Dismissed

K a Shaji v. K a Abdul Kareem

Kerala HC18 Mar 2024CRP/244/2013

Case brief

AI extract

What is this about?

Plaintiffs (children of two sisters of a deceased unmarried, issueless Muslim man) appealed dismissal of their partition suit and challenged issuance of succession certificate to the brothers' children. Holding sharers absent and only brothers' children qualify as residuaries while sisters' children are distant kindred, the court confirmed the trial court's findings and dismissed both appeal and r

What the court decided

AI extract

K a Shaji Vs K a Abdul Kareem — Partition | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SATHISH NINAN

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MONDAY, THE 18^TH DAY OF MARCH 2024 / 28TH PHALGUNA, 1945

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RFA NO. 779 OF 2009

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AGAINST THE JUDGMENT AND DECREE DATED 17.03.2009 IN O.S.NO.109 OF 2007 OF SUB COURT, PALA

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APPELLANTS/PLAINTIFFS:

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1 ABDUL KAREEM, S/O.PEERUKHAN RAWTHER, KOCHUPURACKAL HOUSE, PADUTHODU, PURAMATTAM, VIA VENNIKULAM, PATHANAMTHITTA.

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2 HABEEB RAWTHER, S/O. PEERUKHAN RAWTHER KOCHUPURACKAL HOUSE, PADUTHODU, VIA VENNIKULAM, PATHANAMTHITTA.

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3 ABDUL AZEES, S/O. AHAMMED KHAN KUTHIAMKAVIL HOUSE, EDAKKUNNAM, PARATHODE, KANJIRAPPALLY.

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4 K.A. SALEEM, S/O. AHAMMED KHAN KUTHIAMKAVIL HOUSE, EDAKKUNNAM,, PARATHODE, KANJIRAPPALLY.

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5 K.A. LATHEEF, S/O. AHAMMED KHAN KUTHIAMKAVIL HOUSE, MELETTU THAKIDY, KANJIRAPPALLY.

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6 K.A. SHAJI, S/O. AHAMMED KHAN KUTHIAMKAVIL HOUSE, EDAKKUNNAM, PARATHODE, KANJIRAPPALLY.

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BY ADVS.

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SRI.V.K.PEERMOHAMED KHAN

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RESPONDENTS/DEFENDANTS:

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1 K.A.ABDUL KAREEM, S/O.ASSANISSA RAWTHER, KUNNATH HOUSE, MANANGALLOOR, KOOVAPPALLY, KANJIRAPPALLY.

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2 K.A. MUHAMMED SALEEM, S/O. ASSANISSA RAWTHER,, KUNNATH HOUSE, MANANGALLOOR, KOOVAPPALLY, KANJIRAPPALLY.

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R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013

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-: 2 :-

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3 SUHURA HASSAN D/O. ASSANISSA RAWTHER, NALUPANKIL VEEDU, EDAYIRICKAPUZHA, P.O. KANGAZHA VILLAGE, CHANGANACHERRY.

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4 K.H. ABDUL SHUKKOOR S/O. HASSAN RAWTHER,, KUNNATH HOUSE, MANANGALLOOR, KOOVAPPALLY,, KANJIRAPPALLY.

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5 K.H. ABDUL JALEEL (DIED) S/O. HASSAN RAWTHER,, KUNNATH HOUSE, MANANGALLOOR, KOOVAPPALLY,, KANJIRAPPALLY. THE LEGAL HEIRS OF THE 5TH RESPONDENT ARE ALREADY IMPLEADED VIDE ORDER DATED 12.03.2014.

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6 K.H. MUHAMMED KABEER S/O.HASSAN RAWTHER,, KUNNATH HOUSE, MANANGALLOOR, KOOVAPPALLY,, KANJIRAPPALLY.

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7 K.H. ASHARAF S/O.HASSAN RAWTHER,, KUNNATH HOUSE, MANANGALLOOR, KOOVAPPALLY,, KANJIRAPPALLY.

