2025:JHHC:20504 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 315 of 2016 1. Anar Kuer, W/o Late Badan Thakur @ Ram Badan Thakur 2. Jagarnath Thakur 3. Lalan Thakur 4. Sunil Thakur 5. Anil Thakur No.2 to 4 are sons of late Badan Thakur @ late Badan Thakur, 1 to 5 are resident of village – Sankha, P.O. Ketat, P.S. Rehla, District - Palamau 6. Sarswati Devi, W/o Vkhamaj Thakur Resident of village – Nawaji, P.O. & P.S. Bishrampur, District – Palamau 7. Bidhon Devi @ W/o Ajedhya Thakur Resident of village – Bhandar, P.O. & P.S. Bishrampur, District – Palamau 8. Saradha Devi W/o Rajdeo Thakur Resident of village – Lehosi, P.O. & P.S. Padwa, District - Palamau 9. Rameshwar Vishwakarma, S/o Late Bhagru Mistry Resident of village – Sankka, P.O. Ketat, P.S. Rehla, District - Palamau … … Appellants/Appellants/Defendants Versus 1. Wahida Bibi, D/o Mohammad Saghir Khan 2. Salahuddin Khan, S/o late Mohammad Yashin Khan 3. Saolla Bibi D/o late Mohammad Yashin Khan 1 to 3 are residents of village – Kunai, P.O. Ketat, P.S. Rehla, District – Palamau … … Respondents/Respondents/Plaintiffs 4. Neyaz Ahmad, S/o Late Md. Latif khan 5. Husain Alam 6. Md. Yunus Khan No.5 and 6 are sons of late Qamruzaman Khan 7. Kunain Khan 8. Own Ahmad Khan No.7 to 8 are sons of late Arshuddin Khan 9. Bibi Mohzoobin,w/o Jamid Khan (abated v/o 16.07.2024) No.4 to 8 and 9 are resident of village – Mokhor P.O. Karimandih P.S. Haidernagar, District – Palamau 4 to 9 Respondents/Respondents /Defendants 10. Jagarnath Thakur, S/o late Badan Thakur, Resident of village – Sanka, P.O. Ketat, P.S. Rehla, District – Palamau … … Proforma Respondents --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Appellants : Mr. Birendra Kumar, Advocate For the Respondents : Mr. Manjul Prasad, Sr. Advocate : Mr. Baban Prasad, Advocate 2025:JHHC:20504 2 : Mr. Akhouri Prakhar Sinha, Advocate --- 16/25.07.2025 Heard the learned counsels appearing on behalf of the parties. 2. This appeal has been filed against judgement dated 31.03.2016 (decree singed on 11.04.2016) passed by learned District Judge VII, Palamau at Daltonganj in Partition Appeal No.5 of 2009, which has been dismissed with modification of the judgement and decree dated 12.12.2008 (decree sealed and signed on 06.01.2009) passed by learned Sub-Judge II, Palamau at Daltonganj in Partition Suit No.64 of 2002. The appeal was admitted for final hearing vide order dated 29.11.2018 on the following substantial question of law: “Whether the plaintiffs are entitled for partition although father of the plaintiffs, namely, Md. Yasin Khan died in the life time of Mohammaddin Khan?” 3. The suit was filed for partition by appointment of survey knowing Advocate Commissioner and for carving out a separate composite takhta for 1/4th share in favour of the plaintiff no.1 as well as 1/12th share in favour of the plaintiff no.2 and they be put in possession of the same. The partition suit was filed with respect to property in Khata No. 7, plot no.524 area 1.30 acre. Arguments of the appellants (representing defendant no. 10 to 12) 4. The learned counsel appearing on behalf of the appellants has submitted that it is an admitted fact in paragraph 7 of the plaint that Md. Yashin had died during the lifetime of his father Mohammadin Khan. He has referred to Articles 52 and 53 of Chapter VI dealing with principles of inheritance as mentioned in the book namely “Mahomedan Law by Mulla 22nd Edition” and has submitted that right of a heir, apparent or presumptive, comes into existence for the first time on the death of the ancestor and he is not entitled until then to any interest in the property to which he would succeed as an heir if he dies during life time of his ancestor. He has submitted that in case, the son is pre-deceased, then the grandchildren are entirely excluded from inheritance. 2025:JHHC:20504 3 5. The learned counsel submits that since Yashin Khan, had pre- deceased his father Mohammadin Khan, his wife and other children were not entitled to any share in the property, which otherwise devolved upon the two surviving sisters of Yashin Khan. The learned counsel has submitted that in aforesaid circumstances, allocation of any share to wife and children of Yashin Khan is not justified in law and therefore the partition suit at their instance was not maintainable. 