Karnataka High Court
Sri Allbux S/O Khajasab Lakkadahare vs Smt. Allabi W/O Khajasab Lakkadahare, ... on 27 August, 2007
Equivalent citations: ILR2007KAR4662, 2008(3)KARLJ40, 2007 (6) AIR KAR R 427, 2008 A I H C 517, (2008) 3 KANT LJ 40, (2008) 4 RECCIVR 2, (2008) 2 ICC 753
Author: H.N. Nagamohan Das
Bench: H.N. Nagamohan Das
JUDGMENT H.N. Nagamhan, J.
Page 2079
1. This appeal is directed against the judgment and decree dated 1.10.2002 in. O.S.No. 206/1998 passed by the Addl. Civil Judge (Sr.Dn.), Hubli, partly decreeing the suit of the plaintiff for partition and separate possession.
2. The appellant is plaintiff and respondents are defendants before the trial court. In this judgment, the parties are referred to by their status before the trial court.
3. The parties are governed by Mahomedan Law. The relationship between the parties is as under.
Page 2080 GENEOLOGY Rasoolma (died 1980) | | Allabi (Died 2005) (only daughter) deft. No. 1 | ________________________________________ | | Allabaksh Hazaratbi (deft. No. 2) (plaintiff) (daughter) (adopted son) | Saleha (Died 2004) (Deft. No. 3) (daughter of D2) | Shafi A. Sayyed (Husband) Deft. 3(a)
4. The plaintiff contends that one Rasoolma was the owner of the entire schedule properties situated at Hubli. Rasoolma executed a registered will on 6.12.1975 bequeathing the entire schedule properties in favour of plaintiff and first defendant. In terms of the will, the plaintiff is entitled for the share of 11 annas and second defendant is entitled for 5 annas. The plaintiff further contends that he is the adopted son of first defendant and entitled for a share in the schedule properties. After the demise of Rasoolma in the year 1980, the first defendant conducted herself disgruntled to the interest of plaintiff and therefore, he filed a suit in O.S.No. 206/1998 for partition and separate possession of his share in the schedule properties.
5. The defendants entered appearance before the trial Court and filed written statement opposing the claim of the plaintiff. The defendants denied that the plaintiff is the adopted son of the first defendant. The defendants further contend that Rasolma had no authority to execute the will to the entire extent of schedule properties. The defendants further contend that on the demise of Rasoolma, the first defendant succeeded to the entire schedule properties and she validly gifted the same to the third defendant.
6. On the basis of the pleadings, the trial Court framed the following 9 issues:
1. Whether the plaintiff establishes that he is the son of Khajasab Lakkadahare as alleged in the plaint?
Page 2081
2. Whether the plaintiff establishes that late Smt. Rasoolma w/ o Makhutumsab Jakati executed a registered will in favour of plaintiff and defendant No. 2 on 6.12.1975 as alleged in the plaint?
3. Whether defendant No. 1 taking undue advantage of illegal entry of her name in CTS records illegally gifted suit properties to defendant No. 3. Hence said gift is illegal?
4. Whether plaintiff establishes that he is the co-owner and co-sharer of the suit properties and he has got right of share to the extant of 11 annas as alleged in the plaint?
5. Whether defendant establishes that present plaintiff is imposter as alleged in written statement?
6. Whether defendant establishes that this Court does not have jurisdiction to try the suit?
7. Whether defendant establishes that Court fee paid is not proper and correct?
8. Whether plaintiff is entitled for partition and separate possession as sought?
9. What order or decree?
7. Before the trial Court, the plaintiff examined 3 witnesses as P.W.s 1 to 3 and got marked Exts. P 1 to P 63. The defendants examined 2 witnesses as D.W.s 1 and 2. The trial Court after hearing both parties and on appreciation of pleadings, oral and documentary evidence on record concludes that plaintiff is the adopted son of the first defendant. The will executed by Rasoolma dated 6.12.1975 is valid only to the extent of 1/3rd share in the entire schedule properties. It is held that the gift made by the first defendant in favour of third defendant is valid only to the extent of 2/3rd share and not to the entire extent of the schedule properties. Accordingly, the trial court under the impugned judgment and decree declared that the plaintiff is entitled for 11 annas of share and second defendant is entitled for 5 annas of share in 1/3rd of the suit properties and not in the entire schedule properties. The plaintiff being aggrieved by the impugned judgment and decree denying his share in the entire extent of the schedule properties has filed this appeal.
