NEWANNESS @MEWAJANNESSA versus SHAIKH MOHAMMAD @ AND ORS.

Citation: [1995] 2 S.C.R. 138 · Decided: 21-02-1995 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
NEW ANNESS @MEWAJANNESSA 
v 
SHAIKH MOHAMMAD @ AND ORS. 
FEBRUARY 21, 1995 
[K. RAMASWAMY AND B.L. HANSARIA, JJ:] 
Personal Laws-Muslim Law--Partition-Shares of classes of heirs in 
i!Jherited property-Entitlement to. 
Personal Laws-Delay in bringing LRs. on record despite notice-One 
C heir already on record representing all other heirs-No question of abate-
ment--Substitution allowed-No injustice. 
One HA died in 1955 leaving behind a widow P-1, who died pending 
suit in 1966, two daughters P-2 and D-5: and three son& JA, IA 'and Sh. JA 
D left.behind a.son D~l and a daughter D-2. IA left behind a·dauiibter D-3 
who was mamed to D-1. SH pre- deceased IA, leaving behind two sons D-4 
andL. 
The shares and extent were in controversy. The High Court found 
that the property purchased by HA in the name of his son SH belonged to 
E the latter alone." Since SH had pre-deceased IA, the question arose whether 
HA was sharer in the estate of SH and also whether P-2 was entitled to a 
share in estate of D-5 who died pending suit. 
Allowing the appeal, this Court 
F 
HELD: 1.1. On the basis of the inheritance provisions pos~lated in 
Mulla's Principles of Mohamedan Law IA's share was 1/6th out of which 
his widow P-1 and daughter P-2 were to take equal respective share under 
law. [140-D] 
1.2. On the basis of the table in the said treatis(the two daughter of 
G D-5 were found entitled to 1/3rd share each as "shI~s" and the balance 
1/3rd remained as "residue". Relying on the same -table which dealt with 
"residuaries" P-2 was found entitled to take the entire 1/3 rd residue share. 
(140-E] 
2.1. Since one heir was already on record representing all the heirs 
H of the widow of D-1 who died in 1990 the question of abatement for· not 
138 
I 
}-
_/ 
NEWANNESS v. SHAIKH MOHAMMAD 
139 
bringing the legal representatives on record until 1995 ·did not arise. A 
Substitution is allowed as there is no injustice in bringing the legal 
representatives on record. [140-H, 141-A] · 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 888 of 
1976. 
From the Judgment and Order dated 8.6.73 of the Calcutta High 
Court in" Appeal from Original Decree No. 652 of 1961. 
P.S. Poti, M. Qamaruddin and Mrs. M. Qamarudin for the Appel-
lant. 
S.N. Misra, D.P. Mukherjee and Sanjay Kr. Ghosh for the Respon-
dents. 
The following Order of the Court was delivered : 
B 
c 
This appeal by special leave arises from the judgment of the Division D '. 
Bench of the Calcutta High Court 'in appeal from original decree No. 
652161 and cross objections dated June 8, 1973. This Court while granting 
leave limited the appeal to the questions raised in ground Nos. II and VI 
dealing with inheritance of property belonging to Sabul, Liaquat and 
, Mahujam:nusa. Therefore, untrammeled by the controvetsy which hinged ·E 
in the trial Court and the High Court, we confined our consideration only 
to these two questions. 
This appeal arises out of a partition suit. The genealogy table before 
--', 
us has not been disputed. It would show that Haji Ishan Ali died in 1955 
leaving behind his widow Samudanusa, plaintiff No. 1 (P~l), who also died F 
pending suit in 1966; his two daUghters, plaintiff No. 2 (P-2) Bibi Mewan-
nes and Bibi Mahujammusa, defendant No. 5 (D-5); and three sons Jabar 
Ali, Isabul Ali and Sabul Hassan. Jabar Ali left behind defendant No. 1 
-A' 
(D-1), a son and defendant No. 2 (D-2), a daughter. Isabul Ali left behind 
him defendant No. 3 (D-3), a daughter .. D-3 was married to D-1. Sabul 
Hassan pre-decea8ed lsabul Ali, leaving behind defendant No. 4 (D-4). a G 
son and Liaquat also a son, who too died before the' death of Isabul Ali. 
The Trial court granted preliminary decree which was affirmed in appeal 
- The shares and extent are in controversy. The High Court found that the 
property_ purchased by Haji Ishan Ali in the name of his son Sabul Hassan 
belong to ~e latter alone. Since Sabul Hassan had pre7deceased IsabUI Ali, H: 
140 
SUPREME COURTREPORTS 
(1995) 2 S.C.R. 
A 
the question arose whether Haji Ishan Ali was a sharer in the estate of 
Sabul Hassan. 
Section 61 in Chapter VII of the Mulla's Principles of Mohamedan · 
Law, edited by M. Hidayatullah, former Chief Justice of this Court, postu-
lates three classes of heirs, name]y2 . (1) sharers,(2) residuaries, and (3) 
B distant kindred. Sharers are those who are entitled to a prescribed share 
in inheritance; residuaries are those who take no prescribed share, but 
succeed to the 'res
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