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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4516-4517 OF 2023

ZOHARBEE & ANR. … APPELLANT(S)

Versus

IMAM KHAN (D) THR.

LRS. & ORS. …RESPONDENT(S)

J U D G M E N T

SANJAY KAROL, J.

1. In these appeals, challenge is laid to final judgment and

order dated 1

st

March 2012 in Second Appeal No.435 of 2011

with Civil Application No.10306 of 2011 passed by the High

Court of Judicature at Bombay, Bench at Aurangabad whereby

the appellants assailed the order of the First Appellate Court in

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RCA No.87 of 2005

1

dated 4

th

March 2005, overturning the

findings of the Civil Court

2

, was rejected.

2. The short conspectus of facts is that the appellant’s

husband namely Chand Khan passed away and now this litigation

pertains to the property he left behind, between his surviving

spouse namely Zoharbee

3

and his brother i.e. Respondent Imam

Khan

4

. The plot of land which is germane to the dispute is land

S.No.22/3 and 22/1 of Gut No. 107 and Gut No.126. It is the

plaintiff’s case that all the property left behind by the deceased

Chand Khan is matruka property and since he died issueless, as

per Mohammedan law the former would be entitled to 3/4

th

of the

total property and only the remaining 1/4

th

would fall in the rights

and entitlements of defendant no.1. On the other hand, the case

as per defendant no.1 is that the land bearing gut no.126 already

stood transferred to the third party in the lifetime of Chand Khan

by an Agreement to Sell dated November 1999 with defendant

no.2 and 3 namely, Pandit Fakirrao Bodkhe and Bhausaheb

Fakirrao Bodhke, and so the said property cannot be the point of

contention in the instant proceedings. In so far as the other piece

of land is concerned, it is contended that the same stood

transferred to the sole and exclusive ownership and possession of

1

District Judge, Aurangabad

2

2

nd

Jt. Civil Judge (J.D.) Aurangabad in RCS No.310/99

3

Hereinafter Defendant No.1

4

Hereinafter Plaintiff

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defendant no.1 many years prior to the death of Chand khan but

in the challenging circumstances of the latter’s continued illness,

the same was sold to one Ayub Khan who is defendant no.4 and

part consideration of such sale stood received in the life of Chand

Khan and the remaining, subsequently after his death. Therefore,

nothing remains to be partitioned in terms of matruka property.

3. The learned Civil Court agreed with the contentions of

defendant no.1 and partly decreed the plaintiff’s suit in so far as

the property sold to defendant no.4 is concerned for the reason

that he chose not to contest the suit in any way whatsoever and

did not file a written statement. Regarding the remaining

property, it was observed that the Agreement to Sell entered into

between the parties in the lifetime of Chand Khan stood duly

proved by way of examination of witnesses (defendant no.2 and

3) and, therefore, no property remained to be divided between the

successors in interest of the deceased. It was acknowledged that

the sale deed was executed by Zoharbee after Chand Khan had

died however the said fact was not treated as material in view of

the evidence presented.

4. The plaintiff, being aggrieved, filed the first appeal under

Section 96 of the Code of Civil Procedure. The First Appellate

Court vide judgment dated 30

th

June 2011 reversed the findings

of the Civil Court and held that the plaintiff’s suit was entirely

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maintainable. In other words, the plaintiff would be entitled to

3/4

th

of the total property in the name of the deceased. A further

reason for arriving at such a finding was that an Agreement to

Sell does not confer any right. The rights would stand vested with

the third party only upon the execution of the sale deed which

was done after his death. At the time of death therefor, the

property was still vested in Chand Khan.

