IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.06.2008 CORAM : THE HON’BLE MR. JUSTICE S.TAMILVANAN A.S.Nos.247 and 371 of 1996 A.S.No.247 of 1996 1. Asma Beevi 2. Tajunnissa Beevi .... Appellants vs. 1. M.Ameer Ali 2. Abdul Hameed @ Naina 3. Mehabooba Beevi 4. Rahamathunissa Beevi 5. Ramiah Pathar 6. Veerappa Pillai 7. Iqbal 8. Mani Pathar 9. Balu Sait 10. Postal Department Kannaian .... Respondents A.S.No.371 of 1996 M.Abdul Hameed@ Naina Mohamed .... Appellant vs. 1. Asma Beevi 2. Tajunnisaa Beevi 3. M.Ameer Ali 4. Mehabooba Beevi 5. Rahamathunissa Beevi 6. Ramiah Pathar 7. Veerappa Pillai 8. Iqbal 9. Mani Pathar 10. Balu Sait 11. Kannaiyan .... Respondents https://hcservices.ecourts.gov.in/hcservices/ Appeals filed under section 96 of C.P.C. against the Judgment and Decree, dated 11.08.1995 made in O.S.No.73 of 1989 on the file of the Subordinate Judge, Nagapattinam. For Appellants : Mr.V.C.Janardhanam for M/s. Sarvabhauman Associates in A.S.No.247/96 Mr.T.P.Manoharan in A.S.No.371/96 For Respondents : Mr.K.Chandramouli, Senior Counsel for M/s. A.Muthukumar for R1 in A.S.No.247/96 Mr.T.P.Manoharan for R2 in A.S.No.247/96 Mr.V.Raghupathi for R7 in A.S.No.247/96 Mr.V.C.Janardhanam for M/s. Sarvabhauman Associates for R1 and R2 in A.S.No.371/96 Mr.K.Chandramouli, Senior Counsel for M/s. A.Muthukumar for R3 in A.S.No.371/96 COMMON JUDGMENT Both the appeals are arising out of the same Judgment and Decree, dated 11.08.1995 made in O.S.No.73 of 1989 on the file of the Sub-Court, Nagapattinam. 2. A.S.No.247 of 1996 is filed by the plaintiffs in the suit and A.S.No.371 of 1996 has been filed by the second defendant of the said suit. In these appeals, for the purpose of convenience, the parties to the appeals are referred to as plaintiffs and defendants as stated in the suit. 3. The plaintiffs 1 and 2 are the daughters of one A.N.Mohammed Ismail, born through his first wife, Hawwa Ammal. Mohammed Ismail had three wives. The defendants 1 and 2 are his sons, born through his second wife Jameela Beevi. The third defendant Mehabooba Beevi is his third wife and the fourth defendant Rahamathunissa Beevi was born through his third wife. Mohammed Ismail died on 08.08.1981, leaving the plaintffs and defendants 1 to 4 as his Legal Heirs. The aforesaid relationship is not in dispute in these appeals. 4. According to the appellants / plaintiffs, Mohammed Ismail got a residential house and wet and dry lands as shown in the schedule of the plaint, by way of partition that had taken place on 09.07.1941. He was in possession and enjoyment of the schedule mentioned properties till the date of his death. As per Mohammedan Law, each of the plaintiffs are entitled to 7/56 share in the property, defendants https://hcservices.ecourts.gov.in/hcservices/ 1 and 2 each are entitled to 14/56 share and the third and fourth defendants each are entitled to 7/56 share. 5. The 'A' and 'B' schedule of properties are situated at Vijayapuram, Tiruvarur Taluk, within the jurisdiction of the Court below. In a portion of 'A' schedule property, shops were constructed and let out to the defendants 5 to 9 and they were paying rent originally to Mohammed Ismail, while he was alive and after his death, the second defendant is collecting the rent from them. Agricultural lands described as 'B' schedule of properties are cultivated directly by the second defendant. With the above pleadings, the appellants / plaintiffs have sought for a preliminary decree for partition, dividing 'A' and 'B' schedule of properties and allot 14/56 share to them and also for rendition of accounts and mesne profits. 6. The first defendant has admitted the relationship of the plaintiffs and the defendants 1 to 4 in the written statement. According to him, he is a permanent resident of Burunai and the suit properties are in the possession and enjoyment of the second defendant, who is liable to render the accounts. He has further averred that Mohammed Ismail had executed a Will and the debts payable by him to third parties were also detailed in the 'B' schedule of the Will. Mohammed Ismail was considerably old and sick, prior to his death. The income from the properties that was realised by the second defendant would have been more than enough to discharge the debts detailed in the 'B' schedule of property of the Will. 7. According to the first defendant, he returned to India in 1985 and he did not know whether the plaintiffs consented to the bequeath, after the demise of the testator, Mohammed Ismail or not. If the consent of the