;Oral gift when reduced in to writing and when delivery of possession and gift was given on the date of document itself – requires stamp duty and registration = there was no specific plea or evidence of any valid oral gift preceding Ex.B.35 from Abdul Gafoor to Rasoolunnisa Begum. Ex.B.35 was also contended to be styled as bequest, which is impermissible in Mahomedan Law, apart from which the English translation of Ex.B.35 clearly states that Abdul Gafoor had decided to give specified properties in lieu of mahr amount to Rasoolunnisa Begum and delivered the property to the ownership, possession and enjoyment of Rasoolunnisa Begum and executed the deed of gift in her favour. The language appears to be clear and unambiguous that formation of intention, implementation of the decision and gifting along with delivery of possession were contemporaneous with the execution of the deed of gift and therefore, the document requires to be duly stamped and registered as such and it cannot be construed to be a memorandum of recording of an earlier oral gift. Even otherwise, if a gift in lieu of dower/mahr were to be considered as a sale requiring registration as such, even then Ex.B.35 could not have conveyed any rights or interests to Rasoolunnisa Begum. ;No Transfer of property is valid without title = when Ex.B.35 is illegal and void and Ex.B.4 could not have been executed without transfer of any title or interest under Ex.B.35. Under the circumstances, the conclusions of the trial Court against the appellants cannot be sustained and it has to be concluded that the gift in favour of Rasoolunnisa Begum and the 1 st defendant by Abdul Gafoor under Ex.B.35 and the sale by Rasoolunnisa Begum to the 1 st defendant under Ex.B.4 were not proved to be true, valid and binding on the plaintiffs and defendants 2 and 7.;Wife entitled to 1/4th share from her husband’s properties =Even if the entire case of the 1 st plaintiff and the 2 nd defendant were to be accepted, the 1 st defendant as the wife of Abdul Gafoor admittedly became entitled to one-fourth share in the Matruka properties of Abdul Gafoor on the death of Abdul Gafoor and her right to such one-fourth share did not get postponed by any factual or legal event ; illegitimate offspring – entitled to claim his mother’s property who died pending appeal =she expired during the pendency of this appeal. It was clearly stated in Muslim Law by Tyabji, Fourth Edition [23] , under Hanafi Law of Inheritance at Note 706 at pages 819 and 820 that under Hanafi Law, though an illegitimate child and its father are not related in law, nor competent to inherit from each other, but the mother and its illegitimate offspring are competent to do so. Similarly, in Mulla’s Principles of Mahomedan Law, Nineteenth Edition [24] , it was clearly stated in Note 85 at page 81 that under Hanafi Law of Inheritance, an illegitimate child is considered to be the child of its mother only, and as such it inherits from its mother and its relations, and they inherit from such child. The principle was stated to be with reference to Tagore Law Lectures, 1873 [25] at page 123. In the illustrations given, the illegitimate son of the sister of a deceased Mahomedan female was shown to be entitled to half share, while the husband of the female will be entitled to the remaining half share as being related to the deceased through his mother though illegitimate.;No Relief more than they claimed = The grant of 6/16 th share to the legal representatives of the 2 nd defendant and 4/16 th share to the 3 rd defendant will also be only in accordance with the prayer in the suit and the appeal, which remained unamended and unchanged even after the death of the 1 st defendant. – Therefore, the judgment and preliminary decree in O.S. No.12 of 1984 on the file of the Subordinate Judge’s Court, Vikarabad, dated 05-08-1987 are set aside to the extent of dismissal of the suit in respect of plaint A and C schedule properties and a preliminary decree is passed in respect of plaint A and C schedule properties entitling the legal representatives of the deceased 1 st plaintiff to six shares, the legal representatives of the deceased 2 nd defendant to six shares and the 3 rd defendant to four shares out of sixteen shares, into which the plaint A and C schedule properties shall be divided and such physical division and partition by metes and bounds shall be made on a separate application through a commissioner to be appointed for the purpose.

AS 7 / 1988 / CASE IS:DISPOSED
PETITIONER RESPONDENT
MD.HABEEBUDDIN & OTHERS VS B.ANANTAMMA @ JAMAL BEE & OTHERS
PET.ADV. : OSMAN SHAHEED RESP.ADV. : MAHMOOD ALI
SUBJECT: PARTITION DISTRICT: RANGA REDDY

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
TUESDAY, THE TWENTY FIRST DAY OF AUGUST
TWO THOUSAND AND TWELVE
HON’BLE SRI JUSTICE G. BHAVANI PRASAD
A.S. No.7 of 1988 and Cross Objetions
A.S. No.7 of 1988
Between:
Mohammed Habeebuddin and others …. Appellants
And
B. Ramulu (Babu) & Mohd. Azam
and others …. Respondents
Cross objections:
Between:
B. Ramulu (Babu) alias Mohd. Azam …. Cross Objector
And
Mohammed Habeebuddin and others …. Respondents
COMMON JUDGMENT:
Grant of preliminary decree in respect of plaint B schedule
properties and dismissal of the suit in respect of plaint A and C
schedule properties without costs by the judgment, dated
05-08-1987 in O.S. No.12 of 1984 on the file of the Subordinate
Judge’s Court, Vikarabad led to filing of the appeal by plaintiffs 2
to 4 and cross-objections by the 3
rd defendant.
2. The facts leading to the appeal and the crossobjections
are that the deceased 1
st plaintiff filed the suit for
partition of plaint A, B and C schedule properties into three shares
of 6/16, 6/16 and 4/16 and allotment of 6/16
th share to the 1
st
plaintiff with costs.
3. The 1
st plaintiff claimed that one Mohd. Pasha had
five sons— Abdul Quader, Sofi Mohd. Ali, Madar Sab, Gulam
Rasool, the 2
nd defendant, and Abdul Wahab, the 1
st plaintiff.
Abdul Quader had three sons—Abdul Ghani, Abdul Gafoor and
Abdul Sattar who died issueless and Abdul Gafoor had two wives
—Rasoolunnisa and B. Anthamma alias Jamal Bee, the 1
st
defendant. Abdul Gafoor got plaint A and B schedule lands to his
share in the partition from his father’s estate and he got the patta
of plaint A schedule lands transferred in the name of his first wife,
Rasoolunnisa Begum. Rasoolunnisa Begum died issueless in
1975 during the lifetime of Abdul Gafoor, who succeeded as her
sole heir. Abdul Gafoor died issueless leaving the 1
st plaintiff and
defendants 1 and 2 as his legal representatives. The parties
belong to Hanafi Sect of Muslims and the widow, the 1
st defendant
has 1/4
th share and the 1
st plaintiff and the 2
nd defendant have
6/16
th share each as residuaries in the suit properties. The 3
rd
defendant now known as Mohd. Azam and previously known as
Ramuloo, was born to Jamal Bee prior to her conversion into Islam
and prior to her marriage with Abdul Gafoor. The 3
rd defendant not
born to Abdul Gafoor is not entitled to any share in the suit
properties. But the 1
st defendant in collusion with the Village
Patwari and the 3
rd defendant, is bent upon denying the share of
the 1
st plaintiff and the 2
nd defendant and made such denial on 01-
02-1977. Defendants 1 and 3 in wrongful possession of the suit
lands, are in collusion and hence, the suit paying the Court fee
under Section 34 (2) of the Andhra Pradesh Court Fees and Suits
Valuation Act.
4. The 1
st plaintiff died after the suit and plaintiffs 2 to 4
were impleaded as his legal representatives. Defendants 4 to 6
were also impleaded and the 7
th defendant was impleaded as the
legal representative of the 2
nd defendant who also died pending
the suit. The 7
th defendant supported the 1
st plaintiff’s claim and
further stated that Rasoolunnisa Begum was seriously sick due to
paralysis and blood pressure for about one year and was bed
ridden for about 6 to 7 months prior to her death due to the same
sickness and that Abdul Gafoor was in possession and enjoyment
of the suit lands. The 1
st defendant was being maintained by him.
The 3
rd defendant was already born before the conversion of the
1
st defendant into Islam and her marriage with Abdul Gafoor in
1964.
5. While the other defendants remained ex parte,
defendants 1 and 3 resisted the suit contending that the 3
rd
defendant is the legitimate son of Abdul Gafoor and is a Muslim by
birth and was not named Ramuloo at any time. Rasoolunissa
Begum was the sole owner and possessor of plaint A schedule
lands in survey Nos.150, 151 and 152 measuring Ac.12-38 guntas
at Shivareddypet. She sold the land to the 1
st defendant under a
sale deed, dated 19-03-1975 and the 1
st defendant owned and
possessed the said property. Survey No.261 standing in the name
of Abdul Gafoor is also his Matruka. Though Rasoolunnisa Begum
died issueless in 1975, Abdul Gafoor had no right of succession in
view of the sale deed. Abdul Gafoor died leaving his widow, the
1
st defendant, and son, the 3
rd defendant. The plaintiff and the 2
nd
defendant have no right to claim any share. The 1
st defendant
gets 1/8
th share and the remaining property goes to the 3
rd
defendant. The 1
st defendant converted into Islam in 1954 and a
private marriage took place in 1954 between the 1
st defendant and
Abdul Gafoor in the presence of two witnesses as per Mahomedan
law. The 3
rd defendant was born after marriage on 05-06-1956
and he was named Babu Miyan alias Mohd. Azam. On repeated
demands of the 1
st defendant to avoid further complications, a
marriage certificate was completed on 10-02-1964. Abdul Gafoor
got the 3
rd defendant admitted into school and was signing on the
progress reports and other school papers as father. He
acknowledged his paternity in the Will and the Panchayat and the
Tahsildar issued a certificate that Mohd. Azam alias Babu Miyan is
son of Abdul Gafoor alias Nawab Saheb. There is other oral and
documentary evidence to prove the same. The malicious suit is
liable to be dismissed with costs and compensatory costs of
Rs.5,000/- and the 3
rd defendant is in possession of the suit lands
as heir and successor of Abdul Gafoor. The 1
st plaintiff was not in
joint possession and is not entitled to pay fixed Court fee. He has
to pay Court fee on the present value of more than Rs.2,00,000/-.
The judgment passed in an earlier suit operates as res judicata
and the suit is barred by limitation.
