IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 311 of 2000 Judgment reserved on: 16.11.2010 Date of Decision: 18.11.2010 Hakam Din …Appellant. Versus Gulam Mohammad and ors. ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellants : Mr. C.P. Sood, Advocate. For the Respondents : Mr. Anand Sharma, Advocate. Kuldip Singh , Judge The plaintiff is in appeal against the judgment and decree, dated 20.3.2000 passed by the learned District Judge, Chamba in Civil Appeal No. 29 of 1999 reversing the judgment and decree, dated 3.4.1999 passed by the learned Sub Judge, 1st Class, Chamba in Civil Suit No.73 of 1998/95 decreeing the suit of the appellant for joint possession. 2. The pleaded case of the appellant is that he and respondents are descendents of common ancestor, namely, Saihnu and the pedigree table of the parties is reproduced here-in-below:- 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.Yes. 2 Parma }{ Saihnu = Shaido (dead) (defd. No.5) }{ }{ }{ }{ }{ }{ Hakam Din Gulam Mohd. Pyar Din Jana Kashmiroo (plaintiff) (defd. No.1) (defd. No.2) (defd.No.3) (defd. No.4) The further case of the appellant is that Saihnu was owner in possession of the land more specifically detailed in the plaint (hereinafter referred to as the ‘suit land’). The parties are Sunni Mohammedan and are governed by Shariat law in the matter of inheritance. Saihnu died on 25.11.1984 and his estate has been inherited by his widow, sons and daughters. 3. The respondents No. 1 and 2 forcibly dispossessed the appellant from the suit land on the pretext that only they are entitled to succeed the property of Saihnu on the basis of Will allegedly executed by Saihnu in their favour. It has been alleged that Saihnu was an old man and incapable of executing the Will. The alleged Will is forged and respondents No. 1 and 2 in connivance with each other have manipulated the execution of the Will. There was no reason for Saihnu to exclude the others heirs, when the family was joint. 4. It is also the case of the appellant that Saihnu was not legally competent to bequeath his property to his some heirs excluding others. The appellant and proforma respondents and widow of Saihnu never gave their consent for the execution of Will qua his entire property in favour of respondents No. 1 and 2 and as such, the alleged 3 Will of Saihnu is not binding on the appellant. The respondents No. 1 and 2 got mutation of inheritance of the estate of Saihnu attested behind the back of the appellant. On the death of Saihnu his entire property has been inherited by the appellant, respondents and proforma respondents. Shaido, widow of Saihnu got 1/8th share, proforma respondents being the daughters would get 7/24th share and the remaining 7/12th share is to be inherited by the appellant and respondents No. 1 and 2 being the sons of the deceased owner. 5. The suit was contested by respondents No.1 and 2 and they have filed joint written statement taking preliminary objections of estoppel, maintainability and limitation. On merits, they have pleaded that the deceased Saihnu had executed a Will in their favour and as such, they are the only heirs of deceased Saihnu. The appellant had participated in the mutation proceedings regarding the estate of Saihnu. On the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is entitled to get the property of Shri Saihnu as alleged? OPP. 2. Whether the plaintiff is entitled to a decree for joint possession as claimed? OPP. 3. Whether late Shri Saihnu executed a valid Will in favour of the defendants as alleged. If so, its effect? OPP 4. Whether the plaintiff has a cause of action? OPP. 5. Whether the plaintiff is stopped from filing the present suit by his act and conduct? OPD. 6. Whether the suit is not maintainable in the present form? OPD. 4 7. Whether the suit is within time? OPD. 8. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD. 9. Relief. 6. Issues No.1, 2 and 3 were answered in affirmative, issues No. 3, 5 and 6 in negative, while issues No. 7 and 8 were not pressed and the suit was decreed on 3.4.1999, as noticed above. In appeal, the learned District Judge has held that the appellant Hakam Din had given consent to the execution of Will, Ext. DW3/A by Saihnu in favour of respondents No.1 and 2 and accordingly, allowed the appeal on 20.3.2000. In these circumstances, the second appeal has been filed by Hakam Din, which has been admitted on following substantial questions of law:- 1. Whether the recital in the mutation order with regard to the presence of a particular person at the time of attestation of mutation is conclusive proof of such presence? 2. Whether the mere presence of a person at the time of attestation of mutation would show that he consented to the Will on the basis of which such mutation was attested? 