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2023 DIGILAW 203 (CHH)

Anwar Haque, S/o. Samsujamma Mohammadan v. Sheikh Rasool, s/o. Sheikh Azim Mohammadan

2023-04-18

NARENDRA KUMAR VYAS

body2023
JUDGMENT : 1. Since an identical issue and common question of law are involved in both the appeals, they are heard analogously and are being disposed of by this common judgment. 2. Second Appeal No. 7 of 2009 has been filed by the appellant/defendant being aggrieved by the judgment and decree dated 15-9-2008 passed by the Additional District Judge, Mungeli, Bilaspur in Civil Appeal No.10-A/2007 confirming the judgment and decree dated 19-3-2007 passed in Civil Suit No.26-A/99 by Civil Judge Class-1, Mungeli Bilaspur whereby the suit filed by the plaintiff has been allowed and counter claim of defendant No.1 has been rejected. 3. Second Appeal No. 8 of 2009 has been filed by the defendant/appellant against the judgment and decree dated 15- 9-2008 passed by the Additional District Judge, Mungeli Bilaspur in Civil Appeal No. 7A/2007 partly reversing the judgment and decree dated 19-3-2007 passed in Civil Suit No.26-A/99 by the Civil Judge, Class-1, Mungeli Bilaspur. 4. Both the appeals have been admitted by this court on 27-8-2011 on the following substantial questions of law: (i) Whether both the courts below have committed an illegality by granting decree of permanent injunction in favour of respondent No.1 Sheikh Rasool relating to 12.50 acres of the land in which he was not in possession at the time of grant of such decree? (ii) Whether the fnding relating to validity of will of both the courts below is perverse? 5. For sake of convenience, the parties have been referred to as shown in the original suit filed before the trial court. 6. The facts, in brief, are that the original plaintiff Smt. Nyazbi who is widow of Alimuddin had filed a civil suit for declaration of title and permanent injunction with the regard to the property situated at village Sawa Patwari Halka No.45, Tahsil Mungeli, District Bilaspur bearing Khasra No.4 area 1.47 acres, Khasra No.5 area 0.28 acres, Khasra No.8/5 area 3.71 acres, Khasra No.8/9 area 14.32 acres, Khasra No. 304/1 area 4.46 acres total 24.24 acres which in subsequent paragraphs referred to as suit property. Mainly contending that plaintiff's husband and her ancestors were Malgujars. The plaintiff was issue-less and her husband died in the year 1946. In the suit property Khasra Nos. 4 and 5 and 8/5 are owned by the plaintiff which have already been recorded in the revenue records. Mainly contending that plaintiff's husband and her ancestors were Malgujars. The plaintiff was issue-less and her husband died in the year 1946. In the suit property Khasra Nos. 4 and 5 and 8/5 are owned by the plaintiff which have already been recorded in the revenue records. Earlier, Khasra No. 8/9 and 304/1 were registered in the name of her mother-in-law Armanbi and she had executed the registered Bakshis (gift) on 6-6-1959 and the land bearing Khasra No.8/9 area 14.32 acres and Khasra No.304/1 area 6.46 of acres had also been given to her, possession of the land was also given to her, her name was recorded as land owner as per order dated 21-7-1969 passed by the Revenue Court in Revenue Case No.13-A/6/67-68 as such the plaintiff is the single owner and she is in possession of the suit property, doing agricultural work. As such Defendant No.1 has no possession or title in the suit property and even he is not successor of his in-laws. To justify this fact, family tree has also been mentioned in the plaint. It has been further contended that from bare perusal of the genealogy it is evident that the defendant No.1 is not successor of his mother-in-law or father-in-law Amruddin. The suit property was in possession of Amruddin, plaintiff's husband Alimuddin and Samshuddin. This property was subsequently inherited by her wherein the defendant No.1 has no right. Prior to 1995-96 in the revenue records, name of the plaintiff was only recorded and she was in possession of then said property also. In the year 1995-96 without knowledge of the plaintiff, the name of defendant No.1 was recorded as co-account holder. The foundation of that incorporation in the revenue records is due to death of Wahiuddin who died on 3-3-1944. It is further clarified that Wahiuddin was not the owner of the property, defendant No.1 is not legal heir of Wahiuddin, wife of Wahiuddin was alive and defendant No.1 was having five brothers and three sisters therefore, inclusion name of only Defendant No.1 is illegal. 7. It is further clarified that Wahiuddin was not the owner of the property, defendant No.1 is not legal heir of Wahiuddin, wife of Wahiuddin was alive and defendant No.1 was having five brothers and three sisters therefore, inclusion name of only Defendant No.1 is illegal. 7. It is further averred that the defendant No.1 is not in possession of the suit property and on the basis of inclusion of his name in the revenue records, he moved an application for partition and also obtained order from the Revenue Court of Patharia, against which she had preferred an appeal before the Sub Divisional Officer, which is pending. It has also been further averred that on the basis of inclusion of defendant No.1 name in the revenue records, on the basis of order of partition from the Revenue Court, the defendant No.1 is making an attempt to take possession and was also threatening the plaintiff which has compelled the plaintiff to file the present civil suit. It has been further averred that cause of action arose on 3-8-1999 when the Revenue Court, Patharia has passed the order of partition. On the basis of these pleadings, the plaintiff prayed for declaration that it be declared the plaintiff is the sole owner of the suit property and the defendant No.1 be restrained from interfering in the peaceful possession of the suit property. 