6. On such pleadings, the following issues were settled
for trial:
1. Whether the plaint schedule properties are liable for
partition ?
2. Whether the plaintiff is entitled to claim possession of
the plaint schedule properties ?
3. To what relief ?
Issues framed on 30-01-1984:
1. Whether the plaintiffs are entitled for partition of the suit
properties as prayed for ?
2. To what relief ?
Additional issues framed on 04-06-1986:
1. Whether late Abdul Gafoor was the absolute owner and
possessor of the lands bearing S.Nos.150, 151 and 152,
measuring Ac.12-38 guntas situated at Sivareddypet on
the date of his death ?
2. Whether defendant No.1 has become owner of half of
the land in S.Nos.150, 151 and 152 prior to the death of
her husband Abdul Gafoor ?
3. Whether defendant No.1 is in possession of lands in
S.Nos.150, 151 and 152 as owner ?
4. Whether the defendants 1 and 3 are heirs and
successors of the deceased Abdul Gafoor, if so what is
the effect on the present suit ?
5. Whether the Court fee paid is sufficient for want of joint
possession of plaintiffs in the lands ?
6. To what relief ?
7. After examining P.Ws.1 to 5 and D.Ws.1 to 6 and
marking Exs.A.1 to A.20, B.1 to B.37 and X.1 to X.4 during the
trial, the trial Court rendered the impugned judgment presuming in
favour of due execution and attestation of Ex.B.35 memorandum of
gift under Section 90 of the Evidence Act, as the document was
more than 30 years old coming from proper custody and
considered the gift to be valid. Rasoolunnisa Begum, who paid
land revenue for plaint A schedule lands, obtained loan from Land
Mortgage Bank by mortgaging the said lands and resided in plaint
C schedule house, was considered to have acquired title and to
have sold half of plaint A schedule lands to the 1
st defendant under
Ex.B.4 sale deed for Rs.2,000/-, attested by the 2
nd defendant and
Abdul Gafoor. The pahanies, ryot pass book, land revenue
receipts and house tax receipts led the trial Court to conclude in
favour of defendants 1 and 3 in respect of plaint A schedule
properties. While noting the admitted entitlement of the 1
st
defendant as the wife of Abdul Gafoor to 1/4
th of the Matruka
jointly, the trial Court considered the judgment in O.S. No.5 of
1977 not to operate as res judicata on the question of the 3
rd
defendant being or not the son of Abdul Gafoor. The trial Court
analysed the evidence of D.Ws.4 to 6 and considered it to be
incredible and unsatisfactory about the alleged oral marriage
between the 1
st defendant and Abdul Gafoor in 1954. Ex.A.18
copy of the 1
st defendant’s evidence in O.S. No.5 of 1977 was
referred to as showing her admission about her marriage with
Abdul Gafoor in 1964 and the trial Court disbelieved the oral
marriage said to have taken place in 1954. The trial Court referred
to Ex.B.36 school admission register, in which the date of birth
was corrected from
05-06-1953 to 05-06-1956. If the date of birth was 05-06-1953, the
3
rd defendant could not have been born to Abdul Gafoor, even if
the oral marriage in 1954 is true. The trial Court noted that the 1
st
defendant was originally married to Mogulaih and when there is
direct proof of the marriage in 1964, any acknowledgement by
Abdul Gafoor prior to 1964 that the 3
rd defendant was his son, was
considered not to lead to any presumption in favour of legitimacy.
The trial Court observed that the alleged Will by Abdul Gafoor was
not produced and concluded that the 3
rd defendant, who is not the
legitimate son of Abdul Gafoor, cannot have any share in the suit
properties. The trial Court also held that the plaintiffs in
possession of some portion of the suit lands can be regarded as
being in joint possession, entitled to pay fixed Court fee.
Consequently, the trial Court directed partition of plaint B schedule
lands only and dismissed the suit in respect of plaint A and C
schedule properties without costs.
8. Plaintiffs 2 to 4 challenged the said judgment
contending that Ex.B.35 is not admissible in evidence and the
fictitious document brought into existence for the purpose of the
suit was not 30 years old by the time of the suit to enable any
presumption in its favour. The forged document was not acted
upon as patta for the suit lands continued as earlier till 1954-55.
Abdul Gafoor himself was in possession and enjoyment till his
death and the suit survey numbers were not mentioned in
Ex.B.35. The plaint C schedule property stood in the name of
Abdul Gafoor in the Gram Panchayat record. The 1
st defendant
and Rasoolunnisa Begum were not in a position to maintain
themselves and were being maintained by Abdul Gafoor and any
purchase of half of suit A schedule properties by the 1
st defendant
is benami and unbelievable. The conclusion that Abdul Gafoor
was not the owner and possessor of plaint A and C schedule
properties at the time of his death, is erroneous and hence, the
impugned judgment and decree be reversed and the suit be
decreed as prayed for.
9. The 3
rd defendant in his cross-objections contended
that the legal effect of Exs.B.1, B.9 to B.12 and B.13 was not
considered and Exs.B.14 to B.16 cogently established the
paternity of the 3
rd defendant. The effect of the documents is to
show the 3
rd defendant to be the son of Abdul Gafoor who
acknowledged the same and hence, the 3
rd defendant is entitled to
7/8
th share in plaint B schedule properties. The mere
nomenclature of a person need not necessarily reflect his religion
and defendants 1 and 3 should have been held to be the sole heirs
of Abdul Gafoor. The oral evidence of D.Ws.1 to 5 was not
correctly appreciated and the evidence of P.Ws.1 to 5 is unworthy
of credit. There was no joint possession for the plaintiffs who
should have paid Court fee on the market value and the suit ought
to have been dismissed. Hence, the cross-objector sought for
reversing the impugned judgment and decree to the extent they
went against him.
10. The 3
rd appellant (4
th plaintiff) died pending the
appeal and appellants 1 and 2 (plaintiffs 2 and 3) were recorded as
her legal representatives. It was also recorded on 20-08-2010 on
a memo by the appellants, dated 22-06-2009 that the 2
nd
respondent died on 28-04-2009 leaving the 1
st
respondent alone as
his legal representative. However, in fact, it was the 1
st
respondent to the appeal that died leaving the 2
nd
respondent as
her legal representative.
11. As defendants 4 to 7 were ex parte in the suit, they
were stated to be not necessary parties and were not impleaded in
the appeal. The 6
th defendant in the suit attempted to be
impleaded in the appeal as the 5
th
respondent by seeking to place
reliance on the Xerox copy of a Will, dated 03-11-1954, the original
of which was claimed to have been executed by Abdul Gafoor
bequeathing
Ac.7-16 guntas in S.No.29 of Burgupally to him and further
claiming the summons in the suit to have been taken to a wrong
address. The miscellaneous petitions filed by the 6
th defendant
were not pursued and he did not take any steps to have the
judgment and decree against him, which have become final, set
aside against him. That apart, the said Ac.7-16 guntas in S.No.29
of Burgupally is item No.2 of plaint ‘B’ schedule property, which is
not the subject matter of the appeal. Even the cross-objections of
the 3
rd defendant are about his being held to have not been proved
as the legitimate son of Abdul Gafoor but not otherwise about the
plaint ‘B’ schedule property. The preliminary decree relating to
plaint ‘B’ schedule property was stated to have been physically
carried out in the meanwhile and became final, apart from the
original Will not being produced. The 6
th defendant in the suit,
hence, has no locus standi to intervene in the appeal.
12. Sri Mohd. Osman Shaheed, learned advocate for the
appellants strenuously contended that Ex.B.35, which transfers
title, required registration and is inadmissible in evidence. The
survey numbers of plaint A schedule lands were not specified
among the properties conveyed under Ex.B.35, though they were
later mentioned in the body and the gift in lieu of dower was as
though it was a bequest which cannot be made under Muslim law.
The 1
st defendant was not present at the time of Ex.B.35 which
was not registered as claimed by the 1
st defendant and no witness
for Ex.B.35 was examined. Ex.B.35 was not referred to in the
written statement of defendants 1 and 3 and no evidence in
respect of the same is admissible. There was no evidence of any
anterior oral gift. As Ex.B.35 was not proved and did not convey
any title, Rasool Begum had no title to convey under Ex.B.4 to the
1
st defendant. The learned counsel further contended that the 1
st
defendant, who was married to Moguliah and not divorced from
him, filed a suit as wife of Moguliah in 1960. She deposed in her
earlier suit that she was married to Abdul Gafoor on 10-02-1964
and there was no acceptable evidence of any valid marriage
between the 1
st defendant and Abdul Gafoor in 1954, while the
marriage in 1964 is admitted. If the 3
rd defendant was born in
1953 as originally shown in the school admission register, he was
not, in any view, the legitimate son of Abdul Gafoor. In the
absence of proof of any valid marriage in 1954, the 3
rd defendant,
claimed to have been born in 1956 by defendants 1 and 3, could
not have been the legitimate son of Abdul Gafoor. Any alleged
acknowledgement of paternity by Abdul Gafoor cannot add
respectability to the claim of legitimacy. Ex.A.5 judgment holding
that Abdul Gafoor died issueless operates as res judicata and
there was no reference to the alleged oral marriage in 1954 in the
evidence in 1977 suit. The earlier admissions are relevant and the
finding of the trial Court about the 3
rd defendant being not the son
of Abdul Gafoor is unassailable. As mere marking of Ex.B.35 is
no proof, the suit ought to have been decreed in favour of plaintiffs
2 to 4 and 7
th defendant in toto.
13. Sri Vilas V. Afzul Purkar, learned senior counsel for
the cross-objector (as he then was) contended that the oral
evidence adduced by defendants 1 and 3 clearly proved the
marriage between the 1
st defendant and Abdul Gafoor in 1954.
