Dismissed

Mohammad Junaid and 3 Others v. Nisar Ahmad @ Chunna and 3 Others

Allahabad HC11 Mar 2025SAPL/44/2025

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal challenging the validity of a sale deed based on a will executed by aMuslim woman. The court held that no prior permission from legal heirs is required for executing a will and found no illegality in the lower courts' findings.

What did the court decide?

Second appeal dismissed. Findings of lower courts that will was validly executed and title passed to respondents are upheld.

Mohammad Junaid and 3 Others Vs Nisar Ahmad @… — Succession and Inheritance | Allahabad HC (2025)

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Neutral Citation No. - 2025:AHC-LKO:14758

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Court No. - 4

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Case :- SECOND APPEAL No. - 44 of 2025

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Appellant :- Mohammad Junaid And 3 Others Respondent :- Nisar Ahmad @ Chunna And 3 Others Counsel for Appellant :- Bajrangi Verma Counsel for Respondent :- Brijesh Kumar Pandey

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Hon'ble Rajnish Kumar,J.

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Vakalatnama filed by Shri Prabhat Kumar, Advocate on behalf of respondent nos.1 and 3 is taken on record.

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Heard, Shri Bajrangi Verma, learned counsel for the appellant and Shri Prabhat Kumar, learned counsel for the respondent nos.1 and 3.

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Learned counsel for the appellants submits that a Muslim lady could not have executed the Will in favour of a person who is not her legal heir except with the permission of the legal heirs but the Will was executed by Mrs. Hazra Khatoon in favour of the respondent nos.1 and 2 without any permission, therefore, the sale deed made on the basis of said Will was liable to be setaside but the learned trial court failed to consider it and without making any issue in this regard dismissed the suit. The appeal has also been dismissed by the lower appellate court without considering it and the grounds raised by the appellants, therefore, they are constrained to approach this Court.

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Per contra, learned counsel for the respondent nos.1 and 3 submits that there is no provision in the Personal Law that the permission of any legal heir is required before execution of a Will and learned counsel for the appellants also failed to show any such law. The Will was executed by the original tenure holder Mohd. Usman in favour of his wife Mrs. Hazra Khatoon. Accordingly, she had become the owner of the properties in dispute. She, in her life time, had executed the Will in favour of the respondent nos.1 and 2 in accordance with law and the property could have been sold as per the Will with the permission of one Mohd. Asif but the courts below have found that there is no such person named Mohd. Asif, therefore, the sale deed was rightly executed on the basis of title from Will. Thus, there is no illegality or error in the findings recorded by the courts below. Even otherwise, neither the Will has been challenged nor the appellants could have challenged the same as they are not the legal heirs of Mrs. Hazra Khatoon. The

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appeal has been filed on misconceived and baseless grounds. No substantial question of law arises in this appeal, therefore, the appeal is liable to be dismissed.

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I have considered the submissions of learned counsel for the parties and perused the documents placed on records of this appeal.

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The original title holder Mohd. Usman had executed a registered Will on 18.05.1983 in favour of her wife Mrs. Hazra Khatoon and after death the properties were to be passed to their daughter Ms. Tahzibunnisha, who was married to Mohd. Nisar. Mohd. Usman died on 18.02.1994, therefore, the Will came in operation. The daughter of Mohd. Usman died on 28.11.1995. A registered Will was executed by Mrs. Hazra Khatoon in favour of the respondent nos.1 and 2 on 25.10.1996. Smt. Hazra Khatoon died on 19/20.12.1996, therefore, the Will became operative. The suit for permanent injunction was filed by the appellants on 01.02.1997. After filing of the written statement and disclosure of Will in favour of the respondent nos.1 and 2, the suit was amended and a prayer for declaration of rights in their favour was made but the Will was not challenged.

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Subsequently, a sale deed was executed by respondent no.1 in favour of respondent no.3 on 08.08.2008, therefore, the suit was again amended and the prayer for cancellation of sale deed was added on the ground that the Will could not have been executed by Mrs. Hazra Khatoon as without prior permission of legal heirs, therefore, no right accrues on the basis of it and the sale deed could not have been executed.

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Learned trial court, after considering the pleadings of the parties and making the issues and considering the pleadings and evidence on record, found that the appellants are neither the legal heirs of Mrs. Hazra Khatoon nor the owner and in possession of the property in dispute and that the Will was correctly executed in accordance with law and accordingly the sale deed was executed on the basis of the title in pursuance of the Will executed by Mrs. Hazra Khatoon and dismissed the suit.

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Learned counsel for the appellant also failed to indicate any law under which a Muslim lady who has got property under the Will from the original title holder is required to seek permission from his legal representatives before execution of a Will deed, even if it is. The appellants could also not show that they are the legal representatives as per law.

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So far as the plea of learned counsel for the appellants is that no issue has been framed in this regard, this Court is of the view that the contention of the learned counsel for the appellants is misconceived and not tenable because the Will was not challenged by the appellant even after coming to know about the Will through the written statement filed by the respondents. The appellate court also considering the pleadings, material and evidence on record and grounds raised by the appellant considered the appeal and dismissed.

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This Court does not find any illegality or error in the findings recorded by the courts below on the basis of pleadings, evidence and material on record. Nothing contrary could be shown by learned counsel for the appellants in the findings recorded by the courts below, on the basis of which this Court may take a contrary view. The appeal has been filed on misconceived and baseless grounds. No substantial question of law arises in the appeal.

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The appeal is, accordingly, dismissed .

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...................................................................(Rajnish Kumar, J.)

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Order Date :- 11.3.2025 Haseen U.

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Digitally signed by :- HASEENUDDIN High Court of Judicature at Allahabad, Lucknow Bench

Mohammad Junaid and 3 Others v. Nisar Ahmad @ Chunna and 3 Others

Case brief

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Mohammad Junaid and 3 Others v. Nisar Ahmad @ Chunna and 3 Others

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