Mohammad Baqar And Ors. vs Naim-Un-Nisa Bibi And Ors.
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Not extracted
Decision Date: 9 November 1955
Coram: B.K. Mukherjea, Venkatarama Ayyar
Mohammad Baqar And Ors. versus Naim-Un-Nisa Bibi And Ors. was reported on 9 November 1955 by the Supreme Court of India. The judgment was recorded by B.K. Mukherjea, who also constituted the bench, and was authored by Justice Venkatarama Ayyar. The appeal before this Court originated from a suit that had been filed on 31 May 1935 by the first respondent, Mst. Naimunnisa Bibi, together with her sister Khadija-ul-Kubra Bibi, who is now deceased. The suit sought a partition of the shares in the estate of their father, Sheik Ataullah, who had died sometime in 1892. The defendants in the suit were the sisters’ brothers, Sheik Kifayatullah and Sheik Mohammad Baqar. The plaintiffs asserted that after Sheik Ataullah’s death they had continued to live together as members of a single family and that the first defendant managed the family properties on behalf of all parties. They further claimed that on 10 August 1933 the defendants had executed a deed of waqf-al-al-ulad for the benefit of their descendants, which the plaintiffs alleged amounted to a denial of their inheritance rights. Consequently, they prayed for a partition and delivery of a fourteen-forty-eighth share in the estate, for an account of the management of the properties by the first defendant dating back to 1892, and for future mesne profits from 2 February 1934. The defendants contested the suit on three grounds: firstly, that a family custom excluded female heirs from inheritance; secondly, that a family settlement dated 1893 had caused the plaintiffs to relinquish any claim to the estate; and thirdly, that the plaintiffs’ claim had been extinguished by the defendants’ adverse possession and that the suit was therefore barred by limitation.
The Additional Subordinate Judge of Jaunpur, who heard the suit, delivered his judgment on 14 May 1936. He held that the alleged custom excluding women from inheritance was not established and that, in fact, there was no family settlement as claimed by the defendants. Even assuming that a settlement had existed, he found it could not bind the plaintiffs because they were minors at the time of its purported execution. The judge further concluded that the suit was not barred by limitation, since the plaintiffs had continuously enjoyed the income from the properties. However, he determined that the plaintiffs were entitled to a thirty-four-one-hundred-sixtieth share in Sheik Ataullah’s estate, rather than the fourteen-forty-eighth share they had sought. Accordingly, he granted a decree for the partition and possession of that share and ordered the first defendant to render accounts for the period starting in 1892. The plaintiff’s request for future mesne profits was denied.
The defendants appealed this judgment to the High Court of Allahabad, arguing that the suit should be dismissed on all three grounds raised in the trial court and that the decree directing the first defendant to render accounts from 1892 was defective. In response, the plaintiffs filed a cross-appeal asserting that they were also entitled to their share of the profits from the estate from the date the suit was instituted. The High Court’s consideration of these appeals set the stage for the present appeal before the Supreme Court.
By its judgment dated 22-10-1943, the learned Judges of the High Court concurred with the Subordinate Judge that the defendants had not succeeded in proving a family custom that excluded female heirs from inheritance. The Court also found that the alleged family settlement purportedly executed in 1893 had not been established by evidence, and consequently, on the material facts, no question of limitation arose against the plaintiffs. While the High Court set aside the part of the decree that ordered the first defendant to render accounts from 1892, it directed that the plaintiffs be granted a decree for future mesne profits measured from the date the plaint was filed, to be determined in further proceedings in accordance with Order 20, Rule 12. Both parties accepted the Court’s determination that the plaintiffs were entitled to a share calculated as 153⁄672 of the estate, rather than the 34⁄168 share previously decreed by the Subordinate Judge. The present appeal filed by the defendants is directed against this High Court judgment.
