Sasi K.G
01. INTRODUCTION
Islam
is an Abrahamic monotheistic Semitic religion originated in Saudi Arabia in the
seventh century AD. It accepts the books of Talmund and Thora as part of its
common ancestry but upholds as the supreme book Quran as revealed by Allah, the
Only God to his last prophet Muhammed, who lived between 29 August 570 AD and 8
June 632 AD in Saudi Arabia. The Torah, Nevi’im, Ketuvim and Talmud of the Jews
and the Old Testament of the Christians are practically the same and these
books along with the Gospels of Jesus Christ finds place in the Quran with
minor though conspicuous differences. Being matters of belief these differences
form the basis of the identity of these Religions. Bahaism is also considered
as a Semitic Religion.
02. ISLAMIC LAW
Islam is
derived from the Arabic root "Salema" which means peace, purity,
submission and obedience. In the religious sense, Islam means submission to the
will of God and obedience to His law.[i] A believer of Islam is called a Muslim. The
law particularly applicable to a Muslim is called Islamic Law, Muslim Law or
Muhammedan Law. In many Islamic Countries both Criminal, Public and Personal
Laws shall be according to the Islamic Law which is generally called Shari’a,
Shari’ah or Shariat. In India Criminal or Public Shari’a Laws are not
applicable but Shari’a Personal Law is applicable. However, they shall be
subject to the legal principles of justice equity and good consciousness and shall
also be under the various Constitutional provisions. However the Shari’a
followed by different schools of Muslim thoughts are different and therefore
there are many Schools of Islamic Laws prevailing in India. For a proper
appreciation of the origin of these schools, the evolution of Quaran is also
relevant.
03. EVOLUTION OF QURAN
According to tradition, the first Revelations of Allah was
received by Muhammed on 22 December 609 AD. The attempts of Muhammed to attract
some believers and to form a religion was successful but it attracted severe
persecutions and the early Muslim had to flee from Mecca to Medina at the first
year of Hijra i.e. in 622 AD. However at Medina Islam not only flourished, but
also established an empire headed by Muhammed. When he died in the lap of one
of his wives on 8 June 632 AD, he had assigned any successor neither to the
State nor to his estates, but he had made it clear that people like him cannot
be inherited but by charity. So the followers of Muhammed at his death chose
Abu Bakr as their leader and he lead the State, but the followers of Muhammed
practically were left poor. Abu Bakr however allowed the family of Muhammed to
succeed whatever they wanted. He contineed as the first Caliph for two years
and died in 634 AD. Soon after the demise of Muhammad a number of his
companions who knew the Quran by heart were killed in a battle by Musaylimah,
the first caliph Abu Bakr decided to collect the book in one volume so that it
could be preserved. Zayd ibn Thabit (died in 655 AD) was the person to collect
the Quran since "he used to write the Divine Inspiration for Allah's
Apostle". Thus, a group of scribes, most importantly Zayd, collected the
verses and produced a hand-written manuscript of the complete book. The
manuscript according to Zayd remained with Abu Bakr until he died. After Abu
Bakr, Hafsa bint Umar, Muhammad's widow, was entrusted with the manuscript. In
about 650, the third Caliph Uthman ibn Affan (died in 656 AD) began noticing
slight differences in pronunciation of the Quran as Islam expanded beyond the
Arabian Peninsula into Persia, the Levant and North Africa. In order to
preserve the sanctity of the text, he ordered a committee headed by Zayd to use
Abu Bakr's copy and prepare a standard copy of the Quran. Thus, within 20 years
of Muhammad's death, the Quran was committed to written form. That text became
the model from which copies were made and promulgated throughout the urban
centers of the Muslim world, and other versions are believed to have been
destroyed. The present form of the Quran text is accepted by Muslim scholars to
be the original version compiled by Abu Bakr.[ii]
Abu Bakr had attempted in the
expansion of the Islamic State and Umar ibn al-Khattab and Uthman ibn Affan
continued the policy with success. Ali ibn Abi
Talib and Hasan ibn Ali succeeded him. The first four
caliphs are known in Sunni Islam as al-khulafā' ar-rāshidūn ("Rightly Guided Caliphs").Under them,
the territory under Muslim rule expanded deeply into the parts of the Persian
and Byzantine
territories.[iii]
According to Shia, Ali ibn Abi Talib
(died in 661 AD) compiled a complete version of the Quran shortly after
Muhammad's death. The order of this text differed from that gathered later
during Uthman's era in that this version had been collected in chronological
order. Despite this, he made no objection against the standardized Quran and
accepted the Quran in circulation. Other personal copies of the Quran might
have existed including Ibn Mas’ud’s and Ubay ibn Ka’b’s codex, none of which
exist today.[iv]
04. SUNNIS AND SHIAS
The election of Abu Bakr to the Caliphate led to turmoil
and dissensions in the Muslim world, giving birth to two main factions of
Muslims, the Sunnis and Shias. The Koreishi tribes split into the
Ommayadas and the Hashimites. The latter were of the view that Ali was the
legitimate successor to the Prophet by propinquity as well as by nomination by
the Prophet himself. Abu Bakr died in 634 AD two years after his election. Then
Umar was elected as the second Caliph. On Umar's assassination of 644 AD. Osman
became the third Caliph. On Osman's assassination in 656 AD. Ali became the
fourth Caliph. He too was assassinated in 661 AD.[v]
With the death of Ali, the fourth Caliph begins the third
period in the development of Muslim Law and it extends to A.H. 300. On All's death, his first son Hasan resigned
in favour of Muavta, the founder of the Ommayad dynasty. All's second son.
Hussain revolted and died fighting at Karbala. With this the division of the
Muslim world between the Sunnis and the Shias became final and permanent.
Muavta became the temporal and spiritual head of the
Arabs. After the death of Muavta, the hereditary principle of succession was introduced
in the Caliphate. The Ommayad dynasty continued to rule till its fourteenth
sovereign was overthrown by the Abbasides. During the Ommayadas dynasty the
Muslim dominion extended far and wide. The Abbasides proclaimed themselves to
be the spiritual head of the Muslims. During this period came into existence
the schools of Sunnis and Shias. The Sunni schools are: (i) the Kufa School
or the Hanafi School named after Imam Abu Hanifa (699 A.D.-766 A.D.). It is
the oldest school and it lays emphasis on the kiyas as a source of law.
(ii) The Madina or the Maliki School named after its founder.
Malik ibn Anas (713-795 A.D.). It rejects the Idyas and emphasizes the
traditions and the ijma. (iii) The Shafi School founded by Imam
Muhammad ibn Idris ash-Shaft (767-820 A.D.) who was the protagonist and
propounder of the classical theory of Islamic jurisprudence. He perfected the
doctrine of ijma and founded the science of usul. (iv) The Hanbali
School founded by Ahmed ibn Hanbal (780-855 A.D.) laid stress on the
importance of the tradition or the sunna. He represents the extremists among
the traditionalists.[vi]
The Shias also are split into three schools. The first
split took place after the death of the fourth Imam, Zaynul-Abdin whose son
Zayd, was accepted as the Imam by some of the Shias, and thus arose the Zaydi
School. The majority followed Imam Muhammad al Baquir, who was succeeded by
Imam Jafar as Sadiq. After the death of Imam Jafar another split took place
among the Shias. The majority followed Imam Musa Kazim. His followers are known
as the Twelvers or the Ithana Ashari School. The minority followed
Ismail the elder brother of Imam Musa Kazim. Thus came into existence the third
school, the Ismail School. The followers of this school are also known
as the Seveners.
05. THE INDIAN SUNNIS AND SHIAS
In India the Mahomedans of India are divided into two sects
namely Sunnis and Shias. The Motazilas form a third sect, however their legal
status is not defined. Quadianis, Ahl-e-Hadit, Cutch Memons of Bombay and Halai
Menons belong to the Sunni Sect.[vii]
The Sunnis are divided into four sub-sects. Namely the
Hanafis, the Malikis, the Shafeis and the Hanbalis. The Sunni Mahomedans of
India belong principally to the Hanafi School. In a series of cases it has been
laid down by Indian Courts that there shall be a presumption that the parties
to a suit or proceeding are Sunnis, unless it is shown that the parties belong
to the Shia sect.[viii]
But Shia law is not a Foreign Law, it is part of the law of the land.[ix] As most Sunnis are Hanafis the presumption is that
a Sunni is governed by Hanafi Law.[x] The Wahhabis are an off-sheet of the Hanbalis.
Considerable groups of Mahornedans in the South of India, such as Kerala and
Malabar, are Shafeis.[xi]
In India he Shias are divided into
three main subnamely, the Athna-Asharias, the Ismailyas and the Zaidya. There are
two divisions of Athna-Asharias, namely, (1) Akhbari, and (2) Usuli. As most
Shias are Athna-Asnarias the presumption is that a Shia is governed by the
Athna-Asharia exposition of the law.[xii]
The Khojas and the Bohras of Bombay belong to the Ismailya sub- sect. The Aga
Khan is the spiritual head of the lsmaili Khojas and he was once regarded the
sole right of determining who shall or shall not remain a member of the
community, but this right has been curtailed by the Bombay Prevention of
Excommunication Act (XLII of 1949) All the offerings are the Aga Khan's
absolute property and are not subject to any trust for the benefit of the
community.[xiii]
The Mullaji is the spiritual head of the Daoodi Bohras[xiv]
and in regard to properties vested in him and to offerings received by him for
the benefit of the community it has been held in one case that he is a trustee.[xv]
In another case the constitutional validity of the Bombay Prevention of
Excommunication Act (XLII of 1949) has been upheld and an order of excommunication
given by the Head Priest of the Daoodi Bohras set aside.[xvi] Also
see Saifuddin Sahib v. Govt. of Bombay, 1962 A.S.C. 854. The
Sulaimani Bohras follow their own religious leaders. Their secession from the
Daoodis is mentioned in Mansoorally v. Taiyabally.[xvii]
The Mahomedan law applicable to each sect or sub-sect is to
prevail as to litigants of that sect or sub-sect.[xviii]
The Sunni law will therefore apply to Sunnis, and the Shia law to Shias,
and the law peculiar to each sub-sect will apply to persons belonging to that
sub-sect.
A Mahomedan male or female who has attained the age of puberty, may
renounce the doctrines of the sect or sub-sect to which he or she belongs, and
adopt the tenets of the other sect or any other sub-sect, and he or she will
thenceforth be subject to the law of the new sect or sub-sect.[xix] In
a Marriage between Shia male and Sunni female wife's status is not affected.
She does not thereby become subject to the Shia law.[xx] The
same proposition holds good in the case of marriage of a Shia female with a
Sunni male.
06. THE SUNNI LAW AND HANAFI SUNNI LAW
There are four sources of Mahomedan law, namely, (1) the Koran; (2) Hadis,
that is, precepts, actions and sayings of the Prophet Mahomed, not written
down during his lifetime, but preserved by tradition and handed down by
authorized persons; (3) Ijmaa, that is, a concurrence of opinion
of the companions of Mahomed and his disciples; and (4) Qiyas,
being analogical deductions derived from a comparison of the first three
sources when they did not apply to the particular case.[xxi] Qiyas is reasoning by analogy. Abu
Hanifa, the founder of the Hanafi section Sunnis, frequently preferred it to
traditions of single authority. The founders of the other Sunni sects, however,
seldom resorted to it.
The Courts, in administering Mahomedan law, should not,
as a rule, attempt to put their own construction on the Koran in opposition to
the express ruling of Mahomedan commentators of great antiquity and high
authority. Thus where a passage of the Koran (Sura ii, vv, 241-242) was
interpreted in a particular way Both in the Hedaya (a work on the Sunni
law) and in the Imamia (a work on the Shia law), it was held by their
Lordships of the Privy Council that it was not open to a Judge to construe it
in a different manner.[xxii]
Neither the ancient texts nor the precepts of the Prophet
Mahomed should be taken literally so as to deduce from them new rules of
law, especially when such proposed rules do not conduce to substantial justice.[xxiii]
New rules of law are not to be introduced because they seem to lawyers of the
present day to follow logically from ancient texts however authoritative, when
the ancient doctors of the law have not themselves drawn those conclusions.[xxiv]
The three great exponents of the Hanafi-Sunni law are Abu
Hanifa, the founder of the Hanafi School, and his two disciples, Abu Yusuf and
Imam Muhammad. It is a general ru1c of interpretation of the Hanafi law that
where there is a difference of opinion between Abu Hanifa and his two
disciples, Abu Yusuf and Imam Muhammad, the opinion of the disciples prevails.[xxv]
Where there is a difference of opinion between Abu Hanifa and Imam Muhammad, that
opinion is to be accepted which coincides with the opinion of Abu Yusuf.[xxvi] When
the two disciples differ from their master and from each other, the authority of
Abu Yusuf is generally preferred.[xxvii]
But these rules are not inflexible; they are to be regarded as rules of
preference adopted by ancient jurists for their own guidance, but the
subsequent history of opinion and practice will generally be of greater
importance.[xxviii]
Where there is a conflict of opinion, and
no specific rule to guide the Court, the Court ought to follow that opinion
which is most in accordance with justice, equity and good conscience.[xxix]
The rules of equity and equitable considerations commonly
recognized in Courts of Equity in England are not foreign to the Mussulman
system, but are in fact often referred to and invoked in the adjudication of
cases under that system.[xxx]
07. SUCCESSION AND ADMINISTRATION IN SUNNI LAW
Long before the introduction of the Indian Succession Act, 1865 and
the Probation and Administration Act, 1881, Islamic Law was prevalent in India
during the Delhi Sultanate and Mugal periods. Even though the former Act was
not applicable to the Muslims in India, the latter Act was applicable to them. However
these Acts were repealed by the Indian Succession Act, 1925. Part I to Part VI
of the Indian Succession Act, 1925 was not made applicable to Muslims, but Part
VII to Part XI which deals with legal remedies and other procedural matters
were made applicable to them. In other words, the provisions of the Probation
and Administration Act, 1881 continued to operate among the Muslims through
Part VII to Part XI of the Indian Succession Act, 1925. Cutchi Memons Act XLVI of 1920 and the Shariat Act, 1937 served greatly
in the application of Shari’a Law among the Muslims of India.
01.Administration of the estate of a deceased Mahomedan:- The estate of a deceased Mahomedan is to be applied successively in payment
of (1) his funeral expenses and death-bed charges; (2) expenses of obtaining
probate, letters of administration, or succession certificate; (3) wages due
for service rendered to the deceased within three months next preceding his
death by any labourer, artisan or domestic servant; (4) other debts of the
deceased according to their respective priorities (if any); and (5) legacies
not exceeding one-third of what remains after all the above payments have been
made. The residue is to be distributed among the heirs of the deceased
according to the law of the sect to which he belonged at the time of his death[xxxi],
and the heir has a right of contribution against his co-heirs, if by the action
of the judgment creditor under a decree under sec. 52 of the Civil Procedure
Code against all the heirs, he was left with less than his proper share of the
net estate of the deceased.[xxxii] Under
Mahomedan law, the payment of the debts of the deceased takes precedence over
the legacies.[xxxiii]
If the deceased was a
Sunni at the time of his death, his property would be distributed among his
heirs according to the Sunni law, and if he was a Shia, it would be distributed
according to the Shia law. In other words, succession to the estate of a
deceased Mahomedan is governed by the law of the sect to which he belonged at
the time of his death, and not by the law of the sect to which the persons
claiming the estate as his heirs belong.[xxxiv] A deceased Mahomedan
is presumed to have been a Sunni and the onus is on the person alleging him to
have been a Shia.[xxxv]
The person primarily
entitled to administer the estate of a deceased Mahomedan, that is, to apply it
in the manner set forth in the section, is the executor appointed under
his will. If the deceased left no will, the person entitled to administer his
estate would be the person to whom letters of administration are granted. Such
a person is called administrator. The persons primarily entitled to
letters of administration are the heirs of the deceased. In the absence
of an executor or administrator, the persons entitled to administer the estate
are the heirs of the deceased.
02. Vesting of estate in
executor and administrator:- The executor or administrator, as the case
may be, of a deceased Mahomedan, is his legal representative for all purposes,
and all the property of the deceased vests in him as such. The estate vests in
the executor, though no probate has been obtained by him.[xxxvi]
But since a Mahomedan
cannot dispose of by will more than one-third of what remains of his property
after payment of his funeral expenses and debts, and since the remaining
two-thirds must go to his heirs as on intestacy unless the heirs consent to the
legacies exceeding the bequeathable third, the executor, when he has realized
the estate, is a bare trustee for the heirs as to two-thirds, and an active
trustee as to one-third for the purposes of the will; and of these trusts, one
is created by the Act and the probate irrespective of the will, the other by
the will established by the probate.[xxxvii]
An executor under the
Mahomedan law is called wasi , derived from the same root as wasiyyat
which means a will. But though the
Mahomedan law recognised a wasi , it did not recognise an administrator,
there being nothing analogous in that law to "letters of
administration". A wasi or executor under the Mahomedan law
was merely a manager of the estate, and no part of the estate of the
deceased vested in him as such. The will may provide for the
remuneration of the executor, but if the executor is an heir the provision is
not valid unless the other heirs consent.[xxxviii]
03. Devolution of
inheritance:- Subject to the
above provisions, the whole estate of a deceased Mahomedan if he has died
intestate, or so much of it as has not been disposed of by will, if he has left
a will, devolves on his heirs at the moment of his death , and the
devolution is not suspended by reason merely of debts being due from the deceased.[xxxix] The heirs succeed to
the estate as tenants-in-common in specific shares.[xl]
The estate of a
deceased Mahomedan if he has died instestate, devolves on his heirs at the
moment of his death. Under the Mahomedan Law, birth right is not recognised.
The right of an heir apparent or presumptive comes into existence for the first
time on the death of the ancestor, and he is not entitled until then to any
interest in the property to which he would succeed as an heir if he survived
the ancestor.[xli]
There is no joint
tenancy in Mahomedan law and the heirs are only tenants-in-common. Therefore
heir can claim partition in respect of one of the properties held in common
without seeking partition of all the properties.[xlii] Possession of a
co-sharer or co-heir is presumed to be that of other co-sharers or co-heirs. To
start adverse possession there must be clear and complete evidence of an
ouster.[xliii]
Representation of
deceased's estate:- The theory of
representation is not known to the Mahomedan law. Under its provisions, the
estate of a deceased person devolves upon his heirs at the moment of his
death. The estate vests immediately in each heir in proportion to the share
ordained by Mahomedan law. As the interest of each heir is separate and
distinct, one of a number of heirs cannot be treated as representing the
others.[xliv] But an heir in
possession of assets of an estate can be sued by a creditor of the deceased.
There is no intermediate vesting in any one, such as an executor or
administrator, as under the Indian Succession Act.[xlv] A suit for partition of
his share by one of the heirs is maintainable even if the heirs who are not in
possession are not impleaded since the shares of Mahomedan heirs are definite
and specific.[xlvi]
A Muslim woman acquired property at a time when her husband's estate was owned
in common by her along with other heirs, her children. The properties were
managed by her father. She was adult but the children were minors. Under Muslim
Law she was not the guardian of the property of the minors, nor was her father.
Held:--There is no presumption that acquisitions are made for the
benefit of the family jointly. On the death of a Muslim, his property devolves
on the heirs in specific shares and they take the estate as tenants-in-common.
