Sitaram Sah v. Bibi Aisa Khatoon — 1985 DIGILAW 155 (PAT)

JUDGMENT : P.S. Mishra, J. The plaintiffs have moved this Court in appeal against the JUDGMENT : and decree of affirmance by the Subordinate Judge, Sitamarhi in Title Appeal no. 27/1974, 4/1980 holding that they have failed to prove their title and possession over the suit land. 2. The plaintiffs filed the suit for declaration of title and confirmation of possession over the lands mentioned in schedule I of the plaint or in the alternative if dispossessed during the pendency of the suit, for a decree for recovery of possession, stating that on 16.8.1969 defendants 7 and 8 executed a sale deed in their favour and by virtue of the said sale deed they acquired title in the lands mentioned in schedule I of the plaint and came in possession thereof. One Abdul Mazid Nadaf had two daughters, defendant nos. 1 and 7 and three nephews defendant nos. 5, 6 and 8. After his death, his two daughters and three nephews inherited the properties left by him. The daughters, Mostt. Aisa and Mostt. Amana got 1/3rd share each and the nephews, defendants 5, 6, and 8 got 1/9th share each in the said properties. There was a partition between them. Schedule II lands measuring 17 kathas were allotted to defendants 7 and 8. On 16.8.1969 they transferred the said land to plaintiff no. 1. The plaintiffs came in possession. Defendants 1, 5, and 6 however, started interfering with their possession over 7 kathas of land situate in Sitamarhi and 1 katha land situate in Bhabdepur. A proceeding under section 144 of the Code of Criminal Procedure was started and converted into a proceeding under section 145 of the Code of Criminal Procedure between the parties. The same was decided against the plaintiffs-appellants. Hence the suit. 3. Defendant nos. 1 to 4, who have contested the suit, have pleaded that Abdul Mazid Nadaf had only one brother, Abdul Rahim alias Jittu Mian, who died in the life time of Abdul Mazid Nadaf leaving behind two sons, Md. Taiyab and Md. Nadaf, defendants 5 and 6 respectively. Defendant no. 8 is a creature of the plaintiffs-appellants and an imposter set up by the plaintiffs. They have denied that the two daughters and three nephews succeeded to the properties of Abdul Mazid Nadaf as legal heirs and came in possession of the same. Taiyab and Md. Nadaf, defendants 5 and 6 respectively. Defendant no. 8 is a creature of the plaintiffs-appellants and an imposter set up by the plaintiffs. They have denied that the two daughters and three nephews succeeded to the properties of Abdul Mazid Nadaf as legal heirs and came in possession of the same. The story of partition, as set up by the plaintiffs-appellants between the daughters of Abdul Mazid Nadaf is false. The plaintiffs vendors had no title in schedule II property. They have also said that Abdul Mazid Nadaf had no male issue. He had only two daughters, Mostt. Aisa and Mostt. Amana. His wife had already died. Aisa was an issueless widow and dependent upon Abdul Mazid Nadar. Amana was married at Bairgania in a well-to-do family. Abdul Mazid Nadaf executed a will in favour of Mostt. Aisa after consulting his daughter Mostt. Amana and mother and guardian of the two nephews. On the basis of the said will, the two daughters came in possession. Mostt. Aisa came in possession of the schedule II lands. Md. Nadaf and Md. Taiyab, the two nephews of Abdul Mazid Nadaf executed a deed of Ladavi disclaiming any interest in the properties of Abdul Mazid Nadaf under the said deed. Amana got 9 kathas of land of survey plot no.38 at Sitamarhi and came in possession of the same. Aisa executed a Waqf and dedicated an area of 1 Bigha 19 dhurs land to Jama Masjid, Sitamarhi and herself remained Muttwalli. After the death of Abdul Mazid Nadaf the lands were mutated in her name. Amana had no right title or interest over the suit land and the sale deed dated 16.8.1969 executed by her in favour of the plaintiff no. 1 is collusive, bogus and fraudulent. 4. The suit was tried in the court of the Munsif (East), Sitamarhi. He dismissed the suit holding that Abdul Mazid Nadaf had no third brother-namely, Manjhi Mian who had a son Md. Hussain Nadaf and he is not the legal heir of Abdul Mazid Nadal. He also found that the plaintiffs vendors had no right, title and interest over the suit land. The plaintiffs' appeal has been disposed of by the learned Subordinate Judge, Sitamarhi holding that the defendant-respondents have been able to prove possession on the basis of the will executed by Abdul Mazid Nadaf in favour of Mostt. Aisa and Mostt. He also found that the plaintiffs vendors had no right, title and interest over the suit land. The plaintiffs' appeal has been disposed of by the learned Subordinate Judge, Sitamarhi holding that the defendant-respondents have been able to prove possession on the basis of the will executed by Abdul Mazid Nadaf in favour of Mostt. Aisa and Mostt. Amana and the plaintiffs have failed to prove their title and possession. 5. Mr. Rameshwar Prasad II, learned counsel for the appellants, has contended before me that the will dated 13.7.1968 (Ext. A) executed by Abdul Mazid Nadaf in favour of his daughters Aisa and Amana is invalid in law. He has in the alternative contended that even if Abdul Mazid Nadaf's competence to execute the will is admitted, disposition of the properties in the manner done by the exceeds surplus of his estate after payment of funeral expenses and debts and admittedly the heirs did not consent after the death of the testator to the disposition by the will. The courts below have, therefore, committed error of law in upholding the bequest in these circumstances. 6. Mr. Wasi Akhtar, learned counsel, appearing for the respondents, however, has contested the contention and submitted that in view of the finding recorded by the courts below that the will had been acted upon, the consent should be presumed and the testator's right to bequeath should not be allowed to be questioned by one or the other heir collaterally. 7. The above contention has to be decided on the presumption that there is no dispute that defendants 7 and 8 are heirs of the deceased testator, Abdul Mazid Nadaf, as are defendants 1, 5 and 6. Learned counsel, appearing for the parties, have, however, accepted that atleast competence of the defendant no. 7 to question the validity of the gift is not in doubt. The sources on the subject of wills are, the Hidaya, Fatawa Alamgiri and Baillie. Every Mohammadan of sound mind and not a minor may dispose of his property by will made either verbally or in writing, but a bequeath to an heir is not valid unless the other heirs' consent to the bequeath after the death of the testator. Any single heir may consent so as to bind his own share. Every Mohammadan of sound mind and not a minor may dispose of his property by will made either verbally or in writing, but a bequeath to an heir is not valid unless the other heirs' consent to the bequeath after the death of the testator. Any single heir may consent so as to bind his own share. In determining whether a person is or is not an heir, regard has to be had not to the time of the execution of the will but to the time of the testator's death. True, consent may be inferred from the conduct of the heirs, but the consent is necessary to give effect to the bequeath after the death of the testator. No heir is entitled to any interest in the propel by of a Mohammedan in his life time. The fact that an heir consented to a bequeath to a co-heir during the life time of the testator is of no consequence, unless it is shown that he consented to such bequeath after the death of the testator. It has been held in Inzul Jabbar Khan vs. Chairman, District Kutchery [(1956) Nagpur 501] that a will containing a bequeath excluding the female heirs and mutation of names could give no presumption that the heirs excluded from the will sub silencio consented to it. It follows, therefore, that consent should be eloquent enough to give effect to the bequeath. A Mohammedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequeath in excess of the legal third cannot take effect unless the heirs' consent thereto after the death of the testator. The limit of one-third is not laid down in the Koran, but it stands sanctioned from a tradition. That has been acknowledged as the rule by all concerned. It follows, therefore, that (1) a bequeath to an heir for its validity must show that other heirs consented to the bequeath (2) the consent must appear after the death of the testator; (3) a bequeath cannot be made of more than a third of the surplus of his estate after payment of funeral expenses and debts; and (4) even such bequeath of the legal third cannot to take effect unless the heirs consent thereto after the death of the testator. 8. 8. It is apparent that none of the courts below have addressed themselves to this aspect of the law. The defendants pleaded that Abdul Mazid Nadaf executed the will after taking the consent of defendant no. 7, they have, of course, denied that defendant no. 8 is a legal heir of Abdul Mazid Nadaf. Defendant no. 7 bas undoubtedly executed the sale deed on 16.8.1969 along with defendant no. 8. By her conduct she has demonstrated that she either had' no knowledge of the will or she was not consenting to its being given effect to. Consent during the life time of Mazid Nadaf is of no relevancy unless it is shown that the daughter consented to the bequeath after his death. There is nothing on the record to show whether the funeral expenses and debts were covered by some other property and the disposition by the will was not more than a third of the surplus of Abdul Mazid Nadaf's estate. These two infirmities are, in my view, serious errors of law and in the absence of either of the two being complied with, the will shall not be a valid will. As there is nothing available to determine the extent of the validity of the will, I have no hesitation in holding that the courts below have committed error of law in holding that the will executed by Abdul Mazid Nadaf dated 13.7.1968 (Ext. A) made a valid disposition and deprived the defendant no. 7 and/or other heirs of any interest in the said property. 9. It is not possible, however, to finally adjudicate whether there was a partition as claimed by the plaintiff appellants and defendants 7 and 8; and whether defendants 7 and 8 were competent having valid title to transfer the land in favour of the plaintiffs, because even after removal of the will and any disposition covered by it, it is not possible to conclude these matters only on the basis of the findings of fact recorded by the courts below. The case has to be remitted to the court of appeal below for a re-hearing and a decision in accordance with law. 10. In the result this appeal is allowed, the JUDGMENT : and decree of the court of the Subordinate Judge, Sitamarhi in Title appeal no. The case has to be remitted to the court of appeal below for a re-hearing and a decision in accordance with law. 10. In the result this appeal is allowed, the JUDGMENT : and decree of the court of the Subordinate Judge, Sitamarhi in Title appeal no. 27/4 of 1979/1980 are hereby set aside, and the case is remitted to the court of the learned Subordinate Judge, Sitamarhi for are-hearing and decision in accordance with law. On the facts and in the circumstances of the case there shall be no ORDER :as to costs. Appeal allowed.