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Karnataka High Court · body

2010 DIGILAW 1213 (KAR)

Zulekabi v. Mohammad Mustafa

2010-11-25

ANAND BYRAREDDY

body2010
Judgment :- 1. Heard the learned counsel for the parties. The parties are referred to by their rank before the trial court, for the snake of convenience. 2. The appellants were the defendants before the trial court. The facts are as follows: One Fakrustab, a Mahomedan, had five children, namely, Nabeesab, Mohamed Mustafa, Mastan Sab, Mahaboobi and Basha. Nabeesab is said to have pre-deceased Fakru Sab. The Defendants, who were the widow and children of Nabeesab, were in the care and custody of Fakru Sab. He executed a will, dated 5-7-2001 bequeathing his properties in favour of the widow and children of Nabeesab. For the sake of clarity family tree is reproduced along with the rank of the parties in the suit. FAKRUSAB Nabee Sab Mohammad Mastan Sab Mahaboobi Basha + Mustafa Zulekabi (D.1 (a)) (Plaintiff) D.2 D.3 D.4 Samiulla Shafiulla The plaintiff sought for division of the suit property on the footing that Fakru sab could not have bequeathed the properties to the defendants, in entirety. The suit was contested. The trial court held that the bequest was valid only to the extent of one-third of the extent of the properties and decreed the suit in part. The lower appellate court on appeal reversed the judgment and held that the suit properties could not be bequeathed without the consent of his heirs who were excluded from the bequest. It is that which is under challenge in this appeal. 3. This appeal was admitted to consider the following substantial question of law: “ Whether the lower appellate court was justified in rejecting the will set up by the defendants, in entirety, having regard the principles of Mohammedan law that a bequest could be restricted to only One-third share?” 4. The learned counsel for the appellants would contend that the lower appellate court has not discussed the established principles of Mohammedan law in reversing the judgment and decree of the trial court. Though it is true that a bequest to an heir is not valid unless the other heirs consent to the request after the death of the testator. There is no bar to a Mohammedan to dispose of my will a third of the surplus of his estate after payment of funeral expenses and debts. It is bequests in excess of the legal third which cannot take effect, unless the heirs consent thereto after the death of the testator. There is no bar to a Mohammedan to dispose of my will a third of the surplus of his estate after payment of funeral expenses and debts. It is bequests in excess of the legal third which cannot take effect, unless the heirs consent thereto after the death of the testator. The learned counsel would submit that these are principles laid down by authoritative judgments with reference to which several learned authors have consistently endorsed-attention is drawn to the commentary – Mulla’s Principles of Mohammedan law, Nineteenth Edition Para 117,118. 5. The learned counsel for the appellants would thus contend that the bequest having been restricted to one-third of the estate of Fakru Sab, in favour of the appellants, by the trial court was in accordance with law and hence seeks that the question of law be answered in favour of the appellants and the judgment of the lower appellate court be set aside. 6. The learned counsel for the respondents would, however, contend that in the presence of heirs, no bequest would take effect unless consented to by them. The contention that there was no bar for the testator to bequeath one-third of his estate, in respect of which consent of the heirs as not being necessary, would be if the bequest is to non-heirs and not to the testators heirs. 7. It is contended by the learned counsel for the respondents that there are three classes of heirs under the Hanafi Law of inheritance, namely, (1) Sharers, (2) Residuaries and (3) Distant Kindred. “Sharers” are those who are entitles to a prescribed share of the inheritance; “Residuaries” are those who take no prescribed share, but succeed to the “residue” after the claims of the shares are satisfied and “Distant kindred” are all those relations by blood who are neither Sharers nor Residuaries” 8. The learned counsel for the respondents draws attention to the Tables contained in tabular from, the lists of heirs, the share of each heir, the conditions which determine the right of each heir and the special circumstances under which the share can vary, as compiled by the learned author Mulla in his work the Principles of Mohammedan law and would submit that the grand sons of Fakru Sab would qualify as Residuaries and therefore were heirs. In which event, any bequest to them would be invalid if the other heirs do not consent to the same. Further, applying the established principle that the nearer heirs exclude the remoter, a son and daughter being the nearer heirs would exclude the grand sons and hence the respondents would succeed to the property. 