Research › Search › Judgment

Andhra High Court · body

2005 DIGILAW 692 (AP)

Sheik Madar v. Kursheeda Begum

2005-07-29

L.NARASIMHA REDDY

body2005
( 1 ) THIS revision presents an important question relating to Hanafi Law of Inheritance. ( 2 ) PETITIONERS 1 and 3 are the sons. Petitioner No. 2 is the wife, and the respondent is the daughter of one late Md. Ghouse. He died leaving a house bearing No. 4-10-87, admeasuring 380 square yards, situated at hanumakonda. The respondent files o. S. No. 34 of 2000 in the Court of the learned ii Additional Junior Civil Judge, Warangal for partition of the said property against the petitioners. ( 3 ) THE petitioners filed I. A. No. 2348 of 2002 in the Court of the learned II Additional junior Civil Judge, Warangal under Rule 11 of Order VII and Rule 6 of Order XII read with section 151 C. P. C. , with a prayer to reject the plaint and dismiss the suit. According to them, the 2nd petitioner is the only sharer, for the property left by late Md. Ghouse as per the Hanafi Law and that the respondent being a residuary, does not possess any right or enforceable claim in relation to such property, during the life-time of the sharer. It was pleaded that the law does not permit of simultaneous succession of property in favour of the sharers and the residuaries, and that the suit is not maintainable in law. ( 4 ) THE respondent opposed the application and pleaded that if any portion of the property left by a Mohamedan governed by Hanafi law, remains after satisfying the entitlement of the sharers, the residuariers can make a claim as regards the remaining property and that such a situation exists in this case. ( 5 ) THE trial Court passed a detailed and reasoned order dated 22-10-2003 and allowed the I. A. Consequently, the plaint came to be rejected. The respondent filed c. M. A. No. 105 of 2003 in the Court of the learned II Additional District Judge, Warangal, aggrieved by the order of the trial Court. Through its judgment dated 17-11 -2004, the lower appellate Court allowed the appeal and set aside the order of the trial Court in the i. A. Hence, this Civil Revision Petition. ( 6 ) SRI S. Rama Chandra Prasad, learned counsel for the petitioners, submits that simultaneous succession in favourof different categories of successors viz. Through its judgment dated 17-11 -2004, the lower appellate Court allowed the appeal and set aside the order of the trial Court in the i. A. Hence, this Civil Revision Petition. ( 6 ) SRI S. Rama Chandra Prasad, learned counsel for the petitioners, submits that simultaneous succession in favourof different categories of successors viz. , shares and residuaries, is contrary to the Hanafi Law and that the suit was not maintainable at all. He submits that the trial Court had taken into account the relevant provisions of law and the decided cases and appreciated the matter from a proper perspective, and that the view taken by the lower appellate Court cannot be sustained. ( 7 ) SRI Bankatlal Mandhani, learned counsel for the respondent, on the other hand, submits that there is nothing in law, which prohibits the partition of a property that remains after satisfying the entitlement of a sharer. He submits that the trial Court did not interpret certain provisions cited before it properly and that the error committed by it was corrected by the lower appellate Court. ( 8 ) THE relationship of the parties is admitted. The parties are admittedly governed by Hanafi Law of Succession. There is no dispute that late Md. Ghouse left an item of immovable property without providing for any settlement or executing any Will. Therefore, the property is to devolve upon the successors according to the Hanafi Law. ( 9 ) THE Hanafi Law provides for three kinds of heirs for a Mohamedan viz. , (a) sharers, (b) Residuaries and (c) Distant kindred. ( 10 ) AS regards the 1st category 12 relationships of a Mohamedan are recognized as sharers. They are: father, true grand- father, husband, wife, mother, true grandmother, daughter, son s daughter, uterine brother, uterine sister, full sister, and consanguine sister. ( 11 ) DEPENDING on the existence of other relations of the deceased, it is possible that some of the sharers become residuaries. It is not necessary to deal with such contingencies, in the instant case. ( 12 ) residuaries are defined in para 65 of the principles of Mohamedan Law by Mulla. It reads as under-"65. ( 11 ) DEPENDING on the existence of other relations of the deceased, it is possible that some of the sharers become residuaries. It is not necessary to deal with such contingencies, in the instant case. ( 12 ) residuaries are defined in para 65 of the principles of Mohamedan Law by Mulla. It reads as under-"65. Residuaries:- if there are no sharers, or if there are Sharers, but there is a residue left after satisfying their claims, the whole inheritance or the residue as the case may be, devolves upon the Residuaries in the order set forth in the annexed table. " ( 13 ) THIS category includes sons and daughters, son s sons and daughters, true grand-father, brothers and sisters, full sisters and consanguine sisters. ( 14 ) DISTANT Kindred are enlisted in para 68 of the book referred to above. Broadly, there