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1 IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON :

20.09.2017

PRONOUNCED ON : 31 .10.2017 CORAM : THE HONOURABLE MR. JUSTICE R.SUBBIAH and THE HONOURABLE MR.JUSTICE P.VELMURUGAN AS.No.301 of 2015 and MP.No.1 of 2015 Farida Bee 1. 2. 3. 4.

Vs.

Sharifa Bee Saleema Bi Mohammed Sulthan @ Chand Basha Shamshad

PRAYER :

... Appellants

... Respondents

Appeal suit is filed under Section 96 red with Order 42

Rule 1 of CPC to set aside the judgment and decree dated 11.10.2014 made in OS.No.7031 of 2011 on the file of the VII Additional City Civil Court, Chennai. For appellants : Mr.M.Liagat Ali. For respondents : Mr.M.R.Murali. JUDGMENT (Judgment of this Court was made by P.VELMURUGAN, J.) The Appeal suit is filed to set aside the judgment and decree dated 11.10.2014 made in OS.No.7031 of 2011 on the file of the VII Additional City Civil Court, Chennai. http://www.judis.nic.in

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2 2.

The

appellant

herein

is

the

first

defendant

and

the

respondents 1 and 2 are plaintiffs and the respondents 3 and 4 are defendants 2 and 3 before the Trial Court. 3. For the sake of convenience, the parties are referred to as per their rank in the trial Court. 4. The property originally belongs to one Mohammed Ansar. The plaintiffs are the daughters of Mohammed Ansar through his first wife/Zainab bee.

5. The averments made in the plaint is that the plaintiffs father late Mohamed Ansar and his wife Zainab bee got married in the year 1946 out of their wedlock plaintiffs were born. During the lifetime of Mohamed Ansar the second plaintiff got married to one Abdul Lateef in the year 1962 and the first plaintiff got married to one Ashraf Ali in the year 1967 and started to live with their father in the suit schedule property.

The plaintiffs submit that their marriages were conducted

without much pomp and no jewels or cash and Dowry or other kind of gift articles were given.

The reason being that the late Mohamed

Ansar assured and promised to give due share and recognition to both the plaintiffs and for the above reason the plaintiffs lived jointly in the schedule mentioned property. http://www.judis.nic.in

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3 6. The first plaintiff submits that after her marriage she begotten one son and one daughter in the suit schedule mentioned property and her husband was transferred to Thiruvannamalai and she went alongwith her husband to Tiruvannamalai who was then working in the Industries Department.

While she was in the hospital for

second delivery the first defendant/Farida Bee @ Noorjagan who entered the house on the pretext and posture as a tenant in one portion of the property. At that time, the first defendant was selling cut

piece

jacket

materials

and

stealthily

developed

intimacy

acquaintance and friendship with late Mohamed Ansar and become his second wife. When the first plaintiff questioned her father about the second marriage, he replied that he is living alone and he needs assistance to cook and to look after his affairs and as the second plaintiff is also residing with her husband at Washermenpet because of ill-health of her father-in-law.

7. Further, the plaintiffs submit that the Late Mohamed Ansar begotten two children

(i)Mohamed Sultan in the year 1972/second

defendant and (ii)Shamshad Begum in the year 1974/third defendant through his second wife/Farida Bee. The late Mohamed Ansar assured that an effective partition deed will be executed after the children through the second wife attains majority as presently they are minors. http://www.judis.nic.in

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4 The plaintiffs believed the words of their father as the assurance and promises made by him was reasonable and meaningful one.

8. In the meanwhile, the plaintiffs father passed away at Chennai on 12.10.1981. Thereafter, the plaintiffs demanded their due share from the first defendant.

The first defendant pleaded

postponement of partition stating that their two children/defendants 2 and 3 are minors and needed love, affection and protection from the plaintiffs marriage.

family,

till

they

attains

stability

and

performance

of

As the years together passed away, the plaintiffs

understand that the defendants

1 to 3 were postponing the

partition thereof much fraudulently and with ulterior motives to deny the plaintiffs legitimate shares in the suit schedule property. The late Mohamed

Ansar

was

an

employee

of

Southern

Railways,

the

defendants 1 to 3 acquired the terminal benefits of late Mohamed Ansar, the plaintiffs made repeated demands for their proportionate share for which they are legally entitled.

