BEGUM BAI Vs. WASHED KHAN AND OTHERS

JUDGEMENT

(1.) The unsuccessful plaintiff in the suit for general partition and allotment of ⅕th share of her father's Mathruka laid this appeal. Her averment in the pleadings is that her father died intestate leaving behind herself, her brothers, defendants 1 and 2. Defendant No. 2 filed a written statement admitting the claim of the appellant. Before filing the written statement defendant No. 1 died. As a result his legal representatives were brought on record as defendants 3 to 7 who up a registered will executed by Lal Khan dated 21 Bahuman 1334 Fasli bequeathing to the appellant an extent of Ac. 13.71/2 guntas in Sy. No. 60 and she had agreed for the same and now she cannot ask for a partition on the basis of intestate succession. The appellant did not file a rejoinder. The parties went to the trial. The Court below framed as many as seven issues, held that anterior to the suit there were proceedings in the Court of the Chief Judge, Aurangabad impugning the will executed by Lal Khan. There the appellant, the defendants 1 and 2 and other were impleaded as defendants 3 to 7. "Written statement, Ex. B-56 was filed in that suit. The appellant was represented by an advocate con seating to the will executed by their father. Subsequently O.S. No. 74/1/1337 Fasli was filed in the Court of the District Munsif, Bhainsa assailing the will along with defendant No. 1 and that suit was dismissed under Ex. B-55. It was held by the Court below that it was not open to the appellant to say that decree under Ex. B-55 is not binding on her. The suit is barred by limitation since the respondents have been in possession of the property f for most than 12 years and she did not file a suit within 12 years as per Art. 65 of the Schedule to the Limitation Act 1963. Since the Appellant was given an extent of Ac. 13.71/2 guntas in Sy. No. 60 situated in Halda Village, she will be entitled to the possession of the same subject to the tenancy rights if any. Accordingly, the suit was decreed only to the extent of possession of above extent and the suit for general partition has been dismissed.

(2.) Learned counsel for the appellant Mr. Mirza Imamulla Baig has contended that under the Muslim personal law a Mohammaden though entitled to bequeath his share of properties, on his demise the consent of the other heirs is a must and in the absence the will is not valid. Therefore, the appellant can ignore the same and file a suit for general partition. The Court below had committed error in dismissing the suit for general partition. The question therefore, is whether the will is valid and binding on the appellant. Under paragraph 17 of the Muila's Principles of Mohammadan Law, admitted by M. Hidaytullah, Format Chief Justice, Supreme Court of India, 18th edition at page 137 the bequest postulates :

(3.) No doubt in illustration (e) it is stated that a Mahommedan leaves him surviving a son and a daughter. To the son he bequeaths three-fourths of his property, and to the daughter one-fourth. If the daughter does not consent to the disposition, she is entitled to claim a third of the property as her share of the inheritance. Hence, the consent construed to be an express consent as postulated thereunder and was pressed into service by Sri Imamulla Baig learned counsel for the appellant. Thus it can be seen that bequest to a heir by a Mohammaden is not valid, unless the other heirs consented to the bequest after the death of the testator. A heir's consent would be binding on his share alone and the consent does not bind the shares of others. In Gulam Mohammad Vs. Gulam Husain and others, AIR 1932 PC 81 Sir George Lowndes speaking on behalf of the Board held that under the Hanafi Law, a bequest to an heir is invalid unless consented to by the other heirs after the testator's death. Therefore, the consent of the heirs so as to bind their shares is a must. The question, therefore, is whether the appellant has given consent to the will executed by her father agreeing to the disposition under the will. Admittedly it is a registered will under which the bequest is made by the father in favour of his heirs including the appellant. As seen this will, is the subject matter of attack at the earliest point of time even during the life time of Lal Khan by one of the persons claiming the property as a heir namely, first wife Mohamooda Bee. That was a suit filed in the Court of the Chief Judge. Aurangabad obviously at that time that Court has territorial jurisdiction on the area over the property and the persons. Therein, there was a compromise under Ex. B-56, written statement, filed by defendants 3 to 9, in which the appellant was also a party. They consented to the will. Subsequently another suit O.S. No. 74/1/1337 Fasli in the Court of the District Munsif, Bhainsa filed by the first defendant herein, she was the sixth defendant in that suit. She also impeached the will again along with the first defendant, Out the suit was dismissed upholding the will. Now for the third time she filed the suit. The first defendant who was unsuccessful in O.S.No. 74/1/1337 Fasli the Judgment of which marked as Ex. B-55, now supports the will. The appellant did not file any rejoinder Assailing the legality or the binding nature of the will to the extent of her share in the Mathruka of her father. That suit was dismissed as earlier indicated under Ex. B-55 and it became final. Thus the question is whether the appellant by her conduct has consented to the will of her father Lal Khan .