JUDGMENT
P.S. Narayana, J.
1. The second defendant in O.S. No. 941 of 1987 on the file of the V Additional Judge, City Civil Court, Hyderabad, had preferred this appeal. The respondents in this appeal are the plaintiffs in the suit.
2. The parties hereinafter would be referred to as plaintiffs and defendants as arrayed in the original suit,
3. The widow and the daughter of late Dr. Tajammul Hussain filed the suit O.S. No. 941 of 1987 praying for declaration of title, recovery of possession and mesne profits in relation to the plaint schedule property i.e., portion in possession of the appellant in premises No. 3-6-319, Hyderguda, on the ground that they are the legal heirs of the deceased Dr. Tajammul Hussain as per Shia Law of inheritance. The learned Judge on the strength of the pleadings of the respective parties, having settled the issues, recorded the evidence of PWs. 1 and 2 and DW1, marked Exs. A1 to A25 and Ex. B1 and ultimately decreed the suit without costs. Aggrieved by the same, the present appeal is preferred.
4. Contentions of Sri K. Raghuveer Reddy: Sri K’. Raghuveer Reddy, learned Counsel representing the appellant made the following submissions:
The learned Counsel had taken this Court through the evidence available on record and would contend that the relationship between the parties is not in serious dispute. The learned Counsel also would submit that several of the facts including Ex. B1 would go to show that late Dr. Tajammul Hussain made oral gift in favour of first defendant relating to the plaint schedule property and thus, she became the absolute owner of the said property. The learned Counsel also would submit that the first defendant is no more, since she died during the pendency of the suit and as per Shia Law of inheritance, the appellant herein and the others would be entitled to the said property left by the first defendant, which she got by virtue of the oral gift made by late Dr. Tajammul Hussain. The learned Counsel also would submit that it is unfortunate that the wife and the daughter of the said late Dr. Tajammul Hussain are not inclined to honour the wishes of late Dr. Tajammul Hussain, which is otherwise, clearly reflected by virtue of Ex. B1 and hence, the relief prayed for by the plaintiffs cannot be granted. The learned Counsel also had taken this Court through the findings recorded by the learned Judge in this regard and had commented that the findings recorded in relation to the appreciation of the evidence of DW1 and Ex.B 1 are erroneous and hence, the appellant is bound to succeed.
5. Contentions of Sri Koka Raghava Rao: Sri Koka Raghava Rao, learned Counsel representing the respondents would maintain that the learned Judge recorded reasons in detail and ultimately disbelieved the alleged oral gift said to have been made by late Dr. Tajammul Hussain in favour of the first defendant. Even otherwise, the learned Counsel would contend that the first defendant is no more and it is not the case of the second defendant that the said oral gift was made in favour of the second defendant and even in the light of the same, the findings recorded by the learned Judge may have to be confirmed. The learned Counsel also would submit that even if it is to be taken that the signature in Ex.B 1 is that of Dr. Tajammul Hussain, by that itself, it cannot be said that the ingredients to be satisfied in the case of Shia Mohammedan in making oral gift are in any way satisfied. The learned Counsel also had taken this Court through the evidence of PW1 and PW2 and Exs. A1 to A25 and the evidence of DW1 and would contend that on the overall appreciation of the whole evidence available on record, just on the strength of Ex. B1, it cannot be said that the oral gift had been established and hence, the findings are to be confirmed. The learned Counsel also had drawn the attention of this Court to Ex.A18-certified copy of the judgment in O.P. No. 15 of 1985 and Ex.A3-certified copy of the decree in the said O.P. and even in the light of those findings, the learned Counsel would contend that the appellant cannot succeed.
6. Heard the learned Counsel on record and also perused the oral and documentary evidence available on record and the findings recorded by the learned Judge.
