Jharkhand High Court
Md. Akhtar Aged About 71 Years Son Of Late ... vs Md. Mokhtar on 4 September, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:26898
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 118 of 2019
1. Md. Akhtar aged about 71 years son of Late Gulam Rasul, resident
of Sisai Road Gumla, P.O. & P.S. Gumla, District- Gumla.
2. Md. Makbul Alam aged about 55 years son of Late Gulam Rasul,
resident of Sisai Road Gumla, P.O. & P.S. Gumla, District-Gumla.
At present residing at Basia, P.O. & P.S. Basia, District- Gumla.
... ... Plaintiffs/Respondents/Appellants
Versus
1. Md. Mokhtar
2. Md. Ekramul
3. Md. Aslam
All sons of Late Gulam Rasul
4. Kamli Bibi W/o Late Gulam Rasul
All are resident of Sisai Road Gumla, P.O. & P.S. Gumla, District-
Gumla. ... ... Defendants/Appellants/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Arun Kumar, Advocate For the Respondents : Mr. Atanu Banerjee, Advocate : Mr. Aditya Banerjee, Advocate
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CAV on 01.05.2025 Pronounced on 04.09.2025
1. This appeal has been filed against the judgment and decree dated 29.01.2019 (decree sealed and signed on 06.02.2019) passed by the learned District Judge-III, Gumla in Title Appeal No. 19 of 2015, whereby the learned 1st appellate court has reversed the judgment and decree dated 29.08.2015 (decree sealed and signed on 10.09.2015) passed by the learned Civil Judge, Senior Division-II, Gumla in Partition Suit No. 08 of 2012.
2. The plaintiffs had filed the suit for partition of land claimed to have been inherited from their father, Md. Gulam Rasul, who purchased the land in the year 1966 and it was claimed that after his death, the land was left jointly owned by his three wives and children. The plaintiffs claimed that they are entitled to 2/5 th share of the remaining 0.37-acre land while the defendants are entitled to 3/5th share. The plaintiffs prayed that the partition be allowed and after 1 2025:JHHC:26898 deputing the Survey Knowing Pleader Commissioner, the 2/5 th share of the plaintiffs be ordered to be carved out and separate takhta also be ordered to be prepared. Further, it was prayed that after partition possession be also delivered to the plaintiffs over their 2/5 th share through the process of the court. The suit was contested.
3. The trial court decreed the suit and 2/5th share was declared in favour of the plaintiffs and 3/5th share was declared in favour of the defendant nos. 1 to 3; the plaintiffs and the defendant nos. 1 to 3 were the sons of Gulam Rasul and each were declared to have 1/5 th share over the suit property. The 1st appellate court held that there was no devolution of the property by inheritance and therefore the plaintiffs and defendants were not tenants in common in respect of the suit land and as such there was no unity of title and possession amongst them and set-aside the judgement of the trial court. The plaintiffs are the appellants before this Court.
4. This appeal was admitted for hearing vide order dated 25.01.2023 on the following substantial questions of law: -
(i) Whether the first appellate court committed perversity by ignoring the fact that even though undisputedly the plaintiffs are heirs of Gulam Rasul, they having not consented to the bequest after the death of Gulam Rasul, the Will executed by Gulam Rasul in favour of the defendant no.3 -Md. Aslam was not valid in view of Article 117 of the principles of Mohammaden Law?
(ii) Whether both the courts below have committed perversity by admitting the Hibanama allegedly executed by Gulam Rasul in favour of Gajala Parween in the absence of any pleadings by any of the parties to the suit in respect of the same?
(iii) Whether the first appellate court committed illegality by observing that since 13 decimals of suit land have been mutated in the name of Gajala Parween, hence Gajala Parween is a necessary party to the suit and thus the suit is bad for nonjoinder of necessary party?2
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5. The Schedule of the land as per the plaint is as under:
SCHEDULE OF THE LAND In suit situated at village Chetar, P.S. & District Gumla Khata No. Plot No. Area 62 647 0.37 acre out of 0.60 acres Bounded by:-
North- Don Gajala Parveen.
South- Remaining area of the same plot. East- Same plot already sold away.
West- Tanr Binkhu Oraon."
6. Case of the plaintiffs I.The specific case of the plaintiffs is that both the plaintiffs and the defendants are Muslims and they are governed by Muslim law in matters of inheritance and succession.
II.The father of the plaintiff, namely, Md. Gulam Rasul had purchased land measuring 0.60 acres under khata No. 62, Plot No. 647 situated in Mauza Chetar, Thana and District Gumla vide registered deed No. 2172 dated 06.12.1966 and got the property mutated in his name. Md. Gulam Rasul passed away leaving behind his three wives, namely, Jago Bibi, Bibi Batulan and Kamli Bibi; Jago Bibi left behind only one son, namely, Md. Akhtar (plaintiff No. 1); Bibi Batulan left behind one son, namely, Md. Makbul Alam (plaintiff no. 2); Kamli Bibi was Defendant no. 4 and has three sons namely, Md. Mokhtar, Md. Ekramul and Md. Aslam who are defendant nos. 1 to 3 respectively.
III.Further case of the plaintiffs was that Md. Gulam Rasul had sold 0.23 acre out of 0.60 acre to different persons and remaining 0.37 acres of land was the common land of both the parties which was never divided amongst the heirs of Md. Gulam Rasul and thus, each son of Md. Gulam Rasul is entitled to 1/5th share. The plaintiffs are entitled to 2/5th share and the defendant no. 1 to 3 are entitled to 3/5th share of the suit land.
32025:JHHC:26898 As per plaintiffs, the defendant No. 4, namely, Kamli Bibi has been given another plot situated at Sisai Road, Gumla as Souhari right and therefore the defendant No. 4 has no right on the suit land. The sisters of the parties have also been given some amount selling the said plot for their Dokhtari right and therefore, the sisters also have no right to get any share over the suit land.
IV.The plaintiffs demanded the defendant Nos. 1 to 3 several times to divide the suit land, but they used to postpone the matter on one pretext or the other and finally the plaintiffs requested for partition in the month of January, 2012, but the defendants refused to partition the suit land and hence, the suit was filed.
7. The case of the defendants A. Defendants No. 1 to 4 entered their appearance and filed joint written statement. Their specific case was that the suit was not maintainable in its present form and the plaintiffs had no cause of action for the suit.
B. The defendants admitted that the suit land under khata No. 62 Plot No. 647 Area 0.37 acre out of 0.60 acres was purchased by Md. Gulam Rasul vide Registered Sale Deed No. 2172 dated 06.12.1966; after purchase, Md. Gulam Rasul came in possession over the suit land and mutation was allowed in the name of Md. Gulam Rasul. It is also admitted that Md. Gulam Rasul has 5 sons, but it is the case of the defendants that all the ancestral lands have been partitioned amongst the plaintiffs and defendants and all shareholders are in possession of their respective share. The defendants claimed that Plaintiff No. 2 Md. Makbul Alam has received his share in the form of Rs. 20,000/- 40 years ago and his mother has gone to Basia and done 2nd marriage and from her 2nd husband, she has a son, namely, Alam.
C. It was asserted by the defendants that the suit land is the self- acquired property of Md. Gulam Rasul and he was in possession 4 2025:JHHC:26898 over the suit land. Md. Gulam Rasul was an old man and he was living under the care of his younger son Md. Aslam and being pleased with the service of Md. Aslam, Md. Gulam Rasul executed a Registered deed of Will on 26.07.1999 vide deed No. Book-III-19 in favour of Md. Aslam for the land under Khata No. 62 Plot No. 647 area 0.30 acre. Subsequently, Md. Gulam Rasul executed another Registered deed of Will on 09.11.2004 vide deed No. Book-III 31 in favour of Md. Aslam for the land under Khata No. 62 Pot No. 647 area 0.13 acre with the knowledge of plaintiffs and all concerned. D. It was further asserted that Md. Gulam Rasul died on 08.08.2006 and the suit land came under the exclusive possession of Md. Aslam. They claimed that mutation has been allowed in the name of Md. Aslam vide Case No. 682 R 27/2006-07 and no objection has been raised from any corner. It was stated that the plaintiffs are not entitled to get any kind of share in the suit land.
8. On the basis of the pleadings of the parties, the learned trial court framed the following issues for consideration: -
(i) Is the suit maintainable in its present form?
(ii) Have the plaintiffs any cause of action for the suit?
(iii) Is there any unity of title and possession between the parties?
(iv) Whether Sk. Md. Gulam Rasul executed any deed of Will in favour of his son, if any, voluntarily or by coercion?
(v) Whether Bibi Batulan went to Basia and married with another person and Makbul was born from her second husband?
(vi) Whether the ancestral properties already partitioned among the sons of Gulam Rasul and Md. Makbul left his share after taking Rs. 20,000/-?
(vii) Whether the Plaintiffs are entitled for their 2/5 share over the suit land?
(viii) Whether the Plaintiffs are entitled to any other relief or reliefs?5
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9. The plaintiffs examined altogether three witnesses, namely, Md. Afroj as P.W.-1, Md. Ezaj as P.W.-2 and Md. Akhtar (plaintiff no. 1) as P.W.-3. The plaintiffs exhibited only one documentary evidence i.e., certified copy of sale deed No. 2172/66 as exhibit-1.
