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2024 DIGILAW 75 (GUJ)

Daud Valibhai Kakal v. Kadar Daud Kakal

2024-01-09

SANGEETA K.VISHEN

body2024
JUDGMENT : Sangeeta K. Vishen, J. 1. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal. 2. Issue rule, returnable forthwith. Mr. Jainish P. Shah, learned advocate waives service of notice of rule on behalf of the respondent no.1. Though served, none appear for respondent nos.2 and 3. 3. Captioned Civil Revision Application, has been filed challenging the judgment and order dated 03.10.2019 passed by the 11th Additional Senior Civil Judge, Jamnagar in Regular Civil Suit No. 130 of 2019 whereby the application Exh. 13 seeking rejection of the plaint, has not been accepted. 4. Tersely stated are the facts: 4.1 The respondent no. 1 has instituted a Regular Civil Suit No. 130 of 2019 (hereinafter referred to as "the suit") seeking declaration, cancellation of the gift deed and permanent injunction against the petitioners and the respondent nos. 2 and 3, that is, the authorities with respect to revenue survey no. 154/paiki 3, new survey no. 355 admeasuring 8103 sq. mts. (hereinafter referred to as "the land in question"). Registered gift deed dated 24.07.2018 has been executed by the petitioner no. 1 in favour of the petitioner nos. 2 to 4 during his lifetime. Being aggrieved the respondent no. 1 i.e. the original plaintiff has filed the suit challenging the gift deed on the ground that land in question in the hands of the petitioner no. 1 being an ancestral property, he has a share in it. 4.2 In the suit, the petitioners filed an application Exh. 13 seeking rejection of plaint, inter alia, on the ground of bar of provisions of Mahomedan Law so also section 80 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). Application Exh. 13 was heard and the learned 11th Additional Senior Civil Judge rejected it by passing an order dated 03.10.2019 and hence, the captioned revision application. 5. Mr. Jenil Shah, learned Advocate appearing for the petitioners, has submitted that the land in question has been gifted as per the Mahomedan Law. There is no concept of ancestral property and a Muslim can gift his property as per his will. The birth right of an heir is not recognized under the principles of Mahomedan Law and the right of an heir comes into existence for the first time after the death of the ancestor. There is no concept of ancestral property and a Muslim can gift his property as per his will. The birth right of an heir is not recognized under the principles of Mahomedan Law and the right of an heir comes into existence for the first time after the death of the ancestor. Also, the trial Court, ought to have considered that under the provisions of the Mahomedan Law a father can execute a gift deed in respect of the whole of the property and not one third share. Besides, the plaint fails to disclose any cause of action and hence, it ought to have been rejected. 5.1. It is submitted that since there is no concept of ancestral or self-acquired property under the provisions of the Mahomedan Law and every property devolves in the same manner irrespective of its nature, it would be impermissible for the heir to challenge a transaction executed by a father in favour of other children during his lifetime. There is no cause of action available to the respondent no.1, the suit, therefore challenging the registered gift deed by the petitioner no. 1 in favour of petitioner nos. 2 to 4, his sons, would not be maintainable. 5.2. It is submitted that as per the Mahomedan Law by Mulla, Chapter VI titled 'Inheritance - General Rules', describes the heritable property. It states that there is no distinction in the Mahomedan Law of inheritance between the movable and immovable property or between ancestral and self-acquired property. Moreover, in the very same chapter the principle of birth right is also discussed and states that 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 until then to any interest in the property to which he would succeed as an heir, if he survived the ancestor. Considering the said provisions, the suit with such reliefs, is not maintainable. 5.3. It is next submitted that Paragraph 142 of Chapter XI titled 'Gifts' provides that a gift as distinguished from a Will, may be made of whole of the donor's property, and it may be made even to an heir. Considering the said provisions, the suit with such reliefs, is not maintainable. 5.3. It is next submitted that Paragraph 142 of Chapter XI titled 'Gifts' provides that a gift as distinguished from a Will, may be made of whole of the donor's property, and it may be made even to an heir. It is submitted that therefore, Mahomedan Law permits a man to gift his entire property during his lifetime so as to even disinherit his heirs and thus, the observation of the trial Court that one-third of the property only could have been gifted, would be erroneous. 5.4. Reliance is placed on the oral judgment dated 03.10.2022 passed in Civil Revision Application no. 12 of 2020 in the case of Abhishek Viralbhai Ajmera vs. LH of Decd. Ibrahimbhai Vajirbhai Pathan. In the said case, the issue was identical. Contention was raised that the plaintiff therein had no authority to sell the land since the same was ancestral property. This Court, considering the plaint so also, the full bench judgment of Patna High Court in the case of Imamul Hassan Choudhary vs. State of Bihar reported in AIR 1982 Patna 89, held and observed that the father of the plaintiff therein had all rights, title and interest to dispose of the suit property till he was alive. 5.5. It is further submitted that the learned Judge has rejected the application Exh. 13 on the ground that considering the provision of the gift, to become a valid gift, the requisites of the gift are essential, namely, the publication, acceptance and delivery of possession. More than one-third of the property, if is to be given by way of gift, the dispute can be decided only by taking evidence. The learned Judge was also of the opinion that as per the plaint, the possession has not been handed over to the defendants and it is with the plaintiff and his brothers. It is submitted such a reasoning given by the trial Court would be erroneous for, the applicable provisions are required to be seen. 5.6. The learned Judge was also of the opinion that as per the plaint, the possession has not been handed over to the defendants and it is with the plaintiff and his brothers. It is submitted such a reasoning given by the trial Court would be erroneous for, the applicable provisions are required to be seen. 5.6. It is submitted that a bare reading of the plaint suggests that the challenge laid by the plaintiff to the gift deed was on the grounds, namely, (i) that the land is an ancestral land/property, (ii) the petitioner no.1 in collusion with petitioner nos.2 to 4 and respondent no.2 in collusion with each other got the entries posted in the revenue record and (iii) suppressing the rights of other brothers and sisters the gift deed has been executed. It is submitted that nowhere in the plaint, the plaintiff, i.e. respondent no.1 has alleged that the land was transferred to him and his other three brothers and mother at any time in past. Paragraph 8, which is cause of action, only suggests that no consent has been taken of other brothers and sisters and their mother for gifting the ancestral property. The possession has not been handed over and the plaintiff has not been given his share. With this that the suit has been filed. Therefore, it was incorrect on the part of the learned Judge to have considered the requisites of the gift so as to come to the conclusion that for determining the validity, trial is must. Only the averments made in the plaint ought to have been considered and not the reply filed to the application Order VII Rule 11 of the Code. Such observations by the learned Judge were bad in law. 5.7. Reliance is also placed on the judgment in the case of Maharaj Shri Manavendrasinhji Ranjitsinhji Jadeja vs. Rajmata Vijaykunverba Wd/o Late Maharaja Mahendrasinhji reported in (1999) 1 GLR 261 . It has been held and observed that while deciding the application filed under Order VII Rule 11(a) of the Code of 1908 the Court has to apply the statutory law as well as the case law to the facts pleaded in the plaint and find out whether any cause of action is disclosed or not. It has been held and observed that while deciding the application filed under Order VII Rule 11(a) of the Code of 1908 the Court has to apply the statutory law as well as the case law to the facts pleaded in the plaint and find out whether any cause of action is disclosed or not. If such an attempt is made it can hardly be said that the merits of the case are taken into consideration while deciding the application for rejection of the plaint as not disclosing any cause of action. The trial Court ought to have undertaken the inquiry to decide as to whether any cause of action has been made out in the suit or not. It is therefore submitted that having not done so and considering the facts involved and law applicable, the application Exh. 13, ought to have been allowed and the plaint ought to have been rejected on the ground that the plaint fails to disclose any cause of action and was liable to be rejected under the provisions of Order VII Rule 11 of the Code of 1908. 6. On the other hand, Mr. Jainish Shah, learned Advocate appearing for the respondent while vehemently opposing the revision application submitted that the Mahomedan Law is not a law as per Article 13 of the Constitution of India. Reliance is placed on the full bench judgment of the High Court of Bombay in the case of The State of Bombay vs. Narasu Appa Mali reported in AIR 1952 Bom 84 . It is submitted that the issue was whether the personal laws applicable to the Hindus and Mahomedans are laws in force within the meaning of Article 13(1) of the Constitution. It has been held and observed that personal laws cannot be said to have been passed or made by a legislature or other competent authority and do not fall within the purview of the expression "laws in force" as contained in Article 13(1) of the Constitution of India. Therefore, Mahomedan Law would not be covered within the meaning of the provisions of Order VII Rule 11(d) of the Code of 1908 and it cannot be said that it is barred by law. Therefore, Mahomedan Law would not be covered within the meaning of the provisions of Order VII Rule 11(d) of the Code of 1908 and it cannot be said that it is barred by law. It is submitted that the Hon'ble Supreme Court in the case Shayara Bano vs. Union of India reported in (2017) 9 SCC 1 in paragraph 51, has noted that it would be unnecessary for it to decide whether the judgment in the State of Bombay vs. Narasu Appa Mali is good law. It has also been pointed that in a suitable case, it may be necessary to have a re-look at the judgment. It is therefore, submitted that the Apex Court, has left the issue open to be decided in future and therefore, the principle laid down in State of Bombay vs. Narasu Appa Mali (supra) applies to the facts on hand. 6.1. It is further submitted that Section 51 of the Mahomedan Law, deals with heritable property. It provides that there is no distinction between movable and immovable property or between ancestral and self-acquired property. It is submitted that the Mahomedan Law does not recognize a joint family as a legal entity. Additions to the joint estate by the managing member of a Mahomedan family will be presumed to have been made from the joint estate and will be for the benefit of all the members. It has also been provided in Section 51 that if all the members of the family live in commensality and are in joint possession of family properties, it will be for the person claiming property as his own to show that the source of the property was his own. Therefore, the property being an ancestral property and joint property, the respondent - original plaintiff will have right over the same. Moreover, there is no forum available to challenge the gift deed and therefore, it has to go for trial. It is therefore submitted that the suit, has rightly been filed by the respondent, that is, original plaintiff and the application Order VII Rule 11 of the Code has rightly been considered and rejected by the Court below for, the gift deed so also validity of the gift deed, are to be decided at the time of trial. 6.2. It is therefore submitted that the suit, has rightly been filed by the respondent, that is, original plaintiff and the application Order VII Rule 11 of the Code has rightly been considered and rejected by the Court below for, the gift deed so also validity of the gift deed, are to be decided at the time of trial. 6.2. It is next submitted that considering the provisions of the Mahomedan Law, there is no bar that the gift deed cannot be challenged. Also, there is no bar that the civil court has no jurisdiction and therefore, whether the plaintiff has any right or not; it is to be decided at the time of the trial. It is submitted that there is no bar to the effect that the Civil Court, has no jurisdiction to test the validity of the gift and hence, in absence of any bar either under the Mahomedan Law or for that matter under the Code of Civil Procedure, challenge to the gift deed is permissible. In both the statutes, there has to be a bar and the bar has to be a specific one. In support of such contention, reliance is placed on the judgment of the Apex Court in the case of Ganga Bai vs. Vijay Kumar & Ors. reported in (1974) 2 SCC 393 wherein, it has been held and observed that there is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. It has been further held and observed that the suit requires no authority of law and it is enough that no statute bars the suit. Therefore, no interference is called for and the captioned civil revision application deserves to be rejected. 7. Mr. Jenil M. Shah, learned advocate, in response, has placed reliance on the judgment in the case of Bharvagi Constructions and Ors. vs. Kothakapu Muthyam Reddy and Ors. reported in AIR 2017 SC 4428 to contend that the expression "law" occurring in clause (d) of Rule 11 of Order VII also includes "judicial decision of the Supreme Court". Therefore, the order deserves to be interfered with and the plaint be rejected accordingly. 8. vs. Kothakapu Muthyam Reddy and Ors. reported in AIR 2017 SC 4428 to contend that the expression "law" occurring in clause (d) of Rule 11 of Order VII also includes "judicial decision of the Supreme Court". Therefore, the order deserves to be interfered with and the plaint be rejected accordingly. 8. Heard the learned advocates appearing for the respective parties and perused the documents made available on record. 9. As stated herein above, the issue revolves around execution of the gift deed by the petitioner no.1, that is, father in favour of petitioner nos.2 to 4, that is, the sons - the original defendants. The gift deed has been executed with respect to the land in question. Being aggrieved, the respondent, that is, original plaintiff, one of the sons had preferred a suit, inter alia, seeking declaration that the registered gift deed, is null and void and the entry posted on the basis thereof, in the revenue record, also be treated as cancelled. Consequential prayer, prayed for by the respondent, that is, original plaintiff is restraining the petitioner nos. 2 to 4 from entering into suit property and/or disturbing possession of the respondent, that is, original plaintiff. 10. As is discernible from the record, the petitioners preferred an application Exhibit 13 under the provisions of Order VII Rule 11 of the Code seeking rejection of the plaint. The application was based, raising the ground that the land in question belongs to the petitioner no.1 and is of his ownership and in his possession and during his lifetime, he has gifted the land in question to the petitioner nos.2 to 4 vide registered gift deed so also the possession. The ground raised is also that, the father during his lifetime can dispose of the property as per his own will and wish and that the respondent no.1 - original plaintiff will have no right in the property of the petitioner no.1. With this, request was made to reject the plaint. Reply to the application Exhibit 13 was filed raising various contentions one of which, is that the petitioner no.1, that is, defendant no.1 has not acquired the land in question in his individual capacity, but is an ancestral one. With this, request was made to reject the plaint. Reply to the application Exhibit 13 was filed raising various contentions one of which, is that the petitioner no.1, that is, defendant no.1 has not acquired the land in question in his individual capacity, but is an ancestral one. Despite the wife and six children being there, keeping vengeance and in exclusion of the respondent no.1, the mother and two brothers, the gift deed has been executed in favour of the petitioner nos.2 to 4. It is also alleged that gift deed executed is false and on that basis, an entry has been posted in the revenue record. That the petitioner no.1, has several years ago, given the land in question to the respondent no.1, and to two brothers, mother and sister and back then, the land in question has been in their possession and occupation. Contention raised is also that the land in question has been gifted without taking any consent of the other family members, which would be against the law. With this, that the application Exhibit 13, was opposed by the respondent no.1 i.e. original plaintiff. 11. Trial Court, has rejected the application Exhibit 13, considering the reply to the application, so also the provisions of Order VII Rule 11 of the Code. It recorded the stand taken by the petitioner no.1 to the effect that the land in question was of his ownership and in his possession so also the gift in favour of the petitioner nos.2 to 4. The learned Judge has taken note of the fact that the land in question, is ancestral property as stated in the plaint and the possession of the land in question is with the respondent no.1 i.e. the original plaintiff. The Trial Court, took note of the gift deed and considering the requisites of the gift as per the Mahomedan Law, it observed that for a valid gift, the elements of declaration of the gift, acceptance and delivery of possession, are necessary and the gift, cannot be with respect to one third of the property. Considering the nature of prayers prayed for, the learned Judge was of the opinion that all the aspects can be decided only after taking evidence. The application came to be rejected and the judgment, is the subject matter of challenge before this Court. 12. Considering the nature of prayers prayed for, the learned Judge was of the opinion that all the aspects can be decided only after taking evidence. The application came to be rejected and the judgment, is the subject matter of challenge before this Court. 12. Before adverting to the issue of execution of the gift deed by the petitioner no.1, the judgment of Bombay High Court in the case of State of Bombay vs. Narasu Appa Mali (supra) and its applicability to the facts on hand, requires to be considered. The said judgment has been cited by Mr. Jainish P. Shah, learned advocate to contend that personal law is not a law as referred to in Order VII Rule 11 (d) of the Code and therefore, the provisions would not be attracted. Specific reference is made to paragraphs 19 to 21 of the said judgment. It is also argued that the judgment has been referred to in the judgment of the Apex Court in the case of Shayara Bano vs. Union of India (supra) wherein, in paragraph 51 it has been pointed out that it is unnecessary to decide whether the judgment in the case of State of Bombay vs. Narasu Appa Mali (supra) is good law. In view of the discussion hereinafter, reliance placed on the said judgment would be of no help to the respondent. 13. It is pertinent to note that in the case of Shayara Bano. vs. Union of India (supra) the Hon'ble Supreme Court, has referred to the judgment in the case of Sant Ram vs. Labh Singh & Ors. reported in AIR 1965 SC 314 and more particularly, paragraph 4, which reads thus: "4. It is hardly necessary to go into ancient law to discover the sources of the law of pre-emption whether customary or the result of contract or statute. In so far as statute law is concerned Bhau Ram's case, (1962) Supp 3 SCR 724 : AIR 1962 SC 1476 ) decides that a law of preemption based on vicinage is void. The reasons given by this Court to hold statute law void apply equally to a custom. The only question thus is whether custom as such is affected by Part III dealing with fundamental rights and particularly Art. 19(1)(f). Mr. The reasons given by this Court to hold statute law void apply equally to a custom. The only question thus is whether custom as such is affected by Part III dealing with fundamental rights and particularly Art. 19(1)(f). Mr. Misra ingeniously points out in this connection that Art. 13(1) deals with "all laws in force" and custom is not included in the definition of the phrase "laws in force" in clause (3)(b) of Art. 13. It is convenient to read Art. 13 at this stage: "13.(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,- (a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) "law in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas." The argument of Mr. Misra is that the definition of "law" in Art. 13(3)(a) cannot be used for purposes of the first clause, because it is intended to define the word "law" in the second clause. According to him, the phrase "laws in force" which is used in clause (1) is defined in (3)(b) and that definition alone governs the first clause, and as that definition takes no account of customs or usage, the law of pre-emption based on custom is unaffected by Art. 19(1)(f). In our judgment, the definition of the term "law" must be read with the first clause. If the definition of the phrase "laws in force" had not been given, it is quite clear that the definition of the word "law" would have been read with the first clause. The question is whether by defining the composite phrase "laws in force" the intention is to exclude the first definition. If the definition of the phrase "laws in force" had not been given, it is quite clear that the definition of the word "law" would have been read with the first clause. The question is whether by defining the composite phrase "laws in force" the intention is to exclude the first definition. The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. in other words, laws, which were not in operation, though on the statute book, were included in the phrase "laws in force". But the second definition does not in any way restrict the ambit of the word "law" in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition. There are two compelling reasons why custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force". Firstly, to hold otherwise, would restrict the operation of the first clause in such ways that none of the things mentioned in the, first definition would be affected by the fundamental rights. Secondly, it is to be seen that the second clause speaks of "laws" made by the State and custom or usage is not made by the State. If the first definition governs only cl. (2) then the words "custom or usage", would apply neither to cl. (1) nor to cl. (2) and this could hardly have been intended. It is obvious that both the definitions control the meaning of the first clause of the Article. The argument cannot, therefore, be accepted. It follows that respondent No. 1 cannot now sustain the decree in view of the prescriptions of the Constitution and the determination of this Court in Bhau Ram's case, ((1962) Supp 3 SCR 724 : AIR 1962 SC 1476 ). The appeal will be allowed but in the circumstances of the case parties will bear their costs throughout." 14. It follows that respondent No. 1 cannot now sustain the decree in view of the prescriptions of the Constitution and the determination of this Court in Bhau Ram's case, ((1962) Supp 3 SCR 724 : AIR 1962 SC 1476 ). The appeal will be allowed but in the circumstances of the case parties will bear their costs throughout." 14. In the above connection, apt would also be the judgment of the Apex Court in the case of Indian Young Lawyers Assn. (Sabrimala Temple) vs. State of Kerala reported in (2019) 11 SCC 1 wherein, the judgment of State of Bombay vs. Narasu Appa Mali (supra) was considered under the heading of "The Ghost of Narasu". Apex Court, in paragraphs 375 to 393 and 397 has observed thus:- "K. The Ghost of Narasu 375. The Respondents have urged that the exclusion of women from the Sabarimala temple constitutes a custom, independent of the Act and the 1965 Rules. It was contended that this exclusion is part of 'institutional worship' and flows from the character of the deity as a Naishtika Brahmachari. During the proceedings, a submission was addressed on the ambit of Article 13 and the definition of 'laws in force' in clause 1 of that Article. Article 13 of the Constitution reads thus: "13. Laws inconsistent with or in derogation of the fundamental rights. - (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,- (a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4) Nothing in this article shall apply to any amendment of this Constitution made under article 368." 376. A Division Bench of the Bombay High Court in The State of Bombay v. Narasu Appa Mali, considered the ambit of Article 13, particularly in the context of custom, usage and personal law. The constitutional validity of the Bombay Prevention of Hindu Bigamous Marriages Act 1946 was considered. It was contended that a provision of personal law which permits polygamy violates the guarantee of non- discrimination under Article 15, and that such a practice had become void under Article 13(1) after the Constitution came into force. The Bombay High Court considered the question of "whether in the expression 'all laws in force' appearing in Article 13(1) 'personal laws' were included ". Chief Justice Chagla opined that 'custom or usage' would be included in the definition of 'laws in force' in Article 13(1). The learned Chief Justice held: "15...The Solicitor General's contention is that this definition of "law" only applies to Article 13(2) and not to Article 13(1). According to him it is only the definition of "laws in force" that applies to Article 13(1). That contention is difficult to accept because custom or usage would have no meaning if it were applied to the expression "law" in Article 13(2). The State cannot make any custom or usage. Therefore, that part of the definition can only apply to the expression "laws" in Article 13(1). Therefore, it is clear that if there is any custom or usage which is in force in India, which is inconsistent with the fundamental rights, that custom or usage is void." Hence, the validity of a custom or usage could be tested for its conformity with Part III. However, the learned Chief Justice rejected the contention that personal law is 'custom or usage': "15...Custom or usage is deviation from personal law and not personal law itself. The law recognises certain institutions which are not in accordance with religious texts or are even opposed to them because they have been sanctified by custom or usage, but the difference between personal law and custom or usage is clear and unambiguous." Thus, Justice Chagla concluded that "personal law is not included in the expression "laws in force" used in Article 13(1). 377. 377. Gajendragadkar, J. (as the learned Judge then was) differed with the Chief Justice's view that custom or usage falls within the ambit of Article 13(1). According to Gajendragadkar, J. 'custom or usage' does not fall within the expression 'laws in force' in Article 13(1): "26...If custom or usage having the force of law was really included in the expression "laws in force," I am unable to see why it was necessary to provide for the abolition of untouchability expressly and specifically by Article 17. This article abolishes untouchability and forbids its practice in any form. It also lays down that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. Untouchability as it was practised amongst the Hindus owed its origin to custom and usage, and there can be no doubt whatever that in theory and in practice it discriminated against a large section of Hindus only on the ground of birth. If untouchability thus clearly offended against the provisions of Article 15(1) and if it was included in the expression "laws in force", it would have been void under Article 13(1). In that view it would have been wholly unnecessary to provide for its abolition by Article 17. That is why I find it difficult to accept the argument that custom or usage having the force of law should be deemed to be included in the expression "laws in force."" The learned Judge opined that the practice of untouchability owed its origins to custom and usage. If it was intended to include 'custom or usage' in the definition of 'laws in force' in Article 13(3)(b), the custom of untouchability would offend the non-discrimination guarantee under Article 15 and be void under Article 13(1). The learned Judge concluded that this renders Article 17 obsolete. The learned Judge concluded that it was thus not intended to include 'custom or usage' within the ambit of 'laws in force' in Article 13(1) read with Article 13(3)(b). 378. The learned Judge concluded that this renders Article 17 obsolete. The learned Judge concluded that it was thus not intended to include 'custom or usage' within the ambit of 'laws in force' in Article 13(1) read with Article 13(3)(b). 378. Gajendragadkar, J. held that "even if this view is wrong, it does not follow that personal laws are included in the expression "laws in force"": "26...It seems to me impossible to hold that either the Hindu or the Mahomedan law is based on custom or usage having the force of law." The learned Judge read in a statutory requirement for 'laws in force' under Article 13(1): "23...There can be no doubt that the personal laws are in force in a general sense; they are in fact administered by the Courts in India in matters falling within their purview. But the expression "laws in force" is, in my opinion, used in Article 13(1) not in that general sense. This expression refers to what may compendiously be described as statutory laws. There is no doubt that laws which are included in this expression must have been passed or made by a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India." 379. The learned Judges differed on whether 'laws in force' in Article 13(1) read with Article 13(3)(b) includes 'custom or usages'. The reasoning of the High Court in recording this conclusion merits a closer look. 380. In A K Gopalan v State of Madras a seven judge Bench dealt with the constitutionality of the Preventive Detention Act 1950. The majority upheld the Act on a disjunctive reading of the Articles in Part III of the Constitution. In his celebrated dissent, Justice Fazl Ali, pointed out that the scheme of Part III of the Constitution suggested the existence of a degree of overlap between Articles 19, 21, and 22. The dissent adopted the view that the fundamental rights are not isolated and separate but protect a common thread of liberty and freedom: "58.To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each Article is a code by itself and is independent of the others. The dissent adopted the view that the fundamental rights are not isolated and separate but protect a common thread of liberty and freedom: "58.To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each Article is a code by itself and is independent of the others. In my opinion, it cannot be said that Articles 19, 20, 21 and 22 do not to some extent overlap each other. The case of a person who is convicted of an offence will come under Articles 20 and 21 and also under Article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in Article 22, also amounts to deprivation of personal liberty which is referred to in Article 21, and is a violation of the right of freedom of movement dealt with in Article 19(1)(d)..." (Emphasis supplied) 381. The view adopted in Justice Fazl Ali's dissent was endorsed in Rustom Cavasjee Cooper (Banks Nationalisation) v Union of India. An eleven judge Bench dealt with the question whether the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969, and the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1969 impaired the Petitioner's rights under Articles 14, 19 and 31 of the Constitution. Holding the Act to be unconstitutional, Justice J C Shah held: "52...The enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through them: they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights. 