7. In the light of the rival contentions advanced by both the learned Counsel, the following points arise for consideration in this appeal:
(1) Whether the respondents-plaintiffs are entitled for the relief of declaration of title and recovery of possession on the ground that they are the legal heirs to succeed to the estate of late Dr. Tajammul Hussain as per Shia Law of Inheritance in the facts and circumstances of the case;
(2) Whether the oral gift pleaded by the defendants can be said to have been proved in the facts and circumstances of the case;
(3) Whether the quantum of mesne profits granted by the learned Judge can be said to be just and proper in the facts and circumstances of the case
(4) If so, to what relief the parties would be entitled to?
8. Point Nos. 1 to 3: For the purpose of convenience, Point Nos. 1 to 3 can be answered together. Before taking all further discussion of the evidence available on record, it would be appropriate to have a look at the respective pleadings of the parties. It was pleaded by the plaintiffs in the plaint that one late Dr. Tajammul Hussain worked in Medical Services in the Government of Andhra Pradesh, Hyderabad, and died on 1-2-1984 and while in service, he purchased the suit house on 15-6-1990 and he retired from service in the year 1978. It was also further pleaded that thereafter, he was running a dental clinic in the suit house till his death. The Plaintiff No. 1 is his wife whereas Plaintiff No. 2 is his daughter. The Plaintiff No. 1 had also contributed considerable amount to her husband in purchasing the suit house. Both the plaintiffs had been residing in the suit house since the time of its purchase. One Abida Begum and Defendant No. 1 were sisters whereas one Hyder Ali was brother of Dr. Tajammul Hussain. Abida Begum died in the year 1964 leaving behind Defendant No. 2 as her son. The plaintiffs had permitted Defendants 1 and 2 to stay in the suit house on humanitarian grounds. The Plaintiff No. 1 made some additional construction in the suit house. Late Hyder Ali was also staying in the suit house till his death with the permission of the plaintiffs. After his death, Defendant No. 1 filed a suit in O.S. No. 439 of 1986 against the wife and children of late Hyder Ali on the file of this Court for recovery of a portion of the suit house and got the same in execution of the decree. Defendant No. 2 was employed in Behrain in the year 1981. He returned back to India in the year 1984 and started staying with Defendant No. 1 in the suit house. At first, the plaintiff thought that Defendant No. 2 may again return back to Behrain but he did not rejoin the service. The plaintiffs have filed O.P. No. 15 of 1985 on the file of the VIII Assistant Judge, City Civil Court, Hyderabad for the grant of Succession Certificate in their favour in respect of the properties left by late Dr. Tajammul Hussain and the same is still pending. The plaintiffs are only legal heirs of late Dr. Tajammul Hussain and governed by Shia Law. The defendants cannot claim any right in the suit house. When they did not vacate the same, the plaintiffs got issued a notice on 18-5-1987 to which the defendants did not reply. Defendant No. 1 claims an oral gift of the suit house in her favour by late Dr. Tajammul Hussain, which is false. As per Shia Law, only near relatives will get the property of daughter in the degree and excludes the remoters relatives. Hence the Plaintiff No. 1 gets 1/8th share whereas Plaintiff No. 2 gets 7/8th share of the property left by late Dr. Tajammul Hussain. For these reasons, the plaintiffs had prayed to declare them as only legal heirs of late Dr. Tajammul Hussain and owners of the suit property and for recovery of possession of the same by dispossessing the defendants with mesne profits at the rate of Rs. 600/- p.m., from the date of the suit till the date of delivery of possession. During pendency of the suit, the Defendant No. 1 died. The Plaintiff No. 2 is only legal heir of Defendant No. 1 and as such, she is entitled to inherit the property. For these reasons, the plaintiffs had prayed to decree the suit with costs.
