IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 28TH JULY 2010 / 6TH SRAVANA 1932 RSA.No. 1373 of 2004() ---------------------- AS.228/2001 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.311/1992 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANTS/DEFENDANTS 1 TO 6 ------------------------------------------------ 1. MOHAMMED HANEEFA, S/O.LATE MEERA SAHIB, ANAKUZHY PUTHEN VEEDU, THAMBAMOODU, MANICKAL MURI, PULLAMPARA VILLAGE, PULLAMPARA P.O., VENJARAMOODU. 2. NABEESA BEEVI, W/O.LATE MOOSA SAHIB DO.DO. 3. SAINABA BEEVI, D/O.MEERA SAYU, DO.DO. 4. AYSHA BEEVI, D/O.MEERA SAYU, DO.DO. 5. ARIFA BEEVI, D/O.NABEESA BEEVI, DO.DO. 6. JAMEELA BEEVI, D/O.NABEESA BEEVI DO.DO. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): RESPONDENTS/PLAINTIFF & DEFENDANTS 7 TO 13, 15 & 1 ----------------------------------------------------------------- 1. SALIM S/O.LATE MEERA SAHIBM, MUBARAK, THEMBAMOODU, PULLAMPARA VILLAGE, NEDUMANGAD TALUK, NOW EMPLOYED AT ABU DHABI, REP. BY HIS POWER OF ATTORNEY HOLDER SAJIBA SALIM, W/O.MUBARAK, THEMBAMOODU, PULLAMPARA VILLAGE, NEDUMANGAD TALUK. 2. NAJIRA BEEVI, W/O.LATE MEERA SAHIB, ANAKUZHY PUTHEN VEEDU, NOW RESIDING AT SHAINA COTTAGTE, THYCAUD, VENJARAMOODU. 3. SEENATHU BEEVI, W/O.MOHAMMED BADUSHA AND D/O.HAJIRA BEEVI, NOW RESIDING AT SHAINA COTTAGE, THYCAUD, TRIVANDRUM. 4. MUHAMMED HANEEFA, CLASSIC TAILORS WARDE NO.VIII/329, ANAKUZHI, ALSO HAVING MUTHUKAVIL VEEDU, PULLAMPARA P.O. (DELETED) 5. ABDUL RASHEED, WARD VIII/330, ANAKUZHI,STATIONARY MERCHANT, RESIDING AT K.V.HOUSE, ANAKUZHI, PULLAMPARA P.O. 6. MOHAMMED HANEEFA, WARD VIII/331, TEA SHOP ANAKUZHI, PULLAMPARA P.O. 7. MOHAMMED MUSTAFA, PANSUPERI SHOP, ANAKUZHY JUNCTION, PULLAMPARA P.O. 8. DAVOOD, WARD NO. VIII/585, PANSUPARI SHOP, THAMPAMMOODU, PULLAMPARA P.O. (DELETED) 9. ABOOBACKER KUNU, WARD NO.VIII/589, NEDUMKATTIL ROADARIKATHU VEEDU, PULLAMPARA P.O. 10. NESUMUDEEN, S/O.LATE MEERA SAHIB, SHAINA COTTAGE, THYCAUD, VENJARAMOODU P.O. RESPONDENTS 4 AND 8 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DTD.25.1.2006 IN I.A.193/2006 ADV. SRI.S.ABDUL SALAM FOR R10 SRI.SIBY MATHEW FOR R1 SRI.A.A.MOHAMMED NAZIR FOR R1 SRI.SASTHAMANGALAM S. AJITHKUMAR FOR R2,R3 SMT.DEEPTHY.S.NATH FOR R2,R3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JUDGMENT TODAY ALSO APPELLANTS NOR COUNSEL IS PRESENT. R.S.A. IS DISMISSED FOR DEFAULT. 28.7.2010 SD/-P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE M.Sasidharan Nambiar, J. ---------------------------------------- R.S.A.No.1373 of 2004 & R.S.A.No.147 of 2005 ---------------------------------------- COMMON JUDGMENT Appellants in R.S.A.No.1373/2004 are defendants 1 to 6 in O.S.No.311/1992 on the file of Sub Court, Attingal. They are the plaintiffs in O.S.No.189/1992. R.S.A.No.147/2005 is filed challenging the concurrent judgment and decree in O.S.No. 189/1992. Respondents 1 and 10 were the original plaintiffs in O.S.No.311/1992. Subsequently, tenth respondent was transposed as Defendant No.17. Respondents 2 to 9 are defendants 7 to 13 and 15 in O.S.No.311/1992. O.S.No.311/1992 was filed seeking a decree for partition of the plaint schedule properties and separation of the share of the first respondent. Appellants filed O.S.No.189/1992 seeking a decree for declaration of their title, possession and for permanent prohibitory injunction on the strength of Exhibit B2 will. Plaint schedule properties in O.S.No.189/1992 was only four items of the properties involved in O.S.No.311/1992. Plaint schedule properties in O.S.No.311/1992, apart from the properties RSA 1373/04 & 147/05 2 involved in O.S.No.189/1992, includes the property scheduled as Item Nos.(a) to (m). Plaint schedule properties originally belonged to Appi Kunju Meera Sahib. Second appellant and second respondent in R.S.A.No.1373/2004, namely, defendants 2 and 7, were admittedly the widows of Meera Sahib. Appellants 1 and 3 to 6 are the children of Meera Sahib in the second appellant. Respondents 1 to 3 and 10 are the children of Meera Sahib in second respondent. They are respectively the plaintiff and defendants 7, 8 and 17 in O.S.No.311/1992. O.S.No. 311/1992 was filed seeking partition of the plaint schedule properties contending that plaint schedule properties are available for partition as they originally belonged to Meera Sahib and his rights devolved on his legal heirs under Mohammedan Law. Defendants 9 to 16 (Defendants 14 and 16 were subsequently removed) were impleaded as the building tenants and they have no right in the property. O.S.No.189/1992 was filed contending that Meera Sahib executed Exhibit B2 will 7/1978 on 12.3.1978 whereunder, he bequeathed the plaint schedule properties in O.S.No.189/1992 in favour of appellants and therefore, appellants alone have right in the said properties. RSA 1373/04 & 147/05 3 Appellants sought declaration of title and possession over the said properties and sought a decree for injunction restraining respondents in R.S.A.No.147/2005 from trespassing into the plaint schedule properties. They resisted the claim for partition raising similar contentions. Based on Exhibit B2 will, it is contended that in view of Exhibit B2 will, said properties are not available for partition. Learned Sub Judge tried both the suits jointly. O.S.No.311/1992 was treated as the main case. Evidence consists of Exhibits A1 to A14, B1 to B20 and Exhibit C1 and oral evidence of PWs 1 and 2 and DWs 1 to 5. 2. Learned Sub Judge, on the evidence, found that Exhibit B2 will was not revoked by tearing into pieces as claimed by respondents 1 to 3. Learned Sub Judge also found that Exhibit B2 is a will and not a gift as contended by the appellants and could take effect only on the death of Meera Sahib on 4.12.1990. Learned Sub Judge found that on the date of execution of Exhibit B2 will, namely, 12.3.1978, Meera Sahib executed Exhibits B3 and B4 gift deeds in favour of respondents 1 and 10 and the property bequeathed under Exhibit B2 exceeds one third of the assets left behind by the deceased. Learned Sub Judge also RSA 1373/04 & 147/05 4 found that as provided under Section 117 of Mohammedan Law, the bequest under Exhibit B2, to become valid against respondents 1 to 3 and 10, legal heirs shall give their consent and from the fact that after the death of Meera Sahib, within one month O.S.No.311/1992 was instituted (originally instituted as O.S.No.14/1991) it is clear that there was no consent by them after the death of the testator and therefore, Exhibit B2 will not operate as against their rights. Learned Sub Judge also found that as the bequest exceeds one third of the assets as provided under Section 117 of Mohammedan Law, consent of the legal heirs is necessary and as respondents 1 to 3 and 10 did not give their consent, the bequest is not valid. Learned Sub Judge, therefore, found that appellants cannot claim title to the plaint schedule properties under Exhibit B2 and they could claim their share only as the legal heirs of deceased Meera Sahib. Finding that plaint schedule properties are available for partition, a preliminary decree was passed. O.S. No.189/1992 was dismissed. Appellants challenged the judgment and decree before III Additional District Court, Thiruvananthapuram in A.S.Nos. 227/2001 and 228/2001. Learned Additional District Judge, on RSA 1373/04 & 147/05 5 re-appreciation of evidence, confirmed the findings of the learned Munsiff and dismissed both the appeals. These appeals are filed challenging the concurrent judgment and decree passed by the courts below. R.S.A.No.1373/2004 is filed challenging the decree and judgment in O.S.No.311/1992 and R.S.A.No. 147/2005 challenging the decree and judgment in O.S.No. 189/1992. 3. Appeals were admitted formulating the following substantial questions of law: i. When Exhibits B3 and B4 gift deeds executed by Meera Sahib in favour of plaintiffs 1 and 2, seventh and eighth defendants, did not come into effect, whether the court below was right in appreciating the extent of the property covered under Exhibit B2 will executed by Meera Sahib? ii. Whether the court below was right in interpreting Exhibit B2 will of Meera Sahib regarding the right of Meera Sahib in bequeathing the extent of the property covered under the will, when Exhibits B3 and B4 gift deeds did not come into effect at all? iii. When Exhibit B2 will was registered subsequent to its execution and if so, whether courts below were right in interpreting the actual date of execution, when the date of registration is the date of execution? RSA 1373/04 & 147/05 6 iv. Whether the trial court was right in allowing the plaintiff to amend the plaint deleting the plaint schedule properties covered under Exhibit B3 gift deed, which would entirely change the characteristics of the suit and take away the admission made by the plaintiff though the plaint? 4. Learned counsel appearing for the appellants and contesting respondents were heard. 