Abubakar
Abdul Inamdar (Dead) by Lrs. & Ors Vs. Harun Abdul Inamdar & Ors [1995]
INSC 444 (30 August
1995)
Punchhi,
M.M. Punchhi, M.M. Faizan Uddin (J)
CITATION:
1996 AIR 112 1995 SCC (5) 612 JT 1995 (7) 179 1995 SCALE (5)87
ACT:
HEAD NOTE:
O R D
E R
This
appeal having arisen from the Judgment and order of the Bombay High Court
relates to two properties which belonged to one Syed Abdulla Inamdar. On his
death, he was succeeded by six children; four of whom are sons and two
daughters. The eldest son is Abubakar.
On the
death of Syed Abdulla, agricultural lands which were Inams in his hands, were
assigned to Abubakar, the eldest son, by certain orders passed by the Ruler of Kolhapur
as Inams of two kinds. It is the admitted case of the parties that these Inams
were impartible and had to devolve upon the eldest son by the rule of
primogeniture.
The
other property was a dwelling unit which was owned by Sayed Abdulla and
remained in possession of abubakar.
On the
abolition of the `Inams' under the provisions of the Bombay Merged Territories
Miscellaneous Alienations Abolition Act, 1955, Abubakar was regarded as a Watandar
on re-grant of the properties. His brothers and sisters, on the one side ,laid
claims to those lands as co-heirs of Abubakar, taking the plea that by virtue
of inheritance, they had a share in that property; the bar of impartiability
and the rule of primogeniture having gone. Regarding the house property,they
laid claims to partition it as heirs.
Abubakar
resisted the suit by laying claim that the landed properties which were
erstwhile `Inams' became on re-grant `personal'in his hands and therefore the
other heirs of Syed Abdulla had no share in those. Regarding the house he put
up the plea of adverse possession, even though, avowedly, he had a will in his favour
from his father. The trial court partly decreed the suit against him insofar as
the Inam lands were concerned but dismissed the suit insofar as the house was
concerned; and the lower appellate court affirmed that decision. Before the
High court the appeal of Abubakar as also the cross-objections on the contrary
were allowed with the result that the entire suit stood decreed, rejecting the
claim of Abubakar of the Inam lands being personal to him and the house being
in his adverse possession, maturing in his ownerships.
We
have heard Mr. Ganpule, learned senior counsel for the appellant-Abubakar, at
great length and pointedly with regard to the nature of regrant after the
abolition of the Inam. It stands conceded by him that the terms of the grant
are not in any manner peculiar to the facts emerging in this case but rather
are the usual ones which find mention in such grants. He was frank enough to
concede before us that had the parties been Hindus then the two decisions of
this Court, namely, (i) Nagesh Bisto Desai etc. etc. vs. Khando Tirmal Desai
etc. [1982 (3)SCP 341]; and (ii) Annasaheb Bapusaheb Patil and others vs. Balwant
(dead) by lrs and heirs and others [1995 (2) SCC 543] would have taken over the
field to hold that the properties in the hands of the Watandar were joint
family properties and partible after the re-grant . He tried in vain to
convince us that principally it would make a difference if the parties were
Mohammedans, as presently they are. If we come to analyse the proposition
canvassed, Syed Abdulla's estate should normally have devolved upon his six
children in accordance with the shares as defined by the Shariat Law. But,
since the properties were Inams and Impartible and the services to the Ruler
due from the members of the family were expected to be taken from the eldest
son by the rule of primogeniture, then the heirs of Syed Abdulla, even though
not forming a joint Hindu family as is known to Hindu Law, would still be a
group of people, the representative of which was Abubakar in order to hold the Inam.
Once that Inam was abolished and re-grant given to Abubakar, impartibility of
the estate vanished and thus this group of people were definitely entitled to
claim their respective shares in accordance with the law of Sharfat. All the
three courts below have taken such a view and we see no impelling reason to
draw a line of distinction qua the aforesaid two cases in Nagesh Bisto Desai
and Annasaheb Bapusaheb (supra) so as to carve out an exception to the
principle for Mohammedans. The prime reason for such interpretation is that the
Ruler while drawing up the Inam initially and conferring it again on Abubakar
did not intend to create any distinction between his subjects, be it Muslims or
Hindus. Uniformity of tradition in that regard would be a good rule of reason
so as to set the matter at rest here.
With
regard to the plea of adverse possession, the appellant having been successful
in the two courts below and not in the High Court, one has to turn to the
pleadings of the appellant in his written statement. There he has pleaded a
duration of his having remained in exclusive possession of the house, but
nowhere has he pleaded a single overt act on the basis of which it could be
inferred or ascertained that from a particular point of time his possession
became hostile and notorious to the complete exclusion of other heirs, and his
being in possession openly and hostilely.It is true that some evidence,
basically of Municipal register entries, were inducted to prove the point but
no amount of proof can substitute pleadings which are the foundation of the
claim of a litigating party. The High Court caught the appellant right at that
point and drawing inference from the evidence produced on record, concluded
that correct principles relating to the plea of adverse possession were not
applied by the courts below. The finding, as it appears to us, was rightly
reversed by the High Court requiring no interference at our end.
For
the foregoing reasons, there is no merit in this appeal which is hereby
dismissed. No costs.
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