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8 LAILA PARIKANNU D/O. HASSAN RAWTHER, KARIMBANCKAL HOUSE, NADACKAL P.O., ERATTUPETTA, KOTTAYAM DISTRICT.

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9 SARA BEEVI, MANNUVAYALIL HOUSE, PULIKKALLU.P.O, VALLAMCHIRA, MANIMALA VILLAGE, KANJIRAPPALLY.

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10 HAJIRA BEEVI, W/O. ISMAIL AMIKULATHIL HOUSE, ELAPPARA.P.O, IDUKKI DISTRICT.

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11 NABEESA BEEVI, W/O.ASHARAF MOOPARU VEEDU, KURISHUMMOODU.P.O, VAZHAPPALLY VILLAGE, CHANGANACHERY.

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12 K.A. ABDUL KAREEM, S/O.AHAMMED KHAN KUTHIRAM KAVIL HOUSE, EDAKKUNNAM, PARATHODE, KANJIRAPPALLY.

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13 K.A. HANEEFA, S/O. AHAMMED KHAN SHEEJA MANZIL, VALADI P.O., VANDIPERIYAR, PEERUMEDU TALUK, IDUKKI DISTRICT.

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14 SUHURA SALIM, PUTHUPARAMBIL HOUSE, KANJIRAPPALLY.P.O, KANJIRAPPALLY VILLAGE.

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R.F.A.No.779 of 2009 and

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C.R.P. (Succession) No.244 of 2013

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-: 3 :-

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15 SHEEBA, W/O.ABDUL JALEEL, KUNNATH HOUSE, MANANGALLOOR KARA, KOOVAPPALLY VILLAGE.

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16 ALTHAF (MINOR), S/O.ABDUL JALEEL, KUNNATH HOUSE, MANANGALLOOR KARA, KOOVAPPALLY VILLAGE.

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17 AASHIQ (MINOR), S/O.ABDUL JALEEL, KUNNATH HOUSE, MANANGALLOOR KARA, KOOVAPPALLY VILLAGE.

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18 AYESHA (MINOR), D/O.ABDUL JALEEL, KUNNATH HOUSE, MANANGALLOOR KARA, KOOVAPPALLY VILLAGE. BY ADVS.

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SRI.T.I.ABDUL SALAM – R1, R2, R4, R6, R7, R15 SMT.K.R.MONISHA - R8

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 18.03.2024, ALONG WITH CRP.244/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013

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-: 4 :-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SATHISH NINAN

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MONDAY, THE 18^TH DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 CRP (SUCCESSION) NO. 244 OF 2013

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AGAINST THE JUDGMENT DATED 13.02.2013 IN A.S.NO.31 OF 2009 OF THE ADDITIONAL DISTRICT COURT (SPECIAL), KOTTAYAM AND THE JUDGMENT DATED 26.11.2008 IN

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SUCCESSION (O.P.)NO.5 OF 2007 OF THE MUNSIFF'S COURT,

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KANJIRAPPALLY.

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REVISION PETITIONER/APPELLANTS/RESPONDENTS 1 TO 6:

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1 ABDUL KAREEM, S/O.PEERUKHAN RAWTHER, KOCHUPURACKAL HOUSE, PADUTHODU, PURAMATTAM, VIA VENNIKULAM, PATHANAMTHITTA.

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2 HABEEB RAWTHER S/O.PEERUKHAN RAWTHER, KOCHUPURACKAL HOUSE, PADUTHODU, VIA VENNIKULAM, PATHANAMTHITTA DIST.

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3 ABDUL AZEES, S/O.AHAMMED KHAN,KUTHIAMKAVIL HOUSE, EDAKKUNNAM, PARATHODE, KANJIRAPPALLY.

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4 K.A.SALEEM S/O.AHAMMED KHAN, KUTHIAMKAVIL HOUSE, EDAKKUNNAM, PARATHODE, KANJIRAPPALLY.