There is no principle of representation and the interest of each heir is
separate and distinct.[xlvii]
Limitations for suit by
an heir for recovery of his share:- The heirs succeed
to the estate as tenants-in-common in specific shares. When the heirs continue
to hold the estate as tenants-in-common without dividing it and one of them
subsequently brings a suit for recovery of his share, the period of limitation
for the suit does not run against him from the date of the death of the
deceased, but from the date of express ouster or denial of title; in other
words, it is Art. 144 of Sch. I to the Limitation Act, 1908 that applies, and
not Art. 123.[xlviii] The Privy Council has held that a suit for
administration of the estate of a Mahomedan is governed as regards immovable
property by Art. 144 and as regards movables by Art. 120.[xlix]
One of several
co-sharers can be in possession and enjoyment of the common property to the
exclusion of the other co-sharers without affecting their interest in the
property and unless the co-sharer in possession does something which operates
as an ouster of the interests of the other co-sharers, the latter's right
cannot be destroyed. The Public Wakfs Extension of Limitation Act is of a very
limited application. It is to be read as laid down in the statute.[l]
Parties to the suit by
an heir:- In a suit by an heir for the recovery of his
share the co-heirs are proper parties; but as the interests of the heirs are
distinct, the omission to join a co-heir is not a good reason for dismissing
the suit.[li]
In other words the co-heir is not a necessary party, i.e a party in whose
absence no decree can be passed. A co-owner suing a trespasser and not joining
the other co-owners can get a decree only for his share in the property. The
plea of just tertii is available to the defendant unless the suit is
framed as a representative suit.[lii]
Partial partition:- The doctrine of partial partition is applicable only to a Hindu
co-parcenary where the coparceners are joint in estate, and not to Muslims, who
are only tenants-in-common; Under the Mahomedan law the heirs of a deceased
Muslim succeed to a definite fraction of every part of his estate. Muslim
sharers are not obliged to sue for partition of all the properties in which
they are interested. There is nothing to preclude one of them from seeking a
partition of some of the items of the properties.[liii]
Renunciation or
relinquishment need not be expressly stated in the document. It can be inferred
from the conduct of the parties. If a suit for partition in a Mohammedan family
is brought after 12 years and the plaintiff fails to explain his or her
inaction, renunciation can be inferred. If renunciation is pleaded in the document
and renunciation is accepted by the parties, in that case, he or she must be
estopped from claiming partition, as it is a part of family arrangement.
Strictly speaking, such renunciation will not forbid her from claiming
partition, but in order to maintain harmony and peace in the family,
renunciation should be treated as estoppel to the party concerned.[liv] The relinquishment of a
contingent right of inheritance by a Muslim heir is generally void under the
Mahomedan Law, but if it is supported by consideration and forms part of a
valid family settlement it is valid. Where
the mother claimed a share during the partition among her sons and herself and
was allotted certain properties, a condition that she has to relinquish her
share beyond her life time becomes void, where she has not done so for
consideration. She gets the properties absolutely and could alienate the
properties.[lv]
Administration suit:- Any heir or creditor of the deceased may bring a suit for the
administration of the estate: he is not bound to bring a suit for partition.[lvi] In an ordinary partition suit, the Court may,
in working out its preliminary decree, instead of making an actual division of
all the property, give one heir a charge over the share of another for any
difference in favour of the former and any such charge imposed will bind the
alienee pendente lite from that heir.[lvii]
Interim
maintenance:- In a suit brought by a Mahomedan widow for the administration of her
deceased husband's estate and the payment to her of her l/8th share the Court
can order interim maintenance.[lviii]
04. Alienation by heir of his share before payment of debts:-
(1) Any heir may even before distribution of the estate, transfer his own
share and pass a good title to a bona fide transferee for value, notwithstanding any
debts that might be due from the deceased.[lix]
The transfer must be one for value, that is, for a consideration, e.g.,
a sale or a mortgage, as distinguished from a gift. If partition has not been
effected the heir can only sell his undivided share and cannot sell a
particular plot.[lx]
The property of a common ancestor on his death devolves in well-defined
shares upon his heirs. The presence of minor among the heirs does not bar the
major heirs from transferring their share. Imambandi v. Mutsaddi[lxi]
is applied here. One Habibullah entered into an agreement to sell property
to defendant No. 1, but before receipt of consideration and execution of the
sale-deed he died. The heirs served notices on defendant No. 1 to complete the
transaction.[lxii]
34
Illustrations
(a) A Mahomedan
dies leaving several heirs. After his death the whole body of heirs sell
the whole of his estate without paying his debts. After the sale, a
creditor of the deceased obtains a decree against the heirs for his debt, and
applies for execution of the decree by an attachment and sale of the property
in the hands of the purchaser. He is not entitled to do so. The reason is that
a creditor of a deceased Mahomedan cannot follow his estate into the hands of a
bona fide purchaser for value.[lxiii]
(b) A Mahomedan
dies leaving a widow and a son. A large sum of money is due to the widow for
her dower. [Dower is a debt, and the widow is to that extent a creditor of the
estate of her deceased husband. She is not, however, a secured creditor. The
son mortgages his share in the estate to A, without paying the dower debt. After
the mortgage, the widow obtains a decree against the son, who is in
possession of the whole estate for the dower debt, and attaches the son's share
in execution of the decree. The mortgagee then obtains a decree against the son
on the mortgage for sale of the son's share mortgaged to him. The share is sold
in execution of the decree, and purchased by P. The mortgage having been
made before the attachment, P is entitled to recover the son's share
free from the attachment.[lxiv]
Note.-- In the cases in illustration (a),
the sale was by all the heirs of their shares. In the case in illustration (b),
the sale is only by one of the heirs.
(2) A sale of
the share of heir in execution of a decree passed against him at the suit of
his creditor amounts to a "transfer" within the meaning of (1) above,
and will pass a good title to the purchaser in execution.
Illustration
(a) A Mahomedan
dies leaving two sisters as his only heirs. After his death, C, a
creditor of the deceased, obtains a decree against the sisters for his debt.
Subsequently a creditor of the sisters obtains a decree against them for
his debt, and the property of the deceased come to their hands is sold in
execution of his decree to P. In this case, C is not entitled to
attach the property in the hands of P in execution of his decree.[lxv]
Note. -- In the case in illustration
(1) (a), the sale was by private treaty. In the case in illustration (2) (a),
it was in execution of a decree. Both these sales stand on the same footing. In
both the cases the purchaser was a bona fide purchaser for value.
(3) If the share
transferred by an heir is a share in immovable property forming part of
the estate of the deceased, and the transfer is made during the pendency of
a suit by the widow of the deceased for her dower, in which a decree is
passed creating a charge on the estate for the dower debt, the
transferee will take the share of the heir subject to the charge[lxvi]
but if the widow's decree is a
simple money decree, the transferee will not be affected.[lxvii] Where a charge is created in favour of an heir
in an administration suit on the share of another heir and the latter transfers
his share pendente lite, the transferee will take the share subject to
the charge.[lxviii]
Illustration
(a) A Mahomedan died leaving three widows and a son. He left
considerable property both movable and immovable. After his death, the widows
brought a suit against the son, who was in possession of the whole estate, for
an administration of the estate of the deceased, and for payment of the dower
debt out of the estate. A decree was passed in the suit directing the son to
render an account of the properties of the deceased come to his hands, and
providing for payment of the dower out of the properties. (This was not
a simple money decree, but a decree creating a charge on the
properties for the dower debt.) The widows then applied for execution of the
decree. Pending execution (which is the same thing as pending the
suit), the son mortgaged his share to M. M sued the son on the
mortgage, and obtained a decree for sale of the share mortgaged to him. The
share was sold in execution of the decree to P, who purchased with
notice of the decree. Upon these facts the Privy Council held that P
took the share subject to the decree in favour of the widows.[lxix]
Note:- If the mortgage had been effected before the suit, it would not have been affected by
the decree.[lxx]
05. Extent of liability of
heirs for debts:- Each heir is
liable for the debts of the deceased to the extent only of a share of the debts
proportionate to his share of the estate.[lxxi]
Illustration
(a) A Mahomedan, who is
indebted to C in the sum of Rs. 3,200, dies leaving a widow, a son and two
daughters. The heirs divide the estate without paying the debt, the widow
taking 1/8, the son taking 7/16, and each daughter 7/32. C then sues the widow
and the son for the whole of the debt due to him from the deceased. The
widow is liable to pay only (1/8 3,200) = Rs. 400, and the son (7/16 3,200) =
Rs. 1,400; they are not liable for the whole debt.[lxxii]
(b) A co-heir who is
not a guardian of a minor; has no power to alienate the minor's share in the
property even to pay the debts of the deceased from whom they inherit. This is
so even if there be a decree against the minor and the alienation is done to
discharge the decree. The transaction is void and not merely voidable.[lxxiii]
The heirs of a Muslim
dying intestate on whom falls the liability to discharge the debt,
proportionate to their respective shares in the estate devolved, can hardly be
classified as joint contractors, partners, executers or mortgages. They are by
themselves independent debtors; the debt having been split by operation of law.
They succeed to the estate as tenants in common in specific shares. Therefore,
the acknowledgment of the debts only by one heir can be confined to himself and
cannot be extended to the other heirs for their independent position. The
payment made on account of debt by the only one heir as an independent debtor,
and not as an agent, express or implied, on behalf of other co-heirs could not
be said to be a payment on behalf of all so as to extend the period of
limitation as against all. The fact that the heir acknowledging the debt by
making the payment was in possession of entire estate and had not parted with
it by means of partition to the coheirs, would not make him liable for entire
debt.[lxxiv]
06. Distribution of estate:- Since the estate devolves on the heirs at the moment of the death of the
deceased, they are at liberty to divide it at any time after the death of the
deceased. The distribution is not liable to be suspended until payment of the
debts. Where some of the co-sharers have paid the debts of the deceased,
allowance should be made in regard to these payments at the time of partition.[lxxv]
It was stated in two
Allahabad cases,[lxxvi]
and also in a Calcutta case,[lxxvii] relying on some
passages in the Heddya that the estate could not be distributed, if it
was insolvent. In a later Allahabad case,[lxxviii] however, Mahmood,
J., observed that the translation of the said passage was only a loose
paraphrase of the original Arabic, and expressed the opinion that the estate
may be distributed even if it is insolvent.
The Jharkhand High
Court held that on the death of a Mohammedan, his property immediately devolves
on his heirs separately to the extent of share they are entitled under the
personal law.[lxxix]
Thus, immediately on death of the Mohammedan, his each heir becomes absolute
owner of the property proportionate to his share. Thus, there is no concept of
jointness of ownership of properties of deceased under Islamic law. Mohammedan
heirs are independent owners of their specific shares and their liability is
also proportionate to the extent of their shares in estate. Under the said
circumstances one shareholder has no right, title and interest to alienate
property of another shareholder.
07. Suit by creditor against
executor or administrator:- If the estate is
represented by an executor or administrator, a suit by a creditor of the
deceased should be instituted ag
ainst the executor or administrator, as the case may be.
08. Suit by creditor against
heirs:-
If
there be no executor or administrator, the creditor may proceed against the heirs
of the deceased, and where the
estate of the deceased has not been distributed between the heirs, he is
entitled to execute the decree against the property as a whole without regard
to the extent of the liability of the heirs inter se.[lxxx]
There is, however, a conflict of opinion as to whether a decree obtained by a
creditor against some of the heirs of the deceased is binding on the other
heirs.
According to the decisions of the High Court
of Calcutta, any creditor of the deceased may sue any one of the heirs who is in
possession of the whole or any part of the estate, without joining the
other heirs as defendants, to recover the entire debt, and the Court may
in such a suit pass a decree for the sale, not only of the share of that
particular heir in the estate, but of all the assets of the deceased that are
in his possession. Where such a decree is passed, and a sale is effected in
execution of the decree, the sale will pass to the purchaser not only the
interest of that particular heir in the property, but the interests of the
other heirs also (including minors) thought they were not parties to the suit,[lxxxi]
unless the decree was obtained by fraud, or was taken by consent[lxxxii]
[illustrations (a) and (b)]. These decisions proceed on the view that the
proper principle was to treat the creditors' suit as an administration suit and
as such heir in possession is bound to account for any assets that may have
come into his hands and to that extent he is liable to pay the creditors before
the residue, if any, is divided among the heirs. In a later case, however, the
same High Court held that the above decisions could not apply if the heir who
was sued was in possession of the estate on behalf of the other heirs, i.e.,
was in possession of more than his share of the inheritance, but not if he only
held his own share of the inheritance.[lxxxiii]
The High Court of Bombay in some cases[lxxxiv]
took the same view as the Calcutta High Court did in its earlier decision,
though on different grounds, but with this difference that a decree against
heir in possession bound the other heirs only if he was in possession of the whole
estate [illustrations, (c) and (d)].
But this view has been disapproved in later cases, and it has been held that a
sale in execution of a decree passed against an heir in possession in a
creditor's suit does not pass to the purchaser the interest of those heirs in
the estate who were not parties to the suit even if the heir against whom the
decree was passed was in possession of the whole estate[lxxxv]
[illustration (c)].This coincides with the view taken by the High Court of
Allahabad.
In Pathummabi v. Vittil,[lxxxvi]
the High Court of Madras followed the earlier rulings of the Bombay High Court,
but this decision was subsequently dissented from if not expressly overruled by
a Full Bench in Abdul Majeeth v. Krishnamachariar,[lxxxvii]
adopting the view taken by the Allahabad High Court.
According to the rulings of the Allahabad High
Court, a decree relative to his debts passed in a contentious or
non-contentious suit against such heirs only of a deceased Mahomedan debtor as
are in possession of the whole or part of his estate, binds each defendant to
the extent of his share in the estate[lxxxviii]
but it does not bind the other heirs who, by reason of absence or any other
cause, are out of possession, so as to convey to the purchaser, in execution of
such a decree, the interests of such heirs as were not parties to the decree.
This is because under Mahomedan law each heir inherits a separate and definite
share and as he has no interest in the share inherited by another heir he
cannot be said to represent the estate that has devolved upon the other heir.[lxxxix]
But if they sue for a declaration that the sale is not binding on them, and it
is proved that the debts have been paid out of the proceeds of the sale, they
ought to be put on terms as a matter of equity, and required to pay their
proportionate share of the debt before they are granted the declaration sued
for[xc] [illustrations (f) and (g)].
The High Court of Nagpur[xci]
and the Chief Court of Oudh[xcii]
took the same view as that taken by the Allahabad High Court. The Lahore
decisions were not consistent; one Judge of that High Court agreed with the
Calcutta view,[xciii]
while another followed the later Bombay decisions.[xciv]
The Hyderabad High Court in the case of Mohd. Sulaiman v. Mohd. Ismail[xcv]
followed the Calcutta view.
However, the Supreme Court has attempted to
resolve this conflict in the manner described below.
In the Allahabad case of Jafri Begum v.
Amir Mohammad Khan,[xcvi]
Mahmood, J., had observed that "upon the death of a Mahomedan owner, his
property... immediately devolves upon his heirs in specific shares, and if
there are any claims against the estate, and they are litigated, the matter
passes into the region of procedure and must be regulated according to the law
which governs the action of the Court". The learned Judge therefore went
on to hold that though in certain circumstances under the rules of the
Mahomedan law of procedure, a decree could be binding on an absent heir, such
rules did not apply in India; and that in accordance with the principles which
governed the procedure in Indian courts, a decree obtained by a creditor would
be ineffective as regards the share of those who were not parties to the
litigation.
The observation quoted above was cited with
approval by the Privy Council in its judgment in the case of Mohd. Kazim Ali
Khan v. Sadiq Ali Khan[xcvii]
and the principle embodied in it has also been
approved by the Supreme Court in its recent judgment in the appeal from the
Hyderabad case of Mohd. Sulaiman v. Mohd. Ismail.[xcviii]
However, the Supreme Court has now held that though ordinarily the court
does not regard a decree binding on a person who is not impleaded eo nomine in an action, there are certain recognized
exceptions to this rule: and one of these is that where certain persons are
impleaded after diligent and bona fide enquiry in the genuine belief that they are
the only persons interested in the estate, the whole estate of the deceased
will be duly represented by the persons who are brought on the record or
impleaded, and the decree will be binding on the entire estate. But this rule
will not apply to cases where there has been fraud or collusion between the
creditor and the heir impleaded or where there are other circumstances which
indicate that there has not been a fair or real trial, or that the absent heir
had a special defence which was not and could not be tried in the earlier
proceeding [illustration (i)].
Illustrations
(a) A Mahomedan dies leaving a widow, a
daughter, and two sisters. After his death a suit is brought by a creditor of
the deceased against the widow and the daughter who alone are in possession of
the whole estate, and a decree is
passed "against the assets of" the deceased. The decree and the sale
in execution of the property left by the deceased are binding on the sisters though
they were not parties to the suit.[xcix]
(See note to illustration (b) below)
(b) A Mahomedan dies leaving a widow and
other heirs. A suit is brought by a creditor of the deceased against the widow
alone who is in possession of part of the estate. The other heirs are
not necessary parties, and the creditor is entitled to a decree not only
against the share of the widow in the estate, but the entire assets which have
come into her hands and which have not been applied in the discharge of the
liabilities to which the estate may be subject at her husband's death.[c]
Note.-- As to the
cases cited in illustrations, (a) and (b), it was pointed out by the High Court
of Calcutta that the defendants in those cases were in possession of the estate
on behalf of all the heirs; otherwise the only decree that the creditor would
be entitled to would be a decree for a proportionate share of the debt.[ci]
(c) A Mahomedan woman, Khatiza, dies
leaving a minor son and a daughter. After her death a suit is brought by a
creditor of the deceased "against Khatiza, deceased, represented by her
minor son represented by his guardian",[cii]
and a decree is passed in that form. The deceased was entitled to a share in a Khoti
Vatan and "the right, title, and interest of Khatiza" in that
share is sold in execution of the decree. The purchaser acquires a title
unimpeachable by the daughter, though she was not a party to the suit or to the
subsequent proceedings in execution.[ciii]
[No reference was made in the judgment to the Calcutta cases cited above nor to
the Allahabad cases cited in illustration (f)].[civ]
(d) A Mahomedan dies leaving a widow, a
minor son, and two daughters. After his death a suit is brought by a mortgagee
from the deceased against the son as represented by his guardian and mother,
claiming possession of the land mortgaged to him as owner under a gahan
lahan clause in the mortgage. The widow is in possession of the estate and
a decree ex-parte is passed directing her to deliver possession of the
land to the mortgagee, and he is accordingly put in possession. The decree
binds the daughters though they were not parties to the suit, and they are not
entitled to redeem the mortgage as against the mortgagee or a purchaser from
him.[cv]
(e) A Mahomedan dies leaving a widow and
a daughter. After his death C, a creditor of the deceased, sues the
widow for the recovery of a debt due to him and a decree is passed in his
favour for Rs. 327 to be recovered out of the estate of the deceased. In
execution of the decree, the right, title and interest of the deceased in a
house is sold and it is purchased by P. The daughter, who was not a
party to the suit, subsequently sues P to recover by partition her share
in the house. Held, disapproving the cases cited in illustrations, (c) and (d),
that the daughter, not being a party to C's suit , was not bound by the
decree passed in the suit, and that the sale did not pass her interest in the
house to P , and that she was entitled to recover her share in the
house.[cvi]
(f) A creditor of a deceased Mahomedan
obtains a decree upon a hypothecation bond "for recovery of his debt by
enforcement of lien" against one of the heirs of the deceased in
possession of the estate. The whole estate is sold in execution of the decree,
and it is purchased by the decreeholder. Subsequently another heir of the
deceased, who was not a party to these proceedings, sues the decree-holder as
purchaser for recovery of his share in the estate. According to the Allahabad
High Court, he is entitled to possession of his share on payment of his
proportionate share of the debts, if the sale proceeds were applied in payment
of the debt.[cvii]
(g) A creditor of a deceased Mahomedan
obtains a money decree against an heir of the deceased in possession of the
estate, and attaches certain immovable property forming part of the estate in
execution of the decree. The value of the immovable property exceeds the share
of the defendant. According to the Allahabad High Court, the defendant is
entitled to object to the attachment and sale of the right and interest of the
other heirs who were not parties to the suit, upon the ground that as regards
them he is in possession of the property as trustee.[cviii]
(h) A creditor of a deceased Mahomedan
filed a suit against his widow, without making his daughters parties to the
suit. He obtained a decree and attached an immovable property which was in the
joint possession of the widow and the two daughters. The daughters filed a suit
for a declaration that the decree was not binding on their shares. It was held
that the decree was not binding on their shares, and as there was no sale of
the property, they could not be called upon to pay the proportionate share of
the debt of the deceased before the grant of the declaration.[cix]
(i) M, K and L mortgaged certain
immovable properties in favour of R. A few years later, after M had
died, R commenced an action for enforcement of the mortgage against K,
L and three widows and a daughter of M. In execution of the
decree passed in the action the properties were sold at a Court auction and
purchased by R, who then transferred them to others. Thereafter, the
plaintiff, claiming that he was the son of M, sued for a decree for
partition of the mortgaged properties "by metes and bounds" and in
the alternative for a declaration that he was entitled to redeem the mortgage
or a portion thereof equal to his share in the mortgaged properties. The plaintiffs
suit was resisted by R and the other alienees of the properties mainly
on the ground that the decree obtained by R was binding on the plaintiff
as the estate of M was fully represented in the suit by those who were
in possession at the time; and that R had made full and bona fide enquiry
and had learnt that the three widows and the daughter of M were the only
surviving members of the latter's family. It was held that the plaintiff was
bound by the decree of 1940 as the estate of M was fully represented in
the suit.[cx]
09. Alienation by one of
several heirs for payment of debts:- One of several heirs of the deceased
Mahomedan, though he may be in possession of the whole estate of the deceased,
has no power to alienate the shares of his co-heirs, not even for the purpose
of discharging the debts of the deceased. If he sells or mortgages any property
in his possession forming part of the estate of the deceased, though it may be
for payment of the debts of the deceased, such sale or mortgage operates as a
transfer only of his interest in the property. It is not binding on the other
heirs or the other creditors of the deceased.[cxi]
The transferor, of course, is, in his turn, entitled to obtain contribution
from his co-heirs.
