JUDGMENT 1. - The appellant/plaintiff is in appeal, being aggrieved by the verdict of reversal recorded in S.B. Civil First Appeal No. 153/1980 interfering with the judgment and decree dated 29.10.1980 passed by the learned Additional District Judge No. 6, Jaipur City, Jaipur in Civil Suit No. 74/1979 decreeing his suit. 2. We have heard Mr. R.K. Agrawal, Senior Advocate assisted by Mr. Yogesh Pujari, learned counsel for the appellant/plaintiff and Mr.Bihari Lal Agrawal, learned counsel for the respondent/defendant. 3. In brief, the pleaded facts reveal that the appellant/plaintiff instituted the aforementioned suit praying for a decree for possession and mesne profits in respect of the suit property claiming to have purchased the same by registered deed of sale dated 1.8.1972 executed in his favour by Smt. Noor Jahan (since deceased), widow of Haji Wafati (also deceased). According to him, the suit property belonged to Haji Wafati initially being his share in the ancestral corpus. The appellant/plaintiff pleaded that Haji Wafati during his lifetime being the owner of the suit property, consequent upon a partition of the ancestral possessions, had bequeathed the same in favour of his wife Smt.Noor Jahan (Gaindi) on 2.1.1971 before his departure to Pakistan, whereafter the same was conveyed to him (appellant/plaintiff) by the registered deed of sale dated 1.8.1972 for a valuable consideration of Rs. 10,000/-. According to the appellant/plaintiff, on such purchase, he was also delivered the possession of the suit property. Alleging that he was wrongfully dispossessed therefrom by the respondent/defendant on 2.8.1972, reliefs, as above, were sought for. 4. Refuting the appellants' claim of title on the suit property, the respondent/defendant asserted his stake thereon on the basis of adverse possession. Apart from contending that the suit was not maintainable for non-joinder of necessary parties, he denied that Smt.Noor Jahan was the wife of Haji Wafati. He denied as well the execution of the Will dated 2.1.1971 by Haji Wafati in favour of Smt. Noor Jahan. He contended in the alternative that, assuming without admitting, that the said document was executed, Haji Wafati, under the Mohammedan Law, had no right to convey the suit property, being in contravention thereof. 5. He denied as well the execution of the Will dated 2.1.1971 by Haji Wafati in favour of Smt. Noor Jahan. He contended in the alternative that, assuming without admitting, that the said document was executed, Haji Wafati, under the Mohammedan Law, had no right to convey the suit property, being in contravention thereof. 5. On the basis of the pleadings, eleven issues were framed by the learned trial court, which are enumerated hereinbelow:- " 1- vk;k okn i= ds en ua0 1 esa of.kZr lEifRr dk o.kZu lgh gS\ 2- vk;k oknh }kjk n'kkZbZ xbZ oa'kkoyh lgh gSa\ 3- vk;k gkth oQkrh us fnukad 02&01&1971 dks viuh csxe uwjtgkWa mQZ xsanh ds gd esa fooknxzLr tk;nkn dks clh;r dh\ 4- vk;k fooknxzLr uksgjk dk rdlek en ua0 3 ckn i= ds vuqlkj gqvk o dejk iwoZ Hkkx esa oQkrh us crk;k\ 5- vk;k oknh ds firk us eqLerk uwjtgkWa ls fooknxzLr lEifRr 1972 esa 10]000@& esa [kjhnh ,oa mldk dCtk izkIr dj fy;k\ 6- vk;k izfroknh us fnukad 02&08&1972 dks okn i= ds en ua0 7 esa of.kZr rF;ksa ds vuqlkj fooknxzLr lEifRr ls oknh dks csn[ky dj fn;k o Lo;a dCtk dj fy;k\ 7- vk;k oknh izfroknh ls :0 100@& ekfld ds fglkc ls :0 5100@& izkIr djus dk vf/kdkjh gS\ 8- vk;k okn dk ewY;kadu de fd;k x;k gS o U;k;k'kqYd de vi;kZIr gS\ 9- vk;k okn esa vehj o xQwj iq= cQkrh] equCcj dks csok o iqf=;kWa Hkh vko';d i{kdkj gS\ 10- vk;k izfroknh dk iq[kkyQkuk dCtk }kjk fooknxzLr lEifRr dk ekfyd gS\ 11- nknjlh\ " 6. The parties adduced evidence, oral and documentary. In particular, the appellant/plaintiff brought on record and exhibited the Will dated 2.1.1971 and the registered deed of sale dated 1.8.1972. The learned trial court, on a consideration of pleadings of the parties and the evidence on record, decreed the suit as a whole. In answering the issues, it inter alia held that the suit property had been correctly described in the plaint and that the suit did not suffer from the defect of non-joinder of necessary parties. It was held, in arriving at this conclusion, by taking note of the evidence on record, that at the time of partition of India, two sons of Haji Wafati had left for Pakistan, whereafter they had acquired the Nationality of that country. It was held, in arriving at this conclusion, by taking