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2013 DIGILAW 330 (PAT)

Md. Faiyazuddin v. State Of Bihar

2013-03-12

RAVI RANJAN

body2013
ORDER I have Heard learned counsel for the petitioners, the State, the respondent no. 2 and the respondent nos. 3 and 4. 2. Counter affidavits have been filed on behalf of the respondent nos. 2 and jointly by respondent nos. 3 and 4. 3. Through this writ application the petitioners seek quashing of the Order/Award dated 24.02.2007(Annexure 3) of a permanent Lok Adalat made in Title Suit No. 129 of 2006. 4. A copy of the plaint of the title suit has been brought on record as Annexure 1 to the writ petition. On perusal thereof it appears that the suit was filed for the following reliefs:- “(i) That it be declared that the plaintiffs have acquired valid right, title and interest in the disputed land described in the schedule of the plaint by virtue of the oral gift made by the defendant in the year 1993. (ii) That the cost of the suit may be awarded to the plaintiffs. (iii) That any other relief or reliefs, if any, to which the plaintiffs may be found entitled to be granted.” 5. From the averments made in the plaint it further appears that the plaintiffs, who are the husband and wife have claimed to have acquired the property described in schedule of the plaint vide oral gift made in their favour by the sole defendant who happens to be the father of the plaintiff no. 1. It stands described in paragraph 2 of the plaint that the sole defendant has two sons also, namely, Md. Faiyazuddin alias Md. Faiyaz and Md. Reyajuddin alias Md. Reyaz and four daughters including the plaintiff no. 1. The sons of the sole defendant Abdul Majid are the petitioners in the present case. It also stands described in the plaint that on being satisfied with the services rendered by the plaintiffs to the wife of the sole defendant and mother of the plaintiff no. 1, who had subsequently left for heavenly abode, the defendant had orally gifted the suit land in equal proportion to the plaintiffs in the year 1993. In the meantime, after the defendant became very old and started keeping indifferent health, the two sons started creating trouble for the plaintiffs and also started pressurising the defendant to execute some document in their favour with respect to the land in dispute. In the meantime, after the defendant became very old and started keeping indifferent health, the two sons started creating trouble for the plaintiffs and also started pressurising the defendant to execute some document in their favour with respect to the land in dispute. The plaintiffs also requested the defendant to execute some document acknowledging the oral gift made in the year 1993, however, it has been alleged that under the influence of his two sons he became reluctant and finally refused to execute any document in the month of July 2006. Thus, the title suit was filed. During the pendency of the title suit, a joint petition for compromise came to be filed by the defendant and the plaintiffs, a copy of which has been appended as Annexure 2 to this writ application. 6. From perusal of the joint petition of compromise it appears that the defendant had accepted the oral gift made by him in the year 1993 in favour of the plaintiffs. The matter was finally disposed of by the permanent Lok Adalat accepting the compromise vide the impugned order/award dated 24.02.2007 (Annexure 3). 7. Learned counsel for the petitioners has contended that allegations have been made against the petitioners in the plaint but without impleading them as party to the suit. It is further contended that the petitioners being the sons of the defendant, namely, Abdul Majid, were necessary parties in the title suit inasmuch as the property belonging to their father was sought to be declared as acquired by oral gift made in favour of the plaintiffs. 8. Per contra, learned counsel for the respondents have jointly submitted that the petitioners not having any interest in the property and not even claiming to be co-sharers thereof, would not have any right to question the award or the stand taken by the plaintiffs and the defendant as the property exclusively belonged to the sole defendant. Thus, the petitioners are not necessary party to the lis. 9. Counter affidavits filed on behalf of the respondents also disclose the aforesaid facts and questions the locus of the petitioners in prosecuting this writ petition. 10. Thus, the petitioners are not necessary party to the lis. 9. Counter affidavits filed on behalf of the respondents also disclose the aforesaid facts and questions the locus of the petitioners in prosecuting this writ petition. 10. Upon consideration of the rival contentions, in my opinion, the sole question which emerges for determination in this case is as to whether the petitioners were the necessary party to be impleaded in the title suit and whether in their absence the suit was fit to be dismissed for non-joinder of necessary parties. 11. In my opinion, if the petitioners claim that they were the necessary party in the suit being the sons of the defendant, then they will have to establish that they are competent to challenge the concerned transaction or the oral gift made in favour of their sister by their father. It has been stated by the plaintiffs as well as the defendant-respondent that the suit property was acquired by the defendant Abdul Majid through a registered sale deed in the year 1980 from one Md. Hasun son of late Md. Yasin. This fact has not been controverted by the petitioners. It is also not the case of the petitioners that they are co-sharers of the aforesaid property having contributed in payment of consideration amount or the sale deed having been executed jointly in the names of the father and sons. 12. Section 52 of the Mahomedan Law, as contained in the Principles of Mahomedan Law by M. Hidayatullah and Arshad Hidayatullah (nineteenth edition), clearly stipulates that any person governed by the Mahomedan Law does not have any birth right over any property. For better appreciation the aforesaid section is quoted as under:- “52. Birth-right not recognized.-- The right of an heir-apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled under then to any interest in the property to which he would succeed as an heir if he survived the ancestor.” 13. From the perusal of the aforesaid provision it appears that the right of an heir-apparent or presumptive comes into existence for the first time on the death of the ancestor and he is not entitled till then to any interest in the property to which he would succeed as an heir if he survived the ancestor. 14. From the perusal of the aforesaid provision it appears that the right of an heir-apparent or presumptive comes into existence for the first time on the death of the ancestor and he is not entitled till then to any interest in the property to which he would succeed as an heir if he survived the ancestor. 14. A Full Bench of this Court in Imamul Hassan Choudhary v. State of Bihar and others (AIR 1982 Patna, 89), though considering a different issue as to whether a major son of a Muslim land-holder is entitled to a separate unit under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, has also held that under Mahomedan Law a son has no right or interest in the property in the life time of his father unlike Hindu Law and unlike Hindu Law, estate of a deceased Mohamedan, if he dies intestate, devolves upon his heirs at the moment of his death because under the Mahomedan Law, birth right is not recognized. A Division Bench of this Court in Mt. Haliman and ors. V. Md. Manir and ors. (AIR 1971 Patna, 385) has also held that there is no concept of a joint family in Mahomedan Law. 15. In view of the aforesaid discussions, in my considered opinion, the petitioners, being the sons of the defendant, namely, Abdul Majid, are not in a position to challenge the oral gift made by the father in favour of a daughter and the son-in-law as he himself has appeared in the suit and accepted the transaction. Therefore, it is held that they were not necessary parties to the suit concerned specially when they are not questioning the title of their father upon the suit property. Therefore, this Court is left with no other option than to hold that the claim of the petitioners is unfounded and the writ petition is devoid of any merit. 16. As a result, this writ application is dismissed. However, there would be no order as to costs.