8. Appellant/defendant No.1 has filed written statement denying the allegations made in the plaint denying that out of total area 24.24 acres of land, there was no dispute. In fact, out of suit property, Khasra No.4 area 1.47, Khasra No.5 area 0.28 acres, Khasra No.8/5 area 3.71 acres Khasra No 8/9 area 14.32 acres, Khasra No.304/1 area 4.46 acres there was no dispute between him and the plaintiff. In fact, Khasra No.819, area 14. 32 acres out of which 7.16 acres of land has been given in partition to the plaintiff and in Khasra No 8/9 out of 14.32 acres of land, 7.16 acres of land has been given to defendant No.1 Anwar Haque which has been recorded in his account bearing Khasra No.8/13. In fact, Khasra No.819, area 14. 32 acres out of which 7.16 acres of land has been given in partition to the plaintiff and in Khasra No 8/9 out of 14.32 acres of land, 7.16 acres of land has been given to defendant No.1 Anwar Haque which has been recorded in his account bearing Khasra No.8/13. Similarly Khasra No.304/1 is in fact having area 3.74 acres of land and half of this land ie., 1.87 acres was given to the defendant and half of the land was given to the plaintiff which was subsequently recorded in Khasra No 304/1 in the name of defendant No1. The said khasra number was divided in pursuance of the order dated 8-3-1999 passed by the Tahsildar, Sargaon. It has also been contended that before passing such order, Tahsildar, Sargaon had given an opportunity to the plaintiff to raise objection and further proceeding was kept in abeyance for three months but the plaintiff has not filed any suit, therefore, Tahsildar, has passed the order directing half of the partition of the share. It has been further contended that after passing of the order of the partition, in order to take possession and to certify, defendant No.1 has moved an application before the Tahsildar, Sargaon for demarcation who has done demarcation in favour of the defendant No.1. It has been specifically denied by the defendant No.1 that the entire property belongs to plaintiff, she is sole owner of the suit property and she is in possession of the suit property, or doing agricultural work. It has also been denied that genealogy submitted in the plaint does not reflect the true family description. It has also been denied that the name of the defendant No.1 has been recorded in the revenue records in the year 1985-86 without the knowledge of the plaintiff and also denied that on account of death of Wahiuddin, the name of defendant No.1 has been recorded as his legal heir. It is also contended that the land owner Samshuddin has been described in the family tree and he is sole member. It is also contended that the land owner Samshuddin has been described in the family tree and he is sole member. It has also been contended that defendant No.1 Anwar Haque is the sole male member of the family, and since plaintiff herself is issue-less and in fact by influencing her Mohammed Rasool who is plaintiff's brother's son nephew of the plaintiff is residing at Matpara has sold 3 acres of land out of 7.16 acres of land bearing Khasra No.8/9 area 14.32 to Mukul Sahu, but his name has not been recorded and would pray for dismissal of the suit. The defendant No.1 has also filed counter claim claiming possession of entire suit property. The plaintiff has filed reply to the counter claim. 9. Plaintiff has also filed an application under Order 39 Rule 1 and 2 CPC before the trial court for grant of injunction which was rejected by the trial court on 3-9-2004, against which Miscellaneous Appeal was also filed before the 2nd Additional District Judge, Mungeli who has also rejected the miscellaneous appeal vide its order dated 28- 2-2012. 10. During pendency of the suit, plaintiff died, therefore, Sheik Rasool filed an application under Order 22 Rule 5 of CPC to bring legal representative on record which was rejected by the trial court, against that civil revision No.714 of 2001 was filed before this court. This court while hearing the parties has disposed of the civil revision setting aside the impugned order and remanded the matter to the trial court for deciding the application for bringing legal representative on record as per Order 22 Rule 5 of the CPC after holding such enquiry as provided under the provisions of CPC on 21-1-2003. 11. Thereafter the trial court has conducted the enquiry and allowed Sheik Rasool to incorporate as legal representative of deceased plaintiff Nyazbi vide its order dated 16-12-2003, against that order a civil Revision No. 8 of 2004 was filed before this court which was rejected. 12. Thereafter, the plaint was amended wherein it has been inserted the fact that the plaintiff Nyazbi died on 30-3-2001 and she was issue-less widow lady. Present legal representative is son of Samshuddin as such he is nephew of deceased plaintiff Nyazbi. 