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2012 DIGILAW 543 (MP)

Abdul Aziz v. Abdul Ateeq

2012-05-16

K.K.TRIVEDI

body2012
JUDGMENT : This appeal is directed against the judgment and decree dated 24-12-2003 passed in Regular Civil Suit No. 153-A/2000 by the II Additional District Judge, Bhopal, whereby the suit filed by the respondent has been decreed. Originally M.C.C. was filed by the appellants, which under the order of the Court, has been converted into the first appeal and is registered as such. 2. Brief facts giving rise to filing of this appeal are that the respondent/plaintiff claiming himself entitled to grant of decree of declaration and possession, filed an application for grant of permission to file the suit in forma pauperism as indigent person. Upon due consideration, the Court below reached to the conclusion that the respondent was liable to pay the Court fees and upon payment of the Court fees, regular civil suit was registered. The claim made by the respondent/plaintiff in the suit was that the property in dispute originally belongs to one Abdul Shakur, who died leaving behind his widow Rehman Bi, who also died in the year 1978. There were three legal heirs of the aforesaid persons, namely Abida Sultan, Abdul Aziz (original defendant No. 1) and Abdul Latif, Said Abdul Latif died issueless. His wife, who was pregnant at that time, remarried and the respondent/plaintiff born. The property was to be distributed amongst the aforesaid three persons as per the Mohammaden Law but instead of distributing the said property, 1/2 each share was kept by Abida Sultan and Abdul Aziz. Later on Abida Sultan executed a Will in favour of the respondent/plaintiff bequeathing the aforesaid property to the respondent/plaintiff. A relinquishment deed was also executed in between Abida Sultan and Abdul Aziz settling their right on the suit property and accordingly the plaintiff/respondent became the owner of the property after the death of Abida Sultan, who died on 20-2-1997. Since the appellants were interfering in the rights of respondent/plaintiff, the suit was required to be filed. 3. The said claim of the respondent/plaintiff was contested by the appellants and a written statement was filed stating that the aforesaid Abida Sultan alone was not the owner of the property. As per the Muslim Law, the respondent/plaintiff was not entitled to any claim. In fact a Hibanama was executed by Abida Sultan on 16-2-1980 and a part of the property was gifted to Iftikhar Ahmed, Akeel Ahmed and Nafees Ahmed. As per the Muslim Law, the respondent/plaintiff was not entitled to any claim. In fact a Hibanama was executed by Abida Sultan on 16-2-1980 and a part of the property was gifted to Iftikhar Ahmed, Akeel Ahmed and Nafees Ahmed. After the gift executed by said Abida Sultan, the map was got sanctioned by the original defendant Abdul Aziz and a house was got constructed on the said plot. Thus, it is contended that the alleged Will said to be executed by Abida Sultan was fraudulent document. No relinquishment deed was ever executed by the original defendant Abdul Aziz and as such the respondent/plaintiff was not entitled to any right over the suit property. Further it was contended that the appellants/defendants have never taken forceful possession of the property in suit. In fact throughout they were in possession of the suit property. It was contended that since respondent/plaintiff was not a kin out of the wedlock of Abdul Latif and his wife, he was not entitled to claim any share in the property. During the pendency of the civil suit, since the original defendant No. 1 Abdul Aziz died, his widow, one son and a daughter were substituted as his legal representatives. The appellants No. 2 and 3, though are the legal representatives of aforesaid Abdul Aziz, were already impleaded as defendants in the suit. 4. The trial Court framed the issues on the basis of the pleadings of the parties, recorded the evidence and after hearing the final arguments, decreed the suit in favour of respondent/plaintiff by the impugned judgment and decree. Hence, this appeal is required to be filed. 