5. In Second Appeal, by way of the impugned judgment, it is

recorded that no substantial question of law arises for

consideration. The learned Single Judge thereafter proceeds to

consider the contentions raised by either side which, for the

defendant no.1 are the points that were raised before the learned

Civil Court and on behalf of the plaintiff were those that were

raised before the First Appellate Court. Although we have some

reservations with the fact that the learned Single Judge proceeded

to examine the contentions on merit despite arriving at a finding

that no substantial question arose for consideration, we proceed

further. Suffice it only to say that when a Court is of the view that

no substantial question arise it has no choice but to dismiss, in

limine the appeal-but still has to give reasons therefor. [See: Surat

Singh (dead) v. Siri Bhagwan 2018 (4) SCC 562 and Hasmat Ali

v. Ameena Bibi & Ors. 2021 SCC Online SC 1142].

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6. Two issues arise for consideration one, whether the

agreement to sell in so far as one portion of the property would

be sufficient to exclude the same from the scope and expands of

matruka property to be partitioned at the time of his death and

second whether the properties of deceased Chand Khan qualify

as matruka properties within the meaning of Mohammedan law.

7. An agreement to sell does not confer any rights nor does it

vest any interest into the party that agrees thereby to buy a

particular property. This is a well acknowledged position in law.

In Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana,

(2012) 1 SCC 656, the law was clarified as follows:

“16. Section 54 of the TP Act makes it clear that a contract of

sale, that is, an agreement of sale does not, of itself, create any

interest in or charge on such property. This Court in Narandas

Karsondas v. S.A. Kamtam [(1977) 3 SCC 247] observed:

(SCC pp. 254-55, paras 32-33 & 37)

“32. A contract of sale does not of itself create

any interest in, or charge on, the property. This is

expressly declared in Section 54 of the Transfer of

Property Act. (See Ram Baran Prasad v. Ram

Mohit Hazra [AIR 1967 SC 744 : (1967) 1 SCR

293] .) The fiduciary character of the personal

obligation created by a contract for sale is

recognised in Section 3 of the Specific Relief Act,

1963, and in Section 91 of the Trusts Act. The

personal obligation created by a contract of sale is

described in Section 40 of the Transfer of Property

Act as an obligation arising out of contract and

annexed to the ownership of property, but not

amounting to an interest or easement therein.

33. In India, the word ‘transfer’ is defined with

reference to the word ‘convey’. … The word

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‘conveys’ in Section 5 of the Transfer of Property

Act is used in the wider sense of conveying

ownership.

***

37. … that only on execution of conveyance,

ownership passes from one party to another….”

17. In Rambhau Namdeo Gajre v. Narayan Bapuji

Dhotra [(2004) 8 SCC 614] this Court held: (SCC p. 619, para

10)

“10. Protection provided under Section 53-A

of the Act to the proposed transferee is a shield

only against the transferor. It disentitles the

transferor from disturbing the possession of the

proposed transferee who is put in possession in

pursuance to such an agreement. It has nothing to

do with the ownership of the proposed transferor

who remains full owner of the property till it is

legally conveyed by executing a registered sale

deed in favour of the transferee. Such a right to

protect possession against the proposed vendor

cannot be pressed into service against a third

party.”

18. It is thus clear that a transfer of immovable property by

way of sale can only be by a deed of conveyance (sale deed).

In the absence of a deed of conveyance (duly stamped and

registered as required by law), no right, title or interest in an

immovable property can be transferred.

19. Any contract of sale (agreement to sell) which is not a

registered deed of conveyance (deed of sale) would fall short

of the requirements of Sections 54 and 55 of the TP Act and

will not confer any title nor transfer any interest in an

immovable property (except to the limited right granted under

Section 53-A of the TP Act). According to the TP Act, an

agreement of sale, whether with possession or without

possession, is not a conveyance. Section 54 of the TP Act

enacts that sale of immovable property can be made only by a

registered instrument and an agreement of sale does not create

any interest or charge on its subject-matter.”

(emphasis supplied)

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Holding in Suraj Lamp (supra) was recently followed in

RBANMS Educational Institution v. B. Gunashekar, 2025

SCC OnLine SC 793.

8. In view of the above, the view taken by the First Appellate

Court and the High Court cannot be faulted with. The property

agreed to be sold was, at the relevant time still the property of

Chand Khan and therefore would be subject to division of

property as per the applicable law. In other words, said property

would form part of ‘matruka’ property which has been defined

by the Courts as under:

In Jamil Ahmad v. Vth ADJ, Moradabad, (2001) 8 SCC 599:

“11. The property (both movable as well as immovable) left

by a deceased Muslim is called matruka. The scheme of

distribution of matruka among the heirs of a deceased

Muslim is that first that part of the matruka which is

covered by a will of the deceased, if there is a valid will

(subject to a maximum of 1/3rd of the

total matruka provided it is not in favour of an heir) will be

separated and given to the legatee. The balance

of matruka alone is distributable among the heirs and in the

proportion ordained under the Mohammedan law.

However, in regard to bhumiswami land the distribution

of matruka will be governed by Sections 169 and 171 of the

ZALR Act. Consequently the limitation placed under the

Mohammedan law that the bequest should not exceed 1/3rd

of the matruka of the deceased and it should not be in

favour of an heir, will not apply; so also classification of

heirs and the proportion in which they will

inherit matruka under the Mohammedan law is replaced

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with the provisions of Section 171 of the ZALR Act in

which a different order of succession is provided.”

(emphasis supplied)

A judgment of fairly recent vintage also refers to the

pronouncement above. In Trinity Infraventures Ltd. V. M.S.

Murthy, 2023 SCC OnLine SC 738, it was observed:

“93. Before we proceed further, it may be necessary to

decode certain words and expressions used in these

proceedings from the beginning. If not, they will continue

to haunt and frighten the reader. Therefore, a glossary is

presented as under:

(i) Matruka: The property, both movable as well

as immovable left by a deceased

muslim is called Matruka

6

.

9. Reference may also be made to John T Platts’ A Dictionary

of Urdu, Classical Hindi and English’

5

which defines ‘matruka’

as the estate of a deceased person. Also, as per the Rekhta

Dictionary, ‘matruka’ is a word of Arabic origin and means

“abandoned from his possession (property etc.)[,] left by

immigrants (property etc.) [,] inherited wealth and property etc.

6

.

It is clear from the above that matruka property simply refers to

property left behind by deceased person and nothing more.

Regarding the devolution of matruka property, it has to be

5

Digital Dictionaries of South Asia, University of Chicago, See:

https://dsal.uchicago.edu/cgi-bin/app/platts_query.py?page=992

6

https://www.rekhtadictionary.com/meaning-of-matruuka

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observed that the Will is the first document that is to be satisfied

subject to the limits imposed by Muslim Law, namely, that it

cannot exceed one-third of the estate and cannot ordinarily be

made in favour of an heir without the consent of the other heirs,

and then whatever remains hereafter, is to be distributed strictly

as per the rules of intestate succession prescribed in Muslim Law.

10. Since the Agreement to Sell has no value in the eyes of

law, all the property that vested in Chand khan would become

matruka property. The next question then to be considered is as

to how the division thereof would take place.

11. In Mohammedan Law, the division of property is well

defined. The Holy Quran itself delineates how division of

property is to take place. Chapter IV, Verse 12 reads as under:

“And for you is half of what your wives leave if they have

no child. But if they have a child, for you is one fourth of

what they leave, after any bequest they [may have] made or

debt. And for the wives is one fourth if you leave no child.

But if you leave a child, then for them is an eighth of what

you leave, after any bequest you [may have] made or debt.

And if a man or woman leaves neither ascendants nor

descendants but has a brother or a sister, then for each one

of them is a sixth. But if they are more than two, they share

a third, after any bequest which was made or debt, as long

as there is no detriment [caused]. [This is] an ordinance from

Allah , and Allah is Knowing and Forbearing.”

7

7

https://legacy.quran.com/4/12#:~:text=And%20for%20you%20is%20half,may%20have%

5D%20made%20or%20debt.

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12. It would also be useful to, at this stage, refer to Mulla

Principles of Mahomedan Law

8

which in this regard says as

follows:

Ҥ51. Heritable property There is no distinction in the

Mahomedan law of inheritance between movable and

immovable property or between ancestral and self-acquired

property.

