Smt. Ajambi (Dead) by
Lr. Vs. Roshanbi and Others  INSC 687 (30 August 2010)
Judgement IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7237 OF 2010 [Arising
out of SLP(C) Nos. 5344 of 2006] Smt. Ajambi (Dead) By Lrs. .. Appellant Versus
Roshanbi and Ors.
Special Leave Petition is directed against the judgment and order dated
16.11.2005 passed by the High Court of Karnataka allowing the appeal filed by
the respondents herein whereby the High Court has restored the judgment and
decree of the trial court. The respondents Nos. 1 to 8 were the plaintiffs
before the trial Court and Usmansab Shaikaji Attar was the original defendant
in the suit which was filed seeking a decree for partition and separate
possession of alleged 7/8 th share in the suit property bearing CTS No. 883/A
and 883/B, situated at Aralikatti Deshpande Galli, Belgaum. It was stated in
the plaint that Shaikaji Attar, the father of the respondents and the original
defendant had two wives, namely Halimabi and Roshanbi who was the plaintiff No.
was submitted in the plaint that Shaikaji Attar died in or around 1969 leaving
behind his second wife Roshanbi, i.e. plaintiff No. 1, six sons i.e. plaintiff
Nos. 2 to 6. and defendant No. 1 and two daughters i.e. plaintiff Nos. 7 and 8
and heir of pre-deceased son Umarsab.
the said suit, the parties led evidence.
The plaintiff No. 2
was examined as PW-1 and the original defendant was examined as DW-1. Both the
plaintiffs-respondents and the original defendant also produced certain
documents which were exhibited in the suit. The trial Court by its judgment and
decree dated 27.7.1988 decreed the suit of the plaintiff by awarding 1/8 th
share to the plaintiffs 1 to 6 and 1/16th share to plaintiffs 7 and 8 in the
suit property and also 1/8th share in favour of the defendant.
aggrieved by the aforesaid judgment and decree of the trial Court, the original
defendant Usmansab Shaikaji Attar filed a regular appeal before the Court of
Civil Judge, Belgaum, Karnataka. During the pendency of the aforesaid appeal,
the original defendant produced some additional documents, namely the alleged
memorandum of partition by way of additional evidence.
First Appellate Court by its judgment and decree dated 13.11.1995, dismissed
the appeal filed by the original defendant.
aggrieved, the original defendant filed a second appeal before the High Court
of Karnataka which was registered as RSA No. 299 of 1996. The High Court by its
judgment and decree dated 17.9.1998 allowed the appeal and remanded the matter
to the first Appellate Court for fresh disposal with a direction to receive
documentary evidence produced before it by the defendant by way of additional
the pendency of the aforesaid second appeal before the High Court after remand,
the original defendant Usmansab died on 7.4.1996. The said defendant left
behind his wife Ajambi and she was brought on record as the legal heir of the
original defendant. The First Appellate Court thereafter examined Ajambi as
AW-1 who was allowed to lead additional evidence and she got the documents
exhibited as exhibit (Ex.) D-7 and D-10, which were received as additional
documents. The plaintiff No. 2 was examined as RW-1.
the Additional Civil Judge (Senior Division) Belgaum by a judgment and decree
dated 1.4.2000 allowed the appeal filed by the original defendant, set aside
the judgment and decree of the trial court, and consequently dismissed the suit
filed by the plaintiffs holding that the additional documents which are
produced and exhibited as Ex. D- 7 were executed by the
predecessor-in-interest, namely Shri Shaikaji during his lifetime and he
disposed of the property as per his Will by dividing the property into two
parts as claimed by the defendant.
first Appellate Court also held that in view of the pleadings, the documents
exhibited as Ex. D-7 is proved, and it is established in terms thereof that
there were two divisions effected to the suit property. In arriving at this
conclusion, the first Appellate Court also took note of the fact that the names
of the persons who were enjoying the aforesaid two divisions had been entered
into relevant records concerning the property and the said entries had not been
challenged by the plaintiff. In conjunction with the aforementioned facts,
since the parties were paying tax to the extent of their property only, it was
held that there was a prior partition between the parties and therefore the claim
of the plaintiffs was not tenable. Consequently, the appeal was allowed and the
suit was dismissed.
aggrieved by the said judgment and decree, an appeal was filed by the
respondents herein and the plaintiffs in the original suit before the High
Court of Karnataka which was registered as RSA No. 578 of 2000.
High Court by its impugned judgment and decree dated 16.11.2005 allowed the
appeal and set aside the judgment and decree of the first appellate court. In
the aforesaid judgment and decree, the High Court held that although the
document Ex. D-7, which was executed in 1958, indicates that some of the
properties have been shown to have been earmarked and assigned to the
plaintiffs and the defendants, the same cannot be treated as a partition deed
since it is not registered. It was held that a partition deed is to be
compulsorily registered and since Ex. D-7 is not a registered document, it
could not be relied upon.