It has been so held by a Full Bench of the
Madras High Court overruling Pathummabi v. Vittil,[cxii]
an earlier decision of the same High Court, and dissenting from the Allahabad
decision in Hasan Ali v. Mehdi Husain.[cxiii]
The Madras Full Bench decision has been followed by the Bombay High Court[cxiv]
and approved by the Privy Council.[cxv]
In the under mentioned case, a single Judge of the Lahore High Court has held
that if an heir who is in possession of the property seeks a declaration that
the alienation effected in respect of that property without joining him in the
transaction is illegal, he cannot be called upon to pay a proportionate share
of the debts of the deceased as a condition precedent to the suit being
decreed.[cxvi]
As to ostensible ownership, see Mubarak-un-Nissa
v. Muhammad,[cxvii]
a case under section 41 of the Transfer of Property Act, 1882.
10. Recovery through Court of
debts due to the deceased:- No Court shall pass a decree against a debtor
of a deceased Mahomedan for payment of his debts to a person claiming on
succession to be entitled to the effects of the deceased or to any part
thereof, or proceed upon an application of a person claiming to be so entitled,
to execute against such a debtor a decree or order for the payment of his debt,
except on the production, by the person so claiming, of a probate or letters of
administration evidencing the grant to him of administration to the estate of
the deceased, or a certificate granted under
S. 31 or S. 32 of the Administrator-General's Act, 1913, and having the
debt mentioned therein, or a succession certificate granted under Part X of the
Indian Succession Act , 1925, and having the debt specified therein, or a
certificate granted under the Succession Certificate Act, 1889 or a certificate
granted under Bombay Regulation VIII of 1827, and, if granted after the first
day of May, 1889, having the debt specified therein.
Explanation:-- The word
"debt" in this section includes any debt except rent, revenue or
profits payable in respect of land used for agricultural purposes.
The section reproduces the provisions of S.
214 of the Indian Succession Act, 1925.
Probate and letters of administration:- It is not
necessary in the case of a Mahomedan will that the executor should obtain
probate of the will to establish his right as such in a Court of justice [Indian
Succession Act, 1925, S. 213(2)].[cxviii]
Nor is it necessary, where a Mahomedan has died intestate that his heirs should
obtain letters of administration to establish their right to any part of the
property of the deceased in a Court of Justice [Indian Succession Act, 1925, S.
212(2)]. But where a suit is brought to recover a debt due to the deceased, the
Court shall not pass a decree except on production of probate or of letters of
administration or a certificate.
Recovery of debts through Court:- It must be
observed that the rule laid down in the present section applies only where a
debt due to the deceased is sought to be recovered through a Court . A
debtor of a deceased person may pay his debt to the executor, though he may not
have obtained probate, or, where he has died intestate, to his heirs even if
they had not taken out letters of administration or a certificate and such
payment will operate as a discharge to the debtor. But payment of a debt by a
debtor to one of several heirs does not discharge the debt as to all.[cxix]
Where a debt is sought to be recovered by legal proceedings, it is not
necessary that the plaintiff should have obtained either probate or letters of
administration or a certificate before the date of the institution of the
suit . It is enough if he produces the grant before the passing of the
decree.[cxx]
Debt:- A suit by one member of a family to
recover his share of the family property from the other members is not a suit
to recover a "debt".[cxxi]
A suit asking for a personal decree against the mortgagor in respect of a
mortgage is a suit for a "debt." But there is a conflict of opinion
as to whether a suit for sale of the mortgaged property is a suit for a
"debt." The High Court of Allahabad has held that it is.[cxxii]
The High Courts of Calcutta,[cxxiii]
Bombay[cxxiv]
and Madras[cxxv]
have held that it is not.
11. Alienation by co-sharer
before partition:- Where one of two or more co-sharers mortgages
his undivided share in some of the properties held jointly by them, the
mortgagee takes the security subject to the right of the other co-sharers to
enforce a partition and thereby to convert what was an undivided share of the
whole into a defined portion held in severalty. If the mortgage, therefore, is
followed by a partition, and the mortgaged properties are allotted to the other
co-sharers, they take those properties in the absence of fraud, free from the
mortgage, and the mortgagee can proceed only against the properties allotted to
the mortgagor in substitution of his undivided share.[cxxvi]
The Chief Court of Sind has held that a
co-sharer may file a suit for partial partition. Where a co-sharer alienates a
part only of the property without authority from the other co-sharers, the
purchaser is not entitled to adjustment of equities in respect of other
properties held in co-ownership, which have not been alienated to the
purchaser. If, however, a co-sharer, who has alienated specific property
without the consent of the other co-sharers, files a suit for general
partition, the question of adjustment of equities between the purchaser and the
co-sharers may arise, but a purchaser cannot compel the co-sharer, who had
alienated specific property, to file a suit for general partition.[cxxvii]
This may be explained as follows. A, B and C are
co-sharers of properties X, Y and Z. A without the
consent of B and Q alienates property X. B and C
may ask for the partition of property X only. They are not bound to ask for
partition of properties X, Y and Z. If only property X' is being
partitioned, the purchaser will get only the share of A in the property. If,
however, there is a suit for the partition of all the properties, the Court may
allot property X to A's share, if this is equitable to the other
co-sharers. The purchaser cannot compel A to file a suit for properties X, Y
and Z, as the purchaser has no legal interest in properties Y and
Z. However, a Single Bench of the Madhya Pradesh High Court has held
that when a co-owner has the right of claiming general partition of all the
properties, the same right ought not to be denied to an alienee of the specific
item of property from some of the co-owners. The alienee obtains a personal
right which he is equitably entitled to enforce against the share of his
vendors which can only be done by a general partition of the entire property.[cxxviii]
12. Enactment relating to
administration:- In matters not herein before specifically
mentioned, the administration of the estate of a deceased Mahomedan is governed
by the provisions of the following Acts to the extent to which they are
applicable to the case of Mahomedans, namely:--
(1) The Indian Succession Act, 1925;
(2) The Administrator-Generals Act,
1913; and
(3) Bombay Regulation VIII of 1827.
Such of the provisions of the
Administrator-Generals Act as apply to Mahomedans come into operation when a Mahomedan
dies leaving assets within the local limits of the ordinary original civil
jurisdiction of the High Court of Calcutta, Madras or Bombay. In such a case,
the Court may, upon the application of any person interested in the assets,
direct the Administrator-General to apply for letters of administration of the
effects of the deceased, if the application satisfies the Court that such grant
is necessary for the protection of the assets (See S. 10 of the Act, and also S. 13
).
08. GENERAL RULES OF INHERITANCE
Even though what is stated in last heading Succession and Administration
are truly the basics of Sunni Law, another set of principles called General
Rules of Inheritance are applicable for Indian Mohamedans.
01. Nature of the Heritable
Property:- Heritable property is that property which is
available to the legal heirs for inheritance. After the death of a Muslim, his
properties are utilised for the payment of funeral expenses, debts and the
legacies i.e. wills, if any. After these payments, the remaining property is
called heritable property. For purposes of inheritance, Muslim law does
not make any distinction between corpus and usufruct or, between movable and
immovable, or, corporeal and incorporeal property. Under English law, there is
some difference in the inheritance of movable and immovable property. But,
under Muslim law there is no such distinction; any property, which was in the
ownership of the deceased at the moment of his death, may be the subject-matter
of inheritance. In a Mahomedan family there
is a presumption that the cash and household furniture belong to the husband.[cxxix]
Shia Law:
Under the Shia law, a childless
widow is entitled to get her share (1/4) in the inheritance only from the
movable property left by her deceased husband.
02. Joint or Ancestral
Property:- The concept of a joint family or of co-parcenaries’
property (as is recognised under Hindu law) is not known to Muslims. Whenever a
Muslim dies, his properties devolve on his heirs in definite share of which
each heir becomes an absolute owner. Subsequently, upon the death of such heir,
his properties are again inherited by his legal heirs, and this process
continues. Thus, unlike Hindu law, there is no provision for any ancestral or
joint-family property. Accordingly, under Muslim law of inheritance, no
distinction has been made between self-acquired and ancestral property. All
properties, whether acquired by a Muslim himself or inherited by his ancestors,
are regarded as an individual property and, may be inherited by his legal
heirs. There is no such thing as a joint
Mahomedan family nor does the law recognize a tenancy in common in a Mahomedan
family.[cxxx]
In Sahul
Hamid v. Sulthan[cxxxi] it
was held by Rajmannar J. (as he then was): "The Mahomedan law does not
recognize a joint family as a legal entity. In fact according to the rules of
Mahomedan Law of Succession, heirship does not necessarily go with membership
of the family. There are several males and females who have no interest in the
heritage but may be members of the family. On the other hand there are several
heirs like, for example, married daughters of a deceased male owner who take an
interest in the estate but are no part of the family."[cxxxii]
However, if a custom of the family establishing joint
holding as is common among Hindus is proved, it will be given effect. Additions
to the joint estate by the managing member of a Mahomedan family will be
presumed to have been made from the joint estate and will be for the benefit of
all the members. But acquisition of property not attributable to the family
assets will not be for the family. However, if all the members of the family
live in commensality and are in joint possession of family properties, it will
be for the person claiming property as his own to show that the source of the
property was his own.[cxxxiii]
The personal law of Muslims does not recognize a system of joint holding as is
common amongst Hindus. There may be cases, however, where a custom may be set
up in the matter of the holding of such properties by some of the members of a
Muslim family, whereby it could be established that such possession and title
in some of the members is customarily to be interpreted and understood as
possession on behalf of all the members.
Acquisition of property independently by a member cannot
automatically be said to be for the benefit of the family. If there is
conclusive evidence that a member of the Muslim family, who acquired such
properties gained an advantage to himself and caused prejudice to others and if
such acquisition is traceable to surplus family assets or funds from and out of
which the property could have been purchased, then matters would be different.
Again it is also necessary to prove that the members were living jointly and
enjoying the property jointly and in common.[cxxxiv]
"It was stated that where some of the members of the
Muslim joint family who were in possession of certain property made subsequent
acquisitions, additional acquisitions would belong to all the members of the
joint family unless and until it is proved that the subsequent acquisitions
were made by members in possession out of their independent income. In this
view there is no necessity for other co-owners whatever to show that the income
from the family properties yielded a surplus so as to enable the co-owners in
possession to purchase the subsequent additional property".
Renunciation or relinquishment need not be expressly
stated in the document. It can be inferred from the conduct of the parties. If
a suit for partition in a Mohamedan family is brought after 12 years and the
plaintiff fails to explain his or her inaction, renunciation can be inferred.
If renunciation is pleaded in the document and renunciation is accepted by the
parties in that case, he or she must be estopped from claiming partition, as it
is a part of family arrangement. Strictly speaking such renunciation will not
forbid her from claiming partition, but in order to maintain harmony and peace
in the family renunciation should be treated as estoppel to the party concerned.[cxxxv]
Joint family and joint family business:- (1) When the members of a Mahomedan family live in commonsality, they do
not form a joint family in the sense in which that expression is used in the
Hindu Law.[cxxxvi]
(z). Further, in the Mahomedan law, there is not as in the Hindu law, any
presumption that the acquisitions of the several members of a family living and
messing together are for the benefit of the family.[cxxxvii]
But if during the continuance of the family properties are acquired in the name
of the managing member of the family, and it is proved that they are possessed by
all the members jointly, the presumption is that they are the properties of the
family, and not the separate properties of the member in whose name they stand.[cxxxviii]
(2) If after the death of a Mahomedan his adult sons
continue their father's business, and retain his assets in the business, they
will he deemed to stand in a fiduciary relation to the other heirs of the
deceased. and liable to account as such for the profit made by them in the
business.[cxxxix]
If after the death of the sons the business is continued by their sons or by
other heirs, they also will be liable to account on the same footing.[cxl]
(3) Members of a Mahomedan family carrying on business
jointly do not constitute a joint family firm in the sense in which that
expression is used in the Hindu law so as to attract the legal incidents of
such a firm.[cxli]
Sons assisting a father in business are presumably his agents and not his
partners unless an agreement of partnership is proved.[cxlii] A
minor may be entitled to a benefit in the business, but this will not make him
liable on a mortgage executed by him along with his adult brothers in the
course of the business carried on by the latter. The managers of such a
business in a Mahomedan family have no right to impose any liahility on the
minor members of the family.[cxliii]
There is no provision of Mahomedan Law recognizing a
joint family. In Andhra Pradesh Muslim families live together and do business
together. Such business may he carried on for the benefit of the family
including minors and females. Such arrangements have been upheld by Courts. In
such a case the adult member or members stand in a fiduciary capacity and the
Trust Act is applicable. When the co-owner dies his heirs take his place.[cxliv]
The burden of establishing that a property held by a
member in Mahomedan family is his self-acquired property would arise only if
the property is held commonly by the other members of the family and the entire
family lives in commensality possessing the family property in common.[cxlv]
As the theory of representation is unknown to Mahomedan
law, and as there is no presumption that acquisition of one or more of the
properties of the family are to be presumed to be for the benefit of the
family. Unless there is proof to the contrary and as children in a Mahomedan
family are not co-owners in the sense that what is purchased by one person enures
for the benefit of another.[cxlvi]
03. No Birth-Right:- Inheritance
opens only after the death of a Muslim. No person may be an heir of a living
person (Nemoest haeres viventis). Therefore, unless a person dies, his heirs
have no interest in his properties. Unlike Hindu law that preach the concept of
‘right by birth’ (Janmaswatvavad), Muslim law holds that an heir does not
possess any right at all before the death of an ancestor. It is only the death
of a Muslim which gives the right of inheritance to his legal heirs. Until a
person dies, his relatives are not his legal heirs; but simply his
heir-apparent and have merely a ‘chance of succession, (spes successions). If
such an heir-apparent survives a Muslim, he becomes his legal heir and the
right of inheritance accrues to him. If the heir-apparent does not survive a Muslim,
he cannot be regarded an heir and has no right to inherit the property.
The right of an heir-apparent or presumptive comes into
existence for the first time on the death of the ancestor and he is not
entitled until then to any interest in the property to which he would succeed
as an heir if he survived the ancestor.[cxlvii]
Illustration
A, who has a son B, makes
a gift of his property to C. B, alleging that the gift was procured by undue
influence, sues C in A 's lifetime on the strength of his right
to succeed to A's property on A's death. The suit must be dismissed for B has
no cause of action against C. B has no cause of action, for he is not
entitled to any interest in A's property during A's lifetime.[cxlviii]
But the gift would be liable to be set aside if the suit was brought after A’s
death, provided it was brought within the period of limitation.[cxlix]
Such a right as that claimed by B in the above
illustration is a mere spes successions, that is an expectation or hope
of succeeding to A's property if B survived A.[cl]
The Mahomedan law "does not recognize any... interest expectant on the
death of another, and till that death occurs which by force of that law gives
birth to the right as heir in the person entitled to it according to the rules
of succession, he possesses no right at al.l"[cli]
04. Doctrine of
Representation:- Doctrine of representation is a well known
principle recognised by the Roman, English and Hindu laws of inheritance. Under
the principle of representation, as is recognised by these systems of laws, the
son of a predeceased son represents his father for purposes of inheritance. The
doctrine of representation may be explained with the help of the diagram given
below. P has two sons A and B. A has got two sons С and D and В has a son E.
During the life of P, his family
members are his two sons (A and B), and three grandsons (C, D and E).
Unfortunately, В pre-deceases P, i.e. В dies before the death of P.
Subsequently, when P also dies, the sole surviving members of the family of P
are A and three grandsons, C, D and E.
Under the doctrine of
representation, E will represent his pre-deceased father В and would be
entitled to inherit the properties of P in the same manner as В would have
inherited had he been alive at the time of P’s death.
But, Muslim law does not recognise
the doctrine of representation. Under Muslim law, the nearer excludes the
remoter. Accordingly, in the illustration given above, E will be totally
excluded from inheriting the properties of P. Both, under Shia as well as under
Sunni law, E has no right to inherit the properties of P. The result is that E cannot
take the plea that he represents his pre-deceased father (В) and should be
substituted in his place.
Under Muslim law, the nearer heir
totally excludes a remoter heir from inheritance. That is to say, if there are
two heirs who claim inheritance from a common ancestor, the heir who is nearer
(in degree) to the deceased, would exclude the heir who is remoter. Thus,
between A and E, A will totally exclude E because A is nearer to P in degree
whereas, E belongs to the second degree of generation. The Muslim jurists
justify the reason for denying the right of representation on the ground that a
person has not even an inchoate right to the property of his ancestor until the
death of that ancestor.
Accordingly, they argue that there
can be no claim through a deceased person in whom no right could have been
vested by any possibility.
According to the Sunni Law, the expectant right of an
heir-apparent cannot pass by succession to his heir, nor can it pass by bequest
to a legatee under his will.[clii]
According to the Shia law, it does pass by succession in some cases.
Illustration
A, a Sunni Mahomedan, has
two sons, Band C, B dies in the lifetime of A, leaving a son D.
A then dies leaving C, his son, and D, his grandson. The whole of
A's property will pass to C to the entire exclusion of D. It is not open
to D to contend that he is entitled to B's share as representing B.[cliii]
In the case cited above their Lordships of the Privy Council observed:
"It is a well-known principle of Mahomedan law that if any of the children
of a man die before the opening of the succession to his estate, leaving
children behind, these grand-Children are entirely excluded from the
inheritance by their uncles and their aunts." The son of a predeceased son
is therefore not an heir.[cliv]
If in the above case, B bequeathed any portion of
his expectant share in A's property to X, the latter would take nothing
under the will. "A mere possibility such as the expectant right of
an heir-apparent, is not regarded as present or vested interest, and cannot
pass by succession, bequest or transfer so long as the right has not actually
come into existence by the death of the present owner."[clv]
05. Per Capita and Per- Strip
Distribution:- Succession among the heirs of the same class
but belonging to different branches may either be per-capita or per-strips. In
a per-capita distribution, the succession is according to the ‘number of heirs’
(i.e. heads). Among them the estate is equally divided; therefore, each heir
gets equal quantity of property from the heritable assets of the deceased.
