JUDGMENT B.B. Vagyani, J.
1. Heard.
2. This second appeal is directed against the judgment and decree passed by the 3rd Additional District Judge, Beed in Regular Civil Appeal No. 153 of 1991 filed by present appellants, who are original defendants Nos. 1 and 2 in Regular Civil Suit No. 287 of 1978 filed by respondents Nos. 1 to 3 (original plaintiffs).
3. The facts giving rise to this second appeal are as under :
Syed Fazal was owner of the land bearing Serial No. 48-AA of village Brahmagaon, taluka Georai, District Beed. The suit land Serial No. 48-AA admeasuring 11 acres 32 qts. Syed Fazal died about 17 years before institution of the Regular Civil Suit No. 287 of 1978 leaving behind his two widows Chandbi and Sahebbi. Original plaintiffs Nos. 1 to 3 are the daughters of Chandbi. After the death of Syed Fazal, his widows Chandbi and Sahebbi become owners of the suit land along with the plaintiffs. Chandbi and Sahebbi are no more alive. The plaintiffs claim that after the death of Chandbi and Sahebbi, they came into possession of the suit land. The appellants offered obstruction to their possession and, therefore the plaintiffs filed Regular Civil Suit No. 287/1978 in the Court of Civil Judge, Junior Division, Georai for grant of relief of perpetual injunction.
4. The appellants appeared in the said suit and resisted the suit claim on the ground that they are lawful tenants of the suit land. A specific issue was framed in this behalf by the trial Court and the same was referred to Tenancy Court for its finding. The reference was answered in the negative. The decision of the Tenancy Court was maintained upto the High Court. The tenancy plea raised by the appellants was rejected throughout.
5. The plaintiffs made a grievance during pendency of the suit that the appellants dispossessed them. Therefore, they claimed possession of the suit land by making appropriate amendment in the plaint. The appellants also amended their written statement and contended that the plaintiffs being the daughters of Syed Fazal, they are entitled to 2/3rd share in the suit land and they are entitled to get remaining 1/3rd as a residuaries. Ibrahim (appellant No. 1) is the nephew of Syed Fazal. Dilawar (appellant No. 2) is the son of Ibrahim. Having noticed the admission on the part of the appellants with regard to 2/3rd share, the plaintiffs introduced amendment in the plaint and prayed that the suit land be partitioned and separate possession of 2/3rd share be given to them.
6. The trial Court partly decreed the suit. The trial Court held that the plaintiff Nos. 1 to 3 being daughters of Syed Fazal, are entitled to get 2/3rd share in the suit land in addition to 1/8th share of Chandbi who is no more alive. The trial Court thus awarded 21/24th share to the plaintiffs and allotted remaining 3/24th share to the present appellants. While partly decreeing the suit, the learned trial Court observed that Sahebbi married second time and, therefore, she is not entitled to get any share in the suit land.
7. Feeling aggrieved by the judgments and partial decree passed by the Civil Judge, Junior Division, Georai, the original defendants filed Regular Civil Appeal No. 153 of 1991. The 3rd Additional District Judge, Beed, by his order dated 12-6-1997, dismissed the appeal filed by the original defendants. Feeling dissatisfied with the dismissal order passed by the 3rd Additional District Judge, Beed, the original defendants have filed this second appeal.
8. While admitting the second appeal, this Court formulated following substantial questions of law :
1. The most fatal mistake committed by the Court below is that the plaintiffs/respondents are daughters inter se of the deceased Syed Fazal as daughters, they are entitled to 2/3rd share as per Item No. 7 regarding daughter and the second column of table of shares (Sunni Law) as per table of shares (page 48-A annexed to section 63 of Mulla's Principles of Mohammedan Law, 18th Edition), they cannot get more than 2/3rd share as the remaining residue to the extent of 1/3rd will devolve by way of residuaries as per table of residuaries in order of succession (page 72-A annexed to section 65 of Mohammedan Law.
2. Whether two widows i.e. Chandbi and Sahebbi would together get 1/8th share?
3. Whether on account of remarriage, Sahebbi has lost her 1/16th share in the suit property?
4. Whether half share of Chandbi in 1/8th share would devolve upon the plaintiffs after death of Chandbi?
9. The learned Advocate Shri Khader submitted that the plaintiffs being daughters of Syed Fazal, they are not entitled to get more than 2/3rd share in the suit land. He further submits that in the absence of positive evidence on record with regard to second marriage of Sahebbi during the life time of Syed Fazal, it cannot be said that Sahebbi would not get any interest in the suit property. According to learned Advocate Shri Khader, on the date of death of Syed Fazal, Sahebbi had not contracted second marriage. Therefore, the subsequent remarriage of Sahebbi does not deprive her the legitimate share in the suit land. He pointed out that both the Courts below did not consider this issue properly. According to him, both the Courts proceeded with the wrong assumption that Sahebbi contracted second marriage during the life time of Syed Fazal and, therefore, the share is denied to her. He pointed out that this assumption of both the Courts below is contrary to the evidence on record and even to the pleadings of the parties. If the share of Sahebbi is carved out, the plaintiffs would not get entire 1/8th share of Chandbi. The plaintiffs would, at the most, get 2/3rd plus 1/16th and remaining 1/16th share will go to Sahebbi. The plaintiffs cannot get 1/16th share of Sahebbi, they being the step daughters of Sahebbi.
