Karnataka High Court
Shahabi vs Rabiabi on 11 September, 2009
Bench: N.Kumar, B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA czRcU§T'I$i«;1§CH
AT DHARWAB _
DATED TI-HS THE um DAY OF SEP'IfI*1~1\./!"vf3ETIFi"'A?.L:C}O.9 1 ~
PRESEETT j; _
THE I~ION'BLE MR._gUs'TTDE N. '
THE HON'BLE MSTJUSTIDD' VVGOWDA
Refiuiar F'irS1:'T-;'iA\_:3'T.5E:.'"::1'bl:'VI\'fC_.~~.«. .DfI.2000
BETWEEN:
W/O GOUS_MC~H'OV DiN__PU1\;EEKAR
VSINCESV L)EC1'§g:1tSEDAV 'BY L.RS' '
IA SMT, MEHR.UNN1SP.. '
W'/D ABDUL '1\/m.J1D.S SHAIKH
AGE"-«MAJOR '
3 'OCC: HOUSEHOLD WORK
~ R/0VVcHAv'AT__(3ALL1
BELGAUM
'- W'/0; PMWIFSAHEB BELWADI
SIi*€f__',E= DECEASED BY HER L.RS
2A "Dfi:AwARSAB
--- S / O HANIFSAHEB BELAWADI
SINCE DECEASED BY HIS L.RS
2A1
2A2
2A3
2A4
SMT. ZUBEDABI
W/O DILAWARSAB BELAWADI
AGE: MAJOR, OCQHOUSEHOLD woRK--. *
R/O ZAKRIYA MASJID
OLD GANDHINAGAR
BELGAUM I
AYUB _
s/o DILAWSAB BALEWAQI V v_
AGE:26YEARS,OCC:BUS1NF.SS,
R/O ZAKRIYA MASJID _' ' "
OLD GANDHINAGR,BELGAUM _ ' - .,
SALEEM t
S/O DILAWSAB 13Ai,EwAD1"-.. . .V
AGE:18~v'1"E.A;RS, OCC:.I3USIN:E$S____H
R/O ZAKRs*;YA_IvIASJ1D ._ jg '
oLDi'GANDri11\IAGAjjR, 'BE;;;GAUI»/i
am; %
'D /0 .D1L-FMSAB' I3 AG1:w.ADI
AGE::_19 YEARSJ'
OCC: }ioUsEHoL:3._W6RK
R/O'Z.AKR1Y.A I\/EASJ'ID
'OLD GAl\H_3HINA{}AR, BELGAUM
. ZABINA "" H
W/"0 i\/IALIKSAB JAMADAR
' AGEi27T'Y--1"£ARS
' OCCEHOUSEHOLD WORK
R;0_?:AKRIYA MASJID
"OLD GANDHINAGAR
BELGAUM
SABINA
W/ O NAZIR AHMED TAHASILDAR
AGE:25 YEARS
M/
/
2A?'
233
2C
3A%.
J?§IB:'U:5;1
W/~O'{.JN,ARSAHEB INAMDAR
SINCE DECEASED BY HER L.RS
-3-
OCQHOUSEHOLD WORK
R/O ZAKRIYA MASJ ID
OLD GANDHINAGAR
BELGAUM
AFROZ
W/O ASLAM TAHASILDAR
AGE: 23 YEARS V
occ: HOUSEHOLD WORK
R/O ZAKRIYA MASJID "
OLD GANDHINAGAR
BELGAUM - "
HUSSAINSAB
s/0 HANIFSAH;"iB'~BEI;)XWZ\I)'.{V_
MAJOR --
OCC:SERVICE , j
R/O 428?,"JALGAR"GALLI-.:>«_
BELGAU1v}'g_.'
:'MEI~Lé{B"'us«1..V:"V% " >
W'/O._KUTA1'3ODDiN--§f§;§.R;4&G,M1\JOR,
occ: HOUSEHO,LD._WORK
R/O "OLD GANIJHINAGAR
;' 'BELGAUM " '
NVAZILF; AHAMAD
as/.O'UMARsA1~1EB INAMDAR
AGE: 40 YEARS
OCC: SERVICE IN KSRTC
R/O 4248, KHADAK GALLI
BELGAUM
3B
}nnnJ.
ANWAR
S / O UAMARSAHEB INAMDAR
AGE: 36 YEARS
OCC:TAILORING, R/O 4248.
KHADAK GALLI, BELGAUM
APPELLANTS NOS.1A, 2A2, _ M "
2A4, 213, 2c, 3A, 3B REPRESENTED " 'V
BY THEIR POWER OF ATTORNEY * '
HOLDER SR1 A.A.SHAIKH ' . '
s/0 ABDUL REHAMAN .s'r£A1KH"- V
AGE: 6'? YEARS
RESIDING AT WARD NO_,.<M§ '
ccv, sANGAMEsr1vvARANAG;aR'~~--'
BELGAUM ~ .. ..
[By Sri A'.G.MLILAwADMATH,.';xr5Vo'CATE FOR
p.A.HrQ.I,1>ER;%%oE A»1A;«A2B; A3A, A313}
W'/0 MA1M.UDDIN "T,(5fiGAL
AGE}:'-434-Y1:A__Rs.V ' ~
; ' 'OCC: HQUSEHOLD WORK
~ R/0 R4248/A,...K.ADAK GALLI
135;}. .C_}AU1\/I
.- MAHAMMADSAHEB TORGAL
" ~ AGE':;4oT:¥EARs, occ: TRADE
mo. 4.248/A
GALLI
BELGAUM
SALLAUDDIN
S/ O MAIMUDDIN
MADSAHEB TORGAL, MAJOR
K/H
2B
2C
21)
2E
2F
JAFFER MAIMUDDIN
MAHAMMADASAHEB TORGAL, MA..I0R----_f'
ISHMAIL MAIMUDDIN "
MOHAMMADASAHEB MAJQRTT» Q *
SMT. MUNEERA, w/ o»wAHEI::DA-- SHAIK A .. " A'
13/0 LATE MA1MUDDImv;QHAMM_AD_sAHEB"
TORGAL, MAJOR
SMT. ANEESA 13A"rANA_;" ' _
D /0 LATE MAIMUDDINMA: 'VIMADSAHEB
TORGAL, MAJOR -- _ " i
SMT. JAKARIA M_U1\_1'EERA V.
D /O I.-ATEJAMAIMLTDDIN :wA1.~LAMMADsAHEB
TORGALQ'
XVSUEHAS-"NA_GAR'«vM,_ .
NEAR F1'x_}(REA. '1\zmus--J,,; j;., BELGAUM
NIN'G-AMPPA 'R.AN.c§ApPA OBANNAVAR
" "SINCE DE{C'EAS'ED BY HIS L.RS
A .. ..... ..
W/'~O'NIN--GAPPA OBANNAVAR @ CHANNANAVAR
' SBYEARS
' oCC;----H:t>UsEHoLD
12/O MUTAGE
fmLUK: BELGAUM
AFPAYYA NINGAPPA OBANNAVAR
@ CI-1ANNAVAR,AGE:2O YEARS
OCC: AGRICULTURE
6A
R/O MUTAGE
TALUK: BELGAUM
GANAPATA GOVINDSA WALVEKAR
AGE: 45 YEARS
OCC: TRADER
R/0 SHAHAPUR
KACHERIGALL1
PRALI-{AD NARAYAN N-'ALAGE
AGE:22 YEARS, occ;sTU;3VENT
R/O SHAHAPUR .
NAVIGALLI --
HOUSE NO. 162'9,,£5ELc3AIJM " _
KALLAPPA_BHAIRAPPA CHL§U3;?'ULE
AGE: 44 YEARS,;_OCC': :BURO Q}:)' " '
R/O BURQIOD (;;xLLt;"' " --
'
"
CHOUGALE
AGE: 60 YEARS, R;.Q'H.No. 1895
BURUD 'GALvLI,A BELGAUM
~ Y}_E§LL1kPP}{'SATAPPA NESARIKAR
A6133! 35 YEARS
A " " ovcc':-B'URooD
' 1?./'Q"l887v; BAPAT BUROOD GALLI
" " BEL(}gxtJM
SVHVRI' 4M' ALLESHI
S5/O LATE YALLAPPA STAPPA N ESARIKAR
MAJOR, R/O ELNO. 1887
GANAPATH BURUDGALLI
' BELGAUM
l:x/
10A
11.
YELLAPPA SHIDDAPPA KAKTIKAR
AGE: 45 YEARS
OCC: BUROOD
R/O BAPAT BUROOD GALL1
HOUSE NO1898, BELGAUMRA
MARUTRAO DATTATRAYA K1»1AN:Az>URKSA£<. ''
AGE: 35 YEARS
occ: TRADE, R/O 3522
NARVEKAR GALL1,
JOGLEKAR CHAWL
BELGAUM ~
CHIDANAND 1 " "
SINCE DEs:.E'ASED BY-~HIS L;RS
AVY
W/O CFi1Di%'sNAI'JD"PP\1'iL__
.AGE:"MA;JOF?{, "0CC';"H0US'EHoLE WORK
R/Q I{AI[;£.S.Ij1'1'~§AGAR. _ - '
BE}-II.ND S.P.'€~. VOEFi~cE_.
BEEGAUM--- '
4; ' A:s1AN'i*R;'x<j"r?iAN'S'1\/IANTRAO PATIL
" A_{_3E:.46 ~
Occ; PRIVATE SERVICE
" _ R/0 _65 '/3, BHANDUR GALLI
S .SA.UM'
L,-MQMIBAI NINGAPPA PAWATE
" ,.AGE: 59 YEARS
OCC:HOUSEHOLD WORK
A' R/O 4.471, CHAVAT GALLI
BELGAUM
14.
17A
SHAM RUKAMANNA HASILKAR
AGE: MAJOR
R/ O BASWAN GALLI
KHASBAG
ISHWAR NAGAPPA GOTUR
BAZAR GALI
KHASBAG I
SMT. SUMITRA DONGURUSA 2
1 174, SARAS GALLI
BELGAUM.