plaintiffs were not obtained by the second defendant for the bequeath, he will be entitled to 14/56 share in the property. In case, the consent of the plaintiffs for the Will, after the death of Mohammed Ismail is proved, according to the first defendant, he will be entitled to half share in the property and the second defendant shall be directed to pay the plaintiffs and defendants 3 and 4, each a sum of Rs.5,000/- each from and out of the income of the suit properties. According to him, alienation in favour of the defendants 8 and 10 are unauthorised and the said items may be set apart to the share of the second defendant and the compensation amount deposited in L.A.O.P.No.78/84 be sent for to the Court and dealt with, as part of the estate of the deceased. With the above pleadings, the first defendant has also sought for his share, by way of partition and also paid Court fee under the Tamil Nadu Court Fees Act, for allotting his share. https://hcservices.ecourts.gov.in/hcservices/ 8. The second defendant / appellant in A.S.No.371 of 1996 has also admitted the relationship of the plaintiffs and the defendants 1 to 4, as stated in the plaint. According to him, Mohammed Ismail, father of the aforesaid parties, while alive, in a sound and disposing state of mind, had executed the Will on 18.01.1978, in respect of the suit properties and the Will was duly attested by witnesses in accordance with law and registered on the same day before the Sub-Registrar, Tiruvarur. As per the Will, Mohammed Ismail had given the suit properties as well as the other movable properties to the defendants 1 and 2 to be taken as absolute equal shares. The testator had set out his debts as 'B' schedule in the Will and as such debts payable by him was to an extent of Rs.19,000/-. As per the Will, the two legatees should pay the third defendant, Rs.5,000/- and like wise pay their three sisters, the plaintiffs and the fourth defendant, each Rs.5,000/- and as such, totally a sum of Rs.20,000/- and a charge was created over the properties set out in the 'A' schedule of the Will. According to the second defendant, the plaintiffs and the defendants 1 to 4 were aware of the Will executed by Mohammed Ismail and they gave their consent for the execution of the Will. He has further stated that the defendants 1 and 2 have spent Rs.5,000/- towards the funeral expenses of their father Mohammed Ismail. According to the first defendant, the debts payable was Rs.19,000/- and if the amounts to be paid to the plaintiffs and the defendants 3 and 4 are added, the property bequeathed by Mohammed Ismail under the Will, would be 1/3rd of his estate and therefore, under Mohammedan Law, the Will left by Mohammed Ismail is valid. 9. The third defendant has also filed her written statement. According to her, she is entitled to 7/56 share in the suit property, as per Mohammedan Law. For allotting the said share, she has also paid court fee under the Tamil Nadu Court Fees Act. According to the defendants 6 to 9, they are all tenants of certain properties, described in the plaint schedule and the 8th defendant is in possession of a portion of the house at the rear side, having advanced money by way of loan to the second defendant. 10. The trial court, considering the oral and documentary evidence and also the arguments advanced by both sides, has held that the Will, dated 18.01.1978 executed by Mohammed Ismail is valid and binding only to an extent of 1/3rd of the properties bequeathed therein and also decided that the plaintiffs are entitled to get rendition of accounts and also for mesne profits and accordingly, passed preliminary decree for partition, dividing only 2/3rd of the suit property and thereby allotted 14/56 share to the plaintiffs, out of 2/3rd of the property, subject to the debts incurred by Mohammed Ismail, as per the Will and also the amount spent for his funeral expenses. Aggrieved by which, appeal in A.S.No.247 of 1996 has been preferred by the plaintiffs, whereby the plaintiffs have claimed 14/56 share in the entire schedule of property, after deducting the https://hcservices.ecourts.gov.in/hcservices/ debts incurred by Mohammed Ismail and the amount spent for his funeral expenses. The second defendant in the suit has preferred the appeal in A.S.No.371 of 1996, claiming right for the entire properties along with the first defendant, as per the Will. However, the first respondent has not preferred any appeal. 