ZULEKABI Vs. MOHAMMAD MUSTAFA

JUDGEMENT

(1.) HEARD the learned counsel for the parties. The parties are referred to by their rank before the trial Court, for the sake of convenience.

(2.) THE appellants were the defendants before the trial Court. THE facts are as follows: One Fakrusab, a Mahomedan, had five children, namely, Nabeesab, Mohamed Mustafa, Mastan Sab, Mahaboobi and Basha. Nabeesab is said to have pre-deceased Fakru Sab. THE Defendants, who were the widow and children of Nabeesab, were in the care and custody of Fakru Sab. He executed a Will, dated 5-7-2001 bequeathing his properties in favour of the widow and children of Nabee Sab. For the sake of clarity the family tree is reproduced along with the rank of the parties in the suit. THE plaintiff sought for division of the suit property on the footing that Fakru Sab could not have bequeathed the properties to the defendants, in entirety. THE suit was contested. THE trial Court held that the bequest was valid only to the extent of one-third of the extent of the properties and decreed the suit in part. THE lower appellate Court on appeal reversed the judgment and held that the suit properties could not be bequeathed without the consent of his heirs who were excluded from the bequest. It is that which is under challenge in this appeal.

(3.) THE learned counsel for the appellants would thus contend that the bequest having been restricted to one-third of the estate of Fakru Sab, in favour of the appellants, by the trial Court was in accordance with law and hence seeks that the question of law be answered in favour of the appellants and the judgment of the lower appellate Court be set aside.