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2019 DIGILAW 594 (CHH)

Ayyub v. Ilahi Baksh

2019-04-22

RAM PRASANNA SHARMA

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JUDGMENT : RAM PRASANNA SHARMA, J. 1. This appeal is preferred against judgment/decree dated 07.7.2017 passed by Fifth Additional District Judge, Bilaspur in Civil Suit No.29A/2007 wherein the said Court decreed the suit filed by the respondents/plaintiffs for declaring the will void executed by Mohd. Yakub on 20.3.1983 in favour of Mohd. Ayyub for the property mentioned in Scheduled A, B & C of the plaint. 2. Schedule A is a land measuring total area of 30.54 acres situated at village Mohra, Distt. Bilaspur, Schedule B is consisting of one house of three story building situated at Ward No.23 House No.129 at Mohalla Khaparganj, Distt. Bilaspur and in Schedule C is one shop No.19/20 situated at Gole Bazar, Bilaspur. The suit was filed on the ground that the entire property is bequest to one heir namely Mohd. Ayyub without consent of the other heirs who are the respondents/plaintiffs. 3. Section 117 of the Mulla’s Principles of Mahomedan Law deals with bequest to an heir and provides as under:- “117. Bequests of heirs - A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share.” Explanation - In determining whether a person is or is not an heir, regards is to be had, not to the time of the execution of the Will, but to the time of the testator’s death." 4. Admittedly, in the present case, bequest is made by Mohd. Yakub in favour of Mohd. Ayyub who is the heir. No other heirs of Mohd. Yakub were consented for bequest after the death of Mohd. Yakub, therefore, the trial Court recorded the finding that the will is void ab-initio. Looking to the clear provisions regarding will to heir there is no reason for this Court to take a contrary view. Therefore, finding of the trial Court that the will dated 20.3.1983 executed by Mohd. Yakub is void and illegal is hereby affirmed. 5. Learned counsel for the appellants submits that proper court fee is not paid in the present suit. In view of this Court, this arguments is without substance. The suit was filed for declaring will void and the respondents/plaintiffs were not the party to the will. Yakub is void and illegal is hereby affirmed. 5. Learned counsel for the appellants submits that proper court fee is not paid in the present suit. In view of this Court, this arguments is without substance. The suit was filed for declaring will void and the respondents/plaintiffs were not the party to the will. The parties filed suit for declaration and for that they paid proper court fee which was prevailing at the time of filing of the suit, i.e. on 15.3.1986. 6. The other relief were consequential to the relief of declaration. Therefore, it is not a case where advolerum court fee ought to have paid by the respondents/plaintiffs. 7. Learned counsel for the appellants submits that the suit was filed on 15.3.1986 for cancellation of will dated 20.3.1983 but the plaint was returned on 20.11.1995 which was again filed on 01.12.1995 before the Second Additional District Judge, Bilaspur, therefore, suit is time barred. He placed reliance in the matter of Thadi Chandrayya and others vs. Vaitla Seethanna and another, (1940) AIR Madras 689. 8. In the present case, the suit was filed within the time, i.e. within three years of the execution of the sale deed and and the same was returned for presentation to the proper Court and the same was presented before the proper Court. In the case law cited on behalf of the appellants, the plaint was amended by striking the claim and therefore, it is held that new claim is set up by the parties. In the present case no amendment was sought by the respondents/plaintiffs after return of the plaint, therefore, suit filed on 15.3.1986 is not time barred. Arguments on this count is not sustainable. 9. When the will is void, the appellant who is the heir of Mohd. Yakub is also entitled for the share according to the Mahomedan Law and the heirs of Mohd. Yakub are free for partition of their share according to the law. It is not a case where interference of this Court is required to the judgment/decree passed by the trial Court. It is also not a case where the parties are required to be heard at length. 10. Accordingly, the appeal is dismissed at motion stage itself affirming the judgment/decree passed by the trial Court.