Dismissed

Smt. Hasmunisha through her legal heirs and 4 Others v. Smt. Firojulnisha (Died during pendency of appeal) through her legal heir and Another

Allahabad HC2 Jul 2025SAPL/181/2022

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal in a property dispute regarding the succession of Raj Mohammad's estate. Rejecting claims that Smt. Firojulnisha remarried or that Rabia was not Raj Mohammad's daughter due to lack of evidence, the Court upheld lower court findings affirming Firojulnisha as the legal heir before her death.

What did the court decide?

The appeal was dismissed, the judgment and decree dated 11.04.2022 were affirmed, and the judgment and decree dated 11.11.1980 were affirmed.

Smt. Hasmunisha through her legal heirs and 4… — Succession and Inheritance | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC-LKO:37268

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High Court of Judicature at Allahabad (Lucknow)

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Court No. - 8

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Case :- SECOND APPEAL No. - 181 of 2022

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Appellant :- Smt. Hasmunisha Through Her Legal Heirs And 4 Others

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Respondent :- Smt. Firojulnisha (Died During Pendency Of Appeal) Through Her Legal Heir And Another

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Counsel for Appellant :- Angrej Nath Shukla,Aviral Srivastava

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Counsel for Respondent :- Satya Prakash Mishra,Deepika Srivastava,Prashant Jaiswal

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Hon'ble Jaspreet Singh,J.

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1. Heard Sri Aviral Srivastava, learned counsel for the appellant and Sri Prashant Jaiswal, learned counsel for the respondent.

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2. This is the plaintiff's second appeal preferred under Section 100 C.P.C., assailing the judgment and decree dated 11.04.2022 passed by the Additional District Judge, Court No.4, Gonda in Civil Appeal No.292 of 1980, whereby the appeal was dismissed and the judgment and decree dated 11.11.1980 passed by the Additional Munsif, 6th Gonda in Regular Suit No.319 of 1979 was affirmed.

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3. A coordinate Bench of this Court admitted the appeal on the following four questions of law, which, for ease of reference, are being reproduced hereinafter :

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The appeal is admitted on the following substantial questions of law:-

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1. Whether, the judgment under appeal is sustainable as without framing the point of determination on issue of biological father of Rabia the findings on the issue have been recorded?

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2. Whether, non appreciation/miss appreciation of evidence by the learned courts below do not amount to perversity and if yes, the impugned judgments and decree are not be set aside on this ground alone?

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3. Whether, merely on the basis of substitution in the proceeding title can be decided over property in question?

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4. Whether the First Appellate Court has failed to consider the statement of DW 1 as a whole, while deciding the issue related to Rabia, as the daughter of Raj Mohammad?

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4. In order to appreciate the controversy involved, it will be appropriate to take a glance at the facts giving rise to the instant appeal.

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5. The dispute arose in the year 1979 and, till now, it has traveled to this Court twice earlier. This is the third time that the matter is under consideration.

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6. Smt. Hasmunisha (original plaintiff), now represented by her legal heirs, had instituted a suit for declaration and injunction in the Court of Munsif, Gonda, registered as Case No. 319 of 1979, against the original defendant, namely Smt. Firojulnisha (now deceased and represented by her legal heirs).

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7. The pleadings indicate that the plaintiff claimed rights over the property on the premise that the same belonged to one Raj Mohammad. Upon his death, his three legal heirs, namely, Qamar Mohammad, Shah Mohammad and Deen Mohammad, got rights in the agricultural land. The defendant, Smt. Firojulnisha, being the wife of Raj Mohammad, also got rights in the property.

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8. The controversy arose when it was alleged that after the death of Raj Mohammad, his widow, Smt. Firojulnisha, remarried Mohammad Safi and thereafter left her village, Daulatpur and started residing in Utraula. It was urged that upon remarriage, Smt. Firojulnisha would be divested of her rights as the three sons of Raj Mohammad had also died issueless and the plaintiff, being another wife of Raj Mohammad, would be the preferential heir upon whom the property would devolve. Accordingly, she sought a decree of declaration to the effect that she was the owner in possession of the properties left behind by Raj Mohammad, which were indicated in Schedules A and B

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annexed with the plaint. She also claimed a decree of permanent injunction, seeking to restrain the defendant, Smt. Firojulnisha, from either alienating the property or interfering with the possession of the plaintiff.

