NEWANNESS ALIAS MEWAJANNESSA Vs. SHAIKH MOHAMAD

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the Division Bench of the Calcutta High Court in appeal from original decree No. 652/61 and cross-objections dated June 8,1973. This Court while granting leave limited the appeal to the questions raised in ground Nos. II and VI dealing with inheritance of property belonging to Sabul, Liaquat and Mahujammusa. Therefore, untrammeled by the controversy which hinged in the trial court and the High Court, we confined our consideration only to these two questions.

(2.) This appeal arises out of a partition suit. The genealogy table before us has not been disputed. It would show that Haji Ishan Ali died in 1955 leaving behind his widow Samudanusa, plaintiff No. 1(p-1), who also died pending suit in 1966. His two daughters, plaintiff No. 2 (p-2) Bibi Mewannesa and Bibi Mahujammusa, defendant No. 5 (D-5); and three sons Jabar Ali. Insabul Ali and Sabul Hasan, Jabar Ali left behind defendant No. 1(D-1), a son and defendant No. 2 (D-2), a daughter, Isabul Ali left behind him defendant No. 3 (D-3), a daughter. D-3 was married to D-1. Sabul Hassan pre-daughter. Isabul Ali, leaving behind defendant No. 4 (D-4), a son and Liaquat also as on, who too died before the death of Isabul Ali. The trial court granted preliminary decree which was affirmed in appeal. The shares and extent are in controversy. The High Court found that the property purchased by Haji Ishan Ali in the name of his son Sabul Hassan had pre-deceased Isabul Ali, the question arose whether Haji Ishan Ali was a sharer in the estate of Sabul Hassan.

(3.) Section 61 in Chapter VII of the Mulla's principles of Mohammedan Law, edited by M. Hidayatullah, former Chief Justice of this Court, postulates three classes of heirs, namely, (1) sharers, (2) residuaries, and (3) distant kindred. Sharers are those who are entitled to a prescribed share in inheritance; residuaries are those who take no prescribed share, but succeed to the 'residue' after the claims of the sharers are satisfied; and distant kindred are all those relations by blood who are neither sharers nor residuaries. The Table at page 72-A of the 18th Edition prescribes that a father who is under Item No. 1, gets 1/6th share, where there is child or children of son; and when there is no child or children of a son, the father inherits as residuary. Since Sabul Hassan left behind D-4 son, Kisabul Ali got 1/6th share. Out of this 1/6th share got from the estate of Sabul Hassan, his widow (P-1) and P-2 the daughter would get equal respective share under law, which would be determined by the Trial Court.