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2011 DIGILAW 699 (JK)

Shameema Begum v. Mst. Zoona & Ors.

2011-12-12

MOHAMMAD YAQOOB MIR

body2011
1. Civil Second Appeal is directed against the judgment and decree dated 20th of April, 2011 passed by District Judge, Kupwara. 2. Learned counsel appearing for the respondents questioned the maintainability of the appeal in view of the bar contained in sub-section 3 of Section 37 of the J&K Arbitration and Conciliation Act (hereinafter referred to as "the Act"). 3. Background of the case has to be noticed for appreciating the matter in its right perspective: (i) One Habibullah Khan had three wives, namely, Mst. Shaha (deceased), Mst. Lal Begum (deceased) and Mst. Hajira begum. From the Wedlock of Mst. Shaha one daughter, namely, Zoona Begum (R-l) is surviving. From the wedlock of Lal Begum (deceased) two issues i.e. Liyaqat Ali Khan (son) and Afsara (daughter)(R-2) are surviving whereas from the wedlock of Mst. Hajira seven daughters, namely, Shameema Begum (appellant), Naseema (R-3), Nazmeen Begum (R-4), Shafeeqa, Lateefa (R-5), Mehmooda (R-6), Rasheeda (R-7) and Mst. Raja (R-8) were born. (ii) Mst. Shameema Begum (appellant) claims to be a resident daughter (Dukhter Khana-nisheen) and, as such, claims to be in possession as owner of the land situated at village Otengroo covered by Survey Nos. 300(5 marlas), 302(1 kanal 2 marlas), 303(2 marlas), 389/296(1 kanal 17 marlas), 220 (3 kanal 5 marlas), 373 (16 marlas), 375 (5 marlas) and 273 (6 kanal 13 marlas) including residential house and trees standing therein. Facing interference at the hands of respondents, has filed suit for declaration and permanent injunction with the prayer that she being a Khana-nisheen daughter in possession as owner of the aforesaid property may be declared so and the respondents (defendants) who are her sisters shall be restrained from causing any kind of interference. (iii) Deceased Habibullah Khan is stated to have left behind the property in village Hajin, Otengroo and other villages. In the plaint it is pleaded that the deceased has executed a will deed, copy of which is on record, dated 9th of May, 1969 registered on the same date, the recitals of which reveal that the deceased has given the suit property situated in village Otengroo to the appellant as being Khana-nisheen daughter and it is also qualified that the appellant shall have no right or concern with the property left behind by the deceased in other villages. On the strength of will deed appellant claims the suit property to the exclusion of her other sisters (respondents). On the strength of will deed appellant claims the suit property to the exclusion of her other sisters (respondents). (iv) Learned trial court of Sub Judge, Handwara had passed orders on the application for grant of temporary injunction which was challenged by medium of appeal and during the pendency of appeal before the Court of District Judge, Kupwara an application was moved by the parties on 26th of April, 2008 with the prayer that the parties are ready to get the matter settled by Shariat Board. On the consensus of parties, learned District Judge disposed of the appeal with the direction to the Court of Sub Judge, Handwara to refer the matter amicable settlement in between the parties to a Shariat Board or any other person to be nominated by the parties and thereafter disposed of the suit in accordance with outcome of the reference. In compliance thereto, Sub Judge on 25.9.2008 directed the parties to appear before the Sharait Board and raise their claims there. (v) The copy of the application is available on the records wherein it is stated that the parties want division of the property left behind by the deceased Habib Khan in accordance with Shariat(applicable Personal Law) and as such have prayed for referring the matter to Shariat Board, Kupwara. The Sharait Board at Handwara, where the appellant did not appear, recorded opinion that Habib Khan had three wives, parties are the daughters of the deceased, in addition the deceased had one son, namely, Liyaqat Ali Khan and one widow Hajira Begum surviving. The Sharait Board has concluded that the only surviving widow Mst. Hajira Begum shall be entitled to l/8th of the property left behind by the deceased and the rest shall be divided into 11 shares i.e. one share to each daughter and two shares to the son. The will deed in favour of Shameema Begum (appellant) shall be void. (vi) Learned Sub Judge, Handwara after hearing the parties at length has then by a detailed judgment concluded that the award passed on 23.10.2008 by the Sharait Board has not been objected to as was permissible under Section 34 of the Act. The will deed in favour of Shameema Begum (appellant) shall be void. (vi) Learned Sub Judge, Handwara after hearing the parties at length has then by a detailed judgment concluded that the award passed on 23.10.2008 by the Sharait Board has not been objected to as was permissible under Section 34 of the Act. That apart, the award is not in conflict with any public policy, the parties being Sunni Muslims are governed by Personal Law, so there is no reason for not accepting the award, as such, has directed preparation of the decree sheet in accordance with the said award. (vii) Aggrieved by the judgment and decree passed by Sub Judge, Handwara, dated 18.4.2009, Civil 1st Appeal was preferred before the Court of District Judge, Kupwara but with no success. The maintainability of the appeal before the District Judge was objected but same was overruled by the District Judge by opining as under:- "Since the Shariat Board to which the matter was referred for arbitration returned its finding on 23.10.2008, hence in the light of the directions passed by this Court the application filed on 02.12.2008 for referring the matter to Shariat Board or Mufti Azam Kashmir has been treated as an application under Section 34 of the Act for setting aside arbitral award and as such appeal is maintainable under Section 37(1)(b) of the Act." (viii) The learned District Judge while considering the arguments has concluded as under:- "Perusal of the award on the basis of which the suit has been decreed reveals that Liyaqat Ali Khan the brother of the petitioner and respondents has also been held entitled to his share in the property of his father. However, it is admitted that he is not party to the suit and is contended with what he has received from his father's estate and has not shown any interest in the rest of the property and as such the award is set aside to that extent. Consequently after providing 1/8th share in the property to Mst. However, it is admitted that he is not party to the suit and is contended with what he has received from his father's estate and has not shown any interest in the rest of the property and as such the award is set aside to that extent. Consequently after providing 1/8th share in the property to Mst. Hajira, the wife of deceased Habib-ullah Khan, the remaining property shall be divided in nine equal shares out of which the petitioner and the respondents as the daughters of the deceased shall get one share each and the award shall cover the entire estate of Habib-ullah Khan except that which is in possession of Liyaqat Ali Khan his son." Learned District Judge has set aside the award to the extent it provided for share to be given to Liyaqat Ali Khan, son of the deceased, because said Liyaqat Ali had received other property from his father's estate so had no interest in the suit property." 