Smt.Ajambi (Dead) By Lr vs Roshanbi And Others

2. This Special Leave Petition is directed against the judgment

and order dated 16.11.2005 passed by the High Court of

Karnataka allowing the appeal filed by the respondents herein

whereby the High Court has restored the judgment and decree of

the trial court. The respondents Nos. 1 to 8 were the plaintiffs

before the trial Court and Usmansab Shaikaji Attar was the original

defendant

in the

suit

which

was filed

seeking a

decree for

partition

and separate possession of alleged 7/8 th share in the suit property

bearing CTS No. 883/A and 883/B, situated at Aralikatti

Deshpande Galli, Belgaum. It was stated in the plaint that

Shaikaji Attar, the father of the respondents and the original

defendant had two wives, namely Halimabi and Roshanbi who was

the plaintiff No. 1.

3. It was submitted in the plaint that Shaikaji Attar died in or

around 1969 leaving behind his second wife Roshanbi, i.e. plaintiff

No. 1, six sons i.e. plaintiff Nos. 2 to 6. and defendant No. 1 and

two daughters i.e. plaintiff Nos. 7 and 8 and heir of pre-deceased

son Umarsab.

4. In

the said

suit, the

parties

led

evidence.

The

plaintiff

No. 2 was examined as PW-1 and the original defendant was

examined as DW-1. Both the plaintiffs-respondents and the

original defendant also produced certain documents which were

exhibited in the suit. The trial Court by its judgment and decree

dated 27.7.1988 decreed the suit of the plaintiff by awarding 1/8 th

share to the plaintiffs 1 to 6 and 1/16th share to plaintiffs 7 and 8 in the suit property and also 1/8th share in favour of the defendant.

5. Being aggrieved by the aforesaid judgment and decree of the

trial Court, the original defendant Usmansab Shaikaji Attar filed a

regular appeal before the Court of Civil Judge, Belgaum,

Karnataka. During the pendency of the aforesaid appeal, the

original defendant produced some additional documents, namely

the

alleged

memorandum of partition by way of additional evidence.

6. The First Appellate Court by its judgment and decree dated

13.11.1995, dismissed the appeal filed by the original defendant.

7. Being aggrieved, the original defendant filed a second appeal

before the High Court of Karnataka which was registered as RSA No. 299 of 1996. The High Court by its judgment and decree

dated 17.9.1998 allowed the appeal and remanded the matter to

the first Appellate Court for fresh disposal with a direction to

receive documentary evidence produced before it by the defendant

by way of additional evidence.

8. During the pendency of the aforesaid second appeal before the

High

Court

after

remand,

the

original

defendant

Usmansab died on 7.4.1996. The said defendant left behind his

wife Ajambi and she was brought on record as the legal heir of the

original defendant. The First Appellate Court thereafter examined

Ajambi as AW-1 who was allowed to lead additional evidence and

she got the documents exhibited as exhibit (Ex.) D-7 and D-10,

which were received as additional documents. The plaintiff No. 2 was examined as RW-1.

9. Thereafter, the Additional Civil Judge (Senior Division)

Belgaum by a judgment and decree dated 1.4.2000 allowed the

appeal filed by the original defendant, set aside the judgment and

decree of the trial court, and consequently dismissed the suit filed

by the plaintiffs holding that the additional documents which are

produced

and

exhibited

as Ex. D-

7 were

executed

by the

predecessor-in-interest, namely Shri Shaikaji during his lifetime

and he disposed of the property as per his Will by dividing the

property into two parts as claimed by the defendant.

10. The first Appellate Court also held that in view of the

pleadings, the documents exhibited as Ex. D-7 is proved, and it is

established in terms thereof that there were two divisions effected to the suit property. In arriving at this conclusion, the first

Appellate Court also took note of the fact that the names of the

persons who were enjoying the aforesaid two divisions had been

entered into relevant records concerning the property and the said

entries had not been challenged by the plaintiff. In conjunction

with the aforementioned facts, since the parties were paying tax to

the extent

of their

property

only, it

was held

that there

was a

prior

partition

between the parties and therefore the claim of the plaintiffs was not

tenable. Consequently, the appeal was allowed and the suit was

dismissed.

11. Being aggrieved by the said judgment and decree, an appeal

was filed by the respondents herein and the plaintiffs in the original suit before the High Court of Karnataka which was

registered as RSA No. 578 of 2000.

12. The High Court by its impugned judgment and decree dated

16.11.2005 allowed the appeal and set aside the judgment and

decree of the first appellate court. In the aforesaid judgment and

decree, the High Court held that although the document Ex. D-7,

which

was

executed

in 1958,

indicates

that some

of the

properties

have been shown to have been earmarked and assigned to the

plaintiffs and the defendants, the same cannot be treated as a

partition deed since it is not registered. It was held that a

partition deed is to be compulsorily registered and since Ex. D-7 is

not a registered document, it could not be relied upon.

Furthermore, the High Court took note of the fact that while the suit was filed in the year 1985, the aforesaid documents came to be

produced in the year 1994 at the appellate stage after suffering a

decree before the trial Court and the same came to be produced

nearly after eleven years.

