PATAN AMINA BI Vs. HUSSAIN BEE

JUDGEMENT

(1.) This second appeal arises out of the judgment and decree in A.S. No. 121 of 1981 on the file of the II Additional District Judge, Cuddapah.

(2.) The suit was filed for partition and separate possession of plaintiffs' 56/88 share in the suit property, which is a house.

(3.) The parties to the suit are Muslims who are governed by the principles of Mohamedan law. The property in question originally belonged to one Gorilal Khan, father of the plaintiffs and defendants 2 to 4 and the husband of the 1st defendant Hussain Bee. Gorilal Khan died intestate in the year 1961 leaving behind the aforesaid persons as his legal heirs. On his death the property movable or immovable left by Gorilal Khan comes in the category of "Matruka" property under the principles of Mahomedan Law. The parties appear to be muslims of the "Sunni" sect. Therefore, they are governed by the law of inheritance applicable to the sect of Hanafi Sunni Muslims. The widow the first defendant, according to the Table of Sharps is entitled to 1/8 share which will have to be taken out of the inheritance first, before the residue is distributed among the other sons and daughters of late Gorilal Khan. The well established principle of Mohamedan law is that the son will have double share as against the daughter who is given a single share in the "Matruka" properties left by the father or mother as the case may be. Therefore the residue of inheritance after taking out 1/8 share of the mother is liable to be distributed among the sons and daughters who rank as plaintiff and defendants in the suit in the proportion of double share to the male and single to the female. The further point to be stressed for the purpose of remand which is ordered in this case is that the alienation of the property in 1963 in favour of third parties was absolutely illegal and without any consequence in law. The property which comes within the category of "Matruka" cannot be transferred or encumbered in any manner unless it is with the consent of ail the heirs of la te Gorilal Khan. Tn the written statement filed by defendants 3 & 6 it is stated that it is false to say that plaintiffs 3 to 5 sold the plaint schedule property to one Basireddy with the consent of other heirs with the object of purchasing the same in future. I have no hesitation in setting aside the judgments and decrees of both the courts below because the matter has not been decided in accordance with the principles stated above. The matter is, therefore, remitted back to the trial court for fresh consideration in the light of the principles laid down in this judgment so that the property may be divided in accordance with the principles of Mohamedan law which govern the law and facts of the case.