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Wednesday, February 22, 2017

When the Court is called upon to interpret the documents and examine its effect, it involves questions of law. It is, therefore, obligatory upon the High Court to decide such questions on merits. = whether the suit property is self-acquired property of late Sk. Noor Mohammad and, if so, whether respondent No.1 was entitled to inherit the same as his legal representative in accordance with the shares defined in the Mohammedan Law and secondly, whether the suit property is self-acquired property of the appellant (defendant No.1) on the strength of documents filed by him and, if so, whether it has resulted in excluding respondent No.1 to claim any share in such property as an heir of Sk. Noor Mohammad, was required to be decided by framing substantial questions of law in the light of proved documents filed by defendant No.1 because it was his case that the suit property was his self-acquired property. The High Court unfortunately did not examine any document for deciding the ownership issue in relation to the suit property.

           REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No.  3048  OF 2017
                   (ARISING OUT OF SLP (C) No.27887/2010)

Sk. Bhikan
S/o Sk. Noor Mohd.                            ….Appellant(s)

                             VERSUS

Mehamoodabee
w/o Sk. Afzal & Ors.                   …Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    Leave granted.
2)    This appeal is filed  against  the  final  judgment  and  order  dated
09.02.2010 passed by the  High  Court  of  Judicature  at  Bombay  Bench  at
Aurangabad in Second Appeal No. 875 of 2009 whereby the second appeal  filed
by the appellant herein was dismissed at the admission stage.
3)    We herein set out  the  facts,  in  brief,  to  appreciate  the  issue
involved in this appeal.
4)    The appellant herein is the  first  defendant  and  respondent  No.  1
herein is the plaintiff whereas respondent Nos. 2 to 8 herein are  defendant
Nos. 2 to 8 in the suit.
5)    The dispute in the appeal arises  between  the  members  (brother  and
sister) of one Muslim family.  It relates to  landed  and  house  properties
situated at village Satara, District Aurangabad  (Maharashtra)  as  detailed
in Para 1 of the plaint (hereinafter referred to as the "suit property”).
6)    Respondent No. 1 is the real sister of the  appellant.   She  filed  a
civil suit against the appellant  and  respondent  Nos.  2  to  8  (proforma
defendants) in the Court of IInd Jt. Civil Judge (J.D.) at Aurangabad  being
Civil Suit No. 120 of 1994 and prayed therein the  relief  of  partition  by
meets and bounds of the suit property and, in consequence, also claimed  her
separate possession in the suit property qua the appellant.
7)    According to respondent No.  1  (plaintiff),  the  suit  property  was
owned by their late father Sheikh Noor Mohd. and on  his  death,  respondent
No. 1, by virtue of inheritance and being one of his legal heirs, got  share
in the suit property as per  the  shares  defined  in  the  Mohammedan  Law.
Respondent No.1 alleged that since her father died intestate leaving  behind
respondent No.1 and the appellant being sister and brother, she is  entitled
to claim partition of the suit  property  and  its  separate  possession  as
tenant in common as against her brother (appellant herein).
8)     The  appellant  denied  the  case  set  up  by  respondent  No.1  and
contended, inter alia, in his written statement that the  suit  property  is
his self-acquired property because he purchased the same by his own  efforts
by a registered sale deed (Ex.P-1) and hence neither  his  late  father  had
any right, title or interest  in  the  said  property  and,  in  consequence
thereof, nor respondent No.1 could inherit any right, title or  interest  in
the suit property through her father as his legal heir. The  appellant  also
set up a title by alleging his adverse possession over the suit property  to
the exclusion of all including respondent No.1.
9)    The Trial Court framed issues and parties adduced their  evidence.  By
a judgment/decree dated 24.12.1999,  the  Trial  Court  dismissed  the  suit
filed by respondent No.1.   Respondent  No.1  (plaintiff),  felt  aggrieved,
filed first appeal being R.C.A. No. 59 of 2000 before  the  District  Judge,
Aurangabad. By  a  judgment/decree  dated  30.11.2001,  the  District  Judge
allowed the appeal and decreed the plaintiff's suit and  accordingly  passed
a decree for partition and separate  possession  of  the  suit  property  in
favour of respondent No.1.
10)   Felt aggrieved, appellant (defendant No. 1) filed second appeal  being
S.A. No.875 of 2009 before the High  Court.  By  impugned  order,  the  High
Court dismissed the second appeal in limine observing that the  appeal  does
not involve any substantial question of law.
11)   Felt aggrieved, defendant  No.1  has  filed  this  appeal  by  way  of
special leave before this Court.
12)   Heard Mr. Shyam Divan, learned senior counsel for  the  appellant  and
Mr. Makarand D. Adkar, learned counsel for the respondents.
13)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are inclined to allow the appeal and  remand  the
case to the High Court for deciding the second appeal afresh  on  merits  in
accordance with law.
14)   Learned Single Judge while dismissing the appeal passed the  following
order:
“1) The appeal is filed mainly against the findings recorded  by  the  first
appeal Court that the respondent-plaintiff was entitled to  1/3rd  share  in
the suit property being the daughter  of  Noor  Mohammed  who  is  also  the
father of the appellant.  The fact that Noor Mohammed,  the  father  of  the
parties held the suit properties at the time of his death is not in  dispute
so also Noor Mohammed died without leaving a testament is also  an  admitted
fact.  Thus, the appellant and the respondent being the brother  and  sister
would take the property, left behind by their father as  per  provisions  of
the Mohammedan Law.  The appellant, thus would get two parts  of   the  suit
property, whereas the third part would go to  the  respondent  no.1-original
plaintiff.

