MUNAWAR BEGUM Vs. ASIF ALI AND ORS.

JUDGEMENT

(1.) THIS second appeal arising out of the judgement dated 31st October, 2014 passed in Title Appeal No. 26 of 2010 was admitted on the following substantial questions of law: - -

(2.) MRS . Anjili Nag, learned advocate for the appellant/plaintiff submitted that her client filed a suit for partition in respect of property relating to several survey numbers. However, the judgement and decree dated 31st October, 2014 passed by the learned Additional District Judge, Andaman and Nicobar Islands, Port Blair in Title Appeal No. 26 of 2010 as well as the judgement and decree dated 30th December, 2009 passed by the learned Trial Judge in Title Suit No. 64 of 2003 are bad both in law and in fact as both the Courts below failed to consider the point of law raised by the appellant.

(3.) REGARDING the validity of the WILL, submission was though a WILL under the Mohammedan Law, in order to be valid and enforceable in law, has to fulfill certain conditions under Rule 192, in the instant case, however, the WILL of Saira Begum, the mother of the appellant falls short of the requirements stipulated therein. Referring to Rule 192 of the Mohammedan Law, submission was since bequest to an heir is not valid unless other heirs consent and as consent is mandatory and as there is no dispute that the signature of the appellant was not obtained, the WILL under the law is invalid. It was submitted that normally in a WILL there is no mention about the consent of the heirs. Though the WILL in question speaks of the consent of all other children, however, as the signature of the appellant was not obtained, the WILL is invalid. Submission was consent should be by acts and deeds and implied consent cannot be derived. Though submission was made with regard to Rule 192, it was not considered by both the Courts below.