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9. The suit was contested by Smt. Firojulnisha and she filed her written statement. She specifically pleaded that after the death of Raj Mohammad, she did not remarry either Mohammad Safi or any other person. Being the wife of Raj Mohammad, and in view of the fact that the sons of Raj Mohammad had died issueless, she was the preferential heir and was entitled to the rights in the property. For the aforesaid reasons, she was in possession thereof and hence, neither the declaration nor the injunction sought by the plaintiff could be granted.

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10. Upon the exchange of pleadings, the trial Court framed six issues. The parties led their evidence and the trial Court, after considering both the oral and documentary evidence, dismissed the suit by means of the judgment and decree dated 11.11.1980.

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11. The original plaintiff preferred a Regular Civil Appeal under Section 96 C.P.C., which also came to be dismissed by means of the judgment and decree dated 02.03.1982. At this stage, for the first time, the original plaintiff preferred a review petition and also filed a

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second appeal simultaneously. The Second Appeal No. 647 of 1982 was dismissed on 09.08.2001.

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12. It will also be relevant to note that the review, which was filed before the first appellate court, came to be allowed on 17.12.1982. As a consequence, Regular Civil Appeal No. 292 of 1980 was reheard by the first appellate court and was partly allowed vide judgment and decree dated 04.04.1983.

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13. In the aforesaid circumstances, the defendant, being aggrieved, preferred Second Appeal No.342 of 1983, which was considered by the Court and, by means of the judgment and decree dated 06.12.2021, the appeal was allowed. The judgment and decree dated 04.04.1983 passed by the first appellate court was set aside with a direction that the appeal be heard and decided after affording an opportunity of hearing to the parties, expeditiously, preferably not later than four months from the date the parties appear before the lower appellate court.

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14. In pursuance of the aforesaid directions, the first appellate court once again heard the appeal and, by means of the judgment and decree dated 11.04.2022, dismissed the appeal. As a consequence, the suit filed by the plaintiff, which had been dismissed by the trial court by judgment and decree dated 11.11.1980, was affirmed. Once again, the appellant has approached this Court, assailing the judgment and

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decree dated 11.04.2022 passed by the first appellate court as well as the judgment and decree dated 11.11.1980 passed by the trial court.

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15. Learned counsel for the appellant has urged that the trial Court as well as the first appellate Court did not consider the issue as to how Rabia could have got the rights in the property-in-question without ascertaining the fact as to who was her biological father. In absence thereof, the property of Raj Mohammad could not devolve on Rabia. It is urged that merely because Rabia was substituted during the course of proceeding would not amount to conferring the rights or title on Rabia and this aspect has also not been appropriately considered by the trial Court as well as the first appellate Court.

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16. It has further been urged that the first appellate Court did not appropriately consider the statement of D.W.-1 as a whole, especially in context with the averments given by her in her deposition in context with Rabia, who was alleged to be the daughter of Raj Mohammad.

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17. It is thus submitted that, in the absence of any proper appreciation or before coming on to conclusion relating to the rights of the respective parties, it was incumbent to first consider whether Rabia was the daughter of Raj Mohammad. Thus, it is urged that the basic controversy which was subsisting

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between the parties has not been decided and, for the said reason, the impugned judgment and decree passed by the first appellate Court as well as the trial Court deserve to be set aside after allowing this second appeal.

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18. Learned counsel for the respondent submitted that the second appeal is concluded by the concurrent findings of fact and the questions of law upon, which the counsel for the appellant has made submissions, do not arise. It is also argued that both the trial Court as well as the first appellate Court have considered the aforesaid pleadings and evidence and then recorded findings of fact. It is further submitted that the findings of fact are binding on this Court in exercise of power under Section 100 CPC and unless it is shown that the said findings are perverse, this Court, in exercise of its power under Section 100 C.P.C., may not like to disturb the same.

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19. It is urged that the basic issue, as culled out from the plaint, is the fact that the original plaintiff, Smt. Hasmunisha, claimed herself to be the wife of Raj Mohammad. She claimed rights on the premise that, after the death of Raj Mohammad, his wife, Smt. Firojulnisha, had remarried and therefore lost her rights in the property of Raj Mohammad.

