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Sk. Akbar Ali and anr. Vs. Sk. Lokman and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 450 of 1970
Judge
Reported inAIR1973Ori129; 38(1972)CLT1301
ActsMohammedan Law; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantSk. Akbar Ali and anr.
RespondentSk. Lokman and ors.
Appellant AdvocateSk. Rahenoma and ;B.C. Das, Advs.
Respondent AdvocateB.K. Pal, ;B. Pal, ;A. Mohanty and ;R.N. Sinha, Advs. and Ors.
DispositionRevision dismissed
Excerpt:
.....by & subordinate court in the exercise of its revisional jurisdiction under section 115 of the code which, it is well settled, applies to cases involving questions of jurisdiction, i. 17 and 18 in like order and manner as descendants of nos. 12 and so on in like order. and urges that the above-mentioned two notes, properly read and construed, very clearly show that after no. that note clearly shows that after no. 17 and 18. in the like-alternate order as indicated in the table in nos. 18 is only to that effect and very clearly states that after no. 18, and so on in the like alternate order and manner. the heirs through the male line is a better designation than 'residuaries'.under the heading 'agnatic heirs',at page 391, it is stated that the agnatic heirs were the principal heirs..........of sk. lokman, opposite party no. 1, to be impleaded as the legal representative of deceased amina bibi, instead of the petitioners.2. the petitioners, defendant nos. 2 and 2 (ka) were allowed to be substituted as the legal representatives of deceased amina bibi, the original defendant no. 2 in the suit bv the trial court's order dated 26-6-1964. thereafter, sk. lokman, opposite party no. 1, filed petition to be substituted as the legal representative of the above-named amina bibi in place of the present petitioner. that petition was rejected by the court below on 15-11-1966. thereafter sk. lokman preferred civil revision no. 19 of 1967 in this court. this court allowed the said revision petition and set aside the order passed by the court below and remanded the case back to the.....
Judgment:
ORDER

S. Acharya, J.

1. Defendant Nos. 2 and 2 (Ka) have filed this revision petition against the order of the court below allowing the application of Sk. Lokman, opposite party No. 1, to be impleaded as the legal representative of deceased Amina Bibi, instead of the petitioners.

2. The petitioners, defendant Nos. 2 and 2 (ka) were allowed to be substituted as the legal representatives of deceased Amina Bibi, the original defendant No. 2 in the suit bv the trial Court's order dated 26-6-1964. Thereafter, Sk. Lokman, opposite party No. 1, filed petition to be substituted as the legal representative of the above-named Amina Bibi in place of the present petitioner. That petition was rejected by the Court below on 15-11-1966. Thereafter Sk. Lokman preferred Civil Revision No. 19 of 1967 in this court. This Court allowed the said revision petition and set aside the order passed by the court below and remanded the case back to the trial court for disposal in accordance with law with a direction to make an eauiry under Order 22. Rule 5, Civil P. C. as to whether the claim of Sk. Lokman opposite party No. 1, to be substituted as the legal representative of deceased Amina Bibi in place of the petitioners, was justified or not. The court below in accordance with the said direction heard the parties and by the impugned order passed on 7-9-1970 allowed the application of Sk. Lokman to be substituted as the legal representative of deceased Amina Bibi in place of the petitioners.

The court below on a consideration of the evidence on record and on hearing the counsel of the both the parties finds that Sk. Lokman is the father's brother's son's son of deceased Amina Bibi and defendants Nos. 2 and 2 (Ka), the present petitioners, are the sister's children of Amina Bibi. The court below finds that the genealogical table filed by opposite party No. 1 has not been challenged by the petitioners, and on a consideration of the evidence and materials on record it finds the same to be correct so far as it relates to the Petitioners and opposite party No. 1.

3. The said table is given below.

Sk. Bano

|

------------------------------------------------

| |

Sk. Elahi Bux Sk. Ismall

| |

------------------------------------- |

| | |

Amina Bibi Saliman |

(deceased D.2) | |

=Sk. Alim ------------------ |

| | |

Jalikha Bibi Sk. Akbar Ali |

D.2 (Ka) (D.2) |

(petitioners in this Civil Revision.) |

|

---------------------------------------------------------

| | | | | |

Fallan Bibi Tarikan Bibi Sk. Hafizullah Kasina Janat Bibi Aliman Bibi

|

Sk. Soleman

|

Sk. Lokman

(opp. party no.1 in

his Civil Revision)

