Smti Akhtarun-Nisa vs The Lieutenant Governor and Others

Toufique Uddin, J.—This is an application under Article 227 of the Constitution of India in respect of the impugned order No. 12 dated 06.06.2013 passed in Title Suit No. 238 of 2011 by the learned Civil Judge Senior Division, South Andaman, Port Blair whereby and whereunder an application under Order 22 rule 3 of the CPC was allowed by making unwarranted observations touching the merit of the suit. The short background of the revision is that the mother of the petitioner Late Asgari begum filed a suit for declaration that the defendant No. 7 (now deceased) is not the descendant of Late Abdul Samad and cancellation of the licence dated 11.11.2009 issued in favour of the defendant No. 7 with other prayers as per leave granted by the Hon''ble High Court.

The petitioner further stated that her father Late Abdul Samad was the pre-1942 settler of these islands and having recoded land bearing survey No. 213 corresponding to new survey No. 1049/1 during the survey settlement of 1961, he was found in possession of excess land in addition to his recoded land which was recorded in the revenue record by the authorities.

Late Abdul Samad married with the original plaintiff i.e. Late Asgari begum and had two daughters namely Ikhlaqun Nisa and the petitioner Akhtarun Nisa. Elder sister of the petitioner Late Ikhlaqun Nisa was given marriage to Shri S. Sarwar Hussain and was residing in her matrimonial home whereas the petitioner was also given marriage to Dr. Z.A. Khan and she was also residing along with her husband at the place of his posting. Therefore except the father and the mother of the petitioner none else was in possession of the recorded land and excess land.

The father of the petitioner expired in the year 1990 leaving behind his widow and two daughters. After his demise, the recorded land, which he had at the time of death was mutated in the name of Late Asgari begum, Late Ikhlaqun Nisa and the petitioner. Subsequently in 2000 Late Ikhlaqun Nisa expired leaving behind her legal hairs i.e. the original defendant No. 7 and substituted defendant No. 7(a), (b) & (c) and her mother Late Asgari begum.

After the demise of late Ikhlaqun Nisa, in 2000 the entire share in the property stood recorded in her name, was mutated in the name of her husband Sarwar Hussain behind the back of Asgari begum on the basis of an invalid WILL as a Mohammedan cannot bequeath his/her entire property by way of WILL. Sarwar Hussain was never in possession/occupation of the recorded land or excess land.

In the year 2003, the Government of India published a scheme by which the excess land which was found in possession of Pre-1942 Settlers during the survey of 1961 and occupants and their descendent maintained the possession till date, the excess land would be regularized free of premium.

The revenue authorities without conducting any survey as per the scheme of 2003 in respect of the recorded land of Late Abdul Samad and excess land and basing only on the revenue records proposed for issuance of licence in the name of the recorded tenants. The applicant and her mother submitted their objection against the said process but in spite of that, license was issued in favour of the defendant No. 7 who was neither a descendent nor a legal heir of Late Abdual Samad and was not at all in possession of the excess land as per the Scheme.

The mother of the petitioner late Asgari begum challenged the said action of the revenue authorities by filing a writ petition being WP No. 148 of 2011, which was disposed of on 02.02.2011 holding that defendant No. 7 is descendent of Late Abdul Samad and certain directions were issued to the respondent No. 4 to look into the matter and correct the records by reflecting the appropriate relationship of the 7th respondent with original settler.

The mother of the petitioner being aggrieved by the order of the writ court filed an appeal being MAT No. 15 of 2011, which was disposed of on 13.09.2011 by giving liberty to the applicant to challenge the license according to law. The mother of the petitioner filed an application for review being CAN No. 171 of 2011, which was disposed of on 22.09.2011 holding, "it is however made clear that any decision in the proceeding if filed, pursuant to the leave granted, will be an independent finding".

During the pendency of the suit an application under Order 39 Rule 1 and 2 read with section 151 of the CPC was filed against which the private respondents i.e. the heirs of the defendant No. 7 filed their objection and on 29.04.2013, the trial court was pleased to grant status quo order but directed the defendant No. 4 to proceed as per the direction of the Hon''ble High Court at Calcutta Circuit Bench at Port Blair dated 02.11.2011 and 13.09.2011.

