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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7237 OF 2010
[Arising out of SLP(C) Nos. 5344 of 2006]
Smt. Ajambi (Dead) By Lrs. .. Appellant
Versus
Roshanbi
and Ors.
..
Respondents
JUDGMENT
Dr. Mukundakam Sharma, J.
1. Leave granted.
2. This Special Leave Petition is directed against the judgment
and order dated 16.11.2005 passed by the High Court of Karnataka allowing the appeal filed by the respondents herein
whereby the High Court has restored the judgment and decree of
the trial court. The respondents Nos. 1 to 8 were the plaintiffs
before the trial Court and Usmansab Shaikaji Attar was the original
defendant
in the
suit
which
was filed
seeking a
decree for
partition
and separate possession of alleged 7/8 th share in the suit property
bearing CTS No. 883/A and 883/B, situated at Aralikatti
Deshpande Galli, Belgaum. It was stated in the plaint that
Shaikaji Attar, the father of the respondents and the original
defendant had two wives, namely Halimabi and Roshanbi who was
the plaintiff No. 1.
3. It was submitted in the plaint that Shaikaji Attar died in or
around 1969 leaving behind his second wife Roshanbi, i.e. plaintiff
No. 1, six sons i.e. plaintiff Nos. 2 to 6. and defendant No. 1 and
two daughters i.e. plaintiff Nos. 7 and 8 and heir of pre-deceased
son Umarsab.
4. In
the said
suit, the
parties
led
evidence.
The
plaintiff
No. 2 was examined as PW-1 and the original defendant was
examined as DW-1. Both the plaintiffs-respondents and the
original defendant also produced certain documents which were
exhibited in the suit. The trial Court by its judgment and decree
dated 27.7.1988 decreed the suit of the plaintiff by awarding 1/8 th
share to the plaintiffs 1 to 6 and 1/16th share to plaintiffs 7 and 8
in the suit property and also 1/8th share in favour of the defendant.
5. Being aggrieved by the aforesaid judgment and decree of the
trial Court, the original defendant Usmansab Shaikaji Attar filed a
regular appeal before the Court of Civil Judge, Belgaum,
Karnataka. During the pendency of the aforesaid appeal, the
original defendant produced some additional documents, namely
the
alleged
memorandum of partition by way of additional evidence.
6. The First Appellate Court by its judgment and decree dated
13.11.1995, dismissed the appeal filed by the original defendant.
7. Being aggrieved, the original defendant filed a second appeal
before the High Court of Karnataka which was registered as RSA
No. 299 of 1996. The High Court by its judgment and decree
dated 17.9.1998 allowed the appeal and remanded the matter to
the first Appellate Court for fresh disposal with a direction to
receive documentary evidence produced before it by the defendant
by way of additional evidence.
8. During the pendency of the aforesaid second appeal before the
High
Court
after
remand,
the
original
defendant
Usmansab died on 7.4.1996. The said defendant left behind his
wife Ajambi and she was brought on record as the legal heir of the
original defendant. The First Appellate Court thereafter examined
Ajambi as AW-1 who was allowed to lead additional evidence and
she got the documents exhibited as exhibit (Ex.) D-7 and D-10,
which were received as additional documents. The plaintiff No. 2
was examined as RW-1.
9. Thereafter, the Additional Civil Judge (Senior Division)
Belgaum by a judgment and decree dated 1.4.2000 allowed the
appeal filed by the original defendant, set aside the judgment and
decree of the trial court, and consequently dismissed the suit filed
by the plaintiffs holding that the additional documents which are
produced
and
exhibited
as Ex. D-
7 were
executed
by the
predecessor-in-interest, namely Shri Shaikaji during his lifetime
and he disposed of the property as per his Will by dividing the
property into two parts as claimed by the defendant.
10. The first Appellate Court also held that in view of the
pleadings, the documents exhibited as Ex. D-7 is proved, and it is
established in terms thereof that there were two divisions effected
to the suit property. In arriving at this conclusion, the first
Appellate Court also took note of the fact that the names of the
persons who were enjoying the aforesaid two divisions had been
entered into relevant records concerning the property and the said
entries had not been challenged by the plaintiff. In conjunction
with the aforementioned facts, since the parties were paying tax to
the extent
of their
property
only, it
was held
that there
was a
prior
partition
between the parties and therefore the claim of the plaintiffs was not
tenable. Consequently, the appeal was allowed and the suit was
dismissed.
