Khushi Mohammad vs Mubarak
- Court
- Punjab and Haryana High Court
RSA-598-1999
RSA-4115-200
(O&M) -1-
7(O&M)
JAB AND HARYANA
ARH
IN T
THE HIGH COURT OF PUNJ
AT CHANDIGA
RS
Re
Pr
Up
241(2 cases)
Khushi Moham
SA No.598 of 1999 (O&M)
eserved on:14.10.2026
ronounced on:04.11.2026
ploaded on:04.11.2026
LR ... Appellant
mmad (since deceased) through L
Versus
thers
Mubarak and ot
...Respondents
.4115 of 2007(O&M)
2. RSA No.
Dildar Ahmed a
and another
... Appellants
Versus
d and others
Taj Mohammad
CORAM: HO
...Respondents
ARINDER SINGH GREWAL
ON'BLE MR. JUSTICE AMA
r. R.K Dogra, Advocate
r the appellant(s).
Present: Mr
for
Mr
Mr
Mr
for
r. Arihant Jain, Advocate, and
r. Kanish Jindal, Advocate, and
r. Kunal Nagpal, Advocate
r the respondent No.1.
*
R SINGH GREWAL, J.
AMARINDER
1. Th
he instant afore-captioned appeal
ls are being decided by a comm
on
order as the iss
ues for consideration in both ap
ppeals are related to suit properti
ies
claimed to be in
nherited by parties from common
n ancestor.
2. RS
SA No.598 of 1999 has been fil
led by the appellant-plaintiff, w
ho
died during the
pendency of the appeal and is n
now being represented through h
his
legal representa
ative, challenging the judgment
t dated 09.09.1993 passed by t
the
learned Additio
onal Senior Sub Judge, Malerko
otla (hereinafter referred to as t
the
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RSA-598-1999
RSA-4115-200
learned trial Co
(O&M) -2-
7(O&M)
ourt), dismissing the suit of posse
ession by way of partition filed
by
the appellant-pl
laintiff and the judgment and d
ecree dated 02.08.1997 passed
by
the learned Ad
dditional District Judge, Sangru
ur (hereinafter referred to as t
the
st
learned 1 App
pellate Court), vide which the ap
ppeal preferred by him against t
the
aforesaid judgm
ment and decree passed by th
he learned trial Court, was al
lso
dismissed.
3. RS
SA No.4115 of 2007 has been fi
iled by the legal representatives
of
the appellant-pl
laintiff in RSA No.598 of 1999
9 against the judgment and decr
ree
dated 23.08.20
006 passed by the learned Ad
dditional District Judge, Sangr
rur
st
ferred to as the learned 1 Appel
(hereinafter refe
llate Court) whereby the judgme
ent
and decree date
ed 26.02.2005 passed by the lear
rned Civil Judge (Junior Division
n),
Malerkotla (her
reinafter referred to as the learn
ned trial Court) has been set asi
ide
and the suit fi
iled by respondent No.1-plainti
iff for possession and permane
ent
injunction has b
been decreed.
4. Fo
or the sake of convenience, the p
parties shall be referred to in term
ms
of their status b
before the trial court in both cases
s.
5. Su
uccinctly, the facts of the case in
RSA No. 598 of 1999 are that t
the
plaintiff, Khush
hi Mohd., instituted a suit for po
ssession by way of partition to t
the
rd
extent of 2/3
d
share in the house bearing
Municipal Committee Unit N
No.
B/1/279, situate
ed at Mohalla Tellian, Malerko
otla, bounded on the east by t
the
house of Ibrahi
im, on the west by a street, on th
he south by the house Haji Kari
im
Bux, and on th
he north by the house of Asgh
har Ali and Ibrahim. The plaint
tiff
pleaded that th
e property originally belonged
to his father, Gahia, who died
on
25.05.1967, lea
aving behind the plaintiff, defend
dant No.1 Mubarik, and defendan
nts
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RSA-598-1999
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No. 2 and 3, h
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his daughters. It was averred tha
at defendant No.1 was the son
of
Gahia's first wi
ife, Roori, whereas the plaintiff
and defendants No. 2 and 3 we
ere
born to his seco
ond wife, Kariman. According to
o the plaintiff, the parties inherit
ted
the suit proper
rty in equal shares, with the p
plaintiff and defendant No.1 ea
ach
rd
1/3 share and defendants No.2
succeeding to 1
2 and 3 collectively inheriting t
the
r
remaining 1/3
rd
share. However, defendants
No.2 and 3 relinquished the
eir
rd
reby entitling him to 2/3 share
respective share
es in favour of the plaintiff, ther
in
the suit propert
ty. The plaintiff further averred
that Gahia had purchased anoth
her
plot measuring
201 square yards vide sale de
eed dated 06.10.1943, which w
was
subsequently g
gifted to the plaintiff in June
e 1958, whereupon the plaint
tiff
constructed a ho
ouse after obtaining sanction of
the site plan on 02.05.1959. It w
was
stated that the p
plaintiff had already instituted a
a separate civil suit concerning t
the
said property on
n 10.02.1986, which was pendin
ng before the competent court, a
nd
the particulars
thereof had been incorporated i
in the plaint to avoid an objecti
on
regarding partia
al partition. As defendant No.1 d
did not accept the plaintiff's clai
im
rd
f 2/3 share in the suit property,
to the extent of
the plaintiff instituted the prese
ent
suit for possessi
ion by way of partition.