SMT. LAXMIBAI
UNDIERE, 335. MUJA'JJARf<Sg1xLL1SS;S_ _
BELGAUM I '
VIRUPAXI 'NA;'SA1§=PA V.
SINCE-D-ECEA_SED SY__1,.1:;S V .
S'/.0 V1RUPAXI.G'O_TU.R
AGE; 22 YEARS; QC:-cz' BUSINESS
R/O HOUSE 'NO~..21';~"BAZAR GALLI
;'K1~1ASBAG ' '
" ""«:.BE;L{}vAUMV"' « ..... .. v
. JSvH'IwxSfiANKAR
.VEERUPAXI GOTUR
.. AGE:--V'j21.?YEARS, R/O HOUSE No.21
GALLI
KHASBAG
BELGAUM
PARWATI
W/O ISHWAR GADAD
AGE: MAJOR
17D
17E
17F'
OCC: HOUSEHOLD WORK
R/O HOUSE NO.21
BAZAR GALL1
KHASBAG, BELGAUM
SI-IAKUNTALA
W/O SUNIL KALLED
MAJOR _
OCC: HOUSEHOLD V V _
R/O HOUSE NO.21, BAZAQGALLI " -
KHASBAG "
BELGAUM
SM'I'.SUNrrA V i
w/O RAc$:LAPPS:S'I=i11?OL'* E
AGE: O(3_C:HO~USEHC)'L.D WORK
R/O
EAZAR OjALL'I"--._ S
:'E§ "
SMT." .\ V
W/'O UMESH "BAS'T£\_WAD
AGE:°MAJO1~2._ ' '
s ' HOUSEHOLD WORK
" R/O HOUSE»N.O«.'21, BAmR GALLI
KHASBAG
1-7"c;-V
SiVrf.;'Ej RAJESHR1
W"./O BASAWRAJ TIGAD1
.ACgE:' MAJOR
OCC: HOUSEHOLD WORK
" R/O No.21, BAZAR GALL1
KHASBAG
BELGAUM
20.
21A
21B;
CPLANDRAKANT RUKMANNA HASILKAR
BASWAN GALLI
KHASBAG
MADHU RUKAMANNA HASELKAR4 A H '
BASAWAN GALLI
KHASBAG
BELGAUM
PRAKASH RUKAMANNA FLASILKAR" .__ S
BASAWAN GALLI_ "
KHASBAG ~ "
BELGAUM
SHNARAMV.NAGAF'PA.C}O'FUR " ..
SINCE DE"C_EAS}Z1l_D 12§Y;~11S, _
SIiAl':$I'TAWW"A*'.__ g
W/O SH1wg.PPA G40'1*m2S« 4
AGE':-S5i:YEA::zSA OCC: }~1OU'SEWIFE
R/ O H.NC1.V3._1';' VBA.ZAI2,c2ALL1
KHASBAG ' Q
BEL.GAUM*.
'RAJESH-. _ "
~ S /_fo SHIVAPI%'A__.GOTUR
A'GE.:.'3Q_ YEARS
« " " 0Cc:'BUS_1NESS
BAZAR GALLI
BELSGAUM
'S.§NJAY
A S/O SHIVAPPA GOTUR
AGE:23 YEARS
' " occ: BUSINESS
R/O NO.21, BAZAR GALLI
E
21D
21E
22.
KHASBAG
BELGAUM
LALITA
1:)/0 SHIVAPPA GOTUR
AGE: 19 YEARS
OCC:NIL
R/O NO.21, BAZAR GALLI '
KHASBAG
BELGAUM
SHOBA
D/O SHIVAPPA GOTUR
AGE:18 YEARS
OCC:NIL , _
R/O No.21, BAZAR GALL--I*
KHASBAG,' _
BELGAUM I
GHUDLI:5AB 'I4-:1UGUf1"sA1~£E13" BAGAWAN
AGE:.1V£AJ'OR'« -- I
o'cC; 4_pENs;m1E22 _.
R/O._C"FS, 1xIo.'42~18'*--«. %
' ~
4 'BELGAU-M " '
V éQMMIs§,f()NER
BELGAUM URBAN DEVELOPMENT
TAIJTHORETYIBUDA}
-- "--~'AsHojK ANAGAR
BELGAUM
MAHADV BORKAR
.. AGE: 62 YEARS
H v. jocc: RETIRED
R/O GONDALI GALLI
BELGAUM
25 sNn1zmmNA
\Nfl3NOORAHAMEDSHHKH»w-
AGE:45YEARS ;
OCC:HOUSEHOLD\NORK 2",~ ~.~_ '.=_«_
Rn)GUNTHAKALutm,_ 3': HRESPONDENTS";
(BySfiIUflHRA&PATE;ADVOCATEFORPbL sRicHANDRmymnH}&GoUphaADVOCATE F0R.R4,R18;R2Q, ""
SR}C}{RNWL"ADVOCATEFOR}%2Z SRIMJ&HUUWMfiADVOCATEFORI%2& SR1MMQwMVTwHmfiAGANLADVQCATEFORILZQ This regulaif first«appeal..isf--fi1ed"ii/s 96 of CPC against the judgment a"1:d"'de{:ree4.j§it.V"1.8:033000 passed in O.S.N0.68 of 1966 by the--- P;jinc.ip'a1"v--C«iviI Jfsjidge, Sr. 1311.. Belgaum, dismisvsitig*-tht:» suit;"fo1**partitidi1"and separate possession and etc. ' " t This 4' a.ppeaf hon for final hearing this day, N.KUMARfiI., cleiiverecl the following:
"Vm-JUDGMENT .....
f if " j iari appeal by the plaintiffs whose suit for partition afidaifsepafai.ef=fiossessi0n of their legitimate share in the suit schedjtile Iafoperties is dismissed.
V4
2. For the purpose of convenience theare referred to as they are referred to in the or'iginaI'..'suit-.2: V' h
3. 'A' schedule propertiesAA"a1'ei all properties» 7. whereas 'B' schedule properties if schedule 131'0l3erties belonged'to"Masahi._ 'died on 21.03.1965. The plaintiffspv.l-are:_:'he'r._. daugritersf The 21"
defendant is the sonf wife of the 2""
defendant. The_:ca._se oflthe made a will in favour of who are her only heirs on exe'cuted it. Under the terms of the willxall the j'y'.lrere entitled to equal share. After the deathxef the plaintiffs demanded the 2nd V. de_fei'9.da_rit to give th.ei.r'share, he in collusion with defendants--I 'refused"t.o give the plaintiffs their legitimate share. On the"'e'ontrar;y relied on a document alleged to have been executelda deceased Masabi on 21.02.1965. She was too old if V' ..Wl'1en she died and was suffering from paralysis for about three lllrnonths prior to her death. For sometime she was an inpatient in the civil hospital at Belgaum but she was discharged from the hospital, as the hospital authorities found th.at'v..the"'_gase was incurable. Masabi was taken to home andfshe kept in the house bearing crs No.42/4-8/.C~"whereT.plaiieit1fl.VT'Io:;3 't-we's..
residing. Masabi died in the said l by plaintiff No.3 and her twosisters, llplaintiffséml owthg to old age and severe attack not in a position to take care vof--zldierself.?i:.b' not walk or talk. She was alwaysvin a ever since she was discharged. :died on 21.03.1965. On the alleged @111, Masabi did not possess physical so as to make any will or to understand 'its a inglredvients and implications. The alleged will " relied by defendants--1 and 2 and 4 is a forgery. From the alleged will it is quite clear that Masabi was not thdauthorpdthereof. She has not executed the said document.
i)efendai'1ts--1. 2 and 4 with the selfish motive with a View to g1.1lp'.--'the entire property of Masabi, have hatched upon a plan M to disinherit the plaintiffs. The plaintiffs did not admit the due execution or attestation of the alleged will. The alleged will does not bear the thumb impression of the deeeasetgiffil/I'asabi.
The deceased Masabi was not in a position to of the alleged will. The deceased,' towards plaintiffs and defendant desired::"'thaéV_her children should share her propertylllequally 1 will on 27.08.1964 when she giegvflthtvfbequeathing her property to her ehildfrégn eqi.ial.. who izvere her only heirs. _ ' a View to see that the plaintiffs do not get. in the property left by deceased Masabi has.drn'anaged, tokireate a document alleged to be the < 'ii.nEfaVo_ur of"(ievfe.ndant No.1, his wife with the advice of the ' defendant who is dealing in selling building sites, 'forgetting:if-"tha.1'tVVthere was an earlier will of his mother dated
27."os.:9s4'. The will dated 27.08.1964 was not revoked by if Masabilllduring her lifetime as required by Mohammedan law l/ _ 17 _ will and they were required to consent thereto. Similarly, sometime in the month of December 1965. the defendants--2 and 4 took the signatures of plaintiffs on a English and they represented to the>AApiaintiffs**th'a~t the share 'in the property was to proceed against thief} petiti.on thy"-the;1v.first"'* wife of defendant No.2 and theywere"recfu.ired,to On this representation they ppsignaturev':of.':the plaintiffs on a typed paper. The the contents of the typed paper. At brought to their notice that ;the'y_.-.'wei*e lireqvuiredv Tto..._1nake an affidavit in connection. "alleged .will of the Masabi. Now it transpiredlthat "the'..fthree,.:l'typed papers were in the form of affidavits. Tuheselplaintiffs did not sign any typed paper as an b:"u~t_.defend'ants--2 and 4 have taken the signature of the above representation. The alleged affidavits' canlnot be read as admission by the plaintiffs to the a1leged_wil1 of the deceased Masabi. On the face of it, it is a document. No document has been executed by deceased iviasabi except that she died in house No.4248/C k/..
after being discharged from the civil hospital. execute any document in the civil hospital also-.f:
6. Deceased Masabi being affeetilonatevvpitoxuyaurds 4 the plaintiffs, it was impossible in thenature g§,1':;a:i1ngsf' she would have thought of disinheiitiiig the plailiitiffsfainldlldirecting defendant No.1 to pay "them R's'.g0nhIf.4 "Defendant No.1 is not financially sound Defendant Nos.2 and 4 'property is disposed of as if it belongs than the heirs of Masabi.
