- (1.) DEFENDANT in O.S.No.17 of 1985 on the file of the Additional District Judge, Pondicherry at Karaiakal is the appellant herein. The plaintiffs/respondents herein filed the said suit for a preliminary decree declaring that the plaintiffs and defendant are entitled to 3,7 and 14 shares in the estate of the deceased Abdul Gafoor. The learned Additional District Judge, Pondicherry at Karaikal on the basis of the oral and documentary evidence, decreed the suit; hence the present appeal by the defendant.
(2.) THE case of the plaintiffs/respondents is briefly stated hereunder:- THE first plaintiff is the wife of the deceased Abdul Gafoor, son of Abdul Gani Rawthar. THE 2nd plaintiff is the daughter of the first plaintiff and the deceased Abdul Gafoor. THE defendant is the son of the said deceased Abdul Gafoor. THE said Abdul Gafoor died intestate at Bombay on 9.10.80. On the death of Abdul Gafoor, as his only legal heirs, the plaintiffs and the defendant are entitled to inherit the estate of the deceased as per the Mahomedan Law of succession. At the time of filing of the suit, the defendant was residing in France and the property at Ambagarathur and Nallazhundur are in the possession and enjoyment of the plaintiffs and defendant as tenants in common. THE income from the estate of the deceased are enjoyed by third parties at the instance of the defendant. THErefore, the plaintiffs want partition of their shares in the estate. On 25.3.85 the plaintiffs caused a notice to the defendant for an amicable partition and separate possession by metes and bounds of the suit schedule properties. But there was no reply from the defendant. As per Mahomedan Law of Inheritance, the estate of the deceased Abdul Gafoor is liable to be divided into 24 shares and in which the plaintiffs and the defendant are respectively entitled to 3, 7 and 14 shares, and, therefore, the suit A and B schedule properties may be divided accordingly and the plaintiffs may be allotted their share. The defendant filed a written statement wherein it is contended that the suit is bad for non-joinder of necessary parties. The plaintiffs have not included all persons who have a right to partition to the suit. Apart from the first plaintiff, widow of the deceased, Abdul Gafoor had married a second wife while he was in Saigon. The name of the second wife is NGO - THI- TINH. Out of that marriage, he had 11 children and all of them are alive. The plaintiffs are fully aware of these facts. Under Muslim Law, the wives, sons and daughters are entitled to inherit the estate of the deceased as Koranic heirs and residuary heirs. The plaintiffs have fraudulently suppressed these facts thinking that the first plaintiff is the only widow and the second plaintiff and the defendant are the only children of the deceased Abdul Gafoor. Further, the deceased Abdul Gafoor had already made an oral gift of the A schedule property in favour of the defendant and the gift was accepted by the donee namely the defendant and therefore, A schedule property is not available for partition. The oral gift was subsequently confirmed under a written gift and a document was executed. The donation deed has already come into existence and the property was accepted and, therefore, A schedule property is not available for partition. The defendant has no objection for partition of B schedule property among all heirs not only between the plaintiffs and the defendant. With the above pleadings, the second plaintiff was examined as P.W.3 and two more witnesses were examined as P.Ws.l and 2 and Exs. A-1 to A-7 marked in support of their claim for partition. On the other hand, the defendant was examined as D.W.I and 3 more witnesses were examined as D.Ws.2 to 4, besides marking Exs. B-1 to B-15 in support of their defence. Ex.C-1, income tax certificate and Ex. C-2, special power by Abdul Gafoor were marked as Court documents. The learned Additional District Judge, after framing necessary issues and after considering the oral and documentary evidence, decreed the suit as prayed for; hence the present appeal by the defendant. Heard the learned counsel for the appellant as well as the respondents. Learned counsel for the appellant has raised the following contentions:- (i) Inasmuch as the deceased Abdul Gafoor married a second wife while he was in Saigon, and 11 children were born to them, in the absence of the second wife and their children as parties to the; present proceedings, the suit is liable to be dismissed for non-joinder of necessary parties; (ii) In view of Ex.B-14, donation deed dated 5.9.80 donating the entire A schedule property in favour of the defendant, and the gift was accepted by the donee that is the defendant, the A schedule property is not available for partition. On the other hand, learned counsel appearing for the respondents would contend that in the absence of any acceptable evidence regarding the marriage of 2nd wife at Saigon, the alleged second wife and their children are neither necessary nor proper parties for the disposal of the suit. He also contended that Ex.B-14 donation deed dated 5.9.80 is not a genuine document and the same has been rightly rejected by the Court below.