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20. It is further urged that, in order to divest property from a person, which is a serious issue, it was

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incumbent upon the appellant to have proved the case, especially the factum of remarriage. If the factum of remarriage is not proved, then there is no right which could devolve on the plaintiff. It was incumbent upon the plaintiff/appellant to have established the fact of remarriage and though an attempt was made to prove the same, yet there were glaring errors and lacunae in the evidence of the plaintiff and her witnesses, which clearly established the fact that the plaintiff had failed to prove the issue of remarriage and once having failed to do so, the respondent could not be divested of the property which vested in her upon the death of Raj Mohammad and also upon the death of the three sons of Raj Mohammad.

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21. In the aforesaid circumstances, the first appellate Court as well as the trial Court have rightly appreciated the evidence, which cannot be said to be perverse. Hence, for the aforesaid reasons, the appeal deserves to be dismissed.

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22. The Court has heard the learned counsel for the parties and also perused the material on record.

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23. At the outset, it may be noticed that there are certain undisputed facts which are important to be noted and which would also help the Court come to a decision, enabling it to answer the substantial questions of law.

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24. It is an admitted fact that the properties-inquestion belonged to Raj Mohammad. The properties shown in Schedule A, annexed and forming part of the plaint, were the property of Raj Mohammad, which was abadi in nature, comprising the residential house and charni, inter alia. The other set of properties was the agricultural property, which is part of Schedule B, comprising two plots bearing No.270 situated in स Village Daulatpur, and another plot bearing No.11 situated in Village Rampur.

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25. It is also an admitted case that Smt. Firojulnisha was the widow of Raj Mohammad, and with her, Raj Mohammad had three sons, namely, Qamar Mohammad, Shah Mohammad and Deen Mohammad. It is also an undisputed fact that Smt. Firojulnisha was admittedly the wife of Raj Mohammad, hence she would succeed to the estate of Raj Mohammad along with her sons and upon the death of her sons, the property would revert to Smt. Firojulnisha. In view thereof, the rights would not devolve on the plaintiff or her legal heirs.

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26. In the aforesaid background of undisputed facts, it would be relevant to notice the core case of the plaintiff, wherein she claimed that Raj Mohammad also had a daughter, namely Sukhrani, and Sukhrani too had a daughter, Smt. Hasmunnisa, who was married to Mohammad Hanif. Thus, in the given circumstances,

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the plaintiff had specifically pleaded that upon the remarriage of Smt. Firojulnisha, she was divested of her rights in the properties and after the death of the three sons of Raj Mohammad, the property devolved on the plaintiff.

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27. The core issue to be first examined is the fact whether Smt. Firojulnisha had remarried to Ainul Haq alias Hakka. Upon perusal of the records, it revealed that, as far as the plaintiff is concerned, no documentary proof was placed on record to establish that Smt. Firojulnisha had remarried to Ainul Haq alias Hakka.

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28. In order to prove the aforesaid fact of remarriage, the plaintiff examined herself and her witnesses. PW-2, Shami Ulla, was examined, who is said to be the priest who had officiated and performed the marriage ceremony (Quazi who performed the Nikah). If the evidence led by PW-2 is seen, it would reveal that he had made fleeting statements, which he could not substantiate during his cross-examination.

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29. From the reading of the evidence led by the plaintiff, including her own deposition, it revealed that certain glaring misstatements were made, which clearly casted doubt upon the version of the plaintiff. It revealed from the record that Smt. Firojulnisha, who was residing in Village Daulatpur, after her alleged

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remarriage, started residing with Ainul Haq alias Hakka in Utraula.

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30. The witnesses who were examined on behalf of the plaintiff to substantiate the factum of remarriage reveale that none of them were residents of the village where Ainul Haq alias Hakka used to reside. The statements of various witnesses regarding the number of guests, who were part of the barat (marriage procession), also differed substantially.

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31. What was more glaring is the fact that the plaintiff stated on her deposition that she too attended the wedding, which took place on a platform outside the house. Generally, in a marriage under Muslim law, the women and men are housed in separate areas. The system of parda (veil) is observed, and as per the plaintiff's own statement, instead of staying where the women were housed, she is said to have been among the male guests attending the said wedding. She could not state with certainty whether Smt. Firojulnisha had signed the Nikahnama (the document indicating the solemnization of Nikah).

