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2015 DIGILAW 187 (GAU)

Imran Hussain v. Rulina Begum

2015-02-16

NISHITENDU CHAUDHURY

body2015
JUDGMENT : Nishitendu Chaudhury, J. 1. The Sole defendant in Title Suit No. 47 of 2004 has preferred this first appeal challenging the judgment and decree dated 24.12.2004 passed by the learned District Judge, Jorhat. By this decree, the learned trial court decreed right, title and interest of the plaintiffs as well as the defendant and passed a preliminary decree for partition of the ancestral property between the plaintiffs' on one side and the defendant on the other. Rulima Begum, Rusema Begum, their father Azizur Hussain as plaintiffs instituted Title Suit No. 47 of 2005 praying for declaration of their right, title and interest on the suit land along with Imran Hussain as sole defendant. It is stated that Schedule-A land originally belonged to Nurbahar Begum, the mother of the plaintiffs No. 1 & 2 and the defendant. The plaintiff No. 3 was the widower of Late Nurbahar Begum and thus, he also inherited 1/4th of the property after Nurbahar had died intestate. All the legal heirs were enjoying properties during pendency of the suit. In the meantime, Azizur Hussain also died and thus, the suit was continued by the two plaintiffs i.e. plaintiffs No. 1 & 2, the daughters and the defendant Imran Hussain, the son of Nurbahar Begum. According to the plaintiffs, they claimed partition of the property amicably, but the defendant did not agree to it and sought to deprive them from their right in the ancestral property. Hence, the suit proceeded for declaration of right title and interest and partition of the Schedule-A property. Schedule-B land described in the plaint are houses standing on the Schedule-A land. According to the plaintiffs, except Holding No. 420, all holdings are constructed by the original owner Nurbahar Begum and so all of them have right, title and interest to the same. The Holding No. 420 admittedly was constructed by the sole defendant, however, allegedly all the money derived from rental of the other holdings. 2. On being summoned the sole defendant appeared and submitted written statement He stated that the plaintiff No. 1 denounced Islam by marrying a Hindu, Jogesh Chandra. Saikia and gave up all her right, title and interest of the parental property. Plaintiff No. 2 similarly severed all connection with the defendant and did not make any claim as to the property and so her claim was similarly forfeited. Saikia and gave up all her right, title and interest of the parental property. Plaintiff No. 2 similarly severed all connection with the defendant and did not make any claim as to the property and so her claim was similarly forfeited. The defendant had all along been enjoying the property as sole owner of the same. Although mutation was allowed in favour of the plaintiffs as well as defendant but this did not confer any title to the plaintiffs, defendant contended. On the basis of the aforesaid contention of the parties, learned trial court framed as many as nine issues which are quoted below: "1) Whether there is cause of action for this suit? 2) Whether the suit is maintainable? 3) Whether the suit is barred by waiver of estoppels and acquiescence? 4) Whether the suit is barred by limitation? 5) Whether the suit is properly valued? 6) Whether the plaintiffs have right, title over the suit properties? 7) Whether the plaintiffs are entitled to partition of the suit properties of their specific shares and what shares the parties are entitled to? 8) Whether the plaintiffs are entitled to decree prayed for? 9) What relief or reliefs the parties are entitled to?" 3. Plaintiffs examined one witness, namely, Rulima Begum i.e. plaintiff No. 1 as P.W. 1. The defendant examined himself as sole witness. Both the parties exhibited documents. 4. After consideration of the evidence and the pleadings of the parties, the learned trial court decided issues No. 1 to 5 in favour of the plaintiffs holding that there was cause of action of the suit, that the suit is maintainable, that the suit is not barred by waver, estoppel and acquiescence, that the suit is not bared by limitation and the suit is properly valued. Coming to issue No. 6 the learned trial court held that admittedly Nurbahar Begum was the original owner of the suit properties, who died on 02.11.1982 and thereafter, both the plaintiffs and the defendant got their names duly mutated in the records of rights on 03.07.1985. Considering the objection as to entitlement of the plaintiff No. 1 for her alleged marriage with a non-Muslim, the learned trial court did not enter into dispute as to whether she had really entered into marriage with non-Muslim referring to Section 259 of the Mullah's Mohammedan law. Considering the objection as to entitlement of the plaintiff No. 1 for her alleged marriage with a non-Muslim, the learned trial court did not enter into dispute as to whether she had really entered into marriage with non-Muslim referring to Section 259 of the Mullah's Mohammedan law. Learned court held that marriage of plaintiff No. 1 with Jogesh Ch. Saikia could be irregular marriage but this would not disentitle her from her share in her ancestral property. After all, there