11. Based on the grounds of appeals and the impugned Judgment and Decree passed by the Court below, the following points for determination are arising for consideration : 1) Whether the plaintiffs / appellants in A.S.No.247 of 1996 are entitled to 14/56 share in the entire schedule of property with proportionate mesne profits, claimed by them in the suit ? 2) Whether the second defendant / appellant in A.S.No.371 of 1996 is entitled to the property bequeathed under the Will, executed by Mohammed Ismail and accordingly, whether the appeal preferred by the second defendant has to be allowed ? 12. In these appeals, it has been clearly admitted by both the parties that the plaintiffs 1 and 2 and the fourth defendant are daughters and the defendants 1 and 2 are sons, the third defendant is the wife of the deceased Mohammed Ismail. It is not in dispute that the plaintiffs, who are the appellants in A.S.No.247 of 1996 are the daughters of Mohammed Ismail born through his first wife. The defendants 1 and 2 are the sons of Mohammed Ismail born through his second wife and on the date of filing of the suit, the first and second wife of Mohammed Ismail were not alive. The third defendant Mehabooba Beevi is the third wife and the fourth defendant Rahamathunissa Beevi is the dauther of Mohammed Iamail, born through the third defendant. The genuineness and validity of the Will, dated 18.01.1978 executed by Mohammed Ismail is an important aspect to decide the share to be allotted to the plaintiffs and defendants 1 to 4 in the suit. 13. The defendants 5 to 9 are said to be tenants in a portion of 'A' schedule of property. The 10th defendant is said to have purchased a portion of the property from the second defendant. The registered Will, dated 18.01.1978 executed by Mohammed Ismail has been marked as Ex.B.38. The plaintiffs have disputed the execution, genuineness and validity of the Will, dated 18.01.1978. 14. A copy of the partition deed, dated 09.07.1941 between Naina Mohammed Rahoothar, his wife and sons has been marked as Ex.A.1 and the copy of the legal notice, dated 19.11.1988 sent by the plaintiffs has been marked as Ex.A.2 and the postal acknowledgements for the receipt of notice by D4 and D2 respectively have been marked as Exs.A.3 and A.4. The reply notice, dated 06.12.1988 sent by D1 and D2 has been marked as Ex.A.6. https://hcservices.ecourts.gov.in/hcservices/ 15. On the side of the defendants, a receipt, dated 17.10.1977 relating to the marriage of the fourth respondent was filed as Ex.B.1. Similarly, Exs.B.2, the document relating to the marriage of Mohammed Ismail and Habibuneesa and Ex.B.4 is the marriage invitation relating to the second appellant. Copy of the decree passed in O.S.No.461 of 1970 by the District Munsif Court, Tiruvarur has been marked as Ex.B.5. Ex.B.6 to Ex.B.9 are the letters written by Mohammed Ismail to the first defendant, similarly, Exs.B.12 to B.16 are the letters written by Mohammed Ismail to the second defendant. Under Exs.B.22 and B.23, the second defendant sent a cheque for Rs.200/- and a demand draft for Rs.550/- respectively. Similarly, on various dates the second defendant had sent demand drafts to his father, Mohammed Ismail and the supporting documents have been marked as Exs.B.24 to B.29. The printed copy of the Judgment and Decree of the District Munsif Court in O.S.Nos.261 of 1970 and 563 of 1970 have been marked as Ex.B.33 and the printed copies of the Judgment in A.S.No.368 of 1972 and A.S.Nos.85 of 1973 and 86 of 1973 have been marked as Exs.B.34 and B.35. 16. The relationship between the contesting parties to the appeals have been admitted and there is no dispute with regard to the property left by the deceased Mohammed Ismail. Hence, this Court has to consider whether the plaintiffs are entitled to claim 14/56 share in the suit property, as claimed by them or their share is subjected to the Will, Ex.B.38 said to have been executed by the deceased Mohammed Ismail. 