# Siddiq Ahmad & Ors. Defendants v. Shaukat Ali & Ors

- **Citation:** (2022) 11 ILRA 586
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-13
- **Case number:** Second Appeal No. 447 of 1986
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siddiq-ahmad-ors-defendants-v-shaukat-ali-ors-47881
- **Pages:** 17

## Headnote

Sri D.C. Srivastava, Sri A.K. Srivastava, Sri
Amit Khanna, Sri Jugal Kishori Khanna, Sri
Kameshwar Rao, Sri Mahendra Narain
Singh,
Sri
Pankaj
Mishra,
Sri
S.K.
Srivastava, Sri S.P. Lal, Sri Sanjay Kumar
Singh, Sri Shrawan Kumar Pandey, Sri
Vinod Kumar Singh

Muslim Law - Inheritance - law of
inheritance applicable to Sunni Muslims
11 All. Siddiq Ahmad & Ors. Vs. Shaukat Ali & Ors.
587
governed by the Hanafi School - Mulla's
Principles of Mahomedan Law, Ss 28, 63 -
according
to
Mulla's
Principles
of
Mahomedan Law, there is exclusion of the
full sister's share in the presence of a son,
how low soever (Para 49)

Late Khoob Ali was the owner of the suit
property - After his death, his daughters,
Nasiban and Bashiran were recorded - Smt.
Bashiran passed away leaving behind her, her
husband Shaukat Ali, the plaintiff and son
Rasheed, defendant no.2 - Partition Suit was
instituted by Shaukat Ali, arraying Nasiban Bibi
as defendant no.1 and Rasheed @ Kallu,
Shaukat Ali's son as the second defendant -
Nasiban
and
Bashiran,
the
two
sisters,
daughters of Khoob Ali, were held entitled to
inherit a half share each in the suit property -
plaintiff
being
Bashiran's
husband,
who
survived her, was held entitled to Bashiran's
half share, along with the parties' son,
defendant no.2 - Suit was decreed for a half
share in favour of the plaintiff and defendant
no.2 - In Second Appeal by Nasiban/
defendant no.1 it was argued that Courts
below have erred in dividing the entire half
share in the suit property that Bashiran
inherited
from her
father, between her
husband, the plaintiff and son, defendant no.2
- Nasiban's share, upon Bashiran's demise, has
been completely ignored - It was argued that
since Smt. Nasiban was the lone full sister of
Bashiran, upon the latter's death, she would
inherit a half share in Bashiran's estate along
with the other two heirs, that is to say,
Bashiran's husband and son - Held - A sister,
notwithstanding her position as a sharer, is
excluded by a son, son's son how low soever
and father or true grandfather - according to
Mulla's Principles of Mahomedan Law, there is
exclusion of the full sister's share in the
presence of a son, how low soever- In the
present case, the deceased Bashiran left
behind her a son, besides her husband - son's
presence would, therefore, exclude the right of
the sister to inherit as a sharer to the extent of
a one-half share by virtue of being the lone
sister of Bashiran - therefore, the half share
that Bashiran inherited from her father, Khoob
Ali would be shared between her husband,
Shaukat Ali and their son, Rasheed @ Kallu
(Para 42, 45, 46, 46)
Dismissed. (E-5)

## Text

_Characters 0–39,952 of 55,694. This is a partial read: ask again with offset=39952 for what follows._

586 INDIAN LAW REPORTS ALLAHABAD SERIES
legal affairs Government of India for taking
appropriate steps. In the case of Samar
Ghosh (supra) Hon'ble Supreme Court
referred to 71st report of Law Commission of
India submitted to Government of India on 74-1978 in which it was mentioned that in case
the marriage has ceased to exist in substance
and in reality there is no reason for denying
divorce. Nothing has been brought on record
to indicate the steps, if any, taken by the
Union of India either with respect to 71st
report of Law commission of India or
pursuant to the recommendation of Hon'ble
Supreme Court in para 91 of the judgement
in the case of Naveen Kohli (supra).
Therefore, we remind the Union of India
the recommendation made by Hon'ble
Supreme Court in the case of Naveen Kohli
(supra) and the 71st report of the Law
Commission of India dated 7-4-1978 and
request to consider it.

36. We find from the facts noted in
paras 2 to 9, the discussion in paras 12 to
17 and principle summarised in para 35
above that the plaintiff - respondent has
proved mental cruelty by the defendant -
appellant,
before
the
Court
below.
Instances of making false complaints by the
defendant appellant against the plaintiff -
respondent to higher authorities, making
wild allegations against the parents of the
plaintiff - respondent, unproved allegation
of indulgence of the plaintiff in adultery
and damaging their reputation in the
society, etc. leaves no manner of doubt that
the court below has not committed any
illegality in the impugned judgment to hold
commission of mental cruelty by the
defendant - appellant to the plaintiff -
respondent. The impugned judgement of
the court below is based on consideration
of evidences on record. Thus, the impugned
judgement does not suffer from any
illegality.

37. For all the reasons aforestated, we
do not find any merit in this appeal. The
impugned judgment of the court below
does not suffer from any illegality.
Consequently, the appeal is dismissed.
Pending applications, if any, stand disposed
of.

38. Let a copy of this judgement be
sent by the Registrar General of this Court
to the Secretary, Ministry of Law and
Justice, Department of Legal Affairs,
Government of India to remind the Union
of India in the light of the judgements
referred in paragraphs 31, 32 and 35(xiii)
above.
----------
(2022) 11 ILRA 586
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 447 of 1986

Siddiq Ahmad & Ors.
 ...Defendants-Appellants
Versus
Shaukat Ali & Ors.
 ...Defendants-Respondents

Counsel for the Appellants:
Dr. Vinod Kumar Rai, Dr. Vinod Kumar Rai

Counsel for the Respondents:
Sri D.C. Srivastava, Sri A.K. Srivastava, Sri
Amit Khanna, Sri Jugal Kishori Khanna, Sri
Kameshwar Rao, Sri Mahendra Narain
Singh,
Sri
Pankaj
Mishra,
Sri
S.K.
Srivastava, Sri S.P. Lal, Sri Sanjay Kumar
Singh, Sri Shrawan Kumar Pandey, Sri
Vinod Kumar Singh

Muslim Law - Inheritance - law of
inheritance applicable to Sunni Muslims
11 All. Siddiq Ahmad & Ors. Vs. Shaukat Ali & Ors.
587
governed by the Hanafi School - Mulla's
Principles of Mahomedan Law, Ss 28, 63 -
according
to
Mulla's
Principles
of
Mahomedan Law, there is exclusion of the
full sister's share in the presence of a son,
how low soever (Para 49)

Late Khoob Ali was the owner of the suit
property - After his death, his daughters,
Nasiban and Bashiran were recorded - Smt.
Bashiran passed away leaving behind her, her
husband Shaukat Ali, the plaintiff and son
Rasheed, defendant no.2 - Partition Suit was
instituted by Shaukat Ali, arraying Nasiban Bibi
as defendant no.1 and Rasheed @ Kallu,
Shaukat Ali's son as the second defendant -
Nasiban
and
Bashiran,
the
two
sisters,
daughters of Khoob Ali, were held entitled to
inherit a half share each in the suit property -
plaintiff
being
Bashiran's
husband,
who
survived her, was held entitled to Bashiran's
half share, along with the parties' son,
defendant no.2 - Suit was decreed for a half
share in favour of the plaintiff and defendant
no.2 - In Second Appeal by Nasiban/
defendant no.1 it was argued that Courts
below have erred in dividing the entire half
share in the suit property that Bashiran
inherited
from her
father, between her
husband, the plaintiff and son, defendant no.2
- Nasiban's share, upon Bashiran's demise, has
been completely ignored - It was argued that
since Smt. Nasiban was the lone full sister of
Bashiran, upon the latter's death, she would
inherit a half share in Bashiran's estate along
with the other two heirs, that is to say,
Bashiran's husband and son - Held - A sister,
notwithstanding her position as a sharer, is
excluded by a son, son's son how low soever
and father or true grandfather - according to
Mulla's Principles of Mahomedan Law, there is
exclusion of the full sister's share in the
presence of a son, how low soever- In the
present case, the deceased Bashiran left
behind her a son, besides her husband - son's
presence would, therefore, exclude the right of
the sister to inherit as a sharer to the extent of
a one-half share by virtue of being the lone
sister of Bashiran - therefore, the half share
that Bashiran inherited from her father, Khoob
Ali would be shared between her husband,
Shaukat Ali and their son, Rasheed @ Kallu
(Para 42, 45, 46, 46)
Dismissed. (E-5)

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a defendant's second appeal,
arising out of a preliminary decree passed
in a suit for partition.

2. Original Suit No. 22 of 1976 was
instituted by Shaukat Ali, arraying Nasiban
Bibi as defendant no.1 and Rasheed @
Kallu, Shaukat Ali's son as the second
defendant. Jogendra Nath @ Lahiri and
Lallu were arrayed as defendant nos. 3 and
4 to the suit and Jamir Ahmad @ Jhamman
Driver as the fifth defendant.

3. Shaukat Ali sought partition of the
four houses, shown in Schedule A to the
plaint. The relief of partition is confined to
Shaukat Ali, defendant nos. 1 and 2. The
other three defendants have been impleaded
for reasons that shall be shortly indicated.
The four houses set out in Schedule A to
the plaint shall hereinafter be referred to as
''the suit property'.

4. The plaintiff pleaded a pedigree to
indicate the relationship between himself
and defendant nos. 1 and 2. The said
pedigree, set out in Paragraph No.1 of the
plaint, is detailed below:

5. The plaintiff asserted a case that the
suit property, comprising four houses
together with a courtyard, is located at
588 INDIAN LAW REPORTS ALLAHABAD SERIES
Town Area Robertsganj, District Mirzapur
(now District Sonbhadra). The late Khoob
Ali was the owner in possession of the suit
property until his demise. After his death,
his widow Smt. Niranjani Bibi was
recorded in the Municipal Records as the
owner. After Niranjani's demise, the names
of Smt. Shakuran, the other widow of
Khoob Ali, besides that of his daughters,
Nasiban and Bashiran were recorded. It is
asserted that Shakuran, Smt. Nasiban and
Smt. Bashiran - all three were recorded as
owners in possession of the suit property
after Smt. Niranjani. Smt. Bashiran passed
away leaving behind her, her husband
Shaukat Ali, the plaintiff and son Rasheed,
defendant no.2, as heirs and LRs, entitled
to inherit.

6. It is the plaintiff's case that by
succession, he and defendant no.2, the
plaintiff's son, together have a half share in
the suit property, whereas defendant no.1,
Smt. Nasiban has the other half. Specifying
the shares further, it is the plaintiff's case
that a one-fourth share is held by him, one
half by defendant no.1 and the remainder
one-fourth by defendant no.2, and all
parties are in possession of the suit
property, in accordance with their shares. It
is the plaintiff's case that defendant no.1,
Nasiban, out of the houses, comprising the
suit property, has sold off two, all by
herself, vide registered sale deeds dated
25.01.1969 and 29.11.1971, in favour of
Jogendra Nath @ Lahiri and Lallu,
defendant nos. 3 and 4 to the suit, in that
order.

7. It is also the plaintiff's case that the
vendees have been put in possession of the
two houses, sold to them through the sale
deeds aforesaid by defendant no.1, and
these two houses are detailed in Schedule B
to the plaint. It is asserted by the plaintiff
that notwithstanding the execution of the
two
sale
deeds
under
reference
by
defendant no.1 in favour of defendant nos.
3 and 4, the two houses sold by defendant
no. 1 exclusively, are also owned by the
plaintiff and defendant no.2 together, to the
extent of a half share, or a one-fourth share
for each of them. The plaintiff has asserted
that he repeatedly expressed his wish with
defendant no. 1 that he wanted her to
partition the suit property, but she remained
elusive. This gave rise to the cause of
action necessitating the suit for partition.

8. It is the plaintiff's further case that
in a part of the houses comprised in
Schedule B, defendant no. 5, Jamir Ahmad
stays as a tenant of the plaintiff's.
Accordingly, Jamir Ahmad has been
impleaded as defendant no. 5 (proforma),
in order to avoid any legal objection as to
non-joinder, though no relief has been
claimed against him. The plaintiff claimed
a decree for partition by metes and bounds,
praying that the Court may partition the suit
property, set out in Schedule A to the
plaint, granting him a one-fourth share, to
defendant no. 1 a half share, and to
defendant no. 2 a one-fourth share. It was
alternatively prayed that if for some reason,
it be not possible to partition the suit
property according to the shares claimed,
the plaintiff and defendant no.2 be given
their entire half share together, in the
remainder of the two houses (not sold) by
defendant no. 1.

9. The suit was contested by
defendant no. 1, Smt. Nasiban Bibi, who
put
in
her
written
statement
dated
07.04.1977.
She
denied
the
plaint
allegations generally and in her additional
pleas, propounded a pedigree indicating the
relationship of parties, very different from
that pleaded by the plaintiff. The pedigree
11 All. Siddiq Ahmad & Ors. Vs. Shaukat Ali & Ors.
589
pleaded by defendant no. 1, set out in
Paragraph No. 13 of her written statement,
is depicted below:

10. There is no quarrel at the instance of
the first defendant to the extent that the suit
property was self-acquired property of the late
Khoob Ali and that during his lifetime, he
remained its exclusive owner in possession.
But, beyond this commonality of stance, there
is a sharp digression of stand between parties
about their relationship and the way the suit
property devolved, including the parties'
share(s) therein. According to Smt. Nasiban,
defendant no. 1, Khoob Ali's first wife was
Smt. Gujrati Bibi. Smt. Nasiban was born of
the wedlock of Khoob Ali and Smt. Gujrati
Bibi. After Smt. Gujrati Bibi passed away,
Khoob Ali married a second time. His second
wife was Smt Niranjani Bibi, the widow of
one Wazir Khan. Smt. Niranjani Bibi brought
along with her, her daughter Bashiran, then a
young child, begotten of Niranjani's first
husband, Wazir Khan. Smt. Bashiran is not
Khoob Ali's daughter. Smt. Niranjani was
never blessed with a child during wedlock
with Khoob Ali. Smt. Niranjani Bibi passed
away during the lifetime of Khoob Ali and he
married a third time. His third wife was
Shakuran Bibi.

11. It is the first defendant's case that
soon after, Khoob Ali passed away,
Shakuran
Bibi
contracted
a
second
marriage and went away. It is also pleaded
by the first defendant that Bashiran Bibi
was married to the plaintiff, while still a
minor. Smt. Bashiran Bibi, within a year of
her marriage, suffered injury by fire and
died in the year 1958. No child was born of
the wedlock between the plaintiff, Shaukat
Ali and Smt. Bashiran Bibi. After Bashiran
Bibi's demise, the plaintiff married a
woman
from
Varanasi.
The
second
defendant, Rasheed @ Kallu was born of
the woman from Varanasi, whom the
plaintiff married after Smt. Bashiran Bibi's
demise. It is, thus, the first defendant's case
that the second defendant is not at all
Bashiran Bibi's son and the plaintiff. It was
pleaded falsely, to assert the second
defendant to be so. There are then some
pleas raised about the boundaries of the suit
property being incorrect. But, that is not
very material to the present suit.