(3.) I have carefully considered the rival submissions. The suit relates to division of A schedule property which is a tiled house at Ambagarathur village, Thirunallar commune. B. schedule consists of nanja and punja lands. The defendant has no grievance with regard to the division of plaintiffs' share in B schedule properties; hence we are concerned with A schedule property. First I shall consider the contention relating to non-joinder of necessary parties. It is the contention of the defendant that the plaintiffs and the defendant alone are not the legal heirs, but his father Abdul Gafoor had a second wife, through whom, he had 11 children and, therefore, the second wife and the 11 children are to be added as parties to the suit. On the other hand, it is the definite case of the plaintiffs that except the first plaintiff, Abdul Gafoor never married a second wife and even if it is so, there is no valid marriage under Mahomedan Law. Now it is to be seen whether there was any second marriage for Abdul Gafoor and if that is so, whether it was a valid marriage under the Mahomedan Law. Section 252 of Mahomedan Law speaks about essentials of a marriage. It reads thus:- Section 252. Essentials of a marriage:- It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other, in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mahomedans. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and an acceptance made at another meeting do not constitute a valid marriage. Neither writing nor any religious ceremony is essential. It is clear that the legal essentials of a valid Mahomedan, marriage are that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of the other. In the presence and hearing of two male or one male and two female witnesses, who must be sane and adult Mahomedans. The proposal and acceptance must both be expressed at one meeting. Marriages under Mahomedan Law are of 3 kinds. First there are valid marriages, second there are marriages which are void and thirdly there are marriages which are fasid, a word which has been translated as vitiated. Like most other systems, the Mahomedan Law discountenances a marriage between a Mahomedan male and a woman professing other religion. A Muslim cannot marry an idolatress or a fire-worshipper. A Hindu woman comes within the category of idolatress fire-worshipper. A Muslim cannot marry an idolatress or a fire-worshipper. Now we have to find out whether there was a valid proposal and acceptance in respect of the second marriage as pleaded by the defendant. Though defendant has examined as many as 3 witnesses apart from his own evidence, there is no acceptable evidence to prove as to whether the proposal was made by the parties or on behalf of the parties to the marriage and whether the proposal was accepted or not. Admittedly, there is no document to show the witnesses before whom the proposal and acceptance were made. No doubt, the defendant has filed Ex. B-1, dated 12.4.71, photo copy of certificate of marriage of Abdul Gafoor. Very much relying on Ex.B-1, the defendant, has tried his level best to prove the legal marriage of Abdul Gafoor with one NGO-THI-TINH. I have already stated that even though 3 witnesses were examined on the side of the defendant to prove the second marriage, none of them has referred the name of the second wife that is NGO-THI-TINH as described in the certificate of marriage - Ex.B.I. A perusal of their evidence shows that they have given different names. Hence it is clear that there is no unanimous version regarding the name of the second wife. In the absence of reliable evidence, the evidence of D.W.1 cannot be accepted. The other interesting fact to be noted is that as per D.W.1, his father, had 11 children through his second wife. On the other hand, D.W.2 has deposed that Abdul Gafoor had 13 children through the second wife. A photo copy of pass-port has been marked as Ex.B-2. . In the affidavit filed before the Embassy for the purpose of passport, it is stated that in the column for children it is mentioned as "Nil". The said affidavit is dated 14.11.75. As rightly observed by the learned Additional District Judge, a lady who has no children in 1975 cannot have 11 or 13 children in 1980 when Abdul Gafoor died. In the light of the above infirmities in the evidence of D.Ws.l to. 4 as well as Ex. B-2, I am in agreement with the conclusion arrived at by the Court below and I hold that the first defendant has miserably failed to prove that his father Abdul Gafoor had legally wedded second wife as per Muslim Law. ;