Mt. Hashihan v. Jalaluddin — 1982 DIGILAW 14 (PAT)

Judgment 1. The plaintiff Mt. Hashihan, daughter of Shaikh Nawab, filed a suit for partition claiming one-third share in the suit properties. Both the Courts negatived the claim of the plaintiff and dismissed the suit. 2. The short point for consideration is : Whether the plaintiff is entitled to one-third share in the suit properties? In my opinion, the answer must be given in the negative. 3. Shaikh Nawab died leaving behind Mt. Hashihan, plaintiff, and Jainuddin defendant No.1. Before his death, Shaikh Nawab executed a registered deed of gift (Ext.1) in favour of the plaintiff and her son. In that deed, it was mentioned that she was given 1 bigha 10 kathas as her share to which she was entitled in partition. This is also the concurrent finding of both the courts below. It is for this reason that the plaintiff lost the suit in both the Courts. 4. The defence of defendant No.1 and his wife defendant No.4, was that they are in adverse possession of the suit properties to the knowledge of the plaintiff. Though Shaikh Nawab died in the year 1945, the suit was filed in the year 1968. No explanation has been given by the plaintiff as to why the suit was not filed between 1945 and 1968. It is for this reason that the Courts below held that the plaintiff relinquished her claim to the suit properties. It is correct that the principle of renunciation or relinquishment has not been pleaded by the plaintiff. It is clear that no issue was framed to this effect. Parties have led evidence to the contention of renunciation by exhibiting the registered deed of gift (Ext.B). It is the case of defendant No.1 that by accepting the registered deed of gift, the plaintiff accepted the principle of renunciation to the effect that she would not claim any share in the suit properties. Shaikh Nawab died leaving behind 4« bighas of land. The plaintiff got by means of Ext. B 1« bighas of land. Under Mahommedan Law, the plaintiff was entitled to one-third share. The son, being a residuary heir, was entitled to two thirds share, that is, 3 bighas. It is also pleaded by the learned counsel for the appellant that renunciation is also not specifically mentioned in Ext. B. It is correct that this fact is not mentioned in Ext. Under Mahommedan Law, the plaintiff was entitled to one-third share. The son, being a residuary heir, was entitled to two thirds share, that is, 3 bighas. It is also pleaded by the learned counsel for the appellant that renunciation is also not specifically mentioned in Ext. B. It is correct that this fact is not mentioned in Ext. B. The Privy Council held in the case of Mst. Hurmut-ool-Nissa Begum V/s. Allahdia Khan, (1871) 17 Suth WR 108, that renunciation of right to inherit need not be expressed but be implied, from the averments in the deed. I hold on the basis of the concurrent findings of fact of both the courts that the plaintiff renunciated her claim in lieu of partition. She accepted the lands mentioned in the deed of gift. It is also clear that one cannot renunciate at the time when she was not entitled to claim partition. In other words, she is not estopped from claiming partition at a time when she renunciated her claim. But such renunciation should be accepted by the courts as it was a family arrangement. In this view of the matter, the renunciation should have been accepted and the plaintiff ought to have been forbidden from claiming partition. If she is not forbidden, the family arrangement will have no value in the society. 5. There is another aspect of the matter and that is this :- In the aforesaid Privy Council case, a residuary heir claimed partition after twelve years. Their Lordships disallowed the claim of partition, as no satisfactory explanation of his inaction was given by the residuary heir. Their Lordships also held in that case that the suit is barred by the principle of adverse possession. I apply the same principle in the present case. The plaintiff has given no satisfactory explanation of her inaction for the delay of 23 years in filing the suit for partition. Therefore, the legitimate inference is that she renunciated her claim for partition in respect of the suit area. I also hold that the suit is also barred by adverse possession. The plea of adverse possession has specifically been made in paragraph 6 of the written statement of defendant No.1 which is as follows :- "That the defendant pleads complete ouster of the plaintiff and asserts adverse possession over the alleged interest the plaintiffs claim in the suit". I also hold that the suit is also barred by adverse possession. The plea of adverse possession has specifically been made in paragraph 6 of the written statement of defendant No.1 which is as follows :- "That the defendant pleads complete ouster of the plaintiff and asserts adverse possession over the alleged interest the plaintiffs claim in the suit". Defendant No.4, wife of defendant No.1, also pleaded adverse possession in para 7 of her written statement which is as follows : "That this defendant ousted the plaintiff from the lands detailed in schedule I of this written statement in 1953 and this defendant is coming in exclusive possession thereon to the knowledge of the plaintiff". Therefore, it cannot be said that adverse possession was not pleaded. On the basis of the materials on record, I hold that the suit was filed in 1968. It is also an admitted position that Shaikh Nawab, father of the plaintiff, died in 1945. Admittedly, the suit was filed beyond 12 years and no satisfactory explanation has been given for the delay. Hence, I hold that the suit is barred by adverse possession. 