is no material to the effect that she is renounced Islam. The objection of the defendant in regard to the claim of the plaintiff No. 2 was also rejected by the learned trial court. Learned trial court held that merely because plaintiff No. 2 stayed away from the property that would not disentitle her from the construction possession under the defendant who is a co-sharer and so unless an adverse interest has been proved any co-sharer cannot be held to have extinguished the title merely by staying away from the property because of marriage or otherwise. Having so found, the learned trial court held that after death of Nurbahar Begum her widower i.e. plaintiff No. 3 Azizur Hussain inherited four annas share of the property. The remaining twelve annas were divided into three parts out of which one part went to the two daughters jointly and two parts went to the son. After the death of Azizur Hussain, his property also liable to be divided into three parts into same proportion with 2/3rd going to the son and 1/3rd going to the daughters. The learned trial court did not believe in gift by Azizur Hussain in favour of the defendant on the ground that Azizur Hussain had gifted property to the defendant by a gift deed dated 02.11.1987. The defendant could not produce any document and so in the absence of a prove of pleading of the defendant to the effect also fell flat. With these findings, the learned trial court decreed the suit for declaration of right, title and interest of the parties and passed preliminary decree with a direction for preparation for final decree. This judgment and decree was passed on 24.12.2004. It is this judgment which is under challenge in the present appeal. 5. I have heard Mr. S. Banik, learned counsel for the appellant and Mrs. P. Bhattacharjee, learned counsel for the respondents. 6. Mr. This judgment and decree was passed on 24.12.2004. It is this judgment which is under challenge in the present appeal. 5. I have heard Mr. S. Banik, learned counsel for the appellant and Mrs. P. Bhattacharjee, learned counsel for the respondents. 6. Mr. S. Banik, learned counsel for the appellant argues that the plaintiff No. 1 having married to a Hindu, her right, title and interest to the ancestral property stood extinguished. Similarly, the plaintiff No. 2 having all along stayed away from the property and not having made claim whatsoever her claim also became stale and so it is the defendant alone who ought to have been held as a owner thereby dismissing the suit for partition. 7. Per contra, Mrs. P. Bhattacharya, learned counsel for the respondents would argue that plaintiff No. 1 did not convert herself into a non-Muslim. She continued to remain a Muslim rather her non-kitabi husband became Muslim himself by conversion. Be that as it may, even if for argument shake it is assumed that her husband did not become a Muslim even then her marriage would have been irregular because of Provision of Section 259 of the Mullah's Mohammedan Law. There is nothing in the Mohammedan law which shows that a Muslim would forfeit her right, title and interest because of her marriage with a non-kitabi. Even if the marriage itself is not void even if irregular (fasid) acquisition of title of the plaintiff was by their right of inheritance and unless law provides to the contrary their properties cannot be taken away, merely at the sweet will of the defendant. With these arguments Mrs. P. Bhattacharya would urge this Court that there is no scope to interfere with the judgment and decree of the learned trial curt and consequently, appeal is liable to be dismissed. 8. I have gone through the pleadings of the parties as well as the depositions and the exhibits. Plaintiff No. 1 exhibited herself as P.W. 1 and reiterated the pleading coming to the witness box. She has stated that property originally belonged to her mother Nurbahar Begum who died on 02.11.1982 leaving behind two daughters, the plaintiffs No. 1 & 2 and a son, namely, the sole defendant. Plaintiff No. 1 exhibited herself as P.W. 1 and reiterated the pleading coming to the witness box. She has stated that property originally belonged to her mother Nurbahar Begum who died on 02.11.1982 leaving behind two daughters, the plaintiffs No. 1 & 2 and a son, namely, the sole defendant. She also claimed that on 03.07.1985 the names of the plaintiffs were also mutated in the records of rights along with the defendant and sole defendant did not raise any objection at that stage. She claimed that Holding No. 100 was the one where her parents used to reside and from the rental income of the houses the defendant made the construction of the other holdings prior to death of her mother. The defendant used to collect the rent from the houses built by their mother and all the holdings were in the names of their mother only. She further stated that on 04.05.1967 she got married to one Jahir Hussain Saikia. She asserted that she is a Muslim and before her marriage her husband also became Muslim. He was an employee in ASEB at Margherita. Although he was a Hindu prior to his conversion but marriage was solemnised as per the Muslim law and custom and he gave mahrana of Rs. 500/- during the marriage. She proved Exhibit-'Ga' as the Kabin-nama of the marriage