The learned Trial Judge exceeded the jurisdiction in spite of the order of the Hon''ble High Court by which leave was granted to the plaintiff to challenge the licence. So, there is no question to direct the defendant No. 4 to act as per the order of the Hon''ble Court whereas by last order dated 22.9.2011, the Hon''ble Court granted leave observing that "it is however made clear that any decision in the proceeding if filed, pursuant to the leave granted, will be an independent finding".

The original plaintiff expired leaving behind the petitioner herein as surviving daughter and sole legal heir. Therefore, after her demise, an application under Order 22 Rule 3 of the CPC for substitution was filed. The defendant No. 7(a), (b) and (c) did not file any objection against such application. The learned Trial Jude allowed the said application but found to be influenced by the order passed by the Hon''ble High Court in spite of the fact that the High Court held that the findings will be an independent finding. As per Mohammedan Law, three are three categories of heirs viz. sharers, residuaries and distant kindred. Admittedly, the defendant No. 7(a), (b) & (c) are the distant kindred and according to Muslim Law distant kindred are not entitled to succeed so long as there is any heir belonging to class of shares. Therefore, in presence of the petitioner, who is the sharer, they are not entitled to inherit any of the property of the original plaintiff.

As the party of the proceeding is Sunni Muslim and governed by Mohammedan Law of inheritance, therefore, after demise of original plaintiff, the surviving daughter is the only legal heir as the mother of the defendant No. 7(a), (b), & (c) expired prior to death of her mother and as per Mohammedan Law the birth right is not recognized. The right of an heir apparent comes into existence for the first on the death of the ancestor, and he is not entitled until then in the property to which he would succeed as an heir if he survived the ancestor. Hence this revision.

It was contended by the learned lawyer of the petitioner that the learned Trial Judge failed to appreciate that in Mohammedan Law of inheritance the birth right is not recognized and as per the Mohammedan law of inheritance, after demise of the original plaintiff, the petitioner is only surviving legal heir and the grand children are not legal heirs and not entitled to inherit any of the property left by the deceased i.e. the maternal grandmother.

The learned Trial Judge failed to appreciate the right of an heir apparent or presumption comes into existence for the first time on the death of the ancestor, and he is not entitled until then in the property to which he would succeed as an heir if he survived the ancestor.

The learned Trial Judge failed to appreciate that the mother of the defendant No. 7(a), (b) and (c) expired during the life time of her mother and as such on the death of the maternal mother they are not entitled to get any share in the property of the deceased.

Learned lawyer of the petitioner further challenged the impugned order wherein the petitioner herself made a prayer under Order 22 Rule 3 of the CPC which has been allowed. But though the substitution prayer of the petitioner has been allowed, yet some portion of the order appears to be scorching to the petitioner when it has been urged that unwarranted comment has been made by the learned Court below while passing the impugned order touching the merit of the suit.

On the other hand, the Learned lawyer of the respondent Nos. 7(a), 7(b) and 7(c) submits that point of inheritance as raised by the learned lawyer of the petitioner, have already been settled by the judgement of the Hon''ble Division Bench of this Court.

Having heard the learned lawyer of the petitioner as well as the learned lawyer of the respondent No. 7(a), 7(b) and 7(c) and reading between the lines of the impugned order, I am of the opinion that the prayer of the petitioner should not be allowed now as it would amount to prejudging the issue of inheritance. The petitioner''s chief contention is that neither the respondent No. 7 (since deceased) nor the respondent No. 7(a), 7(b) and 7(c) who have stepped into the shoes of the deceased respondent No. 7 are legal heirs and they are not entitled to inherit anything through respondent No. 7. This contention of the petitioner is a matter which requires to be taken up at the time of peremptory hearing as the contention has a direct bearing on the outcome of the original suit. Accordingly, the merit of the original case should not be touched presently in the light of the decision submitted by learned lawyer of the respondents. Therefore, I dispose of this civil revision with the liberty given to the petitioner that the question as to whether the erstwhile respondent No. 7 or the present respondent no 7(a), 7(b) and 7(c) are legal heirs of Late Abdual Samad or not is to be urged at the time of peremptory hearing i the light of the earlier decision of the Hon''ble Division Bench passed on 13.09.2011 in MAT No. 15 of 2011 read with CAN No. 171 of 2011.