ILLAHI SHAMSUDDIN NADAF Vs. SOU JAITUNBI MAKBUL NADAF

JUDGEMENT

(1.) Rajubai was the owner of the house in dispute. Jaitunbi, respondent in the appeal herein, is her daughter. Shamsudin, the appellant, is the grandson of Rajubai from another daughter Mehamunisa who died near about 1933-34. Rajubai died on 7-6-1975. Jaitunbi instituted a suit for a declaration and possession to the effect that she, "being a sharer" (Class I heir) under the Mahomedan law, was entitled to inherit the house in dispute to the exclusion of the respondent who was a "distant kindred" (Class III heir). The trial Court dismissed the suit. The lower appellate Court reversed the judgment of the trial Court and decreed the suit. The High Court dismissed the second appeal in limine. This appeal by Shamsudin is against the judgment and decree of the lower appellate Court as upheld by the High Court.

(2.) The lower appellate Court reversed the finding of the trial Court on the question of inheritance on the following reasoning:

(3.) Learned Counsel for the respondent has further assisted us on the subject of inheritance under the Mahomedan Law. According to him, the respondent being the daughter and only Class I heir, she is entitled to one-half of the property as her fixed share. He further contended that there is a provision under the Mahomedan law of inheritance called "the return". The effect of this principle is that where there are no "residuaries" (Class II heirs), the surplus of the shares of the "sharers" (Class I heir) reverts to them. The precise contention of the learned Counsel was that the respondent being the only "sharer" and there being no "residuaries", the other one-half share would also revert back to her and, as such, she is entitled to inherit whole of the property left by Rajubai. There is pluasibility in the argument but in the view we propose to take in this case, it is not necessary for us to go into the same.