Andhra Pradesh High Court - Amravati

Pathan Haleembi vs The State Of Andhra Pradesh, on 1 May, 2024

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     THE HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA


       WRIT PETITON NOs.41084 of 2022 and 11620 of 2023
 COMMON ORDER:

Since the issue involved in both the writ petitions is one and

the same, this Court is of the opinion that both the writ petitions can

be disposed of by way of a common order.

2. W.P.No.41084 of 2022 is filed under Article 226 of the

Constitution of India seeking following relief:

"to issue a Writ, order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring that the endorsement issued by the 3rd respondent vide Rc.No.664/2022 dated 01.06.2022 is arbitrary, illegal, violative of principles of natural justice and in violation of Art 300-A of Constitution of India and provisions of The Maintenance and Welfare of Parents and Senior Citizens Act and Rules and quash or set aside the same and issue a consequential direction to the 3rd respondent to conduct an enquiry on the application presented by the petitioner dated 11.04.2022 to the 3rd respondent as per procedure prescribed in The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 and Rules 2011; b) declaring the inaction of the respondents Nos.4 and 5 in taking action on the petitioner‟s representation dated 21.02.2022 as illegal, arbitrary, injustice and violative of Articles 21 and 300A of Constitution of India and consequently direct the respondent Nos.4 and 5 to consider the petitioner‟s representation dated

21.02.2022 and pass such other order or orders as this Hon‟ble Court deems fit and proper in the circumstances of the case.."

3. W.P.No.11620 of 2022 is filed under Article 226 of the

Constitution of India seeking following relief:

"..to issue an appropriate Writ, Order or Direction more particularly one in the nature of Writ of Mandamus declaring the endorsement issued by the 3rd respondent vide RC.No.664/2022 dated 24.04.2023 violation of principles of natural Justice and violation of Article 300 A of constitution of India as per Muslim law under property Rights of Women in India and Maintenance as being illegal, arbitrary and unjust and consequently to set aside the same and to grant such other relief or reliefs...."

4. W.P.No.41084 of 2022 is filed by the mother-in-law of the

petitioner in W.P.No.11620 of 2023.

5. For convenience of the Court, the facts in W.P.No.41084 of

2022 are taken into consideration, which reads as follows:

i) The brief facts of the case in W.P.No.41084 of 2022

are that Sri Pathan Pedda Jan Saheb is the husband of the

petitioner, who died twenty years ago. With their hardcore earnings,

the petitioner herein purchased a house property bearing Door

No.30-23-6-18 admeasuring to an extent of 259 Sq.yds by virtue of

a registered sale deed dated 10.01.2000. Since then, the petitioner

along with her husband are in possession and enjoyment of the

subject property. While so, in the year 2009 after death of her

husband, petitioner performed marriage to her younger son with

one Jaheda, D/o. Abdul Rajaq. Later, matrimonial disputes were

arose between her younger son and his wife/ 6th respondent herein

and living separately. Thereafter, the 6th respondent herein is

harassing the petitioner for want of share in her property. Being

unable to bear the torture, the petitioner herein took the shelter at

elder son's house. Then, the 6th respondent along with some others

trespassed into petitioner's house and broke open the lock and

occupied the house of the petitioner. Having no other option, the

petitioner herein submitted an application/ representation dated

21.02.2022 to the Revenue Divisional Officer for adjudication

against the 6th respondent under the provisions of Maintenance and

Welfare of Parents and Senior Citizens Act, 2007.

ii) Again on 11.04.2022, the petitioner also submitted

another representation to the 3rd respondent requesting to take

steps for eviction of the 6th respondent along with her family

members and sought for protection to the petitioner and her elder

son along with her property. In view of the same, the 6th respondent

filed reply before the 3rd respondent with false averments. To the

utter dismay and aghast the 3rd respondent issued an endorsement

dated 01.06.2022 stating that the petitioner filed a complaint

alleging that her daughter-in-law had broke open the lock illegally,

which is a criminal offence and to be dealt with by the police but not

by the Revenue Divisional Officer. Aggrieved by the action of the

respondents in issuing endorsement dated 01.06.2022 and in not

considering the petitioner's representation dated 21.02.2022,

petitioner filed the present writ petition.