9. The learned counsel draws attention to the following authorities, which reiterate the principles of Mohammedan law:- (1) GHULAM MOHAMMAD VS. GHULAM HUSSAIN, The Bombay Law Reporter, 1931 Volume XXXIV Page 510. (2) AHMAD ASMAL MUSE VS. BAI BIBI, Indian Law Reports, 1916 Volume XLI Page 377. (3) MUHARRAM ALI AND ANOTHER VS. BARKAT ALI AND ANOTHERS, 125 I.C. 1930 Page 886. (4) MOHAMMAD ATA HUSSAIN KHAN AND OTHERS VS. HUSAIN ALI KHAN AND OTHERS, AIR (31) 1944 OUDH 139 at Page 140 (h) and 146(a). (5) MOOLA CASSIM VS. MOOLA ABDUL RAHIM, IHCR 1905 33 Cal. 178. (6) NARUNNISA VS. SHEK ABDUL HAMID, AIR 1987 KARNATAKA 222. (7) ABID ALI AHAN AND ANOTHERS VS. SECRETARY TO STATE AND ANOTHER, AIR (38) 1951 Nagpur 327. (8) SMT. ASHABI VS. SMT. FAZIYABI AND OTHERS, AIR 2004 KARNATAKA 476. (9) RANE KHUJOOROONISSA VS. MUSSAMUT ROUSHUN JEHAN – I.A. VOL. III Page 291. 10. By way of reply the learned counsel for the appellant contends that the argument canvassed by the respondent proceeds on the basis that the appellants are heirs of the testator as contemplated in the law of inheritance. It is pointed out that the daughter-in-law of the testator is not a heir. Secondly, the other appellants are the sons of the predeceased eldest son of the testator, who had died during the life time of the testator. Grand-sons are considered as residuary heirs only if the son is alive. As the son had pre-deceased the testator, the grandsons were non-heirs as on the date of the death of the testator. Hence, the appellants as non-heirs would validity inherit one-third the estate of the testator. 11. In order to consider the substantial question of law framed in the above appeal on these rival contentions. The views expressed by a learned author Asaf A.A. Fyzee in his work Outlines of Muhammadan Law, Fourth Edition are also considered. According to Fyzee, the classes of heirs, and other general conditions are expressed as follows: 90. 11. In order to consider the substantial question of law framed in the above appeal on these rival contentions. The views expressed by a learned author Asaf A.A. Fyzee in his work Outlines of Muhammadan Law, Fourth Edition are also considered. According to Fyzee, the classes of heirs, and other general conditions are expressed as follows: 90. Classes of Heirs The Hanafi jurists divide heirs into seven classes, the three principle and the four subsidiary Classes. (A) The three Principle Classes: I Koranic Heirs – dhawu’l-furud (called sharers); II Agnatic Heirs – ‘asabat (called Residuaries); III Uterine Heirs – dhawu’l-arham (Called Distant kindred). (B) The four Subsidiary Classes: IV The Successor of Contract; V The Acknowledge Kinsman; VI The Sole Legatee; VII The State, by Escheat. According to Hanafi Law the property of the deceased goes, in the first instance, to the Koranic Heirs, Class I. If the estate is not exhausted by them, or failing them, it goes to the Agnatic Heirs, Class II. And finally, in the absence of heirs of Class I and Class II, the property is distributed among the Uterine Heirs, Class III. Theirs three principle classes of heirs together comprise all the blood relations of the deceased, whether they are agnates or cognates, and one relation by, marriage, namely the husband or the wife. The subsidiary heirs succeed on only by way of exception. General considerations. (A) THE PRINCIPAL HEIRS CLASS I, KORANIC HEIRS. The Koran, as is well known, deals very exhaustively with the-law relating to inheritance, and the first class of heirs consists of certain close relations of the deceased to whom a specific share (called sahm) is allotted in the Koran. The term ‘shares’ is not a happy one and does not covey either the literal meaning of the Arabic original or its deeper significance, an therefore the term ‘Korantic Heirs’ is proposed. The expressions ashab al-fara’id or dhawu’l-furad mean ‘possessors of obligatory shares’; and the law of inheritance is generally called ‘illm al-fara’id. The English rendering ‘sharers’ comes to as from the days of Sri William Jones who published a translation of the Sirajiyyah in 1972. Macnaghten also uses the same expression. Perhaps its only justification is its age; otherwise it is time to put it in the lumber-room of obsolete terms, which no longer