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2012 DIGILAW 449 (MP)

Sahajad Khan v. Akthar Khan

2012-04-26

SHEEL NAGU

body2012
JUDGMENT 1. This Second appeal under section 100 of CPC is filed against the judgment and decree of first appellate Court which has reversed the findings of the trial Court dismissing the suit claiming a declaratory decree of title, possession and permanent injunction in respect of 1/4th share in the house No. 10/128 (25 X 35.9 sq.ft.) situated in ward No. 10 within the Municipal limit of District Guna. 2. With the consent of counsel for both the parties, this second appeal is heard on the question of admission. Findings of two Courts below and the records of both the Courts below is perused. 3. The arguments of learned counsel for rival parties are heard. 4. The plaintiff filed a suit claiming declaratory title of 1/4th share of the suit property as mentioned above on the basis that his father late Gafoor Khan died intestate on 12/05/2006 and that the plaintiff had never given any written or oral consent to his father enabling his father to right to Will in respect of said property therefore, as per the principle of inheritance followed under the Muslim Law, he is entitled to 1/4th share of the said property. 5. On the other hand learned counsel for defendant contended that plaintiff is entitled only 1/7th share of the suit property and not 1/4th share as claimed by him since late Gafoor Khan had left a Will which was duly registered and on the basis of which sons and daughters of Gafoor Khan had received their respective shares in the suit property. 6. The Trial Court held that since the plaintiff has failed to adduce any evidence that the Will was executed by late Gafoor Khan as regards more than 1/3rd share of the property in question therefore, the Will cannot be held to be ineffective especially when the Muslim Law does not require the Will to be registered one to assume the colour of legality and validity. The trial Court thus dismissed the suit of the plaintiff by holding that the plaintiff has failed to prove that the Will was illegal and ineffective. 7. The trial Court thus dismissed the suit of the plaintiff by holding that the plaintiff has failed to prove that the Will was illegal and ineffective. 7. The First Appellate Court has reversed the finding of the trial Court and held that in the absence of examination and cross examination of the attesting witnesses to the Will as required by sections 63 and 63(c) of the Indian Succession Act and section 68 of the Indian Evidence Act the Will cannot be proved. The first appellate Court further found on the basis of the decision in the case Narunnisa V. Shek Abdul Hamid AIR 1987 Karnataka 222 & Yasin Imambhai Shaikh V. Hajarabi AIR 1986 Bombay 357, that it is essential for any person under the Muslim Law claiming property under the Will to establish that heirs had consented to the bequeath when the bequeath is 1/3rd share or more of the estate. Thus it was held that consent was a precondition to render bequeath in excess of 1/3rd share of estate to be valid and effective in law. 8. The Trial Court further held that the onus to establish that the property bequeathed by way of Will in favour of the defendants was more or less than 1/3rd share of the estate of late Gafoor Khan was upon the defendants which they failed to discharge by failing to produce any evidence as to the quantum of property comprising the estate of late Gafoor Khan. In this manner, first appellate Court held that it is not proved that the property said to be bequeathed by way of alleged Will is less than 1/3rd of the estate of late Gafoor Khan and therefore, first appellate Court came to the conclusion that the defendants could not take any assistance from the Will. Accordingly, first appellate Court was of the view that since the pleas of Will raised by the defendants in his defence had failed to prove, the plaintiff was entitled to the declaratory decree of title and permanent injunction in respect of share in accordance with the principle of inheritance under the Muslim Law. 9. Accordingly, first appellate Court was of the view that since the pleas of Will raised by the defendants in his defence had failed to prove, the plaintiff was entitled to the declaratory decree of title and permanent injunction in respect of share in accordance with the principle of inheritance under the Muslim Law. 9. This second appeal has been filed proposing various substantial questions of law which according to the view of this Court do not arise in this case as all these questions proposed relates to the factual disputes which have been marshaled out by the first appellate Court and the findings has been rendered on correct appreciation of law on anvil of the material and evidence available. The burden of proving and establishing non-existence of Will raised as defence by the defendants before the Trial Court was wrongly shifted on the plaintiff. The first appellate Court has rightly held that Will has not been proved and the factum of the total estate of late Gafoor Khan not having been established, the question of calculating as to whether the Will had bequeathed more or less than 1/3rd share of the estate cannot be decided. 10. In view of the above, this Court is of the considered view that no fault can be found in the findings of the first appellate Court and neither any substantial question of law proposed nor any other arise for consideration in the instant case. 11. Accordingly, this second appeal deserves to be and is therefore dismissed.