Rahmat Bai vs Rahman and others

K.K. Varma, J.—A suit was filed in the Court of Civil Judge (Class II) Sheopurkalan on 25-4-1970. Appellant Mst. Rahmat Bai was plaintiff No. 1. The plaint showed her sister Mst. Maqbul (now respondent No. 4) as the plaintiff No. 2. Their sisters Mst. Ausafi (respondent No, 2) and Mst. Hameedan (respondent No. 3) were defendants 2 and 3. Mst. Ausafi''s son Rahman (respondent No. 1) was defendant No. 1. The four sisters who had no brothers were daughters of one Noor Beg (since deceased) and one Mst, Noor Bano who died a widow.

The suit was in respect of Survey Nos. 56, 267, 247 and 168 (total area 33 ''bight'' 1 ''biswa'', situate at Mouza kunhjapura. A declaration was sought in the following terms:

(Emphasis supplied)

The reliefs were claimed on the following averments. The plaintiff''s father Noor Beg held Survey Nos. 92, 185, 300/6, 303/1, 367/6, 390//2 (total area 39 ''bigha'' 10 ''biswa'') situate at Mouza Kunhjapura, Tahsil Sheo-purkalan district Morena, in Bhumiswami rights. He died (intestate) about 10 years before the date of institution of the suit, sonless, but survived by his widow Mst. Noor Bano and 4 daughters (the plaintiffs and defendants 2&3). The plaintiffs averred that the suit lands devolved on Mst. Noor Bano and his daughters in well-defined shares in accordance to their personal law i.e. the Mohammadan Law.

The plaint-paragraphs 3 & 5 containing the plaintiffs'' grievance, are extracted below:

(Emphasis supplied)

The defendants'' case was that in or about 1953 Noor Beg, in presence and with consent of the plaintiffs and defendants 2 and 3, took defendant No. 1 in his household and handedover management of his lands to him. Ever since defendant No. 1 started cultivating the suit lands

Noor Beg died about 16 years before the filing of the written statement on 22-1-1973, survived by his widow Noor Bano, the plaintiffs and defendants 2 and 3, and Asgar and Mst. Jumrat, son and daughter of his predeceased daughter Mst Maqsoodi.

Mst. Noor Bano made a gift of all the suit lands to defendant I in consultation with the plaintiffs and defendants 2 and 3 and executed a registered gift deed dated 30-10-62 in his favour. In fact, the plaintiffs had relinquished their interest in the suit lands in defendant No. 1''s favour with the expectation that he would be discharging the customary obligations of a brother. In keeping with the obligations he had paid Rs. 101/- on each of the occasions of the marriages of sons and daughters of the plaintiffs as "bhaat". The plaintiffs are therefore estopped from challenging the gift and the defendant''s rights thereunder.

It was averred that the present section 164 of the M. P. Land Revenue Code, 1959 was not in force at the time of Noor Beg''s death.

It was averred that the defendant No. 1 having been in possession of the lands for more than 12 years as an owner, and has been recorded as the bhumiswami'' of the lands. It was averred that the ''chakbandi patta'' is also in his name.

It was averred that the suit was time-barred.

Plaintiff No. 2 Mst. Maqbool appeared in suit on 23-2-1974 and disclaimed that she had filed the suit.

The learned trial judge held that Noor Beg died 10 years ago and that his widow and daughters got the suit lands as his heirs and that the gift did not bind plaintiff 1 Mst. Rahman Bai. The suit was decreed in her favour in respect of 8 ''bigha'' 12-1 /2 ''biswa'' of suit lands without specifying the identity of the lands.

The defendants appealed. The learned appellate Judge held that Noor Beg having died during the period the original section 164 of the M. P. Land Revenue Code, 1959 had been in force, i.e. between 2-10-1959 and 8-12-1961, his widow Mst. Noor Bano was the sole heir of Noor Beg. He, therefore, allowed the appeal and non-suited the plaintiff No. 1.

In second appeal, the State of M. P. was impleaded as respondent No. 4 under Order I, rule 3-B, Civil Procedure Code.

Plaintiff No. 1 Mst. Rahmat Bai''s appeal was admitted on the follow, ing questions:

Whether Noor Beg having died after 8-12-1961, i.e. after amendment in Sec. 164 of M. P. Land Revenue Code, 1959 the right of Bhumiswami would pass on the plaintiffs/appellant according to amended provisions of section 164 M. P. Land Revenue Code of 1959?

Whether decree can be passed on the allocation of defendant made in written statement in respect of date of death of Noor Beg which plaintiff could have made in the plaint''.?

Whether delivery of possession of suit land is essential condition for valid gift under Mohammadan Law ? Can the judgment and decree passed by learned Addl. District Judge being contrary to same be upheld ?

Whether judgment and decree passed by learned Additional District Judge can be allowed to remain stand although legal inference drawn from the admission made by defendant No. 1 Rahman in respect of date of death of Noor Beg as well as factum of non-delivery of possession of suit land in pursuance of gift deed are not correct ?

Whether judgment and decree passed by learned Addl. Distt Judge suffers from infirmity of lack of discussion of evidence oral as well as documentary on record and are available to interfere under provisions of Sec. 100 read with Sec. 103 CPC ?

Points 1 to 5:--The appellant''s learned counsel fairly-and rightly-conceded that even on the plaint averments and also on the evidence of Haji Ibadullal Khan (PW. 2) and Munir Beg (PW. 3), Noor Beg''s death has to be taken as having taken place in the year of 1960. Then the original section 164 of the M. P. Land Revenue Code, 1959 was in force. It provided that notwithstanding any law, custom or usage to the contrary, the interest of a ''bhumiswami'' shall on his death devolve in accordance with the order of succession thereinafter provided. Then followed 22 classes of heirs. In Class I a widow found place while daughters in class II. As such, on Noor Beg''s death, his lands devolved on his widow Mst. Noor Bano only. Hence, the case of the plaintiff 1 that she and her sisters had also become co-heirs along with their mother Mst. Noor Bano has no substance. It follows that at the date of the gift of the lands made by Noor Bano in favour of defendant No. 1, the plaintiff 1 and her sisters had no interest in the suit lands. They, therefore, had no locus standi to challenge the girt on the ground that it affected their interest in the lands at the date of the gift.

The appellant''s learned counsel, however, urged that the defendant No. 1''s evidence fails to establish that the gift was made with all the formalities required under Mohammadan Law. I am afraid this plea had never been available to the plaintiffs on the plaint averments, read with the reliefs clauses in the plaint. It was in order to highlight this point that I had extracted and emphasised, the plaint averments in the beginning of this judgment.

The dicta in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury, , Smt. Surasaibalini Debi Vs. Phanindra Mohan Majumdar, ; Nagubai v. B. Sama Rao AIR 1955 SC 593; Sonawati and Others Vs. Sri Ram and Another, , Madangopal v. Mamral: AIR 1976 SC 461, and Maqbool Alam Khan Vs. Mst. Khodaija and Others, are of no aid to the appellant in the light of the facts of the case

The result is that the appellant fails in assailing the corrertness of the first appellate decree.

I, therefore, dismiss the appeal with costs and affirm the first appellate Court''s decree. Counsel''s fee allowed up to Rs. 100/- as reasonable fees. A decree be drawn up accordingly.