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2009 Supreme(Bom) 1744
In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE N.D. DESHPANDE
Asma Hussain W/o Iqbal Hussain & Others
Versus
Sayyed Kamal Ahmad S/o Sayyed Ali Hasan & Others
SECOND APPEAL NO. 255 OF 2007 WITH SECOND APPEAL NO. 256 OF 2007 WITH SECOND APPEAL NO. 257 OF 2007
Decided on : 16-12-2009
For the Appellants:A.G. Godhamgaonkar, Advocate. For the Respondents:S.C. Bora, holding for S.G. Chapalgaonkar, Advocate.
Headnote:Succession Act, 1925 - Section 383 - Revocation of succession certificate - Order of - Challenged in second appeal by widow of deceased/ appellant - Held - Documentary evidence of marriage "Siyanama" between appellant and deceased took place in 1962 - Appellant a Muslim - Receiving M.L.A. pension after demise of deceased - Nomination of appellant, as nominee in Bank Account of deceased in various banks relied upon by appellant - Fact finding Court not found it sufficient for raising presumption as no evidence for continuous cohabitation with deceased - Appellant working as maid servant - Second appeal devoid of merits - Dismissed. - Court have gone through the impugned judgments of both the Courts below carefully. The learned first Appellate Court records his findings on three points which would certainly cover the real dispute between the parties and the discussion made therein is very important for it is the final Court of facts. It refers to both the counter suits where evidence was recorded in common as the issues were identical question of fact and law. The appellant was residing in the same residential house and compound, however, it was not considered as living in relationship or cohabitation as husband and wife. Non examination of appellant was considered fatal to the claim of marriage. The evidence of general powers of attorney holder namely Abdul Latif S/o Abdul Rahim cannot be considered as evidence on all relevant issues. Asma Husssain was working as a maid servant and residing in a separate room at Lal Jinning Compound and voters list figured her by name Padma Lobnaji Late prepared in the year 1984. It is admitted that Appellant real name is Padma who was residing in Lal Jinning Compound and thus there is no evidence for cohabitation with the deceased Iqbal Husssain.
The nomination papers submitted and the Bank accounts so also the Fix Deposit Receipts in the name of Asma Hussain of the relevant period were also taken into consideration by the fact finding Courts and did not find it sufficient for raising presumption. Various authorities also have been discussed which were relied by the parties and no re-appreciation of evidence would be permissible by this Court.
Thus upon consideration of record and after hearing both the sides at length, the present second appeals are devoid of merits and deserves to be dismissed.
1. These are three second appeals directed against a common judgment and order dated 15th January, 2007, passed by the learned Principal District Judge, Parbhani in two Regular Civil Appeals No. 168/2000 and 169/2000 and one more Regular Civil Appeal No. 89/2003 decided by a separate judgment on the same day, all arising out of three civil proceedings between the same parties in respect of the estate of deceased named one Iqbal Hussain, who died on 28.04.1991, resident of Lal Jinning Compound at Purna, District Parbhani.
2. In all these three proceedings before the Trial Court and the First Appellate Court below, parties had agreed by a pursis for recording evidence in common, and for reading the same in all these proceedings for deciding their respective claims in the counter suits and appeals as well. Consequently, the dispute being one referring the estate of Iqubal Hussain and the same involves common question of law and facts resulted in a common decision of similar issues and points raised throughout in proceedings. So also before this Court in Second Appeals.
3. The appellant namely Asma Hussain firstly applied, for succession certificate as widow and legal heir of deceased Iqbal Hussain, then jointly with her son namely appellant Ajmal Hussain and married daughter Salmabanu, all appellants filed suit for declaration and injunction as legal heirs, so as to claim to the property both movable and immovable of the deceased which includes suit property namely survey No. 16, 16/1, 16/2, 17/1 and 17/2 situated at Purna, District Parbhani, within the limits of Purna Town and also sanctioned layout of survey No. 16.
4. Heard arguments of both the sides at length. The substantial questions of law as formulated for consideration are as under:
i. As to the paternity of two children born namely Ajmal Hussain and Salma Banu.
ii. As to the conduct of the deceased Iqbal Hussain acknowledging the marriage and as such ratification of the same.
iii. As to the provisions of Mohammedan Law as to marriage and applying those whether Asma @ Padma Hussain can be said to have married Iqbal Hussain.
5. Admittedly, both the respondents and one Nissar Ahmed who is non resident Indian (London based) are real brothers of deceased Iqubal Hussain. However, he is not party to any of the proceedings and appears to be disinterested in the litigation between the two parties namely present appellants on one side and respondent brothers duo on other. Deceased Iqubal Hussain had married to Ayeshabegum who died in the year 1985, predeceased Iqubal Hussain. Iqubal Hussain was a Member of Legislative Assembly as well as elected President of Municipal Council, Purna and was a social and political figure. There was dacoity on 20.06.1985 in the house of deceased Iqubal Hussain at Lal Jinning Compound, Purna and in the said dacoity Iqubal Hussain and his wife Ayeshabegum were severely beaten by the miscreants. Ayeshabegus succumbed to the injuries and Iqubal Hussain narrowly escaped from the death. Since, then he was not keeping good health, suffered paralytic attack and become indisposed. He died on 28.04.1991 in Government Hospital at Parbhani due to prolonged illness.
6. According to the respondents duo, they being real brothers of Iqbal Hussain, they succeeded to the estate of deceased Iqbal Hussain who died issueless. Therefore, on 21.09.1991, the respondents duo brothers filed a civil suit bearing Special Civil Suit No. 287/1991 in the Court of Civil Judge Senior Division, Parbhani, against these four appellants, for declaration that defendant No. 1 Padma is unconcerned with the family of the plaintiffs not being the wife of late Iqbal Hussain, that defendant No. 2 Manju and defendant No. 4 Bablu her daughter and son are not related in any capacity with the family of the plaintiffs and more particularly with the late Iqbal Hussain as alleged wife, daughter and son respectively, and for perpetual injunction restraining them from dealing with im
