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2014 DIGILAW 888 (HP)

Gani Mohammad v. Gulam Deen

2014-07-11

TARLOK SINGH CHAUHAN

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JUDGMENT : - Tarlok Singh Chauhan, J. (Oral) It is not disputed that there are two fold restrictions on the powers of the sunni muslim to dispose of his property by ‘Will’; one in respect of persons in whose favour bequest is made and second as to the extent to which he can dispose of his property. The learned Courts’ below have come to the conclusion that the suit of the plaintiff-respondent deserves to be decreed only to the extent it pertains to 1/3rd part of the share of the testator. This finding of the trial Judge was challenged before the Lower Appellate Court, where it met with the same fate and this is how the matter has come up in appeal before this Court. 2. The facts, in brief may be noticed. The plaintiff-respondent filed a suit for declaration and permanent injunction on the ground that the plaintiff, defendants No. 1 to 3 (appellants herein) and proforma defendants No. 9 to 10 are the co-owners in joint possession over the suit land measuring 10.10 bighas comprised in khasra No. 76, 176, 181, kitta-3 No. Khata Khatoni 96/110 and also co-owner in joint possession qua the share of the father of the plaintiff Sh. Noor Deen in the total land measuring 6.0 bighas comprised in khasra No. 236/182, No. Khata Khatoni1min/2 situated in village Kathalag, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. It was averred that late Sh. Noor Deen son of Navia, father of the plaintiff, was owner-in-possession of the suit land, who expired on 14.11.2009 leaving behind him plaintiffs, defendants No. 1 to 3 and proforma defendants No. 9 & 10 as the co-owners in joint possession of property. As per the Mohammadan Law applicable to the Suni muslims in India, it was averred that the plaintiff and defendants No. 1 to 3 would inherit 1/3rd share each and one share would be inherited by defendants No. 9 & 10. It was further averred that among the Suni muslims, there was no provision to execute a ‘Will’ by excluding the legal heirs and in the alternative if the ‘Will’ is to be executed in favour of the strangers, who are not sons and daughters than the same has to be dealt with as per the law. It was thereafter contended that although the father of the plaintiff Sh. It was thereafter contended that although the father of the plaintiff Sh. Noor Deen had not executed any ‘Will’, but in case ‘Will’ dated 16.2.2008 is proved to be genuine, then grandsons who are not the legal heirs of the father of the plaintiff, as per the Mohamadon Law are bound to pay the loan obtained by the father of the plaintiff including other expenses. It was lastly contended that the alleged ‘Will’ otherwise is a result of fraud, mis-representation and undue influence and, therefore, deserves to be set aside. 3. The defendants No. 1,3, 5, 7 to 10 contested the suit by filing written statements wherein preliminary objections regarding maintainability, locus-standi, cause of action, nonjoinder and mis-joinder of necessary parties, valuation, jurisdiction, suppression of material facts have been taken. It was alleged that Sh. Noor Deen son of Navia though was the owner of the land and had died on 14.1.2009, however, it was claimed that the ‘Will’ in question had been executed by the testator in a sound state of mind on 16.2.2008, which was registered in the office of the Sub-Registrar, Ghumarwin, at Sr. No. 62 on 16.2.2008. 4. The plaintiff filed replication to the Written Statement, reiterated and re-affirmed the averments made in the suit and denied those put forth in the Written Statement. 5. On the pleadings of the parties, the learned trial Court on 25.5.2011, framed the following issues: “1. Whether the plaintiff is entitled for the relief of declaration as prayed?...... OPP. 2. Whether the plaintiff is entitled for further declaration and also n alternative declaration as prayed?..... OPP. 3. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed?..... OPP. 4. Whether the suit of the plaintiff is not maintainable in the present form as alleged? .....OPD. 5. Whether the plaintiff has got no cause of action to file the present suit as alleged?..... OPD. 6. Whether the suit of the plaintiff is barred by principle of res judicata as alleged?..... OPD. 7. Whether the plaintiff has not come to the court with clean hands as alleged?..... OPD. 8. Whether the suit of the plaintiff is not properly valued for the purpose of Court fee and jurisdiction as alleged?..... OPD. 9. Relief.” 6. After recording and evaluating the evidence, the learned trial Court partly decreed the suit of the plaintiff by upholding the ‘Will’ Ext. OPD. 8. Whether the suit of the plaintiff is not properly valued for the purpose of Court fee and jurisdiction as alleged?..... OPD. 9. Relief.” 