IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) PRINCIPAL SEAT

Transcription

1 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) PRINCIPAL SEAT RSA No. 94/ Musssamat Amirun Nessa, Wife of Late Safiquir Rahman 2. Hilal Uddin, Son of late Mosadar Ali, Both are residents of Village & Pargana- Laxmirbond Part-I, P.S. and District- Hailakandi, Assam. -Versus-. Appellants/ Defendants. Md. Habib Ali, Son of late Arab Ali Laskar, Resident of Village & Pargana- Borjurai, P.S. and District- Hailakandi, Assam.. Respondent/ Plaintiff. Advocate for the appellants: Mr. S.C. Keyal, Mr. SK Ghosh, Mr. S.P. Choudhury, Advocates. Advocate for the respondent: None appears

2 2 - B E F O R E HON BLE MR. JUSTICE PRASANTA KUMAR DEKA Date of hearing : Date of judgment & order : JUDGMENT & ORDER (ORAL) Heard Mr. S.K. Ghosh, learned counsel appearing on behalf of the appellants. So far the respondent is concerned, vide order dated , this court held that notice served on the respondent is deemed to have been properly done. Accordingly, the matter is taken up for hearing. 2] The present appellants are the defendants in T.S. No. 31/ 2004 in the court of the learned Civil Judge, (Senior Division), Hailakandi which was preferred by the respondent/ plaintiff claiming his right, title and interest by way of inheritance over the suit property left behind by his brother i.e. husband of the present appellant No. 1. The plaintiff/ respondent and the

3 3 husband of the defendant/ appellant No. 1 were the owners of the land measuring 35 Bighas, 12 Khatas 1 Chatak under different dag and patta numbers described in schedule 1 of the plaint. By way of a registered partition deed dated , both the said brothers partitioned the said properties. By way of the said partition, three kedars of land was given to the plaintiff/ respondent and remaining land thereof was divided into two equal shares between both the brothers. The plaintiff/ respondent got his share of the land described in schedules 2 and 4 of the suit land and the deceased brother Safiqur Rahman got his share described in schedules 3 and 5 of the plaint. 3] During the life time of the said Safiqur Rahman, he transferred land by way of gift deed and sold the same to the present appellant No. 1 and his foster son, the present appellant No. 2. During his life time, the said brother Safiqur Rahman also purchased some land and finally his share stood at 10 Bighas 9 Khatas 7 Chataks 10 Gandas. The said Safiqur Rahman died on

4 leaving behind his wife, the present appellant No. 1 as the sole heir for the purpose of inheritance of the property left behind by said Safiqur Rahman under Mohammedan Law. The plaintiff respondent is entitled to 3/4 th share out of the total land left behind by Safiqur Rahman which comes to 7 Bighas 17 kathas 12 chataks 10 gandas of land and also the appellant No. 1 is entitled to inherited 1/4 th share which comes to 2 Bighas 12 Khatas 5 chataks 10 gandas of land. The inherited portion of the land by the plaintiff/ respondent has been shown in schedule 6 of the plaint and the share of the plaintiff/ respondent in the suit patta by the right of purchase and inheritance is shown in schedule 7 of the plaint. The plaintiff/ respondent filed the suit seeking declaration of right, title and interest and confirmation of possession of schedules 2, 4 and 6 lands which he got as his share by virtue of registered partition deed as well as by way of inheritance on the death of Safiquir Rahman and also prayed for temporary injunction.

5 5 4] The appellants/ defendants by filing their written statement contested the claim of the plaintiff/ respondent taking the plea that the plaintiff/ respondent had no land as described in schedules 2, 4 and 6 as per registered partition deed, that he has no possession over the schedule 6 land as the share of the plaintiff/ respondent falls in different dags and pattas and not within the common boundaries. However, it is admitted that the plaintiff/ respondent has got his share by virtue of registered deed of partition and also inherited the same from said Safiqur Rahman. However, the same is not described in the schedule of the plaint properly. It is also pleaded in the written statement that late Safiqur Rahman at the time of his death was indebted to the tune of Rs. 75, for his treatment and the plaintiff/ respondent is bound to pay 3/4 th share of the said indebted amount while inheriting 3/4 th share of the land of said Safiqur Rahman. That apart, late Safiqur Rahman had not paid the dower amount of Rs. 18, which was fixed at the time of solemnization of the marriage of the answering appellant/