6. Up
pon issuance of summons, defe
endant No.1 appeared and filed
d a
written stateme
ent contesting the suit. It was p
pleaded that the house in dispu
ute
originally belon
nged to Ibra (Ibrahim), the rea
al brother of Gahia, father of t
the
plaintiff and de
efendant No.1, and that after th
he death of Ibra, the property w
was
inherited by hi
is widow, Smt. Roori, who sub
bsequently married Gahia. It w
was
further averred
that defendant No.1 was born
to Smt. Roori from the wedlo
ock
with Gahia, wh
hereas the plaintiff and defendan
nts No.2 and 3 were born to Gah
hia
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RSA-598-1999
RSA-4115-200
from his second
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d wife, Kariman. Defendant No
o.1 asserted that, after the death
of
Smt. Roori, he
inherited the house in dispute
and thereby became its exclusi
ive
owner, denying
g any right or interest of the pla
aintiff therein. With regard to t
the
plot mentioned
d in the plaint, defendant No.1
admitted that the same had be
een
purchased by G
Gahia during his lifetime but co
ontended that it was subsequent
tly
partitioned oral
lly between the plaintiff and de
efendant No.1. It was alleged th
hat
the plaintiff ha
ad constructed a portion of the
plot falling to his share, where
eas
defendant No.1
had laid the foundation on the
portion allotted to him for raisi
ng
construction at
a later stage. On these premise
es, the suit was stated to be fals
se,
frivolous and li
able to be dismissed.
7. On
n the basis of pleadings, learned
trial Court had framed as many
as
nine issues inc
cluding relief. On appreciation
of oral as well as documenta
ary
evidence produ
uced before it, the learned trial Co
ourt dismissed the suit filed by t
the
st
the learned 1 Appellate Court
appellant, whic
ch finding has been affirmed by
in
the appeal prefe
erred by him. Hence, the regular
second appeal.
8. In
RSA No.4115 of 2007, plaintiff
f-Taj Mohammad, son of Mubar
rak
and grandson o
of Gahia, instituted a suit for po
ossession by way of partition a
nd
permanent inju
unction in respect of a plot pu
urchased by Gahia on 06.10.19
43
against Khushi
Mohammad i.e. uncle of the pla
aintiff and other defendants on t
the
ground that abo
out 35 years ago, Gahia, during
his life time had made oral gift
in
favour of his fa
ather, Mubarak along with defen
ndant No.1-Khushi Mohammad
in
equal shares. F
Father and mother of the plaint
iff have expired and therefore,
he
became co-shar
rer in the suit property to the ex
xtent of half share. Since the su
uit
property is joi
int, he wanted to get the sui
it property partitioned, howev
er,
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RSA-598-1999
RSA-4115-200
defendant No.1
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1 instead of partition the suit
t property, started threatening
to
alienate the sa
ame and raising construction o
ver the said property, hence t
the
present suit.
9. Up
pon notice, the defendants conte
ested the suit by filing the writt
ten
statement wher
rein they denied that Gahia purch
hased the property on 06.10.194
43.
It was also den
nied that Gahia made oral gift
of half share of suit property
in
favour of fathe
er of the plaintiff in the presenc
ce of respectable persons. It w
was
asserted that d
defendant No.1 is owner in pos
ssession of the suit property a
nd
constructed a
house thereon in the year 19
959 after getting sanction fro
om
Municipal Cou
uncil and spent more than Rs.50
0,000/- on construction. Furth
er,
preliminary obj
jections qua maintainability of
the suit, non-joinder of necessa
ary
parties and locu
us standi were also taken.
10. On
n the basis of pleadings, learned
trial Court had framed as many
as
nine issues inc
cluding relief. On appreciation
of oral as well as documenta
ary
evidence produ
uced before it, the learned trial
l Court dismissed the suit of t
the
st
as learned 1 Appellate Court in
plaintiff wherea
n appeal reversed the finding of t
the
learned trial Co
ourt and allowed the suit of the
e plaintiff. Hence, the defendan
nts
therein filed the
e aforesaid regular second appea
l.
