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1989 DIGILAW 886 (ALL)

Abdul Kareem v. Abdul Majeed

1989-12-01

K.C.AGRAWAL

body1989
JUDGMENT : K. C. Agrawal, A.C.J. 1. This is a plaintiff's second appeal arising out of a suit for partition. 2. Abdul Kareem, Abdul Wahid, Abdul Majeed and Abdul Aziz were four brothers. Abdul Wahid died on 29th March, 1969. It was thereafter that Abdul Kareem filed the aforesaid suit for partition of his l/3rd share in the properties left by the deceased. The suit was contested by defendants Nos. 1, 2, 4, 5 and 6. Defendants Nos. 1 and 2 were brothers of Abdul Wahid whereas defendants Nos. 4 to 6 were the nephews of the deceased. 3. Under the Mahomedan Law, the properties belonging to Abdul Wahid could be inherited by all of his three brothers, the plaintiff and defendants nos. 1 and 2. 4. Defendants Nos. 1 and 2 set up a will alleged to have been executed by Abdul Wahid in respect of his properties. They asserted that as the plaintiff Abdul Kareem gave his consent to the will, as was required by the Mahomedan Law, he was not entitled to get 1/3rd share. Under the will, the plaintiff had been given a Khaprail which was in his occupation and he had agreed to the same. On the pleadings of the parties, one of the issues, which arose for decision, was issue No. 7, which runs as follows :- "Did the plaintiff agree to the alleged will ? If so, its effect ?" Paragraph 117 of Mulla's Mahomedan Law runs as under :- "Bequest to heirs-A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share Explanation-In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the testator's death." Thus, under the Mahomedan Law, a will would not be valid unless the heirs gave their consent to it after the death of the testator. 5. In the instant case, defendants Nos. 1 and 2 pleaded that such a consent was given by the plaintiff, but that was denied by the latter. Neither did the trial court nor the lower appellate court understand the controversy. 5. In the instant case, defendants Nos. 1 and 2 pleaded that such a consent was given by the plaintiff, but that was denied by the latter. Neither did the trial court nor the lower appellate court understand the controversy. They appear to have proceeded on the basis that the consent given during the life time of the testator validated the will. That was not correct. The courts below should have examined oral, documentary and circumstantial evidence to find whether consent was given by Abdul Kareem after the death of Abdul Wahid. 6. Defendants Nos. 1 and 2 produced Mohammad Ishaq DW 1, Rehmatullah DW 3 and Abdul Majeed DW 4. Mohammad Ishaq, who was the scribe of the will, stated that Abdul Kareem had been called by the deceased at the time of the execution of the will. This did not satisfy the requirement of the law. He did not state as to whether Abdul Kareem had given his consent after the death of Abdul Wahid. The evidence of DW 3, who was a marginal and attesting witness of the will, also establishes, if at all, that the plaintiff had been called by the deceased at the time of the execution of the document. The testimony of DW 4 was of little help to establish that any consent had been given by the plaintiff that he would be bound by the share assigned to him under the will. Thus, the evidence of these defence witnesses was not sufficient to hold that the plaintiff had given his consent after the death of Abdul Wahid to be bound by the share given to him under the will. Sri Qadeer, appearing for defendants Nos. 1 and 2 urged that as defendants nos. 1 and 2 had not established the consent of the plaintiff, the latter may be entitled to get his share partitioned to the extent of 1/3rd, but that would not be possible in the case of other defendants. He referred to paragraph 118 of Mulla's Mahomedan Law in support of his argument. As I am not called upon to decide this controversy in this appeal, I refrain from expressing any opinion on the same. 7. In the result, the appeal succeeds and is allowed. The decrees of the two courts below are set aside and the suit of the plaintiff is decreed for partition in terms prayed for. As I am not called upon to decide this controversy in this appeal, I refrain from expressing any opinion on the same. 7. In the result, the appeal succeeds and is allowed. The decrees of the two courts below are set aside and the suit of the plaintiff is decreed for partition in terms prayed for. The plaintiff would be entitled to get costs of all the courts.