Karnataka High Court
Syed Abdul Hameed S/O Syed Abdul Rajak ... vs Smt. Kursheed Begum W/O Gulam Rabbani ... on 7 July, 2023
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NC: 2023:KHC-K:5039
RFA No. 200001 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 200001 OF 2016 (PAR/POS)
BETWEEN:
1. SYED ABDUL HAMMED,
S/O SYED ABDUL RAJAK KAZI,
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE,
R/O: ALAND NEAR BANGADI
PEER DARGAH, TQ: ALAND,
DIST: KALABURAGI - 585 302.
2. SYED ABDUL MAJEED,
S/O. SYED ABDUL RAJAK KAZI.
DEAD BY LRS.
2(i) YAZDANI BEGUM,
W/O LATE ABDUL MAJEED,
AGED ABOUT 65 YEARS,
Digitally signed by
SOMANATH OCC: HOUSEHOLD,
PENTAPPA MITTE
Location: HIGH COURT R/O H NO: 10-2-1/2,
OF KARNATAKA
BANGADI PEER COLONY,
ALAND, TQ: ALAND,
DIST: KALABURAGI.
2(ii) TAZEEM FATIMA,
D/O LATE ABDUL MAJEED,
W/O. MD. IRAFAN,
AGED ABOUT 33 YEARS,
OCC: HOUSEHOLD,
R/O H.NO: HIG-B18,
OLD JEWARGI ROAD,
NEAR BASAVAPRABHU SCHOOL,
KHB COLONY, KALABURAGI.
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NC: 2023:KHC-K:5039
RFA No. 200001 of 2016
2(iii) SYED KHUSRU PASHA,
S/O LATE ABDUL MAJEED,
AGED ABOUT 31 YEARS,
OCC: PRIVATE SERVICE,
R/O H.NO.: 10-2-1/2,
BANGADI PEER COLONY,
ALAND, TQ: ALAND,
DIST: KALABURAGI.
2(iv) SYED SADDAMHUSEEN,
S/O LATE ABDUL MAJEED,
AGED ABOUT 29 YEARS,
OCC: PRIVATE SERVICE,
R/O H.NO.: 10-2-1/2,
BANGADI PEER COLONY,
ALAND, TQ: ALAND,
DIST: KALABURAGI.
2(v) SYED BABY SAKINA,
D/O LATE ABDUL MAJEED,
W/O SIDDIKI FAJIL,
AGED ABOUT 29 YEARS,
OCC: HOUSEHOLD,
R/O: MOHAMMED PASHA MOHALLA,
NALDURG, TQ: TULJAPUR,
DIST: OSMANABAD (MS).
2(vi) SANOBER JAHAN,
D/O LATE ABDUL MAJEED,
AGED ABOUT 27 YEARS,
OCC: HOUSEHOLD,
R/O H.NO.: 10-2-1/2,
BANGADI PEER COLONY,
ALAND, TQ: ALAND,
DIST: KALABURAGI.
2(Vii) SYED HAYDER ALI,
S/O LATE ABDUL MAJEED,
AGED ABOUT 25 YEARS,
OCC: STUDENT,
R/O H.NO.: 10-2-1/2,
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NC: 2023:KHC-K:5039
RFA No. 200001 of 2016
BANGADI PEER COLONY,
ALAND, TQ: ALAND,
DIST: KALABURAGI.
3. SYED ABDUL WAHED,
S/O SYED ABDUL RAZAK KAZI,
AGED ABOUT 50 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: YADULLA COLONY, RING ROAD,
KALABURAGI-03.
...APPELLANTS
(BY SRI VINAYAK APTE, ADVOCATE)
AND:
1. SMT. KURSHEED BEGUM,
W/O GULAM RABBANI KAZI,
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE,
R/O ALAND, NOW AT NALDURGA,
TQ: TULAJAPUR,
DIST: OSMANABAD (M.S) - 413 602.
2. AKTAR BEGUM,
W/O MURTUZ JAMADAR,
AGED ABOUT 62 YEARS,
OCC: AGRICULTURE,
R/O: ALAND NEAR BANGADIPEER DARGAH,
TQ: ALAND, DIST: KALABURAGI - 585 302.