10. The defendants also examined three witnesses, namely, Md. Shamim as DW-1, Md. Aslam as DW-2 and Sanjay Thakur as DW-3. They exhibited following documents to prove their case: -
Ext. A to A/5 is Malgujari Receipt No. 198953, 774018, 799921, 685475, 3019359, 794059, standing in the name of DW3 Md. Aslam Ext. B to B/10 is Deed No. 327/95, 1089/99, 1090/99, 1091/99, 1092/99, 1093/99, 2455/2000, 2456/2000, 2457/2000, 1041/2003, 2440/03.
Ext. C to C1 are the Certified Copies of will Deeds No.1647/99 dated 26.07.99 and Deed No. 2771/2004 dated 09.11.04.
Ext. D is Certified Copy of correction Slip.
11. The learned trial court took up issue nos. 5 and 6 together vide paragraph 17 onwards stating them to be the most important issues. The court recorded that although there was no documentary evidence to prove that plaintiff no. 2 had gone to Basia along with his mother, but the oral evidences revealed that Md. Makbul (plaintiff no. 2) was living with his mother in Basia. It was further recorded that evidence of defendants' witness no. 2 revealed that the mother of Md. Makbul did not get any share in the land and therefore, Rs. 20,000/- cash was paid to her and it was admitted by D.W. 2 that defendant no. 4 was his mother and she has got share in the ancestral property of khata no. 8.
12. The learned trial court recorded that the oral evidences of the parties proved that the ancestral property of Md. Gulam Rasul was partitioned and decided the issue nos. 5 and 6 in favour of the defendants and against the plaintiffs.
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13. Thereafter, the learned trial court took up issue no. 4 - as to whether Md. Gulam Rasul had executed 'Wills' by his free will or it was done under influence of somebody. The learned court recorded that this was required to be proved by the defendants as they were relying upon the two 'Wills'. The two 'Wills' executed in favour of Md. Aslam (defendant no. 3) dated 26.07.1999 and 09.11.2004 with respect to 0.30 acres and 0.13 acres of land respectively were exhibited by the defendants as Exhibit- C and C/1 respectively. It was the case of the defendants that the plaintiffs were fully aware about the two 'Wills'. However, the court recorded that the defendants had not got the Wills probated and held that unless the Will is probated, it is not effective. The learned trial court then recorded that the plaintiffs have not mentioned about the Wills in their plaint but during oral evidence one of the plaintiffs examined as P.W. 3, has denied the execution of the two 'Wills'. The learned trial court observed that the defendants had not produced any witness to the 'Wills' and therefore, the two 'Wills' (exhibit-C and C/1) were not effective.
14. The learned trial court further considered the evidence of the defendants and referred to exhibit- B to B/10 out of which exhibit B/9 and B/10 were registered sale-deeds to which the plaintiffs had no objection and these two deeds were in favour of Soundik Sudhi and Mohan Sao. The learned court also recorded it was the admitted case between the parties that Gulam Rasul sold 0.10 acre of land in favour of Wasir Ali although no document of sale was produced. The learned court recorded that Md. Gulam Rasul had sold total 0.23 acre of land to Soundik Sudhi, Mohan Sao and Wasir Ali to which the parties had no objection. The learned court also recorded that so far as exhibits B and B/1 are concerned, which were gift deed in favour of Md. Akhtar (plaintiff no. 1), the same were relating to khata no. 8, plot nos. 1550 and 1548 area 2-3/4 decimal and 3 decimals, which are not related to the suit property. The court also recorded that from the perusal of exhibits B/2, B/3, B/4 and B/5 it was not clear as to in whose name the gift deed was standing and further, it was not clear as to the khata 7 2025:JHHC:26898 number and plot number which were subject matter of gift. The learned court further recorded that exhibits B/6, B/7 and B/8 were executed by Md. Gulam Rasul in the name of Gajala Parween with respect to Khata No. 62, plot no. 647 for an area of 4 ½ decimal, 4 decimal and 4 ½ decimal, but these deeds were not referred to in the written statement filed by the defendants. It was argued by the learned counsel for the plaintiffs that the court cannot travel beyond the pleadings. However, exhibits B/6, B/7 and B/8 were for total 0.13 acre of land and the suit land was 0.37 acre. The Court recorded that if exhibits B/6, B/7 and B/8 and admitted sale of 0.23 acre are taken into consideration then it would add up to 0.36 acre of land. It was also recorded that out of total initial area of 0.60 acre, only 0.24 acre would remain if 0.36 acre is deducted but it is admitted case of the parties that remaining area was 0.37 acre. The learned trial court held that on account of the admitted position that 0.37 acre out of 0.60 acre were available, the 'Wills' (exhibit-C and C/1) and the Hibanamas (exhibits B/6, B/7 and B/8) are not valid and enforceable documents.
15. The learned court also recorded that exhibits-A to A/5 were the rent receipts and exhibit- D was the correction slip and it was clear that these rent receipts were issued in the name of Md. Aslam (defendant no.3) which were for 0.37 acre of land. It was recorded that exhibit- A/4 was for 0.24 acres of land and correction slip [exhibit-D] was for 0.13 acres of land. The learned court recorded that mere by production of correction slip and rent receipt, no title can be proved and ultimately, the court decided the issue no. 4 against the defendants and in favour of the plaintiffs.
16. The learned trial court thereafter took up issue no. 3 i.e., as to whether there was unity of title and possession amongst the parties and was of the view that the onus was upon the plaintiffs to prove their case. The learned court recorded that as per the schedule, the property was Khata No. 62, plot no. 647 area 0.37 acre and it was also an admitted fact that the property was purchased by Md. Gulam Rasul by registered deed on 06.12.1966 to the extent of 0.60 acre and that it 8 2025:JHHC:26898 was also an admitted fact that 0.23 acre of land was already sold by Md. Gulam Rasul. The learned court accepted that the remaining property was to the extent of 0.37 acre. The learned court recorded that the evidences revealed that the 0.60 acre of land was the self- acquired property of Md. Gulam Rasul and the remaining property of 0.37 acre was under title and possession of the parties and held that there was unity of title amongst the parties with respect to the suit property (0.37 acre) and this issue was decided in favour of the plaintiffs and against the defendants.
17. While deciding issue no. 7 with respect to share of each party, the learned court recorded that Gulam Rasul had purchased 0.60 acre of land out of which 0.23 acre of land was sold and this fact was admitted between the parties and the remaining 0.37 acre was mentioned in the schedule to the plaint. The learned court recorded that since the 2nd wife namely, Bibi Batulan had settled in Basia after 2nd marriage, therefore, she did not have any right over the property of Gulam Rasul. It was also recorded that she had also taken her son along with her, namely, Md. Makbul who was also the son of Md. Gulam Rasul. The learned court also recorded that it was proved that the ancestral property was already partitioned amongst the sons of Gulam Rasul and with respect to the suit property, it was held that each of the sons of Gulam Rasul would get 1/5th share i.e., 7.4 decimals each. This issue was decided in favour of the plaintiffs. The suit was ultimately decreed in the aforesaid manner.
18. The learned 1st appellate court formulated the points of determination in paragraph 24 as under:
i. Whether finding recorded by Ld. Trial Court on Issue No. III & IV are sustainable in the eye of law and fact?
ii. Whether judgment and decree passed by the Ld. Trial Court require any interference from this Court?9
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19. The learned 1st appellate court has recorded its finding at paragraph 25 to 27 which are quoted as under: -
"25. ISSUE No. III & IV: - These issues are pivotal and clinch the appeal, thus, these are being discussed first as it has got direct bearing of the merit of the case. According to the plaintiffs their father Late Gulam Rasul had purchased the land under Khata No.-62, Plot No. -647, area 0.60 acre, Situated at village Chetar, P.S. & District Gumla from Johra Khatoon W/o Md. Hanif through Registered Sale Deed No. 2172 dated 06.12.1966. Thereafter he came into possession, got his name mutated and enjoyed peaceful cultivating possession over the same without any interruption from any corner. Aforesaid Sk. Md. Gulam Rasul died leaving behind his three wives namely -Jago Bibi, Bibi Batulan and Kamli Bibi. Jago Bibi died leaving behind her only son Md. Akhtar Plaintiff No. 1. Bibi Batulan died leaving behind his only son Md. Maqbul Alam. Kamli Bibi is still alive and she has three sons, Md. Mokhtar, Md. Ekramul and Md. Aslam. Md. Gulam Rasul has sold some portion of plot measuring an area of 0.23 acre to different persons (this fact has not been challenged by the Defendants). It is the specific plea of the Plaintiffs that aforesaid Sk. Gulam Rasul died inteste leaving behind 0.37 acre self acquired land (suit scheduled land) and after his death all his heirs (plaintiffs and defendants), being co- sharer are entitled for partition because no partition has been done in respect of that land. According to them other heirs have been duly compensated for their shares and remaining area of 0.37 acre are still intact and liable to be partitioned in between Plaintiffs and Defendant No. 1 to 3.
