Shri Samiullah & Ors. v. Sh. Rafiullah & Ors.

1. This suit for partition of property no. 162, Basti Nizamuddin, New Delhi has been filed by the Plaintiffs with the averments that Late Mohd. Abdullah, father of the parties purchased the earlier said property in the name of their mother Smt. Amirzadi Begum. Mohd. Abdullah died in the year 1967, whereas mother of the parties Smt. Amirzadi Begum died on 27.02.1990 intestate. It is averred that five sons of late Smt. Amirzadi Begum are in possession of various portions of property no. 162, Basti Nizamuddin, New Delhi and partition has not taken place.

2. It is stated that Defendant no. 1 and his family members have forged a Will dated 20.07.1988 in favour of Defendant no. 1’s son Irshadullah Khan (Defendant no. 7). On the basis of the aforesaid forged Will, a 2014:DHC:4120 suit of mandatory and permanent injunction being Suit no. 775/ 1995 was filed in the District Court. The said suit was dismissed as withdrawn. Subsequently, another suit for possession, permanent injunction, etc. being Suit no. 23/ 1997 on the same cause of action was filed by Defendant no. 1 against the Plaintiffs. On receipt of summons of the said suit, the Plaintiffs came to know about forgery of the Will of their mother and, therefore, lodged a police report with Police Station Hazrat Nizamuddin on 05.08.1997. Defendant no. 1 also lodged an FIR bearing no. 691/ 1997 in this regard. The Plaintiffs have alleged that certain police reports were also made with regard to the breaking open of the locks of certain rooms by Defendant no.1 and certain criminal proceedings were initiated between the parties. It is averred that according to Shariat i.e. Muslim Personal Law (extracted from Mulla’s Principles of Mahomedan Law, Principle 117), “A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of testator. Any single heir may consent so as to bind to his own share”. Thus, the case of the Plaintiffs is that apart from the fact deceased Late Smt. Amirzadi Begum had died intestate and the Will so propounded is forged, the Will even if actually executed would not be valid unless there was consent to the bequest by all the heirs after her death. It is the case of the Plaintiffs that the parties are governed by Muslim Personal Law (Shariat) and therefore, the male child being entitled to share equivalent to shares of two females each, each of the four Plaintiffs would be entitled to 2/13th share each, Defendant no. 1 shall also be entitled to 2/ 13th share, whereas Defendants no. 2 and 3 will be entitled to only 1/ 13th share each and Defendants no. 4 to 6 will jointly be entitled to 1/ 13th share only. The Plaintiffs accordingly pray for a decree of partition of the suit property.

3. Defendants no. 1 and 7 filed a joint written statement contesting the claim of the Plaintiffs. In the written statements, Defendants no. 1 and 7 propounded a Will dated 20.07.1988 purported to have been executed by Late Smt. Amirzadi Begum stating that the property in question was bequeathed in favour of Defendant no. 7 by the said will and thus, they prayed for dismissal of the suit. Subsequently by an order dated 04.05.2006, the Defendants were ordered to be proceeded ex parte. Defendants no. 2, 4, 5 and 6 filed joint written statement supporting the claims of the Plaintiffs that the Will propounded by Defendants no. 1 and 7 was a forged document. They also took the plea that the said Will is not valid and cannot be given effect to unless the other heirs of Late Smt. Amirzadi Begum consent to the bequest after her death.

4. In a separate written statement, Defendant no. 3 also supported the claim of the Plaintiffs and Defendants no. 2 and 4 to 6. Subsequently, Defendants no. 2 to 6 having made their stand clear, preferred not to join the proceedings and they were also proceeded ex parte. Their appearance was otherwise also of no consequence as they had supported the case of the Plaintiffs.

5. In the ex parte evidence, the Plaintiffs filed an affidavit of Plaintiff NO. 1 Ex. PW1/ 1 wherein he corroborated the averments made in the plaint. He testified that their mother had died intestate on 27.02.1990 and that all the Plaintiffs and Defendants no. 1 to 6 were entitled to shares in the estate of the deceased as per Principles of Muslim Personal Law (Shariat). He also placed on record a photocopy of the Will dated 20.07.1988 propounded by Defendants no. 1 and 7 and stated that the Will was not actually signed by the deceased Smt. Amirzadi Begum and her signatures upon the Will were forged. PW 1 also proved certain copies of the proceedings initiated by Defendants no. 1 in the District Court and also certain police reports. Plaintiff NO. 2 Amanullah also produced an affidavit Ex. PW2/ 1 sworn by him and corroborated the testimony of Plaintiff no. 1. The application I.A. NO. 16741/ 2012 was moved by Defendants no.1 and 7 for setting aside the order dated 04.05.2006 proceeding them ex parte. The application was dismissed by an order dated 12.10.2012 in the absence of any cause for setting aside the order dated 04.05.2006. At the same time, by that order, this Court had directed to await the decision of the civil suit in which the Will dated 20.07.1988 had been propounded by Defendants no. 1 and 7.

