man, its absolute owner; there is no concept of either stridhan or a woman's 'limited estate' reverting to others upon her death.

6. The same scheme of succession applies whether the deceased was male or a female. This is one of those salient features of Muslim law of succession which distinguish it from modern Hindu law of inheritance."

16. Similarly, while giving the Mulla's Principles of Mahomedan law in Rule 84, it is clearly stated that "Step- children do not inherit from step-parents, nor do step-parents inherit from step-children."

17. It is also relevant to discuss the concept of Mahommedan law by Syed Ameer Ali:

Transfer by the husband to the wife:

"Under the Mahommedan Law, a wife is competent to deal with her husband; and, consequently, a transfer by the husband to the wife of any property belonging to him in lieu of her dower is valid and operative. And even if the husband be indebted at the time, or execution may have issued against him, at the instance of other creditors, the assignment would be valid, if she is not cognisant of any fraudulent intent on his part that the conveyance was to delay or defraud such creditors, or that he had no other property from which the debts may be satisfied."

18.In the light of the aforesaid discussions, it appears that the properties of Item no. 1, 2 and 3 of Schedule A were proved by defence nos. 1 to 3. The Schedule A Item no.1 property was purchased by Bibi Jainab from one Arthar Barla on 06.03.1964, which was marked as Ext. A/2. Item no.2 is a registered sale deed executed by Md. Yakub in favour of his wife Bibi Jainab on 27.02.1953 which is marked as Ext. A/3 and another registered sale deed executed by Md. Yakub in favour of Bibi Jainab on 10.02.1956 has been marked as Ext. A/4.

19. Similarly, Item no.3 of Schedule B were also acquired by Bibi Jainab Khatoon by registered sale deed, and as such, according to Muslim law as discussed above, since all properties in the name of a female belongs to her exclusively and there is no concept of jointness of nucleus or any concept that the property is purchased from joint nucleus of the head of the joint family, hence, all the properties of Schedule A Item nos. 1, 2 and 3 and Item no.3 of Schedule B, which are exclusively purchased by sale deed by Bibi Jainab in her name can be divided only between her children i.e. appellants- defendant nos. 1, 2 and 3 and the plaintiff along with her three sisters i.e. defendant nos. 4 to 6 and as agreed between the plaintiff and as proposed by the defendants. All the three brothers will get 2/10th share in the properties and the plaintiff and her three sisters i.e. defendant nos.4, 6 and 7 will get 1/10th share in the properties, since, defendant nos. 7 to 11, who had not contested the suit and also have put up no specific defence, they will get 1/17th share in properties of only Schedule C Item no.12.

20. The judgment and decree dated 11.07.2000 (decree signed on 22.07.2000) passed by Sri Ajit Prasad Verma, Sub- Judge-IX, Ranchi in Partition Suit No. 164 of 1993 | 53 of 2000 is accordingly modified and the plaintiff is granted only 1/10th share in Item Nos. 1, 2 and 3 of Schedule A properties of plaint and Item no.3 of Schedule B properties of plaint and Item no. 12 of Schedule C of the plaint and separate takhta will be carved out by appointment of survey knowing pleader commissioner at the time of preparation of final decree.

21. No discussion of witnesses is required, since the finding arrived at by the trial court with regard to the properties available for partition have been accepted by the appellant- defendant nos. 1, 2 and 3 and also plaintiff-defendant no.1 and the rest of the non-contesting respondents-defendant nos. 7 to 11 have only objected the case of the plaintiff.

22. Accordingly, this appeal is allowed and the claim of the appellants that the properties of Schedule A and B can only be partitioned among the sons and daughters of Bibi Jainab is accepted and allowed.

[Pradeep Kumar, J] Jharkhand High Court, Ranchi The 19/5/ 2010 R.K/

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