High Court

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5130 OF 2009Nusrat Sultana Munnawar Khan VERSUSIqabalbee Munnawar Khan Pathan And AnrMr. S. S. Jadhavar, Advocate for petitionerMr. M. P. Kale h/f Mr. P. N. Mule, Advocate for respondents.CORAM: R. M. JOSHI, J.DATE: 26th NOVEMBER, 2024PER COURT :-1.By consent of both sides, heard finally at the stage ofadmission.2.This petition takes exception to order dated 13.12.2007passed in Misc Civil Application No. 98/2007 (Old Misc Civil ApplicationNo. 29/2006) whereby Succession Certificate came to be issued in favourof petitioner and respondent and their entitlement to seek the share inthe property i.e., the amount lying in the bank account of the deceasedMunnawar was accepted and shares of respective parties weredetermined. This order came to be challenged by filing appealunsuccessfully. Hence this petition.3.It is the case of petitioner that she is wife of deceased902-WP-5130-2009.odt1 of 6 Munnawar Khan.It is claimed that respondent No.1 was first wife ofdeceased Munnawar who was divorced in the year 1974. Petitioner alsoclaimed that the Munnawar was ex-serviceman and that in his servicerecord, petitioner’s name is recorded as his wife. Respondent No.1Iqabalbee filed an application before trial Court seeking SuccessionCertificate in respect of the amount of Rs. 80,100/- standing in the nameof deceased Munnawar in the Joint Saving Account No. 1306 at Shri.Mangalnath Nagari Sahakari Pat Sanstha Ltd., Majalgaon. Though,initially the petitioner was not joined as party, an intervention applicationcame to be filed and allowed. Parties were given opportunity to leadevidence to substantiate their respective contentions. The impugnedorder came to be passed holding petitioner as well as respondents to beentitled for the share in the subject property of the deceased.4.Learned counsel for the petitioner submits that the trial Courthas committed error in not considering the evidence on record in properperspective. According to him, on the basis of evidence led by petitionerit ought to have been held by the trial Court that respondent No.1 is notwidow of the deceased. It is his submission that if she was wife ofdeceased, there was no reason or justification not to include her name inthe service record of the deceased. He also argued that the amount lyingin the account, is not single account of deceased but same is joint902-WP-5130-2009.odt2 of 6 account with petitioner and hence no Succession Certificate could havebeen obtained by respondents, in respect of the same.5.This submission is opposed by the learned counsel for therespondent contending that there is no dispute about the fact thatrespondent No.1 was married to the deceased. However, the petitionerhas claimed that she was divorced by the deceased. In this regard,however, no evidence is placed before the trial Court and as such, thereis no reason or justification to cause any interference in the findingrecorded by the trial Court.6.As far as the rights of the parties to get share in the subjectproperty is concerned, there is admission of respondent No.1 aboutpetitioner being wife of deceased. Similarly, petitioner admits thatrespondent No.1 has married to deceased but was divorcedsubsequently. Once such stand is taken by the petitioner, it wasnecessary for her to led evidence before the Court in order to show thatthe deceased had divorced respondent No.1. As observed by the trialCourt, there is no evidence to indicate that the respondent No.1 wasdivorced by the deceased. In absence of such evidence, there was noother option for the Court but to accept that both petitioner as well asrespondent No.1 as wives of deceased and they are entitled for share in902-WP-5130-2009.odt3 of 6 the subject property of the deceased in accordance with the MahomedanLaw. As far as contention of petitioner about account in question beenjointly held with deceased is concerned, there is no specific plea raisedbefore trial/appellate court including in this petition, that any amountlying in the said account belongs exclusively of petitioner, Court finds nosubstance in the objection raised to the tenability of original application. 7.Learned counsel for the petitioner on this issue submits thatin respect of other properties, respondent No.1 has filed separate suitand since the said suit is substantial proceeding, the findings recorded inthe application for issuance of Succession Certificate may not be allowedto prevail over outcome of the said suit. This Court finds substance in thecontention of the learned counsel for the petitioner in this regard. Sincethe suit is substantial proceeding, it is necessary for the said Court todetermine the issues involved therein on the basis of evidence led beforeit.8.Now coming to the issue of the determination of shares bythe respective parties in the property of the deceased, it would berelevant to take into consideration the law on the point of inheritance ofMuslim man. Under the Mahomedan Law applicable to the deceased andthe parties to this proceeding, there are three kinds of classes of heirsi.e., Sharers, Residuaries and Distant Kindred. The “sharers” are those902-WP-5130-2009.odt4 of 6 who are entitled to a prescribed share of the inheritance. “Residuaries”are those who take no prescribed share, but succeed to the residue afterthe claims of the sharers are satisfied. “Distant Kindred” are all thoserelations by blood who are neither Sharers nor Residuaries. Admittedly,the parties here to are class I heirs of deceased. As per 23rd edition ofMahomedan Law by Mulla, widow of the deceased is entitle for 1/8thshare in his property. Admittedly there are two widows of deceased.Therefore, they will share this 1/8th share which would go to the wives.Sons and daughters of the deceased are residuaries. Various illustrationsgiven in respect of the determination of shares of son and daughter, theprinciple is that the son would get double the share than the daughter.Thus, if one share of the property is given to the daughter, the son/sonswould get double thereof. Thus, learned trial Court seems to havecommitted error in determining the shares of the parties. Though thedeceased was given 1/8th share correctly, it is wrongly held that the sonhas 1/3rd share and the daughter becomes residuary. In fact, only widowis the sharer and others are residuaries. Therefore, the sons anddaughters in this case would become residuaries the sons would getdouble the share of daughter. Hence, impugned order deservesinterference to this extent.9.In view of the above, impugned judgment deserves partial902-WP-5130-2009.odt5 of 6 interference hence petition is allowed partly. The parties are entitled toget shares in the subject property of the deceased as follows.i) Wives together – 5/40Each wife – 2.5/40 i.e., 5/80ii) Daughter- 7/40iii) Each son 14/408. Petition is disposed of in above terms.(R. M. JOSHI, J.)bsj902-WP-5130-2009.odt6 of 6