Zoharbee vs. Imam Khan (D) Thr. Lrs .

2025 INSC 1245
REPORTABLE


IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION


CIVIL APPEAL NOS. 4516-4517 OF 2023




ZOHARBEE & ANR. … APPELLANT(S)



Versus



IMAM KHAN (D) THR.
LRS. & ORS. …RESPONDENT(S)




J U D G M E N T


SANJAY KAROL, J.

1. In these appeals, challenge is laid to final judgment and
st
order dated 1 March 2012 in Second Appeal No.435 of 2011
with Civil Application No.10306 of 2011 passed by the High
Court of Judicature at Bombay, Bench at Aurangabad whereby
the appellants assailed the order of the First Appellate Court in
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2025.10.16
18:04:24 IST
Reason:
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1 th
RCA No.87 of 2005 dated 4 March 2005, overturning the
2
findings of the Civil Court , was rejected.

2. The short conspectus of facts is that the appellant’s
husband namely Chand Khan passed away and now this litigation
pertains to the property he left behind, between his surviving
3
spouse namely Zoharbee and his brother i.e. Respondent Imam
4
Khan . The plot of land which is germane to the dispute is land
S.No.22/3 and 22/1 of Gut No. 107 and Gut No.126. It is the
plaintiff’s case that all the property left behind by the deceased
Chand Khan is matruka property and since he died issueless, as
th
per Mohammedan law the former would be entitled to 3/4 of the
th
total property and only the remaining 1/4 would fall in the rights
and entitlements of defendant no.1. On the other hand, the case
as per defendant no.1 is that the land bearing gut no.126 already
stood transferred to the third party in the lifetime of Chand Khan
by an Agreement to Sell dated November 1999 with defendant
no.2 and 3 namely , Pandit Fakirrao Bodkhe and Bhausaheb
Fakirrao Bodhke, and so the said property cannot be the point of
contention in the instant proceedings. In so far as the other piece
of land is concerned, it is contended that the same stood
transferred to the sole and exclusive ownership and possession of

1
District Judge, Aurangabad
2 nd
2 Jt. Civil Judge (J.D.) Aurangabad in RCS No.310/99
3
Hereinafter Defendant No.1
4
Hereinafter Plaintiff
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defendant no.1 many years prior to the death of Chand khan but
in the challenging circumstances of the latter’s continued illness,
the same was sold to one Ayub Khan who is defendant no.4 and
part consideration of such sale stood received in the life of Chand
Khan and the remaining, subsequently after his death. Therefore,
nothing remains to be partitioned in terms of matruka property.

3. The learned Civil Court agreed with the contentions of
defendant no.1 and partly decreed the plaintiff’s suit in so far as
the property sold to defendant no.4 is concerned for the reason
that he chose not to contest the suit in any way whatsoever and
did not file a written statement. Regarding the remaining
property, it was observed that the Agreement to Sell entered into
between the parties in the lifetime of Chand Khan stood duly
proved by way of examination of witnesses (defendant no.2 and
3) and, therefore, no property remained to be divided between the
successors in interest of the deceased. It was acknowledged that
the sale deed was executed by Zoharbee after Chand Khan had
died however the said fact was not treated as material in view of
the evidence presented.

4. The plaintiff, being aggrieved, filed the first appeal under
Section 96 of the Code of Civil Procedure. The First Appellate
th
Court vide judgment dated 30 June 2011 reversed the findings
of the Civil Court and held that the plaintiff’s suit was entirely
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maintainable. In other words, the plaintiff would be entitled to
th
3/4 of the total property in the name of the deceased. A further
reason for arriving at such a finding was that an Agreement to
Sell does not confer any right. The rights would stand vested with
the third party only upon the execution of the sale deed which
was done after his death. At the time of death therefor, the
property was still vested in Chand Khan.

