Mobarak Khan vs Asiman Khatoon and others

Ram Nandan Prasad, J.

This appeal arises out a suit for partition. The appellant Mobarak Hussain Khan was one of the defendants. The parties to the suit are the descendants of one Chhedi Khan. Happily, there is no dispute regarding the relationship of the parties and also as regards the sequence of death of some of the descendants of Chhedi Khan. There was, however, dispute regarding the quantum of share of the ancestral property and this led to the filing of the suit. The appellant''s case is that the shares allotted by the trial Court are not in accordance with law. Hence this appeal. The relationship between the parties is indicated by the following genealogical table:--

The admitted case of the parties is that during the time of the survey and settlement operations Imam Khan and Kallu Khan, the two sons of Chhedi Khan, jointly acquired lands in village Konara under Khata no. 66, P.S. Barhi, District Hazaribagh; the details of these lands are given in schedule ''A'' of the plaint. The acquisitions were in the names of the sons of Imam Khan and Kallu Khan i.e. Alam Khan, Daulat Khan and Suleman Khan one share and Ismail and Sharif one share. All these recorded tenants remained in joint possession of the lands but there was separate cultivation by way of convenience. It is also the position that first Sharif Khan died issueless and thereafter Alam Khan died consequent upon which Alam''s son Biltu (plaintiff), Daulat, Suleman and Ismail remained in joint possession of the properties. Sometime later Ismail died issueless as a result of which the branch of Kallu Khan became extinct and the entire joint properties devolved upon the descendants of Imam Khan who remained in joint possession and cultivation. However, prior to his death, Ismail Khan along with the plaintiff Biltu Khan and Daulat and Suleman Khan sold some of the joint family lands to different persons who got title and possession in respect of the same. After Ismail Khan, the next to die was Daulat Khan, and some years later Suleman Khan also died.

The plaintiff Biltu alias Takki Khan is the son of Alam Khan and the three sons of Daulat i.e. Ushman, Sikander and Mubarak (appellant here) are defendants no. 1 to 3 and Daulat''s daughter Ashgari Khatoon is defendant no. 4. Defendants no. 5 to 17 are the defendants of the sons and daughters of Daulat Khan. The two sisters of the plaintiff Bibi Sobiran and Bibi Sogra are defendants no. 18 and 19. Daulat''s wife Safida Khatoon was defendant no. 20. In this appeal, tie parties have been arranged in like manner except that defendant no 3, is the appellant and ''he plaintiff and his two sisters have been made respondents no. 1 to 3 while respondents no. 4 to 9 are the other defendants. Daulat''s widow Shafidan was respondent no. 20 in this appeal but she died during the pendency and her name has been expunged. It appears the plaintiff Biltu Khan also died during the pendency of the appeal and his heirs have been substituted as respondents no. 1 to 1/n.

In the court below defendant no, 18 Bibi Sabiran (sister of the plaintiff) filed a written statement adopting the case of the plaintiff. The real contest was put forward by defendant no. 3 Mubarak Hussain Khan (appellant) and he filed a detailed written statement His brother Sikandar Khan defendant no 2 filed a written statement adopting the case put forward by Mubarak Hussain Khan. On behalf of the minor grand children of Daulat Khan a guardian-ad-litem was appointed by the court and he filed a formal written statement. The other defendants do not appear to have put in any written statement from their side.

In paragraphs 1 to 8 of the plaint, the plaintiff has stated the facts relating to the relationship between the parties (genealogical table), the details of the joint family properties and about the death of the sons of Imam Khan and Kallu Khan. He has stated that first Sharif Khan died issueless and thereafter Alam Khan died and then the joint family properties came under the possession of the plaintiff, Daulat Khan, Suleman Khad and Ismail Khan. Thereafter, Ismail Khan also died and as such the branch of Kallu Khan became extinct and the joint properties remained in the possession of the descendants of Imam Khan. The statement in paragraph 9 of the plaint is that Ismail Khan died issueless and Suleman Khan also died without any issue and Daulat Khan died leaving behind his widow and his sons and daughter The plaintiff has not clearly given the sequence of death in respect of Ismail, Daulat and Suleman Khan. He claims that on Ismaiel''s death the half share in the suit property of Kallu''s branch devolved upon and came in possession of the three brandies of Imam Khan. The contesting defendant Mubarak Hussain in his written statement accepted the position that Sharif Khan and Ismail both had died issueless and that Alam had died prior to Ismail Khan leaving behind plaintiff and his two sisters as his heirs. However, from paragraph 8 of his written statement his case appears to be that Suleman had died prior to Daulat Khan but before his death Suleman Khan out of love and affection had made an oral Hibba of his entire interest in favour of this defendant Mubarak Hussain; it is also stated therein that if there had been no such gift the entire share of Suleman Khan would have devolved upon his brother Daulat Khan. He also stated that Alam Khan had another daughter Pulia Bibi.