11. Being aggrieved by the said judgment and decree, an appeal
was filed by the respondents herein and the plaintiffs in the
original suit before the High Court of Karnataka which was
registered as RSA No. 578 of 2000.
12. The High Court by its impugned judgment and decree dated
16.11.2005 allowed the appeal and set aside the judgment and
decree of the first appellate court. In the aforesaid judgment and
decree, the High Court held that although the document Ex. D-7,
which
was
executed
in 1958,
indicates
that some
of the
properties
have been shown to have been earmarked and assigned to the
plaintiffs and the defendants, the same cannot be treated as a
partition deed since it is not registered. It was held that a
partition deed is to be compulsorily registered and since Ex. D-7 is
not a registered document, it could not be relied upon.
Furthermore, the High Court took note of the fact that while the
suit was filed in the year 1985, the aforesaid documents came to be
produced in the year 1994 at the appellate stage after suffering a
decree before the trial Court and the same came to be produced
nearly after eleven years.
13. It was also noted that Shaikaji, predecessor-in-interest, had
allegedly created the document exhibited as Ex. D-7 died in the
year
1969,
while the
entries in
the CTS
register
came to
be made
only in the year 1979. The High Court observed that if the 1958
partition had really been acted upon as per Ex. D-7 immediately
after the death of Shaikaji, the said entries would have been made
within a reasonable time and they would not have waited upto the
year 1979, when such entries came to be made.
14. The High Court, therefore, held that Ext. D-7 cannot be acted
and relied upon for the purpose of establishing a prior partition of
the suit property. Consequently, the appeal was allowed and the
judgment and decree of the first appellate court was set aside.
15. Being aggrieved by the judgment and decree, the present
appeal was filed in this Court by Smt. Munira, alleged to be the
wife of Kesarkhan Pathan, claiming herself to be the beneficiary
under the
Will
executed
by Ajambi
during
her
lifetime.
Smt.
Munira claims that Ajambi had bequeathed the property under the
Will in favour of Smt. Munira who is allegedly Ajambi's brother-in-
law's daughter.
16. The said Will was purportedly executed on 20.8.2001 and the
came to be registered in the office of the Sub-Registrar Belgaum on
29.8.2001. Through the aforesaid Will, Ajambi allegedly
bequeathed her property CTS No. 883/A measuring 66.61 sq.
meters to the legatee Smt. Munira, wife of Kesarkhan Pathan
claiming under title to the aforesaid portion of the property. Smt.
Munira filed the aforesaid appeal before this Court alongwith an
application praying for bringing on record Munira as the legal
representative of the deceased Smt. Ajambi.
17. On
presentation of the appeal by her, the same was registered and the
application was registered as interlocutory application which came
up for consideration before this Court. An order was passed on
3.4.2006 whereby the interlocutory application was allowed and
notice was directed to be issued on the special leave petition and
also on the prayer for interim relief.
18. The interlocutory application filed by the appellant was
allowed by this Court but on perusal of the record, we find that the
said order was passed ex-parte and before issuance of notice to the
respondent. The right to be impleaded as a party in an appeal
could be questioned and challenged and such right to challenge the
locus cannot be taken away from the respondents herein without
giving
them an
opportunity of hearing. Therefore, although the aforesaid
application was allowed, the same was always subject to any
objection that is raised by the respondents herein. In fact, the
respondents had raised such an issue immediately upon
appearance. Therefore, the aforesaid issue is required to be decided
as the same is a disputed question of fact.
