Nisar Ahmed vs Taukir Ahmed

Pratap Krishna Lohra, J—Appellant-defendant has preferred this first appeal under Section 96 Code of Civil Procedure, 1908 (for short, ''CPC'') to challenge impugned judgment and decree dated 5th of January, 2015 passed by Additional District Judge No. 2, Bikaner (for short, ''learned trial Court''), whereby the learned trial Court has decreed the suit for eviction filed by the respondent-plaintiff against the appellant-defendant.

The facts, in brief giving rise to this appeal, are that respondent-plaintiff instituted a civil suit for eviction against the appellant-defendant from part of the premises owned by him. It is, inter alia, averred in the plaint that appellant is in occupation of part of the premises, i.e., one room as a licensee. The respondent set out a specific case in the plaint that the entire property including the room, in which appellant is a licensee, was owned by his father-in-law, Mohd. Ibrahim and, during his lifetime, Mohd. Ibrahim bequeathed the said property in his name on 13th of May, 2005 by a registered Will. In the plaint, it is specifically averred that Mohd. Ibrahim passed away on 6th of September, 2006, and therefore, since his death, respondent is in occupation of the entire property as its owner. As regards the room in occupation of appellant, it is averred in the plaint that Mohd. Ibrahim, during his lifetime, permitted his brother, appellant, to occupy the said room of the property as licensee and, after his death, appellant is continuing in occupation of the room as per permission of the respondent. It is also pleaded in the plaint that respondent is in need of the premises for his family and, for that purpose, a notice was served upon the appellant on 13th of April, 2009, whereby his licence was terminated and he was asked to hand over the possession of the room. When the appellant declined to hand over the possession, it became imperative for the respondent to lay the suit. As per version of the respondent, in Sikkan Bhisti Mohamedan, there was a custom in vogue of executing a testamentary instrument since long and the said custom is prevailing for last more than 400 years. According to respondent, earlier appellant made an attempt to derive title of the property and that prompted Mohd. Ibrahim to institute a civil suit against him, which was decreed on 7th of April, 2005 and, on an appeal, the said decree was affirmed by the learned appellate Court. With all these averments, respondent sought a decree for eviction against the appellant from the disputed premises, particulars of which were incorporated in para 2 of the plaint. The respondent further claimed mesne profit @ Rs. 700/- per moth w.e.f. 01.05.2009 till actual possession is handed over.

The suit filed by respondent was contested by the appellant and the averments contained in the plaint are repudiated. In the written statement, appellant has pleaded that disputed premises is in his occupation since 1970 i.e. for last almost 28 years as its owner, and therefore, he cannot be evicted from the premises. While joining issue with respondent, on the alleged Will executed in his favour by Mohd. Ibrahim, appellant has asserted in the return that Will is spurious document and, on the strength of such a forged Will, respondent cannot derive any title over the suit property. An objection regarding valuation of the suit and inadequate Court fee paid by the respondent is also incorporated in the pleadings. In the written statement, a counter claim is also laid wherein prayer is made for grant relief of permanent injunction, in favour of appellant, not to dispossess him from the suit property on the strength of alleged Will. It is further reiterated that Will is forged document.

After submission of written statement, on behalf of respondent, additional pleadings were filed, wherein the facts averred in the plaint were reiterated. As regards execution of Will by Mohd. Ibrahim, it is specifically pleaded by the respondent that the same has been executed strictly in accordance with law and it has conferred valid title on the respondent. The respondent has also pleaded that appellant is bound by the Will and his objection about validity of Will is barred by limitation for the reason that same was within his knowledge right from the date of its execution.

On the strength of pleadings of rival parties, learned trial Court settled following eight issues for determination:-

For substantiating his case, respondent-plaintiff himself appeared in the witness box as P.W.1 and also tendered three documents, which were exhibited. In order to prove his title over the property, the respondent produced Exhibit-1 Will, Exhibit-2 sale-deed, which was executed in favour of Mohd. Ibrahim, and Exhibit-3 original patta of the property. That apart, seven other documents were also produced including the judgments, which were rendered by the Court of competent jurisdiction in a suit filed by Mohd. Ibrahim against the appellant and the notice, which was served on the appellant.

With a view to authenticate his defence, the appellant himself appeared in the witness box as D.W.1 and also examined four other witnesses. In the form of documentary evidence, ration card and bill of electricity and water charges are produced which were exhibited.

