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2001 DIGILAW 27 (HP)

MEHANDI HASSAN v. RAFIQUAN

2001-02-28

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.—The present second appeal at the instance of defendants 2 to 4 against the judgment and decree dated 1.6.1998 f the learned Additional District Judge, Nahan, has been admitted :or hearing on the following substantial questions of law : 1. Whether the Will Ex. DW 2/A dated 29.10.1988 has been proved to have been duly and properly executed in accordance with the principles of law governing such execution by Mohammedan? 2. Whether the first respondent daughter, having regard to the customs said to have been Government the parties, is entitled to inheritance in the estate of her father on his death and whether by her conduct she has acquiesced into and consented to the Will in Ex. DW 2/A? 2. The dispute between the parties pertains to the succession/ inheritance to the estate of the deceased Peesu Din, a Sunni Muslim, of village Nawada, Tehsil Paonta Sahib, District Sirmaur. The admitted pedigree table of the parties is as under:— Peesu Din Smt. Sadiquan Mustaq Smt. Rafiquan (widow) (son) (daughter) Plaintiff No. 2. Plaintiff No. 1 Defendant No. 1. Mehandi Hassan Ali Hassan Meer Hassan (son) (son) (son) (Defendants No. 2 to 4) 3. Peesu Din, above named was the owner and in possession of the following estate in village Nawada: (i) Land measuring 22 Bighas 5 biswas comprising of Khasra No. 135; (ii) Land measuring 6 Bighas 15 biswas comprising of Khasra No. 150; and (iii) Land measuring 16 bighas 2 biswas comprising of Khasra No. 247. 4. He died on 27.11.1988. After his death, the mutation of inheritance qua his estate as per customary Mohammedan Law came to be sanctioned on 14.12.1988 in favour of the two plaintiffs being his son and widow respectively. 5. Defendant No. 1 Smt. Rafiquan, the daughter of the deceased Peesu Din, feeling aggrieved preferred an appeal before the Collector, Sirmaur against the order dated 14.12.1988 sanctioning the mutation of inheritance in favour of the plaintiffs and to her exclusion. The appeal so preferred by the defendant No. 1 was allowed by the Collector on 12.4.1989. Defendant No. 1 was held entitled to succeed to the estate of the deceased Peesu Din to the extent of 7/24 share being 1/3 of"7/8 share. 6. The plaintiffs thereafter filed the suit out of which the present appeal has arisen assailing the order dated 12.4.1989 of the Collector. Defendant No. 1 was held entitled to succeed to the estate of the deceased Peesu Din to the extent of 7/24 share being 1/3 of"7/8 share. 6. The plaintiffs thereafter filed the suit out of which the present appeal has arisen assailing the order dated 12.4.1989 of the Collector. It was averred that defendant No. 1 as per the law governing the parties was not entitled to inherit the estate of the deceased. 7. Be it stated that during the pendency of the appeal before the Collector, defendants No. 2 to 4 (the present appellants) were impleaded as parties to the appeal since they were claiming the estate of the deceased on the basis of a Will alleged to have been executed by the deceased in their favour on 29.10.1988. In view of the same, the defendants No. 2 to 4 were impleaded as proforma defendants in the suit brought by the plaintiffs. Though, apparently no relief was claimed by the plaintiffs against defendants No. 2 to 4, the plaintiffs claimed inheritance to the estate of the deceased even to the exclusion of defendants No, 2 to 4. 8. Defendant No. 1, while resisting the suit averred that she being the daughter of the deceased has a right to inherit the estate of the deceased alongwith the plaintiffs and that the order of the Collector holding her to be entitled to the estate of the deceased to the extent of 7/24 share was valid, legal and binding. She denied the execution of the Will by the deceased in favour of the defendants No. 2 to 4 and pleaded that the same was false and forged. 9. Defendants No. 2 to 4 claimed to have succeeded to the estate of the deceased on the basis of the Will Ex. DW 2/A executed in their favour by the deceased on 29.10.1988. 10. On the pleadings of the parties, following issues were framed by the learned trial Court: 1. Whether only plaintiffs are entitled to inherit the estate of late Sh. Peesu Din on the basis of Customary Mohd. Law as alleged? OPP 2. Whether the order of Collector Paonta Sahib dated 17.4.1989 were wrong, false and illegal? OPP 3. Whether the plaintiffs are entitled for the relief of injunction as prayed? OPP 4. Whether the suit is not maintainable as per preliminary objection No. 1. OPD 2 to 4. 5. Peesu Din on the basis of Customary Mohd. Law as alleged? OPP 2. Whether the order of Collector Paonta Sahib dated 17.4.1989 were wrong, false and illegal? OPP 3. Whether the plaintiffs are entitled for the relief of injunction as prayed? OPP 4. Whether the suit is not maintainable as per preliminary objection No. 1. OPD 2 to 4. 5. Whether the plaintiffs have no cause of action? OPD 2 to 4. 