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2007 DIGILAW 482 (KAR)

IMAMHUSSAIN v. JANNATBI

2007-08-06

V.JAGANNATHAN

body2007
JUDGMENT V. Jagannathan, J. The fifth defendant before the Trial Court is the appellant herein and he is aggrieved by the lower Appellate Court reversing the judgment of the Trial Court inasmuch as whereas the Trial Court dismissed the suit filed by the respondents-plaintiffs, the lower Appellate Court reversed the same by allowing the appeal filed by the respondents-plaintiffs and decreeing the suit of the plaintiffs for separate possession of their 1/4th share in the suit property. Hence, this second appeal. 2. The facts in brief are to the effect that the respondents-plaintiffs filed the suit for separate possession of their 1/4th share in the suit property by contending that they were the legal heirs of deceased Jangusaheb and following the death of said Jangusaheb, respondents 1 to 6, being the wife (plaintiff 1) and children (plaintiffs 2 to 6), filed the said suit for the above said relief. The said suit was contested by the defendants by taking up the stand that Jangusaheb did not marry the first plaintiff Jannatbi and the name of the first plaintiff is Ningavva, a Hindu belonging to Maratha community and, therefore, there was no marriage having taken place between the first plaintiff and Jangusaheb and, as such, though the defendants does not dispute the fact of plaintiffs 2 to 6 being born out of the union between Jangusaheb and the first plaintiff, yet, as the marriage itself was not proved, in view of deceased Jangusaheb and the first plaintiff belonging to different religions, the suit of the plaintiffs will have to fail because, under the Mahomedan Law of inheritance, following the death of Jangusaheb, it was the branch of the defendants, which will go to inherit the suit property. Therefore, they prayed for dismissal of the suit. 3. The learned Trial Judge, based on the pleadings of the parties, framed as many as 12 issues and answered issues 1 to 5, 7 and 11 in the negative and the rest in the affirmative and consequent to the said findings, the suit was dismissed. Therefore, they prayed for dismissal of the suit. 3. The learned Trial Judge, based on the pleadings of the parties, framed as many as 12 issues and answered issues 1 to 5, 7 and 11 in the negative and the rest in the affirmative and consequent to the said findings, the suit was dismissed. Aggrieved by the dismissal of the suit in O.S. No. 215 of 1989, the respondents-plaintiffs preferred R.A. No. 60 of 1994 and the learned Judge of the lower Appellate Court, after considering the evidence on record, formulated nine points for consideration and came to the conclusion that the plaintiffs had established the fact of marriage between late Jangusaheb and first plaintiff Jannatbi and the children born to them i.e., plaintiffs 2 to 6 also being held to be legitimate children of the said couple, the lower Appellate Court allowed the appeal filed by the plaintiffs by setting aside the judgment of the Trial Court and the suit was decreed by holding that plaintiffs 1 to 7 are entitled to 1/4th share in the suit property less 1 acre 6 guntas of land sold in favour of the fifth defendant. 4. Aggrieved by the lower Appellate Court reversing the judgment of the Trial Court, among the defendants, only the fifth defendant has preferred this second appeal. 5. At the time of admission of this appeal, the following substantial questions of law had been raised for consideration: “(i) Whether the lower Appellate Court could have reversed the finding given by the Trial Court in respect of the properties purchased by the appellant-defendant 5 from plaintiff 8 under a registered sale deed? (ii) Whether the lower Appellate Court was justified in reversing the judgment of the Trial Court when it is found that the appellant has purchased the properties of other heirs of Hussain Sab under different sale deeds and when he has, been in possession for more than 12 years and whether the same could not be considered to be an adverse possession? (iii) Whether the Court below could have held that the’ first plaintiff is the legally wedded wife of the deceased Jangusaheb when it is not proved that she had converted herself to Islam before her marriage to the said person?” 6. (iii) Whether the Court below could have held that the’ first plaintiff is the legally wedded wife of the deceased Jangusaheb when it is not proved that she had converted herself to Islam before her marriage to the said person?” 6. I have heard the learned Counsel for the appellant and the learned Counsel for the respondents-plaintiffs 2 to 8 and carefully perused the entire evidence on record as well as the judgments of the Courts below. 