4. The position, as has been attempted to be shrouded in mystery and confusion, has been created because the question is as to whether, after reference of the matter to the Sharait Board, the matter could be heard by the learned Sub Judge. In terms of "the Act" when the matter with the consent of parties is referred for arbitration, then the award as passed by the Arbitrator is final as provided under Section 32 of the Act subject to Section 33 and sub-section (4) of Section 34 of the Act. Section 33 of "the Act" provides for correction and interpretation of award or additional award. Same is not projected, whereas under sub-section (4) of Section 34 when an application for setting aside an arbitral award is filed in the Court, then the Court has to decide as to whether objection raised sustains. 5. Application has been filed on 02.12.2008 for change of Arbitrator, that too, after the Sharait Board (Arbitrator) had passed the award on 23.10.2008, so the said application filed on 02.12.2008 has been treated as an application under Section 34 but on scrutiny has been found to be untenable in view of the grounds incorporated therein because the only prayer therein was to change the Arbitrator which course was available to the parties before the Sharait Board (Arbitrator) itself as permissible under Section 13 of the Act. Section 13(2) of the Act is reproduced hereunder:- "13. Challenge procedure. (1)...... (2) Failing any agreement referred to in sub-section (1), a party who intends to challenge, an arbitrator shall, within fifteen days after becoming aware of the Constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal" 6. It is in the context of Section 13 of the Act, learned Sub Judge (trial court) has concluded that such a ground is not open for being projected under Section 34 of the Act. Learned appellate court has also concurred with said finding except for modification to the extent of excluding the grant of share out of suit property in favour of Liyaqat All Khan who has got property of the deceased from other village. 7. Learned counsel for the appellant would contend that the parties had agreed for referring the dispute to Sharait Board, Kupwara not to the Sharait Board Handwara. She did not appear before the Sharait Board. In opposition learned for respondents submitted that the appellant has allowed Sharait Board to pass the award dated 23.10.2008. Thereafter it was open to her to file an application under Section 34 of the Act and to seek setting aside of the award which she has not, instead she has filed an application for change of Arbitrator on 02.12.2008 which application has been treated as an application under Section 34 of the Act and based on that her appeal against the order of Sub Judge before the District Judge has been held to be maintainable under Section 37(l)(b) of the Act. 8. What would emerge from the above is that the matter has been dealt with under Arbitration and Conciliation Act. The decree passed on the basis of the award by the trial court and then confirmed with the modification as indicated above by the appellate Court is not open to be challenged by medium of Second Appeal before this Court. 9. Section 37 of the Act reads as under:- "37. The decree passed on the basis of the award by the trial court and then confirmed with the modification as indicated above by the appellate Court is not open to be challenged by medium of Second Appeal before this Court. 9. Section 37 of the Act reads as under:- "37. Appealable orders: (1) An appeal shall lie from the following orders (and from no others) to the Court authorized by law to hear appeals from original decrees of the Court passing the order, namely — (a) granting or refusing to grant any measure under section 9; (b) setting aside or refusing to set aside an arbitral award under section 34. (2) An appeal shall also lie from an order granting or refusing to grant an interim measure under section 17 to a Court. (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court." Plain reading would indicate that under sub-section (3) no second appeal can lie from an order passed in appeal but party aggrieved has a right to appeal to the Hon'ble Supreme Court. 10. Section 100(1) the Code of Civil Procedure in the very beginning provides that "save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court on a substantial question of law." 11. The operation of Section 37 of the Act is clearly saved by Section 100(1) of the Code of Civil Procedure because Arbitration and Conciliation Act being in force expressly provides that no second appeal shall lie from an order passed in appeal under this Section. Therefore, while reading Section 100 of the CPC and Section 37(3) of the act together, the answer is clear that second appeal as against the orders passed in an appeal under Section 37 of the Act cannot lie. Learned District Judge has passed the order while hearing appeal under Section 37, therefore, in terms of sub-section (3) of Section 37 of the Act second appeal is not provided for. It being so, this Second Appeal is held not maintainable. 12. Learned District Judge has passed the order while hearing appeal under Section 37, therefore, in terms of sub-section (3) of Section 37 of the Act second appeal is not provided for. It being so, this Second Appeal is held not maintainable. 12. Finally Learned counsel for the appellant contended that according to Shariat(Personal Law) appellant shall be entitled to her share from the entire property which has been left behind by deceased Habib Khan which include property situated in other villages. It is for the appellant to work out the remedy as shall be available to her. 13. This Second appeal, in view of Section 37(3) of the Act, being not maintainable is dismissed. 14. Copy of the judgment along with record of the appellate court be send back to the appellate court. Copy of the judgment be also send to the trial court for information.