9. Further, the plaintiffs submit that the first defendant did not care to give proper, true and correct accounts of rents collected from the tenants and representing that the tenants are not paying the rents regularly and committing default, the income from the property is not http://www.judis.nic.in

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5 sufficient to defray the expenses and threatens the plaintiffs family with the support of unruly elements.

In these circumstances, the

plaintiffs issued lawyer notice dated 19.10.2010 addressed to the defendants 1 to 3 and the tenants, inspite of receipt of notice, the defendants 1 to 3 neither sent reply to lawyer notice nor came forward to effect partition.

The plaintiffs left with no other option

except to file the suit for partition and separate possession of the plaintiffs 14/40share in the suit schedule property.

10. The first defendant filed the written statement denying the allegation that after the marriage the plaintiffs were not residing in the plaint schedule property and settled at Tiruvannamalai and Old Washermenpet respectively with their husbands. The first defendant denied that the late Mohamed Ansar conducted the marriages of the plaintiffs in a pomp manner, whereas the marriages of the plaintiffs were conducted in a good manner, jewels and house hold articles were given at the time of marriage because late Mohamed Ansar was working

in

Southern

Railways

and

plaintiffs

were

married

to

Government Servants. From the date of their marriages, the plaintiffs never resided in the suit property and never demanded any share till 2010. The late Mohamed Ansar married the first defendant after the death of his first wife and the first defendant started to reside in the http://www.judis.nic.in

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6 suit premises. The plaintiffs levelled false allegations against the first defendant and their father, after knowing the second marriage. The first defendant further states that out of her wedlock with the late Mohamed Ansar she had three children, two sons and one daughter and she has produced the legal heir certificate issued by the Tahsildar, Perambur-Purasawalkam Taluk dated 11.04.1984.

Either the late

Mohamed Ansar or the first defendant had given any assurance or promise to give any share in the suit schedule property to the plaintiffs.

11. Further, the first defendant states that Mohamed Ansar died on 12.10.1981 and not on 13.10.1981, she has also produced the death certificate/Ex.B3.

During the lifetime of Mohamed Ansar he

executed a registered Will dated 13.02.1978 on the file of Sub Registrar, Perambur in favour of the first defendant and his three legal heirs bequeathing the suit schedule property.

Further the late

Mohamed Ansar retired from Southern Railway on 31.01.1977 and from 01.02.1977 onwards he was receiving family pension and after his life time the first defendant obtained the terminal benefits and till date the first defendant is getting pension from the Southern Railways.

The plaintiffs had never demanded any share from the

suit schedule property from the defendants till the date of issuance of http://www.judis.nic.in

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7 lawyer notice dated 19.10.2010. The plaintiffs are well aware of the execution of the Will dated 13.02.1978 vide Document No.152/1978 on the file of the SRO, Perambur and not disputed the Will and not demanded any share till the issuance of lawyer notice dated 19.10.2010.

Only after receiving the lawyer notice, the first

defendant filed application before this Court to probate the Will dated 13.02.1978. In the meanwhile, the legal heirs of the first defendant partitioned the suit property vide Document No.9078 of 2010 dated 01.11.2010 on the file of SRO, Sembium.

After the death of

Mohamed Ansar the first defendant developed the property by carrying out mutations in the revenue records and by paying property taxes etc.,

12. Based on the pleadings and the documents produced by both the parties, the trial Court framed the following issues :1. Whether the plaintiffs are entitled to 14/40share in the suit property? 2. Whether the Will dated 13.02.1978 is an enforceable one? 3. Whether the two sons and one daughter of the first defendant through the deceased Mohamed Ansar are only entitled to get share in the suit property as per http://www.judis.nic.in

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8 the partition deed dated 01.10.2010? 4. To what other reliefs the parties are entitled to? 13. Heard the rival submissions made on both sides and perused the available records.

14. In order to prove the case before the trial Court, on the side of the plaintiffs, the first plaintiff examined herself as PW1 and marked Ex.A1 and Ex.A2.

On the side of the defendants they

examined first defendant as DW1 and through her marked nine documents viz., Exs.B1 to Ex.B9.

15. After considering the pleadings, oral and documentary evidences produced by both the parties, the trial Court comes to the conclusion and passed preliminary decree in favour of the plaintiffs to divide their 14/40 share in the suit property. Aggrieved against the judgment and preliminary decree passed by the trial Court, the appellant/first defendant

preferred the present appeal before this

Court.