12. Thereafter, the plaint was amended wherein it has been inserted the fact that the plaintiff Nyazbi died on 30-3-2001 and she was issue-less widow lady. Present legal representative is son of Samshuddin as such he is nephew of deceased plaintiff Nyazbi. It has been pleaded that he was looking her and he was taking care of her property and being proper care taken by him Nyazbi was fully satisfied, therefore, during her life time she was healthy and mentally state of mind and executed registered will on 19-11-1998. All the property inherited by her has been given to him. It has been further contended that the will which was written by Nyazbi is her last will and after understanding the same she had put her thumb impression in front of witnesses namely Vishnu Prasad and Y. Yadav, as such plaintiff's legal representative is sole owner of the suit property and after her death he is in possession of the land and doing agricultural work. 13. The defendant has denied the execution of will on 19-11-1998 as the land bearing Khasra No 304/1 is not in the name of Nyazbi as the said land was recorded in the name of Jagat Ram, Jugut Ram and Bhagwa in the revenue records in the year m1984-85, as such she was not in possession of said land, therefore the said will is forged one. It has been further contended that the person who had written the will is not known to Nyazbi and she was aware of the contents of the will then she would have certainly executed the will of the property which she owned and would pray for dismissal of the suit. The defendant has also filed counter claim stating that the entire property be declared in the name of defendant No1. Anwar Haque, peaceful possession be given to defendant No.1 and plaintiff or his agent be restrained from interfering in the said property. 14. The defendant has also filed counter claim stating that the entire property be declared in the name of defendant No1. Anwar Haque, peaceful possession be given to defendant No.1 and plaintiff or his agent be restrained from interfering in the said property. 14. On the pleadings of the parties, learned court below has framed as many as six issues which read as under: ^^¼1½ D;k okfnuh xzke lkaok fLFkr okn i= dh dafMdk&1 esa of.kZr leLr fookfnr Hkwfe dh ,d ek= Lokfeuh gS\ ¼2½ D;k oknh izfroknh dz-&1 ds fo:) fookfnr Hkwfe esa fdlh Hkh izdkj dk gLr{ksi u djus laca/kh LFkk;h fu"ks/kkKk izkIr djus ds vf/kdkfj.kh gS\ ¼3½ lgk;rk ,oa O;;\ vfrfjDr okn iz’u ¼4½ D;k fnukad 19-11-98 dks U;kt ch }kjk 'ks[k jlwy ds i{k esa fu"ikfnr olh;rukek QthZ ,oa 'kwU; gS\ ¼5½ D;k mDr olh;rukek ls 'ks[k jlwy dks fookfnr laifRr ij LoRo ,oa vf/kdkj izkIr gks tkrk gS\ ¼6½ D;k laiw.kZ oknxzLr Hkwfe U;kt ch dh e`R;q ds ckn izfroknh dz-&1 ds LoRo ,oa vf/kdkj dh gS\^^ 15. In order to prove the case plaintiff has executed the documents namely certified copy of revenue records (Ex.P/1), Kesband Khatauni (Ex.P/2 and 3) right of records (Ex.P/3-A), certified copy of the will (Ex.P/3), copy of the order sheet dated 16-11- 1999 passed by the Sub Divisional Officer, Revenue Court (Ex.P/4), map of suit property (Ex.P/5), map (Ex.P/6), Panchsala (Ex.P/7). Plaintiff examined Nyazbi (PW/1), Ghansai (PW/2) and Siyaram (PW/3). 16. Defendant in order to prove his case, has exhibited the documents namely Khasra Panchsala (Ex.D/1), Keshband Khatauni (Ex.D/2, D/3 and D/4), document related to demarcation (Ex D/5), copy of mutation of registration (Ex.D/6), copy of the order dated 16-11-1999 passed by the Sub Divisional Officer, Revenue (Ex.D/7), certified copy of application filed under Section 110 of the Land Revenue Code (Ex.D/8), Minutes of Meeting of Janpat Panchayat Patharia (Ex.D/9), copy of mutation record (Ex.D/10), right of record (Ex.D/11), power of attorney (Ex.D/12), Keshband Khatauni (Ex.D/13). Defendant examined Anwar Haque (DW/1) and Dwarika Prasad (DW/2), Tanu (DW/3), Tanuram (DW/4) and Sakaram (DW/5). 17. Defendant examined Anwar Haque (DW/1) and Dwarika Prasad (DW/2), Tanu (DW/3), Tanuram (DW/4) and Sakaram (DW/5). 17. Learned trial court while allowing the suit vide its judgment and decree dated 19-3-2007 has decided issue No.1 in favour of the plaintiff and while deciding issue No.2 whether plaintiff is entitled to get inherited suit property in view of the will, the trial court has recorded its finding that the plaintiff is entitled to get Khasra No. Khasra No.4 area 1.47 acres, Khasra No.5 area 0.28 acres, Khasra No.8/5 area 3.71 acres, Khasra No.8/9 area 4.16 acres, ,Khasra No. 304/1 area 1.87 acres, Khasra No.8/13 area 7.16 acres and Khasra No.304/13 area 1.87 acres and granted injunction in favour of the plaintiff through property which has been prescribed while deciding the issue No.2. Learned trial court has also recorded its finding that since the will is registered and there is no irregularity or illegality has been established by the defendant No.1 with regard to execution of the will, the will is held to be legal and accordingly allowed the suit and rejected the counter claim filed by the defendant No.1. The plaintiff against non-grant of title and possession of the entire suit property described in the plaint has preferred Civil Appeal No 7 of 2007 before the Additional District Judge, Mungeli and against the judgment and decree passed by the trial court, the defendant has preferred civil appeal before the First Appellate Court which was registered as Civil Appeal No.10-A/2007. Learned First Appellate Court vide its common order dated 15-9-2008 has allowed the appeal filed by the plaintiff and directed that the plaintiff is owner and title holder of the entire suit property as prescribed in the plaint and defendant No.1 be restrained from interfering with the possession of the plaintiff. Learned First Appellate Court has rejected the first appeal filed by the defendant. 