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2017 DIGILAW 2450 (RAJ)

Abdul Salim v. Sayeed Alam

2017-11-07

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT Virendra Kumar Mathur, J. - This S.B. Civil First Appeal under section 96 of the Code of Civil Procedure has been filed against the judgment and preliminary decree dated 06.04.2007 passed by the learned Additional District Judge (Fast Track), Chittorgarh in Civil Original Case No.26/2006 (3/2006). 2. Briefly stated that respondent-plaintiff filed a suit for partition of the property along with permanent injunction against the appellants-defendants before the trial court. The main contention of the respondent-plaintiff was that a house of which description is given in the para No.2 of the plaint belong to the ownership of late Shri Fateh Mohammed. The respondent-plaintiff, being the son of late Shri Fateh Mohammed, has a definite share in this house, with the other legal heirs, i.e. the appellants defendants. Seven shops and a room of this house was given on rent by late Shri Fateh Mohammed and are still in the possession of the tenants. It was averred in the plaint that the respondent plaintiff asked the appellants-defendants for partition of this property but the prayer had been rejected by them. It has also been stated that the appellants-defendants are bent upon to alienate the property, therefore, they may be restrained from doing so by a decree of permanent injunction along with a preliminary decree of partition. 3. A joint written statement was filed by the defendants Nos.2, 3, 4 and 7 in which it was stated that there is no concept of joint family or joint family property in Mohammedan Law. It was specifically pleaded that three rooms in this house at each story (ground, first and second) is personal and self acquired property of the defendant No.7 and, therefore, could not be taken for partition. It has also been stated that though the remaining part of the property belonged to the ownership of Late Shri Fateh Mohammed but this property had bequeathed by him in favour of the defendants Nos.1 to 4 by a registered Will dated 26.04.1994 and as such the respondent-plaintiff has no right, interest and share in this property. The defendant No.1 has conceded and adopted the written statement filed on behalf of the defendants Nos.2, 3, 4 and 7. No written statement was filed by the defendants Nos.5 and 6. 4. On the basis of the pleadings of the parties, the learned trial court framed as many as 7 issues. The defendant No.1 has conceded and adopted the written statement filed on behalf of the defendants Nos.2, 3, 4 and 7. No written statement was filed by the defendants Nos.5 and 6. 4. On the basis of the pleadings of the parties, the learned trial court framed as many as 7 issues. After recording evidence and hearing, the trial court passed the impugned judgment and decree dated 06.04.2007. Aggrieved by the judgment and decree dated 06.04.2007, passed by the learned trial court, the appellants prefer this appeal. 5. Heard learned counsel for the parties. 6. It was contended on behalf of the appellants defendants that it is well settled preposition of law that there is no concept of joint family and joint family property in Mohammedan Law. There are plethora of judicial pronouncements of Hon''ble Apex Court as well as this Court to this legal aspect but the learned trial court has ignored the position of existing law prevailing in the case and therefore, has committed a grave error of law while passing the impugned judgment and preliminary decree dated 06.04.2007. It was also contended that it is well proved by cogent evidence, oral as well as documentary, that three rooms of the suit property are the personal and self acquired property of the defendant No.7 and as such these rooms cannot be taken into consideration for partition of inherited property. In this regard, a sale-deed Ex.A/5 and Ex.A/6 and its execution was well proved by oral and documentary evidence but despite that the learned trial court, on the basis of surmises and conjectures, disbelieved the statements of DW1 and DW2 and the documents and considered this property for partition, which is against the law as well as established fact and thereby has committed illegality. It has further been contended that the finding arrived at by the trial court on the issues are perverse and arbitrary to the material available on record. Issue No.3 was to be proved by the defendants by adducing cogent oral and documentary evidence. It has been established on record that late Fateh Mohammed, in his life time, executed a Will dated 26.04.1994 in favour of defendants Nos.1 to 4, which was got registered and according to this Will Ex.A1, defendants Nos.1 to 4 became the owner of the remaining suit property. It has been established on record that late Fateh Mohammed, in his life time, executed a Will dated 26.04.1994 in favour of defendants Nos.1 to 4, which was got registered and according to this Will Ex.A1, defendants Nos.1 to 4 became the owner of the remaining suit property. On the concept of preponderance of probability, the execution of the said Will Ex.A/1 has been proved in accordance with law, i.e. Section 68 of the Evidence Act and section 63 of the Succession Act and after establishing of this fact, the suit of the respondent-plaintiff does not survive and is liable to be dismissed. But, the learned trial court has committed a grave error while passing the impugned judgment and decree dated 06.04.2007. It was further contended that finding on issue No.5 is also not in accordance with law. When it was established that the property is not liable to be partitioned even then passing of any order of share of rent in favour of the respondent-plaintiff is against the law and, therefore, also, the impugned judgment and decree is liable to be quashed and set aside. 7. On the allegations raised by the appellants, perused the pleadings and documentary as well as oral evidence. 8. So far as contentions raised in respect of issue No.3 is concerned, the burden of proving this issue was on the defendants. The defendants have submitted that late Shri Fateh Mohammed executed a Will in his life time on 26.04.1994 in favour of the defendants Nos.1 to 4 and the Will was registered and on account of this Will, the defendants Nos.1 to 4 are the owners of the property left by late Shri Fateh Mohammed and the respondent-plaintiff has no right in the property left by Shri Fateh Mohammed. The trial court, while deciding the issue, has considered the aspect whether the Will was duly executed as per the provisions of law, i.e. as per section 63 of the Succession Act. In this connection, the statement of DW-3 Gulasm Saddique was recorded, who is witness of execution of Will Ex.A/1, who in his statement, stated that the Will was executed by late Shri Fateh Mohammed at his residence at Paota Darwaja, Chittorgarh and both the witnesses signed at the instance of Late Shri Fateh Mohammed. In this respect, E to F is his signature. 9. In this respect, E to F is his signature. 9. From the evidence of this witness, it has come out that Ex.A/1 Will was signed by late Shri Fateh Mohammed before the witness and at the instance of Fateh Mohammed, Gulam Saddique put his signature and has written the endorsement C to D. The trial court, after properly appreciating the evidence placed on record in this connection, has rightly observed that the Will Ex.A/1 is registered document and on this there is an endorsement of Deputy Registrar regarding the fact that Fateh Mohammed has accepted the execution of Will and the trial court found that there is no material on the basis of which, execution of Will be disbelieved. The respondent-plaintiff, in his support of his arguments, placed reliance upon the judgment of the Hon''ble Apex Court in Ajambi vs. Roshanbi & Ors. [ 2016(3) WLN 233 (SC)] and pleaded that there is no concept of joint family in Muslims but it was open to deceased to give his property to his children in a particular manner during his life time, which he rightly did, so as to avoid any dispute which could have arisen after his death. The arrangement so made was duly accepted by the family members and it was also acted upon. Only thereafter, a formal record of the said fact was made by late deceased in the document. So far as the effect of Will is concerned, it is admitted position that the defendants Nos.1 to 4 were the legal heirs of Shri Fateh Mohammed and the respondent-plaintiff was also legal heirs of Fateh Mohammed. As per the Mullas Book on Muslim Law, if the Will is executed in favour of one of the heirs, then until the remaining legal heirs, after the death of Testator, give consent, till then the Will does not come into effect and in the explanation, it has also been mentioned that if after the death of the Testator, any legal heir expresses his consent, then the Will will operate only to the extent of his share. The same proposition of law has also been approved by the various High Courts in judgments rendered in the cases of Smt. Khatoon vs. Bhonri [1954 RLW 574], Furkan vs. Mumtaz [ AIR 1971 Raj. 149 ], Naru Nisha vs. Sheikh Abdul Hamid [AIR 1987 Karnataka 222] and 10. The same proposition of law has also been approved by the various High Courts in judgments rendered in the cases of Smt. Khatoon vs. Bhonri [1954 RLW 574], Furkan vs. Mumtaz [ AIR 1971 Raj. 149 ], Naru Nisha vs. Sheikh Abdul Hamid [AIR 1987 Karnataka 222] and 10. Consent of legal heirs may be either express or implied. In the present case, only the respondent-plaintiff has challenged the execution of Will and expressed his disagreement. So far as Jannat and Shehjad are concerned, they have expressed that they went to the court with Shri Fateh Mohammed for execution of the Will. Smt. Kamroon, defendant No.5 and Smt. Rehana, defendant No.6, are daughters of Shri Fateh Mohammed and they have not expressed any disagreement and have not raised any objection. So far as the defendants Nos.1 to 4, in whose favour the Will is executed, are concerned, the same is not relevant. Only the concent of legal heirs, who has been deprived under the Will is material. From the evidence, it is very much clear that so far as the defendants Nos.5 to 7 are concerned, there is either express or implied consent and the trial court has rightly decided this issue partly in favour of the defendants and partly in favour of the respondent-plaintiff. 11. So far as the contentions raised in respect of the issue No.5 are concerned, this issue was to be proved by the respondent-plaintiff. On the basis of decision of issues Nos.1 and 2, it is established that in the property mentioned in para No.2 of the plaint, the respondent-plaintiff has 28/192 share and it is also established that in the disputed suit property, shop was rented out by late Fateh Mohammed and after the death of Fateh Mohammed, the defendants rented out the shops to the different persons. In this respect, Shehjad and Jannat, in their statements, made clear that some shops were rented out and some were mortgaged. From the evidence, it is amply clear that out of the disputed sole property, the defendants are having income from rent and on the basis of share in the property, the respondent-plaintiff is entitled to 28/192 share of rent and the trial court has accordingly rightly decided this issue. 12. In view of the above, I find no ground to interfere with the impugned judgment and preliminary decree. 12. In view of the above, I find no ground to interfere with the impugned judgment and preliminary decree. The appeal is devoid of merit and the same is hereby dismissed.