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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 474 of 2007
Reserved on : 03.03.2022
Delivered on : 02.05.2022
1. Sulaxani, D/o Mahadeo Jaiswal, Aged About 42 Years.
2. Sukhaman, D/o Mahadeo Jaiswal, Aged About 37 Years.
All appellants, R/o Village- Targawan, P.S. Patana, Tahsil-
Baikunthpur, District- Korea (C.G.)
---- Appellants
Versus

1. Sattar Ali, S/o Nasir, Aged About 38 Years, Caste Musalman,

Occupation- Cultivation, R/o Village- Targawan, P.S.- Patana,
Tahsil- Baikunthpur, District- Korea (C.G.)
2. Jasimuddin, S/o Noor Ali (Dead)
3. Nizamuddin, S/o Subhan Ali, Aged About 52 Years.
4. Rashid Mohammad, S/o Noor Ali, Aged About 27 Years.
5. Nir Mohammad, S/o Ali Zan, Aged About 57 Years.
All respondents No. 2 to 5 ex-parte, R/o Village- Deo Nagar, P.S.
& Tahsil- Surajpur, District- Surguja (C.G.)
6. State of Chhattisgsarh, through Collector, Korea (C.G.)
---- Respondents

For Appellants : Mr. Amiyakant Tiwari, Advocate.

For Respondent No. 1 : Mr. D.N. Prajapati, Advocate.
For Respondents No. 3 & 5 : Mr. Vivek Bhakta, Advocate.
For State/Respondent No. 6 : Mr. Ishwari Ghritlahre, P.L.

Hon'ble Shri Justice Narendra Kumar Vyas

C.A.V. JUDGMENT

1. This second appeal has been filed by the appellants/defendants

under Section 100 of the C.P.C. against judgment and decree
dated 20.09.2007 passed by District Judge, Korea (Baikunthpur)
(C.G.) in Civil Appeal No. 07A/2006 (Old Case No. 08A/2005)
(Sattar Ali Vs. Jasimuddin & others) setting aside the judgment
and decree dated 29.03.2005 passed by Civil Judge Class-II,
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Baikunthpur, District- Korea (C.G.) in Civil Suit No. 13A/2002 for

declaration and possession of the suit property i.e. agricultural
land bearing Khasra No. 685, 782 & 920 area admeasuring 0.25,
0.10 & 0.65 R.A. respectively situated at Village- Targawan,
Patwari Halka No. 24, Revenue Circle- Patana, District-
Baikunthpur (C.G.)

2. For the sake of convenience, the parties shall be referred to in

terms of their status in Civil Suit No. 13A/2002 which was filed
for declaration and possession of the suit property.

3. The instant Second Appeal is admitted for hearing by this Court

vide its order dated 11.08.2010 on following substantial
questions of law:-

1. Whether the Will Ex. P-2 is proved in accordance with

law, more particularly, law relating to Hiba under the
Mohammedan Law ?
2. Whether the Will Ex. P-2 is a suspicious document and
the first appellate Court was not justified in allowing the
suit preferred by the plaintiff ?
4. Thereafter, on 05.07.2021, an additional issue has been framed
by this Court, which reads as under:-

“Whether the first appellate Court is justified in granting decree

of the entire suit property in favour of plaintiff Sattar Ali on the
basis of Will dated 16-3-1992 (Ex.P-2) ignoring the fact that the
testator of the Will namely, Noor Mohammad was a Sunni
Mohammad governed by Hanifi law and by virtue of Rules 117
and 118 of the Sunni Hanifi law, “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.”?”
5. The brief facts, as reflected from the plaint averment, are that the
plaintiff has filed Civil Suit No. 13A/2002 before Civil Judge
Class-II, Baikunthpur, District- Korea (C.G.) for declaration and
possession mainly contending that defendants No. 1 to 4 are
Sunni Mahomedan and they are governed by Sunni Hanifi Law
whereas, defendants No. 5 & 6 are Hindus and they are
governed by Hindu Law. It has been contended that the
agricultural land bearing Khasra No. 685, 782, 920 area
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admeasuring 0.25, 0.10 & 0.65 R.A. respectively is situated at

Village- Targawan, Patwari Halka No. 24, Revenue Circle-
Patana (Suit Property) belonging to Late Noor Mohammad S/o
Radhan Ali. Late Noor Mohammad was residing in the house
built up in the suit property and doing agricultural work. Noor
Mohammad expired on 29.08.1992 and his wife expired prior to
his death. He died issue-less. It has been further contended that
due to old age, he was unable to look after agricultural work,
therefore, in the year 1989, he kept the plaintiff to look after him
as well as to take care of his agricultural work. The plaintiff was
living with Late Noor Mohammad with his wisdom. The plaintiff is
nephew of Late Noor Mohammad.

