Interpretation of Hanafi Law of Inheritance and its application to property disputes.

Prafulla C. Pant,J.

This second appeal, preferred under section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 02.08.2000, passed by Additional District Judge, Kashipur, District Udham Singh Nagar-, in Civil Appeal No. 66 of 1999, whereby said court has allowed the appeal, and dismissed the suit No. 83 of 1997, filed by the plaintiffs (present appellants).

2.Heard learned counsel for the parties, and perused the lower court record.

3. Brief facts of the case are that plaintiffs instituted suit No. 83 of 1997, with the pleading that their grand father Ahmad Hussain was the owner of the house in suit situated within the limits of Town Area, Jaspur. The original owner (Ahmad Hussain) died on 26.11.1990. It is pleaded by the plaintiffs that plaintiff's father Abdul Salam inherited the property after the death of his father (Ahmad Hussain). Defendant No. 1 Smt. Kaneez is daughter of Ahmad Hussain. Plaintiffs' case is that she (defendant No. 1 kaneez), and her two sons were allowed to stay in the house of Ahmad Hussain since 1986. After the death of Abdul Saiam, plaintiffs asked from their aunt and cousins to leave the house and terminated the license. However, the defendants (Kaneez and her sons) did not vacate the premises. Hence the suit was filed by the plaintiffs for the eviction of defendants. (During pendency of lis, defendant No. 1 Kaneez died and her husband and two sons defended the case).

4. The defendants contested the suit and filed their written statements. It is admitted by the defendant in their written statements that Ahmad Hussain was the original owner of the property in suit but it is pleaded that he executed a Will dated 16.02.1980 in favour of his daughter (defendant No. 1 Kaneez) and she was living in the house as the heir of her father. It is pleaded by the defendants that in 1991 dispute was raised by the plaintiffs and in the village panchayat it was decided that in the disputed portion of the house defendants would be allowed to stay.

5. On the basis of the pleadings of the parties, the trial court framed following issues:

(i) Whether the defendants are liable to be dispossessed?

(ii) Whether the plaintiffs have no cause of action against the defendants?

(iii) To what relief, if any, the plaintiffs are entitled?

(iv) Whether the suit is bad of non joinder of necessary parties as alleged in para 18 of the written statement?

6. Before the trial court, documentary evidence and oral evidence was adduced by the parties. On behalf of the plaintiffs P.W.1 Abdul Rehman, and P.W.2 Nisar Ahmad were examined while on behalf of the defendants D.W. 1 Ifzul Rehman, D.W.2 Mehandi Hasan and D.W. 3 Rafiq were examined. The trial court after hearing the parties found that the Will relied by the defendants was not proved on the record. It is further found by the trial court that settlement alleged to have been made by Panchayat is of no help to the defendants as out of the four, two plaintiffs had not signed the same. With these findings the trial Court decreed the suit for possession in favour of the plaintiffs.

7. Aggrieved by said judgment and decree dated 13.08.1999 passed by Civil Judge (Jr. Div.) Kashipur, Civil Appeal No. 66 of 1999 was filed by the defendants before the I Appellate Court, which was decided vide impugned judgment and decree dated 2.08.2000 passed by Additional District Judge, 'Kashipur, reversing the decree passed by the trial court. Hence this second appeal was filed by the plaintiffs before Allahabad High Court where it was admitted on 30.08.2000. The second appeal is received by this Court under section 35 of U.P. Reorganization Act, 2000, for its disposal.

8. Following are the substantial questions of law on which this was admitted by the Allahabad High Court:

(A) Whether the title in a immovable property can be transferred by means of Panchayatnama without getting it approved by the court of law.

(B) Whether a person can be bound by an agreement in which he is