6. The learned counsel has submitted that the learned courts have not taken into consideration the aforesaid aspect of the matter. He submits that in the aforesaid view of the matter, the substantial question of law be answered in favour of the appellants. He submits that the impugned judgements allocating share to wife and children of Yashin Khan is not sustainable in the eyes of law. 7. He has also submitted that the suit property belonging to Ali Mohammad Khan, the original recorded tenant, was sold by Mohammadin Khan to the defendant no.8 vide Exhibit B/1, during lifetime of Ali Mohammad Khan, but this aspect of the matter has also not been considered by the court. If the property was sold to defendant no.8, then under such circumstances, the appellants who are the purchasers from defendant no.8 acquired right, title and interest over the suit property. Arguments of the Respondents 8. It is not in dispute that Yashin Khan had pre-deceased his father Mohammadin Khan, but the 1/12th share of the property would have devolved upon the grand - son of Mohammadin Khan as the grandson fell under the category of other residuary. The grand son was the deceased brother’s son of the two surviving daughters of Mohammadin Khan. Two surviving daughters would have inherited to the extent of 1/3rd of the share of Mohammadin Khan. Since Mohammadin Khan acquired only 1/4th of the suit property as there were 4 co-sharers of the suit property, therefore the share of the two sisters came to 1/12th [ 1/3 X 1/4] each and total allocation to the two daughters came to 1/6th and the remaining portion of the property of Mohammadin Khan i.e. 1/12th [ 1/3rd of 1/4th] of the suit property 2025:JHHC:20504 4 would go to their brother’s son i.e. son of Yashin Khan and grandson of Mohammadin Khan in-spite of the fact that Yashin Khan had pre- deceased his father Mohammadin Khan. He submits that legal heirs and successors of Yashin Khan were the co-sharers of the property of Mohammadin Khan after his death and therefore the partition suit was maintainable and the share has been rightly allocated. So far as plaintiff no. 4 (wife of Yashin Khan) is concerned she has been allowed to retain 1/4th share by virtue of registered sale deed [exhibit- 1] executed by Kamaluddin Khan in her favour. 9. The learned counsel has referred to Article 61 which deals with the classes of heir which reads as follows: “61. Classes of heirs There are three classes of heirs, namely, (1) Sharers, (2) Residuaries, and (3) Distant Kindred: (1) "Sharers" are those who are entitled to a prescribed share of the inheritance; (2) "Residuaries" are those who take no prescribed share, but succeed to the "residue" after the claims of the sharers are satisfied: (3) "Distant Kindred" are all those relations by blood who are neither Sharers nor Residuaries. 10. He has referred to the list of residuaries given in the same book, which would include grandson of Mohammad Khan, that is plaintiff no.2. 11. The learned counsel has submitted that had there been any surviving brother of deceased Yashin Khan, then the property would not have gone to the son of Yashin Khan. Since Yashin Khan did not have a surviving brother, after allocation of share to his two sisters, the remaining property devolved upon the brother’s son to the extent of 1/12th of the suit property. 12. The learned counsel has also submitted that so far as substantial question of law is concerned, the son of Yashin Khan was entitled for partition as a portion of the share had devolved upon him as a residuary and the fact that Yashin Khan had expired prior to his father Mohammadin Khan will have no impact so far as the right of residuary is concerned. 2025:JHHC:20504 5 Findings of this Court. 13. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, in view of the findings recorded by the learned courts, it is not in dispute that the common ancestor was Ali Mohammad Khan had four sons, namely, Sarif Khan, Md. Altaf, Md. Wazirrudin Khan and Mohammadin Khan. The dispute is only in connection with partition of the suit property so far as it relates to 1/4th share of Mohammadin Khan son of Ali Mohammad Khan. 14. So far as remaining three branches namely the branch, that is, branches of Sarif Khan, Md. Altaf and Md. Wazirrudin Khan are concerned, there is not much dispute. However, plaintiff no.1 [grand- daughter of Mohammadin khan] had purchased the entire portion of 1/4th of the suit property allocated to one branch of Md. Waziruddin Khan by registered sale deed [exhibit-1] from his legal heirs and successors and such transfer has been held to be valid by the learned 1st appellate court and no substantial question of law has been framed in connection with the transfer of said the property to plaintiff no.1 vide [exhibit-1]. 