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Shafiqum Bibi v. Jalil Khan - SECOND APPEAL No. 1664 of 1975 [2006] RD-AH 2628 (2 February 2006)


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Court No. 9.

Second Appeal No. 1664 of 1975

Smt. Safiqun Bibi & anothers  ...            Defendants-Appellants    


Jalil Khan and anothers           ...            Defendant-Respondents

                                  Connected with

Second Appeal No.  533 of 1976.

Jalil Khan and another             ...           Defendant-Appellants


Smt. Safiqun Bibi and another  ...         Defendant-Respondents.

Hon. Sunil Ambwani, J.

Both the connected second appeals, arising out of the same judgment, after remand by the Supreme Court, had come up for hearing on 30.11.2005,  and were  dismissed for want of prosecution.

Both the counsels for the appellants have filed restoration applications.  The cause shown is sufficient.  The order dated 30.11.2005 dismissing both the appeals for want of prosecution is recalled.  The appeal have been shall be restored to its original number and have been heard today.

Sri B.B. Paul, learned counsel appeared for the appellant in second appeal no. 533 of 1976 and Sri Jamal Ali learned counsel for Smt. Safuqun Bibi in second appeal No. 1664 of 1975.

These two second appeals were finally decided on 1.8.1994.  The second appeal filed by Smt. Safiqun Bibi was dismissed and the second appeal filed by Jalil Khan was, allowed on admissions made by learned counsel for the parties that under Mohammadan Law a niece cannot inherit the


property of her uncle.  The judgment of this Court is reproduced as below:

"Hon. O.P. Jain, J.

Both these appeals are inter-connected and, therefore, they are being disposed of by a common judgment.  The short question for determination in the case is whether Mst. Shafiqun Bibi and Mohd. Sami Khan were or were not, the legitimate off spring of deceased Kallu Khan alias Abdul Majid.

The brief facts of the case are that one Mst. Batulan had two sons namely Kallu Khan died during thelife time of Batulan and, therefore, under the Mohammandan Law Abdul Waheed inherited the whole property.  Abdul Waheed executed a ''will' on 15th August, 1956, in favour of Jalil Khan in respect of the whole property. Under the Mohammandan Law a ''will' can be executed in respect of 1/3 share only unless the other heir's consent to it after the death of the person making the ''will'.  Therefore, Mst. Shafiqun Bibi and Mohd. Sami Khan, who claimed themselves to be the daughter and son of Kallu Khan, wanted 2/3 share in the property.

The case of Abdul Jalil was that Shafiqun and Mohd. Sami Khan were not the daughter and son of deceased KalluKhan alias Abdul Majid.  This controversy was the subject matter of issue no. 6 in the trial court.

The trial court decided issue no. 6 in favour of Shafiqun Bibi and Mohd. Sami Khan.  But on appeal the first appellate court has given a finding that Mohd. Sami Khan was born after 3 years of the death of KalluKhan and was not the legitimate son of Kallu Khan.  Being aggrieved against this finding Shafiqun Bibi and Mohd. Sami Khan has filed appeal no. 1664 of 1975.  Jalil Khan has filed appeal No. 533 of 1976 because he is aggrieved by the finding that Mst. Shafiqun Bibi is the legitimate daughter of deceased Kallu Khan.  He is also aggrieved by the findings that  Jalil cannot get more than 1/3 share by virtue of


the will dated 15.8.56.

I have heard learned counsel for the parties at length and have gone through the record.

During the course of the argument it was admitted that Mst. Shafiqun Bibi was born on 27th March, 1945 vide Ext. A-10 and that Mohd. Sami Khan was born on 23rd March, 1948 vide Ext. A-2.  The controversy is regarding the date of death of Kallu, who accordingly to one party died in 1944-45 while according to other party died in 1948.