6. It has also been further contended that looking to the care taken
by the plaintiff, in the month of March, 1990, Late Noor
Mohammad shown his intention in presence of prominent
persons of Village- Targawan that he intends to make the plaintiff
as his legal heir and intended to transfer his movable and
immovable property in the name of the plaintiff for that he is
willing to execute a Will. It has been further contended that on
23.03.1990, Late Noor Mohammad has expressed before Patel
& Panch of Village- Targawan, Sarpanch of Village- Kasra, the
then Sarpanch and citizen that he became old and ill, the plaintiff
is looking after him for the last one year, therefore, being
satisfied with the care taken by the plaintiff, he is handing over
his immovable property i.e. house and the land area
admeasuring 2.82 acres to the plaintiff and a Will was executed
to that effect in stamp paper of Rs. 10/-. Late Noor Mohammad
has executed the Will in favour of the plaintiff on his own wisdom
and put his thumb impression on the stamp paper on his own
wisdom. The Will was written by Secretary of Gram Panchayat-
Kasra namely Jaiprakash on 23.03.1990. The plaintiff was
appointed as executant of the Will by Late Noor Mohammad. It
has been specifically mentioned in the Will that on 16.03.1992,
he has executed the Will in favour of Jasimuddin who is not
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looking after him, therefore, the said Will is cancelled from today
itself.

7. It has been further contended that as per the Will executed in

favour of the plaintiff, he became legal owner of the entire
property owned by Late Noor Mohammad. Defendants No. 1 & 2
have no right over the suit property. Despite this, they mutated
the entire property in their name on 13.09.1992 with collusion
with revenue officer without intimating to the plaintiff. After
knowing this fact, the plaintiff received certified copy of order
dated 13.09.1992 with regard to the mutation proceeding from
revenue department and against that order, the plaintiff filed an
appeal before the Court of Sub Divisional Officer, Baikunthpur. It
has been further contended that since defendants No. 1 to 4 are
not in possession of the suit property, therefore, decree of
possession may kindly be confirmed in favour of the plaintiff.

8. It has been further contended that on 29.10.1992, defendants

No. 1 to 4 have sold the suit property bearing Khasra No. 650 &
920 area admeasuring 0.25 & 0.65 respectively to defendants
No. 5 & 6 through registered sale-deed. Defendants No. 5 & 6
are well aware of the fact that defendants No. 1 to 4 are not
owner of the property, despite that they have executed the sale-
deed in less market value. It has been further contended that
defendants No. 5 & 6 have purchased the land and mutated the
same, but could not get possession from defendants No. 1 to 4
because they were never in possession of the land. It has been
further contended that the plaintiff may kindly be declared as
owner of the land as mentioned at paragraph 2 of the plaint.

9. Defendants No. 1 to 4 have not filed their written statement and

they were proceeded exparte before the trial Court. Defendants
No. 5 & 6 have filed their written statement mainly contending
that Late Noor Mohammad was issue-less and it has been
denied that the plaintiff was taking care of Noor Mohammad. It
has also been denied that the Will has been executed in favour
of the plaintiff and the said Will is forged, fabricated and without
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any authority. It has also been denied that the plaintiff is owner of
the suit property after death of Noor Mohammad. The suit
property was recorded in the name of defendants No. 1 to 4 and
as per the succession right, it has been transferred in their
favour. After that they have sold the suit property and presently
defendants No. 5 & 6 are title holder of the suit property. It has
also been denied that defendants No. 1 to 4 are not in
possession of the suit property and all the adverse allegation
made in the plaint has also been vehemently denied by
defendants No. 5 to 6.