Furthermore, the High
Court took note of the fact that while the suit was filed in the year 1985, the
aforesaid documents came to be produced in the year 1994 at the appellate stage
after suffering a decree before the trial Court and the same came to be
produced nearly after eleven years.
was also noted that Shaikaji, predecessor-in-interest, had allegedly created
the document exhibited as Ex. D-7 died in the year 1969, while the entries in
the CTS register came to be made only in the year 1979. The High Court observed
that if the 1958 partition had really been acted upon as per Ex. D-7
immediately after the death of Shaikaji, the said entries would have been made
within a reasonable time and they would not have waited upto the year 1979,
when such entries came to be made.
High Court, therefore, held that Ext. D-7 cannot be acted and relied upon for
the purpose of establishing a prior partition of the suit property.
Consequently, the appeal was allowed and the judgment and decree of the first
appellate court was set aside.
aggrieved by the judgment and decree, the present appeal was filed in this
Court by Smt. Munira, alleged to be the wife of Kesarkhan Pathan, claiming
herself to be the beneficiary under the Will executed by Ajambi during her
Smt. Munira claims
that Ajambi had bequeathed the property under the Will in favour of Smt. Munira
who is allegedly Ajambi's brother-in- law's daughter.
said Will was purportedly executed on 20.8.2001 and the came to be registered
in the office of the Sub-Registrar Belgaum on 29.8.2001. Through the aforesaid
Will, Ajambi allegedly bequeathed her property CTS No. 883/A measuring 66.61
sq. meters to the legatee Smt. Munira, wife of Kesarkhan Pathan claiming under
title to the aforesaid portion of the property. Smt. Munira filed the aforesaid
appeal before this Court alongwith an application praying for bringing on
record Munira as the legal representative of the deceased Smt. Ajambi.
presentation of the appeal by her, the same was registered and the application
was registered as interlocutory application which came up for consideration
before this Court. An order was passed on 3.4.2006 whereby the interlocutory
application was allowed and notice was directed to be issued on the special
leave petition and also on the prayer for interim relief.
interlocutory application filed by the appellant was allowed by this Court but
on perusal of the record, we find that the said order was passed ex-parte and
before issuance of notice to the respondent. The right to be impleaded as a
party in an appeal could be questioned and challenged and such right to
challenge the locus cannot be taken away from the respondents herein without
giving them an opportunity of hearing. Therefore, although the aforesaid
application was allowed, the same was always subject to any objection that is
raised by the respondents herein. In fact, the respondents had raised such an
issue immediately upon appearance. Therefore, the aforesaid issue is required
to be decided as the same is a disputed question of fact.
respondents having been served in the said appeal, they entered appearance and
filed a counter affidavit which is sworn by Smt. Roshanbi who was the second
wife of late Shaikaji Attar. In the said counter affidavit, she has stated that
in the special leave petition, there is a mention of the purported Will
allegedly executed during the pendency of the second appeal and that she
challenges the validity and legality of the aforesaid Will. She has also
contended that the said purported Will has not been probated. She has also
stated in the said counter affidavit that the purported executant has no
absolute right to execute the aforesaid Will pending litigation. It has been
contended that Smt. Munira cannot claim the property through the purported Will
of the first wife, allegedly dated 20.8.2001, claiming herself to be brother in
law's daughter and that she has no legal right to the property nor any right to
file the appeal before the High Court.
the suit was taken up for hearing, the counsel for the respondent took up the
plea that the aforesaid Will propounded by Smt. Munira has not been probated
and that the said Will is neither genuine nor valid. It is also alleged that
under the Mahomedan Law, no claim for inheritance of the property of a deceased
widow could be claimed through an alleged Will which is not proved and even if
such Will is found to be legal and valid, such person would be entitled to only
1/3rd of the property and the remaining 2/3rd to be given to the actual heirs
of the family.
was also made to Mulla, an authority on Mahomedan law, in Chapter IX -
"Wills", at paragraphs 118 and 131 of the said treatise, wherein it
is laid down that under a will only 1/3rd of the net estate could be bequeathed
and that the remaining part of the net estate would be inherited by the legal
heirs and legal representatives. Zabar & Ors. reported in (2009) 6 SCC 160
held thus: - "15. We may notice the definition of gift as contained in
various textbooks. In Mulla's Principles of Mohammadan Law the "hiba"
is defined as a transfer of property made immediately without any exchange by
one person to another and accepted by or on behalf of later (sic latter).
A.A.A. Fyzee in his Outlines of Muhammadan Law defined "gift" in the
"A MAN may
lawfully make a gift of his property to another during his lifetime; or he may
give it away to someone after his death by will. The first is called a
disposition inter vivos; the second, a testamentary disposition. Muhammadan law
permits both kinds of transfers; but while a disposition inter vivos is
unfettered as to quantum, a testamentary disposition is limited to one-third of
the net estate. Muhammadan law allows a man to give away the whole of his
property during his lifetime, but only one-third of it can be bequeathed by
learned Counsel appearing for the parties made their arguments on the merit of
their claims of the respective parties, but we are of the considered opinion
that before we can address ourselves on the merit of the claims of the parties
and determine the respective shares, it would be necessary to determine as to
whether or not the aforesaid purported Will propounded by the present appellant
herein is a legal and valid document in the eyes of law and if so, to what
right, if any, the appellant is entitled to in the said property.
the interlocutory application, the present appellant had stated that she would
be entitled to claim on the basis of the Will, the property being CTS No.