3. Whether active participation in the execution of the Will by the beneficiary under the Will is a suspicious circumstances surrounding the validity of the Will? 7. I have heard the learned counsel for the parties and have also gone through the record. It is submitted by the learned counsel for the appellant that mere presence of a person at the time of attestation of mutation is not indicative of the fact that such person has given consent for the attestation of the mutation. Therefore, it cannot be said that the appellant had given consent regarding the alleged Will 5 by Saihnu in favour of respondents No. 1 and 2. He has submitted that the beneficiaries have not removed the suspicious circumstances regarding the execution of the Will. Thus, taken from any angle, the execution of Will, Ext. DW3/A has not been proved. It has not been proved that heirs of Saihnu after the death of Saihnu had approved the Will. Per contra, the learned counsel for the respondents has submitted that execution of Will by Saihnu has been proved on record. In addition, the consent of the appellant for execution of Will by Saihnu in favour of respondents No. 1 and 2 has also been proved separately. The learned District Judge has appreciated all relevant material on record and, therefore, no fault can be found with the impugned judgment and decree. He has supported the impugned judgment and decree. 8. The substantial questions of law Nos. 1 to 3 are interconnected, therefore taken up collectively for disposal. On the basis of Will Ex. DW-3/A mutation No. 157, dated 14.4.1985, Ext. PA has been attested. The perusal of Ext. PA would show that Hakam was present at the time of attestation of mutation. The Will was produced and on that basis, mutation was attested in favour of respondents No. 1 and 2. The learned counsel for respondents No. 1 and 2 has submitted that only inference, which can be drawn from the mutation proceedings, is that the appellant had approved the Will, Ext. DW3/A executed by Saihnu in favour of respondents No. 1 and 2. The learned counsel for the respondents has relied Bhagwan Das versus 6 Mangal Sain AIR 1929 Lahore 93, Niazam Din and others versus Godar and others AIR 1934 Privy Council 40 and Pritam Kaur versus Chanan Singh 1985 PLJ 488 in support of his contention. On the contrary, it has been submitted on behalf of the appellant that a Mohammedan cannot by a Will dispose of more than 1/3rd share of his estate unless the heirs consent thereto after the death of testator. It has been submitted that there must be express consent of the heirs of the deceased Mohammedan for validity of bequest of more than 1/3rd share. It has been submitted that no express consent of heirs of Saihnu at the time of attestation of mutation on the basis of Will, Ext. DW3/A has been proved on record. Hence, respondents No. 1 and 2 cannot take benefit of Will, Ext. DW3/A, so as to claim entire estate of Saihnu. The learned counsel for the appellant has relied Shiv Ditta versus Kidar Nath AIR1972 HP 20, Nanda versus Punnu Ram and others AIR 1982 HP 38 and Smt. Punjabi and another versus Hazura Singh and others 1984 PLJ 14 in support of his contention. 9. The presence of the appellant is recorded at the time of attestation of mutation, Ext. PA, but in the mutation order, it has nowhere been recorded that the appellant had given consent for attestation of mutation in favour of respondents No. 1 and 2 on the basis of Will, Ext. DW3/A of Saihnu. Mere physical presence of appellant at the time of attestation of mutation is no proof of his approval of the Will, Ext. DW3/A bequeathing the entire estate of Saihnu in favour of respondents No. 1 and 2. In Bhagwan Das versus 7 Mangal Sain AIR 1929 Lahore 93, it has been held that there is a presumption of correctness of entries in the mutation. The party challenging the correctness has to rebut this presumption. In the present case, at the most presence of Hakam Din has been proved from mutation, Ext.PA. The presumption in favour of attestation of mutation cannot be extended that Hakam Din gave his express consent for the attestation of mutation when no such express consent has been recorded in the mutation proceedings. In this situation, the respondents cannot take benefit from the aforesaid judgment. In Niazam Din and others versus Godar and others AIR 1934 Privy Council 40, it has been held that there is a statutory presumption that the entries in the record of rights are correct and the party in order to succeed must establish that mutation order is a false document. This judgment in the facts of the present case is again not applicable. As noticed above, the question is regarding the express consent of appellant for attestation of mutation and not that the mutation was attested or not. 10. In Pritam Kaur versus Chanan Singh 1985 PLJ 488, it has been held that mutation proceedings should be taken into consideration even