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Civil Appeal No. 55 of 1956, decided on 15th April 1957, from the order of District Judge, Mirpur, dated 6th August 1956.
‑Inheritance‑Estate of deceased Muslim devolves on his heirs at the moment of his death.
, Ss. 9 & 123 ‑Muslim owner can validly transfer his property only by means if registered deed‑Regi5tration Act (XVI of 1908), S. 17.
‑Joint Hindu family property‑Every member of family has share in property‑Agreement of partition of property need not be in writing and registered.
Rangu v. Lakshman A I R 1930 Born. 438 ref.
‑Possession under sale or gift, which is invalid, cannot be construed as adverse possession.
‑Co‑tenant and co‑owner‑--Whether admis sion by co‑tenant or co‑owner binds all co‑tenants or co‑owners --- Joint interest, meaning.
Admissions of tenants in common, of co‑owners and co heirs are not receivable against others but an admission of a joint‑owner, made as such and at a time when the member held a joint interest in the property, is receivable against the other joint owners.
The principle is that when several persons are jointly interested in the subject‑matter of the suit, an admission of any one of these persons is receivable not only against himself but also against the other provided that the admission relates to the subject‑matter in dispute and is made by the declarant in his character of a person jointly interested with the persons against whom it is tendered.
Joint interest in a co‑parcenership is different from joint interest in a property which devolves by inheritance. In the case of inheritance the property devolves on death ; it survives in the case of co‑parcenership. It is in the case of a joint interest as understood in co‑parcenership that an admission of one person jointly interested binds the other similarly jointly interested.
Brajballav v. Akhoy Bagdi A I R 1926 Cal. 705 ref.
Muhammad Shafi for Appellant.
Abdul Hamid for Respondents No. 1 and 2.
Jan Muhammad guardian for minors in person.
--‑ This is a second appeal against the order of the District Judge, Muzaffarabad dated the 6th August 1956, whereby the order of the Sub‑judge, Muzafar abad dated the 20th November 1954, dismissing the plaintiff respondents' suit with costs was set aside and a declaratory decree to the effect that the plaintiffs were owners of the suit land and of the houses standing thereon was passed against the defendants.
It was alleged by the plaintiffs that the suit land measuring 36 kanals and 2 marlas situate in village Soha, Tehsil Muzaffarabad belonged to Fateh who had partitioned his land equally amongst his three sons Hidayatullah, father of Mir Khan plaintiff, Rehmatullah defendant No. 1 and Faqirullah defendant No. 2 and given them possession of land, that Hidayatullah died during the life time of his father but inspite of it the plaintiff continued to hold possession of the suit land which fell to the share of Hidayatullah and of the two houses built thereon by Hidayatullah, that on the death of Fateh, the suit land was mutated in the name of the plaintiffs but on appeal by Faqirullah the Collector Muzaffar abad cancelled the mutation holding that since Hidayatullah had died during the life time of his father his son, the plaintiff No. 1 and his widow the plaintiff No. 2 could not inherit the suit land in the presence of the defendants Nos. 1 and 2, the brothers of Hidayatullah. The plaintiffs, therefore, prayed for declaration that since Fateh had partitioned his land during his life time giving a share to each of his son and had put them in possession of the land, they were owners of the suit land and of the houses built thereon. Of the defendants only Faqirullah defendant No. 2 contested the suit. He denied that his father Fateh had partitioned his land amongst his sons or that Hidayatullah had built any houses, he further contended that in Shariat the plaintiffs could not inherit. Rehmatullah defendant in his written statement admitted the plaintiff's claim. The other defendants, the daughters of Fateh, did not appear in Court and were pro ceeded against ex‑parte. The Sub‑Judge framed the following issues in the case :‑
(1) Whether Fateh had in his life time given the suit land to Hidayatullah over which Hidayatullah and his heirs had possession as owners for the last 20 years (O. P. P.)
(2) Whether Hidayatullah had built two houses on the suit land valued at Rs. 2,000 and in case the plaintiffs failed to inherit this land, were they entitled to recover the value of the houses (0. P. P.)
(3) Relief
The Sub‑judge found both the issues No. 1 and 2 against the plaintiffs and dismissed the suit. On issue No. 1 he based his judgment on the entries in the revenue record. In the revenue record, there was no entry supporting the claim of the plaintiffs. On the contrary, Fateh was shown in posse ssion. As regards issue No. 2, the learned Sub‑Judge dis believed the evidence that the houses had been built by Hidayatullah. On appeal, the learned District judge upset the findings of the Sub‑Judge on the following grounds :‑
(a) that the admission of Rehmatullah defendant No. 1 that their father Fateh had divided his property amongst his sons was an admission which also bound other defendants ;
(b) that there was evidence of independent persons such as Abdul Rahman Lambardar, Abdul Aziz, Imam of the Mosque and Ahad Joo which proved that Fateh had divided his property amongst his sons 19 or 20 years back and put them in possession of their share and this evidence was sufficient to rebut the presumption in favour of the revenue record which was silent about partition of property by Fateh amongst his sons ;
(c) that as partition of the property by father was a family settlement, its registration was not necessary.
