The legitimacy and entitlement of a child under inheritance laws were upheld, affirming that co-sharers can inherit from a deceased without other claimants, despite claims of illegitimacy contrary to established evidence.

ORDER :

SASHIKANTA MISHRA, J.

The defendant No.2 in C.S. No.256 of 2006 of the Court of Civil Judge (Sr. Division), First Court, Cuttack is the appellant in the present Second Appeal who seeks to challenge the judgment and decree passed by learned District Judge, Cuttack on 13.10.2014 and 25.10.2014 respectively in RFA No. 116 of 2013 confirming the judgment and decree passed by the aforementioned trial Court on 02.08.2013 and 08.08.2013 respectively, whereby the suit filed by the plaintiff for partition was decreed preliminarily with shares being allotted to the co-sharers.

2. For convenience, the parties are referred to as per their respective status in the trial Court.

3. The present appeal was admitted on the following substantial questions of law.

“1. Whether the answer against Issue No.3 as given by both the learned courts below that Razak Khan was the son of Kaniz Amina through Noor khan and entitled to get a share from out of the suit properties are sustainable on the face of the evidence on record that the properties are of the first wife of Noor Khan, namely Samsun Nisa Bibi, who had filed the Title Suit bearing T.S. No. 105 of 1970 which was decreed on compromise to the extent that right was created in favour of the defendant nos. 1 to 4 and defendant no.6 which include the present appellant excluding the right of the original plaintiff Razak Khan and his mother Kaniz Amina and the properties involved in the present suit were also the suit properties in T.S. No. 105 of 1970?

2. Whether in view of the ban contained in Article 84 of Mohammedan Law, the properties of Samsun Nisa Bibi could be claimed by her admitted son Razak Khan and in view of the law decided in 2008 (Supp.I) OLR -349 (Aziza Ekbal Khatun –vrs- Hasina Akhatar) that the step relation have no right of inheritance, the admitted step son, Razak Khan could maintain a suit for partition of the properties left behind by Samsun Nisa Bibi, the 1^st wife of Noor Khan?”

4. In order to appreciate the relationship between the parties, it would be apposite to refer to the genealogy as claimed by the plaintiff.

The suit for partition was filed by Razak Khan, the original plaintiff, who having expired, has since been substituted by his legal heirs. His case is that Noor Khan had two wives, namely, Samsun Nisa Bibi, who died issueless and Kaniza Amina, who died leaving behind the original plaintiff and defendant Nos. 1 to 4 and 6. Hal Suit Khata No. 946 was recorded in the name of Samsun Nisa Bibi, whereas Hal Suit Khata No. 947 stands recorded jointly in the names of both the wives of Noor Khan and his sons and daughters. Samsun Nisa Bibi predeceased Kaniza Amina, while the latter died on 17.07.1988. Noor Khan had died before the death of Samsun Nisa Bibi. After death of Kaniza Amina, the sons and daughters of Noor Khan along with the original plaintiff succeeded to the suit properties. The plaintiff was paying rent and tax to the Government. Since his brothers and sisters did not allow him to enjoy his share in the suit property, which was held joint, he filed the suit for partition.

5. Of all the defendants, only defendant No.2 contested the suit by filing written statement. Defendant No.6 adopted the said written statement. Their stand was that Razak Khan was not the son of Noor Khan but was the son of Kaniza Amina, begotten from her marriage with another person prior to her marriage with Noor Khan. It is their further case that Razak Khan had no right to succeed to the properties of Samsun Nisa Bibi and Noor Khan. Moreover, Samsun Nisa Bibi had filed T.S. No. 105 of 1970 in the Court of 1^st Munsif, Cuttack for cancellation of deed of declaration, which was decreed on compromise on