Allowed

Khurshida Bano v. Mu.Imtiyaz Bee and Others

Chhattisgarh HC4 Jan 2021SA/17/2010

Case brief

AI extract

What is this about?

The High Court allowed a second appeal, holding that a new plea limiting a Mahomedan's testamentary power to 1/3rd was not raised in the trial court and constituted unfair prejudice. The trial court judgment granting full possession to the plaintiff widow under the will was restored.

What did the court decide?

The impugned judgment and decree of the First Appellate Court set aside; trial Court judgment dated 29.09.2006 restored; Appellant/Plaintiff entitled for entire 210 sq. feet of suit land.

Khurshida Bano Vs Mu.Imtiyaz Bee and Others — 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.17 of 2010

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Khurshida Bano, W/o Aashik Ali, aged about 52 years, R/o Tarkapara, Raigarh (C.G.)

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---- Appellant/Plaintiff

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Versus

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1. Mu.Imtiyaz Bee, Widow of Hazi Nazar Mohammad, aged about 73 years, R/o Turkapara, Raigarh

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2. Jabbar Mohammad, S/o Nazar Mohammad, aged 43 years, R/o Turkapara, Raigarh

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3. Abbas Mohammad, S/o Nazar Mohammad, aged 46 years, R/o Turkapara, Raigarh

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4. (a) Akbari, widow of Gaffar Mohammad, aged 34 years

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4. (b)Siraz, S/o Late Gaffar Mohammad, aged 19 years

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4. (c) Raj, S/o Late Gaffar Mohammad, aged 18 years

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All R/o Turkapara, Raigarh, Tehsil and
District Raigarh (C.G.)

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5. Mohammad Rajjak, S/o Nazar, aged 40 years, R/o Turkapara, Raigarh, Tehsil and District Raigarh (C.G.)

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---- Respondents/Defendants

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For AppellantMr. S. N. Nande, Advocate with
Mr. Priyanshu Gupta, Advocate
For Respondents Mr. Ashish Shrivastava,
Advocate

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Hon'ble Justice Shri Sanjay K. Agrawal

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Order On Board

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04/01/2021

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1 . This second appeal preferred by the appellant/plaintiff was admitted for hearing on 26.08.2020 on the following substantial question of law :-

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"Whether the first appellate Court is
justified in partially reversing the judgment
of the trial Court by granting only 1/3rd
part of the suit property, by recording a
finding which is perverse and contrary to the
record?"

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(For the sake of convenience, parties
would be referred hereinafter as per their
status shown and ranking given in the suit
before the trial Court.)

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2 . The suit property bearing Sheet No.56, Plot No.129/1 admeasuring area 420 sq. feet was originally held by one Noor Khan. He had two wives namely Chhote Bee and Begum Bee. After his death, the suit property was divided between his two wives. Each of them got equal share of the property. Chhote Bee got 210 sq feet of land bearing Khasra No.129/1, whereas Begum Bee got 210 sq feet of land bearing

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Khasra No.129/3.

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3 . The dispute in the suit property relates to 210 sq feet of land bearing Khasra No.129/1 held by Chhote Bee, which she gave on licence to the original defendant No.1 Bahadur Mohammad, who died during the pendency of the suit and his legal representatives have been arrayed as party respondents, for running betel shop. When she (Chhote Bee) demanded possession of the suit land, the defendant No.1 refused to give the vacant possession of the suit land, therefore, she instituted a suit for possession of the suit land stating interalia that she being the title holder, it was given to the original defendant No.1 Bahadur Mohammad on licence, but now he is not vacating the suit land despite requests. In the meanwhile, Chhote Bee died on 31.08.2002. On 21.07.1993, she had executed a WILL vide Ex-P/1 in favour of the present substituted appellant/plaintiff Khurshida Bano and 210 sq feet of land bearing Khasra No.129/1 was bequeathed in favour of Khurshida Bano. The appellant/plaintiff was

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substituted as legal representative of Chhote
Bee in the civil suit on the strength of the
said WILL and thereafter she prosecuted the
suit. The defendants have disputed the
averments in the plaint by filing written
statement. By way of amendment, the defendant
No.1 also pleaded that on the basis of WILL,
no title has been conferred to the present
appellant/ plaintiff. According to the
defendants, in the WILL dated 21.07.1993 (Ex-
P/1), the suit land is not included and
therefore the substituted plaintiff herein
has no right/title over the suit land and the
suit be dismissed.

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4 . The trial Court by its judgment and decree dated 29.09.2006 in Civil Suit No.192A/2006 after appreciating oral and documentary evidence available on record held that the plaintiff is the title holder of the suit land on the basis of WILL and she is entitled for decree of possession, which was challenged by the defendant No.1 before the First Appellate Court. The First Appellate Court by its impugned judgment and decree

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dated 07.11.2009 in First Civil Appeal
No.1A/2008 partly modified the judgment and
decree passed by the trial Court and held
that the appellant/plaintiff is only entitled
for 1/3rd share of the suit land of 210 sq
feet bearing Khasra No.129/1. Feeling
aggrieved by the impugned judgment and decree
of the First Appellate Court, the present
second appeal has been filed, in which the
substantial question of law has already been
formulated and set out in the opening
paragraph of this judgment.