On the other hand, in a per strip
distribution, the several heirs who belong to different branches, get their
share only from that property which is available to the branch to which they
belong. In other words, in the stripital succession, the quantum of property
available to each heir depends on the property available to his branch rather than
the number of all the heirs.
Under Sunni law, the distribution
of the assets is per-capita. That is to say an heir does not in any respect
represent the branch from which he inherits. The per-capita distribution may be
illustrated by the following diagram.
M has got two sons A and B. A has
three sons, S1, S2 and S3. В has two sons S4
and S5. When M dies there are two branches of succession, one of A
and the other of B. Suppose, A and В both die before the death of M so that the
sole surviving heirs of M are his five grandsons.
Now, under the per-capita scheme
of distribution (as recognized under Sunni law) the total number of claimants
(heirs) is five and the heritable property would be equally divided among all
of them irrespective of the branch to which an heir belongs.
Therefore, each of them would get
1/5 of the total assets of M. It may be noted that under Sunni law the
principle of representation is recognized neither in the matter of determining
the claim of an heir, nor in determining the quantum of share of each heir.
Shia Law:
Under the Shia law, if there are
several heirs of the same class but they descend from different branches, the
distribution among them is per strip. That is to say, the quantum of property
inherited by each of them depends upon the property available to that
particular branch to which they belong. In the above-mentioned illustration, A
and В constitute two branches, each having 1/2 of M’s property. Both, A and В
pre-decease M.
But, the quantum of property
available to each of their branch would remain the same. Therefore, the
surviving heirs of A namely, S1, S2, S3 would
get equal shares out of 1/2 which is quantum of property available to the
branch of A. Thus S1, S2 and S3 would get 1/6
each. Similarly, the quantum of property available to the branch of В is also
1/2 but the descendants from this branch are only two. Accordingly, the 1/2
property of В would be equally shared by S4 and S5.
Therefore, S4 and S5
would get 1/4 each. It is significant to note that for a limited purpose of
calculating the share of each heir, the Shia law accepts the principle of
representation. Moreover, under the Shia law this rule is applicable for
determining the quantum of share also of the descendants of a pre-deceased
daughter, pre-deceased brother, pre-deceased sister or that of a pre-deceased
aunt.
06. Female’s Right of Inheritance:- Males and females have equal rights of inheritance. Upon the death of a Muslim, if his heirs include also the females then, male and female heirs inherit the properties simultaneously. Males have no preferential right of inheritance over the females, but normally the share of a male is double the share of a female.
In other words, although there is
no difference between male and female heir in so far as their respective rights
of inheritance is concerned but generally the quantum of property inherited by
a female heir is half of the property given to a male of equal status (degree).
The principle that normally the
share of a male is double the share of a female has some justification. Under
Muslim law, while a female heir gets (or hopes to get in future) an additional
money or property as her Mehr and maintenance from her husband, her male
counterpart gets none of the two benefits. Moreover, the male heir is primarily
liable for the maintenance of his children whereas, the female heir may have
this liability only in an extraordinary case.
Daughters as a rule are entitled to inheritance. But sometimes
they are excluded from inheritance by custom or statute. In such a case the
shares of other heirs are calculated as if daughter did not exist.
Among the Gujars and Bakkerwals of Nunar of Punjab and
Jammu and Kashmir, daughters are excluded from inheritance by custom. They
succeed to the property only in default agnates.[clvi] Agnates
mean grandfather's descendants in the male line.[clvii]
Illustration
Under the Bombay Watan Act, 1886, if a Muslim Watenndar
died leaving a widow, a daughter and a paternal uncle; then the daughter had no
right to share in watan land. In such a case the widow and uncle take
the land as if the daughter did not exist. The widow will take 1/4, and the
uncle the residue, 3/4. The widow will take only a life-interest in her share.
If the daughter were not excluded, she would have taken 1/2, the widow 1/8, and
the uncle the residue, 3/8.
Where daughters are excluded from inheritance either by
custom[clviii]
or by statute[clix]
they should be treated as non-existent, and the shares of the other heirs
should be calculated as they would be in default of daughters. There is no
custom that daughter can inherit her father's property only as Khananishia daughter
or not at all. Such custom has to be pleaded and proved by cogent evidence.[clx]
Under the Ithana Ashari law, a childless widow wiII not
entitled to a share in her husband's land, both agricultural as well as urban.
However, she is entitled to her share in the value of trees and buildings standing
on the land as well as share in the movable property of her husband. Immovable
property includes the debts due to her husband.[clxi] In
Abdul Hammed Khan v. Peare Mirza[clxii]
it was held that a childless widow
in the absence of other heirs was entitled to inherit not merely her share but
also rest of the property including the land of her husband by the application
of the doctrine of return.
07. A Child in the Womb:- A child in the womb of its mother is competent to inherit provided it is born alive. A child in embryo is regarded as a living person and, as such, the property vests immediately in that child. But, if such a child in the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no such heir (in the womb) at all.
A still-born child is treated as having been born alive
if its mother was treated with violence as a consequence of which she gave
birth to it. The law among the Shias and the Sunnis in this regard is the same.
08. Primogeniture:- Primogeniture is a principle of inheritance under which the eldest son of the deceased enjoys certain special privileges. Muslim law does not recognize the rule of primogeniture and all sons are treated equally.
However, under the Shia law, the
eldest son has an exclusive right to inherit his father’s garments, sword, ring
and the copy of Quran, provided that such eldest son is of sound mind and the
father has left certain other properties besides these articles.
A special rule of succession by primogeniture is enacted
for the taluqdars of Oudh by the Oudh Estates Act I of 1869 and the Oudh
Estates Amendment Act III of 1910. Succession is to the nearest male agnate
according to the rules of lineal primogeniture. A daughter's son is not a male
agnate and is therefore not entitled to succeed.[clxiii]
As the Oudh Estates Act has laid down specific rules for devolution of
taluqdari property and has in this respect displaced the Mahomedan law, such
property should not be taken into consideration in determining the bequeathable
one-third share of the entire assets of a Mahomedan testator.[clxiv]
Under the Ithana Ashart law, the
eldest son who is of sound mind is exclusively entitled to wearing apparel of
his father, his copy of Koran, his sword and his ring, provided the
father had left some other property besides these.
09. Step-Children:- The step-children are not entitled to inherit the properties of their step-parents. Similarly, the step-parents too do not inherit from step-children. For example, where a Muslim H marries a widow W having a son from her previous husband, the son is a stepson of H, who is step-father of this son.
The step-father and step-son (or
daughter) cannot inherit each other’s properties. That step-child is competent
to inherit from its natural father or natural mother. Similarly, the natural
father and natural mother can inherit from their natural sons or daughters.
However, the step-brothers (or
sisters) can inherit each other’s properties. Thus, in the illustration given
above, if a son (or daughter) is bom out of the marriage of H and W, the newly
born child would be a step-brother (or sister) of the son from wife’s previous
husband.
These sons or daughters are
competent to inherit each other’s property. The step-brothers or sisters may
either be, uterine or consanguine. Muslim law provides for mutual rights of inheritance
between uterine and consanguine brothers or sisters.
Since stepparents are not related to their stepchildren they
are not entitled to inherit the property of their stepchildren.
10. Simultaneous Death of two Heirs:- When two or more persons die in such a circumstance that it is not ascertainable as to who died first (i.e. who survived whom) then, both of them cease to be an heir for each other. In other words, where two or more heirs die simultaneously and, it is not possible to establish as to who died first then under Muslim law, all the heirs are presumed to have died just at one moment. The result is that such heirs are regarded as if they did not exist at all; the inheritance opens omitting these heirs.
For example, A and В are each
other’s legal heirs in such a manner that after the death of any one of them,
the surviving person would inherit the property of the deceased one. But, both
A and В die simultaneously say, in an aero plane crash, and it could not be
established as to who survived whom. Under Muslim law, neither A would inherit
В nor В would inherit A.
Thus, the legal heirs of A would
inherit A’s property as if there was no В at all. Similarly, the heirs of В
would inherit B’s property as if A did not exist at all.
11. Missing Persons:- According to the texts of Hanafi law, a missing person was supposed to have been dead only after ninety years from the date of his birth; till then the inheritance of his properties did not open. But, now this rule has been superseded by Sec. 108 of the Indian Evidence Act, 1872 which provides as under:
“When the question is whether a
man is alive or dead, and it is proved that he has not been heard of for seven
years by those who would naturally have heard of him if he had been alive, the
burden of proving that he is alive is shifted to the person who affirms it”.
Accordingly, where a Muslim is
missing for at least seven years and if it could not be proved that he (or she)
was alive then, that person is legally presumed to be dead and the inheritance
of his (or her) properties opens.
It has been held by the courts
that Hanafi rule of ninety years of life of a missing person was only a rule of
evidence and not any rule of succession; therefore, this Hanafi rule must be
taken as superseded by the provisions of Indian Evidence Act 1872.
If an heir is absent at the time of the distribution of
assets, then his share has to be kept apart for him until such time as he is
presumed to be died.[clxv]
12. Escheat:- Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat. State is regarded as the ultimate heir of every deceased.
13. Marriage under the Special Marriage Act, 1954:- Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for purposes of inheritance. Accordingly, after the death of such a Muslim his (or her) properties do not devolve under Muslim law of inheritance. The inheritance of the properties of such Muslims is governed by the provisions of the Indian Succession Act, 1925 and Muslim law of inheritance is not applicable.
14. Transfer of spes
Successionis: Renunciation of chance of succession:- The
chance of a Mahomedan heir-apparent succeeding to an estate cannot
be the subject of a valid transfer or release.[clxvi]
Illustration
A has a son B and a
daughter C. A pays Rs. 1,000 to C and obtains from her a writing whereby
in consideration of Rs. 1000 received by her from A, she renounces her
right to inherit A’s property. A then dies and C sues B for her share
(one-third) of the property left by A. B sets up a defence the release passed
by C to her father. The release is no defence to the suit, and C is entitled to
her share of the inheritance, as the transfer by her was a transfer merely of a
spes successionis, and as such inoperative. But C is bound to
bring into account the amount received by her from her father.[clxvii]
The rule of Mahomedan law that an heir cannot renounce
his right to inherit is not different from the law under the Transfer of
Property Act, 1882, Sec. 6 (a). That section provides that "the chance of
an heir-apparent succeeding to an estate, the chance of a relation obtaining a
legacy on the death of a kinsman, or any other mere possibility of a like
nature, cannot be transferred."
It has been held by the Allahabad and Travancore-Cochin
High Courts that a Mahomedan heir may by his conduct be estopped from claiming
the inheritance he has agreed to relinquish if the release was part of a
compromise or family settlement and if he has benefited by the transaction.[clxviii]
But this view has been expressly dissented from by the
Madras and Kerala High Courts on the ground that not only can such a view not
be justified in Mahomedan Law, but is also contrary to S. 6 (a) of the Transfer
of Property Act and S. 23 of the Indian Contract Act, 1872.[clxix]
The conflict between the Madras and Kerala view on the
one hand and the Allahabad and Travancore view on the other was resolved by
approving the Allahabad view. It was observed “a bare renunciation of an
expectation to inherit cannot bind the expectant heir's conduct in the future.
But if the expectant heir goes further and receives consideration and so
conducts himself as to mislead an owner into not making dispositions of his
property, inter vivos, the expectant heir should be debarred from setting up
his right when it does unquestionably vest in him. In other words the principle
of estoppel remains untouched by this statement.
The question that arose were:
(1) A mere expectancy to succeed cannot be subject of
transfer and such a transfer is void;
(2) Can such an expectancy be removed after receiving
consideration?
(3) Will such a conduct create an estoppel in the future?
(4) Can a right be renounced even before it was vested?
These question may now be taken to have been settled.[clxx]
A husband gives immovable property to his wife in lieu of
her dower, and agrees not to claim any share of it as her heir on her death. Is
the agreement valid and binding on the husband? The
High Court of Allahabad has held that it is binding on
the husband.[clxxi]
15. Life-estate and vested remainder:- (1) Sunni
Law.- The Judicial Committee in Humeeda v. Budlun (1872)
17 W.R. 525 observed that "the creation of (such) a life estate does not
seem to be consistent with Mahomedan usage and there ought to be very clear
proof of so unusual a transaction"; and in Abdul Gafurv. Nizamuddin (1892)
19 I.A 170 referred to" life-rents" as a kind of estate which does
not appear to be known to Mahomedan law". The difficulty arises out of the
Mahomedan law of gift and does not appear to extend beyond cases of pure hiba
whether inter vivos or by will. If a gift be made subject to a
condition which derogates from the grant, the condition is void, e.g., a
partial restraint on alienation; but a condition which does not affect the
corpus of the thing given is not within the rule, e.g. when there is a
reservation of income to the donor or a gift of usufruct to another donee. In
the Hedaya, the principle is applied to amrees (gift for life). The
Prophet approved of amrees but held the condition annexed to them by the
grantor to be void the meaning of amree moreover is nothing but a gift and a
condition; and the condition is invalid; but a gift is not rendered null by
involving an invalid condition". Accordingly it was held in certain cases that
a gift for life operates as an absolute gift.[clxxii]
The assumption underlying this doctrine however is that
what is given is the corporeal thing itself; and as the refusal to permit gifts
of life interests produces serious inconvenience and gives rise to some
unprofitable distinctions, the assumption has not gone without challenge. Can
it not be held that what is given is not the land but an interest therein; and
that this is given unconditionally there being no intention to make a gift of
the corpus? In Nawazish Ali Khan v. Ali Raza Khan (1948) 75 I.A.
62, (‘48) A.P.C. 134 which was a Shia case the Privy Council stated that
there was no difference between the several schools of Muslim law in their
fundamental conception of property and ownership. A limited interest takes
effect out of the usufruct under any of the schools. The duty of the Court is
to construe the gift. If "it is a gift of the corpus," their
Lordships said, "then any condition which derogates from absolute dominion
over the subject of the gift will be rejected as repugnant; but if upon
construction the gift is held to be one of a limited interest the gift can take
effect out of the usufruct, leaving the ownership of the corpus unaffected
except to the extent to which its enjoyment is postponed for the duration of
the limited interest".
In Amjad Khan v. Ashraf Khan[clxxiii]
this question was raised in an acute form. The deed described the
transaction as a gift without consideration. It recited that the donee and the
heirs of the donor had consented. By it the donor gave to his wife his entire
property as to one-third with power to alienate and
"as to the rest she shall not possess any power of
alienation but she shall remain in possession thereof for her lifetime. After
the death of the donee the entire property gifted away by this document shall
revert to the donor's collaterals." On the question whether the interest
given in the one-third was an absolute interest or was only a life interest
plus a power to alienate, the Judicial Committee took the latter view. Their
Lordships decided the case by asking, as matter of construction of the deed,
what was the subject matter of the gift? Was it merely a life interest in the
property together with a power of alienation over one-third thereof? Or was it
an absolute interest in the property coupled with an inconsistent condition?
Holding on the construction of the deed that the subject-matter of the gift was
a life Interest only (together with the power of alienation as to one-third)
they dismissed the appeal of the donee's heir: the gift of a life-estate was
not given the effect of an absolute estate. On the argument that a life-estate
could not be created by gift inter vivos their Lordships expressed no
opinion, holding that, if right, it would only mean that the donee took nothing
by the gift - a result which would carry no benefit to her heir.
It is not possible to read this decision as proceeding
upon the ground that the case was not one of hiba pure and simple. It is
direct authority against regarding a life interest as enlarged by the doctrine
which invalidates a condition restrictive of a gift and the decision to that
effect above noted[clxxiv]
must be treated as overruled by it. Subsequent decisions have so interpreted
the Board's judgment.[clxxv]
Both as regards life-estates and remainders there is
considerable uncertainty as to the consequences of this decision. It does not
decide that in Sunni law a life interest can be validly created by way of gift,
but the doubt hitherto cast upon the matter has had reference to the validity
of the limit in cases of gift. The validity of the grant was very old authority:
the Hedaya discloses the tradition that the Prophet approved of amrees just
as he disapproved of rikba (e.g., if I die before you then this house is
yours). A life interest is not illegal: admittedly a Mahomedan can create such
an interest by contract.
The Calcutta, Bombay, Nagpur and Travancore-Cochin High
Courts have held that a gift of a life interest is valid.[clxxvi]
The Chief Court of Oudh has held that the bequest of a life interest by will is
valid.[clxxvii]
In Nawazish Ali Khan v. Ali Raza Khan,[clxxviii],
although a Shia case, the Privy Council have made observations which are
sufficiently ample to cover Sunni cases. The effect of the decision is that a
life estate as known to English law cannot be created by hiba whether inter
vivos or by will. The question is always one of construction. In a case of
gift to A for life and thereafter to B, the courts will presumably
construe the gift as a gift of the corpus to B absolutely and of the
usufruct of A for life. The gift, however, to A for life would be
constructed as a gift of a interest to A, and the corpus would vest in
the heirs.
It remains to consider whether under Sunni law a gift of
a life-estate to A with remainder to B is a good gift to B and
whether it amounts to a vested remainder so as to take effect even if B dies
before A. By English law in such a case B takes a vested interest
and can dispose of his interest by transfer inter vivos or by will. On
his death intestate, his interest will pass to his heirs even if he predeceases
A. In Abdul Wahid Khan v. Mt. Nuran Bibi (1885) 12 I.A. 91, 11 Cal.
597 [illustration (a)] the Judicial Committee held that such an interest as a
vested remainder did not seem to be recognized by Mahomedan law, and this case
has been accepted as an authority for the proposition that the remainderman
cannot take unless he survives the tenant for life.[clxxix]
The case of Umes Chunder Sircar v. Mt. Zahoor Fatima (1890) 17 I.A. 201;
II Cal. 164 [illustration (b)] cannot be regarded as invalidating this
conclusion since the point was not taken and the principles of Mahomedan law do
not appear to have been discussed. The facts of the case sufficiently account
for the omission, but they do not enable the case to be distinguished from Abdul
Wahid Khan v. Nuran Bibi[clxxx]
in point of law; neither was a case of hiba pure and simple.
In Abdul Wahid Khan's case
the principle applied was as follows: "The arrangement contained in the
compromise would be called by the Mahomedan lawyers 'a tauris' or 'making some
stranger and heir' and cannot be regarded as creating a present or vested
interest."[clxxxi]
The above authorities must now be read subject to the
Privy Council decision in Nawazish AliKhan v. Ali Raza Khan.[clxxxii]
Although this was, as stated above, a Shia case, the observations made apply
to all schools of Muslim law Referring to the expression "life
estate" and "vested remainder" their Lordships stated as follows:-
"In their Lordships' opinion this view of the matter introduces into
Muslim law legal terms and conceptions of ownership, familiar enough in English
law, but wholly alien to Muslim law. In general, Muslim law draws no distinction
between real and personal property, and their Lordships know of no authoritative
work on Muslim law, whether the Hedaya, or Baillie or more modern works, and no
decision of this Board which affirms that Muslim law recognizes the splitting
up of ownership of land into estates, distinguished in point of quality like legal
and equitable estates, or in point of duration like estates in fee simple, in
tail, for life, or in remainder. What Muslim law does recognize and insists
upon, is the distinction between the corpus or the property itself (ayn) and
the usufruct in the property (manafi). Over the corpus of property the law
recognizes only absolute dominion, heritable, and unrestricted in point of
time; and where a gift of the corpus seeks to impose a condition inconsistent
with such absolute dominion the condition is rejected as repugnant: but
interests limited in point of time can be created in the usufruct or the property,
and the dominion over the corpus takes effect subject to any such limited
interests ....This distinction runs through all the Muslim law of gifts - gifts
of the corpus (hiba), gifts of the usufruct (ariyat) and
usufructuary bequests. No doubt where the use of a house is given to a man for
his life he may, not inaptly, be termed a tenant for life, and the owner of the
house, waiting to enjoy it until the termination of the limited interest, may
be said, not inaccurately, to possess a vested remainder. But though the same
terms may be used in English and Muslim law, to describe much the same things,
the two systems of law are based on quite different conceptions of ownership.
