1. The property which is the subject matter of the suit to which this second appeal relates belonged to a certain Lal Mohamed who died in the year 1950 leaving behind him his widow Ashabi and his two grand-daughters, the plaintiff and the second defendant. Mahaboobbi, the mother of the plaintiff and defendant 2 predeceased Lal Mohamed. Ashabi made a gift of the properties of Lal Mohamed to her brother's son defendant 1 under two gift deeds Exhibits P-1 and P-2.
2. In the suit brought by her, the plaintiff claims that she was one of the heirs of Lal Mohamed and was entitled to 3/8 share in his properties. So she sought a decree for a declaration that she was the owner of that 3/8 share and for possession thereof. The suit was resisted by defendant 1 on the ground that Ashabi excluded the plaintiff and her sister from inheritance and that the gift deeds Exhibits P-1 and P-2 entitled defendant 1 to the whole of the suit property.
3. The contention that the plaintiff and defendant 2 did not inherit any share in the property of Lal Mohamed was repelled by both the courts and so, they made a decree in favour of the plaintiff for partition and possession of a 3/8 share in the property of Lal Mohamed.
3A. Defendant 1 appeals.
4. It is clear that there is no substance in this appeal. Lal Mohamed was governed by the Hanafi Law of inheritance. According to that Law of inheritance there are three classes of heirs namely, (1) sharers, (2) residuary and (3) distant Kindred. The first step in the distribution of the estate of a deceased Mohammedan governed by the Hanafi Law of inheritance is to allot to the class of sharers the shares to which they are entitled after payment of funeral expenses, debts and legacies. After such allotment the residue should be divided among the residuary if there be any. But if there are no residuary the residue left after satisfying the claims of shares returned to the sharers in proportion to their shares. This right of reverter is technically called 'return'.
5. But, to this rule that there shall be a return of the residue to the sharers, there is an exception and that exception is that neither the husband nor the wife is entitled to the return if there is any other heir belonging to any class as explained by Mulla in his book on Mohammedan Law. The original rule of inheritance was that the husband or the wife was not entitled to the return in any case, and not even if there be no other heir, and the surplus went to the Public Treasury. But an equitable practice has prevailed in modern times. That equitable practice has superseded the original rule, and so, even the husband or the wife becomes entitled to the return in default of other sharers or distant kindred. (See page 70, fifteenth edition).
6. However that may be, what is clear is that the rule that if there be no residuary, the residue reverts to the sharers is inapplicable where the husband or the wife is the sharer. That is the statement of the law in Mulla's book on Mohammedan Law in paragraph 66. And illustrations (s) and (t) which are to be found in that paragraph portray the effect of that rule--
'(s) Husband 1/2Daughter's son 1/2
Note-The daughter's son belongs to the class of distant kindred. The husband is not therefore entitled to the surplus by return and the same will go to the daughter's son the same will go to the daughter's son as a distant kinsman
(t) Wife 1/4Brother's daughter 3/4
Note--The brother's daughter belongs to the class of distant kindred. The surplus will therefore go to her as the wife is not entitled to the return.'
7. The second illustration is based on the enunciation made by the High Court of Calcutta in Koonari Bibi v. Dalim Bibi (1884) ILR 11 Cal 14 at p. 16 in which it was explained that under the Mohammedan Law a widow has no claim to the return or residue of her deceased husband's estate as against other heirs and that the distant kindred take the residue in preference to the widow. In the context of this discussion Macpherson, J. said this:--
'It is contended on the authority of the cases reported in 1 Sel Rep SDA 346 and (1878) ILR 3 Cal 702, that the widow is entitled to the 'return' and it is ingeniously argued that, as those who share in the 'return' take in preference to 'distant kindred', so the widow's claim must be preferred to that of the 'distant kindred.'
But we think that neither the cases cited nor the authorities go to this extent. What the cases decided was, that in the absence of other heirs (and 'distant kindred' are heirs) the widow is entitled to the 'return' as against the bat-ul-mal, or public treasury. And this is in accordance with authority.'
8. In paragraph 67 of Mulla's book there is an equally clear elucidation of the law. According to that elucidation, if the only sharer be a husband or wife, and there be no relation belonging to the class of residuary, the husband or wife will take his or her full share, and the remainder of the estate will be divided among distant kindred.
9. That being so, the contention of defendant 1 to the contrary was rightly dismissed by the courts below as unsupportable.
10. It is not disputed that, as a sharer Ashabi was entitled only to a fourth share, and so, the plaintiff and defendant 2 as distant kindred were each entitled to a 3/8 share in the property of Lal Mohammed and it is in respect of this 3/8 share that the courts below rightly made a decree in favour of the plaintiff.
11. So I dismiss this appeal.
12. No costs
14. Appeal dismissed.