are four classes viz. , descendants of deceased ascendants of the deceased, descendants of parents, and descendants of immediate grand-parents (whether true or false ). ( 15 ) THE succession opens on the death of the Mohamedan. As a first-step, the property has to be applied and utilized for payment of funeral expenses debts, legatees, and if any Out of the balance, the sharers are to be allotted the property corresponding to their shares. The available sharers do not have any claim over the property except to the extent of their share. However, where the total of the shares of the available sharers exceeds unity their shares are required to be diminished proportionately. This concept is known as aul . On the other hand, if such total is less than the unity, and a fraction of the property remains, after answering or satisfying the shares of the sharers, the left over fraction passes on to the residuraies whose entitlement is also defined under the personal law. In case, the deceased mohamedan does not have any residuaries after him, the property, which was otherwise available to be allotted to the residuaries, shall return to the sharers, subject to certain conditions. This principle is called Radd . which is remotely comparable to the concept of reversion. ( 16 ) THE very definition of residuary suggests that, they are entitled to inherit the property under two circumstances, viz. This principle is called Radd . which is remotely comparable to the concept of reversion. ( 16 ) THE very definition of residuary suggests that, they are entitled to inherit the property under two circumstances, viz. , (a) if there are no sharers, and, (b) there exist sharers but a fraction of the property remains even after satisfying the shares of the sharers. ( 17 ) ACCORDING to the settled principle of hanaf i Succession, a daughter of a deceased mohamedan will get half of what, his son gets. There is no dispute that petitioners 1 and 3 and the respondent are residuaries. Their succession to the property is subject to the satisfaction of the claim of the only sharer i. e. , the 2nd petitioner. ( 18 ) THE whole dispute in this case is as to whether the respondent is entitled to seek partition during the lifetime of her mother, the 2nd petitioner. A perusal of paragraph 65 of the Mohamedan Law, which, admittedly, governs the facts of the case, discloses that succession to residuaries is not prohibited, as long as there is sufficient property to meet the claims of the sharers. There may be circumstances, where a Mohamedan had left behind him such number of sharers as would be entitled to share the entire property left by him in the shares prescribed under the law. In such an event, nothing remains after satisfying the claims of the sharers, and the occasion for the residuraries to succeed to the fraction of the property does not arise. However, where the surviving sharers are not that many, as to inherit the entire property and a portion of it is left, even after satisfying the entitlement of sharers, the succession of the left over property to residuaries, cannot be stopped. ( 19 ) IN the instant case, except the 2nd petitioner, there are no sharers for the estate of the deceased. Her share is restricted to 1 /8th share even after satisfying the claim of the 2nd petitioner. 7/8th of the suit schedule property becomes available to be succeeded by the residuaries viz. , petitioners 1 and 3 and the respondent. It has already been observed that the property, which remains after satisfying the claims of sharers, would revert back to them, in the event of there being no residuaries. 7/8th of the suit schedule property becomes available to be succeeded by the residuaries viz. , petitioners 1 and 3 and the respondent. It has already been observed that the property, which remains after satisfying the claims of sharers, would revert back to them, in the event of there being no residuaries. The contingency of the left over property, after satisfying the claim of the 2nd petitioner reverting to her, does not arise in view of the presence of the respondent and her brothers, who are undisputedly the residuaries. Therefore, it cannot be said that the suit filed by the respondent is not maintainable or that the plaint is liable to be rejected. ( 20 ) THE trial Court made extensive reference to "the principles of Mohamedan law" written by Dr. Nishi Purohit, whereas the lower appellate Court had undertaken extensive discussion on various judgments rendered by the Supreme Court and the other Courts. The precedents are mostly in relation to the scope of suits for administration on the one hand and partition of the properties left by a Mohamedan, on the other. ( 21 ) IN view of the finding recorded above, it is not felt necessary to refer to the judgments, relied upon by the parties. At any rate, it cannot be said that the plaint deserves to be rejected at the threshold. The very fact that so much discussion was undertaken by the courts below to examine the question itself, is indicative of the fact that it is a matter to be considered on merits and not to be rejected at the threshold. ( 22 ) THE Civil Revision petition is accordingly dismissed. There shall be no order as to costs.