English law recognizes ownership of land limited in duration; Muslim law admits
only ownership unlimited in duration, but recognizes interests of limited
duration in the use of property…….. Their Lordships think that there is no
difference between the several schools of Muslim law in their fundamental conception
of property and ownership. A limited interest takes effect out of the usufruct
under any of the schools. Their Lordships feel no doubt that in dealing with a
gift under Muslim law, the first duty of the court is to construe the gift. If
it is a gift of the corpus, then any condition which derogates from absolute
dominion over the subject or the gift will be rejected as repugnant; hut if
upon construction the gift is held to be one of a limited interest the gift can
take effect out of the usufruct, leaving the ownership of the corpus unaffected
except to the extent to which its enjoyment is postponed for the duration of
the limited interest."
(2) Family settlemenl:- A life-estate may be created by an agreement in the nature of a family
settlement, whether such agreement is preceded by litigation or not, but
"the creation of such a life-estate does not seem to be consistent with
Mahornedan usage, and there ought to be very clear proof of so unusual a
transaction"[clxxxiii]
Such an agreement is from its very nature a transaction for a consideration,
and it must be distinguished from a pure hiba or gift mentioned in
sub-sec. (1) above.[clxxxiv]
(3) Hiba-bil-iwaz:- The rule stated in sub-sec. (I) above does not apply to Hiba-bil-iwaz. A
Hiba-bil-iwaz, as distinquished from a hiba or simple gift, is a gift for
consideration. It is in reality a sale, and has all the incidents of a contract
for sale. Accordingly possession is not required to complete the transfer as it
is in the case of a hiba, and an undivided share (mushaa) in property capable
of division may be lawfully transferred by it.[clxxxv]
(4) Shia law.- It was at one time thought that the Shia law allowed the creation of a
life-estate and a vested remainder, as held by Jenkins, C.J., and Heaton, J.,
in Banoo Begum's case [illustration (f)]. In two other cases however Beaman,
J., expressed the opinion that the Arabic texts there relied upon did not
support the conclusion reached, and observed that an estate for life and a vested
remainder were known to the Shia law as much as to the Sunni law.[clxxxvi]
In Nawazish Ali Khan v.Ali Raza Khan[clxxxvii] the Privy Council took the view that a life-estate
as known in English law is alien to Mahomedan law but if on the construction of
a hiba, the gift is held to be one of a limited interest the gift can take
effect out of the usufruct, leaving the ownership of the corpus unaffected except
to the extent to which its enjoyment is postponed for the duration of the limited
interest.
(5) Wakf.- Both under the Sunni and the Shia law life-estates may be created by wakf.
According to Section 3 of the Mussalman Wakf Validating Act, VI of 1913, it is
lawful for a person professing the Mussalman faith to create a wakf which is
all other respects is in accordance with the provisions of the Mussalman law,
for the following among other purposes:-
(a) for the maintenance and support wholly or partially
of his family, children or descendants and
(b) where the person creating a wakf is a Hanafi Mussalman,
also for his own maintenance and support during his lifetime or for the payment
of his debts out of the rents and profits of the property dedicated.
Provided that the ultimate benefit is in such cases
expressly or impliedly reserved for the poor or for any other purpose
recognized by the Mussalman law as religious, pious or charitable purpose of a
permanent character.
Illustrations
(a) One of two persons claiming to be the sons of Mouzzam
Khan, a Sunni, sued Gauhar Bibi, his widow, who was in possession of the suit
lands in Oudh under a Kabulyat and in pursuance of a summary settlement made by
Government in 1858. The plaintiff claimed that Mouzzam Khan had made the estate
over to him and his brother. The suit was compromised in terms contained in two
petitions to the Court, namely, that the widow should during her life-time
continue as before to possess and be mistress of the Talooka, but should
not alienate so as to deprive the plaintiff of his right and that after her
death the plaintiff and his brother should possess and enjoy it, "should become
successors to and proprietors of the said talooka". The widow survived
both. Held, that neither of them acquired any such right as would under
Mahomedan law form the subject of inheritance. "Their Lordships think this
is the reasonable construction of the compromise in this case, and that it
would be opposed to Mahomedan law to hold that it created a vested interest as
in Abdul Rahman and Abdul Subhan which passed to their heirs on
their death in the life-time of Gauhar Bibi." Also: "To give
the plaintiffs a title to the estate it must be a vested interest which, on the
death of the sons, passed to their heirs and is similar to a vested remainder
under the English law. Such an interest in an estate does not seem to be recognized
by the Mahomedan law"[clxxxviii]
(b) By a deed of settlement in 1871 a Sunni leased lands
to his second wife, Amani Begum at fixed rent of one rupee on condition that if
she had a child by him the grant should be taken as a perpetual mokurruri: if
no such child was born then it was only to be a life mokurruri and after her
death the property was to go to the two sons of the settlor, Farzund and
Farhut. Appellant and respondent both claimed to have taken title to one-half
of the property as purchasers of Farzund's right, title and interest at
execution sales. Appellant's sale was in 1879 and respondent's in 1881. At the
time of appellants' attachment the settlor, his wife and sons were all alive
but before the sale in 1897 the settlor had died. At all material times the
widow and Farzund were alive. (Both were respondents to the Privy Council
appeal: the latter died pending the hearing thereof in 1887). It could not have
been contended at the trial in 1883 or in the High Court in 1885, and it was
not contended in the Privy Council that the gift to Farzund had failed. Both
auction purchasers had the same title save that (a) the appellant was first in
time, (b) his attachment had been in the settlor's life-time. Respondent's argument
concentrated on (b) during the settlor's life the birth of a child to him was a
contingency: this contingency no longer remained in 1881.This is the only
argument dealt with in the judgment on this part of the case: it was held on
the construction of the deed of 1871 that the wife's estate was enlarged and
the sons' interest defeated on the birth of a child: not that the son's
interest failed to arise until either husband or wife had died. As presented to
the Judicial Committee by the rival auction purchasers the case raised no point
of Mahomedan law. The contention advanced in Rasoolbibi v. Usuf Ajam (1933)
57 Born. 737 at 766,148 I.C. 82, (‘33) A.B. 324 for the appellant with
reference to this case cannot be accepted. There were two elements of contingency
(a) the birth of a Child, and (b) the widow surviving Farzund. The former was
relied on by the respondent: neither sought to profit by the latter.[clxxxix]
(c) A Sunni lady, Bai Aishabai, by her will left two
properties to her daughter, Hafizabibi, for life without power of alienation
and after her death to Ajam (testatrix's step-son) and his descendants as
absolute owners. Aishabai died in 1897. Hafizabibi enjoyed the properties till
her death in 1926. Ajam died in 1919. The plaintiff was a daughter of Ajam
suing for administration of his estate. Held, that in the events which
had happened Ajam took no interest under the will. Held further by
Mirza, J., and Beaumont, C.J., (Rangnekar. J., dissenting) that Hafizabibi did
not take an absolute estate.[cxc]
(d) One Nasiruddin, a Sunni, did having by his will left
three villages to his wife, Mariarnbi, and declared that after the death of
Mariambi, Abdul Kadar should become the owner thereof. Abdul Kadar died in 1899
and Mariambi in 1904.The plaintiff was a daughter of Abdul Kadar and the
defendants were her mother and sister. If an absolute interest was created in
favour of Mariambi the plaintiff’s suit failed: if on her death the property
went to Abdul Kadar's heirs the plaintiff was entitled to a seven annas share
thereof subject to a question whether Abdul Kadar had validly made a gift to
his wife in lieu of dower. Held on reference to a Bench that Mariambi took
a life-estate only. Thereafter the appeal was disposed of on the footing that
Abdul Kadar's heirs took the reversionary interest.[cxci]
(e) By a deed of settlement the plaintiff's mother
conveyed two properties to a trustee upon trust to pay taxes and repairs and
out of the net rents and profits to pay to the settlor during her life such
moneys as she should require and the balance as therein directed: on the
settlor's death the net rents of one property were to be paid to the plaintiff:
on the death of the survivor of the settlor and the plaintiff the property was
to be held in trust for the plaintiffs son or sons and in default of sons for
her daughters, with a gift over in the event of the plaintiff dying without
issue. Held that assuming that the gift to the plaintiff was of a life
interest in the property it did not by Sunni law confer an absolute estate upon
her.[cxcii]
(f) It was provided by a consent decree in a suit to
which the parties were Shia Mahomedans that a certain house should be held and
enjoyed by A for her life, and that after her death it should be sold
and the sale proceeds divided among her step-sons. It was held that A took
a life interest in the house, and the step-sons took a definite interest like
what is called in English law a vested remainder.[cxciii]
The question whether a vested remainder is recognized by the Shia law was
raised in Muhammad Raza v. Abbas Bandi Bib,[cxciv]
but it was not decided as the document to be construed in that case was a compromise
of a suit, and therefore one for a consideration.
(g) A Shia Mahomedan by his will purported to give an
estate for life to A and thereafter to B for life, with a power
to nominate his successor. It was held that A and B took a life
interest and that the power of appointment was invalid under Mahomedan law. A
and B had a life-interest in the usufruct and the testator's heirs
were the owners of the property. Their Lordships said: "No doubt where the
use of a house is given in a man for his life he may, not inaptly, be termed a
tenant for life and the owner of the house, waiting to enjoy it until the
termination of the limited interest, may be said, not inaccurately to possess a
vested remainder. But though the same terms may he used in English and Muslim
law, to describe much the same things, the two systems of law are based on
quite different conceptions of ownerships. English law recognizes ownership of
land limited in duration; Muslim law admits only ownership unlimited in
duration but recognizes interests of limited duration in the use of property.”[cxcv]
(h) A makes a bequest in favour of B of
certain land and provides that B shall have no right to transfer the
property, but his male issue shall have the right to transfer the property. It was
held that the corpus and not merely the usufruct was bequeathed to B and
the condition that he should not transfer the property was void. B therefore
took an absolute estate.[cxcvi]
(i) A Sunni Mahomedan settled property in favour of
certain persons reserving a usufruct for himself for life. It was held that the
deed of settlement was valid and the question whether the settlor reserved to
himself a life-interest did not arise.[cxcvii]
(j) A Sunni Mahomedan made a settlement in the following
terms, " I have settled upon you (my wife) for your maintenance the undermentioned
Nanja land worth Rs. 2,000/-. Therefore this is a settlement deed
executed by me consenting that you should enjoy for your lifetime the income
alone from the said nanja land, that you should not make any gift, sale
or hypothecation etc. of the said land, that if you should hereafter have issue
by me, the said issue should enjoy the said land hereditarily and that if you
should not have such issue the said property after your life-time shall go to
me and to my heirs". It was held that only the usufruct was given to the
wife.[cxcviii]
16. Vested Inheritance:- A " vested
inheritance" is the share which vests in an heir at the moment of the
ancestor's death. If the heir dies before distribution, the share of the
inheritance which has vested in him will pass to such persons as are his heirs
at the time of his death. The shares therefore are to be determined at each
death.[cxcix]
Illustration
A dies leaving a son B, and a daughter C. B dies
before the estate of A is distributed leaving a son D. In this
case on the death of A, two-thirds of the inheritance vests in B, and
one-third vests in C. On distribution of A’s estate, after B'sdeath
the two-thirds which vested in B must be allotted to his son D.[cc]
17. Disqualifications and
preferences for Inheritance:- The following classes of persons are generally disqualified or given
preference in heirship as the case may
be.
01. Non-Muslim:- Under the Islamic law a non-Muslim was not entitled to inherit the
property from a Muslim. In India this is not so. A Muslim who had renounced
Islam or had in any manner ceased to be a Muslim will nonetheless be entitled
to inheritance in the property of his deceased Muslim relation whose heir he
is.[cci] But
his non-Muslim descendants will not be entitled to inherit the property of the
deceased Muslim. At the same time it should be noticed that the inheritance to the
property of a convert to Islam is governed by Muslim law.[ccii] This
should be read subject to certain Muslim communities who are in respect of
testamentary succession are still governed by, their original personal law or
customary law.
02. Murderer:- Under the Hanafi law an heir who has caused the death of the deceased
intentionally, inadvertently by accident, mistake or negligence is excluded
from inheritance. Under the Shia law the heir is disqualified only if the death
is caused intentionally.[cciii]
This is a principal of general policy and is followed in most systems of law
that an heir who has caused the murder of the deceased is disqualified from
Inheritance. In the pre-Islamic Arabia the inheritance was tagged with blood-wite
and blood-feud and in that system a murderer could obviously not inherit. The
principle was adopted in the Islamic law and is recognized in the Muslim
countries.
Rumsey’s Al Sirajiyyah sets out four grounds of
exclusion from inheritance, namely (1) Homicide, (2) Slavery, (3) difference of
religion, and (4) difference of allegiance. The second impediment of slavery was
removed by the enactment of Act V of 1843 abolishing slavery.[cciv]
The third by the provisions of Act XXI of 1850 which abolished so much of any
law or usage as affected by any right of inheritance of any person by reason of
his renouncing his religion. The bar of difference of allegiance disappeared
with the subversion of the Mahomedan supremacy.
A person incapable of inheriting by reason of any of the
above disqualifications is considered as not existing, and the estate is
divided accordingly. According to the Sirajiyyah, he does not exclude
others from inheritance.[ccv] Thus
if A dies leaving a son B, a grandson C by B, and a
brother D and If B has caused the death of A, B is totally
excluded from inheritance, but he does not exclude his son C. The
inheritance will devolve as if B were dead, so that C, the grandson,
will succeed to the whole estate, D being a remote heir. In the
undermentioned case, a single Judge of the Lahore High Court, has expressed the
view that the rule of public policy would exclude a murderer and his descendants
from succession.[ccvi]
03. Illegitimate Children:- Under the Hanafi law an illegitimate
child is not entitled to inherit from its father, but it is allowed to inherit
from its mother. The mother can also inherit the property of her illegitimate children.
The illegitimate child inherits not merely the property of its mother but also
the property of all other relations with whom it is related through the mother.
Thus when a Hanafi female dies leaving behind her husband and an illegitimate son
of her sister, the husband will take ½ as sharer and the residue will go to
sister's son.[ccvii]
Since the illegitimate child cannot inherit from its father, it cannot inherit
from any other relative through the father.[ccviii]
Under the Ithana Ashart School, an illegitimate child is treated as nullius filius
and cannot inherit the property of any of its parents. The question of its
inheriting the property from any other person through its parents does not
arise.
04. Insanity and unchastity:- Insanity and
unchastity are not disqualifications under the Muslim law and therefore an insane[ccix] or
unchaste[ccx]
heir is entitled to inherit.
09. CLASSES OF HEIRS AND DISTRIBUTION OF ESTATES
According to Sunni Hanafi Law, there are three classes of
heirs namely-
1. Sharers:- Those who are entitled to a prescribed share
of inheritance.
2. Residuaries : - Those who take no prescribed share,
but succeed to the residue after the claims of the sharers are satisfied.
3. Distant Kindred:- Those relations by blood who are
neither sharers or nor residuaries.
Tables showing the details of the above are given as
appendices I and II and relevant quotations from Quran is also given as
Appendix III.
As the Classes of Heirs and Distribution of Estates
according to Mohammedan Law and Sunni Law in general are very complex and as
they are not included in the General Rules of Inheritance, as per present
classification, they are not dealt with in detail in this paper.
10. CONCLUSION
The Sunni Law of Inheritance has a long
history of evolution and practice. However, it is also kept outside the purview
of additions, alterations, amendments, repeals and savings on the ground that
these laws are God given. However, the liberty the early Islamic Jurists
availed by way of authorities other than Quran is as a presumption prohibited
now, even though the authority these jurists are acknowledged. Thus it may
rightly termed as a static law of inheritance for a changing class of people
living in a far speedily changing world. The only attempt to alter these
complex laws are from the upholding of constitutional fundamental rights and
the English concept of Justice Equity and Good Consciousness. However the
mechanical interpretation and self-restraint of Judiciary are a matter of
concern as the same shall only promote fundamentalist views only.
APPENDICISES
APPENDIX I TABLE OF SHARERS AS PER SUNNI LAW OF INHERITANCE
Sharers
|
Normal Share
|
Conditions under which the normal share is
inherited
|
Variation of shares
|
|
When only one heir is present
|
When two or more heirs are present
|
|||
Husband
|
1/4
|
In the presence of a child or child of a son how low
so ever
|
1/2 in absence of a child or child of a son how low so
ever
|
|
Wife
|
1/8
|
1/8
|
In the presence of a child or child of a son how low
so ever
|
1/4 in absence of a child or child of a son how low so
ever
|
Daughter
|
1/2
|
2/3
|
In the absence of a son.
|
In presence of a son she becomes a residuary
|
Father
|
1/6
|
In the presence of a child or child of a son how low
so ever
|
In absence of a child or child of a son how low so
ever the father inherits as a residuary.
|
|
Mother
|
1/6
|
In the presence of a child or a child of a son how low
so ever, or two or more brothers or sisters, or even one full, consanguine or
uterine brother and one such sister.
|
1/3 in the absence of a child or child of a son how
low so ever, and not more than one brother or sister (if any); but if the
wife or husband and the father, is also present, then only1/3 of what remains
after deducting the share of the spouse.
|
|
True grandfather
|
1/6
|
In the presence of a child or child of a son how low
so ever, and in absence of the father or a nearer true grandfather.
|
In absence of a child or child of a son how low so
ever, the true grandfather inherits as a residuary,
provided there is no father or nearer true grandfather.
|
|
True grandmother
|
1/6
|
1/6
|
A maternal true grandmother takes in absence of a
mother, and a nearer true grandmother and a paternal true grandmother takes
in absence of a mother, father, a nearer true grandmother and an intermediate
true grandfather.
|
|
Son’s daughter how low soever
|
1/2
|
2/3
|
In absence of a son, daughter, a higher son’s son,
higher son’s daughter, or an equal son’s son.
|
In absence of a son, higher son’s son, or an equal
son’s son and when there is only one daughter, or higher son’s daughter the
daughter or higher son’s daughter will take 1/2 and the son’s daughter how
low so ever (whether one or more) will take 1/6.
|
Son’s daughter
|
1/2
|
2/3
|
In absence of a son, daughter, or son’s son
|
In absence of a son or son’s son and in presence of a
only one daughter the son’s daughter (whether one or more) will take
1/6. (In presence of a son’s son, she
becomes a residuary.)
|
Son’s Son’s Daughter
|
1/2
|
2/3
|
In absence of a son, daughter, son’s son, son’s
daughter, or a son’s son’s son.
|
In absence of a son, son’s son or son’s son’s son and
in presence of only daughter or son’s daughter, the son’s son’s daughter
(whether one or more) will take 1/6. (In presence of a son’s son’s son she
becomes a residuary.)
|
Uterine brother Uterine sister
|
1/6
|
1/3
|
In absence of a child, child of a son how low so ever,
father or true grandfather.
|
|
Full sister
|
1/2
|
2/3
|
In absence of a child, child of a son how low so ever,
father, true grandfather, full brother.
|
In presence of a full brother she becomes a residuary.
|
Consanguine sister
|
1/2
|
2/3
|
In absence of a child, child of a son how low so ever,
father, true grandfather, full brother, full sister, or consanguine brother.
|
When there is only one full sister and she succeeds as
a sharer, the consanguine sister (whether one or more) will take 1/6, if she
is not otherwise excluded. (With the consanguine brother she becomes a residuary).
|
Note:
1. A true grandfather is a male ancestor
between whom and the intestate no female intervenes.
