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PETITIONER: ILLAHI SHAMSUDDIN

       Vs.

RESPONDENT: JAITUNBI MAKBUL

DATE OF JUDGMENT14/07/1994

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SAHAI, R.M. (J)

CITATION:  1994 SCC  (5) 476        JT 1994 (4)   371  1994 SCALE  (3)254

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by KULDIP  SINGH,  J.Rajubai  was the owner  of  the  house  in dispute.  Jaitunbi, respondent in the appeal herein, is  her daughter.   Shamsuddin,  the appellant, is the  grandson  of Rajubai from another daughter Mehamunisa who died near about 1933-34.   Rajubai died on 7-6-1975.  Jaitunbi instituted  a suit  for  a declaration and possession to the  effect  that she,  "being  a sharer" (Class I heir) under  the  Mahomedan law,  was  entitled to inherit the house in dispute  to  the exclusion  of  the respondent who was  a  "distant  kindred" (Class III heir).  The trial court dismissed the suit.   The lower  appellate  court reversed the judgment of  the  trial court  and decreed the suit.  The High Court  dismissed  the second  appeal  in  limine.  This appeal  by  Shamsuddin  is against the judgment and decree of the lower appellate court as upheld by the High Court. 2.  The  lower appellate court reversed the finding  of  the trial court on the question of inheritance on the  following reasoning :               "The  perusal  of the said  classification  of               heirs  makes it amply clear that the  original               plaintiff/the  appellant is the only  Class  I               heir of the said Smt Rajubai Dadu Pinjare.  It               further  makes  it  crystal  clear  that   the               original  defendant/the respondent is a  Class               III  heir  of the said  Smt  Rajubai  Pinjare.               Once  this position is accepted as correct  as               per  the principle of Mahomedan law then I  am               required  to see as to how the  allocation  of                             shares  takes  place.   In  this  respect   th e               commentary at page +    From  the  Judgment and Order dated  27-7-1990  of  the Bombay High Court in S.A. No. 317 of 1990 477

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             253 as mentioned in the above-mentioned books,               makes it  amply clear that the heirs of  Class               I  and  Class 11 are to inherit  together  the               estate  of a deceased Mahomedan.   It  further               makes it amply clear that if Class I and Class               11  heirs are in existence then the Class  III               heirs  of  a  deceased  Mahomedan  are  wholly               excluded.   If  this principle is  taken  into               consideration  then it has to be said  in  the               instant  case that the original  defendant/the               respondent has no locus standi to inherit  the               suit  property  belonging  to  the  said   Smt               Rajubai Pinjare." 3.  Learned counsel for the respondent has further  assisted us  on the subject of inheritance under the  Mahomedan  Law. According to him, the respondent being the daughter and only Class I heir, she is entitled to onehalf of the property  as her  fixed  share.   He further contended that  there  is  a provision under the Mahomedan law of inheritance called "the return".   The effect of this principle is that where  there are  no "residuaries" (Class 11 heirs), the surplus  of  the shares of the "sharers" (Class I heir) reverts to them.  The precise  contention  of  the learned counsel  was  that  the respondent  being  the  only "sharer"  and  there  being  no "residuaries",  the other one-half share would  also  revert back  to her and, as such, she is entitled to inherit  whole of  the property left by Rajubai.  There is plausibility  in the  argument  but in the view we propose to  take  in  this case, it is not necessary for us to go into the same. 4.  We  may  examine the dispute between  the  parties  from another angle.  The house in dispute consists of the  ground floor  and the first floor.  It was pleaded in  the  written statement filed by the appellant before the trial court that after  the death of his mother in the year 1933-34,  he  was brought  up by Rajubai as her son.  He further pleaded  that about  30 years back the first floor of the house was  given to  Jaitunbi  and  the  ground  floor  was  given  to   him. According  to him, the respondent along with her  five  sons have  throughout  been residing on the first floor  and  the appellant on the ground floor.  The electric connections and the  water  meters  of both the portions of  the  house  are separate.  The lower appellate court noticed these facts  in the following words :               "He  submitted  that as the said  Smt  Rajubai               Pinjare was not having a son, she had  brought               up  the original defendant/the  respondent  as               her  son.   It has been alleged  that  he  was               looking after the said Smt Rajubai Pinjare and               the  property  till  her  death.   He  further               submitted  that he is residing in  the  entire               ground  floor of the said house.   He  further               submitted  that  the  original   plaintiff/the                             appellant is residing on the first floor of th e               said house along with her 5 sons.  It has been               further   alleged  by  him  that  during   the               lifetime of the said Smt Rajubai Pinjare,  she               had given the first floor of the suit house to               the original plaintiff/the respondent.  He has               further alleged that since that time they  are               enjoying the suit property accordingly.   Thus               he  alleged  that  the suit  of  the  original               plaintiff/the  appellant is false and as  such               it deserves to be dismissed with costs." 478

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5.  After the death of Rajubai, the City Survey Officer,  by his  order  dated  11-12-1975  entered  the  names  of   the appellant and respondent both as holders of the property  in dispute.  The mutation was done in favour of the two parties in  respect  of  the  portions  of  the  house  under  their possession.  The appeal filed by Jaitunbi against the  order of  the  City  Survey  Officer was  dismissed  by  the  Sub- Divisional  Officer,  Kolhapur by his order  dated  7-7-1980 with the following observations :               "Therefore  in  a  summary  inquiry  the  City               Survey  Officer was justified in passing  this               order when the respondent was proved to be the               son  of  Rajubai’s daughter and  was  also  in               possession   with  separate  electric   meters               standing  in  the name of both  appellant  and               respondent.   The appellant may get her  right               under  the  Mahomedan Law established  in  the               civil court." 6.The above-mentioned facts pleaded by the appellant in  the written   statement  have  not  been  controverted  by   the respondent.   In the rejoinder dated 8-1-1991 filed  by  the appellant in this Court he has mentioned his age as about 56 years  which  shows that he was born sometime  in  the  year 1934-35.   That  was  the  precise  time  when  his   mother Mehamunisa  died.   There is, thus, inherent  truth  in  the averment  of  the appellant that he was brought  up  by  his maternal  grandmother like a son.  It is evident that  about 30  years  before the filing of the suit  Rajubai  gave  the first  floor  of the suit house to the  respondent  and  the ground  floor to the appellant.  They have  been  separately and  to the exclusion of each other enjoying  this  property for  over 40 years.  It is, thus, obvious from the  fact  of this case that Rajubai gave her property to her daughter and the grandson in her lifetime by dividing the house into  two parts  and giving possession of the respective parts to  the two heirs.  An oral gift is perfectly valid under  Mahomedan Law.  The declaration as well as acceptance of the gift  may be  oral whatever may be the nature of the property  gifted. The intention on the part of Rajubai to give the property to the  two heirs is obvious by the fact that she  divided  the house  into two portions and gave actual possession to  both of  them.  The appellant and the respondent are both  living in  their  respective  portions for the last  more  than  40 years.  The mutation of the property is in their  respective names. 7.  We are of the view that in order to do complete  justice between  the  parties, the intention of Rajubai  has  to  be honoured  and,  as  such,  we  declare  and  hold  that  the appellant  and  the respondent shall be the  owners  of  the portions  of  the  house  which  are  in  their   respective possession. 8. We allow the appeal, set aside the judgments and  decrees of  the  courts  below and dismiss the  suit  filed  by  the respondent-plaintiff.  No costs.  481