Judgement JUDGMENT:- This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Kamrup in Title Appeal No. 13 of 1978 dismissing the appeal and affirming the judgment and decree passed by the Assistant District Judge No. 2, Gauhati dismissing the suit with costs. 2. The facts of the case may be briefly stated as follows. One Abdul Gafur owned 4 kathas of land. After his death, the land was amicably partitioned by his heirs in or about the year 1937. On partition, his two daughters namely, Salimon Nessa and Halimon Nessa got 1K-3Ls of land. Halimon Nessa sold away her half share in the said land to her sister Salimon Nessa by registered sale deed on 24-1-40. Salimon Nessa thus became absolute owner of 1 K-3Ls of land on and after the said sale on 24-1-40. Halimon Nessa died sometime in 1951 leaving behind her son, the plaintiff Abdul Matin as her sole heir. Later in 1953, Salimon Nessa also died without any issue leaving behind her husband Kitab Ali, and her sisters son Abdul Matin, the defendant No. 6. Kitab Ali, thereafter by a deed of gift dated 25-11-54, gifted the entire land belonging to his wife to one Abdul Latif, who later sold the same to the defendant No. 5. The defendant No. 5 thus, claimed title of the said land by virtue of purchase from Abdul Latif. 3. The plaintiff filed a suit for declaration of his title in respect of 17¼ lechas of land and for partition of the suit land. His claim was based on Mahomedan Law of Succession. The defendant No. 5, the purchaser of the land contested the suit mainly on two grounds namely, (i) under the facts and circumstances of the case, the plaintiff did not succeed to any part of the land belonging to Salimon Nessa who died in 1953 in view of the Mahomedan Law of Succession and (ii) the entire property on her death devolved on her husband Kitab Ali who gifted the same to the vendor of the defendant No. 5. As such the suit was not maintainable. 4. As such the suit was not maintainable. 4. The trial Court held that by virtue of sale of her share by Halimon Nessa to her sister, Salimon Nessa in the year 1940, the son of Halimon Nessa lost all right of succession to the estate of Salimon Nessa on her death. Accordingly, it was held that the husband of Salimon Nessa, Kitab Ali was the only successor and the entire property left by Salimon Nessa devolved to him and he had the right, title and interest to transfer the same by way of gift. It was further held that in view of aforesaid legal position, the vendor of the defendant No. 5 got absolute title over the said land by virtue of the said gift and had the right to transfer title and interest on the said land by sale to the defendant No. 6. On the basis of the aforesaid findings, the trial Court dismissed the suit. 5. On appeal, the learned Additional District Judge, Gauhati confirmed the judgment of the learned trial Court. It, however, further held that the suit was barred by limitation. It was observed that though no issue was framed before the trial Court in this regard and it was not decided by the trial Court, it being a point of law could be decided for the first time on appeal on the basis of plea taken by the defendant. The aforesaid judgments and decrees have been challenged in this second appeal on the ground that the learned Courts below failed to apply correctly the provisions of Mahomedan Law relating to succession and, as such, the said judgments were vitiated. The finding on the point of limitation has also been challenged on the ground that no such point was raised before the trial Court nor decided by it and no evidence was taken in that regard. The decision of the learned appellate Court on the said point is perfunctory and based on no material or evidence on record. 6. Mr. B.K.Goswami, learned counsel for the appellant submitted that even on the admitted facts, under the Mahomedan Law, on the death of Salimon Nessa a part of the land belonging to her devolved on the plaintiff-appellant who is a distant kindred. 6. Mr. B.K.Goswami, learned counsel for the appellant submitted that even on the admitted facts, under the Mahomedan Law, on the death of Salimon Nessa a part of the land belonging to her devolved on the plaintiff-appellant who is a distant kindred. According to him, as a result of sale of her share by Halimon Nessa to Salimon Nessa in the year 1940, Salimon Nessa became the absolute owner of the entire plot of land measuring 1K-3Ls. Halmon Nessa predeceased Salimon Nessa leaving behind only the plaintiff, her son. When Salimon Nessa died in the year 1953, admittedly, the only persons who could have claimed any share in the properties were her husband Kitab Ali and her sisters son, the plaintiff. The question that arises for determination is whether on the death of Salimon Nessa, the property left by her devolved partly on her husband and partly on her sisters son namely, Abdul Matin, the plaintiff or it devolved entirely on her husband. The learned Courts below held that because the mother of the plaintiff who was owner of half of the share of the property, during her lifetime in 1940 itself sold it to Salimon Nessa, her son could not claim any share in the property left by Salimon Nessa as successor. 