Research › Search › Judgment

Gauhati High Court · body

2000 DIGILAW 70 (GAU)

Hashida Khatoon v. Akhtar Hussain

2000-02-22

J.N.SARMA

body2000
J.N. SARMA, J. — This is an appeal by the defendant. The respondent herein brought a suit being Title Suit (Probate) No. 22/88 before the District Judge at Guwahati for probate of the will of the deceased Chakina Bibi. An objection was filed on behalf of the present appellant wherein the main thrust was that as the property divested by way of will was more than l/3rd share of the will property of the deceased Chakina Bibi, this will cannot be probated in view of Clause 118 of the Mohammedan Law. Clause 118 of the Mohammedan Law lays down the limit of testamentary power: "118. Limit of testamentary power : A Mohammedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator(e)." 2. Evidently there is no consent of the heirs as objector is also one of the heir, and on such objection the learned Judge framed as many as six issues and following witnesses were examined: i) Md. Akhtar Hussain ii) Topaswar Das, iii) N. Ch. Das, iv) Aftab Hussain and v) Nijuddin Ahmed. 3. On behalf of the defendant the following witnesses were examined. Smt. A.U. Khatoon. 4. The learned Judge by judgment dated 31.8.96 held that the will was duly executed and attested and he found the will to be genuine one executed by the attestor. The objection with regard to Clause 118 of the Mohammedan Law as quoted above also was negatived on the ground that the attestor only by way of will digested less than l/3rd of the property. Having arrived at this finding the probate was granted. Hence this appeal. 5. I have heard Sri D.C. Mahanta, learned Advocate for the appellant and Mr. T.N. Phukan, learned Advocate for the respondent. Sri Mahanta first wants to urge that this will is hit by Clause 118 of the Mohammedan Law quoted above arid as indicated above this is factually incorrect. So, this contention of Mahanta fails through. The next contention as urged by Mr. Mahanta is that the 2/3rd of the property led by the attestor shall go to the heir. Sri Mahanta first wants to urge that this will is hit by Clause 118 of the Mohammedan Law quoted above arid as indicated above this is factually incorrect. So, this contention of Mahanta fails through. The next contention as urged by Mr. Mahanta is that the 2/3rd of the property led by the attestor shall go to the heir. There is no dispute with regard to this proposition and the learned Judge while disposing the application for probate has not dealt with that aspect of the matter in accordance with the Mohammedan Law. The 2/3rd of the property only will come to the heir and that will be distributed according to the entitlement. Mr. Mahanta, learned Advocate for the appellant relies on AIR 1986 (Andhra Pradesh) Page 159 (Vazeer Bee and another - Vs- Putti Begum) wherein the same law was laid down. 6. Accordingly, the appeal is dismissed. No costs.