…

A. THREE CLASSES OF HEIRS

§ 61. Classes of heirs There are there classes of heirs,

namely, (1) Sharers, (2) Residuaries, and (3) Distant

Kindred:

(1) “Sharers” are those who are entitled to a prescribed

share of the inheritance;

(2) “Residuaries” are those who take no prescribed share,

but succeed to the “residue” after the claims of the sharers

are satisfied

(3) “Distant Kindred” are all those relations by blood who

are neither Sharers nor Residuaries.

…

B. SHARERS

§ 63. Sharers- After payment of funeral expenses, debts,

and legacies, the first step in the distribution of the estate, of

a deceased Mahomedan is to ascertain which of the

surviving relations belong to the class of sharers, and which

again of these are entitles to a share of the inheritance, and,

after this is done, to proceed to assign their respective shares

to such of the sharers as are, under the circumstances of the

case, entitled to succeed to a share. The first column in the

accompanying table contains a list of sharers; the second

column specifies the normal share of each sharer; the third

column specifies the conditions which determine the right

of each sharer to a share, and the fourth column sets out the

shares as varied by special circumstances.

8

22

nd

Edition

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TABLE OF SHARES-SUNNI LAW

Sharers

Normal Share

Condition under

which the normal

share is inherited

---

Of one Of two or more

collectively

Wife 1/8 1/8 When there is a

child or child of a

son h.1.s

1/4 when no child

or child of a son

h.1.s

”

13. The first and foremost thing to be accomplished with the

estate of a deceased person is the payment for expenses, debts

and legacies. Thereafter, comes allotment of shares to such

relations who are entitled to a prescribed share. What follows is

that if any part of the estate remains, the same is divided among

the residuaries. Should there be a situation where there are no

sharers, the residuaries will come into the entirety of the

inheritance. It is further provided that if there are neither sharers

nor residuaries, ‘distant kindred’ shall be entitled to the same.

14. A perusal of the above extracted principles of Muslim Law

of inheritance depicts that the sharers are entitled to a prescribed

share of the inheritance and wife being a sharer is entitled to 1/8

th

the share but where there is no child or child of a son how low so

ever, the share to which the wife is entitled is 1/4

th

.

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15. Since the rules governing inheritance are clear and there is

no room for subjective analysis, the proportions assigned have to

be necessarily followed. The property in question is

unquestionably matruka property and so has to be distributed

amongst the survivors of Chand Khan, as per the principles laid

down in this regard. The Civil Court, therefore, clearly fell in

error taking into consideration an incomplete sale wherein the

sale deed had not been executed and excluding the said property

from the total that had to be divided. Additionally, we may also

observe that the defendant no.1, in executing the sale deed had

the right only to do so in respect of the 1/4

th

share that fell in her

share and not the entire property for the maxim governing such

transactions is nemo dat quod non habet which translates to no

one can transfer a better title onto another than what they

themselves have.

16. Consequent to the above discussion, it has to be held that

the First Appellate Court and the High Court took the correct

view in law. As such no interference is called for.

17. Before parting with the matter, we record our

dissatisfaction with the manner in which the judgment of the

learned Civil Court was translated into English. In matters of law,

words are of indispensable importance. Each word, every comma

has an impact on the overall understanding of the matter. Due

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care has to be taken to ensure that the true meaning and spirit of

the words in the original language are translated into English for

the Courts in appeal to comprehend what had transpired below.

Just recently, a Co-ordinate bench also highlighted similar

concern vide order dated 18

th

March 2025 in Chairman

Managing Committee & Anr v. Bhaveshkumar Manubhai

Parakhia & Anr. We may only underscore the observations made

therein.

18. Appeals are dismissed. No costs. Pending application(s),

if any, stands disposed of.

……………… ……………………J.

(SANJAY KAROL)

……………………… …………… .J.

(PRASHANT KUMAR MISHRA)

New Delhi;

October 16, 2025.