4. Mr. Rahenoma, the learned counsel for the petitioners, at the outset challenged the correctness of the finding of fact of the Court below that Sk. Elahi Bux and Sk. Ismail in the said genealogical table were two brothers. The said finding was challenged mostly on the ground of improper and incorrect appreciation of the evidence on record. That finding being a finding of fact cannot be challenged in this revision on the ground of misappreciation or erroneous appreciation of the evidence on record, as that does not amount to exercising jurisdiction illegally or with material irregularity, and would not furnish a ground for interference under Section 115, Civil P. C. It has been held by their Lordships of the Supreme Court in the case in AIR 1964 SC 1336:

'It is not open to the High Court to question the findings of fact recorded by & subordinate Court in the exercise of its revisional jurisdiction under Section 115 of the Code which, it is well settled, applies to cases involving questions of jurisdiction, i. e. questions regarding the irregular exercise or non-exercise of jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved.'

Moreover, on a perusal of the impugned order I find that the above-mentioned finding of fact has been arrived at on cogent and convincing consideration of the relevant evidence on record. Accordingly, the aforesaid finding of fact cannot be interfered with on any consideration.

5. The next and the most important question to be decided in this revision is whether Sk. Lokman, opposite party No. 1 in this revision, is a residuary of deceased Amina Bibi fas asserted by the counsel appearing for opposite party No. 1) or whether the petitioners and opposite party No. 1 are all related to Amina Bibi as her distant kindred, and the petitioners being nearer relations of deceased Amina Bibi they are entitled to be substituted in reference to Sk. Lokman fas asserted by the counsel appearing for the petitioners).

6. It is admitted by the counsel appearing for both the parties that the parties are governed by the Sunni School of Mohammedan Law. Undisputedly, if Sk. Lokman, opposite party No. 1, is a residuary of deceased Amina Bibi, then in his presence defendant Nos. 2 and 2 (Ka), the petitioners in this revision, who admittedly are the distant, kindred, cannot be substituted in place of the deceased. On the other hand if Sk. Lokman is not a residuary but is a distant kindred of the deceased, then the nearer in degree to the deceased amongst them would be substituted, it being one of the rules of succession in Mohammedan Law that the nearer in the line of succession excludes the more remote.

7. A table of residuaries in order of succession is given at page 64-A in Mulla's 'Principles of Mohammedan Law' (seventeenth edition). With reference to the said table it has at first to be ascertained if Sk. Lokman is a residuary or not. On the evidence on record it has been established that Sk. Lokman is the full paternal uncle's son's son's son. The full paternal uncle's son's son is in No. 17 of class IV of the said table and after him comes the consanguine paternal uncle s son's son in No. 18 of that class. Below No. 18 the note appended is as follows :

'Then come remoter male descendants of Nos. 17 and 18 in like order and manner as descendants of Nos. 11 and 12.'

The note appended below Nos. 11 and 12 in class II in the said table is as follows:

'Then come remoter male descendants of No. 11 and No. 12, that is, the son of No. 11, then the son of No. 12, then the son's son of No. 11, then the son's son of No. 12 and so on in like order.'

8. It is urged by Rahenoma, that the above-mentioned notes in the said table show that after No. 18 in the said list only the descendants of Nos. 11 and 12 will alternately succeed to the inheritance in the manner and order set forth therein and not the descendants of Nos. 17 & 18 in class IV. According to Mr. Rahenoma after No. 18 in the said table the next man to succeed as No. 19 is the full brother's son's son's son and not the full paternal uncle's son's son's son.

Mr. Pal, the learned counsel for opposite party No. 1, repels the above submission of Mr. Rahenoma. and urges that the above-mentioned two notes, properly read and construed, very clearly show that after No. 18 in the said table only the descendants of Nos. 17 and 18 would succeed to the inheritance alternately in the manner and on the consideration indicated in Nos. 9 to 18 of the said table. According to Mr. Pal, after No. 18 comes the full paternal uncle's son's son's son as No. 19, and thereafter comes the consanguine paternal uncle's son's son's son in No. 20. On hearing the counsel for both the parties and going through this particular topic in the different text books on Mohammedan Law and on a careful perusal of the said table of residuaries, I am convinced that Mr. Rahenoma's submissions in this connection are not at all tenable, whereas Mr. Pal's above-mentioned contention is acceptable and correct.