Ultimately defendant No.2 and some portionorriay No.4 also. Defendant No.1 has been Chosen to for disposing of the suit property «. angdinEfact__deferi'dan.t. Nos. 1, 2 and 4 have disposed of about 18 ' j"th_e said lands. The defendant No.1 does not p.os'sess 'property wherefrom she could pay the arrears of non'~agrig:ultural assessment. Defendant No.2 fearing that if he 2 izveire toflsell the property, his sisters may claim share therein, deferidants--2 and 4 have made this plan of showing defendant No.1 as the heir of deceased Masabi to dispose of the --property and ultimately the amount was to go to defendant entire contents of the will are highly suspectedandv 'an 4_ forged will because it must have _ after the death of Masabi by persotnsinotv state of affairs regarding thelproperty of by alleged will defendant l_\_lo. 1 who got interest in the property and defendantdl\l0.4lli= l --a_ Power of Attorney from her has noright to"dispfosVe' property or any part thereof. of any will when she had already oiae 1 964.
it that the suit property was forfeilted. by it Government for nonpayment of non» V' agricu1dttnlalA"assessment. Masabi made an application for restoratfonlp. order of forfeiture is illegal passed Without jurisdic'tion_«;"' Therefore, the order of restoration now passed also havsilno legal basis. It is a nullity. In spite of the order of it forfeiture Masabfs title to the property did not come to an end. M, After the death of Masabi. the property belongs to and defendant No.2. Defendant No.1 is a trespas'ser.V paid any money she has not paid itcut. of plocl«:et,x'.5hej« has paid out of the sale proceeds of soine' of sales are unauthorised. Defefndantsshfi 'yendees from defendant No.4 who allegeVs"vto"'hold..a"'Pnweri of Attorney from defendant No. 1. yoidpand unenforceable against the plaintiffs, 'not bound by the said sale upon the shares of the paragraphs 9(A) and 9&3} \2i;tere__~L.ii§-...pla.int. The amended plea is to the effect thatpflunderfltiie 27.08.1974 executed by the deceased Mlasahi' and even apart from the will under the }aw__of inheritance, the plaintiffs would be entitled to the as co--owners along with defendant No.2. The po's.sessvi0ni4ofldefendants--I and 4 to 22 of the suit property is that oftrtespassers. As such the plaintiffs as owners of the suit have a right to recover the possession of the suit ___property from defendants--1 and 4 to 22. Therefore, the plaintiffs have filed this suit for actual possessionVofitheasuit property from defendants--1 and 4 to 22. "pigm- column was also amended seekjr1g»--.the delyiyeiy Vofj}ae'tuaI; S possession of the suit property Alternatively for a decree granting them in the? suit properties. By par_agraphs.._i'S§:[r1'i]_ seyerai aid-ieiiaptiion made by defendant No.1 are set" the said aiienees were also made 'asv_parties"to:'the' 1' if
8. the defendants have entered"appe:aranee."' defendant filed a detailed written statemlent of the plaintiffs. She denied the will datedf'2»7the right of the plaintiffs to the suit sc]fie'd1.t1_e propertievs...:.n'1der the said will}. She contended that ' defenpdanti is not in possession of the suit lands. She also denied 'the7pja1I'eVgVation that Masabi was not in a position to talk and vgasypalways in a semi--conscious state. She further denied th'e--~.alleéation that she had no physicai or mental strength to finakfe any wilf or to understand the intricacies and implications A/..
of the will. She denied the allegation that tiL.l_.eV:"'-fiIE1:f'I1.f{iffS' signatures on the will as consenting witnessefswas' by misrepresentation. The submissio1'1"that is a forgery was denied. All the allegations contained in the plaint aredfdeinied. that the restoration of suit lands to deVfenudant" fresh grant by government in her she acquired an absolute title to the that the plaintiffs iofbresdtoration and at the same time The contentions against forfejfgre_wiete'v:1eg_a'tiVed»_fhythe revenue courts and the order of forfeituAreV._ The State had even been in possession since aftervthe date of forfeiture till its restoration to " specifically contended that the will dated hpashbeen executed by deceased Masabi by free will and_ fu3.1~kn'oiv1edge of its contents. She was in sound and disposing state of mind when she executed the will. The dficefased Masabi was fully aware that the forfeiture had been __1iphe1d in all the revenue courts and that her daughters were V. not Willing to prosecute the restoration proceedings: tlihatpfiwould require a considerable amount to be deposited; deceased Masabi desired that the fruits of the'eprocee.d.ings'i.be e'11j4_oye'd_V s. defendant l\Io,l who is the wife of Zbherlonivy with him. She managed to to selling some of the plots and action legitimate. Therefore, she sought vfo'
9. gxjd file any Written Statement? tiibannavar filed a detailed written agreement entered into between Masabi for purchase of the suit schedule p'ayInent...'of a partial consideration under the agreernent__ and" the..«'vai:*io1,1s iitigations which cropped up ' be"tweenV'then9i; .41" defendant is the Power of Attorney Holder of t1'i.e'WlSt A who has filed an independent written staaternlentnreiterating the stand of the IS' defendant. The other defendants are all purchasers of portions of the suit schedule "property both from the plaintiffs as well as from the K/.
defendants-1, 3 and 4. Each one of them have lll€'~'i:']t:'i1gthy written statement raising various legal pleas.--,4'::Asv .thes:"pre_sefit.4' suit is one for partition and separate .'_poss'es,sion._by'7_thes. ' plaintiffs against their brother and;"his::wife same from their mother of will, the stand of these property loses importance. Similarly';'--"th.e though admits the relationship between the*partVies:=andj nature of property, claims exclu properties under the will of Masvabif the plaintiffs' suit has to be will is not established, the plaintiffs are entitled to property. It is in this context unfortunately'-»t_he' written statement of these total strangers to familyi'v.rho aremplurchasers who have filed detailed written V' statei1iei1t'1'aising all possible pleas have eclipsed the case of legal of the deceased Masabi which has led to the 'Court-fiiaming more than 30 issues which do not arise for l' consideration in this suit. Voluminous oral evidence and _documentary evidence adduced by these defendants is XV.
recorded which is the cause for this case awaiting "its final decision at the hands of this Court for the Therefore, the written statements filed by and the respective documents are hot set out in detaiE_as"in 'the 7. L first place they do not arise for consideration aiidin thVe:.:se.cond place, it need not be gone intotirittthese it
10. On the aforesaid §leadinig«.%the trial court has framed the foilowing issues: h 1} eétecution and attestation of 1' tpiit Masabi dated 27th August, ' ._ 1V964?'VIsVittvv.ai-z'd' and legal? _ .2) If._:so.r.doe's defendant No.1 prove that the said will was"'r'c..vo.cated by deceased Masabi during her life either expressly or by implication? if yes, what 1 it " 2 it :53 - effect?
3.}: t "V ":Does she further prove that deceased Masabt was t in a fit state of health and mind at the time of executing the will dated 213' Feb. 1965?
8)
4)
5) 6} M7)--..
Does defendant No.1 prove the due e:tecuiion..Aand attestation of the Will executed by dated 21 ~'"'- February, 1 965'?
Do plaintiff prove that'».:theires3'gnature's 'rta$ten on the alleged uzill dateet 215: February l':965by exercising fraud aria"'misrebr"esengtatior: byaeft No.2 as alleged in para_6._of the..plaint'?' Do plaintiffs of forfeiture and restorationjbof v'th.eVV'State Government in _ bh"Wvhettzer_ the sates' bylldeft No. 1 in favour of the other ., ._ b {plain tjffs ?
d'~efts__areVbinetirag on,»_th.e_ plaintiffs? Does' olefevnaant'.l\i'o=:l.-gsirove that the sale made by her . are forlegai necessity and binding on the '_ V that the acquired absolute title to ' the_suit_land by virtue of afresh grant?
""~«_.free and jurisdiction?
tsvttie suit properly valued for the purposes of Court it/l
11) To what share are the plaintiffs entitled?
12) What order?
{H} As per the order dt: 31/} following additional isstie No'.{1}.has -beer; {1} whether the suit: is not' have sold their title . inter-,est1b in" the Sltit property? _V vs (111) On 17/4/ additional issues have been.fraT"€*Ci;;.. _ T, V " _ ~-
[2;'~» the'=defehdahts 3(a) to 3(6) proves that _ ~ defe;r1danit"1'\[o;2_ 'sold his 2/501 share in the suit " properties CTS No. 4248/ C to T N Be'Igur;dkar oh 9/ 7/ 1 968 as alleged?
V {3} Whethehrhhhhthey further prove that said Betgundkar ftransferred his right, title and interest in favour of deft No.3 by assignment deed dated ~ A7/6/1969 for Rs.10,000/~ as contdended? is {#1}. Whether they further prove that the plaintiffs 1 to 3 have sole away their 3/ 5"? share. in the suit property except CTS No.4248/ C for Rsz.15,000/- on EL//, (5) (6) UV?
(never .1 M (31 9/ 7/ 190?4 in favour of defendant _.No.3 as contended?
Whether they further prove that the'.
defendant No.3 has become the"o-Lvh.er"~¢f«.the'saith. properties and the inherited:
contended?