2. A true grandmother is a female ancestor,
between whom and the intestate no false grandfather intervenes.
APPENDIX II TABLE OF RESIDUARIS IN ORDER OF SUCCESSION AS PER SUNNI LAW OF INHERITANCE
I – DESCENDANTS
1. SON
Daughter takes as a residuary with the son, the son
taking a double portion.
2. SON'S SON h.l.s, - The nearer in
degree excluding the more remote. Two or more son's son inherit in equal
shares.
Son's daughter h.l.s. takes as a residuary
with an equal son's son. If there be no equal son's son, but
there is a lower son's son, she takes as a residuary with him, provided
she cannot inherit as a sharer. In
either case, each son's son h.l.s. takes double the share of each son's
daughter h.l.s.
Note:- When the son's
daughter h.l.s. becomes a residuary with a lower son's son, and
there are son's daughters h.l.s. equal in degree with the lower son's
son she shares equally with them, as if they were all of the same grade.
II - ASCENDANTS
3. FATHER.
4. TRUE GRANDFATHER h.h.s.- The nearer in
degree excluding the more remote.
III. - DESCENDANTS
OF FATHER
5. FULL BROTHER
FULL SISTER- Takes as a
residuary with full brother, the brother taking a double portion.
6. FULL SISTER. - In default of
full brother and the other residuaries above-named, the full sister takes the
residue if any, if there be (1) a daughter or daughters, or (2) a son's
daughter or daughters h.l.s., or even if there be (3) one daughter and
a son's daughter or daughters h.l.s.
7. CONSANGUINE BROTHERS
CONSANGUINE SISTER - Takes as a residuary
with consanguine brother, the brother, taking a double portion.
8. CONSANGUINE SISTER - In default of
consanguine brother and the other residuaries above-named, the consanguine
sister takes the residue, if any, if there be (1) a daughter or
daughters or (2) a son's daughter or daughters h.l.s. or even if there be (3) one
daughter and a son's daughter or daughters h.l.s.
9. FULL BROTHER'S SON
10. CONSANGUINE BROTHER'S SON
11. FULL BROTHER'S SON'S SON
12. CONSANGUINE BROTHER'S SON'S SON
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.
IV. - DISCENDANTS
OF TRUE GRANDFATHER h.h.s
13. FULL PATERNAL UNCLE
14. CONSANGUINE PATERNAL UNCLE
15. FULL PATERNAL UNCLE'S SON
16. CONSANGUINE PATERNAL UNCLE'S SON
17. FULL PATERNAL UNCLE'S SON'S SON
18. CONSANGUINE PATERNAL UNCLE'S SON'S SON
Then come remoter male descendants of Nos. 17 and 18, in like order and
manner as descendants of Nos, 11 and 12
19. MALE DESCENDANTS OF MORE REMOTE TRUE GRANDFATHERS – In like order and manner as the deceased’s paternal uncles and their sons
and son’s sons.
APPENDIX III RELEVANT QUOTATIONS FROM QURAN APPLICABLE IN SUNNI LAW OF INHERITANCE
4:2
To orphans restore their property (When they reach their
age), nor substitute (your) worthless things for (their) good ones; and devour
not their substance (by mixing it up) with your own. For this is indeed a great
sin.
4:3
If ye fear that ye shall not be able to deal justly with
the orphans, Marry women of your choice, Two or three or four; but if ye fear
that ye shall not be able to deal justly (with them), then only one, or (a
captive) that your right hands possess, that will be more suitable, to prevent
you from doing injustice.
4:4
And give the women (on marriage) their dower as a free
gift; but if they, of their own good pleasure, remit any part of it to you,
Take it and enjoy it with right good cheer.
4:5
To those weak of understanding Make not over your
property, which Allah hath made a means of support for you, but feed and clothe
them therewith, and speak to them words of kindness and justice.
4:6
Make trial of orphans until they reach the age of marriage;
if then ye find sound judgment in them, release their property to them; but
consume it not wastefully, nor in haste against their growing up. If the
guardian is well−off, Let him claim no remuneration, but if he is poor, let him
have for himself what is just and reasonable. When ye release their property to
them, take witnesses in their presence: But all−sufficient is Allah in taking
account.
4:7
From what is left by parents and those nearest related
there is a share for men and a share for women, whether the property be small
or large,−a determinate share.
4:8
But if at the time of division other relatives, or
orphans or poor, are present, feed them out of the (property), and speak to
them words of kindness and justice.
4:9
Let those (disposing of an estate) have the same fear in
their minds as they would have for their own if they had left a helpless family
behind: Let them fear Allah, and speak words of appropriate (comfort).
4:10
Those who unjustly eat up the property of orphans, eat up
a Fire into their own bodies: They will soon be enduring a Blazing Fire!
4:11
Allah (thus) directs you as regards your Children's
(Inheritance): to the male, a portion equal to that of two females: if only
daughters, two or more, their share is two−thirds of the inheritance; if only one, her share is a
half. For parents, a sixth share of the inheritance to each, if the deceased
left children; if no children, and the parents are the (only) heirs, the mother
has a third; if the deceased Left brothers (or sisters) the mother has a sixth.
(The distribution in all cases ('s) after the payment of legacies and debts. Ye
know not whether your parents or your children are nearest to you in benefit.
These are settled portions ordained by Allah; and Allah is All−knowing, All−wise.
4:12
In what your wives leave, your share is a half, if they
leave no child; but if they leave a child, ye get a fourth; after payment of
legacies and debts. In what ye leave, their share is a fourth, if ye leave no
child; but if ye leave a child, they get an eighth; after payment of legacies
and debts. If the man or woman whose inheritance is in question, has left
neither ascendants nor descendants, but has left a brother or a sister, each
one of the two gets a sixth; but if more than two, they share in a third; after
payment of legacies and debts; so that no loss is caused (to any one). Thus is
it ordained by Allah; and Allah is All−knowing, Most Forbearing.
4:19
O ye who believe! Ye are forbidden to inherit women
against their will. Nor should ye treat them with harshness, that ye may Take
away part of the dower ye have given them,−except where they have been guilty
of open lewdness; on the contrary live with them on a footing of kindness and
equity. If ye take a dislike to them it may be that ye dislike a thing, and
Allah brings about through it a great deal of good.
4:33
To (benefit) every one, We have appointed shares and
heirs to property left by parents and relatives. To those, also, to whom your
right hand was pledged, give their due portion. For truly Allah is witness to
all things.
4:176
They ask thee for a legal decision. Say: Allah directs
(thus) about those who leave no descendants or ascendants as heirs. If it is a
man that dies, leaving a sister but no child, she shall have half the inheritance:
If (such a deceased was) a woman, who left no child, Her brother takes her
inheritance: If there are two sisters, they shall have two−thirds of the
inheritance (between them): if there are brothers and sisters, (they share),
the male having twice the share of the female. Thus doth Allah make clear to
you (His law), lest ye err. And Allah hath knowledge of all things.
6:152
And come not nigh to the orphan's property, except to
improve it, until he attain the age of full strength; give measure and weight
with (full) justice;− no burden do We place on any soul, but that which it can
bear;− whenever ye speak, speak justly, even if a near relative is concerned;
and fulfil the covenant of Allah: thus doth He command you, that ye may
remember.
17:34
Come not nigh to the orphan's property except to improve
it, until he attains the age of full strength; and fulfil (every) engagement,
for (every) engagement will be enquired into (on the Day of Reckoning).
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NOTES
[i] http://www.barghouti.com/islam/meaning.html
[iii]
https://en.wikipedia.org/wiki/Islam#Muhammad_.28610.E2.80.93632.29
[iv]
https://en.wikipedia.org/wiki/Quran#Text_and_arrangement
[vi]
Ibid, Page 14
[viii]
Bafatum v. Bilaiti Khanum (1903) 30 Cal. 683,686; Mt. Iqbal Begum v. Mt. Syed
Begum (1933) 140 I.C. 829. (‘33) AL. 80; Akbarally v. Mahomedally (1932) 34
Bom. L.R. 655, 138 l.C. 810, (‘32) A.B. 356; Moosa Seethi v. Mariakutty (1954)
Trav.-Co. -690, (‘54) A Trav.-Co. 432
[x]
Akbarally v. Mahomedally (1932) 34 Bom. L.R. 655,138 I.C. 810; ('32) A.B. 356;
Abdullah Beary v. Alikunhi Beary (1957) Ker. LJ. 731, Presumption removed -
Shafei law applied. Sardar Bibi v. Muhammad Bakhsh P.L.D. 1954 (W.P.) Lah 481.
Mst. Sahib Bibi v. Muhammad and ors. P.L.D.1961 (W.P.) Lah. 1036; Khan Muhammad v. Gohar Banu P.L.D. 1965 (W.P.) Lah. 46.
Kuttialikutty Marakkar v. Kandankutty (’67) A. Ker. 78
[xii]
Akbarally v. Mahomedally (1932) 34 Bom. L.R. 655,138 I.C. 810; ('32) A.B. 356
[xiii]
The Advocate-General ex relations Daya Muhammad v. Muhammad Husein (1879) 12
Bom. H.C. 323; Haji Bibi v. H.H. Sir Sultan Mahomed Shah, The Aga Khan (1909)
11 Bom. L.R. 409, 2 I.C. 874
[xiv]
Hasanali v. Mansoorali (1949) 76 I.A. 1; (‘48) APC 66
[xv]
Advocate-General of Bombay V. Yusufally Ebrahim (1922) 24 Bom. L.R.1060; 84
I.C. 759; (’21) A.B.338
[xviii]
Deedar Hossein v. Zuhoor-oon-Nissa (1841) 2 M.I.A 441, 477
[xix]
Hayat-un-Nissa v. Muhammad (1890) 12 All. 290, 17 I.A 73 (change or sect);
Muhammad v. Gulam (1864) 1 B.H.C. 236 (change from Shafeiism to Hanafism)
[xx]
Nasrat v.Hamidan (1882) 4 All. 205
[xxiv]
Baqar Ali v.Anjuman (1902) 25 All. 236, 254; 30 I.A. 111; dissenting
from Agha Ali Khan v. Altaf
Hasan Khan (1892) 14 All. 429, 448
[xxv]
Agha Ali Khan v. Altaf Hasan Khan (1892) 14
All. 429,448; Abdul Kadir v, Salima (1886) 8 All.149, 166-167
[xxvi]
(1886) 8 All. 149, p. 162, supra; Kutti Umma
v. Negungadi Bank, LId. (1938) Mad. 148; 173 I.C. 699;
('37) AM. 731
[xxvii]
Kulsom Bibee v, Golam Hoosein (1905) 10
C.W.N. 449, 488; Khajah Hoosein v. Shahazadee (1869) 12 W.R. 344, 346, Affmd.
in Shahazadee v. Khaja Hossein (1869) 12 W.R. 498; Kutti Umma v. Nedungadi
Bank, LId. (1938) Mad. 148; 173 I.C. 699; (‘37) AM. 731. See also sec. 151
below. In Muhammad v. The Legal Remembrancer (1893) 15 All. 321, 323, it was
held that the opinion of Imam Muhammad should be preferred to that of Abu
Yusuf, the Court thinking (though erroneously) that it was so laid down by the
Full Bench in Bikani Mia v, Shuk Lal (1893) 20 Cal. 116.
[xxviii]
Anis Begun v, Muhammad Istafa (1933) 55 All.
743,148 I.C.26, ('33) A.A. 634; Siddiq Ahmed v.Syed Ahmed (1945) 49 C.W.N. 311;
(‘45) AC. 418; Mohamed Yasin v, Rahmat Ilahi ('47) A.A. 201 F.B.
[xxix]
Aziz Bano v. Muhammad (1925) 47 All. 823,
837; 89 I.C. 690; ('25) A.A. 720 (difference in Shia. authorities); Ebrahim
Allibhai v. Bai Asi (1933) 58 Bom. 254; 149 I.C. 225; (‘34) A.B. 21 (difference
in Sunni authorities); Haji Mohd: v, Abdul Ghafoor ('55) A.A. 688
[xxx]
Hamira Bibi v. Zuhaida Bibi (1915) 43 I.A.
294, 301-302; 38 All. 581, 582; 36 I.C. 87. See Hedayas Book XX, p. 334,
"Of the Duties of the Kazee.”
[xxxii]
Mahomed Kazim Ali Khan v. Sadiq Ali Khan
(1938) (65) I.A. 218, 13 Luck. 494, 174 I.C. 977; (‘38) A.P.C. 169
[xxxvi]
Venkata Subhamma v. Ramayya (1932) 59 I.A. 112; 55 Mad. 443, 136 I.C. 111; (‘32) A.P.C. 92
(a case of a Hindu will, which applies also to a Mahomedan
will); Shemail
v. Ahmed Omer (1931) 33 Bom. L.R. 1056; 135 l.C. 817; ('31) A.B. 533; Mahomed Usuf v. Hargovandas (1923) 47 Born. 231; 70
I.C. 268; (‘22) A.B. 392; Sakina Bibee v. Mohomed Ishak (1910) 37 Cal. 839; 8 I.C. 655; is no longer good law. Mohammadi
Begum v. Nawaz Jung (1955) Hyd. 743; Hakim Rehman v. Mohammad Mahmud Hasan (‘57) A.P. 559; Hasan Bokhari v. Venkayya (‘55) A. Andh. 87; (1957) Andh, W.R. 638.
[xxxviii]
Mahomed Hussain v. Aishabai
(1934) 36 Bom. L.R. 1155; 155 I.C. 334; (’35) A.B. 84 (a Sunni case.)
[xxxix]
Jain Begum v. Amir Muhammad (1885) 7 All. 822; Muhammad Awais v. Har Sahai
(1885) 7 All. 716; Biland
Khan v. Mt. Begum Noor (‘43) A. Pesh. 62; Faizulla Khan v. Abdul Jabbar (‘43)
A. Pesh. 65 Ebrahim Aboobaker v, Tek Chanf ('53) A.S.C. 298
[xl]
Ahul Khader v. Chidambaram (1909) 32 Mad. 276, 278; 3 l.C. 876; Abdul
Majeeth v. Krishnamchariar (1917) 40 Mad. 243, 245;
40 I.C. 210; Khatun Bai v. Abdul
Wahab Sahib (1939) M.W.N. 346; 184
I.C. 778; ('39) A.M. 306; Mt. Fardosiahan Begum v. Kazi Shafiuddin (1942) N.L.J. 261; (‘42) A.N. 75; Mohammad Sohail v, Ghulam Rasul (1949) Lah. 308: (’41) A.I. 152 (FB);
Mahomedally Tyebally v. Safiabai (1940) 67 I.A. 406; 191 I.C. 113; (’40) A.P.C.
215
[xli]
Imamul Hassan v. State of Bihar , A.I.R. 1982 Patna 89
[xlii]
Mt. Haluman. v. Md Manir (1971) A. Pat. 386 (D.B.).
[xliii]
Sabura Ammal v. Ali Mohammad Nachiar ('70) A.Mad. 411
[xliv]
Sakina Begum v. Shahar Banoo (1935) 10 Luck. 433 at 458, 152 I.C. 42, ('35)
A.O. 62, 67; Manni Gir v. Amar Jati (1936) 58 All. 594 , 160 I.C. 1030, ('36)
A.A. 94
[xlv]
Amir Dulhin v. Bhaij Nath (1894) 21 Cal. 311 , 315
[xlvi]
Mohd. Subhan v. Misbahuddin Ahmad ('71) A. Raj 274
[xlvii]
Maimun Bivi v. O. A. Khaja Mohideen (1970) I.M.L.J. 266 , ('70) A. Mad. 200
[xlviii]
Ghulam Mohammad v. Ghulam Hussain (1932) 59 I.A., 74, 54 All. 98, 136 I.C. 454,
('32) A.P.C. 81; Kallangowda v. Bibishaya (1920) 44 Bom. 943, 58 I.C. 42;
Nurdin v. Bu Umrao (1921) 45 Bom. 519, 59 I.C. 780, ('71) A.B. 56; Bai Jivi v.
Bai Bibanboo (1929) 31 Bom. L.R. 199, 118 I.C. 785, ('29) A.B. 141; Mussammat
Jano v. Narasingh Das (1930) 11 Lah. 29, 117 I.C. 803, ('29) A.L. 549; Ma Bi v.
Ma Khatoon (1929) 7 Rang. 744, 121 I.C. 785, ('30) A.R. 72; Rustam Khan v.
Janki (1929) 51 All. 101, 111 I.C. 809, ('28) A.A. 467; Ahmad Dar v. Mt.
Mukhti, ('51) A.J. & K. 21. See also Mohd Kaliba v. Md. Abdullah ('63) A.M.
84.
[xlix]
Mahomedally Tyebally v. Safibai (1940) 67 I.A. 406. 191 I.C. 113, ('40) A.P.C.
215
[l]
T. Abdullah v. N. Abdul Samad Sahib (1970) II M.L.J. 510
[li]
Zebaishi Begum v. Naziruddin Khan (1935) 57 All. 445, 152 I.C. 1008, ('35) A.A.
110
[lii]
Jamahiddin v. Mosque Mashakganj ('73) A. All. 328
[liii]
Khazir Bhat v. Ahmad Dar ('60) A.J. & K. 57; Mohd. Abdullah v. Mohd Rahiman
('64) A.M. 234
[liv]
Mt Hashihan v. Jalaluddin 1982 B.L.J.R. 410: (1982) Pat. L.J.R. 463: A.I.R.1982
Pat.226 [B.P. Jha, J.].
[lv]
Huchu Sab v. Sahajabi (1983) 1 Karn. LJ. 170 [G.N. Sabhahit, J.]
[lvi]
Essafally v. Abdeali (1921) 45 Bom. 75, 59 I.C. 396, ('21) A.B. 424; Atorjan
Bibi v. Sikandar Ali ('60) A.Ass. 183. See also Abdul Razack v. Mohd. Shah
('62) A.M. 346
[lvii]
Khatun Bibi v. Abdul Wahib Sahib (1939) M.W.N. 346 , 184 I.C. 778, ('39) A.M.
306
[lviii]
Bahadurkhanji v. Begum Mehrunnissa ('55) A. Sau. 72
[lix]
Bazayet Hossein v. Dooli Chund (1878) 5 I.A. 211, 4 Cal. 402; Wahidunnissa v.
Shubrattun (1870) 6. Beng. L.R. 54; Land
Mortgage Bank v. Bidyadhari (1880) 7 Cal. L.R. 460; Khatun Bibi v. Abdul Wahab
Sahib (1939) M.W.N. 346, 184 I.C. 778. ('39) A.M. 306; Hasan Bokhari v.