The learned counsel for the Mst. Shafiqun Bibi and Mohd. Sami Khan has argued that Abdul Jalil himself admitted the legitimacy of Shafiqun Bibi and Himd. Sami Khan.  I have gone through the portion relied upon by the learned counsel but there is no such admission.  What Jalil Khan has stated is as under:-

In the above portion Jalil Khan has no doubt stated that Mst. Shafiqun Bibi was born to Fatma Bibi and KalluKhan but in the very next line he has also said that Kallu Khan had died 3 years before the birth of Shfiqun Bibi.  The witness has also said that perhaps the name of the father of Shafiqun Nisa is Hamid but then he said that he is not sure about the father;s name ofShafiqun Bibi.  Reading the statement  as a whole no admission on the part of Jalil Khan can be said to have been made.

A suit was filed against Mst. Fatma on the basis of a pronote and in the written statement filed by her in 1951 she said that her husband died about 8 years back.  From this the learned District Judge inferred that Kallu Khan died sometimes in 1944.  The learned counsel for Shafiqun Bibi and Mohd. Sami Khan has argued that this statement (Ext. 9)  dated 11.1.52 did not give the exact date of death and was based on memory.  In my opinion there can be a difference of one or two years and it is probable that Kallu Khan may have died in 1946.  It is for this reason that the learned District Judge has held that Shafiqun Bibi is the legitimate daughter of KalluKhan.  So far as Mohd. Sami is concerned


he was born on 23rd March, 1948 and, therefore, even if it is assumed that Kallu Khan died in 1946, Mohd. Sami Khan is not proved to be the legitimate son of Kallu Khan.

It was argued on behalf of Mohd. Sami Khan that it was never pleaded by Jalil Khan that Mst. Fatma was living in sin or she had re-married to somebody and, therefore, the court should lean towards legitimacy.  This contention is not correct and the learned counsel for the opposite parties has rightly argued that from the very beginning Jalil Khan had been saying that Mohd. Sami Khan is not the legitimate son of Kallu Khan.  

It may also be mentioned that after more than 8 years of the filing of appeal an application under order 41 Rule 27 C.P.C. was filed on behalf of Shafiq Bibi and Mohd. Sami Khan with a prayer that the death certificate of Kallu Khan issued by Municipal Board, Mirzapur, may be taken on record. That application was dismissed by a separate order dated 11.7.94.

During the course of hearing it was admitted by the learned counsel for the parties that under the Mohammandan Law a niece cannot inhrrit the property of the uncle. Therefore, the legitimacy of Mst. Shafiqun Bibi does not entitle her to inherit 2/3 share in the property of Abdul Waheed.

In view of the above discussions, the appeal filed by Mst. Shafiqun Bibi and Mohd. Sami Khan has no force and is hereby dismissed.

The Second Appeal No. 533 of 1976 filed by Jalil Khan is allowed and it is ordered that he shall get the whole property of Abdul Waheed. Parties shall bear their own costs in both the appeals.

A copy of this judgment may be placed on the record of connected appeal."

         ( emphasis supplied)


Both the parties filed  special leave petitions against the judgment.  The Civil Appeal Nos. 9692-9693 of 1995 were allowed by the Supreme Court on 13.11.2002 and the matter was remanded on the ground that the question whether the niece could inherit the property in the category of 'distant kindred', should have been framed as substantial question of law before  deciding the appeal.  

After hearing the parties I find that the following substantial question of law arises for consideration in this second appeal.  (Other questions whether the appellant ceases  after removal of  the possession, the stand of the propounders is a question returned by this Court in favour of the appellant and is not found to be substantial question of law).

"Whether a niece under Mommandan Law,  can inherit the property of the uncle in the category of distant kindred?"

Sri B.B. Paul learned counsel for the appellant in Second  Appeal No. 533 of 1976 submit that niece cannot inherit the property of uncle. Both the counsels agree that the Hanafi Law of inheritence will be applicable to them.