3. KAISAR BEGUM,
W/O SYED ABDUL KHADEER,
AGED ABOUT 47 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE,
R/O C/O BSNL OFFICE, SEVEN RASTA,
SOLAPUR,
MAHARASTRA - 413 003.
...RESPONDENTS
(BY SRI SANTOSH S GOGI, SRI SHARATH S GOGI &
SRI SHIVAKUMAR S GOGI, ADVOCATES FOR R1;
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NC: 2023:KHC-K:5039
RFA No. 200001 of 2016
SRI ANANTH S JAHAGIRDAR, ADVOCATE FOR R2 & R3)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.09.2015
PASSED IN O.S. NO. 3/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE, ALAND, WHEREIN, THE SUIT WAS DECREED.
THIS APPEAL HAVING BEEN HEARD THROUGH PHYSICAL
HEARING/VIDEO CONFERENCE AND RESERVED FOR JUDGMENT
ON 23.03.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VIDEO CONFERENCING AT
BENGALURU, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant Nos. 1 to 3 by assailing the judgment and decree dated 30-09-2015 in OS No.3/2010 by learned Senior Civil Judge, Aland, whereby the suit for partition came to be decreed.
2. The parties would be referred to as per their ranks before the Trial Court for the sake of convenience.
3. The plaintiff and the defendant Nos. 4 and 5 are daughters and defendant Nos. 1 to 3 are sons of deceased Syed Abdul Razak Kazi. The plaintiff contended that the suit schedule properties were owned by her father who expired in the year 1995. The mother of the plaintiff Sydunnisa Bagum had predeceased Syed Abdul Razak. It was contended that Syed Abdul Razak left behind him the plaintiff and defendants as his surviving legal heirs and he died intestate. It was -5- NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 contended that during the life time of Syed Abdul Razak there was no partition in the family and properties and even after the death the parties have continued to be tenants in common. It is contended that after the death of the father of the plaintiff and defendants, the share in the properties devolved upon them as per Sunni Mahomedan Law in fixed shares. Plaintiff also contended that the suit schedule properties were jointly cultivated and enjoyed by them. The defendant No.1 being the eldest male member of the family was managing the affairs of the family after the death of their father Syed Abdul Razak.
4. The plaintiff further contended that in December 2009, when she visited Aland, came to know that the defendant Nos. 1 to 3 behind the back of the plaintiff have got mutated all the suit lands in the name of the defendant Nos. 1 to 3 and such mutation entries are fraudulent and with the purpose to create a show of partition and to defeat the legitimate share and right of the plaintiff. The plaintiff reiterated that there was no such partition in the properties held by her father and the plaintiff was never a party to any such partition at any time. The plaintiff contended that she is entitled for 1/4th share in the suit properties and immediately after coming to know about the -6- NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 mutation entries, suspecting bonafides of defendant Nos. 1 to 3, she approached the defendant Nos.1 to 3 for partition and on being refused, she was constrained to file a suit for partition.
5. On being issued with the summons, the defendant Nos. 1 to 5 appeared before the Trial Court. The defendant Nos. 1 to 3 filed their written statements denying the plaint averments. However, the defendant Nos. 4 and 5 filed their written statements admitting the claim of the plaintiff, but contending that the shares would devolve upon the plaintiff and defendants in accordance with Mahomedan Law, but not as claimed by the plaintiff.
6. The defendant Nos. 1 to 3 contended that the mutation entries in favour of defendant Nos. 1 to 3 was in pursuance to the partition effected and they are as per law. They denied the claim of the plaintiff for partition and they denied that there was no such partition among the plaintiff and defendants. It is the case of the defendant Nos.1 to 3 that during the life time of their father, there was a division in the properties bearing survey Nos. 606 and 607 between the defendant Nos. 1 to 3 and accordingly, Syed Abdul Razak executed a Will bequeathing -7- NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 the respective shares to defendant Nos. 1 to 3 on 26-6-1989. It is contended that the Will was executed in the presence of the witnesses after knowing its contents.