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5 K.A.LATHEEF S/O.AHAMMED KHAN, KUTHIAMKAVIL HOUSE, MELETTU THAKIDY, KANJIRAPPALLY.

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6 K.A. SHAJI, S/O.AHAMMED KHAN, KUTHIAMKAVIL HOUSE, EDAKKUNNAM, PARATHODE, KANJURAPPALLY.

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BY ADV SRI.V.K.PEERMOHAMED KHAN

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R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013

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-: 5 :-

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RESPONDENTS/RESPONDENTS/PETITIONERS 1, 3, 5 AND 6 AND ADDITIONAL 7 TO 10:

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1 K A ABDUL KAREEM S/O.ASSANISSA RAWTHER, KUNNATH HOUSE, MANANGALLOOR, KOOVAPPALLY, KANJIRAPPALLY.

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2 K.A.MUHAMMED SALEEM, S/O.ASSANISSA RAWTHER, KUNNATH HOUSE, MANANGALLOOR,KOOVAPPALLY,KANJIRAPPALLY.

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3 K.H.ABDUL SHUKKOOR S/O.HASSAN RAWTHER, KUNNATH HOUSE, MANANGALLOOR,KOOVAPPALLY,KANJIRAPPALLY.

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4 K.H.ABDUL JALEEL S/O.HASSAN RAWTHER, KUNNATH HOUSE, MANANGALLOOR,KOOVAPPALLY,KANJIRAPPALLY. (THE NAME OF FOURTH RESPONDENT IS STRUCK OFF FROM THE ARRAY OF PARTIES VIDE ORDER DATED 21.08.2013.)

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5 K.H.MUHAMMED KABEER S/O.HASSAN RAWTHER, KUNNATH HOUSE, MANANGALLOOR,KOOVAPPALLY,KANJIRAPPALLY.

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6 K.H.ASHRAF S/O HASSAN RAWTHER, KUNNATH HOUSE, MANANGALLOOR,KOOVAPPALLY,KANJIRAPPALLY.

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7 SHEEBA, W/O.ABDUL JALEEL, KUNNATH HOUSE, MANANGALLOOR KARA, KOOVAPPALLY VILLAGE.

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8 ALTHAF (MINOR) S/O.ABDUL JALEEL, KUNNATH HOUSE, MANANGALLOOR KARA, KOOVAPPALLY VILLAGE.

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9 AASHIQ (MINOR), S/O.ABDUL JALEEL, KUNNATH HOUSE, MANANGALLOOR KARA, KOOVAPPALLY VILLAGE.

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10 AYESHA (MINOR), D/O.ABDUL JALEEL, KUNNATH HOUSE, MANANGALLOOR KARA, KOOVAPPALLY VILLAGE. BY ADV SRI.T.I.ABDUL SALAM

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THIS CIVIL REVISION PETITION HAVING COME UP FOR HEARING ON 18.03.2024, ALONG WITH RFA.779/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = =

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R.F.A.No.779 of 2009 and

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C.R.P. (Succession) No.244 of 2013

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= = = = = = = = = = = = = = = = = = Dated this the 18^th day of March, 2024

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J U D G M E N T

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Challenging the dismissal of a suit for partition,

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the plaintiffs are in appeal. They have filed the Revision Petition challenging the issuance of succession certificate in favour of the contesting defendants in the suit.

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One Pareeth Rawther was the owner of the

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properties. He died on 14.07.2007, unmarried and issueless. His parents predeceased him. He had three brothers and three sisters. They are no more. The plaintiffs are the children of two sisters. Defendants 1 to 8 are the children of the brothers. Defendants 9 to 14 are the children of another sister. The 5^th defendant died pending the proceedings and the legal heirs were impleaded as defendants 15 to 18. The suit was filed

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R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 2 :-

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seeking partition of the plaint schedule properties; plaint A schedule property is immovable property and the plaint B schedule properties are movables.