2)    The findings recorded by the learned Judge of the first  appeal  Court
are  cogent.   No  interference  in  them  is  called  for.   There  is   no
substantial question of law, arising in  this  appeal.   The  second  appeal
stands dismissed.  Consequently, Civil Application Nos.  4980  of  2005  and
9547 of 2003 also stand dismissed.”

15)   As observed supra,  we  do  not  agree  with  the  reasoning  and  the
conclusion arrived at by the High Court  in  the  impugned  order.   In  our
considered view, the appeal did involve the  substantial  questions  of  law
and, therefore, the High Court should have  admitted  the  appeal  by  first
framing substantial questions of law arising in  the  case  and  then  after
giving notice to the respondents for its final  hearing  as  provided  under
Section 100 of the Code of Civil Procedure, 1908  (hereinafter  referred  to
as “the Code”) decided the appeal on merits.
16)   As a matter of fact, in our view,  having  regard  to  the  nature  of
controversy  and  the  issues  involved   regarding   ownership   based   on
interpretation  of  documents  (exhibits),  the  questions  did   constitute
substantial questions of law.
17)   The questions  as  to  whether  the  suit  property  is  self-acquired
property of late Sk. Noor Mohammad and, if so, whether respondent  No.1  was
entitled to inherit the same as his legal representative in accordance  with
the shares defined in the Mohammedan Law  and  secondly,  whether  the  suit
property is self-acquired property of the appellant (defendant No.1) on  the
strength of documents filed by him and, if so, whether it  has  resulted  in
excluding  respondent No.1 to claim any share in such property  as  an  heir
of Sk. Noor Mohammad, was required to  be  decided  by  framing  substantial
questions of law in the light of proved documents filed  by  defendant  No.1
because it was his case  that  the  suit  property  was  his   self-acquired
property. The High Court unfortunately did  not  examine  any  document  for
deciding the ownership issue in relation to the suit property.
18)   When the Court is called upon to interpret the documents  and  examine
its effect, it involves questions of  law.   It  is,  therefore,  obligatory
upon the High Court to decide such questions on merits. In  this  case,  the
High Court could do  so  after  framing  substantial  questions  of  law  as
required under Section 100 of the Code. It was, however, not done.
19)   The High Court thus, in our view, committed jurisdictional error  when
it dismissed  the  second  appeal  in  limine.  We  cannot  countenance  the
approach of the High Court.
20)   In view of foregoing discussion, the appeal succeeds and  is  allowed.
The impugned order is set aside. The case is now remanded to the High  Court
for deciding the appeal on merits in accordance with law.
21)   We, however, request the High Court to admit the second appeal,  frame
appropriate substantial questions of law as required under  Section  100  of
the Code, keeping in view the pleadings, findings of the  two  courts  below
and the documents (exhibits).   Needless to say, the questions to be  framed
should be specific with reference to exhibits and the findings  of  the  two
courts below.
22)   Before parting, we consider it proper to mention  here  that  we  have
not expressed any opinion on the merits of the controversy and confined  our
inquiry only to examine whether the second appeal involved  any  substantial
question of law within the meaning of Section 100 of the Code? 23)  We  have
noticed that the dispute is between the members of one  family.   It  would,
therefore, be in the interest of family  that  efforts  should  be  made  to
settle the dispute amicably.  Indeed, it was also stated by learned  counsel
for the parties before us by giving some offer  to  each  other.   We  grant
this liberty to renew their respective offers  before  the  High  Court  and
explore the possibility for amicable settlement before finally  hearing  the
appeal preferably within six months.
24)   Record of the case, if requisitioned, be sent back to the  High  Court
forthwith by the Registry.

                       ………...................................J.
                                  [R.K. AGRAWAL]



…...……..................................J.
                               [ABHAY MANOHAR SAPRE]     New Delhi;
February 20, 2017
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