Case Note & Summary
The Supreme Court addressed a partition suit among the heirs of Haji Ishan Ali under Mohammedan law. The dispute concerned shares in property purchased by Haji Ishan Ali in the name of his son Sabul Hassan. Haji Ishan Ali died in 1955, leaving his widow Samudanusa (plaintiff No.1), two daughters including plaintiff No.2 Bibi Mewannessa, and three sons Jabar Ali, Isabul Ali, and Sabul Hassan. Sabul Hassan predeceased his brother Isabul Ali, leaving a son (defendant No.4) and another son Liaquat who also died before Isabul Ali. The trial court granted a preliminary decree which was affirmed by the Calcutta High Court. The High Court held that the property purchased in Sabul Hassan's name belonged solely to Sabul. The Supreme Court granted special leave limited to the questions of inheritance concerning properties of Sabul, Liaquat, and Mahujammusa. Legal issues involved whether the father Haji Ishan Ali was a sharer in Sabul's estate, whether plaintiff No.2 was entitled to a share in the estate of Mahujammusa (D-5) as a full sister, and whether the appeal abated due to delay in substitution. The appellant sought correction of shares; the respondent objected to abatement. The Court referred to Section 61 of Mulla's Principles of Mohammedan Law, classifying heirs into sharers, residuaries, and distant kindred. For Sabul's estate, because he left a son, the father was entitled to 1/6 as sharer; that share devolved equally on the father's widow and daughter. For Mahujammusa's estate, she left two daughters who as sharers took 2/3, leaving 1/3 residue; no descendants or ascendants existed, so the full sister (plaintiff No.2) took the entire residue as residuary under Section 65. On abatement, the Court found no abatement because defendant No.3 was already on record representing all heirs of defendant No.1's widow, and substitution was allowed. The Supreme Court allowed the appeal, overruled the abatement objection, and remitted the matter to the trial court to determine shares of all contesting parties in accordance with the declared principles, with no order as to costs.
Headnote
A) Mohammedan Law - Inheritance - Classification of Heirs and Father's Share - Mulla's Principles of Mohammedan Law, 18th Edition, Section 61 - The court noted that heirs are classified into sharers, residuaries, and distant kindred; a father is a sharer entitled to 1/6 share when the son leaves a child or children of a son, and if no such child, the father inherits as residuary; since Sabul Hassan left a son, the father was entitled to 1/6 share, which then devolved equally on his widow and daughter; Held that the trial court must determine the exact shares accordingly (Paras 3-4). B) Mohammedan Law - Residuary Succession - Full Sister's Entitlement to Residue - Mulla's Principles of Mohammedan Law, 18th Edition, Section 65 - Where a deceased leaves two daughters, they take 2/3 share as sharers leaving 1/3 residue; in absence of descendants and ascendants, the full sister succeeds as residuary to the entire residue; the court held that plaintiff No.2, being full sister of deceased D-5, was entitled to the 1/3 residue (Para 4). C) Civil Procedure - Abatement - Substitution of Legal Representatives - Code of Civil Procedure, 1908 (no specific section cited) - The appeal was objected to on ground of abatement because legal representatives of deceased defendant No.1 were brought on record after inordinate delay; the court held that since defendant No.3 was already on record representing all heirs of defendant No.1's widow, no abatement occurred and substitution should be allowed in the interest of justice; Held that the objection was overruled and the substitution application allowed (Para 5).
Issue of Consideration
Whether Haji Ishan Ali (father) was entitled to a share as sharer in the estate of his predeceased son Sabul Hassan; whether plaintiff No.2 (P-2) as full sister was entitled to a share in the estate of Bibi Mahujammusa (D-5) as residuary; whether the appeal abated due to delay in bringing legal representatives of deceased defendant No.1 on record
Final Decision
Appeal allowed; matter remitted to Trial Court for determining shares of all contesting parties and distribution of estate according to law declared; application for substitution allowed; no costs.
Law Points
- Heirs under Mohammedan law are classified into sharers
- residuaries
- and distant kindred
- father is a sharer entitled to 1/6 share when son leaves child or children of a son
- two daughters as sharers take 2/3 share leaving 1/3 residue
- full sister succeeds as residuary to the entire residue when no descendants or ascendants exist
- delay in substitution does not cause abatement if a party already on record represents all heirs