9. The same was resisted by filing a written statement, wherein it was pleaded as hereunder:
No doubt, the suit was self-acquired property of late Dr. Tajammul Hussain but during his life-time only he had settled the same by way of gifting a portion of it to the family members, i.e., plaintiffs and Defendant No. 1. They got respective shares in the suit house in pursuance of the said gift. This being the fact, the Defendant No. 1 became absolute owner of the portion of the suit house to the extent of her share got by way of the said gift. Therefore the present suit is not maintainable. The defendants and two others contesting O.P. No. 15 of 1985 on the file of the VIII Assistant Judge, City Civil Court, Hyderabad which had been filed by the plaintiffs herein claiming the Succession Certificate for the properties leftover by late Dr. Tajammul Hussain. Both the defendants are residing in a portion of the suit house since the lifetime of Dr. Tajammul Hussain. The plaintiffs are not entitled to dispossess the defendants therefrom. The Defendant No. 1 has filed the suit in O.S. No. 439 of 1986 against one Hussaina Begum. The defendants are residing in the portion of the suit house as owner and also paying electricity charges etc. For all these reasons, the defendants had prayed to dismiss the suit with costs.
10. The fact that the suit property was the self-acquired property of late Dr. Tajammul Hussain was not denied. But, however, specific stand was taken that during his lifetime, he had settled a portion of it by way of a gift, to the family members (Plaintiffs and Defendant No. 1). It was also further pleaded that they got respective shares in the plaint schedule property in pursuance of the said gift and thus, the first defendant became absolute owner of the portion of the property by virtue of the gift and hence, the present suit cannot be maintained. It was also pleaded that defendants and two others at the relevant point of time were contesting O.P. No. 15 of 1985 on the file of the VIII Assistant Judge, City Civil Court, Hyderabad, which had been filed by the plaintiffs, claiming Succession Certificate for the properties leftover by Dr. Tajammul Hussain. It was also pleaded that D1 filed a suit O.S. No. 439 of 1986 against one Hussain Begum. The defendants are residing in a portion of the suit house as owners thereof, by virtue of the gift and hence, prayed for dismissal of the suit.
11. Before the trial Court, the following issues were settled:
(1) Whether the plaintiffs are entitled for declaration that they are the only legal heirs to succeed to the estate of late Dr. Tajammul Hussain as per Shia Law of Inheritance as prayed for?
(2) Whether the plaintiffs are entitled for vacant possession of the portion of the property in the possession of Defendant Nos. l and 2 as prayed for?
(3) Whether the plaintiffs are entitled for direction to Defendant Nos. 1 and 2 to pay Rs. 600/- p.m., from 16-5-1987 towards damages?
(4) Whether the suit for partition is not maintainable on the ground that the owner of the property has already gifted a portion to the plaintiffs and defendants in his lifetime?
(5) To what relief?
12. The plaintiffs examined themselves as PW1 and PW2 and Exs.A1 to A25 were marked and Defendant No. 2 examined himself as DW1 and Ex.B1 was marked.
13. As already referred to supra, the relationship between the parties is not in serious controversy. It appears from record that one Dawood Bhai died leaving behind two daughters and two sons. Late Dr. Tajammul Hussain, Hyderali, first defendant and Abida Begum, all those are no more and the first defendant also died during the pendency of the litigation. The first plaintiff is the wife and the second plaintiff is the daughter of late Dr. Tajammul Hussain. The second defendant is the son of late Abida Begum. The said Dr. Tajammul Hussain was working in the Medical Department in the Government of Andhra Pradesh and retired in the month of June 1978 and subsequent thereto he was running a dental clinic, till the date of his demise on 1-2-1984. There is no serious controversy relating to the fact that this property was purchased by late Dr. Tajammul Hussain on 15-6-1980 and hence, the same is his self-acquired property. It is also not in controversy that in a portion of the total property, which is specified in the plaint schedule, the second defendant has been residing and prior thereto, the first defendant also was residing, who died during the pendency of the suit. The defence is one of oral gift said to have been made by late Dr. Tajammul Hussain in favour of his sister-first defendant who is no more. The evidence of PW1 and PW2 is clear and categorical, who had narrated all the details relating to the facts averred in the plaint. Ex.A1 is the office copy of notice, Ex.A2 and Ex. A3 are the acknowledgments, Ex.A4 is the Encumbrance Certificate, Ex.A5 and Ex.A6 are the tax receipts. Exs.A7 to A9 are the electricity bill cards. Exs.A10 to A17 are the water bills. Exs.A18 and A19 relate to the dispute for obtaining Succession Certificate in O.P. 15 of 1985. Ex.A18 is the certified copy of the judgment and Ex.A19 is the certified copy of the decree. Ex.A20 to Ex.A23 are the income tax assessment orders for the years commencing from 1979 to 1982. Ex.A24 is the estate duty tax certificate. Ex.A25 is the legal heir certificate.
