Andhra Pradesh High Court – Amravati
Mrs S. Saleema Bi, Chittoor Dist vs Smt. S. Pyari Begum, Hyderabad 19 Others on 28 July, 2025
APHC010571702008
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
MONDAY,THE TWENTY EIGHTH DAY OF JULY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 209 OF 2008
AND
CROSS APPEAL (SR) No.4570 OF 2008
Between:
1. MRS S. SALEEMA BI, CHITTOOR DIST, W/o. Late Maqbool R/o. D.No.
17/336-D, N.V.R. Street, Madanapalle Town, Chittoor District.
...Petitioner
AND
1. SMT S PYARI BEGUM HYDERABAD 19 OTHERS, W/o. Quddus Ahmed
R/o. D.No. 16/3-993/3, New Malakpet, Hyderabad. (died)
2. Smt S Rameeza Bi, W/o. Syed Saheb R/o. N.V.R. Street, Madanapalle,
Chittoor Dist.
3. Smt Mazharul Qamer, W/o. Basith Faruqui R/o. 993/1/B, Nar Dawn School,
New Malakpet, Hyderabad.
4. Smt Noorulqamer, W/o. Md. Abdul Ghayyum R/o. 993/3, Near Dawn
School, New Malakpet, Hyderabad.
5. Noor Ahmed, S/o. Quddus Ahmed R/o. 16-3-993/3, Near Dawn School,
New Malakpet, Hyderabad.
6. Smt Rashida, W/o. Qudratullah Khan R/o. D.No. 18-14-156/2, Kanchan
Bagh, Hyderabad.
7. Mr Iqbal, S/o. Quddus Ahmed R/o. D.No. 16-3-993/3, Near Dawn School,
New Malakpet, Hyderabad.
8. Smt Munawar Sulthana, W/o. Sayyed Nainul Abdin R/o. D.No. 993/3, Near
Dawn School, New Malakpet, Hyderabad.
9. Smt Saleema Sulthana, W/o. Syyed Sajid R/o. D.No. 993/3, Near Dawn
School, New Malakpet, Hyderabad.
10. Smt Abida Sulthana, D/o. Quddus Ahmed R/o. D.No. 993/3, Near Dawn
School, New Malakpet, Hyderabad. (Respondents 3 to 10 are added as per
orders in I.A. No.
11. V Abdullah Kutti, S/o. Ungal Ungal Kutti Proprietor of Ashraf Cut Pieces
R/o. Reading Room Street, Madanapalle, Chittoor Dist.
12. Sri Quddus Ahmed died, S/o. Mohammad Ahmed R/o. 16-3-993, Near
Dawn School, New Malakpet, Hyderabad.
13. S Sameer Ahmad, S/o. Late Quddus Ahmed R/o. D.No. 16-3-993/3, Near
Dawn School, New Malakpet, Hyderabad.
14. S Nazeer Ahmed, S/o. Late Quddus Ahmed R/o. D.No. 16-3-993/3, Near
Dawn School, New Malakpet, Hyderabad.
15. S Nissar Ahmed, S/o. Late Quddus Ahmed R/o. D.No. 16-3-993/3, Near
Dawn School, New Malakpet, Hyderabad.
16. S Fayaz Ahmed, S/o. Late Quddus Ahmed R/o. D.No. 16-3-993/3, Near
Dawn School, New Malakpet, Hyderabad.
17. Smt S Rahatunnisa Begum, W/o. Late Quddus Ahmad (Respondents 13
to 16 are added as per orders in IA No. 739/2001 dated 12-12-2001)
(Respondents 11-17 are not necessary parties to this appeal)
18. g r venkata chalapathy reddy, -
19. shaik mahaboob basha, r/o. d.no. 1/329, punganuru road, basinikonda
colony, town & post, madanapally (m), chittoor district.