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The children of the brothers challenged the

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right of the plaintiffs for partition. It was contended that the property devolves only on the children of the brothers of Pareeth Rawther. The children of the sisters

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of Pareeth Rawther will not get any shares, it is contended.

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The children of the brothers of Pareeth

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Rawther approached the court for issuance of a

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succession certificate regarding the Bank deposits of

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Pareeth Rawther.

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The court held that the children of the

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deceased brothers of Pareeth Rawther, to the exclusion of the children of his sisters, are entitled to inherit

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the assets. Accordingly, the suit for partition was dismissed and the succession certificate was issued. It

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R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 3 :-

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is challenging the same, the appeal and revision petition have been filed.

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I have heard the learned counsel on either

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side.

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The point that arises for determination is;

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“Is the finding of the trial court that, the children of the deceased brothers of Pareeth Rawther will inherit his assets to the exclusion of the children of the deceased sisters, correct in law?

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Mulla on, The Principles of Mahomedan Law, 23^rd Edition, narrates about three classes of persons with regard to inheritance. Class-I is the “sharers”, ClassII is the “residuaries” and Class-III is the “distant

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kindred”. The former excludes the latter. So, if sharers are available, no rights vest with the residuaries. If the sharers are not available, the residuaries will get the right to inherit. If the residuaries are not available, then the distant kindred inherits.

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R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 4 :-

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In the present case, admittedly no sharers, as described under Class-I, are available. The list of

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residuaries has been provided at page No.88 of the book. Though it includes “brother's son”, it does not include “sister's son”. At page No.104 of the book, the list of distant kindred under Class-III is mentioned. It includes “sister's children”.

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In the case at hand, as noticed above, the sharers are not available. The brothers' children are available as residuaries. Since the sisters' children does not fall within the class of residuaries, they are not entitled to inherit. It is having regard to the above that the trial court dismissed the suit for partition and issued succession certificate in favour of the children of the brothers of the deceased Pareeth Rawther.

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The learned counsel for the appellants would refer to a portion of the Holy Quran to contend that the

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R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 5 :-

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rights of a sister is duly recognized therein and hence, the children of the sister is also to be considered as

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“residuaries”. The said portion of the Quran has also been taken note of by the learned author Mulla at page

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87 of the book. The said portion reads thus;

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The Holy Quran declares:

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from what is left by parents and near kindred, there is a share for men and a share for woman, whether the property be small or large-a determinate share.

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To (benefit) every one, we have appointed shares and heirs to property left by parents and near relatives.

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Allah directs you concerning your children (their inheritance), to the male a portion equal to that of two females.

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They ask thee for a legal decision. Say: Allah directs (thus) about those who leave no descendants or ascendants as heir. If it is a man that dies, leaving a sister but no child, she shall have half the inheritance. If (such a deceased was) a woman who left no child, her brother takes her inheritance. If they are brothers and sisters, (they share), the male having twice the share of the female.

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R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 6 :-

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The first two verses are clear proof that blood relations are entitled to inherit. Blood relations definitely include residuaries (the male agnates).

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Evidently, what is stated is regarding brothers and sisters. There is no indication that the children of the deceased sisters also fall within the category of residuaries along with the brothers' children.

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The learned counsel for the appellants would also refer to statutory enactments of Pakistan and Iraq recognising sisters right of inheritance at par with the brothers, and urges the Court to adopt it. The contention, on the face of it, has no force. Merely because such a statutory provision exist in those countries does not mean that we in India have to follow it.

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The trial court was right in having dismissed the suit for partition. The order issuing succession certificate, as was affirmed in the appeal, warrants no

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R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 7 :-

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interference.

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Resultantly, the appeal and the revision petition

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fail and are dismissed. No costs.

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SATHISH NINAN, JUDGE

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K a Shaji v. K a Abdul Kareem

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K a Shaji v. K a Abdul Kareem

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