Madhya Pradesh High Court
Nawabzadi Qamar Taj Rabia Sultan ... vs Nawab Mehr Taj Sajida Sultan ... on 20 July, 2022
Author: Anjuli Palo
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
FA No. 296 of 2000
(NAWABZADI QAMAR TAJ RABIA SULTAN (DEAD) THR. LRS MOHD. NASIR MIRZA (DEAD) THR. LRS
YASEER MIRZA AND OTHERS Vs NAWAB MEHR TAJ SAJIDA SULTAN (DEAD) THR. LRS NAWAB
MANSOOR ALI KHAN PATODI (DEAD) THR. LRS SHARMILA AND OTHERS)
Dated : 20-07-2022
Heard Mr.Varun Tankha with Mr.Harshit Bari, learned counsel for the
appellant No.1.
Mr.Siddharth Sharma, learned counsel for legal heirs of appellant No.2.
Mr.Ashok Lalwani, learned counsel for the respondents No.1 to 4.
Mr.Rajesh Pancholi, learned counsel for respondents No.5 & 7.
Mr.Sanjay Agrawal, learned senior counsel with Mr.Sheersh Agrawal,
learned counsel for the respondent No.6.
Mr.Aadil Singh Boparai with Mr.Suyush Thakur and Mr.Gurlabh Sidhu,
learned counsel for the respondents No.9 to 16.
Mr.M.A.Usmani, learned counsel for the proposed respondents.
Mr.Sanjeev Tuli, learned counsel for the intervener.
Mr.Akhilesh Jain, learned counsel for the proposed respondent.
Mr.R.S.Yadav, learned counsel for the legal heirs of respondent No.1.
Mr.Akhilesh Jain, learned counsel is directed to supply copy of
I.A.No.1937/2022 (an application under Order 1 Rule 10 r/w 151 CPC) to
Mr.Ashok Lalwani and Mr.Rajesh Pancholi, learned counsel within three
working days from today.
Heard on I.A.No.638/2022, which is an application filed by Akbar
Hasan Khan (hereinafter referred to as the applicant) under Order 22 Rule 4 of
CPC read with Section 151 and order 1 Rule 10 of CPC for taking legal
representative of the deceased respondent No. 2 on record.
It is submitted that Begum Sultan Jahan was the Nawab of Bhopal. She
had three sons, namely Nasrulla Khan, Obedulla Khan and Hameedulla Khan.
Nasrulla Khan was eldest and Hameedulla Khan was the youngest son. After the
death of Sultan Jahan Begum, Hameedulla Khan became Nawab/Ruler Bhopal.
Nawab Hamidulla Khan had two wives namely Begum Memoona Sultan and
Begum Aftab Jahan/respondent No.2. Begum Memoona Sultan had three
daughters. Begum Aftab Jahan was issue-less, therefore, after her death, her
nephew inherited her share in the property of Nawab Hameedulla Khan.
It is submitted that respondent No. 2/Begum Aftab Jahan died in the year
2000 after passing of the impugned judgment and decree. The appellants instead
of bringing her legal representative on record, with ulterior motives by filing
application I.A. No. 4289/2006 under Order 22 Rule 2 of CPC got her name
deleted from the array of the respondents in the present first appeal.
It is further submitted that one of the legal heirs of deceased respondent
No. 2 namely Azam Hasan Khan (real brother of applicant) by suppressing
material facts and by committing fraud with the Court filed an application I.A.
No. 11502/2011 under Order 22 Rule 4 read with Section 151 of IPC before
this Court exposing himself to be the sole legal heir of respondent No. 2 after a
delay of about 11 years without mentioning about the present applicant, which
has been allowed by this Court vide order dated 15.10.2014.
I t has been contended that since original defendant No. 2/respondent
No.2 Begum Aftab Jahan died issue less, the applicant as well as respondent
No. 7 have become co-sharer of the suit properties under the provisions of
Hanfi Law of inheritance (Mohammedan law) and the applicant/proposed
respondent being the co-sharer/legal heir in the suit properties is liable to be
impleaded as a respondent in a suit for partition.
