Article 117
|
Where a Mahomedan bequeaths less than one-third of his property to a
person, such bequest is valid under Mahomedan law–
Mahomedan Law is concerned, a testator may lawfully transfer ⅓ of his
property to any person (third party), other than his heirs. Any transfer in
excess of ⅓ would not be valid unless the heirs consented after the death
of the testator. “A bequest to an heir is not valid unless the other
heirs also consent to the bequest after the death of the testator.” It
would appear, therefore, that the consistent view is that transfer of any
quantum of property to an heir requires the consent of the other heirs
after the death of the testator. In the case before us the bequest being in
favour of heirs of the testator can only be valid if the other heirs
consent. In the facts of the instant case there does not appear to be
consent by other heirs and, therefore, the deed in question cannot be a
valid deed of transfer. .....Noorjahan Begum =VS= Aminul Huq, (Civil), 2018
(2) [5 LM (AD) 20]
....View Full Judgment
|
Noorjahan Begum =VS= Aminul Huq |
5 LM (AD) 20 |
Section 117
|
The Code of Civil Procedure, 1908
Order 7, Rule 11
The Succession Act, 1925
Section 213 r/w sec. 57, 58
Mohammedan law
Section 117
It is now well settled that when on the face of the plaint, it is found
that the suit is barred by any law or is foredoomed and if it is allowed to
be proceeded with, it will amount to an abuse of the process of the Court,
the Court is empowered to reject the plaint in exercising its inherent
power.
The High Court Division without considering the pertinent legal issue that
the provisions of Succession Act and Mohammedan law the probate case is not
maintainable, passed the impugned judgment simply holding that without
taking evidence, the dispute between the parties cannot be resolved, and as
such committed serious error of law and the impugned judgment is liable to
be set aside. .....Jahanara Begum =VS= Hazi Nizamuddin, (Civil), 2024(1)
[16 LM (AD) 582]
....View Full Judgment
|
Jahanara Begum =VS= Hazi Nizamuddin |
16 LM (AD) 582 |
Section 156
|
Mohammedan Law, Wakfs
Section - 156 (D.F. MuIIa) Wakf by immemorial user
Held; though the previous Khatian of the land was recorded to be "Peer's
Dargabari" but the land at present appears to be nal land duly cultivated
by the plaintiff. The nature and character of the suit land having been
changed and the Government also treated the same as cultivable land and
considering the true state of affairs leased out the same to the plaintiff
on permanent basis. - There is no substance in this application for
interference with the impugned judgment.
Md. Nafaruddin Mollah Vs. Md, Serajuddin Khan & Ors 20 BLT (AD) 143
|
Md. Nafaruddin Mollah Vs. Md, Serajuddin Khan & Ors |
20 BLT (AD) 143 |
Section 164
|
Merely because even the preemptor failed to prove mutation of her name in
respect of ˙09 acre land, title passed by the deed of gift could not be
said to have been lost.
The Appellate Division held that the trial Court also took the erroneous
view that the preemptor could not prove that by virtue of the deed of heba,
she mutated her name, but failed to consider that merely because even the
preemptor failed to prove mutation of her name in respect of ˙09 acre
land, title passed by the deed of gift could not be said to have been lost
and the Appellate Court rightly found that the trial Court in rejecting the
application for preemption made some irrelevant comments.
Mosammat Farida Begum -Vs.-Mohd. Nurul Alam (Civil) 13 ALR (AD) 170-173
|
Mosammat Farida Begum -Vs.-Mohd. Nurul Alam |
13 ALR (AD) 170 |
Paragraph 252
|
The Evidence Act, 1872
Section 50
Mohammedan Law (Mulla’s)
Paragraph 252
Section 50 of the Evidence Act declares that "when the Court has to form an
opinion as to the relationship of one person to another, the opinion
expressed by conduct as to the existence of such relationship of any
person, who as a member of family or otherwise, has special means of
knowledge on the subject is a relevant fact". Illustration (a) to section
50 says; “the question is, whether A and B were married. The fact that
they were usually received and treated as husband and wife, is relevant”.
