| AS 7 / 1988 | / | CASE IS:DISPOSED |
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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY FIRST DAY OF AUGUST TWO THOUSAND AND TWELVE HON’BLE SRI JUSTICE G. BHAVANI PRASAD
A.S. No.7 of 1988 and Cross Objetions A.S. No.7 of 1988
Between: Mohammed Habeebuddin and others .... Appellants
And
B. Ramulu (Babu) & Mohd. Azam and others …. Respondents
Cross objections:
Between: B. Ramulu (Babu) alias Mohd. Azam ….
Cross Objector
And
Mohammed Habeebuddin and others …. Respondents
COMMON JUDGMENT:
Grant of preliminary decree in respect of plaint B schedule properties and dismissal of the suit in respect of plaint A and C schedule properties without costs by the judgment, dated 05-08-1987 in O.S. No.12 of 1984 on the file of the Subordinate Judge’s Court, Vikarabad led to filing of the appeal by plaintiffs 2 to 4 and cross-objections by the 3 rd defendant.
2. The facts leading to the appeal and the crossobjections are that the deceased 1 st plaintiff filed the suit for partition of plaint A, B and C schedule properties into three shares of 6/16, 6/16 and 4/16 and allotment of 6/16 th share to the 1 st plaintiff with costs.
3. The 1 st plaintiff claimed that one Mohd. Pasha had five sons— Abdul Quader, Sofi Mohd. Ali, Madar Sab, Gulam Rasool, the 2 nd defendant, and Abdul Wahab, the 1 st plaintiff. Abdul Quader had three sons—Abdul Ghani, Abdul Gafoor and Abdul Sattar who died issueless and Abdul Gafoor had two wives —Rasoolunnisa and B. Anthamma alias Jamal Bee, the 1 st defendant. Abdul Gafoor got plaint A and B schedule lands to his share in the partition from his father’s estate and he got the patta of plaint A schedule lands transferred in the name of his first wife, Rasoolunnisa Begum. Rasoolunnisa Begum died issueless in 1975 during the lifetime of Abdul Gafoor, who succeeded as her sole heir. Abdul Gafoor died issueless leaving the 1 st plaintiff and defendants 1 and 2 as his legal representatives. The parties belong to Hanafi Sect of Muslims and the widow, the 1 st defendant has 1/4 th share and the 1 st plaintiff and the 2 nd defendant have 6/16 th share each as residuaries in the suit properties. The 3 rd defendant now known as Mohd. Azam and previously known as Ramuloo, was born to Jamal Bee prior to her conversion into Islam and prior to her marriage with Abdul Gafoor. The 3 rd defendant not born to Abdul Gafoor is not entitled to any share in the suit properties. But the 1 st defendant in collusion with the Village Patwari and the 3 rd defendant, is bent upon denying the share of the 1 st plaintiff and the 2 nd defendant and made such denial on 01- 02-1977. Defendants 1 and 3 in wrongful possession of the suit lands, are in collusion and hence, the suit paying the Court fee under Section 34 (2) of the Andhra Pradesh Court Fees and Suits Valuation Act.
4. The 1 st plaintiff died after the suit and plaintiffs 2 to 4 were impleaded as his legal representatives. Defendants 4 to 6 were also impleaded and the 7 th defendant was impleaded as the legal representative of the 2 nd defendant who also died pending the suit. The 7 th defendant supported the 1 st plaintiff’s claim and further stated that Rasoolunnisa Begum was seriously sick due to paralysis and blood pressure for about one year and was bed ridden for about 6 to 7 months prior to her death due to the same sickness and that Abdul Gafoor was in possession and enjoyment of the suit lands. The 1 st defendant was being maintained by him. The 3 rd defendant was already born before the conversion of the 1 st defendant into Islam and her marriage with Abdul Gafoor in 1964.
5. While the other defendants remained ex parte, defendants 1 and 3 resisted the suit contending that the 3 rd defendant is the legitimate son of Abdul Gafoor and is a Muslim by birth and was not named Ramuloo at any time. Rasoolunissa Begum was the sole owner and possessor of plaint A schedule lands in survey Nos.150, 151 and 152 measuring Ac.12-38 guntas at Shivareddypet. She sold the land to the 1 st defendant under a sale deed, dated 19-03-1975 and the 1 st defendant owned and possessed the said property. Survey No.261 standing in the name of Abdul Gafoor is also his Matruka. Though Rasoolunnisa Begum died issueless in 1975, Abdul Gafoor had no right of succession in view of the sale deed. Abdul Gafoor died leaving his widow, the 1 st defendant, and son, the 3 rd defendant. The plaintiff and the 2 nd defendant have no right to claim any share. The 1 st defendant gets 1/8 th share and the remaining property goes to the 3 rd defendant. The 1 st defendant converted into Islam in 1954 and a private marriage took place in 1954 between the 1 st defendant and Abdul Gafoor in the presence of two witnesses as per Mahomedan law. The 3 rd defendant was born after marriage on 05-06-1956 and he was named Babu Miyan alias Mohd. Azam. On repeated demands of the 1 st defendant to avoid further complications, a marriage certificate was completed on 10-02-1964. Abdul Gafoor got the 3 rd defendant admitted into school and was signing on the progress reports and other school papers as father. He acknowledged his paternity in the Will and the Panchayat and the Tahsildar issued a certificate that Mohd. Azam alias Babu Miyan is son of Abdul Gafoor alias Nawab Saheb. There is other oral and documentary evidence to prove the same. The malicious suit is liable to be dismissed with costs and compensatory costs of Rs.5,000/- and the 3 rd defendant is in possession of the suit lands as heir and successor of Abdul Gafoor. The 1 st plaintiff was not in joint possession and is not entitled to pay fixed Court fee. He has to pay Court fee on the present value of more than Rs.2,00,000/-. The judgment passed in an earlier suit operates as res judicata and the suit is barred by limitation.
6. On such pleadings, the following issues were settled for trial:
1. Whether the plaint schedule properties are liable for partition ?
2. Whether the plaintiff is entitled to claim possession of the plaint schedule properties ?
3. To what relief ? Issues framed on 30-01-1984: 1. Whether the plaintiffs are entitled for partition of the suit properties as prayed for ? 2. To what relief ? Additional issues framed on 04-06-1986: 1. Whether late Abdul Gafoor was the absolute owner and possessor of the lands bearing S.Nos.150, 151 and 152, measuring Ac.12-38 guntas situated at Sivareddypet on the date of his death ? 2. Whether defendant No.1 has become owner of half of the land in S.Nos.150, 151 and 152 prior to the death of her husband Abdul Gafoor ?
3. Whether defendant No.1 is in possession of lands in S.Nos.150, 151 and 152 as owner ?
4. Whether the defendants 1 and 3 are heirs and successors of the deceased Abdul Gafoor, if so what is the effect on the present suit ?
