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Judgment
At the very outset, learned counsel for the respondents submitted that an application has been presented earlier before the learned trial court for substitution of legal representatives of deceased Gh. Mohi-ud-din Dar.
Ongoing through the record, it came to fore that the application has been filed on 26th July, 2003 wherein date of death of the deceased is shown to be 19th February, 2003 and the deceased is shown to be survived by his son, Mohammad Ashraf Dar, and daughter, Zamrooda. This application finds reference in the order passed by the learned trial court on 4th of March, 2004, wherein defendants have been asked to file objections, if any. There is, however, no specific order for allowing the said application. Judgment and decree passed by the learned trial court too does not indicate any of the legal heirs having been brought on record in place of deceased, Gh. Mohi-ud-din Dar. Rather the judgment and decree of the learned trial court refers the deceased as the defendant and judgment debtor. In the appeal filed on behalf of present appellant, legal representatives of the deceased have not been arrayed as party, rather the appeal is being filed by one of the defendants/judgment debtors against the respondent No.1 (contesting respondent) and two other defendants/judgment debtors, namely, Gh. Hassan Dar and Ab. Rasheed Koka.
In the memo of Civil 2nd Appeal, following three questions, referred at para 9, have been prayed to be framed as substantial questions of law:
a. Whether the appellate court as also the trial court were competent to pass judgment and decree in favour of the respondent No.1 in the face of the fact that defendant No.1 namely Gh. Mohidin Dar had died during the pendency of suit. According to the submission of the appellant the whole suit had abated not only against defendant No.1 but also against the surviving defendants;
b. Whether the first appellate court and also trial court were competent to grant decree in favour of the respondent No.1 without indicating survey Nos. of the suit property when the suit had been filed by the respondent No.1 in respect of survey Nos. mentioned in plaint situated at Gowherpora Tehsil Chadoora District Budgam. According to the submission of appellant it is not competent for the first appellate court and also the trial court to grant decree without indicating the suit property by reference to these survey Nos.;
c. Whether the evidence on record of the trial court is clinching in nature establishing that the parties to the suit are governed by custom in the matter of MOHAMMAD ALTAF BHAT 2019.05.03 10:39 I attest to the accuracy and integrity of this document succession, inheritance etc. and that they have succeeded to Amir Dar and inherited his property much before Muslim Personal Law (Shariat) Application Act of 2007 came into force and, therefore, finding of the first appellate court and also the trial court that parties would be governed by Muslim Personal Law (Shariat) Application Act, 2007. Whether this finding of the trial court is perverse to law.
In the memo of appeal, in support of the above referred questions, following grounds have been taken:
(I) That the respondent No.1 filed a civil original suit before Sub Judge, Chadoora, for declaration, partition and perpetual injunction in respect of land bearing Survey No.121-min (4 marlas), 126/min (5 kanals), 361/97-min (2 kan al 4 marlas), 364/109-min (5 kanals), 11-min (7 kanals 01 marla) situated at Gowherpora Tehsil Chadoora District Budgam claim that she is entitled to 1/8 the share therein;
(II) That the defendants appeared before the trial court and filed written statement to the plaint wherein a specific stand was taken by the defendants including the appellant that the parties are governed by custom law in the matter of succession and inheritance and it was also alleged in the written statement that erstwhile owner has made a will in favour of the defendants 1 to 3 and in the said will erstwhile owner Amir Dar (father of the appellant) has admitted the factum of appellant being his Khana Nisheen daughter;
(III) That the trial court after framing issues in the matter, directed the parties to lead evidence. The plaintiff (respondent No.1) appeared as her own witness and in her statement admitted that suit property has been divided by her husband Amir Dar into four shares and defendants were given one share each some twenty years back and she has also said that she is ready and willing to have her share as per terms of the will deed.
(IV) That no expert evidence was available before the Sub-Judge Chadoora (trial court) and also first appellate court to quantify the land to which right was claimed by the respondent No.1.
(V) That the evidence led in the case established beyond any shadow of doubt that parties are governed by custom in the matters of succession, inheritance etc.
(VI) That the trial court ultimately decided the case in favour of respondent No.1 in terms of his judgment and decree dated 28-05-2014 wherein the trial court held the plaintiff entitled to 1/8 share from the estate of her husband Amir Dar and directed participation of estate of Amir Dar by meets and bounds and delivering the possession of 1/8 share to plaintiff (respondent No.1) without indicating as to what is the estate of husband of the plaintiff (respondent No.1) namely Amir Dar.
(VII) That the appellant aggrieved of the judgment and decre filed civil first appeal before Principal District Judge Budgam. It was canvassed before the appellate court that the respondent No.1 has claimed ¼ share in the suit property in accordance with the registered will deed and it was not competent for the trial court to grant decree in her favour for 1/8 share in the suit property and it was also canvassed in the memo of appeal before Principal District Judge that the defendant No.1 in the suit had passed away during the pendency of the suit and his legal representatives have not been brought on record and accordingly according to the submission of the appellant the entire suit had abated. And these grounds were taken before the first appellate court in addition to other grounds of challenge.