This section says when the question arises as to the presumption of
marriage, the opinion that makes relevant is opinion expressed by conduct
as to the existence of such relationship and not merely as to that
relationship. It is for the Court to weigh such evidence and to come to its
own opinion as to the relationship in question. When the Court has to form
an opinion as to the relationship of one person to another, the opinion
expressed by conduct, as to the existence of such relationship, of any
person who, as a member of family or otherwise, has special means of
knowledge on the subject, is a relevant fact.
Even in the absence of formal proof of a valid marriage, a marriage can be
presumed by evidence of conduct and reputation, and the question of
consummation forms often an important element in the status of valid
marriage. A presumption of consummation is raised from the retirement of
the husband and wife, i.e. there should be no third person at the place and
that the place should not be a public one, like a public bath, public road,
a mosque etc. Where there has been prolonged and continuous cohabitation as
husband and wife, in the absence of direct proof a presumption arises that
there was a valid marriage. The law permits no specific ceremony for the
contractual performance of a marriage: and no religions rites are necessary
for contracting a valid marriage. There are even opinions that a marriage
may be constituted without any ceremonial and even in the absence of direct
proof, indirect proof might suffice. The High Court Division, in the
premises, erred in holding that mere living together as husband and wife
did not bring it within the bound of marriage. Apart from acknowledgment by
either party, if there is continual cohabitation between a man and woman as
husband and wife, there is presumptive marriage and legitimacy provided
that the parties were not prohibited from intermarrying.
We find that the High Court Division has totally overlooked the presumption
of a muslim marriage and relying upon paragraph 252 of Mulla’s Mohammedan
Law disbelieved the appellant’s claim of marriage. If the High Court
Division had considered paragraphs 254 and 268 of Mulla’s Mohammedan Law,
its decision would have been otherwise. The High Court Division based its
decision on piecemeal consideration of Mulla’s Mohammedan Law and arrived
at a decision which is not supported by any of the authors of Mohammedan
Law. It has tried to apply a doctrine of Muslim Marriage against the
established schools of Mohammedan Law. Therefore, the decision of the High
Court Division is based on a misconception of the basic principles of
Mohammedan Law and thus the interference of the judgments of the Courts
below is an error of law apparent on the face of the record. The evidence
on record sufficiently proved that there was existence of legal marriage
between the appellant and respondent. ...Momtaz Begum(Mst.) =VS= Anowar
Hossain, [10 LM (AD) 188]
....View Full Judgment
|
Momtaz Begum(Mst.) =VS= Anowar Hossain |
10 LM (AD) 188 |
Sections 342 to 344
|
Legitimacy of a child—Whether acknowledgement by father without proof of
any valid marriage between the father and mother of such child is
sufficient to establish legitimacy?— Where paternity of a child is
unknown, the law presumes him to be the child of the acknowledger—But
acknowledgment will not establish legitimacy if it is found that the child
is an offspring of Zina or of another person—If the defendant failed to
prove the marriage of his mother that will not create an impediment to the
acknowledgment itself—Since the’ plaintiff did not take up the plea
that the marriage could not have been possible, it being within the
prohibitory degree or offspring of Zina—The force of logic therefore
upholds the contention of the defendant for the doctrine of acknowledgement
to dome into play—Defendant proved acknowledgment by the father—
The plaintiff failed to establish that there was no marriage between the
father and mother of the defendant—Therefore acknowledgement is
sufficient to establish paternity of the defendant. [Majority per B.H.
