Shanu And Anr vs Sultan Khan, Jammu, Jhamman And Ors

By the instant civil first appeal under Section 96 CPC, plaintiffs appellants seek to challenge the order and decree dated 12th October, 2017 passed by

Additional District Judge No.1, Bharatpur in Civil Suit No.24/2016 whereby the suit filed by the appellants-plaintiffs has been rejected under Order 7

Rule 11 CPC.

Briefly stated the facts of the case are that the plaintiffs-appellants filed a suit for declaration, cancellation of agreement dated 17.6.2015 and partition

of the ancestral property wherein it was stated that the plaintiffs are the children of defendant No.1 from his first wife and defendant No.2 is the child

of second wife of defendant No.1 from his second wife. The disputed house of which details were given in paragraph No.2 of the plaint is joint and

undivided ancestral property. Therefore, the plaintiffs have their share in the ancestral property but the defendants denied the same on the pretext of

the agreement dated 17th June, 2015 which they have forged. On the the basis of the facts mentioned in the plaint, the plaintiffs prayed for a decree

of partition.

During the pendency of the suit, the defendants filed an application under Order 7 Rule 11 CPC for rejecting the plaint stating therein that in the

Muslim Law when the father is alive, no rights get accrued in the ancestral property to the children. Thus, the defendants prayed for rejection of the

plaint on this ground.

The plaintiffs resisted the application by filing written reply. After hearing learned counsel for the parties, the learned trial court allowed the application

filed by the defendants under Order 7 Rule 11 CPC and rejected the plaint vide order dated 12th October, 2017.

Against the said order, the present first appeal is filed by the plaintiffs-appellants.

Heard learned counsel for the parties.

It is submitted by the learned counsel for the appellants that while deciding the application under Order 7 Rule 11 C PC, the learned trial court has not

properly considered the provisions contained in Order 7 Rule 11 CPC as well as the provisions of Muslim law. It is further submitted that the learned

court has also not properly considered that the suit filed by the plaintiffs was also for declaring the agreement dated 17th June, 2015 as void.

Per contra, Shri Deepak Sharma, learned counsel for the respondents has supported the order of the learned trial court. It is submitted that the

plaintiffs have claimed their share in the property left by their grandfather, which is not permissible as per the Muslim Law. Whatever property one

inherits (whether from his ancestors or from others) is, at Muslim law, one’s absolute property whether that person is a man or a woman. In

Muslim law, so long as a person is alive he or she is the absolute owner of his or her property and ; nobody else (including a son) has any right

whatsoever, in it. It is only when the owner dies and never before-that the legal rights of the heirs accrue. The concepts of `joint’ or

`undivided’ family, `coparcenary’ karta, `survivorship’ and `partition’, etc. have no place in the Muslim Law.

It is also submitted by Mr. Deepak Sharma, learned counsel for the respondents that in the present case, the plaintiffs have claimed their share in the

property left by their grand father when their father is alive, which is not permissible in Muslim Law. In support of his submission, learned counsel for

the respondents placed reliance on the Division Bench judgment of the Karnataka High Court in Abdul Subhan vs. Khyroonibi (ILR 1992 Karnataka

2823).

I have considered the rival submissions.

It is revealed that in the instant case the plaintiffs have claimed their share in the property left by their grand father specially when their father is alive.

In such a situation when their father is alive, as per the Muslim Law, the plaintiffs have no right of inheritance in the property of their grand father as

the concept of `joint family property’ is foreign to the Muslim Law.

In the case of Abdul Subhan (supra), the Division Bench of the Karnataka High Court has held that under Muslim Law, no person has a right in the

property by birth. It is known that there is no such thing as `joint family’ among the Muslims. So long as the father is alive, the children do not

possess any right in the property. It is only on the death of the father, the children living at that time would inherit. However, if any son dies earlier to

the father, then the son’s issues would not succeed to the father of the deceased son. Principle of `representation’ is entirely unknown to this

Law governing the Muslims. Right of inheritance arises on the death of the person owning the property and the question of devolution of inheritance

rests entirely decided at that point of time when the person through whom the heirs claim dies.

In view of the above, this Court is of the view that the learned trial court’s order is based on proper appreciation of Muslim Law and trial court

has committed no error or illegality in passing the impugned order.

There is no substance in the first appeal. Hence the same is, dismissed.