The position, therefore, is that according to the plaintiff after the death of Ismail Khan the entire interest belonging to the branch of Kallu Khan i.e. the half share in the suit property devolved equally upon the three branches of Imam Khan namely, the descendants of Alam Khan, on Daulat Khan and on Suleman Khan and on this basis he is claiming the share and partition of the suit property. The case of the contesting defendant is that since Alam Khan had pre-deceased Ismail, on the latter''s death only his two cousins (full paternal uncle''s son) were entitled to succeed to the entire half share belonging to Kallu''s branch. In other words, on the death of Ismail Khan, Daulat Khan, Suleman Khan each got 1/4th share in the suit property besides what they originally held by virtue of being the son of Imam Khan. The appellant and his or others and sisters, therefore, demand partition on this basis.

Since the jointness of the properties and the fact that all parties to the suit had share in the same was undisputed, the real issue to be determined was as to what would be the share of each of the parties. This was the main issue in the suit and was made issue no. 4 in the court below. While considering the issue of inheritance, the learned trial court discussed in detail the relevant evidence and the facts and circumstances and came to the finding that the evidence did not establish that Alam Khan had another daughter Putia and further he gave the finding that the story of oral Hibba put forward by defendant no. 3 was not correct. Having done this he proceeded to apportion the shares of the parties in the joint property. In doing so he appears to have committed some error. Although there is no specific pleading both parties in course of Hearing of the appeal accepted that the parties belong to the Sunni Sect and are governed by the Hanafi Law of inheritance.

In Mulla''s "Principles of Mohammedan Law" which has been made up-to-date by Mr. M. Hidayatullah, Ex. Chief Justice of India (18th Edition), the law of inheritance is dealt with in Chapters VI and VII of the book. Section 61 of this book (chapter VII) show that there are three classes of heirs under the Mohammedan Law.

(i) Sharers.

(ii) Residuries

(iii) distant kindred.

The table of sharers is given in the chart at page 66A of this book. The table of residuries is given at page 72A of this book. The devolution to distant kindred is dealt in section 67 onwards. For our purpose the chapter on distant kindred is not relevant.

At the time of hearing this appeal, the two findings of the court below namely; (i) that there is nothing to show that Alam had another daughter Putia and (ii) that Suleman had not made a Hibba of his interest to Mubarak Hussain, have not been challenged. The main contention of the appellant is that the distribution of shares has been erroneously made by the court below-and this contention appears to be justified. So the only point to determine in this appeal is as to how the shares of the persons who had died had devolved and as to what are now the shares of the parties to this appeal.

Before proceeding to determine the shares, it is necessary to clearly fix the sequence of death of the sons of Imam Khan and Kallu Khan. The accepted position in the plaint as well as in the written statement of the contesting defendant is that first Sharif Khan died issueless and then Alam Khan died and thereafter Ismail died. The plaint is not very clear regarding the sequence of death of Daulat and Suleman. In the written statement of defendant no. 3 the case put forward is that Suleman-died before Daulat. This position, however, does not appear to be correct as both the parties in their evidence have accepted that Daulat pre-deceased Suleman. The plaintiff" himself P.W. 7 and his two witnesses P. Ws. 4 and 6 have clearly stated that first Sharif Khan died and it was followed by Alam Khan then Ismail died, then Daulat died and thereafter Suleman died. The contesting defendant Mubarak Hussain (appellant) depositing as D. W 8 gave evidence to the same effect namely that Sharif died first, then Alam, then Ismail, then Daulat and lastly Sulemane. Thus the defendants averment in the written statement to the effect that Suleman had died prior to Daulat appears to be mistaken as this defendant by his own evidence has accepted the position that Daulat had predeceased Suleman. On the evidence of the parties it is held that the sequence of death was as follows:--

Sharif, Alam, Ismail, Daulat and then lastly Suleman. The defendant Mubarak Hussain also asserted in his evidence that Sharif, Ismail and Sulemn had died issueless and that their wives had pre-deceased them. This has not been challenged from the side of the plaintiff and as such this position is also accepted.