when the Revenue Officer, who has sanctioned the mutation, has not appeared as a witness. This judgment is also not on the point in issue and does not help respondents No. 1 and 2. The appellant in the plaint has specifically pleaded that in addition to appellant, respondents No. 1 and 2, widow of Saihnu and his 8 daughters are also entitled to the property of Saihnu in the absence of Will. There is no specific denial that widow and daughters of Saihnu are not entitled to inherit the estate left by Saihnu in absence of Will. In mutation, Ext. PA, the presence of daughters has not been recorded. Section 118 of the Mulla’s Principles of Mahomedan Law, Eighteenth Edition by M. Hidayatullah, Former Chief Justice of India and Arshad Hidayatullah, published by N.M. Tripathi Private Ltd. Bombay, is as follows:- “118. Limit of testamentary power. A Mohammedan cannot by Will dispose of more that 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.” 11. Saihnu on his death has left behind Hakam Din, Gulam Mohammad, Pyar Din (sons), Jana, Kashmiroo (daughters) and Shaido (widow). Gulam Mohammad and Pyar Din are the beneficiaries of Will, Ext. DW3/A. Shaido has appeared as DW-4 and has stated that the Will was executed by her husband with her consent. Jana appeared as DW-5 and has stated that her father had given land to Hakam Din and 10 bighas land to Gulam Mohammad and Pyar Din with her consent. The bequest in excess of legal third, as per Section 118, noticed above, cannot take effect unless the heirs consent thereto after the death of testator. The statement of DW-4 at the most indicates her consent at the time of execution of Will, but there is nothing in her statement that she had given her consent for execution of Will, Ext. DW-3/A in favour of respondents No. 1 and 2 after the death of 9 Saihnu. In the statement of DW-5, there is nothing so as to draw inference that she gave her consent for execution of Will, Ext. DW3/A in favour of respondents No. 1 and 2 after the death of Saihnu. Kashmiroo has not been examined in order to show as to whether she had given consent for execution of Will, Ext. DW3/A in favour of respondents No. 1 and 2 after the death of Saihnu or not. Thus, taken from any angle, it has not been proved that the heirs of Saihnu after his death had given consent that the entire estate of Saihnu on the basis of Will, Ext. DW3/A should go to respondents No. 1and 2. On the basis of Will, Ext. DW3/A at the most, 1/3rd estate of the Saihnu would go to respondents No. 1 and 2 and not more than that. 12. The execution of Mohammedan Will is not on the same footing as Hindu Will. DW2, Alla Dad, Document Writer has stated that he has scribed the Will, which was initially marked A and later on exhibited as DW-3/A. DW-3 has stated that he has scribed the Will on the instructions of Saihnu. After understanding the contents of Will, Saihnu had put his thumb mark on it in the presence of witnesses. Thereafter, witnesses also put their thumb marks on the Will, Ext. DW3/A. This witness has not been cross-examined on the point that any beneficiary of the Will actively participated at the time of scribing the Will. DW-1, Pyar Din has also not been cross-examined that he or other beneficiary of the Will actively participated in the execution of Will. DW-3 is a witness of the Will. He has stated that Saihnu admitted the correctness of the Will and thereafter, put his thumb 10 mark. Thereafter, DW-3 also put his thumb mark. The other witness has died. It appears from the cross-examination of material witnesses that it was never the case of the appellant that the beneficiaries of the Will participated in the execution of Will. The Will Ext.DW-3/A was executed on 1.12.1983 and was registered on 2.12.1983 as per endorsement on the Will. The execution of the Will has been proved. But, it has not been proved that after the death of Saihnu his heirs consented that the entire estate would devolve on respondents No. 1 and 2 on the basis of Will, Ext. DW-3/A. In this situation, on the basis of Will, Ext. DW-3/A, respondents No. 1 and 2 in equal shares shall inherit only 1/3rd estate left by Saihnu at the time of his death. In the remaining 2/3rd share left by Saihnu, the appellant is entitled to his share as per his entitlement under Mohammedan Law and accordingly, he is entitled to joint possession along with other heirs in the property left by Saihnu. The substantial questions of law No. 1 to 3 are decided accordingly. 13. No other point was urged. 14. The result of the above discussion, the appeal is allowed, impugned judgment and decree, dated 20.3.2000 are set aside and the suit of the plaintiff for joint possession of the suit land, described in the plaint, is decreed in terms of findings recorded above. There is no order as to costs. ( Kuldip Singh ), November 18, 2010, Judge. (pankaj)