Appeal against dismissal of a partition suit and revision against issuance of succession certificate. The court held that under Mahomedan law, with no sharers available, brothers' children as residuaries exclude sisters' children, who are only distant kindred. Appeal and revision dismissed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 18TH DAY OF MARCH 2024 / 28TH PHALGUNA, 1945
RFA NO. 779 OF 2009
AGAINST THE JUDGMENT AND DECREE DATED 17.03.2009 IN O.S.NO.109 OF 2007 OF SUB COURT, PALA
APPELLANTS/PLAINTIFFS:
BY ADVS.
RESPONDENTS/DEFENDANTS:
R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013
-: 2 :-
R.F.A.No.779 of 2009 and
C.R.P. (Succession) No.244 of 2013
-: 3 :-
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:
R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013
-: 4 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
MONDAY, THE 18TH DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 CRP (SUCCESSION) NO. 244 OF 2013
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
SUCCESSION (O.P.)NO.5 OF 2007 OF THE MUNSIFF'S COURT,
KANJIRAPPALLY.
REVISION PETITIONER/APPELLANTS/RESPONDENTS 1 TO 6:
R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013
-: 5 :-
RESPONDENTS/RESPONDENTS/PETITIONERS 1, 3, 5 AND 6 AND ADDITIONAL 7 TO 10:
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:
SATHISH NINAN, J.
= = = = = = = = = = = = = = = = = =
R.F.A.No.779 of 2009 and
C.R.P. (Succession) No.244 of 2013
= = = = = = = = = = = = = = = = = = Dated this the 18th day of March, 2024
J U D G M E N T
Challenging the dismissal of a suit for partition,
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.
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 5th defendant died pending the proceedings and the legal heirs were impleaded as defendants 15 to 18. The suit was filed
R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 2 :-
seeking partition of the plaint schedule properties; plaint A schedule property is immovable property and the plaint B schedule properties are movables.
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
of Pareeth Rawther will not get any shares, it is contended.
Rawther approached the court for issuance of a
succession certificate regarding the Bank deposits of
Pareeth Rawther.
deceased brothers of Pareeth Rawther, to the exclusion of the children of his sisters, are entitled to inherit
the assets. Accordingly, the suit for partition was dismissed and the succession certificate was issued. It
R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 3 :-
is challenging the same, the appeal and revision petition have been filed.
side.
“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?
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.
R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 4 :-
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”.
R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 5 :-
rights of a sister is duly recognized therein and hence, the children of the sister is also to be considered as
“residuaries”. The said portion of the Quran has also been taken note of by the learned author Mulla at page
87 of the book. The said portion reads thus;
The Holy Quran declares:
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.
To (benefit) every one, we have appointed shares and heirs to property left by parents and near relatives.
Allah directs you concerning your children (their inheritance), to the male a portion equal to that of two females.
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.
R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 6 :-
The first two verses are clear proof that blood relations are entitled to inherit. Blood relations definitely include residuaries (the male agnates).
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.
R.F.A.No.779 of 2009 and C.R.P. (Succession) No.244 of 2013 -: 7 :-
interference.
Resultantly, the appeal and the revision petition
fail and are dismissed. No costs.
SATHISH NINAN, JUDGE
yd
1 issue framed by the court
Whether the children of the deceased brothers of Pareeth Rawther inherit his assets to the exclusion of the children of his deceased sisters under Mahomedan law?
Abdul Kareem
Habeeb Rawther
Abdul Azees
K.A. Saleem
K.A. Latheef
K.A. Shaji
Sathish Ninan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
