JUDGMENT Vikramaditya Prasad, J. 1. The substantial question to be answered in this appeal is "Whether the learned Court of appeal below erred in law in setting aside the judgment and decree passed by the learned trial Court without taking into consideration the fact that the learned trial Court held on the basis of evidence of the witnesses that Rajia daughter of Mehru had no share (presumably on the basis of the statement of PW 4 and PW 6 that at the time of Mehrus death he had left behind his three sons)". 2. The aforesaid question arose out of the fact that the plaintiff-appellant had filed a suit for partition of the Scheduled B land given in the plaint. Plaintiffs Genealogy is as follows :-- PLAINTIFFS GENOLOGY MEHRU (DIED IN 1925) ______________________________|______________________________ | | | Baksu Ludu Kalu(die d) (died after the death of Mehru) (died in 1952) _______________________|____ ____________ | | | | | | Benga @ Yasin Ferunia (daughter) | ____________________________________________________ ______________ | | | | | | | | Budhan Ismail Alta Abdul Haliman Bhikni (died) | (def.) (def.) (def.) (def.) ( daughter) (daughter) _________|___________________________ ________________________| ____ | | | | | | Mobarak Aldu Parijan (daughter) Bakrid Mumtaz Bibi P1 P2 (died) D6 D7 _________________________|______________________________________ ___________ | | | | | | | Barku Abdul Quaum Idris Karim Ku ndie Bibi P3 P4 P6 P6 P7 P8 Their case was that the plaintiffs were related to the defendants as shown in the genealogical table. Their further case is that Mehru died leaving behind three sons Baksu, Lalu and Kalu and that Mehru died in the year 1925 (earlier it was in the pleading 1930, but it was amended to 1925) and his son Baksu died after 15 days after the death of Mahru (though in the original plaint, it was after six months but in the amendment, it was 15 days of the death of Mehru) and during his life time, Mehru had partitioned the land among three sons and had kept Schedule B land in his Khas possession. Therefore, after the death of Mehru, this property was divided among all the three brothers equally, 1/3 equal share each. The plaintiffs claim partition from the defendants in the Schedule B lands because they had not agreed to this. 3. The defendant Nos. Therefore, after the death of Mehru, this property was divided among all the three brothers equally, 1/3 equal share each. The plaintiffs claim partition from the defendants in the Schedule B lands because they had not agreed to this. 3. The defendant Nos. 1 to 4 appeared and filed written statement, though admitted claims of the plaintiffs-appellants but denied that plaintiffs had demanded any partition. The defendant No. 10, who is the contesting respondent, filed a written statement and pleaded that (i) Mehru Mian had left a daughter-Rasis Bibi and Baksu Mian had predeceased Mehru and that (ii) after the death of Maheru, the Schedule B property was inherited by Lalu Mian, Kalu Mian and Rajia Mian; consequently, Lalu got 2/5, Kalu 2/5 and Rasia 1/5 share in the Schedule B property and subsequently Rasia died leaving behind her heirs. The Genealogy as stated by the defendant No. 10 as per his W.S. would be :-- DEFENDANT NO. 10S GENEOLOGY MEHRU ____________________________|_____________________________ | | | | Baksu (s) Ladu (s) Kalu (s) Rasis Bibi (daughter) (predecree of Mehru) ( died) ________________________________________________________________ ___|___ | | | | | | Babul (s) Ahmad (s) Bibijan(d) Tukua (d) Kunjiri(d) Dulail (d) (Rest is that as given by the plaintiff) Further case of that defendant is that the defendant No. 8 sold the land to him and partition had already been made; consequently, the suit was bad for non- joinder of necessary parties, i.e. the heirs of Rasia and not maintainable. 4. The learned trial Court framed the following issues :-- (i) Whether the suit is bad for defect of parties? (ii) Whether there is unity of possession between the parties? (iii) Whether the plaintiffs have inherited the property of deceased Mehru Mian? (iv) Whether there has been previous partition and whether defendant No. 10 had acquired title by adverse possession? (v) To what relief or reliefs the plaintiffs are entitled? On considering the evidence, the learned trial Court decreed the suit on contest and held that the plaintiffs were entitled to get 1/3 share in the suit land; consequently, a preliminary decree was drawn up and a direction was given for preparation of the final decree after appointment of the Pleader Commissioner. 5. The appellant Court framed two points, which are as follows :-- (i) Whether the suit suffers seriously because of non-pleading of the heirs of Rasia Bibi? 5. The appellant Court framed two points, which are as follows :-- (i) Whether the suit suffers seriously because of non-pleading of the heirs of Rasia Bibi? (ii) Whether Basku Mian had predeceased his father Mehru Mian? The learned appellate Court, relying on a decision reported in AIR 1983 Gujrat 156, held that the heirs of Rasia had not been made party and consequently, the suit cannot be made maintainable for want of necessary parties. He also held that Baksu had predeceased his father, Mehru. 