6. Whether late Sh. Peesu Din executed a genuine and valid Will in favour of defendants No. 2 to 4 on 29.10. 1988? OPD 2 to 4. 7. Whether the defendants have become owner of the suit land on the basis of said Will dated 29.10.1988? OPD 2 to 4. 8. Whether the defendants No. 2 to 4 are entitled for the relief of permanent injunction? OPD 2 to 4. 9. Relief. 11. The learned trial Court found issues No. 2 and 3 against the plaintiffs. Issues No. 4 to 7 were held against defendants No. 2 to 4. Under issue No. 1, the learned trial Court came to the conclusion that plaintiff No. 2 Smt. Sadiquan (widow of the deceased) was entitled to l/8th share in the estate of the deceased, while plaintiff No. 1 Mustaq and defendant No. 1 Smt. Rafiquan being the son and daughter respectively of the deceased were entitled to inherit the estate of the deceased to the extent of 7/12 and 7/24 share respectively. Issue No. 8 was decided in favour of the defendants 2 to 4 and it was held that defendant No. 1 was not in possession of her share of the estate inherited by her. Consequently the suit of the plaintiffs was partly decreed for declaration and injunction. 12. Defendants 2 to 4 feeling aggrieved by the judgment and decree dated 9.6.1994 of the learned trial Court preferred an appeal before the learned Additional District Judge, Nahan. Such appeal was dismissed by the learned first appellate court on 1.6.1998. The findings of the learned trial Court on all the issues were affirmed. 13. I have heard the learned Counsel for the parties and gone through the record of the case. My findings on the above two substantial questions of law are as under : Question No. 1. 14. Ex. The findings of the learned trial Court on all the issues were affirmed. 13. I have heard the learned Counsel for the parties and gone through the record of the case. My findings on the above two substantial questions of law are as under : Question No. 1. 14. Ex. DW 2/A is the Will alleged to have been executed by the deceased Peesu Din on 29.10.1988 in favour of his grand-sons, defendants No. 2 to 4. 15. The parties admittedly are Sunni Muslims. Therefore, the validity of the Will Ex. DW 2/A is required to be examined under the principles of Mohammedan Law governing the parties and not in accordance with the provisions contained in Part VI subsisting of Sections 57 to 191 of the Indian Succession Act, 1925, since Section 58 of the said Act, excudes the application of Part VI of the Act to the testamentary succession to the property of a Mohammedan. 16. Under the Mohammedan Law governing the parties— (a) Every Mohammedan of sound mind and who is not a minor can dispose of his property by way of a Will, subject to the following limitations: (i) a bequest in favour of an heir cannot be made except with the consent of other heirs. A single heir may consent so as to bind his own share; (ii) bequest of not more than a third share of the surplus of the estate after payment of funeral expenses and other debts can be made. (iii) bequests in excess of the legal third share cannot take effect unless the heirs consent thereto after the death of the testator; (iv) if the bequests exceed legal third share and the heirs refuse their consent, the bequests abate rateably; (v) a bequest may be made to a child in the womb, provided it is born within six months from the date of Will; (vi) if the legatee does not survive the testator, the legacy would lapse and form part of the estate of the testator; (vii) a bequest may be made of any property capable of being transferred and which exists, at the time of testators death. It need not be in existence at the date of the Will. (b) A Will may be made by a Mohammedan either verbally or in writing. No specific form is prescribed therefore. It need not be in existence at the date of the Will. (b) A Will may be made by a Mohammedan either verbally or in writing. No specific form is prescribed therefore. It does not require to be signed by the testator, nor, if signed does it require attestation. The reason therefore being that a Mohammedan Will does not require to be in writing at all. 17. The mode of proving a Mohammedan Will is different from proving Will governed by the provisions contained in Part VI of Indian Succession Act, 1925. While a Mohammedan Will is required to be proved as required under Section 67, Evidence Act, 1872, a Will governed by the provisions contained in Part VI of the Indian Succession Act, 1925, is required to be proved as laid down under Section 68 of the Evidence Act, 1872. Therefore, the validity of the Will in question Ex. DW 2/A is required to be examined under the provisions of Section 67 of the Evidence Act, 1872. 18. So examined, the Will Ex. DW 2/A has been proved to have been executed by the deceased Peesu Din in favour of defendants 2 to 4 his grand-sons (who are admittedly not the legal heirs of the deceased under the law applicable to the parties). 