10. On the other hand, the learned Advocate Shri Darakh supported the impugned judgment and decree passed by the first Appellate Court. According to him, because of remarriage of Sahebbi, she would not get any share in the suit land. According to him, the point of time of marriage is immaterial. He submits that subsequent marriage, even after the death of Syed Fazal, would disentitle Sahebbi from inheriting any share in the suit property.
11. As per Mohammaden Law, there are three classes of heirs namely (1) Sharers (2) Residuaries and (3) Distant Kindred. The table of shares (Sunni Law) (page 48-A annexed to section 63 of Mohammedan Law, 18th Edition) would clearly point out that two wives i.e. Chandbi and Sahebbi would together get 1/8th share. As per Item No. 2 of the table of shares, sole wife would inherit 1/8th share and if there are more than two wives, they would collectively inherit 1/8th share. Therefore, Chandbi and Sahebbi would together receive 1/8th share.
12. As per the table of shares referred to above, in case of sole daughters, she will get 1/2 share and if there are two or more daughter, they will collectively get 2/3rd share when there is no male issue i.e. son. In this case, original plaintiffs Nos. 1 to 3 are daughters of Syed Fazal. Admittedly, Syed Fazal had no male issue either from Chandbi or Sahebbi. Therefore, original plaintiffs Nos. 1 to 3 being daughters of Syed Fazal, would get 2/3rd share, Chandbi, Sahebbi and three daughters are sharers.
13. Section 65 of the Mohammedan Law by Mulla (18th Edition) speaks about allotment of shares to the residuaries. After allotment of shares to the sharers if residue is left, after satisfying the claims of shares the whole inheritance or residue, as the case may be, devolves upon the residuaries in the order set forth in the table of residuaries in order of succession (page 72-A annexed to section 65 of Mulla's Mohammedan Law, 18th Edition). The appellant No. 1 Ibrahim is the son of Ashraf who was full brother of Syed Fazal. Full brother's son is a residuary as per Item No. 9 of table of residuaries (page 72-A annexed to section 65 of the Mulla's Mohammedan Law, 18th Edition). Therefore, the appellants would get whole of the residue i.e. 5/24th.
14. No doubt, as per the table of shares (page 48-A annexed to section 63 of Mulla's Mohammedan Law, 18th Edition), there being more than one daughter, plaintiffs Nos. 1 to 3 are entitled to receive 2/3rd share. However, it does not mean that they are not entitled to get property of the share of Chandbi after her death, being the daughters of Chandbi. As daughters of Syed Fazal, they would get 2/3rd share. The proposition advanced by learned Advocate Shri Khader, therefore, is half truth. The plaintiffs Nos. 1 to 3 are certainly entitled to get share of their mother Chandbi after her death in addition to their 2/3rd share.
15. After careful perusal of the judgment of both the Courts below, it is seen that both the Courts below have wrongly presumed that Sahebbi contracted second marriage during the life time of Syed Fazal. In fact, it is nobody's case that Sahebbi contracted second marriage during the life time of Syed Fazal. In the plaint itself, the plaintiffs have made it clear that after death of Syed Fazal, Chandbi and Sahebbi came into possession of the suit property and jointly cultivated the suit land. There is no whisper in the plaint that Sahebbi contracted second marriage. The appellants have admitted in their written statement that Syed Fazal died about 17 years before institution of Regular Civil Suit No. 287/1978. The appellants specifically contended in the written statement that Sahebbi contracted second marriage about 15 years before institution of Regular Civil Suit No. 287/1978. If at all for the sake of arguments it is held that Sahebbi contracted second marriage, she contracted second marriage about two years after the death of her husband Syed Fazal. There is no conclusive evidence on record to show that Sahebbi contracted second marriage. It is not disclosed by either of the parties with whom Sahebbi contracted second marriage. However, both the contesting parties and their witnesses spoke about the so called second marriage of Sahebbi. But one thing is certain and it is very much consistent with the evidence on record that the marriage of Sahebbi took place two years after the death of Syed Fazal.
16. In this behalf, I would like to refer section 41 of the Mohammedan Law. It speaks about devolution of inheritance. The theory of representation is not known to the Mohammedan Law. Under the provisions of Mohammedan Law, the estate of a deceased person devolves upon his heirs at the moment of his death. The estate vests immediately in each heir in proportion to the share ordained by Mohammedan Law. As the interest of each heir is separate and distinct, one of the number of heirs cannot be treated as representing the others. Therefore, immediately after the death of Syed Fazal, his estate devolved upon his heirs i.e. his two widows Chandbi and Sahebbi and his three daughters i.e. the plaintiffs No. 1 to 3. The two wives and all the three daughters fall in the category of sharers. The appellants are admittedly the residuaries. Admittedly, after the death of Syed Fazal, Sahebbi was very much in the family and had not contracted second marriage at that moment of time. After the death of Syed Fazal, his estate also devolved on Sahebbi along with Chandbi. Though they take 1/8th share collectively, their interest is separate and distinct. Therefore, Chandbi and Sahebbi would get 1/16th share each in the estate left by their husband Syed Fazal. The subsequent marriage does not at all abrogate the share which was already devolved on Sahebbi immediately after the death of her husband Syed Fazal.
17. It is to be noted that Sahebbi was not impleaded as defendant in Regular Civil Suit No. 287/1978. The appellants do not admit that Sahebbi is no more alive. They contend that after second marriage, Sahebbi is residing at Jalna. The plaintiff No. 3 Jaitunbi admits in her evidence that after second marriage, Sahebbi is residing at Jalna. Plaintiffs's witness Mohammed Amjad Ali has also played the same tune. There is no much controversy with regard to residence of Sahebbi. There is nothing on record to show that Sahebbi is dead.
18. The plaintiffs have claimed the share of Chandbi as well as Sahebbi. So far as share of Chandbi is concerned, she being real mother of plaintiffs, her share i.e. 1/16th will go to the plaintiffs. The learned Advocate Shri Khader very much relied upon section 84 of the Mohammedan Law and urged that the plaintiffs being step daughters of Sahebbi, they do not inherit any property left by Sahebbi, even if for the sake of argument it is held that Sahebbi is no more alive. Section 84 of the Mohammedan Law in clear terms speaks that the step children do not inherit from step-parents. The plaintiffs are step daughters and Sahebbi is their step mother. Therefore, the plaintiffs will not get share of Sahebbi. This legal position has not at all been considered by both the Courts below and they have, therefore, committed illegality in allotting the share of Sahebbi to the plaintiffs.
19. To sum up, the plaintiffs, will get 2/3rd share as daughters of Syed Fazal. They are entitled to get 1/16th share of their real mother Chandbi. Therefore, the share of plaintiffs comes to 35/48th. Sahebbi's share comes to 1/16th. Taking into consideration the shares of daughters and wives, 5/24th is the residue. The appellant No. 1 Ibrahim being son of full brother of Syed Fazal, is entitled to get whole of the residue.
20. Sahebbi is not impleaded in the suit. Admittedly she is not in possession of suit property. In the absence of Sahebbi, action of original plaintiffs for possession of the property of their share cannot be defeated because interest of Sahebbi is distinct from the interest of plaintiffs. In this behalf, I would like to refer to the case of Smt. Zabaishi Begam v. Naziruddin Khan & others . The Division Bench of Allahabad High Court has taken a view that where a Mohammedan heir who is out of possession brings a suit for possession against his co-heirs and omits to implead one of the co-heirs, there is no reason why he should not be granted a decree for so much of his share as is in possession of the heirs who are made parties to the suit, as the interests acquired by the heirs of a deceased Mohammedan in his property are always definite, distinct and ascertained and as such, the absence of one of the co-heirs from a suit brought by another co-heir for possession of his share cannot be a ground for dismissing the suit.
21. The Rajasthan High Court in the case of Mohammad Subhan v. Dr. Misbahuddin Ahmed and others A.I.R. 1971 Rajasthan 274, has taken the same view. It is observed that a suit by a Mohammedan heir for partition of share is maintainable even without impleading other heirs who are not in possession. The reason is that the shares of Mohammedan heirs are definite and specified.
22. After having considered the legal submissions and the relevant provisions of the Mohammedan Law, I answer question No. 1 in the negative, question No. 2 in the affirmative, question No. 3 in the negative and question No. 4 in the affirmative.
23. In view of my findings, I partly allow this second appeal. The order passed by the 3rd Additional District Judge, Beed is quashed and set aside. I hereby modify the decree passed by the trial Court as under:
The plaintiffs are entitled to get 35/48th share in the suit land. The appellants are entitled to get 5/24th share. Rest of the decree of the trial Court is confirmed.