enlighten but befog our vision. The English rendering ‘sharers’ comes to as from the days of Sri William Jones who published a translation of the Sirajiyyah in 1972. Macnaghten also uses the same expression. Perhaps its only justification is its age; otherwise it is time to put it in the lumber-room of obsolete terms, which no longer enlighten but befog our vision. To be fair to the older scholars, it is necessary to observe that the term is derived from the exact fractional ‘sharers’ (Arabic, sahm, plaintiff siham) fixed by the Holy Book. These fractions are six in number, to wit, ½, ¼, 1/8, 2/3,1/3, and 1/6; the persons to whom the shares are allotted are ‘shares’, and as the fractional shares are specified in the Koran, they are in the highest sense ‘obligatory’ that is farida. As the shares are fixed by the Kora, Class I takes precedence of the other two classes; but the fundamental principle should not be overlooked. The rule must not be conceived as creating a preferential class of heirs which takes the bulk of the property. On a careful analysis of the usual cases, it will be found that the rule may be explained thus-take the whole of the property; from it take a slice, according to the dictates of the Koran; and let the residue, being in most cases the bulk of the property, go to the tribal heirs, the ‘asabat, usually called the Residuaries. The first class, Koranic Heirs, consists mainly of females, with a few exceptions. The reason is that the bulk of the property, in the majority of cases, is sought to be kept instact for the second class of heirs who are all males. For instance, a man dies leaving a widow and a son. The widow is a Koranic Heir and she gets 1/8 of the estate, while the son, a tribal heir, takes the remaining 7/8. This is illuminating example of how Koranic reform affected Arabian Custom. Class II, Agnatic Heirs. The second class of heirs is called ‘asabat, a term which may be rendered as ‘near male agnates’, and the term ‘Agnatic Heirs’ is adopted in preference to the somewhat misleading word ‘Residuaries’. The term ‘residuary’ implies that a fractional share is to be taken out of the estate and the remaining portion is to left to this class of heirs. The term ‘residuary’ implies that a fractional share is to be taken out of the estate and the remaining portion is to left to this class of heirs. This is taking a merely mechanical view of the scheme; in reality, the Agnatic Heirs were the principle heirs before Islam; they continue to remain in Sunnite Law the principle heirs, provided always that the claims of near relations mentioned in the Koran, the Koranic Heirs, are satisfied by giving to each of the Koran, the Koranic Heirs, are satisfied by giving to each of them a specified portion, the farida, plural fara’id. The son, the father (in certain cases), the brother, the paternal uncle and the nephew are all in this important class, and in a majority of cases the residue forms the bulk of the estate. Class I is given precedence owing to the respect paid to the Koran; else, the rule may be reversed and stated; Keep the bulk of the property for the Agnatic Heirs (asabat), the persons whose rights were always recognized by tribal law, and respect the Koranic provisions by giving specific shares to the persons mentioned in the Koran (dhawu’l-furud). Robertson Smith shows that the right of inheritance lay with the hay, the family, as a whole; and when there were no near heirs, the estate was taken by those male relations who were called ‘asabat, a word which primarily means’ those who go to battle together and have a common blood-fend’. Therefore it is clear that ‘Agnatic Heirs’, that is heirs through the male line, is a better designation than ‘Residuaries’. If the class called ‘asabat in Muhammadan Law is examined, it will be found to contain (i) al male agnates, and (ii) four specified female agnates (daughter, son’s daughter how low soever, full sister, consanguine sister), a Koranic innovation. Class III, Uterine Heirs. The third class is usually called ‘Distant Kindred’; this term is also a relic of the past and unsatisfactory, and richly deserves to be discarded. In the Muhammadan law applicable to the Hanafi school the dhawu’l-arham represent (i) all cognates, male or female, and (ii) all female agnaes, with the four exceptions stated above. Class III, Uterine Heirs. The third class is usually called ‘Distant Kindred’; this term is also a relic of the past and unsatisfactory, and richly deserves to be discarded. In the Muhammadan law applicable to the Hanafi school the dhawu’l-arham represent (i) all cognates, male or female, and (ii) all female