Venkayya ('55) A. Andh. 87
[lx]
Mansab Ali v. Mt. Nabirunnissa (1934) 150 I.C. 443 , ('34) A.A. 702
[lxi]
45 I.A. 73
[lxii]
Bhimadev Taria v. Radhakrishna Agarwalla ('68) A. Ori. 230
[lxiii]
Land Mortgage Bank v. Bidyadhari (1880) 7 Cal. L.R. 460 (with facts somewhat
altered)
[lxiv]
Bazayet Hossein v. Dooli Chund (1878) 5 IA. 211 , 4 Cal. 402
[lxv]
Wahidunnissa v. Shubrattun (1870) 6 Beng. L.R. 54 (with facts slightly altered)
[lxvi]
Mahomed Wajid v. Bazayet Hossein (1878) 5 I.A. 211 , 223-224, 4 Cal. 402
[lxvii]
Bhola Nath v. Maqbul-un-Nissa (1903) 26 All. 28; Abdul Rahman v. Inayati Bibi
('31) A.O. 63, 130 I.C. 113; Hasan Bokhari v. Venkayya ('55) A Andh. 87, (1957)
Andh. W.R. 638
[lxviii]
Khatun Bibi v. Abdul Wahab Sahib (1939) M.W.N. 346 , 184 I.C. 778, ('39) A.M.
306
[lxix]
Mahomed Wajid v. Bazayet Hossein (1878) 5 I.A. 211 , 223-224, 4 Cal. 402
[lxx]
Bazayet Hossein v. Dooli Chund (1878) 5I. A. 211, 4. Cal. 402
[lxxi]
Pirthi Pal Singh v. Husaini Jan (1882) 4 All. 361; Ambashankar v. Sayad Ali
(1894) 19 Bom. 273; Bassunteram v. Kamaluddin (1885) 11 Cal. 421, 428; Abbas
Naskar v. Chairman, District Board, 24-Parganas (1932) 59 Cal. 691, 141. I.C.
871, ('33) AC. 81; Ramcharan v. Hanifa Khatun (1932) 54 All. 796, 138 I.C 746,
('32) AA. 591; Hakim Rehman v. Mohammad Mahmud Hasan ('57) A.P. 559; Imperial
Bank, Gaya v.Bibi Sayeedan ('60) AP. 132
[lxxii]
Pirthi Pal Singfi v. Husaini Jan (1882) 4 All. 361; Hamir Singh v. Zokia (1875)
1 All. 57, 59 (F.B.)
[lxxiii]
Patel Parshottamdas Narasihbhai v. Bai Dhabu ('73) A. Guj. 88
[lxxiv]
P.N. Veetil Narayani v. Pathummo Beevi A.I.R. 1991 SC 720
[lxxv]
Sk Aftab Husain v. Smt. Tayebba Begum ('73) A. All. 54
[lxxvi]
Hamir Singh v. Zaha (1875) 1 All. 57, 59 (F.B.); Pirthi Pal Singh v. Hussaini
Jan (1882) 4 All. 361, 366
[lxxvii]
Bassunteram v. Kamaluddim (1885) 11 Cal. 421 , 428
[lxxviii]
Jafri Begum v. Amir Muhammad (1885) 7 All. 822, 838
[lxxix]
Amar Ahmad Khan v. Shamim Ahmad Khan A.I.R. 2012 Jhar 39
[lxxx]
Mamraj Maniram v. Muhamad Hashim (1941) 194 I.C. 727 , ('41) A.C 245
[lxxxi]
Muttyjan v. Ahmad Ally (1882) 8 Cal.
370; Amir Dulhin v. Baij Nath (1894) 21 Cal. 311
[lxxxii]
Assamathem v. Roy Lutchmeeput Singh (1878) 4 Cal. 142 , 155
[lxxxiii]
Abbas Naskar v. Chairman District Board , 24 Parganas (1932) 59 Cal. 691 , 141
I.C. 871, (33) AC. 81
[lxxxiv]
Khurshetbibi v. Keso Vinayek (1887) 12 Bom. 101; Davalava v. Bhimaji (1895) 20
Bom. 338, followed in Virchand v. Kondu (1915) 39 Bom. 729, 31 I.C. 180
[mortgage-decree]
[lxxxv]
Bhagirthibai v. Roshanbi (1919) 43 Bom. 412, 51 I.C. 18, dissenting from 12
Bom. 101 and 20 Bom. 338, supra Shahasaheb v. Sadashiv (1919) 43 Bom. 575, 581,
51 I.C. 223 [mortgage suit], dissenting from (1915) 39 Bom. 729, 31 I.C. I80
supra; Lala Miya v. Manubibi (l923) 47 Bom. 712, 73 I.C. 246, ('23) A.B. 411;
Veerbhadrappa Shilwant v. Shekabai (1939) Bom. 232, 41 Bom. L.R. 249, 182 I.C.
539, ('39) A.B. 188
[lxxxvi]
(1902) 26 Mad. 734 , 738
[lxxxvii]
(1917) 40 Mad. 243 , 255, 257, 40 I.C. 210
[lxxxviii]
Dallu Mal v. Hari Das (1901) 23 All. 263, 265
[lxxxix]
Manni Gir. Amar Jati (1936) 58 All. 594, 160 I.C. 1030, ('36) A.A. 94
[xc]
Jafri Begum v. Amir Muhammad Khan (1885) 7 All. 822; Muhammad Awais v. Har
Sahai (1885) 7 All. 716; Hamir Singh v. Zakia (1875) 1 All. 57. See also
Mahomad Alladad v. Muhammad Ismail (1888) 10 All. 239; and Chandu Lal v.
Khaltemuneessa (1942) 2 Cal. 299, 205 I.C. 344, ('43) A.C. 76
[xci]
Suleman v. Abdul Shakoor (1939) N.LJ. 577, 188 I.C. 292, ('40) A.N. 99;
Laxminarayan v. Sadatali (1944) Nag. 97 , 212 I.C. 161, ('44) A.N. 99
[xcii]
Amir Jahan v. Khadim Husain ('31) A.O. 253, 132 I.C. 75. See also Sakina Begum
v. Shahar Banoo Begum (1935) 10 Luck. 443, 152 I.C. 42, ('35) A.O. 62, 67; Firm
Bishambar Nath Gopi Nath v. Hashmi Begam (1949) 23 Luck. 3; ('49) A.O. 56
[xciii]
Mt. Amir Begum v. Dr. Ahmad Jalal Din
('35) A.L. 273
[xciv]
Balak Ram. v. Ineyat Begum (1935) 160 I.C. 217 , ('35) A.L. 940
[xcv]
(1959) 1 AWR 220
[xcvi]
(1885) 7 All. 822
[xcvii]
A.I.R. 1938 PC 169
[xcviii]
Mohd Sulaiman v. Mohd Ismail and Ors. (1966) 1 S.C.R. 937. Following Daya Ram
v. Shyam Sundari ('65) A.S.C. 1049
[xcix]
Muttyjan v. Ahmed Ally (1882) 8 Cal. 370
[c]
Amir Dulhin v. Baij Nath (1894) 21 Cal. 311
[ci]
Abbas Naskar v. Chairman, District Board, 24-Parganas (1932) 59 Cal. 691, 141
IC. 871, ('33) A.C. 81
[cii]
This form of suit, which was at one time common in the Mofussil of Bombay, has
been disapproved of by the Bombay High Court. See Rampratab v. Gavrishankar
(1923) 25 Bom. L.R. 7, 85 I.C. 464. ('24) A.B. 109
[ciii]
Khurshet Bibi v. Keso Vinayak (1887) 12 Bom. 101
[civ]
In this case "no part of the Khoti was in actual possession of either of
the heirs of the deceased.
[cv]
Davalava v. Bhimaji (1895) 20 Bom. 238
[cvi]
Bhagirthibai v. Roshanbi (1919) 43 Bom. 412, 51 I.C. 18. [In this case the
widow against whom the decree was obtained was in possession of the whole
house; see p. 427 of the report, lines 27-28]
[cvii]
Muhammad Awais v. Har Sahai (1885) 1 All. 716, following Jafri Begam v. Amir
Muhammad (1885) 7 All. 822
[cviii]
Dallu Mal v. Hari Das (1901) 23 All. 263
[cix]
Firm Bishambhar Nath Gopi Nath v. Hashim Begam (1947) 23 Luck. 3, ('49) AO. 56
[cx]
Muhd. Sulaiman v. Mohd. Ismail (1966) 1 S.C.R. 937
[cxi]
Abdul Majeeth v. Krishnamachariar (1917) 40 Mad. 243, 40 I.C. 210 (F.B.) Sukur
v. Asmat (1923) 50 Cal. 978, 79 I.C. 491. ('24) AC. 384; Phul Chand v. Mantia
(1938) All. 167, 174 I.C. 651, ('38) A.A. 182; Mt. Zubida Bibi v. Mt. Zenab
Bibi (1942) 199 I.C. 604, ('42) A.L. 65; Ramachandrayya v. Abdul Kadar ('48)
A.M. 37, dissenting from V.M.RV. Chiettiar Firm v. Asha Bibi (1929) 118 I.C.
407, ('29) A.R. 107. See Gulam Gose v. Shriram (1919) 43 Bom. 487, 51 I.C. 79
(sale of equity of redemption by one of the heirs--suit for redemption by other
heirs--limitation); Jan Mohammad v. Karm Chand (1947) Lah. 399, 49 Bom. L.R.
577, ('47) A.P.C. 99
[cxii]
(1902) 26 Mad. 734
[cxiii]
(1877) 1 All. 533
[cxiv]
Alisaheb v. Sesho Govind (1931) 33 Bom. L.R. 1238, 135 I.C. 489, ('31) A.B. 545
[cxv]
Jan Mahommad v. Karm Chand (1947) Lah. 399, 49 Bom. L.R. 577, ('47) A.P.C. 99
[cxvi]
Mt. Zubida Bibi v. Mt. Zenab Bibi (1942) 199 I.C. 604. ('42) A.L. 65
[cxvii]
(1924) 46 All. 377, 79 I.C. 174, ('24) A.A. 384
[cxviii]
Venkata Subamma v. Ramayya (1932) 59 I.A. 112, 55 Mad. 443, 136 I.C. 111, ('32)
A.P.C. 92; Shaik Moosa v. Shaik Essa (1884) 8 Bom. 241, 255
[cxix]
Pathummabi v. Vittil (1902) 26 Mad. 734, 739. Cf. Sitaram v. Shridhar (1903) 27
Bom. 292. See also Ahinsa Bibi v. Abdul Kader (1901) 25 Mad. 26, 39
[cxx]
Chandra Kishore v. Prasanna Kumari (1910) 38 Cal. 327, 38 I.A. 7, 9 I.C. 122;
Veerbhadrappa v. Shekabai (1939) Bom. 232, 41 Bom. L.R. 249, 182 I.C. 539,
('39) A.B. 188
[cxxi]
Shaik Moosa v. Shaik Essa (1884) 8 Bom. 241, 255
[cxxii]
Fateh Chand v. Muhammad (1894) 16 All. 259
[cxxiii]
Mahomed Yusuf v. Abdur Rahim (1900) 26 Cal. 839
[cxxiv]
Nanchand v. Yenawa (1904) 28 Bom. 630
[cxxv]
Palaniyandi v. Veerammal (1905) 29 Mad. 77
[cxxvi]
Mohammad Afzal Khan v. Abdul Rahman (1932) 59 I.A. 405 , ('32) A.P.C. 235
[cxxvii]
Ghumanmal Lakumal v. Faiz Muhammad Haji Khan
('48) A.S. 83
[cxxviii]
Abdul Rahaman v. HamidAli ('59) A.M.P.
190, relying on Pakkiri Kanni v. Manjoor Saheb
('24) A.M. 124
[cxxxii]
Sahul Hamid v. Sulthan ('47) A Mad. 287. See
also Maimoona Bivi v. D.A. Khaja Mohinuddin (,70) A Mad. 200
[cxxxiv]
Mohammed Ibrahim v. Syed Mohammad Abubakker
AI.R. 1976Mad. 84 L.W. 43. in Mohd. Ismail v. Khadirsa Rowther ALR. (1983) Mad.
123
[cxxxvi]
Hakim Khan v. Gool Khan (1882) 8 Cal. 826;
Suddurtonnesa v. Majada Khatoon (l878) 3 Cal. 694; Abdool Adood v. Mahomed
Makmil (1884) 10 Cal. 562; Abdul Khader v. Chidambaram (1908) 32 Mad. 276; Abdul
Samad v.Bibijan (1925) 49 Mad. L.J. 675, 91 I.C. 618 (’25) A.M. 1149; Abdul
Rashid v. Sirajuddin (1933) 145 I.C. 461; (’33) A.A. 206; Sahul Hamid v.
Sulthan (1947) 1 Mad. L.J. 20: (’47) A.M. 287
[cxxxvii]
Abdul Kadar v. Bapubhai (1898) 23 Bom. 188;
Mahamad Amin v. Hasan (1906) 31 Born. 143; Mohideen Bee v. Syed Meer (1915) 38
Mad. 1099, 1101; 32 I.C. 1102; See also Isap Ahmed v. Abramji (1917) 41 Bom.
588, 612-613; 41 I.C. 761; Safir Mohd. v. Bashir Mohd. ('61) A. Or. 92; Md. Zafir v. Amiruddin ('63)
A.P. 108
[cxxxviii]
Aminaddin v. Tajjadin (1932) 59 Cal. 541; 138
I.C. 761; ('32) A.C. 538; Mst. Bibi Fatma v. Aftab Ahmed (‘63) A.P. 128
[cxxxix]
Soudagar v. Soudagar (I931) 54 Mad. 543; 135
I.C. 357; ('31) A.M. 553 Durga Abdul Rawoof Sahib v. Quresha Bi Saheba (1959) 2
An. W.R. 557
[cxli]
See Solema Bibi v Hafez Mahammad (1927) 54
Cal.657; 104 I.C. 833; ('27) A.C. 836; Durg Abdul Rawool Sahib v. Ouresha Bi
Saheba (1959) 2 An. W.R. 557
[cxliii]
Ahmed Ibrahim Saheb v.Meyyappa Chettiar
(1939) M.W.N. 976; (1940) Mad. 285; (‘40) A.M. 285; [Abdul Rahim v. Abdul Hakim
('32) A.M. 553; (1931) 54 Mad. 543 explained.]
[cxlvii]
Abdul Wahid v. Nuran Bibi (1885) 11 Cal. 597;
121 A. 91; Humeeda v. Budlum (1872) 17 W.R. 525; Hasan Ali v. Nazo (1889) 11
All. 456; Abdool v. Goolam (1905) 30 Born. 304
[cli]
Hasan Ali v. Nazo (1889) 11 All. 456, 458
[clxi]
Mir AIi v. Sajuda Begum (1897) 21 Mad. 27;
Umerdaraz v. Wilayat Khan. (1896)19 All. 696; Aga Md. v. Koolson Bebee (1897)
25 Cal. 9 (PC); Sayed Ali v. Sayed Md. 1928 Pat. 440
[clxiii]
Adbul Latif Khan v. Mt. Abadi Begum (1934) 61
I.A. 322; 9 Luck. 421; 150 I.C.810; ('34) A.P.C.188
[clxvi]
Khanum Jan v. Jan Beebee (1827) 4 Beng.
S.D.A. 210; Sumsuddin v. Abdul Husein (1906) 31 Bom. 165; Asa Beevi v. Karuppan
(1918) 41 Mad 365; 46 l.C, 35; dissenting from Kunhi v. Kunhi (1896) 19 Mad.
176. See also Hurmut-ool-Nissa Begum v. Allahdia Khan (1871) 17 W.R. 108
(P.C.); Sulaiman Sahib v. Kader Ibrahim (1952) 2 Mad. L.J. 104, (’53) A.M. 161
[clxvii]
Sumsuddin v. Abdul Hussein (1906) 31 Bom.
165; Banoo Begum v. Mir Abed Ali (1908) 32 Bom.172,174-175
[clxviii]
Latafat Husain v. Hidayet Husain (1936)
All.L.J. 342; 161 I.C. 851; (‘36) A.A. 573; Kochunni Kochu v. Kunju Pillai
(1956) A Trav.-C. 276
[clxxii]
Nizamuddin v.Abdul Gufur (1888) 13 Bom. 264;
Abdoola v. Mahomed (1948) 75 l.A. 62, ('48) APC. 134. (1905) 7 Bom. L.R. 306
[clxxiii]
(1929) 56 I.A. 213, 4 Luck. 305, 116 I.C.
405, ('29) A.P.C. 149 affirming (1925) 87 I.C. 445, ('25) AO.568
[clxxv]
Abdul Khaleque v, Bepin Behan ('36) AC 456;
Bai Saroobai v. Hussein Somji (1936) 38 Bom. L.R. 903; 165 I.C. 34; ('36) A.B.
330; Mt. Subhanbi v. Mt. Umraobi (1936) 161 I.C. 719; (‘36) A.N. 113;
dissenting from Abdul v. Abdul (1929) 131 I.C. 35; (‘29) A.N. 313; Nawazish Ali
Khan v. AIi Raza Khan
(1948) 75 I.A. 62; (‘48)
A.P.C. 134
[clxxvi]
Bai Saroobai v. Hussein Somji (1936) 38 Bom.
L.R. 903; 165 I.C. 34; ('36) A.B. 330; Mt. Subhanbi v. Mt. Umraobi (1936) 161
I.C. 719; (‘36) A.N. 113; Achiruddin Ahmad v. Sakina Bewa (1946) 50 C.W.N. 59;
222 I.C. 585; (’46) A.C. 288; Maitheen Bivi Umma v. Ithappiri Varkey (1956)
Trav.-C 292; ('56) A.Trav.-C. 268; Anjumanara Begum v, Nawab Asif Kadar (1955)
2 Cal. 109
[clxxix]
Abdul Karim Khan v. Abdul Qayum Khan (1906)
28 All. 342; Harpal Singh v. Lekraj Kunwar (1908) 30 All. 406, 420; Abdool
Husein v. Goolam Hoosein (1905) 30 Bom. 304, 317; Rasoolbibi v. Usuf Ajam
(1933) 57 Bom. 737; 148 I.C. 82; ('33) A.B. 324
[clxxxiv]
Umjad Alli Khan v. Mohumdee Begum (1867) 11
M.I.A. 517 at 548; Khwajeh Solehman v. Nawab Sir Salimullah (1922 ) 49 I.A.
153; 49 Cal. 820; 69 I.C. 138; ('22) A.P.C. 107; Jagdish Narain v. Bande Ali
Mian (1939) 20 P.L.T. 328; 183 I.C. 467; ('39) A.P. 406
[clxxxv]
MULLA’s Principles of Mahomedan Law by M.
Hidayatullah and Arshad Hidayatullah, Page 137, 138
[clxxxvi]
Jainabai v. Sethna (1901) 34 Born. 604, 612,
613; 61 C. 513; Cassamally v. Currimbhoy (1911) 36 Bom. 214,253-254; 12 I.C.
225
[cxciii]
Banoo Begum v. Mir Abed Ali (1908) 32 Born.
172: Siraj Hussin v. Mushaf Hussin (1921) 21 O.C. 321; 49 I.C. 58
[cxcvii]
Mahomed v. Kairum ('54) A. Mad.769. See also
Shaikh Khatun Bibi v. Mohd. Zahina Bi (1956) An. W.R. 771; Khadija Beevi v.