5. In Second Appeal, by way of the impugned judgment, it is
recorded that no substantial question of law arises for
consideration. The learned Single Judge thereafter proceeds to
consider the contentions raised by either side which, for the
defendant no.1 are the points that were raised before the learned
Civil Court and on behalf of the plaintiff were those that were
raised before the First Appellate Court. Although we have some
reservations with the fact that the learned Single Judge proceeded
to examine the contentions on merit despite arriving at a finding
that no substantial question arose for consideration, we proceed
further. Suffice it only to say that when a Court is of the view that
no substantial question arise it has no choice but to dismiss, in
limine the appeal-but still has to give reasons therefor. [See: Surat
Singh (dead) v. Siri Bhagwan 2018 (4) SCC 562 and Hasmat Ali
v. Ameena Bibi & Ors. 2021 SCC Online SC 1142 ].
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6. Two issues arise for consideration one, whether the
agreement to sell in so far as one portion of the property would
be sufficient to exclude the same from the scope and expands of
matruka property to be partitioned at the time of his death and
second whether the properties of deceased Chand Khan qualify
as matruka properties within the meaning of Mohammedan law.

7. An agreement to sell does not confer any rights nor does it
vest any interest into the party that agrees thereby to buy a
particular property. This is a well acknowledged position in law.
In Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana ,
(2012) 1 SCC 656, the law was clarified as follows:

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‘conveys’ in Section 5 of the Transfer of Property
Act is used in the wider sense of conveying
ownership.

“ 10 . Protection provided under Section 53-A
of the Act to the proposed transferee is a shield
only against the transferor. It disentitles the
transferor from disturbing the possession of the
proposed transferee who is put in possession in
pursuance to such an agreement. It has nothing to
do with the ownership of the proposed transferor
who remains full owner of the property till it is
legally conveyed by executing a registered sale
deed in favour of the transferee. Such a right to
protect possession against the proposed vendor
cannot be pressed into service against a third
party.”

(emphasis supplied)
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Holding in Suraj Lamp (supra) was recently followed in
RBANMS Educational Institution v. B. Gunashekar , 2025
SCC OnLine SC 793.

8. In view of the above, the view taken by the First Appellate
Court and the High Court cannot be faulted with. The property
agreed to be sold was, at the relevant time still the property of
Chand Khan and therefore would be subject to division of
property as per the applicable law. In other words, said property
would form part of ‘ matruka ’ property which has been defined
by the Courts as under:
In Jamil Ahmad v. Vth ADJ, Moradabad , (2001) 8 SCC 599 :
“11. The property (both movable as well as immovable) left
by a deceased Muslim is called matruka . The scheme of
distribution of matruka among the heirs of a deceased
Muslim is that first that part of the matruka which is
covered by a will of the deceased, if there is a valid will
(subject to a maximum of 1/3rd of the
total matruka provided it is not in favour of an heir) will be
separated and given to the legatee. The balance
of matruka alone is distributable among the heirs and in the
proportion ordained under the Mohammedan law.
However, in regard to bhumiswami land the distribution
of matruka will be governed by Sections 169 and 171 of the
ZALR Act. Consequently the limitation placed under the
Mohammedan law that the bequest should not exceed 1/3rd
of the matruka of the deceased and it should not be in
favour of an heir, will not apply; so also classification of
heirs and the proportion in which they will
inherit matruka under the Mohammedan law is replaced
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with the provisions of Section 171 of the ZALR Act in
which a different order of succession is provided.”

(emphasis supplied)

A judgment of fairly recent vintage also refers to the
pronouncement above. In Trinity Infraventures Ltd. V. M.S.
Murthy, 2023 SCC OnLine SC 738, it was observed:
“93. Before we proceed further, it may be necessary to
decode certain words and expressions used in these
proceedings from the beginning. If not, they will continue
to haunt and frighten the reader. Therefore, a glossary is
presented as under:

9. Reference may also be made to John T Platts’ A Dictionary
5
of Urdu, Classical Hindi and English’ which defines ‘ matruka ’
as the estate of a deceased person. Also, as per the Rekhta
Dictionary, ‘ matruka ’ is a word of Arabic origin and means
“abandoned from his possession (property etc.) [,] left by
6
immigrants (property etc.) [,] inherited wealth and property etc. .
It is clear from the above that matruka property simply refers to
property left behind by deceased person and nothing more.
Regarding the devolution of matruka property, it has to be

5
Digital Dictionaries of South Asia, University of Chicago, See:
https://dsal.uchicago.edu/cgi-bin/app/platts_query.py?page=992
6
https://www.rekhtadictionary.com/meaning-of-matruuka
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observed that the Will is the first document that is to be satisfied
subject to the limits imposed by Muslim Law, namely, that it
cannot exceed one-third of the estate and cannot ordinarily be
made in favour of an heir without the consent of the other heirs,
and then whatever remains hereafter, is to be distributed strictly
as per the rules of intestate succession prescribed in Muslim Law.