18. Being aggrieved with the judgment and decree passed by the trial court as well as the First Appellate Court, the defendant No.1 has filed Second Appeal No.7 of 2009 as well as Second Appeal No 8 of 2009 by which the trial court has granted decree in favour of the plaintiff for the suit property bearing Khasra No.8/13 area 7.16 acres, Khasra No 304/13, area 1.8 acres in favour of the plaintiff. Both the appeals have been admitted on the aforesaid mentioned substantial questions of law. 19. Both the appeals have been admitted on the aforesaid mentioned substantial questions of law. 19. Learned Senior Advocate Dr. N.K. Shukla assisted by Mr. Saurabh Sharma, learned counsel for the appellant/defendant No.1 would submit that the appellant/defendant has raised plea of limitation before the courts below but they have ignored the law of limitation, as such the judgment and decree passed by the trial court deserves to be set aside on this count alone. He would further submit that there is difference between the legal heir and legal representative. The learned First Appellate Court has also ignored the fact that the subject matter of will and subject matter of suit is at variance as any Khasra number was sold before execution of any will. He would further submit that both the courts below never addressed them to the real issue involved in the present case which is not relating to Nyazbi but succession of Wahuiddin specially when in the revenue records the entire property was standing in the name of Nyazbi and Wahuiddin and Revenue court invoking the jurisdiction under Section 178 of Chhattisgarh Land Revenue Code, 1959 partitioned t he holding during her lifetime of the Nyazbi and Anwar Haque, Nyazbi participated in the revenue court and also preferred an appeal before Sub Divisional Officer under Section 44 of the Chhattisgarh Land Revenue Code, 1959 which was pending on the date when suit was filed and decided in favour of present appellant which is also reflected in the written statement filed by him. He would further submit that these two facts happened to be during life time of Nyazbi and the appellant is not claiming succession of Nyazbi but as a successor of Wahiuddin in original written statement and after death of Nyazbi he is claiming property of Nyazbi. In support of his arguments, he would rely upon the decisions of Hon'ble Supreme Court in the case of Varadarjan vs. Kanakavalli, reported in 2020 (11) SCC 598 , Suresh Kumar Bansal vs. Krishna Bansal, reported in 2010 (2) SCC 162 , Jaladi Suguna vs. Satya Sai Central Trust, reported in 2008 (8) SCC 521 and Nawal Kishore Patel vs. Indrapati Devi, reported in 2003(9) SCC 220. He would further submit that the learned courts below have held validity of the will ignoring the Mohammadan Law and as per Chapter 6 of the of the Indian Succession Act, the provisions of this chapter is not applicable to the case of will under Mohammadan law, therefore, the finding recorded by the trial court that the will is legal and justified and affirmed by the First Appellate Court is erroneous finding and against the provisions of law, therefore, the question of law as framed by this court deserve to be decided is in favour of Defendant No.1. 20. Learned Sr. counsel appearing for the appellant/defendant while making submission with regard to question of law No.1 framed by this court, would submit that there was no material on record by the plaintiff before the trial court that the suit property was in possession of the plaintiff and in absence of any material brought on record, the issue No.5 decided by the trial court and affirmed by the First Appellate Court that the plaintiff was in possession of the suit property, erred in granting of decree of injunction. He would further submit that in absence of any decree for possession merely suit for grant of decree of injunction is not maintainable as such would pray for setting aside judgment and decree passed by trial court and affirmed by the Appellate Court. 21. Per contra, learned counsel for respondent No.1 would submit that the judgment and decree passed by the trial court and affirmed by the First Appellate Court was legal and justified. He would further submit that the defendant No.1 has not disclosed any specific averment that how he is in relation with Nyazbi rather, he admits the family tree mentioned in para 3 of the plaint. He would further submit that in his written statement that he is the only male member of the family of Shamsuddin. It has been further submitted that in the family tree, Shamsuddin was having two sons namely Basaruddin and Amkiruddin. Basaruddin was having two sons namely Katubuddin and Wahiuddin. All of them have died. Katubuddin is having one daughter namely Chhedin Bai. Chhedin Bai has married with Samsujjama and left the family of Samsuddin. After marriage, she could not be the member of the family of Samsuddin. Basaruddin was having two sons namely Katubuddin and Wahiuddin. All of them have died. Katubuddin is having one daughter namely Chhedin Bai. Chhedin Bai has married with Samsujjama and left the family of Samsuddin. After marriage, she could not be the member of the family of Samsuddin. Anwar Haque is the son of Chhedin Bai and Samsujjama but he is the legal heir of Samsujjama. Therefore, the claim of the defendant No.1 that he alone is not the legal heir of Samsuddin is false and not tenable. He would further submit that as per Section 63 of Mohammedan Law defines “Sharers” and the schedule given under Section 63 defines about the category of persons of Sharers. According to the table, at the time of death of Nyazbi, her father has already died, therefore, clause 1 is not applicable. Clause 2 speaks about “True Grandfather”. Section 62(a) defines the “True Grandfather” which says that “True Grandfather” means a male ancestor between whom and the deceased no female intervenes. He would further submit that the defendant No.1 does not come through true grandfather because in between Kutubuddin and defendant No.1 Anwar Haque, his mother Chhedin Bai intervenes. At the time of death of Nyazbai her husband Alimuddin, her father-in-law Amiruddin, brother of her father-in-law namely Basaruddin, sons of Basaruddin namely Kutubuddin and Wahiuddin have al ready died. Therefore, he could not be the legal heir of Shamsuddin or Nyazbi. Other categories are not applicable in the case to hold that the defendant No.1 is the legal heir of Nyazbi. 22. He would further submit that the entries in the revenue records do not confer any title over the person whose name is recorded as held by Hon'ble Supreme Court in the case of Municipal Corporation vs. Puran Singh, reported in 2015 (5) SCC 725 , Balwant Singh vs. Daulat Singh, reported in AIR 1997 SC 2719 and Chhedilal vs. Gora Singh, in Second Appeal No. 109 of 2003 decided on 25/10/2018. He would further submit that under the Mohammedan Law, a Mohammedan can execute the will for her entire property. The restriction of 1/3 is not applicable in the present case because Nyazbi was alone the title and possession holder of her property. All her relatives ie., husband, father-in-law, grand father-in-law, brothers of father-in-law all have died issue-less. Nyazbi herself was issue-less. The restriction of 1/3 is not applicable in the present case because Nyazbi was alone the title and possession holder of her property. All her relatives ie., husband, father-in-law, grand father-in-law, brothers of father-in-law all have died issue-less. Nyazbi herself was issue-less. Therefore, the question of obtaining consent is also not arises because there was no other legal heir alive at that time. He would further submit that both courts below have concurrently held that the counter claim of the defendant No.1 is not maintainable. There is no declaration that the defendant No.1 is having title and he is in possession of the suit property, therefore, he would submit that substantial question of law with regard to issue No.1 framed by this court be decided against the defendant No.1/appellant. He would further submit that since plaintiff has able to prove that the will executed in favour of plaintiff has been proved in accordance with law, therefore, the question of law No.2 be decided against the defendant No. 1 and would pray for dismissal of both the appeals filed by the appellant/defendant. 23. I have heard learned counsel for the parties and perused the records of both the courts below with utmost satisfaction. 24. So far as substantial question of law No.2 is concerned, it goes to the root cause, therefore, it is required to be decided first. The plaintiff and defendants are Muslim and their execution of will is governed by Provisions of Mohammedan Law. It is not in dispute that the execution of Will in Sunni Muslim Sect is governed by Hanifi Law. Before examining the Will under Mahomedan Law, it is expedient for this Court to understand the requisite conditions for a valid Will. Chapter IX of Mulla’s Principles of Mahomedan Law, deals Will and Section 115 provides for the person capable of making Wills. Section 116 provides that the forms of Will is immaterial. Section 117 provides for bequest of heirs & Section 118 provides limit of testamentary power. Sections 115, 116, 117 & 118 are as under:- “115. Persons capable of making wills- Subject to the limitations hereinafter set forth, every Mahomedan of sound mind and not a minor may dispose of his property by will. 116. Form of will immaterial- A will (Vasiyat may be made either verbally or in writing. 117. Sections 115, 116, 117 & 118 are as under:- “115. Persons capable of making wills- Subject to the limitations hereinafter set forth, every Mahomedan of sound mind and not a minor may dispose of his property by will. 116. Form of will immaterial- A will (Vasiyat may be made either verbally or in writing. 117. Bequests to heirs- A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator (l). Any single heir may consent so as to bind his own share (m). 118. Limit of testamentary power- A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator (e).” 25. From the above stated provisions, it is quite vivid that following conditions must be filled up for a valid Will executed by Mahomedan. (a) A bequest may be executed by any Muslim to another including institution and a class of people. (b) The persons entitled to make or take a Will must have capacity to make or take a Will. (c) A bequest must be made of some subject. (d) Formalities of making a Will must be fulfilled. (e) Only one-third property can be bequeathed. (f) Bequest to heirs is restricted. (g) Conditional contingent and future bequest are void. 23. The essentials of a valid Will have been explained in a very lucid manner by Hon'ble High Court of Patna in Abdul Manan Khan Vs. Murtuza Khan, AIR 1991 Pat. 154 at 159, 16 & 161, as under:- (i) Any Mahomedan having a sound mind and not a minor, may make a valid will to dispose of the property. (ii) So far as a deed of will is concerned, no formality or a particular form is required in law for the purpose of creating a valid will. An unequivocal expression by the testator serves the purpose. (iii) A bequest in favour of an heir is invalid unless the other heirs consent to it after the testator's death. (ii) So far as a deed of will is concerned, no formality or a particular form is required in law for the purpose of creating a valid will. An unequivocal expression by the testator serves the purpose. (iii) A bequest in favour of an heir is invalid unless the other heirs consent to it after the testator's death. For the purpose of giving effect to a will whereby a testator has bequeathed more than 1/3rd interest either to a testator or to a heir, consent is required in relation thereto of the heirs only after the death of the testator. Thus even a consent by the heirs of the testator during his lifetime in such a case does not sub-serve the requirement of law. For these reasons only, a provision has been made to obtain consent of the heirs after the death of the testator; if by reason of a will more than 1/3rd of the properties is sought to be bequeathed to an outsider, and to any extent to a heir. 24. Hon'ble the High Court of Karnataka in Narunnisa Vs. Shek Abdul Hamid, AIR 1987 Kant 222 at 225- 226, has held at paragraph 15 & 16 as under:- “15. We find it difficult to approve this reasoning. Assuming that express consent is not the requirement of law, nevertheless, the implied consent can be inferred only by some act or dealings in respect of the property, which is sought to be bequeathed. In Mullas Book, referred to above, we find the following : "Silence not consent : Where a Will contained a bequest excluding the female heirs and mutation of names took place, it was held that consent of the heirs could not be implied from mere silence on their part at the mutation proceedings." (Page 138). 16. It appears, to us neither inaction nor silence can be the basis of implied consent. If the 5th defendant's actions were such by which such inference could be drawn there may be justification to imply consent. Without-being exhaustive, if in some proceedings, pertaining to property in dispute, say, before the revenue authorities or other similar authorities, the fifth defendant had given any statement or held out a belief that she had relinquished her rights that material may afford a basis for implied consent. Without-being exhaustive, if in some proceedings, pertaining to property in dispute, say, before the revenue authorities or other similar authorities, the fifth defendant had given any statement or held out a belief that she had relinquished her rights that material may afford a basis for implied consent. Or if for a number of years, she has kept herself silent, watching the enjoyment of share, under her nose or actively supporting first defendant's enjoyment that may afford a situation to draw an inference. But to defeat the legal right on the sole ground that she has remained absent cannot be countenanced. It would be fallacious and unjust, if an illiterate pardanashin lady's rights are allowed to be defeated solely on the ground of her absence from the proceedings, which act may be innocent and cannot be attributed to her knowledge or termed as deliberate. She may not know the consequences of her remaining absent : her financial position may be such that she may not be in a position to engage a Counsel and take part in the proceedings. These possibilities cannot be ruled out. Unless strong circumstances exist and conclusion becomes inevitable consent cannot be implied. 26. Hon’ble High Court Madras in Noorunissa Vs. Rahaman Bi & others, Will is (2001) 3 MLJ 141 , has held at paragraph 13 as under:- “13. In support of the above said views that the testator or testatrix cannot bequeath more than one-third share of his own assets the following legal positions are taken into consideration: (i) In Chapter XXIII of Mohammadan Law of Wills Second Edition 1965, by T.R. Gopalakrishnan, under the head Limits of testamentary power in Mohammadan Law, it has been commented that the power of Mohammadan to dispose of by Will is circumscribed in two ways and the first limit is to the extent. A Mohammadan. can validly bequeath only one third of his net assets, when there are heirs. This rule is based on a tradition of the prophet and the Courts in India have enforced the rule from early times. The object of this rule is to protect the rights of the heirs and where there is no heirs and when all the heirs agree and give their consent the one-third limit may be exceeded. This rule is based on a tradition of the prophet and the Courts in India have enforced the rule from early times. The object of this rule is to protect the rights of the heirs and where there is no heirs and when all the heirs agree and give their consent the one-third limit may be exceeded. While the rule is that a muslim can bequeath only one third of his assets, a bequest in excess of one third is rendered valid by the consent of the heirs whose rights are infringed thereby or where there are no heirs at all. (ii) Sec. 189 in Chapter XIII of Mohammedan Law deals with Bequest to heirs. A bequest to an heir is not valid except to the extent to which the persons who are the heirs of the testator at the time of his death, expressly or impliedly consent to the bequest after his death. It is evident from the abovesaid section of Mohammedan Law that while it permits the making of a Will to a limited extent in favour of stranger or strangers, it does not allow undue preference being given to a particular heir or heirs and be quest to such heir or heirs without the consent of other heirs. It is also evident from the abovesaid provision of law that bequest to an heir or heirs without the consent of other heirs Will be altogether invalid. It is also evident from Sec. 195 of the Mohammedan Law that testator may revoke a bequest at any time either expressly or impliedly. (iii) In Bayabai v. Bayahai and another, A.I.R. 1942 Bom. 328 (2), it has been held by His Lordship Chagla, J. as follows: Under Sunni Mahammedan Law, by which the parties are governed, there is a two fold restriction on the testamentary capacity of a testator. He cannot dispose more than onethird of his property, and even with regard to that one-third he cannot bequeath it to his heirs. In this case the deceased had purported to dispose of the whole of his estate, and all the affective bequests made by him are in favour of his heirs. These bequests could have been validated by the consent of the heirs after the death of the testator. (iv) In Yasim Imambhai Shaikh (deceased by L.Rs.) v. Hajarabi and others, A.I.R. 1986 Bom. These bequests could have been validated by the consent of the heirs after the death of the testator. (iv) In Yasim Imambhai Shaikh (deceased by L.Rs.) v. Hajarabi and others, A.I.R. 1986 Bom. 357, it has been held as follows: A Mohammedan cannot by Will dispose of more than 1/3rd of the surplus of his estate after payment of funeral expenses and debts. That bequest in excess of 1/3rd cannot take effect, unless the heirs consent thereto after the death of testator. (v) The learned counsel for the plaintiff has brought to the notice of this Court the decision reported in Valashiyil Kunhi Avulla and others v. Eengayil Peetikayil Kunhi Avulla and others, A.I.R. 1964 Ker. 200 for deciding the dispute between the parties. In that case the properties of a Mohammedan 'M' were divided between his sons 'A', 'B', 'C', 'D', and 'E', 'D' and 'E' were allotted more shares than what they were entitled to. In that deed of partition it was mentioned that if any property of 'M' was omitted to be included in the said document for division, 'A', 'B' and 'C' alone will be entitled to divide the such properties between themselves and not 'D' and 'E' as they were already allotted more properties than what they were entitled to. For division of some other properties omitted to be considered at the time of partition, 'D' and 'E' filed a suit and the said suit was resisted relying on the clause in the partition deed wherein claim for omitted property was given only to 'A', 'B' and 'C' and not to 'D' and 'E' In that case it was held as follows: The bequest to A, B, C by M in respect of the aforesaid properties not having been consented to after his death by the other heirs, viz., D and E was not valid under Mohammedan Law. The relinquishment or the agreement to relinquish by the D and E being within the mischief of Sec. 23 of the Contract Act read with Sec. 6(a) of the Transfer of property Act was void and D and E were bound by them. As D and E had nothing to give nor to give up but only to take, they could not be said to have been parties to a family arrangement. As D and E had nothing to give nor to give up but only to take, they could not be said to have been parties to a family arrangement. (vi) In Rahumath Ammal and another v. Mohammed Mydeen Rowther and others, (1978) 2 M.L.J. 499 , a Division Bench of this Court has held as follows: The bequest to an heir coupled with a bequest to a non-heir has to be reconciled as far as possible and the totality of the instrument cannot, on a hypertechnical ground be rejected in toto. If this is the method by which such an instrument has to be understood and interpreted, then it should be held that the bequest to the first defendant, who is an heir in this case, is not valid, because it is against the personal law, but in so far as the bequest to a non-heir, namely, the second defendant is concerned, it would be operative to the extent of a third of the estate of Seeni Rowther. The principles laid down with regard to bequeathing of property of a Mohammedan would clearly go to show that a Mohammedan cannot bequeath more than one third of his property and even with regard to that one third he cannot bequeath it to his heirs. If the bequest is to an heir it can be validated by the consent of all the heirs after the death of the testator. 27. Hon’ble High Court of Karnataka in case of Sri. Mohammed Ashraf Vs. Smt. Tabbasum, has examined Section 117 of the Mahomedan Law and has held at paragraph 13 as under:- “13. On the other hand, the trial Court has committed a serious error in not noticing the mandatory provisions of Sec. 117 of the Muslim Law more particularly explained in the case of Narunnisa by this Court. In this view of the matter, only 1/3 share will go to Tabassum and the remaining 2/3 will go to Ashraff. Hence, the trial Court’s approach is incorrect and not according to the mandatory provisions of Muslim Law. 28. In this view of the matter, only 1/3 share will go to Tabassum and the remaining 2/3 will go to Ashraff. Hence, the trial Court’s approach is incorrect and not according to the mandatory provisions of Muslim Law. 28. Now coming to the facts of the present case keeping in view the law laid down by the Hon’ble Supreme Court and various High Courts considering the provisions of Mohammad Law with regard to will it has to be examined by this court whether the will has been proved as per the provisions of Mohammad Law or not. The plaintiff to prove the Will has examined Vishnu Prasad, Siyaram and allowing the suit while deciding the issue No. 1 and 2 has recorded its finding at paragraph – 20 of its judgment that since the Will has been executed 30 years before, therefore, as pe section 90 of the Evidence Act, presumption can be drawn in favour of the document as such defendant has failed to prove that the Will dated 19/11/1998 is forged or void. This finding has been affirmed by the learned First Appellate Court by recording its finding at paragraph 26 and has recorded its finding that as per the Mohammad Law normally the person cannot execute Will beyond 1/3rd of his entire property but the circumstances when no legal representative of the person who has to execute Will is available then Will beyond 1/3rd of the property can be executed. But both the Courts below have not examine the Will in terms of the Mohammad Law and the parameters laid down under the Mohammad Law. The learned court below have committed illegality in holding the Will to be genuene without examine it from the provisions of Mohammad Law as such the finding recorded by the learned court below and affirmed by the Appellate Court that the Will is proved is erreneous finding and contrary to the Law, therefore, the substantial question of law No.2 framed by this court is deserve to be answered in favour of the defendant/appellant thus it is held that the learned court below have committed patent illegality in recording that the Will has rightly been proved, therefore, the substantial question of Law No.2 answered in favour of the appellant/defendant by setting-aside the finding relates to validity of the Will. 29. 29. So far as substantial question of Law No.1 is concerned it is quite vivid that since both the court below have decided that the Will is found to be legal and genuine, therefore, it has held that the plaintiff was in possession of the suit property. But the learned trial court while deciding the issue No.2 has not given any finding with regard to how the plaintiff has acquired the possession of the property and whether he is legally entitle to validly title to hold possession has not been proved by recording cogent evidence. Thus, the finding recorded by the learned trial court and affirmed by the appellate court with regard to grant of decree of injunction suffers from perversity and illegality which can very well be interfered by this court while deciding the second appeal. Thus substantial question of law No.1 deserves to be answered in favour of the defendant and against the appellant. 30. The learned counsel for the appellant has forcefully raised submission with regard to difference between legal heirs and legal representative and had submitted that this vital issue has not been considered by the court below and has referred to the the judgments of Hon’ble Supreme Court in case of Varadarjan Kumar Bansal V. Kanakavalli, 2020 11 SCC 598 , Suresh Kumar Bansal V. Krishna Bansal, 2010 2 SCC 162 , Jaladi Suguna V. Satya Sai Central Trust, 2008 8 SCC 521 and Nawal Kishore Patel V. Indrapati Devi, 2003 9 SCC 220. But this issue was not raised before the trial court and there was no pleading to this effect as such in the second appeal the same cannot be raised. 31. Thus, the both the appeals are allowed and the judgment and decree passed by the learned trial court in Civil Suit No. 26A/99 decided on 19/03/2007 and judgment and decree passed in Civil Appeal No. 7A/2007 and 10A/2007 decided on 15/09/2008 are allowed. Consequently, the judgment and decree are set-aside. 31. Thus, the both the appeals are allowed and the judgment and decree passed by the learned trial court in Civil Suit No. 26A/99 decided on 19/03/2007 and judgment and decree passed in Civil Appeal No. 7A/2007 and 10A/2007 decided on 15/09/2008 are allowed. Consequently, the judgment and decree are set-aside. Since the learned trial court has not examined the issue of Will in accordance with the Mohammad Law and issue of grant of permanent injunction has been decided on the basis of Will only it is directed that the matter will be remitted back to the concerned trial court who shall decide the issue of Will as per provisions of Mohammad Law and also shall decide the issue of grant of injunction afresh on the basis of material, evidence placed on record. The parties are free to amend the pleadings and have a opportunity to lead evidence in support of their respective stand. The learned trial court will make an endeavor to decide the case within one and half year from the date of first appearance of the parties. The parties are directed to appear before the trial court on 12th June, 2023. 32. A decree be drawn accordingly.