26. On this point it is the specific case of the Defendant No. 1 to 4 is that Sk. Md. Gulam Rasul Executed a Registered deed of Will in respect of area 0.30 acre of land pertaining to Khata No. 62 Plot No. 647 on 26.07.99 vide deed No. 1647/99 dated 26.07.99 Book-III-19 in favour of Md. Ak. Aslam. Thereafter, on 09.011.2004 Sk. Md. Gulam Rasul Executed another Registered deed of Will in respect of area 0.13 acre of land pertaining to Khata No. 62 Plot No. 647 on 26.07.99 vide deed No. 2771/04 dated 09.11.2004 Book-III-19 in favour of Md. Ak. Aslam. Registered deed of Will vide deed No. Book-III 31 in favour of Md. Aslam with the knowledge of Plaintiff and all concerned. Thereafter, Sk. Md. Gulam Rashul died on 08.08.06 and the suit land 10 2025:JHHC:26898 came under the exclusive possession of Md. Aslam. Mutation has been allowed in the name of Md. Aslam vide Case No. 682R27/2006-07 no objection has been raised from any corner. Thus, Defendant No. 1 is the exclusive owner in possession of the land in question (Suit schedule land) and question of unity of title and possession over the suit scheduled land does not arise and Defendants are not entitled for partition of the land in question."
27. Onus to prove this issue is on the defendants. Defendants have produced the witness DW-2 has produced the various documents in the form of Ext. B6, B7, B8, B9, B10 including certified copy of Registered Will deed dated 26.07.99 (Ext.-C) and Registered Will deed dated 09.11.2004 executed by Sk. Gulam Rashul in favour of DW- 3 Md. Aslam (Ext.-C/1). From perusal of these Ext. -C and C/1, it is apparent that recorded tenant Sk. Gulam Rasul had executed a Registered Will dated 26.07.99 in favour of his son Md. Aslam for the land measuring an area 0.30 acre pertaining to Khata No. Khata No. 62 Plot No. 647 of village Chetter, P.S. & District- Gumla. Thereafter, Sk. Gulam Rasul has sold 0.03 acre of land in favour of Yuva Shundy Samaj vide Registered sale deed No. 1041/03 dated 30.04.03 in presence of Plaintiff No. 1 Md. Akhtar (Attesting witness) and 0.03 acre of land in favour of Mohan Sahu, from the land bequeathed in favour of Defendant No. 3 Md. Aslam. Thereafter, Sk. Gulam Rasul has also executed another Registered Will deed on 09.11.04 for an area of 0.13 acre in favour D.W.-3 (Ext.-C/1). From the land gifted to one Gajala Parween D/o Khalil Ahmad Qazmi vide three Hibas Ext. B6, B7 and B8. Thereafter Md. Gulam Rasul died on 08.08.06. Thereafter, DW-3 Md. Aslam had filed a Mutation Case No. 682R27/2006-07, whereupon notices were issued to all concerned and considering the merit of the case Circle Officer has allowed the Mutation in the name of DW-3 Md. Aslam, in respect of 0.37 acre land of aforesaid plot in question. On the basis of three Hiba Nama Gajala Parween has filed a Mutation case No. 393R27/2011-12. Where after, notices were issued to all concerned and considering the merit, her Mutation case was allowed and 0.13 acre of land was deducted from the land of DW-3 Md. Aslam. In the entire process of earlier transaction of transfer of land from aforesaid plot number and Mutation, despite having knowledge, Plaintiffs 11 2025:JHHC:26898 have never raised any objection and when entire remaining land (0.24 acre of DW-2 Md. Aslam and 0.13 acre of Gajala Parween) was Mutated in their respective name, then Plaintiffs have filed this partition suit on 05.03.12, concealing the material fact of earlier Will and Hiba and without challenging the same in any competent court of law. DW-1 and 3 have supported the claim of Defendants in all material particulars vide their evidence in affidavit. Defendants have also produced the said Will deed and Mutation order along with correction slip and rent receipts, which support the claim of Defendants. Although Ld. Counsel for the Plaintiffs have gave suggestion to the defendant and their witnesses that aforesaid Will deed were not executed by Sk. Gulam Rasul and the same are null and void but having gone through the pleadings of the plaintiff coupled with their evidence, oral and documentary as well, I find that they had never challenged the same either by filing any suit, seeking declaration that said will deed is null and void and not operative under the law or adducing any cogent evidence even they had chosen not to file any replication in this suit. On this point Ld. Trial Court has recorded its finding on the Issue No. IV (unwarranted), by saying that Defendants had not examined any attesting witness of the Will nor got the same probated by the Court and in absence thereof the said Will is not valid one and does not confer any right in favour of the Defendant No. 3. On this point Ld. Counsel for the Appellant has produced the Authority Abudl Manan Khan V/s Murtaza Khan wherein it has been held that "no writing is necessary to make a Will valid, and no particular form, even verbal declaration is necessary so long as the intention of the testator is sufficiently ascertained". Where the Will is reduced to writing it is called a 'Wasiyatnama.' if it is in writing it need not be signed. It does not require attestation and if it is attested there is no need to get it registered. Further the provision of Section 68, 69 and 71 of Indian Evidence Act are not applicable in the case of Muslim Will. As such finding recorded by the Trial Court that Will in question, is not proved and could not confer a valid title in favour of Defendant No. 3 is, apparently incorrect and palpably against the concept of Muslim Will and on that score only fit to be rejected. Further question of Muslim inheritance, arise only, when recorded Muslim tenant, died intestate but in the instant case, it is proved to the hilt that 12 2025:JHHC:26898 before his death, recorded tenant Sk. Gulam Rasul had executed a Registered Will deed 1647/99 (Ext.-C) in favour of DW-3. This fact was within the knowledge of Plaintiff No. 1 Md. Akhtar, who is attesting witness of sale deed No. 1041/03 dated 30.04.03, wherein recital was made that vendor Gulam Rasul had executed a Will in favour of his son Md. Aslam and 0.03 acre of land from the area mentioned in that Will is also being transferred to Yuva Shundy Samaj (Ext. -B9). Under that view of matter devolution of property by inheritance does not arise and it cannot be held by any stretch of imagination that Plaintiff and Defendants are tenants in common in respect of the suit scheduled land. As such, there was no unity of title and possession between them, which is sin-qua-non for seeking a decree of partition and in absence thereof, judgment and decree passed by the Trial Court entitling plaintiffs to get 2/5th share of the suit scheduled property is not as per the law relating to the Will of Mohammedan. Further Ext. B6, B7 and B8 or the three Hibanamas, for the land measuring 0.13 acre from the plot in questions, were acted upon vide Ext.-D and Plaintiffs have also shown the land of said donee Gajala Parween in the boundary of the scheduled land, yet they sought partition of the land Mutated in the name of Gajala Parween. This brings the bonafides of the Plaintiffs within the periphery of doubt. Further Plaintiffs have admitted that there were other shareholders in the form of their sisters, who have been compensated in terms of money but they were not made party to the suit to substantiate the claim of the Plaintiffs and clear picture was not brought on record by the Plaintiffs. Thus, I find and hold that finding recorded by the Trial Court on Issue No. III to VIII is not tenable in law and neither Plaintiffs have any cause for the suit nor the suit is maintainable."
20. The learned 1st appellate court observed/held that-
a) As per plaintiffs Gulam Rasul had purchased the land under Khata No.-62, Plot No. -647, area 0.60 acre vide Registered Sale Deed dated 06.12.1966 and got his name mutated. Gulam Rasul had sold some portion of plot measuring an area of 0.23 acre to different persons and was left with 0.37 acre. Gulam Rasul died intestate leaving behind 0.37-acre self-acquired land (suit land). According to them other heirs have been duly compensated 13 2025:JHHC:26898 for their shares and remaining area of 0.37 acre is still intact and liable to be partitioned in between Plaintiffs and Defendant No. 1 to 3.
b) Defendant No. 1 to 4 asserted that Gulam Rasul executed a Registered deed of Will in respect of area 0.30 acre of land on 26.07.1999 in favour of defendant no.3; Gulam Rasul Executed another Registered deed of Will in respect of area 0.13 acre of land on 09.11.2004 in favour of defendant no.3 with the knowledge of Plaintiffs and all concerned ; Gulam Rasul died on 08.08.2006 and the suit land came under the exclusive possession of defendant no. 3 in whose favour Mutation was allowed vide Case No. 682R27/2006-07 and no objection was raised from any corner. Thus, Defendant No. 3 is the exclusive owner in possession of the suit land and there is no unity of title and possession over the suit land and plaintiffs are not entitled for partition of the suit land.
c) With the aforesaid background, it was observed that the onus to prove this issue is on the defendants. It was recorded that defendants have produced various documents in the form of Ext. B/6, B/7, B/8, B/9 and B/10 including certified copy of Registered Will deed dated 26.07.1999 (Ext.-C) and Registered Will deed dated 09.11.2004 (exhibit-C/1) executed by Gulam Rasul both in favour of defendant no.3 for 0.30 acre and 0.13 acre respectively.