After conclusion of evidence of he rival parties, learned trial Court heard final arguments and, by its impugned judgment, decided Issue No. 1 in favour of respondent. Issue No. 1, as a matter of fact, was pivotal issue and its burden was also on the respondent, therefore, the learned Court below examined the same threadbare. The learned trial Court, upon realizing that findings on Issue No. 1 will definitely have ramification on other issues, made sincere endeavour to examine it on the touchstone of available material. While deciding Issue No. 1, learned Court below has also recorded a definite finding that Mohd. Ibrahim was not survived by any male issue and, in fact, he was survived by four daughters including wife of the respondent. It is also recorded in the judgment, while adjudicating on Issue No. 1, that two daughters of Mohd. Ibrahim, namely, Parveen and Sarvari, were married 50 years back in Pakistan and since then they are living there. That apart, learned trial Court has also recorded a definite finding that besides wife of the respondent, Jayda, other daughter of Mohd. Ibrahim has also consented for the Will, which was executed by Mohd. Ibrahim in favour of respondent. While examining the legality of the Will on the touchstone of Section 68 of the Indian Evidence Act, 1872 (for short, ''Act of 1872''), the learned trial Court has placed reliance on a Division Bench decision of this Court, wherein Division Bench of this Court, while examining rigor of Section 58 of the Indian Succession Act, 1925 (for short, ''Act of 1925''), has held in clear and unequivocal terms that provisions of Part VI of enactment are not applicable to testamentary succession to the property of any Mahomedan. In that background, finally, the learned trial Court decided Issue No. 1 in favour of respondent and against the appellant.

Issues No. 2 & 3 are decided simultaneously by the learned trial Court and, on evaluation of evidence, both these issues are also decided in favour of respondent.

While switching on to Issues No. 4 & 5, burden of proving both these issues was on the appellant, the learned trial Court recorded a definite finding that appellant has miserably failed to discharge his burden so as to prove his ownership on the suit property. The learned trial Court, while recording the finding on these two issues against the appellant, has taken note of serious discrepancies and pitfalls in evidence of the appellant, wherein he has very candidly admitted that he is having no document to show his title for the suit property. It is also concluded by the learned Court below that the so-called documents, namely, ration card, voter identity card, and bills of water and electricity charges are insufficient to prove ownership of an individual. The positive assertion of the appellant that respondent has not approached the Court with clean hands is also completely repudiated by the learned Court below in want of any evidence tendered by the appellant.

Issue No. 6 is also decided by the learned trial Court in favour of respondent and against the appellant for not discharging its burden.

Last two issues i.e. Issues No. 7 & 8, onus of which was on the appellant, are also decided against the appellant for his failure to discharge burden. Decision on these two issues entailed rejection of counter claim of the appellant.

Mr. Manoj Bhandari, learned counsel for the appellant, submits that the learned trial Court has not examined the evidence and material available on record threadbare and all the issues have been decided in an absolutely cursory manner, which has rendered the impugned judgment vulnerable. Learned counsel for the appellant further submits that the respondent has not been able to prove the testamentary instrument allegedly executed in his favour by Mohd. Ibrahim inasmuch as respondent has not examined the attesting witness of the Will as per provisions of Section 68 of the Act of 1872. According to Mr. Bhandari, in want of proof about the recitals of testamentary instrument, findings and conclusions of learned trial Court on Issue No. 1 as well as on other issues are clearly vitiated in law. Mr. Bhandari has urged that, as per Chapter IX of Mahomedan Law, a Muslim cannot bequeath his property beyond one-third without the consent of other legal heirs and as there is nothing on record to show that all the legal heirs of Mohd. Ibrahim have consented for execution of Will in favour of respondent, the same is unworthy of any credence. Mr. Bhandari would contend that the very edifice of the suit i.e. Will is under cloud, the finding of the learned Court below without any basis has rendered the impugned judgment vulnerable. He, therefore, submits that the impugned judgment and decree cannot be sustained and is liable to be reversed and set aside. In support of his contentions, Mr. Bhandari has placed reliance on following judgments:-

� Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and Others, AIR 2009 SC 1389 : (2009) 2 JT 149 : (2009) 1 SCALE 328 : (2008) 15 SCC 365 : (2008) 1 UJ 119 : (2009) AIRSCW 828 : (2009) 1 Supreme 339

� Mahesh Kumar (Dead) By L.Rs. Vs. Vinod Kumar and Others, (2012) 114 CLT 375 : (2012) 3 SCALE 388 : (2012) 4 SCC 387 : (2012) AIRSCW 2347 : (2012) 2 Supreme 467

� S.R. Srinivasa and Others Vs. S. Padmavathamma, (2010) 4 JT 296 : (2010) 4 SCALE 245 : (2010) 4 SCR 981 .

