Chattisgarh High Court

Sheikh Mohammad And Anr vs Meem Mohammad And Ors on 17 September, 2021

                                                                      NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                               FA No. 84 of 2011
                          Reserved on.10.09.2021
                         Pronounced on.17.09.2021

     1. Sheikh Mohammad, aged 24 years S/o Meem Mohammad
        Mussalmaan, Occupation-Agriculture, R/o Masjid Para, Ward
        No.10, Gandai, Tehsil-Chhuikhadan, District-Rajnandgaon (C.G.).
     2. Smt. Jainab Bee, aged 22 years, D/o Meem Mohammad
        Mussalmaan, Occupation-Agriculture, R/o Masjid Para, Ward
        No.10, Gandai, Tehsil-Chhuikhadan, District-Rajnandgaon (C.G.)
                                                 ---- Appellants/Plaintiffs
                                  Versus
     1. Meem Mohammad, aged 55 years S/o Nawaz Mohammad
        Mussalmaan, R/o Masjid Para, Ward No.10 Gandai, Tehsil-
        Chhuikhadan, District-Rajnandgaon, Chhattisgarh.
     2. Smt. Jaitoon Bee, aged 45 years, D/o Nawaz Mohammad
        Mussalmann, R/o Jamniya Para, Tehsil-Lohara, District-Kabirdham
        (CG), Ration Card No. 60-61.
     3. Smt. Savitri Sinha, W/o Santosh Sinha Occupation-Agriculture, R/
        o Narmada (Chaknaar), Tehsil-Chhuikhadan, District-Rajnandgaon
        (C.G.).
     4. Government of Chhattisgarh, through Collector Rajnandgaon,
        Chhattisgarh.                 ---- Respondents/Defendants

_______________________________________________________________ For Appellants: : Shri Kshitij Sharma appears on behalf of Shri Manish Sharma, Advocate.

For Respondents No. 1 and 2:       : None.
For Respondent No.3                : Shri Rakesh Pandey, Advocate
For Respondent No.4/State          : Ms. Reena Singh, P.L.

Single Bench:Hon'ble Shri Sanjay S. Agrawal, J CAV Judgment/Order

1. This appeal has been preferred by the plaintiffs under Section 96

of the Code of Civil Procedure, 1908 (hereinafter referred to as the

'CPC') questioning the legality and propriety of the judgment and

decree dated 28.01.2011 passed in Civil Suit No. 4-A of 2008,

whereby the learned Additional District Judge, Khairagarh, District-

Rajnandgaon (C.G.) has dismissed their claim. The parties to this appeal shall be referred hereinafter as per their description before

the Court below.

2. Briefly stated the facts of the case are that the plaintiffs instituted a

suit claiming declaration to the effect that the registered deed of

sale dated 23.02.2007 executed by Defendant 1-Meem

Mohammad and Defendant 2-Smt. Jaitoon Bee, who are their

father and Bua respectively in favour of Defendant 3-Smt. Savitri

Sinha with regard to the property in question bearing Khasra No.

276/1, admeasring 8.60 acres, as described in Plaint Schedule-A

situated at village Kritbaans, Tahsil- Chhuikhadan, District

Rajnandgaon be declared as null and void. According to them,

since it was their ancestral property, and therefore, Defendants 1

and 2 have no right to alienate the same as such.

3. While denying the aforesaid claim, it is pleaded by Defendants 1

and 2 that the alleged sale was validly executed by them as

plaintiffs have no right over it as they relinquished their right by

living separately. While, Defendant 3, the purchaser, has contested

the claim on the ground that she acquired her valid right, title and

interest over the property in question under the registered deed of

sale dated 23.02.2007 and contested further on the ground that

since plaintiffs are the Mohammedan and governed by their

personal Law, therefore, the allegation as made by them in the

plaint that the property in question is the ancestral property is not

sustainable and claim is, therefore, liable to be dismissed.

4. The trial Court, after considering the evidence led by the parties,

arrived at a conclusion that the property in question is neither the

ancestral property nor there is any presumption of undivided family property, like the Hindu in Mohammedan Law and, the plaintiffs

have, therefore, no right over it. In consequence, the trial Court has

dismissed the claim.

5. Learned counsel appearing for the Appellants/plaintiffs submits that

the finding of the Court below holding that the property in question

is not the ancestral property is apparently contrary to law. It is

contended further that although the concept of joint property is not

applicable under the Mohammedan Law, but unless and until the

determination is made amongst the heirs of the deceased Muslim,

it cannot be alienated to the exclusion of the interest of other's

heirs. It is, therefore, contended that the alleged registered deed of

sale as executed on 23.02.2007 affecting the interest of the

plaintiffs is invalid and would not confer any right or title upon the

purchaser of it.