7. They further contends that immediately after the death of the father of the plaintiff and defendants, defendant Nos. 1 to 3 became the owners in possession of the shares allotted to them as per the Will. Therefore, the plaintiff and defendant Nos. 4 and 5 have no share or any sort of right over the suit lands. Inter-alia, they also contended that the plaintiff and defendant Nos. 4 and 5 took a sum of `25,000/- each from defendant Nos. 1 to 3 and have given up their rights if any in favour the defendant Nos. 1 to 3 by relinquishing their rights. Such relinquishment had taken place in the presence of respectable panchas and a document also was executed to that effect. They contended that after the said partition, the defendant Nos. 1 to 3 got divided the properties and they are in exclusive possession and enjoyment of their shares as absolute owners and the necessary entries were effected in the record of rights. It is contended that after the death of Syed Abdul Razak, the defendant Nos. 1 to 3 have not allowed the plaintiff and defendant Nos. 4 and 5 to be in joint possession of the suit -8- NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 schedule properties. Hence, they sought for dismissal of the suit.
8. On the basis of the above pleadings, the Trial Court framed the issues. The plaintiff was examined as PW1 and Exs.P1 to P38 were marked in evidence. The defendant No.2 was examined as DW1 and Ex.D1 was marked. Two witnesses were examined as DWs 2 and 3. The defendant Nos. 4 and 5 have not led any evidence.
9. After hearing the arguments by both the sides, the Trial Court answered Issues as below:
Issues Answer Sl. No. 1. Whether the plaintiff proves that, herself Positive
and defendants are together enjoying in possession of the suit schedule properties as a tenants in common?
2. Whether the plaintiff proves that, there is Positive no any partition held in respect of the suit schedule properties in between the parties to the suit at any time?
3. Whether plaintiff is entitled her share? If Positive entitled, what is here extent?
4. Whether defendants No. 1 to 3 prove that, Negative the suit filed by the plaintiff is time barred?
5. Whether the defendants No. 1 to 3 prove Negative that, this Court has no pecuniary jurisdiction for trial of this suit?
6. Whether defendants No. 1 to 3 proves Negative that, there has been a partition in between father of the plaintiff and defendants No. 1 -9- NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 to 3 during his life time in respect of Sy.No. 606 and 607?
7. Whether defendants No. 1 to 3 prove that, Negative father of the plaintiff executed will Deed dated 26.06.1989?
8. Whether defendants No. 1 to 3 further Negative proves that, plaintiff and defendants No.4 and 5 relinquished their share in the suit schedule properties?
9. Whether defendants No. 1 to 3 prove, they Negative are in possession and enjoyment over the suit schedule property as absolute owners?
10. Whether defendants No. 4 to 5 entitled Positive 1/6th share each as per the counter claim filed by them?
11. Whether the plaintiff is entitled the decree Partially as prayed for? Positive
12. What order or decree? As per final order decreed the suit in part
10. As a result of the above findings, the Trial Court decreed the suit, granting 1/9th share to the plaintiff and defendant Nos. 4 and 5 and 2/9th share to the defendant Nos. 1 to 3.
11. Being aggrieved by the said judgment, the defendant Nos. 1 to 3 have approached this Court in appeal.
12. The appellants/defendant Nos. 1 to 3 contended that the Ex.D1-Will dated 26-6-1989 shows that it is not a Will but, it is a declaration of oral partition of the suit lands, whereby 18 acres 07 guntas of lands were allotted to each of the
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 appellants. The averments in the Will show that, it is a partition and the appellants were entitled to mutate their respective portions of land in their names and pay the land revenue accordingly. Therefore, it is contended that when Syed Abdul Razak had already parted with the suit schedule properties, the question of partition amongst the parties to the suit after the demise of Syed Abdul Razak do not arise. It is contended that after the demise of their father, the defendant Nos. 1 to 3 in pursuance to Ex.D1 have become absolute owners and have mutated the lands in their names. This legal aspect was not considered by the Trial Court. It is contended that Ex.P38, the order of mutation shows that the lands are mutated in the names of the appellants.
13. It is contended that the mutation was given effect to and acted upon by the parties and this fact was within the knowledge of the plaintiff and the defendant Nos. 4 and 5. They also contend that one of the property was allotted to Syed Abdul Razak by the Land Tribunal, Aland and therefore, he was the absolute owner of the suit schedule properties. Therefore, it is contended that the claim of the plaintiff that the suit schedule properties are ancestral properties is fallacious. It is
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 contended that the father of the plaintiff and defendants being the absolute owner has effected the partition and made declaration in that regard as per Ex.D1 and as such, the Trial Court ought not to have decreed the suit.