5. There is no dispute between the parties that if Meera Sahib died intestate, his properties will be available for partition and appellants and respondents are entitled to the shares as found by the courts below. The dispute is only with regard to the availability of the properties and whether Exhibit B2 will is valid and whether, based on Exhibit B2 will, appellants could claim exclusive right over plaint schedule properties in O.S.No. 189/1992, which are also sought to be divided in O.S.No. 311/1992. Learned Sub Judge and learned Additional District Judge, on appreciation of evidence, found that though Exhibit B2 will was executed by Meera Sahib, consent of all the legal heirs was not obtained subsequent to the death of the testator and hence, Exhibit B2 will is not valid and binding on the other legal heirs and irrespective of Exhibit B2 will, properties are available RSA 1373/04 & 147/05 7 for partition. Argument of the learned counsel appearing for the appellants is that the said finding of the courts below is not sustainable. 6. Both the courts below relied on Section 117 of Mulla's Principal of Mahomedan Law to hold that Exhibit B2 will is not valid and binding on the other legal heirs, as consent of the plaintiff and defendants 7, 8 and 17 was not obtained subsequent to the death of the testator. Argument of the learned counsel is that consent of the legal heirs is not necessary as, by Exhibit B2 will, the properties were bequeathed not to an heir but to most of the heirs and hence, consent of other heirs is not necessary and such consent is necessary only if the properties are bequeathed to only an heir. 7. Mulla's Principles of Mahomedan Law by M.Hidayatullah (Nineteenth Edition) at Page 101 in Chapter IX Wills, Section 117 deals with bequest to heirs. It reads: “A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share. RSA 1373/04 & 147/05 8 Explanation - In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the testator's death.” True, by a reading of Section 117, it may appear that consent to the bequest is necessary only when the bequest is in favour of a single heir. But, a proper appreciation of Section 117 gives no room for any doubt that what is contemplated is not a bequest in favour of a sole heir alone, but bequest in favour of some of the heirs, excluding other heir or heirs. What Section 117 provides is that a bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. It is to prevent exclusion of any heir from inheritance by the bequest in favour of one or more heirs only, without their consent after the death of the testator. As is clear from Section 117, the bar applies only to a bequest in favour of an heir or some of the heirs and not to a stranger. Illustration (a) to Section 117 at Page 102 makes the position clear. It reads: “A Mahomedan dies leaving him surviving a son, a father and a paternal grandfather. Here the grandfather is not an “heir” and a bequest to him will be valid without the assent of the son and the RSA 1373/04 & 147/05 9 father.” Illustration (f) makes the position clear that assent of the other heirs is necessary even in case of a bequest to some of the heirs, excluding the other heirs and is not applicable to a bequest for an heir alone. Illustration (f) reads: “A document names as a partition deed is executed to which the father and his sons are parties. It embodies a condition that two of the sons will not, after the father's death, claim any share in any property not covered y the deed and that such property will go to the other three sons. Such a disposition in favour of the three sons is testamentary and this bequest not having been consented to by the two sons after the father's death, it is invalid under Mahomedan Law.” 8. B.R.Verma's Commentaries on Mohammedan Law (9th Edition) deals with the wills in Chapter XIII. Section 188 provides that a Mohammedan is not entitled to make a bequest to his heirs except as provided in Section 189. Section 188(2) provides that a Mohammedan is not entitled to dispose of his property by will except to the extent provided in Section 190. Sections 189 and 190 read: RSA 1373/04 & 147/05 10 “189. Bequest to heirs - A bequest to an heir is not valid except to the extent to which the persons who are the heirs of the testator at the time of his death, expressly or impliedly consent to the bequest after his death. 190. Extent of bequeathable property - A Mohammedan is not entitled to dispose of his property (which would otherwise devolve on his heirs under Mohammedan Law) by will in favour of a person who is not a heir, in excess of one third except in the following cases- (1) Where, subject to the provisions of any law for the time being in force, such excess is permitted by a valid custom; (2) where there are no heirs of the testator; (3) where the heirs existing at the time of the testator's death, consent to such bequest after his death; (4) where the only heir is the husband or the wife and the bequest of such excess does not effect his or her share.” 