d) In between the aforesaid two registered wills dated 26.07.1999 (Ext.-C) and dated 09.11.2004 (exhibit-C/1) Gulam Rasul sold 0.03 acre of land in favour of Yuva Shundy Samaj vide Registered sale deed dated 30.04.2003 in presence of Plaintiff No. 1 (as Attesting witness) and 0.03 acre of land in favour of Mohan Sahu, from the land bequeathed in favour of Defendant No. 3. During the intervening period, land was also gifted to one Gajala Parween D/o Khalil Ahmad Qazmi vide three Hibas Ext. B/6, B/7 and B/8 dated 12.09.2000, 11.09.2000 and 11.09.2000 14 2025:JHHC:26898 respectively for total area of 0.13 acre. Thereafter Gulam Rasul died on 08.08.2006.
e) Thereafter, defendant no.3 filed a Mutation Case No. 682R27/2006-07, whereupon notices were issued to all concerned and Mutation was allowed in respect of 0.37-acre land of aforesaid plot in question. Subsequently, on the basis of three Hibanamas, Gajala Parween filed a Mutation case No. 393R27/2011-12 and after notices to all concerned, Mutation case was allowed and 0.13 acre of land was deducted from the land of defendant no.3 who was left with only 0.24 acre of land.
f) The learned 1st appellate court held that in the entire process of earlier transaction of transfer of land from aforesaid plot number and Mutation, despite having knowledge, Plaintiffs never raised any objection and when entire remaining land (0.24 acre of defendant no.3 and 0.13 acre of Gajala Parween) was Mutated in their respective name, then plaintiffs have filed partition suit on 05.03.2012, concealing the material fact of earlier Will and Hiba and without challenging the same in any competent court of law.
g) DW-1 and 3 have supported the claim of Defendants in all material particulars vide their evidence in affidavit. Defendants have also produced the said Will deeds and Mutation order along with correction slip and rent receipts, which support the claim of Defendants. Although learned counsel for the plaintiffs have gave suggestion to the defendants and their witnesses that aforesaid Will deeds were not executed by Gulam Rasul and the same are null and void, but having gone through the pleadings of the plaintiff coupled with their evidence, oral and documentary evidence, the learned 1st appellate court recorded that the plaintiffs had never challenged the same either by filing any suit for seeking a declaration that said will deeds are null and void and not operative under the law or by adducing any cogent evidence and the plaintiffs have chosen not to file any replication in the suit.
152025:JHHC:26898
h) The learned trial court has erred in recording its finding on the Issue No. IV by saying that Defendants had not examined any attesting witness of the Will nor got the same probated by the Court and in absence thereof the said Will is not valid one and does not confer any right in favour of the Defendant No. 3. The learned court held that the provision of Section 68, 69 and 71 of Indian Evidence Act are not applicable in the case of Muslim Will and as such finding recorded by the Trial Court that Will in question, is not proved and could not confer a valid title in favour of Defendant No. 3 is, apparently incorrect and palpably against the concept of Muslim Will and on that score only fit to be rejected.
i) The learned 1st appellate court recorded that question of Muslim inheritance arises only when recorded Muslim tenant died intestate, but in the instant case, it is proved to the hilt that before his death, Gulam Rasul had executed a Registered Will deed 1647/99 (Ext.-C) in favour of defendant no.3 which was within the knowledge of Plaintiff No. 1 Md. Akhtar, who is attesting witness of sale deed No. 1041/03 dated 30.04.2003, wherein recital was made that vendor Gulam Rasul had executed a Will in favour of his son-defendant no.3 and 0.03 acre of land from the area mentioned in that Will was being transferred to Yuva Shundy Samaj (Ext. -B/9).
j) The learned 1st appellate court held that under aforesaid circumstances devolution of property by inheritance does not arise and it cannot be held by any stretch of imagination that Plaintiffs and Defendants are tenants in common in respect of the suit scheduled land and as such, there was no unity of title and possession amongst them.
k) The judgment and decree passed by the Trial Court entitling plaintiffs to get 2/5th share of the suit scheduled property is not as per the law relating to the Will of Mohammedan.
l) Further Ext. B/6, B/7 and B/8 (the three Hibanamas) for the land measuring 0.13 acre from the plot in questions, were acted 16 2025:JHHC:26898 upon vide Ext.-D and Plaintiffs have also shown the land of said donee Gajala Parween in the boundary of the scheduled land, yet they sought partition of the land Mutated in the name of Gajala Parween. This brought the bonafide of the Plaintiffs within the periphery of doubt.
m) Further Plaintiffs admitted that there were other shareholders in the form of their sisters, who were said to have been compensated in terms of money but they were not made party to the suit to substantiate the claim of the Plaintiffs and clear picture was not brought on record by the Plaintiffs.
n) The finding recorded by the Trial Court on Issue No. III to VIII was held to be not tenable in law and it was held that neither Plaintiffs had any cause for the suit nor the suit was maintainable.
o) Ultimately, the learned 1st appellate court was of the view that the appellants/defendants Nos. 1 to 4 were able to discharge the burden of proving those facts which were required to upset the findings recorded by the learned trial court and accordingly, set- aside the judgment passed by the learned trial court and allowed the appeal.
21. Arguments of the appellants including the points raised in the written submissions.
A. With respect to the 1st substantial question of law the learned counsel for the appellants has referred to principles of Mahomedan Law by Mulla and in particular has referred to Articles 116, 117, 118 and 131 thereof to submit that as per Article 116 'Will' may by either verbal or in writing, and as per Article 117 the 'Will' is not valid in absence of consent to the bequest after death of the testator and is valid only to the extent the consent is given. Further, as per Article 118 there is a maximum limit to which Mahomedan may disposed of the property through 'Will'. He has also referred to Article 131 to submit that Mahomedan 'Will' after due proof, may be admitted in evidence even though no probate has been obtained. He 17 2025:JHHC:26898 submits that in absence of the consent, will is in violation of Article 117 of the principles of Mahomedan Law. The plaintiffs being the heirs of Gulam Rasul had never consented to the bequest after the death of Md. Gulam Rasul and therefore, the 'Wills' are not valid in the eyes of law.
B. The learned counsel for the appellants has submitted that so far as three Hibanamas are concerned they are subject matter of substantial question of law No. (ii) on the ground that there is no foundational pleading in connection with these three documents and there is no reference to these documents in the plaint or in the written statement. He submits that three Hibanamas were relied upon by the defendants in their evidence but in absence of any pleadings by the defendants in the written statement, the same could not have been relied upon by the courts.
C. The learned counsel for the appellants has submitted by referring to substantial question of law No. (iii) that the learned courts could not have relied upon the alleged claim of Gajala Parween, who was alleged to be owner of the property by virtue of Hibanamas [Exhibit B/6, B/7 and B/8 i.e. in total 0.13 acre] and was not even a party in the suit. In the absence of any pleadings Gajala Parween was not a necessary party. D. Principles of Mahomedan Law, Article 40 relates to "Vesting of estate in executor and administrator" and it provides that "...since a Mahomedan cannot dispose of by will more than one-third of what remains of his property after payment of his funeral expenses and debts, and since the remaining two thirds must go to his heirs as on intestacy unless the heirs consent to the legacies exceeding the bequeathable third....." E. Further Article 117 relates to "Bequests to heirs" which provides that "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".
182025:JHHC:26898 F. Further, Article 118 relates to "Limit of testamentary power"
which provides that "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."
G. Article 51 of the principles of Mahomedan Law talks about "Heritable property" wherein it has been provided that "There is no distinction in the Mahomedan Law of inheritance between movable and immovable property or between ancestral and self-acquired property". It has been submitted that in view of this section even in case of self-acquired property of the testator, he cannot dispose of by 'Will' more than one-third of the property.
H. It was submitted that the learned 1st appellate court has not properly considered the judgment reported in AIR 1991 Pat 154: 1990 SCC Online Pat 36 passed in the case of "Abdul Manan Khan vs. Mirtuza Khan and ors." wherein same substantial question of law was framed in paragraph 43 and it was held in paragraphs-69, 70 and 72 of the said judgment that a provision has been made for obtaining consent of co-sharer after the death of the testator if a 'Will' is made by a testator in excess of 1/3rd of his properties.
I. It was further submitted that other decisions of the other High Courts reported in 2011(4) JCR 252 (Kerla) (Mohammed Haneefa vs. Salim) and in AIR 2013 Gauhati 34 (Rijia Bibi and others Vs. Abdul Kachem and Another) also held that a Mahomedan cannot bequeath the property exceeding 1/3rd of the entire property in favour of any heirs unless other heirs have given consent after death of the testator.