Whether defendants jvas. 3(a; .;Ea'~3,r};) aj>ganatzeafar allotment suityaschedhute 'A' flproperties to their share by Qfparti'tioriv--assoughtfor? Addidonat rranaaa an 6/ 1 994,--
tneh prove that 15' defendant has _ d ::Iegazzg'vsaia_fo:fs--M14248/c in 1976 and also CTS '- No.4,248;'.IA-.and"4241 /B to deft No.23 as alleged? uWh.ethe-r the ptaintyffs prove that CTS Nos/1»248/A, A4248/VB""and 4248/C they are having joint 1/4m and the sale in favour of deft No.23 is not Irv) ' * (9) upon them as alleged?
h 'Additional issues framed on 19/ 1 1 /1994:
Whether the defendants No.13, 18, 19 and 20 prove that they are the bonafide purchasers of plot No.81, 83, 80 and 82 for value respectively out of (10) (VI) ('11) .['-/1'1) ., r12; % (1:3) Rs.No.2/1, 2+2/A1, 2/3, 2/4, 2/'5:,':'v"-:§ji1'A..Von 19/10/1966ascontended? ' Whether the defendan-i"No.-- 13, "_1Vprovex'thabtj' they have perfected ;titlef_"over1the~ said by adverse possesspionaos contended? ' A . V H Additional issue on 7/ Whether _ proves that plaintiffs No.2[a] to 2lc)_ and interest of deceased ;;)laint§fj' .._andvthat they are not the _ tended in additional Written Statement?
on 1 5 / 9/ 1 995:-
No.25 proves that he is the L' bonafideVA'p.il'rehaser of plot No.126 and 151 out of u"f?s.No.»4/IA "for valuable consideration without notice Q,f.anybody's claim as contended? égnddifional issue framed on 1 2/ 6/ 1997:-
iilj-_W:':hether the defendant No.1 proves that the suit is V badfor rnisjotnder or parties?
Additional issue framed on 25/ 2 / 2000.
(14) Whether transaction of defendant by Rule of Lit Pendense as contemplated s ofitfie T.P. Act? " ' " "
11. It is unfortunate that tiinethe.case_i3rasfset"'.. down for trial all the three»'plaintiffsrdied. ejridence recorded on behalf of the is that .ls§onVH--1'n--law of plaintiff No.1 who pro'nab_ly ignorant about the family affairs as he wasga the family and it appears his tile. 1960. He has been examined have also examined one Hussainsahelo;li*¥aniffsa'he'oBelawadi stepson of plaintiff No.2 in support of: theirbehalf of the defendants, seven uritnesses haVeV_l_lbeenl' examined as I)Ws»1 to 7. The 15' dsefendialnt fwas examined as DW--4. The Power of Attorney 4-5?'--v.--defendant was examined as DW«5. Other witiiesses aired all purchasers. They have produced in all about 78 doc'a1d1ents which were marked as exhibits--I)1 to D78. The court on appreciation of the aforesaid oral and Wdlocumentary evidence on record held that the relationship between the parties is not in dispute. The suit_:"s_ch_edule properties belonged to Masabi exclusively. failed to establish the will dated §2Z.()8.1964"which'-they propounded in support of their claim. said' 'isenot established, the question ofreygocationdxofp not arise. It held on the ezgeciitionl will dated 21.12.1965, the testatoif"'i\lasahi§p.'ixfasina.sound state of health and mind. Thelsi due execution and attestatici'n'o;f her. The signatures of the p1aii3.tiffs"were" thevdyvill as consenting witnesses for be:'q_ueathAing..th»e"entireextent of property owned by Masabi in faVour»,of»the'= V15'~.VA'defe--nsdant. The plaintiffs have failed to establish the1:V_V_V'cVaseV' of fraud and misrepresentation by devfen.da'snt in obtaining their signatures on the said will. is to establish their case that the act of forfeiture' restoration of the land by the State Government was virithout jurisdiction and a nuliity. In View of the finding
--,.th-atiunder the will the 18' defendant became the absolute __(§w"ner of the suit schedule properties, the question whether the sales effected by her would be binding on the plaintiffs or was it for any legal necessity would not arise. It also heid"'»the 15* defendant acquired title to the schedule property. the will and not by virtue of the restoration mad'ey.in.:her lavolur. The suit is properly valued. The le_>;ecuted".by it the parties are all held to be proved.._ Therefore, the' proceeded to dismiss the suit ofthe plairxtiffs=.. jhlxggrieyed by the said judgment and decree of the lcourt dismissing the suit, the plaintiffs have preferredAthisrlregularrlfirsti__appeal. learned counsel for the appellants 'lassaililrig.tI'1e_:j'u:dgment and decree of the trial court contended that the of the trial court that the will dated exec'uted..by Masabi in favour of the 18' defendant ' "proved; illegal and contrary to the material on record. He eeetenee;i; fire't1y, on the date of the alleged will if it is held [ that the aforfeiture of the land was valid as held by the Court, " pg Ma-sabifllwas not the owner of the said property. En other Words, 'shelldid not possess the said property. Admittedly, on the date V. of the will or on the date of her death she did notfpossess the 'A' schedule properties. Therefore, she cgoiuldfnoi _.Vi1a"v.e bequeathed the property which isnotposselssvekjllbjgllhelriipandas "
such the bequest is void. Secondly, he'~eontend.ed l Mohammedan law before oould has tobe established that the testator :i_n=.a of mind at the time of exeoutioiitfiofp the instant case. admittedly Masabi signed. the gift deeds on 25.11.19644_bee;ueathing llprolperty in favour of her two daughters.44.ll the 1st defendant. The endorsementlon~theagift_Tdeed discloses that the Sub--Registrar came to thei.house""a1idu"tlie documents were registered in the resicjiengre at pre_lmisesl'No.4248/ C where Masabi was living. It is had a paralytic stroke she was unable to move her health deteriorated and she was admitted'toIthe hospital, she was in a semi--Conscious state of mind," she was unable to speak. Therefore. when the alleged u'r.v»v'i1_1 said to have been executed on 21.02.1965. she was not in a sound state of mind and she died within one month from V. um the date of execution of the will i.e., on 21.03. trial court has not properly appreciated the admitted"eézidienifieon record and erred in coming to the COI1Cll1SiC)i1"$l..lf1lC she was inga sound state of mind and the burden isofn the ._1S':. d'efendant to"- prove that she was not inha _sound,_state contended that there are this Will.
One attesting uritnesszis in case. Another attesting witness was ll proceedings initiated by in. against the deceased Masabi's ittitnesses have turned hostile. They have 'vsi,:ap_porf€fi.\lh_eexecution of the will. Similarly, the scribe of examined in this case. He was exaniined in theearlier proceedings and his evidence discloses . " that he wroteflthe will, he wrote the will in his house in the dictation of the second defendant and nothing.~ happened in the presence of Masabi and in his presenceexcept writing the document. Therefore, he contends lflithe execution of the will is also not established. In the other case an affidavit was filed to that effect. However, in spite of several efforts h1S presence could not be secured 1n"the«.p'iiesent suit. The 2" defendant son did not file any vvrittenustateirnenvt, did not step into the witness box _to...p_roVe_~about'.ft_'rie' e_Xecu_tio11. of the will. The will was not regiseterejd thot1gh~ lgeotithe gift deeds registered whe'n'~..she ee'e>reC1,1tedj "same 25.11.1964. The will is in it is shown that she has affixed at to the will. That apart he contended the 1st defendant clearly ellove and affection to her daughtersjltlxll also evidenced by the fact that 'property to her daughters and gifted one :.tl1.,;daughter~in--law on the same day. Third " plaintiff _ resided. with Masabi and took care of her. " reasons are given for disinheriting the daughters and V bequeathing the entire property to the 15% def.F:nda.:1t,3§the daughter--in-law. Therefore, the trial court comniitted a serious error not only in hoiding that the will is executed and in holding that all the suspicious circumstances have been dispelled by the propounder of the V. will. Therefore, he seeks for setting aside of the and decree of the trial court.
13. Per contra, Sri VidyadharChouglalpleariievdrcounsel; for the defendant No.1 contendelduthat the V witnesses to the will turn helpless.
Then the execution be t proved by other evidence as contained Vitfhevllndian Evidence Act.
In the instant llgiven evidence about the due v"'asi'lv.everyti1ing happened in her have not only affixed their bequeathing the entire property i.e., more than In favour of the 181 defendant, but death "ofthep testator they have sworn to the affidavits V giving ..con_sent and relinquishing their claim over the suit if three affidavits are sworn to before a Notary who in' fact was examined in the earlier proceedings whose evidence is produced in this case and marked as an exhibit. It 'the 1%'; defendant who fiied the appiication for restoration of li/' the land, transacted the same, raised funds, the conversion fine and got the property restored. ..did not move their little finger to get the restoration' only after restoration is made, they are claimi-:ng,_;§ysh.are in'7the.__ "V property. As the deceased property to her daughters were not getting the lands restored, coupled with that tl1e""lS* defendant was not only an astute 'lady of Masabi till her last day andgthat ffdgdiidnd and addicted to bad vices, the entire property in favour,' of -'which she could do only by obtaining heirs which she had done both during her ulifetirne and after her death and therefore, the the trial court that the will stands proved is evidence does not suffer from any legal inil-rmity 'and therefore, no case for interference is made out. l°W--1 identified the signatures of the plaintiffs on the will as in the three affidavits which are marked in the case ex:hibits~D3, D4 and D5.
14. From the aforesaid facts and rival coritenftions the point that arises for our consideration in thils under: _ "Whether the finding of the"i:rial Courtiltfitiililthell'3]A will exhibit--D28 is <:iLily__exectited" beqi;ei2th.ing property in favour cjfuh.l"defendant"w.No. 1"', thus conferring exclusive "to her»- requires interference. "
15. parties excluding the purchasers ":oi"'therI1 are Mohamrnedans. In the:jvhvabserIee_., of the daughters would have got 1/5 share. son,.,theV'2i5d"dheferidant would have got 2/5 share in the suit schedtxleproperties. The said right of the daughters is the ground that the said Masabi has executed a will dated 2'?.'_:,0?f;'1eel§5--Exhibit~D28 bequeathing the entire property lfielohgirigllittli 'her in favour of the 15' defendant. If the will propounded by the 1st defendant is established. plaintiffs are A Q' 'entitled to any share in the property. Therefore, the entire X/A controversy revolves around the due eXecutionV_o1'~_ the will propounded by the 18* defendant.