Heard the learned counsel for the appellant and the respondents.
Learned counsel appearing for the appellant submitted that the judgment and decree passed by the learned trial court and confirmed by the appellate forum is bad on account of not having considered the impact of abatement. It is also his submission that the deed in terms of which mutation No.417 of Village Gowherpora/Kultreh Chadoora has been attested is, in fact, a settlement deed and not a will deed which has been acted upon accordingly and there was nothing left on the death of deceased Amir Dar which could be inherited by his legal representatives. Reliance has been placed on the judgment "Pulibandla Venkata Subbanna and others v. Devasani China Panayya and another" (AIR 1989 Andra Pradesh 34, wherein opinion has been framed by the said Court that the settlement deed reserving life estate for executor and his wife was valid. He has also made reference of the observations made by the trial court that the deed, in fact, was a settlement deed and nomenclature would be immaterial. Provisions of Shariat Act would have no application to the present case, is also being submitted as the lis was pending prior to enactment of the said Act. Reference has also been made to Section 29 of the General Clauses Act. The judgment and decree, according to him, in view of death of Amir Date was non-est. Reliance, in this regard, is placed on the judgment of the Hon'ble Apex Court in "Babu Sukhram Singh v. Ram Dular Singh and others" (AIR 1973 SC 204), wherein it is observed that where a joint claim against several defendants is made in a suit and during pendency of appeal by the plaintiff some of the defendants die and no separate claim is made against any of the defendants in appeal, the failure of the plaintiff to bring on record their legal representatives results in abatement of appeal in toto.
It is also being submitted that the respondent No.1 has, in her statement recorded on 15th of April, 2010, shown her knowledge about the death of deceased. It is also being stated that she has expressed her desire that in case she would be given property in terms of the claim preferred, she would sell it.
Mr. Parray, learned counsel appearing for respondents submitted that the Court is required to take into account all the averments made in the plaint while appreciating substantial controversy between the parties. According to him, there was no need of having made mention of the property, with regard to which the dispute has crept in, in the judgment and decree passed by the learned trial court. Furthermore, according to him, the settlement/will deed was not acted upon during the life time of the testator deceased Amir Dar and so the property is required to be distributed among the heirs after his death in terms of provisions of Shariat Act. The Statute would apply to all the pending claims nonetheless they may have originated before the commencement of the said Act. He has, in this regard, placed reliance on the judgment of the Hon'ble Supreme Court in "Shahzada Bi and others v. Halimabi (since deceased by L.Rs)" (AIR 2004 SC 3942).
According to learned counsel for the respondents, since the application had been preferred by respondent No.1 for arraying the legal heirs of deceased as parties, the plea of abatement would melt into insignificance. It is also being submitted that immediately after death of Gh. Mohi-ud-din, the defendants had prayed for allowing them to file amended written statement, which was granted. The Court is required to do substantial justice, is also his plea. In the case provisions of Shariat Act would be given a go bye, according to him, same would be violative of provisions of the said Act and its spirit.
Considered the rival arguments.
It is evident from the perusal of the record that para 2 of the plaint makes mention of the property vis-à-vis Survey No.121-min (4 marlas), 126/min (5 kanals), 361/97-min (2 kan al 4 marlas), 364/109-min (5 kanals), 11-min (7 kanals 1 marla) situated at Gowherpora Tehsil Chadoora District Budgam, which in total would be 14 kanal and 14 marlas, however, argument raised at Bar by Mr. Parray is that the decree would have effect vis-à-vis while estate of deceased Amir Dar, which, according to him is more than 100 kanals. Particulars of the property as reflected in mutation No.417 have not been taken note of while describing the suit proper as is revealed from the perusal of the plaint referred above. There is no description of the property either in the concluding para of the judgment or in the decree itself. Learned trial court also has not given any thought to the pertinent aspect of the matter regarding death of Gh. Mohi-ud-din and later in specific terms substituting the legal representatives. Event at appellate stage neither successor-in-interest of late Gh. Mohi-ud-din have been arrayed as party nor any steps have been taken by the plaintiff to substitute the legal heirs of deceased Gh. Mohi-ud-din.
Having regard to the above features of the matter as projected by the parties, case for admission is made out and the Civil Second Appeal is, accordingly, admitted to hearing and on an overall view of the matter, following substantial questions of law, which, emerge for consideration in the instant matter, are framed for adjudication:
a) Whether omission firstly on the part of learned trial court and thereafter on the part of learned appellate court in delineating the estate of deceased Amir Dar or property to which the decree relates, affects the judgment and decree on any account and if so, how?
b) Whether omission on the part of learned trial court/appellate court in substituting the legal heirs of deceased Gh. Mohi-ud-din, has any impact on the judgment and decree passed by the trial court and if so, how?
c) Whether the provisions of Muslim Personal Law (Shariat) Application Act of 2007 would be applicable to the matter?
d) If the reply to question (c) is in affirmative, whether and how it would effect entitlement of any of the parties to the suit property?
List for hearing on 20th May, 2019.