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5 . Mr. S. N. Nande, learned counsel for the substituted plaintiff/appellant, would submit that the defendant No.1 did not raise any plea that the plaintiff/appellant is only entitled for 1/3rd share of the suit land on the basis of WILL dated 21.07.1993 (Ex-P/1) by pleading that as per Muslim Law, a mahomeden can not make WILL by executing WILL more than 1/3rd share of his/her property, but this issue was not raised by the defendant No.1 before the trial Court, therefore, the plaintiff did not have an

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opportunity to meet out the said plea.
Therefore, the judgment and decree of the
First Appellate Court modifying the decree of
the trial Court deserves to be set aside.

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6 . Mr. Ashish Shrivastava, learned counsel for the legal representatives of the defendant Bahadur Mohammad (since dead), would submit that a mahomedan cannot bequeath more than 1/3rd share of his/her property by way of WILL. As such, the First Appellate Court has rightly modified the judgment and decree passed by the trial Court and the appeal preferred by the appellant/plaintiff deserves to be dismissed.

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7 . I have heard learned counsel for the parties, considered their submissions made hereinabove and also went through the records with utmost circumspection.

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8 . It is not in dispute that 210 sq feet of the suit land bearing Khasra No.129/1 was held by Chhote Bee. She filed suit for recovery of possession of the said property, but during the pendency of the suit, she died and by

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strength of the said WILL, the present
appellant/plaintiff herein was substituted.
After substitution of the appellant/
plaintiff, the defendants also amended their
written statement taking plea that the suit
property is not at all included in the WILL
dated 21.07.1993 (Ex-P/1) and the plaintiff
has no right/title over the suit land.

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9 . It is well settled proposition of law that

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legal representatives brought on record under
Order 22 Rule 3 and 4 of the Code of Civil
Procedure are for limited purpose of
conducting the litigation. Mere fact of
substitution of such claimant does not in any
manner finally make him the heir to the
deceased litigant or fetter the other party
to the litigation from questioning his claim
in an appropriate proceeding. (See: Raghunath

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Singh Anar Singh vs Gangabai (deceased)
through LR Bhuwan Singh, reported in 1961
MPLJ 398).

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10. Altogether new plea based on para - 118 of the Mulla's Principles of Mahomedan Law was raised by the defendant No.1 before the First

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Appellate Court, without raising it before
the trial Court qua the capacity of an
mahomedan to make a WILL of his or her
property. Paras 117 & 118 of Mulla's
Principles of Mahomedan Law (18th Edition)
state as under:-

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“117. Bequests to heirs – A bequest to an
heir is not valid unless the heirs consent
to the bequest after the death of the
testator. Any single heir may consent so as
to bind his own share.

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118. Limit of testamentary power –A
mahomedan cannot by WILL dispose of more than
a third of the surplus of his estate after
payment of funeral expenses and debts.
Bequests in excess of the legal third cannot
take effect, unless the heirs consent thereto
after the death of the testator.”

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By the above stated provision, power of
mahomedan to dispose of his property is
limited in two ways, firstly as regards the

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persons to whom the property may be
bequeathed and secondly extent to which the
property may be bequeathed. The only case in
which a testamentary disposition is binding
upon the heirs is where the bequest does not
exceed the legal third and it is made to a
person who is not an heir, but bequest in
excess of the legal third may be validated by

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consent of other heirs. The reason is that
the limits of testamentary power exist solely
for the benefit of the heirs and heirs may,
if they forgo, the benefit by giving their
consent. For the same reason, if the testator
has no heirs, he may bequeath the whole of
his property to a stranger.

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11. The First Appellate Court has accepted the said plea raised on behalf of defendant No.1 holding that Chhote Bee could not have executed a WILL of more than 1/3rd share in the suit property. Since the said plea was not raised before the trial Court, though it was available to be raised by the defendant No.1, as such the plaintiff was taken by surprise, otherwise the substituted plaintiff could have taken an appropriate stand including that Chhote Bee (testator) had no heirs, which she has been deprived for want of such defence in the written statement, rather defendant No.1 took a specific defence that in the WILL (Ex-P/1), suit property is not included, on which the trial Court framed two issues and answered against the defendant

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No.1, as such altogether new plea ought not
to have been entertained by the First
Appellate Court and granting the appeal on
the basis of the said new plea, the plaintiff
was deprived to meet such a plea, resulted in
serious prejudice to her violating her right
to property, which is a constitutional right.
Even otherwise, plea based on paras 117 & 118
is only available to the heirs of testator
and third party like defendant No.1 can not
take such a plea being unavailable to him.
Accordingly, the judgment and decree dated
07.11.2009 passed by the First Appellate
Court is set aside and that of the trial
Court dated 29.09.2006 is restored. The
substituted appellant/ plaintiff is thus
entitled for the entire 210 sq feet of the
suit land bearing Khasra No.129/1.

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12. The second appeal is allowed. No order as to costs.

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13. Appellate decree be drawn up accordingly.

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Nirala

Khurshida Bano v. Mu.Imtiyaz Bee and Others

Case brief

What is this about?

What did the court decide?

Khurshida Bano v. Mu.Imtiyaz Bee and Others

Case brief

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What did the court decide?

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