Chowdhury, J (Munim, CJ and Masud, J, concurring]
Valid marriage between the parents is the essential precondition of
legitimacy—If such a marriage is disproved, no amount of acknowledgement
shall make the child legitimate it must be borne in mind that
acknowledgement’ in Mohammadan Law is no substitute for adoption in Hindu
Law or Roman Law—under the Mohammadan Law relationship by consanguinity
is prerequisite for legitimacy and the latter is dependent upon’ a valid
marriage of the parents—If Amir Au had acknowledged the defendant as his
son, then he knew better who was defendant’s mother but that woman not
being any of his three wives, the defendant is not his legitimate
son——The learned Single Judge is found to have rightly refused
interference with the findings of the Court below which stand on a solid
basis..
Khorshed Alam alias Shah Alam Vs. Amir Sultan Ali Hyder and another, 5 BLD
(AD) 121
|
Khorshed Alam alias Shah Alam Vs. Amir Sultan Ali Hyder and another, |
5 BLD (AD) 121 |
Section 357
|
Mulla’s Principles of Mahomedan Law
Section 357
Father and paternal male relation is entitled to custody of a boy of seven
years of age:
Section 357 of Mulla’s Principles of Mahomedan Law stipulates that,
father and paternal male relation is entitled to custody of a boy of seven
years of age....In the case in hand the minor boy now above seven years old
and it is already found that his wellbeing and betterment will be protected
at the hand of his father and grandparents and as such the findings and
reasonings in deciding the custody of minor boy is sustainable for welfare
of the minor boy. ...Md. Ahsan Ul Monir & ors. Vs. Dr. Md. Fakhrul Islam &
ors., (Civil), 15 SCOB [2021] HCD 87
It further appears that the minor boy was examined by the appellate Court
wherein he disclosed that he is willing to live with his maternal
grandparents and does not intend to go and live with his father. It is
noticed that while the minor boy was examined, he was 6 ½ years old and
after living with maternal grandparents for quite number of years, he was
brought to the Court and naturally the statement made by him may not
reflect true state of affairs as there is likelihood of influencing his
opinion. In this context the findings of the appellate Court may not be out
of context wherein the appellate court held that on perusal of the lower
Courts records it is found that the minor boy was present during hearing of
the Family Court Suit on some occasions but no unusual attitude of minor
boy towards father was noticed. ...Md. Ahsan Ul Monir & ors. Vs. Dr. Md.
Fakhrul Islam & ors., (Civil), 15 SCOB [2021] HCD 87
....View Full Judgment
|
Md. Ahsan Ul Monir & ors. Vs. Dr. Md. Fakhrul Islam & ors. |
15 SCOB [2021] HCD 87 |
Sections 359, 360, 361 and 364
|
Principles of Mahomedan law
[by D.F. Mulla, (Pakistan Edition) (1995)]
Sections 359, 360, 361 and 364
Mohammedan law is a personal law and no one can ignore the provision of the
Mohammedan Law— The plaintiff did not produce sufficient evidence to
prove their case but the trial court as well as appellate court committed
serious error of law in passing the impugned judgment without considering
the provision of Mohammedan Law. Mohammedan law is a personal law and no
one can ignore the provision of the Mohammedan Law. —Appellate Division
is of the view that the High Court Division has correctly interfered with
the judgment and decree of the courts below holding that both the court
below committed error of law ignoring the personal law i.e. Mohammedan law
by dismissing the suit. The High Court Division has rightly reversed the
judgment passed by the Court below. The judgment and order passed by the
High Court Division is elaborate, speaking and well composed. Appellate
Division is not inclined to interfere with the same. .....Raisuddin Mondol
=VS= Moniruddin Mondal, (Civil), 2023(1) [14 LM (AD) 1]
....View Full Judgment
|
Raisuddin Mondol =VS= Moniruddin Mondal |
14 LM (AD) 1 |
Section 361
|
Principles of Mahomedan law
[by D.F. Mulla, (Pakistan Edition) (1995)]
Section 361
De facto guardian–– A de facto guardian has no power to transfer any
right or interest in the immovable property of the minor. Such a transfer
is not merely voidable, but void. .....Raisuddin Mondol =VS= Moniruddin
Mondal, Civil), 2023(1) [14 LM (AD) 1]
....View Full Judgment
|
Raisuddin Mondol =VS= Moniruddin Mondal |
14 LM (AD) 1 |
Acknowledgement–
|
Mohammedan Law
Acknowledgement–Witnesses are partisan witnesses totally unworthy of
credit–Onus to prove that defendant I (Khorshed Alam) is the son of a
prostitute Baramoni, is on the plaintiff, but he could not discharge it.
Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
|
Khorshed Alam vs Amir Sultan Ali Hyder |
38 DLR (AD) 133 |
Acknowledgement–
|
Mohammedan Law
Acknowledgement–Onus of proof–Status of an individual–When it is
assailed much higher degree of proof necessary–
All courts below overlooked this point– Trial Court ought not to have
allowed such question to be led in Entire plaintiff's evidence on this
point should have been discarded–
Presumption of law on the point not rebutted–Plaintiff having failed to
prove that defendant J was the son of Baramoni his suit to be dismissed.
Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
|
Khorshed Alam vs Amir Sultan Ali Hyder |
38 DLR (AD) 133 |
Acknowledgement by a man of a child–
|
Mohammedan Law
Acknowledgement by a man of a child– Case-law on the subject.
Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
|
Khorshed Alam vs Amir Sultan Ali Hyder |
38 DLR (AD) 133 |
When acknowledgement established–
|
Mohammedan Law
–When acknowledgement established–Onus to rebut in the person who
denies marriage.
Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
|
Khorshed Alam vs Amir Sultan Ali Hyder |
38 DLR (AD) 133 |
Legitimacy–
|
Mohammedan Law
–Legitimacy– For legitimacy valid marriage is essential.
Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
|
Khorshed Alam vs Amir Sultan Ali Hyder |
38 DLR (AD) 133 |
When illegitimacy is proved beyond doubt
|
Mohammedan Law
–When illegitimacy is proved beyond doubt, by reason of the marriage of
his parents being either disproved, etc. cannot be legitimatised by
acknowledgement.
Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
|
Khorshed Alam vs Amir Sultan Ali Hyder |
38 DLR (AD) 133 |
A concubine giving birth to a son–
|
Mohammedan Law
–A concubine giving birth to a son– Such son cannot be legitimate son.
Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
|
Khorshed Alam vs Amir Sultan Ali Hyder |
38 DLR (AD) 133 |
Mohammedan Law
|
Mohammedan Law
–Under Mohammedan Law, "a person to be legitimate son of another person
must be the offspring of a marriage between his mother and his alleged
father and that any other offspring is the offspring of Zina, that is,
illicit connection and cannot be legitimate".
Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
|
Khorshed Alam vs Amir Sultan Ali Hyder |
38 DLR (AD) 133 |
Acknowledgement–
|
Mohammedan Law
–Acknowledgement– Subsequent disowning the acknowledgement, of no legal
effect.
Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
|
Khorshed Alam vs Amir Sultan Ali Hyder |
38 DLR (AD) 133 |
Custody of Infant
|
Mohammedan Law Hizanat (Custody of Infant)
Right of mother to custody of infant children–
The mother is entitled to the custody (hizanat) of her male child until he
has completed the age of seven years and of her female child until she has
attained puberty. The right continues though she is divorced by the father
of the child unless she marries a second husband in which case the custody
belongs to the father–Right of father and paternal male relations to
custody of boy over seven and girl who has attained puberty–The father is
entitled to the custody of a boy over seven years of age and of an
unmarried girl who has attained puberty. Failing the father, the custody
belongs to the paternal relations in the order given in section 355 above,
and subject to the proviso of that section–If there be none of these, it
is for the Court to appoint a guardian of the person of the minor."
Mullah's Principles of Muhammedan Law.
Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106.
|
Md Abu Bakar Siddiqui vs SMA Bakar |
38 DLR (AD) 106 |
Custody of Infant
|
Mohammedan Law Hizanat (Custody of Infant)
– Question regarding hizanat (custody) of a minor boy or daughter not
solely dependant on his or her age but the consideration is the welfare of
the minor and this has assumed to be the determining factor even though the
opinion of well–known Muhammedan jurists may not be followed.
Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106.
|
Md Abu Bakar Siddiqui vs SMA Bakar |
38 DLR (AD) 106 |
Custody of Infant
|
Mohammedan Law Hizanat (Custody of Infant)
–No uniform law obtains in the Muslim world–Difference amongst the
principal jurists. Departure is permissible.
Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106.
|
Md Abu Bakar Siddiqui vs SMA Bakar |
38 DLR (AD) 106 |
Custody of Infant
|
Mohammedan Law Hizanat (Custody of Infant)
–Hidayah and Fatawa-Alamgiri are the standard authorities in Hanafi
Branch of Sunni Law.
Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106.
|
Md Abu Bakar Siddiqui vs SMA Bakar |
38 DLR (AD) 106 |
Custody of Infant
|
Mohammedan Law Hizanat (Custody of Infant)
–Rule about hizanat propounded in the Hanafi law in permissible
circumstances, can be departed from on consideration of minor's welfare.
Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106.
|
Md Abu Bakar Siddiqui vs SMA Bakar |
38 DLR (AD) 106 |
Custody of Infant
|
Mohammedan Law Hizanat (Custody of Infant)
–In matters of personal laws in Bangladesh Sunni Muslims are governed by
Hanafi School of law.
Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106.
|
Md Abu Bakar Siddiqui vs SMA Bakar |
38 DLR (AD) 106 |
Custody of Infant
|
Mohammedan Law Hizanat (Custody of Infant)
–Mother preferred to be the guardian of the minor.
Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106.
|
Md Abu Bakar Siddiqui vs SMA Bakar |
38 DLR (AD) 106 |
Mohammedan Law
|
Mohammedan Law
There may not be presumption of jointness of family in the Muslim Law, but
the fact has been established that after the death of Faizuddin Sheikh,
father of the plaintiffs and defendant No.l, the members of Faiz-uddin's
family were in one mess and the income of the property left by Faizuddin
was in the common fund of the plaintiffs and the defendant No.l and in the
background of the said fact the lower appellate Court observed that by the
money of the joint fund of the plaintiffs and the defendant No.l the
auction purchase was made. It was not established that the defendant No.2
had any independent source of income.
Daliluddin Sheikh vs Alek Sheikh 14 BLC (AD) 32.
|
Daliluddin Sheikh vs Alek Sheikh |
14 BLC (AD) 32 |
Whether non-registration of the marriage
|
Mohammedan Law on Marriage
Whether non-registration of the marriage under Mohammedan Law makes the
marriage illegal or irregular or non-existent
A doctrine of Muslim Marriage - Held; The recognized custom of all sects
are that a marriage is solemnized by a person conversant with the
requirements of the law who is designated for the occasion, the Kazi. Two
other persons, formally appointed for the purpose, act on behalf of the
contracting parties, and the terms are usually embodied in a deed of
marriage called 'Kabin-nama'. Under the Sunni law what is required more is
that a declaration should precede the acceptance, in order to demonstrate
conclusively the intention of the parties. A marriage contracted without
witnesses is invalid. But a marriage contracted at a place where compliance
with it is impracticable, the marriage would not be void on that ground.
Where it is possible to obtain testimony, and the ceremony of marriage has
gone through without the presence of witnesses to attest its performance,
it may be declared to be invalid. The condition of testimony, therefore, is
not so essential that it can not be dispensed with. Once the marriage is
consummated and the parties have cohabited, the contractual defect is
removed; and the marriage is declared to be legitimate.
