ILLAHI SHAMSUDDIN NADAF versus SOU. JAITUNBI NADAF

Citation: [1994] SUPP. 1 S.C.R. 597 · Decided: 14-07-1994 · Supreme Court of India · Bench: KULDIP SINGH, R.M. SAHAI · Disposal: Appeal(s) allowed

Judgment (excerpt)

ILLAHI SHAMSUDDIN NADAF 
v. 
SOU. JAITUNBI NADAF 
JULY 14, 1994 
[KULDIP SINGH AND R.M. SAHAI, JJ.) 
Mahomedan Law-lnheritanct-House Property-Heirs daughter and 
grandson in possession of house property-Mutation of property in their 
names-Oral Gife-'Validity-Both heirs declared as owners of portions of 
house which are in their respective possession. 
Constitution of India 195()-Art. 142-0ral Gift by a Mahomedan 
lady-Intention of donee to be honoured in order to do complete justice. 
A 
B 
c 
R was the owner of the house In dispute. She died on 07 .06.1975. J 
is her daughter and S is the grandson from another daughter who died D 
near about 1933-34. J instituted a suit for a declaration and possession to 
the effect that she, "being a sharer" (Class I Heir) under the Mahomedan 
Law, was entitled to inherit the house in dispute to the exclusion of the 
grandson who was a "distant kindred" (Class III heir). The Trial Court 
dismissed the suit. The appellate court reversed it and declared the suiL E 
The High Court upheld the same. Hence this appeal. 
Allowing the appeal, this court 
HELD : 1.1. R gave her property to her daughter and the grandson 
(through another daughter) in her life time by dividing the ·house into two F 
parts and giving possession or the respective parts to the two heirs. An 
oral gift is perfectly valid under Mahomedan Law. The declaration as well 
as acceptance or the gift may be oral whatever may be the nature of the 
property gifted. The intention on the part or R to give the property to the 
two heirs is obvious by the fact that she divided the house into two portions G 
and gave actual possession to both or them. The appellant and the respon· 
dent are living in· their respective portions for the last more than 40 years. 
The mutation or the property Is in their names. (600-H, 601·A·B] 
1.2. In order to do complete justice between the parties, the intention. 
of R has to be honoured and, as such, the appellant and the respondent H 
597 
598 
SUPREME COURT REPORTS [1994] SUPP.1 S.C.R. 
A 
shall be the owners of the portions of the house which are in their 
respective possession. [ 601 ·CJ 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6102 of 
1990. 
B 
From the Judgment and Order dated 27.7.90 of the Bombay High 
c 
Court in S.A. No. 317 of 1990. 
V.N. Ganpule, Mrs. Sadhana Ramchandran and Ms. S.B. Rastogi for 
the Appellant. 
A.M. Khanwilkar for the Respondent. 
The Judgment of the Court was delivered by 
KULDIP SINGH, J. Rajubai was the owner of the house in dispute. 
Jaitunbi, respondent in the appeal herein, is her daughter. Shamsuddin, the 
D appellant, is the grandson of Rajubai from another daughter Mehamunisa 
who died near about 1933-34. Rajubai died on June 7, 1975. Jaitunbi 
instituted a suit for a declaration and possession to the effect that she, 
"being a sharer" (class I heir) under the the Mahomedan Law, was entitled 
to inherit the house in dispute to the exclusion of the respondent who was 
E a "distant kindred" (class III heir). The trial court dismissed the suit. The 
lower appellate court reversed the judgment of the trial court and decreed 
the suit. The High Court dismissed the second appeal in limine. This 
appe·aI by shamsuddin is against the judgment and decree of the lower 
appellate court as upheld by the High Court. 
F 
G 
H 
The lower appellate court reversed the finding of the trial court on 
the question of inheritance on the following reasoning : -
" The persual of the said classification .of heirs makes it ample clear 
that the original plaintiff/the appellant is the only Class I heir of 
the said Smt. Rajubai Dadu Pinjare. It further makes it crystal clear 
that the original defendant/the respondent is a class III heir of the 
said Smt. Rajubai Pinjare. Once this position is accepted as correct 
as per the principle of Mahomedan law then I am required to see 
as to how the allocation of shares takes place. In this respect th.e 
commentary at page 253 as mentioned in the above mentioned 
·books, makes it ample clear that the heirs of class I and Class II 
1.S. NADAF v. S.J. NADAF [KULDIP SINGH, J.] 
599 
are to inherit together the estate of a deceased Mahomedan. It A 
further makes it ample clear that if Class I and Class II heirs are 
in existence then the Class III heirs of a deceased Mahomedan are 
wholly excluded. If this Principle is taken into consideration then 
it has to be said in the instant case that the original defendant/the 
respondent ha

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