20. smt gousia begum, r/o. d.no.1/329, punganuru road, basinikonda colony
Town & post, madanapally (m), chittoor dist. RR-18 to 20 are impleaded as
per the hon'ble c.o.dt;2-7-15 made in asmp-2090/14.
...Respondents
IA NO: 1 OF 2008(ASMP 606 OF 2008
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
stay all further proceedings in O.S.No. 105 of 1997 on the file of the Court of
the Senior Civil Judge, Madanapalle, Chittoor District, pending disposal of the
second appeal and pass
IA NO: 5 OF 2008(XOBJ 4750 OF 2008
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
IA NO: 6 OF 2008(ASMP 6448 OF 2008
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
IA NO: 1 OF 2012(ASMP 888 OF 2012
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
vacate interim stay of passing of final decree granted in ASMP.No. 606 of
2008 in AS.No. 209/08 dated 9-4-2008
IA NO: 2 OF 2012(ASMP 2676 OF 2012
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
grant interim injunction in favour of the petitioners and against the
Respondent No. 1, her representatives, legal heirs, men, servants agents
person or persons cliaming through under them from alienating / transferring
any portion of items 1, 2 and 5 of the suit schedule properties either by way of
sale, mortgage or in any manner whatsoever or by creating any third party
interest relating to the suit schedule properties which are more specifically
referred to herein
IA NO: 1 OF 2014(ASMP 2090 OF 2014
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
permit the petitioners to implead Respondent No. 13 to 15 as Respondents
18 to 20 in the appeal
IA NO: 1 OF 2015(ASMP 602 OF 2015
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
expedite the appeal by fixing early date preferably in the next week
IA NO: 2 OF 2015(ASMP 1100 OF 2015
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
receive the BEtter Affidavit on record in the above case
IA NO: 3 OF 2015(ASMP 1624 OF 2015
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased to
grant interim injunction in favour of the petitioners and against the
Respondents 13 to 15 herein who are proposed respondents 18 to 20 in the
appeal, restraining them, their men, servants, agents, person or persons
claiming through or under them from changing the nature of the property
including making any construction thereon pending disposal of this Appeal
IA NO: 1 OF 2021
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
Pleased to permit the petitioner to implead respondent no.16 to 25 herein in
the appeal being tenants in occupation of portions of Item 1 and 2 of the suit
schedule properties and be plead to pass
IA NO: 2 OF 2021
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
Pleased to direct the respondents 16 to 25 herein to deposit the rents payable
for the portions in their occupation of Item 1 and 2 of the suit schedule
properties by furnishing accounts as to quantum of rent and date of inception
of their tenancy and be pleased to pas
Counsel for the Petitioner: RAJENDRA BUSSA
Counsel for the Respondents: M R S SRINIVAS Counsel for the
Respondents:SURESH KUMAR REDDY KALAVA Counsel for the
Respondents:MANJARI S GANU
The Court made the following order:
COMMON JUDGMENT: -
The Appeal Suit, under Section 96 of the Code of Civil Procedure [for
short „the C.P.C.‟], is filed by the first defendant challenging the decree and
judgment, dated 10.12.2007 in O.S.No.105 of 1997 passed by the Senior Civil
Judge, Madanapalle [for short „the trial Court‟].
The Cross Appeal, under Order 41 Rule 22 of C.P.C., is filed by the
plaintiffs 4 to 8 challenging the decree and judgment, dated 10.12.2007 in
O.S.No.105 of 1997 passed by the Senior Civil Judge, Madanapalle, to the
extent of finding given by the trial Court that Will is proved.
Since the appeal suit and the cross appeal are filed against the
judgment passed in O.S.No.105 of 1997, a common judgment is being
pronounced in both the appeal suit and the cross appeal.
2. The appellant in the appeal suit is 1st defendant and respondents in
the appeal suit are plaintiffs and other defendants; the Cross Appellants in
Cross Appeal are Plaintiff Nos.1, 4 to 8 and 1st respondent in cross appeal is
1st defendant and the remaining respondents in cross appeal are other
plaintiffs and defendants in O.S.No.105 of 1997.