8. Heard the arguments on both sides and perused the entire appeal papers.
9. Mr. M.R. Mullah, learned Counsel for the appellant contends that the first defendant had the knowledge of the will dated 6.12.1975 and consented for the same and as such the will is valid to the entire extent of schedule properties. The conduct of the first defendant implies that she has consented for the will dated 06.12.1975 to the entire extent of the schedule properties. We decline to accept this contention of the learned Counsel for the appellant.
Page 2082
10. Section 118 of Mahomedan Law reads as under:
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.
11. Learned single Judge of this Court while interpreting the scope of Section 118 of Mahomedan Law in the case of Md. Khalilur Rahman v. Md. Fazlur Rahman has held as under:
Mahomedan Personal Law dictates that if a Muslim executes a will bequeathing any of his properties or all his properties in favour of one of his hairs, consent of the remaining heirs would be necessary to validate the bequest - Knowledge of the bequest and inaction for a long period by an heir challenging the bequest are sufficient to presume that the said heir had signified consent by his conduct.
12. A reading of Section 118 of the Mahomedan Law specifies, that a Mahomedan is not entitled to bequeath more than 1/3rd of his estate after payment of funeral expenses and debts. It further specifies that any bequeath in excess of 1/3rd of his estate cannot take effect unless the heirs consent there to after the death of testator. Learned single Judge of this Court while interpreting the scope of Section 118 of the Mahomedan Law held, that knowledge of bequeath and inaction for a long period by a heir challenging the bequeath are sufficient circumstances that the said hair had signified consent by his conduct. We are in agreement with the view of the learned Single Judge.
13. Keeping this position of law in view it is necessary to examine the fact situation in the instant case. It is not in dispute that Rasoolma executed a will on 06.12.1975 bequeathing the schedule properties and died in the year 1980. The first defendant represented before the revenue authorities stating that she is the only surviving legal heir who had succeeded to the estate of deceased Rasoolma and got her name entered in all the revenue records. After the demise of Rasoolma the first defendant continued to be in exclusive possession and enjoyment of the schedule properties as its absolute owner. Further the first defendant claiming to be the absolute owner of the schedule properties gifted the same in favour of third defendant. Subsequent to the gift of the schedule properties by the first defendant, the name of third defendant came to be entered in all the revenue records and she is in exclusive possession and enjoyment of the schedule properties. These events manifestly makes it clear that the first defendant did not had the knowledge of the will dated 6.12.1975. Even if the first defendant had the knowledge of the will, the subsequent conduct indicates that she had not consented for the will. Except the oral interested testimony of PW. 1, there is no other evidence on record to establish that the first defendant had the knowledge of will and by her Page 2083 conduct she gave consent to the will. Under the circumstances, the trial Court is right in holding that the first defendant had not given her consent for the will executed by Rasoolma. Therefore, the will executed by Rasoolma on 6.12.1975 is valid to the extant of 1/3rd shares in the schedule properties.
14. Learned Counsel for the appellant secondly contends that under the will dated 6.12.1975, the second defendant is entitled for 5 annas share in 1/3rd of the entire schedule properties. During the pendency of the appeal, the second defendant died. On the demise of the second defendant, plaintiff contends that his share is augmented. In that event, the plaintiff is entitled to work out his remedy in this regard in the final decree proceedings.
15. In. the case of Phoolchand and Anr. v. Gopal Lal , the supreme Court held that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented.
This Court in the case of M. Kinhanna Alya and Ors. v. K.T. Alva and Ors. reported in 1960 MYS.L.J. 647 has held as under:
Where a preliminary decree in a partition suit allotted shares to the plaintiffs together and the remaining share a to the defendants and did not provide for partition inter se amongst the plaintiffs, the Court has jurisdiction to direct a partition inter so amongst the plaintiffs. It is a matter for the discretion of the Court. It is not a matter of right for the party to ask for such allocation irrespective of the frame of the suit or the terms of the preliminary decree.
16. In view of the law declared by the supreme court and this Court, the plaintiff is entitled to request the final decree court to adjudicate his augmented share, if any, on the demise of second defendant. In the event of plaintiff making such a claim, the final decree Court to decide the same in accordance with law.
17. The plaintiff in Para 9 of the plaint admitted that first defendant orally gifted the entire schedule properties in favour of third defendant. After the demise of Rasoolma, the plaintiff and second defendant are entitled for 1/3rd share in the entire schedule properties under the will dated 6.12.1975. The remaining 2/3rd share in the schedule properties will go to the first defendant being the only surviving legal representative of deceased Rasoolma. Therefore, the gift made by first defendant in favour of third defendant is valid only to the extent of 2/3rd share in the schedule properties.
18. For the reasons stated above and with the above observations, the appeal stands disposed of with no order as to costs. Ordered accordingly.