Remanded

Khadeeja v. Yusuff

Kerala HC17 Nov 2016RSA/804/2004

Case brief

AI extract

What is this about?

In this regular second appeal, the high court held that the lower courts failed to properly evaluate witness evidence concerning the attestation of a Will under the Indian Succession and Evidence Acts. The supreme court set aside the impugned judgments and decrees, remitting the matter to the trial court for fresh consideration within three months.

What did the court decide?

The impugned judgments and decrees were set aside and the matter was remitted to the trial court for fresh consideration within three months.

Khadeeja Vs Yusuff — Succession and Inheritance | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THURSDAY, THE 17TH DAY OF NOVEMBER 2016/26TH KARTHIKA, 1938

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RSA.No. 804 of 2004 (D )

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AGAINST THE JUDGMENT & DECREE DATED 27-02-2004 IN AS 218/2001 of II ADDL. DISTRICT COURT, PALAKKAD

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AGAINST THE JUDGMENT & DECREE DATED 31-01-2001 IN OS 657/1994 of PRINCIPAL SUB COURT, PALAKKAD

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APPELLANTS/APPELLANTS/DEFENDANTS 4 TO 8:

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KHADEEJA, W/O. LATE ASSANAR.

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ANFAR, S/O. KHADEEJA.

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SHAMSUDHEEN, S/O. KHADEEJA.

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PYARIJAN, D/O. KHADEEJA,

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(APPELLANTS ARE RESIDING AT NELLIPADAM, VAVULLIAPURAM POST, ALATHUR TALUK)

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BY ADV. SRI.P.R.VENKITESH

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RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS 1-3.:

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YUSUF, S/O. LATE MOHAMMED, CHEKIDANMALA, CHIMBUKAD POST, ALATHUR TALUK.

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MEHABOOB W/O. HUSSAIN VANDITHAVALAM, CHITTUR TALUK.

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JAMEELA W/O. ISMAIL, VANDAZHI, ALATHUR TALUK.

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SHAHUL HAMEED S/O. LATE MOHAMMED, CHEKIDANMALA, CHIMBUKAD POST, ALATHUR.

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ALI, S/O. LATE MOHAMMED, RESIDING AT DO.

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...2

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RSA.No. 804 of 2004 (D )

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AMINA, W/O. ASSANAR, NELLIPADAM, VAVULLIAPURAM, ALATHUR TALUK.

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R1 BY ADV. SRI.S.M.UNNIKRISHNAN R4 TO 6 BY ADV. SRI.T.M.CHANDRAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OKB

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K.HARILAL, J.

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R.S.A. No.804 of 2004

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Dated this the 17^th day of November, 2016

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JUDGMENT

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The scope and extent of consideration in this

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Regular Second Appeal is confined to legality and correctness of the findings of the courts below on the genuineness of Ext.B7 Will, its due execution and attestation under Section 63 of the Indian Succession

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Act and the proof of the Will in evidence, under Section 68 of the Indian Evidence Act. The original suit was one for partition of the property scheduled in the plaint, notwithstanding the existence of the gift deeds and Will alleged to have been executed by one Mohammed, the common predecessor of the parties to the suit. The gift deeds are Exts.B1, B2 and B6 and the Will is Ext.B7. The attestation of Ext.B7 Will was

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not in accordance with Section 63 of the Indian Succession Act and the propounder failed to prove the

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RSA.804/04-D :2:

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Will as required under Section 68 of the Indian Evidence Act, according to the appellants.

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The learned counsel for the appellants invited my attention to paragraph 35 of the judgment passed by the lower appellate court and paragraph 15 of the judgment passed by the trial court and submits that the courts below failed to apply its mind properly on the evidence adduced by the witnesses.

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I have meticulously gone through the analysis on the oral evidence adduced by the witnesses in both judgments. Apparently, I find that the courts below failed to apply its mind properly. More clearly, the courts below have not evaluated the evidence of D.W.3 and D.W.5. Going by the statutory mandate under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act, needless to say, it was obligatory on the part of the courts below to examine the oral testimony of witnesses in detail and to arrive at a conclusion as to whether the propounder has succeeded in proving due attestation of the Will

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RSA.804/04-D :3:

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under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Here, the trial court as well as the appellate Court miserably failed to appreciate the evidence of D.W.3 and D.W.5.

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The learned counsel for the respondents 4 to 6 further submits that the courts below failed to consider the restriction imposed on the execution of a Will by a Mahomedan under Clauses 117 & 118 of the Mahomedan Law. Even though the trial court has made an attempt to address that issue, the court did not arrive at a conclusion on that issue. The lower appellate court has not made any attempt to examine that issue. In short, the courts below have not applied judicious mind over the issue as to legality and sustainability of Ext.B7 Will, in view of Clauses 117 & 118 of the Mahomedan Law. In the above analysis, the impugned judgments passed by the trial court as well as the appellate court warrant interference of this Court.

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Consequently, the impugned judgments and

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RSA.804/04-D :4:

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decrees passed by the trial court and the appellate court will stand set aside and the matter is remitted back to the trial court for fresh consideration, in view of the observations made above, after affording an opportunity to both parties to adduce evidence, if they want to do so. The trial court shall dispose the original suit afresh within a period of three months from the date of receipt of a copy of this judgment. The parties shall appear before the trial court on 23.1.2017.

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Sd/K.HARILAL, Judge.

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okb

Khadeeja v. Yusuff

Case brief

What is this about?

What did the court decide?

Khadeeja v. Yusuff

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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