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2015 DIGILAW 595 (CAL)

MUNAWAR BEGUM v. ASIF ALI

2015-07-21

SOUMITRA PAL

body2015
JUDGMENT : SOUMITRA PAL, J. 1. This second appeal arising out of the judgment dated 31st October, 2014 passed in Title Appeal No.26 of 2010 was admitted on the following substantial questions of law:– i. Whether the learned courts below were right in dismissing the claim of the appellant whereby she has challenged the WILL alleged to have been executed by her mother on 20/04/1998 on the ground that the same is barred by limitation when admittedly the mother of the appellant expired on 18/01/2013 and the suit has been filed on 12/11/2003? ii) Whether a suit challenging the WILL can be said to be barred by limitation, if the same is filed within a year from the date of death of the Testator? iii) Whether a WILL executed by Saira Begaum, a Mohammedan Lady, in respect of land measuring 18 mtrs x 3.3 mtrs in land bearing survey no.228 measuring total area 4150 sq.ft situated at Aberdeen Village, under Port Blair Tehsil, South Andaman District to her one of her heirs Arif Ali is valid when all the heirs of the said lady did not accord their consent as per Rule 192 (i) of the Law of WILLs? 2. Mrs. Anjili Nag, learned advocate for the appellant/plaintiff submitted that her client filed a suit for partition in respect of property relating to several survey numbers. However, the judgment and decree dated 31st October, 2014 passed by the learned Additional District Judge, Andaman and Nicobar Islands, Port Blair in Title Appeal No.26 of 2010 as well as the judgment and decree dated 30th December, 2009 passed by the learned Trial Judge in Title Suit No.64 of 2003 are bad both in law and in fact as both the Courts below failed to consider the point of law raised by the appellant. 3. On the point of maintainability, submission was both the Courts below were wrong and incorrect in dismissing the suit and the appeal on the ground that the challenge made by the appellant to the WILL is barred by limitation. Both the Courts failed to consider that though the WILL was executed on 28th September, 1995 and registered on 20th April, 1998, as the testatrix expired on 18th January, 2003, as the suit filed on 12th November, 2003 was within three years as per the Limitation Act, 1963, it is not barred by limitation. Both the Courts failed to consider that though the WILL was executed on 28th September, 1995 and registered on 20th April, 1998, as the testatrix expired on 18th January, 2003, as the suit filed on 12th November, 2003 was within three years as per the Limitation Act, 1963, it is not barred by limitation. Since right to challenge a WILL accrues from the date of death of the testatrix, limitation cannot be counted from the date of knowledge of the appellant of the WILL. 4. Regarding the validity of the WILL, submission was though a WILL under the Mohammedan Law, in order to be valid and enforceable in law, has to fulfill certain conditions under Rule 192, in the instant case, however, the WILL of Saira Begum, the mother of the appellant falls short of the requirements stipulated therein. Referring to Rule 192 of the Mohammedan Law, submission was since bequest to an heir is not valid unless other heirs consent and as consent is mandatory and as there is no dispute that the signature of the appellant was not obtained, the WILL under the law is invalid. It was submitted that normally in a WILL there is no mention about the consent of the heirs. Though the WILL in question speaks of the consent of all other children, however, as the signature of the appellant was not obtained, the WILL is invalid. Submission was consent should be by acts and deeds and implied consent cannot be derived. Though submission was made with regard to Rule 192, it was not considered by both the Courts below. 5. Accordingly, it was submitted that the appeal be allowed to the extent by modifying the decree passed by the Lower Appellate Court by declaring that the WILL is null and void to the extent of the share of the appellant in respect of land measuring 18 mtrs x 3.3 mtrs, bearing Survey Number 228, measuring total area of 4150 sq. mtrs at Aberdeen Village under Port Blair Tehsil, South Andaman District. 6. Mr. Arul Prasanth, learned advocate for the respondent/defendant submitted since the suit was filed for cancellation of the deed of Gift and the WILL, the appellant cannot restrict her argument and concentrate only on the WILL. In the instant case, Rule 190 is applicable as the son is an heir. 6. Mr. Arul Prasanth, learned advocate for the respondent/defendant submitted since the suit was filed for cancellation of the deed of Gift and the WILL, the appellant cannot restrict her argument and concentrate only on the WILL. In the instant case, Rule 190 is applicable as the son is an heir. Admittedly, the Will was executed in 1995 of which the appellant was aware of. The death of the testatrix took place on 18th January, 2003 and the suit was filed on 12th November, 2003. Since the appellant was aware of the WILL since 1995, the suit filed in 2003 is barred by the law of Limitation. Since a document can speak for itself and the consent of the plaintiff is evident from the language in the WILL and there is no whisper in the WILL that there is no consent and in the suit there was no cross-examination on the point of consent, the appeal is liable to be dismissed. 7. It is to be noted that though suit was filed by the appellant challenging the deeds of gift and the WILL and these were the subject matters in appeal before the lower Appellate Court, however, in this Second Appeal, the challenge is restricted to the WILL. 8. As seen from facts, Saira Begum, the mother of the appellant had executed the WILL in the year 1995. She expired on 18th January, 2003. The appellant filed the suit on 12th November, 2003. The short point is from which date limitation is to be counted. There is no dispute that a WILL is a legal declaration of the intention of the testatrix with respect to her property and takes effect after her death. A WILL is a voluntary posthumous disposition of property. Since a WILL takes effect after death, the argument of the respondents that the appellant was aware of the same in the year 1995 is of no significance. In the instant case, the author of the WILL, the mother, had expired on 18th January, 2003. The right to sue begins to run from 18th January, 2003 and the period of limitation is three years. The suit was filed on 12th November, 2003. Therefore, I hold, the suit was filed within the period of limitation. In the instant case, the author of the WILL, the mother, had expired on 18th January, 2003. The right to sue begins to run from 18th January, 2003 and the period of limitation is three years. The suit was filed on 12th November, 2003. Therefore, I hold, the suit was filed within the period of limitation. So far as the consent of the appellant is concerned, under Rule 192, “………a bequest to an heir is not valid unless the other heirs consent”. It appears from the WILL dated 28th September, 1995, which was registered subsequently in 1998, that the signature of the appellant, an heir, is absent. Therefore, as the consent of the appellant is missing, the WILL or the testamentary disposition is invalid. Though it was emphasised on behalf of the respondent that the WILL in question speaks that “I further declare voluntarily that I do not wish to give any part of my said property to my any other children or relatives and I make this WILL with the consent of all my other children and without any objection from any of them”, in my view, the same is of little significance as though the WILL contains the signature of other heirs, it does not bear the signature of the appellant. The said sentence in the WILL, as noted, could have been of some significance if other heirs had not put their signature. Since the signature of the appellant is absent, I am of the view that the WILL is not valid under Rule 192 and not binding on the appellant. 9. Since the appellant has restricted her challenge to the WILL, hence, the Second Appeal is allowed and the decree of the Lower Appellate Court declaring the WILL as valid, legal and binding is set aside and the share of the appellate/plaintiff is declared with regard to the land measuring 18 mtrs x 3.3 mtrs bearing Survey Number 228, measuring total area of 4150 sq.mtrs, at Aberdeen Village under Port Blair Tehsil, South Andaman District. However, there will be no order as to costs. 10. The Registry is directed to draw up the decree as expeditiously as possible. 11. Let the lower courts record be sent down immediately. Urgent certified copy of this order, if applied for, be supplied to the learned counsel appearing for the parties on priority basis.