ILLYAS Vs. BADSHAH ALIAS KAMLA

JUDGEMENT

(1.) This is defendants' first appeal under S.96 of the Civil P.C. against the judgment and decree dated 21-11-1985 passed by Shri K.C. Agarwal, First Additional Judge to the Court of District Judge, Sagar in civil suit No.24-A/ 1982, allowing the respondent's suit for declaration and directing the appellants to hand over the vacant possession of the suit house to the respondent.

(2.) The dispute between the parties is about houses Nos. 359 to 374 situate at Itwari Tori, Sagar. Appellant Abdul Gafoor claimed ownership of the said house on the basis of will dated 28-11-1956 (Ex. D/ 1) executed by one Munnilal who was a eunuch, in his favour. The said Abdul Gafoor sold the suit house to appellants Nos.1 and 2 by a registered sale deed dated 19-9-1977. The case of the respondent-plaintiff is that he is a eunuch and was a Chela of Munnilal, who died some times in 1957. Munnilal admittedly was the chela of Nasiban, another eunuch. According to the respondent, eunuchs are a class by themselves and follow Guru-Chela system under which the property in the hands of Guru passes on to his chela. According to the respondent, a Guru in his community cannot transfer the property in his hands to any one outside the community. According to the respondent-plaintiff, Munnilal had received the suit properties from his Guru Nasiban in accordance with the aforesaid custom. His further case is that the said Munnilal executed a will in his favour on 6-9-1956 (Ex. P-1) and alto got the same registered. The respondent, therefore, claimed ownership of the suit properties on the basis of this will and submitted that the so called will dated 28-11-1956 (Ex. D-1) in favour of Munnilal was forged and fabricated and otherwise of no legal effect, inasmuch as Munnilal being a eunuch could not transfer the suit properties to appellant Abdul Gafoor who was not a eunuch. The respondent, therefore, claimed a declaration of his title over the suit houses and also that the will dated 28-11-1956 and sale deed dated 19-9-77 are illegal and void. Appellant Abdul Gafoor admitted that Munnilal was a eunuch but denied that he had no authority to transfer the property to a person who was not eunuch. According to him, Munnilal was entitled to execute the will about the suit property like any other Muslim. He, therefore, claimed that will dated 28-11-1956 (Ex. D-1) was legal and valid. The other two appellants claim to be bona fide purchasers of the properties. The learned trial Judge, on the basis of evidence adduced by the parties, held that there was a custom among eunuchs under which the property of a eunuch could be transferred only to another eunuch of the community and not to a person outside the community. The learned trial Judge further held that Guru-Chela system was prevalent amongst eunuchs under which the property in the hands of Guru was inherited by Chela. On these findings he held that will dated 28-11-1956 (Ex. DA) was illegal and void. That is how the suit was allowed and declaration given.

(3.) The submission of the learned counsel for the appellant, in the main, is that Munnilal being Mohammadan, was entitled to execute his will like any other Mohammadan and his this right could not be limited in any manner. According to the learned counsel, there could be no custom contrary to Muslim Law and no such custom could be recognized. It is also submitted that even if it was to be held that a custom like it was not contrary to Muslim Law, existence of the said custom has not been proved in accordance with law. Learned counsel for the respondent, however, submitted that the custom as pleaded was neither contrary to any law nor was otherwise unreasonable. The said custom according to the learned counsel is proved by evidence on record. The learned counsel further submitted that the will dated 28-11-1956 (Ex. D-1) was not proved in accordance with law and, therefore, no further question should arise in the case.