Mst. Momtaz Begum Vs. Anowar Hossain 20 BLT (AD) 143
|
Mst. Momtaz Begum Vs. Anowar Hossain |
20 BLT (AD) 143 |
Muslim Law
|
Muslim Law
The donor executed a deed of ‘Arpannama by making a provision for the
donee. Thereby for enjoyment of usufruct of the land gifted but prohibiting
any kind of transfer during her life time having reservation therein of
heirship if donors heirs after donees death. Such deed is not a deed of
gift, but a gift of usufruct knownin Muslim law as ‘Ariyat”. There is a
distinction between gift (Hiba) and Arlyat’ in Muslim law. Such gift by
Arpannama is not a gift of corpus, but a gift of usufruct for life, which
is permissible as the Muslim law stands today in the sub-continent.
[Paras-10, 11, 12 & 16]
Rebjel Mondal Vs. Didar Mondal & Ors. 3 BLT (AD)-83.
|
Rebjel Mondal Vs. Didar Mondal & Ors. |
3 BLT (AD) 83 |
Custody of the daughters of a broken home
|
Muslim Law
Custody of the daughters of a broken home
The petitioner father claimed custody of both the daughters, alleging that
respondent mother had not been looking after the children properly since
she had re-married—Held: We have carefully perused the impugned judgment
which has at length taken notice of all the facts attending the question of
welfare of the two children, The learned Judge in his anxiety also examined
the two children in his chamber. The elder daughter clearly made her
preference to live with her father and similarly the younger one opted for
the mother. It seems from their examinations that both the children have
fairly and intelligently developed their own preferences and keeping in
view the subsequent family life of both the petitioner and the respondent,
we do not think that the learned Judge of the High Court Division acted
wrongly or in detriment to the interest of the children in any way by
modi1ring the decree of the Courts below, We are satisfied that the
impugned order will be in the best interest of the girls. [Para-6]
Major (Retd.) Rafiq Hasan Farook Vs. Zeenat Rehana & Ors 7 BLT (AD)-106.
|
Major (Retd.) Rafiq Hasan Farook Vs. Zeenat Rehana & Ors |
7 BLT (AD) 106 |
Muslim Law
|
Muslim Law
The donor executed a deed of “Arpannama” by making a provision for the
donee. Thereby for enjoyment of usufruct of the land gifted but prohibiting
any kind of transfer during her life time having reservation therein of
heirship if donor’s heirs after donee’s death. Such deed is not a deed
of gift, but a gift of usufruct known-in Muslim law as “Ariyat”. There
is a distinction between gift (Hiba) and ‘Ariyat’ in Muslim law. Such
gift by ‘Arpannama’ is not a gift of corpus, but a gift of usufruct for
life, which is permissible as the Muslim law stands today in the
sub-continent.
Rebjel Mondal Vs. Didar Mondal & Ors. 3BLT (AD)-83
|
Rebjel Mondal Vs. Didar Mondal & Ors. |
3 BLT (AD) 83 |
Custody of the daughters
|
Muslim Law
Custody of the daughters—of a broken home
The petitioner father claimed custody of both the daughters, alleging that
respondent mother had not been looking after the children properly since
she had re-married—Held: We have carefully perused the impugned judgment
which has at length taken notice of all the facts attending the question of
welfare of the two children. The learned Judge in his anxiety also examined
the two children in his chamber. The elder daughter clearly made her
preference to live with her father and similarly the younger one opted for
the mother. It seems from their examinations that both the children have
fairly and intelligently developed their own preferences and keeping in
view the subsequent family life of both the petitioner and the respondent,
we do not think that the learned Judge of the High Court Division acted
wrongly or in detriment to the interest of the children in any way by
modifying the decree of the Courts below. We are satisfied that the
impugned order will be in the best interest of the girls.