He, therefore, decreed the suit of the plaintiffs and granted them a declaratory decree in respect of the land as well as the houses on the basis of partition.
In the second appeal before me, it has been argued that Fateh could not transfer his property to his sons without a registered deed and secondly that the admission of Rehmatullah only binds him and not the other defendants. There is a great force in these contentions. Amongst Muslims the estate of a deceased devolves on his heirs at the moment of his death, and before that if any Muslim desires to transfer his property in the name of some body, he can do so only by a registered H deed. Section 17 of the Registration Act and section 123 of the Transfer of Property Act are clear on the point. In the present case it is admitted that the transfer in favour of his sons could only be made by way of gift by Fateh and accord ing to section 123 of the Transfer of Property Act it was necessary for the purpose of making a gift of immovable property to effect the transfer by a registered instrument signed by or on behalf of donor and attested by at least two witnesses. The learned District judge does not seem to have taken a correct view of the law in holding that registration was not necessary. The case would have been different had it been a Hindu family. Amongst Hindus, every member of the family has a share in the joint family property and if by mutual arrangement the joint property is partitioned, it may not be reduced to writing and registered because the partition does not create fresh ownership rights in the property for the joint owners. The learned District judge has relied on A I R 1930 Bom. 438 for holding the view that registra tion was not necessary, but it seems to have escaped his notice that it was a case under Hindu Law in which the alleged arrangement amounted to family settlement and not to a release‑ of share by any one. It was not, therefore, necessary in that case to get the settlement reduced to writing and get the writing registered. If the District judge had carefully read sections 9 and 123 of the Transfer of Property Act, he would not have come to this conclusion. I,' therefore, hold that if Fateh had divided his property amongst his son and transferred ownership in the land to them, he should have registered the transfer by reducing it into writing besides handing over possession of the same to his sons. As this was not done, the fact that Hidayatullah or his heirs remained in possession of the suit land for a long time would not help them because their possession cannot be construed as adverse possession being permissive in nature.
As regards the second point, it has been contended by the learned Counsel for the appellant that the admission of Rehmatullah that their father had in his life time divided his estate amongst his sons and handed over possession to them would not bind his co‑defendant Faqirullah appellant. He developed his arguments and stated that a distinction must be drawn between persons, who are jointly interested in the subject‑matter of the suit, and those who have no joint interest but a community of interest with each other the rule being that, in the former case, the admissions are receivable, but not in the latter. Thus admissions of tenants in common of co‑owners and co‑heirs are not receivable against others but an admission of a joint‑owner, made as such and at a time when the member held a joint interest in the property, is receivable against the other joint owners. This is a correct exposition of law and I have no hesitation in accepting it. In the present case, Rehmatullah who made the admission was never a joint owner with Faqirullah so that his admission should hind the latter.
The principle is that when several persons are jointly interested in the subject‑matter of the suit, an admission of any one of these persons is receivable not only against himself but also against the other provided that the admission relates G to the subject‑matter in dispute and be made by the declarant in his character of a person jointly interested with the persons against whom it is tendered. It is to be seen what the term jointly interested means. Joint interest in a co‑parcenership h is different from joint interest in a property which devolves by inheritance. In the case of inheritance the property devolves on death; it survives in the case of co‑parcenership. It is in the case of a joint interest as understood in co‑parcenership that an admission of one person jointly interested binds the other similarly Jointly interested. In the present case, both Rehmatullah defendant and Faqirullah defendant appellant had community of interest in the subject‑matter of the suit but no joint interest and, therefore, the admission of Rehmatullah does riot bind Faqirullah, the appellant. A I R 1926 Cal. 705 on which the learned District judge has relied does not apply to the present case. It was clearly held therein that the identity in legal interest between the joint owners was of fundamental importance. The, question is whether Rehmatuhah and Faqirullah were joint owners. They were not and, therefore, this ruling would not apply. The result is that the admission of Rehmatullah would only bind him and not Faqirulfah. Not much has been said with regard to the two houses on the suit land. I may admit that there is independent evidence on record that of Ahmad Joo, Ali Akbar and Abdul Aziz which proved that the two houses were built by Hidayatullah on the suit land and, therefore, I have no hesita tion in holding that the houses were built by Hidayatullah. The result of my findings as noted above is that the plaintiffs will retain out of the suit land only eight kanals and four sarsaees of land which would have gone to Rehmatullah but for his admission of the plaintiff's claim. In getting these eight kanals and four sarsaees, they would preferably have the area on which the two houses stand. Thus, the plaintiffs are granted a declaratory decree for eight kanals and four sarsaees of land along‑with two houses out of the suit land to the effect that they are owners of this. As for the remaining land, they are not considered entitled to it because Hidayatullah died during the life time of his father and, there fore, his Leirs cannot inherit in the presence of his brothers. Out of the remaining land, eight kanals and four sarsaees will go to Faqirullah, the appellant, and four kanals and two sarsaees each to the five sisters the defendants 3, 4, 5, 6 and 7 (respondents). The appeal of Faqirullah is accepted to this extent.
The parties will bear their own costs in this appeal.
K. M. A. Appeal partly accepted
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