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Personal Laws-Muslim Law-Partition-Shares of classes of heirs in inherited property-Entitlement to. Personal Laws-Delay in bringing LRs. on record despite notice-One heir already on record representing all other heirs-No question of abatement- Substitution allowed-No injustice. One HA died in 1955 leaving behind a widow P-1, who died pending suit in 1966, two daughters P-2 and D-5 and three sons JA, lAf and Sh. JA left behind a son D-1 and a daughter D-2. IA left behind a daughter D-3 who was married to D-l. SH pre- deceased IA, leaving behind two sons D-4 and L. The shares and extent were in controversy. The High Court found that the property purchased by HA in the name of his son SH belonged to the latter alone. Since SH had pre-deceased IA, the question arose whether HA was sharer in the estate of SH and also whether P-2 was entitled to a share in estate of D-5 who died pending suit. =Allowing the appeal, this Court HELD: 1.1. On the basis of the inheritance provisions postulated in Mulla’s Principles of Mohamedan Law IA’s share was l/6th out of which his widow P-I and daughter P-2 were to take equal respective share under law. [140-D] 1.2. On the basis of the table in the said treatise, the two daughter of D-5 were found entitled to l/3rd share each as “shares” and the balance l/3rd remained as “residue”. Relying on the same table which dealt with “residuaries” P-2 was found entitled to take the entire 1/3 rd residue share. [140-E] 2.1. Since one heir was already on record representing all the heirs of the widow of D-l who died in 1990 the question of abatement for not bringing the legal representatives on record until 1995 did not arise. Substitution is allowed as there is no injustice in bringing the legal representatives on record. [140-H, 141-A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 888 of 1976. =1996 AIR 702, 1995( 2 )SCR 138, 1995( 2 )Suppl.SCC 529, 1995( 2 )SCALE243 , 1995( 2 )JT 652

PETITIONER:

English: Calcutta_High_Courtold

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NEWANNESS ALIAS MEWAJANNESSA

Vs.

RESPONDENT:
SHAIKH MOHAMAD ALIAS & ORS.

DATE OF JUDGMENT21/02/1995

BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)

CITATION:
1996 AIR 702 1995 SCC Supl. (2) 529
JT 1995 (2) 652 1995 SCALE (2)243
ACT:

 

HEADNOTE:

 

JUDGMENT:
ORDER
1. This appeal by special leave arises from the judgment
of the Division Bench of the Calcutta High Court in appeal
from original decree No.652/61 and cross objections dated
June 8, 1973. This Court while granting leave limited the
appeal to the questions raised in ground Nos.II and VI
dealing with inheritance of property belonging to Sabul,
Liaquat and Mahujammusa. Therefore, untrammeled by the
controversy which hinged in the trial court and the High
Court, we confined our consideration only to these two
questions.
2. This appeal arises out of a partition suit. The
genealogy table before us has not been disputed. It would
show that Haji Ishan Ali died in 1955 leaving behind his
widow Samudanusa, plaintiff No.1 (P-1), who also died
pending suit in 1966; his two daughters, plaintiff No.2 (P-
2) Bibi Mewannesa and Bibi Mahujammusa, defendant No.5 (D-5)
and three sons Jabar Ali, Isabul Ali and Sabul Hassan.
Jabar Ali left behind defendant No.1 (D-1), a son and
defendant No.2 (D-2), a daughter. Isabul Ali left behind
him defendant No.3 (D-3), a daughter. D-3 was married to D-
1. Sabul Hassan pre-deceased Isabul Ali, leaving behind
defendant No.4 (D-4). a son and Liaquat also a son, who too
died
653
before the death of Isabul Ali. The trial court granted
preliminary decree which was affirmed in appeal. The shares
and extent are in controversy. The High Court found that
the property purchased by Haji Ishan Ali in the name of his
son Sabul Hassan belong to the latter alone. Since Sabul
Hassan had pre-deceased-Isabul Ali, the question arose
whether Haji Ishan Ali was a sharer in the estate of Sabul
Hassan.
3. Section 61 in Chapter VII of the Mulla’s Principles of
Mohammedan Law, edited by M. Hidayatullah, former Chief
Justice of this Court, postulates three classes of heirs,
namely, (1) sharers, (2) residuaries, and (3) distant
kindred. Sharers are those who are entitled to a prescribed
share in inheritance, residuaries are those who take no
prescribed share, but succeed to the ‘residue’ after the
claims of the sharers are satisfied; and distant kindred are
all those relations by blood who are neither sharers nor
residuaries. The Table at page 72-A of the 18th Edition
prescribes that a father who is under Item No. 1, gets 1/6th
share, where there is child or children of a son; and when
there is no child or children of a son, the father inherits
as residuary. Since Sabul Hassan left behind D-4 son,
Isabul Ali got 1/6th share. Out of this 1/6th share got
from the estate of Sabul Hassan, his widow (P1) and P-2 the
daughter would get equal respective share under law, which
would be determined by the Trial Court.
4. The next question is whether P-2 is entitled to a share
in the estate of Bibi Mahujammusa, D-5, who died pending
suit. Section 65 dealing with residuaries, read with the
Table at page 72A, indicates that if there are no sharers,
or if there sharers but there is residue left after satis-
fying their claim, residuaries also inherit in the order set
forth in the Table. D-5 left behind two daughters and as
per the sharers two daughters are, entitled to 1/3rd share
each i.e. 2/3rd share. In other words, 1/3rd remained as
residue. Table at page 72A dealing with residuaries
indicates that where descendants like son, son’s son, and
ascendants like father and grand father arc not available,
then the descendants of the. father takes in the order
mentioned. The first is full brother. then sister; in
default, a daughter or son’s daughter or daughter’s son. In
this case since only two daughters were left behind by D-5,
the full sister, namely P-2, takes the entire residue, which
is 1/3rd share.
5. It is next contended that since D-1 died in March 1990,
steps were not taken to bring the legal representatives on
record until 27th January, 1995 despite notice given to the
appellant by a letter dated November 14, 1990 and no proper
explanation has been given for the inordinate delay.
Therefore, the appeal as a whole should be dismissed as
having been abated. We, find no force in the Contention.
Since the third defendant is already on representing all the
heirs of the first defendant widow, the question of
abatement does not arise. Even otherwise we find that
substitution should be allowed, since no injustice would be
done in bring the legal representatives on record. Thus the
objection is over-ruled. The application for substitution
is allowed.
6. The appeal is accordingly allowed. The matter is
remitted to the Trial Court for determining the shares of
all the contesting parties and for distribution of the
estate in proportion to shares. This would be done
according to the law declared hereinbefore. No costs.
656

 

 

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