5. It is vehemently contended by the learned Counsel for the appellants that from the evidence available on record, even if it is held that the respondent was the kin of Abdul Latif, in view of the Hiba executed by Abida Sultan with respect to her share in the property, the respondent/plaintiff was not entitled to any claim. It is contended that Will said to be executed by Abida Sultan in favour of respondent/plaintiff was not proved. Similarly, the document Exhibit P-14, the relinquishment deed, was not to be treated as proved and, therefore, there was no evidence available on record to grant any relief in favour of the respondent/plaintiff as claimed. It is contended that Will said to be executed by Abida Sultan in favour of respondent/plaintiff was not proved. Similarly, the document Exhibit P-14, the relinquishment deed, was not to be treated as proved and, therefore, there was no evidence available on record to grant any relief in favour of the respondent/plaintiff as claimed. On the contrary, the evidence was produced by the appellants, documentary as also oral, to prove that the Hiba was executed much before by Abida Sultan in favour of the appellants and, therefore, after execution of this Hiba, which was duly accepted by the appellants, there was no question of executing any Will. Further at no point of time any claim was made by the respondent/plaintiff to indicate that he too was entitled to any such claim as made in the suit and, therefore, the suit was hopelessly barred by limitation. Instead of dismissing the suit, decree has been granted in favour of the respondent/plaintiff. Therefore, the decree is bad in law and is liable to be set aside. 6. In response to such submissions of learned Counsel for the appellants, learned Counsel for the respondent has contended that there was no partition amongst the legal heirs of Abdul Shakur and Rehman Bi. There is proof of the fact that respondent/plaintiff was the son of Abdul Latif. If no share was given to the wife of Abdul Latif or if the respondent/plaintiff was born after the death, a share was required to be given to him in the property of Abdul Shakur and Rehman Bi as per Mohammedan Law but nothing was given to him and as such the stand taken by these appellants in this appeal is not justified in view of the specific provisions of inheritance made in the Mohammedan Law. It is further contended that the respondent/plaintiff was living with his aunt Abida Sultan in the same house and since he was the nephew of said Abida Sultan, out of love and affection and after settlement of properties between Abida Sultan and Abdul Aziz, the Will was executed in favour of respondent/plaintiff. Since the Will was executed, the respondent/plaintiff was entitled to get the benefit of such a Will. From the evidence adduced on record, it is contended that such rights were proved and, therefore, the decree was rightly granted. Since the Will was executed, the respondent/plaintiff was entitled to get the benefit of such a Will. From the evidence adduced on record, it is contended that such rights were proved and, therefore, the decree was rightly granted. It is vehemently contended that relinquishment deed was a registered document and it carries much more weight than unregistered document of Hiba. Therefore, the Court below has committed no error in granting the claim of respondent/plaintiff and decreeing the suit. Thus, it is contended that the appeal being bereft of any merit, deserves dismissal. 7. Heard learned Counsel for the parties at length and perused the record. 8. Parties to the litigation are Muslims and are governed by the Mohammedan Law. The law of Will as prescribed in Chapter-XIII, Rule 184 of the Mohammedan Law makes it clear that a Will may be executed in writing or oral, showing a clear intention to bequeath the property. However, a limitation is also prescribed that a valid Will by a Mohammedan will not be for more than 1/3 of the surplus of his/her estate and that to a non-heir. Now it is to be examined whether Abida Sultan was having more than what she has bequeathed to the respondent/plaintiff. Though attestation of a Will by a Mohammedan is not necessary and the same is not required to be proved in the manner, Will is required to be proved under the Indian Succession Act, yet it is to be seen that whether the testator was in a position to execute such a Will and whether the said Will was accepted as all transactions in Mohammedan Law are based on the principle of acceptance. The Will is said to be executed on 27-12-1989. Undisputedly, Abida Sultan died on 20-2-1997. Since thereafter the claim with respect to the Will was not made immediately as is clear from the plaint, which itself was filed as M.J.C. in the year 1999. Only the respondent/plaintiff, who was examined as PW-1, stated about the execution of the Will. Though there were attesting witnesses of the said document and it was categorically admitted by the respondent/plaintiff that one of the attesting witnesses was still alive, no attempt was made to produce the attesting witness so as to rule out any doubt whether the Will was ever executed by said Abida Sultan or not. Though there were attesting witnesses of the said document and it was categorically admitted by the respondent/plaintiff that one of the attesting witnesses was still alive, no attempt was made to produce the attesting witness so as to rule out any doubt whether the Will was ever executed by said Abida Sultan or not. The evidence in this respect adduced by the respondent is examined. In paragraph 7 of his cross-examination as PW-1, he categorically admits that one of the attesting witness was alive. He gave the reference to the document Exhibit P-14, which was said to be a relinquishment deed but no attempt was made to indicate whether the said Abida Sultan was competent to make such a Will or not even as per the Mohammedan Law. These aspects have not been examined by the Court below in appropriate manner. 