19. Plaintiff No. 1, Mustaq, while appearing as PW 1 has categorically admitted the execution of the Will Ex. DW 2/A by the deceased Peesu Din in favour of the defendants No. 2 to 4. DW 2 Hans Raj is the scribe of the Will Ex. DW 2/A. He has deposed that the Will was scribed by him at the instance of the deceased Peesu Din, who at the relevant time was in a sound disposing mind. He has further deposed that the Will after having been scribed was read over and explained to the deceased, who after having admitted the contents thereof had appended his thumb impression thereon. To the same effect is the statement of DW 3 Khaleel, a marginal witness of the Will Ex. DW 2/A. 20. The defendants No. 2 to 4 have thus been able to discharge the burden placed on them to prove the Will Ex. DW 2/A. The two courts below while holding the Will to be not valid have followed the principles applicable to the Wills governed by the Indian Succession Act, 1925. DW 2/A. 20. The defendants No. 2 to 4 have thus been able to discharge the burden placed on them to prove the Will Ex. DW 2/A. The two courts below while holding the Will to be not valid have followed the principles applicable to the Wills governed by the Indian Succession Act, 1925. Therefore, such findings are wrong and cannot be sustained. 21. Vide Will Ex. DW 2/A the deceased has bequeathed his entire estate in favour of defendants No. 2 to 4. Under the law, he could not have made a bequest exceeding one third of his estate without the consent of the legal heirs of the deceased, namely, the plaintiffs and defendant No. 1. There is nothing on the record to show that the plaintiffs and/or the defendant No. 1 had ever consented to such a Will. Therefore, the Will Ex. DW 2/A in favour of the defendants No. 2 to 4 is valid only to the extent of one third share in the estate of the deceased. Qua the remaining two third share, the same is not valid. Question No. 2. 22. Under the Mohammadan Law governing the parties, there are three classes of heirs, that is— (a) Sharers—who are entitled to a prescribed share of the inheritance; (b) Residuaries—who take no prescribed share, but succeed to the residue after the claims of the sharers are satisfied; (c) Distant Kindred—these relations by blood who are neither sharers nor residuaries. 23. The mode of succession under the law governing the parties is that after payment of funeral expenses, debts and legacies, respective shares are to be assigned to the "Sharers" as are prescribed. If there are no "Sharers" or if there are "Sharers" but there is a residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves upon "Residuaries" as per prescribed share. If there is a residue left after satisfying the claims of "Sharers" and there is no "Residuary" the residue reverts to the "Sharers" in proportion to their shares. In case there be no "Sharers" or "Residuaries", the inheritance is divided by "Distant kindred". 24. If there is a residue left after satisfying the claims of "Sharers" and there is no "Residuary" the residue reverts to the "Sharers" in proportion to their shares. In case there be no "Sharers" or "Residuaries", the inheritance is divided by "Distant kindred". 24. In the present case, after leaving out the legacy made in favour of defendants No. 2 to 4 to the extent of l/3rd share in the estate of the deceased, 2/3rd share therein is available for inheritance by the plaintiffs and defendant No. 1. Plaintiff No: 2 Smt. Sadiquan, being the widow of the deceased, as "Sharer" would inherit l/8th share in the left over estate of the deceased, that is, l/8th of 2/ 3rd. The share of plaintiff No. 2 Smt. Sadiquan would be to the extent of 1/12 in the whole estate of the deceased. 25. Plaintiff No. 1 Mustaq and defendant No. 1 Smt. Rafiquan as son and daughter respectively of the deceased would be entitled to inherit the estate of the deceased as as "Residuaries" in the residue, after deducting the shares of plaintiff No. 2 and defendants No. 2 to 4 in the whole estate of the deceased. So calculated the shares of plaintiff No. 1 and defendant No. 1 in the estate of the deceased would be as under:— (i) Plaintiff No. 1 Mustaq 2/3rd of 7/12 = 7/18 (ii) Defendant No. 2 Smt. Rafiquan l/3rd of 7/12 7/36 Relief. 26. As a result, the present appeal is allowed. The judgments and decrees of the two courts below are set aside. A decree for declaration is passed declaring the parties to have succeeded to the estate of the deceased Peesu Din in the following shares:— (i) Plaintiff No. 1 Mustaq 7/18 (ii) Plaintiff No. 2 Smt. Sadiquan 1/12 (iii) Defendant No.l Smt. Rafiquan 7/36 (iv) Defendants No. 2 to 4, Mehandi Hassan, Ali Hassan and Meer Hassan 1/3 27. Resultantly, the order dated 17.4.1989 of the Collector, Paonta Sahib is also set aside. Defendant No. 1 Smt. Rafiquan while appearing as DW 1 on 26.6.1991 has admitted that she is not in possession of any part of the estate of the deceased. She is, therefore, restrained from interfering with the possession of the plaintiffs and defendants No. 2 to 4 till partition of the joint holding. Parties are left to bear their own costs. Appeal allowed.