10. Since the Agreement to Sell has no value in the eyes of
law, all the property that vested in Chand khan would become
matruka property. The next question then to be considered is as
to how the division thereof would take place.

11. In Mohammedan Law, the division of property is well
defined. The Holy Quran itself delineates how division of
property is to take place. Chapter IV, Verse 12 reads as under:
“And for you is half of what your wives leave if they have
no child. But if they have a child, for you is one fourth of
what they leave, after any bequest they [may have] made or
debt. And for the wives is one fourth if you leave no child.
But if you leave a child, then for them is an eighth of what
you leave, after any bequest you [may have] made or debt.
And if a man or woman leaves neither ascendants nor
descendants but has a brother or a sister, then for each one
of them is a sixth. But if they are more than two, they share
a third, after any bequest which was made or debt, as long
as there is no detriment [caused]. [This is] an ordinance from
7
Allah , and Allah is Knowing and Forbearing.”


7

https://legacy.quran.com/4/12#:~:text=And%20for%20you%20is%20half,may%20have%
5D%20made%20or%20debt.
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12. It would also be useful to, at this stage, refer to Mulla
8
Principles of Mahomedan Law which in this regard says as
follows:
“ §51. Heritable property There is no distinction in the
Mahomedan law of inheritance between movable and
immovable property or between ancestral and self-acquired
property.
…

A. THREE CLASSES OF HEIRS
§ 61. Classes of heirs There are there 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.
…
B. SHARERS
§ 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 entitles 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 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.





8 nd
22 Edition
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TABLE OF SHARES-SUNNI LAW

13. The first and foremost thing to be accomplished with the
estate of a deceased person is the payment for expenses, debts
and legacies. Thereafter, comes allotment of shares to such
relations who are entitled to a prescribed share. What follows is
that if any part of the estate remains, the same is divided among
the residuaries. Should there be a situation where there are no
sharers, the residuaries will come into the entirety of the
inheritance. It is further provided that if there are neither sharers
nor residuaries, ‘ distant kindred ’ shall be entitled to the same.

14. A perusal of the above extracted principles of Muslim Law
of inheritance depicts that the sharers are entitled to a prescribed
th
share of the inheritance and wife being a sharer is entitled to 1/8
the share but where there is no child or child of a son how low so
th
ever, the share to which the wife is entitled is 1/4 .

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15. Since the rules governing inheritance are clear and there is
no room for subjective analysis, the proportions assigned have to
be necessarily followed. The property in question is
unquestionably matruka property and so has to be distributed
amongst the survivors of Chand Khan, as per the principles laid
down in this regard. The Civil Court, therefore, clearly fell in
error taking into consideration an incomplete sale wherein the
sale deed had not been executed and excluding the said property
from the total that had to be divided. Additionally, we may also
observe that the defendant no.1, in executing the sale deed had
th
the right only to do so in respect of the 1/4 share that fell in her
share and not the entire property for the maxim governing such
transactions is nemo dat quod non habet which translates to no
one can transfer a better title onto another than what they
themselves have.

16. Consequent to the above discussion, it has to be held that
the First Appellate Court and the High Court took the correct
view in law. As such no interference is called for.

17. Before parting with the matter, we record our
dissatisfaction with the manner in which the judgment of the
learned Civil Court was translated into English. In matters of law,
words are of indispensable importance. Each word, every comma
has an impact on the overall understanding of the matter. Due
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care has to be taken to ensure that the true meaning and spirit of
the words in the original language are translated into English for
the Courts in appeal to comprehend what had transpired below.
Just recently, a Co-ordinate bench also highlighted similar
th
concern vide order dated 18 March 2025 in Chairman
Managing Committee & Anr v. Bhaveshkumar Manubhai
Parakhia & Anr . We may only underscore the observations made
therein.

18. Appeals are dismissed. No costs. Pending application(s),
if any, stands disposed of.


……………………………………J.
(SANJAY KAROL)



…………………………………….J.
(PRASHANT KUMAR MISHRA)

New Delhi;
October 16, 2025.




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