NDLI: Mohammed Salim (d) Through Lrs. & Ors. Vs. Shamsudeen (d) Through Lrs. & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Irregular (Fasid) Marriage child born Muslim Law father’s properties
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Muslim Law – Irregular (Fasid) Marriage – Entitlement of child born out of irregular (fasid) marriage in his father’s properties – Respondent No.1-plaintiff case was that his father ‘M’ and defendant No.1 were sons of one ‘Z’ – Two plaint properties (Schedule ‘A’ and Schedule ‘B’) belonged to Z – Z gifted Plaint Schedule ‘A’ property to ‘M’ – ‘M’ married defendant No.8 and no issue was born out of the wedlock – M’ also married one ‘V’ (a Hindu woman) and out of the said wedlock plaintiff was born – Plaintiff claimed entitlement to 14/16th of the share in Schedule ‘A’ property after the demise of ‘M’ and half the share in Schedule ‘B’ property through inheritance after the demise of ‘Z’ – Suit was filed – Suit was decreed by the trial Court in favour of plaintiff – First appellate Court set aside the judgment and decree of the trial Court – However, the High Court confirmed the judgment and decree passed by the trial Court – Appellants-defendants contended that plaintiff was not the son of ‘M’ as he was born in the year 1949 and his alleged father ‘M’ had expired in the year 1947 and furthermore, ‘V’ was a Hindu woman by religion she had no right over the property of ‘M’, consequently plaintiff would not get any share in the property of ‘M’ – On appeal, held: Birth register extract of the plaintiff maintained by the statutory authorities indicated that the plaintiff was the son of ‘M’ and ‘V’, and was born on 12.02.1949 – It is a public document maintained by a public servant in discharge of his official duty, thus, relevant as per s.35 of the Evidence Act – Also, admittedly, ‘M’ and ‘V’ were living together as husband and wife, and ‘M’ had died on 10.09.1124 M.E., which corresponds to 22.04.1949 in Gregorian calender as seen from the Government Almanac – Thus, plaintiff was born two months prior to the death of ‘M’ and High Court was correct in concluding, based on the preponderance of probabilities that ‘V’ was legally wedded wife of ‘M’ and plaintiff was the child born out of the said wedlock – Insofar as right of plaintiff over the suit properties is concerned, the marriage of a Muslim man with an idolater or fire-worshipper is neither a valid (sahih) nor void (batil) marriage, but is merely an irregular (fasid) marriage – Any child born out of such wedlock (fasid marriage) is entitled to claim a share in his father’s property – Therefore, the trial Court and the High Court were justified in concluding that the plaintiff was the legitimate son of ‘M’ and ‘V’, and is entitled to his share in the property as per law – Evidence Act, 1872 – s.35.
Judge	Hon'ble Mr. Justice Mohan M. Shantanagoudar
Neutral Citation	2019 INSC 71
Petitioner	Mohammed Salim (d) Through Lrs. & Ors.
Respondent	Shamsudeen (d) Through Lrs. & Ors.
SCR	[2019] 1 S.C.R. 941
Judgement Date	2019-01-22
Case Number	5158

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1	Ministry of Education (GoI), Department of Higher Education	Sanctioning Authority	https://www.education.gov.in/ict-initiatives
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