16. The learned counsel for the appellant/first defendant would submit that the suit property originally belongs to one Mohamed Ansar and he married one Zainab bee, in the year 1946 out of their http://www.judis.nic.in

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9 wedlock plaintiffs were born.

The marriages of the plaintiffs were

conducted in a good manner, jewels and house hold articles were given at the time of marriage because late Mohamed Ansar was working

in

Southern

Government servants.

Railways

and

plaintiffs

were

married

to

During the lifetime of Mohamed Ansar he

executed a Will dated 13.02.1978 in favour of his second wife/first defendant and her children.

After the death of Mohamed Ansar the

Will came into force, the defendants are in possession of the suit property for more than thirty years, now the plaintiffs have filed the suit for partition and the suit is barred by limitation and they are not entitled to any share much less than 14/40. The trial Court without considering the above aspect simply passed preliminary decree as prayed for in the suit. Therefore, the judgment and decree passed by the trial Court warrants interference.

17. The learned counsel for the first plaintiff would submit that there is no dispute with reference to the relationship of the parties except one Shahul Hameed who is illegitimate son of the first defendant. As accepted by DW1 in her deposition that her marriage date is 06.07.1969 and the date of birth of said Shahul Hameed is 16.04.1969 which is prior to the marriage between the Mohamed Ansar and the first defendant. http://www.judis.nic.in

As per the Mahomedan Law, the

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10 illegitimate son or daughter is not entitled to inherit from his/her father.

Therefore, the plaintiffs had not impleaded the said Shahul

Hameed who born prior to the date of the second marriage of the Mohamed Ansar. The trial Court after considering all the aspects and rightly passed preliminary decree for 14/40share in the suit property. The first defendant failed to prove that the Will executed by the deceased Mohamed Ansar is enforceable as per Mahomedan law.

A

Mahomedan can execute a Will to his legal heirs in respect of only 1/3share. But, if he/she has more than one legal heirs and executed a Will in favour of only one or more of the legal heirs, and left out one or more legal heirs in the Will, after the death of the testator,

the

other legal heirs those who are left out in the Will have to give their consent.

In this case, the other legal heirs have not given any

consent, therefore, the Will is not valid. It can be said otherwise, the consent of both the plaintiffs are not obtained after the death of Mohamed Ansar, therefore, the Will is not valid in respect of legal heirs.

The trial Court after considering all the aspects decreed the

suit and there is no reason to interfere with the judgment passed by the trial Court.

18. Considering the facts and circumstances, in this appeal the following points arise for consideration :http://www.judis.nic.in

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11 (i)Whether the Will said to have been executed by the Mohamed Ansar is genuine ? (ii)Whether the Mohamed Ansar can execute a Will in respect of his entire suit property? (iii)Whether the plaintiffs had given consent to the bequest after the death of the testator? (iv)Whether the suit is barred by limitation? (v)To what relief the parties are entitled to?

19. In this appeal, as the points (i) to (iii) are inter-linked with each other and the same have been dealt with altogether.

It is the

specific case of the appellant/first defendant that the suit property originally belongs to Mohamed Ansar and after the death of his first wife, he married the first defendant as second wife and through her he got two sons and one daughter. During the lifetime of Mohamed Ansar he executed a Will dated 13.02.1978 in respect of the suit property and the said Mohamed Ansar died on 12.10.1981. After the death of Mohamed Ansar the said Will dated 13.02.1978 came into force. The appellant/first defendant and her sons are in exclusive possession and enjoyment of the suit property by paying the taxes and the same is proved through Ex.B6 and Ex.B7.

There was a

partition deed executed among the sons and daughter of the first http://www.judis.nic.in

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12 defendant vide Document No.9078 of 2010 dated 01.11.2010 on the file of SRO, Sembium. The marriages of the plaintiffs were conducted in a grand manner and both the daughters were married to Government Servants.

In the Ex.B2/Will itself the late Mohamed

Ansar stated that the daughters through the first wife are well settled and the second wife and the children through her are the legal heirs/dependants and as per the Will the appellant/first defendant and her children are alone entitled to the suit property.

20. It is the specific case of the plaintiff that the plaintiffs are the daughters of Mohamed Ansar through his first wife, after their marriages they were living together and after the death of Mohamed Ansar they were getting income from the suit property.

