THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD L.P.A.NO.109 OF 1996 JUDGMENT: (Per BPR,J) Heard Sri K. Pratap Reddy, learned senior counsel appearing on behalf of then appellant and Sri K. Subrahmanya Reddy, senior counsel appearing on behalf of the respondents. The appellants filed the said appeal under Clause 15 of the Letters of Patent Appeal. The defendants seek to assail the correctness of judgment and decree in C.C.C.A.No.147 of 1983 dated 20.02.1996, allowed the appeal at the instance of the plaintiff as against the judgment and decree of the trial Court, dismissing the suit filed by the plaintiff as per the judgment in O.S.No.123 of 1972 dated 24.01.1983 on the file of the II Additional Judge, City Civil Court, Hyderabad. Briefly, the facts which gave rise to these appeals are that the respondent No.1 herein, the plaintiff filed the suit for declaration that the plaintiff is entitled to the municipal property bearing No.22.2.733, 734, 685 and 686 situated at Darul Shafa, Hyderabad. Admittedly, the property claimed to be belonging to Khaisarunnisa Begum, wife of Bakher Ali Khan who is the sister of the defendants 1 and 2. The plaintiff claims to be the son of late Smt. Waheedunnisa Begum, who is another sister of Khaisarunnisa Begum. Defendants 3 to 5 are the tenants of the suit schedule property. Defendants 6 to 9 are the legal representatives of the deceased D.2, who died subsequent to the filing of the suit. The plaintiff claims the suit schedule property in pursuance of a will alleged to have been executed by Khaisarunnisa Begum on 26.09.1960 with the consent of her sisters’ whereunder the entire property was bequeathed in favour of the plaintiff imposing some directions. The plaintiff has been in possession of the property since long back even during the lifetime of Khaisarunnisa Begum and continued to do so subsequent to her death. However, the defendants 1 and 2 tried to grab the suit property, trying to interfere in respect of the objection raised by the plaintiff. The plaintiff issued a notice and yet, it was not stopped. Hence, the suit for declaration and also for a permanent injunction restraining from interfering with the enjoyment of the suit schedule property. Defendants 1 and 2 filed a joint written statement, denied such claim of the plaintiff. It was further alleged that Khaisarunnisa Begum is not the absolute owner but it is her husband Bakher Ali Khan who has purchased the property in the name of Khaisarunnisa Begum and therefore it is Bakher Ali Khan, who is the absolute owner but not Khaisarunnisa Begum. Since, Bakher Ali Khan who is a paternal cousin of brother of defendants 1 and 2, succeeded to the plaint schedule property. The alleged will stated to be executed on 26.09.1960 with the consent of the defendants 1 and 2 is a forged one. In fact, Khaisarunnisa Begum was attacked with paralysis in the year 1960 and she could not have executed any such document. Therefore, the entire suit claim is totally false and unsustainable and the suit is liable to be dismissed. It is necessary to extract the issues as framed by the trial Court initially, which read as follows. i) Whether the will dated 26.09.60 executed by Smt. Khairunnisa Begum is true and valid? ii) Whether the plaintiff is entitled, for declaration as prayed for? iii) Whether the plaintiff is entitled for possession of properties bearing Nos.22.2.733, 685, 734 and 686 commonly known as Khaiser Manzil, Derul Shifa, Hyderabad? iv) Whether late Khaisarunnisa Begum was not the absolute owner of the suit properties as alleged in para 3 of the written statement of D1 and D2. v) Whether the plaintiff has no cause of action? Subsequently, the parties went into trial where the plaintiff himself examined as P.W.1 and his younger brother was examined as P.W.2 and marked Exs.A-1 to A-19, whereas in defence, the defendant No.1 examined himself as D.W.1 and No.6 as D.W.2 and marked Exs.B-1 to Ex.B-51. That apart, Ex.C-1 and C-2 were marked apart from Ex.X-1 to X-3. The trial Court on appreciation of the entire evidence and material record, dismissed the suit holding that the property belongs to Khaisarunnisa Begum as the alleged will is not true and genuine. Hence the plaintiff is not entitled to make any claim. On a regular appeal, at the instance of the unsuccessful plaintiff, the learned single Judge on considering the submission made from both sides allowed the same especially finding that the Ex.A-1-the will deed can be believed as it has been executed by Khaisarunnisa Begum and valid bequeathing only to the extent of 1/3rd share in the suit house. While so, the learned single Judge held that the consent alleged to have been given by the defendants 2 and 3 cannot be accepted. However, reasonable conclusion was given that the will is valid and being a Muslim will, the rigor of Section 68 of the Indian Evidence Act is strenuously and vehemently not applicable. Further, it was observed in fact, what