VAZEER BEE Vs. PUTTI BEGUM

JUDGEMENT

(1.) The unsuccessful defendants are the appellants. The Respondent, daughter of late Shaik Mahboob, laid the suit for partition of the plaint schedule properties on the ground that her father died intestate. In the suit the appellants propounded the will, Ex. B1 dt. 15/06/1956, under which the testator had given 1/3rd share to the second appellant. The trial Court in the first instance accepted that the will is valid and passed a preliminary decree. On appeal, it was confirmed. In Second Appeal No. 570/77, this court by judgment dt. Feb. 6, 1979, allowed the appeal and set aside the decree, in so far as it purports to uphold the validity of Ex. B. 1 and the second defendants claim of 1/3 rd share in item No. 1 of the plaint schedule properties and remanded for fresh disposal in accordance with law after giving opportunity to the parties.

(2.) After remand, the appellate court held that the will is not valid and binding. It also held that the will does not contain a provision for 1/3rd share in the house to the second defendant. Accordingly, in the first instance it granted a preliminary decree declaring that the plaintiff is entitled to 1/2 share, that the first defendant is entitled to 1/2 share, that the first defendant is entitled to 1/8th share and that the second defendant is entitled to 3/8th share. The second defendant is not a legal heir, as per law. Then I. A., 14/80 was filed for amendment of the decree and consequently it amended the decree declaring that the respondent is entitled to 7/8th share and the first appellant is entitled to 1/8th share and the second defendant/2nd appellant is not entitled to any share in the suit properties. Assailing the correctness of the appellate decree, the present second appeal has been filed.

(3.) In this appeal, Sri. Aziz Ahmed Khan, learned counsel for the appellants contended that the view of the lower appellate Court that the will, Ex. B1 is not legal as per Mohammedan Law"., is not correct. He contends that the will recites several persons to be the heirs. It also declares the assets and liabilities. It also provides the proportion in which the property is to be received by each party and finally it is stated that the heirs are entitled to the properties after the testators lifetime. There is no express provision under the Mohammedan Law to recite in the will that right to revocation is reserved. The lower court proceeded on an erroneous assumption that the testator conferred rights in praesenti and the absence of right to revocation of the will constitutes invalidity. This view is against the provisions of Chap. IX of Principles of Mohammedan Law by Mulla. He read out various provisions thereunder.