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. Shamsuddin, the appellant, is the grandson of Rajubai from another daughter Mehamunisa who died near about 1933 -34. Rajubai died on June 7, 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 Shamsuddin 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.) WE may examine the dispute between the parties from another angle. The house in dispute consists of the ground floor and the first floor. It was pleaded in the written statement filed by the appellant before the trial Court that after the death of his mother in the year 1933 -34, he was brought up by Rajubai as her son. He further pleaded that about 30 years back the first floor of the house was given to Jaitunbi and the ground floor was given to him. According to him, the respondent along with her five sons have throughout been residing on the first floor and the appellant on the ground floor. The electric connections and the water meters of both the portions of the house are separate. The lower appellate Court noticed these facts in the following words: - -