JUDGMENT
D.V. Shylendra Kumar, J.
1. These two appeals arise from the Judgment dated 28.1.2002 rendered in R.A. No. 12 of 1999 on the file of the court of the I Additional District Judge, Dharwad at Hubli.
2. The appeal itself was by the Defendant No. 3 in the suit in No. 224 of 1996 on the file of the court of the Additional Civil Judge [Sr. Dn.,] Hubli at Hubli which was a suit for a share in the property of one Haji Khan Gadagkar filed by his wife and first son as plaintiff 1 and 2 respectively, impleading the second son as Defendant No. his wife as Defendant No. 2 and widow of predeceased son of 1 plaintiff and predeceased brother of 2nd plaintiff as Defendant No. 2
3. The relationship amongst the parties to the suit is as under.
Haji Khan Gadagkar (died)
+ wife Smt. Hajjima (1st Plaintiff)
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Abdul Sattar Mohamed Gouse Abdul Khadar
Gadagkar Gadagkar Gadagkar
1st son (died 2nd son 3rd son
before filing of 1st Defendant 2nd plaintiff
suit but after |
the death of |
his father |
Haji Khan |
Gadagkar) |
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Razia Begum Noor Jahan
Wife- Wife-
3rd defendant 2nd defendant
4. The plaintiffs came to the court seeking for their share in the properties of late Haji Khan Gadagkar pleading that the husband of the 1st plaintiff and father of the 2nd plaintiff namely Haji Khan Gadagkar had taken on lease a vacant land from one Mahadev Narayan Tabib and the said person had constructed the house where all the parties to the suit were living with Gadagkar and even after the death of Gadagkar continued to reside there itself.
5. The cause of action pleaded in the suit was that the defendants 1 to 3 had started acting adverse to the interest of the plaintiffs on and after the husbands of defendants 2 and 3 had purchased the land from the original owner and particularly in the vicinity of the filing of the suit, when the defendants had tried to oust the 1st plaintiff from the house property claiming that neither the 1st plaintiff nor the 2nd plaintiff had any right, title and interest in the suit property. In such circumstances, for asserting their rightful share, the plaintiffs had approached the court and had sued for their share in the property. The Trial Court had decreed the suit awarding 1/8* share in the property of Haji Khan Gadagkar in favour of 1st plaintiff – wife and balance to be shared equally amongst 2nd plaintiff – son and defendants 1 to 3.
6. While the sharing ratio on the face of it indicates that it was not correct in terms of Sunni School of Mohammedan Law which was being followed by the parties, even arithmetical calculation indicates that the sum total of the shares as allotted by the trial court in favour of the parties exceeds one unit and therefore the order obviously was erroneous and was required to be corrected.
7. The Defendant No. 3 alone appealed against the Judgment and decree of the trial court. The contention of the Defendant No. 3 -appellant before the lower appellate court was that the trial court had not appreciated the evidence on record in a proper manner; that certain admitted facts had not been properly taken into consideration, particularly with regard to the nature of the suit property; that the admitted position in the plaint had not been taken note of by the learned Judge of the Trial Court while rendering the Judgment and the decree following the Judgment for the sharing ratios; that the ownership in respect of the land in favour of Defendants 2 and 3 which was the conceded position had not been properly appreciated by the learned Judge of the trial court; that at any rate, the sharing ratio was not proper, particularly, having regard to the relationship of the parties; that the Defendant No. 3 – appellant in the appeal was entitled to succeed to the share of her husband in its entirety i.e., 7/24th share which her husband got on the death of his father in law Haji Khan Gadagkar.
8. While it may not be very relevant for the purpose of the second appeal to notice the issues that had been raised by the trial court, as there is not much dispute with regard to the relationship or development with regard to facts such as demise of husband of 3rd defendant, subsequent to the death of the propositus Haji Khan Gadagkar, but before filing of the suit and also one another intervening development, namely, that the 1st plaintiff – wife of Haji Khan Gadagkar had also died during the pendency of the first appeal and with regard to nature of rights claimed, particularly, parties claiming under a gift deed left behind by the propositus Haji Khan Gadagkar gifting the property even during his lifetime in favour of his wife and sons equally has not been accepted by the trial court nor pursued by the parties before the lower appellate court and the property which was sought to be shared a house property particularly the super structure being built on a land leased in favour of the propositus Haji Khan Gadagkar by one Mahadev Narayan Tabib and the lessor in fact having sold the land in favour of the two sons of Haji Khan Gadagkar through a sale deed executed in favour of Defendant No. 1 and husband of Defendant No. 3 in the year 1989 and such being the pleadings in the plaint itself, it is not necessary to notice the issues and the evidence received by parties on these aspects as ultimately limited questions have survived for examination in the second appeal and what is required to be corrected in the second appeal being the sharing ratio amongst the sharers in terms of the provisions of Mohammedan Law.
