Smt. Jubeda Papabhai Inamdar vs Mr. Shamshuddin Pappubhai Mulani ...
2017 Latest Caselaw 2873 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO. 7468 OF 2016

Smt. Jubeda Papabhai Inamdar                                   ... Petitioner

         Versus

Mr.Shamshuddin Pappubhai Mulani & Ors.                         ...Respondents

                                  WITH
                   CIVIL APPLICATION NO. 1172 OF 2017
                                   IN
                     WRIT PETITION NO. 7468 OF 2016

Smt.Jubeda Papabhai Inamdar                                    ...Applicant

         Versus

Mr.Shamshuddin Pappubhai Mulani & Ors.                         ...Respondents

                                  WITH
                   CIVIL APPLICATION NO. 1173 OF 2017
                                   IN
                     WRIT PETITION NO. 7468 OF 2016

Smt.Jubeda Papabhai Inamdar                                    ...Applicant

         Versus

Mr.Shamshuddin Pappubhai Mulani & Ors.                         ...Respondents
                          ......

Mr. Jaydeep Deo for the Petitioner/Applicant
Mr. Rawool M. Vijay for Respondent Nos. 1 to 5
Mr.Kavyal Shah for Respondent Nos. 10 to 11.
                               ......

                                  CORAM: Mrs.MRIDULA BHATKAR, J.

DATED: JUNE 7, 2017

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P.C.:

1. Rule. Rule made returnable forthwith. By consent, petition

is heard finally and disposed of at the stage of admission.

2. "What's in a name? That which we call a rose by any other

name would smell as sweet". This famous quote of Shakespeare

in Romeo & Juliet may be true in love and literature but not in law

while deciding proprietary right especially of a married Indian

woman, who failed to prove her maiden name. Both the trial and

appeal Courts refused to prima facie accept that Jubeda Inamdar

is a daughter of Hapu @ Dau @ Aabu Hussainbhai Mulani. The

said finding needs to be reversed.

3. This petition is directed against the order dated 09.06.2016

passed by the learned Ad-hoc District Judge-5, Pune in

Miscellaneous Civil Application No. 213 of 2016 as well as the

order dated 04.04.2016 below Exhibit 5 passed by the 9 th Jt. Civil

Judge, Senior Division, Pune in Special Civil Suit No. 1206 of 2015

thereby rejecting the prayer that the defendants shall not create

third party right in the suit property.

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4. The petitioner / the original plaintiff had filed Special Civil Suit

No.1206 of 2015 for partition and declaration that an agreement of

sale dated 20.06.2014 executed between respondent Nos.1 to 5

and respondent Nos.10 to 11 is to be declared as void to the

extent of share of the petitioner / original plaintiff which she claims

by inheritance in her father's property. The relief of injunction is

also prayed.

5. The petitioner/ original plaintiff and respondent Nos. 1 to 9

are Muslims and therefore, they are governed under Muslim Law

of Inheritance. The petitioner/ original plaintiff claims her right in

the suit property being a legal heir of one original owner

Babanbhai Mulani. She avers that she is a great-grand-daughter of

Babanbhai Mulani. She also claims the heirship through her father

Hapu @ Dadu @ Aabu Hussainbhai Mulani, who was a son of

Babanbhai Mulani and brother of Sayyedbhai Mulani. Respondent

Nos. 1 to 9 are from the branch of Sayyedbhai Mulani, who was a

real brother of her father Hussaibhai Mulani. According to her,

some respondents have tried to dispose of the property by

agreement of sale and therefore, she moved an application dated

19.09.2015 at Exhibit 5 against the respondents for interim relief.

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The said application was rejected by the learned trial Judge and

also the learned District Judge. Hence, this Writ Petition.

6. The learned counsel for the petitioner has submitted that the

findings given by both the learned Judges that Jubeda i.e. the

petitioner/ original plaintiff has failed to prove that she is the

successor of Babanbhai Mulani is erroneous. He has further

submitted that the petitioner/ original plaintiff has produced death

certificate of her father Hussainbhai Mulani. She has also

mentioned the genealogy of the family in the plaint. He has further

submitted that one branch of Sayyedbhai Mulani had two sons viz.