7. The learned Counsel for the appellant contended that though the appellant did not dispute seriously the fact of plaintiffs 2 to 6 being born to the couple late Jangusaheb and the first plaintiff Jannatbi, the first plaintiff was a Hindu by name Ningavva belonging to Maratha community and she did not marry Jangusaheb in accordance with the Muslim law and, therefore, as their marriage itself has not been proved the children born out of the said union of that couple will become illegitimate children and such children, under Mahomedan Law, are not entitled to in heritance. Therefore, the lower Appellate Court was in error in following the contrary view and, as such, the judgment of the lower Appellate Court requires to be set aside. In this connection, the learned Counsel referred to the pleadings of the parties and also to the evidence of P.Ws. 1 and 3 to contend that the fact that the first plaintiff is a Hindu by name Ningavva has been established and as the plaintiffs did not take up the stand before the Trial Court that Ningavva was Hindu and that she got herself converted to Islam religion and married Jangusaheb, the lower Appellate Court could not have decreed the suit. In this connection, the statement of a witness given in O.S. No. 211 of 1983 was also referred to submit that despite the documents showing the statements given by P.Ws. 1 and 3 having been got marked as per Exs. D. 6 to D. 10, the lower Appellate Court, therefore, could not have reversed the finding of the Trial Court. 8. On the other hand, the learned Counsel for the respondent-plaintiffs submitted that the view taken by the lower Appellate Court is in accordance with the principles of Mahomedan law. 1 and 3 having been got marked as per Exs. D. 6 to D. 10, the lower Appellate Court, therefore, could not have reversed the finding of the Trial Court. 8. On the other hand, the learned Counsel for the respondent-plaintiffs submitted that the view taken by the lower Appellate Court is in accordance with the principles of Mahomedan law. A careful look at Sections 259, 267, 268, 339 and 345 of the Mahomedan Law will make it clear that the marriage between a non-kitabia and a Muslim is not void but is only termed as irregular marriage and as for as the effect of irregular marriage is concerned, once there is consummation, then the issues born out of the irregular marriage will become legitimate. It was also contended that even in the absence of direct proof, marriage will be presumed from showing that the couple had prolonged and continual cohabitation as husband and wife and the fact of acknowledgement by the man of the woman as his wife. Referring to Section 339, it was submitted that the paternity of the child can be established only by marriage between the parties and that the marriage may be a valid or irregular and further, once the paternity of the child is established, its legitimacy also stands established. Referring to Section 345 of the Mahomedan Law, it was submitted that once there is an acknowledgement of legitimateship and presumption of marriage between the acknowledger and the mother of the person acknowledged is there, unless there is rebuttal evidence, such person gets the right of inheritance. Referring to all the above sections of the principles of Mahomedan Law, the learned Counsel submitted that the lower Appellate Court did not commit any error in allowing the appeal filed by the respondents-plaintiffs. 9. In the light of the aforesaid submissions made by the learned Counsel for the parties, I proceed to answer the questions raised for consideration hereunder. 10. 9. In the light of the aforesaid submissions made by the learned Counsel for the parties, I proceed to answer the questions raised for consideration hereunder. 10. So far as the genealogy is concerned, it will be useful to refer to the following genealogical tree: MUGUTSAHEB Mussain Saheb Khan Saheb Imam Gouse Mugut Raje Nabi Jugnu Saheb Saheb Saheb Saheb Saheb Saheb (died on (died 10-5-1930) issueless unmarried) Makutum Imam Appalal Jannatbi Hussain hussain Plff.8 Plff.1 (Deft.4) (Deft.5) Adam Ibrahim Akbar Khan Dade Nabi Mugut Fakru Appa (died (died 3yrs (deft.3) saheb saheb saheb saheb saheb saheb issueless ago) (Plff.2) Plff.23) (died 5 abt (Plfrr.5) Plff.6) Plff.7) yrs. ago) Gous Amirbi Deft.2 (Plff.4) Appalal Hussain Hassan Nabi (died on (died (died saheb 20-10-61) first second (died last issueless issueless issueless) Immam Saheb (Deft.1) 11. It is also not in dispute that the parties to the suit are related as indicated above and secondly, it is also an admitted fact as could be seen from the stand taken by the defendants in their written statement that plaintiffs 2 to 6 have been acknowledged to be the children born out of the union between the first plaintiff and deceased Jangusaheb. It is also the case of the plaintiffs before the Trial Court that the first plaintiff was the wife and the other plaintiffs are the children of deceased Jangusaheb. Once the said fact of plaintiffs 2 to 6 being born out of the union of the first plaintiff and Jangusaheb is admitted, the only question to be answered is as to whether the union between the first plaintiff and Jangusaheb can be treated as a marriage in law and thereby giving the children the legitimacy to inherit the property. In this regard, it is very useful to refer to the provisions of law as mentioned by the learned Author Mulla in his principles of Mahomedan Law (19th Edition). The relevant sections are the following. “259. Difference of religion.-(1) A Mahomedan male may contract a valid marriage not only with a Mahomedan woman, but also with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire-worshipper. A marriage, however, with an idolatress or a fire-worshipper, is not void, but merely irregular. (2) A Mahomedan woman cannot contract a valid marriage except with a Mahomedan. A marriage, however, with an idolatress or a fire-worshipper, is not void, but merely irregular. (2) A Mahomedan woman cannot contract a valid marriage except with a Mahomedan. She cannot contract a valid marriage even with a Kitabi, that is, a Christian or a Jew. A marriage however, with a non-Muslim, whether he is a Kitabi, that is a Christian or a Jew, or a non-Kitabi, that is, an idolator or a fire-worshipper, is irregular, not void. xxx xxx 267. Effect of an irregular (fasid) marriage.