6. On the other hand, learned counsel appearing for the Respondent

No.3/Defendant 3 has supported the impugned judgment and

decree as passed by the Court below.

7. I have heard learned counsel for the parties and perused the entire

record carefully.

8. The question which arises for determination in this appeal is as to

"Whether the property in question bearing Khasra No. 276/1,

admeasuring 8.60 acres is the ancestral property and/or, the

alienation of it as made by Defendants 1 and 2 under the

registered deed of sale dated 23.02.2007 (Ex.P-1) in favour of

Defendant 3-Smt. Savitri Sinha could be held to be invalid?"

9. From perusal of the record it appears that the authenticity of the

alleged registered deed of sale dated 23.02.2007, purported to have been executed by Defendants 1 and 2 in favour of Defendant

3, has been questioned mainly on the ground that since the

property in question bearing Khasra No. 276/1, admeasuring 8.60

acres as described in Plaint Schedule-A is the ancestral property,

and therefore, in absence of the determination of shares of all the

heirs, it cannot be sold as such. The plaintiffs are, therefore,

required to establish the fact with regard to the nature of the

property in question sold under the alleged sale. However, it

appears from perusal of the alleged sale and the Revenue Papers,

like the Kistbandi Khtauni and Khasra Panchsala attached with it

would show that it is recorded in the name of Defendants 1 and 2.

It appears further that after its alienation, it was mutated in the

name of purchaser Smt. Savitri Sinha vide order dated 28.04.2007

as evidenced by Namantaran Panji (Ex. P-2) and Revenue Papers

(Ex.P-3 and Ex.P-4) were accordingly recorded in her name.

Ex.P-5 is the Khasra Panchshala for the year 2007-08 which is

shown to be recorded in Defendant's father, namely, Nawaj

Mohammad and his brothers Ramjan Mohammad and Sahbaj

Mohammad with regard to the property bearing Khasra No. 101,

Area 0.089 acres of village Gindai which is, however, distinct from

the property in question sold under the alleged sale (Ex.P-1). The

plaintiffs have thus, failed to produce any document showing that

the property in question was recorded in the name of their

grandfather so as to observe that it is the ancestral property as

alleged by them.

10. Be that as it may, parties are admittedly governed by

Mohammedan Law and there is no presumption of their undivided

family property as held by the Supreme Court in the matter of Syed Shah Gulam Ghouse Mohiuddin and others v. Syed Shah

Ahmad Mohiuddin Kamisul Qadri (dead) by his legal

representatives and others, reported in 1971(1) SCC 597,

wherein it was observed at paragraph 21 as under:-

20................In Mohammedan Law the doctrine of

partial partition is not applicable because the heirs

are tenants-in-common and the heirs of the

deceased Muslim succeed to the definite fraction of

every part of his estate. The shares of heirs under

Mohammedan Law are definite and known before

actual partition. Therefore on partition of properties

belonging to a deceased Muslim there is division by

metes and bounds in accordance with the specific

share of each heir being already determined by the

law.

11. Similar is the view taken by Madhya Pradesh High Court in the

matter of Bashiruddin and another v. Jameela Khatoon and

others reported in 1994 JLJ 610, wherein it has been observed at

paragraph 7 and 8 as under:-

"7. Under the Mohammedan Law, jointness of family

is not recognised at all, though various members of

a Mohammedan family live in commensality, they do

not form a joint family in the sense in which that

expression is used with regard to Hindu Law, and

there can be no presumption of jointness in favour

of the joint family. See paragraph 57 of Mulla's

Principles of Mohammedan Law, Nineteenth Edition."

8. As there is no presumption of jointness in favour

of the joint family as in Hindus, a Mohammedan

succeeds individually and the succession opens at

the time of death of holder with the shares clearly

and specifically defined. But where the heirs

continue to hold the estate without dividing it, they

continue to hold it as tenants-in-common and one

can bring a suit for recovery of his

share............................,"

12. In view of the aforesaid principles of law, no fruitful purpose would

be served if the application filed during the pendency of this appeal

under Order 41 Rule 27 of C.P.C., seeking production of additional

documentary evidence, like mutation order (Namantaran Panji)

dated 31.08.1995 revealing the facts that Defendants 1 and 2 have

received the property as legal heirs of Nawaj Mohammad is

allowed, as under the Mohammedan Law, they continue to hold the

estate as tenants-in-common and, as such, the plaintiffs can not

claim their interest during their life time. In view thereof, the said

application is rejected.

13. Consequently, the entire claim of the plaintiffs based upon the

premises that since the property in question is the ancestral