17. The husband of the first plaintiff has been examined as P.W.1. According to him, he could not say whether the signature available in the Will, Ex.B.38 is that of the deceased Mohammed Ismail or not. The first defendant, who was examined as D.W.1 has deposed that the suit Will was executed by his father Mohammed Ismail. He has further stated that Mohammed Ismail was suffering from paralytic attack, however, when the Will was executed on 18.01.1978, he could sign the Will. It is seen that the first defendant / D.W.1 was not an attestor to the Will, Ex.B.38. The scribe of the Will has been examined as D.W.3. According to him, Mohammed Ismail was heal and healthy on the date of executing the Will and subsequently, he was suffering from paralysis. According to him, Mohammed Ismail signed in his presence in the Will, Ex.B.38. He has admitted that the Legal Heirs of Mohammed Ismail did not sign the Will. 18. The second defendant, as D.W.2 has stated that the plaintiffs had given consent for executing the Will, but the same has been disputed by the plaintiffs. Admittedly, neither the plaintiffs, nor the defendants were attestors to the document, Ex.B.38. D.W.4 is the son of one Ganesa Iyer, who was an attestor to Ex.B.38. D.W.4 has stated that his father Ganesa Iyer, one of the attestors to the Will, died on 14.09.1981. According to him, he could identify the https://hcservices.ecourts.gov.in/hcservices/ signature of his father. When Ex.B.38 was shown to D.W.4, he identified that his father has signed as one of the attestors to the Will. 19. Learned counsel appearing for the second respondent in A.S.No.247 of 1996 contended that under Mohammedan Law, no document in writing is required to make a Will and even if it is oral that is valid, if the same is established. In support of his contention, he cited the decision, Abdul Hameed vs. Mohammad Yoonus, reported in AIR 1940 Madras 153, wherein it has been held as follows : "Under the Mohammedan Law, no writing is required to make a will valid and no particular form of verbal declaration is necessary as long as the intentionof th testator is sufficiently ascertained." Under the Mohammedan Law, it is clear that a Will need not be in writing, however, it has to be established and therefore, as contended by the learned counsel for the second defendant / appellant in A.S.No.371 of 1996, the provisions under Section 63 of the Indian Succession Act is not strictly applicable to prove the Will under the Mohammedan Law. 20. In the instant case, Ex.B.38 is a registered Will containing various details. The scribe and the son of the deceased attestor have been examined as D.W.3 and D.W.4. The witness, D.W.4 has deposed that his father Ganesa Iyer was an advocate clerk and he could identify the signature of his father and accordingly, identified the signature available in Ex.B.38. 21. The Village Administrative Officer, D.W.3 has been the scribe of the Will, who has deposed that the deceased Mohammed Isamil signed in the Will in his presence and attestors, Lateef and Ganesa Iyer have also signed as witnesses to the Will in his presence. However, no motive has been attributed against D.W.3 and D.W.4 to disbelieve the evidence of the scribe and the other witness. On the facts and circumstances, I am of the view that there is no error on the part of the trial court holding that the Will, Ex.B.38 has been established as a genuine document. I am of the view that Section 63 of the Indian Succession Act is not strictly applicable under the Mohammedan Law to establish the execution of a Will, since a Will need not be in writing, under the Islamic Law and accordingly, the Will, Ex.B.38 has been established as a genuine document, executed by Mohammed Ismail, father of the appellants and respondents 1, 2 and 4. 22. The Mohammedan Law, Articles 117 and 118 of Mulla's Principles of Mohammedan Law, 18th Edition, reads as follows : "117. Bequests to heirs – A bequest to, an heir is not valid unless the other heirs consent to the bequest after the death of testator. Any single heir may consent so as to bind his own share. https://hcservices.ecourts.gov.in/hcservices/ 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. 118. Limit of testamentary power – A Mohammedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in express legal terms cannot take effect, unless the heirs consent thereto after the death of the testator. " It is well settled that the consent of the other legal heirs need not be express and it may be signified by conduct showing a fixed and unequivocal intention, as per the decision, Abdul Manan Khan vs. Mirtuza Khan, reported in AIR 1991 Patna 154. 23. The requirement under Mohammedan Law is that the consent of the other heirs of the testator has to be given after the death of the testator to make it binding on the entire property bequeather. As per Article 118, there is a limited testamentary power and accordingly, a Mohammedan cannot by Will dispose of more than 1/3rd of surplus of his estate after payment of funeral expenses and debts, unless consent is obtained from the legal heirs, after the death of the testator. 