Since, the

children of the second wife were minors they were postponing the partition, and after attaining majority the plaintiffs sent a notice through their lawyer to the defendants for effecting partition, the defendants neither replied to the notice nor effected partition, hence, the plaintiffs have filed the suit. After considering all the materials, the trial Court passed preliminary decree for 14/40 share in the suit schedule property.

21. It is admitted fact, that the suit property originally belongs http://www.judis.nic.in

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13 to one Mohamed Ansar,

who worked in the Southern Railways

and got two wives, through first wife he got two daughters/plaintiffs, since the Mohamed Ansar was living lonely after the death of his first wife and both the plaintiffs after their marriages they are living separately with their respective husbands.

Mohamed Ansar married

the first defendant/Parida Bee @ Noorjahan as his second wife on 06.07.1969 and through her he got one daughter and one son.

22. According to the plaintiffs, even after their marriage they were living with their father, after the death of their father, the plaintiffs demanded their due share from the first defendant. The first defendant pleaded postponement of partition stating that their two children/defendants 2 and 3 are minors and needed love, affection and protection from the plaintiffs family, till they attains stability and performance of marriage.

As the years together passed away, the

plaintiffs understand that the first defendants and the defendants 2 and 3 were evading to give their share, thereafter, the plaintiffs sent a lawyer notice to the defendants for their proportionate share, the defendants neither responded to the notice nor come forwarded to give their shares. Hence, the suit for partition.

23. According to the first defendant, after the death of the first http://www.judis.nic.in

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14 wife of Mohamed Ansar‚ and the marriages of both the daughters, since, he was not having any support to look after him during his old age he married the first defendant as second wife.

During his

lifetime, he executed the Will/Ex.B2 dated 13.02.1978 bequeathing the entire suit property to the second wife and her children and died on 12.10.1981. After the death of Mohamed Ansar, Ex.B2/Will came into force, accordingly, the first defendant is in possession and enjoyment of the property and mutations were effected in the revenue and other records and paying the taxes regularly and developed the property.

24. Insofar as the relationship of Shahul Hameed is concern, he was born to the deceased Mohamed Ansar and first defendant prior to their marriage.

The marriage between Mohamed Ansar and first

defendant said to have taken place on 06.07.1969.

The date of

marriage has not been denied by the first defendant. As per Ex.B9, date of birth of the Shahul Hameed is 16.04.1969, therefore, the said Shahul Hameed seems to be an illegitimate child of Mohamed Ansar. As per Mahomedan law he is not entitled to inherit share from any property of Mohamed Ansar as legal heir. Hence, as per Mohamedan law, the plaintiffs 1 and 2 and the defendants are the eligible legal heirs of the late Mohamed Ansar. http://www.judis.nic.in

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15

25. At this juncture, it is useful to refer Section 85 of the Mahomedan Law and the same is extracted hereunder :“85.

Bastard

–

An

illegitimate

child

is

considered to be the child of its mother only, and as such it inherits from its mother and its relations, and they inherit from such child.

But it has been

held that an illegitimate son cannot inherit from the legitimate son of the same mother.”

26. On perusal of Ex.B2/Will dated 13.02.1978, the Mohamed Ansar executed the Will in favour of his second wife and her children in respect of the suit property. In the written statement filed by the first defendant, she has stated about the execution of Ex.B2/Will by Mohamed Ansar in favour of the defendants 1 to 3 and Shahul Hameed.

But the plaintiffs have not filed any reply statement and

denied the Will.

Even during the chief examination also the 1 st

plaintiff has not spoken anything about Ex.B2/Will and only denied the suggestion put forth by the counsel for the defendant during the cross examination. 27. It is clearly stated in the written statement that the Will is executed during the lifetime of the Mohamed Ansar in favour of the http://www.judis.nic.in

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16 first defendant and her children and after the lifetime of the Mohamed Ansar partition was taken place among the defendants vide partition deed No.9078 of 2010 dated 01.11.2010 on the file of the SRO, Sembium and as per the partition deed the mutations were effected in the Revenue records.

28. In the proof affidavit of DW1 she has stated as follows :“I further submit that my husband & plaintiffs father Mohamed Ansar expired on 12.10.1981 and not on 13.10.19981.

My husband retired from Southern

Railway on 31.01.1977 and from 01.02.1977 onwards he was receiving pension from the Southern Railway and on 13.02.1978 my husband Mohamed Ansari executed a Will in favour of me and my 3 legal heirs giving the suit schedule premises and registered the Will as document No.152/1978 on the file of SRO, Perambur.