11. Le
earned counsel for the appellant
in RSA-598-1999 contended th
hat
both the learned
d Courts below had erred in law
and on facts in dismissing the su
uit
by erroneously
holding that that the new Munic
cipal Unit No.B-1/279 and the o
old
Unit No. B
-II-57/37R referred to the
e same property situated
at
Mohalla Tellia
an, Malerkotla. Further, it was
contended that both the learn
ned
Courts below
had misread and misconstru
ued the documentary evidenc
ce,
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RSA-598-1999
RSA-4115-200
particularly Ex
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xs.P-2 and P-3, to erroneous
sly conclude that the aforesa
aid
municipal num
mbers pertained to different pro
operties, although there were
no
pleadings to tha
at effect and that the municipal
assessment register could not,
by
itself, establish
title. Furthermore, learned coun
nsel submitted that the Courts h
had
held the partie
es to be governed by Moham
mmedan Law and, therefore, t
the
respective share
es of the parties ought to have be
een determined in accordance wi
ith
the applicable
principles of succession, rather
r than dismissing the suit witho
out
passing a prelim
minary decree for partition. He re
elied upon the judgment passed
by
the Hon’ble Sup
preme Court in Zoharbee and a
another Vs. Imam Khan AIR 202
025
th
4
5083 to conten
nd that upon death of Ibra, his w
widow Roori was entitled to 1/
th
4 would go to the residuary, w
share of his pro
operty and the remaining i.e. 3/4
ho
was Gahia, who
om Roori subsequently married
after the death of Ibra. Moreov
er,
reliance was pla
aced upon the judgment dated 15
5.12.1988 passed in the earlier su
uit
for permanent
injunction, as affirmed in app
peal on 01.08.1997, wherein t
the
appellant had b
been recognised as a co-sharer i
in the property, and it was argu
ued
that the said fi
findings had not been properly
appreciated by both the learn
ned
Courts below. I
It was also contended that the s
suit was filed for partition and n
not
declaration of o
ownership and thus, impugned j
judgments and decrees passed
by
the learned Co
ourts below are liable to be se
et aside and a preliminary decr
ree
determining the
e respective shares of the partie
es be passed or, in the alternativ
ve,
the matter be
remanded to the learned trial
Court for determination of the
eir
respective share
es in accordance with Mohamme
edan Law.
12. Pe
r contra, learned counsels for res
spondent No.1 submitted that bo
oth
the learned Cou
urts below have rightly dismiss
sed the suit of the appellant as
he
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RSA-598-1999
RSA-4115-200
miserably failed
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d to prove that old number and
d the new number was of the su
uit
property. Furth
hermore, in the earlier Civil Su
it No.68 of 1986 the plaintiff h
had
admitted that a
residential house was already i
in exclusive ownership/possessi
on
of respondent N
No.1. The suit property belonged
d to Ibra (Ibrahim), real brother
of
Gahia. Ibra ma
arried to Roori and after his dea
th, she married to Gahia and fro
om
his loins, respo
ondent No.1 was born. After th
he death of Ibra, the suit proper
rty
was inherited b
by Roori and from Roori, it cam
me to the share of respondent No
o.1
and therefore, r
respondent No.1 is exclusive ow
wner of the suit property. It w
was
further contend
ded that in the earlier suit i.e. Civ
vil Suit No.68 of 1986 filed by t
the
appellant-plaint
tiff, there was a specific admissi
ion on his behalf that a resident
ial
house was give
en to respondent No.1-defendan
nt No.1 in partition. Since he h
has
already admitte
ed that the residential house had
d fallen to the share of responde
ent
No.1 in another
r suit, he cannot seek determina
ation of share in the said proper
rty
by way of separ
rate suit. Furthermore, the prese
ent suit was not maintainable as h
hit
by partial partit
tion and deficiency of court fee
es. Thus, both the learned Cou
rts
below have righ
htly dismissed the suit of the app
pellant-plaintiff.
13. In
RSA No.4115 of 2007, lear
rned counsel for the appellan
nts
st
t the learned 1 Appellate Co
contended that
ourt had rendered an erroneo
ous
judgment by re
eversing the findings of the lea
arned trial Court without proper
rly
appreciating the
e documentary evidence on recor
rd, particularly the judgment dat
ted
28.11.1986 pas
sed in Civil Suit No. 68 of 1986
6, titled Khushi Mohd. v. Mubara
ak ,
wherein a spec
cific issue regarding ownership
and possession of the property
in
dispute had bee
en decided in favour of Khushi M
Mohd. i.e. father of the appellan
nts
st
argued that the learned 1 Appel
herein. It was a
llate Court had failed to determi
ine
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RSA-598-1999
RSA-4115-200
whether the pr
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roperty involved in the present
suit was identical to that in t
the
earlier suit and
had erroneously considered the
e bar under Order II Rule 2 of t
the
Code of Civil P
Procedure, 1908, with reference
e to a previously instituted suit f
for
partition which
had subsequently been withdraw
wn, instead of properly examini
ng
the applicability
y of the principles of res judicat
ta and Order II Rule 2 CPC in t
the
light of the ear
rlier adjudication i.e. Civil Suit
No.68 of 1986 wherein the iss
sue
whether the pla
aintiff is owner in possession o
f the house as shown ABCD w
was
decided in favo
our of the plaintiff i.e. father
of the appellants herein. Furth
er,
learned counse
el contended that the sale deed
d dated 06.10.1943, forming t
the
foundation of
the plaintiff's claim of owne
ership, had not been proved
in
accordance wit
th law, as its copy, tendered in
rebuttal on 08.02.2005, had be
een
objected to by
y the defendant, and mere ten
ndering of the document did n
not
dispense with th
he requirement of proving it in a
accordance with law. Furthermor
re,
st
d that the learned 1 Appellate C
it was submitte
Court had failed to appreciate th
hat
Khushi Mohd. w
was in possession of the property
y and had raised construction aft
fter
obtaining perm
ission from the competent muni
icipal authority, as reflected in t
the
relevant permis
ssion, site plan and house tax
x assessment registers on recor
rd.
