JUDGMENT

Kuldip Singh, J.

1. Rajubai was the owner of the house in dispute. Jaitunbi, respondent in the appeal herein, is her daughter. Shamsuddin, the appellant, is the grandson of Rajubai from another daughter Mehamunisa who died near about 1933-34. Rajubai died on June 7, 1975. Jaitunbi instituted a suit for a declaration and possession to the effect that she, "being a sharer" (class I heir) under the the Mahomedan Law, was entitled to inherit the house in dispute to the exclusion of the respondent who was a "distant kindred" (class III heir). The trial court dismissed the suit. The lower appellate court reversed the judgment of the trial court and decreed the suit. The High Court dismissed the second appeal in limine. This appeal by shamsuddin is against the judgment and decree of the lower appellate court as upheld by the High Court.

2. The lower appellate court reversed the finding of the trial court on the question of inheritance on the following reasoning : -

" The persual of the said classification of heirs makes it ample clear that the original plaintiff/the appellant is the only Class I heir of the said Smt. Rajubai Dadu Pinjare. It further makes it crystal clear that the original defendant/the respondent is a class III heir of the said Smt. Rajubai Pinjare. Once this position is accepted as correct as per the principle of Mahomedan law then I am required to see as to how the allocation of shares takes place. In this respect the commentary at page 253 as mentioned in the above mentioned books, makes it ample clear that the heirs of class I and Class II are to inherit together the estate of a deceased Mahomedan. It further makes it ample clear that if Class I and Class II heirs are in existence then the Class III heirs of a deceased Mahomedan are wholly excluded. If this Principle is taken into consideration then it has to be said in the instant case that the original defendant/the respondent has no locus standi to inherit the suit property belonging to the said Smt. Rajubai Pinjare."

3. Learned counsel for the respondent has further assisted us on the subject of inheritance under the Mahomedan Law. According to him, the respondent being the daughter and only Class I heir, she is entitled to one-half of the property as her fixed share. He further contended that there is a provision under the Mahomedan law of inheritance called "the return". The effect of this principle is that where there are no "residuaries" (Class II heirs), the surplus of the shares of the "sharers" (Class I heir) reverts to them. The precise contention of the learned counsel was that the respondent being the only "sharer" and there being no "residuaries" the other one-half share would also revert back to her and, as such, she is entitled to inherit whole of the property left by Rajubai. There is plausibility in the argument but the view we propose to take in this case, it is not necessary for us to go into the same.

4. We may examine the dispute between the parties from another angle. The house in dispute consists of the ground floor and the first floor. It was pleaded in the written statement filed by the appellant before the trial court that after the death of his mother in the year 1933-34, he was brought up by Rajubai as her son. He further pleaded that about 30 years back the first floor of the house was given to Jaitunbi and the ground floor was given to him. According to him, the respondent along with her five sons have throughout been residing on the first floor and the appellant on the ground floor. The electric connections and the water meters of both the portions of the house are separate. The lower appellate court noticed these facts in the following words: -

"He submitted that as the said Smt. Rajubai Pinjare was not having a son, she had brought up the original defendant/the respondent as her son. It has been alleged that he was looking after the said Smt. Rajubai Pinjare and the property till her death. He further submitted that he is res