6. After recording and evaluating the evidence, the learned trial Court partly decreed the suit of the plaintiff by upholding the ‘Will’ Ext. DW-2/B only to the extent of 1/3rd share of the testator, while rest of the ‘Will’ was held to be invalid. 7. Aggrieved by the said findings, it is only the successors of defendant No. 1 who filed appeal, which too met with the same fate. In the present appeal, learned counsel for the appellants has strenuously argued that the learned Courts’ below have infact erred in not considering the law on the subject in right perspective and thereby reached wrong conclusion. According to the appellants, there was ample amount of evidence available on record to show that the consent of the legal heirs had been obtained before executing the ‘Will’. 8. I have heard learned counsel for the appellants and gone through the records of the case. 9. Learned counsel for the appellants would contend that it has come in the testimony of DW 1 Rafique Mohamad that Sh. Gulam Deen, Peer Mohamad, Sukardeen and Deen Mohamad had acquired knowledge of the ‘Will’ Ext. DW-2/B after the death of Noordeen. There was no cross-examination by the plaintiff of DW1 regarding his having acquired knowledge of the ‘Will’ till the filing of the suit. He claimed that the conduct of the plaintiff and other legal heirs remained such that they did not protest and object to the execution of the ‘Will’ Ext. DW-2/B, despite having acquired knowledge of the same, after the death of Sh. Noordeen on 14.11.2009. It was after about 3 months from the date of death of Sh. Noordeen that the suit came to be filed on 15.2.2010. He further contended that the learned Courts’ below have returned the findings qua the ‘Will’ Ext. DW-2/B as having been duly proved and valid but had erred in confining the same to 1/3rd of the estate of the deceased since the legal heirs of Sh. Noordeen had consented to the testamentary disposition exceeding 1/3rd share of the estate after his death. 10. DW-2/B as having been duly proved and valid but had erred in confining the same to 1/3rd of the estate of the deceased since the legal heirs of Sh. Noordeen had consented to the testamentary disposition exceeding 1/3rd share of the estate after his death. 10. All the points raised by the plaintiff pertain to pure findings of fact, which cannot be interfered with by this Court in exercise of the jurisdiction under Section 100 of the Code of Civil Procedure, 1908. Insofar as interpretation of Muslim Law as applicable to the Suni Muslims is concerned, learned counsel for the appellants could not point out any infirmity with the findings, so recorded by the learned trial Court or even the First Appellate Court. The learned trial Court has summed up the legal position in following terms: “25 Now, second thing which required consideration is that whether the Will Ex. DW-2/B is within the limit imposed on the testamentary powers of the Muslims. According to Aqubal Ahmad on Muslim Law, Provision of Indian Succession Act 1925 are not applicable to the Muslims and where a Will is governed by Mohamadon law it will subject to Saryat Act, 1987. According to Akbal Ahmad on Mohamadon Law among that other essential condition the one of the most important requisite for valid execution of the Will is that bequest must be within limits imposed on the testamentary powers of the Muslims. The testamentary capacity of the Muslims is limited. He does not base on unlimited powers of making dispossessing by Will. Thing are two fold restrictions on the powers of the muslim to dispose of his property by Will. The two fold requirement are in respect of the persons in whose favour bequest is made and as to extent to which he can dispose off his property. In Abdul Manhar Khan Vs. Murtaza Khan AIR 1991, Patna, 155, Hon’ble High Court has held that: “A bequest in favour of an heir is limited unless other heirs consented to it after the testators death.” A provision has been made in law to take consent of other heirs after the death of testator, if any reason of a Will more than 1/3 of the property is sought to be bequeathed to an outsider and to any extent to a heir such consent can be inferred from the conduct. 26. 26. According to shia law a testator may give a legacy to an heir so long it does not excess 1/3rd share of his estate. Such legacy is void without the consent of the other heirs. But if legacy exceeds 1/3rd share it is not valid unless the other heir consent there to rather consent may be given before or after the death of testator. But whether the whole estate has to be bequeathed to one heir or others heir excluded entirely from inheritance, the bequest is void in its entirety (See Husain Begum vs. Mohamad Medi, 1927-49 All. 547.) 