Admittedly, at the time of survey, Ismail and Sharif together held half share in the ancestral property and Alam, Daulat and Sulemn together held half share which means each of these held l/6th share in the ancestral property. When Sharif died his 1/4th share in the ancestral property devolved upon his full brother Ismail who thus became entitled to half share in the ancestral property. Since Alam was next to die, his heirs namely the plaintiff and his two sisters were more remotely placed to Ismail than Daulat and Suleman and hence the plaintiff and his sisters could not have succeeded to the interest of Ismail Khan on the latters death.

I now proceed to determine the manner or devolution and definition of shares at the different stages consequent upon the death of members of the family.

Shares on the death of Sharif Khan

(i)

Ismail Khan

1/2

(ii)

Alam Khan

1/6

(iii)

Daulat Khan

1/6

(iv)

Suleman Khan

1/6

When Alam Khan died the position was as follows:--

(i)

Biltualies Mohammad Takki plaintiff)

1/12

(ii)

BibiSabiran

1/24

(iii)

BibiSogra

1/24

(iv)

Daulat

1/6

(v)

Suleman

1/6

(vi)

Ismail

1/2

When Ismail died there were no sharers as mentioned in the table at page 66A of the aforesaid book but there were residuary heirs. Section 65 of the Book reads as follows:

If there are no sharers or if there are shares but there is a residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves upon residuaries in the order set-forth in the annexed table (p. 72A)

This means that the residuary who is higher in the line will take the whole inheritance to the exclusion of the person who is lower in the line in the table of residuaries. This has also been stated in section 61 of the Book wherein the three classes of heirs under the Mohamma-den Law have been shown. The manner of devolution has beer, stated in section 61 as follows:--

The first step in the distribution of the estate of a deceased Mohammedan, after payment of his funeral expenses, debts, and legacies, is to allot their respective shares to such of the relations as belong to the class of sharers and are entitled to a share. The next step is to divide the residue (if any) among such of the residuaries as are entitled to the residue. If there are no sharers, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto,

Thus according to the Muslim Law as stated above, only Daulat and Suleman were entitled to succeed to Ismail''s share to the exclusion of the descendants of Alam Khan In the table of residuaries at page 72 A, the full paternal uncle''s son (in this case Daulat and Suleman) is placed at no. 15 while full paternal uncles sons son (in this case Mohammad Takki, plaintiff) is placed at no. 17. As such as regards the share of Ismail Khan, both Daulat and Suleman would succeed to the extent of half and half and Alam''s descendants would be excluded. In other words, out of the half share of Ismail in the ancestral property, there would be addition of l/4th share to Daulat and likewise addition of l/4th share to Suleman but there would be no increase in the shares of the plaintiff and his two sisters. Thus on the death of Ismail the shares would be as follows :--

(i)

Biltu alias Mohammad Takki (plaintiff)

(ii)

Sabiran

1/12 1/24

(iii)

Sogra

1/24

(iv)

Daulat -- 1/6 + 1/4 =. 5/12 m.

40/96

(v)

Suleman--1/6 + 1/4 = 5/12 =

40/96

The next to die was Daulat Khan. On his death his wife Bibi Safidan being a sharer would get 1/8 of the interest of Daulat Khan, that means she would get 1/8 of 40/96 which comes to 5/96. Daulat''s three sons and daughter Ashgari would take as residuaries the son getting double of what the daughter will get. Daulat''s share in the ancestral property was 40/96. Out of this 1/8 or 5/96 devolved on his widow Safidan and what remained was 35/96. This has to be divided in seven parts, each son get two parts and the daughter Asgari getting one part. Thus each of the three sons got 2/7 of 35/96. Thus the share of each of the three brothers Usham, Sikander and Mubarak was 10/96 while that of Ashgari was 5/96. The position on Daulat''s death was thus as follows:--

(i)

Biltu alias Mohammad Takki (Plaintiff)

1/12 = 8/96

(ii)

Sabiran

1/24 = 4/96

(iii)

Sogra

1/24=4/96

(iv)

Suleman

5/12=40/96

(v)

Safidan

5/96

(vi)

Ushman

10/96

(vii)

Sikander

10/96

(viii)

Mubarak

10/96

(ix)

Ashgari

5/96.

