Ancestral Property, Right Of Birth Wholly Foreign To Muslim Law: Gujarat High Court Rejects Woman's Plea For Share In Father's Estate

The Gujarat High Court has held that the concepts of 'joint family property', 'ancestral property' and 'right by birth' as understood in Hindu law, cannot be invoked in disputes governed by Mohammedan law.

The court made the observation while setting aside trial court's temporary injunction order granted in favour of a Muslim woman in her suit seeking administration of her deceased estate.

Justice J.C. Doshi was dealing with a batch of civil revision applications and appeals from orders arising out of a long-pending family dispute between siblings over several parcels of immovable properties in Vadodara.

"The Mohammedan Law recognizes the Principle or Latin phrase 'Nemo est heres viventis - A living person has no heir'. An heir apparent or presumptive has no such reversionary interest as would enable him to object to any sale or gift made by the owner in possession. In Mohammedan Law, inheritance descends and not ascends, unlike Hindu Law...In so far as claiming any property as an ancestral property is concerned, one has to claim right by birth, this idea or custom is not recognized by the tenets of the Mohammedan Law. As observed hereinabove, according to Mohammedan law, no one can have any share in the inheritance of another till after his death, the right of which are several and distinct and arises immediately on the death of the person of whom he is an heir...

Thus, Muslim cannot claim any right by birth, unlike Hindu Coparcenors. Thus, there is no any interest in the properties in the lifetime of the father claiming it to be by birth.The relationship between the members of the Mohammedan family is distinct from that of the members of the Hindu family. The presumption of the Hindu Law regarding the joint family, joint family property or joint family funds has got to be completely forgotten in deciding cases between the parties who are Mohammedans...Thus, the concept of ancestral properties is wholly foreign to the principle of Mohammedan Law as the Mohammedan Law does not recognize right by birth, but recognizes that a living person has no heirs. Likewise, the concept of 'joint family' is foreign to the Mohammedan Law. The concept of 'joint family' implies only to a group of members of many to one nuclear family together and not to a group of people living separately".

The court said that the relationship between the members of the Mohammedan family is distinct from that of the members of the Hindu family. It said that the presumption of the Hindu Law regarding the joint family, joint family property or joint family funds has got to be completely forgotten in deciding cases between the parties who are Mohammedans.

"Apt to note that, Mohammedan succession is individual succession, it necessarily follows that there is no presumption, as in the case of a joint Hindu family, that any property has been purchased out of joint undivided property. It must be remembered that when the members of the Muslim family live in Commensality, they do not form a joint family in the sense in which that expression is used with regard to the Hindus, and in Mohammedan Law there is not, as there is in Hindu Law, any presumption that the acquisitions of the several members are made for the benefit of the joint family. The acquisition of the property by some members will not deemed to be for the benefit of all of them jointly," the court added.

Referring to various precedents the court said that under Mohammedan Law, on the death of a person the estate of the deceased devolves on his heirs and they take the estate as tenants-in-common in specific shares. The court said that the theory of representation, as available under the Hindus, is not recognised under the Mohammedan Law and the interest of each heir is separate and distinct.

“The concept of ancestral property, which has a link and base to the Principle of Right by Birth. The Principle is rooted to form any immovable property as coparcenary property, again is foreign to the application of the Mohammedan Law,” the Court noted.

Background

The original plaintiff, a daughter of the deceased parents, instituted a suit seeking a share in several properties standing in the names of her brothers, contending that they were purchased out of family earnings and were therefore liable to be treated as joint family and ancestral properties. She also sought interim injunctions to restrain alienation and development of the properties. The trial court had partly allowed her interim injunction application.

She claimed that her brothers had sold the various parcel of land as well as immovable properties without giving her any share but had assured her that the immovable properties remained in the siblings hands and that they shall give her a share. However, according to plaintiff, later on, the defendants Nos.1 to 4 in connivance with the other defendants, started development of immovable properties and declined to grant her any share.

The defendants challenged the very foundation of the suit, as well as the interim relief, contending that the plaintiff had built her case on legal concepts which are alien to Mohammedan law.

Senior Advocate Mihir Joshi, appearing for the brothers, submitted that the daughters had approached the court after an inordinate delay of nearly 37 years despite having full knowledge of the government land record entries, family settlement and subsequent sale transactions. Therefore, they were disentitled to any interim injunction on the ground of acquiescence and laches.

Senior Advocate Percy Kavina, appearing for the daughters, contended that as the properties were acquired from the earnings of the father and for the benefit of the family as a whole, and consequently the daughters had a share in them as well. The veracity of the family settlement had not been proved in the lower court yet, and if the brothers were allowed to sell the suit property during the pendency of the suit, it would greatly inconvenience the daughters who were claiming their shares.

Findings

The court said that the a suit claiming the relief of administration as well as seeking interim relief under Order XXXIX Rule 1 & 2 of CPC, revolves around two concepts– the concept of 'joint family property' and 'ancestral property'.

The court noted that in the plaint these immovable properties were standing in name of the father or father has purchased in the name of the son during the lifetime from the earning of gains.

"Plaintiff, by this kind of the pleading implies that joint family was existing and father, in order to avoid the operation of the 'Tenancy Act' or any other provision of law, purchased the various parcels of the lands in the name of the sons. These purchase are made to benefit of the family. The concepts pleaded by the plaintiff very much would be available to her, provided that she is governed by the provisions of the Hindu Law, but here is case where a Muslim female claim and contends concept of joint family property, which is wholly not available to her...At the cost of repetition, it can be said that the Mohammedan Law recognise that no living person has a heir, the chance of heir to succeed the inheritance is based on succession or chance of heir apparent. Mohammedan Law since does not recognize concept like joint family property or ancestral property, the very foundation of the plaint as well as injunction application duly debased and invalidate the plaintiff's case".

It observed that to make out a case that the property is joint family property and to set up a case of partition, the plaintiff needed to show by sufficient material on record that it is a case either of partnership by express terms or by implication on account of the conduct of the parties or that there was a relationship of principal and agent or any fiduciary relationship between the parties.

Had the plaintiff made out, such a case of partnership or agency or fiduciary relationship, he/she can take advantage of the provisions of the Indian Trusts Act and provisions arising out of the relationship of partners or principal or agent to claim the share in the property, the court added.

Based on evidence presented, the grant of an injunction against alienation of suit property was not warranted. Resultantly, the Court quashed the injunction order passed by the lower court and allowed the appeal.

Case title: Yusufbhai Walibhai Patel & Ors. v. Zubedaben Abbasbhai Patel & Ors.

Case no.: R/CIVIL REVISION APPLICATION NO. 48 of 2023 With R/APPEAL FROM ORDER NO. 41 of 2024 and connected pleas

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