According to the Mulla's Principles of  Mohammandan Law there are three classes of heirs specified in Section 61 in Chapter VII of the Hanafi Law of inheritance at page 47, in the Nineteenth Edition of the Book. These classes are as follows:

"61. Classes of heirs.- There are three classes of heirs, namely, (1) Shares, (2) Residuary, and (3) Distant Kindred:

"Sharers" are those who are entitled to a prescribed share of the inheritance;

"Residuaries" are those who take no prescribed share, but succeed to the "residue" after the claims of the sharers are satisfied;


"Distant Kindred" are all those relations by blood who are neither Sharers nor Residuaries(a)."

The table of distant kindred and classes are given in sections 67 and 68 at page 63 as follows:

"67. Distant Kindred.- (1) If there be no shares or Residuaries, the inheritance is divided amongst Distant Kindred.

(2) If the only sharer be a husband or wife, and there be no relation belonging to the class of Residuaries, the husband or wife will take his or her full share, and the remainder of the estafe will be divided among Distant Kindred."

68. Four Classes.- (1) Distant Kindred are divided into four classes, namely (1) descendants of the deceased other than shares and residuaries; (2) ascendants of the deceased other than shares and residuaries; (3) descendants of parents other than shares and residuaries; (4) descendants of ascendants how highsoever other than residuaries.  The descendants of the deceased succeed in priority to the ascendants, the ascendants of the deceased in priority to the descendants of parents and the descendants of parents in preference to the descendants of ascendants.  

(2)The following is a list of Distant Kindred comprised in each of the four classes:-

I. Descendants of the deceased:-

1. Daughter's children and their descendants.

2. Children of sons daughters h.l.s. and their descendants.

II. Ascendants of the deceased:-

1.False grandfathers h.h.s.

2.False grandmothers h.h.s.

III.Descendants of parents:

1.Full brothers' daughters and their descendants.

2.Con. Brothers' daughters and their descendants.

3.Uterine brothers; children and their descendants.


4.Daughters of full brothers' sons h.l.s. and their descendants

5.Daughters of con. Brothers' sons h.l.s. and their descendants.

6.Sisters' (F.,c., or ut.) children and their descendants.

IV. Decendants of immediate grandparents (true of


1.Full pat, uncles' daughters and their descendants.

2.Con. Pat. Uncles' daughters and their descendants.

3.Uterine pat. Uncles and their children and their descendants.

4.Daughters of full pat. Uncles' son h.l.s. and their descendants.

5.Daughters of con. Pat. Uncles' son h.l.s. and

their descendants.

6.Pat. Aunts (f., c., or ut.) and their children and their descendants.

7.Mat. Uncles and aunts and their children and their descendants.


descendants of remoter ancestors h.h.s. (true or


  (3)  The order of precedence among Distant Kindred in each class and the rules by which such order is determined are given in secs. 69 to 70.  They are not given here in order of succession."

Under Section 67 of the same edition of  Mulla's 'Principles of Mohammandan Law', full brothers' daughters and their descendants are included in class III of the 'distant kindred'. In the present case since she is only heir found to have been left by the testator-deceased, she will inherit 2/3 share of


the property as no heir was left by her.

According to 'Principles of Mohammandan Law' by Yawer Qazalbash ( II Edition 2005) all persons related to the deceased by blood whether male or female are 'distant kindred' (uterine heirs-Zawul Arhan), except those who are Quranic heirs or residuaries.  Broadly speaking they are divided in (i) all cognate males or females, and (ii) all female agnates, except the four groups in Class II.  The 'distant kinsman' would succeed only in case where there are no sharers or residuaries, as such they are excluded by sharers or residuaries.  Full brothers' daughters and their descendants are included in Group III-Descendants of parents.

There is no contrary opinion expressed in either Shri AAA Fiyyazi or any case law decided by any Court.

In the facts and circumstances of the case, I find that the appellate Court did not commit any error .  The question of law framed is returned against the plaintiff appellant Jalil Khan in second appeal No. 533 of 1976.

Both the appeals consequently fail and are dismissed.

Dt. 2.2.2006.



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