The independent evidence from the school record showed that
Abdul Gafoor admitted the 3
rd defendant to be his son throughout
and the acknowledgement of paternity by Abdul Gafoor cannot be
questioned. Ex.B.35 is only a memorandum of gift not requiring
registration and was acted upon by effecting mutation. Ex.B.4
attested by Abdul Gafoor himself conveyed half of plaint A
schedule lands to the 1
st defendant and Exs.B.35 and B.4
remained unchallenged till now. Plaintiffs 2 to 4 and the 7
th
defendant cannot claim any share when the wife and son of Abdul
Gafoor are available. The plaintiffs themselves admitted that
Rasoolunnisa owned survey Nos.150, 151 and 152 and they
cannot challenge Ex.B.35. The admissions made by mistake and
explained later are neither estoppel nor proof. The learned senior
counsel argued that the proof of marriage between the 1
st
defendant and Abdul Gafoor in 1954, the acknowledgement of
paternity by Abdul Gafoor, the valid gift of plaint A schedule lands
to Rasoolunnisa Begum endorsed by Ex.B.35 and the sale in
favour of the 1
st defendant under Ex.B.4, make the suit untenable
as a whole, and desired the cross-objections to be allowed and the
suit to be dismissed in entirety.
14. The following points arise for consideration in the
appeal and the cross-objections:
1. Whether the 3
rd defendant is the son of Abdul Gafoor ?
2. Whether the gift in favour of Rasoolunnisa Begum and
the 1
st defendant by Abdul Gafoor and the sale by
Rasoolunnisa Begum to the 1
st defendant are true, valid
and binding on the plaintiffs and defendants 2 and 7 ?
3. To what shares the parties are entitled to in the suit
schedule properties ?
4. To what relief ?
15. Point No.1:
The 3
rd defendant is claimed to be the son of Abdul Gafoor
through the 1
st defendant and was claimed to have been born on
05-06-1956. D.W.3, the Head Master of Upper Primary School,
Sivareddypet, who produced the admission register of the school,
referred to Ex.B.36 relevant entry relating to Babu Miyan, son of
Nawab Saheb, who was admitted in the school on 01-08-1960 in
class-I and studied up to VII class till 06-10-1969. He admitted
that the date of birth in column No.11 was corrected from the year
‘1953’ to ‘1956’ by correcting the figure ‘3’ as figure ‘6’. He also
admitted the correction to have been made with different ink and to
have not been initialled by anybody. He further admitted that the
admission register does not bear the seal of the school and that at
the time of annual inspection by the Deputy Inspector of Schools,
he will instruct the Head Master to attest any over writing before
signing in the register on verification and putting their seal. He
also admitted that it was not specified in column No.5 as to
whether Nawab Sab was the father or the guardian and he does
not know who was the Head Master in 1960. He also stated that
he issued Ex.B.13 Bonafide certificate on the basis of Ex.B.36
only. There is no other evidence on this aspect and in the face of
the admitted correction of the year of birth from 1953 to 1956,
which remained unexplained, the original entry of the date of birth
of the 3
rd defendant as 05-06-1953 in 1960 cannot be ignored. If
the 3
rd defendant was born on 05-06-1953, he could not have been
the son of Abdul Gafoor, is evident from the specific case of
defendants 1 and 3 that the 1
st defendant started living with Abdul
Gafoor in cohabitation only after her oral marriage with Abdul
Gafoor in 1954.
16. If the date of birth of the 3
rd defendant were to be
taken as 05-06-1956, then the question of truth and proof of oral
marriage of the 1
st defendant with Abdul Gafoor in 1954 assumes
relevance. D.Ws.4 to 6 were examined in corroboration of the
claim of the alleged oral marriage in 1954. D.Ws.4 to 6 claimed
that the marriage of Abdul Gafoor with the 1
st defendant was
celebrated in the house of Abdul Gafoor in 1954 in the presence of
themselves, Rasoolunnisa Begum, Hayat Bee, Alam Bee and
some others. While the ‘some others’ were not named by the
three witnesses, D.Ws.4 to 6 claimed that Abdul Gafoor told that
he was getting the 1
st defendant converted into Islam and marrying
her and that they enquired the 1
st defendant whether she was
prepared to embrace Islam and marry Abdul Gafoor, for which she
positively responded. They claimed that Abdul Gafoor
administered Kaleema to the 1
st defendant and named her as
Jamal Bee and married her, from which day the 1
st defendant was
living with Abdul Gafoor as his wife. D.Ws.4 to 6 admitted that in
1964 P.W.4 officiated the marriage of the 1
st defendant with Abdul
Gafoor in the presence of village elders under a Nikhanama.
D.W.4, while admitting that the previous name of the 1
st defendant
was Begari Anthamma, does not know whether she was the wife of
Begari Moguliah and whether she filed a suit describing herself as
the wife of Moguliah in 1960. D.W.4, who claimed that the 3
rd
defendant was born to Abdul Gafoor two years later and that Abdul
Gafoor educated and brought up the 3
rd defendant, admitting him
into a school, does not know the native place of the 1
st defendant
or her father or her family affairs. He does not remember even the
date of his own son’s marriage while remembering the details of
the 1
st defendant’s oral marriage. D.W.5 also does not remember
the dates of his own marriage or marriages of his daughter and
two sons. D.W.5 also admitted that the Mosque Committee
passed a resolution boycotting him from social functions, though
he claimed it to have been not observed by the villagers. He could
not give the date or Hijri year of the marriage of the 1
st defendant
with Abdul Gafoor and does not know about her father, brother or
sister. While he claimed one Ahmed Hussain or Mohd. Hussain to
be the Murshed of the 1
st defendant, he does not know whether the
1
st defendant was converted by her Murshed into Islam in 1964.
He also does not know whether the 1
st defendant filed a suit in
1960 describing herself as the wife of Moguliah. D.W.6 is the
brother of Rasoolunnisa Begum and he claimed to have
ascertained the willingness of Rasoolunnisa Begum for the
marriage of Abdul Gafoor with the 1
st defendant, about which
D.Ws.4 and 5 did not state. The alleged expression of willingness
by Rasoolunnisa Begum due to her being issueless at the time of
the marriage, was not even stated by the 1
st defendant and is
uncorroborated. While D.W.5 did not state about Abdul Gafoor
bringing up and educating the 3
rd defendant as claimed by D.Ws.4
and 6, D.W.6 further claimed that he had seen Abdul Gafoor
signing the progress reports of the 3
rd defendant during his visits
to Abdul Gafoor’s house. D.W.6 was not working at Sivareddypet
in 1954, but was working as a teacher in Siddaloor. D.W.6 could
not give the date or year of the marriage of his own sister
Rasoolunnisa Begum. D.W.6 does not know the names of the
husbands of Hayat Bee and Alam Bee allegedly present at the time
of the marriage and he claimed that Abdul Gafoor himself told the
names of the two women. He also stated that D.Ws.4 and 5 were
known to him only from the date of the marriage. D.Ws.4 to 6
admitted the marriages in their families to have been in the
presence of a Khaji and did not give any reason as to why such a
common practice was not followed when the 1
st defendant married
Abdul Gafoor. They also did not state as to what necessitated the
performance of marriage before a Khaji under Nikhanama again in
1964. D.W.6 does not know the nativity of the 1
st defendant or
whether Abdul Hussain was her Murshed. He also does not know
whether the 1
st defendant filed a suit in 1960 describing herself as
the wife of Moguliah.
17. Oral evidence like that of D.Ws.4 to 6 is easy to
procure, but can be acted upon only if satisfactorily corroborated
and probablised by other circumstances, but not solely on its own.
18. The 1
st defendant herself as D.W.1 did not state
about any others being present apart from those named by her and
D.Ws.4 to 6 unlike D.Ws.4 to 6 and she admitted that she was
born at Godamguda to Hanmanthu and has a sister Naramma and
brother Balaiah. Though she tried to claim ignorance as to
whether her marriage was celebrated with Moguliah, she admitted
filing the suit 11/1 of 1960 on the file of the District Munsif Court,
Vikarabad in respect of her father’s lands and house. Though she
admitted the contents of the plaint to be correct in the first
instance, she later tried to claim ignorance of such contents. She
also admitted that she did not file any petition in that suit to amend
the name of her husband, though she denied describing herself in
that suit as the wife of Moguliah. She claimed to have come into
contact with Abdul Gafoor about 35 years earlier at Godamguda,
which takes it to about 1951 and she could not say how many
years after the police action her marriage with Abdul Gafoor took
place or how many years after the gift in favour of Rasoolunnisa
Begum. Of course, she claimed to be about 19 to 21 years of age
by the time of her marriage about 32 years earlier and Abdul
Gafoor to have died about 23 or 24 years after their marriage,
while she was 52 years old by the time of her evidence, which
more or less tallies with her claims of her oral marriage in 1954.
The 1
st defendant admitted that she did not get it mentioned in
Ex.A.1 Nikhanama of 1964 that her marriage with Abdul Gafoor
already took place about 10 to 12 years earlier. She admitted that
one Syed Ahmed Hussain was her Murshed and it was not stated
whether he was alive, but he was not examined. She claimed that
Abdul Gafoor married her, as Rasoolunnisa Begum had no issues.
Though Kamroddin, one of the witnesses to Nikhanama Ex.A.1,
was admittedly alive, he was not examined to show the
circumstances necessitating a marriage ceremony again after 10
years. She tried to deny Ex.A.18 portion in her deposition as
P.W.1 in O.S. No.5 of 1977 on the file of the District Munsif’s
Court, Vikarabad, in which she stated that she was married to
Abdul Gafoor on 10-02-1964 at Sivareddypet, after claiming
ignorance in the first instance. She admitted that there was no
Khaji at the time of her marriage 32 years earlier and no dinner
and her claim that mahr was fixed at Rs.350/- and two dinars, was
not stated by D.Ws.4 to 6. While she stated that there was no
divorce between her and Abdul Gafoor after the first marriage, she
admitted that O.S. No.5 of 1977 filed by her and her son was
dismissed although interim injunction was granted earlier. While
she admitted that she filed the suit in 1960 to claim property from
her brother describing herself as Anthamma, wife of Moguliah on
the information given by her father, she claimed to have never
seen or lived with Moguliah, which is but unnatural and she had to
admit that her father told her that she was given in marriage to
Moguliah when she was 5 or 6 years old and her claim that Abdul
Gafoor asked her not to prosecute the suit, is uncorroborated.
The claim that Nikhanama in 1964 was undergone for the purpose
of record at the instance of the villagers, is uncorroborated by any
such villagers or relations and the self-serving and interested
claims of the 1
st defendant require satisfactory independent
corroboration before acceptance as a rule of prudence.
19. P.W.4 officiated as Khaji at the marriage of Abdul
Gafoor with the 1
st defendant and he brought the register of
marriages containing Ex.X.1 entry regarding the marriage of Abdul
Gafoor with the 1
st defendant on 10-02-1964. He was not present
when the 1
st defendant embraced Islam on the date of the
marriage, though he stated that Syed Ahmed Hussain, a Murshed,
converted the 1
st defendant into Islam and baptized her as Jamal
Bee. He stated the marriage under Ex.X.1 to be the first marriage
of Jamal Bee. The performance of the marriage by P.W.4 on 10-
02-1964 is admitted by defendants 1 and 3. Ex.X.1 is the marriage
certificate, the true translation into English of which shows that in
the Column ‘first or second Nikha of the bride’, the marriage was
mentioned to be the first Nikha of the bride. There was no notes
regarding first Nikha, for which a provision was made in the
certificate. While the recording of the marriage between Abdul
Gafoor and the 1
st defendant on 10-02-1964 under Ex.X.1 is
admitted, Ex.X.1, thus, gives no indication of the alleged oral
marriage between Abdul Gafoor and the 1
st defendant ten years
earlier in 1954. Ex.A.19 and Ex.A.20 are the Fatwas about the
invalidity of any marriage between Abdul Gafoor and the 1
st
defendant under Muslim law, if the 1
st defendant did not embrace
Islam prior to the said marriage and a contrary opinion is
expressed in another Fatwa stating that the performance of the
marriage under Ex.X.1 will have no effect on the validity of the first
marriage in 1954 and that the relationship between Abdul Gafoor
and the 1
st defendant was that of husband and wife. P.W.4
admitted Ex.B.1 booklet of Nikhanama issued to the 3
rd defendant
for his marriage written in his own hand and under his signature, in
which the 3
rd defendant was described as Mohd. Azam, son of
Mohd. Abdul Gafoor alias Nawab. But he explained that the 3
rd
defendant gave the father’s name, which was written in Ex.B.1.
Though P.W.4 admitted that Abdul Gafoor was present at the time
of Ex.B.1, the same is no proof of the legitimacy of the 3
rd
defendant, when the question is not whether Abdul Gafoor
acknowledged the paternity of the 3
rd defendant, but whether the
paternity of Abdul Gafoor was physically and factually possible at
all.
20. The 3
rd defendant as D.W.2 produced Exs.B.9 to
B.12 progress reports signed by Abdul Gafoor, Ex.B.13 certificate
of studies, Ex.B.14 transfer certificate, Ex.B.15 nativity certificate
and Ex.B.16 progress report to corroborate his claim that Abdul
Gafoor got him admitted in the school and was signing in various
documents as his father.
21. The 2
nd plaintiff as P.W.1 claimed that the 1
st
defendant embraced Islam and married Abdul Gafoor in 1964 by
which time the 3
rd defendant, born to the 1
st defendant through
Moguliah, her first husband, was 8 or 9 years old. He claimed the
original name of the 3
rd defendant to be Begari Ramoolu and
referred to O.S. No.11/1/60 in which the 1
st defendant described
herself as the wife of Moguliah as seen from Ex.A.4 certified copy
of the plaint. He claimed that there cannot be any private
marriages among Muslims whose marriages will be performed
only by khajis on written Nikhanamas and he also filed Ex.A.5
certified copy of the judgment in O.S. No.5 of 1977 claiming that it
was decided therein that Abdul Gafoor died issueless. P.W.1, the
first cousin of Abdul Gafoor, admitted that the plaint mentioned the
name of the father of the 3
rd defendant as ‘not known’ and that it
was not pleaded that the 3
rd defendant was born to Moguliah. He
also admitted that he has no record to show that the 3
rd defendant
was known as Ramoolu and that Abdul Gafoor and defendants 1
and 3 were residing together after the marriage of the 1
st
defendant with Abdul Gafoor. He could not say whether the 3
rd
defendant was born in 1956, but denied the 1
st defendant living
with Abdul Gafoor as his wife since 1954 or the 1
st defendant
embracing Islam in 1954. He further admitted that it may be
correct that a Muslim marriage can be gone through in the
presence of two adult witnesses and need not be in writing. He
also admitted not seeing Moguliah and not knowing him and also
not knowing the circumstances under which O.S. No.11/1/60 was
filed. He also admitted that Ex.A.5 judgment might have observed
that the 1
st defendant was having the 3
rd defendant as her son
through Abdul Gafoor and that the entitlement of the 3
rd defendant
to any share has to be decided in a separate suit for partition.
22. P.W.2 claimed that Abdul Gafoor, the son of his
mother’s brother, did not beget any children through the 1
st
defendant and that when he saw Abdul Gafoor and the 1
st
defendant in 1967, the 3
rd defendant was about 10 years old. He
also claimed that he was visiting Abdul Gafoor whenever he went
to Shivareddypet, but he did not see the 1
st defendant in the house
of Abdul Gafoor in 1964 or 1965. Though he denied the 1
st
defendant marrying Abdul Gafoor in 1954 and living with him since
then, he was not aware whether the 3
rd defendant was born to the
1
st defendant through Abdul Gafoor in 1956.
23. P.W.5 claimed that the 1
st defendant’s marriage with
Abdul Gafoor was performed about 20 or 22 years earlier and that
Abdul Gafoor had no issues through his two wives. He claimed to
have attended the marriage of the 1
st defendant with Abdul Gafoor,
but does not know the relationship between Abdul Gafoor and the
1
st defendant prior to that marriage or whether the 3
rd defendant
was born to Abdul Gafoor through the 1
st defendant.
24. In Ex.A.4 plaint in Case No.11/1/60 on the file of the
Munsif Magistrate, Vikarabad dated 22-06-1960, the 1
st defendant
was described as Begari Anthamma, wife of Moguliah, aged 38
years. The 1
st defendant filed the suit against her brother and
father for recovery of possession of land. Ex.A.6 is the certified
copy of the decree in the said suit dated 19-09-1960 with the same
description and the suit was dismissed as withdrawn with
permission to file a fresh suit. Exs.A.4 and A.6 do not fit in with
the claim of the 1
st defendant being married to Abdul Gafoor in
1954 itself.
25. Ex.A.5 is the certified copy of the judgment in O.S.
No.5 of 1977, dated 31-07-1978 between defendants 1 and 3
herein as plaintiffs and the 1
st plaintiff and the 2
nd defendant
herein and others as defendants. The judgment, in which the
pleadings were extracted, shows that the 3
rd defendant was
claimed to be the son of Abdul Gafoor through the 1
st defendant.
The defendants therein specifically claimed that Abdul Gafoor died
issueless and that the 3
rd defendant is the son of Begari Moguliah
and the 1
st defendant and was named as Ramoolu, whereas the
1
st defendant married Abdul Gafoor later and embraced Islam on
10-02-1964 at Shivareddypet. Specific issues were framed as to
whether Abdul Gafoor died issueless and whether the 3
rd
defendant is the son of Abdul Gafoor. The trial Court noted that it
is an admitted fact that late Abdul Gafoor died issueless and that
no issue was born to either Rasoolunnisa Begum or Jamal Bee,
the 1
st defendant herein. The trial Court also noted that no
evidence was led to prove that the 3
rd defendant herein was born
through Abdul Gafoor and that P.Ws.2 to 4 therein did not say that
the 3
rd defendant herein is the son of Abdul Gafoor. As the entire
evidence of both parties showed that Abdul Gafoor died issueless,
the trial Court held accordingly and further held that in view of the
said finding, the issue whether the 3
rd defendant herein is the son
of Abdul Gafoor did not arise. However, the trial Court noted in its
other findings that it is an admitted fact that the 1
st defendant
herein is the widow of Abdul Gafoor and that whether defendants 1
and 3 herein can succeed to the property of Rasoolunnisa Begum,
is a question of fact to be decided in a suit for partition. The trial
Court also observed that the limited question in that suit was
whether the plaintiffs are the owners and what was the evidence to
justify their ownership. The trial Court further observed that
whether the 1
st defendant herein was having a son, the 3
rd
defendant herein, at the time of her marriage, has also to be
decided as and when the Matruka is to be partitioned. Again it
was observed that so far as the share of the 3
rd defendant herein
is concerned, it has to be decided in a suit for partition of Matruka
property and the question whether he is the son of Begari Moguliah
or the son of Abdul Gafoor has to be decided in that suit and the
same was not relevant therein, in the suit for perpetual injunction.
The trial Court also noted that the suit filed by the defendants
therein for partition against the 1
st defendant herein was pending,
but still went on to hold that Abdul Gafoor died issueless claiming
the same to be an admitted fact, while it was clear from the
pleadings and evidence extracted in the judgment that the same
was never admitted and that it was the specific claim of
defendants 1 and 3 herein that the 3
rd defendant herein is the son
of Abdul Gafoor and the 1
st defendant herein. The judgment in
O.S. No.5 of 1977 admittedly remained unchallenged and has
become final.
26. The certified copy of deposition of the 1
st defendant
herein as P.W.1 in O.S. No.5 of 1977 shows in Ex.A.18 that she
admitted her name being Begari Anthamma previously and that
she filed the earlier suit against her mother and brother for
partition. She deposed on 08-02-1978 that she married Abdul
Gafoor at Shivareddypet 12 years earlier. Though she again
stated that she does not remember how many years passed after
the marriage, that takes the marriage to about 1966 and she did
not state about any earlier oral marriage. She admitted giving her
correct name and address in the partition suit against her brother
and she further specifically admitted that she was married to Abdul
Gafoor at Shivareddypet on 10-02-1964. Thus, O.S. No.11/1/60
and O.S. No.5 of 1977 including the evidence of the 1
st defendant
herein as P.W.1 therein do not corroborate the claim of the earlier
oral marriage between the 1
st defendant herein and Abdul Gafoor
earlier to the admitted marriage on 10-02-1964.
27. The learned senior counsel for defendants 1 and 3
referred to Muslim Law by Tyabji, Fourth Edition, pages 49 and 50
to show that the only requirement for a contract of marriage is
unequivocal declaration and acceptance, uttered at one meeting in
the presence of two witnesses and such a marriage which is a
purely civil contract, need not be in the presence of a Mulla or
Kaji. The same text book at page 544 while referring to the usual
practice in India of a Mulla or Kaji officiating at the marriage
contract and to recite benedictions, etc., specified that a marriage
not performed in the mode usually in the community would have to
be more strictly proved. It is admitted in the present case that the
usual practice of the presence of a Mulla or Kaji was admittedly
not followed at the time of the alleged marriage in 1954, which,
therefore, requires to be more strictly proved. The learned senior
counsel also referred to Mulla’s Principles of Mahomedan Law,
Nineteenth Edition, Chapter XIV (A) at Notes 252 and 259 about
essentials of marriage and difference of religion.
28. The learned senior counsel also referred to the
acknowledgement of paternity referred to in Muslim Law by Tyabji,
Fourth Edition from page 206 onwards and it is true that the
paternity of a child was stated to be presumed in any man, who
acknowledges it with the intention of admitting that it has been
established. But the same was stated to be subject to compliance
with five conditions. The first of the conditions is that the paternity
of the child is not established in anyone else and the 4
th of the
conditions is that the man could, at the time when the child was
begotten, have lawfully been the husband of its mother, which
implies that it has not been proved that the child is the offspring of
illicit intercourse; and that the alleged marriage has not been
disproved. The 5
th condition is that the acknowledgement is not
merely of sonship, but of legitimate sonship, which has to be
inferred from the circumstances justifying such inference. The
rule laid down by the Privy Council was also referred to therein
which makes such a statement or acknowledgement substantive
evidence on that aspect and thus, the paternity of the 3
rd
defendant can be presumed on the supposed acknowledgement of
Abdul Gafoor, only if Abdul Gafoor could have been husband of the
1
st defendant lawfully when the 3
rd defendant was begotten and
only when the alleged marriage between Abdul Gafoor and the 1
st
defendant was not disproved. As laid down by the Privy Council,
mere acknowledgement by itself cannot make the 3
rd defendant
legitimate son of Abdul Gafoor, which acknowledgement may be
substantive evidence only, if there is no other proof. The oral and
documentary evidence on record does not run consistently with
any presence of such legitimacy solely on the alleged
acknowledgement of Abdul Gafoor in the light of various other
circumstances referred to above.
29. It is true that in Syed Amanullah Hussain (died) and
others v. Rajamma and others
[1]
, the legal position with regard
to marriage and legitimacy under Mohamedan Law was dealt with
and it was noticed that neither any rite nor any religious ceremony
is essential. All that is necessary is that there should be a
proposal and an acceptance in the presence of witnesses. It was
also stated that a marriage may be established by direct proof or
by indirect proof and it may be presumed from prolonged
cohabitation combined with other circumstances or from
acknowledgement of legitimacy in favour of a child or the fact of
the acknowledgement by the man of the woman as his wife.
However, it was made clear that it is true that the presumption
does not apply, if the conduct of the parties is inconsistent with the
relationship of the husband and wife. But if there is no impediment
for a lawful marriage, such presumption will be raised by the
aforesaid circumstances. The learned Judge also made it clear
that acknowledgement doctrine does not apply to a case where
illegitimacy of the child is proved and established either because
the lawful union between the parents of the child is impossible or
the marriage itself being disproved. The doctrine applies only to a
case where the fact of marriage is not proved as distinguished
from disproved. In other words, it applies to cases of uncertainty.
Among other things, it was also observed that the person
acknowledged must not be known to be the child of another man.
To the same effect are the principles referred to in Chapter VI on
parentage in Muslim Law by Tyabji, Fourth Edition.
30. If these tests are kept in view, the probability is that
the 3
rd defendant might have been born on 05-06-1953 as
originally entered as his date of birth in Ex.B.36 entry in the
admission register of his school. The 3
rd defendant can never
claim to be the legitimate son of Abdul Gafoor through the 1
st
defendant, either the oral marriage in 1954 or the recorded
marriage in 1964 pleaded in defence being subsequent to his
birth. The oral marriage in 1954 as sought to be proved by the
corroborating evidence of D.Ws.4 to 6 does not appear to merit
acceptance in view of the proceedings in O.S. No.11/1/1960 and
O.S. No.5 of 1977 apart from the various other circumstances
arising out of the evidence referred to in detail above. The
admitted performance of the marriage of Abdul Gafoor and the 3
rd
defendant by P.W.4 on 10-02-1964 as per Ex.X.1 certificate and
the contents of Ex.X.1 certificate tend to discredit any earlier oral
marriage in 1954, the contents of Exs.A.19 and A.20 Fatwas about
the validity or invalidity of the marriages becoming irrelevant to
that extent. The admissions in O.S. No.11/1/1960 and O.S. No.5
of 1977 referred to in detail will have a negative impact on the
defence of defendants 1 and 3.
31. In Mohd. Serai v. Adibar Rahaman
[2]
, it was held:
“Suits may come and go, withdrawn with or
without liberty to sue afresh, dismissed or decreed, —
no matter which, — but statements made therein, — no
matter where, in pleadings, petitions, affidavits, or
evidence — remain for ever, and for all purposes too,
allowed by law, such as to be proceeded with as
admissions, when they are found to be such, so long as
they are not rebutted, (section 17 etc seq., Evidence
Act), or to be confronted with under S. 145 ibid.
Otherwise the court, no less the party interested, will be
deprived of very valuable evidence, nothing to say of a
premium being put on reckless allegations with no
apprehension of the makers thereof coming to grief in
future for such glibness.”
32. I n Salah Bin Ahmed v. Abdullah Bin Ewaz
Hamidan
[3]
, it was held that if from the facts it could be shown
that the admission was wrong, it would fail to have any effect. It is
only prima facie evidence against the party making the admission
and shifts the burden of proof to the other party if it is proved
directly or circumstantially that it was made under mistake of law
or fact.
33. Basant Singh v. Janki Singh and others
[4]
is also
relating to an admission by a party in a plaint signed and verified
by him, which may be used as evidence against him in other suits,
though it cannot be regarded as conclusive and it is open to the
party to show that it is not true. If the party knew the fact admitted
and it is not shown to be untrue or to have been made under some
error or misapprehension, it must be regarded as a strong piece of
evidence.
34. The decision in State of W.B. v. Hemant Kumar
Bhattacharjee and others
[5]
was relied on regarding the effect of
the judgment and decree in O.S. No.5 of 1977 on the present suit
and it was held therein that a wrong decision by a Court having
jurisdiction is as much binding between the parties as a right one
and may be superseded only by appeals to higher tribunals or
other procedure like review, which the law provides.
35. Mahalingeshwara Devaru and another v.
Seetharama Bhatta and another
[6]
was also to the same effect
stating that the principle of res judicata is not effected by a
subsequent view taken by a superior Court in any other case and
the earlier judgment does not become anytheless final and binding
between the parties and its legal effect remains the same whether
the reason for the decision was sound or not, even if the earlier
judgment was found to be wrong in the later judgment of the
superior Court. Similar was the decision in Abdul Wasey v.
State of U.P. and others
[7]
, wherein also it was held that even if
the decision in the earlier proceedings be wrong, still it will operate
as res judicata in the subsequent proceedings provided the
necessary conditions for the applicability of the principle are
satisfied. I n Maheshwari Prasad and others v. Shiv Shankar
Prasad and others
[8]
, the principle that if necessary evidence is
on the record and although the plea of res judicata was not
specifically taken in the written statement nor any issue was
raised, such a question being a pure question of law, can be raised
at any stage of the proceedings. It was also held that even if a
party might have waived the plea in the lower Court, it may revive
it at the appellate stage of the same case. I n Pawan Kumar
Gupta v. Rochiram Nagdeo
[9]
, it was made clear that it is the
decision on an issue, and not a mere finding on any incidental
question to reach such decision, which operates as res judicata.
In that case, though the word ‘dismissed’ has been employed in
the last paragraph of the judgment, a reading of it as a whole
showed that the plaintiff had won the suit and the dismissal was
solely because the amount claimed was deposited by the
defendant during the pendency of the suit. Concluding the legal
position, it was stated that the decision made in the suit on a vital
issue involved therein would operate as a res judicata in the
subsequent suit between the same parties, if the dismissal of the
suit was on account of the extinguishment of the cause of action
or any other similar cause.
36. The trial Court, of course, did not conclude O.S.
No.11/1/1960 or O.S. No.5 of 1977 to be resulting in any estoppel
or res judicata, but concluded on appreciation of oral evidence that
it is difficult to be persuaded to accept that oral marriage between
the 1
st defendant and Abdul Gafoor in 1954 and a Nikhanama was
completed in 1964 only for the purpose of record and to avoid
complications in future. The trial Court also concluded after
elaborate discussion that the 3
rd defendant is not the legitimate
son of Abdul Gafoor and cannot be a legal heir to his Matruka,
though the 1
st defendant is the legally wedded wife of Abdul Gafoor
in 1964. For the various reasons discussed herein, there is no
ostensible reason to differ from the conclusion of the trial Court in
this regard. Whether the 3
rd defendant was born on 05-06-1953 or
whether the marriage between the 1
st defendant and Abdul Gafoor
was performed on 10-02-1964, the 3
rd defendant can never be
considered to be the legitimate child of the 1
st defendant and Abdul
Gafoor and without replication of the various facts and
circumstances all over again, this point is to be answered that it is
not proved that the 3
rd defendant is the legitimate son of Abdul
Gafoor and consequently, the question of any acknowledgement of
paternity by Abdul Gafoor is irrelevant even if Abdul Gafoor
acknowledged the 3
rd defendant as his son and treated him as
such since his marriage with the 1
st defendant, the same adds no
respectability and acceptability to the legal status of the 3
rd
defendant as the legitimate child of Abdul Gafoor.
37. Point No.2:
The plaint alleged that Abdul Gafoor got the patta for plaint A
schedule lands transferred in the name of his first wife
Rasoolunnisa Begum while he got them in the partition from his
father’s estate and that Abdul Gafoor succeeded to Rasoolunnisa
Begum as her sole heir on her death issueless during his life time
in 1975.
38. Defendants 1 and 3 in their written statement
admitted that Rasoolunnisa Begum died issueless during the life of
Abdul Gafoor, but claimed that Rasoolunnisa Begum was the sole
owner and possessor of plaint A schedule lands, which she sold to
the 1
st defendant under a sale deed dated 19-03-1975, due to
which the said lands are owned and possessed by the 1
st
defendant. They, hence, denied Abdul Gafoor succeeding to plaint
A schedule lands. The written statement made no reference to
any gift of plaint A schedule lands to Rasoolunnisa Begum by
Abdul Gafoor or Rasoolunnisa Begum getting only half of the plaint
A schedule lands in case of Abdul Gafoor’s second marriage, with
the second wife getting the other half of the lands.
39. The 7
th defendant claimed Rasoolunnisa Begum to be
seriously sick and bedridden for about 6 to 7 months prior to her
death and Abdul Gafoor to be in enjoyment of the suit lands on
succeeding to the estate of Rasoolunnisa Begum.
40. The 2
nd plaintiff as P.W.1 claimed that the suit lands
devolved on Abdul Gafoor being the share of his father got in
partition between the 1
st plaintiff, the 2
nd defendant, Mohd. Abdul
Khader and the father of Abdul Gafoor. He claimed that though
Abdul Gafoor got the patta for plaint A schedule properties in the
name of Rasoolunnisa Begum, his first wife, the transfer of patta
was nominal with no concern for Rasoolunnisa Begum concerning
title or possession. Rasoolunnisa Begum died in 1975 without
issues, her death extract being Ex.A.3, leaving Abdul Gafoor as
her heir. Abdul Gafoor died on 01-01-1977 as per Ex.A.2 death
extract and he had no issues or heirs, except the 1
st defendant,
his second wife, married in 1964. P.W.1 further claimed that
Rasoolunnisa Begum was seriously ill before her death and was
not in a position to sit or move about and she could not have
alienated the plaint A schedule lands, in which she has no right or
interest. He claimed that the 1
st defendant will get one-fourth
share in the suit properties and the remaining three-fourth share
has to be divided equally between the plaintiffs and the 7
th
defendant, the legal representative of the deceased 2
nd
defendant. He filed Exs.A.7 to A.11 certified copies of pahanies in
respect of plaint A schedule properties relating to fasli 1357, 1951,
1952, 1953-54 and 1982-83 years respectively, apart from Ex.A.12
Chowfasla for the year 1975-76, Ex.A.14 faisal patti for 1956 and
Ex.A.15 pahani for 1975-76. Though he admitted that the plaint
mentioned that the patta for plaint A schedule lands was
transferred by Abdul Gafoor in the name of Rasoolunnisa Begum,
he denied Rasoolunnisa Begum owning the said property and
though he had no document relating to the partition between his
father and his brothers, he admitted coming to know about
Rasoolunnisa Begum selling half of the plaint A schedule
properties to the 1
st defendant under Ex.B.4 registered sale deed
and while claiming Ac.0.20 guntas in S.No.152 to be in his
possession as shown in Ex.A.11, he denied Abdul Gafoor
executing any Will in his life time stating that in case he marries
another woman, the suit properties will devolve on both his wives
equally or that the 1
st defendant became the absolute owner in
respect of half of the plaint A schedule properties by virtue of a
sale deed by Rasoolunnisa Begum and the remaining half of the
plaint A schedule properties under the Will executed by Abdul
Gafoor. P.W.2 claiming Abdul Gafoor to be his maternal uncle’s
son, stated about the suit lands falling to the share of Abdul Gafoor
in the partition and his having two wives and Rasoolunnisa Begum
having no concern with the title of the plaint A schedule
properties. Though he admitted that he was not present at the
time of partition or saw any document relating to the same, he
asserted that they are not the absolute properties of Rasoolunnisa
Begum, even if the patta for 12 or 13 acres of wet land stood in her
name. He, of course, does not know about her selling half of the
plaint A schedule properties to the 1
st defendant.
41. P.W.3, who was police Patel and Mali Patel of
Sivareddypet till 1984 for 35 years, also stated about the partition
and he claimed that the plaint C schedule house stood in the name
of Abdul Gafoor in the Gram Panchayat records. He also stated
that the suit lands are not the self-acquired properties of
Rasoolunnisa Begum.
42. P.W.5 is one of the purchasers of the properties from
the 1
st plaintiff and the 2
nd defendant under Ex.X.2 and he filed
Ex.X.3 pahani for 1954-55 in respect of S.Nos.141 and 144/1 of
Sivareddypet and Ex.X.4 ryot passbook issued to him. While he
does not know personally about the acquisition and title of the suit
lands and suit house, he does not know whether Abdul Gafoor
gifted some of his properties to Rasoolunnisa Begum or when he
married Rasoolunnisa Begum or whether Rasoolunnisa Begum
sold half of her share to the 1
st defendant.
43. The 1
st defendant as D.W.1 claimed that Abdul
Gafoor executed a gift deed bequeathing about Ac.12.38 guntas of
Sivareddypet in favour of Rasoolunnisa Begum towards payment
of dower, in which it was also recited that in the event of his
marrying a second wife, both the wives will be entitled to equal
shares out of the said Ac.12.38 guntas. She claimed the plaint C
schedule house also to be part of the gift deed and that
Rasoolunnisa Begum sold her half share to her under the original
of Ex.B.4 registered sale deed, dated 19-03-1975. She also filed
Ex.B.6 pahani and Exs.B.7 and B.8 ryot passbooks issued in her
favour and claimed to be in possession of the entire plaint A
schedule properties and other properties. While she spoke in
detail about the various properties since the times of her father-inlaw,
she claimed to have purchased the lands under Ex.B.4 for
Rs.2,000/-, for which Munnu Patel and Rahimoddin and Abdul
Gafoor were witnesses. The lands were stated to be the gifted
properties of Rasoolunnisa Begum in Ex.B.4 and she stated that
the gift in favour of Rasoolunnisa Begum by Abdul Gafoor was
registered and she admitted that no appeal was filed against the
dismissal of O.S. No.5 of 1977. She admitted to be having no
disputes with P.Ws.3 to 5 indicating that their evidence need not
be discredited.
44. The 3
rd defendant as D.W.2 claimed that Abdul
Gafoor, his father gave the entire suit properties to Rasoolunnisa
Begam in lieu of dower and executed a document in her favour
stating that in case of his contracting a second marriage, the
second wife and Rasoolunnisa Begum should share the property
equally. He claimed that Rasoolunnisa Begum sold her half share
of the plaint A schedule properties to D.W.1 under the original of
Ex.B.4. He produced Exs.B.17 to B.20 house tax demand notices
and receipt, Ex.B.21 land revenue receipt in favour of
Rasoolunnisa Begum, Ex.B.22 land revenue receipt in favour of
Abdul Gafoor, Exs.B.23 to B.27 receipts showing repayment of
loan to Vikarabad Co-operative Land Mortgage Bank by
Rasoolunnisa Begum to discharge the mortgage of the plaint A
schedule property, Ex.B.28 clearance certificate issued by the
bank, Exs.B.29 to B.33 land revenue receipts paid by the 1
st
defendant and Ex.B.34 house tax receipt paid by his father in
support of his claims and he relied on Ex.B.35 memorandum of gift
executed by Abdul Gafoor in favour of Rasoolunnisa Begum. He
admitted that he does not know the scribe of Ex.B.35 or the
attestors and he explained that the survey numbers mentioned in
Ex.B.35 are old survey numbers corresponding to S.Nos.150, 151
and 152. He denied not pleading in their written statement about
the gift by Abdul Gafoor to Rasoolunnisa Begum.
45. D.Ws.4 and 5 did not throw any light on the issue of
properties, while D.W.6, the brother of Rasoolunnisa Begum,
claimed about attesting Ex.B.4 sale deed, under which half of the
plaint A schedule properties was sold by Rasoolunnisa Begum to
the 1
st defendant. He claimed that the document was attested by
Abdul Gafoor, the 2
nd defendant, Mohammed Akbar and
Mohammed Jahangir. He claimed that Abdul Gafoor gifted the
properties to Rasoolunnisa Begum in lieu of mahr, which were
mutated in the name of Rasoolunnisa Begum and he can identify
the signatures of Abdul Gafoor in Exs.B.4, B.11 and B.12. He
claimed the gift to Rasoolunnisa Begum to be in 1358 fasli, but
admitted that he was not present at the time of the gift and that the
gift was not registered. He admitted that he does not know when
and in whose presence the gift was made and written or
registered. He claimed the death of Rasoolunnisa Begum to be
sudden, but she was ill for three or four months with paralysis
preceding her death in 1976. He claimed that stamp paper worth
Rs.200/- was purchased by Abdul Gafoor for Ex.B.4, but claimed
that Ex.B.4 did not mention that Rasoolunnisa Begum got the
properties by way of gift from Abdul Gafoor in lieu of mahr. He
claimed to have applied for leave and came to attest Ex.B.4.
46. The translation of Ex.B.35 in English recited about
Abdul Khader owning lands in S.Nos.109, 110, 111, 114 and 153,
which do not relate to the survey numbers of plaint A schedule
lands, but D.W.2 stated that they were corresponding old survey
numbers. Ex.B.35 stated that in lieu of mahr, the property was
delivered to the ownership, possession and enjoyment of
Rasoolunnisa Begum and gifted to her. The document itself
further stated that if Abdul Gafoor marries again a second wife,
she will also be entitled for a share of 50% in the said immovable
properties and the document further recited that it should be got
registered as per law.
47. Ex.B.4 registered sale deed, dated 19-03-1975 by
Rasoolunnisa in favour of the 1
st defendant covers the land in
S.Nos.150, 151 and 152 and Rasoolunnisa stated that she owned
and possessed those ancestral lands. While it is true that Abdul
Gafoor and the 2
nd defendant were claimed to have attested
Ex.B.4, Ex.B.4 nowhere traces the rights of Rasoolunnisa to be
flowing from Ex.B.35.
48. Concerning Ex.B.35 unregistered document, reliance
is placed on Inspector General of Registration and Stamps v.
Tayyaba Begum
[10]
by a Full Bench of this Court. The document
recited the intention of the executant to make a hiba (gift) of a
house to the younger son of the executant, which was intended to
be confirmed by executing a registered gift deed. As a large sum
of money was stated to be required for registration, the executant
claimed to have made an unconditional gift earlier to the
document, which was accepted, followed by delivery of
possession to the donee and the document declared about the
transfer of the house under the oral gift earlier, from which date
the property was in possession and enjoyment of the donee. The
Full Bench referred to Section 123 of the Transfer of Property Act,
for which an exception was made in case of persons governed by
rules of Mahomadan Law under Section 129. Noting that an oral
gift can be made by a Mahomadan, followed by delivery of the
property, dispensing with the necessity to execute registered
instruments in cases falling under Section 129, it was observed
that it does not prevent the persons governed by the rules of
Mahomadan Law to effect the transfer in the manner contemplated
by Section 123. It is only in cases where the parties avail
themselves of the benefits of the rule of Mahomadan law in this
behalf, they are not required to have a stamped document duly
registered. If a document is mere memorandum of the things
already transacted and did not embody the gift, no registered
document is necessary. On facts, the Full Bench held that the
document before it was indicative of the desire of the executant
that it should serve as evidence of the gift and not as a
memorandum of a past transaction and is, hence, within the sweep
of Section 17 of the Indian Registration Act and is chargeable to
duty as a gift deed.
49. Even earlier in Ghulam Abbas v. Mt. Razia Begum
and others
[11]
, a hiba-bil-ewaz (a grant or gift for a consideration)
was considered to be more in the nature of an exchange than a gift
and it was held that an oral transfer of immovable property worth
more than Rs.100/- cannot be validly made by a Muslim husband
to his wife by way of grant in lieu of dower debt, which also
exceeds R.100/-. It is a sale which can be effected by means of a
registered instrument only.
50. Likewise in Mt. Zainab Bi v. Jamalkhan and
others
[12]
following Mahabir Prasad v. Mustafa Hussain
[13]
, it
was held that hiba-bil-iwaz amounts to a sale and requires a
registered document.
51. Similarly, in Masum Vali Saheb and others v. Illuri
Modin Sahib
[14]
, a Division Bench after an exhaustive reference
to the case law on the subject, concluded that hiba-bil-ewaz is a
sale within the meaning of Section 54 of the Transfer of Property
Act and unless made by a written instrument, duly registered, will
not convey title to the person in whose favour such a conveyance
is made. An oral conveyance of immovable property worth more
than Rs.100/- to the wife by a Muhammadan husband was held to
be invalid.
52. Thus, the question whether the document is evidence
of the gift itself or is only a memorandum of a past transaction
determines the manner in which the document has to be treated
with reference to Sections 123 and 129 of the Transfer of Property
Act.
53. I n Shaik Khadaru Masthan v. Smt. Sayyed
Fathimun Bee
[15]
, a learned Judge of this Court was dealing with
the contention that the law governing Muslims does not require a
gift to be evidenced by a document and even if evidenced by a
document, the same is not required to be registered. Referring to
the principles laid down by the Apex Court, it was noted that
though gift by a Mahomedan is not required to be in writing and
consequently need not be registered under the Registration Act,
the gift will be complete, when there should be a declaration of the
gift by the donor, acceptance of the gift, express or implied, by or
on behalf of the donee, and delivery of possession of the subject
matter of the gift by the donor to the donee. Oral gift by delivery of
possession under Mahomedan Law was held to be valid.
However, as the document before His Lordship, which was
unregistered and unstamped, was the document under which the
property was gifted, it was held that an unregistered gift deed
effecting immovable property cannot be admitted in evidence even
for a collateral purpose.
54. The question also fell for consideration in
Mohammed Moinuddin v. Mohammed Mahmood Ali and
others
[16]
, wherein the learned Judge observed that instances of
oral gift, by a muslim, followed by written documents, are not
lacking and in such cases, the document does nothing more than
evidencing a previous transaction of oral gift. It does not require
any registration. Therefore, much would depend on whether the
document refers to the past transaction, or it is contemporaneous
with the very transaction. Referring to Inspector General of
Registration and Stamps v. Tayyaba Begum (10 supra), the
learned Judge opined that the document has to be read as a whole
and the contents have to be taken into account. On facts, the
learned Judge concluded the document to be a memorandum
confirming the past transaction. Tyabji’s Muslim Law, Fourth
Edition, dealing with gifts, specifically stated that when the
obligation to pay mahr takes the form of a debt in favour of the
wife and the property is transferred in lieu of mahr, it is a transfer
for consideration and not a gift. But when it is agreed that
immovable property will be given to the wife as mahr, no prior debt
having been created by way of mahr, then the transfer of property
is without consideration and may be made orally.
55. I n Mohd. Mahaboobali Pasha and others v.
Rahamatunnisa and others
[17]
, another learned Judge after an
exhaustive reference to the precedents, noted that the standard of
proof required for satisfying the necessary ingredients of a valid
gift under Mahomedan Law had not been established, while it is
not necessary that there should be a deed of gift in order to make
it a valid one, while, of course, if there is a deed, it should be
registered, if it is not a memoranda of an already effected gift.
56. Mulla’s Principles of Mahomedan Law, Nineteenth
Edition also considered hiba-bil-iwaz to be, as distinguished from a
simple gift, a gift for a consideration and the conflict of judicial
opinion on whether a document transferring immovable property to
the wife in lieu of dower is a sale or not, was noted therein. In
Tyabji’s Muslim Law, Fourth Edition, at page 413 with reference to
Masum Vali Saheb and others v. Illuri Modin Sahib (14 supra),
it was submitted that transfer of a house in consideration of
release of dower debt is not a hiba-bil-iwaz at all. But the opinion
of the author cannot belittle the principle laid down by the
precedent binding on this Court.
57. Another contention of the appellants is even to the
extent of contending that there was no reference to Ex.B.35 in the
written statement of defendants 1 and 3 and no evidence could
have been let in about Ex.B.35 without a pleading. They relied on
Bandi Narsaiah (died) and others v. Virabathini Mallesham and
another
[18]
, wherein a learned Judge of this Court held that
without there being a plea about the tenancy of the appellant
therein, such allegation for the first time in the evidence cannot be
accepted, as it is an elementary principle that no evidence without
pleading can be looked into. To the same effect is the decision of
another learned Judge of this Court in Kondaveti Francis v. M.
Ludramma and others
[19]
, wherein it was held that pleadings
form the foundation of the case by which the parties are bound and
they cannot travel beyond the pleadings or set up a new case
which is not propounded in the pleadings and any amount of
evidence contrary to the pleadings cannot be looked into. The
Apex Court also reiterated the same principle in Vinod Kumar
Arora v. Smt. Surjit Kaur
[20]
.
58. In Prataprai N. Kothari v. John Braganza
[21]
also,
it was held that it is settled law that in the absence of any plea no
evidence is admissible.
59. The appellants also questioned the sufficiency of
proof of Ex.B.35 referring to Narbada Devi Gupta v. Birendra
Kumar Jaiswal and another
[22]
, wherein the Apex Court
reiterated the legal position that mere production and marking of a
document as exhibit by the Court cannot be held to be a due proof
of its contents and its execution has to be proved by admissible
evidence, that is, by the evidence of those persons who can
vouchsafe for the truth of the facts in issue. The situation is
stated to be different where the documents are produced, they are
admitted by the opposite party, signatures on them are also
admitted and they are marked thereafter as exhibits. No person
connected with or relating to execution of Ex.B.35 was examined,
while none of the witnesses examined had any personal
knowledge of the alleged execution of Ex.B.35. Ex.B.35 not being
an admitted document, therefore, it is also not open to be
considered to have been proved. While the trial Court considered
Ex.B.35 to be a thirty year old document, the suit being filed in
1977 in about 28 years from the document, the appellants strongly
questioned any presumption in favour of Ex.B.35 as a document
entitled to such presumption under Section 90 of the Evidence
Act. Another strong circumstance canvassed against the truth of
Ex.B.35 is about the document Ex.B.35 being scribed allegedly in
1358 fasli on a stamp of 1368 fasli.
60. The trial Court in the impugned judgment noted that
the undisputed fact is that late Abdul Gafoor was the absolute
owner and possessor of all the suit properties and they are his
Matruka. Though the trial Court noted that the gift of the suit
properties to Rasoolunnisa Begum by Abdul Gafoor and execution
of Ex.B.35 were not mentioned in the written statement of
defendants 1 and 3 nor were mentioned in Ex.B.4 sale deed, in
which the properties were specified as ancestral properties, it
relied on the statement in the written statement that Rasoolunnisa
Begum as the absolute owner sold the properties to the 1
st
defendant and it is difficult to accept such elastic application of the
principle of a necessary pleading being the inescapable basis for
production of any evidence. The trial Court also felt that physical
delivery of possession of the properties by the husband to the wife
is not necessary in such a case, as patta was mutated in the
name of Rasoolunnisa Begum and the production of Ex.B.35 by
the vendee of the donee. The absence of registration was also
considered not to effect the validity of Ex.B.35 and the
presumption under Section 90 of the Evidence Act was drawn in
favour of the said document. While it is true as observed by the
trial Court that obtaining of a loan by mortgage, its discharge, etc.,
by Rasoolunnisa Begum were evidenced by the documents filed,
the conclusion that Rasoolunnisa Begum acquired title and sold
half of the properties under Ex.B.35 does not appear to be in tune
with the probabilities arising out of the evidence on record or the
principles laid down by the precedents referred to above.
61. To summarise, there was no specific plea or
evidence of any valid oral gift preceding Ex.B.35 from Abdul
Gafoor to Rasoolunnisa Begum. Ex.B.35 was also contended to
be styled as bequest, which is impermissible in Mahomedan Law,
apart from which the English translation of Ex.B.35 clearly states
that Abdul Gafoor had decided to give specified properties in lieu
of mahr amount to Rasoolunnisa Begum and delivered the property
to the ownership, possession and enjoyment of Rasoolunnisa
Begum and executed the deed of gift in her favour. The language
appears to be clear and unambiguous that formation of intention,
implementation of the decision and gifting along with delivery of
possession were contemporaneous with the execution of the deed
of gift and therefore, the document requires to be duly stamped
and registered as such and it cannot be construed to be a
memorandum of recording of an earlier oral gift. Even otherwise,
if a gift in lieu of dower/mahr were to be considered as a sale
requiring registration as such, even then Ex.B.35 could not have
conveyed any rights or interests to Rasoolunnisa Begum. The
declaration by Abdul Gafoor under Ex.B.35 about both his wives
being entitled to 50% of the immovable properties covered by the
document in the event of his second marriage also, is a
contemporaneous expression of the intention, decision and gifting
and therefore, Ex.B.35, which is not proved to have been duly
stamped and which is admittedly unregistered, cannot be looked
into for any purpose and could not have been admitted into
evidence. While the document was not 30 years old by the time of
filing of the suit, any presumption under Section 90 of the
Evidence Act could have been only an aid in corroboration of other
evidence on record and in the absence of examination of any
person connected with Ex.B.35 and its execution, the document
could not have been considered proved in any manner, even if it
were to be considered admissible for any collateral purpose. As
such, neither Rasoolunnisa Begum could have been claimed to be
the owner of plaint A and C schedule properties nor could the 3
rd
defendant have claimed to have become the owner of half of such
properties after her marriage with Abdul Gafoor under Ex.B.35.
