TAUFEEQ HASSAN Vs. KHURSHIDARA BEGUM

JUDGEMENT

(1.) Defendants 2 and 4 in O.S. No. 1195 of 1989 on the file of the IV Additional Judge, City Civil Court, Hyderabad, are the appellants. Respondents 1 and 2 are the plaintiffs in the suit. The plaintiffs filed the suit for declaration that the plaintiffs 1 and 2 are the legal heirs of deceased Dr. Tajammul Hussain, as per the Succession Certificate granted in O.P.No.15 of 1985 by the Court of the VIII Assistant Judge, City Civil Court, Hyderabad, on 27-2-1989 and are alone entitled to the shares of 1/8th and 7/8th respectively as per Shia Law of inheritance to all the amounts in the Banks. Margadarshi Chit Fund Private Limited and shares as shown in schedule 1 and 2 of the plaint with a right to operate and withdraw the same.

(2.) Here itself it may be mentioned that in Para 13(b) of the plaint, the following relief was prayed for :

(3.) Contentions of Sri Basith Ali Yawar : Sri Basith Ali Yawar, the learned Counsel representing the appellants had taken this Court through the findings which had been recorded in O.P. No. 15 of 1985 by the VIII Assistant Judge, City Civil Court, Hyderabad, and would maintain that these proceedings in relation to Succession Certificate being summary proceedings, the civil Court while deciding the matter in an original suit may have to decide the questions in controversy afresh, inasmuch as the said findings cannot be said to be res judicata or in any way binding on the parties. The learned Counsel also explained the relationship between the parties and would maintain that in the light of the facts and circumstances of the case, inasmuch as the daughter is entitled to only a specified share as specified in the Table under Section 90 in Mulla's Principles of Mahomedan Law, for the rest of the amounts, no doubt excluding the share of the wife, to which the wife may be entitled to, the other shares representing the sisters and brother of Dr. Tajammul Hussain alone would be entitled to and in this view of the matter the learned Judge erred in granting the relief as prayed for. The learned Counsel, in all fairness, had accepted that amount had been withdrawn and an undertaking had been filed. But, however, the learned Counsel would maintain that when this relief was specifically deleted in the original Court, the question of invoking the right to maintain the cross- objections or cross-appeal under Order 41 Rule 22 of the Civil Procedure Code relating to that relief before the appellate Court, will not be available to such parties. The learned Counsel also pointed out to that portion of the plaint where specifically the relief had been deleted.