MUSAMMAT FATEMA BIBI Vs. EKRAMUL HAQ ANSARI

JUDGEMENT

(1.) This appeal is directed against a judgment and decree dated Dec. 1, 1981, passed by the learned Additional District Judge, First Court, Howrah, in Probate Suit No. 4 of 1980, whereby the Probate was granted in respect of a Will of one Noor Muhammad Ansari. The wife of Noor Muhammad Ansari is the appellant.

(2.) The testator, Noor Muhammad Ansari died on Feb. 16, 1980 at 484, G. T. Road (South), Sibpur, Howrah. On 7.2.80, he executed his last Will and Testament whereby he appointed his sister's son Ekramul Haq Ansari, as the sola executor. At the time of death Noor Muhammad Ansari left behind him surviving his widow,the present appellant, Mussammat Fatema Bibi. According to the terms of the Will, the testator bequeathed Holding Nos. 74 and 75, Cows Ghat Road, with structures thereat to Ekramul Haq Ansari and one Samim Qureshi in equal shares and a provision was made that the appellant Fatima Bibi will be entitled to Rs. 150.00 per month towards her maintenance from the income of the property. As Noor Muhammad was illiterate, he executed his Will by affixing his thumb impressions in presence of witnesses. On an application for probate having been made by Ekramul Haq Ansari, the appellant contested the same by filing a written objection. Her contention was that she used to live with Noor Muhammad all along and that no such Will was at all executed by her husband. Had there been any Will, she would have known about the same. The Will in probability was manufactured after his death by procuring his thumb impression on a blank paper. It was further contended that Zubeda Khatun was not the sister of Noor Muhammad, and that being so, Ekramul Haq Ansari was not the testator's full sister's son though it was admitted that by relation Ekramal Haq Ansari was a nephew (sister's son to the testator)

(3.) At the trial on behalf of the plaintiff five witnesses were examined. P. W. 1 was Muhammad Mustafa Qureshi, who was a sister's husband of one of the legatees, Samim Qureshi. He was a teacher in Howrah Muslim High School, who claimed to be a legal practitioner for sometime after having passed L.L.B. Examination in 1975. He could not remember the date of his joining the Bar. He claimed to have practised law at Howrah Criminal Court as an Advocate for sometime, but clearly admitted that at the time of drafting the Will, he was not practising but he used to attend the chamber of one Ananda Singh, Advocate. Under the instruction of Noor Mhharomad given his bouse, he drafted the Will but he could not remember the date on which he was so instructed to draft out the Will. On 7.2.80, he prepared the draft which was typed on the same day and it was executed by the testator by putting his thumb impressions on the same. He knew that a Muslim could bequeath ⅓rd of his property, but he did not know the limits of this testamentary power of a Sunni Muslim. He knew the testator as a friend of his father-in-law, Sk. Kalloo Qureshi. He drafted the Will and gave it to one Gorachand Das, a moharar of an advocate, M.N. Ghosal. Gorachand after getting it typed, handed over the same to him and it was be who read over and explained the Will to Noor Muhammad. He claimed that Gorachand Das, Asraf Ali, Muhammad Yusuf and Fatem Bibi were all present and they signed the Will in the presence of the witnesses but in reality Gorachand Das, Amjad Ali and Mubammad -Yusuf were the attesting witnesses.