6. The interesting feature in this case is that the plaintiff in his genealogical table did not mention the fact that Rasia was a daughter of Mehru Mian and there were certain heirs of her, though the PW 3, who is the son of plaintiff No. 2, in his cross-examination, vide paragraph No. 9, categorically staled that Mehru had a daughter Rasia and Raiza had two sons and four daughters, who are alive but they have not been made parties. He has not stated that this daughter had predeceased PW 4 is a man of the same village. He has said in his cross-examination that he does not know whether Mehru had a daughter and he has also said that Mehru had only three sons and no daughter. But he is a villager whereas PW 3, is the son of the plaintiff No. 2 and therefore, he is expected to know better his relations than a villager. Thus, according to the evidence of the plaintiffs son himself, Mehru had left a daughter and the daughter was survived by her heirs. In the aforesaid circumstances, a question arises why in the Genealogical table given by the plaintiff in the plaint, the name of the daughter, Rasia, was completely omitted. 7. DW 6 in his examination-in-chief says that Mehru had three sons and one daughter and at paragraph No. 13, he says that the daughter of Mehru, Rasia, had not got any share in the [and. 8. 7. DW 6 in his examination-in-chief says that Mehru had three sons and one daughter and at paragraph No. 13, he says that the daughter of Mehru, Rasia, had not got any share in the [and. 8. From the aforesaid facts, it emerges that (i) the genealogical table given by the contesting defendant-respondent is admitted by the plaintiff-appellant in his evidence, (ii) Rasia was a daughter of Mehru and Rasia had died leaving behind her heirs, who are alive, (iii) she according to the WS of the contesting defendant-respondent, got 1/5 of inheritance but the statement of DW 6 (supra) is that she has not received any share. This is against the pleadings of the contesting defendant-respondent. 9. The question now is whether this evidence of another person (DW 6) that Rasia did not get any share in the land can be a ground for displacing legal status of Rasia so far as her inheritable right is concerned. In Mahomedan Law, on the death of the father, a daughter is the sharer in her own right, but if the father is survived by sons also, then she becomes a residuary in anothers right and thus, in this case, as there were two surviving sons (as it has sufficiently been proved that Basku Mian had predeceased Mehru), then the Schedule B property in law is inherited by two sons and the daughter, Rasia. Consequently each son gets a share of 2/5, 2/5 and daughter 1/5 in Schedule B property. I am not holding this question of fact on the partition put as a circumstance appearing in this case. Therefore, in the WS the contesting respondent, has correctly stated that Rasia got 1/5 share. But in the Court, DW 6 has completely resiled from pleading and said that she did not get share. This evidence of DW 6 is no admission on the part of any of the heirs of Rasis that their mother had relinquished the claim or had abandoned inheritance. Under Mahomendan Law, inheritance is a vested right and once a property is inherited and gests vested though its distribution may be postponed. A right of inheritance vests by operation of law, and consequently, although a relinquishment of the right after it has vested may be binding on the person actually renouncing, it does not affect any one else. Under Mahomendan Law, inheritance is a vested right and once a property is inherited and gests vested though its distribution may be postponed. A right of inheritance vests by operation of law, and consequently, although a relinquishment of the right after it has vested may be binding on the person actually renouncing, it does not affect any one else. Thus, an heir who refuses to take the share in a deceased persons interest to which he is entitled cannot deprive his own heirs of its benefit, and accordingly upon his death, his right would develop upon them, and they would be entitled to claim his share (subject, of course, to any bar resulting from the statue of limitation) (Mahommedan Law by Ameer Ali, Fifth Edition). 10. In the case in hand, in the face of the evidence, there is nothing to show that Rasia had relinquished her right even by conduct or her heirs relinquished their inheritance in the property. In absence of such evidence, the evidence of DW 6 that she did not get any share which is also against the pleadings of contesting defendant cannot be appreciated for dislodging the judgment and decree. It appears that in the substantial question framed instead of DW 6, PW 6 has been wrongly typed because only four PWs are there. The evidence given by the PW 4 and DW 6 are not such in law either to disprove the existence of Rasia or to prove that she had renounced her inheritance and therefore, no conclusion can be drawn on their evidence that her heirs were not necessary parties. In the aforesaid circumstances and in face of those evidences, it is not proved that heirs of Rasia were not necessary parties. In the result, the substantial question of law is answered accordingly and it is held that the learned appellate Court rightly reversed the judgment and decree of the learned trial Court. This appeal is accordingly dismissed but without costs.