6. On the point of pleading, learned counsel for the plaintiff cited AIR 1930 PC 57 (1) (Siddik Mahomed Shah V/s. Mt. Saran) to show that no amount of evidence can be looked into which was never put forward. Their Lordships of the Supreme Court in the case of Nagubai Ammal V/s. B. Shama Rao ( AIR 1956 Sc 593 ) has explained the decision of the Privy Council and held that the rule laid down in Siddik Mahomed Shah versus Mt. Saran and others does not apply to a case where parties go to trial with knowledge that a particular question is in issue though no specific issue has been framed thereon. I, therefore, hold that, although no pleading was made in respect of renunciation nor any issue was raised to that effect, the parties are entitled to contend about renunciation, as the parties had the knowledge about this issue in their mind. To this effect, they also adduced documentary evidence. So far as exclusive possession is concerned, both the courts have concurrently held that defendant No.1 and defendant No.4 were in exclusive possession in respect of the suit properties. To this effect, they also adduced documentary evidence. So far as exclusive possession is concerned, both the courts have concurrently held that defendant No.1 and defendant No.4 were in exclusive possession in respect of the suit properties. It is an admitted position that, after the death of Shaikh Nawab, the plaintiff was in possession of 1 bigha 10 kathas of land and defendant No.1 was in possession of 3 bighas. Defendant No.1 executed a deed of bimokasa (a deed in lieu of dower debt) dated 12-7-1953 in favour of his wife, defendant No.4, in respect of 2 bighas and odd out of the suit properties. Ext. D is the mutation paper suggesting the mutation in favour of defendant No.4 in respect of 2 bighas and odd. Consequently, rent receipts (Exts. A to A/19) clearly suggest that rent receipts were issued in the name of defendant No.4. Defendant No.4 has also pleaded that she is in adverse possession to the knowledge of the plaintiff. 7. So far as 1 bigha is concerned, it is coming in exclusive possession of defendant No.1 to the knowledge of the plaintiff. This position has been discussed by the trial court in paras 10 to 14 in its judgement. While discussing the plaintiffs witnesses, the trial court came to the conclusion that it was admitted by the plaintiffs witnesses that the suit lands were coming in possession of defendant No.1. If that is so, the suit for partition must fail on this ground also. The finding of the trial Judge about exclusive possession has also been affirmed by the lower appellate court. 8. It is also relevant at this stage to quote para 16 of the trials court judgement which is as follows :- "In view of the above evidences of the plaintiff herself it becomes clear that the plaintiff has never been in possession of any portion of the disputed land. It is not the case of the plaintiff in the plaint that she has been coming in possession of the disputed land jointly. The witnesses of the plaintiff as well as the plaintiff herself, have tried to convince the court that the plaintiff has been coming in possession of some of the portions of the disputed land separately, which story has fallen flat to the ground. From the recital of the Ext. The witnesses of the plaintiff as well as the plaintiff herself, have tried to convince the court that the plaintiff has been coming in possession of some of the portions of the disputed land separately, which story has fallen flat to the ground. From the recital of the Ext. B which is the deed of gift of the plaintiff, it becomes clear that the intention of Sk. Nabab, father of the plaintiff, was to give to the plaintiff 1« bighas of land out of 4« bighas of land owned and possessed by him which after his death would be the share of the plaintiff. Admittedly according to Mohammadan Law the plaintiff was entitled to 1/3 share and defendant No.1, being her brother was entitled to 2/3rd share in the lands of Sk. Nabab, their father, after his death, by way of inheritance. From Ext. B it becomes clear further that Sk. Nabab gifted the land of the plaintiff share in his life time and the P.Ws. have also proved that the same land, which was gifted to the plaintiff has been coming in her possession and either she cultivates it by herself or she gets it cultivated by others on Hunda Batai." I affirm the concurrent findings of both the courts below and dismiss the suit. 9 The points of law raised in this case are summarised thus :- Renunciation or relinquishment need not be expressly stated in the document. It can be inferred from the conduct of the parties. If a suit for partition in a Mohammedan family is brought after 12 years and the plaintiff; fails to explain his or her inaction, renunciation can be inferred. If renunciation is pleaded in the document and renunciation is accepted by the parties, in that case, he or she must be estopped from claiming partition, as it is a part of family arrangement. Strictly speaking, such renunciation will not forbid her from claiming partition but in order to maintain harmony and peace in the family such renunciation should be treated as estoppel to the party concerned. But ordinarily, there should be a pleading in respect of facts but if such a particular fact is not pleaded nor any issue is framed the parties will not be debarred from adducing any evidence if he or she has knowledge to the fact that this issue is involved in the case. But ordinarily, there should be a pleading in respect of facts but if such a particular fact is not pleaded nor any issue is framed the parties will not be debarred from adducing any evidence if he or she has knowledge to the fact that this issue is involved in the case. Then the parties will not be estopped from raising that issue for which the evidence has been led by both the parties. 10 In the result, the appeal is dismissed. Parties will bear their own costs, throughout.