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32. PW-2, Shami Ulla, was examined, who was the officiating priest (Quazi authorized to solemnize marriages under Muslim law). Even he could not provide details regarding the solemnization of the marriage. In his cross-examination, he admitted that he had only performed one Nikah, and that he was not

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even a resident of the village where the marriage was performed, but rather belonged to a different Village Khorsa. He also admitted that Smt. Firojulnisha had not signed the Nikahnama in his presence, which again casts doubt on his testimony, as generally the Nikahnama is signed by the bride, the groom, two witnesses, as well as the Quazi himself.

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33. It is also quite surprising to note that, in the said wedding, the persons, who witnessed the Nikahnama, were neither from the family of the bride nor the groom. The members said to be part of the marriage procession were also residents of different villages, and not from the Village Daulatpur nor from Utraula, where Mohammad Safi was said to be residing. These facts have been noticed by the trial Court as well as the first appellate Court while recording their findings that the factum of remarriage of Smt. Firojulnisha with Ainul Haq alias Hakka could not be proved.

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34. It is also relevant to notice that the plaintiff could not bring on record any documentary evidence to substantiate the fact that in case, Smt. Firojulnisha had remarried, she started residing with Ainul Haq alias Hakka in Utraula. The same could have been proved by bringing on record the extracts of Pariwar Register or any other contemporaneous documents to establish the fact that Smt. Firojulnisha was residing as the wife of

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Ainul Haq alias Hakka. It would also be pertinent to observe that all the witnesses, who were examined on behalf of the plaintiff, were not the family members of either Smt. Firojulnisha or Ainul Haq alias Hakka. It is in these circumstances that the two Courts held that the factum of remarriage could not be proved, and in the estimation of this Court, the findings which have been recorded by the trial Court as well as the first appellate Court are based on proper appreciation of evidence and cannot be said to be perverse. Now, in the aforesaid backdrop, it is clear that the factum of second marriage or remarriage of Smt. Firojulnisha with Ainul Haq alias Hakka was not proved as per law.

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35. Therefore, upon the death of Raj Mohammad, insofar as the properties mentioned in Schedule A are concerned, the same, being abadi in nature, would devolve on Smt. Firojulnisha and her sons. However, as far as the properties in Schedule B are concerned, they, being agricultural in nature, would devolve on the sons. But admittedly, the three sons of Raj Mohammad died issueless, and in such circumstances, the property would revert to the mother, i.e., Smt. Firojulnisha. After the death of Smt. Firojulnisha, the property would devolve on Rabia, being the daughter.

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36 . In this regard, a doubt was created by the plaintiff, who stated that Rabia was not the daughter of Raj Mohammad, but rather she was the daughter of

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Smt. Firojulnisha from her nuptial (marriage) with Ainul Haq alias Hakka. Apparently, while taking such a plea, the burden was on the appellant to establish this fact as well. However, as noticed above, the plaintiff did not lead any documentary evidence in this regard.

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37. Much emphasis was laid by the counsel for the appellant on the statement of DW-1 to indicate that she herself had stated that Rabia was the daughter of Smt. Firojulnisha and Ainul Haq alias Hakka. However, if this aspect is examined, it would reveal that once the factum of remarriage of Smt. Firojulnisha with Ainul Haq alias Hakka is not proved, and it is not the case of the plaintiff that Rabia was an illegitimate daughter of Smt. Firojulnisha, and there being no evidence in this regard led by the plaintiff, it cannot be said that Rabia was not the daughter of Raj Mohammad.

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38. If the marriage of Smt. Firojulnisha with Ainul Haq alias Hakka had been proved, then there could have been some material to suggest that Rabia could be the daughter from the nuptial with Ainul Haq alias Hakka. However, as noticed above, there is no evidence in this regard led by the plaintiff, who was, in law, required to discharge the burden by leading evidence on the aforesaid fact as stated by her to establish her plea.

