GANI MOHAMMAD Vs. GULAM DEEN

JUDGEMENT

(1.) IT is not disputed that there are two fold restrictions on the powers of the sunni muslim to dispose of his property by 'Will'; one in respect of persons in whose favour bequest is made and second as to the extent to which he can dispose of his property. The learned Courts' below have come to the conclusion that the suit of the plaintiff -respondent deserves to be decreed only to the extent it pertains to 1/3rd part of the share of the testator. This finding of the trial Judge was challenged before the Lower Appellate Court, where it met with the same fate and this is how the matter has come up in appeal before this Court.

(2.) THE facts, in brief may be noticed. The plaintiffrespondent filed a suit for declaration and permanent injunction on the ground that the plaintiff, defendants No. 1 to 3 (appellants herein) and proforma defendants No. 9 to 10 are the co -owners in joint possession over the suit land measuring 10.10 bighas comprised in khasra No. 76, 176, 181, kitta -3 No. Khata Khatoni 96/110 and also co -owner in joint possession qua the share of the father of the plaintiff Sh. Noor Deen in the total land measuring 6.0 bighas comprised in khasra No. 236/182, No. Khata Khatoni 1min/2 situated in village Kathalag, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. It was averred that late Sh. Noor Deen son of Navia, father of the plaintiff, was owner -inpossession of the suit land, who expired on 14.11.2009 leaving behind him plaintiffs, defendants No. 1 to 3 and proforma defendants No. 9 and 10 as the co -owners in joint possession of property. As per the Mohammadan Law applicable to the Suni muslims in India, it was averred that the plaintiff and defendants No. 1 to 3 would inherit 1/3rd share each and one share would be inherited by defendants No. 9 and 10. It was further averred that among the Suni muslims, there was no provision to execute a 'Will' by excluding the legal heirs and in the alternative if the 'Will' is to be executed in favour of the strangers, who are not sons and daughters than the same has to be dealt with as per the law. It was thereafter contended that although the father of the plaintiff Sh. Noor Deen had not executed any 'Will', but in case 'Will' dated 16.2.2008 is proved to be genuine, then grandsons who are not the legal heirs of the father of the plaintiff, as per the Mohamadon Law are bound to pay the loan obtained by the father of the plaintiff including other expenses. It was lastly contended that the alleged 'Will' otherwise is a result of fraud, mis -representation and undue influence and, therefore, deserves to be set aside.

(3.) THE plaintiff filed replication to the Written Statement, reiterated and re -affirmed the averments made in the suit and denied those put forth in the Written Statement.