14. Further the appellants contended that there is an admission in the cross-examination of PW1 that there were three divisions made in the properties by her father and they are enjoyed separately by the defendant Nos. 1 to 3 and accordingly, the mutation entries were effected. Therefore, it is contended that the admission of PW1 clearly indicates that the partition was acted upon and the plaintiff was well within the knowledge of such partition. They contend that the agreement executed by the plaintiff was confronted during the course of the cross-examination, but the Trial Court has not compared the signature on the agreement with respect to her admitted signature, which has resulted in injustice. It is contended that discarding the agreement by the Trial Court was not proper and therefore, the impugned judgment is not sustainable in law. Hence, they have sought for setting aside the said judgment and for dismissal of the suit.
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016
15. On issuance of notice, the plaintiff/respondent No.1 and defendant Nos. 4 and 5/respondent Nos. 2 and 3 have appeared through their counsels. The appeal was admitted, the Trial Court records were secured.
16. Arguments by learned counsel for both the sides were heard and perused the records.
17. The points that arise for consideration in this appeal are:
(i) Whether the defendants 1 to 3 have proved the Ex.D1 to be a declaration of partition by deceased Syed Abdul Razak and it is proved in accordance with law?
(ii) Whether the impugned judgment is
arbitrary, perverse and capricious requiring
interference by this Court?
18. The finding of this Court for both the points raised are in the negative, for the below reasons:
19. The fact that the plaintiff and the defendant Nos. 1 to 5 are daughters and sons of Syed Abdul Razak, who was the absolute owner of the suit schedule properties is not in dispute.
The fact that the parties are governed by Mahomedan Law is
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 also not in dispute. Therefore, during the life time of Syed Abdul Razak the properties are his absolute properties and he had all the right, title and interest to alienate the same as he wish. However, if there is any bequest by of Will or any such other type of alienation, it is governed under the personal law applicable to the Mahomedans. It is relevant to note that, the nature of the document at Ex.D1 is a matter to be considered by the Court. The written statement of the defendant Nos. 1 to 3 state that the Ex.D1 is a declaration of partition and Will. If it is a Will, it shall be in accordance with the personal Law of the parties and a consent by a share holders is necessary. If it is a declaration of partition, it attracts the general law that would be applicable for any such declarations and alienations. Therefore, it is in this background that the arguments canvassed by the learned counsel for the appellants needs to be appreciated.
20. The learned counsel appearing for the appellants contended that Ex.D1 is a partition deed and the divisions were indicated in the document and accordingly, it came into effect after the death of Syed Abdul Razak. He relies on the mutation entry at Ex.P38 and the orders thereof which resulted in
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 changes in the record of rights. Therefore, he contends that Ex.D1 was acted upon after the death of Syed Abdul Razak on 3-3-1997. He further contended that the plaintiff and defendant Nos. 4 and 5 admitted such division and they had also executed a document in the year 2002 by receiving Rs.25,000/- each. However, the said document was not marked since it was canvassed to be relinquishment deed but not registered. He contends that the Trial Court erred in holding that it was a Will and applied the Rules of Evidence as applicable to the Will and came to the conclusion that it was not proved. Such approach is erroneous and has resulted in miscarriage of justice. He further contended that PW1 has admitted in the cross- examination about the partition and separate enjoyment of that property. Therefore, he vehemently submitted that the impugned judgment is liable to be set aside.
21. Per contra, learned counsel appearing for the respondent No.1/plaintiff contended that, DW1 in the cross- examination says that Ex.D1 is the English translation of Urdu Will executed by Syed Abdul Razak and therefore, when the original Will is not produced, the defendant Nos.1 to 3 have not proved the same. He further contends that if at all Ex.D1 is a
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 declaration of partition, the document attracts Stamp Duty and Registration and as such, it is inadmissible. It is submitted that under Mahomedan Law, there is no such concept of oral partition. Any such partition among the Mahomedans would amount to divesting of the interest in the property resulting in an action akin to transfer. Therefore, when the defendant Nos. 1 to 3 contend that it is a partition, the Ex.D1 is inadmissible in law and as such, all the mutation entries based on Ex.D1 would be of no value. He further contends that if the Ex.D1 is considered to be a Will, it is hit by the absence of consent by the other heirs of the deceased. It is also pointed out that the suspicious circumstances surrounding the alleged Will are not explained by the defendant Nos. 1 to 3. It is also pointed out that the defendant Nos. 1 to 3 have tried to depict the Ex.D1 as Will during the trial and have examined DWs 2 and 3 regarding the due execution. If it is a document of partition, it should have been a registered document as required under law and when such a contention was not taken before the Trial court, the appellants cannot take up a contention that it is a document of partition in appeal. He further contended that if at all plaintiff and defendant Nos. 4 and 5 have received a sum of
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 `25,000/- each and had relinquished their rights, such relinquishment should have been under a registered document. In the absence of any registered document, the relinquishment claimed by the defendant Nos. 1 to 3 also falls to the ground.