� H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, AIR 1959 SC 443 : (1959) 1 SCR 426 Supp

� In Reference by In Re: Begum Shanti Tufail Ahmad Khan an application for grant of probate of the property and credit of executor, AIR 2006 All 75 .

In Lalitaben Jayantilal Popat (supra), Hon''ble Apex Court, while construing Section 63(c) of the Act of 1925 and Section 68 of the Act of 1872, held that if the statutory requirements for proof of Will are not complied with it cannot be said that Will in question is proved.

In Mahesh Kumar (Dead) by LRs (supra), Hon''ble Apex Court examined validity of Will on the touchstone of Section 63(c) of the Act of 1925. As per Hon''ble Apex Court, it is necessary to prove recitals of the Will by examining one of the attesting witnesses.

In S.R. Srinivasa & ors. (supra), Hon''ble Apex Court examined the provisions of Hindu Succession Act, 1956 as well as Sections 63 and 68 of the Act of 1872 and found that even if execution of Will is admitted, its genuineness is to be established.

In H. Venkatachala Iyengar (supra), once again, Hon''ble Apex Court examined true purport of Sections 59 and 63 of the Act of 1925 in conjunction with Sections 45,47, 67 and 68 of the Act of 1872 by dilating on mode of proving Will with emphasis that onus is on the propounder. The Court also taken note of the fact that if there is any suspicious circumstance, it is necessary for the propounder to discharge the burden for removing the suspicion.

Lastly in Begum Shanti Tufail Ahmad Khan (supra), wherein Allahabad High Court has considered a case for issuance of probate under the Act of 1925. Allahabad High Court while considering the true purport of Chapter-IX of Mahomedan Law has reiterated the same principle that a Mahomedan by a Will cannot dispose of more than one-third of the surplus of his estate after payment of funeral expenses and debts unless all the heirs have consented after the death of the testator. While relying on decisions of Calcutta, Bombay as well as Patna High Court on the subject, Court has reiterated same principle and held as under:-

In the present case Begum Shanti Tufail Ahman Khan bequeathed her entire properties to Jallaludin, who claims to be the only surviving son in the family. Sri S.K. Misra, learned counsel for Sri Jallaludin-plaintiff states that there are no heirs in the family and thus the bequeath in favour of jallaludin for entire share is valid. He asserts in para 9 that the deceased was issue less and had left behind the only next kith and kin namely Sri Rukom Decn Son of Badruddin. The deceased, however, did not make any such recital in the will in which it is stated that the testator has no children and is alone. She has not given her relationship with the propounder, nor has she stated that her husband did not leave behind him any brother, nephew and grand children. In fact in the affidavit dated 3.11.2003 the applicant Jalluddin has admitted in paras 4, 5 and 8 that at Village Garhi Nawab Tehsil Panipat belong to deceased Mohd. Yusuf Khan and sons of Abdul Latif are selling the properties. He has not denied that these persons are not common ancestor of Nawab Gulam Mohammad Khan. The Court, as such, finds that the deceased testatrix has other heirs, who are alive and that without their consent which has no where been pleaded, the testatrix could not have made a bequest of more than one third of her properties and having done so the will is invalid and inoperative.