6 6 defendant No. 1. The appellant /defendant No. 1 is entitled to get the share and the plaintiff/ respondent is bound to pay 3/4 th share of the said amount and the plaintiff/ respondent is entitled to get the 3/4 th share only after discharging the aforesaid liabilities. 5] Upon the above pleadings, the learned trial court framed the following issues: 1. Is there any cause of action for the suit? 2. Whether the plaintiff has right, title and possession over the schedule 2, 4 and 6? 3. To what relief or reliefs plaintiff is entitled to? 6] Both the parties led their evidence. The learned trial court after hearing the parties while deciding the Issue No. 2 came to the conclusion that the plaintiff/ respondent is entitled to get 3/4 th share of the estate after discharging 3/4 th share of the liability amounting to Rs. 21, The learned trial court while assessing the liability took into consideration Rs. 18, against the dower money remaining unpaid to the appellant

7 7 defendant No. 1 and Rs. 10,000 against the expenditure for funeral expenses thereby assessing the total liability at Rs. 28, The said liability of Rs. 28, was calculated to Rs. 21, being the 3/4 th share of the plaintiff/ respondent. Accordingly the learned trial court passed a preliminary decree declaring the plaintiff/ respondent s right, title and interest over 6 Bighas 15 Kathas 10 Chatak 2 gandas and 2 koras of land being 3/4 th share of the property left by the deceased subject to discharge of the liability to an extent of Rs. 21, preferably within 6 th schedule land of the plaint. It was also held that the plaintiff /respondent is supposed to be a share of ejmali possession with the answering defendants/ appellants over the said property until the same is properly partitioned by the Collector. 7]] The plaintiff/ respondent being aggrieved by the judgment and decree dated passed by the learned Civil Judge (Senior Division), Hailakandi in Title Suit No. 31/2004, preferred Title Appeal No 45/2006 in the court of the

8 8 learned District Judge, Hailakandi. The plaintiff/ respondent preferred the said appeal on the ground that the said decree passed by the trial court was made conditional so far payment of Rs. 21, is concerned. Otherwise the plaintiff/ respondent had no grievances against the judgment and decree passed by the learned trial court. The learned first appellate court vide judgment and decree dated allowed the appeal by holding that the appeal is allowed and the said sentence written in last part of the decision in Issue No. 3 is deleted and after deletion of the said sentence, the decree passed in the title suit shall remain. Accordingly the appeal was allowed on contest. The deleted portion is reproduced which is as follows: Subject to discharge of the liability to an extent of Rs. 21, ] Being aggrieved and dissatisfied with the judgment and decree dated passed by the learned District Judge, Hailakandi in T.A. No. 45/2006, the appellant preferred

9 9 this second appeal which was admitted on on the following substantial questions of law: 1. Whether in view of prevailing customs a foster son is entitled to inherit property of foster father as per Mohammadan law of succession? 2. Whether plaintiff as brother of late Safiqur Rahman inherit ¾th share of the property left by Safiqur Rahman and, that too, without sharing proportionate share of his debt, his medical and funeral expenses? 3. Whether the learned courts below erred in law in declaring the right, title and interest of plaintiff to the extent of ¾th share although no documentary evidence as to property of the deceased has been adduced? 4. Whether in the absence of any finding as to the Swaranlipi vis-à-vis the averments made in plaint, the learned courts could have come to pass a preliminary decree for partition? 9] Mr. Ghosh, learned counsel appearing on behalf of the appellant submits that he would confine his argument with respect to the substantial question of law Nos. 2 and 3 inasmuch as the other substantial questions of law as per his submission has no relevance inasmuch as under the Mohammadan law, a foster son is not entitled to inherit the property of foster father.