Before addressing the merits of that appeal, the Court considered an application filed by the appellants under Order 23, Rule 3 seeking the issuance of a decree based on an alleged compromise. The appellants asserted that the disputes covered by the appeal had been settled on 12-9-1947 and that the compromise was recorded in a document identified as Record No 1 in the Supplemental Record. It is necessary to note that, during the pendency of the appeal before the High Court, the second plaintiff died, leaving three sons and two daughters who were formally entered into the record on 24-3-1938. One of those daughters, Zaina Bi, subsequently died, and her husband, son and daughter were entered as her heirs on 29-7-1943. The first defendant, Sheik Kifayatullah, also died, and his three sons and two daughters were entered as his legal representatives on 4-1-1943. These individuals were the parties with an interest in the decree that was under appeal. The document presented by the appellants as the compromise bore the signature of the second defendant, Sheik Mohammad Baqar, but did not include the heirs of the deceased first defendant as parties. On the plaintiffs’ side, the document purported to contain the thumb-impression of the first plaintiff and of three children of the deceased second plaintiff, Mohammad Ibrahim. However, one son of the second plaintiff and the son and daughter of the deceased Zainab Bi were not named parties to the document. After the death of Mohammad Ibrahim, his three sons were entered as his legal representatives; they reject the authenticity of the document and argue that, even if genuine, it is ineffective because neither the heirs of the first defendant nor some of the heirs of the second plaintiff are parties to it. They further contend that, since the compromise concerns a partition decree and the proposed terms would require the plaintiffs to act as a single group, the compromise cannot be given effect unless all parties to the original decree consent, rendering it incapable of being made a rule of court under Order 23, Rule 3.
In this case the Court observed that the compromise presented by the appellants could not be given effect because it was not signed by all parties to the partition decree, and some of those parties had expressly refused to join the compromise. Consequently, the compromise could not be made a rule of court under Order 23, Rule 3. The Court therefore held that the application must fail on the simple ground that the compromise was not proved. The appellants had applied to the High Court for a decree recording the compromise and for its transmission to the Supreme Court. In their application they asserted that the sons of the first defendant had initially agreed to the terms of the compromise but had later withdrawn their consent. Because the compromise was not admitted, the High Court directed the Civil Judge of Jaunpur to report on its authenticity. The Civil Judge held two hearings, but none of the parties appeared before him; consequently he reported that the compromise had not been verified. The learned judges accepted this report in their order dated 29-7-1949. On the material before this Court there was no evidence that any compromise existed between the parties, and therefore the petition filed under Order 23, Rule 3 seeking a decree based on such a compromise was dismissed.
On the merits the Court addressed two contentions raised by the appellants. First, they claimed that a long-standing family custom excluded females from inheriting as heirs and that this custom should be recognized. The burden of proving a custom that contravenes general law rested on the appellants, who were required to produce clear and convincing evidence. They offered no documentary proof and examined six witnesses, but the trial Judge was not persuaded by their testimony and provided detailed reasons for rejecting it. No substantive effort was made before the High Court to revive the evidence. The appellants' strongest piece of evidence was an entry in the 1893 mutation of records stating that daughters were excluded by custom and that only the sons of Ata-ullah were entered as heirs. This entry, however, derived from a statement made by the first defendant himself, who was about twenty-two years old at the time and therefore possessed limited knowledge and a personal interest in the matter. The Court held that such a statement was too insubstantial to support the alleged custom and must be discarded. Accordingly, there were no sufficient grounds to overturn the earlier Courts’ findings, and the custom pleaded by the defendants was held not to have been established.
The Court observed that the statement of custom relied upon by the defendants originated from a young man of about twenty-two years of age who had supplied the entry in the 1893 mutation. Because the statement derived from an individual with a personal interest and limited knowledge, the Court considered it too slender to support the existence of any customary rule. Consequently, the Court found no sufficient basis to overturn the concurrent findings of the lower courts on this issue and held that the custom pleaded by the defendants had not been legally established.
Turning to the question of limitation, the Court explained that the parties were co-sharers, and under the applicable law the possession of one co-sharer is deemed possession of all, unless the possessor expressly denies the co-sharers’ rights, thereby effecting exclusion and ouster for the statutory period. The factual record showed that the plaintiffs were minors when their father died, continued to live with their brothers in the same household until 1918, and thereafter resided with their husbands while still drawing funds from the family chest for all household expenses. The lower courts had correctly concluded that because the plaintiffs enjoyed the estate’s income, no ouster had occurred. It was not until the defendants executed the waqf deed in 1933 that any denial of the plaintiffs’ title emerged, and up to that date the plaintiffs had remained in enjoyment of the properties. The defence argued that the amounts received by the plaintiffs constituted only maintenance and not a share in the estate; however, the evidence demonstrated that the receipts were of the same nature as those taken by the defendants themselves, indicating participation in the profits. The Court therefore held that participation in any degree of the estate’s profits negated any claim of adverse possession. On the basis of these findings, the Court concluded that both grounds advanced in the appeal failed and dismissed the appeal with costs.