9. As against this, first of all the execution of Exhibit P-14 was denied by one person, who is said to have relinquished his rights, i.e. original defendant No. 1. By filing written statement, he categorically said that he never signed the said document. No attempt was made to get the signatures of Abdul Aziz proved. Only certain witnesses were examined, who said that relinquishment deed was signed by said Abdul Aziz. The document was said to be executed on 18-4-1995. The defence put by the appellants was that Abida Sultan has executed a Hiba in favour of sons of original defendant Abdul Aziz. The said document was written on 16-2-1980. If the property inherited by Abida Sultan was already gifted and said gift was already accepted, whether such a document was registered or unregistered, the right to hold the property by a Muslim had come to an end the day Hiba was executed and the same was accepted. This particular aspect is required to be examined with respect to the provisions of Mohammedan Law. Chapter XIV, Part-4, of the Mohammedan Law deals with the gifts. Rule 201 defines the gift by a Muslim, which reads that a gift is a transfer of property or right by one person to another in accordance with the provisions of Mohammedan Law and a Hiba is an immediate and unconditional transfer of the ownership of some property or some right without any consideration or with some return. Rule 201 defines the gift by a Muslim, which reads that a gift is a transfer of property or right by one person to another in accordance with the provisions of Mohammedan Law and a Hiba is an immediate and unconditional transfer of the ownership of some property or some right without any consideration or with some return. Thus, if the gift was executed by said Abida Sultan with respect to very same property, which has been accepted by the donee, it was not open to said lady to execute any Will in favour of the respondent/plaintiff. Even the relinquishment deed was said to be executed much after this Hiba and the part of the property, which was left by Abdul Aziz, was not the part of the property, which was gifted by Exhibit D-3 by Abida Sultan. These material aspects though were proved, were totally ignored by the trial Court. 10. The evidence in respect of Hiba was adduced by the appellants and this particular aspect has been specifically stated by DW-1 Mohd. Nafees, who was exhaustively cross-examined but nothing could be proved. On the contrary, the said witness has categorically stated that his father Abdul Aziz was signing in Hindi and English languages and the document Exhibit P-14 was not containing the signature of his father. He further categorically contended that there were no signatures of Abida Sultan on Exhibit P-13 and P-14. The other witness Iftikhar Ahmed DW-2 had also not accepted the signature of Abida Sultan or his father Abdul Aziz. Other witnesses namely Tarik Mohammed, who was examined as DW-3 as well as Munne Khan, DW-4, also contended the same. He categorically contended that Hibanama was written in his presence and the same was duly accepted by the donee. 11. As comparison to the evidence adduced by the appellants, the respondent/plaintiff could not produce the valid proof of the Will. On the other hand, as per Muslim Law, the Will was not to be accepted at all in view of the fact that the property willed was already gifted much earlier by the testator. In view of this, findings recorded by the Court below are totally perverse and cannot be sustained. 12. On the other hand, as per Muslim Law, the Will was not to be accepted at all in view of the fact that the property willed was already gifted much earlier by the testator. In view of this, findings recorded by the Court below are totally perverse and cannot be sustained. 12. Learned Counsel for the appellants has placed his reliance in the case of Kallo Bai vs. Babu Khan, 2009(3) MPLJ 231 , categorically contending that a Muslim cannot bequeath more than 1/3 of his estate. The total bequeathed by Abida Sultan was de hors the principle of Mohammedan Law. As against this, learned Counsel for the respondent has put his reliance in the case of Badar Zaman vs. Amir Ullah and others, AIR 1937 Lahore 57, stating that registered document has priority over unregistered one. In view of the facts as have come on record and in view of the evidence produced, even if the relinquishment deed was said to be a registered document, it would not have priority over the unregistered Hibanama as per the provisions of the Mohammedan Law. Something which was not owned by the said Abida Sultan, could not have been bequeathed by execution of a Will. This being so, the reliance placed by learned Counsel for the respondent in the case of Badar Zaman (supra) cannot be accepted. 