Moreover, it wa
as argued that the suit was liable
to be dismissed for non-joinder
of
Hasmat and Na
ayamat, the daughters of Gahia,
who were necessary parties to t
the
partition procee
edings, as their shares were al
lso required to be determined
in
accordance wit
th Mohammedan Law. Additio
onally, learned counsel submitt
ted
that mere failu
ure to prove the alleged oral gif
ft could not, by itself, justify t
the
st
ition passed by the learned 1
decree for parti
Appellate Court without proper
rly
determining the
e title to the suit property, the e
effect of the previous adjudicati
on
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RSA-598-1999
RSA-4115-200
and the respect
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tive shares of all the legal heirs.
. Lastly, it was contended that t
the
st
learned 1 Appellate Court we
impugned judgm
ment and decree passed by the
ere
liable to be set
t aside and the judgment and d
decree of the learned Trial Cou
urt
dismissing the s
suit deserved to be restored.
14. Pe
er contra, learned counsel for res
spondent No. 1 in RSA-4115-20
07
st
by the learned 1 Appellate Cou
contended that
the judgment and decree passed
urt
were based on
a proper appreciation of the evid
dence and the settled principles
of
law. It was argu
ued that the title of Gahia over t
the suit property stood establish
hed
by the register
ed sale deed dated 06.10.1943
, Ex.P1, which, being an ancie
ent
st
1
document produ
uced from proper custody, was
duly considered by the learned
Appellate Cour
rt. Further, learned counsel subm
mitted that in the earlier litigati
on
between Mubar
rak and Khushi Mohd., decided
d on 15.12.1988, the property h
had
been recognis
ed as joint and Mubarak's
half share therein had be
een
acknowledged,
thereby precluding the appellan
nts from disputing the same in t
the
present proceed
dings. Furthermore, it was cont
ended that the learned trial Cou
urt
had erroneously
y dismissed the suit by invoking
g the principles of res judicata a
and
the bar under O
Order II Rule 2 of the Code of C
Civil Procedure, 1908, despite t
the
earlier suit hav
ing been instituted for permane
nt injunction, whereas the prese
ent
suit sought par
rtition and separate possession o
of the plaintiffs’ share. Moreov
er,
learned counsel
l argued that the right of a co-s
sharer to seek partition subsists
so
long as the join
nt status of the property continu
ues and, therefore, the present su
uit
was not barred
d. Additionally, it was submitt
ted that the municipal house t
tax
assessment entr
ries relied upon by the appellan
nts could not confer exclusive ti
tle
upon Khushi M
Mohd., as such entries were prim
marily intended for fiscal purpos
ses
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and were not co
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onclusive proof of ownership. L
Learned counsel further contend
ded
that even if the
alleged oral gift in favour of Mu
ubarak and Khushi Mohd. was n
not
established in
its entirety, respondent No.1,
being the son and legal heir
of
Mubarak, was
entitled to claim his father's h
half share in the suit property
by
st
ned 1 Appellate Court had right
succession. Las
stly, it was argued that the learn
tly
reversed the jud
dgment and decree of the learne
ed trial Court and decreed the su
uit
for partition, an
nd that the present regular second
d appeal deserves dismissal.
15. I h
have heard learned counsel for th
he parties and examined the reco
ord
as well as case l
laws cited, with their able assista
ance.
16. Th
he common and central issue ari
ising for consideration in both t
the
appeals is the e
entitlement of the parties to seek
k partition of the properties, whi
ich
formed the sub
bject matter of two separate sui
its instituted by the parties to t
the
litigation.
17. Un
nder Muslim Law right by birth i
in the property is completely alie
en.
Similarly conce
ept of self-acquired and ancest
ral property is equally foreign
to
Muslim Law.
Whatever property one inherits
s (whether from ancestor or som
me
others or self-a
acquired) is at Muslim Law, one
e’s absolute property, whether th
hat
person is a man
n or a woman. The effect of part
tition is that the joint ownership
is
terminated and
d the respective shares are ve
ested in genuine shareholders
in
severalty. Separ
ration of share is a species of “p
partition”. When all co-owners g
get
separated, it is
a partition. Separation of share(
(s) refers to a division where on
nly
one or only a fe
ew among several co-owners/cop
parceners get separated, and othe
ers
continue to be
joint or continue to hold the re
emaining property jointly witho
out
division by me
etes and bounds. Doctrine of p
partial partition does not apply
to
PANKAJ KUMAR
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authenticity of this document
RSA-598-1999
RSA-4115-200
Mohammedan L
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Law as the heirs therein are tena
ants-in-common. Furthermore, t
the
Mohammedan
Law has well defined rules of
inheritance that come into effe
ect
upon the death
of the ancestor, and its policy h
as been to restrain the owner fro
om
interfering in su
uch well-defined rules. Transfer
of property, if required to be ma
ade
during the lifeti
ime of a person, may be done s
so primarily by way of gift (hib
a).
