MOHAMMED SALIM (D) THROUGH LRS. & ORS. versus SHAMSUDEEN (D) THROUGH LRS. & ORS.

Citation: [2019] 1 S.C.R. 941 · Decided: 22-01-2019 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Dismissed

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Judgment (excerpt)

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941
MOHAMMED SALIM (D) THROUGH LRS. & ORS.
v.
SHAMSUDEEN (D) THROUGH LRS. & ORS.
(Civil Appeal No. 5158 of 2013)
JANUARY 22, 2019
[N. V. RAMANA AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Muslim Law – Irregular (Fasid) Marriage – Entitlement of
child born out of irregular (fasid) marriage in his father’s properties
– Respondent No.1-plaintiff case was that his father ‘M’ and
defendant No.1 were sons of one ‘Z’ – Two plaint properties
(Schedule ‘A’ and Schedule ‘B’) belonged to Z – Z gifted Plaint
Schedule ‘A’ property to ‘M’ – ‘M’ married defendant No.8 and no
issue was born out of the wedlock – M’ also married one ‘V’ (a
Hindu woman) and out of the said wedlock plaintiff was born –
Plaintiff claimed entitlement to 14/16th of the share in Schedule ‘A’
property after the demise of ‘M’ and half the share in Schedule ‘B’
property through inheritance after the demise of ‘Z’ – Suit was filed
– Suit was decreed by the trial Court in favour of plaintiff – First
appellate Court set aside the judgment and decree of the trial Court
– However, the High Court confirmed the judgment and decree
passed by the trial Court – Appellants-defendants contended that
plaintiff was not the son of ‘M’ as he was born in the year 1949 and
his alleged father ‘M’ had expired in the year 1947 and furthermore,
‘V’ was a Hindu woman by religion she had no right over the property
of ‘M’, consequently plaintiff would not get any share in the property
of ‘M’ – On appeal, held: Birth register extract of the plaintiff
maintained by the statutory authorities indicated that the plaintiff
was the son of ‘M’ and ‘V’, and was born on 12.02.1949 – It is a
public document maintained by a public servant in discharge of his
official duty, thus, relevant as per s.35 of the Evidence Act – Also,
admittedly, ‘M’ and ‘V’ were living together as husband and wife,
and ‘M’ had died on 10.09.1124 M.E., which corresponds to
22.04.1949 in Gregorian calender as seen from the Government
Almanac – Thus, plaintiff was born two months prior to the death
of ‘M’ and High Court was correct in concluding, based on the
preponderance of probabilities that ‘V’ was legally wedded wife of
[2019] 1 S.C.R. 941
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SUPREME COURT REPORTS
[2019] 1 S.C.R.
‘M’ and plaintiff was the child born out of the said wedlock – Insofar
as right of plaintiff over the suit properties is concerned, the
marriage of a Muslim man with an idolater or fire-worshipper is
neither a valid (sahih) nor void (batil) marriage, but is merely an
irregular (fasid) marriage – Any child born out of such wedlock
(fasid marriage) is entitled to claim a share in his father’s property
– Therefore, the trial Court and the High Court were justified in
concluding that the plaintiff was the legitimate son of ‘M’ and ‘V’,
and is entitled to his share in the property as per law – Evidence
Act, 1872 – s.35.
Dismissing the appeal, the Court
HELD: 1. It  is not in dispute that ‘Z’ gifted  Plaint Schedule
‘A’ property to her son  ‘M’. In view of the gift deed in favour of
‘M’, upon his death, Schedule ‘A’ property would have devolved
upon his legal heirs as an absolute property as provided under
Muslim law.  Plaint Schedule ‘B’ property admittedly belonged
to ‘Z’ and upon her death, it devolved on her legal heirs.  Since
‘Z’ had two sons; ‘M’ and defendant No.1, both the sons/their
respective legal heirs would have inherited half a share each after
the death of ‘Z’.  [Para 6][946-D-E]
2. It is also not in dispute that Defendant No. 8 is the widow
(first wife) of ‘M’.  She has clearly admitted in her written
statement that  ‘M’ married ‘V’, Defendant No. 9, and out of the
said wedlock, the plaintiff was born.  The birth register extract of
the plaintiff maintained by the statutory authorities, which indicates
that the plaintiff is the son of  ‘M’ and ‘V’.  It is a public document.
An entry in any public or other official book, register or record,
stating a fact in issue or relevant fact, and made by a public servant
in the discharge of his official duty, or by any other person in
performance of a duty specially enjoined by the law in accordance
with which such book, register or record is kept, is itself a relevant
fact, as per section 35 of the Indian Evidence Act, 1872.
Additionally, a specific pleading was found in the plaint that  ‘M’
and ‘V’ were living together as husband and wife which has not
been denied in the written statement of the defendants.  [Para
7][942-E-H]
3.  As per Extract from birth register 

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