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Judgment
This S.B. Civil First Appeal under Section 96 of the
Code of Civil Procedure has been filed against the judgment and
preliminary decree dated 06.04.2007 passed by the learned
Additional District Judge (Fast Track), Chittorgarh in Civil Original
Case No.26/2006 (3/2006).
Briefly stated that respondent-plaintiff filed a suit for
partition of the property along with permanent injunction against
the appellants-defendants before the trial court. The main
contention of the respondent-plaintiff was that a house of which
description is given in the para No.2 of the plaint belong to the
ownership of late Shri Fateh Mohammed. The respondent-plaintiff,
being the son of late Shri Fateh Mohammed, has a definite share
in this house, with the other legal heirs, i.e. the appellants-
defendants. Seven shops and a room of this house was given on
rent by late Shri Fateh Mohammed and are still in the possession
of the tenants. It was averred in the plaint that the respondent-
plaintiff asked the appellants-defendants for partition of this
property but the prayer had been rejected by them. It has also
been stated that the appellants-defendants are bent upon to
alienate the property, therefore, they may be restrained from
doing so by a decree of permanent injunction along with a
preliminary decree of partition.
A joint written statement was filed by the defendants
Nos.2, 3, 4 and 7 in which it was stated that there is no concept of
joint family or joint family property in Mohammedan Law. It was
specifically pleaded that three rooms in this house at each story
(ground, first and second) is personal and self acquired property
of the defendant No.7 and, therefore, could not be taken for
partition. It has also been stated that though the remaining part
of the property belonged to the ownership of Late Shri Fateh
Mohammed but this property had bequeathed by him in favour of
the defendants Nos.1 to 4 by a registered Will dated 26.04.1994
and as such the respondent-plaintiff has no right, interest and
share in this property. The defendant No.1 has conceded and
adopted the written statement filed on behalf of the defendants
Nos.2, 3, 4 and 7. No written statement was filed by the
defendants Nos.5 and 6.
On the basis of the pleadings of the parties, the learned
trial court framed as many as 7 issues. After recording evidence
and hearing, the trial court passed the impugned judgment and
decree dated 06.04.2007. Aggrieved by the judgment and decree
dated 06.04.2007, passed by the learned trial court, the
appellants prefer this appeal.
Heard learned counsel for the parties.
It was contended on behalf of the appellants-
defendants that it is well settled preposition of law that there is no
concept of joint family and joint family property in Mohammedan
Law. There are plethora of judicial pronouncements of Hon''ble
Apex Court as well as this Court to this legal aspect but the
learned trial court has ignored the position of existing law
prevailing in the case and therefore, has committed a grave error
of law while passing the impugned judgment and preliminary
decree dated 06.04.2007. It was also contended that it is well
proved by cogent evidence, oral as well as documentary, that
three rooms of the suit property are the personal and self acquired
property of the defendant No.7 and as such these rooms cannot
be taken into consideration for partition of inherited property. In
this regard, a sale-deed Ex.A/5 and Ex.A/6 and its execution was
well proved by oral and documentary evidence but despite that
the learned trial court, on the basis of surmises and conjectures,
disbelieved the statements of DW1 and DW2 and the documents
and considered this property for partition, which is against the law
as well as established fact and thereby has committed illegality. It
has further been contended that the finding arrived at by the trial
court on the issues are perverse and arbitrary to the material
available on record. Issue No.3 was to be proved by the
defendants by adducing cogent oral and documentary evidence. It
has been established on record that late Fateh Mohammed, in his
life time, executed a Will dated 26.04.1994 in favour of
defendants Nos.1 to 4, which was got registered and according to
this Will Ex.A1, defendants Nos.1 to 4 became the owenr of the
remaining suit property. On the concept of preponderance of
probability, the execution of the said Will Ex.A/1 has been proved
in accordance with law, i.e. Section 68 of the Evidence Act and
Section 63 of the Succession Act and after establishing of this fact,
the suit of the respondent-plaintiff does not survive and is liable to
be dismissed. But, the learned trial court has committed a grave
error while passing the impugned judgment and decree dated
06.04.2007. It was further contended that finding on issue No.5 is
also not in accordance with law. When it was established that the
property is not liable to be partitioned even then passing of any
order of share of rent in favour of the respondent-plaintiff is
against the law and, therefore, also, the impugned judgment and
decree is liable to be quashed and set aside.
On the allegations raised by the appellants, perused
the pleadings and documentary as well as oral evidence.