J. So far as finding of appellant court regarding requirement to challenge the Will by filing a suit for declaring it as null void is concerned, it was submitted that Gulam Rasul had executed 19 2025:JHHC:26898 registered deeds of 'Will' which was for more than 1/3 of the total property without consent of other co-sharers and hence the Will deeds are invalid in view of Articles 117 and 118 of Principles of Mahomedan Law. In this context, reliance has been placed on the judgement of the Hon'ble Supreme Court in the case of "Prem Singh V/s Birbal" reported in (2006) 5 SSC 353 (paragraph 16) to submit that no question arises of its cancellation when a document is void ab-initio and a decree for setting aside the same would not be necessary as the same is nonest in the eyes of law, as it would be a nullity. Other judgments on same lines are-
i. 2024 SCC online SC 2456 (Sk. Golam Lalchand Vs. Nandu Lal Shaw alias Nand Lal Keshri alias Nandu Lal Bayes and Others) (Paragraph-23) ii. Judgment of this Court dated 03.03.2025 passed in S.A. No.334/2017 (Nilima Kerketta V/s Paulush Minz) (Paragraph-21).
K. Md. Gulam Rasul had already transferred 0.23 acres in favour of different persons, then how he could bequeath 0.43 acres of land in favour of defendant no.3 by two separate 'Wills' (Ext. C and C/1) out of 0.60 acres land.
L. It was thereafter submitted that the appellants had no knowledge about the Will deeds and even if, for the sake of the argument, it is accepted that the appellants had knowledge about Wills, it is not valid without consent of the appellants and other co-sharers.
M. So far non-joinder of the sisters as party in partition suit is concerned, it was submitted that a Suit by a Mahomedan heir for partition of his share is maintainable even without impleading other heirs. The learned counsel referred to the judgment reported in AIR 1971 Rajasthan 247.
N. It was also stated that so far as Gift deed executed in favour of Gajala Praveen is concerned, the same is beyond the pleading of 20 2025:JHHC:26898 the defendants and the defendant no.3 specifically deposed in his evidence in paragraph 29 that Gajala Praveen never came in possession of the Gifted land.
O. He has also relied upon following judgments: -
a. 2011 (4) JCR 252 (Kerla) (Mohammed Haneefa vs. Salim) paragraphs 14 and 16.
b. AIR 2013 Gauhati 34; Paragraph 10 and 11.
P. It was submitted that the judgment and decree passed by the learned 1st appellate court is fit to be set-aside.
22. Arguments of the respondents including the points raised in the written submissions.
I. The foundational facts are: -
a) Gulam Rasul had purchased 0.60 acre of land in Khata No. 62 Plot No. 647 at village Chetar, District Gumla from Johra Khatoon through registered sale deed no. 2172 dated 06.12.1966.
b) Out of the 0.60 acre of land, Gulam Rasul sold 0.23-acre land to different persons.
c) Md. Gulam Rasul executed a registered deed of Will in favour of Md. Aslam (Defendant No. 3) in respect of 0.30-acre land pertaining to Khata No. 62 Plot No. 647 vide deed no. 1647/99 dated 26.07.1999. (Exhibit- C).
d) Gulam Rasul and Md. Aslam (Defendant no. 3) jointly sold 0.10 acre of land (including 0.03-acre of land of Will dated 26.07.1999) in favour of Yuva Shundy Samaj vide registered sale deed no. 1041/03 dated 30.04.2003 in presence of plaintiff no. 1 and also, 0.03 acre of land in favour of Mohan Sahu, out of the land bequeathed to Defendant No. 3.
e) Gulam Rasul executed another registered deed of will in favour of Md. Aslam (Defendant No. 3) in respect of 0.13-acre land vide registered deed no. 2771/04 dated 09.11.2004 (Exhibit C/1). Gulam Rasul died on 08.08.2006. Thus, Land remaining with defendant no.3 = 0.37 acre [0.30 (exhibit-C) +0.13(exhibit-C/1)]-[0.03 acre (sold out of exhibit- C] + 0.03 acre [sold out of exhibit-C].
f) Mutation case bearing no. 682 R 27/2006-07 filed by Defendant no. 3 was allowed in respect of 0.37 acre of land.
g) 0.13 acre of land out of the land bequeathed to Defendant no. 3 was gifted to one Gajala Parween (wife of Defendant No. 2, 21 2025:JHHC:26898 who has been given talaq on 05.09.2000, as mentioned in recital of the Exhibit B/8) vide three Bakshishnamas dated 11.09.2000, 12.09.2000 and 12.09.2000 respectively (Ext. B/6, B/7 and B/8). Mutation case bearing no. 393R27/2011-12 filed by Gajala Parween was allowed and 0.13 acre of land was deducted from the land of Defendant no. 3 vide Exhibit- D. Thereafter, 0.24 acre of land remained with Defendant No. 3. Partition suit was filed by plaintiffs on 05.03.2012.
II. Submissions i. Will executed by a Muslim testator is not subject to the compulsory probate requirements under law and for conditions for validity of a will under Mahomedan law, reference may be made to Articles 115 and 116 of principles of Mahomedan Law. Article 115 of the principles of Mohammedan Law reads as follows:
"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."
Article 116 of the principles of Mohammedan Law reads as follows:
"Form of will immaterial - A will (vasiyyat) may be made either verbally or in writing.."
It has been held in the case reported in AIR 1991 Pat 154: 1990 SCC Online Pat 36 [Abdul Manan Khan vs. Mirtuza Khan and ors] that any Mahomedan having a sound mind and not a minor, may make a valid Will to dispose of the property and 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 [Ref. Paras 52, 53). Article 117 of the principles of Mohammedan Law reads as follows:
"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..."22
2025:JHHC:26898 Article 118 of the principles of Mohammedan Law reads as follows:
"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.."
On a conjoint reading of Articles 117 and 118, it emerges that bequests in excess of 1/3rd share would require consent of other heirs.
SUBSTANTIAL QUESTION OF LAW NO. (i) ii. Absence of consent- The will (Exhibit-C) is registered. The testator had valid right, title, interest and possession over the bequeathed property on the date of executing the Will. The Will has been duly registered. The plaintiff no. 1 despite having due knowledge of execution of the said will neither ever sought to assail the said registered will nor even made any pleadings in the plaint about absence of consent to the said will after the death of the testator.
The will (Exhibit-C) was made and registered on 26.07.1999 and Gulam Rasul died on 08.08.2006. The recital of the registered sale deed dated 30.04.2003 (Exhibit-B/9) refers to will of 0.30 acres of land in favour of the defendant no. 3. Plaintiff no. 1 is the witness to the registered sale deed dated 30.04.2003 (Exhibit-B/9) which mentions about the exhibit-C. The plaintiff no. 1 concealed the said facts in the plaint. The plaintiff no. 1 not even sought to make any amendment in the plaint either to seek reliefs in respect of the said registered will (Exhibit-C) or to incorporate any pleadings that no consent has been given by the plaintiffs. In the case decided by the Hon'ble Kerala High Court reported in 2011 (4) JCR 252 (Ker) (Supra), the 23 2025:JHHC:26898 amendment was made in the said case with regard to lack of consent.
The registered will (Exhibit-C & C/1) are not void or void ab- initio. The said registered wills could have been assailed in terms of section 31 of the Specific Relief Act by any aggrieved party. The issue i.e., 'consent in terms of the provisions of Clause 118 of the Principles of Mahomedan Law is required after the death of the testator' is a contingency and therefore the subsequent event of denial of consent, if any, would not make the registered wills per-se void ab-initio. There is no pleading in the present case about no consent being given by the plaintiffs after death of testator to the execution of the wills. iii. Implied consent- It has been settled by the Courts that the consent of other legal heirs may be implied and need not be express and it may be signified by conduct. [Ref. Abdul Manan Khan v Mirtuza Khan, AIR 1991 Patna 154].In the present case, consent of the plaintiffs can be implied from the following facts:
--Plaintiff No. 1 was attesting witness of sale deed no. 1041/03 dated 30.04.2003 (Ext.B/9). The said sale deed executed by Md. Gulam Rasul and Md. Aslam (Def. No. 3) in favour of Yuva Shundy Samaj. The recital mentioned that Md. Gulam Rasul had executed a will bequeathing 30 decimals of land in favour of his son Md. Aslam, upon which Md. Aslam is in possession and of which, 0.03 acres of land was being transferred by the said sale deed.
-- Mutation case bearing no. 682R27/2006-07 filed by defendant no.3 in respect of 0.37 acres of land was allowed after issuing notices to all concerned. Exhibits A - A/5 are the rent receipts standing in the name of defendant no.3.
-- The first will was made on 26.07.1999. The suit has been filed on 05.03.2012 i.e., after 13 years. Though the execution of the said will was in knowledge of the plaintiff no. 1 as it is apparent from Ext. B/9, but the said fact has not been disclosed in the plaint.
In the present case, there is implied consent which could be gathered from the conduct of the plaintiffs and the long-time gap 24 2025:JHHC:26898 in filing the partition suit and further from the fact that the plaintiffs never challenged the registered wills at any point of time though plaintiff no. 1 had knowledge of the will which is evident and established from the recital of the sale-deed (Exhibit-B/9). Therefore, implied consent of the plaintiffs can very well be deduced since they had knowledge and there was acquiescence in the legatee taking possession of the property. iv. Presumption in connection with registered document. Even otherwise the registered wills have a presumption under law about its validity being validly executed. A registered document therefore, would be valid in law. Paragraph 27 of the judgment of Hon'ble Supreme Court passed in the case of Prem Singh Vs. Birbal reported in (2006) 5 SCC 353, reads as follows: -
"There is a presumption that a registered document is validly executed a registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant Case, Respondent no. 1 has not been able to rebut the said presumption."