5. Whether the Court fee paid is sufficient for want of joint possession of plaintiffs in the lands ?
6. To what relief ?
7. After examining P.Ws.1 to 5 and D.Ws.1 to 6 and marking Exs.A.1 to A.20, B.1 to B.37 and X.1 to X.4 during the trial, the trial Court rendered the impugned judgment presuming in favour of due execution and attestation of Ex.B.35 memorandum of gift under Section 90 of the Evidence Act, as the document was more than 30 years old coming from proper custody and considered the gift to be valid. Rasoolunnisa Begum, who paid land revenue for plaint A schedule lands, obtained loan from Land Mortgage Bank by mortgaging the said lands and resided in plaint C schedule house, was considered to have acquired title and to have sold half of plaint A schedule lands to the 1 st defendant under Ex.B.4 sale deed for Rs.2,000/-, attested by the 2 nd defendant and Abdul Gafoor. The pahanies, ryot pass book, land revenue receipts and house tax receipts led the trial Court to conclude in favour of defendants 1 and 3 in respect of plaint A schedule properties. While noting the admitted entitlement of the 1 st defendant as the wife of Abdul Gafoor to 1/4 th of the Matruka jointly, the trial Court considered the judgment in O.S. No.5 of 1977 not to operate as res judicata on the question of the 3 rd defendant being or not the son of Abdul Gafoor. The trial Court analysed the evidence of D.Ws.4 to 6 and considered it to be incredible and unsatisfactory about the alleged oral marriage between the 1 st defendant and Abdul Gafoor in 1954. Ex.A.18 copy of the 1 st defendant’s evidence in O.S. No.5 of 1977 was referred to as showing her admission about her marriage with Abdul Gafoor in 1964 and the trial Court disbelieved the oral marriage said to have taken place in 1954. The trial Court referred to Ex.B.36 school admission register, in which the date of birth was corrected from 05-06-1953 to 05-06-1956. If the date of birth was 05-06-1953, the 3 rd defendant could not have been born to Abdul Gafoor, even if the oral marriage in 1954 is true. The trial Court noted that the 1 st defendant was originally married to Mogulaih and when there is direct proof of the marriage in 1964, any acknowledgement by Abdul Gafoor prior to 1964 that the 3 rd defendant was his son, was considered not to lead to any presumption in favour of legitimacy. The trial Court observed that the alleged Will by Abdul Gafoor was not produced and concluded that the 3 rd defendant, who is not the legitimate son of Abdul Gafoor, cannot have any share in the suit properties. The trial Court also held that the plaintiffs in possession of some portion of the suit lands can be regarded as being in joint possession, entitled to pay fixed Court fee. Consequently, the trial Court directed partition of plaint B schedule lands only and dismissed the suit in respect of plaint A and C schedule properties without costs. 8. Plaintiffs 2 to 4 challenged the said judgment contending that Ex.B.35 is not admissible in evidence and the fictitious document brought into existence for the purpose of the suit was not 30 years old by the time of the suit to enable any presumption in its favour. The forged document was not acted upon as patta for the suit lands continued as earlier till 1954-55. Abdul Gafoor himself was in possession and enjoyment till his death and the suit survey numbers were not mentioned in Ex.B.35. The plaint C schedule property stood in the name of Abdul Gafoor in the Gram Panchayat record. The 1 st defendant and Rasoolunnisa Begum were not in a position to maintain themselves and were being maintained by Abdul Gafoor and any purchase of half of suit A schedule properties by the 1 st defendant is benami and unbelievable. The conclusion that Abdul Gafoor was not the owner and possessor of plaint A and C schedule properties at the time of his death, is erroneous and hence, the impugned judgment and decree be reversed and the suit be decreed as prayed for. 9. The 3 rd defendant in his cross-objections contended that the legal effect of Exs.B.1, B.9 to B.12 and B.13 was not considered and Exs.B.14 to B.16 cogently established the paternity of the 3 rd defendant. The effect of the documents is to show the 3 rd defendant to be the son of Abdul Gafoor who acknowledged the same and hence, the 3 rd defendant is entitled to 7/8 th share in plaint B schedule properties. The mere nomenclature of a person need not necessarily reflect his religion and defendants 1 and 3 should have been held to be the sole heirs of Abdul Gafoor. The oral evidence of D.Ws.1 to 5 was not correctly appreciated and the evidence of P.Ws.1 to 5 is unworthy of credit. There was no joint possession for the plaintiffs who should have paid Court fee on the market value and the suit ought to have been dismissed. Hence, the cross-objector sought for reversing the impugned judgment and decree to the extent they went against him. 10. The 3 rd appellant (4 th plaintiff) died pending the appeal and appellants 1 and 2 (plaintiffs 2 and 3) were recorded as her legal representatives. It was also recorded on 20-08-2010 on a memo by the appellants, dated 22-06-2009 that the 2 nd respondent died on 28-04-2009 leaving the 1 st respondent alone as his legal representative. However, in fact, it was the 1 st respondent to the appeal that died leaving the 2 nd respondent as her legal representative. 11. As defendants 4 to 7 were ex parte in the suit, they were stated to be not necessary parties and were not impleaded in the appeal. The 6 th defendant in the suit attempted to be impleaded in the appeal as the 5 th respondent by seeking to place reliance on the Xerox copy of a Will, dated 03-11-1954, the original of which was claimed to have been executed by Abdul Gafoor bequeathing Ac.7-16 guntas in S.No.29 of Burgupally to him and further claiming the summons in the suit to have been taken to a wrong address. The miscellaneous petitions filed by the 6 th defendant were not pursued and he did not take any steps to have the judgment and decree against him, which have become final, set aside against him. That apart, the said Ac.7-16 guntas in S.No.29 of Burgupally is item No.2 of plaint ‘B’ schedule property, which is not the subject matter of the appeal. Even the cross-objections of the 3 rd defendant are about his being held to have not been proved as the legitimate son of Abdul Gafoor but not otherwise about the plaint ‘B’ schedule property. The preliminary decree relating to plaint ‘B’ schedule property was stated to have been physically carried out in the meanwhile and became final, apart from the original Will not being produced. The 6 th defendant in the suit, hence, has no locus standi to intervene in the appeal. 12. Sri Mohd. Osman Shaheed, learned advocate for the appellants strenuously contended that Ex.B.35, which transfers title, required registration and is inadmissible in evidence. The survey numbers of plaint A schedule lands were not specified among the properties conveyed under Ex.B.35, though they were later mentioned in the body and the gift in lieu of dower was as though it was a bequest which cannot be made under Muslim law. The 1 st defendant was not present at the time of Ex.B.35 which was not registered as claimed by the 1 st defendant and no witness for Ex.B.35 was examined. Ex.B.35 was not referred to in the written statement of defendants 1 and 3 and no evidence in respect of the same is admissible. There was no evidence of any anterior oral gift. As Ex.B.35 was not proved and did not convey any title, Rasool Begum had no title to convey under Ex.B.4 to the 1 st defendant. The learned counsel further contended that the 1 st defendant, who was married to Moguliah and not divorced from him, filed a suit as wife of Moguliah in 1960. She deposed in her earlier suit that she was married to Abdul Gafoor on 10-02-1964 and there was no acceptable evidence of any valid marriage between the 1 st defendant and Abdul Gafoor in 1954, while the marriage in 1964 is admitted. If the 3 rd defendant was born in 1953 as originally shown in the school admission register, he was not, in any view, the legitimate son of Abdul Gafoor. In the absence of proof of any valid marriage in 1954, the 3 rd defendant, claimed to have been born in 1956 by defendants 1 and 3, could not have been the legitimate son of Abdul Gafoor. Any alleged acknowledgement of paternity by Abdul Gafoor cannot add respectability to the claim of legitimacy. Ex.A.5 judgment holding that Abdul Gafoor died issueless operates as res judicata and there was no reference to the alleged oral marriage in 1954 in the evidence in 1977 suit. The earlier admissions are relevant and the finding of the trial Court about the 3 rd defendant being not the son of Abdul Gafoor is unassailable. As mere marking of Ex.B.35 is no proof, the suit ought to have been decreed in favour of plaintiffs 2 to 4 and 7 th defendant in toto. 13. Sri Vilas V. Afzul Purkar, learned senior counsel for the cross-objector (as he then was) contended that the oral evidence adduced by defendants 1 and 3 clearly proved the marriage between the 1 st defendant and Abdul Gafoor in 1954. The independent evidence from the school record showed that Abdul Gafoor admitted the 3 rd defendant to be his son throughout and the acknowledgement of paternity by Abdul Gafoor cannot be questioned. Ex.B.35 is only a memorandum of gift not requiring registration and was acted upon by effecting mutation. Ex.B.4 attested by Abdul Gafoor himself conveyed half of plaint A schedule lands to the 1 st defendant and Exs.B.35 and B.4 remained unchallenged till now. Plaintiffs 2 to 4 and the 7 th defendant cannot claim any share when the wife and son of Abdul Gafoor are available. The plaintiffs themselves admitted that Rasoolunnisa owned survey Nos.150, 151 and 152 and they cannot challenge Ex.B.35. The admissions made by mistake and explained later are neither estoppel nor proof. The learned senior counsel argued that the proof of marriage between the 1 st defendant and Abdul Gafoor in 1954, the acknowledgement of paternity by Abdul Gafoor, the valid gift of plaint A schedule lands to Rasoolunnisa Begum endorsed by Ex.B.35 and the sale in favour of the 1 st defendant under Ex.B.4, make the suit untenable as a whole, and desired the cross-objections to be allowed and the suit to be dismissed in entirety. 14. The following points arise for consideration in the appeal and the cross-objections: 1. Whether the 3 rd defendant is the son of Abdul Gafoor ? 2. Whether the gift in favour of Rasoolunnisa Begum and the 1 st defendant by Abdul Gafoor and the sale by Rasoolunnisa Begum to the 1 st defendant are true, valid and binding on the plaintiffs and defendants 2 and 7 ? 3. To what shares the parties are entitled to in the suit schedule properties ? 4. To what relief ? 