is applicable is Section 70 of the Indian Evidence Act as the Muslim will need not have attestation. Therefore, the learned single Judge believed Ex.A-1-Will, but not the consent alleged to have been given by the defendants. Hence this appeal. After hearing the counsel and the other side, it is to be taken note that as per the finding in regard to the ownership of the suit schedule property is concerned, as held by the trial Court as it belongs to Khaisarunnisa Begum, no cross objections have been filed. It was held that the said findings have become final. Having heard the contentions of the plaintiff’s counsel and other side and perused the material available on record, the point that arises for consideration is that on the facts and circumstances of the case, the Ex.A-1, will deed is proved and plaintiff is entitled to claim the suit schedule property therein. As stated above, the entire gamut of the controversy is surrounds around Ex.A-1, alleged to have been executed by Khaisarunnisa Begum on 26.09.1960, which is marked as Ex.A-1 and it was produced through P.W.1-the plaintiff himself. This will is denied as being fabricated. In order to prove the will, P.W.1 examined himself, states that he is a scribe of the deed and he was present and he drafted it to her dictation and defendant No.1- brother, Iftikar Hussain and his wife Zaibunnissa Begum attested the will and they are marked in the absence of all the attesters and he himself signed on that will in the presence of the attester. Therefore, D.W.1 himself is not only claimed to be a scribe but also was present at the time of its execution. It is he who drafted it under the dictation of Khaisarunnisa Begum. In the cross-examination, no doubt there has been several suggestions about the presence of others and the illness of the Khaisarunnisa Begum at the relevant point of time. That apart, on behalf of the plaintiff, P.W.2 another witness who is the younger brother of the plaintiff was examined, who stated that Khaisarunnisa Begum executed a will and he was present on 21.06.1960 and it was executed in favour of P.W.1 and she was not sound, dispossession of state of mind and health. The will was drafted by P.W.1 to the dictation of her. Then he stated that he himself and defendant No.1 and P.W.1 wife attested the will in presence of her. P.W.2 was again cross-examined at length on behalf of the defendants. The evidence of both the P.W.1 and 2 run at above length in rebuttal. No doubt the defendants 1 and 6 examined themselves as D.W.1 and 2. On a reading of the judgment of trial, it is found that it had perused, considered and analysed the evidence of both the witnesses and did not find it favour to accept the same and also rejected the Ex.A-1- will deed, while non-suiting the plaintiff whereas, the learned single Judge without considering or referring to it, had taken into account the depositions of either P.Ws.1 and 2, who were came into witness box to prove Ex.A-1. As P.W.1 sought to hold that the Ex.A-1 is valid, most so on the premise that, in respect of the Muslim will, the rigor of Section 68 is not applicable and what is applicable is Section 70 of the Indian Evidence Act and the Muslim will need not have attesters. However, in support, nothing has been referred to on law nor any precedent. According to Bailee’s digest on Mohammedan Law, perfect intellect and freedom is a testator are indispensable requisites to the validity of a bequest.[1] From the above reference, it can safely be stated that even in the basic canons under the Muslim Law, such requirement is mandate apart from the statutory provision under Section 63 or 68 of the Indian Evidence Act. Once this condition precedent is applicable, necessarily it has to fall back on the necessity of proof through the attestors without which it not only remains incomplete but also un- established. In view of the same, it is to be held that the learned single Judge was not right in holding that Muslim Will stands apart from all other Wills as for the purpose of Section 68 of the Indian Evidence Act. However, since the learned single Judge did not make any appreciation of the evidence on record, but only sought to proceed on such proposition, necessarily the matters requires to be reconsidered by looking into the evidence and material as produced by both sides. In the circumstances, the appeal is allowed setting aside the judgment and decree in C.C.C.A.No.147 of 1983, dated 20.02.1996. The matter is remitted back to the learned single Judge for consideration afresh and disposal on merits in accordance with law. _________________ (B.PRAKASH RAO, J) ___________________ (P. DURGA PRASAD, J) 30th April, 2011 SP THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD (The Judgment of the Bench Delivered by Hon’ble Sri Justice B. Prakash Rao) L.P.A.NO.109 OF 1996 April, 2011 SP [1] (Bailee II 1958 Edition Pg.232). See also Seeta Ram Shah vs. Bibi Ayesha Khatoon, (1987 PLJR Pg 248)