In the Will itself my husband, Mohamed

Ansari clearly stated in the first page of the Will that her two daughters born from the first wife were married properly.

My husband never assured the

plaintiffs to give any share to them because after the retirement, my husband executed the Will dated http://www.judis.nic.in

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17 13.02.1978 and registered the Will as Document No.152/1978 on the file of the SRO, Sembium and gave the suit schedule premises to me any my three legal heirs.”

29. As per Section 68 of Indian Evidence Act, the Will has to be proved by examining at least one of the attesting witnesses of the Will.

Whereas in this case, the first defendant admitted during the

cross examination that she knows both the attestors of the Will, but before commencement of the trial both the attestors who attested the Will died. Therefore, the attesting witnesses could not be examined.

30. Regarding the non examination of attesting witnesses of the Will, the first defendant in her cross examination had deposed as follows :“vdf;fhf vGjg;gl;l capy;/

nkw;go capypy; fhyg;c&h.

c&hPg; Mfpnahh; rhl;rp ifbaGj;J nghl;lhh;fs;/

nkw;go

rhl;rpfs; capnuhL ,y;iy / nkw;go capypy; c&hPg;gh tPL. v';fs; tPl;Lf;F 4tJ tPl;oy ,Uf;fpwJ/

nkw;go fhyg;c&h tPL nkw;go

bjUtpy; kNjpf;F mUfpy; ,Uf;fpwJ/ vf;rpgpl; gp2 capy; fhyj;jpy; ,ij vGjpa vd; fzth; md;rhh;gha; capUld; ,Ue;jhh;/ http://www.judis.nic.in

1981y; vd;

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18 fzth; ,we;J nghdhh;/

vGjpa fhyj;jpypUe;J ,d;W tiu jhth capy;

vd; bghWg;gpy; jhd; ,Uf;fpwJ/

,e;j capy; gw;wpa tptuj;ij

bghJkf;fSf;F

my;yJ

mwptpg;g[

K:yk;

chpa

egh;fSf;F

mwptpg;g[ K:yk; ehd; bjhptpf;ftpy;iy/

thjpfSf;F ,e;j capy;iy

gw;wp

ehd;

bjhpag;gLj;jpdhh;fsh

vd;why;

vGj;J

K:ykhf

bjhpag;ggLj;jtpy;iy/ thjpfs; vd; fzthpd; thhpRfs; jhd;/ thjpfs; vf;rpgpl; gp4y; thjpfspd; bgah;fs; thhpRjhuh; vd;w bgahpy; ,Uf;fpwJ/”

31. The Will is also not seriously disputed by the plaintiffs. The Will is registered one executed in the year 1978 which is more than 30years and the original Will is also produced before the trial Court vide Ex.B2 by the first defendant. The said Will covers under Section 90 of the Indian Evidence Act. Hence, presumption could be raised in favour of it.

32. Even though it is held that the Will is genuine, as per Mahomedan law a Mahomedan can execute a Will only to an extent of 1/3rd

share in his property.

If any Mahomedan executes a Will for

more than 1/3rd share, after his/her death the other legal heirs have to give consent for giving up their share or right in the property. http://www.judis.nic.in

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19 Whereas, in this case, there is no such evidence to prove that after the death of Mohamed Ansar on 12.10.1981, the plaintiffs have given consent in the manner known to law.

Therefore, in the absence of

one such consent, the Will is valid only to the extent of 1/3 rd of the suit property.

33. The learned counsel for the appellant/first defendant would submit that after the death of Mohamed Ansar on 12.10.1981, the Will came into force and the defendants are in continuous possession and enjoyment of the suit property and developed the same and the defendants 1 to 3 and one Shahul Hameed executed a partition deed among them in respect of the suit property vide Document No.9078 of 2010 dated 01.11.2010 on the file of SRO, Sembium. After the death of Mohamed Ansar, from 1981 onwards, the defendants are in possession and enjoyment of the suit property, the plaintiffs have not raised any objection for enjoyment of the suit property. The plaintiffs have sent lawyer notice on 19.10.2010 and thereafter filed the suit for partition. property.