9. If Mr. Rahenoma's above-mentioned contention is accepted that would mean that immediately after No. 12 in Class III of the said table the full paternal uncle in No. 13 of Class IV would succeed, to the exclusion of all the other remoter male descendants of Nos. 11 and 12. because, according to Mr. Rahenoma. they (the descendants of Nos. 11 and 12) would come only after No. 18 in Class IV. If that position is accepted, the note appended below No. 12 in class III is completely rendered nugatory and the same has to be discarded as incorrectly incorporated at that place and should be treated as non-existent in that table. Mr. Rahenoma does not make any submission to that effect and I do not see any reason to discard that note as incorrect. That note clearly shows that after No. 12 come the remoter male descendants of Nos. 11 and 12, that is, the son of No. 11. then the son of No. 12. then the son's son of No. 11 and then the son's son of No. 12 and so on in that alternate order, how low soever, till that line of succession in class III exists and continues. Only after the extinction of that line the residuaries in class IV would succeed to the inheritance. On this consideration alone it becomes quite evident that after No. 18 in class IV. the remoter male descendants only of Nos. 17 and 18. in the like-alternate order as indicated in the table in Nos. 9 to 18 will follow. The note appended below No. 18 is only to that effect and very clearly states that after No. 18 come the remoter male descendants of Nos. 17 and 18. i. e. the son of No. 17, then the son of No. 18, then the son's son of No. 17. then the son's son of No. 18, and so on in the like alternate order and manner. So Sk. Lokman being the full paternal uncle's son's son's son of the deceased, i. e. he being the son of No. 17, comes in No. 19 in the said table.

My above conclusion is reinforced by the diagram affixed in between page 414 and 415 in Fyzee's book titled 'Outlines of Mohammedan Law' (3rd edition). The two tables of Residuaries. one given at pages 386 and 387 in Verma's book on 'Mohammedan Law' and the other in Article 712 at pages 830 and 831 in Tyabji's book on 'Mohammedan Law' also indicate the same thing and lend confirmation to my above-mentioned conclusion.

10. Moreover, Sk. Lokman is related to the deceased only through males, whereas the petitioners are related to her through her sister. The sister's sons or daughters do not have a place in the table of residuaries, and Mr. Rahenoma admits that the petitioner being deceased Amina Bibi's sister's children, they are not her residuaries but are her distant kindred.

Fyzee, in Article 89 of his abovenamed book, writes that the term 'Agnatic Heirs' i. e. the heirs through the male line is a better designation than 'Residuaries'. Under the heading 'Agnatic Heirs', at page 391, it is stated that the Agnatic Heirs were the principal heirs before Islam; they continue to remain in Sunnite Law the Principal heirs, provided always that the claims of near relations mentioned in the Koran as the Koranic Heirs (called 'Sharers'), are satisfied by giving to each of them a specified portion of the property' left by the deceased. In the discussion under that heading 'Asnatic Heirs', at page 392, it is stated that the right of inheritance lay with the family as a whole, and when there was no heir, the estate was taken by those male relations who were called 'asabat' a word which primarily means 'those who so to battle together and have a common blood-feud'. If the class called 'asabat' in Mohammedan Law is examined it will be found to contain (i) all male agnates and (ii) four specified female agnates introduced by the Holy Korans (daughter, son's daughter how low soever, full sister and consanguine sister). As Sk. Lokman without doubt is an 'Agnatic Heir', he, on the above consideration, also becomes a residuary. On this and my above find-ins that Sk. Lokman has a place in the said table of residuaries I hold that Mr. Pel's contention in this connection is perfectly correct.

11. Mulla in Chapter VII of his book on Mohammedan Law says:

'The first step in the distribution of the estate of a deceased Mohammedan, after payment of his funeral expenses, debts, and legacies, is to allot their respective shares to such of the relations as belong to the class of sharers, and are entitled to a share. The next step is to divide the residue (if any) among such of the residuaries as are entitled to the residue. If there are no sharers, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto. The distant kindred are not entitled to succeed so long as there is any heir belonging to the class of sharers or residuaries. But there is one case in which the distant kindred will inherit with a sharer, and that is where the sharer is the wife or husband of the deceased.'

The petitioners are admittedly distant kindred, and Sk. Lokman, opposite party No, 1, as found above, is a Residuary, and so the petitioners are not entitled to succeed to the deceased in the presence of Sk. Lokman.

On the above consideration I find that the order passed by the Court below is correct and I see no reason to interfere with the same.

There is therefore no merit in this revision which is hereby dismissed with costs.


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