16. Before we look into the"'ev1'den'ce orjil'record:}tc3i'._findj' out the due execution of the will, itis the law relating to wills as allaoéiicablel.to:__Moharnrtte'daIi's in this country. Islam has created b3rlg"1'vi.ng testator a limited right to dispose" 'according to his wishes and at the same'.time,:.ti'1'e»piowerhas beenflimited to safeguard the interestof heiirls. Musa1man's point of View 1s"a'i'tii,\f£:1e in-S"trti1ne11t, its exercise is regulated by the Quran._ It offenrs.to.the,'t'eStator the means of correcting to a certain e:>t'Lentv.the._1a\v of,'-~success1on, and of enabling some of those relatives uwhvomare excluded from inheritance to obtain a » sh-are 1n'«his_dpvroperty and of recognising the services rendered a'j;;.VsVtranger, or the devotion to him in his last Ino.r*r1eri--t:s.. the same time, the Prophet has declared that the h pcvsfer should not be exercised to cause injury to the interest of \/..
the lawful heirs. The essential requisites of a valid will under Mohammedan Law are:
la} The testator must be competent to r'rietkc2:
(b) The legatee must be compe-tent--'_'to 'legals-_y or;
bequest {C} The subyect of bequest be a brie;
{d} The bequest mustV"i'b.e°';uithin" the' imposed on the testamentary potuer_jq,f'a"Muslini' Under Mohamrnedan.law,f-,n.oliiefiting is required to make a will valid and no particular' ,fQ_,'~I'11",.pf..Al'i»"erbal declaration is necessary as the_iritention.oi' testator is sufficiently certain. Principles of Mohammedan Law by Mulla statesthatsu'bje,et"t,o'the limitations hereinafter specified every "Mohammedan sound mind and not a minor, may
- his pronerty by will. A Mohammedan will, through in._w1itin'g.vdoest.not require to be signed. Even if it is signed it does no~t_frequire attestation. The reason is that a Mohamrriedan will does not require to be in Writing at all. One limitation imposed on a Mohammedan while making a bequest is that a bequest to an heir is not valid unless the l/ The first requirement under Mohammedan-.___law for validity of a will is the sound state of mind of In the instant case, Masabi was aged about 75 years.Aognltliefdate of her death. She owned the 'A' roughly about 32 acres of land. back" inflgtheilvlyear 1948 she got the said la1i_lld'<--..gzonvefied purpose as per exhibit-D7 After the said conversion, she has forrnésdg 'layout in the 32 acres of land. She had for:ned...l_6-:2 she sold about 47 plots. shellconirrilttedldefault in payment of conversion. -Commissioner forfeited the land. The salduorderlof on 29.07.1954 as per exhibit' D~2.5'.= She 'challenged the order of forfeiture by preferring an . appeal"-befo're the Collector. The appeal came to be rejected on fr~A:ggr1eved by the same, she preferred a revision peti}t.ionV.heili;re the Bombay Revenue Appellate Tribunal. The revisionreame to be dismissed on 02.07.1956 as per exhibit- In fact, she had filed an application for restoration of l land during the pendency of the proceedings which also came K/..
document because of ill~health is unable to come..'th;e'"<..o'ffi_ce of the Sub-Registrar. Therefore, this singular ..fc:lea1=1.y establishes that on 25.11.1964 Masabi was 'n"ot~-- ,z':";§¢s;t1oii' move out of her house though she ben1elntally=..,alcift to execute a document. When.»sh_ea waseexecutinglai way of a gift she did not disfivfiiniriate daughters and the daughter~in--la;yi;;i_'the.V_ns'arne loyefland affection towards all of them. if the property v1'z., 'A' schedule her from giving that property and daughter--1n-law as she did .hotase or to execute a will and get it registered, it If yvas to give the entire property to I the tlaiightewr-énélailiv after obtaining the consent of the legal = heirs, that was not done. It is because she was conscious that 5h? to make a will on that day as the said property wa».s_Vforfeit'ed.« the Government. Under Mohammedan law, a bequestlniay be made of any property which is capable of being V'_Atra'ns}ferred and which exists at the testatofs death though it need not be in existence on the date of the Will. As she did not H/.
have the power to transfer the 'A' schedule property date she made those two gift deeds, she could not the property on the said date. Now"'the. becjfuestifl vxall isj stated to have come into about three months after thevivpfdate of Itis specifically pleaded in__ the "pthatpAMasabi..,ha.d a paralytic stroke. She was She was discharged from the hospital' as them that nothing more can be brought back to the house is adduced. On the date of the ~WC'r:¢':.'E~¢&d..' The Zed defendant did not step Into the't2gzi4tnesfs'v.bortA§' defendant who stepped into the VV1t1'J:€:SSppbOXLV hasgiven her version about the execution of the f if will to lvvhichpwe yxvrillfffadvert a little later. But that by itself is Iliotff for the Court to hold that though the pIa.intiffs.'pll:eaded all these things, they did not adduce any evidericeland therefore no inference could have been drawn by thetrial Judge. The burden of proving that the testator was in a} sound state of mind is always on the propounder of the will. S/.
When once by documentary evidence, it is establishectthat the executor of the W111 was unable to move out of 1.e., on 25.11.1964 and if the will has come into on 21.02.1965 one month prior to the....date c:f.fher':t.death,'pA.a 'duty. was cast on the propounder to show she was ifnfa-,.sound state of mind on the date o£'¢xegut1§n.. of the' in context, we have to see the list defendant in the suit. She has statKe":1pthc: .eX3.inina.t1on--in--chief that the deceased Masabiexecut.ed:'a--lWtllVAin in respect of the agricultural e'ar1ier'to*~lV'ier death. At the time of execution flof-Kthe"esafidfiwillall the three deceased plaintiffs, herself, if witnesses viz., Najirnuddin Abduisattar and Mirza Baig were present. Deceased ffff Mall of them to one Mr.S.M.Gokak at Belgaum for executing the will. The said Mr,-S.Mv,v{}o.}§ak was a bond writer. He is no more. Deceased Masahivgave instructions to Mr.Go1<:ak to write the will. Hence ,,,.l',"r;.e._\7ln'ote the will according to the instructions of Masabi. The V6111 was written and executed in their presence. After writing la/' the will, the scribe read over the will and Masabl said that the same was correct and put her LTM to the will an.d".th«ereafter, Najimuddin Kotwal and Mirza Baig signed__--*thelA"
Barring these witnesses, no witnesses--'"sign'ed Thereafter, Shahebi signed the W111, Jaibunbi put her LTM .an.d her AhiisbVanr:l After the will was wntten iivltnesses It was given to the custody 4_M.asa.tlA)f.1l.mi. :«tl;e'Cross--er>ra;m1nat1on, she has stated that when herself and her husband used 'ti';:.[V%]:.-oakgiafterher'; :l)leeea.sed Hayatbi was living with her working in the Forest Department in Gunji village' nea1'.:Lon'd_a,' Jplaintiff No. l{a) Meharunnisa was living "in. Mt1na.\_?alli Village, Saundatti Taluk. It is false to Masabi had been hospitalised for one month 1964. Three or four months earlier to her death, llfiasabil was suffering from cough, cold and sickness. It ' is suggest that she was in the civil hospital at Belgaum f._for,_al--)0ut It/2 months earlier to her death and the doctors told "them she would not survive and that she could be taken home. 3/ It is false to suggest that Masabi was bedridden tn'thepg.house earlier to her death and she was not able to rnokre 'is false to state that Masabi was suffering time. When she was sick Dr. Ka1:*natlf1_'_°of her in his clinic for about eight 'days as -illn lpara 36 of the cross--eXamination 'stated E" know when Masabi expressed forvthze" "hper:glin:tention to execute a Will. I was aware prior to her death that Masabifl had herself told me that she three months prior to her deatlyglvland ggshoizszed the will executed by her and handedllovertheiutillpl I kept it in the box. I was personally present': atthe time of execution of the will. My . l - mo'ther=9'1n--l"a.w hadlcalled me, my husband, my three sisters~1'n-- lawll and Gokak at the time of executing the will at her." At abut 11.00 a.m. when she called us to her house" of us went to Shaniwar Khoot. At the time of going Vlpsahelllwas having only plain paper. One Mr. Gokak wrote the will in Kannada read over the contents of the documents to my E/.
49~ mother~«in--law, my husband and my sisters~1'n--Iaw considering the contents were correct, all of them signed the":dociirnents. Plaintiff No.3 affixed her LTM. I did not sign:
The first signature was that of my.husband';':tt:ereaft.ef,my; mother~in--Iaw affixed her LTM, thereafter if signature, Mirza Baig, Sahebifflgayatbvi lsignedv"'it§§111vd..Jlaibunbi put her LTM one after 'E;(ceot"«thesefiipersons no person signed the docurnent'l«on?.:.that' Thereafter, all of us together came to our éitlielllevidence of the 15' defendant in 'o'f":the will is concerned. When'.the__ on her to show that on the date of the was in a sound state of mind, excegpt giving'-» "graidhic description of the persons being written, signatures and LTMs being taken on nothing else is elicited from her about the lfllalsabi had taken all of them to Mr.S.M.Gokak at Shaniwar sound disposing state of mind.
A' In the examination in chief she says that deceased l/ Khoot, Belgaurn for executing the will. Admitted on record shows the Sub--Registrar came to her Jjiduse 1964 for registration of the Gift deeds as.shVe':ei»§g'as"'eriabie move about on that day. Then hovw4&cculd.:e' fabiout two months thereafter on 21'>e_2'%'-3_§.365etis. not she states in the cross exan1ir_1datio11.._pthe lfslvasefiexecuted in her house. In another that Masabi told her she had executeda. iorivpmlonths prior to her death and thev'h?il'1""executed by her and handed and kept it in the box. That apartXgvhen__t1'eatment of Dr.Kan1ath, he would have been the best about the mental status or sound" state of, of the deceased testator. It is not in died one month after the will, three months 1 e2§e.ci1tion of the will she was unable to move about.