So far as contentions raised in respect of issue No.3 is
concerned, the burden of proving this issue was on the
defendants. The defendants have submitted that late Shri Fateh
Mohammed executed a Will in his life time on 26.04.1994 in
favour of the defendants Nos.1 to 4 and the Will was registered
and on account of this Will, the defendants Nos.1 to 4 are the
owners of the property left by late Shri Fateh Mohammed and the
respondent-plaintiff has no right in the property left by Shri Fateh
Mohammed. The trial court, while deciding the issue, has
considered the aspect whether the Will was duly executed as per
the provisions of law, i.e. as per Section 63 of the Succession Act.
In this connection, the statement of DW-3 Gulasm Saddique was
recorded, who is witness of execution of Will Ex.A/1, who in his
statement, stated that the Will was executed by late Shri Fateh
Mohammed at his residence at Paota Darwaja, Chittorgarh and
both the witnesses signed at the instance of Late Shri Fateh
Mohammed. In this respect, E to F is his signature.
From the evidence of this witness, it has come out that
Ex.A/1 Will was signed by late Shri Fateh Mohammed before the
witness and at the instance of Fateh Mohammed, Gulam Saddique
put his signature and has written the endorsement C to D. The
trial court, after properly appreciating the evidence placed on
record in this connection, has rightly observed that the Will Ex.A/1
is registered document and on this there is an endorsement of
Deputy Registrar regarding the fact that Fateh Mohammed has
accepted the execution of Will and the trial court found that there
is no material on the basis of which, execution of Will be
disbelieved. The respondent-plaintiff, in his support of his
arguments, placed reliance upon the judgment of the Hon''ble
Apex Court in Ajambi Vs. Roshanbi & Ors. [2016(3) wln 233
(sc)]and pleaded that there is no concept of joint family in
Muslims but it was open to deceased to give his property to his
children in a particular manner during his life time, which he
rightly did, so as to avoid any dispute which could have arisen
after his death. The arrangement so made was duly accepted by
the family members and it was also acted upon. Only thereafter, a
formal record of the said fact was made by late deceased in the
document. So far as the effect of Will is concerned, it is admitted
position that the defendants Nos.1 to 4 were the legal heirs of Shri
Fateh Mohammed and the respondent-plaintiff was also legal heirs
of Fateh Mohammed. As per the Mullas Book on Muslim Law, if the
Will is executed in favour of one of the heirs, then until the
remaining legal heirs, after the death of Testator, give consent, till
then the Will does not come into effect and in the explanation, it
has also been mentioned that if after the death of the Testator,
any legal heir expresses his consent, then the Will will operate
only to the extent of his share. The same proposition of law has
also been approved by the various High Courts in judgments
rendered in the cases of Smt. Khatoon Vs. Bhonri [1954 RLW
574], Furkan Vs. Mumtaz [AIR 1971 Raj. 149], Naru Nisha
Vs. Sheikh Abdul Hamid [AIR 1987 Karnataka 222] and
Abdul Man Khan Vs. Meer Tuja Khan [AIR 1991 Patna 154].
Consent of legal heirs may be either express or implied.
In the presnet case, only the respondent-plaintiff has challenged
the execution of Will and expressed his disagerement. So far as
Jannat and Shehjad are concerned, they have expressed that they
went to the court with Shri Fateh Mohammed for execution of the
Will. Smt. Kamroon, defendant No.5 and Smt. Rehana, defendant
No.6, are daughters of Shri Fateh Mohammed and they have not
expressed any disagreement and have not raised any objection.
So far as the defendants Nos.1 to 4, in whose favour the Will is
executed, are concerned, the same is not relevant. Only the
concent of legal heirs, who has been deprived under the Will is
material. From the evidence, it is very much clear that so far as
the defendants Nos.5 to 7 are concerned, there is either express
or implied consent and the trial court has rightly decided this issue
partly in favour of the defendants and partly in favour of the
respondent-plaintiff.
So far as the contentions raised in respect of the issue
No.5 are concerned, this issue was to be proved by the
respondent-plaintiff. On the basis of decision of issues Nos.1 and
2, it is established that in the property mentioned in para No.2 of
the plaint, the respondent-plaintiff has 28/192 share and it is also established that in the disputed suit property, shop was rented out
by late Fateh Mohammed and after the death of Fateh
Mohammed, the defendants rented out the shops to the different
persons. In this respect, Shehjad and Jannat, in their statements,
made clear that some shops were rented out and some were
mortgaged. From the evidence, it is amply clear that out of the
disputed sole property, the defendants are having income from
rent and on the basis of share in the property, the respondent-
plaintiff is entitled to 28/192 share of rent and the trial court has
accordingly rightly decided this issue.
In view of the above, I find no ground to interfere with
the impugned judgment and preliminary decree. The appeal is
devoid of merit and the same is hereby dismissed.