note of the evidence on record, that at the time of partition of India, two sons of Haji Wafati had left for Pakistan, whereafter they had acquired the Nationality of that country. It also accepted the appellant/plaintiff's plea of partition of the ancestral property in two halves resulting in devolution of the suit property in Haji Wafati. That Smt.Noor Jahan alias Gaindi was the wife of Haji Wafati was also held. On an analysis of the evidence adduced, it was also recorded that such partition had not been categorically denied by the respondent/defendant. The appellant/plaintiff's assertion that the house on the suit land had been constructed by Haji Wafati, was also sustained. On a detailed evaluation of the testimony of the witnesses examined by the parties, the documents introduced by the respondent/defendant, namely, the electricity and water bills, to contend to the contrary, were discarded by the learned court below on the ground inter alia that those did not relate to the suit property and even if assumed to be so, were subsequent to the date of alleged dispossession i.e.2.8.1972. Referring to Section 190 of the Mohammedan Law, the learned trial court rejected the respondent/defendant's plea of want of authority of Haji Wafati to bequeath the suit property, being in excess of the share permissible. The respondent/defendant's contention that Smt. Noor Jahan was not the married wife of Haji Wafati or in the alternative that she was divorced much before the Will was executed, was rejected as well. A talaknama produced on behalf of the respondent/defendant to demonstrate that Smt.Noor Jahan was divorced by Haji Wafati during 1954-1955 was dismissed, being without any probative value and the Will dated 2.1.1971 was held to be proved in accordance with law. To reach this conclusion, the learned trial court inter alia referred to the testimony of two witnesses who had seen the execution of this document by the testator i.e. Haji Wafati in their presence. According to the learned trial court, the bequest of the suit property in favour of Smt. Noor Jahan was neither unusual nor absurd as she was the wife of Haji Wafati and had cared and accompanied him till 1971 when he left for Pakistan. It ruled against any suspicious circumstance to render the bequest fraudulent and manoeuvred. According to the learned trial court, the bequest of the suit property in favour of Smt. Noor Jahan was neither unusual nor absurd as she was the wife of Haji Wafati and had cared and accompanied him till 1971 when he left for Pakistan. It ruled against any suspicious circumstance to render the bequest fraudulent and manoeuvred. Relying on the register recording the Will, it also rejected the plea of anomaly in the date of execution thereof i.e.2.1.1971 or 2.1.1972 to discredit the document. The sale deed was also held to be proved, taking note inter alia of the fact that it was a registered document and executed in accordance with law. On an analysis of the oral evidence, the factum of dispossession of the appellant/plaintiff from the suit property was held to have been proved as well. 7. The learned Single Judge, deciding the appeal filed by the respondent/defendant, referred to Section 189 of the Mohammedan Law and returned a finding that Haji Wafati could not have bequeathed the suit property as a whole to Smt. Noor Jahan. Referring to certain suspicious circumstances as indicated on behalf of the respondent/defendant, namely, that the beneficiaries had taken active part in the execution thereof and that thereby Haji Wafati had totally deprived his sons, namely, Amir and Gafoor, through his first wife, the learned first appellate court held the Will to be wholly invalid. While noticing that there was no dispute that Haji Wafati had died before Smt. Noor Jahan, reliance was placed on a death certificate of the testator introduced through an affidavit of the respondent/defendant alongwith an application under Order 41 Rule 27 of the Code of Civil Procedure (hereinafter referred to as 'the Civil Procedure Code/Code'), to hold that Haji Wafati had died on 28.3.1973, and that therefore, the sale deed dated 1.8.1972 did not convey any right, title or interest in the suit property in favour of the appellant/plaintiff. In this regard, the finding that Smt. Noor Jahan had died in 1972 in Jaipur, on the basis of this certificate, was also recorded. The admission of the appellant/plaintiff as PW1 that Haji Wafati had gone to Pakistan one