Maria Ummal (‘58) A.Ker. 264; Sk. Kabir v. Narayandas (1954) Cut. 513;
Krishnamurthy Setty v. Adbul Khader (‘56) A. Mys. 14
[cc]
Macnaghten, "Principles and
Precedents". p. 27, sec.96; Rumsey's Mahomedan Law of Inheritance, Ch. IX;
Rumsey's Al Sirajiyyah 43-44
[ccii]
Miter Sen Singh v. Moqbul Hasan Khan (1930)
37 I.A. 313: Chandra Shekharappa v. Government of Mysore 1956 Mays
[ccx]
Md.Bakhsh v. Hayat Khan (1888) 23 PR (No. 37)
98
TABLE OF CASE LAWS
|
Abbas Naskar v. Chairman District Board, 24 Parganas (1932) 59 Cal. 691, 141 I.C. 871, (33) AC. 81
|
|
Abdool Adood v. Mahomed Makmil (1884) 10 Cal. 562
|
|
Abdool Husein v. Goolam Hoosein (1905) 30 Bom. 304, 317
|
|
Abdool v. Goolam (1905) 30
Born. 304
|
|
Abdoola v. Mahomed (1948) 75
l.A. 62, ('48) APC. 134. (1905) 7 Bom. L.R. 306
|
|
Abdul Aziz v. Dharamsey Jelha& Co. (‘40) A.I. 348
|
|
Abdul Bari v. Nasir Ahmed ('33) A.O. 142; 150 I.C.330
|
|
Abdul Gafur v. Nizamuddin (1892) 19 I.A 170
|
|
Abdul Hammed Khan v. Peare Mirza Oudh 78
|
|
Abdul Kadar v. Bapubhai (1898) 23 Bom. 188
|
|
Abdul Kadir v. Salima (1886) 8 All.149, 166-167 (1886) 8 All. 149, p. 162
|
|
Abdul Kaffor v.Abdul Razak ('59) AM. 131; Kunhi Avulla v. Kunhi
Avulla (‘64) A. Ker. 201
|
|
Abdul Karim Khan v. Abdul Qayum Khan (1906) 28 All. 342
|
|
Abdul Khader v. Chidambaram (1908) 32 Mad. 276
|
|
Abdul Khaleque v, Bepin Behan ('36) AC 456
|
|
Abdul Majeeth v. Krishnamachariar (1917) 40 Mad. 243, 40 I.C. 210 (F.B.)
|
|
Abdul Rahaman v. Hamid Ali ('59) A.M.P. 190
|
|
Abdul Rahim v. Abdul Hakim ('32) A.M. 553; (1931) 54 Mad. 543
|
|
Abdul Rahman v. Inayati Bibi ('31) A.O. 63, 130 I.C. 113
|
|
Abdul Rashid v. Sirajuddin (1933) 145 I.C.
461; (’33) A.A. 206,209
|
|
Abdul Razack v. Mohd. Shah ('62) A.M. 346
|
|
Abdul Samad v.Bibijan (1925) 49 Mad. L.J. 675, 91 I.C. 618 (’25) A.M. 1149
|
|
Abdul v. Abdul (1929) 131
I.C. 35; (‘29) A.N. 313
|
|
Abdul Wahid Khan v. Mt. Nuran Bibi (1885) 12 I.A. 91, 102, 100; 11 Cal. 597
|
|
Abdullah Beary v. Alikunhi Beary (1957) Ker. LJ. 731
|
|
Achiruddin Ahmad v. Sakina Bewa (1946) 50 C.W.N. 59; 222
I.C. 585; (’46) A.C. 288
|
|
Adbul Latif Khan v. Mt. Abadi Begum (1934) 61 I.A. 322; 9 Luck. 421; 150 I.C.810; ('34) A.P.C.188
|
|
Advocate-General of Bombay V. Yusufally
Ebrahim (1922) 24 Bom. L.R.1060; 84 I.C. 759; (’21) A.B.338
|
|
Aga Mahomed Jaffer v, Koolsom Beebee (1897)
25 Cal 9, 18; 24 I.A. 196, 204
|
|
Agha Ali Khan v. Altaf Hasan Khan (1892) 14 All. 429, 448
|
|
Ahinsa Bibi v. Abdul Kader (1901) 25 Mad. 26, 39
|
|
Ahmad Dar v. Mt. Mukhti ('51) A.J. & K. 21
|
|
Ahmed Ibrahim Saheb v.Meyyappa Chettiar (1939) M.W.N. 976; (1940) Mad. 285; (‘40) A.M. 285
|
|
Ahul Khader v. Chidambaram (1909)
32 Mad. 276, 278; 3 l.C. 876
|
|
Akbarally v. Mahomedally (1932) 34 Bom. L.R. 655, 138 l.C. 810, (‘32)
A.B. 356
|
|
Alisaheb v. Sesho Govind (1931) 33 Bom. L.R. 1238, 135 I.C. 489, ('31) A.B. 545
|
|
Amar Ahmad Khan v. Shamim Ahmad Khan A.I.R. 2012 Jhar 39
|
|
Ambashankar v. Sayad Ali (1894) 19 Bom. 273
|
|
Aminabi v. Abasaheb (1931) 55 Bom. 401,132 I.C. 892; (’31) A.B. 266
|
|
Aminaddin v. Tajjadin (1932) 59 Cal. 541; 138 I.C. 761; ('32) A.C. 538
|
|
Amir Dulhin v. Baij Nath (1894) 21 Cal. 311
|
|
Amir Jahan v. Khadim Husain ('31) A.O. 253, 132 I.C. 75
|
|
Amjad Khan v. Ashraf Khan (1929) 56 I.A. 213, 4 Luck. 305, 116 I.C. 405,
('29) A.P.C.
|
|
Anis Begun v. Muhammad Istafa (1933) 55 All. 743,148 I.C.26, ('33) A.A. 634
|
|
Anjumanara Begum v. Nawab Asif Kadar (1955) 2 Cal. 109
|
|
Asa Beevi v. Karuppan (1918) 41 Mad 365; 46 l.C, 35
|
|
Assamathem v. Roy Lutchmeeput Singh (1878) 4 Cal. 142, 155
|
|
Atorjan Bibi v. Sikandar Ali ('60) A.Ass. 183.
|
|
Aziz Bano v. Muhammad (1925) 47 All. 823, 837; 89 I.C. 690; ('25) A.A. 720
|
|
Aziz Dar v. Mst. Fazli ('60)
AJ. & K. 53
|
|
Aziz Dor v. Fazil (1960) J & K 53
|
|
Bafaten v. Bilaiti Khanum (1903)
30 Cal. 683
|
|
Bahadurkhanji v. Begum Mehrunnissa ('55) A. Sau. 72
|
|
Bai Jivi v. Bai Bibanboo (1929) 31 Bom. L.R. 199, 118
I.C. 785, ('29) A.B. 141
|
|
Bai Saroobai v. Hussein Somji (1936) 38 Bom. L.R. 903; 165 I.C. 34; ('36) A.B. 330
|
|
Balak Ram. v. Ineyat Begum (1935) 160 I.C. 217 , ('35) A.L. 940
|
|
Banoo Begum v. Mir Abed Ali (1908) 32 Born. 172
|
|
Baqar Ali v.Anjuman (1902) 25 All. 236, 254; 30 I.A. 111
|
|
Bassunteram v. Kamaluddim (1885) 11 Cal. 421, 428
|
|
Bazayet Hossein v. Dooli Chund (1878) 5I. A. 211, 4. Cal.
402
|
|
Bhagirthibai v. Roshanbi (1919) 43 Bom. 412, 51 I.C. 18
|
|
Bhimadev Taria v. Radhakrishna Agarwalla ('68) A. Ori. 230
|
|
Bhola Nath v. Maqbul-un-Nissa (1903) 26 All. 28
|
|
Bikani Mia v, Shuk Lal (1893) 20 Cal. 116
|
|
Biland Khan v. Mt. Begum Noor (‘43)
A. Pesh. 62
|
|
Cassamally v. Currimbhoy (1911) 36 Bom. 214,253-254; 12 I.C. 225
|
|
Chandra Kishore v. Prasanna Kumari (1910) 38 Cal. 327, 38 I.A. 7, 9 I.C. 122
|
|
Chandra Shekharappa v. Government of Mysore 1956 Mays
|
|
Chandu Lal v. Khaltemuneessa (1942) 2 Cal. 299, 205 I.C. 344, ('43) A.C. 76
|
|
D. Raja Ahmed v. Pacha Bai (1969) 1 An.W.R. 255
|
|
Dallu Mal v. Hari Das (1901) 23 All. 263
|
|
Davalava v. Bhimaji (1895) 20 Bom. 238
|
|
Daya Ram v. Shyam Sundari ('65) A.S.C. 1049
|
|
Deedar Hossein v. Zuhoor-oon-Nissa (1841) 2
M.I.A 441, 477
|
|
Durga Abdul Rawoof Sahib v. Quresha Bi Saheba (1959) 2 An. W.R. 557
|
|
Ebrahim Aboobaker v, Tek Chanf ('53) A.S.C. 298
|
|
Ebrahim Allibhai v. Bai Asi (1933) 58 Bom. 254; 149 I.C. 225; (‘34) A.B. 21
|
|
Essafally v. Abdeali (1921) 45 Bom. 75, 59 I.C.
396, ('21) A.B. 424
|
|
Faizulla Khan v. Abdul Jabbar (‘43)
A. Pesh. 65
|
|
Fateh Chand v. Muhammad (1894) 16 All. 259
|
|
Firm Bishambhar Nath Gopi Nath v. Hashim
Begam (1947) 23 Luck. 3, ('49) AO. 56
|
|
Ghulam Hassan v. Mst. Saja, A.I.R. 1984 Jammu & Kashmir 26
|
|
Ghulam Mohammad v. Ghulam Hussain (1932) 59 I.A., 74, 54 All.
98, 136 I.C. 454, ('32) A.P.C. 81
|
|
Ghumanmal Lakumal v. Faiz Muhammad Haji
Khan ('48) A.S. 83
|
|
Gulam Abbas v. Haji Kayyam Ali (‘73) AS.C. 554
|
|
Gulam Gose v. Shriram (1919) 43 Bom. 487, 51 I.C. 79
|
|
Haji Bibi v. H.H. Sir Sultan Mahomed Shah,
the Aga Khan (1909) 11 Bom. L.R. 409, 2 I.C. 874
|
|
Haji Mohd: v, Abdul Ghafoor ('55) A.A. 688
|
|
Hakim Khan v. Gool Khan (1882) 8 Cal. 826
|
|
Hakim Rehman v. Mohammad Mahmud Hasan (‘57) A.P. 559
|
|
Hamir Singh v. Zakia (1875) 1 All. 57
|
|
Hamira Bibi v. Zuhaida Bibi (1915) 43 I.A. 294, 301-302; 38 All. 581, 582; 36 I.C. 87
|
|
Harpal Singh v. Lekraj Kunwar (1908) 30 All. 406, 420
|
|
Hasan Ali v. Mehdi Husain (1877) 1 All. 533
|
|
Hasan Ali v. Nazo (1889) 11 All. 456
|
|
Hasan Bokhari v. Venkayya (‘55) A.
Andh. 87; (1957) Andh, W.R. 638
|
|
Hasanali v. Mansoorali (1949) 76 I.A. 1; (‘48) APC 66
|
|
Hayat-un-Nissa v. Muhammad (1890) 12 All. 190; 17 I.A. 73
|
|
Huchu Sab v. Sahajabi (1983) 1 Karn. LJ. 170
|
|
Humeeda v. Budlum (1872) 17 W.R. 525
|
|
Hurmut-ool-Nissa Begum v. Allahdia
Khan (1871) 17 W.R. 108 (P.C.)
|
|
Imambandi v. Mutsaddi 45 I.A. 73
|
|
Imperial Bank, Gaya v.Bibi Sayeedan ('60) A.P. 132
|
|
Isap Ahmed v. Abramji (1917) 41 Bom. 588, 612-613; 41 I.C. 761
|
|
Jafri Begum v. Amir Mohammad Khan (1885) 7 All. 822
|
|
Jagdish Narain v. Bande Ali Mian (1939) 20 P.L.T. 328; 183 I.C. 467; ('39) A.P.
406
|
|
Jain Begum v. Amir Muhammad (1885)
7 All. 822
|
|
Jainabai v. Sethna (1901) 34
Born. 604, 612, 613; 61 C. 513
|
|
Jamahiddin v. Mosque Mashakganj ('73) A. All. 328
|
|
Jan Mohammad v. Karm Chand (1947) Lah. 399, 49 Bom. L.R. 577, ('47) A.P.C. 99
|
|
Kallangowda v. Bibishaya (1920) 44 Bom. 943, 58 I.C.
42
|
|
Khadija Beevi v. Maria Ummal (‘58) A.Ker. 264
|
|
Khajah Hoosein v. Shahazadee (1869) 12 W.R. 344, 346
|
|
Khan Khul Khan v. Karam Nishan (‘40) A.I.
172
|
|
Khan Muhammad v. Gohar Banu P.L.D. 1965 (W.P.) Lah. 46.
|
|
Khanum Jan v. Jan Beebee (1827) 4 Beng. S.D.A. 210
|
|
Khatun Bai v. Abdul Wahab Sahib (1939)
M.W.N. 346; 184 I.C. 778; ('39) A.M. 306
|
|
Khazir Bhat v. Ahmad Dar ('60) A.J. & K. 57
|
|
Khurshet Bibi v. Keso Vinayak (1887) 12 Bom. 101
|
|
Khwajeh Solehman v. Nawab Sir Salimullah (1922) 49 I.A. 153; 49 Cal. 820; 69 I.C.
138; ('22) A.P.C. 107
|
|
Kochunni Kochu v. Kunju Pillai (1956) A Trav.-C. 276
|
|
Krishnamurthy Setty v. Adbul Khader (‘56) A. Mys. 14
|
|
Kulsom Bibee v, Golam Hoosein (1905) 10 C.W.N. 449, 488
|
|
Kunhi v. Kunhi (1896) 19
Mad. 176
|
|
Kurrutulain v. Nuzat-ud-dowla (1905) 33 Cal. 116, 128; 32 I.A. 244, 257
|
|
Kutti Umma v. Nedungadi Bank, LId. (1938) Mad. 148; 173 I.C. 699; (‘37) AM. 731
|
|
Kuttialikutty Marakkar v. Kandankutty (’67) A. Ker. 78
|
|
Lala Miya v. Manubibi (l923) 47 Bom. 712, 73 I.C. 246, ('23) A.B. 411
|
|
Land Mortgage Bank v. Bidyadhari (1880) 7 Cal. L.R. 460
|
|
Latafat Husain v. Hidayet Husain (1936) All.L.J. 342; 161 I.C. 851; (‘36) A.A. 573
|
|
Laxminarayan v. Sadatali (1944) Nag. 97, 212 I.C. 161, ('44) A.N. 99
|
|
Ma Bi v. Ma Khatoon (1929) 7 Rang. 744, 121 I.C.
785, ('30) A.R. 72
|
|
Ma Khatun v. Ma Bibi (’33) A.R. 393; 149
I.C. 654
|
|
Mahamad Amin v. Hasan (1906) 31 Born. 143
|
|
Mahomad Alladad v. Muhammad Ismail (1888) 10 All. 239
|
|
Mahomed Hussain v. Aishabai (1934) 36 Bom. L.R. 1155; 155 I.C. 334; (’35)
A.B. 84
|
|
Mahomed Kazim Ali Khan v. Sadiq Ali Khan (1938) (65) I.A. 218, 13 Luck. 494, 174 I.C.
977; (‘38) A.P.C. 169
|
|
Mahomed Usuf v. Hargovandas (1923) 47 Born. 231; 70 I.C.
268; (‘22) A.B. 392
|
|
Mahomed v. Kairum ('54) A. Mad.769.
|
|
Mahomed Wajid v. Bazayet Hossein (1878) 5 I.A. 211 , 223-224,
4 Cal. 402
|
|
Mahomed Yusuf v. Abdur Rahim (1900) 26 Cal. 839
|
|
Mahomedally Tyebally v. Safiabai (1940) 67 I.A. 406; 191 I.C. 113; (’40)
A.P.C. 215
|
|
Maimoona Bivi v. D.A. Khaja Mohinuddin (‘70) A Mad. 200
|
|
Maimun Bivi v. O. A. Khaja Mohideen (1970) I.M.L.J. 266, ('70)
A. Mad. 200
|
|
Maitheen Bivi Umma v. Ithappiri Varkey (1956) Trav.-C 292; ('56) A.Trav.-C. 268
|
|
Mamraj Maniram v. Muhamad Hashim (1941) 194 I.C. 727, ('41) A.C 245
|
|
Manni Gir v. Amar Jati (1936) 58 All. 594, 160 I.C.
1030, ('36) A.A. 94
|
|
Mansab Ali v. Mt. Nabirunnissa (1934) 150 I.C. 443, ('34)
A.A. 702
|
|
Mansoorally v. Taiyabally (‘35) A.N. 156
|
|
Maulabux v. Charuk (’52) P. Sind. 54
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Md. Kahr Khan v. Salfulla Khan (1887) 22 PR 198
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Md. Zafir v. Amiruddin ('63) A.P. 108
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Md.Bakhsh v. Hayat Khan (1888) 23 PR (No. 37) 98
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Mir AIi v. Sajuda Begum (1897)
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Mohamed Yasin v, Rahmat Ilahi ('47) A.A. 201 F.B.
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Mohammad Afzal Khan v. Abdul Rahman (1932) 59 I.A. 405, ('32) A.P.C. 235
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Mohammad Ibrahim v. Mohammad Abubakker (‘76) A Mad. 84
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Mohammad Sohail v, Ghulam Rasul (1949) Lah. 308: (’41) A.I. 152 (FB)
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Mohammad Zia Ullah v. Rafiq Mohammad (1939 O.W.N. 581; 182 I.C. 190;
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Mohammadi Begum v. Nawaz Jung (1955) Hyd. 743
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Mohammed Ibrahim v. Syed Muhammad Abbubakker A.I.R. 1976 Mad. 84 L.W. 43
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Mohd. Abdullah v. Mohd Rahiman ('64) A.M. 234
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Moosa Seethi v. Mariakutty (1954) Trav.-Co. -690, (‘54) A Trav.-Co. 432
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Mst. Bibi Fatma v. Aftab Ahmed (‘63) A.P. 128
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|
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|
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|
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|
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|
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|
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|
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Ujmudin Khan v. Zia-ul-Nissa (1879) 61 A. 137; 3 Bom. 422
|
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Umerdaraz v. Wilayat Khan. (1896)19 All. 696
|
|
Umes Chunder Sircar v. Mt. Zahoor Fatima (1890) 17 I.A. 201; II Cal. 164
|
|
Umjad Alli Khan v. Mohumdee Begum (1867) 11 M.I.A. 517 at 548
|
|
V.M.RV. Chiettiar Firm v. Asha Bibi (1929) 118 I.C. 407, ('29) A.R. 107
|
|
Veerbhadrappa Shilwant v. Shekabai (1939) Bom. 232, 41 Bom. L.R. 249, 182 I.C. 539, ('39) A.B. 188
|
|
Venkata Subamma v. Ramayya (1932) 59 I.A. 112, 55 Mad. 443, 136 I.C. 111, ('32) A.P.C. 92
|
|
Virchand v. Kondu (1915) 39 Bom. 729, 31 I.C. 180
|
|
Wahidunnissa v. Shubrattun (1870) 6 Beng. L.R. 54
|
|
Zebaishi Begum v. Naziruddin Khan (1935) 57 All. 445, 152 I.C.
1008, ('35) A.A. 110
|
LIST OF ENACTMENTS AND RULES MENTIONED
|
Administrator-General's
Act, 1913
|
|
Bombay Prevention of
Excommunication Act (XLII of 1949)
|
|
Bombay Regulation
VIII of 1827
|
|
Bombay Watan Act, 1886
|
|
Caste
Disabilities Removal Act 1850
|
|
Cutchi Memons Act XLVI of 1920
|
|
Indian
Contract Act, 1872
|
|
Indian Evidence Act, 1872
|
|
Indian Succession Act, 1865
|
|
Indian Succession Act, 1925
|
|
Limitation Act, 1908
|
|
Mussalman
Wakf Validating Act, VI of 1913
|
|
Oudh Estates Act I of 1869
|
|
Oudh Estates Amendment Act III
of 1910
|
|
Probation and Administration
Act, 1881
|
|
Shariat Act, 1937
|
|
Succession
Certificate Act,1889
|
|
Transfer of
Property Act , 1882
|
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