HASHIDA KHATOON Vs. AKHTAR HUSSAIN AND ORS.

JUDGEMENT

(1.) THIS is an appeal by the Defendant. The Respondent herein brought a suit being Title Suit (Probate) No. 22/88 before the District Judge at Guwahati for probate of the will of the deceased Chakina Bibi. An objection was filed on behalf of the present Appellant wherein the main thrust was that as the property divested by way of will was more than 1/3rd share of the will property of the deceased Chakina Bibi, this will cannot be probated in view of Clause 118 of the Mohammedan Law. Clause 118 of the Mohammedan Law lays down the limit of testamentary power:

(2.) EVIDENTLY there is no consent of the heirs as objector is also one of the heir, and on such objection the learned Judge framed as many as six issues and following witnesses were examined:

(3.) THE learned Judge by judgment dated 31.8.96 held that the will was duly executed and attested and he found the will to be genuine one executed by the attestor. The objection with regard to Clause 118 of the Mohammedan Law as quoted above also was negatived on the ground that the attestor only by way of will digested less than 1/3rd of the property. Having arrived at this finding the probate was granted. Hence this appeal.