Learned counsel for respondent, Mr. M.A. Siddiqui, on the other hand, submits that the contentions of appellant touching the validity of Will executed by Mohd. Ibrahim are superfluous, and therefore, deserve no credence whatsoever. Learned counsel for the respondent would contend that the concerned material question for determination has been aptly dealt with by the learned trial Court, while recording its finding on Issue No. 1, and the recitals contained in para 14 of the impugned judgment in this behalf are clear and explicit. Elaborating his submission, in this regard, Mr. Siddiqui has urged that two daughters of Mohd. Ibrahim were married 50 years back and are settled in Pakistan and the other two daughters including wife of the respondent have consented for the Will, is sufficient to conclude that there is no infirmity much less legal infirmity in the Will executed by Mohd. Ibrahim and therefore, there is no manifest error in the finding of fact recorded by the learned trial Court. Taking a dig at the locus of the appellant to question the validity of the Will executed by Mohd. Ibrahim in favour of respondent, Mr. Siddiqui submits that appellant is not falling within the pedigree of legal heirs of Mohd. Ibrahim and as such he has no locus standi to question the legality or validity of the Will. On the issue of applicability of Section 68 of the Act of 1872, Mr. Siddiqui submits that Section 58 of the Act of 1925 clearly provides that Part VI of enactment is inapplicable to testamentary successions to the property of any Muhammadan. Lastly, learned counsel, Mr. Siddiqui submits that appellant was simply allowed to live in the premises by Mohd. Ibrahim and as such he cannot claim any protection from the Court for not being dispossessed from the premises in question. In support of his contentions learned counsel has placed reliance on following judgments:-

� Mumtaz Hussain (Deceased) through his LRs V/s. Abdul Latif alias Bundu through legal representatives decided by this Court at Jaipur Bench in D.B. Civil Special Appeal No. 27/1993 on 6th February, 2013.

� Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., AIR 2012 SC 1727 : (2012) 3 SCALE 550 : (2012) 5 SCC 370 : (2012) AIRSCW 2162 : (2012) 2 Supreme 602 .

� Madhukar D. Shende Vs. Tarabai Aba Shedage, AIR 2002 SC 637 : (2002) 1 JT 74 : (2002) 1 SCALE 103 : (2002) 2 SCC 85 : (2002) 1 SCR 132 : (2002) AIRSCW 242 : (2002) 1 Supreme 83 .

� Abdul Manan Khan Vs. Mirtuza Khan and Others, AIR 1991 Patna 154

Division Bench of this Hon''ble Court in Mumtaz Hussain (deceased) through his LRs (supra), which was considered by the learned trial Court, while dealing with the argument concerning Section 58 of the Act of 1925, has held:-

In the face of a clear and unambiguous legislative mandate contained in Section 58 of the Act 1925, we are of the opinion that the rigour of the procedure prescribed for execution of unprivileged Wills cannot be applied to testamentary successions to the property by any Muhammadan. The faults and failings recorded by the learned first appellate court in the matter of execution of the Will Exhibit-1 also does not weigh with us. On an analysis of the evidence on record, as required in adjudicating the instant appeal, we are of the view that the evaluation made thereof by the trial court is proper and does not suffer from any perversity or absurdity of approach. All legal and factual aspects, as involved, have been carefully dealt with in details and thus the findings recorded on the basis thereof commend for acceptance.

In the result, the appeal is allowed. The impugned judgment and order is set aside. The suit is decreed in full. Let a decree be prepared in terms of this determination at the earliest. No costs.

In Maraia Margarida Sequeria Fernandes & Ors. (supra), Hon''ble Apex Court, while examining the status of a friend, relative, caretaker or a servant, who was allowed to live in the premises for some time, declined to grant any protection to such a person by recording a definite finding that he acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession. The Court held:-

Principles of law which emerge in this case are crystallized as under:-

No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.

In Madhukar D. Shende (supra), Hon''ble Apex Court repudiated the challenge thrown to the execution of Will without specific pleadings by a rank trespasser. The Court held:-

Other reasonings of the trial court and the first appellate Court, for holding the Will not proved, too, to say the least, verge on absurdity. Bhagubai died a day after the execution and registration of the Will. There is nothing to show that Bhagubai was physically or mentally incapacitated from executing the Will. On the one hand, the courts below have questioned the propriety of the Sub-Registrar having come to the house of Bhagubai for registering the Will on the ground as to why Bhagubai could not have gone to the office of Registrar on an assumption that she was fit to do so and yet the mental capacity of Bhagubai to execute the Will has been doubted. The two attesting witnesses have been held to be ''interested'' on the ground of their being class fellows of Chingubai''s son and on the other hand, it has been doubted whether they would have known and identified the executant. There is nothing to doubt the mental and physical capacity of Bhagubai but the same has been suspected because of "complete absence of any medical evidence, of a doctor which would show that the testator was in a sound and disposing state of mind". There is no rule of law or of evidence which requires a doctor to be kept present when a will is executed. In short, the courts below have allowed their findings to be influenced by such suspicion and conjectures as have no foundation in the evidence and have no relevance in the facts and circumstances of the case and unwittingly allowed their process of judicial thinking to be vitiated by irrelevant reasonings and considerations. The weighty factor that the factum of execution of Will by Bhagubai was being denied by a rank trespasser without raising any specific pleadings and the fact that no relation of Bhagubai has chosen to lay a challenge to the Will, have been simply overlooked. In our opinion, the High Court ought not to have sustained such a perverse finding which would result in the property of a rightful owner being lost to a trespasser.

