KALLU Vs. SHAMSHAD BEGUM

JUDGEMENT

(1.) HEARD counsel. This order governs disposal of M.A. Nos. 140/87 and 20/88 and a copy of this order shall be placed on records of both appeals. Parties are common. Appellants are two some because there were two matters in regard to the same claim.

(2.) ADMITTEDLY , rival claims came to be laid in the Court of District Judge, Gwalior by respondent Shamshad Begum of both appeals in one matter and in other matter by twin appellants Kallu and Anwari Begum. Trial Court has granted lion's share to the common appellants Kallu and Anwari Begum of the two appeals For taking that view, the trial Court rested its decision on a singular fact of signal significance. Reliance was placed on decision of the Hon'ble Supreme Court in Sarbati Devi (AIR 1984 SC 346). It has been held at the summit level that when there was any claim founded on nomination, that claim is not in derogation of the law of succession applicable to parties. Therefore, the trial Court took the view that although Kallu and Anwari Begum had nominations in their name by deceased M unawwar Khan, in all documents the right of Shamshad Begum to 1/4th share to which she was entitled under Mohammedan Law not erased or barred. The point which Shri Jain urged with great vehemance in both appeals is that trial Court's finding of divorce of Shamahad Begum from her earlier husband, Mohd. Hanif is perverse. He submitted that Shamshad Begum having admitted in Court that there was a document executed when divorce was pronounced by her husband, she was to be disbelieved as she did not produce the document. There are two answers to 'this contention of Shri Jain. In her own evidence she said that document is with her husband and that could not be produced because her husband had migrated to Pakistan with the document in question. The primary evidence under Mohomedan Law is the oral pronouncement of the word "Talaq" by the husband. Respondent Shamshad Begum having proved by primary evidence Talaq or divorce, the finding of the trial Court is unassailable.