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1989 Supreme(Gau) 195
GAUHATI HIGH COURT
Dr. B. P. SARAF, J.
Abdul Matin and others -Appellant
Versus
Abdul Aziz and others -Respondent
Second Appeal No. 117 of 1982
Decided On : 25-09-1989
B.K. Goswami and P.K. Kalita, A.C. Sarma, N. Chakraborty, D.N. Choudhury, and N. Chakraborthy (Jr.) Advocates
Under Mahomedan Law, a distant kindred is entitled to inherit a share of the property of a deceased person, even if there is a surviving husband or wife.
Headnote:
SUCCESSION - MAHOMEDAN LAW - DISTANT KINDRED - RIGHT TO INHERIT - HUSBAND AND WIFE - SHARE OF INHERITANCE - RETURN - LIMITATION - SUIT FOR DECLARATION OF TITLE AND PARTITION - MAHOMEDAN LAW OF SUCCESSION ACT, 1937 - SECTIONS 61, 63, 66, 68.
Fact of the Case:
Plaintiff, the son of Halimon Nessa, filed a suit for declaration of title and partition of land, claiming succession rights under Mahomedan Law. Halimon Nessa had sold her share of the land to her sister Salimon Nessa in 1940, who later died in 1953 without any issue. Salimon Nessa's husband, Kitab Ali, gifted the land to Abdul Latif, who sold it to the defendant. The defendant claimed title to the land through this purchase.
Finding of the Court:
The court held that the plaintiff, as a distant kindred of Salimon Nessa, was entitled to half of the land upon her death, as her husband, Kitab Ali, was entitled to the other half. The court found that the lower courts erred in holding that the plaintiff had no right to inherit any part of the land.
Issues: 1. Whether the plaintiff, as a distant kindred of Salimon Nessa, was entitled to inherit a share of her property upon her death. 2. Whether the husband of Salimon Nessa, Kitab Ali, was entitled to the entire property upon her death. 3. Whether the suit was barred by limitation.
Ratio Decidendi: 1. Under Mahomedan Law, heirs are divided into three classes: sharers, residuaries, and distant kindred. 2. The husband is a sharer and is entitled to one-half of the inheritance. 3. The plaintiff, as a distant kindred, was entitled to the other half of the inheritance, as there were no residuaries. 4. The rule of "return," which allows the residue of the estate to revert to the sharers, does not apply when there is a distant kindred. 5. The suit was not barred by limitation, as the issue was not raised before the trial court and no evidence was taken on the matter.
Final Decision: The court set aside the judgments and decrees of the lower courts and remanded the case to the trial court for a fresh decision in accordance with the principles of law discussed.
JUDGMENT:- This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Kamrup in Title Appeal No. 13 of 1978 dismissing the appeal and affirming the judgment and decree passed by the Assistant District Judge No. 2, Gauhati dismissing the suit with costs.
2. The facts of the case may be briefly stated as follows. One Abdul Gafur owned 4 kathas of land. After his death, the land was amicably partitioned by his heirs in or about the year 1937. On partition, his two daughters namely, Salimon Nessa and Halimon Nessa got 1K-3Ls of land. Halimon Nessa sold away her half share in the said land to her sister Salimon Nessa by registered sale deed on 24-1-40. Salimon Nessa thus became absolute owner of 1 K-3Ls of land on and after the said sale on 24-1-40. Halimon Nessa died sometime in 1951 leaving behind her son, the plaintiff Abdul Matin as her sole heir. Later in 1953, Salimon Nessa also died without any issue leaving behind her husband Kitab Ali, and her sisters son Abdul Matin, the defendant No. 6. Kitab Ali, thereafter by a deed of gift dated 25-11-54, gifted the entire land belonging to his wife to one Abdul Latif, who later sold the same to the defendant No. 5. The defendant No. 5 thus, claimed title of the said land by virtue of purchase from Abdul Latif.
3. The plaintiff filed a suit for declaration of his title in respect of 17¼ lechas of land and for partition of the suit land. His claim was based on Mahomedan Law of Succession. The defendant No. 5, the purchaser of the land contested the suit mainly on two grounds namely, (i) under the facts and circumstances of the case, the plaintiff did not succeed to any part of the land belonging to Salimon Nessa who died in 1953 in view of the Mahomedan Law of Succession and (ii) the entire property on her death devolved on her husband Kitab Ali who gifted the same to the vendor of the defendant No. 5. As such the suit was not maintainable.
4. The trial Court held that by virtue of sale of her share by Halimon Nessa to her sister, Salimon Nessa in the year 1940, the son of Halimon Nessa lost all right of succession to the estate of Salimon Nessa on her death. Accordingly, it was held that the husband of Salimon Nessa, Kitab Ali was the only successor and the entire property left by Salimon Nessa devolved to him and he had the right, title and interest to transfer the same by way of gift. It was further held that in view of aforesaid legal position, the vendor of the defendant No. 5 got absolute title over the said land by virtue of the said gift and had the right to transfer title and interest on the said land by sale to the defendant No. 6. On the basis of the aforesaid findings, the trial Court dismissed the suit.
5. On appeal, the learned Additional District Judge, Gauhati confirmed the judgment of the learned trial Court. It, however, further held that the suit was barred by limitation. It was observed that though no issue was framed before the trial Court in this regard and it was not decided by the trial Court, it being a point of law could be decided for the first time on appeal on the basis of plea taken by the defendant. The aforesaid judgments and decrees have been challenged in this second appeal on the ground that the learned Courts below failed to apply correctly the provisions of Mahomedan Law relating to succession and, as such, the said judgments were vitiated. The finding on the point of limitation has also been challenged on the ground that no such point was raised before the trial Court nor decided by it and no evidence was taken in that regard. The decision of the learned appellate Court on the said point is perfunctory and based on no material or evidence on record.
6. Mr. B.K.Goswami, learned counsel for the appellant submitted that even on the admitted facts, under the Mahomedan Law, on the death of Salimon Nessa a part of the land belonging to her devolved on the plaintiff-appellant who is a distant kindre