Major (Retd.) Rafiq Hasan Farook Vs. Zeenat Rehana & Ors. 7BLT (AD)-106
|
Major (Retd.) Rafiq Hasan Farook Vs. Zeenat Rehana & Ors. |
7 BLT (AD) 106 |
Pardanashin lady—
|
Muslim Personal Law
Pardanashin lady —transaction involving transfer of Property —question
of special onus
The proposition of law relating to special burden of prove in respect of
the Heba-bil-ewaz deed in question if considered in the background of the
admitted facts that on the self same date Rativan Bibi executed 2
Heba-bil-ewaz deeds, one in favour of the defendant who is the son of
Rativan Bibi’s deceased daughter Rokeya and another in favour of Rativan
Bibi’s daughter Rahela and that as no exception was taken in respect of
the Heba-bil-ewaz deed in the name of Rativan Bibi’s daughter Rehela
conclusion can safely be arrived at that Rativan Bibi executed the Heba
deed in favour of his grandson through her daughter at the relevant time
deceased and in favour of her another daughter totally of her own free will
and she (Rativan Bibi) executed the deed being fully aware of the contents
thereof and the nature of the transaction as deposed by the D.Ws.2 and 6 in
respect of whom hardly any exception legally sustainable can be taken. It
is seen from the judgment of the High Court Division that while the said
Division considering the transaction in question in favour of the defendant
referring to the concept of special onus with regard to a transaction
entered into by a pardanashin lady failed to consider the material fact
that Rativan Bibi on the same date executed 2 (two) documents, one in
favour of the defendant and other in favour of her daughter Rahela and
registered the same subsequently on the same date, but taking exception
only in respect of the transaction in respect of the defendant. It has
already been mentioned that the defendant has established by the evidence
of D.Ws.2 and 6, that Rativan Bibi, the grandmother of the defendant
executed the document in favour of the defendant after being aware of the
nature of the transaction.
Mustafizur Rahman Vs. Md. Amjad Hossain 16 BLT (AD)104
|
Mustafizur Rahman Vs. Md. Amjad Hossain |
16 BLT (AD) 104 |
Heba-bil-ewaz deed—
|
Muslim Personal Law
Heba-bil-ewaz deed— Product of fraud or undue influence —Burden of
proof
The plaintiff has filed the suit alleging fraud in bringing into existence
the deed in question. The law is now settled that one who alleges fraud for
setting particular transaction, the burden lies on him —That the
transaction in question was not the product of fraud or undue influence is
evident from the fact as stated hereinbefore, that Rativan Bibi on the same
date executed 2 Heba-bil-ewaz deed, one in favour of the defendant and
another in favour of her daughter and later on registered the said deeds on
the same date, but taking exception only in respect of the transaction made
in favour of the defendant. Had the transactions were the product of fraud,
coercion or undue influence or had the transactions been not the product of
Rativan’s free will and that had the Heba-bil-ewaz deeds were not
executed and registered by her without understanding the nature of the
transaction and of being unaware of the contents of the documents, Rativan
Bibi would in the normal course of conduct and behavior have taken
exception to both the transactions instead of that she is taking exception
only in respect, of one transaction i.e. the transaction which was made in
favour of the defendant and this shows lack of bonafide on her part and
that she being influenced by some other interested persons, as contended by
the defendant by the sons of Amzad, one of the sons of Rativan Bibi,
instituted the suit.
Mustafizur Rahman Vs. Md. Amjad Hossain 16 BLT (AD)104
|
Mustafizur Rahman Vs. Md. Amjad Hossain |
16 BLT (AD) 104 |
Custody of the Minor girl aged about 4 years
|
Muslim Family Law
Custody of the Minor girl aged about 4 years
Admittedly under the principle of Mohammadan Law, Hijanat of a minor
daughter naturally devolves upon mother and maternal grand-mother to the
exclusion of the father and his mother. The welfare of the minor daughter
is the paramount consideration in the matter of allowing custody. But in
case of female child the mother is entitled to natural custody of the minor
girl until and unless the mother acquired disqualification, the custody of
minor daughter is usually given to the mother who serve the welfare of the
minor most than other relations including the father and the grand-mother
and grand-father.