6. Heard Sri Venkata Sunil learned counsel for the petitioner,

learned Government Pleader for Home, learned Government

Pleader for Women and Child Welfare and Sri D.Kasi Rao, learned

counsel appearing on behalf of the 6th respondent in W.P.No.41084

of 2022 and petitioner in W.P.No.11620 of 2023.

7. Learned counsel for the petitioner submits that the petitioner

herein is the absolute owner and possessor of the subject house

property having acquired the same through a registered sale deed

dated 10.01.2000. Since then, she has been in peaceful possession

and enjoyment of the subject property. While things stood thus, one

day in the absence of the petitioner at her house, the 6th respondent

herein (the daughter-in-law of the petitioner) broke open the lock

and occupied the house of the petitioner and not allowing the

petitioner to have possession over her property. Having no other

option, petitioner initiated proceedings under the provisions of

Section 21 of the Maintenance and Welfare of Parents and Senior

Citizens Act, 2007 before the competent authority i.e., the 3rd

respondent herein. Initially, the 3rd respondent herein rejected the

application of the petitioner on the ground that the claim of the

petitioner is criminal in nature and appropriate proceedings to be

initiated before concerned authorities for better consideration. He

further submits that the said order of rejection/ endorsement dated

01.06.2022 of the 3rd respondent was challenged by way of present

writ petition i.e., W.P.No.41084 of 2022 and this Hon'ble Court was

pleased to pass an interim order directing the 3rd respondent to

consider the application of the petitioner in accordance with Section

21 of the Maintenance and Welfare of Parents and Senior Citizens

Act, 2007 and to pass appropriate orders. Accordingly, the 3rd

respondent passed herein passed an order dated 24.04.2023,

which reads as follows:

"....While obliging the orders of the Hon‟ble High Court of A.P. Amaravathi, orders as consideration of the representation of the petitioner, the Deputy Superintendent of Police, Sattenapalli, the Municipal Commissioner, Sattenapalli, and the Tahsildar, Sattenapalli are hereby especially ordered to implement the Hon‟ble High Court orders by evicting Smt. Pathan

Jaheda W/o Pathan Jaleel Khan from her house property, who was the illegal occupier of the petitioner‟s house and also informing that as per the "Rule No.21 of Andhra Pradesh Maintenance and Welfare of Parents and Senior Citizens Rules-2011, the Superintendent of Police in the Districts and in case of cities, the commissioner of police shall take all necessary steps for protection of life and property of senior citizens" and also instructed to the police officials shall take precautionary and necessary steps while vacating the house from Smt. Pathan Juheda W/o. Abdul Zaleel Khan, and also informing the authorities treated this cases as sensitive issue and should look up on without happening any untoward incidents, un-wanted situations and lawless activities while conducting this process, for that they may have to use additional police force and "bandobasthu", after the completion of the house evocating process, and handing over the house bearing D.No.23-7-18, Muslim Peta of sattenapalli town and mandal to the petitioner Smt. Pathan Haleem Bi, W/o (L) Peda John Saheb as per the due process and also been directed to furnish the entire process of vacating the house. (covering the proof with Photographs, Videos and Report) and place detailed report compliance to this office within a stipulated time for enabling report submitted to the Hon‟ble High Court of Andhra Pradesh, Amaravathi in this regard.

8. Pursuant to the orders of the 3rd respondent, the police

authorities initiated steps for eviction of the 6th respondent herein.

While things stood thus, the 6th respondent challenged the orders

of the 3rd respondent by way of writ petition i.e., W.P.No.11620 of

2023.

9. Heard both the learned counsels in W.P.No.11620 of 2023,

at the admission stage itself, this Court was pleased to pass an

interim order dated 03.05.2023, which reads as follows:

"In view of the above said facts and circumstances, there shall be an order of status quo as on today to be maintained with respect to the possession and residence of the petitioner and her children if any, in the house bearing No.23-7-18, Muslimpet of Sattenapalli town and mandal pending further orders.."

10. Learned counsel for the petitioner further submits that since

the subject property is a self acquired property and the petitioner

has been in possession and enjoyment of the said property, the

possession as well as the ownership cannot be disturbed by any

other person, more particularly, by the 6th respondent herein. He

further submits that while passing orders dated 24.04.2024 by the

3rd respondent, he followed due procedure as well as the summary

procedure as contemplated under the provisions of section 21 of

the Maintenance and Welfare of Parents and Senior Citizens Act,

2007. Therefore, the claim of the petitioner in W.P.No.11620 of

2023/ 6th respondent in W.P.No.41084 of 2022 is liable to be

rejected and the impugned order dated 24.04.2023 does not

warrants any interference by this Court.

11. On the other hand, learned Government Pleader appearing

for the respondents filed counter affidavit on behalf of the 3rd

respondent in W.P.No.41084 of 2022. The operative portion of the

said counter reads as follows:

"...It is respectfully submitted that in this particular case disputes between wife and husband in respect of matrimonial issues concerned. The writ petitioner is daughter-in-law of the 6th respondent in the above writ petition and who is non-other than the wife of the 2nd son of the 6th respondent as on today there is no divorce given by the 6th respondent‟s 2nd son to the writ petitioner and writ petitioner has been residing in same shelter along with her mother-in-law with her two children, by virtue of this Hon‟ble Court order dated

12.04.2023 and as on today status quo order has been continuing. This High Court may take a judicial notice in a particular case the writ petitioner has filed DVC 11/2022, Hon‟ble Civil Judge Court Sattenapalli and another case also filed under Section 498-A IPC is also pending before the Civil Judge Court, Sattenapalli. While situation is like that the 6th respondent is not permitting the writ petitioner residing in the house. In that connection writ petitioner along with two children enter

into the 6th respondent house as there is no shelter to the writ petitioner as her children being a daughter-in-law of the 6th respondent entered into the premises and residing there in as per status quo order of this Hon‟ble Court. The writ petitioner along with her children have been residing in that premises..."

12. Learned counsel appearing on behalf of the 6th respondent

also filed counter affidavit in W.P.No.41084 of 2022. The effective

portion of the said counter affidavit reads as follows:

"I submit that my children are legal heirs of estate of petitioner including present living house and also confer a right to me as „mehar‟, according to the terms of the contract agreed to at the time of marriage. I will become eligible to inherit from my husband to extent of one eighth share as prescribed by Muslim law under property Rights of Women in India and Maintenance. There is neither power nor jurisdiction to the Revenue Divisional Officer, Sattenapalli to get vacate myself from joint family house, under Muslim law under property Rights of Women in India and Maintenance."

13. Learned counsel for the unofficial respondents submits that

the 6th respondent herein / petitioner in W.P.No.11620 of 2023 is a

helpless women and she was abandoned by the younger son of the

petitioner herein and she did not have any other shelter to lead her

livelihood with her two children, who were blessed by the younger

son of the petitioner herein. He further submits that as per Muslim

personal law, the property of the petitioner is the joint family

property and being the daughter-in-law and her two children being

the grandsons of the petitioner, are entitled for legal rights to home,

right to lead life at subject property.

14. On the other hand, learned Government Pleader for Home

filed a report pursuant to the directions of the 3rd respondent,

wherein it is stated that the petitioner registered a case in crime

No.36 of 2023 for the offences under Sections 448, 508 r/w.34 of

IPC and Section 24 of the Maintenance and Welfare of Parents and

Senior Citizens Act, 2007 against the 6th respondent herein.