Learned counsel for the applicant submits that he was not aware about
pendency of the case with respect to suit property and he came to know about
it in the month of July, 2020 only, as mentioned by him in Para 8-9 of this
application. The real brother of the applicant has already been impleaded in this
appeal as respondent, therefore, the present applicant may also be impleaded as
a respondent in this appeal being the co-sharer in the suit properties. Learned
counsel for the applicant has placed reliance on the decision of this Court in
Kamar Mohamnmed Khan Vs. Begum Sabiha Sultan reported in 2016 (1)
MPLJ 199. Reliance has also been placed on the decisions in Mumbai
International Airport Pvt. Ltd. Vs. Regency Convention Centre reported
in 2010 (7) SCC 417; Amreek Singh Vs. Kamla Devi reported in 2013 (1)
MPWN 51, Vishnu Swaroop Joshi Vs. Janki Prasad Kurele reported in
2013 (II) MPWN 57 and Smt. Shakuntala Devi Vs. Banwarilal and others
reported in AIR 1977 Allahabad 551
Respondent Nos. 1 to 4 have have filed their reply to the aforesaid
application and has submitted that the application has been filed after a delay of
about 22 years without any justification, therefore, it is not tenable and liable to
be dismissed.
I have heard learned counsel for the parties and the impugned judgment.
The suit was dismissed by the trial Court on 14.2.2000 holding that the suit
property was the self acquired property of Nawab Hamiddulla Khan. As per
Muslim law, the rules of inheritance are not applicable to the parties. Although,
this finding has been challenged by the appellants in the present appeal but it is
noteworthy to mention here that Begum Aftab Jahan died in the year 2000 and
present application has been filed on 18.1.2022 after an enormous delay of
about 22 years. The respondents have filed their reply in which it has been
mentioned that the applicant himself gifted the properties bearing Khasra No.42
area 8.5 acres out of one and a half acres of ground floor of Riyaz Manzil
situated at Kohefiza, Bhopal vide gift deed (Annexure R-3/2). This fact has also
been suppressed by the applicant.
The Supreme Court in the case of Balwant Singh (Dead) Vs. Jagdish
Singh and others (Civil Appeal No.1166 of 2006 decided on 8.7.2010) has
observed in Para 16 as under:-
16. Above are the principles which should control the exercise of judicial
discretion vested in the Court under these provisions. The explained
delay should be clearly understood in contradistinction to inordinate
unexplained delay. Delay is just one of the ingredients which has to be
considered by the Court. In addition to this, the Court must also take
into account the conduct of the parties, bona fide reasons for
condonation of delay and whether such delay could easily be avoided by
the applicant acting with normal care and caution. The statutory
provisions mandate that applications for condonation of delay and
applications belatedly filed beyond the prescribed period of limitation
for bringing the legal representatives on record, should be rejected
unless sufficient cause is shown for condonation of delay. The larger
benches as well as equi-benches of this Court have consistently followed
these principles and have either allowed or declined to condone the
delay in filing such applications. Thus, it is the requirement of law that
these applications cannot be allowed as a matter of right and even in a
routine manner. An applicant must essentially satisfy the above stated
ingredients; then alone the Court would be inclined to condone the
delay in the filing of such applications."
I n the instant case, The brother of the applicant has already been
impleaded as respondent in this appeal long ago. There is enormous delay of
about 22 years in filing this application by the present applicant. The applicant
has not given any justifiable or plausible reason for such delay, therefore, in
view of the principles laid down by the Supreme Court in the aforesaid
decision, this application cannot be entertained. It is hereby dismissed as barred
by limitation.
Heard on I.A.No.6865/2022 & I.A.No.6953/2022, which are
applications for restoration of I.A. Nos.7734/2021, 9029/2021 and 6953/2022,
which were dismissed for want of prosecution.
It appears to be mistake on the part of the counsel and due to mistake of
the counsel, the parties should not be made to suffer, therefore, for the reasons
mentioned in the application and in the interest of justice, the applications are
allowed. The aforesaid IAs are restored.
(SMT. ANJULI PALO)
JUDGE
PB
Digitally signed by
PRADYUMNA BARVE
Date: 2022.07.20
19:18:01 +05'30'
