Dismissed

Mohd. Hamid v. Mohd. Shabbir (Died) Through his Legal hrs.

Chhattisgarh HC3 Mar 2021SA/133/2010

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for declaration of title based on an alleged oral Will, the High Court upheld the dismissal. The court held that the heavy burden of proving an oral Will was not discharged and no perversity was found in the lower courts' findings.

What did the court decide?

Second appeal dismissed in limine without notice to the other side; no order as to costs.

Mohd. Hamid Vs Mohd. Shabbir (Died) Through… — Succession and Inheritance | Chhattisgarh HC (2021)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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SA No.133 of 2010

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Mohd. Hamid, S/o Mohd. Shakir, Aged About 45 Years, R/o Ambagarh Chowki, Tahsil Ambagarh Chowki, Distt.-Rajnandgaon, Chhattisgarh

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---- Applicant

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Versus
1.Mohd. Shabbir (Died) Through His Legal Hrs.
Nill
1(a) Mohd Sharif Quraishi, S/o Mohd.
Shabbir, Aged About 50 Years
1(b) Mohd. Rafiq Quraishi, S/o Mohd.
Shabbir, Aged About 48 Years
No.1 (a) and (b) both R/o Ward No.15,
Ambagarh Chowki, District Rajnandgaon,
Chhattisgarh
1(c) Smt. Begum Be, W/o Hafiz Khan, Aged
About 56 Years, R/o Village Ratan Ghat,
Tahsil Dongargaon, District Rajnandgaon,
Chhattisgarh
2.Lahur Bir, D/o Lal Mohammad, R/o Village
Kode, Tahsil Mohla, District Rajnandgaon,
Chhattisgarh

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3.Arifa Bai, D/o Mohd. Shakir, R/o Village Raja Khujji, Tahsil Dongargaon, District Rajnandgaon, Chhattisgarh

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4.State Of Chhattisgarh Through the Collector, Rajnandgaon

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5.Mohd. Hakim, S/o Mohd. Shakir, Aged About 41 Years, R/o Ambagarh Chowki, Tahsil Ambagarh Chowki, District Rajnandgaon, Chhattisgarh

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---- Respondents

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For AppellantMr. Abhijeet Mishra, Adv.
For Respondent-StateMr. Animesh Tiwari, Dy. AG
For Respondent No.3Ms. Parvati Suryavanshi,
Adv.

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Hon'ble Justice Shri Sanjay K. Agrawal

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Order On Board

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03/03/2021

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1.Heard on admission and formulation of
substantial question of law in the second
appeal preferred by the appellant
/plaintiff No.1.

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2.By the impugned judgment and decree, the
First Appellate Court has dismissed the
appeal preferred by the plaintiffs vide
judgment and decree dated 12.04.2007 passed
by the learned 1st Additional District
Judge, Rajnandgaon (C.G.) in Civil Appeal
No.02A/2006 affirming the judgment and
decree of the Trial Court dated 01.02.2003
passed by the learned Civil Judge Class-I,

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Ambagarh Chowki, District Rajnandgaon
(C.G.) in Civil Suit No.12A/1996 dismissing
the suit filed by the plaintiffs.

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3.Mr. Mishra, learned counsel for the
appellant/plaintiff No.1, would submit that
both the Courts below have erred in
concurrently holding that the oral Will
executed by Lal Mohammad, the plaintiffs'
grandfather, in favour of the plaintiffs
has not been established by recording a
finding perverse to the record. Even
otherwise, the plaintiff No.1 is entitled
for the discretionary relief under Order 7
Rule 11 of CPC. As such, the appeal
deserves to be admitted for hearing by
formulating substantial question of law.

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4. I have heard learned counsel for the appellant, considered his submissions made herein-above and also went through the records with utmost circumspection.

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5.The suit property was admittedly held by

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Lal Mohammad. It is the case of the

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plaintiffs that Lal Mohammad has executed a
Will in favour of them to the extent of
3.14 Acres of land and they have become
title holder of the suit land, by strength
of Will, the suit was filed by them seeking

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relief of declaration of title and
possession against the defendant No.1, who
is the son of Lal Mohammad and is
admittedly in possession of 3.14 Acres of
the suit land shown as Schedule-A appended
with the plaint.

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6.The Trial Court after appreciating the oral
and documentary evidence available on
record held that the plaintiffs have failed
to prove the execution of oral Will. It was
also held that the document (Ex-P-2) filed
by the plaintiffs themselves would show
that Lal Mohammad has cancelled the Will on
26.08.1977 allegedly executed in favour of
the plaintiffs citing reason that it was
fraudulently got executed in favour of the

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plaintiffs, therefore, the plaintiffs have
failed to prove title on the basis of oral
Will, which has been affirmed by the
learned First Appellate Court.

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7. It is correct to say that by the Mahomedan Law, no writing is required to make a valid Will and no particular form, even of verbal declaration, is necessary so long as intention of testator is sufficiently ascertained.

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8. In the matter of Venkat Rao and another vs

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Namdeo and others1, it has been held by the
Privy Council that onus of establishing an
oral Will is always a very heavy one and
must be proved with utmost precision and
with every circumstances of time and place.

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9. Following the principles laid down by the Privy Council in the matter of Venkat Rao ( supra ) in the present case and considering the concurrent findings recorded by the two Courts below, it cannot be held that

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1 AIR 1931 Privy Council 285

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plaintiffs have proved the execution of
oral Will by Lal Mohammad in their faovur
with utmost precision and heavy burden has
been discharged to prove the oral Will.

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10.As such, I do not find any illegality or
perversity in the concurrent findings
recorded by the two Courts below holding
that oral Will executed by Lal Mohammad in
favour of the plaintiffs has not been
proved.

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11. The second appeal deserves to be and is hereby dismissed in limine without notice to the other side. No order as to cost (s).

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 Sd/-

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 Sanjay K. Agrawal
 Judge

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Nirala

Mohd. Hamid v. Mohd. Shabbir (Died) Through his Legal hrs.

Case brief

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What did the court decide?

Mohd. Hamid v. Mohd. Shabbir (Died) Through his Legal hrs.

Case brief

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