15. Point No.1: The 3 rd defendant is claimed to be the son of Abdul Gafoor through the 1 st defendant and was claimed to have been born on 05-06-1956. D.W.3, the Head Master of Upper Primary School, Sivareddypet, who produced the admission register of the school, referred to Ex.B.36 relevant entry relating to Babu Miyan, son of Nawab Saheb, who was admitted in the school on 01-08-1960 in class-I and studied up to VII class till 06-10-1969. He admitted that the date of birth in column No.11 was corrected from the year ‘1953’ to ‘1956’ by correcting the figure ‘3’ as figure ‘6’. He also admitted the correction to have been made with different ink and to have not been initialled by anybody. He further admitted that the admission register does not bear the seal of the school and that at the time of annual inspection by the Deputy Inspector of Schools, he will instruct the Head Master to attest any over writing before signing in the register on verification and putting their seal. He also admitted that it was not specified in column No.5 as to whether Nawab Sab was the father or the guardian and he does not know who was the Head Master in 1960. He also stated that he issued Ex.B.13 Bonafide certificate on the basis of Ex.B.36 only. There is no other evidence on this aspect and in the face of the admitted correction of the year of birth from 1953 to 1956, which remained unexplained, the original entry of the date of birth of the 3 rd defendant as 05-06-1953 in 1960 cannot be ignored. If the 3 rd defendant was born on 05-06-1953, he could not have been the son of Abdul Gafoor, is evident from the specific case of defendants 1 and 3 that the 1 st defendant started living with Abdul Gafoor in cohabitation only after her oral marriage with Abdul Gafoor in 1954. 16. If the date of birth of the 3 rd defendant were to be taken as 05-06-1956, then the question of truth and proof of oral marriage of the 1 st defendant with Abdul Gafoor in 1954 assumes relevance. D.Ws.4 to 6 were examined in corroboration of the claim of the alleged oral marriage in 1954. D.Ws.4 to 6 claimed that the marriage of Abdul Gafoor with the 1 st defendant was celebrated in the house of Abdul Gafoor in 1954 in the presence of themselves, Rasoolunnisa Begum, Hayat Bee, Alam Bee and some others. While the ‘some others’ were not named by the three witnesses, D.Ws.4 to 6 claimed that Abdul Gafoor told that he was getting the 1 st defendant converted into Islam and marrying her and that they enquired the 1 st defendant whether she was prepared to embrace Islam and marry Abdul Gafoor, for which she positively responded. They claimed that Abdul Gafoor administered Kaleema to the 1 st defendant and named her as Jamal Bee and married her, from which day the 1 st defendant was living with Abdul Gafoor as his wife. D.Ws.4 to 6 admitted that in 1964 P.W.4 officiated the marriage of the 1 st defendant with Abdul Gafoor in the presence of village elders under a Nikhanama. D.W.4, while admitting that the previous name of the 1 st defendant was Begari Anthamma, does not know whether she was the wife of Begari Moguliah and whether she filed a suit describing herself as the wife of Moguliah in 1960. D.W.4, who claimed that the 3 rd defendant was born to Abdul Gafoor two years later and that Abdul Gafoor educated and brought up the 3 rd defendant, admitting him into a school, does not know the native place of the 1 st defendant or her father or her family affairs. He does not remember even the date of his own son’s marriage while remembering the details of the 1 st defendant’s oral marriage. D.W.5 also does not remember the dates of his own marriage or marriages of his daughter and two sons. D.W.5 also admitted that the Mosque Committee passed a resolution boycotting him from social functions, though he claimed it to have been not observed by the villagers. He could not give the date or Hijri year of the marriage of the 1 st defendant with Abdul Gafoor and does not know about her father, brother or sister. While he claimed one Ahmed Hussain or Mohd. Hussain to be the Murshed of the 1 st defendant, he does not know whether the 1 st defendant was converted by her Murshed into Islam in 1964. He also does not know whether the 1 st defendant filed a suit in 1960 describing herself as the wife of Moguliah. D.W.6 is the brother of Rasoolunnisa Begum and he claimed to have ascertained the willingness of Rasoolunnisa Begum for the marriage of Abdul Gafoor with the 1 st defendant, about which D.Ws.4 and 5 did not state. The alleged expression of willingness by Rasoolunnisa Begum due to her being issueless at the time of the marriage, was not even stated by the 1 st defendant and is uncorroborated. While D.W.5 did not state about Abdul Gafoor bringing up and educating the 3 rd defendant as claimed by D.Ws.4 and 6, D.W.6 further claimed that he had seen Abdul Gafoor signing the progress reports of the 3 rd defendant during his visits to Abdul Gafoor’s house. D.W.6 was not working at Sivareddypet in 1954, but was working as a teacher in Siddaloor. D.W.6 could not give the date or year of the marriage of his own sister Rasoolunnisa Begum. D.W.6 does not know the names of the husbands of Hayat Bee and Alam Bee allegedly present at the time of the marriage and he claimed that Abdul Gafoor himself told the names of the two women. He also stated that D.Ws.4 and 5 were known to him only from the date of the marriage. D.Ws.4 to 6 admitted the marriages in their families to have been in the presence of a Khaji and did not give any reason as to why such a common practice was not followed when the 1 st defendant married Abdul Gafoor. They also did not state as to what necessitated the performance of marriage before a Khaji under Nikhanama again in 1964. D.W.6 does not know the nativity of the 1 st defendant or whether Abdul Hussain was her Murshed. He also does not know whether the 1 st defendant filed a suit in 1960 describing herself as the wife of Moguliah. 17. Oral evidence like that of D.Ws.4 to 6 is easy to procure, but can be acted upon only if satisfactorily corroborated and probablised by other circumstances, but not solely on its own. 18. The 1 st defendant herself as D.W.1 did not state about any others being present apart from those named by her and D.Ws.4 to 6 unlike D.Ws.4 to 6 and she admitted that she was born at Godamguda to Hanmanthu and has a sister Naramma and brother Balaiah. Though she tried to claim ignorance as to whether her marriage was celebrated with Moguliah, she admitted filing the suit 11/1 of 1960 on the file of the District Munsif Court, Vikarabad in respect of her father’s lands and house. Though she admitted the contents of the plaint to be correct in the first instance, she later tried to claim ignorance of such contents. She also admitted that she did not file any petition in that suit to amend the name of her husband, though she denied describing herself in that suit as the wife of Moguliah. She claimed to have come into contact with Abdul Gafoor about 35 years earlier at Godamguda, which takes it to about 1951 and she could not say how many years after the police action her marriage with Abdul Gafoor took place or how many years after the gift in favour of Rasoolunnisa Begum. Of course, she claimed to be about 19 to 21 years of age by the time of her marriage about 32 years earlier and Abdul Gafoor to have died about 23 or 24 years after their marriage, while she was 52 years old by the time of her evidence, which more or less tallies with her claims of her oral marriage in 1954. The 1 st defendant admitted that she did not get it mentioned in Ex.A.1 Nikhanama of 1964 that her marriage with Abdul Gafoor already took place about 10 to 12 years earlier. She admitted that one Syed Ahmed Hussain was her Murshed and it was not stated whether he was alive, but he was not examined. She claimed that Abdul Gafoor married her, as Rasoolunnisa Begum had no issues. Though Kamroddin, one of the witnesses to Nikhanama Ex.A.1, was admittedly alive, he was not examined to show the circumstances necessitating a marriage ceremony again after 10 years. She tried to deny Ex.A.18 portion in her deposition as P.W.1 in O.S. No.5 of 1977 on the file of the District Munsif’s Court, Vikarabad, in which she stated that she was married to Abdul Gafoor on 10-02-1964 at Sivareddypet, after claiming ignorance in the first instance. She admitted that there was no Khaji at the time of her marriage 32 years earlier and no dinner and her claim that mahr was fixed at Rs.350/- and two dinars, was not stated by D.Ws.4 to 6. While she stated that there was no divorce between her and Abdul Gafoor after the first marriage, she admitted that O.S. No.5 of 1977 filed by her and her son was dismissed although interim injunction was granted earlier. While she admitted that she filed the suit in 1960 to claim property from her brother describing herself as Anthamma, wife of Moguliah on the information given by her father, she claimed to have never seen or lived with Moguliah, which is but unnatural and she had to admit that her father told her that she was given in marriage to Moguliah when she was 5 or 6 years old and her claim that Abdul Gafoor asked her not to prosecute the suit, is uncorroborated. The claim that Nikhanama in 1964 was undergone for the purpose of record at the instance of the villagers, is uncorroborated by any such villagers or relations and the self-serving and interested claims of the 1 st defendant require satisfactory independent corroboration before acceptance as a rule of prudence. 19. P.W.4 officiated as Khaji at the marriage of Abdul Gafoor with the 1 st defendant and he brought the register of marriages containing Ex.X.1 entry regarding the marriage of Abdul Gafoor with the 1 st defendant on 10-02-1964. He was not present when the 1 st defendant embraced Islam on the date of the marriage, though he stated that Syed Ahmed Hussain, a Murshed, converted the 1 st defendant into Islam and baptized her as Jamal Bee. He stated the marriage under Ex.X.1 to be the first marriage of Jamal Bee. The performance of the marriage by P.W.4 on 10- 02-1964 is admitted by defendants 1 and 3. Ex.X.1 is the marriage certificate, the true translation into English of which shows that in the Column ‘first or second Nikha of the bride’, the marriage was mentioned to be the first Nikha of the bride. There was no notes regarding first Nikha, for which a provision was made in the certificate. While the recording of the marriage between Abdul Gafoor and the 1 st defendant on 10-02-1964 under Ex.X.1 is admitted, Ex.X.1, thus, gives no indication of the alleged oral marriage between Abdul Gafoor and the 1 st defendant ten years earlier in 1954. Ex.A.19 and Ex.A.20 are the Fatwas about the invalidity of any marriage between Abdul Gafoor and the 1 st defendant under Muslim law, if the 1 st defendant did not embrace Islam prior to the said marriage and a contrary opinion is expressed in another Fatwa stating that the performance of the marriage under Ex.X.1 will have no effect on the validity of the first marriage in 1954 and that the relationship between Abdul Gafoor and the 1 st defendant was that of husband and wife. P.W.4 admitted Ex.B.1 booklet of Nikhanama issued to the 3 rd defendant for his marriage written in his own hand and under his signature, in which the 3 rd defendant was described as Mohd. Azam, son of Mohd. Abdul Gafoor alias Nawab. But he explained that the 3 rd defendant gave the father’s name, which was written in Ex.B.1. Though P.W.4 admitted that Abdul Gafoor was present at the time of Ex.B.1, the same is no proof of the legitimacy of the 3 rd defendant, when the question is not whether Abdul Gafoor acknowledged the paternity of the 3 rd defendant, but whether the paternity of Abdul Gafoor was physically and factually possible at all. 20. The 3 rd defendant as D.W.2 produced Exs.B.9 to B.12 progress reports signed by Abdul Gafoor, Ex.B.13 certificate of studies, Ex.B.14 transfer certificate, Ex.B.15 nativity certificate and Ex.B.16 progress report to corroborate his claim that Abdul Gafoor got him admitted in the school and was signing in various documents as his father. 