Next to die was Suleman. The son of Alam i.e. the plaintiff and the three sons of Daulat i.e. Ushman, Sikander and Mubarak stand on equal footing being the brother''s sons of Suleman and therefore all the four would succeed in equal shares as residuaries to the interest of Suleman. The full brother''s son has been shown as serial 9 in the table of residuaries. The full brother''s daughter is not a residuary. Thus Suleman''s interest devolved equally among his four nephews i.e. the plaintiff, Ushman, Sikandar and Mubarak. Suleman''s share in the ancestral property was 40/96 on his death there was addition of the share equivalent to 10/96 to the already existing shares of the plaintiff, Ushman, Sikander and Mubarak. As such the position on the death of Suleman was as follows:--

(i)

Biltu alias Md.

Tikku

(Plaintiff)

8/96+10/96

18/96

(ii)

Sabiran

4/96

(iii)

Sogra

4/96

(iv)

Safidan

5/96

(v)

Ushman

10/96 + 10/96

20/96

(vi)

Sikander

10/96+10/96

20/96

(vii)

Mubarak

10/96+10/96

20/96

(viii)

Ashgari

5/96

This was the position when the suit was filed. Both the parties have, however, submitted in course of hearing of the appeal that the final determination of shares as existing at present may be made so as to exclude further litigation. During the pendency of the appeal, Daulat''s Safidan died leaving behind three sons and one daughter. Thus her 5/96th share in the suit property would be divided into seven parts and while the sons will get two parts each the daughter will get one part. The devolution of Safidant''s 6/96th share or 35/672 (numerator and denominator are both multiplied by seven) would be distributed among her sons and daughters as follows:

Ashgari--1/7 of 35/672 is equal to 3/72.

Ushman, Mubarak and Sikander would each get 2/7''s of 35/672 i.e. each would get 10/672 from Safidan''s share.

Thus on the death of Safidan the position would be as follows:

(i)

Biltu alias Md. Takki (plaintiff) 18/96= 126/672

(ii)

Sabiran

4/96= 28/672

(iii)

Sogra

4/96= 28/672

(iv)

Ushman

20/96 or 140/672+10/672 - 150/672

00

Sikander

20/96 or 140/672 + 10/672 - 150/672

(vi)

Mubarak

20/96 or 140/672 + 10/672 - 150/672

(vii)

Ashgari

5/96 or 35/672+ 5/672 = 40/672

The above fractions denoting the shares may be reduced to simplier fractions in respect of each of them.

During the pendency of the appeal the plaintiff Md. Takki has also died leaving behind his widow Ashiman Khatoon respondent 1, five sons respondent 1B to 1F and two daughters Salma respondent 1G and Zamila respondent 1H. The share of Md. Takki was 126/672 or 504/2688 in the suit property. 1/8th of this will go to his widow as a share, which means she will get 63/2688 or 3/128. After deducting Ash-iman''s 1/8th share from 504/2688, the residue left is 441/2681. This has to be divided into twelve parts out of which the two daughters Salma and Zamila will each get 1/12 and five sons each will get 2/12. Thus Salma and Zamila will each get 147/10752 or 7/512 and the five sons will each get 294/10752 or 7/256.

Thus after ultimate devolution the shares of the parties to this appeal will be as follows:

(i)

Ashiman wife of plaintiff =

3/128

(ii)

The five sons of Md. Takki respondents

1 B to 1 F each will get

7/256

(iii)

Salma

7/512

(iv)

Zamia

7/512

(v)

Sogra

1/24

(vi)

Sabira

1/24

(vii)

Ushman

150/672 or 25/112

(viii)

Mubarak

150/672 or 25/112

(ix)

Sikander

150/672 or 25/112

(x)

Ashgari

40/672 or 5/84

The respective shares of the parties will be in the ratio as indicated above and the distribution of the ancestral property has to be done accordingly.

Since the distribution of shares by the trial court has not beep correctly done in accordance with law, the judgment and decree of the trial court are hereby set aside and the determination of the shares will be in accordance with the same. The appeal thus stands allowed. However, under these circumstance it is ordered that the parties will bear their own costs through out.