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39. It may be relevant to notice that even if Rabia was impleaded in place of Smt. Firojulnisha as

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her legal heir during the pendency of the proceedings, the same, in itself, does not amount to any presumption that she was the legal heir. However, the fact remains that while considering an application for substitution, a person is impleaded as a party on the premise that he or she is either a legal heir or a legal representative entitled to represent the estate of the deceased.

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40. In the instant case, once Rabia was substituted in place of Smt. Firojulnisha and the plaintiff raised a doubt regarding her right to be impleaded, it was the plaintiff's duty to establish that fact by discharging the burden through cogent evidence to indicate that Rabia was not the daughter of Raj Mohammad, but the daughter of Smt. Firojulnisha and Ainul Haq alias Hakka. If the initial burden had been discharged, then the burden would have shifted to Rabia to rebut the same. However, this Court finds that the plaintiff herself did not discharge her burden, and therefore, it could not have shifted to the defendant. In the absence of any proper pleadings or evidence, the contention of the learned counsel for the appellant that Rabia was not the daughter of Raj Mohammad cannot be countenanced.

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41. If the entire statement of DW-1, Smt. Firojulnisha, is examined, it would reveal that she has given details of her family with Raj Mohammad. She

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disclosed that Raj Mohammad was her husband, who had died, and that her three sons had also died. She stated that she had a daughter, namely, Rabia. She categorically denied that she was ever married to Mohammad Safi and asserted that she was always the widow of Raj Mohammad and had been residing in Daulatpur, where her husband Raj Mohammad had resided. She also denied the claim that Sukhrani was ever the wife of Raj Mohammad. She further referred to the property of Raj Mohammad which, after the death of her three sons, came to be recorded in her name. She categorically pointed out that Sukhrani, who alleged herself to be the wife of Raj Mohammad, had attempted to get her name mutated in the revenue records, but the same was rejected by the order dated 03.05.1973 passed by the Tehsildar, Gonda, and instead the name of Smt. Firojulnisha was entered. The said order was neither challenged nor was any suit filed seeking a declaration regarding her rights.

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42. As far as the issue regarding not framing a point of determination is concerned, it will be relevant to notice that plaintiff has to support its case on its own strength. It was for the plaintiff/appellant to have got an issue framed or lead evidence regarding the plea of Rabia not being the daughter of Raj Mohammad. Having failed to do so, now it cannot be urged that the point of determination was not framed especially without establishing any consequential failure of

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justice. This could not be demonstrated by the appellant hence, this too does not find favour with this Court.

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43. This Court finds that, in the aforesaid circumstances, where the plaintiff has failed to produce any material evidence, and the learned counsel for the appellant could not point out any perversity in the findings recorded by the trial Court as well as the first appellate Court, this Court is not inclined to disturb the findings of fact recorded by the two Courts. The learned counsel for the appellant could neither demonstrate nor substantiate any perversity in the findings, as the findings recorded are based on the evidence led. This is not a case where the findings have been recorded in the absence of evidence or on the basis of inadmissible evidence or due to an incorrect reading of the evidence, or by drawing inferences which no prudent person could have arrive at.

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44. This Court is satisfied that the findings recorded by the trial Court as well as the first appellate Court are based on the material evidence on record. This Court, in exercise of its powers under Section 100 CPC, is loath to interfere and is not inclined to reappreciate the evidence with a view to arrive at a conclusion different from that recorded by the trial Court and the first appellate Court.

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45. For the aforesaid reasons, this Court finds that the judgment decree passed by the first appellate court dated 11.4.2022 does not suffer from any error to persuade this Court to interfere. As a consequence, the judgment and decree passed by the trial court dated 11.11.1980 shall stand affirmed. The appeal is devoid of merits and is accordingly dismissed .

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46. The record of the trial Court shall be remitted back as expeditiously as possible.

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(Jaspreet Singh, J)

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Order Date :- 02.07.2025 A.Dewal

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Digitally signed by :- ASHISH DEWAL High Court of Judicature at Allahabad, Lucknow Bench

Smt. Hasmunisha through her legal heirs and 4 Others v. Smt. Firojulnisha (Died during pendency of appeal) through her legal heir and Another

Case brief

What is this about?

What did the court decide?

Smt. Hasmunisha through her legal heirs and 4 Others v. Smt. Firojulnisha (Died during pendency of appeal) through her legal heir and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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