382. Similarly, in Maneka, a seven judge Bench was faced with a constitutional challenge to Section 10(3)(c) of the Passports Act 1967. Striking the section down as violating Article 14 of the Constitution, P N Bhagwati, J. held: "5...It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned."130 (Emphasis supplied) 383. In the Special Courts Bill, 1978,131 a seven judge Bench of this Court, considered a reference under Article 143(1) on the question whether the Special Courts Bill, 1978 or any of its provisions, if enacted, would be constitutionally invalid. Justice Y V Chandrachud (writing for himself, Justice P N Bhagwati, Justice R S Sarkaria, and Justice Murtaza Fazl Ali) held that an attempt must be made to "to harmonize the various provisions of the Constitution and not to treat any part of it as otiose or superfluous." The learned Judge held: "49...Some amount of repetitiveness or overlapping is inevitable in a Constitution like ours which, unlike the American Constitution, is drawn elaborately and runs into minute details. There is, therefore, all the greater reason why, while construing our Constitution, care must be taken to see that powers conferred by its different provisions are permitted their full play and any one provision is not, by construction, treated as nullifying the existence and effect of another." 384. In Puttaswamy, a unanimous verdict by a nine judge Bench declared privacy to be constitutionally protected, as a facet of liberty, dignity and individual autonomy. The Court held that privacy traces itself to the guarantee of life and personal liberty in Article 21 of the Constitution as well as to other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III. The judgment of four judges held thus: "259...The coalescence of Articles 14, 19 and 21 has brought into being a jurisprudence which recognises the inter- relationship between rights. That is how the requirements of fairness and non-discrimination animate both the substantive and procedural aspects of Article 21... The judgment of four judges held thus: "259...The coalescence of Articles 14, 19 and 21 has brought into being a jurisprudence which recognises the inter- relationship between rights. That is how the requirements of fairness and non-discrimination animate both the substantive and procedural aspects of Article 21... 260...At a substantive level, the constitutional values underlying each Article in the Chapter on fundamental rights animate the meaning of the others. This development of the law has followed a natural evolution. The basis of this development after all is that every aspect of the diverse guarantees of fundamental rights deals with human beings. Every element together with others contributes in the composition of the human personality. In the very nature of things, no element can be read in a manner disjunctive from the composite whole." 385. Responding to the reasoning employed in Narasu, A M Bhattacharjee in his work 'Matrimonial Laws and the Constitution',135 writes: "...the provisions of Article 15(3) may also appear to be unnecessary to the extent that it refers to "children". Article 15(1) prohibiting discrimination on the ground of religion, race, caste, sex or place of birth does not prohibit any differential treatment on the ground of age. And, therefore, if age is thus not a prohibited basis for differentiation, it was not necessary to provide any express saving clause in Article 15(3) to the effect that "nothing in this Article shall prevent the State from making any special provisions for children," because nothing in Article 15(1) or Article 15(2) would forbid such special provision...There, the mere fact that some matter has been specifically dealt with by one or more Articles in Part III or anywhere else, would not, by itself, warrant the conclusion that the same has not been or cannot be covered by or included or dealt with again in any other Article or Articles in Part III or elsewhere." 386. The rights guaranteed under Part III of the Constitution have the common thread of individual dignity running through them. There is a degree of overlap in the Articles of the Constitution which recognize fundamental human freedoms and they must be construed in the widest sense possible. To say then that the inclusion of an Article in the Constitution restricts the wide ambit of the rights guaranteed, cannot be sustained. Article 17 was introduced by the framers to incorporate a specific provision in regard to untouchability. To say then that the inclusion of an Article in the Constitution restricts the wide ambit of the rights guaranteed, cannot be sustained. Article 17 was introduced by the framers to incorporate a specific provision in regard to untouchability. The introduction of Article 17 reflects the transformative role and vision of the Constitution. It brings focus upon centuries of discrimination in the social structure and posits the role of the Constitution to bring justice to the oppressed and marginalized. The penumbra of a particular article in Part III which deals with a specific facet of freedom may exist elsewhere in Part III. That is because all freedoms share an inseparable connect. They exist together and it is in their co-existence that the vision of dignity, liberty and equality is realized. As noted in Puttaswamy, "the Constituent Assembly thought it fit that some aspects of liberty require a more emphatic declaration so as to restrict the authority of the State to abridge or curtail them". The rationale adopted by Justice Gajendragadkar in Narasu for excluding custom and usage from 'laws in force' under Article 13(1) read with Article 13(3)(b) is unsustainable both doctrinally and from the perspective of the precedent of this Court. 387. Both Judges in Narasu relied on the phraseology of Section 112 of the Government of India Act 1915 which enjoined the High Courts in Calcutta, Madras, and Bombay to decide certain matters in the exercise of their original jurisdiction in accordance with the personal law or custom of the parties to the suit, and of the defendant, where the plaintiff and defendant are subject to different personal laws or custom: "112. The High Courts at Calcutta, Madras and Bombay, in the exercise of their original jurisdiction in suits against inhabitants of Calcutta, Madras or Bombay, as the case may be, shall, in matters of inheritance and succession to lands, rents and goods, and in matters of contract and dealing between party and party, when both parties are subject to the same personal law or custom having the force of law, decide according to that personal law or custom, and when the parties are subject to different personal laws or custom having the force of law, decide according to the law or custom to which the defendant is subject." (emphasis supplied) Relying on the disjunctive use of 'personal law' and 'custom having the force of law' (separated by the use of the word 'or'), Chief Justice Chagla opined