14. As against this oral and documentary evidence of PW1, PW2 and Exs. A1 to A25, there is the evidence of DW1 and Ex.B-1 plan of the suit house, dated 22-1-1982 in relation to Ex.Al8 and Ex.Al9 and the findings which had been recorded in the said proceedings by the learned Judge. It is not in serious dispute that these parties are parties in O.P. No. 15 of 1985 and the order made in O.P. No. 15 of 1985 became final as far as those findings are concerned. But, however, it is brought to the notice of this Court that the plaintiffs filed yet another suit O.S. No. 1195 of 1989 on the file of the IV Assistant Judge, City Civil Court, Hyderabad, claiming the amounts in relation to the joint amount and the said suit was also decreed and as against the said judgment and decree, CCCA No. 76 of 1996 was preferred to this Court. The stand taken by the plaintiffs as can be seen from the evidence of PW1 and PW2 is that in view of the relationship between the parties, on humanitarian grounds, they were permitted to reside in a portion of the house of the plaint schedule property and this witness also deposed about the quantum of mesne profits at the rate of Rs. 600/-. It is no doubt true that at some point of time, though the signature of Dr. Tajmmul Hussain on Ex.B1 was disputed by PW1, subsequent thereto, the said question was not seriously urged taking the same to its logical end. This is the main submission made by the learned Counsel representing the appellant to the effect that the conduct of the parties if taken into consideration coupled with the evidence of DW1 and the signature in Ex.B1, these aspects would probablize the fact that this portion of the plaint schedule property had been orally gifted by the deceased brother of the first defendant in favour of the first defendant.
Point No. 4:
15. The ingredients, which are to be satisfied in relation to the defence of oral gift or the offer by the donor, the acceptance by the donee and actual delivery of possession of the property, are not satisfied. It is needless to say that the burden is on the defendants contesting the matter on the ground that they are entitled to the plaint schedule property by virtue of the oral gift. Ex.B-1 is the sketch plan, which is said to have been prepared for registration of the alleged gift in relation to the portion of suit property. This document contains the signature of Dr. Tajatnmul Hussain. PW.l no doubt denied the said signature on Ex.B-1 in her evidence. An application I.A. No. 1516 of 1996 was moved for summoning some of the records from the Office of the Principal, Osmania Medical College, Hyderabad, where late Dr. Tajammul Hussain had served during his lifetime. The said application was closed on 22-9-1993 with an endorsement that the Counsel for the plaintiffs had no objection for marking of Ex.B-1. Strong reliance was placed on this endorsement and submissions are made at length by the Counsel representing the appellant in relation thereto. It appears that the first defendant filed O.S. No. 439 of 1985 against the wife and daughter of one late Hyder Ali, who were in occupation of the suit house and the same was decreed. It is not in serious controversy that the plaintiffs herein are not the parties to the said proceeding. The evidence of the 2nd defendant as DW.l alone is available on record. It is to be seen, by the evidence of DW.l and Ex.B-1 whether the burden cast upon the defendants to prove the defence of oral gift had been discharged or not. DW.l deposed that on the date of marriage of the second plaintiff, Dr. Tajammul Hussain informed him on telephone that he had gifted the suit property to the first defendant while he was in Beharain. It is pertinent to note that except making statement, no further details had been narrated by D.W.I. On appreciation of the evidence of PWs.l and 2 and DW.l and also Exs.A-1 to A-25 and Ex.B-1, the learned Judge recorded findings in detail and came to the conclusion that the plaintiffs being the wife and the daughter, Class-I heirs alone would be