The said judgment has been followed in a recent decision of the Hon'ble Supreme Court in Civil Appeal No. 14807 of 2024 ( Shri Mukund Bhavan Trust and others versus Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle and another). In paragraph 22 of the said judgment, reference has been made to the judgment in Prem Singh versus Birbal(supra). Further in Para-19 of the said judgment there is discussion as to a document is void or voidable considering the nature of transaction, which read as follows:-
"As per Section 31 of the Specific Relief Act, 1963, a declaration to adjudge the documents as void or voidable must be sought if it causes a serious injury. In the present case, the sale deeds undisputably stand adverse to the interest and right of the plaintiff and hence, a relief to declare them as invalid must have been sought. Though the plaintiff has pleaded the 25 2025:JHHC:26898 documents to be void and sought to ignore the documents, we do not think that the document is void, but rather, according to us, it can only be treated as voidable.
...................................................................... .....................The alleged misrepresentation is neither to the character nor is there any allegation of forgery or fabrication. It is also settled law that a document is void only if there is a misrepresentation on its character and when there is a misrepresentation in the contents, it is only voidable. In the present case, the averments in the plaint make out only a case for voidable transaction and not a void transaction. Fraud is merely pleaded without any specific attributes but based on surmises and conjectures. ....................... There is no discussion in the judgment of Hon'ble Kerala High Court reported in 2011 (4) JCR 252 (Ker) (supra) relied by the appellants, about effect of a registered will which is not challenged.
v. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. (Ref. Prem Singh v Birbal, (2006) 5 SCC 353, Paragraph 27) As such, the registered wills dated 26.07.1999 and 09.11.2004 would be presumed to be validly executed and would be valid in law. The onus of rebutting the presumption would be on the plaintiffs, which has not been discharged. Furthermore, the plaintiffs have not challenged the documents before the competent court of law in accordance with law. In this regard, section 31 of the Specific Relief Act 1963 may be referred which provides for suit for cancellation of a written instrument. The provision makes reference to both void and voidable documents. SUBSTANTIAL QUESTION OF LAW NO. (iii) 26 2025:JHHC:26898 vi. There appears to be no such specific observation in the judgment of learned 1st Appellate Court with regards to non- joinder of Gajala Parween in whose favour three registered hibanamas -exhibit- B/6, B/7 and B/8 were executed with respect to part of the suit property. In Kasturi Vs. Lyyamperumal, (2005) 6 SCC 733, the Hon'ble Supreme Court has devised the following two tests that are to be satisfied for determining who is a necessary party:
(1) There must be a right to some relief against such party in respect of the controversies involved in the proceedings;
(2) No effective decree can be passed in the absence of such party.
In the present case, the plaintiffs have sought for partition of 0.37 acres of land. It is pertinent to mention here that 0.13 acres of land out of the said land has been gifted to Gajala Parween vide three Bakshishnama (Exhibits B/6, B/7 and B/8) and the land has been mutated in her name. Since relief has been sought with respect to the land, part of which has been gifted to and has been mutated in the name of Gajala Parween, therefore, the presence of Gajala Parween would be necessary and an effective decree cannot be passed in her absence. Further alternatively it has been contended that the registered wills (Exhibit-C & C/1) are even otherwise valid, as under
Article 118 of Mahomedan Law, the Wills to the extent of 1/3rd being made without consent of other heirs is valid and can take effect and so the wills to the extent of 1/3rd of the bequeathed is not liable to be partitioned. In this regard reliance has been made on a judgment of Hon'ble Madras High Court in the case of Asma Beevi versus M. Ameer Ali. Para- 25 of which is as follows: -
"25. The aforesaid averments clearly show that the first defendant was not certain about the alleged consent obtained from the plaintiffs, that is why he has stated 27 2025:JHHC:26898 that if there was no consent obtained by the second defendant from the plaintiffs, his share would be 14/56 in the property, after discharging the debts left by his father. As the plaintiffs have categorically stated that they have not given any consent for the Will, without any documentary proof, merely based on the oral testimony of the interested witnesses D.W.1 and D.W.2, the alleged consent of the plaintiffs cannot be accepted. If there was any consent from the plaintiffs, as alleged by the defendants 1 and 2, at least they could have paid Rs.5,000/- each to the plaintiffs, as per the Will, Ex.B.38, dated 18.01.1978. Admittedly, there was no such payment made by the defendants 1 and 2 to the plaintiffs. Under Mohammeden Law, in the absence of consent from the other sharers, namely, the plaintiffs, after the death of the testator, it would bind only 1/3rd of the property bequeathed under the Will, after deducting the debts and the amount spent for funeral expenses. Hence, considering the Will, I am of the view that both the appellants herein are entitled to 14/56 share out of the 2/3rd share of the suit property, as held by the trial court. They are also entitled to get proportionate mesne profit. The debts discharged by the defendants 1 and 2 and the amount spent towards the funeral expenses of the deceased Mohammed Ismail have to be gone into at the time of passing final decree. If any property had been sold by the second defendant, it should be allotted to his share in the final decree."
In the said case of Asma Beevi (supra), there were pleadings supported by evidences on the issue of no consent, unlike the present case.
vii. The learned counsel for the respondents has further referred to Sections 58 and 213 of Indian Succession Act to submit that the provision regarding testamentary succession is not applicable to the property belonging to Mahomedan and Section 213 does not apply in the case of 'Will' made by Mahomedan. He has also submitted that the probate is not necessary in connection with 'Wills' of Mahomedan.
282025:JHHC:26898 viii. The learned counsel while referring to the Article 118 of the Mohammedan Law has submitted that in case of absence of consent, Will is valid to the extent of 1/3rd of the property. ix. He further submitted that it is not in dispute that said Md. Gulam Rasul had purchased 0.60 acres of land vide registered deed dated 06.12.1966 out of which he sold 0.23 acres. So far as the remaining 0.37 acre is concerned, 0.02 ¾ acre was sold vide sale deed dated 21.02.1995 (Exhibit B). Thereafter 1 st registered will to the extent of 0.30 acre was executed on 26.07.1999 (Exhibit-C) and then 0.10 acre of land was sold vide registered sale deed dated 30.04.2003 (Exhibit B/9) and lastly another registered will dated 09.11.2004 for 0.13 acre of land (Exhibit- C/1) was executed. 0.23 acre of land was already sold which included the property covered by sale deed dated 21.02.1995 relating to 0.02 ¾ acre vide Exhibit-B. x. It has been submitted that Exhibit B to B/10 are the registered sale deeds whereby different area of the same property was transferred which are as follows: -
Exhibits Sale deed date Area
Exhibit B 21.02.1995 2 ¾ Decimal
Exhibit B-1 31.05.1999 3 Decimal
Exhibit B-2 31.05.1999 3 Decimal
Exhibit B-3 31.05.1999 3 Decimal
Exhibit B-4 31.05.1999 2 Decimal
Exhibit B-5 31.05.1999 3 Decimal
Exhibit B-6 12.09.2000 4 ½ Decimal
Exhibit B-7 11.09.2000 4 Decimal
Exhibit B-8 11.09.2000 4 ½ Decimal
Exhibit B-9 30.04.2003 10 Decimal
Exhibit B-10 03.12.2003 3 Decimal
29
2025:JHHC:26898
xi. Amongst the aforesaid sale deeds, the learned counsel for
the respondents has submitted that 0.03-acre land was the property which was excluded from the first registered 'Will' dated 26.07.1999 consisting of 0.30 acre and was included in sale deed dated 30.04.2003 (Exhibit B/9) and was a part of the 0.10 acre of land mentioned therein. However, this aspect of the matter has been disputed by the learned counsel appearing on behalf of the appellants.
xii. Learned counsel for the respondents has referred to the judgment relied upon by the appellants reported in AIR 1991 Pat 154: 1990 SCC Online Pat 36 [ Abdul Manan Khan vs. Mirtuza Khan and ors] paragraphs 68 to 71.
xiii. Learned counsel for the respondents has submitted that total area was 0.60 acre out of which 0.23 ¾ acre was sold or transferred as per the recitals in the registered documents. So only 0.37 acre was remaining. The land area of 0.13 acre was gifted vide Exhibit B/6 to B/8 and 0.24 acre was given by way of Will to defendant No. 3 by registered documents.
23. With respect the substantial question of law no. (ii), the learned counsel for the respondents has submitted that since the Exhibits B/6 to B/8 were marked without any objection therefore, the same could have been taken into consideration in spite of the fact that there was no pleadings to that effect and they are all registered document.
24. With respect to substantial question of law No. (iii), the learned counsel for the respondents has submitted that there was no finding that the land to the extent of 0.13 acre was mutated in the name of Gajala Parween. The learned counsel has submitted that there is no finding by the learned 1st appellate court that Gajala Parween is a necessary party.
Rejoinder arguments of the appellants.
