BIBI SARJAHATAN Vs. BIBI MAMENA SHEIKH

JUDGEMENT

(1.) This appeal has been filed by Bibi Sarjahatan, who has preferred an application under Sec. 276 of the Indian Succession Act for probate of Will executed by Bibi Sabiran wife of Late Sikandar Ali with respect to Schedule 'B' land in her favour.

(2.) The applicant is the daughter-in-law of executor of Will and Will was executed by registered deed dtd. 17/1/1997 as her last Will with respect to of Schedule 'B' property which was acquired by testator Bibi Sabiran through a sale deed bearing registration no. 5780 dtd. 26/11/1979 from one Samsuddin Sheikh son of Late Ahmad Sheikh. Opposite party no.1-Sadar Sheikh is brother of her husband and opposite party no.2-Mamena Bibi is his wife. Both the parties appeared and contested the probate application, consequently, it was converted into a Title Suit by the learned Court below vide order dtd. 13/2/2004.

(3.) It is the case of the opposite party/respondent that applicant in collusion with her husband Badruddin Sheikh set up a woman in place of Bibi Sabiran and got fraudulent deed executed in her favour. At the time of filing of the claim application Sadar Sheikh who happens to be the son of the testator was not made a party and only on getting to know about this case filed a petition for being impleading and was impleaded vide order dtd. 22/9/2003. As a matter of fact, Bibi Sabiran being very much pleased with the service of Sadar Sheikh (O.P.2), had executed an unregistered deed of gift in his favour on 7/6/1996 in presence of witnesses and the deed was accepted by the donee. Sadar Sheikh was living in the same house, therefore there was no requirement of delivery of possession. Sadar Sheikh for payment of Den Mohar to his wife executed sale deed No. 2099 dtd. 2/5/2001 in favour of his wife Mamena Bibi (O.P.). Vide order dated 15/6/4 Momena Bibi/respondent has also been impleaded in the case.