21. The 2 nd plaintiff as P.W.1 claimed that the 1 st defendant embraced Islam and married Abdul Gafoor in 1964 by which time the 3 rd defendant, born to the 1 st defendant through Moguliah, her first husband, was 8 or 9 years old. He claimed the original name of the 3 rd defendant to be Begari Ramoolu and referred to O.S. No.11/1/60 in which the 1 st defendant described herself as the wife of Moguliah as seen from Ex.A.4 certified copy of the plaint. He claimed that there cannot be any private marriages among Muslims whose marriages will be performed only by khajis on written Nikhanamas and he also filed Ex.A.5 certified copy of the judgment in O.S. No.5 of 1977 claiming that it was decided therein that Abdul Gafoor died issueless. P.W.1, the first cousin of Abdul Gafoor, admitted that the plaint mentioned the name of the father of the 3 rd defendant as ‘not known’ and that it was not pleaded that the 3 rd defendant was born to Moguliah. He also admitted that he has no record to show that the 3 rd defendant was known as Ramoolu and that Abdul Gafoor and defendants 1 and 3 were residing together after the marriage of the 1 st defendant with Abdul Gafoor. He could not say whether the 3 rd defendant was born in 1956, but denied the 1 st defendant living with Abdul Gafoor as his wife since 1954 or the 1 st defendant embracing Islam in 1954. He further admitted that it may be correct that a Muslim marriage can be gone through in the presence of two adult witnesses and need not be in writing. He also admitted not seeing Moguliah and not knowing him and also not knowing the circumstances under which O.S. No.11/1/60 was filed. He also admitted that Ex.A.5 judgment might have observed that the 1 st defendant was having the 3 rd defendant as her son through Abdul Gafoor and that the entitlement of the 3 rd defendant to any share has to be decided in a separate suit for partition. 22. P.W.2 claimed that Abdul Gafoor, the son of his mother’s brother, did not beget any children through the 1 st defendant and that when he saw Abdul Gafoor and the 1 st defendant in 1967, the 3 rd defendant was about 10 years old. He also claimed that he was visiting Abdul Gafoor whenever he went to Shivareddypet, but he did not see the 1 st defendant in the house of Abdul Gafoor in 1964 or 1965. Though he denied the 1 st defendant marrying Abdul Gafoor in 1954 and living with him since then, he was not aware whether the 3 rd defendant was born to the 1 st defendant through Abdul Gafoor in 1956. 23. P.W.5 claimed that the 1 st defendant’s marriage with Abdul Gafoor was performed about 20 or 22 years earlier and that Abdul Gafoor had no issues through his two wives. He claimed to have attended the marriage of the 1 st defendant with Abdul Gafoor, but does not know the relationship between Abdul Gafoor and the 1 st defendant prior to that marriage or whether the 3 rd defendant was born to Abdul Gafoor through the 1 st defendant. 24. In Ex.A.4 plaint in Case No.11/1/60 on the file of the Munsif Magistrate, Vikarabad dated 22-06-1960, the 1 st defendant was described as Begari Anthamma, wife of Moguliah, aged 38 years. The 1 st defendant filed the suit against her brother and father for recovery of possession of land. Ex.A.6 is the certified copy of the decree in the said suit dated 19-09-1960 with the same description and the suit was dismissed as withdrawn with permission to file a fresh suit. Exs.A.4 and A.6 do not fit in with the claim of the 1 st defendant being married to Abdul Gafoor in 1954 itself. 25. Ex.A.5 is the certified copy of the judgment in O.S. No.5 of 1977, dated 31-07-1978 between defendants 1 and 3 herein as plaintiffs and the 1 st plaintiff and the 2 nd defendant herein and others as defendants. The judgment, in which the pleadings were extracted, shows that the 3 rd defendant was claimed to be the son of Abdul Gafoor through the 1 st defendant. The defendants therein specifically claimed that Abdul Gafoor died issueless and that the 3 rd defendant is the son of Begari Moguliah and the 1 st defendant and was named as Ramoolu, whereas the 1 st defendant married Abdul Gafoor later and embraced Islam on 10-02-1964 at Shivareddypet. Specific issues were framed as to whether Abdul Gafoor died issueless and whether the 3 rd defendant is the son of Abdul Gafoor. The trial Court noted that it is an admitted fact that late Abdul Gafoor died issueless and that no issue was born to either Rasoolunnisa Begum or Jamal Bee, the 1 st defendant herein. The trial Court also noted that no evidence was led to prove that the 3 rd defendant herein was born through Abdul Gafoor and that P.Ws.2 to 4 therein did not say that the 3 rd defendant herein is the son of Abdul Gafoor. As the entire evidence of both parties showed that Abdul Gafoor died issueless, the trial Court held accordingly and further held that in view of the said finding, the issue whether the 3 rd defendant herein is the son of Abdul Gafoor did not arise. However, the trial Court noted in its other findings that it is an admitted fact that the 1 st defendant herein is the widow of Abdul Gafoor and that whether defendants 1 and 3 herein can succeed to the property of Rasoolunnisa Begum, is a question of fact to be decided in a suit for partition. The trial Court also observed that the limited question in that suit was whether the plaintiffs are the owners and what was the evidence to justify their ownership. The trial Court further observed that whether the 1 st defendant herein was having a son, the 3 rd defendant herein, at the time of her marriage, has also to be decided as and when the Matruka is to be partitioned. Again it was observed that so far as the share of the 3 rd defendant herein is concerned, it has to be decided in a suit for partition of Matruka property and the question whether he is the son of Begari Moguliah or the son of Abdul Gafoor has to be decided in that suit and the same was not relevant therein, in the suit for perpetual injunction. The trial Court also noted that the suit filed by the defendants therein for partition against the 1 st defendant herein was pending, but still went on to hold that Abdul Gafoor died issueless claiming the same to be an admitted fact, while it was clear from the pleadings and evidence extracted in the judgment that the same was never admitted and that it was the specific claim of defendants 1 and 3 herein that the 3 rd defendant herein is the son of Abdul Gafoor and the 1 st defendant herein. The judgment in O.S. No.5 of 1977 admittedly remained unchallenged and has become final. 26. The certified copy of deposition of the 1 st defendant herein as P.W.1 in O.S. No.5 of 1977 shows in Ex.A.18 that she admitted her name being Begari Anthamma previously and that she filed the earlier suit against her mother and brother for partition. She deposed on 08-02-1978 that she married Abdul Gafoor at Shivareddypet 12 years earlier. Though she again stated that she does not remember how many years passed after the marriage, that takes the marriage to about 1966 and she did not state about any earlier oral marriage. She admitted giving her correct name and address in the partition suit against her brother and she further specifically admitted that she was married to Abdul Gafoor at Shivareddypet on 10-02-1964. Thus, O.S. No.11/1/60 and O.S. No.5 of 1977 including the evidence of the 1 st defendant herein as P.W.1 therein do not corroborate the claim of the earlier oral marriage between the 1 st defendant herein and Abdul Gafoor earlier to the admitted marriage on 10-02-1964. 27. The learned senior counsel for defendants 1 and 3 referred to Muslim Law by Tyabji, Fourth Edition, pages 49 and 50 to show that the only requirement for a contract of marriage is unequivocal declaration and acceptance, uttered at one meeting in the presence of two witnesses and such a marriage which is a purely civil contract, need not be in the presence of a Mulla or Kaji. The same text book at page 544 while referring to the usual practice in India of a Mulla or Kaji officiating at the marriage contract and to recite benedictions, etc., specified that a marriage not performed in the mode usually in the community would have to be more strictly proved. It is admitted in the present case that the usual practice of the presence of a Mulla or Kaji was admittedly not followed at the time of the alleged marriage in 1954, which, therefore, requires to be more strictly proved. The learned senior counsel also referred to Mulla’s Principles of Mahomedan Law, Nineteenth Edition, Chapter XIV (A) at Notes 252 and 259 about essentials of marriage and difference of religion. 28. The learned senior counsel also referred to the acknowledgement of paternity referred to in Muslim Law by Tyabji, Fourth Edition from page 206 onwards and it is true that the paternity of a child was stated to be presumed in any man, who acknowledges it with the intention of admitting that it has been established. But the same was stated to be subject to compliance with five conditions. The first of the conditions is that the paternity of the child is not established in anyone else and the 4 th of the conditions is that the man could, at the time when the child was begotten, have lawfully been the husband of its mother, which implies that it has not been proved that the child is the offspring of illicit intercourse; and that the alleged marriage has not been disproved. The 5 th condition is that the acknowledgement is not merely of sonship, but of legitimate sonship, which has to be inferred from the circumstances justifying such inference. The rule laid down by the Privy Council was also referred to therein which makes such a statement or acknowledgement substantive evidence on that aspect and thus, the paternity of the 3 rd defendant can be presumed on the supposed acknowledgement of Abdul Gafoor, only if Abdul Gafoor could have been husband of the 1 st defendant lawfully when the 3 rd defendant was begotten and only when the alleged marriage between Abdul Gafoor and the 1 st defendant was not disproved. As laid down by the Privy Council, mere acknowledgement by itself cannot make the 3 rd defendant legitimate son of Abdul Gafoor, which acknowledgement may be substantive evidence only, if there is no other proof. The oral and documentary evidence on record does not run consistently with any presence of such legitimacy solely on the alleged acknowledgement of Abdul Gafoor in the light of various other circumstances referred to above. 