DAMODAR KASHINATH RASANE ANDSAHAJADIBAI Vs. SHAHJABAI

JUDGEMENT

(1.) Plaintiff Shahajadibi is the widow of late Bapubhai Momin, a Muslim governed by the Hanafi School of Mohamedan Law. Bapubhai owned a piece of agricultural land which is the subject matter of the suit. During his life time on October 9, 1944, he made a Will under which he bequeathed the entire land to one Bakshushaha who was his fathers sisters son. Bapubhai died on 9-11-1949 leaving the plaintiff his widow, as the only heir. It appears that Bakshushaha renounced life and became a Fakir and his wife Hafizabi leased out the land in 1968 to defendants 2 and 3. Plaintiff Shahajadibi, therefore, filed the present suit in 1972 for recovery of the land from the defendants claiming the same in her capacity as the sole heir of her husband Bapubhai. The suit was registered by defendants 2 and 3, defendants No. 1 Bakshushaha remaining ex-parte. The defence was that Bakshushaha, whose wife had leased out the property to defendants 2 and 3 had become the owner of the entire land under the Will and the plaintiff had no right, title or interest left in the land. Alternatively, it was contended that defendants No. 1 had become owner by adverse possession and defendants 2 and 3 being his tenants were in legal possession of the land. The trial Court held that the Will made by Bapubhai in favour of Bakshushaha was invalid since under the Mahomedan law the bequest of the entire property was not permitted. The Court, therefore, decreed the plaintiffs suit. In appeal filed by defendant Nos. 2 and 3, the Appellate Court, held that the Will was valid to the extent of one-third of the bequest since under the Mahomedan law Bapubhai had power to bequeath up to one-third of his property. The Appellate Court, therefore, modified the decree and granted possession of two-thirds of the land to the plaintiff with a direction to partition the land. Aggrieved by this decision, both the plaintiff as well as defendants 2 and 3 have preferred the present cross Second Appeals. Plaintiffs Second Appeal is No. 796 of 1980 and the appeal preferred by defendant Nos. 2 and 3 is No. 636 of 1980.

(2.) The appeals having come before the learned Single Judge, by his decision and order, of January 27, 1987 he referred the matter to the Division Bench since though he was of the view that the Will was valid to the extent of one-third of the estate, another learned Single Judge of this Court.(Yasin Imambhai Shaikh v. Hajarabi w/o Shaikh Abbas) has taken the view that where the entire property is bequeathed, the whole of the bequest becomes invalid.

(3.) Before us Mr. Gokhale appearing for the defendants-appellants in Second Appeal No. 636 of 1980 contended that the view taken by the learned Single Judge in 1986(1) Bom.C.R. 557 (supra) was erroneous since under the Mahomedan Law, a Mahomedan is empowered to bequeath one-third of his property and the bequest becomes invalid only to the extent that it is in excess of one-third. He also submitted that where a Mahomedan as in the present case dies leaving his widow as the only heir and there are no other blood relations, her share being one-fourth in the estate of her husband, the plaintiff would get only one-fourth of the two-thirds of Bapubhais estate, that is one-fourth of the estate which is in excess of the bequeathable one-third. She would therefore, be entitled to only one sixth of the land and hence the balance of the estate would fall to the share of Bakshushaha, and as Bakshushahas tenants, the appellant-defendants would be entitled to remain in possession of the 5/6th of the land. As against this Mr. Abhale, the learned Counsel appearing for the plaintiff, submitted that the view taken by the learned Single Judge in 1986(1) Bom.C.R. 557 (Supra) that when a Mahomedan makes a bequest of his estate in excess of one-third, the entire bequest becomes invalid, is supported by a decision of the Full Bench of the Allahabad High Court reported in 1908 I.L.R (30) Allahabad 153 (Fahmida Khanum v. Jafri Khanum) In that view of the matter, no part of the estate goes to Bakshushaha and, therefore, defendants 2 and 3 are not entitled to claim tenancy from Bakshushaha and remain in possession of the land. As regards the second submission, he contended that the same was being agitated for the first time in this appeal and, therefore, it should not be considered. He had, however, no comments to offer on the position of law with regard to the share of the widow when a Mahomedan dies leaving widow as his only heir.