REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   7237   OF 2010 [Arising out of SLP(C) Nos. 5344 of 2006]

 Smt. Ajambi (Dead) By Lrs. .. Appellant

Versus

Roshanbi  and Ors.  

    ..  

Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.                     

1. Leave granted.

2. This Special Leave Petition is directed against the judgment  

and  order  dated  16.11.2005  passed  by  the  High  Court  of  

Karnataka  allowing  the  appeal  filed  by  the  respondents  herein  

whereby the High Court has restored the judgment and decree of  

the  trial  court.  The  respondents  Nos.  1  to  8  were  the  plaintiffs  

before the trial Court and Usmansab Shaikaji Attar was the original  

defendant  

in  the  

suit  

which  

was  filed  

seeking  a  

decree  for  

partition  

and separate possession of alleged 7/8th share in the suit property  

bearing  CTS  No.  883/A  and  883/B,  situated  at  Aralikatti  

Deshpande  Galli,  Belgaum.    It  was  stated  in  the  plaint  that  

Shaikaji  Attar,  the  father  of  the  respondents  and  the  original  

defendant had two wives, namely Halimabi and Roshanbi who was  

the plaintiff No. 1.

3. It was submitted in the plaint that Shaikaji Attar died in or  

around 1969 leaving behind his second wife Roshanbi, i.e. plaintiff  

No. 1, six sons i.e. plaintiff Nos. 2 to 6. and defendant No. 1 and  

two daughters i.e. plaintiff Nos. 7 and 8 and heir of pre-deceased  

son Umarsab.     

4. In  

the  said  

suit,  the  

parties  

led  

evidence.  

The  

plaintiff  

No.  2  was  examined  as  PW-1  and  the  original  defendant  was  

examined  as  DW-1.   Both  the  plaintiffs-respondents  and  the  

original  defendant  also  produced  certain  documents  which  were  

exhibited in the suit.  The trial Court by its judgment and decree  

dated 27.7.1988 decreed the suit of the plaintiff by awarding 1/8th  

share to the plaintiffs 1 to 6 and 1/16th share to plaintiffs 7 and 8

in the suit property and also 1/8th share in favour of the defendant.

5. Being aggrieved by the aforesaid judgment and decree of the  

trial Court, the original defendant Usmansab Shaikaji Attar filed a  

regular  appeal  before  the  Court  of  Civil  Judge,  Belgaum,  

Karnataka.    During  the  pendency  of  the  aforesaid  appeal,  the  

original  defendant produced some additional  documents,  namely  

the  

alleged  

memorandum of partition by way of additional evidence.

6. The First Appellate Court by its judgment and decree  dated  

13.11.1995, dismissed the appeal filed by the original defendant.   

7.  Being aggrieved, the original defendant filed a second appeal  

before the High Court of Karnataka which was registered as RSA

No.  299 of  1996.    The High Court  by its  judgment and decree  

dated 17.9.1998 allowed the appeal and remanded the matter to  

the  first  Appellate  Court  for  fresh  disposal  with  a  direction  to  

receive documentary evidence produced before it by the defendant  

by way of additional evidence.

8. During the pendency of the aforesaid second appeal before the  

High  

Court  

after  

remand,  

the  

original  

defendant  

Usmansab died on 7.4.1996.  The said defendant left behind his  

wife Ajambi and she was brought on record as the legal heir of the  

original defendant.  The First Appellate Court thereafter examined  

Ajambi as AW-1 who was allowed to lead additional evidence and  

she got the documents  exhibited as exhibit  (Ex.)  D-7 and D-10,  

which were received as additional documents.   The plaintiff No. 2

was examined as RW-1.     

9. Thereafter,  the  Additional  Civil  Judge  (Senior  Division)  

Belgaum by a  judgment  and decree  dated  1.4.2000 allowed  the  

appeal filed by the original defendant, set aside the judgment and  

decree of the trial court, and consequently dismissed the suit filed  

by the plaintiffs holding that the additional documents which are  

produced  

and  

exhibited  

as Ex.  D-

7  were  

executed  

by  the  

predecessor-in-interest,  namely  Shri  Shaikaji  during  his  lifetime  

and he  disposed  of  the  property  as per  his  Will  by  dividing  the  

property into two parts as claimed by the defendant.    

10.  The  first  Appellate  Court  also  held  that  in  view  of  the  

pleadings, the documents exhibited as Ex. D-7 is proved, and it is  

established in terms thereof that there were two divisions effected

to  the  suit  property.  In  arriving  at  this  conclusion,  the  first  

Appellate Court also took note of the fact that the names of the  

persons who were  enjoying the aforesaid  two divisions had been  

entered into relevant records concerning the property and the said  

entries  had  not  been  challenged  by  the  plaintiff.  In  conjunction  

with the aforementioned facts, since the parties were paying tax to  

the extent  

of  their  

property  

only,  it  

was  held  

that there  

was  a  

prior  

partition  

between the parties and therefore the claim of the plaintiffs was not  

tenable.  Consequently,  the appeal  was allowed and the suit  was  

dismissed.