9. The reason for the Rule is explained by the learned author in Page 489. It reads: “Reason of the rule- The limit of one third is prescribed in respect of property, except in the cases given in Section 190. RSA 1373/04 & 147/05 11 This is based on a tradition of the Prophet and the object is to prevent a person from so disposing of his property as to leave the heirs destitute. The second restriction with respect to person is limited to heirs. The policy of Mohammedan Law is to prevent a testator from interfering by will with the course of devolution of property among his heirs according to law although he may give a specified portion, as much as a third, to a stranger. It safeguards against a breach of the ties of the kindred. It is intended to prevent the showing of favouritism to any heir to the prejudice of the others and thus defeating the policy of the Quranic injunctions as to the division of heritage according to fixed principles.” The effect of a bequest in favour of some of the heirs is explained in page 489 as follows: “While Mohammedan Law permits making of a will to a limited extent in favour of a stranger (Section 190), it does not allow any undue preference being given to some particular heirs and a bequest to some of the heirs without the consent of the other heirs will be altogether invalid. The consent is necessary even when inheritance is governed by any custom. The consenting heirs must be major and sane otherwise their consent would not be valid.” 10. It is clear that Mohammedan Law does not provide for any unlimited testamentary powers. A Mohammedan cannot RSA 1373/04 & 147/05 12 dispose all his properties under a will. He cannot dispose more than a third of surplus of his estate after payment of funeral expenses and debts. Any bequest in excess of the legal third cannot take effect unless the heirs consent thereto. Such consent could only be after the death of the testator. If the bequest is in favour of an heir or some of the heirs, such bequest will be invalid unless the other heirs give assent to the bequest after the death of the testator. The policy of law is explained in Mulla's Principles of Mahomedan Law as follows: “The policy of that law is to prevent a testator from interfering by will with the course of devolution of property according to law among his heirs, although he may give a specified portion, as a third to a stranger. The reason is that a bequest in favour of an heir would be an injury to the other heirs, as it would reduce their share and “would consequently induce a breach of the ties of kindred” Hedaya, 671. But, it cannot be so if the other heirs, “having arrive at the age of majority”, consent to the bequest. The consent necessary to give effect to the bequest must be given after the death of the testator for no heir is entitled to any interest in the property of the deceased in his lifetime.” RSA 1373/04 & 147/05 13 11. A Division Bench of this Court in Kunhi Avulla v. Kunhi Avulla (1963 KLT 1173) had occasion to consider the very question whether consent of other heirs is necessary in case the bequest is in favour of not a single heir but to some of the heirs. Their Lordships held: “The main controversy between the parties is about the effect of clause 7 of Exhibit B22. Shri Kuttikrishna Menon contended the disposition therein to be testamentary in nature and being in favour of some of the heirs not consented to by the other heirs after the death of the testator void under the Mahomedan Law. That contention seems to us correct. Unlike the case of Hindu co- parceners, no son can claim any interest in the properties of a Muslim in his lifetime and the reference in the aforesaid clause to rights under the Shariat can only be to right of succession on Mammad's death. In paragraph 117 of the Principles of Mahomedan Law by Mulla, the learned author observes: “A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator.” There is no case that the plaintiffs, who are two of the heirs of Mammad, have subsequent to Mammad's death, assented to the disposition under clause 7 of Exhibit B22, which must therefore fail under the Mahomedan Law.” RSA 1373/04 & 147/05 14 12. Hence, it can only be found that when, under Exhibit B2 will, there is no bequest to defendants 2 and 7, who are the widows of deceased Meera Sahib and plaintiff, the son and defendants 7 and 8, who are also heirs of Meera Sahib did not give consent to the bequest under Exhibit B2, after the death of Meera Sahib, the bequest under the will is not valid. Though learned counsel argued that under Section 118, the only restriction is that a Mahomedan cannot, by a will, dispose more than one third of the surplus of his estate after payment of funeral expenses and debts and such bequest in excess of the legal third cannot take effect unless the heirs consent thereto after the death of the testator and the bequest provided under Section 118 is only to a stranger and not to an heir. It was also argued that even if it applies to the bequest to an heir also, when the bequest to each of the legatee does not exceed the legal one third, the will is valid and therefore, Exhibit B2 will is valid. I cannot agree. 