agnaes, with the four exceptions stated above. The word rahm or rahim means ‘womb’, but it is also the most general Arabic word of kinship or blood relationship; the term dhawu’larham would therefore signify ’possessors be ‘near’, that is male agnates, those who are of the tribal group and bound to fight for the tribe; these are the ‘asabat, or they may be more ‘distant’, relatively speaking, because they belong to different family groups (hay); these are the dhawu’l-arham, possessors of kinship. A sister or a daughter may be married in a different family group (hay); her children may thus become ‘distant’, inasmuch as there is no direct obligation to defend the group from aggression. In trying to explain the unsatisfactory term ‘distant kindred’, we have seen that they are either cognates or female agnates. According to the Sirajiyyah. ‘A distant kinsman is every relation, who is neither a sharer nor a residuary’. The dhawu’l-arham of the Sunnite Law may therefore be appropriately designated Uterine Heirs. Conclusion. The scheme of inheritance which emerges from this analysis may now be summed up. The most ancient and most important class of Sunnite heirs is Class II. ‘asabat Unless the deceased leaves a number of Koranic Heirs, the bulk of the property goes to them. But in deference to the Koranic injunctions we take slices of the estate and give them to Koranic Heirs, the residue being divided among Agnatic Heirs. If there are no Agnatic or Koranic Heirs, the property goes to Uterine Heirs, subject always to the Koranic rights of the husband or wife, if the Koran itself gives shares to females, why should the cognates and female relation be excluded from inheritance? (B) THE SUBSIDIARY HEIRS If no number of the three principal classes of heirs exists the deceased’s estate goes to the subsidiary heirs, among whom each class excludes the next. Class IV. Successor by Contract. The first of the subsidiary classes, Class IV in the general scheme of Hanafi law, is the Successor by Contract. (B) THE SUBSIDIARY HEIRS If no number of the three principal classes of heirs exists the deceased’s estate goes to the subsidiary heirs, among whom each class excludes the next. Class IV. Successor by Contract. The first of the subsidiary classes, Class IV in the general scheme of Hanafi law, is the Successor by Contract. Succession by contract arises in two ways: (i) by emancipation and (ii) by friendship. The first, called wala’al-itq, arises as follows. If a man emancipates his slave, the master can inherit from the slave, but the slave cannot inherit from the master. This kind of wala’ has become obsolete in India since the Slavery Act, 1843. The second from is called wala al-mawalat. Here, for example, Hasan contracts with Ibrahim, a stranger, that if Hasan dies Ibrahim shall inherit from him on the condition that Ibrahim shall pay any fine or ranson (called diya) that may be payable by Hasan. The relationship is called wala’; the agreement, muwalat, and the successor by contract, the mawla. This rule is merely antiquarian interest, because compensation for criminal offences (diya) is not payable in India (x). Class V. The Acknowledge Kinsman. The acknowledged kinsman is a person of unknown descent in whose favour the deceased has made an acknowledgement of kinship, not through himself, but through another. Consequently, a man may acknowledge another as his brother (descendant of father), or uncle (descendant of grandfather), but not as his son. Class VI. Universal Legatee. In default of all the above, a testator is empowered to bequeath the whole of his estate to any person, who is known as ‘the Universal Legatee’, The rule of the one-third applies only where there are heirs; if no heir exists the whole of the property of the deceases can be willed away. Class VII, Escheat. The state is the ultimate heir. In ancient Islamic law the property would go to the bayt al-mal, the Public Treasury; but in modern India it would escheat to the lawfully established secular state.” 