9. The lower appellate court in terms of its Judgment and decree as noticed above has modified the Judgment and decree passed by the trial court indicating that the sharing ratio amongst the parties in the wake of the development that the 1st plaintiff was no more, who had been allotted 1/8th share was to be left undisturbed. In the balance the plaintiff No. 2 and Defendant No. 1 were allotted 11/24th share and Defendant No. 3 was given 1/4th share. The 2nd defendant who had been allotted a share by the trial court was excluded. It can be noticed that even the sharing ratio as indicated by the lower appellate court purporting to act on a memo dated 9.1.2002 filed on behalf of respondent No. 2 [though wrongly described as on behalf of respondent No. 1, in the memo, as it is indicated in the very memo that the respondent No. 1 – 1st plaintiff in the suit had died during the pendency of the proceedings], in which it is indicated that there was a sister of the 2nd plaintiff and 1st defendant and sharing ratio was required to be suitably modified, the existence of a sister to the 2nd plaintiff and 1st defendant has not been seriously pursued at all.
10. The lower appellate court while ignored this fact, nevertheless, has proceeded to modify the Judgment and decree of the trial court altering the sharing ratio as indicated above which again is fully not in consonance with the provisions of the Mohammedan Law, particularly, the provisions of Sections 56, 61, 63 and 65 of the Mulla’s Principles of Mohammedan Law and it is obviously an error in law. It is aggrieved by this Judgment and decree of the lower appellate court, the Defendant No. 3 has filed RSA No. 275 of 2002 and the 2nd defendant has come up with RSA No. 482 of 2002.
11. While the purpose of the appeal of the Defendant No. 3 on whose behalf Sri. Ravindranath, learned Counsel has appeared is to contend that the 3rd defendant after the death of her husband namely Abdul Sattar who was one of the sons of original propositus Haji Khan Gadagkar inherits his entire share i.e., 1/3rd of the 7/8th share of the property of Haji Khan Gadagkar and also to contend that the courts below were not right in passing decrees as though the entire property namely house property with land was required to be shared in which they have indicated, the appeal of the Defendant No. 2 for whom Sri. Shripati, learned Counsel has appeared who is also the wife of Defendant No. 1 is to yet again contend that the courts below have committed an error in ignoring the admitted position that the ownership of the land was with the lessor Mahadev Narayan Tabib and this ownership in land had been conveyed by Mahadev Narayan Tabib in favour of her husband and husband of the Defendant No. 3 who had purchased the land jointly in terms of the sale deed of the year 1989 and therefore not merely they have become owners of the land but also of the super structure through this sale deed and as such the entire property was required to be shared only between the defendants 2 and 3 and not as decreed by the courts below.
12. I have heard Sri. Ravindranath, learned Counsel for the appellant in RSA No. 275 of 2002, Sri. Shripati, learned Counsel for the appellant in RSA No. 482 of 2002 and also Sri. Madanmohan Khannur, learned Counsel appearing for respondents 1 and 2 in RSA No. 275 of 2002 and for respondent No. 2 in RSA No. 482 of 2002 and Defendant No. 1 has remained unrepresented though one of the sons of Haji Khan Gadagkar is not represented though had been served. Learned Counsel for the parties have taken me through the record, pleadings, evidence and Judgments of the courts below.
13. Submission of Sri. Ravindranath, learned Counsel for the appellant in RSA No. 275 of 2002 is that in terms of the provisions of Section 56 of the Mohammedan Law, the share which vested in the husband of the Defendant No. 3 at the time of the death of Haji Khan Gadagkar will pass to his wife exclusively and as such Defendant No. 3 is entitled for 7/24th share in the property of late Haji Khan Gadagkar. This argument is countered by Sri. Shripati, learned Counsel for the appellant in RSA No. 482 of 2002 and also Sri. Madanmohan Khannur, learned Counsel appearing for respondents 1 and 2 in RSA No. 275 of 2002 and for respondent No. 2 in RSA No. 482 of 2002, by drawing attention to the very section and pointing out that while it is true that on the death of Haji Khan Gadagkar, the entitlement in favour of the husband of the Defendant No. 3 who was one of the sons of Haji Khan Gadagkar gets determined, but it does not necessarily pass exclusively in favour of the 3rd defendant after the death of her husband for the reason that even after the operation of the provisions of Section 56, it has to necessarily go through the provisions of Sections 63 and 65 of the Mohammedan Law.