that despite the legislative precedent of the 1915 Act, the Constituent Assembly deliberately omitted a reference to 'personal law' in Article 13. Chief Justice Chagla held that this "is a very clear pointer to the intention of the Constitution making body to exclude personal law from the purview of Article The Constituent Assembly also had a legislative precedent of the Government of India Act 1935, from which several provisions of the Constitution are designed. Section 292 of that Act, which corresponds broadly to Article 372(1) of the Constitution reads thus: "292. Existing law of India to continue n force. - Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the law in force in British India immediately before the commencement of Part III of this Act shall continue in force in British India until altered or repealed or amended by a competent Legislature or other competent authority." (Emphasis supplied) 388. Section 292 of the Act saved 'all the law in force' in British India immediately before the commencement of Part III of that Act. The expression "law in force" in that Section was interpreted by the Federal Court in The United Provinces v Mst. Atiqa Begum.136 The question before the Court was whether the legislature of the United Provinces was competent to enact the Regularization of Remissions Act 1938. The expression "law in force" in that Section was interpreted by the Federal Court in The United Provinces v Mst. Atiqa Begum.136 The question before the Court was whether the legislature of the United Provinces was competent to enact the Regularization of Remissions Act 1938. While construing Section 292 of the Government of India Act 1935 and adverting to the powers of the Provincial Legislature and the Central Legislature, Justice Suleman held: "Even though we are not concerned with the wisdom of the Legislature, one cannot help saying that there appears to be no adequate reason why the power to give retrospective effect to a new legislation should be curtailed, limited or minimized, particularly when S. 292 applies not only to statutory enactments then in force, but to all laws, including even personal laws, customary laws, and common laws."137 (Emphasis supplied) The definitional terms 'law' and 'laws in force' in Article 13(3)(a) and 13(3)(b) have an inclusive definition. It is a settled position of statutory interpretation, that use of the word 'includes' enlarges the meaning of the words or phrases used.138 In his seminal work, 'Principles of Statutory Interpretation', Justice G P Singh writes that: "where the word defined is declared to 'include' such and such, the definition is prima facie extensive." 389. In Sant Ram vs. Labh Singh, a Constitution Bench of this Court dealt with whether 'after coming into operation of the Constitution, the right of pre- emption is contrary to the provisions of Art. 19(1)(f) read with Art. 13 of the Constitution'. It was contended that the terms 'law' and 'laws in force' were defined separately and 'custom or usage' in the definition of 'law' cannot be included in the definition of 'laws in force'. Rejecting this contention, the Court relied on the expansive meaning imported by the use of 'includes' in the definition clauses: "4...The question is whether by defining the composite phrase "laws in force" the intention is to exclude the first definition. The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. In other words, laws, which were not in operation, though on the statute book, were included in the phrase "laws in force". But the second definition does not in any way restrict the ambit of the word "law" in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition...Custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force." 390. The use of the term 'includes' in the definition of the expression 'law' and 'laws in force' thus imports a wide meaning to both. Practices having the force of law in the territory of India are comprehended within "laws in force." Prior to the adoption of Article 13 in the present form, draft Article 8 included only a definition of 'law'.141 In October 1948, the Drafting Committee brought in the definition of 'laws in force'. The reason for proposing this amendment emerges from the note142 of the Drafting Committee: "The expression "laws in force" has been used in clause (1) of 8, but it is not clear if a law which has been passed by the Legislature but which is not in operation either at all or in particular areas would be treated as a law in force so as to attract the operation of clause (1) of this article. It is accordingly suggested that a definition of "law in force" on the lines of Explanation I to article 307 should be inserted in clause (3) of this article." 391. The reason for a separate definition for 'laws in force' is crucial. The definition of 'laws in force' was inserted to ensure that laws passed by the legislature, but not in operation at all or in particular areas would attract the operation of Article 13(1). Justice Gajendragadkar, however, held that 'laws in force' in Article 13(1) is a compendious expression for statutory laws. The definition of 'laws in force' was inserted to ensure that laws passed by the legislature, but not in operation at all or in particular areas would attract the operation of Article 13(1). Justice Gajendragadkar, however, held that 'laws in force' in Article 13(1) is a compendious expression for statutory laws. In doing so, the learned Judge overlooked the wide ambit that was to be attributed to the term 'laws in force', by reason of the inclusive definition. The decision of the Constitution Bench in Sant Ram emphasizes precisely this facet. Hence, the view of Justice Gajendragadkar as a judge of the Bombay High Court in Narasu cannot be held to be correct. 392. Recently, in Shayara Bano, a Constitution Bench considered whether talaq - ul - biddat or 'triple talaq', which authorised a Muslim man to divorce his wife by pronouncing the word "talaq" thrice, was legally invalid. In a 3-2 verdict, the majority ruled that triple talaq is not legally valid. Justice Rohinton Fali Nariman (writing for himself and Justice Lalit) held that the Muslim Personal Law (Shariat) Application Act, 1937 codified the practice of Triple Talaq. The learned Judge proceeded to examine whether this violated the Constitution: "47.It is, therefore, clear that all forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India... 48.As we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression "laws in force" in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency." 393. Having concluded that the 1937 Act codified the practice of triple talaq and that the legislation would consequently fall within the ambit of 'laws in force' in Article 13(1) of the Constitution, it was held that it was "unnecessary...to decide whether the judgment in Narasu Appa (supra) is good law."Justice Nariman, however, doubted the correctness of Narasu in the following observation: "51...However, in a suitable case, it may be necessary to have a re- look at this judgment in that the definition of "law and "laws in force" are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26) in which the learned Judge opines that the expression "law" cannot be read into the expression "laws in force" in Article 13(3) is itself no longer good law." 397. The decision in Narasu, in restricting the definition of the term 'laws in force' detracts from the transformative vision of the Constitution. Carving out 'custom or usage' from constitutional scrutiny, denies the constitutional vision of ensuring the primacy of individual dignity. The decision in Narasu, is based on flawed premises. Custom or usage cannot be excluded from 'laws in force'. The decision in Narasu also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality. This also overlooks the wide ambit that was to be attributed PART K to the term 'laws in force' having regard to its inclusive definition and constitutional history. As H M Seervai notes: "there is no difference between the expression "existing law" and "law in force" and consequently, personal law would be "existing law" and "law in force ...custom, usage and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them." The decision in Narasu, in immunizing uncodified personal law and construing the same as distinct from custom, deserves detailed reconsideration in an appropriate case in the future." 