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2014 DIGILAW 534 (CAL)

Nurjahan Bewa v. Manir Sk

2014-06-19

SOUMEN SEN

body2014
JUDGMENT Soumen Sen, J : This second appeal is directed against the judgment and decree passed by the learned District Judge, Maldah in Title Appeal No.2 of 2009 modifying in part the decree passed by the trial Court. At the time of admission of the appeal, the following substantial question of law was framed : “Whether the 1st Appellate Court was right in modifying the decree of the trial Court by observing that the appellant being the mother of the deceased would be entitled to 1/6th Share only and not the entire estate”. One Ablesh Seikh instituted a suit for declaration of title and permanent injunction. On the death of Ablesh Seikh, Nurjahan Bewa as mother of the said plaintiff was substituted as plaintiff. In the original plaint the case made out by the plaintiff appears to be that the suit property originally belonged to one Salim Seikh, the father of the original plaintiff. During his lifetime, he executed a registered Heba–Bill–Aewaz in favour of the original plaintiff. Thereafter, Salim Seikh died leaving behind his wife Nurjahan and his son Ablesh as his only legal heirs. Since Ablesh was minor at the time of death of his father, his mother Nurjahan used to look after the properties inherited by him from his father Salim as well as the suit property which he had acquired under the said Heba. The defendants have no right in the suit property. The defendants were disturbing the peaceful possession and enjoyment of the property by the original plaintiff and thereafter by the present plaintiff in various manner. The plaintiff’s title to the property by reason of such interference by the defendants has become clouded. On the aforesaid basis the plaintiff filed a suit for declaration of title and permanent injunction. The said plaint was amended after the defendants entered appearance and have filed the written statement disclosing the fact that the defendants have purchased the suit property under 15 separate sale deeds from Nurjahan and since then they are in possession of the land exclusively. The said written statement filed by the defendant no. 3 to 8 disclosed that the husband of the present plaintiff married two other ladies namely Meghi Bibi and Duwa Bibi. At the time of his death, Salim Seikh had left behind one son and six daughters. The said written statement filed by the defendant no. 3 to 8 disclosed that the husband of the present plaintiff married two other ladies namely Meghi Bibi and Duwa Bibi. At the time of his death, Salim Seikh had left behind one son and six daughters. It was stated that they were the step son and step sisters of the deceased original plaintiff. On the basis of such disclosure the plaintiff amended the plaint by impleading the said step son and step daughters and prayed for a declaration that the said purported sale deeds are void ab initio. The plaintiff has also prayed for declaration of title in respect of the suit property. The defendant Nos.9 to 10 stated in their written statement that they have no claim or interest in the suit land and are not necessary parties. The trial Judge on the basis of the pleadings framed the following issues:- (i) Is the suit maintainable in present form? (ii) Is the suit bad for defect of the parties? (iii) Is the suit barred by laws of limitation? (iv) Has the plaintiff in title and possession in suit land? (v) Is the plaintiff entitled to get a decree as prayed for? (vi) To what other relief/reliefs, if any, is the plaintiff entitled? The trial Judge on consideration of the evidence both oral and documentary held that after the death of Salim, the suit land was being looked after by his wife, the mother of Ablesh on behalf of the said minor son. The Deed of Gift made by Salim in favour of Ablesh is an admitted document. The plaintiff is claiming the suit land on the basis of inheritance as the mother of Ablesh since Ablesh had no other legal heirs. The title of the plaintiff to the suit land prior to such alleged sale is not in dispute. The learned trial Court by referring to Article 353 of the Principle of Mahomedan Law by the celebrated Author D.F Mulla held that since the said plaintiff was only to look after the minor’s interest in the property, she was not authorized to sell the said property in favour of the defendant Nos.1 to 8 and, accordingly, the said sale was void ab initio. Moreover, under the Mahomedan Law, widow mother is not the legal guardian of her minor son. Moreover, under the Mahomedan Law, widow mother is not the legal guardian of her minor son. Under the Muslim Law only four categories of persons are entitled to be the guardian of the minor’s property, namely, the father of the minor, the executor of the father’s Will, the father’s father, the executor of the Will of the father’s father in the order and, accordingly, the mother could not have sold the said property in the capacity as guardian of her minor son. It was further held that the said deeds of sale are void ab initio under Section 28 of the Registration Act. The said deeds ought to have been registered at the Sadar Registry Office as the concerned property is situated within English Bazar Police Station and not within the jurisdiction of Kaliachak Sub-Registry Office. The learned trial Judge on consideration of the evidence of PWs 2 to 4 and the Government rent receipts as well as relevant record of rights held that the plaintiff is in possession of the said land. On the basis of the aforesaid finding, the suit was decreed in favour of the plaintiff holding that the plaintiff has exclusive right, title, possession in the suit property to the extent of 6 anas. The defendants were permanently restrained from disturbing the plaintiff’s peaceful possession in the suit land in any manner whatsoever. Being aggrieved by the said judgement and decree two of the defendants, namely, Monir Seikh and Satu Seikh preferred an appeal. The Appellate Court on examination of the evidence held that in terms of provisions of Article 63 of the Mahomedan law, the mother of Ablesh is entitled to 1/6th share when Ablesh died without any full brother or full sister. The appellate court after taking into consideration the fact that the plaintiff in the plaint has admitted the existence of the said step son and step daughters of the said deceased Salim Seikh arrived at a conclusion that in view of Article 63 of the Mohamedan Law the mother of Ablesh is entitled to 1/6th share when Ablesh died without any full brother or full sister. Mr. Pinaki Ranjan Mitra, learned Advocate appearing for the appellant submits that the appellate court has made out a third case which was not permissible in law. Mr. Pinaki Ranjan Mitra, learned Advocate appearing for the appellant submits that the appellate court has made out a third case which was not permissible in law. It is argued that the defendants have failed to prove that they are the step son and step daughters of deceased Salim Seikh and in absence of such evidence it was not open before the appellate court to restrict the declaration of shares of the mother of Ablesh to 1/6th. A fact which is evident need not be proved. From the pleadings disclosed in the proceeding, it appears that the plaintiff has admitted the fact that the said Salim Seikh died leaving behind one son and six daughters besides the original plaintiff. The defendant no. 3 to 8 have disclosed the said facts. Consequent upon the said disclosure, the plaintiff impleaded the said step son and step daughters of Salim Seikh and the suit proceeded accordingly. The plaintiff in the amended plaint sought to deny the share of the property to such step son or step daughters on a specious plea that there were instrumental in murdering Ablesh and accordingly they have no right to claim inheritance. Accordingly, it logically follows that unless the said step son or step daughters suffer from any legal disability they would be entitled in law to claim share in the property following the Muslim Personal Law as mentioned in Article 63 of the Molla’s Principles of Mohamedan Law which has been followed by the learned appellate court while modifying the decree passed by the learned trial judge. The appellate court, however, returned verdict in respect of the other issues in favour of the plaintiff. In view of aforesaid, this court finds no reason to interfere with the findings arrived at by the appellate court. The order passed by the appellate court is affirmed. The second appeal fails. However, there shall be no order as to costs.