SAMIULLAH & ORS Vs. RAFIULLAH & ORS

JUDGEMENT

(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 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 The said suit was dismissed as withdrawn.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.