22. In support of his contention, he has placed reliance on the decision in the case of Gurudial Kaur and others Vs. Kartar Kaur and others1 reported in and in the case of Sanjiva @ Sanjiva Bhandary Vs. Vasantha and others2 regarding the requirement of proof of Will. He also relied on the decision in the case of Narunnisa Vs. Shek Abdul Hamid3, wherein, it was held that, bequest to an heir is invalid if not consented by other heir or heirs.
23. A perusal of Ex.D1 show that it is titled as Will Deed. It is signed by Syed Abdul Razak and two other witnesses. Obviously, Ex.D1 is not a registered document to construe that it is a conveyance deed. In the first page of Ex.D1, it is stated that Syed Abdul Razak, is executing the Will Deed in favour of 1 (1998) 4 SCC 384 2 AIR 1991 Karnataka 86 3 ILR 1986 Karnataka 4207
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 his real sons. The opening words and para 1 of the Ex.D1 read as below:
I Syed Abdul Razak son of Syed Allauddin Saheb, Khazi, aged 70 years, occupation Agriculture, r/o Alland execute this will deed with free will and consent with sound mind as under:
1. That I execute will deed in favour of my real sons by name Syed Abdul Hamid, aged 30 years, 2) Syed Abdul Majeed, aged 28 years and 3) Syed Abdul Waheed, aged 26 years, sons of Syed Abdul Razak Quzi, r/o Alland in respect of lands which are in my possession and ownership and the boundaries of which are as under:"
24. The above averment of Ex.D1 would show that the executant intended that the documents is a Will. Further after the description of the lands after the above averment, it is stated as below:
"My above said three sons (Executees) will get above said lands, as orally partitioned between them and kept as it is. As I am an aged old man. There is no hope of my life and the executor has planned to go for pilgrimage (Haj) purpose and for this purpose
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 in the presence of my above said three sons, the partition of land is effected as under"
25. After the above averment, the extent to which the defendant Nos. 1 to 3 would get the properties and the boundaries of such properties are described. After the description of the properties that would be held by defendant Nos. 1 to 3, the following averment is made:
"All the above three (executes) sons are hereby informed that Sy.No. 606 pot No. 1-2-3 and Sy. No. 607 pot No. 1-2-3 will be in my possession and enjoyment still my life time and I will enjoy the same during my life time. And after my death all the above said three sons (executes) will be entitled to get possession of the above said lands along with boundaries as mentioned above.
Later on they are entitled to mutate their names in their favour. My above said three sons will be entitled to pay revenue assessment, and the copy of the will deed are hereby given to each executes (sons) for avoiding any future complications.
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26. A bare reading of Ex.D1 would show that at no stretch of imagination, it can be termed to be a declaration of partition. The testator, Syed Abdul Razak, intended that he possessed the survey No.606 and 607 and he intended that the properties should go to his sons after his demise. When his intention was expressed to the defendant Nos. 1 to 3, they amicably entered into an arrangement as to the manner in which the properties are to be enjoyed by them and accordingly, represented to Syed Abdul Razak. Therefore, the say of defendant Nos. 1 to 3 regarding enjoyment was also incorporated by Syed Abdul Razak in Ex.D1 and he made the bequest. It is pertinent to note that the intention of deceased Syed Abdul Razak was that such transfer of the lands held by him will come into effect only after his death. He intended that after his death, the properties would be enjoyed by the defendant Nos. 1 to 3 as per the arrangement made between them, which is also depicted in Ex.D1. Therefore, it cannot be said that partition by metes and bounds had been effected during the life time of the deceased Syed Abdul Razak. Thus, a bare reading of Ex.D1 indicate that it is in the nature of the Will, but not as declaration of the partition effected between
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 the defendant Nos. 1 to 3. The defendant Nos. 1 to 3 who were not parties to Ex.D1. Therefore, the argument of the learned counsel for the appellants that it is a declaration of the partition cannot be accepted. At the most, it could amount to a contingent agreement between defendant Nos. 1 to 3, for, Ex.D1 could have been changed by the deceased Syed Abdul Razak before his death. Therefore, this argument by learned counsel for the appellants regarding the nature of the documents cannot be accepted.