11. Being aggrieved by the said judgment and decree, an appeal  

was  filed  by  the  respondents  herein  and  the  plaintiffs  in  the

original  suit  before  the  High  Court  of  Karnataka  which  was  

registered as RSA No. 578 of 2000.

12. The High Court by its impugned judgment and decree dated  

16.11.2005  allowed  the  appeal  and set  aside  the  judgment  and  

decree of the first appellate court.   In the aforesaid judgment and  

decree, the High Court held that although the document Ex. D-7,  

which  

was  

executed  

in  1958,  

indicates  

that some  

of  the  

properties  

have  been  shown to  have  been  earmarked  and  assigned  to  the  

plaintiffs  and  the  defendants,  the  same  cannot  be  treated  as  a  

partition  deed  since  it  is  not  registered.    It  was  held  that  a  

partition deed is to be compulsorily registered and since Ex. D-7 is  

not  a  registered  document,  it  could  not  be  relied  upon.  

Furthermore,  the High Court took note of the fact that while the

suit was filed in the year 1985, the aforesaid documents came to be  

produced in the year 1994 at the appellate stage after suffering a  

decree  before the trial Court and the same came to be produced  

nearly after eleven years.  

13. It  was also noted that Shaikaji,  predecessor-in-interest,  had  

allegedly  created the document exhibited as Ex. D-7 died in the  

year  

1969,  

while  the  

entries  in  

the  CTS  

register  

came  to  

be  made  

only in the year 1979. The High Court observed that if the 1958  

partition had really been acted upon as per Ex. D-7 immediately  

after the death of Shaikaji, the said entries would have been made  

within a reasonable time and they would not have waited upto the  

year 1979, when such entries came to be made.

14. The High Court, therefore, held that Ext. D-7 cannot be acted

and relied upon for the purpose of establishing a prior partition of  

the suit property.  Consequently,  the appeal was allowed and the  

judgment and decree of the first appellate court was set aside.

15. Being  aggrieved  by  the  judgment  and  decree,  the  present  

appeal was filed in this Court by Smt. Munira, alleged to be the  

wife  of  Kesarkhan Pathan, claiming herself  to  be the beneficiary  

under the  

Will  

executed  

by Ajambi  

during  

her  

lifetime.  

Smt.  

Munira claims that Ajambi had bequeathed the property under the  

Will in favour of Smt. Munira who is allegedly Ajambi’s brother-in-

law’s daughter.

16. The said Will was purportedly executed on 20.8.2001 and the  

came to be registered in the office of the Sub-Registrar Belgaum on  

29.8.2001.    Through  the  aforesaid  Will,  Ajambi  allegedly

bequeathed  her  property  CTS  No.  883/A  measuring  66.61  sq.  

meters  to  the  legatee  Smt.  Munira,  wife  of  Kesarkhan  Pathan  

claiming under title to the aforesaid portion of the property. Smt.  

Munira filed the aforesaid appeal  before  this Court alongwith an  

application  praying  for  bringing  on  record  Munira  as  the  legal  

representative of the deceased Smt. Ajambi.   

17. On  

presentation of the appeal by her, the same was registered and the  

application was registered as interlocutory application which came  

up for consideration before this Court.   An order was passed on  

3.4.2006  whereby  the  interlocutory  application  was  allowed  and  

notice was directed to be issued on the special leave petition and  

also on the prayer for interim relief.

18. The  interlocutory  application  filed  by  the  appellant  was  

allowed by this Court but on perusal of the record, we find that the  

said order was passed ex-parte and before issuance of notice to the  

respondent.  The  right  to  be  impleaded  as  a  party  in  an  appeal  

could be questioned and challenged and such right to challenge the  

locus cannot be taken away from the respondents herein without  

giving  

them  an  

opportunity  of  hearing.   Therefore,  although  the  aforesaid  

application  was  allowed,  the  same  was  always  subject  to  any  

objection  that  is  raised  by  the  respondents  herein.  In  fact,  the  

respondents  had  raised  such  an  issue  immediately  upon  

appearance. Therefore, the aforesaid issue is required to be decided  

as the same is a disputed question of fact.

19. The respondents having been served in the said appeal, they  

entered appearance and filed a counter affidavit which is sworn by  

Smt. Roshanbi who was the second wife of late Shaikaji Attar.   In  

the said counter affidavit, she has stated that in the special leave  

petition, there is a mention of the purported Will allegedly executed  

during the pendency of the second appeal and that she challenges  

the  

validity  

and  

legality  of  

the  

aforesaid  

Will.  She  

has  also  

contended that the said purported Will has not been probated. She  

has  also  stated  in  the  said  counter  affidavit  that  the  purported  

executant  has  no  absolute  right  to  execute  the  aforesaid  Will  

pending litigation. It has been contended that Smt. Munira cannot  

claim  the  property  through  the  purported  Will  of  the  first  wife,  

allegedly dated 20.8.2001, claiming herself  to be brother in law’s

daughter and that she has no legal right to the property nor any  

right to file the appeal before the High Court.

20. When the suit was taken up for hearing, the counsel for the  

respondent took up the plea that the aforesaid Will propounded by  

Smt.  Munira  has  not  been  probated  and  that  the  said  Will  is  

neither  genuine  nor  valid.    It  is  also  alleged  that  under  the  

Mahomedan  Law,  no  claim  for  inheritance  of  the  property  of  a  

deceased widow could be claimed through an alleged Will which is  

not proved and even if such Will is found to be legal and valid, such  

person  would  be  entitled  to  only  1/3rd of  the  property  and  the  

remaining  2/3rd to  be  given  to  the  actual  heirs  of  the  family.  

Reference  was also made to Mulla,  an authority on Mahomedan

law, in Chapter IX – “Wills”, at paragraphs 118 and 131 of the said  

treatise, wherein it is laid down that under a will only 1/3rd of the  

net estate could be bequeathed and that the remaining part of the  

net  estate  would  be  inherited  by  the  legal  heirs  and  legal  

representatives.

21. This Court in the case of Abdul Rahim & Ors. Vs. Sk. Abdul  

Zabar  &  

Ors.  

reported  

in  (2009)  

6  SCC  

160 held  

thus: -

“15. We may notice the definition of gift as contained in   various  textbooks.  In  Mulla’s  Principles  of   Mohammadan Law the “hiba” is defined as a transfer  of property made immediately without any exchange by  one person to another and accepted by or on behalf of   later  (sic  latter).  A.A.A.  Fyzee  in  his  Outlines  of   Muhammadan  Law  defined  “gift”  in  the  following  terms: “A MAN may lawfully make a gift  of  his property to  another during his lifetime; or he may give it away to  someone after  his death by will.  The  first is called a  disposition  inter  vivos;  the  second,  a  testamentary  disposition.  Muhammadan  law permits  both kinds of   transfers;  but  while  a  disposition  inter  vivos  is  unfettered as to quantum, a testamentary disposition is  limited to one-third of the net estate. Muhammadan law  allows a man to give away the whole of  his property

during  his  lifetime,  but  only  one-third  of  it  can  be  bequeathed by will.”…”

22. The  learned  Counsel  appearing  for  the  parties  made  their  

arguments on the merit of their claims of the respective parties, but  

we  are  of  the  considered  opinion  that  before  we  can  address  

ourselves on the merit of the claims of the parties and determine  

the  respective  shares,  it  would  be  necessary  to  determine  as  to  

whether  

or not the  

aforesaid  

purported  

Will  

propounded  by the present  appellant herein  is a legal  and valid  

document in the eyes of law and if so, to what right, if any, the  

appellant is entitled to in the said property.

23In  the  interlocutory  application,  the  present  appellant  

had stated that she would be entitled to claim on the  

basis of the Will, the property being CTS No. 883/A

measuring 66.61 sq. meters.   The following sentence  

of the application being relevant is extracted below:-

24

“4. It is submitted that Ajambi during her life time  executed a ‘Will’  in favour  of  her brother-in-law’s  daughter namely, Smt. Munira Wife of  Kesarkhan  Pathan  on  20.8.2001  and  it  came  to  be  duly  registered  in  the  office  of  the  Sub-Registrar,   Belgaum on 29.8.2001.   By the said Will, Ajambi  

bequeathed  her  property  C.T.S.  No.  883/A  measuring  66.61  sq.  meters  to  the  legatee Smt.  Munira  W/o  Kesarkhan  Pathan.    Thus  Smt.   Munira  became  the  absolute  owner  of  property  C.T.S.  No.  883/A  of  Aralikatti Deshoande  Galli,  Belgaum.”

24. Therefore,  it is established from the record that her claim is  

restricted  on the basis of  the purported Will  to the property  No.

C.T.S. 883/A measuring 66.61 sq. meters only wherein she claimed  

to be the absolute owner.   In case the Will propounded by her is  

found to be not genuine and valid, in that case her entire claim will  

have to be rejected and the aforesaid property i.e. C.T.S. No. 883/A  

would  revert  back  to  the  actual  owners  namely  the  present  

respondents.   If, however, the aforesaid Will is found to be legal  

and valid,  

even  in  

that event  

and  as  

per  the  

pleadings  

and  the  

contentions of the respondents, she may not be entitled to more  

than 1/3rd of the said property namely C.T.S. No. 883/A.