15. The following principles can be deduced from the above decision of the Apex Court in the case of Indian Young Lawyers Assn. The following principles can be deduced from the above decision of the Apex Court in the case of Indian Young Lawyers Assn. (Sabarimala Temple) vs. State of Kerala (supra): a. The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws passed or made by a Legislature or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. In other words, laws, which were not in operation, though on the statute book, were included in the phrase "laws in force". But the second definition does not in any way restrict the ambit of the word "law" in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition...Custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression "all laws in force." b. The use of the term 'includes' in the definition of the expression 'law' and 'laws in force' thus imports a wide meaning to both. Practices having the force of law in the territory of India are comprehended within "laws in force". c. The reason for a separate definition for 'laws in force' is crucial. The definition of 'laws in force' was inserted to ensure that laws passed by the legislature, but not in operation at all or in particular areas would attract the operation of Article 13(1). d. Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution. Our Constitution marks a vision of social transformation. It marks a break from the past - one characterized by a deeply divided society resting on social prejudices, stereotypes, subordination and discrimination destructive of the dignity of the individual. It speaks to the future of a vision which is truly emancipatory in nature. Our Constitution marks a vision of social transformation. It marks a break from the past - one characterized by a deeply divided society resting on social prejudices, stereotypes, subordination and discrimination destructive of the dignity of the individual. It speaks to the future of a vision which is truly emancipatory in nature. e. The decision in State of Bombay vs. Narasu Appa Mali (supra), in restricting the definition of the term 'laws in force' detracts from the transformative vision of the Constitution. Carving out 'custom or usage' from constitutional scrutiny, denies the constitutional vision of ensuring the primacy of individual dignity. The decision in State of Bombay vs. Narasu Appa Mali (supra), is based on flawed premises. Custom or usage cannot be excluded from 'laws in force'. The decision in State of Bombay vs. Narasu Appa Mali (supra) also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality. This also overlooks the wide ambit that was to be attributed to the term 'laws in force' having regard to its inclusive definition and constitutional history. f. There is no difference between the expression "existing law" and "law in force" and consequently, personal law would be "existing law" and "law in force ...custom, usage and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them. 16. In paragraph 386, it is held and observed that rationale adopted in the judgment in the case of Narasu Appa Mali (supra) for excluding custom and usage from 'laws in force' under Article 13(1) read with Article 13(3)(b) is unsustainable both doctrinally and from the perspective of the precedent of the Court. Further, in paragraph 391, it has been held and observed thus: ... "Hence, the view of Justice Gajendragadkar as a Judge of the Bombay High Court in Narasu cannot be held to be correct " The Apex Court, has further pointed out that the decision in State of Bombay vs. Narasu Appa Mali (supra), is based on flawed premises. Custom or usage cannot be excluded from the 'laws in force'. "Hence, the view of Justice Gajendragadkar as a Judge of the Bombay High Court in Narasu cannot be held to be correct " The Apex Court, has further pointed out that the decision in State of Bombay vs. Narasu Appa Mali (supra), is based on flawed premises. Custom or usage cannot be excluded from the 'laws in force'. The Apex Court, has observed that the decision in the case of State of Bombay vs. Narasu Appa Mali (supra) in immunizing uncodified personal law and construing the same as distinct from custom, deserves detailed reconsideration in an appropriate case in the future. 17. Hence, in the context of language contained in Order VII Rule 11 of the Code, the contention that the Mahomedan Law would not be covered within the provisions of Order VII Rule 11(d) of the Code, does not merit acceptance. 18. Adverting to the issue of gift, some of the provisions of Mahomedan Law would be apt. Chapter VI titled 'Inheritance - General Rules' of Mahomedan Law by Mulla and more particularly, Sections 51 and 52 read thus:- "Section 51. Heritable property - There is no distinction in the Mahomedan Law of inheritance between movable or immovable property or between ancestral and self-acquired property. Section 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 until then to any interest in the property to which he would succeed as an heir if he survived the ancestor." 19. Section 51 states that there is no distinction in the Mahomedan Law of inheritance between movable or immovable property or between ancestral and self-acquired property. Further, as per Section 52, the right of an heir comes into existence on the death of the ancestor and is not entitled until then to any interest in the property to which he would succeed as an heir if survived the ancestor. The learned author states that such a right is a mere spes successions, that is, an expectation or hope of succeeding to the property of the ancestor, if survived. In the present case, the grievance raised by the respondent no.1 is that the petitioner no.1, without the consent of the other heirs including the respondent no.1 has gifted the property in favour of the petitioner nos.2 to 4, therefore, illegal and bad. In the present case, the grievance raised by the respondent no.1 is that the petitioner no.1, without the consent of the other heirs including the respondent no.1 has gifted the property in favour of the petitioner nos.2 to 4, therefore, illegal and bad. The questions, therefore, would be, whether the respondent being an heir can claim any right during the lifetime of the petitioner no.1 and whether the petitioner no.1 had a right to gift his property during his lifetime? Considering the facts of the present case discussed hereinabove and to follow hereinafter, answer to the former question is in negative and the latter, in affirmative. 20. The High Court of Patna in the case of Imamul Hassan Choudhary vs. State of Bihar (supra) and referred to by the co- ordinate bench in the case of Abhishek Viralbhai Ajmera vs. LH of Decd. Ibrahimbhai Vajirbhai Pathan (supra) has considered similar issue. Paragraphs 5 and 6 of the judgment, read thus: "5. The question is whether a Muslim son can be said to be a raiyat during the lifetime of his father, for becoming a land-holder within the meaning of Section 2 (g) of the Act. For becoming a raiyat the person concerned must have a right to hold the land for the purposes of cultivation. Unlike Hindu Law, estate of a deceased Mohamedan if he has died intestate, devolves on his heirs at the moment of his death. Under the Mohamedan Law, birth right is not recognised. 