1916 Supreme(Mad) 491

IN THE HIGH COURT OF MARAS
A Rahim
Abdul Majeeth Khan Sahib
Versus
C. Krishnamachariar
Decided On : 21 November, 1916

Under Muhammadan law, one heir has no authority to deal with the shares of the other heirs, and voluntary alienations by one of the heirs of a deceased person are not competent to bind the other heirs.

Headnote:

Muhammadan Law - Co-heirs' Sale of Ancestor's Property - - The question referred to us is in these words: When one of the co-heirs of a deceased Muhammadan, in possession of the whole estate of the deceased or of any part of it, sells property in his possession forming part of the estate for discharging the debts of the deceased, is such sale binding on the other co-heirs or creditors of the deceased and, if so, to what extent? The answer must be in the negative. On the death of a Muhammadan, the inheritance vests in his heirs according to their respective shares, although in the administration of the estate the funeral expenses, debts and legacies must be paid first and it is only the residue that is available for distribution among the heirs. It is not correct to say that the devolution of the estate on the heirs does not take place or is postponed until the funeral expenses and the debts and legacies have been paid. This is evident from the following facts : if an heir designated by the law dies after the death of the propositus his share descends on his own heirs and does not lapse to the i general estate. Bach heir is entitled to the income that has accrued since the testators death in proportion to his share and s he can transfer his share by sale or gift subject, it may be, as to the latter form of disposition to such restrictions as are imposed by the doctrine of Musha. The theory of Muhammedan jurisprudence, on Which the right of succession and inheritance is based, is that even after death, the deceaseds rights in properties still inhere in him, to the extent necessary for meeting the funeral charges and the legal obligations and liabilities iucurred in his lifetime and also for carrying out his wishes, as expressed in his last will and testament, within the limits laid down by the law. A deceased person is classed among persons of defective capacity and his rights and obligations are considered not merely with reference to matters pertaining to this world but also with respect to his spiritual concerns. The payment of his funeral expenses and debts is described as his last need. And as for testamentary bequests, it is stated that, according to strict juristic theory, they should not be lawfull at all but have been sanctioned in order that the testator might make up for his shortcomings in life by making gifts to deserving objects. As far back as 1878, the Judicial Committee in Bazayet Hossein v. Dooli Chund (1878) I.L.R. 4 C. 402, held that an heir-at-law was entitled to alienate his share in spite of the fact that there were debts of the deceased still outstanding and it would not have been possible to hold this if the inheritance did not devolve on the heir on the death of the propositus. Mr. Justice Mabmood in Jafri Begam v. Amir Muhammad Khan (1885) I.L.R. 7 All. 822, has fully discussed the question and I do not think it would be of any use to add anything more to his reasoning. As regards the nature of the tenure of the co-heirs shares, the heirs of a deceased Muhammadan take their shares in severalty, their rights being analogous, to those of tenants-in-common, and not of members of a Joint Hindu Family. There cannot be the slightest doubt therefore upon the principles of Muhammadan law and also upon the authorities that one heir has no right to deal with the shares of the other heirs. In the Muhammadan system such a tenure of property is called Shirhat which literally means "participation" and, in law, joint rights, and which is translated as partnership by Mr. Hamilton in his translation of the Hedaya. The definition of Shirhat as given by him is, "Shirkat, in its primitive sense, signifies the conjunction1 of two or more estates, in such a manner, that one of them is not distinguishable from the other. The term Shirkat, however, is extended to contracts, although there be no actual conjunction of estates, because a contract is the cause of such conjunction. In the language of the law it signifies the union of two or more persons in one concern." This is absolutely clear authority in proof of the position that one heir has no authority, in law, to deal with the shares of his co-heirs. In face of it it is not necessary to refer to other original text books. It is stated, however, in Pathummaubi v. Vittil Ummachabi (1902) I.L.R. 26 M. 734 that, "if the creditor of the deceased can seek his relief against one of several co-heirs in a case where all the effects of the deceased are in the hands of that heir, it can make no difference; whether the heir meets the demand by a bona fide voluntary sale or the property is brought to sale in execution of a decree obtained against him." To the same effect is a decision of the Allahabad High Court in Hasan Ali v. Mehdi Hussain (1877) I.L.R. 1A. p. 33. The statement in Pathummabi v. Vittil Ummachabi (1902) I.L.R. 26 M. 734 was purely by way of obiter dictum and, with all respect to the learned Judges they failed to bear in mind that, the provision of the Muhammadan law, that a decree against one heir in possession of ail the effects of the deceased, is binding on all if obtained after contest, is part of the processual law of that system and is not based on the ground that a single heir, if he happens to be in possession of the estate of the deceased, represents the rest of the heirs for the purposes of administration generally. The ground on which a decree against one of the heirs, in such circumstances, is treated as res judicata is, as stated in the books, that the decree in such cases is, in law, against the deceased and not against the particular heir who is made defendant in the suit. In the Hedaya the matter is discussed in the chapter relating to the duties of the Kazzee and in some other text books in the chapter dealing with claims, in which chapters the rules of procedure of the Muhammadan system are mostly laid down. In dealing with the question whether one of the heirs obtains a decree for the recovery of the property of the deceased in possession of a third person more than his share in that property should be made over to him in execution of the decree, it is stated that all the three Doctors, that is, Abu Haneefa and his two disciples, agree that the decree enures not only in favour of the heir who actually is the plaintiff but also of the heir who did not join on account of absence from the country though there is a difference of opinion as to whether the decree bolder shall be given possession of more than his share. This is how the principle is enunciated in the Hedaya (Grady, p. 349 "for anyone of the heirs of a deceased person stands as litigant on the part of all the others with respect to anything due to, or by the deceased, whether it be debt, or substance; since the decree of the Kazee, in such case, is in reality either in favour of or against a deceased; and any one of the heirs may stand as his representative with respect to such decree." There are a number of rulings, especially of the Calcutta High Court in which the rule of Muhammedan law as to one heir representing the other co-heirs in suits, has been adopted. It is not necessary for us to pronounce any definite opinion upon this class of cases which deal with the question how far a decree against one of the heirs of a deceased Muhammadan binds the others and under what circumstances. So far as voluntary alienations are concerned, which alone form the subject-matter of reference, the Muhammadan law is clear that one of the heirs of a deceased person is not competent to bind the other heirs by his acts.

Fact of the Case:

The question referred to the court was whether a co-heir of a deceased Muhammadan, in possession of the whole estate or any part of it, could sell property to discharge the debts of the deceased and whether such a sale would be binding on the other co-heirs or creditors of the deceased.

Finding of the Court:

The court found that according to Muhammadan law, one heir has no right to deal with the shares of the other heirs. The inheritance vests in the heirs according to their respective shares, and each heir is entitled to the income accrued since the testator's death in proportion to his share. The court also emphasized that one heir cannot administer the property of the deceased, even for the purpose of paying off his debts.

Issues: The main issue was whether a co-heir could sell property to discharge the debts of the deceased and whether such a sale would be binding on the other co-heirs or creditors of the deceased.

Ratio Decidendi: The court's decision was based on the principles of Muhammadan law, which dictate that one heir has no authority to deal with the shares of his co-heirs. The court cited various authorities and rulings to support the position that voluntary alienations by one of the heirs of a deceased person are not competent to bind the other heirs.

Final Decision: The court held that according to Muhammadan law, one of the heirs of a deceased person is not competent to bind the other heirs by his acts.