29. It is true that in Syed Amanullah Hussain (died) and others v. Rajamma and others [1] , the legal position with regard to marriage and legitimacy under Mohamedan Law was dealt with and it was noticed that neither any rite nor any religious ceremony is essential. All that is necessary is that there should be a proposal and an acceptance in the presence of witnesses. It was also stated that a marriage may be established by direct proof or by indirect proof and it may be presumed from prolonged cohabitation combined with other circumstances or from acknowledgement of legitimacy in favour of a child or the fact of the acknowledgement by the man of the woman as his wife. However, it was made clear that it is true that the presumption does not apply, if the conduct of the parties is inconsistent with the relationship of the husband and wife. But if there is no impediment for a lawful marriage, such presumption will be raised by the aforesaid circumstances. The learned Judge also made it clear that acknowledgement doctrine does not apply to a case where illegitimacy of the child is proved and established either because the lawful union between the parents of the child is impossible or the marriage itself being disproved. The doctrine applies only to a case where the fact of marriage is not proved as distinguished from disproved. In other words, it applies to cases of uncertainty. Among other things, it was also observed that the person acknowledged must not be known to be the child of another man. To the same effect are the principles referred to in Chapter VI on parentage in Muslim Law by Tyabji, Fourth Edition. 30. If these tests are kept in view, the probability is that the 3 rd defendant might have been born on 05-06-1953 as originally entered as his date of birth in Ex.B.36 entry in the admission register of his school. The 3 rd defendant can never claim to be the legitimate son of Abdul Gafoor through the 1 st defendant, either the oral marriage in 1954 or the recorded marriage in 1964 pleaded in defence being subsequent to his birth. The oral marriage in 1954 as sought to be proved by the corroborating evidence of D.Ws.4 to 6 does not appear to merit acceptance in view of the proceedings in O.S. No.11/1/1960 and O.S. No.5 of 1977 apart from the various other circumstances arising out of the evidence referred to in detail above. The admitted performance of the marriage of Abdul Gafoor and the 3 rd defendant by P.W.4 on 10-02-1964 as per Ex.X.1 certificate and the contents of Ex.X.1 certificate tend to discredit any earlier oral marriage in 1954, the contents of Exs.A.19 and A.20 Fatwas about the validity or invalidity of the marriages becoming irrelevant to that extent. The admissions in O.S. No.11/1/1960 and O.S. No.5 of 1977 referred to in detail will have a negative impact on the defence of defendants 1 and 3. 31. In Mohd. Serai v. Adibar Rahaman [2] , it was held: “Suits may come and go, withdrawn with or without liberty to sue afresh, dismissed or decreed, — no matter which, — but statements made therein, — no matter where, in pleadings, petitions, affidavits, or evidence — remain for ever, and for all purposes too, allowed by law, such as to be proceeded with as admissions, when they are found to be such, so long as they are not rebutted, (section 17 etc seq., Evidence Act), or to be confronted with under S. 145 ibid. Otherwise the court, no less the party interested, will be deprived of very valuable evidence, nothing to say of a premium being put on reckless allegations with no apprehension of the makers thereof coming to grief in future for such glibness.” 32. I n Salah Bin Ahmed v. Abdullah Bin Ewaz Hamidan [3] , it was held that if from the facts it could be shown that the admission was wrong, it would fail to have any effect. It is only prima facie evidence against the party making the admission and shifts the burden of proof to the other party if it is proved directly or circumstantially that it was made under mistake of law or fact. 33. Basant Singh v. Janki Singh and others [4] is also relating to an admission by a party in a plaint signed and verified by him, which may be used as evidence against him in other suits, though it cannot be regarded as conclusive and it is open to the party to show that it is not true. If the party knew the fact admitted and it is not shown to be untrue or to have been made under some error or misapprehension, it must be regarded as a strong piece of evidence. 34. The decision in State of W.B. v. Hemant Kumar Bhattacharjee and others [5] was relied on regarding the effect of the judgment and decree in O.S. No.5 of 1977 on the present suit and it was held therein that a wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review, which the law provides. 35. Mahalingeshwara Devaru and another v. Seetharama Bhatta and another [6] was also to the same effect stating that the principle of res judicata is not effected by a subsequent view taken by a superior Court in any other case and the earlier judgment does not become anytheless final and binding between the parties and its legal effect remains the same whether the reason for the decision was sound or not, even if the earlier judgment was found to be wrong in the later judgment of the superior Court. Similar was the decision in Abdul Wasey v. State of U.P. and others [7] , wherein also it was held that even if the decision in the earlier proceedings be wrong, still it will operate as res judicata in the subsequent proceedings provided the necessary conditions for the applicability of the principle are satisfied. I n Maheshwari Prasad and others v. Shiv Shankar Prasad and others [8] , the principle that if necessary evidence is on the record and although the plea of res judicata was not specifically taken in the written statement nor any issue was raised, such a question being a pure question of law, can be raised at any stage of the proceedings. It was also held that even if a party might have waived the plea in the lower Court, it may revive it at the appellate stage of the same case. I n Pawan Kumar Gupta v. Rochiram Nagdeo [9] , it was made clear that it is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. In that case, though the word ‘dismissed’ has been employed in the last paragraph of the judgment, a reading of it as a whole showed that the plaintiff had won the suit and the dismissal was solely because the amount claimed was deposited by the defendant during the pendency of the suit. Concluding the legal position, it was stated that the decision made in the suit on a vital issue involved therein would operate as a res judicata in the subsequent suit between the same parties, if the dismissal of the suit was on account of the extinguishment of the cause of action or any other similar cause. 36. The trial Court, of course, did not conclude O.S. No.11/1/1960 or O.S. No.5 of 1977 to be resulting in any estoppel or res judicata, but concluded on appreciation of oral evidence that it is difficult to be persuaded to accept that oral marriage between the 1 st defendant and Abdul Gafoor in 1954 and a Nikhanama was completed in 1964 only for the purpose of record and to avoid complications in future. The trial Court also concluded after elaborate discussion that the 3 rd defendant is not the legitimate son of Abdul Gafoor and cannot be a legal heir to his Matruka, though the 1 st defendant is the legally wedded wife of Abdul Gafoor in 1964. For the various reasons discussed herein, there is no ostensible reason to differ from the conclusion of the trial Court in this regard. Whether the 3 rd defendant was born on 05-06-1953 or whether the marriage between the 1 st defendant and Abdul Gafoor was performed on 10-02-1964, the 3 rd defendant can never be considered to be the legitimate child of the 1 st defendant and Abdul Gafoor and without replication of the various facts and circumstances all over again, this point is to be answered that it is not proved that the 3 rd defendant is the legitimate son of Abdul Gafoor and consequently, the question of any acknowledgement of paternity by Abdul Gafoor is irrelevant even if Abdul Gafoor acknowledged the 3 rd defendant as his son and treated him as such since his marriage with the 1 st defendant, the same adds no respectability and acceptability to the legal status of the 3 rd defendant as the legitimate child of Abdul Gafoor. 37. Point No.2: The plaint alleged that Abdul Gafoor got the patta for plaint A schedule lands transferred in the name of his first wife Rasoolunnisa Begum while he got them in the partition from his father’s estate and that Abdul Gafoor succeeded to Rasoolunnisa Begum as her sole heir on her death issueless during his life time in 1975. 38. Defendants 1 and 3 in their written statement admitted that Rasoolunnisa Begum died issueless during the life of Abdul Gafoor, but claimed that Rasoolunnisa Begum was the sole owner and possessor of plaint A schedule lands, which she sold to the 1 st defendant under a sale deed dated 19-03-1975, due to which the said lands are owned and possessed by the 1 st defendant. They, hence, denied Abdul Gafoor succeeding to plaint A schedule lands. The written statement made no reference to any gift of plaint A schedule lands to Rasoolunnisa Begum by Abdul Gafoor or Rasoolunnisa Begum getting only half of the plaint A schedule lands in case of Abdul Gafoor’s second marriage, with the second wife getting the other half of the lands. 39. The 7 th defendant claimed Rasoolunnisa Begum to be seriously sick and bedridden for about 6 to 7 months prior to her death and Abdul Gafoor to be in enjoyment of the suit lands on succeeding to the estate of Rasoolunnisa Begum. 