13. It was also noted that Shaikaji, predecessor-in-interest, had

allegedly created the document exhibited as Ex. D-7 died in the

year

1969,

while the

entries in

the CTS

register

came to

be made

only in the year 1979. The High Court observed that if the 1958

partition had really been acted upon as per Ex. D-7 immediately

after the death of Shaikaji, the said entries would have been made

within a reasonable time and they would not have waited upto the

year 1979, when such entries came to be made.

14. The High Court, therefore, held that Ext. D-7 cannot be acted and relied upon for the purpose of establishing a prior partition of

the suit property. Consequently, the appeal was allowed and the

judgment and decree of the first appellate court was set aside.

15. Being aggrieved by the judgment and decree, the present

appeal was filed in this Court by Smt. Munira, alleged to be the

wife of Kesarkhan Pathan, claiming herself to be the beneficiary

under the

Will

executed

by Ajambi

during

her

lifetime.

Smt.

Munira claims that Ajambi had bequeathed the property under the

Will in favour of Smt. Munira who is allegedly Ajambi's brother-in-

law's daughter.

16. The said Will was purportedly executed on 20.8.2001 and the

came to be registered in the office of the Sub-Registrar Belgaum on

29.8.2001. Through the aforesaid Will, Ajambi allegedly bequeathed her property CTS No. 883/A measuring 66.61 sq.

meters to the legatee Smt. Munira, wife of Kesarkhan Pathan

claiming under title to the aforesaid portion of the property. Smt.

Munira filed the aforesaid appeal before this Court alongwith an

application praying for bringing on record Munira as the legal

representative of the deceased Smt. Ajambi.

17. On

presentation of the appeal by her, the same was registered and the

application was registered as interlocutory application which came

up for consideration before this Court. An order was passed on

3.4.2006 whereby the interlocutory application was allowed and

notice was directed to be issued on the special leave petition and

also on the prayer for interim relief.

18. The interlocutory application filed by the appellant was

allowed by this Court but on perusal of the record, we find that the

said order was passed ex-parte and before issuance of notice to the

respondent. The right to be impleaded as a party in an appeal

could be questioned and challenged and such right to challenge the

locus cannot be taken away from the respondents herein without

giving

them an

opportunity of hearing. Therefore, although the aforesaid

application was allowed, the same was always subject to any

objection that is raised by the respondents herein. In fact, the

respondents had raised such an issue immediately upon

appearance. Therefore, the aforesaid issue is required to be decided

as the same is a disputed question of fact.

19. The respondents having been served in the said appeal, they

entered appearance and filed a counter affidavit which is sworn by

Smt. Roshanbi who was the second wife of late Shaikaji Attar. In

the said counter affidavit, she has stated that in the special leave

petition, there is a mention of the purported Will allegedly executed

during the pendency of the second appeal and that she challenges

the

validity

and

legality of

the

aforesaid

Will. She

has also

contended that the said purported Will has not been probated. She

has also stated in the said counter affidavit that the purported

executant has no absolute right to execute the aforesaid Will

pending litigation. It has been contended that Smt. Munira cannot

claim the property through the purported Will of the first wife,

allegedly dated 20.8.2001, claiming herself to be brother in law's daughter and that she has no legal right to the property nor any

right to file the appeal before the High Court.

20. When the suit was taken up for hearing, the counsel for the

respondent took up the plea that the aforesaid Will propounded by

Smt. Munira has not been probated and that the said Will is

neither genuine nor valid. It is also alleged that under the

Mahomedan Law, no claim for inheritance of the property of a

deceased widow could be claimed through an alleged Will which is

not proved and even if such Will is found to be legal and valid, such

person would be entitled to only 1/3rd of the property and the

remaining 2/3rd to be given to the actual heirs of the family.

Reference was also made to Mulla, an authority on Mahomedan law, in Chapter IX - "Wills", at paragraphs 118 and 131 of the said

treatise, wherein it is laid down that under a will only 1/3rd of the

net estate could be bequeathed and that the remaining part of the

net estate would be inherited by the legal heirs and legal

representatives.

21. This Court in the case of Abdul Rahim & Ors. Vs. Sk. Abdul

Zabar &

Ors.

reported

in (2009)

6 SCC

160 held

thus: -

"15. We may notice the definition of gift as contained in various textbooks. In Mulla's Principles of Mohammadan Law the "hiba" is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of later (sic latter). A.A.A. Fyzee in his Outlines of Muhammadan Law defined "gift" in the following terms:

"A MAN may lawfully make a gift of his property to another during his lifetime; or he may give it away to someone after his death by will. The first is called a disposition inter vivos; the second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will."..."

22. The learned Counsel appearing for the parties made their

arguments on the merit of their claims of the respective parties, but

we are of the considered opinion that before we can address

ourselves on the merit of the claims of the parties and determine

the respective shares, it would be necessary to determine as to

whether

or not the

aforesaid

purported

Will

propounded by the present appellant herein is a legal and valid

document in the eyes of law and if so, to what right, if any, the

appellant is entitled to in the said property.