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 until then to any interest in the property to which he would succeed as an heir if he, survived the ancestor. In the case of Hasan Ali v. Nazo, (1889) ILR 11 All 456, it was held that the "Mohamedan Law does not recognise any..... interest expectant on the death of another, and till that death occurs which by force of that law gives birth to the right as heir to the person entitled to it according to the rules of succession, he possesses no right at all." Unlike this, in Hindu Law a joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenery is a much narrower body than the joint family. A Hindu coparcenery is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenery property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent. The essence of a coparcenery under the Mitakshara law is a unity of ownership. The ownership of the coparcenery property is in the whole body of coparceners. The interest of a coparcenery is fluctuating one and is capable of being enlarged or diminished in the event of deaths or births in the family as the case may be. It is only on partition that he becomes entitled to a definite share. Until a partition takes place the rights of each coparcener consist in a common possession and common enjoyment of the coparcenery property. The coparcenery property is held in collective ownership by all the coparceners in a quasi-corporate capacity. 6. Now again reverting to the provisions of the Act, it will be noticed that a landholder in order to constitute a family holds, the land in his own right and as a raiyat. As has been seen above a Muslim son or daughter does not have any right or interest in the property in the lifetime of his or her father. According to the Muslim Law, they acquire the right only in the event of the death of the father. It cannot, therefore, be held that a Muslim major son also becomes a land-holder within the lifetime of his father within the meaning of this Act and constitutes a family as defined under Section 2 (g) of the Act. The distinction was noticed by the framers of the law while inserting the explanation of the definition of the word "land-holder" in Section 2 (g) of the Act. A member of undivided Hindu family acquires a right by birth and becomes entitled to a share in the land. He is deemed to be land-holder for the purposes of the Act, whether or not a partition has taken place before the commencement of this Act. Mr. A member of undivided Hindu family acquires a right by birth and becomes entitled to a share in the land. He is deemed to be land-holder for the purposes of the Act, whether or not a partition has taken place before the commencement of this Act. Mr. Chunnilal, learned Government Pleader appearing on behalf of the State, submitted that by successive amendments in the Act the meaning of the word "land-holder" was narrowed down, the idea being to lower down the ceiling area. By an amendment made in 1973 the word 'family' was substituted in place of the word 'person' in Section 2 (g) as well as in Section 5. He submitted that what was material was the word 'land-holder' and not the word 'family'. Since a Muslim son or daughter could not become a land-holder in the lifetime of his or her father, it is apparent that he cannot claim a separate unit like a major son of a Hindu family." 21. Distinction has been drawn between the Mahomedan Law and the Hindu Law. It has been observed that the concept of joint Hindu family is recognized in the Hindu Law, so is not the position in the Mahomedan Law. Birth right is also not recognized and the right of an heir-apparent or presumptive comes into existence for the first time on the death of the ancestor and is not entitled until then to any interest in the property to which he would succeed as an heir if he, survived the ancestor. Clearly, the right of an heir as per the Mahomedan Law gets crystalized upon the death of the ancestor. The ancestor during his lifetime, has a right to dispose of his property in the manner he wishes to do so. In absence of any right, it is difficult to fathom as to how the respondent no.1 can lay challenge to the gift deed executed by the petitioner no.1 in favour of the petitioner nos.2 to 4. Pertinently, there is no distinction in the Mahomedan Law of Inheritance between the movable and immovable property or between the ancestor and the self-acquired property. Pertinently, there is no distinction in the Mahomedan Law of Inheritance between the movable and immovable property or between the ancestor and the self-acquired property. In absence of any distinction and the fact that the right of an heir-apparent or presumptive comes into existence for the first time on the death of the ancestor, it is rightly contended by the learned advocate for the petitioners, that there is no cause of action available to the respondent no.1 to file a suit challenging the gift deed. When there is no right, there was no occasion for the learned Judge to have entered into the arena of requisites of the valid gift and hence, the validity could not have been gone into. 22. Relevant would also be the judgment of this Court in the case of Abhishek Viralbhai Ajmera vs. LH of Decd. Ibrahimbhai Vajirbhai Pathan (supra). The challenge was to the judgment, rejecting the application invoking the provisions of Order VII Rule 11. One of the contentions, was that the father of plaintiff, had no authority to sell the land since the same was an ancestral property. By placing reliance on the judgment in the case of Imamul Hassan Choudhary vs. State of Bihar (supra), it has been held that the father of the plaintiff therein had all right, title and interest of the suit property to dispose of the same till he was alive. Therefore, in the judgment of the full bench of the High Court of Patna, so also the co-ordinate bench, the said aspect has been considered and answered against the son, claiming the right over the property of the father. 23. Besides, the learned Judge was in error in observing that a Muslim, cannot gift more than 1/3rd of the ancestral property. Pertinently, the aspect of gift of 1/3rd, is in connection with paragraph 135 of Mahomedan Law which deals with deathbed gifts and not the gift in a regular course. Thus, reliance placed on the judgment in the case of Imtiyaz Yusuf Mansuri vs. Muhammad Hanif Abdul Wahi Mansuri reported in 2019:GUJHC:56063 is also misplaced for, it was the case of gift made during marz-ul-maut or death, which is not the issue in the present case and it is fairly conceded by Mr. Jainish P. Shah, learned advocate that the said judgment deals with deathbed gifts and acknowledgment of the same. Jainish P. Shah, learned advocate that the said judgment deals with deathbed gifts and acknowledgment of the same. Thus, said judgment will have no application to the facts of the present case. 24. While adverting to another contention, namely, the inherent right to bring the suit, perceptibly, in the plaint and in the grounds, the only contention raised is that the consent has not been taken of the other heirs and the gift deed has been executed surreptitiously to the exclusion of the respondent and other heirs. Reliance is also placed on the judgment of the Apex Court in the case of Ganga Bai vs. Vijay Kumar & Ors. reported in (1974) 2 SCC 393 to contend that there in an inherent right to bring the suit of a civil nature and unless the suit is barred by statute one may, at ones peril, bring a suit of one's choice. True, the suit can be brought, but it is to be tested on the anvil of the language contained in the provisions of Order VII Rule 11 of the Code and the respondent has failed to indicate any cause of action to file the suit. Thus, the said contention is rejected. 25. In view of the above discussion, the judgment and order dated 03.10.2019 passed by the learned 11th Additional Senior Civil Judge, Jamnagar in Regular Civil Suit no.130 of 2019, being illegal and erroneous, requires to be quashed and set aside and is hereby, quashed and set aside. The present Civil Revision Application succeeds and is accordingly allowed. The plaint, is ordered to be rejected. Rule is made absolute. No order as to costs.