Concept Of Ancestral Property And Joint Family Foreign To Mohammedan Law; Rights Of Heirs Arise Only After Death: Gujarat High Court

The High Court clarified that inheritance rights of Muslim heirs arise only upon the death of the propositus and not prior thereto, and any claim asserting birth-based rights during the lifetime of the owner is legally untenable.

The Court was hearing a batch of civil revision applications and appeals arising from interlocutory orders passed in a civil suit seeking administration of the estate, partition, injunction, and related reliefs concerning several immovable properties allegedly belonging to the deceased parents of the parties.

A Bench of Justice J. C. Doshi, upon deciding the matter, observed: “the concept of ancestral properties is wholly foreign to the principle of Mohammedan Law as the Mohammedan Law does not recognise right by birth, but recognises that a living person has no heirs. Likewise, the concept of ‘joint family’ is foreign to the Mohammedan Law, …the concept of ‘joint family’ implies only to a group of members of many to one nuclear family together and not to a group of people living separately, …thus, the Mohammedan Law does not recognize the ‘joint family’ as a legal entity and does not provide any rule applicable to the concept of joint family property, as such”.

Background

The dispute arose from a suit filed by a daughter claiming a share in properties allegedly belonging to her deceased parents. She asserted that some properties had been purchased by her father in the names of her brothers from his earnings, while others had been acquired by the brothers from proceeds of alleged ancestral property.

She sought administration of the estate, declaration of rights, cancellation of sale deeds, injunction against development activities, and compensation in the alternative.

The defendants, who were her brothers and subsequent purchasers of portions of land, contended that the suit was hopelessly barred by limitation, that mutation entries had long reflected their ownership, that a family arrangement executed decades earlier settled rights between parties, and that properties had been openly dealt with for decades without objection. They therefore sought rejection of the plaint at the threshold.

The trial court rejected the applications for rejection of the plaint and partly allowed the plaintiff’s injunction application. These orders were challenged before the High Court.

Court’s Observation

The Court first addressed the legal standard governing rejection of a plaint under Order VII Rule 11 CPC. It reiterated that such a plea is like a demurrer and must be tested solely on the averments in the plaint, assuming them to be true. Defence pleas or disputed facts cannot be examined at that stage. The Court relied on Supreme Court precedents, including Salim D. Agboatwala v. Shamaji Oddhavji Thakkar and Chhotanben v. Kiritbhai Jalkrushnabhai Thakkar, emphasising that limitation issues depending on factual determination cannot be decided without trial.

Applying these principles, the Court held that the question of limitation in the present case depended on when the plaintiff allegedly became aware of the denial of her share and whether assurances were given by the defendants. Such questions were mixed questions of law and fact and, therefore, unsuitable for adjudication at the threshold stage.

The Court then examined the substantive legal foundation of the plaintiff’s claim, which rested on assertions that the suit properties were joint family or ancestral properties. Referring to authoritative texts on Mohammedan Law and settled precedents, the Court explained that Muslim succession operates on fundamentally different principles from Hindu coparcenary law.

The Bench noted: “The Mohammedan Law recognises the Principle or Latin phrase ‘Nemo est heres viventis - A living person has no heir’. An heir apparent or presumptive has no such reversionary interest as would enable him to object to any sale or gift made by the owner in possession.”

The Court emphasised that succession under Muslim law opens only upon death and rights are distinct and individual rather than collective, while observing that “In Mohammedan Law, inheritance descends and not ascends, unlike Hindu Law…”

Addressing the plaintiff’s assertion of ancestral property, the Court held that “…in so far as claiming any property as an ancestral property is concerned, one has to claim right by birth, this idea or custom is not recognised by the tenets of the Mohammedan Law.”

The Bench reiterated that heirs have no vested interest during the lifetime of the owner, and their right remains only a possibility, stating that “…the right of an heir apparent or a presumptive heir… does not arise until the death of such person. In the Mohammedan Law, right to succeed is nothing more than a mere spes, i.e. mere chance of succession.”

The Court concluded that concepts central to Hindu joint family law cannot be imported into disputes governed by Muslim personal law, holding that the concept of ancestral properties is wholly foreign to the principle of Mohammedan Law and that the concept of ‘joint family’ is foreign to the Mohammedan Law.

The Bench further added: “Mohammedan succession is individual succession; it necessarily follows that there is no presumption, as in the case of a joint Hindu family, that any property has been purchased out of joint undivided property. It must be remembered that when the members of the Muslim family live in Commensality, they do not form a joint family in the sense in which that expression is used with regard to the Hindus, and in Mohammedan Law there is not, as there is in Hindu Law, any presumption that the acquisitions of the several members are made for the benefit of the joint family”.

While examining challenges to the interim injunction, the Court reiterated settled appellate principles governing interference with discretionary orders. Relying on Wander Ltd. v. Antox India P. Ltd., Neon Laboratories Ltd. v. Medical Technologies Ltd., and Ramakant Ambalal Choksi v. Harish Ambalal Choksi, the Court held that appellate courts should not interfere with discretionary orders unless shown to be arbitrary, perverse, or contrary to settled principles.

Conclusion

The Gujarat High Court held that the trial court had committed a serious error by failing to apply principles of Mohammedan law, and that such omission rendered the order legally incorrect and perverse, thereby warranting interference.

The High Court allowed the appeals, setting aside the trial court’s order. The Court clarified that its observations are tentative and confined to the adjudication of the present proceedings, and shall not influence the outcome of the suit.

All connected applications were disposed of as not surviving, and the record and proceedings were directed to be returned to the concerned court forthwith.

Cause Title: Yusufbhai Walibhai Patel & Ors. v. Zubedaben Abbasbhai Patel & Ors. (Neutral Citation: 2026:GUJHC:10564)

Appearances

Appellants: Senior Advocate Mihir Joshi with Isa Hakim; Senior Advocate Dhaval Dave with Mohmedsaif Hakim; M.T.M. Hakim with Rizwan Shaikh.

Respondents: Senior Advocate Percy Kavina with Advocates Jamshed Kavina and Meet D. Kakadia.

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