Till then they had not claimed any right over the suit

The plaintiffs simply kept quite for a period of more than

30years. The defendants themselves attempted to say that the Court can infer, since the plaintiffs had not claim any right over the suit property, the plaintiffs have impliedly given consent. http://www.judis.nic.in

On perusal of

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20 the written statement and entire evidence of the defendants no where they have stated that the plaintiffs expressly or impliedly gave their consent after the death of Mohamed Ansar and also intimated about the Will to the plaintiffs. When the defendants have not pleaded and proved about consent of the plaintiffs, the Court cannot draw any inference against statutory provisions and no inference can be drawn against law.

34. As per Section 117 of Mahomedan law it is clear that a Mahomedan can execute a Will to his legal heirs in respect of only 1/3share. But, if he/she has more than one legal heirs and executed a Will in favour of only one or more of the legal heirs, and left out one or more legal heirs in the Will, after the death of the testator,

the

other legal heirs those who are left out in the Will have to give their consent.

In this case, the defendants have not proved, after the

death of the Mohamed Ansar, the plaintiffs had given consent in the manner known to law. The defendants claims title over the property through the Will, but the defendants have not specifically pleaded and proved that after the death of the Mohamed Ansar they have informed about the Will to the plaintiffs and obtained their consent expressly or impliedly, therefore, the Will is not valid in respect of legal heirs. In view of the above discussion the defendants are not entitled to get http://www.judis.nic.in

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21 benefit of the Will. The points (i) to (iii) are answered accordingly.

Point No.(iv) 35. The plaintiffs have not given any consent to transfer the name in the revenue records.

Since, because the revenue records

stands in the name of one of the legal heirs it will not takeaway the right of other legal heirs and the defendants have not raised any plea of ouster.

The plaintiffs have not given any consent and also

defendants have not examined any witnesses to prove that plaintiffs have given consent to the Will. The first defendant also not examined any witnesses to prove that they are in exclusive possession after obtaining consent from other legal heirs of the Mohamed Ansar.

With

regard to partition deed and mutation in revenue records, the first defendant has clearly admitted in the cross examination, which reads as follows :jw;nghJ gl;lhf;fis mtutuh;fSf;F khw;wpf; bfhz;nlhkh vd;why; khw;wtpy;iy. gl;lh th';ftpy;iy/ bgah; khw;w';fs; vJt[k; khw;wtpy;iy/ rz;ilapy;yhjjpdhy;

khw;wg;nghfpnwhk; rhpahf

khw;wntz;oa NH;epiy ,y;iy/

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v';fis

vd;

gr';fSf;Fs;ns

ftdpf;fpwjpdhy;

bgah;

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22 36. Admittedly, the plaintiffs are either parties to the documents viz., partition deed or signed as witnesses. Therefore, it will not bind on them.

37. It is admitted that from the date of execution of the Will, the Will is in the custody of the first defendant and she has not informed the same to the plaintiffs and obtained any consent from them, after the death of the Mohamed Ansar the testator of the Will. Therefore, effecting mutation in the revenue records in the name of the first defendant will not bind the co-sharers unless until they plead and prove adverse possession or ouster. Ex.B7/property

tax

receipts

and

Mere producing the

Ex.B8/Electricity

Boards

cards

standing in the name of one person in the family will not takeaway the right of the other persons.

The first defendant has not spoken

anything about the consent in the written statement or in the evidence of DW1 or produced any document to that effect. Therefore, the suit is not barred by limitation.

Point No.(v) 38. It is settled law that a Mohamedan cannot by Will dispose of

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23 more than one third of his/her properties. At this juncture, for better understanding, it is pertinent to refer Section 117 of Principles of Mahomedan Law, which reads as follows :“117.Bequests to heirs : A bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator.

Any single

heir may consent so as to bind his own share.

A bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share.

Neither

inaction nor silence can be the basis of implied consent.”

39. Further, it is relevant to refer, Section 118, which reads as follows : “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 http://www.judis.nic.in

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24 thereto after the death of the testator.”

40. The learned counsel for the plaintiffs would submit that the first defendant has not proved that who are all legal heirs of deceased Mohamed Ansar had consented to their shares. 41. As already stated, the deceased Mohamed Ansar executed the registered Will dated 13.02.1978 on the file of Sub Registrar, Perambur in favour of the first defendant and his three legal heirs bequeathing the suit property.

Thereafter, on 12.10.1981 the said

Mohamed Ansar died and the Will came into force. On bare perusal of Sections 117 and 118 of the Mahomedan Law and the present case on hand, the Will is not valid among the legal heirs because the plaintiffs who are left out in the Will have not given their consent.