entitled to succeed to the plaint schedule property and hence they are entitled to the relief of declaration of title and recovery of possession of the plaint schedule property. Specific stand was taken that the gift was made in favour of the first defendant, but, however, it was made clear that not only the second defendant-DW.l, certain other heirs would also be entitled to the property in question, if ultimately the appellant-2nd defendant is successful in the suit on the strength of the defence of oral gift said to have been made by Dr. Tajammul Hussain in favour of the first defendant. However, it was also pointed out that the declaratory relief prayed for is not for declaration of title, as such, but for a declaration that the plaintiffs are the only legal heirs to succeed to the estate of Dr. Tajammul Hussain as per Shia Law of Inheritance. At this juncture, it was pointed out that in the light of the fact that the daughter is entitled to a specified share only in the absence of a son. As far as other property, excluding that falls to the share of daughter and the share of the wife to the rest of the property, the other sharers would be entitled to. This aspect was argued in elaboration by the Counsel on record in both the appeals C.C.C.A. Nos. 74 and 76 of 1996. Here is a case where Shia Mohammedan died leaving the wife and daughter as legal representatives. The contesting party, the appellant in this appeal, is the sister’s son. Apart from this aspect of the matter, certain other heirs representing the sisters and brothers are contesting the matter in relation to certain deposits, which is a subject-matter of CCCA No. 76 of 1996.
16. In Mulla’s Principles of Mohammedan Law 19th Edition Chapter 8 deals with Shia Law of Inheritance. Section 87 deals with the division of heirs specified. The Shias divide heirs into two groups, namely, (1) heirs by consanguinity, that is, blood relations and (2) heirs by marriage, that is, husband and wife.
17. Section 88 deals with three classes of heirs by consanguinity, reads as hereunder:
Three classes of heirs by consanguinity:- (1) Heirs by consanguinity are divided into three classes, and each class is sub-divided into two sections. These classes are respectively composed as follows:
I. (i) Parents;
(ii) children and other lineal descendants h.i.s.
II. (i) Grandparents h.h.s. (true a well as false);
(ii) brothers and sister and their decendant h.l.s.
III. (i) Paternal, and (ii) maternal, uncles and aunts, of the deceased, and of hi parents and grandparents h.h.s., and their descendants h.l.s.
(2) Of these three classes of heir, the first exclude the second from inheritance; and the second excludes the third. But the heir of the two sections of each class succeed together, the nearer degree in each section excluding the more remote in that section.
18. Section 89 deals with the husband and wife and the same reads as hereunder:
Husband and wife:-The husband or wife is never excluded from succession, but inherits together with the nearest heirs by consanguinity, the husband taking 1/4 or 1/2, and the wife taking 1/8 or 1/4 under the conditions mentioned in the Table of Sharers on Page 84.
19. Section 90 deals with the Table of Shares and the same reads as hereunder:
Table of Sharers- Shia Law:-(1) For the purpose of determining the shares of heirs, the Shias divide heirs into two classes, namely, Sharers and Residuaries. There is no separate class of heirs corresponding to the “Distant Kindred” of Sunni Law.
(2) The sharers are nine in number. The Table on Page 84 gives a list of Sharers together with the shares assigned to them in Shia Law.
(3) The descendants h.l.s. of Sharers are also Sharers.
20. Section 91 deals with the Residuaries. In the Table of Sharers – Shia Law under Section 90, Column No. 5 was specifically pointed out, which reads as under:
Residuaries:-(1) All heirs other than Sharers are Residuaries.
(2) The descendants h.l.s. of Residuaries are also Residuaries.
Table of Shrers-Shia Law (Section 90)
(Baillie, II, 27-.276,381.)