24. In the instant case, the defendants 1 and 2, who were examined as D.W.1 and D.W.2 have stated that the plaintiffs had given consent for executing the Will, for which, there is no acceptable evidence, except the oral testimony of the interested witnesses. Further, in the written statement filed by the first defendant, though the first defendant had asserted the truth and genuineness of the Will executed by his father, Mohammed Ismail, he was not certain about the consent obtained from of the plaintiffs, as per paragraph 4 of his written statement, which reads as follows : "If the consent of the plaintiff was not obtained by the second defendant for the bequest this defendant will be entitled to 14/56 share in the property. If however the consent of the plaintiffs is proved to have been given after the death of A.N.Mohammed Ismail, then this defendant will be entitled to half of the property." 25. The aforesaid averments clearly show that the first defendant was not certain about the alleged consent obtained from the plaintiffs, that is why he has stated that if there was no consent obtained by the second defendant from the plaintiffs, his share would be 14/56 in the property, after discharging the debts left by his father. As the plaintiffs have categorically stated that they have not given any consent for the Will, without any documentary proof, merely based on the oral testimony of the interested witnesses D.W.1 https://hcservices.ecourts.gov.in/hcservices/ and D.W.2, the alleged consent of the plaintiffs cannot be accepted. If there was any consent from the plaintiffs, as alleged by the defendants 1 and 2, at least they could have paid Rs.5,000/- each to the plaintiffs, as per the Will, Ex.B.38, dated 18.01.1978. Admittedly, there was no such payment made by the defendants 1 and 2 to the plaintiffs. Under Mohammeden Law, in the absence of consent from the other sharers, namely, the plaintiffs, after the death of the testator, it would bind only 1/3rd of the property bequeathed under the Will, after deducting the debts and the amount spent for funeral expenses. Hence, considering the Will, I am of the view that both the appellants herein are entitled to 14/56 share out of the 2/3rd share of the suit property, as held by the trial court. They are also entitled to get proportionate mesne profit. The debts discharged by the defendants 1 and 2 and the amount spent towards the funeral expenses of the deceased Mohammed Ismail have to be gone into at the time of passing final decree. If any property had been sold by the second defendant, it should be allotted to his share in the final decree. 26. On the facts and circumstances, as discussed in the earlier paragraphs of this Judgment, I am of the view that it has been established that the Will, Ex.B.38 is a genuine document, executed and registered by Mohammed Ismail. As there was no consent from the plaintiffs, the other legal heirs, after the death of the testator, under Mohammeden Law, the defendants 1 and 2 can claim only 1/3 of the property bequeathed under the Will, after deducting the debts. Therefore, appellants / plaintiffs are entitled to only 14/56 share out of the 2/3rd share of the properties bequeathed under the Will, Ex.B.38, accordingly the first point for determination is answered. 27. In view of the finding given to the earlier point for determination, the second defendant / appellant in A.S.No.371 of 1996 and the first defendant are entitled to claim only 1/3rd of the property bequeathed under the Will, Ex.B.38, since there is no consent from the other legal heirs, after the death of the testator, apart from their share as legal heirs. Therefore, I am of the view that there is no merit in the appeal preferred by the second defendant of the suit in A.S.No.371 of 1996, accordingly, the second point for determination is answered against the appellant in A.S.No.371 of 1996. https://hcservices.ecourts.gov.in/hcservices/ 28. In the result, both the appeals fail, hence, confirming the Judgment and Decree rendered by the court below, appeals in A.S.No.247 of 1996 and A.S.No.371 of 1996 are dismissed. However, considering the relationship between the parties, there is no order as to costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar tsvn To 1) The Sub-Court Nagapattinam. 2. -do- through The Principal District Judge, Nagapattinam. +1 cc To M/s. A.Muthukumar, Advocate, SR.27870 +2 ccs To Mr.J.Ramakrishnan, Advocate, SR.28125 & 28126 +1 cc To Mr.T.P.Manoharan , Advocate, SR.28070 A.S.Nos.247 and 371 of 1996 ksk [co] gkg/24.6 https://hcservices.ecourts.gov.in/hcservices/