12. The first defendant, on the basis
of
whatever
has
been
recapitulated
hereinabove for her pleaded case, asserted
that the plaintiff and defendant no.2 are not
entitled to claim any share in the suit
property.

13. The next material part of the first
defendant's case is her assertion that in the
house tax assessment records of the Town
Area Committee, Bashiran Bibi's name had
been incorrectly mutated, which did not bind
the first defendant at all. It is also said that
after Bashiran Bibi's demise, the plaintiff made
an application to the Town Area Committee,
Robertsganj, seeking mutation in place of Smt.
Bashiran Bibi, on the basis of a Will left by
her. The plaintiff's application for mutation, as
aforesaid, was rejected on 16.02.1960. The
plaintiff did not take any steps consequent
upon the aforesaid rejection of his claim by the
Town Area Committee. The plaintiff also did
590 INDIAN LAW REPORTS ALLAHABAD SERIES
not lay any further claim to the suit property,
but now has brought the present suit on the
basis of a false case, that is contrary to facts
and events, besides being the result of illadvice, motivated by persons, hostile to the
first defendant. It is also asserted that over
Houses nos. 1 and 2, detailed in Paragraph No.
18 of the written statement, the first defendant
always exercised her dominion and right of
ownership, and as the owner thereof,
transferred these houses to Jogendra Nath @
Lahiri, defendant no. 3 and Lallu, defendant
no. 4, through sale deeds. In the remainder of
the two houses, bearing nos. 3 and 4, shown in
Paragraph No. 18 of the written statement,
defendant no. 5 was a tenant in one i.e. House
no. 3 and in House no. 4, the first defendant
resides herself. It is asserted that the plaintiff
had no control or dominion, much less
possession, over the suit property at any time
whatsoever.

14. Almost identical but separate written
statements were put in on behalf of defendant
nos. 3 and 4, Jogendra Nath @ Lahiri son of
Daya Ram and Lallu son of Mohan,
respectively.

15. In the written statement filed on
behalf of defendant no. 3, Jogendra Nath @
Lahiri, apart from supporting the stand of the
first defendant, it has been pleaded that
defendant no. 3 is a bona fide purchaser for
value without notice. He has purchased House
No. 1, shown in Schedule B to the plaint.
Likewise is the stand of the fourth defendant,
Lallu.

16. On the pleadings of parties, the
following issues were struck (translated into
English from Hindi):

(1) Whether the plaintiff is
entitled to a share of 1/2 in the disputed
house?

(2)
Whether
the
suit
is
undervalued
and
the
court-fee
paid
insufficient?

(3) Whether the plaintiff has a
right to sue?

(4) Whether the suit is barred by
estoppel and acquiescence?

(5) Whether defendant nos. 3 and
4 are bona fide purchasers for value?

(6) Whether the suit is barred by
limitation?

(7) To what relief, if any, is the
plaintiff entitled?

17. The learned Civil Judge tried the
suit and decreed it for a half share in favour
of the plaintiff and defendant no.2 vide
judgment and decree dated 30.08.1982.

18. Aggrieved by the said decree,
Nasiban Bibi preferred Civil Appeal No.
113 of 1982 to the District Judge of
Mirzapur, praying that the Trial Court's
decree be set aside and the suit dismissed.
The said appeal came up for hearing, upon
assignment, before the Third Additional
District Judge, Mirzapur on 15.11.1985.
The learned Additional District Judge
dismissed
the
appeal,
but
with
a
modification of the decree, indicated in the
judgment (not the operative order) that in
the final decree to be prepared, the
plaintiff's share and that of defendant no. 2
should not be mixed up. The fact as to why
the aforesaid modification was made to the
Trial Court's decree and whether it was in
accordance with the shares of parties
determined by the Courts below, bearing in
mind the distinct stages of the passing of a
preliminary decree and preparation of the
final decree would be dealt with a little
later in this judgment.

19. Aggrieved by the decree passed
by the Lower Appellate Court, the heirs
11 All. Siddiq Ahmad & Ors. Vs. Shaukat Ali & Ors.
591
and LRs of Smt. Nasiban, who died
pending appeal and substituted before the
Lower Appellate Court, have moved this
Court, invoking our jurisdiction under
Section 100 of the Code of Civil Procedure,
1908 (for short, ''CPC').

20. The heirs and LRs of Smt. Nasiban
shall hereinafter be jointly referred to as 'the
appellants'. However, any reference to Smt.
Nasiban, would either be as defendant no.1 or
by name. Shaukat Ali, the plaintiff to the suit
and respondent no.1 to this appeal, died
pending the present appeal and his heirs and
LRs, to wit, Suggan wife of Shaukat Ali,
Anwar, Jamshed and Parvez sons of Shaukat
Ali, were substituted as respondent nos.1/1,
1/2, 1/3 and 1/4 in that order. Hereinafter, any
reference to Shaukat Ali, would either be by
name or as ''the plaintiff'. Any reference to his
heirs would be by their number in the array.

21. This appeal was admitted to
hearing vide order dated 28.04.2017 on the
following substantial question of law:

"Whether
the
courts
below
applied the correct principle of law while
dividing the share between Shaukat Ali, the
plaintiff, husband of the Bashiran Bibi and
Nasiban Bibi -the defendant- who is the
sister of Bashiran Bibi?"

22. The appeal was heard on the
aforesaid question and it must be remarked
at the outset that the question postulates not
only the determination of the plaintiff's
entitlement to a share in the suit property
claimed, but also includes within the half
share that the plaintiff claims, the onefourth that the plaintiff says, belongs to
defendant no.2.

23. Heard Dr. Vinod Kumar Rai,
learned Counsel for the appellants, Mr.
Amit Khanna, learned Counsel appearing
on behalf of respondent No.1/1, Mr. Sanjay
Kumar Singh and Mr. Shrawan Kumar
Pandey, learned Counsel appearing for
respondent No.8. No one appeared on
behalf of the other respondents.

24. The Trial Court decided Issue No.
1 as the most substantial issue between
parties, which relates to the plaintiff's
claimed share in the suit property. In
deciding that issue, the Trial Court went
into the question as to whether Smt.
Bashiran and Smt. Nasiban were sisters,
born to the same parents. This question
arose in the context of the defendant's plea
that Smt. Nasiban was Khoob Ali's
daughter, begotten of his wife, Smt. Gujrati
Bibi, whereas Smt. Bashiran was a stranger
to Khoob Ali's family, who had come to
that household along with her mother, Smt.
Niranjani Bibi, when Khoob Ali married a
second time. Smt. Bashiran has been
claimed to be the daughter of Smt.
Niranjani Bibi, begotten of her first
husband, Wazir Khan, who passed away,
leaving her behind as his widow. The Trial
Court opined that since it was a case set up
by defendant no.1 that Bashiran was not
Khoob Ali's daughter, burden lay upon her
to prove the fact.

25. The evidence that the Trial Court
considered, was the registered sale deed
dated 25.01.1969 executed by Nasiban in
favour of defendant no. 3, where she has
acknowledged Bashiran to be her sister and
the daughter of Khoob Ali, who was
married to Shaukat Ali, the plaintiff. In the
opinion of the Trial Court, this recital in the
sale deed was made at a time when there
were no hostilities between parties. This
recital in the sale deed has been regarded as
an admission on Nasiban's part by the Trial
Judge. It has further been opined that
592 INDIAN LAW REPORTS ALLAHABAD SERIES
Nasiban never entered the witness-box to
prove her case that Bashiran was not
Khoob Ali's daughter, or her sister, or to
explain her admission in the sale deed.

26. The Trial Court has also concluded
against defendant no.1 on the premise that
since she avoided entering the witness-box, a
presumption of fact would arise against her
under Section 114 of the Indian Evidence
Act, 1872 to the effect that if she did, and
faced cross-examination, her testimony might
have gone against her. The Trial Judge has
also looked into the Khasra-Abadi relating to
Town Area Robertsganj, District Mirzapur
for the year 1940-41, Ex. 8, which shows that
on 10th January, 1947 in place of Niranjani
Bibi, the names of defendant no. 1, Smt.
Nasiban, Smt. Bashiran, a minor at that time
and Smt. Shakuran, Khoob Ali's widow, were
mutated in the Town Area Records by
succession over the suit property.

27. There are then remarks that
there are no reasons to disbelieve this
cogent record of rights. The Trial Judge
has also observed that defendant no.1
says that she is the sole heir and LR of
Khoob Ali, but the circumstance that
upon Smt. Niranjani's death, who had
been mutated in place of Khoob Ali, the
plaintiff's wife, Bashiran, defendant no.1,
Smt. Nasiban and Khoob Ali's third wife,
Shakuran, who survived him, were all
mutated in the record of rights by
succession,
does
not
support
Smt.
Nasiban's case. On these facts and
circumstances,
the
Trial
Court
has
inferred that both Bashiran and Nasiban
are daughters of Khoob Ali, who would
inherit his property. Khoob Ali's third
wife went away after his demise and her
civil death has been presumed by the
Trial Court, because she never came back
again or claimed a right.

28. Nasiban and Bashiran, the two
sisters, daughters of Khoob Ali, were held
entitled to inherit a half share each in the
suit
property.
The
plaintiff
being
admittedly
Bashiran's
husband,
who
survived
her,
was
held
entitled
to
Bashiran's half share, along with the
parties' son, defendant no.2. Nothing was
said by the Trial Court about the issue, that
was also raised by defendant no. 1, that the
second
defendant,
Rasheed
was
not
Bashiran's son, but born to the plaintiff
after Bashiran's death from a subsequent
marriage to a woman from Varanasi. There
is no finding recorded by the Trial Court on
the said question. The Trial Court has also
opined that the testimony of Nasiban's
husband, who entered the witness-box in
support of the case that she pleaded, is not
reliable. He is a partisan witness and his
evidence not dependable. To the contrary,
the plaintiff, Shaukat Ali's case is well
established by documentary evidence on
record and the circumstances. The Trial
Court, therefore, passed a decree for a half
share in the suit property in favour of the
plaintiff and defendant no.2.

29. The Lower Appellate Court in its
concurring opinion has more or less drawn
the same conclusions on the totality of
evidence on record as the Trial Court. It has
been opined that defendant no. 1, Smt.
Nasiban, upon whom burden lay to prove
the case that Bashiran was not Khoob Ali's
daughter, had not led any evidence on the
point. The documentary and oral evidence
on the other hand, besides circumstances
which include the sale deed executed by
Smt. Nasiban, the mutation made in the
Khasra Abadi relating to the year 1940-41,
Ex. 8, under orders of the Town Magistrate
dated 10.01.1947 in favour of Smt.
Bashiran, after the death of Smt. Niranjani
Bibi, in their totality have been held to
11 All. Siddiq Ahmad & Ors. Vs. Shaukat Ali & Ors.
593
support the plaintiff's case that his wife,
Smt. Bashiran was Smt. Nasiban's sister
and daughter of Khoob Ali. The two sisters,
therefore, inherited the suit property from
Khoob Ali. The plaintiff inherited his wife's
share, which is a one-half along with
defendant no.2, the parties' son. The Lower
Appellate Court also examined that part of
defendant no.1's case, where it was said
that defendant no. 2, to wit, Rasheed @
Kallu, was not Bashiran's son, but born to
the plaintiff, Shaukat Ali of another
woman, whom he married after Bashiran's
demise. On this point, the Lower Appellate
Court has opined that the burden of proving
the fact, that defendant no.2 was born of a
later marriage contracted by Shaukat Ali,
lay upon Smt. Nasiban Bibi.

30. It is recorded by the Lower
Appellate Court that the evidence offered
on this point is that of Tasadduq, DW-1,
who happens to be the Nasiban Bibi's
husband. On the other hand, the plaintiff,
Shaukat Ali, who, without doubt, is the
second defendant's father, has said on oath
that the said defendant was born to him and
Smt. Bashiran Bibi. The Lower Appellate
Court has remarked that normally the
evidence of the father about the mother of
his child has to be given preference and
may be disbelieved, if there is some cogent
and convincing evidence to the contrary.
The Lower Appellate Court has refused to
disbelieve the plaintiff on this point and has
rather disbelieved Tasadduq, Nasiban's
husband, saying that he is an interested
witness. The Lower Appellate Court has,
about the shares of parties, held that the
plaintiff would have a one-fourth share and
defendant no.2 a one-fourth share, which
the defendant no.2 would be entitled to
claim on payment of court-fee at the time
of preparation of the final decree. Likewise,
defendant no.1, Smt. Nasiban, represented
by her LRs, the appellants would be
entitled to her half share, which too, they
can get partitioned in the final decree to be
passed.

31. There is remark by the Lower
Appellate Court that defendant no.1, who
was in appeal before him, objected to the
decree on the ground that the plaintiff could
claim a share for himself and not defendant
no. 2. This objection has been disposed of
by saying that in a partition suit, the Court
has to determine and declare the share of
every co-sharer. Once the preliminary
decree is passed, it is open to all the coshares to apply for the preparation of a final
decree, relating to their share, upon
payment of the requisite court-fee. It is on
the basis of these remarks that the Lower
Appellate Court has directed that it is
desirable that the final decree be drawn in
favour of the plaintiff with regard to his
share alone and the second defendant's
share should not be mixed up with the
plaintiff for the purpose of preparation of
the final decree.

32. At the hearing of this appeal, it
has been submitted that the Courts below
have perversely concluded about the
relationship of parties. It is urged on behalf
of the appellants that neither is Smt.
Bashiran a sister of Smt. Nasiban, as the
evidence would show, nor Rasheed @
Kallu, defendant no.2, Bashiran's son. This
Court finds that the Courts below, on these
matters, have taken a reasonable view of
the evidence on record. The findings
recorded by the Courts below that Bashiran
is Nasiban's sister and defendant no.2,
Rasheed @ Kallu is Bashiran's son are
based on evidence, from which plausible
conclusions have been drawn. There is no
reason for this Court to permit a reagitation of the said issue now. No
594 INDIAN LAW REPORTS ALLAHABAD SERIES
substantial question of law on the said issue
has been framed for the said reason, and
this Court, at the hearing, has not been
successfully persuaded by the learned
Counsel for the appellants to frame any
additional substantial question of law, that
may permit scrutiny of the findings
hereinabove
referred,
concurrently
recorded by the two Courts below.

33. Now, the substantial question of
law, on which this appeal has been
admitted to hearing, is whether the Courts
below have applied the correct principle of
law while dividing shares between the
plaintiff, Shaukat Ali, Smt. Bashiran's
husband and defendant no.1, Smt. Nasiban,
Bashiran's sister. It goes without saying that
the substantial question of law would take
within its fold the principle applied to
allocate a share in the suit property to the
second defendant, Rasheed @ Kallu. There
is no quarrel between parties that the
principles that would govern the inter se
allocation
of
shares,
would
be
the
Mahomedan Law, an uncodified law,
governing Muslims, immediately before
commencement of the Constitution. The
principles continue to apply so long as a
competent legislature does not legislate on
the subject. The principles of Mahomedan
Law, governing inheritance, have not so
far, received attention of the legislature and
continue to apply as an uncodified body of
rules, found in various sources. These have
been recognized and expounded over time
by Courts, including learned Commentators
on the subject.