to show that marriage was held as per Shariat law. Exhibit-'gha' is the affidavit which would come to show that her husband became a Muslim. She said that her younger sister was given to marriage and she has been staying with her husband and their father died in the house of that daughter only. After death of their mother, the defendant continued collecting rents but did not give any share to them. The defendant does not have any other job. She said that when the plaintiffs claimed their share from the defendant, the defendant did not give anything and rather deserted them. Under such circumstances, filing of the suit for declaration and partition became necessary. In course of her cross-examination, she reiterated that they have filed the suit against Imran Hussain and that the plaintiff No. 3 Azizur Hussain died during pendency of the suit. On being questioned, she stated that original name of her husband was Jogeshar Ch. Under such circumstances, filing of the suit for declaration and partition became necessary. In course of her cross-examination, she reiterated that they have filed the suit against Imran Hussain and that the plaintiff No. 3 Azizur Hussain died during pendency of the suit. On being questioned, she stated that original name of her husband was Jogeshar Ch. Saikia but before marriage he was made Muslim by following the rituals and named as Jakir Hussain Saikia. Affidavit sworn by her husband was the proof that he became a Muslim. Her husband died in the meantime and she got money from provident fund, gratuity etc. She stated that in the Kabin-nama there is description about her marriage and she is still a Muslim. She admitted that Holding No. 420 was not in existence but subsequently, she stated that all the houses were let out by her deceased mother. Initially her mother used to collect the rents and after death of her mother defendant started doing the same. Although, she could not say the holding numbers of all the holdings but she stated that there were 4 to 5 holdings on the suit land. She claimed to be on the suit land since long time but she could not say the date since when she has been in possession of the suit land. From such cross-examination no contradiction is noticeable. She admitted that complete property belonged to her mother Nurbahar Begum and after her death, it devolved on her widower Azizur Hussain and two daughters, who are plaintiffs and sole son i.e. the sole defendant herein. She is a Muslim till date and so there is no question of her abandonment of the ancestral property. D.W. 1 is the defendant himself. He stated that the plaintiff No. 1 is his elder sister and plaintiff No. 2 is the younger sister. Azizur Hussain was his father and died on 17.10.1997. He stated that plaintiff No. 1 now resides with her husband who is still a Hindu to his knowledge even after marriage with the plaintiff No. 1. He gave the description of the suit land and claimed that all the houses are under his occupation. He, however, stated in his own evidence that the houses were constructed by his maternal grandfather. His mother predeceased his father and he also died in the year 1982. He gave the description of the suit land and claimed that all the houses are under his occupation. He, however, stated in his own evidence that the houses were constructed by his maternal grandfather. His mother predeceased his father and he also died in the year 1982. He studied in Prince of Wales College and obtained a diploma from the said institution in Engineering. Thereafter, he started business as a Government contractor. Apart from that he also ran business of electrical goods. RCC house with holding No. 393 was constructed by his mother but it was completed by him. Her mother completed construction of the houses with the money paid by him. He further stated that plaintiff No. 1 eloped with a Hindu in the year 1967 and has been leaving separately since then. By her marriage with a Hindu, she forfeited all her right of inheritance from the property left behind by her mother. The plaintiff No. 2 also married and she did not keep any relation with the defendant. He has been looking after the property all alone. The plaintiff No. 2 initially filed a PP Case No. 129 of 1986-87 and plaintiff No. 3 filed a PP Case No. 128/1986-87. Similarly, plaintiff No. 1 filed PP Case No. 130-1986/87. Exhibit-1 is the final order passed in P.P. Case No. 129/1986-87. Thus, Exhibit-2 is the final order passed in P.P. Case No. 128/1986-87 and Exhibit-3 is the final order of P.P. No. 130/1986-87. Out of five holdings, four holdings stand in his name while rest stood in the name of his father. He has been paying municipality tax all alone and Exhibits-4 to 8 are the receipts of municipal tax payments. According to him, plaintiffs did not have any right, title and interest on the property and he alone is the son and in possession of the same. In course of his cross-examination, he admitted that the plaintiffs and he himself are children of the same parents and all of them are Sunni Mohammedan. Her younger sister got married in the year 1997 after death of his mother. He admitted that he did not participate in the ceremony following his father's death. After death of his mother, he got the holdings converted