14. I have examined these rival submissions. Sections 56, 63 and 65 of the Mohammedan Law read as under:
56. Vested inheritance – A “vested inheritance” is the share which vests in an heir at the moment of the ancestor’s death. If the heir dies before distribution, the share of the inheritance which has vested in him will pass to such persons as are his heirs at the time of his death. The shares therefore are to be determined at each death.
63. Sharers – After payment of funeral expenses, debts and legacies, the first step in the distribution of the estate, of a deceased Mahomedan is to ascertain which of the surviving relations belong to the class of sharers, and which again of these are entitled to a share of the inheritance, and, after this is done, to proceed to assign their respective shares to such of the sharers as are, under the circumstances of the case, entitled to succeed to a share. The first column in the accompanying table (p. 48A) contains a list of Sharers; the second column specifies the normal share of each sharer; the third column specifies the conditions which determine the right of each sharer to a share, and the fourth column sets out the shares as varied by special circumstances.
65. Residuaries – If there are no sharers, or if there are Sharers, but there is a residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves upon Residuaries in the order set forth in the annexed table.
15. While the share of the husband of the 3rd defendant in the property of propositus Haji Khan Gadagkar gets vested in Abdul Sattar at the time of the death of Haji Khan Gadagkar, it does not pass exclusively to the Defendant No. 3 alone on the death of Abdul Sattar as even in terms of Section 56 that vested interest will have to pass on to such persons as are his heirs, at the time of his death. In terms of Section 61, there are three class of heirs, namely, sharers, residuaries, distant kindred. While Section 63 indicates who are all the sharers and wife is one sharer who gets 178th or 1/4th share as the case may be depending upon the deceased leaving behind a child or a child of his son and otherwise respectively and therefore the 3rd defendant got 1/4th share of the vested inheritance of her husband Abdul Sattar in the property of Haji Khan Gadagkar and there being no other sharers with her, the remainder which is the residue has to go to the residuaries in terms of Section 65 i.e., 3/4th remainder has to be shared between the two surviving brothers of Abdul Sattar in equal measure. It is for this reason that the 3rd defendant cannot lay claim for the entire vested inheritance of Abdul Sattar in the property left behind by late Haji Khan Gadagkar but is to be shared as claimed in the suit. With the relationship amongst the parties being not in dispute and the developments with regard to the manner in which the subject matter property came into the possession and enjoyment of propositus Haji Khan Gadagkar also being not in dispute, I find very limited disputes which needs to be resolved in these two second appeals.
16. This Court had taken up both the appeals together and while admitting these appeals, had formulated the following substantial question of law for determination.
Whether the allotment of shares by the First Appellate Court passed on the memo filed by the learned Counsel for the parties is based on the fixed share under the Mohammadan Law to the parties and the First Appellate Court was right in accepting the memo without there being written instructions of the parties regarding the shares allotted in the impugned judgment?
Irrespective of the acceptability of the memo, as the memo on the face of it is not a joint memo filed by the parties, who had agreed to for the dispute being settled amongst themselves in any acceptable manner, the memo can be taken to be only as the version presented before the court on behalf of the parties for whom the memo is filed. Once the courts below have discarded the theory of the house property having been gifted by Haji Khan Gadagkar in equal measure in favour of his wife and three sons, on the death of Haji Khan Gadagkar, his property passes by way of succession in favour of the sharers and residuaries in terms of Section 65 of the Mohammedan Law. It is not in dispute that said Haji Khan Gadagkar was survived by 1st plaintiff -his wife, 2nd plaintiff – eldest son, 1st defendant – second son and husband of Defendant No. 3 the third son. It is also not in dispute that what passes on the death of said Haji Khan Gadagkar is only the super structure which had been put up by Haji Khan Gadagkar on the land that he had taken on lease from Mahadev Narayan Tabib.
17. The factum of Haji Khan Gadagkar leaving behind a daughter was never on record and it is also not pleaded by parties as to whether the custom excluded a daughter sharing with the sons. For the purposes of these two appeals, it is taken that there was no daughter left behind by Haji Khan Gadagkar as has been proceeded by the courts below. On the death of Haji Khan Gadagkar, his wife and three sons being the survivors the wife gets 1/8th share being a sharer in terms of Entry-IV of the Table of Sharers appended to the provisions of Section 63 of the Mohammedan Law and with no other sharer being available, the residue, namely, 7/8th share of the property goes to the three surviving sons in equal measure in terms of the provisions of Sections 63 and 65 of the Mohammedan Law. Therefore, the residue of 778th share of the property of Haji Khan Gadagkar is shared in equal measure i.e., 1/3rd each by the three surviving sons i.e., each son will get 7/24th share of the property of Haji Khan Gadagkar.