34. Dr. Vinod Kumar Rai, learned
Counsel for the appellants submits that the
Courts below have committed a manifest
error of law in determining the share of
defendant no.1, Smt. Nasiban while passing
the preliminary decree for partition. It is his
vehement submission that whereas partition
that has to be ordered in the suit is about
the property left behind by Khoob Ali, the
succession, that is involved here, is about
the heirs of the deceased Bashiran alone.
The issue about devolution of Khoob Ali's
estate is no longer open in view of the
findings of fact recorded by the two Courts
below. It is Dr. Rai's submission that this
Court has to determine on the basis that out
of Khoob Ali's estate, a half share each has
gone to Smt. Bashiran and Smt. Nasiban,
and upon Smt. Bashiran's demise, who
would be her heirs, entitled to inherit and in
what share each. The learned Counsel for
the appellants, therefore, says that the half
share of Smt. Nasiban stays intact with her
in the hands of her heirs, that is to say, the
appellants before this Court, whereas the
half share in the suit property, that already
vests in Smt. Bashiran, is to be regarded as
unity wherein Nasiban would receive a
share as an heir of her sister, Smt. Bashiran
along with the plaintiff, Shaukat Ali, her
sister's
husband
and
defendant
no.2,
Bashiran's son. It is argued that the Courts
below have erred in dividing the entire half
share in the suit property that Bashiran
inherited from her father, between her
husband, the plaintiff and son, defendant
no.2. Nasiban's share, upon Bashiran's
demise, has been completely ignored from
consideration by the Courts below, vitiating
the decree passed by them.

35. In aid of his submissions, Dr.
Vinod
Kumar
Rai
has
relied
upon
principles, governing allocations of shares
of a Muslim intestate, amongst his/ her
heirs, enunciated in the celebrated Treaties
on Mahomedan Law, The Principles of
Mahomedan Law by Sir D.F. Mulla,
Nineteenth Edition by M. Hidayatullah
and
Arshad
Hidayatullah.
Learned
Counsel for the appellants has drawn the
11 All. Siddiq Ahmad & Ors. Vs. Shaukat Ali & Ors.
595
Court's attention to the three types of heirs
of a Muslim intestate, that is to say, the
Sharers, who are twelve in number, the
Residuaries and the Distant Kindred. A
reference would be made to the three
classes of heirs during the course of this
judgment. It is submitted by the learned
Counsel for the appellants that the position
of Sharers amongst the three classes of
heirs is the most superior and they have to
be allotted their specified share. He has
referred
to
Section
63
of
Mulla's
Principles of Mahomedan Law, which
reads:

"63. Sharers.- After payment of
funeral expenses, debts, and legacies, the
first step in the distribution of the estate,
of a deceased Mahomedan is to ascertain
which of the surviving relations belong to
the class of sharers, and which again of
these are entitled to a share of the
inheritance, and, after this is done, to
proceed to assign their respective shares
to such of the sharers as are, under the
circumstances of the case, entitled to
succeed to a share. The first column in
the accompanying table (p. 48A) contains
a list of Sharers; the second column
specifies the normal share of each sharer;
the third column specifies : the conditions
which determine the right of each sharer
to a share, and the fourth column sets out
the
shares
as
varied
by
special
circumstances.
Illustrations

Note.--
The
italics
in
the
following and other illustrations in this
chapter indicate the surviving relations. It
will be observed that the sum total of the
shares in all the following illustrations
equals unity i.e. exhausts the inheritance:--
FATHER, HUSBAND AND WIFE

(a) Father .. .. 1/6 (as sharer,
because there are daughters)

Father's
father
..
..
..
(excluded by father)

Mother .. .. 1/6 (because
there are daughters)

Mother's mother .. .. ..
(excluded by mother)

Two daughters .. .. 2/3

Son's
daughter
..
..
..
(excluded by daughters)

(b) Husband .. .. 1/2

Father .. .. 1/2 (as residuary)

(c) Four widows .. .. 1/4 (each
taking 1/16)

Father
..
..
3/4
(as
residuary)"

36. The learned Counsel for the
appellants has further invited the Court's
attention to the Table at Page 48A of Mulla's
Principles of Mahomedan Law, to indicate
the list of shares and further show that a full
sister is mentioned as a sharer at serial no. 11
of the Table. It is submitted that the normal
share of the sister is a one-half and two-third,
if there are two or more sisters, who inherit
collectively. The submission is that since
Smt. Nasiban was the lone full sister of
Bashiran, upon the latter's death, she would
inherit a half share in Bashiran's estate along
with the other two heirs, that is to say,
Bashiran's husband and son. It is mooted that
out of the suit property, of which partition has
to be effected, Smt. Nasiban would be
entitled to her half share, inherited from her
father like Smt. Bashiran, to which has to be
added another share from Smt. Bashran's
estate, upon the latter's demise intestate. Smt.
Bashiran's husband and son would be entitled
to receive a one-fourth share each out of Smt.
Bashiran's estate; not out of the entire suit
property left behind by Khoob Ali.

37. Going by the aforesaid division of
the suit property, that is to say, the property
left behind by Khoob Ali, treating it as
596 INDIAN LAW REPORTS ALLAHABAD SERIES
unity, according to the learned Counsel for
the appellants, Smt. Nasiban would be
entitled to total share of three-fourth,
whereas a share of one-eighth each in the
suit property would go to the plaintiff and
defendant no.2, respectively.