into his name. He denied any knowledge of Jogesh Ch. Saikia being a Muslim and his name as Jakir Hussain Saikia. Her younger sister got married in the year 1997 after death of his mother. He admitted that he did not participate in the ceremony following his father's death. After death of his mother, he got the holdings converted into his name. He denied any knowledge of Jogesh Ch. Saikia being a Muslim and his name as Jakir Hussain Saikia. He admitted that he described husband of the plaintiff as Jakir Hussain Saikia. He could not say if the plaintiff No. 1 was married as per Muslim rights. He, however, admitted that after death of his mother suit land was mutated in the name of the sisters along with him and Exhibit-Kha is the relevant entry of the Jamabandi. He said that he never raised any demand about the suit land during the life time of his mother. But after her death he has been collecting rents from the tenants. He admitted that he does not know how properties are inherited under Mohammedan law. 9. From the aforesaid evidence led by the parties it is apparent that parties have admitted basic facts. The admitted facts are that original owner of the Schedule-A properties was Nurbahar Begum. She died on 2.11.1982. Thereafter, on 3.7.1985 the names of her widower Azizur Hussain plaintiff No. 3 as well as the plaintiff No. 1 & 2, her daughters were also mutated in the records of rights. The defendant does not appear to have raised any objection as to the mutation of the plaintiffs in the records of rights. Mutation of a person is made by the land Revenue Authority. On being satisfied as to prima facie title and possession, once it is found that the defendant being aware of the fact did not object to it, a question may arise about validity of his subsequent objection. Be that as it may, mutation itself cannot confer any title to anyone. Title is to flow in accordance with the principle of inheritance or by any of the means of transfer of property as prescribed under the law. Here in this case both the sides are claiming inheritance to the property. Both the parties are Mohammedan and so inheritance has to be guided by the principles initiated under Section 63 of the Mullah's Mohammedan Law. Here in this case both the sides are claiming inheritance to the property. Both the parties are Mohammedan and so inheritance has to be guided by the principles initiated under Section 63 of the Mullah's Mohammedan Law. Sunni sharers of Islam follows Hanifi inheritance and the table is furnished after Section63 of the Muslim Law showing quantum of shares and residuaries. It appears that husband inherits 1/4th of the property, however, when there is son and daughter. So when Nurbahar Begum died on 02.11.1982 Azizur Hussain inherited 1/4th of the property and remaining 3/4th was inherited by her sons and daughters in ratio. The son got 2/3 rd of the property where as 1/3 rd went to the share of the two daughters jointly and severally. After Azizur Hussain died, similarly his property devolved on the plaintiffs and the defendant in the same ratio. This is because even if it is assumed for the time being that the plaintiff No. 1 was married to a Hindu, in that event her marriage would be merely irregular and not void. Under Section 253 of Mullah's Mohammedan Law Muslim marriage can be divided into three clauses:- (1) Sahih (valid), (2) Fasid (irregular) & (3) vatil (void). If a Muslim marries a non-kitapi that marriage is merely an irregular and not void. There is no provision in the Mohammedan Law to show that if a lady undergoes irregular marriage her claim to ancestral property would be forfeited. Property is inherited by provision of law and divestment of property has to be also by a provision of law. Both the plaintiffs and defendant shall get right of inheritance to the property of Nurbahar Begum. There is nothing in law, prescribing that plaintiff No. 1 would have forfeited her right because of her irregular marriage. This being the position whether the plaintiff No. 1 has proved her marriage with her husband as per Muslim rituals or not she cannot forfeit her claim into property. Under such circumstances, even after death of the plaintiff No. 3, the plaintiffs No. 1 & 2 will get 1/3rd of that part. The defendant got 1/3rd of that part which was inherited by Azizur Hussain after death of Nurbahar Begum. Under such circumstances, even after death of the plaintiff No. 3, the plaintiffs No. 1 & 2 will get 1/3rd of that part. The defendant got 1/3rd of that part which was inherited by Azizur Hussain after death of Nurbahar Begum. On totality of the whole event it is clear that out of the whole suit property owned by Nurbahar Begum after death of Azizur Hussin 1/3rd will go jointly to the plaintiffs and 2/3rd will go in favour of the sole defendants. So in discharge of obligation under Section XX Rule 18 it is held that the plaintiffs No. 1 & 2 got 1/3rd of the property jointly and the defendant got 2/3 rd thereof alone. The share of the plaintiffs No. 1 & 2 therefore, will be 1/6 each. This being the position there is no scope to interfere with the impugned judgment and decree except the clarification referred to above. Accordingly, this first appeal stands disposed of. No order as to costs.