25. These are the events which have arisen after delivery of the  

judgment  by  the  High  Court.   Therefore,  two  issues  arise  for  

consideration at this stage,  which are required  to be determined  

and  decided  prior  to  entering  into  the  respective  claims  of  the

parties.

26. The first issue is as to whether the Will propounded by the  

appellant herein namely Smt. Munira, wife  of Kesarkhan Pathan  

allegedly executed on 20.8.2001 and registered in the Office of the  

sub-Registrar on 29.8.2001, is a legal and valid document in the  

eyes of law.

27. If  

the  

aforesaid  

issue  is  

answered  

in  favour  

of  the  

appellant  

Smt. Munira, the further question that is to be determined is as to  

whether the appellant herein on the basis of the aforesaid Will is  

entitled only to 1/3rd of the said area in terms of the Rules and  

Principles of Mahomedan Law.

28. Along with the said issues which need to be determined and

answered, in our estimation, there is another issue which arises for  

consideration, which is as to whether the appellant could claim to  

be a legal representative. Out of the said three issues raised herein,  

in so far as the question of entitlement of the appellant’s share is  

concerned, the same appears to be a question of law as it forms a  

part  of  the  principles  of  Mahomedan  Law.  There  are  also  some  

decisions  

of  the  

Supreme  

Court  

touching  

upon  the  

said  

issue.  

But  the  

other two issues, namely, the status of the appellant and whether  

she would claim to be a legal representative along with the question  

as to whether  the will  propounded by the appellant is legal  and  

valid  and how far  the  same  could  be  relied  upon,  are  disputed  

questions of fact which are required to be determined by the court  

more  appropriately  by  resorting  to  the  provisions  of  Order  XXII

Rule 5 of the Code of Civil Procedure, 1908 [for short “CPC”]. The  

said two issues being questions of fact, the parties must be allowed  

to lay their evidence in support of their respective  cases.  In that  

view of the matter we consider it necessary to issue a direction in  

the present case to the aforesaid extent in terms of the provisions  

of Order XXII Rule 5 CPC.  

29. The  

decision  

to  act  on  

the  basis  

of  Order  

XXII  Rule  

5  has  

been  

taken in consideration of the proposition laid down by this Court in  

the  case  of  Kanhiya Singh Santok Singh and Ors.  Vs.  Kartar  

Singh reported in (2009) 5 SCC 155, in which the Supreme Court  

has held thus:  

“17.  ……The  High  Court  had  overlooked  this  disputed question of fact and held that the three sons  had separate business for which they could not fall   under the category of “tenant” under the provisions of  

the Act. Furthermore, this question of fact cannot be   decided  without  permitting  the  parties  to  lead  evidence  in  respect  of  their  respective  cases  and  without coming to a finding on such question of fact  by the court.”

In paragraph 19, this Court held thus:

“19. Thus considering the ambiguous position regarding  the status  of  the  appellants relating  to  their  status as  tenants, it was necessary for the High Court to remit the  

matter to the trial court for a proper determination of the  factual  aspects  whether  the  appellants  were  in  fact  carrying on business with late Santok Singh at the time of   his death by taking evidence and thereafter, come to a  finding whether the appellants shall be brought on record  in the second appeal as the legal representatives of late   Santok Singh.”

30. We accordingly direct the trial court to take evidence in the  

manner indicated above on the two issues, namely: -

(1)  Whether  the  appellant  could  claim  to  be  a  legal  representative?  

And  

(2)  Whether  or  not  the  will  propounded  by  the  appellant  herein, namely, Smt. Munira, wife of Kesarkhan Pathan, allegedly  executed  on  20.8.2001  and  registered  in  the  Office  of  the  sub- Registrar on 29.8.2001 is a legal and valid document in the eyes of  law?

31. After completion of the recording of the said evidence,  both  

documentary and oral, brought on record by the parties, the trial  

court shall record the finding on the status of the appellant and as  

to whether the Will propounded is legal and valid and how far the  

same could be relied  upon. The trial  court  shall  thereafter  send  

back  to  this  Court  the  records  with  findings  and  evidence  that  

might be  adduced  and already  on record.  The aforesaid process

shall be completed within a period of four months from the date of  

receipt of the record from this Court and on completion thereof, the  

trial  court  shall  transmit  the  entire  records  with the findings in  

terms of  this  order  to  this  Court,  upon which,  the  appeal  shall  

again be listed for hearing for further determination and orders. Let  

the original records be sent back to the trial court immediately.

…… …….…… ………… ………J.

(Dr.  

Mukundakam Sharma)

…….…………………………...J. (Anil R. Dave)  

New Delhi, August 30, 2010.