40. The 2 nd plaintiff as P.W.1 claimed that the suit lands devolved on Abdul Gafoor being the share of his father got in partition between the 1 st plaintiff, the 2 nd defendant, Mohd. Abdul Khader and the father of Abdul Gafoor. He claimed that though Abdul Gafoor got the patta for plaint A schedule properties in the name of Rasoolunnisa Begum, his first wife, the transfer of patta was nominal with no concern for Rasoolunnisa Begum concerning title or possession. Rasoolunnisa Begum died in 1975 without issues, her death extract being Ex.A.3, leaving Abdul Gafoor as her heir. Abdul Gafoor died on 01-01-1977 as per Ex.A.2 death extract and he had no issues or heirs, except the 1 st defendant, his second wife, married in 1964. P.W.1 further claimed that Rasoolunnisa Begum was seriously ill before her death and was not in a position to sit or move about and she could not have alienated the plaint A schedule lands, in which she has no right or interest. He claimed that the 1 st defendant will get one-fourth share in the suit properties and the remaining three-fourth share has to be divided equally between the plaintiffs and the 7 th defendant, the legal representative of the deceased 2 nd defendant. He filed Exs.A.7 to A.11 certified copies of pahanies in respect of plaint A schedule properties relating to fasli 1357, 1951, 1952, 1953-54 and 1982-83 years respectively, apart from Ex.A.12 Chowfasla for the year 1975-76, Ex.A.14 faisal patti for 1956 and Ex.A.15 pahani for 1975-76. Though he admitted that the plaint mentioned that the patta for plaint A schedule lands was transferred by Abdul Gafoor in the name of Rasoolunnisa Begum, he denied Rasoolunnisa Begum owning the said property and though he had no document relating to the partition between his father and his brothers, he admitted coming to know about Rasoolunnisa Begum selling half of the plaint A schedule properties to the 1 st defendant under Ex.B.4 registered sale deed and while claiming Ac.0.20 guntas in S.No.152 to be in his possession as shown in Ex.A.11, he denied Abdul Gafoor executing any Will in his life time stating that in case he marries another woman, the suit properties will devolve on both his wives equally or that the 1 st defendant became the absolute owner in respect of half of the plaint A schedule properties by virtue of a sale deed by Rasoolunnisa Begum and the remaining half of the plaint A schedule properties under the Will executed by Abdul Gafoor. P.W.2 claiming Abdul Gafoor to be his maternal uncle’s son, stated about the suit lands falling to the share of Abdul Gafoor in the partition and his having two wives and Rasoolunnisa Begum having no concern with the title of the plaint A schedule properties. Though he admitted that he was not present at the time of partition or saw any document relating to the same, he asserted that they are not the absolute properties of Rasoolunnisa Begum, even if the patta for 12 or 13 acres of wet land stood in her name. He, of course, does not know about her selling half of the plaint A schedule properties to the 1 st defendant. 41. P.W.3, who was police Patel and Mali Patel of Sivareddypet till 1984 for 35 years, also stated about the partition and he claimed that the plaint C schedule house stood in the name of Abdul Gafoor in the Gram Panchayat records. He also stated that the suit lands are not the self-acquired properties of Rasoolunnisa Begum. 42. P.W.5 is one of the purchasers of the properties from the 1 st plaintiff and the 2 nd defendant under Ex.X.2 and he filed Ex.X.3 pahani for 1954-55 in respect of S.Nos.141 and 144/1 of Sivareddypet and Ex.X.4 ryot passbook issued to him. While he does not know personally about the acquisition and title of the suit lands and suit house, he does not know whether Abdul Gafoor gifted some of his properties to Rasoolunnisa Begum or when he married Rasoolunnisa Begum or whether Rasoolunnisa Begum sold half of her share to the 1 st defendant. 43. The 1 st defendant as D.W.1 claimed that Abdul Gafoor executed a gift deed bequeathing about Ac.12.38 guntas of Sivareddypet in favour of Rasoolunnisa Begum towards payment of dower, in which it was also recited that in the event of his marrying a second wife, both the wives will be entitled to equal shares out of the said Ac.12.38 guntas. She claimed the plaint C schedule house also to be part of the gift deed and that Rasoolunnisa Begum sold her half share to her under the original of Ex.B.4 registered sale deed, dated 19-03-1975. She also filed Ex.B.6 pahani and Exs.B.7 and B.8 ryot passbooks issued in her favour and claimed to be in possession of the entire plaint A schedule properties and other properties. While she spoke in detail about the various properties since the times of her father-inlaw, she claimed to have purchased the lands under Ex.B.4 for Rs.2,000/-, for which Munnu Patel and Rahimoddin and Abdul Gafoor were witnesses. The lands were stated to be the gifted properties of Rasoolunnisa Begum in Ex.B.4 and she stated that the gift in favour of Rasoolunnisa Begum by Abdul Gafoor was registered and she admitted that no appeal was filed against the dismissal of O.S. No.5 of 1977. She admitted to be having no disputes with P.Ws.3 to 5 indicating that their evidence need not be discredited. 44. The 3 rd defendant as D.W.2 claimed that Abdul Gafoor, his father gave the entire suit properties to Rasoolunnisa Begam in lieu of dower and executed a document in her favour stating that in case of his contracting a second marriage, the second wife and Rasoolunnisa Begum should share the property equally. He claimed that Rasoolunnisa Begum sold her half share of the plaint A schedule properties to D.W.1 under the original of Ex.B.4. He produced Exs.B.17 to B.20 house tax demand notices and receipt, Ex.B.21 land revenue receipt in favour of Rasoolunnisa Begum, Ex.B.22 land revenue receipt in favour of Abdul Gafoor, Exs.B.23 to B.27 receipts showing repayment of loan to Vikarabad Co-operative Land Mortgage Bank by Rasoolunnisa Begum to discharge the mortgage of the plaint A schedule property, Ex.B.28 clearance certificate issued by the bank, Exs.B.29 to B.33 land revenue receipts paid by the 1 st defendant and Ex.B.34 house tax receipt paid by his father in support of his claims and he relied on Ex.B.35 memorandum of gift executed by Abdul Gafoor in favour of Rasoolunnisa Begum. He admitted that he does not know the scribe of Ex.B.35 or the attestors and he explained that the survey numbers mentioned in Ex.B.35 are old survey numbers corresponding to S.Nos.150, 151 and 152. He denied not pleading in their written statement about the gift by Abdul Gafoor to Rasoolunnisa Begum. 45. D.Ws.4 and 5 did not throw any light on the issue of properties, while D.W.6, the brother of Rasoolunnisa Begum, claimed about attesting Ex.B.4 sale deed, under which half of the plaint A schedule properties was sold by Rasoolunnisa Begum to the 1 st defendant. He claimed that the document was attested by Abdul Gafoor, the 2 nd defendant, Mohammed Akbar and Mohammed Jahangir. He claimed that Abdul Gafoor gifted the properties to Rasoolunnisa Begum in lieu of mahr, which were mutated in the name of Rasoolunnisa Begum and he can identify the signatures of Abdul Gafoor in Exs.B.4, B.11 and B.12. He claimed the gift to Rasoolunnisa Begum to be in 1358 fasli, but admitted that he was not present at the time of the gift and that the gift was not registered. He admitted that he does not know when and in whose presence the gift was made and written or registered. He claimed the death of Rasoolunnisa Begum to be sudden, but she was ill for three or four months with paralysis preceding her death in 1976. He claimed that stamp paper worth Rs.200/- was purchased by Abdul Gafoor for Ex.B.4, but claimed that Ex.B.4 did not mention that Rasoolunnisa Begum got the properties by way of gift from Abdul Gafoor in lieu of mahr. He claimed to have applied for leave and came to attest Ex.B.4. 46. The translation of Ex.B.35 in English recited about Abdul Khader owning lands in S.Nos.109, 110, 111, 114 and 153, which do not relate to the survey numbers of plaint A schedule lands, but D.W.2 stated that they were corresponding old survey numbers. Ex.B.35 stated that in lieu of mahr, the property was delivered to the ownership, possession and enjoyment of Rasoolunnisa Begum and gifted to her. The document itself further stated that if Abdul Gafoor marries again a second wife, she will also be entitled for a share of 50% in the said immovable properties and the document further recited that it should be got registered as per law. 47. Ex.B.4 registered sale deed, dated 19-03-1975 by Rasoolunnisa in favour of the 1 st defendant covers the land in S.Nos.150, 151 and 152 and Rasoolunnisa stated that she owned and possessed those ancestral lands. While it is true that Abdul Gafoor and the 2 nd defendant were claimed to have attested Ex.B.4, Ex.B.4 nowhere traces the rights of Rasoolunnisa to be flowing from Ex.B.35. 48. Concerning Ex.B.35 unregistered document, reliance is placed on Inspector General of Registration and Stamps v. Tayyaba Begum [10] by a Full Bench of this Court. The document recited the intention of the executant to make a hiba (gift) of a house to the younger son of the executant, which was intended to be confirmed by executing a registered gift deed. As a large sum of money was stated to be required for registration, the executant claimed to have made an unconditional gift earlier to the document, which was accepted, followed by delivery of possession to the donee and the document declared about the transfer of the house under the oral gift earlier, from which date the property was in possession and enjoyment of the donee. The Full Bench referred to Section 123 of the Transfer of Property Act, for which an exception was made in case of persons governed by rules of Mahomadan Law under Section 129. Noting that an oral gift can be made by a Mahomadan, followed by delivery of the property, dispensing with the necessity to execute registered instruments in cases falling under Section 129, it was observed that it does not prevent the persons governed by the rules of Mahomadan Law to effect the transfer in the manner contemplated by Section 123. It is only in cases where the parties avail themselves of the benefits of the rule of Mahomadan law in this behalf, they are not required to have a stamped document duly registered. If a document is mere memorandum of the things already transacted and did not embody the gift, no registered document is necessary. On facts, the Full Bench held that the document before it was indicative of the desire of the executant that it should serve as evidence of the gift and not as a memorandum of a past transaction and is, hence, within the sweep of Section 17 of the Indian Registration Act and is chargeable to duty as a gift deed. 49. Even earlier in Ghulam Abbas v. Mt. Razia Begum and others [11] , a hiba-bil-ewaz (a grant or gift for a consideration) was considered to be more in the nature of an exchange than a gift and it was held that an oral transfer of immovable property worth more than Rs.100/- cannot be validly made by a Muslim husband to his wife by way of grant in lieu of dower debt, which also exceeds R.100/-. It is a sale which can be effected by means of a registered instrument only. 50. Likewise in Mt. Zainab Bi v. Jamalkhan and others [12] following Mahabir Prasad v. Mustafa Hussain [13] , it was held that hiba-bil-iwaz amounts to a sale and requires a registered document. 