10 10 10] With regard to the substantial question of law No. 4, Mr. Ghosh submits that the cause of action for the suit of the plaintiff/ respondent itself accrued on the basis of the partition deed dated which is the swaranlipi inasmuch as the share of late Safiqur Rahman has arisen and devolved on him on the basis of the said partition deed and the plaintiff/ respondent is claiming his share on the said admitted share of the husband of the appellant/ defendant. 11] In order to substantiate the question of law Nos. 2 and 3, Mr. Ghosh submits that under Section 39 of the Mulla s Principles of Mohammadan Law, the Estate of a deceased Mohammadan is to be applied successively in payment of (i) his funeral expenses and death-bed charges; (2) expenses of obtaining probate, letters of administration or succession certificate, etc. It is also submitted by Mr. Ghosh that under Mohammadan Law, the payment of the debts of the deceased takes precedence over the legacies.

11 11 12] From Section 294 of the Mulla s Principles of Mohammedan Law, it appears that the heirs of a deceased Mohammedan in the case of dower debt are liable to the extent only of a share of the debt proportional to his share of the estate. Where widow is in possession of her husband s property under a claim for her dower, other heirs of her husband are severally entitled to recover their respective shares upon payment of quota of the dower debt proportional to those shares. 13] Mr. Ghosh submits that in the written statement the appellant/ defendant No. 1 has specifically taken the stand that the dower amount of Rs. 18, was never paid to her during the life time of her husband and as such she is entitled for the said amount as per section 294 of the Mulla s Principles of Mohammedan Law. Mr. Ghosh also pointed out that Section 290 of Mulla s Principles of Mohammedan Law stipulates that the dower is of two types, (i) prompt which is payable on demand

12 12 and other one (ii) deferred i.e. on dissolution of marriage by death or divorce. 14] Mr. Ghosh submits that as from the pleading of the written statement, the said dower is covered under the definition of the deferred one as such the defendant/ appellant No. 1 is entitled for the same. It is also submitted that both the courts below correctly came to the conclusion that the plaintiff/ respondent is entitled to the extent of ¾th share over the share left behind by the husband of the appellant/ defendant No. 1. Thus, Mr. Ghosh submits that the first appellate court by modifying the findings in Issue No. 3 has interfered with the rights of the appellant/ defendant No. 1, which she is entitled to under the Principles of Mohammadan Law. So the substantial question of law Nos. 2 and 3 are to be decided in favour of the appellant/ defendants.

13 13 15] Considered the submission of the learned counsel for the appellants. The provisions of law as submitted by Mr. Ghosh covers the case of the defendants/ appellants and there is no dispute at all. The learned first appellate court while going through the findings of the trial court on Issue No. 3 did not consider the provision of law under the Principles of Mohammedan Law and as such the first appellate court considered the said condition so declared to be without any basis of law and accordingly the said finding so arrived at is against the principles of Mohammedan Law. 16] Section 39 of the Mulla s Principles of Mohammedan Law referred hereinabove specifically stipulates the manner of application of the estate of a deceased Mohammedan and the said estate is to be applied firstly on funeral expenses of the deceased and other death bed expenses. Section 294 also specifically stipulates that dower amount is to be shared by the heirs as per their shares stipulated under the law. There is no

14 14 evidence on record to the effect of the said dower amount which remained un-rebutted. The learned trial court assessed the funeral expenses in a liberal way and came to the conclusion that out of the total liability of Rs. 28,000.00, an amount of Rs. 21, is to be delivered to the appellant defendant No. 1 and the said amount of Rs. 21, is not beyond the share to which plaintiff/ respondent is entitled over the properties left behind by the deceased-husband of the defendant/ appellant No ] Finally, the substantial question of law Nos. 2 and 3 are decided in favour of the present appellant and as a result, this second appeal succeeds. The judgment and order passed by the first appellate court in Title Appeal No. 45/2006 is hereby set aside upholding the judgment and decree passed in T.S. No. 31/2004 by the learned Civil Judge, Hailakandi. 18] Send back the LCR.

15 15 19] This second appeal is accordingly disposed of. Eam JUDGE