19. The respondents having been served in the said appeal, they
entered appearance and filed a counter affidavit which is sworn by
Smt. Roshanbi who was the second wife of late Shaikaji Attar. In
the said counter affidavit, she has stated that in the special leave
petition, there is a mention of the purported Will allegedly executed
during the pendency of the second appeal and that she challenges
the
validity
and
legality of
the
aforesaid
Will. She
has also
contended that the said purported Will has not been probated. She
has also stated in the said counter affidavit that the purported
executant has no absolute right to execute the aforesaid Will
pending litigation. It has been contended that Smt. Munira cannot
claim the property through the purported Will of the first wife,
allegedly dated 20.8.2001, claiming herself to be brother in law's
daughter and that she has no legal right to the property nor any
right to file the appeal before the High Court.
20. When the suit was taken up for hearing, the counsel for the
respondent took up the plea that the aforesaid Will propounded by
Smt. Munira has not been probated and that the said Will is
neither genuine nor valid. It is also alleged that under the
Mahomedan Law, no claim for inheritance of the property of a
deceased widow could be claimed through an alleged Will which is
not proved and even if such Will is found to be legal and valid, such
person would be entitled to only 1/3rd of the property and the
remaining 2/3rd to be given to the actual heirs of the family.
Reference was also made to Mulla, an authority on Mahomedan
law, in Chapter IX - "Wills", at paragraphs 118 and 131 of the said
treatise, wherein it is laid down that under a will only 1/3rd of the
net estate could be bequeathed and that the remaining part of the
net estate would be inherited by the legal heirs and legal
representatives.
21. This Court in the case of Abdul Rahim & Ors. Vs. Sk. Abdul
Zabar &
Ors.
reported
in (2009)
6 SCC
160 held
thus: -
"15. We may notice the definition of gift as contained in
various textbooks. In Mulla's Principles of
Mohammadan Law the "hiba" is defined as a transfer
of property made immediately without any exchange by
one person to another and accepted by or on behalf of
later (sic latter). A.A.A. Fyzee in his Outlines of
Muhammadan Law defined "gift" in the following
terms:
"A MAN may lawfully make a gift of his property to
another during his lifetime; or he may give it away to
someone after his death by will. The first is called a
disposition inter vivos; the second, a testamentary
disposition. Muhammadan law permits both kinds of
transfers; but while a disposition inter vivos is
unfettered as to quantum, a testamentary disposition is
limited to one-third of the net estate. Muhammadan law
allows a man to give away the whole of his property
during his lifetime, but only one-third of it can be
bequeathed by will."..."
22. The learned Counsel appearing for the parties made their
arguments on the merit of their claims of the respective parties, but
we are of the considered opinion that before we can address
ourselves on the merit of the claims of the parties and determine
the respective shares, it would be necessary to determine as to
whether
or not the
aforesaid
purported
Will
propounded by the present appellant herein is a legal and valid
document in the eyes of law and if so, to what right, if any, the
appellant is entitled to in the said property.
23In the interlocutory application, the present appellant
had stated that she would be entitled to claim on the
basis of the Will, the property being CTS No. 883/A
measuring 66.61 sq. meters. The following sentence
of the application being relevant is extracted below:-
24
"4. It is submitted that Ajambi during her life time
executed a `Will' in favour of her brother-in-law's
daughter namely, Smt. Munira Wife of Kesarkhan
Pathan on 20.8.2001 and it came to be duly
registered in the office of the Sub-Registrar,
Belgaum on 29.8.2001. By the said Will, Ajambi
bequeathed her property C.T.S. No. 883/A
measuring 66.61 sq. meters to the legatee Smt.
Munira W/o Kesarkhan Pathan. Thus Smt.
Munira became the absolute owner of property
C.T.S. No. 883/A of Aralikatti Deshoande Galli,
Belgaum."
24. Therefore, it is established from the record that her claim is
restricted on the basis of the purported Will to the property No.
C.T.S. 883/A measuring 66.61 sq. meters only wherein she claimed
to be the absolute owner. In case the Will propounded by her is
found to be not genuine and valid, in that case her entire claim will
have to be rejected and the aforesaid property i.e. C.T.S. No. 883/A
would revert back to the actual owners namely the present
respondents. If, however, the aforesaid Will is found to be legal
and valid,
even in
that event
and as
per the
pleadings
and the
contentions of the respondents, she may not be entitled to more
than 1/3rd of the said property namely C.T.S. No. 883/A.