51. Similarly, in Masum Vali Saheb and others v. Illuri Modin Sahib [14] , a Division Bench after an exhaustive reference to the case law on the subject, concluded that hiba-bil-ewaz is a sale within the meaning of Section 54 of the Transfer of Property Act and unless made by a written instrument, duly registered, will not convey title to the person in whose favour such a conveyance is made. An oral conveyance of immovable property worth more than Rs.100/- to the wife by a Muhammadan husband was held to be invalid. 52. Thus, the question whether the document is evidence of the gift itself or is only a memorandum of a past transaction determines the manner in which the document has to be treated with reference to Sections 123 and 129 of the Transfer of Property Act. 53. I n Shaik Khadaru Masthan v. Smt. Sayyed Fathimun Bee [15] , a learned Judge of this Court was dealing with the contention that the law governing Muslims does not require a gift to be evidenced by a document and even if evidenced by a document, the same is not required to be registered. Referring to the principles laid down by the Apex Court, it was noted that though gift by a Mahomedan is not required to be in writing and consequently need not be registered under the Registration Act, the gift will be complete, when there should be a declaration of the gift by the donor, acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession of the subject matter of the gift by the donor to the donee. Oral gift by delivery of possession under Mahomedan Law was held to be valid. However, as the document before His Lordship, which was unregistered and unstamped, was the document under which the property was gifted, it was held that an unregistered gift deed effecting immovable property cannot be admitted in evidence even for a collateral purpose. 54. The question also fell for consideration in Mohammed Moinuddin v. Mohammed Mahmood Ali and others [16] , wherein the learned Judge observed that instances of oral gift, by a muslim, followed by written documents, are not lacking and in such cases, the document does nothing more than evidencing a previous transaction of oral gift. It does not require any registration. Therefore, much would depend on whether the document refers to the past transaction, or it is contemporaneous with the very transaction. Referring to Inspector General of Registration and Stamps v. Tayyaba Begum (10 supra), the learned Judge opined that the document has to be read as a whole and the contents have to be taken into account. On facts, the learned Judge concluded the document to be a memorandum confirming the past transaction. Tyabji’s Muslim Law, Fourth Edition, dealing with gifts, specifically stated that when the obligation to pay mahr takes the form of a debt in favour of the wife and the property is transferred in lieu of mahr, it is a transfer for consideration and not a gift. But when it is agreed that immovable property will be given to the wife as mahr, no prior debt having been created by way of mahr, then the transfer of property is without consideration and may be made orally. 55. I n Mohd. Mahaboobali Pasha and others v. Rahamatunnisa and others [17] , another learned Judge after an exhaustive reference to the precedents, noted that the standard of proof required for satisfying the necessary ingredients of a valid gift under Mahomedan Law had not been established, while it is not necessary that there should be a deed of gift in order to make it a valid one, while, of course, if there is a deed, it should be registered, if it is not a memoranda of an already effected gift. 56. Mulla’s Principles of Mahomedan Law, Nineteenth Edition also considered hiba-bil-iwaz to be, as distinguished from a simple gift, a gift for a consideration and the conflict of judicial opinion on whether a document transferring immovable property to the wife in lieu of dower is a sale or not, was noted therein. In Tyabji’s Muslim Law, Fourth Edition, at page 413 with reference to Masum Vali Saheb and others v. Illuri Modin Sahib (14 supra), it was submitted that transfer of a house in consideration of release of dower debt is not a hiba-bil-iwaz at all. But the opinion of the author cannot belittle the principle laid down by the precedent binding on this Court. 57. Another contention of the appellants is even to the extent of contending that there was no reference to Ex.B.35 in the written statement of defendants 1 and 3 and no evidence could have been let in about Ex.B.35 without a pleading. They relied on Bandi Narsaiah (died) and others v. Virabathini Mallesham and another [18] , wherein a learned Judge of this Court held that without there being a plea about the tenancy of the appellant therein, such allegation for the first time in the evidence cannot be accepted, as it is an elementary principle that no evidence without pleading can be looked into. To the same effect is the decision of another learned Judge of this Court in Kondaveti Francis v. M. Ludramma and others [19] , wherein it was held that pleadings form the foundation of the case by which the parties are bound and they cannot travel beyond the pleadings or set up a new case which is not propounded in the pleadings and any amount of evidence contrary to the pleadings cannot be looked into. The Apex Court also reiterated the same principle in Vinod Kumar Arora v. Smt. Surjit Kaur [20] . 58. In Prataprai N. Kothari v. John Braganza [21] also, it was held that it is settled law that in the absence of any plea no evidence is admissible. 59. The appellants also questioned the sufficiency of proof of Ex.B.35 referring to Narbada Devi Gupta v. Birendra Kumar Jaiswal and another [22] , wherein the Apex Court reiterated the legal position that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents and its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue. The situation is stated to be different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits. No person connected with or relating to execution of Ex.B.35 was examined, while none of the witnesses examined had any personal knowledge of the alleged execution of Ex.B.35. Ex.B.35 not being an admitted document, therefore, it is also not open to be considered to have been proved. While the trial Court considered Ex.B.35 to be a thirty year old document, the suit being filed in 1977 in about 28 years from the document, the appellants strongly questioned any presumption in favour of Ex.B.35 as a document entitled to such presumption under Section 90 of the Evidence Act. Another strong circumstance canvassed against the truth of Ex.B.35 is about the document Ex.B.35 being scribed allegedly in 1358 fasli on a stamp of 1368 fasli. 60. The trial Court in the impugned judgment noted that the undisputed fact is that late Abdul Gafoor was the absolute owner and possessor of all the suit properties and they are his Matruka. Though the trial Court noted that the gift of the suit properties to Rasoolunnisa Begum by Abdul Gafoor and execution of Ex.B.35 were not mentioned in the written statement of defendants 1 and 3 nor were mentioned in Ex.B.4 sale deed, in which the properties were specified as ancestral properties, it relied on the statement in the written statement that Rasoolunnisa Begum as the absolute owner sold the properties to the 1 st defendant and it is difficult to accept such elastic application of the principle of a necessary pleading being the inescapable basis for production of any evidence. The trial Court also felt that physical delivery of possession of the properties by the husband to the wife is not necessary in such a case, as patta was mutated in the name of Rasoolunnisa Begum and the production of Ex.B.35 by the vendee of the donee. The absence of registration was also considered not to effect the validity of Ex.B.35 and the presumption under Section 90 of the Evidence Act was drawn in favour of the said document. While it is true as observed by the trial Court that obtaining of a loan by mortgage, its discharge, etc., by Rasoolunnisa Begum were evidenced by the documents filed, the conclusion that Rasoolunnisa Begum acquired title and sold half of the properties under Ex.B.35 does not appear to be in tune with the probabilities arising out of the evidence on record or the principles laid down by the precedents referred to above.
61. To summarise, there was no specific plea or evidence of any valid oral gift preceding Ex.B.35 from Abdul Gafoor to Rasoolunnisa Begum. Ex.B.35 was also contended to be styled as bequest, which is impermissible in Mahomedan Law, apart from which the English translation of Ex.B.35 clearly states that Abdul Gafoor had decided to give specified properties in lieu of mahr amount to Rasoolunnisa Begum and delivered the property to the ownership, possession and enjoyment of Rasoolunnisa Begum and executed the deed of gift in her favour. The language appears to be clear and unambiguous that formation of intention, implementation of the decision and gifting along with delivery of possession were contemporaneous with the execution of the deed of gift and therefore, the document requires to be duly stamped and registered as such and it cannot be construed to be a memorandum of recording of an earlier oral gift. Even otherwise, if a gift in lieu of dower/mahr were to be considered as a sale requiring registration as such, even then Ex.B.35 could not have conveyed any rights or interests to Rasoolunnisa Begum. The declaration by Abdul Gafoor under Ex.B.35 about both his wives being entitled to 50% of the immovable properties covered by the document in the event of his second marriage also, is a contemporaneous expression of the intention, decision and gifting and therefore, Ex.B.35, which is not proved to have been duly stamped and which is admittedly unregistered, cannot be looked into for any purpose and could not have been admitted into evidence. While the document was not 30 years old by the time of filing of the suit, any presumption under Section 90 of the Evidence Act could have been only an aid in corroboration of other evidence on record and in the absence of examination of any person connected with Ex.B.35 and its execution, the document could not have been considered proved in any manner, even if it were to be considered admissible for any collateral purpose. As such, neither Rasoolunnisa Begum could have been claimed to be the owner of plaint A and C schedule properties nor could the 3 rd defendant have claimed to have become the owner of half of such properties after her marriage with Abdul Gafoor under Ex.B.35.