Other methods
include the writing of a will bu
ut even therein certain restrictio
ons
have been postu
ulated.
18. Th
he Hon’ble Supreme Court in
n Syed Shah Ghulam Ghou
use
Mohiuddin v. S
Syed Shah Ahmed Mohiuddin K
Kamisul Quadri (1971) 1 SCC 5
597
has held as und
er:-
“20
0. … In Mohammedan law the d
doctrine of partial partition is n
not
appl
licable because the heirs are te
nants-in-common and the heirs
of
the
deceased Muslim succeed to the
e definite fraction of every part
of
his
estate. The shares of heirs und
der Mohammedan law are defin
ite
and
known before actual partit
tion. Therefore on partition
of
prop
perties belonging to a deceased
Muslim there is division by met
tes
and
bounds in accordance with the
e specific share of each heir bei
ing
alre
eady determined by the law.”
19. It
is an acknowledged position th
hat Islamic Law is founded up
on
four principal
sources, namely: (i) the Quran
n; (ii) Hadith; (iii) Ijma; and (i
iv)
Qiyas. These fo
our sources constitute the founda
ation from which the principles
of
Islamic person
al law are derived. There is
also a well-recognised hierarc
hy
amongst these
sources, with the Quran occ
cupying the highest position
of
authority, follo
owed, in that order, by Hadith
h, Ijma and Qiyas. Consequent
ly,
questions relati
ing to matters of inheritance and
d gifts, as involved in the prese
ent
appeals, are req
quired to be examined and adju
udicated upon in the light of the
ese
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RSA-598-1999
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foundational so
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ources of Islamic Law. The su
ubject of inheritance is dealt wi
ith
principally in C
Chapter IV of the Quran, name
ely, Al-Nisa. The relevant vers
ses
thereof are repr
roduced hereunder:
“4
:11 Allah commands you regard
ding your children: the share of t
the
˹
male.1 If you leave only two
˹
or
ma
ale will be twice that of the fem
˺
ore females, their share is two-
mo
thirds of the estate. But if there
is
onl
ly one female, her share will be
e one-half. Each parent is entitl
led
to
one-sixth if you leave offspring.2
2 But if you are childless and yo
our
par
rents are the only heirs, then yo
our mother will receive one-third
d.3
Bu
ut if you leave siblings, then you
ur mother will receive one-sixth
h—
˹ ˺
d debts.5 Be fair to your paren
aft
ter the fulfilment of bequests and
nts
˹
d children, as you do not fully
˺
y know who is more beneficial
and
to
˹ ˺
u.6 This is an obligation fr
you
from Allah. Surely Allah is A
All-
Kn
nowing, All- Wise.
4:1
12 You will inherit half of wh
hat your wives leave if they a
are
˹ ˺
, then your share is one-fourth
chi
ildless. But if they have children,
of
the
e estate—after the fulfilment of b
bequests and debts. And your wiv
ves
wil
ll inherit one-fourth of what you
u leave if you are childless. But
t if
you
u have children, then your wive
es will receive one-eighth of yo
our
est
tate—after the fulfilment of bequ
uests and debts. And if a man or
r a
wo
oman leaves neither parents nor
r children but only a brother or
r a
˹ ˺
ter from their mother’s side , th
sis
hey will each inherit one sixth, b
but
˹ ˺
all will share one-third of t
if
they are more than one, they
the
˹
to
est
tate—after the fulfilment of beq
quests and debts without harm
˺ ˹ ˺
e heirs .2 This is a commandm
the
ment from Allah. And Allah is A
All-
˹
76 They ask you for a ruling,
Kn
nowing, Most Forbearing. 4:17
O
˺
ophet . Say, “Allah gives you a
Pro
a ruling regarding those who d
die
wit
thout children or parents.” If
a man dies childless and leav
ves
beh
hind a sister, she will inherit on
ne-half of his estate, whereas h
her
bro
other will inherit all of her es
state if she dies childless. If th
his
per
rson leaves behind two sisters, th
hey together will inherit two-thir
rds
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(O&M) -13-
7(O&M)
of
the estate. But if the deceased l
leaves male and female siblings,
, a
˹
of two females. Allah makes th
˺
is
ma
ale’s share will be equal to that
˹
astray. And Allah has perfec
˺
ct
cle
ear to you so you do not go
kno
owledge of all things.”
19.