In Abdul Manan Khan (supra), Patna High Court, while examining true purport of Muslim Law, dilated on the particular form of Will or deed or partition by observing that no formality or a particular form is required in law for the purpose of creating a valid Will. The Court held:-

Any Mahomedan having a sound mind and not a minor, may make a valid will to dispose of the property.

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.

I have heard learned counsel for the parties, perused impugned judgment and scanned the entire record of the case.

The question with which the learned trial Court was concerned in this matter has essentially three facets which are status of the appellant in the disputed premises, validity and legality of the Will executed by Mohd. Ibrahim in favour of respondent and counter claim of the appellant to declare Will as null and void and simultaneously declaring him owner of the property.

All the aforementioned questions require judicial scrutiny in the light of evidence and materials available on record. In this respect, if the evidence of rival parties is scrutinized with bird''s eye view, then it would ipso facto reveal that the case of the respondent-plaintiff is founded on concrete and substantial documents to prove ownership of Mohd. Ibrahim and passing of the ownership to the respondent by way of testamentary instrument. As against this clinching evidence of the respondent-plaintiff, the ocular and documentary evidence tendered by the appellant is superfluous having no legal sanctity whatsoever. The appellant in his deposition has very candidly admitted that two daughters of Mohd. Ibrahim left India 50 years back and out of them Sarvari is not alive and only two daughters, who are in India are Jayda and Jafran and Jayda is wife of the respondent. It is also admitted by the appellant that the water and electricity bills are also not in his name and Mohd. Ibrahim is not survived by any male issue. Appellant has also admitted that he is not legal heir of Mohd. Ibrahim. Therefore, taking into account the evidence and materials available on record, more particularly, the sale-deed, by which Mohd. Ibrahim purchased the property and original patta of the property, as well as execution of Will by Mohd. Ibrahim in favour of respondent, has been rightly construed by the learned Courts below to conclude that appellant''s status in the suit property is not more than a licensee and the respondent has acquired a valid title of the suit property.

The objection of the appellant regarding legality or validity of Will, in want of examination of the attesting witness, too cannot be construed as a valid objection in view of Division Bench decision of this Court in case of Mumtaz Hussain (deceased) through his LRs (supra).

There remains no quarrel that appellant was a relative of Mohd. Ibrahim and he was allowed to stay in the premises by him. In such a situation, he cannot acquire title of the property when he has been simply allowed to stay in the property gratuitously. The law laid down by Hon''ble Apex Court in Maraia Margarida Sequeria Fernandes (supra) can very well be pressed into service to disown the claim of the appellant. Moreover, appellant''s right to question the validity of Will executed by Mohd. Ibrahim is also seriously questionable inasmuch as according to Muslim law he does not fall within the ambit of legal heirs of Mohd. Ibrahim in the pedigree. Therefore, the objection of a stranger or a busybody, who has been simply allowed to stay in the premises gratuitously to challenge the Will, cannot be countenanced. The legal position on the issue is no more res integra in view of pronouncement in Madhukar D. Shende (supra).

Therefore, in totality, in the considered opinion of this Court, the learned trial Court has not committed any error in adjudging the validity of the Will and repudiating the counter claim of the appellant facilitating passing of the impugned decree.

Upon consideration of the matter in entirety, in the light of basic tenets of Muslim Law and the hazy and scatchy evidence tendered by appellant, in my opinion, the findings recorded by the learned Court below on all the issues cannot be faulted and the impugned judgment warrants no interference in exercise of appellate jurisdiction of this Court.

Resultantly, instant appeal lacs in merit and same is, hereby, dismissed.