10. It has been further contended that after death of Noor

Mohammad, the revenue officer has recorded name of
defendants No. 1 to 4 by due process of law and by publishing
notice in newspaper and there was no objection, thereafter as
per the procedure of law, their names have been mutated on
13.09.1992. The plaintiff has never raised any objection on the
transfer of mutation before competent revenue officer.
Defendants No. 1 to 4 are real successors of Late Noor
Mohammad as they are sons of real brother of Noor Mohammad
namely Abdul & Jurhul, whereas the plaintiff has no blood
relation with Late Noor Mohammad, therefore, he cannot fall
within category of successor or legal heirs of Noor Mohammad.
The plaintiff is stranger and he is claiming title on the basis of
forged documents i.e. Will.

11. It has been further contended that as per Section 117/118 of the
Sunni Hanifi Law, the executant of the Will with the consent of
legal heirs can execute entire share through Will otherwise
without consent of legal heirs, the Will for entire property has
been executed, is illegal. It has been further contended that as
per provisions of law, the executant of Will cannot execute the
Will for more than 1/3rd share of his property. If the same has
been done, it is required the consent of all the legal heirs. It has
been contended that the Will has to be executed the property
after providing funeral expenses of executant. The Will has to be
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established as per the law, but the pleading which has been
made by the plaintiff, does not indicate that the Will has been
executed as per Sunni Hanifi Law, therefore, on the basis of Will,
the plaintiff has no right and interest, the Will is void ab initio.
After death of Late Noor Mohammad, all the properties were
mutated in the name of defendants No. 1 to 4 and same has
been purchased by defendants No. 1 to 4 from defendants No. 5
& 6 by registered sale-deed dated 29.10.1992 which is valid
document. On the basis of registered sale-deed, defendants No.
5 & 5 are in possession of the suit property. As per the revenue
record, defendants No. 1 to 4 are ostensible owner of the suit
property, they have paid the sale consideration and they are the
bonafide purchaser of the property. Hence, it is prayed for
dismissal of the suit.

12. On pleadings of the parties, the trial Court has framed as many
as six issues. To substantiate the case, the plaintiff examined
himself as PW-1, Mohammad Ali (PW-2), Amar Singh (PW-3) &
Mannu Lal (PW-4) and exhibited documents namely Will (P/1),
registered Will (P/2), Mutation registered (P/3) & B-1 (P/4). In the
cross-examination, the plaintiff has submitted that Late Noor
Mohammad is his grand maternal father. The plaintiff has
admitted that the Will has been executed as he is looking after
Noor Mohammad for last two years, therefore, Noor Mohammad
has executed Will in his favour. He has also admitted that he has
called Amar Singh, Patel and Jethu who at relevant time was
Sarpanch of Village- Targawan. He has also admitted that when
all the persons were present at Panchayat, then he said that
Noor Mohammad had told him that he intended to execute Will
in favour of the plaintiff, then the Will was written.

13. Mohammad Ali (PW-2) has stated that Noor Mohammad has
called him and told him that he intended to execute Will. He also
stated that he is intended to cancel the earlier Will, which was
written by him. He has admitted that the Will has not been
written by Sattar Ali, but Noor Mohammad has written the Will.
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He has also admitted that Sattar Ali is his neighbour and they
were used to visiting each other house occasionally.

14. Amar Singh (PW-3) has admitted that if he is not able to say that
the document in which he has put signature, writing work was
done or not.

15. Mannu Lal (PW-4) stated before the trial Court that Noor
Mohammad was old and unable to move. He has stated in his
cross-examination that Noor Mohammad was unable to move
and unable to travel beyond his residential house. He has also
admitted that 4-5 months of execution of the Will, Noor
Mohammad expired.