12. In so far as the case cited by the learned counsel for the respondents, is concerned, In Ghulam Mohammed v. Ghulam Hussain (supra) the appellant before the Privy Counsel was the younger of two sons of a testator, who had sued to establish his right to a share in the property bequeathed by his father to his brother. In so far as the case cited by the learned counsel for the respondents, is concerned, In Ghulam Mohammed v. Ghulam Hussain (supra) the appellant before the Privy Counsel was the younger of two sons of a testator, who had sued to establish his right to a share in the property bequeathed by his father to his brother. The trial court had held that the bequest was invalid unless consented to by the other heirs after the death of the testator. The High Court, however, had taken a view that the first respondent was a mere trustee with no beneficial interest in the property. The Privy council held, that the view of the trial court was correct and that the appellant was shown to have consented to the terms of his father’s will it cannot be binding on him. 13. In Ahmad Asmal Muse v. Bai Bibi (supra) A Mohammedan Bhagdar made a will by which he purported to dispose of his entire property including Bhagdari property in favour of his widow and daughter. The plaintiff who was the residuary heir of the testator never consented to this from of the will. He therefore sued for a declaration that the will was invalid under Mahammedan law so far as the Bhag property was concerned and that he was entitled to succeed to it after the death of the widow under the Bhagdari custom. The question raised was, as to what was the rule which regulated the testator’s power to make the will. It was held that the rule of Mohammedan law was the only law which could be applied and according to it the will was invalid. The plaintiff was held to be the presumptive reversioner under the Bhagdari custom. 14. In Moolla Cassim v. Moolla Abdul Rahim (Supra) the principle of Mohammedan law, that if any of the children of a man due before the opening of the succession to his estate, leaving children behind, these grand children are entirely excluded from the inheritance by their uncles and aunts, is reiterated and applied. 15. 14. In Moolla Cassim v. Moolla Abdul Rahim (Supra) the principle of Mohammedan law, that if any of the children of a man due before the opening of the succession to his estate, leaving children behind, these grand children are entirely excluded from the inheritance by their uncles and aunts, is reiterated and applied. 15. In Narunaisa v. Sheik Abdul Hamid (supra) a division bench of this court has, after referring to the following authorities, namely: Salayjee v. Fatimabi Air 1922 PC 391 wherein it was held: The Mohammedan law does not allow a testator to leave a legacy to any of his heirs unless the other heirs agree, but any single heir may so agree as to bind his own share and the burden of proving the consent of a particular heir is upon the legatee. Ranee Khujooroonissa v. Massammut Roushun Jehan (1876) 3 Ind App 291, wherein it was held: The policy of Mohammedan law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs although he may give a specified portion as much as a third, to a stranger. And while relying on Mahaboobi vs. Kempaiah Ai R 1995 Mys NuC 705, wherein it was held: A Mohammedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. But a bequest of more than the legal third can be validated by the consent of the heirs; and similarly a bequest to an heir may be rendered valid by the consent of the other heirs. The limits of testamentary power exist solely for the benefit of the heirs and they may if they like forego the benefit by giving their consent. The Division Bench held, the well established position, in our opinion, is that a bequest to an heir, either in whole or in part, is invalid, unless consented by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. 16. From the above opinions it is clear that in the instant case neither the widow of the pre-deceased son of the testator nor the sons of the pre-deceased son of the testator, would qualify as the heirs of the testator. 16. From the above opinions it is clear that in the instant case neither the widow of the pre-deceased son of the testator nor the sons of the pre-deceased son of the testator, would qualify as the heirs of the testator. If they are treated as non-heirs, the bequest to the extent of a legal third of the estate of the testator would be valid, even without the consent of the heirs. Hence, the judgment and decree of the lower appellate court is erroneous and is set aside. The substantial question of law would have to answered to state that the bequest under the will could not have been held invalid to the extent of the legal third of the estate of the testator would be valid, even without the consents of the heirs. Hence, the judgment and decree of the lower appellate court is erroneous and is set aside. The substantial question of law would have to answered to state that the bequest under the will could not have been held invalid in entirety, the bequest in favour of the appellants was valid to the extent of the legal third of the estate, after payment of funeral expenses and debts. The appeal is accordingly allowed.