. Reading of the above verses r
reveals clearly with the use of t
the
wo
ords ‘leave’, ‘leaves’ or ‘man die
es’ that division of property is on
nly
pos
ssible upon the death of a perso
on, amongst his heirs. There is
no
pre
escription as to how the partition
n of property may take place wh
hen
a p
person is alive.
20. A
plain reading of the aforesaid
verses makes it evident that t
the
distribution of t
the estate of a person amongst h
his legal heirs is contemplated on
nly
upon his death.
. The use of expressions such a
as ‘leave’, ‘leaves’ and ‘man die
es’
unequivocally i
indicates that the right of inherita
ance accrues only upon the demi
ise
of the person
concerned. The said verses, h
however, do not provide for
or
prescribe any m
mode of partition or distribution
of property by a person during h
his
lifetime.
nd
medan Law (22 Edition), there a
21. As
s per Mulla Principles of Mahom
are
three classes of
f heirs, who are entitled to a p
rescribed share of the inheritan
nce
under Mahomed
dan Law and the same are descri
ibed as under:-
“ A-THREE CLASSE
ES OF HEIRS”
61.
. Classes of heirs. There are t
three classes of heirs, namely, (
(1)
Sh
arers, (2) Residuaries, and (3) D
Distant Kindered:
) “Sharers" are those who are en
(1)
ntitled to a prescribed share of t
the
inheritance;
) “Residuaries” are those who
(2)
o take no prescribed share, b
but
succeed to the “residue” afte
er the claims of the sharers a
are
satisfied;
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(O&M) -14-
7(O&M)
) “Distant Kindred” are all th
(3)
hose relations by blood who a
are
neither sharers nor residuaries.
.”
XX
XXX
XXXX
B-SHAR
RERS
63.
. Sharers.- After payment o
of funeral expenses, debts, a
nd
leg
gacies, the first step in the distri
ibution of the estate, of a deceas
sed
Ma
ahomedan is to ascertain which
h of the surviving relations belo
ng
to
the class of sharers, and which
h again of these are entitled to
o a
sha
are of the inheritance, and, after
r this is done, to proceed to assig
ign
the
eir respective shares to such o
of the sharers as are, under t
the
cir
rcumstances of the case, entitled
d to succeed to a share. The fir
rst
col
lumn in the accompanying table
e (p.68) contains a list of Sharer
rs;
the
e second column specifies the n
normal share of each sharer; t
the
thi
ird column specifies the conditi
ions which determine the right
of
eac
ch sharer to a share, and the fo
urth column sets out the shares
as
var
ried by special circumstances.
65
5. Residuaries. If there are no sh
harers, or if there are sharers, b
but
the
ere is a residue left after sa
atisfying their claims, the who
ole
inh
heritance or the residue, as
the case may, devolves up
on
res
siduaries in the order set forth in
n the annexed table (P.76).”
D-DISTANT KI
INDRED
67
7. Distant Kindred. (1) If there
be no shares or residuaries, t
the
inh
heritance is divided amongst Dis
stant Kindred.
(2)
) If the only sharer be a husban
nd or wife, a there be no relati
ion
bel
longing to the class of Residuar
ries, the husband or wife will ta
ake
his
s or her full share, and the rema
ainder of the estate will be divid
ded
am
mong Distant Kindred.”
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RSA-598-1999
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22. No
(O&M) -15-
7(O&M)
ow, adverting to the lis at hand in
n RSA No.598 of 1999, this Cou
urt
finds that both
h the learned Courts below h
have rightly concluded that t
the
appellant-plaint
tiff miserably failed to estab
lish that the properties beari
ng
Municipal Unit
t Nos. B-1-279 and B-II-S-7/3
7R were two different municip
pal
numbers assign
ned to one and the same prope
erty. Although there is no dispu
ute
with regard to t
the settled legal proposition that
t municipal assessment entries,
by
themselves, do
not confer or establish title, a
perusal of the municipal record
ds,
Exs.P-2 and P
P-3, clearly indicates that the
properties bearing the aforesa
aid
municipal numb
bers stand recorded in the name
es of different persons. While t
the
property bearin
g Municipal Unit No. B-1-279 is
s recorded in the name of Mubar
rik
son of Gahia, th
he property bearing Municipal U
Unit No. B-II-S-7/37R is record
ded
in the name of
f Gahia son of Baila. Such entri
ies, though not conclusive of tit
tle,
lend support to
o the inference that the two mun
nicipal numbers pertain to distin
nct
properties. The
onus squarely rested upon the a
appellant-plaintiff to establish th
hat
Municipal Unit
t No. B-II-S-7/37R was the old
d number of the suit property a
nd
that the same ha
ad subsequently been renumbere
ed as Municipal Unit No. B-1-27
79.
However, no ev
vidence, either oral or documen
ntary, was adduced to substantia
ate
this assertion. F
Further, no official from the Mu
unicipal Committee was examin
ned
to explain or co
orroborate the entries contained i
in the assessment registers, Exs.
.P-
2 and P-3, or t
to establish any correlation bet
tween the old and new municip
pal
numbers. In the
e absence of any such evidence
e, the learned Courts below we
ere
fully justified i
n deciding the aforesaid issue a
against the appellant-plaintiff. T
The
reliance placed
by the appellant upon the judgm
ment and decree dated 15.12.198
88,
in support of
his claim that his ownership
p in the suit property had be
een
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recognised in th
(O&M) -16-
7(O&M)
he earlier proceedings, is also m
misplaced and does not advance h
his
case. This is pri
imarily for the reason that the de
escription of the property involv
ved
in the earlier s
suit is materially different from
m the description of the proper
rty
forming the sub
bject matter of the present proce
eedings. Furthermore, in the earli
ier
suit, it was the
e admitted case of the appellant
t-plaintiff that Gahia was also t
the
owner of a resi
idential house, which had fallen
n to the share of respondent No
.1-
defendant No.
1, namely, Mubarak. This a
admission further reinforces t
the
distinction betw
ween the property involved in the
e earlier litigation and the proper
rty
forming the su
ubject matter of the present
suit. Consequently, the findin
ngs
recorded in the
e earlier proceedings cannot be
e construed as recognition of t
the
appellant-plaint
tiff's ownership or co-sharersh
hip in the property presently
in
dispute.
23. Ho
owever, this Court finds merit in
n the contention raised by learn
ned
counsel for the
e appellant that the suit propert
ty, which is the subject matter
of
RSA No.598 o
f 1999, was required to devolve
e upon the legal heirs of Gahia
in
accordance wit
th the principles of Mohamm
medan Law. Admittedly, the su
uit
property origin
nally belonged to Ibra (Ibrahim
m), who died leaving behind h
his
widow, namely
y, Roori. It is also not in dispute
that, after the death of Ibra, Roo
ori
contracted mar
rriage with Gahia, who was t
the real brother of the deceas
sed
Ibrahim. As p
per the settled principles of
f Mohammedan Law, where
a
Mohammedan
dies leaving behind a widow
w and no lineal descendants, t
the
th
a sharer, is entitled to 1/4 sh
widow, being a
are in the estate of her deceas
sed
th
eas the remaining 3/4 share dev
husband, where
volves upon the residuary or oth
her
entitled heir, de
epending upon the applicable ru
ules of succession. In the prese
ent
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case, since Roo
(O&M) -17-
7(O&M)
ori had no child from her wedlo
ock with Ibra, she was entitled
to
th
1/4 share in
th
while the remaining 3/4 sha
the estate left behind by him,
are
devolved upon
Gahia, being the surviving resid
duary heir. This position also fin
nds
support from t
the judgment of the Hon'ble S
Supreme Court in Zoharbee an
nd
another v. Ima
am Khan (supra), wherein it has
s been held that, in the absence
of
th
dan is entitled to 1/4 share in t
children, the wi
idow of a deceased Mohammed
the
estate of her de
eceased husband. The mere reco
ording of the name of responde
ent
No.1 in the ass
sessment register maintained by
the Municipal Committee neith
her
confers nor est
ablishes any right, title or inter
rest in the suit property. Upon t
the
death of Ibra,
the suit property was required
d to devolve upon his legal he
irs
strictly in acco
ordance with the settled princip
ples of Muslim Personal Law
of
succession.
24. As
s an upshot of above, the judgm
ments and decrees passed by bo
oth
the learned Cou
urts below are set aside and th
he matter is remanded back to t
the
learned trial Co
ourt to consider the matter afre
sh in terms of observations ma
ade
hereinabove. R
Resultantly, RSA No.598 of 1999
9 is disposed of in above terms.
25. Ad
dverting to RSA No.4115 of 200
07, this Court finds no merit in t
the
contention raise
ed by learned counsel for the a
appellants that, in the earlier Civ
vil
Suit No.68 of 1
986, the issue regarding owners
ship and possession of the proper
rty
in dispute had
been decided in favour of the p
plaintiff, namely, the father of t
the
appellants here
ein. A perusal of the judgment
t dated 15.12.1988 passed by t
the
learned Sub-Jud
dge, 1st Class, Malerkotla, in th
he aforesaid suit, reveals that the
ere
is a specific fin
nding that the plaintiff therein w
was not the exclusive owner of t
the
site underneath
the disputed house. However, ta
aking note of the fact that he had
d a
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subsisting right
(O&M) -18-
7(O&M)
t in the property, the Court de
eemed it appropriate to grant
an
injunction in hi
is favour, restraining the defend
dants from causing any obstructi
on
in raising const
truction over the property or forc
cibly dispossessing him therefrom
m.