6. I have heard the learned counsel for the Plaintiffs and the learned counsel for Defendants no. 1 and 7 (although they are ex parte) and have perused the record.

7. The learned counsel for the Plaintiffs has placed on record certified copy of the judgment dated 29.04.2014 to show that the suit no. 347/ 2013 preferred by Defendant no. 1 was dismissed by the learned Civil Judge by a judgment dated and decree dated 31.07.2013. The appeal preferred by Defendant no.1 (propounding the Will) was also dismissed by learned Additional District Judge by a judgment dated 29.04.2014. No further appeal or proceedings have been taken by Defendant no. 1 or, for that matter, by Defendant no. 7 and thus, it is finally concluded that the Will dated 20.07.1988 propounded by them has not been proved. Otherwise also, as per Principle 117 of Muslim Personal Law (Shariat), a bequest to an heir is not valid unless the other heirs consent to the same after the death of the testator. Any single heir may consent so as to bind to his own share only. Thus, though the Will has not been proved by Defendants no. 1 or 7, even if there had been any such Will, the same was of no consequence unless there was consent to the bequest by the Plaintiffs and other Defendants. The testimony of two witnesses that Late Smt. Amirzadi Begum died on 27.02.1990 has remained unchallenged and unrebutted. The death of Late Smt. Amirzadi Begum has also not been disputed by any of the Defendants. Rather, Defendants no. 2 to 6 have supported that the stand of the Plaintiffs that Late Smt. Amirzadi Begum had died intestate on 27.02.1990.

8. As per Muslim Personal Law (Shariat), the sons and daughters succeed to the estate of the mother as residuaries only, the son being entitled to get double the share of the daughter. The learned counsel for the Plaintiffs places reliance on S.A. Halima Ammal v. S.A. Fatima Bivi & Others, AIR 1987 Madras 129, wherein it was held that a male child will be entitled to the share equivalent to the shares of two females. Relevant portion of Para 13 of the report in S.A. Halima Ammal is extracted hereunder: “13.The Koran declares that the male child is entitled to the share of two females. Therefore when a man dies leaving a single child or several children, male or female, no other person is entitled to inherit, and the children take in accordance with the rule that the male takes the double share. For instance, if there are two sons and a daughter, the estate shall be divided into five equal shares, the sons shall take two shares each, and the daughter, one share, i.e. 2/5, 2/5 and 1/5, respectively. Under topic „the law relating to gifts‟ in Chapter I, Vol I of Mahommedan Law by Syed Ameer Ali, IV Edition, reprinted 1985, the following passage occurs relating to the concept of property under Mahommedan Law: - “Under the Mahommedan Law, there is no distinction between ancestral and self-acquired property. The owner for the time being has absolute dominion over all property in his possession, whether he has acquired it himself or whether it has devolved upon him by inheritance. He can sell or dispose of it in any way, he likes, provided operation is given to the transaction in his lifetime. It is only with regard to dispositions intended to take effect after the owner‟s death or made when he is suffering from a malady which creates in his mind the fear of death that his power of disposition is limited by the right of his heirs and restricted to a third.”

9. Learned counsel for Defendants no. 1 and 7 has referred to Section 3 of the Muslim Personal Law (Shariat) Application Act, 1937 (the Act of 1937) and has urged that since in the instant case, no declaration as per the requirement of the said section purported to have been made by the parties has been proved, the Act of 1937 will not be applicable and consequently, the principles of Muslim Personal Law (Shariat) would also not be applicable. He therefore, urges that the Will propounded by Defendants no. 1 and 7 is a valid Will. The contention raised is wholly misconceived for several reasons. First, as stated above, the onus was on Defendants no. 1 and 7 to prove the Will propounded by them; secondly, even if the Will propounded by Defendants no. 1 and 7 was proved, for making the Will valid in respect of the shares of an heir, there ought to have been consent of those heirs who were sought to be excluded and, thirdly, the Act of 1937 lays down that a Muslim who is competent to contract can exclude the applicability of the custom or usages to the contrary by making a declaration under Section 3 of the Act of 1937. Sections 2 and 3 of the Act of 1937 are extracted hereunder: