NEWANNESS @MEWAJANNESSA v. SHAIKH MOHAMMAD @ AND ORS.

The following Order of the Court was delivered :

This appeal by special leave arises from the judgment of the Division D '. Bench of the Calcutta High Court 'in appeal from original decree No. 652161 and cross objections dated June 8, 1973. This Court while granting leave limited the appeal to the questions raised in ground Nos. II and VI dealing with inheritance of property belonging to Sabul, Liaquat and , Mahujam:nusa. Therefore, untrammeled by the controvetsy which hinged ·E in the trial Court and the High Court, we confined our consideration only to these two questions.

This appeal arises out of a partition suit. The genealogy table before --', us has not been disputed. It would show that Haji Ishan Ali died in 1955 leaving behind his widow Samudanusa, plaintiff No. 1 (P~l), who also died F pending suit in 1966; his two daUghters, plaintiff No. 2 (P-2) Bibi Mewan- nes and Bibi Mahujammusa, defendant No. 5 (D-5); and three sons Jabar Ali, Isabul Ali and Sabul Hassan. Jabar Ali left behind defendant No. 1 -A' (D-1), a son and defendant No. 2 (D-2), a daughter. Isabul Ali left behind him defendant No. 3 (D-3), a daughter.. D-3 was married to D-1. Sabul Hassan pre-decea8ed lsabul Ali, leaving behind defendant No. 4 (D-4). a G son and Liaquat also a son, who too died before the' death of Isabul Ali. The Trial court granted preliminary decree which was affirmed in appeal - The shares and extent are in controversy. The High Court found that the property_ purchased by Haji Ishan Ali in the name of his son Sabul Hassan belong to ~e latter alone. Since Sabul Hassan had pre7deceased IsabUI Ali, H:

' 140 SUPREME COURTREPORTS (1995) 2 S.C.R.

A the question arose whether Haji Ishan Ali was a sharer in the estate of Sabul Hassan.

Section 61 in Chapter VII of the Mulla's Principles of Mohamedan · Law, edited by M. Hidayatullah, former Chief Justice of this Court, postu- lates three classes of heirs, name]y2 . (1) sharers,(2) residuaries, and (3) B distant kindred. Sharers are those who are entitled to a prescribed share in inheritance; residuaries are those who take no prescribed share, but succeed to the 'residue' after the claims of the shares are satisfied; and distant kindred are all those relations by blood who are neither sharers nor residuaries. The Table at page 72-A of th.e 18th Edition prescribes that a C father who is under Item No. 1, gets 1/6th share, where there is child or children of a son; and when there is no child or children of a son, the father inherits as residuary. Since Sabul Hassan left behind D-4 son, Isabul Ali got 1/(j.th share. Out of this 1/6th share got from the estate of Sabul Hassan, his wid6w .(P-1) and P-2 the daughter would get equal respective share D under lilw,.which would be determined by the Trial Court.

· The next questiQ..n is whether P-2' is eµtitled to a share in the estate of Bibi Mahujammrisa, D-5, who died peii.dini suit. Section 65 dealing with residuaries, read.with the table at page 72A, indicates .that if there are no shares, or if there shares but there is residue left after satisfying their claim, B residuaries also inherit in the order set forth in the Table. D~5 left behind two daughters and as per the shares two daughters are entitled to 1/3rd share each i.e. 213rd share. In other words, 1/3rd remained as residue. Table at page 72A dealing with residuaries indicates that where descen- dants like son, son's son, and ascendants like father and grand father are l 1 p not available, then the descendants of the father takes in the order men- tioned. The first if full brother, then sister; in default, a daughter or son's daughter or daughter's son. In this case since only two daughters were left behind by D-5, the full sister, namely P-2, takes the entire residue, which is 1/3rd share.

G .It is next c0ntended that since D-1 died in March 1990, steps were n~t taken to bring the legal representatives on record until 27th January, r .1995 de8pite notice given to the appellant by the letter dated November 154, 1990 and no proper explanation has been given for the inordinate delay. Therefore, the appCal as a whole should be dismissed as having been H · abalcd.-We. &ad M> force in the contention. Since the third defendant is

p. 141 Copy page pinpoint

atfeady on record representing all the heirs of the first defendant, widow, A the question of abatement does not arise. Even otherwise, we find that substitution should be allowed, since no injustice would be done in bringing the legal representatives on record. Thus the objection is over-ruled. The application for substitution is allowed.

The appeal is accordingly allowed. The matter is remitted to the Trial B Court for determining the shares of all the contesting parties and for distribution of the estate in proportion to shares. This would be done according to the law declared hereinbefore. No costs.

·~ A.G. Appeal allowed.