Thus, the afore
said judgment cannot be constru
ued as an adjudication recognisi
ng
the plaintiff as
s the exclusive owner of the p
property in question. The furth
her
contention raise
ed by learned counsel for the ap
ppellants that the suit property w
was
not owned by G
Gahia is also devoid of merit. Al
lthough, as per the sale deed dat
ted
06.10.1943, Ex
x.P-1, the area of the plot conv
veyed thereunder was 201 squa
are
yards, whereas
the area of the property descri
ibed in the present suit is 206.1
1/2
square yards, th
he boundaries mentioned in the
e sale deed, Ex.P-1, tally with t
the
description of t
the property contained in the jud
dgments and decrees passed in t
the
earlier litigation
n, Exs.P-3 and P-4. Significantl
ly, in paragraph 7 of the aforesa
aid
judgments, the
Court recorded that it was the ad
dmitted case of the parties that t
the
site underneath
h the disputed house belonged to
o Gahia. Furthermore, in the civ
vil
suit forming the
e subject matter of RSA No.598
of 1999, the plaintiff therein, w
ho
is the father of
f the appellants in the present
appeal, had himself pleaded th
hat
Gahia had purc
chased a plot measuring 201 s
quare yards vide sale deed dat
ted
06.10.1943. Th
hus, the ownership of Gahia ove
er the said plot stood admitted
by
the father of the
e appellants himself. It is also a
settled principle of law that, in t
the
event of any d
discrepancy between the area an
nd the boundaries mentioned in
n a
conveyance dee
ed, the boundaries ordinarily prev
vail over the area specified there
ein
for the purpos
se of identifying and determin
ning the extent of the proper
rty
conveyed. Cons
sequently, the mere discrepancy
y in the area mentioned in the sa
ale
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RSA-4115-200
deed and the pl
(O&M) -19-
7(O&M)
aint does not, by itself, discredit
t the identity of the suit property
or
the title of Gahi
ia thereto.
26. Th
he learned 1st Appellate Court ha
as rightly held that the present su
uit
was not barred
d under Order II Rule 2 of the
e Code of Civil Procedure, 190
08,
inasmuch as t
the earlier Civil Suit No.68 o
of 1986 had been instituted f
for
permanent inju
unction, whereas the present suit
t was filed seeking possession
by
way of partitio
on along with permanent injun
nction. However, while passing
g a
preliminary de
ecree declaring the plaintiff en
ntitled to half share in the su
uit
st
arned 1 Appellate Court fell int
property, the lea
to error by completely overlooki
ng
the specific ob
bjection regarding non-joinder o
of necessary parties. Admitted
ly,
Gahia had two
o daughters, namely, Hashmat
and Niamat, who had also be
een
impleaded as pa
arties in Civil Suit No.514 of 198
86. Their entitlement to succeed
to
the estate of
Gahia was, therefore, required
d to be duly considered befo
ore
determining the
e respective shares of the parties
s and passing a preliminary decr
ree
for partition. A
As per the principles governing in
nheritance under Muslim Person
nal
Law, where a d
deceased leaves behind both son
ns and daughters, the daughters
do
not take their s
shares to the exclusion of the s
son; rather, the son and daughte
ers
inherit the resid
due in the ratio of 2:1, with the s
son receiving a share equivalent
to
that of two dau
ughters. Thus, the son also falls w
within the category of residuarie
es,
and the daug
ghters inherit alongside him
in the prescribed proportio
on.
Accordingly, th
he two daughters of Gahia, nam
mely, Hashmat and Niamat, we
ere
also entitled to
inherit the estate left behind b
by him and their respective shar
res
were required t
to be determined in accordance
e with the aforesaid principles
of
succession. The
e learned 1st Appellate Court, th
herefore, could not have proceed
ded
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RSA-598-1999
RSA-4115-200
to declare the
(O&M) -20-
7(O&M)
plaintiff entitled to half share
in the suit property without fi
rst
considering the
rights and shares of all the legal
l heirs of Gahia.
27. In
view of the aforesaid facts and
d circumstances, the judgment a
nd
st
1 Appellate Court is set aside a
decree dated 23
3.08.2006 passed by the learned
and
the matter is re
emanded back to decide the sam
me afresh in terms of observatio
ons
made by this C
Court in preceding paragraphs.
Consequently, RSA No.4115
of
2007 stands dis
sposed of in above terms.
28. In
view of the judgements passed
by the Hon'ble Supreme Court
in
Pankajakshi (D
Dead) through Legal Represen
ntatives and others v. Chandri
ika
and others (20
016) 6 SCC 157, Randhir Kaur
r v. Prithvi Pal Singh and othe
ers
(2019) 17 SCC
C 71 and Gurbachan Singh (d
dead) through LRs v. Gurchara
an
Singh (dead)th
hrough LRs and others , questio
ons of law are not required to
be
framed in seco
ond appeal before the Punjab
and Haryana High Court who
ose
jurisdiction is c
circumscribed by provisions of
f Section 41 of the Punjab Cou
rts
Act, 1918.
29. Mi
iscellaneous application(s), if an
y, also stand disposed of.
INDER SINGH GREWAL )
( AMARI
2026
November 04,
Pankaj*
JUDGE
Whether operative part of the ju
pronounced or full?
W
p
udgment is Full
T
f
The delay, if any, of the pronoun
full judgment and reasons thereo
ncement of
NA
f,
W
Whether speaking/reasoned
Yes
W
Whether reportable
No
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