27. The Trial Court has viewed Ex.D1 as a Will and has analysed the factors governing the proof of the Will. It has considered the fact that the DW1 had categorically admitted that he Will was written in Urdu and Ex.D1 is a translated copy. In fact, Ex.D1 bears the signature of testator and the attesting witnesses DWs 2 and 3. The attesting witnesses- DWs 2 and 3 have identified their signatures on Ex.D1. It has also considered the suspicious circumstances surrounding the said Will and came to the conclusion that such circumstances are not cleared by the propounders of the Will. Most importantly, the validity of the Will is also considered by the Trial Court.
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28. Section 117 of the Commentary on Mahomedan Law by Mulla reads as below:
A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator (l). Any single heir may consent so as to bind his own share(m).
29. This aspect was considered by the Division Bench of this Court in Narunnisa's case. In the said judgment, placing reliance on several decisions concerning the bequeath by a Mahomedan, it was held that a Mahomedan cannot bequeath more than 1/3rd of his share excluding the funeral expenses. It was also held that where a Will contained a bequest excluding the female heirs and mutation of names took place, the consent of the heirs could not be implied from mere silence on their part at the mutation proceedings. This decision reiterate the express consent by the heirs of the testator. Therefore, it is evident that when the defendant Nos. 1 to 3 are unable to show that there was an express consent by the plaintiff and defendant Nos. 4 and 5 for the bequeathing the properties in favour of defendant Nos. 1 to 3, it cannot be said that the properties have devolved as per the Wish of the Testator.
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 Under these circumstances, it cannot be said that the Will executed by Syed Abdul Razak could be held to be a valid Will. Even if the defendant Nos. 1 to 3 had proved the Will, it could bind only 1/3rd of the share of the deceased Syed Abdul Razak.
30. The last aspect to be considered by this Court is regarding the relinquishment. It is pertinent to note that during the examination-in-chief of DW1, an effort was made to introduce a document by representing that it is an agreement. The Trial Court on perusal of such document came to conclusion that it is a relinquishment deed and therefore, it cannot be admitted in evidence.
31. Under these circumstances, the contention of the learned counsel for the appellants that the signature of the plaintiff on the said document should have been compared by the Trial Court with the admitted signatures of PW1 is not of any relevance. Further, the perusal of the evidence of DW1 and also the evidence of DWs 2 and 3 show that they have referred to Ex.D1 as a Will. Nowhere, DW1 described Ex.D1 as a partition deed or a declaration of partition. Therefore, it is evident that the appellants have setup the contention that
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 Ex.D1 is a declaration of partition only in this appeal. Such contention having not taken before the Trial Court, cannot be permitted to be canvassed.
32. For above reasons, this court is of the opinion that the judgment of the Trial Court does not suffer from any infirmity. It has considered the pleadings, rival contentions, the evidence on record and the has properly interpreted the Ex.D1 and rejected the contention of the relinquishment of the rights by the daughters of Syed Abdul Razak, applied the provisions of the Mahomedan Personal Law that is applicable to the parties and came to the conclusion that the suit deserves to be decreed. Though the plaintiff had claimed 1/4th share, she has been awarded 1/9th share. Such division is in accordance with the Mahomedan Law and therefore, the appeal is bereft of any merits. For the aforesaid reasons, the points raised above are answered in the negative. Hence, the following:
ORDER The appeal is dismissed with costs.
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NC: 2023:KHC-K:5039 RFA No. 200001 of 2016 The judgment and decree passed by the Trial Court in O.S. No.3/2010 dated 30-09-2015 is hereby confirmed.
Sd/-
JUDGE tsn* Sl No.: 2