'I'ht-nlghjS'hef~e§recuted the two gift deeds, the Sub--Registrar had topvisit-the house. Under these circumstances, in the absence of acceptable evidence on record to show the sound state of .« of the executant of the will, it is not possible to hold that V the will propounded by the 15" defendant was by Masabi when she was in a sound state of mind."
19. It is in this context evidence' thue_:attestingil.__' witness, the scribe assumes importance and noneof thernahavpe supported the case of the plaiiattififs. Unfortunhéttely the tirne the trial commenced thel"'pla,ii1tiffS._ were"de'ad. The 2nd defendant who was verif lrt_1'uch.,:1 entire process did not step into the hands of his w1fe who the Inthose circumstances, we are satisfied pro:pou11der of the will the 191 defendant has miserably" _Il"ai:l'eddV '"tQ:vll€-Sta.-blish that the testator was in a sound state«.ot'mind time of execution of the will exhibitw under Muslim law a will need not be in wn-t._1'_ng,v_vit not be attested, in the instant case the parties are relying on a will in writing which according to them is duly l_att.esat'ed. Vefhether a will is oral or in writing when the same is disputed, the party propounding the will has to prove the will to the satisfaction of the Court. It is in this context a*.-{attempt is made on the part of the 151 defendant the propounderrof the will to prove the will. In order to find out whether will is the will of the testator, it is duly.execu_tedib§€';Vher,.'_whethe1*r. the thumb impression found testator, it is necessary to looltinto evidence V the the will and the attesting evidence is of no assistance in evidence is useful to understand in what lwill has come into existence. to the will. In this case only__ is examined who has turned hostilefi witness was examined in a suit filed; by the u8¥»'-l_ defendant in O.S.No.63 of 1966 where he has hostile." Neither in the earlier proceedings nor in V&fproe.eedi.ng:s, the scribe of the will is examined, but stra_r1ge_1y' affidavit sworn to by the scribe is produced in the earlierv.pi'oceedings. Though all these three witnesses do not ._prove the due execution of the will, the circumstances under which the will has come into existence can be gathered from it/,.
what they say. DW--7 is Najimuddin one of.g..thf3*V:..ért.testing witnesses to the will exhibit~D28. In the he admits that he knew the deceased f unable to say as to what documen'tWas"
Masabi in favour of defendaritj"'~N_o.1".A"' "that does not remember about hisgggattestiriggianjf executed by Masabi in When he was confronted xvitrrtris exhibit--D28 after going through he is not able to see the and he cannot say whether fnot. Thereafter, the counsel for the defendant of the Court to treat the witnjessgas hostileanrfi cross--examined him. Permission was graiiteduf He hasmbeen cross--examined at length. Nothing worthvihilebv is'i~e]i*cited in the entire cross--eXarninati0n which is of '--.any_.~ass¢istance in proving the will. The entire cross- exarnination is confined to the signature of the Witnesses and /_r;v0.t signature. Question is put regarding the due execution of the will by the testator. In his cross--eXarnination by the We defendants--3[a} to 3(c} it is elicited that Masabimhad"iiaralysis attack prior to her death. He also admitsthat:
admitted in civil hospital in Be1gau"rn'*for tof her death. He admitted that the will not survive, so she was 'discharged home. In fact. he was also, examined: 1966 and exhibit--D1-4 is his eriatixination--in--chief therein he stated that'_:he__ hasiino' I will executed by Masabi on his signature on the put his signature on the said will 'defendant in this suit asked him to sign it. in he documents there were no other signatures .the documents but the document had been '_IVi"h«-;f_re also he was treated as hostile and he was D6-d1711ittéTd~./stdcross--examined. In the course of the cross- examination' by others in the said proceedings, again he has stated vtliat five or six months before her death Masabi had a '--.p'araiytic stroke and she had lost her faculty of speech. When executed gift deeds in favour of her daughters and ix/e daughter--in--1aw in November 1964 she was and therefore, those documents were got registere'd'* in_her'"ho'ase, In the end of December 1964 she _got.p4ara1yVsis;"r stated. that his signature was taken on ;'thei;'wiii after the death of Masabi. ":_He-._%aisoA'depos_es'.:Vth«at~«Masabi did know to speak or understand__h:Ka;nn.ada.hhd She knfows to read and write Urdu. She s-itfiis andishe never put thumb impression. V
21. is one Miraz Ahmed Baig who O.S.No.63 of 1966 whose evidence is case as exhibit--D-13. In his eXaminatio"n--in--chief Ahehhas stated that he does not remember he hasddddattested any document executed by Masabi.
V identifies his signature on the Will. He states that he did the nature of the document when he attested it. does not know whether the said document is the will of A » Masabi. Therefore, permission was sought to crosswexamine the 'witnesses. He has stated that he did not notice whether Kotwal EL}, aiso signed the wiil or when he signed it. He does not the scribe of the will. He does not know whetherjfit by one S.M.Gokak. He does not knoxxwthe&date"o4n*iévhieh4_"thewilis. was written, he did not observe;"1anjé_'_' signed the said document Was"-stated is required for the purpose of a's.ii_arirhast, he has signed the docurnent;"--.fl'He: '4'ha's:f'stated in the cross- examination by .others:tt1at. he the house of Masabi sometimes her death she was seriously never called him to her housefto attest"'a11yVdoou1nent. -
_22. affi--dav_itV's"vvorn to by S.M.Gokak the scribe of
- _ th-efi3)viI?: produoed------asVexhibit~D15. In the said affidavit he has V stated was moving with the 21"?' defendant in the suit vvhowas takviri his advice in man of the matters. Because of V . . ._ Y the iaroeeedings initiated by his wife, the 235 defendant was in diftieultv and therefore he was seeking his advice. The 2211"
'defendant was afraid that the properties which he would inherit after the death of Masabi may be lost in the of the decree and therefore he was thinking-«'._:'of. properties. It appears that he was-'advised executes af. will giving all her rights to a personfeonfidfenlce. defendant all the propertiesftcould be" the defendant the Wife of the 21161 onlyperson in his confidence. Therefore."2;?71oi:.fii=lI91fg§i{._ld:31¢ death of Masabi, he asked him j:;i'1e.ther"he' will as he did not Wish to go to that he could write a vvi11.___}_jie defendant that his sisters have no 'the property to the 1st defendant. Masabi daughters and other ladies in theégfainily xiver.e_VVVattending on her. He drafted the will in 2H3 defendant took the same to Masabi to get heir irripi:'ession. He did not go with him as there were Paitdanaslitn Aladies attending to Masabi. The 15* defendant after obtaining the thumb impression brought it to him and
--,.thereafter he made the necessary endorsements. He has not seen Masabi actually putting her thumb impression on the will fix'/.
, 58- nor has he seen Jainahi putting her thumb impression. When he wrote this document and made an endorsement, were no witnesses. He drafted the will as "2_"d defendant. However, in spite of best effQrt:3.."t*h.eflu'~._ said witnesses for cross--eXamination, he fdid_not*ap'pea_r before the Court. Now all thesegthgree «persons contended that as two attestingT.:..vv;tness'es hostile and this affidavit of to Cross-
examination, no reliancgeV_could'_:be these material by the Court. ;ft'"i«g.A.s_:f.' no ~vveightf--:.eo.u1:d be attached to this affidavit of refuses to offer himself for cross- exarnination. Simila1'lv,"*-- two attesting witnesses though 5 adniitted thei'r..signattires on the will as attesting witnesses, denied the execution of the will by the testator. They are ashostile and their evidence also does not carry much But the fact remains both the attesting have turned hostile and therefore, their evidence is of i' no. assistance in proving the due execution of the will. But .. __their evidence gives some idea about the circumstances under it/u which the will has come into existence, the manner in which it came to be executed and the role of the 211" defendant in bringing about this document. Section 71 of deals with proof when attesting witnesses deny"thelllexecution'; . 1 It provides if the attesting witness:'den=ies.. tori 'cdoes::'notl:re.jcoi1_ect the execution of the document. execution other evidence. In the first p1a:ce,.x_ this u,;f11* the will of a Musairnan, it does not;~-..re*quire as reduired under the Succession Act. In_v.i.e:v_v'--.oi' the attesting witnesses have jileniedj attestation; it is open to the propounder of"77'theV'<wii1_gntvo_ 'prove due execution by other evidence. Inirthese "(':irc--u.fc.stances, the only evidence which is available. on to prove the execution is that of the herself who has been examined as DW~4. It is in A is necessary to appreciate her evidence. She haskgivevn' aegraphic description of the Way the W113. came to be ll ' :'"eXecuted," where it came to be executed, how the executant has it ~aI'fixed her LTM and attesting witnesses attested the document it how the p3.aintiffs--daughters and her husband have affixed it//....
their signatures as consenting witnesses. In addition_.._to that, she has also stated that the plaintiffs have also"-iejxetcuted exhibits--D3. D4 and [)5 giving the consent for entire property in favour of the 13' d_efen_dant' _ said will valid. She has stated that fourth standard in Urdu V matriculation in English. But Attorney in favour of the 4m defer*;da1'it this case. She admits that Masabi was...:'not and writing Kannada. and Kannada. She has stated._ _»19tl8'vl._l\T/Iasabi obtained permission for non» agricultural use in reslpectoffithe suit lands. In all she formed 162 'sites inthe: said lands. The total extent of these lands lV'1neas1}i2Tllacfires and 32 guntas. Masabi sold 47 plots during 1 i'her.i'_liteti.rhev:Vrneas'uring 19 acres and 15 guntas. She retained 1 115'-«plots measuring 32 acres. She denied that Masabi entered .u""«__ll"into an'v..a'greement of sale agreeing to sell 115 plots under grl'agree.rnent dated 30.05.1961 for Rs.43,000/-- in favour of _d__eceased defendant No.3. As Masabi failed to pay the V. conversion charges the 1an_d was forfeited by the Government. Plaintiffs-1. 2 and 3 have studied in Urdu only and;tI'i.e son defendant No.2 has also studied in Urdu.