16. To substantiate the case, defendant examined himself as DW-1,

Bhagirathi (DW-2). The Defendant (DW-1) examined before the
trial Court wherein she has stated that no Will was executed by
Noor Mohammad on 23.03.1990 & 16.03.1992 in favour of
Sattar Ali. She has stated that she is aware about Noor
Mohammad and his family. She is aware that Raghan Ali was
father of Noor Mohammad. She has stated that Noor
Mohammad has four brothers, out of which she knew about
three brothers and she is not aware about fourth brother of Noor
Mohammad. She has stated that wife of Noor Mohammad was
her grand-mother, but this fact has not been mentioned in the
written statement. She has admitted that she is saying this for
first time. She has stated that Sattar Ali was not doing
agricultural work in the lifetime of Noor Mohammad. She has
denied that Late Noor Mohammad has executed any Will in
favour of Sattar Ali. She has admitted that at the time of
mutation, she has not given any notice to Sattar Ali.

17. Bhagirathi (DW-2) was examined before the trial Court wherein
he has stated that grand-son of Noor Mohammad namely Jasim,
Baiju & others were residing with him and they were looking after
Noor Mohammad and his agricultural work. Plaintiff- Sattar Ali
was neither doing agricultural work nor residing with Noor
Mohammad and he was not looking after Noor Mohammad. He
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has stated that Noor Mohammad has never stayed with Sattar
Ali. He has also stated that Noor Mohammad has neither called
any panchayat in lifetime nor executed any Will in his favour. It
has been further contended that after death of Noor Mohammad
name of Jasimuddin & others have been recorded. He has also
stated that he has never seen Sattar Ali doing agricultural work
in the land of Noor Mohammad.

18. Learned trial Court after appreciating the evidence, material on

record has recorded its finding that the document Ex.P/1 & P/2
were forged and fabricated. Learned trial Court while deciding
issue No. 3 with regard to validity of the execution of Will has
recorded its finding that the witness has admitted in his evidence
that Noor Mohammad has executed Will with regard to which
property is not clear to him. He has also admitted that the Will
was executed on 16.03.1992 and in the office of Registrar, the
sign and registration date has been mentioned as 17.03.1992,
which is suspicious circumstances, as such, it has been
recorded finding that the Will is forged and fabricated, therefore,
the plaintiff is not entitled to get any declaration and the suit was
dismissed.

19. Against the dismissal of the suit, plaintiff has preferred appeal
before the District Judge, Korea, District- Baikunthpur which was
registered as Civil Appeal No. 07A/2006. Learned District Judge
vide its judgment and decree dated 20.09.2007 has allowed the
appeal by recording finding that there is no suspicious
circumstances prevailing at the time of execution of Will and the
Will has been proved by evidence of attesting witness, therefore,
the judgment and decree passed by the trial Court has been set
aside and it has been held that the plaintiff is title holder of the
suit property and his possession over the suit property has also
been affirmed.

20. Being aggrieved by the judgment and decree passed by the First
Appellate Court, defendants No. 5 & 6 have preferred this
second appeal, which has been admitted for hearing by this
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Court framing the substantial question of law as extracted

above.

21. It is not in dispute that the execution of Will is Sunni Muslim Sect
is governed by Hanifi Law. Since all the substantial questions of
law are interconnected, therefore, they are being deciding
analogously. 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. 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).”
22. 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.

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(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 Khan1, 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. 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 Hamid2, 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
1 AIR 1991 Pat. 154 at 159, 16 & 161
2 AIR 1987 Kant 222 at 225-226
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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. 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.
25. Hon’ble High Court Madras in Noorunissa Vs. Rahaman Bi &
others3, has held at paragraph 13 as under:-

“13. In support of the abovesaid 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

3 (2001) 3 MLJ 141

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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. 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 one-third 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.
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(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.
(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
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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. It is also clear that bequest in excess of
one third of estate cannot take effect unless such
bequest is consented by heirs after the death of the
testator. In this case, the bequest under Ex.B-2 is
only in favour of the heirs of late Mohammed Ali
Maraicair and the 1st defendant. Except the
beneficiaries under the said Will, other heirs have
not consented for such bequeath after the death of
late Mohammed Ali Maraicair. It is relevant to point
out at this stage that the 1st defendant who is one
of the testatrix of Ex.B-2 is still alive and she has
alienated part of the property included in the Will
Ex.B-2, immediately after the death of her husband,
late Mohammed Ali Maraicair. That will also lead to
infer that the Will has been cancelled impliedly by
the act of the 1st defendant.”
26. Hon’ble High Court of Karnataka in case of Sri. Mohammed
Ashraf Vs. Smt. Tabbasum4, 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.”
27. Now coming to the facts of the case, the deceased Noor
Mohammad expired issueless and the defendants No. 1 to 4
were sons of brothers, therefore, they fall within the ambit of
residuary as per Category III descendants of a father and fall
within Clause IX i.e. Full Brother’s son. The defendants in their
4 ILR 2014 Kar 6861
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written statement has categorically pleaded that they are sons of