15. The entire dispute is in connection with the branch of Mohammadin Khan to the extent of his 1/4th share in the suit property. The plaintiffs in paragraph 11 of the plaint itself have stated that the plaintiff nos. 1, 3 and 4 were not claiming any share by way of inheritance. Thus, share by way of inheritance was claimed only by the plaintiff no.2 [son of deceased Yashin Khan] upon death of Mohammadin Khan, who died after death of his father Yashin Khan. The plaintiff no.2 claimed 1/12th of the suit property after deducting 1/6th of the suit property being the share of two surviving daughters of Mohammadin Khan. 16. Mohammadin Khan had five children including Yashin Khan, who died during lifetime of Mohammadin Khan; his two sons died issue less and at the time of his death, Mohammadin Khan was survived by his two daughters, who were defendant nos.7 and 8. Yashin Khan at the time of death, left behind his wife [plaintiff no.4] 2025:JHHC:20504 6 and his 3 children, plaintiff no.1, 2 and 3. It is not in dispute that plaintiff nos.1, 3 and 4 had relinquished their share in favour of plaintiff no.2. 17. So far as inheritance from Mohammadin Khan is concerned, the bone of contention is as to whether upon death of Yashin Khan during the lifetime of Mohammadin Khan, any property could at all devolve upon the four plaintiffs, who were wife and children of Yashin Khan upon death of Mohammadin Khan. 18. This Court finds that there is no doubt that under Mohammadin Law, upon death of son during the lifetime of his father, children of the deceased son do not succeed the property directly through the deceased father. However, in the present case, upon death of Mohammadin Khan, his two surviving daughters [defendant no.7 and defendant no.8] were entitled to the extent of 1/3rd share each to 1/4th share of the suit property which had originally come in the hands of Mohammadin Khan and consequently each daughter got 1/12th [1/3rd of 1/4th= 1/12th] of the suit property, total coming to the two sisters to the extent of 1/6th [1/12th X 2] share of the suit property. 19. This Court is of the considered view that so far as the remaining property [that is [1/4th - 1/6th = 1/12th] is concerned, the same would go to the residuary. The residuary in the present case would be the grandson of Mohammadin Khan and brother’s son of the two daughters of Mohammadin Khan. This is so because Mohammadin Khan did not have any surviving son at the time of his death. Thus, the remaining 1/12th share would devolve upon the plaintiff no.2 (the only son of Yashin Khan). So far as the claim of plaintiff no.1 is concerned her claim to the 1/4th of the suit property is independent of 1/4th share of Mohammadin Khan as she had purchased 1/4th share of the suit property by registered sale deed [exhibit-1] directly from the descendants of the brother of Mohammadin Khan, who also has 1/4th share on the suit property. 20. This Court finds that the learned 1st appellate court has rightly held that the plaintiff no.2 would be entitled to 1/12th share of the suit property by being a residuary and his two aunts [sisters of his 2025:JHHC:20504 7 deceased father] would be entitled to total of 1/6th share and plaintiff no. 1 was the owner of 1/4th portion of the suit property which she had purchased by registered sale deed. 21. In view of the aforesaid findings, this Court is of the considered view that the plaintiff no.2, being entitled to a share in the suit property upon death of his grandfather even though his father predeceased his grandfather, the partition suit at his instance was certainly maintainable. The substantial question of law is accordingly answered in favour of the plaintiffs-respondents. 22. Consequently, this second appeal is dismissed. (Anubha Rawat Choudhary, J.) 25.07.2025 Saurav/-