13. Section 118 is limiting the testamentary power of a Mohammedan. It applies to all bequests, whether the legatee under the will is a stranger or heir or some of the heirs. The RSA 1373/04 & 147/05 15 bequest could only be in respect of the legal one third of his properties. A Mohammedan cannot execute several wills in favour of different heirs or/and strangers so as to limit the bequest under each will to less than the legal one third and thereby circumvent the bar provided under Section 118. The total bequest shall not exceed the legal one third. The excess would be valid only if all other heirs give their consent, after the death of the testator. If no such consent is given, the bequest to the extent of the excess of th legal one third is invalid. 14. Section 117 deals with the bequest only to the heir. If such bequest is in favour of an heir or some of the heirs leaving the other heirs, it is invalid. If consent of other heirs is given, after the death of the testator, the bequest will be valid. If only some of the heirs give their consent, the bequest will be valid only to the extent of their shares. The restrictions provided under Section 118, restricting the testamentary capacity to the extent of legal one third cannot be watered down by limiting the restrictions to the bequest in favour of each of the bequest. When Section 117 specifically provides that a bequest to an heir is not valid, unless the other heirs consent to the bequest after RSA 1373/04 & 147/05 16 the death of the testator, even if such bequest is in respect of the one third of the surplus left by the testator, the bequest will not be valid unless all the heirs had given consent to the bequest subsequent to the death of the testator, though any single heir may consent so as to bind his own share. But, such consent will not operate as against the other heirs who did not give consent. 15. When, under Section 118, a Mohammedan cannot dispose of more than one third of his estate left after payment of debts and funeral expenses, the said restriction is not limited to each of the bequest. It operates against the total of the bequest. Hence, argument of the learned counsel appearing for the appellant that as each of the bequest does not exceed the legal one third, Exhibit B2 will is valid cannot be accepted. When Exhibit B2 will does not satisfy the test under Section 117, it can only be held invalid. Therefore, the finding of the courts below that under Exhibit B2 will appellant cannot claim exclusive right over plaint schedule properties and the claim for partition cannot be defeated based on Exhibit B2 will is perfectly legal and warrants no interference. RSA 1373/04 & 147/05 17 16. Then the question is what are the properties available for partition. As rightly pointed out by the learned counsel appearing for the appellants, in the plaint, as it originally stood, there were schedules (a) to (n) properties. It was contended that those properties were available for partition, as they belonged to Meera Sahib and were in his possession when Meera Sahib died. Though in the plaint title deeds of only parts of the properties were specifically disclosed, partition was sought not only of those properties, but division of all (a) to (n) schedule properties contending that those properties were left behind by deceased Meera Sahib at the time of his death. Defendants, in their written statement, did not specifically plead that any of those items are not available for partition, except vaguely contending that in view of Exhibit B2 will, the properties are not available for partition and some of the properties shown in the plaint schedule properties were sold. It was also contended that some of the properties left behind by Meera Sahib were not included in the plaint. The details of the properties which are not included or which are the properties alienated or did not belong to Meera Sahib were not disclosed. But, by a subsequent amendment, in RSA 1373/04 & 147/05 18 the plant, a plea was introduced on the validity