13. Now the last question would be whether respondent/plaintiff was entitled to a share in the property left behind by Abdul Shakur and Rehman Bi or not. Though much is said about the birth of the respondent/plaintiff and it is said that he born out of the wedlock of second marriage of wife of Abdul Latif and he cannot be treated to be the son of Abdul Latif, an heir who was to receive the share in the property left by Rehman Bi. The inheritance is required to be examined as per the Mohammedan Law. The right of inheritance as is prescribed under Part-3, Chapter-IX, specifically prescribes the degrees in which the property of a Muslim, who dies issueless, are to devolve. The respondent was required to prove such a fact, which he could not. Though he has placed on record of the Court below to show that he born before the death of his father Abdul Latif, but such fact could not be proved. The respondent was required to prove such a fact, which he could not. Though he has placed on record of the Court below to show that he born before the death of his father Abdul Latif, but such fact could not be proved. It is prescribed in Rule 122 of the Mohammedan Law that the right of an heir comes into existence only on the death of person, whom he is an heir. However, what was the date of birth of the respondent/plaintiff and when his father has died, is required to be examined. He said in paragraph 3 of his Court statement that he was born on 25-10-1964 and the death of his father has taken place after two months of his birth. A definite proof of the death of the father might have been produced by the respondent/plaintiff as it was alleged by the appellants/defendants that Abdul Latif had died in the year 1962. However, both the parties have failed to produce the evidence in this respect and the conclusive proof of the date of death of Abdul Latif was not produced. The pleadings indicate that the respondent/plaintiff was claiming that he was living with his aunt Abida Sultan at the same residence and that being so, his name was recorded in the ration card. In all his documents produced, the name of father of the respondent/plaintiff was said to be Abdul Latif. However, no evidence was produced by the appellants/defendants in this respect to indicate that the respondent/plaintiff was not living at the said house or that he was not to be treated a member of the family. Evidence produced by the appellants/defendants is also insufficient in this respect and, therefore, it was not proper on the part of the Court below to record any definite finding with respect to the parenthood of the respondent/plaintiff. In fact an issue should have been framed in this respect and a definite finding should have been recorded by the Court below. Having failed to consider such aspect, it was not correct on the part of the trial Court to decree the suit of the respondent/plaintiff. 14. In the considered opinion of this Court, findings recorded by the Court below cannot be accepted. The impugned judgment and decree is, thus, liable to be set aside. Having failed to consider such aspect, it was not correct on the part of the trial Court to decree the suit of the respondent/plaintiff. 14. In the considered opinion of this Court, findings recorded by the Court below cannot be accepted. The impugned judgment and decree is, thus, liable to be set aside. The suit is liable to be remitted back to the Court below for recording definite finding with respect to the parenthood of the respondent/plaintiff after granting an opportunity of adducing evidence to the parties and to decide the said issue. Needless to say that the findings recorded by this Court with respect to execution of the Will in favour of the respondent/plaintiff will remain operative and the issues framed in this respect are not to be decided again by the Court below. A limited enquiry with respect to the parenthood of respondent/plaintiff would be conducted and the findings would be recorded in this respect. 15. Accordingly, the appeal is allowed to the extent indicated hereinabove. The judgment and decree passed by the Court below is set aside. The suit is remitted back to the trial Court for conduct of the trial on the issue of parenthood of respondent/plaintiff as directed hereinabove. There shall be no order as to cost. Appeal allowed.