23In the interlocutory application, the present appellant

had stated that she would be entitled to claim on the

basis of the Will, the property being CTS No. 883/A measuring 66.61 sq. meters. The following sentence

of the application being relevant is extracted below:-

24

"4. It is submitted that Ajambi during her life time executed a `Will' in favour of her brother-in-law's daughter namely, Smt. Munira Wife of Kesarkhan Pathan on 20.8.2001 and it came to be duly registered in the office of the Sub-Registrar, Belgaum on 29.8.2001. By the said Will, Ajambi

bequeathed her property C.T.S. No. 883/A measuring 66.61 sq. meters to the legatee Smt. Munira W/o Kesarkhan Pathan. Thus Smt. Munira became the absolute owner of property C.T.S. No. 883/A of Aralikatti Deshoande Galli, Belgaum."

24. Therefore, it is established from the record that her claim is

restricted on the basis of the purported Will to the property No. C.T.S. 883/A measuring 66.61 sq. meters only wherein she claimed

to be the absolute owner. In case the Will propounded by her is

found to be not genuine and valid, in that case her entire claim will

have to be rejected and the aforesaid property i.e. C.T.S. No. 883/A

would revert back to the actual owners namely the present

respondents. If, however, the aforesaid Will is found to be legal

and valid,

even in

that event

and as

per the

pleadings

and the

contentions of the respondents, she may not be entitled to more

than 1/3rd of the said property namely C.T.S. No. 883/A.

25. These are the events which have arisen after delivery of the

judgment by the High Court. Therefore, two issues arise for

consideration at this stage, which are required to be determined

and decided prior to entering into the respective claims of the parties.

26. The first issue is as to whether the Will propounded by the

appellant herein namely Smt. Munira, wife of Kesarkhan Pathan

allegedly executed on 20.8.2001 and registered in the Office of the

sub-Registrar on 29.8.2001, is a legal and valid document in the

eyes of law.

27. If

the

aforesaid

issue is

answered

in favour

of the

appellant

Smt. Munira, the further question that is to be determined is as to

whether the appellant herein on the basis of the aforesaid Will is

entitled only to 1/3rd of the said area in terms of the Rules and

Principles of Mahomedan Law.

28. Along with the said issues which need to be determined and answered, in our estimation, there is another issue which arises for

consideration, which is as to whether the appellant could claim to

be a legal representative. Out of the said three issues raised herein,

in so far as the question of entitlement of the appellant's share is

concerned, the same appears to be a question of law as it forms a

part of the principles of Mahomedan Law. There are also some

decisions

of the

Supreme

Court

touching

upon the

said

issue.

But the

other two issues, namely, the status of the appellant and whether

she would claim to be a legal representative along with the question

as to whether the will propounded by the appellant is legal and

valid and how far the same could be relied upon, are disputed

questions of fact which are required to be determined by the court

more appropriately by resorting to the provisions of Order XXII Rule 5 of the Code of Civil Procedure, 1908 [for short "CPC"]. The

said two issues being questions of fact, the parties must be allowed

to lay their evidence in support of their respective cases. In that

view of the matter we consider it necessary to issue a direction in

the present case to the aforesaid extent in terms of the provisions

of Order XXII Rule 5 CPC.

29. The

decision

to act on

the basis

of Order

XXII Rule

5 has

been

taken in consideration of the proposition laid down by this Court in

the case of Kanhiya Singh Santok Singh and Ors. Vs. Kartar

Singh reported in (2009) 5 SCC 155, in which the Supreme Court

has held thus:

"17. ......The High Court had overlooked this disputed question of fact and held that the three sons had separate business for which they could not fall under the category of "tenant" under the provisions of the Act. Furthermore, this question of fact cannot be decided without permitting the parties to lead evidence in respect of their respective cases and without coming to a finding on such question of fact by the court."

In paragraph 19, this Court held thus:

"19. Thus considering the ambiguous position regarding the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the

matter to the trial court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death by taking evidence and thereafter, come to a finding whether the appellants shall be brought on record in the second appeal as the legal representatives of late Santok Singh."

30. We accordingly direct the trial court to take evidence in the

manner indicated above on the two issues, namely: -

(1) Whether the appellant could claim to be a legal representative?

And

(2) Whether or not the will propounded by the appellant herein, namely, Smt. Munira, wife of Kesarkhan Pathan, allegedly executed on 20.8.2001 and registered in the Office of the sub- Registrar on 29.8.2001 is a legal and valid document in the eyes of law?

31. After completion of the recording of the said evidence, both

documentary and oral, brought on record by the parties, the trial

court shall record the finding on the status of the appellant and as

to whether the Will propounded is legal and valid and how far the

same could be relied upon. The trial court shall thereafter send

back to this Court the records with findings and evidence that

might be adduced and already on record. The aforesaid process shall be completed within a period of four months from the date of

receipt of the record from this Court and on completion thereof, the

trial court shall transmit the entire records with the findings in

terms of this order to this Court, upon which, the appeal shall

again be listed for hearing for further determination and orders. Let

the original records be sent back to the trial court immediately.

......

.............

............

.........J. (Dr.

Mukundakam Sharma)

........................................J. (Anil R. Dave) New Delhi, August 30, 2010.