27. Hence, the rule with regard to the extent to the property that may be disposed off by Will is that no muslim can make a bequest of more than 1/3rd share of his assets after payment of funeral charges and debts. There is no difference between Suni and Shia depends on the consent of the heirs if bequeathed property exceeds 1/3rd of the share. According to Shia law consent must be given after death of the testator and consent given during his lifetime is of no legal effect. Whereas as per shia law consent may be given either before or after the death of testator. The consent of heir must consent of those persons who are heirs of the testator at the time of his death. Such consent may be either expressed or implied. 28. Section 118 of Mulla Principles of Mohamadon Law from it is clear that bequest, in excess of 1/3rd part of the property cannot take effect, unless the heirs consent thereto after the death of the testator. Reliance placed on Smt. Sidi (Dead) through Lrs vs. Smt. Munti & ors. 2010 (2) Him. L.R. 1101. 29. In view of ratio of law and authorities discussed above, I am of the firm view that Will Ex. DW-2/B made by deceased Noordeen who is admittedly a Suni Mohamadon in excess of 1/3rd share is not void in its entirety but only to that extent its 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. In other words Will Ex. DW-2/B cannot be hold valid only to the extent it is in excess of 1/3rd part of the property.” 11. In other words Will Ex. DW-2/B cannot be hold valid only to the extent it is in excess of 1/3rd part of the property.” 11. On the other hand, the learned Appellate Court has re-appreciated the law in the following terms: “16. Now regarding the testamentary capacity of a Mohammedan, it is circumscribed by (i) limitation as regard the persons, and (ii) limitation as regard the property. In case the person in whose favour the property can be bequeathed, the general rule is that a bequest in favour of any heir is invalid under the Hanafi law unless the other heir consented to it. On the question of the property which can be disposed of by Will, no Mohammedan can make a Will of more than 1/3rd of his net assets after payment of funeral expenses and debts. Thus, the remaining 2/3rd will devolve upon the heirs of the testator. There is exception to this rule that if the heirs, whose rights are infringed thereby give their consent to the bequest after the death of the testator. On the question of law applicable to the Sunni Muslims and disposition of the property by way of Will, the learned counsel for the plaintiff has relied upon the decisions in Hakam Din v. Gulam Mohammad and ors., 2011(1) Him. L.R. 75, Smt. Sidi (Dead) through LRs v. Smt. Munti & Ors. 2010 (2) Him. L.R. 1101, Yasin Imambhai Shaikh (deceased by Lrs.) v. Hajarabi and others, AIR 1986 Bombay 357. In these decisions supra also, it is held that bequest by Sunni Mohammadan in excess of 1/3rd of his estate cannot take effect unless the heirs consent thereto after the death of the testator. 17. In view of the position of law as explained above relating to the limitations of persons and property, the testator vide Ext. DW-2/B has bequeathed the entire property. As far as the defendants No. 4 to 8 are concerned, they are strangers because the property would not have devolved upon them in case there is no Will. Hence, the testator could have disposed of 1/3rd of his property by way of Will in favour of the strangers. For the devolution of the entire property on the basis of the Will, there is need of consent of all the legal heirs.” 12. Hence, the testator could have disposed of 1/3rd of his property by way of Will in favour of the strangers. For the devolution of the entire property on the basis of the Will, there is need of consent of all the legal heirs.” 12. Learned counsel for the appellants would then rely upon the judgment delivered by this Court in Nazar Deen vrs. Sadar Deen, 2013(2) Shim. LC 834, to contend that once there is no protest with regard to testamentary disposition, then the ‘Will’ has to be given effect to. There is no quarrel with the proposition canvassed by the learned counsel for the appellants, but the fact nonetheless remains, as to whether the appellants have succeeded to prove on record that there being no protest on behalf of the legal representatives and therefore, ‘Will’ should be accepted as it is. 13. As I have already observed earlier that these findings are pure findings of fact, which normally cannot be interfered with in the second appeal unless and until there is perversity in the judgments rendered by the learned Courts’ below. It has come on record that the impugned ‘Will’ Ex. DW-2/B was scribed by DW-2 while DW-2 and DW-4 are its attesting witnesses. Both PW-1 and DW-1 have admitted that no consent was taken by deceased from his sons to execute the ‘Will’. Even DW-2 and DW-4 have admitted that when the ‘Will’ was written, such consent was not taken. In view of the overwhelming evidence on record, I see no reason to interfere with the pure findings of fact recorded by both the Courts’ below. Accordingly, the present appeal is dismissed without any orders as to costs. Pending application(s), if any, shall stand dismissed.