used to affix her LTM. Her husband was V' leather goods. He had a shop at:v"'Kha'c"ie._v back. He closed the said business';V__ :"i"]:iereaftVe_:_r,'A' he doing any avocation. She denie:d"--t,he i\Vj/Iasabi V was a Pardanashin Viadxy. a:di'r1itted'V'that Masabfs relationship with all her'ehi'1drefi;;was She had love and affection towar'ds til; her death. Masabi and hervv.1i.<ereeresidin_g-- in CTS No.4248/ C at the time of her death wasfagedé 65 years. She has denied the suggestion that _t_heage of Masabi Was about 92 years at the 'tirgie death. denied the suggestion that exhibit-«D28 I LTM of Masabi. The only other persons who are"~surV_iving~w' who are stated to have seen the execution of the ' "wiigl is husband the 2110' defendant. For reasons best known A to he did not step into the witness box. On the date of trial plaintiffs were dead. Therefore, from this materiai on K/., record it is not possible to hold that the execution of thewgill by the deceased Masabi is established as the will and not the signature. VVhen the attesting turned hostile, when the plaintiffs; "in"thp_e Xhatreu l alleged that their signatures jweresvto it said misrepresentation, when the inipressionv_:oi*--;th'e"testator L is specifically denied, certainly'..the:..propounder'oi the will could not content by giving execution and ask the who is stated to have witness'ed_«.__g not supported her case, it was part to have at least had the assistance of tea "expert to prove that the said will contains the.' the deceased testator which she has not ~..¢.,dQf1"e.a. Tlierefore. thlemtrial court has not properly appreciated lithe. onjrecord and came to a conclusion that the W111 bears of the testator which is not supported by any ' ' jg ' ~ _ ' legal evidence.
- 53 _
23. Under the Mohammedan law. a Mohammedan has a right to bequeath 1/3 of his estate to a person 0f_;h.is~.._ei2.oice. He could not deny the legal right of inheritaneelto*~l\'hi}s:l heirs. When a property is given toga person'vothelrethan legal heir if all the other legal a .
bequest would be valid. The.7sai_cl coriserit death of the testator. In the .c;asel,"e:thibit--lQ28 the will propounded bears the Vot..V_th:Ae'~.t1g1ree 'daughters and the son, the legal owned by the testator on the of her 1death4"is:bequeathed in favour of the daughter--in~layé"«"tothe tot:aiv..eX--clusion of her children. Knowing the legall1<eduiren1entthat----sueh a bequest would be valid if the legal ;hei1CS consent'.Vlthe' signatures of the legal heirs is taken to '~.y_FurtherHas the requirement of the law is such a to given after the death of the testator, again four affidavits' stamp paper was got typed in English in an ll'"'.__l"'~identieal_.inanner and the signatures of the plaintiffs and the it gal'll2'7d.._de-fendant were taken. Reiying on the signatures both on _Me_:€hibit~D28, the will and exhibits--D3, 4; and 5 affidavits dated were unauthorised and the notary has been examine-.i.is not proof of the due execution of the wit} and the due execution of the will bequeathing the entire"Apfro;iertSt lst defendant to the total exclusion-'of' the V T this context what is surprising to (in the permission to use 42 tand__ for_Vn_ori~{agI*ic'u1turaif purpose. After obtainingpthe she has formed a layout. During her Eifeftirfne 47 sites. It is thereafter for nonépayrlfiterit' fine the property was forfeiture was challenged by her', But if th'e...chaE£erige__ was negatived and forfeiture was upheld. "Iher.eafte_r. an application for restoration. It is infthis background'V' that the will which is made is to be ~_'_E'he matter of the will is 115 sites formed ,.._jr1~.;a. evidence on record shows that the 1*"
defendant entered into an agreement with the 491 defendant to Wseil those:' sites and out of the proceeds collected from him paid V"'Vthe_cfonVersion fine and got the Eand restored. That is sought to made out as a justification for the deceased testator denying u/ the right to her own legal heirs and bequeathiMng:'.V:e'n.ttre property in favour of the daughter--in--law totally:
daughters and the son. If any indication f. mind, about three months prior to the the gifted one house to the daugltte'r;_in--}aw :aridppAtwoVl':poI'tions offal house to her two daughters un..dVe:r.registered «giftptdeeds which were executed and regis*terecl'-- I.e., in other words, she wanted to person who wanted to treat her equally just three monthsprtOrjt--o'l.:_;h'er " not have denied to her daughters her, who were treating her till her death her. have bequeathed all the 115 sites 1111 favour of daughter--in--law. Under these i "cireuetns't[anees the speak for themselves and therefore, we the contention of the plaintiffs that their signatures taken to these documents without making Wknowllu toethern the nature of the document and the purpose of the» 'document. it is also clear from the fact that the regrant order was passed on 19.06.1966 and the present suit is filed M/it on 25.11.1966 within five months from the 3 If reaily the piaintiffs had given consent and they would not have rushed to the court to i*igh.tsV.' fp It only shows their innocence has as the scribe says in order vto:_hp.rotect' the from the hands of the first wife. of the---«VtV2A.1*fi"'_ 'cie_f'endar1t,-,.a.1li§ the family members appear to 'these documents.
Unfortunately the Vpiaintifis. their anxiety to protect pf the legitimate right of his first be in jeopardy.
3 Yet: '' limitation prescribed under Mohammedan iavy -for._Vdisp'osing of a Mohammedan's property V. p_ is regAa1'di.ng.subject of legacy and subject of bequest.
'E';ect.io21,_12i2,.._of__1\/iu11a's Mohammedan Law provides it is not "reAoui.isite'to'p:th'eyalidity of a bequest that the thing bequeathed «V shouid "be existence at the time of making the will: it is 'igysufficient if it exists at the time of the testator's death. The . 'seéofia rule is a bequest may be made of any property which is RV, capable of being transferred and which exists at the .te'stator's death. it need not be in existence on the date of this it is clear the thing to be bequeathed should time of making the will at least a'ftmthe tiine .;offv'death'--:ofvl'thef7. if testator and the thing to be: is'¢7;{pai»1e transferred again if not at the date.of thewiltbutxatuthelfdate of V death of the testator; Reljflng. '1'equfrements of Mohammedan Law, it the subgect matter of the bequest both: the is made as Well as on the though existed in a physicai of being transferred by the testator therefore, the bequest on the faceggjof it is voidufand fails. In order to appreciate this legal we have to look at the admitted facts in the case. aihich is bequeathed is a landed property. Adn:i.itte_dly';.A«:the said property was owned by deceased Masabi Vftheg testator. The evidence on record shows in the year 1948 deceased Masabi got the said land converted for non- if hagricultural purpose as per exhibit-D7' on 19.05.1948. After W, such conversion, she formed a layout consisting._ofls1.tes. She sold 47 sites out 162 sites. However, sheffaileda conversion fine to the Govemrnentx" Therefore'. 'the said. lands j if were forfeited on 29.07.1954 biz the said Validity she preferredfian on The appeal came to be rejected. before the Bombay Revenue Appellate also rejected the revision on Thus the order of forfeiture .Itlx2il9as though the forfeiture order of Masabi to apply for restoration' pllos_t",'~--.n;ore so because admittedly, the Goverrirrient did not sell the property to any the11j'per;.on: the rneanwhile, Masabi made an application and llll was restored on 19.06.1966 as per V'.l737i.erefore, the question for consideration is on the alleged when the deceased Masabi said to have bequeathed the property in favoui; of the 1st defendant, whether this existed and secondly whether she was capable of transferring the said property. In other words, whether she had any ownership right in the said property have transferred to any other person. Relying a _V the Bombay High Court reporteddn and also a judgment of the Madras«pHig_'h"
1925 PG MAD 997 it was'v_c0ntendedj__lthe non! payment of conversion fee, "tal_<AenVi§over by the Government which Weredue 948- 1949 to 1952- 1953 deceased .eMasab1~-- title to the said property auctioned by the as land revenue and then o<.n1y._-'her title. It is for this reason When the lands have been restored to its owners as is clearifrom the order of the Deputy Commissioner, exhibit--D10. Assuming that is the legal A '~~p0sition.4asvth.e'lands were not restored in her name. she could not'-..have'tra;t1Asferred title to any one of them on the day she 3u""--__VV"'made will as well as on the day she died. Therefore, even the said property existed and the deceased Masabi had .9 Wafiright to get the land restored in her favour on payment of the fee as long as the land is restored in her favour, shestould not have transferred the said property. If she Was: of transferring the property certainly she would deeds as she had done in respect' of the hpouisef'pr_'operties';« If she was not capable of transfernngthosel prope1*'ties not have made a will bequelathiiag a come into effect only after her death,."p':Therefore',' 'theylearned trial judge was not justifiedlllliri the deceased Masabi had not lost ti_tle,__ a bequest in respect of Wale-nythelllproperty was forfeited to the property vested with the is sold and land revenue or fine; payable i"n.._respect of the property is recovered from such sale, owner of the land had a right to pay the fine yseek.ifor.T'rvestoration. It has to be conceded that the title coratin1_;es.f5vith the erstwhile owner then the Government cannotvsell that property and convey title to the purchaser of sale and therefore, it is not correct to hold that l notvszithstanding the order of forfeiture, title continues with the owner of the land. What continues is the for restoration and not the title. Therefore, on was made Masabi was not the owrier of the property was not capable of continued to be the same e'\}e'n__on Vthefidatel' therefore, a bequest of pa prop¢:iiliji=...of -Lirievljtesvtator was not capable of JEI'E;'LHSf€FFlI'lgl'4..é~fifi(_l1' not the owner is Void ab initio. On that tails.