7. I have given my careful consideration to the aforesaid finding. I dont find any rationale for the aforesaid inference. In my opinion, the only effect of sale of her share by Halimon Nessa to her sister Salimon Nessa in the year 1940 was that on and from that date, Salimon Nessa became absolute owner of the entire land measuring 1K-3Ls. When Salimon Nessa died in the year 1953, the said land, as her property, devolved on her heirs in accordance with Mahomedan Law. It is, therefore, necessary to examine the Mahomedan Law of Inheritance. From a careful study of Mahomedan Law of Inheritance, it is evident that heirs under the Mahomedan Law are divided into three classes namely, (i) sharers, (ii) residuaries and (iii) distant kindred. In this connection, we may refer to Section 61 of Chapter VII of Mullas Principles of Mahomedan Law which is relevant in this connection. It reads "61. From a careful study of Mahomedan Law of Inheritance, it is evident that heirs under the Mahomedan Law are divided into three classes namely, (i) sharers, (ii) residuaries and (iii) distant kindred. In this connection, we may refer to Section 61 of Chapter VII of Mullas Principles of Mahomedan Law which is relevant in this connection. It reads "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." 8. Under Section 63, the husband is a "sharer" and is entitled to "one half share" of inheritance. The relevant portion of Section 63 reads: "63. Sharers.- After payment of funeral expenses, debts, and legacies, the first step in the distribution of the estate, of a deceased Mahomedan is to ascertain which of the surviving relations belong to the class of sharers, and which again of these are entitled to a share of inheritance, and, after this is done, to proceed to assign their respective shares to such of the sharers as are, under the circumstances of the case, entitled to succeed to a share. 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 to a share, and the fourth column sets out the shares as varied by special circumstances. FATHER, HUSBAND AND WIFE (a) Father... ... 1/6 (as sharer, because there are daughters) Fathers father ... (excluded by father) Mother ... 1/6 (because there are daughters) Mothers mother ... (excluded by mother) Two daughters ... 2/3 Sons daughters ... (excluded by daughters) (b) Husband ... ... 1/2 Father... ... 1/2 (as residuary) (c) Four widows ... 1/4 (each taking 1/16) Father ... 3/4 (as residuary) The admitted position in the present case is that there is no "residuary". The plaintiff, who is the sisters son of the deceased, is a "distant kindred". He falls under Item 6 in Class III of the list of distant kindred as given in Section 68 of Mullas Mahomedan Law. 1/4 (each taking 1/16) Father ... 3/4 (as residuary) The admitted position in the present case is that there is no "residuary". The plaintiff, who is the sisters son of the deceased, is a "distant kindred". He falls under Item 6 in Class III of the list of distant kindred as given in Section 68 of Mullas Mahomedan Law. The question of order of succession etc. is irrelevant in the instant case as admittedly there is only one sharer and one distant kindred and no other heir. As stated earlier, the sharer namely, the husband of the deceased got half share of the estate and the other half devolved on the distant kindred, the sisters son. It may be pertinent to mention the rule relating "return" discussed in Section 66 of the aforesaid text is not applicable in the instant case, as the sharer was the husband. Section 66 of Mullas Mahomedan Law which deals with "return" reads: "66. Return.- If there is a residue left after satisfying the claims of Sharers, but there is no Residuary, the residue reverts to the Sharers in proportion to their shares. This right of reverter is technically called "Return" or Radd". Exception.- Neither the husband nor the wife is entitled to the Return so long as there is any other heir, whether he be a Sharer or a Distant Kinsman. But if there be no other heir, the residue will go to the husband or the wife, as the case may be, by Return. In the instant case, admittedly, the only "Sharer" was husband who got half the share of the property. Even though there was no Residuary, the residue did not revert to him because of the Exception to Section 66 as there was still one more heir, a distant kindred, the sisters son of the deceased. The husband Kitab Ali, therefore, got only one half share of the land belonging to his wife Salimon Nessa and the other half devolved on the plaintiff, sisters son of the deceased who was a "distant kindred". 9. In view of the aforesaid legal position, it is evident that the learned Courts below committed manifest error of law in holding that the plaintiff had no right, title and interest over any part of land in question. 9. In view of the aforesaid legal position, it is evident that the learned Courts below committed manifest error of law in holding that the plaintiff had no right, title and interest over any part of land in question. He was in fact, entitled to half share of the land which devolved on him on the death of Salimon Nessa as stated above. In view of the aforesaid legal position, it is difficult to sustain the judgments and decrees passed by the learned Courts below. 10. Coming to the finding of the first appellate Court in regard to limitation, it may be observed that the question of limitation was not considered by the learned trial Court. No issue was framed in that regard and no decision was arrived at. The learned appellate Court for the first time, entertained the objection and decided the same against the plaintiff-appellant without giving any opportunity to him to adduce necessary evidence in that regard. The finding arrived at in such a manner cannot be sustained. 11. In view of the aforesaid, the impugned judgments and decrees passed by the learned Courts below are set aside. The case is remanded to the Assistant District Judge, Gauhati to decide it afresh in the light of the principles of law discussed above. 12. As the matter is very old, the learned trial Court is directed to dispose of the same within 6 (six) months from the date of receipt of the records. Order accordingly.