302025:JHHC:26898
25. In response, the learned counsel for the appellants has referred to paragraph 27 of the learned 1st appellate court's judgment and has submitted that the learned 1st appellate court has taken into consideration the fact that the sisters were not made party in the proceedings and the conduct of the plaintiffs was lacking bonafide.
26. The learned counsel for the appellants has referred to paragraph 16 of the judgment passed in the case of Prem Singh and Others (Supra) to submit that if the document is invalid/void-ab-initio the same need not be challenged.
Findings of this Court
27. After hearing the learned counsel for the parties, this Court finds that the suit was filed for partition of land under Khata No. 62, Plot No. 647 area 0.37 acre- 2/5th share for the plaintiffs and 3/5th share for the defendant nos. 1 to 3.
28. As per plaintiffs, Md. Gulam Rasul was the father of Plaintiffs and Defendants No. 1 to 3 and husband of Kamli Bibi Defendant No.
4. He had purchased 0.60 acre of land vide Registered Sale Deed dated 06.12.1966 and got the property mutated in his name. Md. Gulam Rasul died leaving behind his three wives namely -Jago Bibi, Bibi Batulan and Kamli Bibi. Jago Bibi died leaving behind her only son Md. Akhtar [Plaintiff No. 1]; Bibi Batulan died leaving behind his only son Md. Maqbul Alam [Plaintiff No. 1]; Kamli Bibi [defendant no.4] is still alive and she has three sons, Md. Mokhtar, Md. Ekramul and Md. Aslam [defendant no. 1 to 3]. Md. Gulam Rasul had sold 0.10 acre land vide registered sale deed dated 30.04.2003 (Ext. B/9), 0.03 acre land vide registered sale deed No.2440/2003 (Ext. B/10) and in the year 1999 he sold 0.10 acre of land. The remaining area was 0.37 acre which was still intact and joint and was subject matter of partition.
29. As per defendants, purchase of 0.60 acre of land by Gulam Rasul and its mutation in his name and that he had 5 sons is admitted ; Gulam Rasul was an old man he was living under the care of his younger son Md. Aslam and being pleased with the service of Md.
312025:JHHC:26898 Aslam, Gulam Rasul Executed a Registered deed of Will on 26.07.1999 for an area of 0.30 acre (Exhibit- C) and again on 09.11.2004 executed a Registered deed of Will in favour of Md. Aslam for the land under Khata No. 62 Plot No.647 area 0.13 acre (Ext.C/1) with the knowledge of Plaintiff and all concerned ; Gulam Rasul died on 08.08.2006 and the suit land came under the exclusive possession of Md. Aslam. Thereafter, defendant no. 3 - Md. Aslam had filed a Mutation Case No. 682R27/2006-07, whereupon notices were issued to all concerned and considering the merit of the case, Circle Officer allowed the Mutation in the name of defendant no. 3 - Md. Aslam, in respect of 0.37-acre land of aforesaid plot in question.
30. Although neither the plaintiffs nor the defendants mentioned about the fact that Gulam Rasul had gifted to one Gajala Parween D/o Khalil Ahmad Qazmi 0.13 acres of land through three Hibas (Ext. B/6, B/7 and B/8) and the property to that extent was carved out from 0.37 acre and mutated in her name vide Mutation case No. 393R27/2011-12, but this fact has come in the evidence of the defendants supported with documentary evidence. It has come in the evidence that on the basis of three registered Hibanamas Gajala Parween had filed a mutation case and then notices were issued to all concerned and considering the merit, her Mutation case was allowed and 0.13 acre of land was deducted from the land of defendant no. 3- Md. Aslam (0.24 acre of defendant no. 3- Md. Aslam and 0.13 acre of Gajala Parween).
31. Thereafter the present partition suit was filed on 05.03.2012, concealing the material fact of earlier two Wills and three Hibas and without challenging the same in any competent court of law. The learned trial court decreed the suit on the ground that defendants have failed to prove the Wills executed in favour of defendant no.3 and the same was not probated and as such Wills are not enforceable under the law. The learned trial court also held that the three Hibanamas and the two wills were not valid and enforceable. Consequently, the learned trial court held that there is unity of title over the suit property and the plaintiffs are entitled for partition.
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32. The learned 1st appellate court reversed the finding of the trial court. However, with regards to the wills, the court observed that the plaintiffs had never challenged the Wills, either by filing any suit seeking declaration that wills were null and void and not operative under the law or by adducing any cogent evidence and the plaintiffs had chosen not to file any replication in this suit. By relying on the decision of Abdul Manan Khan vs. Mirtuza Khan and ors. (Supra), the learned 1st appellate court held that no writing is necessary to make a valid Will, and no particular form, even verbal declaration is necessary so long as the intention of the testator is sufficiently ascertained. Will does not require attestation under the law and Section 68, 69 and 71 of the Indian Evidence Act is not applicable in the case of Muslim Will. The learned 1st appellate court further held that when Gulam Rasul had executed a registered Will deed no. 1647/99 (Exhibit C) in favour of defendant no.3, the plaintiff no.1 had knowledge about it and he was attesting witness of sale deed no.1041/03 dated 30.04.2003 which was executed by vendor Gulam Rasul. The Vendor Gulam Rasul had executed a Will in favour of his son Md. Aslam (Defendant no.3) and 0.03 acres of land from the area mentioned in that will was being transferred to Youva Shundy Samaj. It was observed by the learned 1st appellate court that under that view of the matter, devolution of property by inheritance does not arise and it cannot be held by any stretch of imagination that plaintiffs and defendants are tenants in common in respect of the suit scheduled land. As such there was no unity of title between them over the suit property.
Further it has been held that Ext. B/6, B/7 and B/8 or the three Hibanamas, for the land measuring 0.13 acre from the plot in questions, were acted upon vide Ext.-D and Plaintiffs have also shown the land of Gajala Parween in the boundary of the scheduled land, yet the plaintiffs sought partition of the land which were mutated in the name of Gajala Parween. The court observed that the bonafide of the Plaintiffs was doubtful.
332025:JHHC:26898 Further the learned court held that plaintiffs have admitted that there were other shareholders in the form of their sisters, who have been compensated in terms of money but they were not made party to the suit to substantiate the claim of the Plaintiffs and clear picture was not brought on record by the Plaintiffs. The court held that the suit is not maintainable as other co-sharers were not made party . substantial question of law no.(i).
33. The suit was filed on 05.03.2012 and the mutation in favour of Gajala Parween had also taken place in the case instituted in the year 2011-12. The suit was filed for partition of 0.37 acre and it has been brought on record by the defendants that the property stood mutated in the name of Md. Aslam in connection with khata no. 62 plot no. 647 area 0.37 acres which he claimed by virtue of two Wills (exhibit- C and C/1). The learned trial court disbelieved the wills as they were not probated and decreed the suit but the learned 1 st appellate court held that probate is not necessary in case of wills by muslim and the wills were not under challenge and held that there was no unity of title and possession with respect to the suit property and allowed the appeal and dismissed the suit for partition.
34. Articles 116, 117, 118 and 131 of Mahomedan law are as under:
"§116. Form of will immaterial A will (vasiyyat) may be made either verbally or in writing.
§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.
Explanation.- In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the testator's death.34
2025:JHHC:26898 §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."
35. On a conjoint reading of Articles 117 and 118, it emerges that bequests in excess of 1/3rd share would require consent of other heirs.
36. In the judgement passed by Hon'ble Madras High Court in the case of "Asma Beevi & Another vs. M. Ameer Ali & Others"
reported in 2008 6 MLJ 92 : 2008 0 Supreme (Mad) 1611 it was held in paragraph 23 that the requirement under Mohammedan Law is that the consent of the other heirs of the testator has to be given after the death of the testator to make it binding on the entire property bequeather. As per Article 118, there is a limited testamentary power and accordingly, a Mohammedan cannot by Will dispose of more than 1/3rd of surplus of his estate after payment of funeral expenses and debts, unless consent is obtained from the legal heirs, after the death of the testator. In the fact of the said case, it was found that in the absence of consent from the plaintiffs, the other legal heirs, after the death of the testator could claim only 1/3 of the property bequeathed under the Will, after deducting the debts and therefore the plaintiffs were held to be entitled to share out of the 2/3rd share of the properties bequeathed under the Will.
37. In the judgement passed by Hon'ble Kerala High Court reported in 2011 (4) JCR 252 (Ker) (supra), it has been held in paragraph 15 as under:
"15. Section 118 is limiting the testamentary power of a Mohammedan. It applies to all bequests, whether the legatee under the will is a stranger or heir or some of the heirs. The bequest could only be in respect of the legal one third of his properties. A Mohammedan cannot execute several wills in favour of different heirs or/and strangers so as to limit the bequest under each will to less than the legal one third and thereby circumvent the bar provided under Section 118. The total bequest shall not exceed the legal one third. The excess would be valid only if all other heirs give their consent, after 35 2025:JHHC:26898 the death of the testator. If no such consent is given, the bequest to the extent of the excess of the legal one third is invalid."