George Bin Shams Vs. Amir Ali Chowdhury and Ors. 13BLT(AD)155.
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George Bin Shams Vs. Amir Ali Chowdhury and Ors. |
13 BLT (AD) 155 |
Mohamedan Law of Bequest–
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Mohamedan Law of Bequest–
Bequest by a Mohamedan to his heir of any quantum of property requires the
consent of his other heirs after his death to be valid. But a bequest by a
Mohamedan to any stranger (other than his heir) upto one-third of the
surplus of his property which remains after payment of his funeral expenses
and debts is valid and does not require consent of the heirs of the
testator. Bequest to a stranger over and above one-third of the property of
the testator which remains after payment of funeral expenses and debts of
the testator requires the consent of the heirs of the testator after his
death to be valid. .....Rabeya Khatoon(Most.) =VS= Jahanara alias Shefali
Bewa, (Civil), 2018 (1) [4 LM (AD) 298]
....View Full Judgment
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Rabeya Khatoon(Most.) =VS= Jahanara alias Shefali Bewa |
4 LM (AD) 298 |
Mohamedan Law of Bequest:
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Mohamedan Law of Bequest:
Bequest by a Mohamedan to his heir of any quantum of property requires the
consent of his other heirs after his death to be valid. But a bequest by a
Mohamedan to any stranger (other than his heir) upto one-third of the
surplus of his property which remains after payment of his funeral expenses
and debts is valid and does not require consent of the heirs of the
testator. Bequest to a stranger over and above one-third of the property of
the testator which remains after payment of funeral expenses and debts of
the testator requires the consent of the heirs of the testator after his
death to be valid. …Rabeya Khatoon & ors Vs. Jahanara & ors, (Civil), 9
SCOB [2017] AD 40
....View Full Judgment
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Rabeya Khatoon & ors Vs. Jahanara & ors |
9 SCOB [2017] AD 40 |
Valid marriage–
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Principles of Mohammedan Law
The Family Courts Ordinance, 1985
Valid marriage– Where there has been prolonged and continuous
cohabitation as husband and wife, in the absence of direct proof a
presumption arises that there was a valid marriage– The Family Court on
assessment of the evidence of Shadrul Islam (P.W.2), Madu Mia (P.W.3),
Swapan (P.W.4) and Babul Mia (P.W.5) came to the definite finding that the
respondent married the appellant and that they lived as husband and wife,
and decreed the suit. The Court of appeal below affirmed the judgment. A
single Bench of the High Court Division in exercise of revisional
jurisdiction reversed the judgments of the courts below and dismissed the
suit.
Once the marriage is consummated and the parties have cohabited, the
contractual defect is removed; and the marriage is declared to be
legitimate.
There are unanimous views of the jurists and authorities that even in the
absence of formal proof of a valid marriage, a marriage can be presumed by
evidence of conduct and reputation, and the question of consummation forms
often an important element in the status of valid marriage.
Where there has been prolonged and continuous cohabitation as husband and
wife, in the absence of direct proof a presumption arises that there was a
valid marriage. The law permits no specific ceremony for the contractual
performance of a marriage: and no religions rites are necessary for
contracting a valid marriage. There are even opinions that a marriage may
be constituted without any ceremonial and even in the absence of direct
proof, indirect proof might suffice.
Therefore, the decision of the High Court Division is based on a
misconception of the basic principles of Mohammedan Law and thus the
interference of the judgments of the Courts below is an error of law
apparent on the face of the record. The evidence on record sufficiently
proved that there was existence of legal marriage between the appellant and
respondent. The appeal is, allowed with costs of Tk.10,000/-. ...Momtaz
Begum(Mst.) =VS= Anowar Hossain, (Civil), 2020 [9 LM (AD) 153]
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Momtaz Begum(Mst.) =VS= Anowar Hossain |
9 LM (AD) 153 |