Pappubhai and Amubhai. Defendant no.1 / respondent no.1

Shamshuddin Pappubhai Mulani is a son of Pappubhai Mulani and

he is main contesting party. However, the legal heirs of branch of

Amubhai Mulani have supported the case of the petitioner/ original

plaintiff that she is the legal heir of Babanbhai Mulani and the

daughter of Hussainbhai Mulani. Respondent no.1, who is the

main contesting party has illegally got his name alone mutated in

the revenue record and this fact would have been given

weightage. He has further submitted that the trial Court in fact has

held that there is nothing on record to show that partition has taken

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place and therefore, the property cannot be fallen in the share of

respondent no.1 and other respondents. In support of his

submission, he has produced photocopy of Wedding Invitation

Card of Jubeda i.e. the petitioner/ original plaintiff. He has pointed

out that in the Wedding Invitation Card her father's name

appearing as Hussainbhai Mulani. He has also relied on the

affidavits of the persons, family and friends, who have affirmed that

Jubeda is the daughter of Hussianbhai Mulani.

7. The learned counsel for the respondents while opposing this

Writ Petition has heavily relied on the observations made by both

the learned Judges. He has submitted that both the Courts had

passed concurrent orders, disbelieved that she is a daughter of

Hussainbhai and rejected the relief prayed by the petitioner/

original plaintiff. He has further submitted that no documentary

evidence has been produced by Jubeba i.e. the petitioner/ original

plaintiff to show that she is the daughter of Hussainbhai Mulani

and therefore, no relief was rightly granted, as this fact was not

established. During the course of submissions, he has also

suggested that the matter can be sent to mediation by this Court.

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8. The trial Court has rightly observed that as per inheritance in

the Muslim Law, sons and the daughters have right in the father's

property. However, it has gone wrong in not accepting prima facie

that the petitioner/ original plaintiff is the successor of Babanbhai

Mulani through her father. As submitted by the learned counsel for

the petitioner/ original plaintiff that the petitioner is 80 years old

married lady and her name was showing as Judeba Inamdar. She

claims to be the daughter of Hussainbhai Mulani. The lady is

uneducated and therefore, she is unable to produce school record

as it is not available or does not exist to show whose daughter she

is.

9. Thus, the documents do not exist hence not available. The

learned trial Court and the appellate Court ought to have taken into

account the practical difficulty of an uneducated married woman, to

prove her maiden name in the absence of documents. However,

prior to 60 to 80 years ago, if the female has not taken education

in the school, then it was difficult to get proof of her maiden name.

The trial Court ought to have also taken into account that prior to

60 to 70 years, all the girls were not sent to the school. Similarly,

some girls were deprived of education, as it was dependent on

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class, community and also religion. It is difficult for an uneducated

old married woman to prove the fact of the name of her natural

father, as the name of the woman is changed after her marriage

due to patriarchal system in our country. Under such

circumstances, the learned Judges ought to have prima facie

accepted the genealogy given by the lady and heavy burden to

prove this fact is not to be cast on her.

10. On the other hand, an uneducated old man is accepted on

face value as son of the father only because he carries his fixed

name and surname throughout his life. In the peculiar set of these

facts, the trial Court ought to have accepted the genealogy of the

petitioner/ original plaintiff that she is the successor of Babanbhai

Mulani through her father Hussainbhai Mulani. The petitioner/

original plaintiff was having the custody of death certificate of her

father Hussainbhai Mulani, is also a material fact. Moreover, other

branch of Amubhai Mulani, who is the cousin of the petitioner/

original plaintiff, has also supported her claim that she is the

daughter of Hapu @ Dadu @ Aabu Hussainbhai Mulani. The

name of the father is also seen on the wedding card.

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11. Under such circumstances, I am of the view that the finding

given by the learned subordinate Judges is illegal and the orders

passed by both the learned Judges are illegal. The issue of her

heirship can be framed by the trial Court and evidence can be

tendered to that effect. However, prima facie, there is an evidence

to show that she is the successor of Babanbhai Mulani through her

father and therefore, the orders passed by both the learned

Judges are set aside. The defendants are directed not to create

any third party right in the suit property. The trial Court may

consider and refer the matter for mediation and the parties may

explore the possibility of amicable settlement. Writ Petition is

allowed accordingly.

13. Civil Application No.1172 of 2017 which is filed to lead the

additional evidence stands disposed off and the other Civil

Application No.1173 of 2017, which is filed to strike out the

defence is also disposed of without any order, as liberty is given to

the petitioner/ original plaintiff to make such application before the

trial Court.

(MRIDULA BHATKAR, J.)