38. Mr. Amit Khanna, learned
Counsel appearing on behalf of respondent
no.1/1, Suggan wife of Shaukat Ali submits
that in the presence of the deceased
Bashiran's son, Kallu, her sister would not
be entitled to any share, as she stands
excluded by a reputed principle in this
behalf. And, that is the presence of the son.

39. We have considered the rival
submissions of the learned Counsel for the
parties and perused the record.

40. According to the Mulla's
Principles of Mahomedan Law vide
Section 61, the three classes of heirs of a
Mahomedan intestate are spelt out thus:

"61. Classes of heirs.- There are
three classes of heirs, namely, (1) Sharers,
(2) Residuaries, and (3) Distant Kindred:

(1) "Sharers" are those who are
entitled to a prescribed share of the
inheritance;

(2) "Residuaries" are those who
take no prescribed share, but succeed to the
"residue" after the claims of the sharers are
satisfied;

(3) "Distant Kindred" are all
those relations by blood who are neither
Sharers nor Residuaries."

41. So far as Smt. Nasiban's
entitlement to a share in the late Bashiran's
estate is concerned, no doubt she is a
sharer. In ''Outlines of Muhammadan
Law' by Asaf A.A. Fyzee, the entitlement
of the full sister to her share has been
enunciated at Page 328 thus:

"(9) Full sister, (10) Consanguine
sister

The full sister is not a primary
heir; she is excluded by son, son's son hls,
and father or true grandfather. It is to be
noticed that male agnates in the descending
and the ascending lines exclude her as a
collateral. With the full brother and in
certain cases with the daughter, she
becomes a residuary.

The
consanguine
sister
is
excluded by a full brother or two full
sisters, and by all the four relations who
exclude a full sister. With the consanguine
brother the consanguine sister becomes a
residuary. With a single full sister she takes
a specified share.

The full sister or consanguine
sister co-existing with full brother or
consanguine brother, respectively, inherit
collectively as agnatic heirs, the brother
taking a double share. But if there were two
full sisters, the consanguine sister would be
excluded.

Illustrations

(a) husband, sister: H 1/2; Si 1⁄2

(b) husband, two sisters: H 1/2;
Si's 2/3 (divided equally)

(c) full sister, consanguine sister:
FSi 1/2; CSi 1/6 (remainder of sisters' joint
share)

(d) daughter, sister: D 1/2 (as
Quranic heir); Si 1/2 (as agnatic heir)

(e) two daughters, sister: Ds 2/3
(as Quranic heirs, divided equally); Si 1/3
(as aganatic heir)

(f) daughter, two sisters: D 1/2
(as Quranic heir); Si's 1/2 (as agnatic heirs,
divided equally)"

 (emphasis by Court)
11 All. Siddiq Ahmad & Ors. Vs. Shaukat Ali & Ors.
597

42. A perusal of the aforesaid
enunciation would show that a sister,
notwithstanding her position as a sharer, is
excluded by a son, son's son how low
soever and father or true grandfather. The
same position of the law has been
enunciated in the Commentaries on
Mahommedan Law by Ameer Ali (Syed)
P.C.,
Fifth
Edition
2007,
Revised,
Enlarged and Updated by Justice S.H.A.
Raza and published by the Hind
Publication House, Allahabad. In Ameer
Ali's Mahommedan Law, the share of the
full sister has been indicated as half at
Pages 1025 and 1026 in the following
words:

"10. The full sister (when only
one and no son, son's how low soever,
father, true grandfather, daughter, son's
daughter or brother, 1/2.

When two or more and no such
excluder, 2/3."

 (emphasis by Court)

43. There is this further principle
about a full sister inheriting as an agnate or
residuary, where she inherits as a residuary
in another's right as it is called. This
entitlement comes to a sister or the four
specified
females,
daughters,
son's
daughters, the full sister and a consanguine
sister, when they co-exist with certain
males. The said rule is enunciated in Amir
Ali's Mahomedan Law at Page 1028 as
follows:

(2) Residuaries in another's
right.- The Residuaries in another's right
are those females who become residuaies
only when they co-exist with cerrtain
males, that is, when there happen to be
males of the same degree, or who, though
of a lower degree, would take as such.

These are four in number, viz.-

(a) Daughters (with sons);

(b) Son's daughters (with a son's
son or a male descendant still further
removed in the direct line).

This applies to the daughters of
all lineal male descendants however low.
For example, when there is a son's son's
daughter co-existing with a son's daughter,
the latter takes her half (like the daughter of
the deceased), and the one-sixth goes to the
son's son's daughter and so on. If there are
two son's daughters, the son's son's
daughter will take nothing unless she has a
lineal male. descendant of the same or
lower degree co-existing, such as a brother
or a nephew.

(c) The full sister (with her own
or full brother).

(d) The sister by the same father,
or, in other words, a consanguine sister
(with her brother).

When the females are of the same
degree as the males (or as in the case of
son's daughters or the daughters of a son's
son how low soever-when they co-exist
with lineal male descendants though of a
lower degree), each female takes half the
share of a male. For example, where there
are two sons and three daughters of two
brothers and three sisters, each daughters or
sister, as the case may be, will take oneseventh, whilst each son or brother two
sevenths.