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2010 DIGILAW 922 (HP)

Sidi (dead) through l. rs. v. Munti

2010-07-05

SURJIT SINGH

body2010
JUDGMENT : Surjit Singh, J. This Regular Second Appeal, by the defendants, is directed against the judgment and decree, dated 19.11.1997, of learned District Judge (first appellate Court) by which appeal of the appellants-defendants against the judgment and decree, dated 12.5.1993, of learned Sub Judge, thereby decreeing the suit of the plaintiffs, has been dismissed and the decree of the trial Court upheld. 2. Late Mahboob Khan (now represented by his legal representatives) filed a suit for declaration that he and Smt. Sidi, his step-mother and Smt. Tajo, his mother, had inherited the estate of his father Wali Momammed, in accordance with Hanafi Law and according to that law, defendant Sidi and his mother Tajo, had inherited only 1/8th share in the estate of said Wali Mohammad and the rest of the property had been inherited by him. He also sought a declaration that mutation dated 25.8.1982, copy Ext. DW2/A, mutating a portion of the estate in favour of the widows of deceased Wali Mohammad, on the basis of Will Ext. DW1/A, was illegal and not binding on his rights. He claimed that the parties being Sunis were governed by Hanafi Law and in accordance with that law he had inherited 7/8th share in Wali Mohammad's estate. 3. Suit was contested by the appellants-defendants. Defendant Sidi (now dead and represented by her legal representatives) pleaded that Will Ext. DW1/A had been executed, by which the entire suit property had been bequeathed by Wali Mohammad in favour of his two widows, including herself. 4. Various issues were framed by the trial Court. During the pendency of the suit, defendant Sidi sold some property to Fatehdin, Rehmat and Basarat Ali, who were impleaded as defendants. 5. Trial Court gave finding that the parties were governed by Hanafi Law and according to that law, a Mohammedan was not competent to make Will in excess of 1/3rd share of his estate. It did not record any finding with regard to the validity of the Will set up by the appellants-defendants. Suit was decreed, with the finding that Wali Mohammad was not competent to make Will according to Hanafi Law, which governed the parties. Appeal was carried to District Judge, which stands dismissed by the judgment and decree, under appeal. 6. This appeal was admitted on the following substantial questions of law: 1. Whether learned Addl. Distt. Judge has misconstrued, misinterpreted Ext. Appeal was carried to District Judge, which stands dismissed by the judgment and decree, under appeal. 6. This appeal was admitted on the following substantial questions of law: 1. Whether learned Addl. Distt. Judge has misconstrued, misinterpreted Ext. DW2/A (mutation No. 2066), order of Collector dated 15.6.83 Ext. DW2/B and other material on record to conclude that there was no consent of Mehboob Khan to the Will dated 18.9.76 Ext. DW1/A of Wali Mohammed. 2. Whether on the principle of estoppel by conduct the plaintiff is bound by the Will dated 26.5.79 Ext. PW2/A of Wali Mohammed set up by him. 3. Whether the learned Distt. Judge has misconstrued, misinterpreted and misapplied the law relating to Will and inheritance of Suni Muslims. 4. Whether the suit is within limitation. 5. Whether the learned Courts below are right in passing the injunction decree against a co-sharer. 6. Whether the sale deed dated 18.9.91 Ext. DW5/A is hit by the principle of lis-pendens. 7. I have heard the learned Counsel for the parties and gone through the record. 8. It is admitted by both the parties that they are governed by Hanafi law and that according to that law, bequest by a Suni Mohammedan, in excess of 1/3rd of his surplus estate, cannot take effect, unless the heirs consent thereto after the death of the testator. In the present case, admittedly, plaintiff Babu Khan did not consent to the bequest in excess of 1/3rd share, because he not only contested the mutation proceedings, but also challenged the order of mutation by filing appeal before the Collector. 9. The two Courts below have held that the Will is not valid, because it has been made in respect of the entire property. The view taken by the two Courts below is not correct, because Section 118 of Mulla's Principles of Mahomedan Law makes it plainly clear that bequests, in excess of 1/3rd part of the property, cannot take effect, unless the heirs consent thereto after the death of the testator. That means, a Will made by a Suni Mohammedan, in excess of 1/3rd share, is not invalid in its entirety, but only to the extent it is in excess of 1/3rd part of the property of the testator and that too if the heirs of the testator do not consent to the bequest in excess of 1/3rd part of the property. This legal position has been totally ignored by the two Courts below. 10. Trial Court as also the first Appellate Court have not given any finding whether the will set up by the appellants-defendants had been lawfully executed. In the absence of a specific finding as to the validity of the Will so far as its execution is concerned, it cannot be presumed that the Will is genuine or not. This is a question of fact and a finding is required to be given by the trial Court. 11. For the foregoing reasons, appeal is accepted. Judgment and decree of the District Judge as also those of the trial Court are set aside and case is remanded to the trial Court with a direction to record a finding of fact as to the execution of the Will, set up by the appellants-defendants, and then to decide the case in accordance with the correct proposition of Hanafi Law as to the competence of a Suni Mohammedan to make Will. Parties are directed to appear before the trial Court on 4th August, 2010. Record of the trail Court be returned alongwith a copy of this judgment, so as to reach the trial Court, well before the aforesaid date. Appeal stands disposed of accordingly.