18. If there should not have been any subsequent development, perhaps this manner of sharing would have been concluded. But, in view of the death of Plaintiff No. 1 during the pendency of the first appeal before the lower appellate court and though learned Judge of the lower appellate court has indicated that this share is not disturbed and left as it is, it is only proper that when this decree is one which has to be in respect of the suit as originally filed and the property is not yet shared by the parties as such, it may be definitely useful and for clarity and precision, the manner in which 1/8th share of plaintiff No. 1 could pass on her death is also indicated in this Judgment.
19. In so far as plaintiff No. 1 is concerned, on her death by which time her third son had predeceased her which is not again disputed on facts, only two other sons survived. There being no sharers who can take her share in terms of Section 63, the surviving two sons become residuaries in terms of Section 65 and they share the original 1/8th share in the property of Haji Khan Gadagkar in equal measure i.e., each gets 1/16th share. This augments their share which they had got from their father.
20. However, due to one another development, namely, that of the death of third son Abdul Sattar before the filing of the suit as noticed earlier his 7/24th share in the property of Haji Khan Gadagkar has to necessarily pass on his death in terms of Section 63 as he left behind only his wife who is a sharer and who gets 174th of his property in terms of Entry-IV again as she did not have any children. The residue, namely, 3/4th of the share of Abdul Sattar i.e., 3/4th of his 7/24th share in the property of Haji Khan Gadagkar goes to the residuaries, namely, his two brothers 2nd plaintiff and 1st defendant in terms of Section 65 as brothers and sisters are indicated as residuaries who share equally and in the instant situation, the case having proceeded on the premise that there was no sister.
21. While the shares of the 2nd plaintiff and the 1st defendant had got augmented because of the death of their brother even before filing of the suit, the death of their mother plaintiff No. 1 during the pendency of the appeal further increases their share in the property that had been left behind by Haji Khan Gadagkar. On applying the provisions of Sections 63 and 65, it is to be noticed that the 2nd defendant does not get any share on her own in the property of Haji Khan Gadagkar or on the death of either one of his sons or his wife. She is neither a sharer nor a residuary. The property obviously is only to be shared amongst the other surviving persons namely plaintiff No. 2, Defendant No. 1 and Defendant No. 3. Applying the provisions of Sections 63 and 65 together, ultimately, the share of the 2nd plaintiff works out to 89/192nd share in the original property, likewise the share of the 1st defendant is also 89/ 192 of the property and the share of the 3rd defendant is 14/192.
22. This is achieved because of the reason that the original property i.e., the house property – the super structure alone which was the property of Haji Khan Gadagkar on his death had passed to his wife and three surviving sons in the ratio of 1/8, 7/24, 7/24, 7//24 respectively. Thereafter, on the death of one of his sons, namely, husband of Defendant No. 3, out of this 7/24th share in the original property, 1/4th of it went to the Defendant No. 3 and half of the remaining 3/4* of his share reverted to his two brothers, namely plaintiff No. 2 and Defendant No. 1. Much later, during the pendency of the appeal, on the death of the 1st plaintiff, i.e., wife of the original propositus Haji Khan Gadagkar, her interest in the property was shared equally between her two surviving sons, namely, plaintiff No. 2 and Defendant No. 1 i.e., they get 1/16th share of the original property. Adding up all these things, the ultimate sharing ratio is as indicated above.
23. Though it is contended by Sri. Shripati, learned Counsel for the appellant in RSA No. 482 of 2002 that the husbands of Defendant Nos. 2 and 3 having purchased the land from the original owner under the sale deed of the year 1989 and their respective husbands having gifted the property in their favour and therefore the Defendants 2 and 3 had become the full owners of the entire building and the property was required to be shared only as between them and others do not get any share in the property, this submission cannot be accepted for the simple reason that what was purchased by the husbands of the Defendants 2 and 3 was only ownership rights minus the leasehold rights which Haji Khan Gadagkar had in the land and which lease continued to subsist at the time of the purchase of the land by their husbands. Mere acquisition of such ownership in the land does not confer ownership of the super structure also in their favour unless it can be demonstrated that the lease agreement provided for super structure also becoming the property of the lessor on determination of the lease.
24. Be that as it may, this was never an issue before the courts below nor was it agitated and it is not the question which can be gone into in the second appeal. It is suffice to clarify that the sharing ratio amongst the surviving parties in the suit is to be as indicated in this Judgment and modifying the decrees of the courts below is only in respect of the super structure i.e., the building portion and not with reference to the ownership of the land, having regard to the pleadings in the plaint itself that the husbands of the Defendant Nos. 2 and 3 had purchased the land from the original owner in the year 1989 through the sale deed. Both the appeals are disposed of modifying the Judgment and decree passed by the lower appellate court as indicated above. Registry to draw the decree accordingly. Parties left to bear their own costs throughout.