883/A measuring 66.61 sq. meters. The following sentence of the application
being relevant is extracted below:- 24 "4. It is submitted that Ajambi
during her life time executed a `Will' in favour of her brother-in-law's
daughter namely, Smt. Munira Wife of Kesarkhan Pathan on 20.8.2001 and it came
to be duly registered in the office of the Sub-Registrar, Belgaum on 29.8.2001.
By the said Will, Ajambi bequeathed her property C.T.S. No. 883/A measuring
66.61 sq. meters to the legatee Smt. Munira W/o Kesarkhan Pathan. Thus Smt.
Munira became the absolute owner of property C.T.S. No. 883/A of Aralikatti
Deshoande Galli, Belgaum."
it is established from the record that her claim is restricted on the basis of
the purported Will to the property No. C.T.S. 883/A measuring 66.61 sq. meters
only wherein she claimed to be the absolute owner. In case the Will propounded
by her is found to be not genuine and valid, in that case her entire claim will
have to be rejected and the aforesaid property i.e. C.T.S. No. 883/A would
revert back to the actual owners namely the present respondents. If, however,
the aforesaid Will is found to be legal and valid, even in that event and as
per the pleadings and the contentions of the respondents, she may not be
entitled to more than 1/3rd of the said property namely C.T.S. No. 883/A.
are the events which have arisen after delivery of the judgment by the High
Court. Therefore, two issues arise for consideration at this stage, which are
required to be determined and decided prior to entering into the respective
claims of the parties.
first issue is as to whether the Will propounded by the appellant herein namely
Smt. Munira, wife of Kesarkhan Pathan allegedly executed on 20.8.2001 and
registered in the Office of the sub-Registrar on 29.8.2001, is a legal and
valid document in the eyes of law.
the aforesaid issue is answered in favour of the appellant Smt. Munira, the
further question that is to be determined is as to whether the appellant herein
on the basis of the aforesaid Will is entitled only to 1/3rd of the said area
in terms of the Rules and Principles of Mahomedan Law.
with the said issues which need to be determined and answered, in our
estimation, there is another issue which arises for consideration, which is as
to whether the appellant could claim to be a legal representative. Out of the
said three issues raised herein, in so far as the question of entitlement of
the appellant's share is concerned, the same appears to be a question of law as
it forms a part of the principles of Mahomedan Law. There are also some
decisions of the Supreme Court touching upon the said issue.
But the other two
issues, namely, the status of the appellant and whether she would claim to be a
legal representative along with the question as to whether the will propounded
by the appellant is legal and valid and how far the same could be relied upon,
are disputed questions of fact which are required to be determined by the court
more appropriately by resorting to the provisions of Order XXII Rule 5 of the
Code of Civil Procedure, 1908 [for short "CPC"]. The said two issues
being questions of fact, the parties must be allowed to lay their evidence in
support of their respective cases. In that view of the matter we consider it
necessary to issue a direction in the present case to the aforesaid extent in terms
of the provisions of Order XXII Rule 5 CPC.
decision to act on the basis of Order XXII Rule 5 has been taken in
consideration of the proposition laid down by this Court in Singh reported in
(2009) 5 SCC 155, in which the Supreme Court has held thus:
High Court had overlooked this disputed question of fact and held that the
three sons had separate business for which they could not fall under the
category of "tenant" under the provisions of the Act. Furthermore,
this question of fact cannot be decided without permitting the parties to lead
evidence in respect of their respective cases and without coming to a finding
on such question of fact by the court."
In paragraph 19, this
Court held thus:
considering the ambiguous position regarding the status of the appellants
relating to their status as tenants, it was necessary for the High Court to
remit the matter to the trial court for a proper determination of the factual
aspects whether the appellants were in fact carrying on business with late
Santok Singh at the time of his death by taking evidence and thereafter, come
to a finding whether the appellants shall be brought on record in the second
appeal as the legal representatives of late Santok Singh."
accordingly direct the trial court to take evidence in the manner indicated
above on the two issues, namely: - (1) Whether the appellant could claim to be
a legal representative? And (2) Whether or not the will propounded by the
appellant herein, namely, Smt. Munira, wife of Kesarkhan Pathan, allegedly
executed on 20.8.2001 and registered in the Office of the sub- Registrar on
29.8.2001 is a legal and valid document in the eyes of law?
completion of the recording of the said evidence, both documentary and oral,
brought on record by the parties, the trial court shall record the finding on
the status of the appellant and as to whether the Will propounded is legal and
valid and how far the same could be relied upon. The trial court shall
thereafter send back to this Court the records with findings and evidence that
might be adduced and already on record. The aforesaid process shall be
completed within a period of four months from the date of receipt of the record
from this Court and on completion thereof, the trial court shall transmit the
entire records with the findings in terms of this order to this Court, upon
which, the appeal shall again be listed for hearing for further determination
and orders. Let the original records be sent back to the trial court
..................................J. (Dr. Mukundakam Sharma)
(Anil R. Dave)