Wahab Kumar and Another vs Fateh Kumar and Others

M.L. Bhat, J.—This second appeal is directed against the judgment and decree of the District Judge, Baramulla D/- 19-9-1980 whereby he

has affirmed the judgment and decree passed by Sub-Judge, Baramulla D/- 30-9-1975. Both the courts below have dismissed the suit filed by the

plaintiffs-appellants.

The facts giving rise to this appeal briefly stated are : One Subhan Kumar had died issueless on 23-9-1971 and a will purported to have been

written by him in favour of the respondents was questioned as being forged and ineffective. The will was declared forged and inoperative as it was

executed after the death of Subhan Kumar. This was found by the courts below as a matter of fact and in this regard a concurrent finding was

recorded by the courts below. Therefore under the will which was declared void, the defendants could not get the property of Subhan Kumar who

was their reversioner. The defendants, in the alternative had claimed the property of Subhan Kumar as nearest agnates and had also claimed that

plaintiffs being remoter in degree will be excluded from Inheritance. Both the court below have found that appellants were remoter in degree and

respondents nearer in degree to the deceased Subhan Kumar and on this count appellants' suit for declaration was dismissed.

After having failed before the courts below, the appellants have come to this court.

I have heard learned counsel for the parties. Mr. B.A. Khan has conceded that findings as regards invalidity of will is concurrent and it cannot

be disturbed in second appeal. However, his contention was that Rehman Kumar father of the defendant was a nearer agnate of Subhan than the

appellants, but during the pendency of the litigation Rehman had died, therefore, by virtue of subsequent event the appellants and respondents have

become equals in degree as agnates so far as their relationship with Subhan was concerned.

The submissions made by Mr. B.A. Khan are misplaced. He has lost sight of two important principles relating to the inheritance of Muslims.

These are :

(1) immediately on the death of a Mohammadan, the property is vested and vesting of property never gets postponed.

(2) Among the agnates the nearer excludes the remoter. Admittedly when Subhan Kumar died, Rehman was nearer in degree to him than the

appellants. Therefore, immediately after the death of Subhan his property got vested in Rehman, father of the defendants. When it got vested in

Rehman, respondents do not inherit the property of Subhan, but they inherit the property of Rehman which he in turn had inherited from Subhan.

Admittedly Rehman was nearer in degree to Subhan than the appellants. Both according to Mr. Khan are residuaries. While Rehman was nearer,

the appellants were remoter. Therefore the appellants would be excluded from inheritance by the nearer who was father of the respondents. It

cannot be said that the appellants and respondents are equals. Their status is to be seen at the time of death of Subhan. Immediately on Subhan's

death Rehman inherited his property as his nearest agnate and became owner of the property. His death during the pendency of litigation is of no

help to the appellants. Therefore appellants in presence of the respondents could not inherit the property of Subhan Kumar for the reasons

discussed above.

The result is that there is no force in this second appeal, which is dismissed. Keeping in view the peculiar circumstances of the case, the parties

are left to bear their own costs.