—————————————————————-
Shares Normal Share Conditions Share as
of of two or under which varied by
One more the share is special
collectively inherited circumstances
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5. Daughter 1/2 2/3 When no son (With the son she
takes as a residuary)
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21. Section 110 dealing with the Doctrine of "increase", specially says the Sunni Doctrine of Increase is not recognized in the Shia Law. According to the Shia Law, if the sum total of the shares exceeds unity, the fraction in excess of the unity is deducted invariably from the share of-
(a) the daughter or daughters; or
(b) full or consanguine sister or sisters.
22. At the outset, it may be stated that there is no controversy between the parties that the parties to the litigation are governed by Shia Law of Inheritance. Submissions were made at length that inasmuch as Section 89 specifies that wife to take only 1/8th share or 1/4th share under the conditions mentioned in the Table of Sharers at Page 84 and in the light of Column No. 5 under Section 90 referred to supra, the rest would fall to the share of these contesting parties. On a careful reading of the different aspects relating to the Shia Law of Inheritance, the same general principles of exclusion of Class II heirs in the presence of Class I heirs are to be followed. The working out of the shares specified in the Table of Sharers showing the share of the daughter in the absence of the son may have to be read along with the other general principles governing Shia Law of Inheritance. It is not in serious controversy that there is only one daughter left by Dr. Tajammul Hussain falling under Class I i.e., Section 88(11), referring to children and other lineal descendants. Sub-section (2) of Section 88 specifics that all the three classes of heirs, the first excludes the second from inheritance, and the second excludes the third. But the heir of the two sections of each class succeed together, the nearer degree in each section excluding the more remote in that section. Section 89 makes it clear that under no circumstances wife would be excluded and the share of 1/8th or 1/4th depending upon the conditions had been specified. In the light of Section 88(1) deal with Class-I heirs read with Sub-section (2) by virtue of Class-5 of Table of Sharers under Section 90, it cannot be said that inasmuch as there is no son, the rest of the shares excluding the share to which the wife would be entitled to, would go to either Class-II or Class-Ill of Section 88 in the light of the rules specified in Sub-section (2) of Section 88. This interpretation given by the learned Counsel representing the appellant cannot be accepted since such interpretation would be against to the ordinary interpretation to be given in relation to the inheritance in the context of class of heirs inheriting the properties. Hence, this Court is of the considered opinion that in the light of Section 89 specifying the share of the wife and also in the light of Section 88(1) read with along with Sub-section (2) of Section 88, this Court is of the considered opinion that the learned Judge arrived at the correct conclusion though all the details relating to inheritance in detail had not been discussed and hence the said findings need no disturbance for the reasons specified supra. It is needless to say that the appeal is bound to fail. However, it is brought to the notice of this Court that the mesne profits had been granted @ Rs. 600/- per month and by virtue of an interim order, the appellant has been depositing the amount of Rs. 300/-per month. As can be seen from the evidence available on record, no serious efforts had been made by either of the parties to let in sufficient acceptable evidence to arrive at the correct conclusion relating to the quantum of mesne profits to be decided. However, it is brought to the notice of this Court in pursuance of an interim order, the appellant has been depositing an amount of Rs. 300/- per month. In the peculiar facts and circumstances of the case, instead of giving liberty to the parties to move appropriate application, claiming this relief, it would be just and proper especially taking into consideration the close relationship between the parties, the quantum of mesne profits to be fixed at Rs. 300/-. Except this modification of Rs. 600/- per month granted by the learned Judge to Rs. 300/- per month, as referred to supra, in all other particulars, the findings are hereby confirmed.
Point No. 5:
23. The appeal is devoid of merit and accordingly the same shall stand dismissed subject to modification of quantum of mesne profits of Rs. 600/- to Rs. 300/- per month. No order as to costs.
It is needless to say that the respondents-plaintiffs are at liberty to withdraw the amounts said to be lying in deposit. However, the appellant is granted three months time to vacate the premises, failing which, the respondents are at liberty to put the decree into execution.