25. These are the events which have arisen after delivery of the
judgment by the High Court. Therefore, two issues arise for
consideration at this stage, which are required to be determined
and decided prior to entering into the respective claims of the
parties.
26. The first issue is as to whether the Will propounded by the
appellant herein namely Smt. Munira, wife of Kesarkhan Pathan
allegedly executed on 20.8.2001 and registered in the Office of the
sub-Registrar on 29.8.2001, is a legal and valid document in the
eyes of law.
27. If
the
aforesaid
issue is
answered
in favour
of the
appellant
Smt. Munira, the further question that is to be determined is as to
whether the appellant herein on the basis of the aforesaid Will is
entitled only to 1/3rd of the said area in terms of the Rules and
Principles of Mahomedan Law.
28. Along with the said issues which need to be determined and
answered, in our estimation, there is another issue which arises for
consideration, which is as to whether the appellant could claim to
be a legal representative. Out of the said three issues raised herein,
in so far as the question of entitlement of the appellant's share is
concerned, the same appears to be a question of law as it forms a
part of the principles of Mahomedan Law. There are also some
decisions
of the
Supreme
Court
touching
upon the
said
issue.
But the
other two issues, namely, the status of the appellant and whether
she would claim to be a legal representative along with the question
as to whether the will propounded by the appellant is legal and
valid and how far the same could be relied upon, are disputed
questions of fact which are required to be determined by the court
more appropriately by resorting to the provisions of Order XXII
Rule 5 of the Code of Civil Procedure, 1908 [for short "CPC"]. The
said two issues being questions of fact, the parties must be allowed
to lay their evidence in support of their respective cases. In that
view of the matter we consider it necessary to issue a direction in
the present case to the aforesaid extent in terms of the provisions
of Order XXII Rule 5 CPC.
29. The
decision
to act on
the basis
of Order
XXII Rule
5 has
been
taken in consideration of the proposition laid down by this Court in
the case of Kanhiya Singh Santok Singh and Ors. Vs. Kartar
Singh reported in (2009) 5 SCC 155, in which the Supreme Court
has held thus:
"17. ......The High Court had overlooked this
disputed question of fact and held that the three sons
had separate business for which they could not fall
under the category of "tenant" under the provisions of
the Act. Furthermore, this question of fact cannot be
decided without permitting the parties to lead
evidence in respect of their respective cases and
without coming to a finding on such question of fact
by the court."
In paragraph 19, this Court held thus:
"19. Thus considering the ambiguous position regarding
the status of the appellants relating to their status as
tenants, it was necessary for the High Court to remit the
matter to the trial court for a proper determination of the
factual aspects whether the appellants were in fact
carrying on business with late Santok Singh at the time of
his death by taking evidence and thereafter, come to a
finding whether the appellants shall be brought on record
in the second appeal as the legal representatives of late
Santok Singh."
30. We accordingly direct the trial court to take evidence in the
manner indicated above on the two issues, namely: -
(1) Whether the appellant could claim to be a legal
representative?
And
(2) Whether or not the will propounded by the appellant
herein, namely, Smt. Munira, wife of Kesarkhan Pathan, allegedly
executed on 20.8.2001 and registered in the Office of the sub-
Registrar on 29.8.2001 is a legal and valid document in the eyes of
law?
31. After completion of the recording of the said evidence, both
documentary and oral, brought on record by the parties, the trial
court shall record the finding on the status of the appellant and as
to whether the Will propounded is legal and valid and how far the
same could be relied upon. The trial court shall thereafter send
back to this Court the records with findings and evidence that
might be adduced and already on record. The aforesaid process
shall be completed within a period of four months from the date of
receipt of the record from this Court and on completion thereof, the
trial court shall transmit the entire records with the findings in
terms of this order to this Court, upon which, the appeal shall
again be listed for hearing for further determination and orders. Let
the original records be sent back to the trial court immediately.
......
.............
............
.........J.
(Dr.Mukundakam Sharma) ........................................J.
(Anil R. Dave)
New Delhi,
August 30, 2010.
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