or two days after the execution of the impugned Will being accompanied by two sons was also referred to. In this regard, the finding that Smt. Noor Jahan had died in 1972 in Jaipur, on the basis of this certificate, was also recorded. The admission of the appellant/plaintiff as PW1 that Haji Wafati had gone to Pakistan one or two days after the execution of the impugned Will being accompanied by two sons was also referred to. The learned first appellate court, in this context, thus not only concluded that the suit was bad for non-joinder of necessary parties i.e.sons of Haji Wafati, but also adjudged the bequest to be illegal, the same having been made without the consent of the heirs i.e.Amir and Gafoor. The evidence adduced by the appellant/plaintiff to prove valid execution of Will was rejected as untrustworthy and it was held as well that the process was shrouded with suspicious circumstances rendering the document unacceptable in law. The learned first appellate court also rejected the evidence with regard to delivery of possession of the suit property pursuant to the sale and also the dispossession of the appellant/plaintiff therefrom, as alleged. The appeal was thus allowed and the suit was dismissed. 8. Mr. R.K. Agrawal has argued with reference to the relevant provisions of Mohammedan Law that as the sons of Haji Wafati had, at the time of the execution of the Will taken up the nationality of Pakistan, there was no restriction on the extent of bequest prescribed by the personal law governing the testator and thus the Will was valid. As on embracing the nationality of Pakistan, the sons of Haji Wafati relinquished their claim to the suit property, not only the bequest was valid but also they were not necessary parties, he urged. While stoutly critical of the inconsistent observations recorded by the learned first appellate court with regard to the sequence of demise of Haji Wafati and Smt.Noor Jahan, the learned counsel pleaded that the secondary evidence of a death certificate introduced under Order 41 Rule 27 of the Civil Procedure Code, and that too, without affording any opportunity to the appellant/plaintiff to refute the authenticity thereof, was inadmissible in law and reliance thereon has rendered the impugned judgment illegal and untenable. The death certificate acted upon by the learned first appellate court, being not a public document, no reliance, in the manner done, could have been placed to arrive at the conclusion that Smt. Noor Jahan had predeceased Haji Wafati so as to render the bequest non est in law, he argued. Without prejudice to this, the learned counsel placed reliance on Section 43 of the Transfer of Property Act, 1882 (hereinafter referred to as 'Act 1882') to urge that even assuming that on the date of the sale i.e.1.8.1972, Haji Wafati was alive, the transaction on his death did vest the right, title or interest in the suit property in the appellant/plaintiff. Section 58 of the Indian Succession Act, 1925 (hereinafter referred to as 'Act 1925') making the provisions of Part VI of the enactment inapplicable to testamentary successions to the property of any Muhammadan was referred to contend that the mandatory procedure for execution of unprivileged Wills was not required to be complied with in the case in hand and thus, the rejection of the document of bequest Exhibit-1 on the ground of want of valid execution is clearly unsustainable. The learned counsel, in support of his pleas, placed reliance on the decisions of the Apex Court Smt. Asha Devi v. Dukhi Sao & Anr., (1974) 2 SCC 492 : AIR 1974 SC 2048 ; Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga & Ors, (1977) 3 SCC 532 : AIR 1977 SC 890 ; Renu Devi v. Mahendra Singh & Ors., (2003) 10 SCC 200 : AIR 2003 SC 1608 ; State of Gujarat & Anr. v. Mahendrakumar Parshottambhai Desai (Dead) by LRs., (2006) 9 SCC 772 : AIR 2006 SC 1864 ; Chatti Konati Rao & Ors. v. Palle Venkata Subba Rao, (2010) 14 SCC 316 : AIR 2011 SC 1480 ; Mahesh Kumar (Dead) by LRs. v. Vinod Kumar & Ors., (2012) 4 SCC 387 : AIR 2012 SC (Civ) 1302 . 