15. Having regard to the submissions made by the learned

counsel for the petitioner, learned Government Pleader for Women

and Child Welfare, learned Government Pleader for Home and

learned counsel appearing for the unofficial respondent and on

perusal of the material placed before this Court, it appears that the

crux of entire issue in both the writ petitions is in and around the

house property bearing Door No.30-23-6-18 situated in Sattenapalli

Town. Admittedly, the said house property was acquired by the

petitioner in the year, 2000 and she has been in possession and

enjoyment of the said house property. It is not in dispute the 6th

respondent herein is the daughter in law of the petitioner and she

was blessed with two children through the younger son of the

petitioner and she was abandoned by him. As contended by the

learned counsel for the petitioner, the said property is a self

acquired property of the petitioner. Therefore, the 6th respondent

cannot claim any rights over the property, more particularly,

partition of the property as claimed on the ground that it is a joint

family property. The said contention of the learned counsel for the

petitioner is contrary to the Muslim personal law and further

observed that as per the Muslim personal law, the property

acquired by any muslim by herself/ himself or inherited through her/

his ancestors, such property can be classified as individual property

of that particular person and the other family members of that

person may inherit rights over the said property. Therefore, there is

no difference between self acquired property and ancestral property

as per Muslim Personal Law. In the present case, the 6th

respondent as well as the sons of the 6th respondent are legal heirs

of the petitioner. Certainly they can inherit the rights over the

subject property and the inheritance rights of the 6th respondent as

well as her sons can be resolved by way of initiating civil

proceedings as contemplated under Muslim Personal Law. In

similar circumstances, the muslim law of inheritance was explained

in a judgment rendered by the XVIII Additional City Civil Judge,

Bengaluru in Sri Irshad Ali Khan v. Abdul Hafeez Khan@

Sarkar1, the relevant portion of the said judgment reads as follows:

"...Before adverting to the facts of the case, let me

discuss regarding partition among Muslims.

As per Holy Quran Surah An-Nisa - 4: Verse 11:

"Allah directs you concerning your children: for a male there is a share equal to that of two females. But, if they are (only) women, more than two, then they get two- thirds of what one leaves behind. If she is one, she gets one-half. As for his parents, for each of them, there is one-siXth of what he leaves in case he has a child. But, if he has no child and his parents have inherited him, then his mother gets one-third. If he has some brothers (or sisters), his mother gets one-siXth, all after (settling) the will he might have made, or a debt. You do not know who, out of your fathers and your sons, is closer to you in OS.No.10625/2006 benefiting (you). All this is determined by Allah. Surely, Allah is All-Knowing, All-Wise"

The Muslim Law of Succession is a combination of four sources i.e. the Holy Quran, Sunna (practice of prophet), Ijma, (Consensus of the learned men of the community over the decision over a particular subject matter), Qiya (deductions based on analogy on what is right and just in accordance with good principles). Muslim law recognises two types of heirs, firstly,

O.S.No.10625 of 2006, dated 16.02.2021.

sharers, the ones who are entitled to certain share in the deceased's property and secondly, Residuaries, the ones who would take up the share in the property that is left over after the sharers have taken their part.

There are 12 Quranic heirs. Such as (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son's son or son's son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine sister (11)Uterinesister, and (12)Uterinebrother.

According to Art. 57 Mulla Principles of

Mohemedan Law 22nd Edition: it is provided as under:-

Art.57. Joint family and joint family business:

(1) When the members of a Mahomedan family life in commensality, they do not form a joint family in the sense in which the eXpression OS.No.10625/2006 is used in the Hindu Law. Further, in the Mahomedan law, there is not, as in the Hindu Law, any presumption that the acquisitions of the several members of the family living and messing together are for the benefit of the family. But if during the continuance of the family properties are acquired in the name of the managing member of the family, and it is proved that they are possessed by all the members jointly, the presumption is that they are the properties of the family, and not the separate properties of the member in whose name they stand.

(2) If after the death of a Mahomedan his adult sons continue their father's business, and retain his assets in the business, they will be deemed to stand in a fiduciary relation to the other heirs of the deceased, and liable to

account as such for the profit made by them in the business. If after the death of the sons, the business is continued by their sons or by other heirs, they also will be liable to account on the same footing.

(3) Members of a Mahomaden family carrying on business jointly do not constitute a joint family firm in the sense in which that eXpression is used in the Hindu Law so as to attract the legal incidents of such a firm.