62. Ex.B.4 registered sale deed claimed to have been executed by Rasoolunnisa in favour of the 1 st defendant, recited the lands in S.Nos.150, 151 and 152 to be the ancestral lands of Rasoolunnisa contrary to the evidence based on Ex.B.35 and on the own evidence and pleadings of defendants 1 and 3, Rasoolunnisa could not have any title to transfer the lands as ancestral lands and in view of the conclusions about Ex.B.35, under which Rasoolunnisa Begum is not proved to have acquired any title, she could not have been competent to transfer half of such properties in the plaint A schedule to the 1 st defendant under Ex.B.4. The claim of ownership of the properties by the 1 st defendant should have, therefore, failed on the evidence before the Court and the failure to challenge Exs.B.35 and B.4 in any other separate proceedings would not have mattered, when Ex.B.35 is illegal and void and Ex.B.4 could not have been executed without transfer of any title or interest under Ex.B.35. Under the circumstances, the conclusions of the trial Court against the appellants cannot be sustained and it has to be concluded that the gift in favour of Rasoolunnisa Begum and the 1 st defendant by Abdul Gafoor under Ex.B.35 and the sale by Rasoolunnisa Begum to the 1 st defendant under Ex.B.4 were not proved to be true, valid and binding on the plaintiffs and defendants 2 and 7.
63. Point No.3: In view of the factual conclusions on points 1 and 2, plaint A, B and C schedule properties were available for partition on the death of Abdul Gafoor between his wife, the 1 st defendant, and his paternal uncles, the 1 st plaintiff and the 2 nd defendant, in the ratio of 4, 6 and 6 annas respectively out of 16 annas. Plaint B schedule property was already the subject of the preliminary decree by the trial Court and the plaint B schedule properties were stated to have been divided accordingly as per the preliminary decree. Plaint A and C schedule properties also, in view of the findings herein, should have been subjected to the same division.
64. However, an additional angle is added to the questions in issue due to the death of the 1 st defendant during the pendency of the appeal leaving the 3 rd defendant alone as her heir. The appellants contended that as the 3 rd defendant cannot be considered to be the legal heir of Abdul Gafoor and as Abdul Gafoor and Rasoolunnisa Begum died issueless and as the 1 st defendant also died without any issues through Abdul Gafoor, the entire A and C schedule properties should go to the heirs of the 1 st plaintiff and the 2 nd defendant.
65. Even if the entire case of the 1 st plaintiff and the 2 nd defendant were to be accepted, the 1 st defendant as the wife of Abdul Gafoor admittedly became entitled to one-fourth share in the Matruka properties of Abdul Gafoor on the death of Abdul Gafoor and her right to such one-fourth share did not get postponed by any factual or legal event and it was only after the impugned judgment and preliminary decree in the suit that she expired during the pendency of this appeal. It was clearly stated in Muslim Law by Tyabji, Fourth Edition [23] , under Hanafi Law of Inheritance at Note 706 at pages 819 and 820 that under Hanafi Law, though an illegitimate child and its father are not related in law, nor competent to inherit from each other, but the mother and its illegitimate offspring are competent to do so. Similarly, in Mulla’s Principles of Mahomedan Law, Nineteenth Edition [24] , it was clearly stated in Note 85 at page 81 that under Hanafi Law of Inheritance, an illegitimate child is considered to be the child of its mother only, and as such it inherits from its mother and its relations, and they inherit from such child. The principle was stated to be with reference to Tagore Law Lectures, 1873 [25] at page 123. In the illustrations given, the illegitimate son of the sister of a deceased Mahomedan female was shown to be entitled to half share, while the husband of the female will be entitled to the remaining half share as being related to the deceased through his mother though illegitimate. 66. Rahmat Ullah v. Maqsood Ahmad [26] by a Division Bench was concerning the rights of Rahmat Ullah who was found to be the illegitimate son of the mother of the owner of the house in dispute, who was, therefore, not the uterine brother of the owner. The question considered was whether an illegitimate child of one mother can be considered the uterine brother of the legitimate child of the same mother. Shama Churun Sircar’s Tagore Law Lectures, 1874 on the Muhammadan Law [27] , page 275 were referred to apart from Baillie’s Digest of Muhammadan Law [28] and the passage above referred to from Muhimmadan Law by Tyabji was also referred to. Referring to Baillie’s Digest of Muhammadan Law at page 703, it was concluded that there can be little doubt that under the Hanafi Law of Inheritance, an illegitimate child can inherit from his mother and her relations. It was pointed out that when there is a question of illegitimate child inheriting the property of his or her mother or through him or her mother, the illegitimate child has, in law, no father and he or she can have nothing to do with his or her mother’s relations by subsequent marriage, as a result of which new relationships arise. For purposes of inheritance, there must be some relationship between the person, on whose death the succession has opened, and the person who claims title to succeed. In the present case, the succession on the death of Abdul Gafoor opened long prior to the suit itself and the 1 st defendant became entitled to one-fourth share in the Matruka of Abdul Gafoor and became the owner of such one-fourth share in the eye of law since then. On the death of the 1 st defendant, succession to her has opened and the 3 rd defendant is her only issue who can claim that there was relationship between the 1 st defendant and himself, the succession having opened on the death of the 1 st defendant in his favour due to the relationship between them. The Division Bench had also referred to the decision of Calcutta High Court in Bafatun v. Bilaiti Khanum [29] , where it was held that among the Sunni sect illegitimacy is no bar to the person inheriting from his mother and his maternal relations. As the entitlement of the 3 rd defendant to the one-fourth share in the properties belonging to the 1 st defendant is not due to any relationship with Abdul Gafoor or his family and as the 3 rd defendant is entitled to inherit the property of his mother, a preliminary decree should be passed in his favour in respect of the one-fourth share in the plaint A and C schedule properties also. Hence, it has to be concluded that the 3 rd defendant and the legal representatives of the deceased 1 st plaintiff and the 2 nd defendant will be entitled to 4/16 th , 6/16 th and 6/16 th share in plaint A and C schedule properties also.
67. Point No.4: In view of the findings on points 1 to 3, the impugned judgment and preliminary decree of the trial Court have to be reversed in respect of plaint A and C schedule properties, granting a preliminary decree in favour of the 3 rd defendant and the legal representatives of the deceased 1 st plaintiff and 2 nd defendant, while, as already stated, plaint B schedule properties are not the subject of the appeal or the cross-objections and they are not the subject matter of adjudication herein. The appeal should accordingly succeed. Even the prayer in the plaint is only for 6/16 th share to the 1 st plaintiff in A, B and C schedule properties of the plaint and the appeal also is for only such 6/16 th share to the 1 st plaintiff in the plaint A, B and C schedule properties also as prayed for in the suit. The grant of 6/16 th share to the legal representatives of the 2 nd defendant and 4/16 th share to the 3 rd defendant will also be only in accordance with the prayer in the suit and the appeal, which remained unamended and unchanged even after the death of the 1 st defendant.
68. Therefore, the judgment and preliminary decree in O.S. No.12 of 1984 on the file of the Subordinate Judge’s Court, Vikarabad, dated 05-08-1987 are set aside to the extent of dismissal of the suit in respect of plaint A and C schedule properties and a preliminary decree is passed in respect of plaint A and C schedule properties entitling the legal representatives of the deceased 1 st plaintiff to six shares, the legal representatives of the deceased 2 nd defendant to six shares and the 3 rd defendant to four shares out of sixteen shares, into which the plaint A and C schedule properties shall be divided and such physical division and partition by metes and bounds shall be made on a separate application through a commissioner to be appointed for the purpose. The parties shall bear their own costs throughout and the appeal is allowed and the cross-objections are dismissed accordingly. _____________________ G. BHAVANI PRASAD, J Date: 21-08-2012 Svv [1] 1976(2) APLJ 323 HC [2] AIR 1968 CALCUTTA 550 [3] AIR 1956 HYDERABAD 43 [4] AIR 1967 Supreme Court 341 [5] AIR 1966 SUPREME COURT 1061 [6] AIR 1978 KARNATAKA 213 [7] AIR 1978 ALLAHABAD 247 [8] AIR 1978 PATNA 235 [9] (1999) 4 Supreme Court cases 243 [10] AIR 1962 ANDHRA PRADESH 199 [11] AIR 1951 Allahabad 86 [12] AIR 1951 NAGPUR 428 [13] AIR 1937 PC [14] AIR 1952 Madras 671 [15] 2007(6) ALT 220 [16] 2007(2) ALT 38 [17] 2008 (6) ALT 33 [18] 1997(4) ALT 583 [19] 2000 (3) ALT 433 [20] AIR 1987 SUPREME COURT 2179 [21] (1999) 4 Supreme Court Cases 403 [22] (2003) 8 Supreme Court Cases 745 [23] Muslim Law by Tyabji, Fourth Edition [24] Mulla’s Principles of Mahomedan Law, Nineteenth Edition [25] Tagore Law Lectures, 1873 [26] AIR 1952 (All.) 640 [27] Shama Churun Sircar’s Tagore Law Lectures, 1874 on Muhammadan Law [28] Baillie’s Digest of Muhammadan Law [29] 30 Cal. 683
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