MOHAMMED ASHRAF Vs. TABBASUM

JUDGEMENT

(1.) PLAINTIFF of O.S. No. 113/98 which was pending on the file of the court of II Addl. Civil Judge (Jr. Dn.), Belgaum, is before this Court by filing an appeal u/S. 96 of CPC. Suit filed by him for the relief of partition and separate possession of an immovable urban property bearing CTS No. 340 measuring in all 138.79 sqmts in the city of Belgaum, has been decreed in part granting 4/9th share only to the plaintiff and 2/9th share + 1/3 share to defendant No. 1 -Tabassum. It is this judgment and decree which is called in question on various grounds as raised in the appeal memorandum amongst other grounds.

(2.) APPELLANT is the plaintiff in the said suit. First respondent is the first defendant and remaining respondents herein are the defendant Nos. 2 to 6 in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking given in the trial Court. Facts leading to the filing of the suit before the trial Court in O.S. No. 113/98 are as follows:

(3.) PLAINTIFF is examined as PW1 and has got marked 25 exhibits. First defendant is examined as DW1 and one Nasirahmed Abdulla Kinikar as D.W.2 apart from getting 4 exhibits got marked on behalf of the first defendant. Ultimately, issue Nos. 1 and 2 have been answered partly in the affirmative and issue No. 4 in the negative and consequently suit is decreed in part granting 4/9th share to the plaintiff and 4/9 and 1/3 share to the first defendant. It is contended before this Court that a Will executed in favour of an heir will not have binding force unless other heir's consent and in this regard Sec. 117 of Mohammadan Law is relied upon by the learned counsel for the appellant. It is also contended that if a Will is executed by a Mohammadan in favour of a non heir it is totally invalid unless it is consented to by other heirs and that such consent will bind the share of consenting parties only.