brother of Noor Mohammad and this fact has never been denied
by the plaintiff. On the contrary, during evidence DW-1 i.e.
defendant No. 5 has in clear terms stated in her evidence that
Noor Mohammad has four brothers, she is aware of three
brothers and Jasimuddin and three other defendants are his
brother’s son. She has also stated that what is relation between
the plaintiff and Noor Mohammad is not known to her. She has
also denied that Sattar Ali was looking after Noor Mohammad.
Since defendants No. 1 to 4 are the residuary as defined in
Section 65 and there is no sharer of Noor Mohammad, therefore,
residuaries are entitled to inherent the property. Section 65 of the
Mahomedan Law is extracted below:-

“65. Residuaries- If there are no Sharers, or if

there are Sharerr, but there is a residue left after
satisfying their claims, the whole inheritance or the
residue as the case may be, devolves upon
Residuaries in the order set forth in the annexed
table (p. 54A).”
28. In the present case, no consent from the other residuaries in
absence of sharers has been obtained, therefore, the Will has
not been executed as per the procedure provided under the
Mahomedan Law. The learned First Appellate Court while
allowing the appeal has recorded the finding that the Will has
been proved beyond doubt by the evidence of attesting witness
as well as plaintiff witness. Learned trial Court recorded a finding
that no suspicious circumstances is available against the Will
which is perverse and contrary finding as the defendants in their
written statement before the trial Court clearly pleaded that the
Will has been executed ignoring the provisions of Mahomedan
Law, therefore, the Will is not a valid Will. Learned First
Appellate Court has not considered the provisions of
Mahomedan Law and the pleadings made by the defendants in
their written statement more precisely paragraph 25 of the
written statement wherein the defendants have taken defence of
non-compliance of Mahomedan Law, as such, the finding
 Page 16 of 17

recorded by the First Appellate Court that the Will duly executed
is contrary to the law and accordingly, the judgment and decree
passed by the First Appellate Court deserves to be set aside.
Thus, the substantial questions of law framed by this Court is
answered in favour of the appellant by recording a finding that
the Mahomedan cannot by Will dispose of more than a third of
his estate after payment of funeral expenses and debts.

29. Similarly, the substantial question No. 1 is answered in favour of

the appellant.

30. On substantial question of law No. 3, it is quite vivid that the

plaintiff in his evidence has categorically admitted in his
evidence that he has called the witness Amar Singh, Patel and
Jethuram who was Sarpanch of Dabripara, when all these
persons were gathered then he has got the Will executed. This
shows that the Will has been written on the instance of the
plaintiff, which is sufficient to establish that the Will is not free
Will and suspicious circumstances are available on record. Thus,
it is held that the Will (Ex.P/2) is suspicious document and
accordingly the appeal is allowed.

31. Accordingly, the instant Second Appeal is allowed and the

judgment and decree dated 20.09.2007 passed by First
Appellate Court i.e. District Judge, Korea (Baikunthpur)(C.G.) in
Civil Appeal No. 07A/2006 is set aside and the judgment and
decree dated 29.03.2005 passed by the trial Court i.e. Civil
Judge Class-II, Baikunthpur, District- Korea (C.G.) in Civil Suit
No. 13A/2002 is restored for different reasons mentioned
hereinabove.

32. A decree be drawn up accordingly.

Sd/-
(Narendra Kumar Vyas)
Judge
Arun
 Page 17 of 17

HEAD-NOTE

A Mahomedan cannot execute Will for more than 1/3rd share of his

property without consent of all the legal heirs.

,d eqfLye viuh laifRr dk ,d frgkbZ ls vf/kd Hkkx dk olh;r leLr

mRrjkf/kdkfj;kas dh lgefr ds fcuk fu"ikfnr ugha dj ldrk gSA