62. Ex.B.4 registered sale deed claimed to have been
executed by Rasoolunnisa in favour of the 1
st defendant, recited
the lands in S.Nos.150, 151 and 152 to be the ancestral lands of
Rasoolunnisa contrary to the evidence based on Ex.B.35 and on
the own evidence and pleadings of defendants 1 and 3,
Rasoolunnisa could not have any title to transfer the lands as
ancestral lands and in view of the conclusions about Ex.B.35,
under which Rasoolunnisa Begum is not proved to have acquired
any title, she could not have been competent to transfer half of
such properties in the plaint A schedule to the 1
st defendant under
Ex.B.4. The claim of ownership of the properties by the 1
st
defendant should have, therefore, failed on the evidence before the
Court and the failure to challenge Exs.B.35 and B.4 in any other
separate proceedings would not have mattered, when Ex.B.35 is
illegal and void and Ex.B.4 could not have been executed without
transfer of any title or interest under Ex.B.35. Under the
circumstances, the conclusions of the trial Court against the
appellants cannot be sustained and it has to be concluded that the
gift in favour of Rasoolunnisa Begum and the 1
st defendant by
Abdul Gafoor under Ex.B.35 and the sale by Rasoolunnisa Begum
to the 1
st defendant under Ex.B.4 were not proved to be true, valid
and binding on the plaintiffs and defendants 2 and 7.
63. Point No.3:
In view of the factual conclusions on points 1 and 2, plaint
A, B and C schedule properties were available for partition on the
death of Abdul Gafoor between his wife, the 1
st defendant, and his
paternal uncles, the 1
st plaintiff and the 2
nd defendant, in the ratio
of 4, 6 and 6 annas respectively out of 16 annas. Plaint B
schedule property was already the subject of the preliminary
decree by the trial Court and the plaint B schedule properties were
stated to have been divided accordingly as per the preliminary
decree. Plaint A and C schedule properties also, in view of the
findings herein, should have been subjected to the same division.
64. However, an additional angle is added to the
questions in issue due to the death of the 1
st defendant during the
pendency of the appeal leaving the 3
rd defendant alone as her
heir. The appellants contended that as the 3
rd defendant cannot
be considered to be the legal heir of Abdul Gafoor and as Abdul
Gafoor and Rasoolunnisa Begum died issueless and as the 1
st
defendant also died without any issues through Abdul Gafoor, the
entire A and C schedule properties should go to the heirs of the 1
st
plaintiff and the 2
nd defendant.
65. Even if the entire case of the 1
st plaintiff and the 2
nd
defendant were to be accepted, the 1
st defendant as the wife of
Abdul Gafoor admittedly became entitled to one-fourth share in the
Matruka properties of Abdul Gafoor on the death of Abdul Gafoor
and her right to such one-fourth share did not get postponed by
any factual or legal event and it was only after the impugned
judgment and preliminary decree in the suit that she expired during
the pendency of this appeal. It was clearly stated in Muslim Law
by Tyabji, Fourth Edition
[23]
, under Hanafi Law of Inheritance at
Note 706 at pages 819 and 820 that under Hanafi Law, though an
illegitimate child and its father are not related in law, nor
competent to inherit from each other, but the mother and its
illegitimate offspring are competent to do so. Similarly, in Mulla’s
Principles of Mahomedan Law, Nineteenth Edition
[24]
, it was
clearly stated in Note 85 at page 81 that under Hanafi Law of
Inheritance, an illegitimate child is considered to be the child of its
mother only, and as such it inherits from its mother and its
relations, and they inherit from such child. The principle was
stated to be with reference to Tagore Law Lectures, 1873
[25]
at
page 123. In the illustrations given, the illegitimate son of the
sister of a deceased Mahomedan female was shown to be entitled
to half share, while the husband of the female will be entitled to the
remaining half share as being related to the deceased through his
mother though illegitimate.
66. Rahmat Ullah v. Maqsood Ahmad
[26]
by a Division
Bench was concerning the rights of Rahmat Ullah who was found
to be the illegitimate son of the mother of the owner of the house in
dispute, who was, therefore, not the uterine brother of the owner.
The question considered was whether an illegitimate child of one
mother can be considered the uterine brother of the legitimate
child of the same mother. Shama Churun Sircar’s Tagore Law
Lectures, 1874 on the Muhammadan Law
[27]
, page 275 were
referred to apart from Baillie’s Digest of Muhammadan Law
[28]
and the passage above referred to from Muhimmadan Law by
Tyabji was also referred to. Referring to Baillie’s Digest of
Muhammadan Law at page 703, it was concluded that there can be
little doubt that under the Hanafi Law of Inheritance, an illegitimate
child can inherit from his mother and her relations. It was pointed
out that when there is a question of illegitimate child inheriting the
property of his or her mother or through him or her mother, the
illegitimate child has, in law, no father and he or she can have
nothing to do with his or her mother’s relations by subsequent
marriage, as a result of which new relationships arise. For
purposes of inheritance, there must be some relationship between
the person, on whose death the succession has opened, and the
person who claims title to succeed. In the present case, the
succession on the death of Abdul Gafoor opened long prior to the
suit itself and the 1
st defendant became entitled to one-fourth
share in the Matruka of Abdul Gafoor and became the owner of
such one-fourth share in the eye of law since then. On the death
of the 1
st defendant, succession to her has opened and the 3
rd
defendant is her only issue who can claim that there was
relationship between the 1
st defendant and himself, the succession
having opened on the death of the 1
st defendant in his favour due
to the relationship between them. The Division Bench had also
referred to the decision of Calcutta High Court in Bafatun v.
Bilaiti Khanum
[29]
, where it was held that among the Sunni sect
illegitimacy is no bar to the person inheriting from his mother and
his maternal relations. As the entitlement of the 3
rd defendant to
the one-fourth share in the properties belonging to the 1
st
defendant is not due to any relationship with Abdul Gafoor or his
family and as the 3
rd defendant is entitled to inherit the property of
his mother, a preliminary decree should be passed in his favour in
respect of the one-fourth share in the plaint A and C schedule
properties also. Hence, it has to be concluded that the 3
rd
defendant and the legal representatives of the deceased 1
st
plaintiff and the 2
nd defendant will be entitled to 4/16
th
, 6/16
th and
6/16
th share in plaint A and C schedule properties also.
67. Point No.4:
In view of the findings on points 1 to 3, the impugned
judgment and preliminary decree of the trial Court have to be
reversed in respect of plaint A and C schedule properties, granting
a preliminary decree in favour of the 3
rd defendant and the legal
representatives of the deceased 1
st plaintiff and 2
nd defendant,
while, as already stated, plaint B schedule properties are not the
subject of the appeal or the cross-objections and they are not the
subject matter of adjudication herein. The appeal should
accordingly succeed. Even the prayer in the plaint is only for
6/16
th share to the 1
st plaintiff in A, B and C schedule properties of
the plaint and the appeal also is for only such 6/16
th share to the
1
st plaintiff in the plaint A, B and C schedule properties also as
prayed for in the suit. The grant of 6/16
th share to the legal
representatives of the 2
nd defendant and 4/16
th share to the 3
rd
defendant will also be only in accordance with the prayer in the
suit and the appeal, which remained unamended and unchanged
even after the death of the 1
st defendant.
68. Therefore, the judgment and preliminary decree in
O.S. No.12 of 1984 on the file of the Subordinate Judge’s Court,
Vikarabad, dated 05-08-1987 are set aside to the extent of
dismissal of the suit in respect of plaint A and C schedule
properties and a preliminary decree is passed in respect of plaint
A and C schedule properties entitling the legal representatives of
the deceased 1
st plaintiff to six shares, the legal representatives of
the deceased 2
nd defendant to six shares and the 3
rd defendant to
four shares out of sixteen shares, into which the plaint A and C
schedule properties shall be divided and such physical division
and partition by metes and bounds shall be made on a separate
application through a commissioner to be appointed for the
purpose. The parties shall bear their own costs throughout and
the appeal is allowed and the cross-objections are dismissed
accordingly.
_____________________
G. BHAVANI
PRASAD, J
Date: 21-08-2012
Svv
[1]
1976(2) APLJ 323 HC
[2]
AIR 1968 CALCUTTA 550
[3]
AIR 1956 HYDERABAD 43
[4]
AIR 1967 Supreme Court 341
[5]
AIR 1966 SUPREME COURT 1061
[6]
AIR 1978 KARNATAKA 213
[7]
AIR 1978 ALLAHABAD 247
[8]
AIR 1978 PATNA 235
[9]
(1999) 4 Supreme Court cases 243
[10]
AIR 1962 ANDHRA PRADESH 199
[11]
AIR 1951 Allahabad 86
[12]
AIR 1951 NAGPUR 428
[13]
AIR 1937 PC
[14]
AIR 1952 Madras 671
[15]
2007(6) ALT 220
[16]
2007(2) ALT 38
[17]
2008 (6) ALT 33
[18]
1997(4) ALT 583
[19]
2000 (3) ALT 433
[20]
AIR 1987 SUPREME COURT 2179
[21]
(1999) 4 Supreme Court Cases 403
[22]
(2003) 8 Supreme Court Cases 745
[23] Muslim Law by Tyabji, Fourth Edition
[24] Mulla’s Principles of Mahomedan Law, Nineteenth Edition
[25]
Tagore Law Lectures, 1873
[26]
AIR 1952 (All.) 640
[27]
Shama Churun Sircar’s Tagore Law Lectures, 1874 on Muhammadan Law
[28]
Baillie’s Digest of Muhammadan Law
[29]
30 Cal. 683

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