—( 1) An irregular marriage may be terminated by either party, either before or after consummation, by words showing an intention to separate, as where either party says to the other “I have relinquished you” (b). An irregular marriage has no legal effect before consummation. (2) If consummation has taken place. (i) the wife is entitled to dower, proper or specified, whichever is less (Sections 286 and 289); (ii) she is bound to observe the iddat, but the duration if the iddat both on divorce and death is three courses (See Section 257(2); (iii) the issue of the marriage is legitimate .(c). But an irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife (Baillie, 694, 701). The Chief Court of Oudh has held that it does create such rights (d), but the decision, it is submitted, is not correct. 268. Presumption of marriage.-Marriage will be presumed, in the absence of direct proof, from- (a) prolonged and continual cohabitation as husband and wife (e); or (b) the fact of the acknowledgement by the man of the paternity of the child born to the woman, provided all the conditions of a valid acknowledgement mentioned in Section 344 below are fulfilled (f); or (c) the fact of the acknowledgement by the man of the woman as his wife(g). The presumption does not apply if the conduct of the parties was inconsistent with the relation of husband and wife (h), nor does it apply if the woman was admittedly a prostitute before she was brought to the man’s house (i). The mere fact, however, that the woman did not live behind the purda, as the admitted wives of the man did, is not sufficient to rebut the presumption (j). xxx xxx 339. Paternity how established.-(l) The paternity of a child can only be established by marriage between its parents. The mere fact, however, that the woman did not live behind the purda, as the admitted wives of the man did, is not sufficient to rebut the presumption (j). xxx xxx 339. Paternity how established.-(l) The paternity of a child can only be established by marriage between its parents. The marriage may be valid (sahih), or irregular (fasid), but it must not be void (batil). Marriage may be established by direct proof If there be no direct proof, it may be established by indirect proof, that is, by presumption drawn from certain facts. It. may be presumed from prolonged cohabitation combined with other circumstances (Section 267), or from an acknowledgement oflegitimacy in favour of a child. (2) When the paternity of a child is established, its legitimacy IS also established. xxx xxx 345. Right of inheritance.-If an acknowledgement is of legitimate sonship, and that relationship is possible in fact and in law (Section 344), it raises a presumption of marriage between the acknowledger and the mother of the person acknowledged, and unless rebutted, gives such person the right of inheritance to the acknowledger as his legitimate child (j), and a similar right also to the mother as the lawful wife of the acknowledger (k)”. 12. It is thus clear from the above position in Mahomedan Law that even in the absence of direct proof, marriage will be presumed if it is shown that there had been prolonged and continual cohabitation as husband and wife between the first plaintiff and late Jangusaheb. The evidence let in by the plaintiffs’ side clearly establishes this important factor. There is no rebuttal evidence placed by the defendants to dislodge this presumption. There is also no evidence placed by the defendants to show that Jangusaheb did not at any point of time acknowledge the first plaintiff as his wife nor plaintiffs 2 to 6 as his children. Requirement of Section 268, therefore, has been met. Since the parties do not dispute the paternity of the plaintiffs 2 to 6, Section 339 comes to the aid of the plaintiffs and by virtue of the said section, the paternity of a child can only be established by marriage between its parents. As a consequence of this, sub-section (2) provides that once the paternity is established, its legitimacy is also establi-shed. As a consequence of this, sub-section (2) provides that once the paternity is established, its legitimacy is also establi-shed. The logical consequence of the said position leads to the children also inheri-ting the property by virtue of Section 345. 13. Therefore, the view taken by the lower Appellate Court that the plaintiffs are entitled to 1/4th share in the suit property is in accordance with the principles of Mahomedan Law as has been mentioned by the learned Author Mulla. The lower Appellate Court has also referred to the decisions of the Apex Court in the case of S. Ajarma Bi alias S. Hajaram Bibi and Another v S. Khurshid Begum and Others to come to the conclusion with regard to the presumption of marriage between the first plaintiff and late Jangusaheb and also to other decisions bearing on the point. Under the said circumstances, I am of the view that the lower Appellate Court has rightly allowed the appeal filed by the plaintiffs by reversing the judgment of the Trial Court. As such, the questions of law raised by this Court stand answered accordingly and the consequence of the said conclusion is, the dismissal of this appeal. 14. Hence, the appeal stands dismissed. No costs.