25. statedv earlier, prjoolf vofmsexecution of a will is quite:'dihfterenvt of the will dispelling all suspiciotis._circnVnrstahces*stirrounding the Will. if the will itself is not proved," tjuestion of the propounder dispelling the '~ su'spicio;uo.p_circtirnstances may not exist. But if the will is held V to"be_ 1:)1fove'd,AV'if-- there are suspicious circumstances and if they arehot the propounder is not entitled to the property heqiieathed. It is in this context when we look at the will what 2 strikes at us is the deceased had three daughters and a son. Allfhewcontesting 13' defendant as DW-4 has categorically stated 1;.
property or enter into an agreement to sell the s1tes.;"*.use the consideration to pay the conversion fine and_..ge't»y"1and restored. That is precisely what the 151 defei'1c:i3.iii.t'e.has She has not spent any money frornther' poeket. }1*£ghtT._' under the will she entered into 'with';l4'.tl3lell"§l1] defendant, received consldelravtiont paid; feeto the Government and got the&V.la'rid_:restored.itATheeesiame thing a shrewd lady like Masahi'tcou'1d_ during her lifetime, provided she was in a:'slounld The evidence on record sho_ws3 llafiairalytievvstrolte. She was unable to move lroutf shetvhought-l of executing the gift deeds she surnmonedl the to the house. The documents were 'e;.s;ecuted'~andlregistered at her house. Assuming that the . is a vagabond addicted to bad vices, all that this ladypcouldvxliavetdone is to have preferred her daughter--in--law to "the There is no reason Why she would exclude her three lldvatlghters whom she loved. The number of sites at her l."l.AAdis_p:osaI was 115 sites. Even if she Wanted to give a bigger _<_:h'unk to the son or the daughter--in~Iaw, we do not see any V document. Plaintiffs in the plaint itself. have.&.e§<l.p'ia"ined the circumstances under which their signatures--1iVereAita;'r:e11_'li3o'th'V on the will as well as on the affidvaviitsl. «'.thely.'did not substantiate their case by nonetheless, always the burd.e:Ln~.of proving e2{e'cution islori the person who relies on suchR:A'exe'cuAtion'. Therefore,' the lag defendant has miserabl3iV:i"aile--d', has turned hostile and has not supported' defendant. That leads us 'defendant as the legatee under part in her own words in execution_ is contesting this matter with the aid anda:s4sistance"l:eoAI' defendant her Power of Attorney Holder, 1agreemAeVn't'1'holder who has financed in the restoration oflthe :"l'andi~i¢n question. Under these circumstances, we are 13* defendant had failed to dispel the suspicioustcircumstances surrounding the will which is a conditiori precedent, whether the will is under Mohammedan ._law_for under Hindu law or under Indian Succession Act. The trial court though has taken pain in appreciating the voluminous evidence produced has not been able to"'--properly direct itself to the issues involved in the case and'4'toi"th_eVeffect of the evidence and came to an erroneous coiic_lusjionl' not only. that the will is duly executed but'als'o« that the'lVptepot;nci'et~ of the will has dispelled all suspiciousVciifculmstaitices. 2 Inn:faclt'the learned trial judge has not i~:imind,the,fa'ct a of a Mohammedan, thepstricti-ripopurs'-o.f proofof attestation as contemplated under it well as the Indian Succession ACt_:ne_ed has bestowed all the attention on the execution of the will established and the will stands provedil lnso far. state of mind of the deceased is concerned, of the View that when the plaintiffs did not i " prove jshe was laflparalytic patient, she was admitted to the was not able to move about and the doctors dis-charxgedifher from the hospital as they informed them that she vvould not survive, she was brought back to the house. facts are not proved by any acceptable evidence. Therefore, he concludes that the testator was in a sound state _. 78 _ of mind. But he forgets that the testator never moved about four months prior to the date of the execution of the will. This lady executed two gift deeds. The Sub~Registrar was summoned. If only she was able to move a1<;etj1f;t:%__tr:e Sub- Registrar would not have visited her house.Vand.V.reg.1ste1'ed document at her place. The trial divvdzno't thatvuthe L witnesses examined on behalf of defendanvts' proved the case pleaded plaintiffsw as the physical and mental czjllnditionffot' testatorf"Therefore, seen from any angle, the trial court that the will stands fApr9.nvepdV:'not«.Vo'nly by' proving the execution but also dispelling; the st1_sVpi.cio:_tis._':circumstances cannot be sustained. Accord inglv itais 'set aside.
. ~In thtsflucfase, the trial court has framed more than depending upon the defence taken by the various de'fendant_s:,j'.V'these defendants are claiming the properties either nnder plaintiffs or under defendant No.1. They are all third parties, totally strangers to the family. In a suit for partition, while passing a preliminary decree all that is expecfted of the court is to find out what are the shares to which.tr1e'__rneInbyers of the family are entitled to. The interest of t11ese.:'piirchasegrs~e__ either prior to the date of the suitor sub.sequ-ent_'Vt'o_uthebdate of the suit has to be considered in the offhe*shai=es'<to'~bge allotted to the members of Vtl'1eg:l'family as:
decree in the final Vdecreey..lp'ro.ceedings. 'If the properties purchased by these the extent of share to which to, whether those propertiespare'..purch_ased.._:prior'7'to:.the or after the suit has to belvfoundf-only in_«Vth.e final decree proceedings. In that View of the mat'ter;"lit unnecessary to go into these questions in this proceeding.
A V' " :'««Exhibit~D 10 the order of restoration makes it clear . thfatiias.vMalfsalj:iVfailed to pay a sum of Rs. I 1,855/~ 2 annas and 'V 6 was due on the land in 1948-1949 to 1952-1953, fh'e--~lands were forfeited to the Government under Section 153 lofbthe Bombay Land Revenue Code by an order of the District Deputy Collector dated 29.07.1954. The appealtangd filed by the occupants against this order said orders have become final. "i'hereai"_ter:,i. entered as Government waste tvere' for cultivation on annual Sret been disposed of. Therefore'. on l5:O£3:I'g9_6£l..an applic.ation was mad.e on behalf of the occu;"iants-- of the lands in question. Duringthe into the application, the original. on Thereafter, the successors authorised the present General «Holder to carry out proceedings regarding, The applicant has agreed to pay arrears due on Agthelllland together with all the costs and charges 1a{vfullj9l:'due.g_by to the Government. The Tahsildar has I also 'reconinjended for such restoration. It is in those circumstances the district Deputy Commissioner passed an order .re__sttoring the land to the successor in title of the original "'--V'_AAdefa'jL:1ter. Therefore. it is clear the authorities did not act on e:}<hibit--D28 the will and restored the land in favour of the 1st /[L/,, their mother and after her death as legal heirs they are entitled to the same. They have specifically pleaded that tfieylare in joint and constructive possession of the property. What is to be seen to find out is eourt-«ifee payable is the averments in the the L plaintiffs are the daughters of.Masabi. and thepy_e1ai1n'av the suit property on the death 'oiith.eir rnother, 'deemed to be in joint possession o.fi"'th'e.:'jpropertytdeyenvvvjthough the property is not in and even if third parties are 1'n,po_s'sess:[on._, htheifinding recorded by the trial eot,1rt'ithvatV:the'eoiirt fee paid is sufficient is correct and does not eigailliyfor 'anytAi11terf:erenee. .it"»i_s"eontended after the filing of the suit, the the miegal heirs have sold the property and therefore';-..they..haVe no interest any more. At any rate on the date the' was filed they did not have any subsisting interest. any of the suit schedule properties and therefore, he appeal is not Inaintainable. We do not see any merit in the said contention. It is not in dispute on the date the--suit was filed, they had a subsisting interest in the proper':y."vhad a definite share in the property. It is for securirl'.c;§*.:si1ai*e_ the suit is filed. Even during the_sui.tif Weiéeltop. sell the properties and lose interest--,._'_' it interest in the property in so nialdng title to purchasers and therefore, " plaintiffs have sold the property...::iftetl--.ptheivllhfilingyijof, the suit before the appeal is filed. this append-.ca'nnot"»bel the suit is the Belgaurn Urbanll"Devl_elopn1e.ntlVAuthority. They have filed a statement contendinlgathatpth_ey-have been unnecessarily impleaded as a A_ pa_i'ty the suit.~..___Th~ey contend that RS No.2 measuring 22 . ggcres 2.4ll'guntas and 6 annas situated in Belgaum is under H They have framed a scheme in the year 19%)] forlaclciuisition of the said land and issued notice under sections 9 and 10 of the Land Acquisition Act to the authorities. As there was no objection to the said notice, after l/ would be appropriate to relegate those purchasers'of".Vl'ands acquired to work out their remedy in a competerltuscifil claiming compensation.
31. However, in respect or subject matter of acquisition' rnetes and bounds have to be effected of shares of the parties as declared in actual allotment of the shares;~vand:pthe purchased from those sharers wlil subsequent to the suit also has decree proceedings.
'-- the aforesaid discussion and the admitted rela_tionship*. between the parties, we hold that the 1i?1u§hters'l'ai'1'd'Vthe son of the deceased Masabi are "suit schedule properties. Each of the plaintiffs beleritlitled to 1/5 shares and the 2*" defendant, son would entitled to 2/ 5 share in the suit schedule property Cf ilelfithe suit 'A' schedule property. In so far as suit 'B' schedule properties are concerned, those properties which are the h/_ subject matter of the registered gift deeds the deceased Masabi gifted the property to her plaintiffsml and 2 and the is' defendant, dav.ghtefr¥in~laW;'arep not available for partition as Masahi c:eased'~to{ heathe' of the said property on the date 'of. her 'death and legal heirs did not inherit property other than the s:.1bject:_'1*z:.atte:r.of eicistence. the said property also is liable to the aforesaid shares. Hence
(i) judgment and decree of coi.,ii't.V__di.s1fliissing the suit of the plaintiffs if is " "(til declaredfffthat each of the plaintiffs are entitled to 1/ and 2" defendant is entitled to 2/ 5 'riidvdife in 'A' schedule property and in the remaining ' ikhouse property, excluding the properties which are the subject matter of the two gift deeds.
(iii) All persons who are claiming title from the sharers are entitled to Work out their remedies seeking for Dr