42. The Division Bench of this Court in the case of Noorunissa @ Pichamma v. Rahaman Bi and others reported in (2001) 3 MLJ 141 – wherein it is held as follows :“The

principle

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 http://www.judis.nic.in

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25 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.”

43. On bare perusal of the Table of Shares given under Sunni Law the wife is entitled for 1/8 share when there is a child or child of a son and 1/4 share when no child or child of a son.

As per table of

residuaries in order of succession, the son and the daughter falls under the category of descendants, the daughter takes as a residuary with the son, the son taking a double portion.

44. The son by name Shahul Hameed born prior to the marriage of the deceased Mohamed Ansar and the first defendant is not a legitimate child as per Mahomedan law and the plaintiffs also have not impleaded him as party in this suit and hence, as already held that since the Shahul Hameed who born prior to the second marriage of the Mohamed Ansar is not legitimate child. legal heir of the Mohamed Ansar.

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Therefore, he is not

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26

45. In case if a Mahomedan executes a Will to the heirs and non-heirs, the Will is valid to the heirs only if consent given by the other heirs.

Whereas, in this case, the deceased Mohamed Ansar

executed the Will in respect of entire property, in favour of the second wife and her children including Shahul Hameed.

As already held in

this case, as per Mahomedan law, the first defendant/second wife and their legitimate son and daughter and plaintiffs are legal heirs of the Mohamed Ansar and Shahul Hameed is not his legal heir. Therefore, to enforce the Will in favour of the defendants 1 to 3, the plaintiffs have to give their consent and as already stated the defendants have not proved that the plaintiff have given their consent to the Will, after the death of the testator i.e.,Mohamed Ansar. Therefore, the Will in favour of the defendants 1 to 3 are not valid and the same is not legally enforceable.

However, the Mahomedan can bequeath 1/3

share to non-heirs, for which no consent is necessary from the legal heirs. But, in case if a Mahomedan executes a Will to the non-heirs in excess of one third of estate cannot take effect unless legal heirs give consent after the death of the testator. In this case, as stated earlier, the said Shahul Hameed is illegitimate son of Mohamed Ansar, therefore, he does not come under the category of legal heirs (in other words non-heirs/stranger). Thus, the Shahul Hameed is entitled http://www.judis.nic.in

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27 to 1/3rd share from the Will mentioned property, 1/3 share = 20/60. The plaintiffs and the defendants 1 to 3 are entitled to their respective portion of share from the remaining portion of 2/3 shares = 40/60.

46. As per the Will, the Shahul Hameed (as non-heir/stranger if the Will infavour of non-heir upto 1/3 rd consent of the legal heir is not necessary) is entitled to 1/3 share = 20/60 share.

From the

remaining 2/3 share = 40/60, the first defendant is the wife of testator she is entitled to 7.5/60 share equal to 1/8 from 2/3share, the second defendant/Mohamed Sultan @ Chand Basha being the son through the second wife is entitle to double portion then the daughters after deducting 1/8 from 2/3 of the share = 13/60 and the third defendant/Shamshad being the daughter through the second wife is entitle to 6.5/60 and the plaintiffs are being the daughters through the first wife is entitled to 6.5/60 each.

47. In view of the above discussions, the first and second respondents/plaintiffs are entitled to get 6.5/60 share each instead of 14/40share.

The preliminary decree passed in OS.No.7031 of 2011

dated 11.10.2014 on the file of the VII Additional Judge, City Civil http://www.judis.nic.in

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28 Court, Chennai, is modified to the extent as indicated above and this appeal is disposed of accordingly.

Considering the facts and

circumstances of the case and relationship between the parties there is no order as to costs. petition is closed.

Consequently, connected miscellaneous

In this case, the defendants are not seeking any

partition or paid any separate Court fee for their respective share. This Court cannot allot any share to the defendants, in case if the defendants is ready to pay the Court fee for allotment of their respective share, the trial Court shall consider the same in accordance with law, during the final decree proceedings.

Index : Yes/No Internet : Yes/No tsh

(R.P.S.J.,) (P.V.J.,) 31.10.2017

To The VII Additional Judge, City Civil Court, Chennai.

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29

R.SUBBIAH, J. and P.VELMURUGAN, J. tsh

AS.No.301 of 2015

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30

31.10.2017

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