Case Note & Summary
The case involves a second appeal before the Bombay High Court against a judgment of the Additional District Judge, Kolhapur, dated 29 December 1987, which dismissed the appellants' appeal and confirmed the trial court's dismissal of the suit. The plaintiffs (appellants) filed a suit for possession of suit property, claiming it originally belonged to one Adam Pendhari. Adam had two wives: Noorbi and Akkamma. Defendants 1 to 5 were Adam's children from Noorbi, while the plaintiffs were his children from Akkamma. The suit property, Block No.413 at village Rukadi, belonged to Akkamma's mother, who gave it to plaintiff No.3 by will. However, Adam took the property from plaintiff No.3 under a gift deed dated 22.4.1982. The plaintiffs sought possession, alleging they were legitimate heirs of Adam. The trial court and first appellate court dismissed the suit, holding that the plaintiffs were not legitimate children of Adam. The High Court framed a substantial question of law: whether the lower courts were right in denying legitimacy despite Adam's own acknowledgements (Exhs. 43 and 36) and the principles of Mohamedan Law, particularly Clause 75, which provides that acknowledgement of legitimacy by the father, when conditions are fulfilled, confers legitimacy. The High Court allowed the appeal, setting aside the lower courts' judgments and decreeing the suit in favor of the plaintiffs.
Headnote
A) Mohamedan Law - Legitimacy - Acknowledgement of Paternity - Clause 75 - The substantial question of law was whether the lower courts erred in denying the status of legitimate heirs to the plaintiffs despite the father's categorical acknowledgement of legitimacy through exhibits 43 and 36. The High Court held that under Clause 75 of Mohamedan Law, when a father acknowledges a child as his legitimate offspring and the conditions of the clause are satisfied, the child is deemed legitimate and entitled to inherit. The lower courts' findings were set aside. (Paras 2-3)
Issue of Consideration
Whether both the Courts below were right in holding that the plaintiffs were not the legitimate children of deceased Adam, especially when the deceased Adam himself, by Exhs. 43 and 36, had categorically admitted the said fact, and in view of the principles laid down under Mohamedan Law, as per Clause 75 of the said law, when all those conditions having been fulfilled, such as acknowledgement of legitimacy by the father, whether the Courts below were right, inspite of this being the position, to deny the status of legitimate heirs of deceased Adam and non-suit them.
Final Decision
The High Court allowed the second appeal, set aside the judgments and decrees of the lower courts, and decreed the suit in favor of the plaintiffs.
Law Points
- Mohamedan Law
- Clause 75
- acknowledgement of legitimacy
- legitimate heirs
- paternity
- inheritance
Case Details
2005 LawText (BOM) (07) 146
Second Appeal No. 616 of 1988
Mr. T.S. Ingale for the appellants, Mr. V.B. Rajure for the Respondent Nos. 1 & 2, Mr. K.V. Saste for the Respondent No.3
Rahimbax Adam Pendhari & ors.
Ibrahim Adam Pendhari & ors.
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Nature of Litigation
Second appeal against judgment of Additional District Judge, Kolhapur, dismissing appeal and confirming trial court's dismissal of suit for possession of property.
Remedy Sought
Plaintiffs sought possession of suit property claiming to be legitimate heirs of deceased Adam Pendhari.
Filing Reason
Plaintiffs alleged that suit property originally belonged to Adam Pendhari, who had two wives; plaintiffs were children from second wife Akkamma, and defendants were children from first wife Noorbi. Property was given to plaintiff No.3 by will by Akkamma's mother, but Adam took it under a gift deed. Plaintiffs claimed as legitimate heirs.
Previous Decisions
Trial court (Civil Judge, Jr.Divn., Ichalkaranji) dismissed suit on 25.3.1983. First appellate court (Addl. District Judge, Kolhapur) dismissed appeal on 29.12.1987.
Issues
Whether the lower courts were right in holding that the plaintiffs were not the legitimate children of deceased Adam, especially when Adam himself acknowledged legitimacy via Exhs. 43 and 36.
Whether under Clause 75 of Mohamedan Law, acknowledgement of legitimacy by the father, when conditions are fulfilled, confers status of legitimate heir.
Submissions/Arguments
Appellants argued that the lower courts erred in denying legitimacy despite Adam's own acknowledgements and the principles of Mohamedan Law.
Respondents presumably supported the lower courts' findings.
Ratio Decidendi
Under Clause 75 of Mohamedan Law, when a father acknowledges a child as his legitimate offspring and the conditions of the clause are satisfied, the child is deemed legitimate and entitled to inherit. The lower courts erred in ignoring the father's own acknowledgements (Exhs. 43 and 36) and the legal principles of Mohamedan Law.
Judgment Excerpts
This second appeal was preferred against the judgment and order passed by the Addl. District Judge, Kolhapur, dated 29th December, 1987 dismissing the appellants' appeal and confirming the judgment and order passed by the Civil Judge, Jr.Divn., Ichalkaranji, dated 25.3.1983 dismissing the suit of the plaintiffs.
At the time of admission of this appeal, the admission Court framed a substantial question of law to the effect that whether both the Courts below were right in holding that the plaintiffs were not the legitimate children of deceased Adam, especially and particularly when the deceased Adam himself, by Exhs. 43 and 36, had categorically admitted the said fact.
Procedural History
Plaintiffs filed suit for possession in trial court (Civil Judge, Jr.Divn., Ichalkaranji), which dismissed suit on 25.3.1983. Plaintiffs appealed to Addl. District Judge, Kolhapur, who dismissed appeal on 29.12.1987. Plaintiffs then filed second appeal in Bombay High Court, which was admitted and decided on 30.6.2005.
Acts & Sections