9. Contending to the contrary, Mr.Bihari Lal Agrawal has argued that as Haji Wafati, at all relevant times, was not the absolute owner of the suit property, being ancestral in nature, the bequest was invalid. He argued that Haji Wafati in any case had expired on 28.3.1973 after Smt. Noor Jahan (17.10.1972) and thus, the purported sale by the latter in favour of the appellant/plaintiff did not convey any title in the suit property. He argued that Haji Wafati in any case had expired on 28.3.1973 after Smt. Noor Jahan (17.10.1972) and thus, the purported sale by the latter in favour of the appellant/plaintiff did not convey any title in the suit property. Not only, the shifting of the sons of Haji Wafati to Pakistan per se indicate relinquishment of their Indian Nationality, it having been conclusively proved by the death certificate brought on record under Order 41 Rule 27 of the Civil Procedure Code that Haji Wafati was alive on the date when the sale deed was executed i.e.2.8.1972, the appellant/plaintiff's claim of right, title and interest on the basis thereof is misconceived. 10. We have carefully considered the pleaded facts and the evidence on record, both oral and documentary. We have duly taken note of the rival arguments as well. 11. Notwithstanding the several contentious issues of law and fact that have surfaced in the course of arguments, the plea of want of opportunity to the appellant/plaintiff to refute the request for additional evidence under Order 41 Rule 27 of the Civil Procedure Code deserves attention at the earliest. Admittedly, in this process, the learned first appellate court had taken on record a death certificate indicating that Haji Wafati had expired on 28.3.1973 in Pakistan and that Smt. Noor Jahan had died in 1972 in Jaipur. The learned first appellate court, as the impugned judgment and order would reveal, acted on the certified copy of this document treating it to be a public document, certified copy whereof is admissible. In other words, this document was not proved by the respondent/defendant, though admittedly it was in the nature of secondary evidence. Having regard to the date of execution of the sale deed, the sequence of the demise of Haji Wafati and Smt.Noor Jahan has a vital and decisive bearing on the adjudicative process qua the validity of the sale. This is moreso even if the bequest is held to be otherwise legally valid. If Smt. Noor Jahan had predeceased Haji Wafati, in our view, Section 43 of the Act 1982, having regard to the eventualities contemplated therein, for its invocation would not save the sale transaction. 12. This is moreso even if the bequest is held to be otherwise legally valid. If Smt. Noor Jahan had predeceased Haji Wafati, in our view, Section 43 of the Act 1982, having regard to the eventualities contemplated therein, for its invocation would not save the sale transaction. 12. Not only in terms of Order 41 Rule 27 of the Code, additional evidence, whether oral or documentary, can be produced only in the circumstances as enumerated therein, and that too on reasons to be recorded, the mode of receiving the same is prescribed by Order 41 Rule 28 of the Code. Additional evidence, as contemplated in Order 41 Rule 27 of the Code cannot thus be taken on record without complying with the mode obligated by Order 41 Rule 28 of the Civil Procedure Code, it being the mandate of legislature. In absence of any material on record that the procedure prescribed by Order 41 Rule 28 Civil Procedure Code had been complied with, we are thus not inclined to accept this document as an unimpeachable proof of the fact that Smt. Noor Jahan had predeceased Haji Wafati on the date, as indicated therein. 13. Consequently, we find ourselves in respectful disagreement with the first appellate court that on this count alone, the sale deed is invalid. 14. In the face of a clear and unambiguous legislative mandate contained in Section 58 of the Act 1925, we are of the opinion that the rigour of the procedure prescribed for execution of unprivileged Wills cannot be applied to testamentary successions to the property by any Muhammadan. The faults and failings recorded by the learned first appellate court in the matter of execution of the Will Exhibit-1 also does not weigh with us. On an analysis of the evidence on record, as required in adjudicating the instant appeal, we are of the view that the evaluation made thereof by the trial court is proper and does not suffer from any perversity or absurdity of approach. All legal and factual aspects, as involved, have been carefully dealt with in details and thus the findings recorded on the basis thereof commend for acceptance.In the result, the appeal is allowed. The impugned judgment and order is set aside. The suit is decreed in full. Let a decree be prepared in terms of this determination at the earliest. No costs.Appeal allowed. *******