38. With respect to the substantial question of law no. (i), the crux of the arguments of the appellants is that the Will was vitiated as no consent was obtained from the plaintiffs after the death of Gulam Rasul but in view of the judgement passed in the case of Abdul Manan Khan (supra) by Hon'ble Patna High Court consent is required after the death of the testator if the will is made in excess of 1/3rd of the property and also in view of the judgement passed by Hon'ble Kerala High Court (supra) a Mahomedan cannot bequeath exceeding 1/3rd share of his property unless other heirs have given consent after his death. It has been argued by the appellants that the Wills are void - ab - initio and a decree would not be necessary to set- aside the same being nullity. On the other hand, the crux of the argument of the defendants is that the wills are not nullity as the consent has to be obtained after death of the testator and in absence of any foundational pleading of absence of consent and challenge to the wills, the wills as a whole are valid. This court finds that the wills were neither disclosed in the suit in spite of having knowledge nor the same were specifically challenged at any point of time and consequently there was no pleading on the point of absence of consent from the plaintiffs after death of the testator. In the judgement passed by Hon'ble Kerala High Court reported in 2011 (4) JCR 252 (Ker) (supra) the issue of consent with respect to will was duly raised by amendment in the plaint.
39. This Court is of the considered view that the registered Wills having been executed during the life time of the testator cannot be said to be void -ab-initio or nullity upon his death in the absence of consent of other heirs as the consent is required after the death of the testator with respect to the property in excess of 1/3rd of his property and the wills are voidable and were required to be challenged but were never challenged by the plaintiffs in the suit or even by amending the suit. In 36 2025:JHHC:26898 the absence of any challenge to the Wills, inter alia, on the ground of absence of consent of other heirs of the testator after the death of the testator in the pleadings, the learned 1st appellate court has not committed any perversity in holding that the Wills executed by the testator -Gulam Rasul in favour of the defendant no.3 were valid. In absence of any pleading of absence of consent and challenge to the Wills, Article 117 and other related provisions of the Mahomedan Law including Article 118 do not help the plaintiffs in any manner whatsoever. The substantial question of law no.(i) is accordingly answered against the plaintiffs -appellants and in favour of the defendants.
substantial question of law nos. (ii) and (iii).
40. In the plaint and the written statement, there is no mention of Gajala Parween and of Hibanamas in her favour with respect to any portion of the suit property. However, during the course of evidence, 3 Hibanamas have been brought on record in favour of Gajala Parween being exhibits B/6, B/7 and B/8 - all are registered documents and executed by Gulam Rasul in favour of Gajala Parween. In the said Hibanamas, it has been mentioned that Gajala Parween was daughter- in-law of Gulam Rasul who was married to Md. Ekramul (defendant no. 2) and she was divorced. The records also reveal that the property was mutated to the extent of 0.13 acre in favour of Gajala Parween vide mutation case No. 393R27/2011-12 and the document dated 20.11.2012 is showing mutation in her name to the extent of 0.13 acre. Deduction of 0.13 acre of land from 0.37 acre of land already mutated in favour of the defendant no.3 was done vide exhibit-D and thus only 24 decimals stood mutated in favour of the defendant no.3 and 0.13 acres of land stood mutated in favour of Gazala Parween.
41. The entire suit property was 0.37 acre in connection with which the plaintiffs were seeking partition, but the plaintiffs did not deduct the properties which stood allocated to Gajala Parween to the extent of 0.13 acre for which mutation was also done in her favour.
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42. This Court finds that once the factum about allocation of 0.13 acre of land to Gajala Parween came to light and it further came to light that the mutation of 0.37 acres of land in favour of defendant no. 3 got reduced to 0.24 acres after deducting the portion of Gajala Parween, there can be no doubt that entire 0.37 acres could not have been subjected to partition as prayed for in the plaint.
43. The learned trial court while recording the finding has observed that the defendants have not disclosed about 3 deeds in favour of Gajala Parween in the pleadings and held that the 3 deeds placed on record by the defendants cannot be said to be valid and enforceable documents and further held that the mutation of property to the extent of 0.13 acre in favour of Gajala Parween (exhibit- D) is of no consequence as mutation of property in record-of-rights does not create or extinguish title. Thus, the entire story of property allocated to Gajala Parween by 3 registered deeds followed by mutation in her favour to the extent of 0.13 acres was completely rejected by the learned trial court and the deeds themselves were held to be invalid and not enforceable. Ultimately, the learned trial court had directed for partition of 0.37 acres of land amongst the two plaintiffs and defendant nos. 1 to 3 giving 1/5th share to each one of them.
44. The learned 1st appellate court has held that the exhibits B/6, B/7 and B/8 which are the three Hibanamas were in favour of Gajala Parween for 0.13 acres of land from the plots in question and were acted upon vide exhibit- D vide the mutation in her favour, yet the plaintiffs sought partition of the land mutation in the name of Gajala Parween. The learned 1st appellate court rightly questioned the bonafide of the plaintiffs.
45. The learned 1st appellate court also observed that the plaintiffs had admitted that there were other shareholders in the form of their sisters and claimed that they had been compensated in terms of money, but they were also not made party to the suit to substantiate their claim and recorded that the plaintiffs had not brought the clear 38 2025:JHHC:26898 picture on record. Ultimately, the learned 1st appellate court set-aside the finding of the learned trial court with respect to issue nos. 3 to 7.
46. The learned counsel for the respondents has pointed out that the learned 1st appellate court has not recorded any finding that Gazala Parween was a necessary party. This Court also finds that the learned 1st appellate court has not held that Gazala Parween was a necessary party. Considering the substantial question of law, there is no scope for this court to pronounce on the point as to whether Gazala Parween was a necessary party or not. In fact, the learned 1st appellate court has observed in paragraph 27 of the judgment that the partition suit was filed, interalia, without challenging the hibanamas.
47. In fact, the learned 1st appellate court has held that the suit was bad for non-joinder of the sisters of the plaintiffs who claimed to have been compensated in terms of money, but they were not made party to the suit to substantiate their claim. In connection with finding of the learned 1st appellate court with regard to non-joinder of sisters as party to the suit, no substantial question of law has been framed and the said finding has become final.
Accordingly, the substantial question of law no. (iii) is decided by observing that the learned 1st appellate court never observed that Gazala Parween was a necessary party to the suit and thus the suit was bad for non- joinder of Gazala Parween as party. However, the suit was held to be barred for non-joinder of sisters being necessary party in connection with which no substantial question of law has been framed.
48. This Court is of the considered view that merely because none of the parties had made any pleading with respect to the execution of three registered Hibanamas (gifts - exhibit- B/6 to B/8) in favour of Gajala Parween by Gulam Rasul, the Court would not shut their eyes to such an important material placed on record which had direct bearing on the available area of the property of Gulam Rasul which was subject matter of partition suit and the legality and validity of exhibit- B/6 to B/8 was sought to be questioned during arguments. The 39 2025:JHHC:26898 suit property was 0.37 acre out of which 0.13 acre was already mutated in favour of Gajala Parween (exhibit-D) and none other than the defendants themselves had stated in the evidence supported by documents that in the mutation proceeding initiated by Gajala Parween, the area of the property mutated in favour of defendant no. 3 by virtue of the two wills (exhibit- C and C/1) was reduced from 0.37 acre to 0.24 acre but foundational pleading in this regard was missing from the written statement. The learned trial court while decreeing the suit held that the Hibanamas and subsequent mutation in the name of Gajala Parween were illegal and not enforceable and also held that the wills being not probated were also not enforceable. The learned 1 st appellate court has recorded that wills were not required to be probated and on account of wills there was no unity of title and possession and the suit property could not be subjected to partition. The learned 1st appellate court also held that the plaintiffs had shown the land of Gazala Parween in the boundary and still claimed partition of the property including the portion of the suit property given to Gazala Parween by three hibanamas (B/6 to B/8) and held that the bonafide of the plaintiffs was in doubt. The Hibanamas were admitted in evidence without objection. Since they were registered documents there was presumption with regards to the registered documents. Admittedly, on account of Hibanamas the property mutated in favour of the defendant no.3 to the extent of 0.37 acre was reduced to 0.24 acre which was also not under challenge.
49. In order to come to a finding that bonafide on the part of the plaintiffs was in doubt and that the plaint suffered from material suppression, the learned courts have not committed any perversity by admitting the Hibanamas even in absence of any pleadings as the same have material bearing in the suit for partition. It has been recorded by the learned 1st appellate court, the suit property itself showed Gazala Parween to the boundary still her portion to the extent of 0.13 acre was included in the suit property seeking partition.
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50. Consequently, the substantial question of law no. (ii) is answered against the plaintiffs-appellants and this Court is of the view that the courts have not committed any perversity by admitting Hibanamas allegedly executed by Gulam Rasul in favour of Gajala Parween even in absence of any pleading by any of the parties. The learned 1st appellate court has rightly used the Hibanamas to ascertain as to whether the entire suit property was available for partition.
51. As a cumulative effect of the aforesaid findings, this 2nd appeal is dismissed.
52. Pending interlocutory application, if any, is dismissed as not pressed.
53. Let this order be communicated to the learned court concerned through 'FAX/email'.
(Anubha Rawat Choudhary, J.) Pankaj 41