Sons assisting a father in business are presumably his agents and not his partners, unless an agreement of partnership is proved. A minor may be continued to a benefit in the business, but this will not make him liable on a mortgage eXecuted by him along with his adult brothers in the OS.No.10625/2006 course of the business carried on by the latter. The managers of such a business in a Mahomedan family have no right to impose any liability on the minor members of the family.

Further, as per traditions of Prophet when a Muslim man or woman dies and leaves behind property, whether large or small, four basic duties have to be performed. The 1st being funeral and burial; discharge of deceased' debts; legacies upto 1/3rd and lastly distribution of remaining property among successors and heirs according to the law applicable to the sect of deceased at the time of his death.

Under Islamic law, a co-owner has a right to claim a general partition of all the properties. Not only co- owner, or the heirs who are tenants-in-common, but an alienee can claim the portion on the basis of a specific item of the property. The alienee obtains a personal right which he is equitably entitled to enforce against the share of his vendor which can only be done by a general partition of the entire property.

Under Muslim law, all kinds of properties are heritable, as there is no distinction under Muslim law between movable and immovable or ancestral and self acquired properties. It includes corpus and usufruct both.

OS.No.10625/2006 Under Muslim law, Property devolves separately on heirs - Automatic devolution takes place of the deceased's property on heirs individually and separately to the eXtent of which they are entitled to individual predetermined shares. If there are more than one heir and till division is made, they hold the property as tenants-in-common. Each of them having shares to the value of their entitlement. There is no concept of joint family in Mohammedan law. If the family continues as joint, and the properties are acquired in the name of managing member of the family, and if it is proved that they are possessed by all the members jointly, the presumption is that they are the properties of the family, and not the separate properties of the member in whose name the properties stand. If the sons of a deceased Mohammedan retain his assets in business, they will be deemed to stand in a fiduciary relation to the other heirs of the deceased, and are liable to account for the profits made by them in the business.

The concept of a joint family or of coparcenaries property (as is recognised under Hindu law) is not known to Muslims. Whenever a Muslim dies, his properties devolve on his heirs in definite share of which each heir becomes an absolute owner.

Subsequently, upon the OS.No.10625/2006 death of such heir, his properties are again inherited by his legal heirs, and this process continues. There is no provision for any ancestral or joint-family property. Accordingly, under Muslim law of inheritance, no

distinction has been made between self-acquired and ancestral property. All properties, whether acquired by a Muslim himself or inherited by his ancestors, are regarded as an individual property and, may be inherited by his legal heirs.

Keeping these principles in mind, let me analyse whether the plaintiffs are entitled for partition of the suit schedule properties."

15(ii). In another, the Madurai Bench of Madras High Court also

rendered a judgment in Mohammed Gani v. Parthamuthu

Sowra2, the relevant portion of the said judgment reads as follows:

"..It is a trite proposition of Muslim Law, there is no distinction between ancestral property and self-acquired property. A Muslim can transfer inter vivos his properties by Hiba (gift). By birth, a descendant is having no right over his ascendant's properties during the life time of the latter. In this factual matrix, what the said Abdul Rahim Rowther as per Ex.A.1, intended was to donate his properties by hiba, in favour of his sons born through his other wives and the 'D' Schedule properties as one lot in Ex.A.1 (i.e, the suit properties herein) in favour of his children who were born through his third wife and also to the children yet to be born to him through his same third wife.."

15(iii). The contention of the learned counsel for the unofficial

respondents is that since the 6th respondent is helpless women

A.S.No.1315 of 1989, dated 21.01.2008

eking out her livelihood along with her two children, who are the

legal heirs of the petitioner are entitled for shelter in respect of the

family property of Grandfather/ Grandmother after their demise

only.

16. In view of the reasons stated above, both the writ petitions

are disposed of, directing the respondent authorities to implement

the orders dated 24.04.2023 within a period of four (04) weeks from

the date of receipt of a copy of this order. It is needless to observe

the 6th respondent in W.P.No.41084 of 2022/ petitioner in