During the pendency of the first appeal, the 12th respondent died and
his legal representatives were brought on record as respondent Nos.13 to 16
and the respondent Nos.18 to 20 were impleaded as per the order, dated
02.07.2015 in ASMP No.2090 of 2014.
3. The plaintiffs filed the suit for partition and separate possession of the
plaint schedule property into four equal shares and allotment of three shares
to the plaintiffs and for other ancillary reliefs.
4.Both the parties in the Appeal Suit will be referred to as they are
arrayed before the trial Court.
5.The brief averments of the plaint, in O.S.No.105 of 1997, are as
under:
The plaintiffs 1 and 2 and one S. Maqbul are the children of Syed
Meeran Sahib. S. Maqbul died on 01.06.1997 intestate. The plaintiffs 1 and 2
had two more sisters by name Khasim Bee and Mashmath Bee, who died
prior to the date of the death of Maqbul. The 1st defendant is the wife of said
Maqbul and she did not beget any issue out of the wedlock. Maqbul died
intestate leaving behind the 1st defendant as his legal heirs for his estate.
During the lifetime of Maqbul, he was doing grill work and other iron works
earned properties which are detailed in the plaint schedule for the last 7 to 8
years, he was maintaining a Hardware shop under the name and style of
Saleem Hardware pertaining to the grill works, angles, flats square rods,
beeruvas, shelves, etc., with which he earned the properties. After the death
of Maqbul, the plaintiffs and 1st defendant succeeded according to the
principles of Mohammadan Law. Thus, the plaintiffs and the defendants are
co-owners as soon as Maqbul died intestate. Maqbul was brought by the
plaintiffs and other two sisters as their father died when Maqbul was a small
boy and thereupon the plaintiffs and their other sisters brought up Maqbul.
The sisters of Maqbul performed the marriage of their brother Maqbul with the
1st defendant. The 1st defendant developed ill motive and planned to defeat
and circumvent the legal right and succession by the plaintiffs who are entitled
to share as per law. The plaintiffs participated in the funeral and performed all
rituals and did their best. But, the 1st defendant is saying that she would not
allow the plaintiffs to claim any property and take the fruits of the property left
by late Maqbul and she is planning to sell away the property which is highly
illegal and unjust. The 1st defendant is planning to create some spurious and
fictitious documents, detrimental to the legal rights of the plaintiffs and they
are all void ab initio and not binding on the plaintiffs. The 2nd defendant is a
formal party as he is a co-owner as per the sale deed, dated 29.06.1985 in
plaint Item No.5 and he is no way concerned with item Nos.1 to 4 of the plaint
schedule property. Since he is a co-owner in item No.5, he is also a
necessary party. The 1st plaintiff during the pendency of the suit, died leaving
behind the plaintiffs 3 to 10 and the 3rd defendant as her legal heirs. The 3rd
defendant has become mentally upset on account of death of the 1st plaintiff,
who has been associating with him for the past 40 to 50 years. Hence, he has
not come along with the plaintiffs to file this suit and therefore he is added as
3rd defendant. The 3rd defendant died on 17.08.2001 leaving behind him, the
newly added defendants 4 to 8 and they have succeeded to the suit properties
as tenants in common along with the other co-owners in this matter and that
the plaintiffs are constrained to file the suit.
6.The 1stdefendant filed written statement denying all the averments
mentioned in the plaint. The brief facts in the written statement are as follows:
The plaintiffs are utter strangers to the family of the 1st defendant vis-a-
vis her husband S. Maqbul. The marriage of the 1st defendant was solemnized
with the said Maqbul on 12.01.1969. The plaintiffs never visited the house of
the 1stdefendant at any time. The 1st defendant is the wife of deceased
Maqbul. She got no children. The said Maqbul later on got married Parveen as
his second wife through whom also no child was born and as she did not pull
on with the 1st defendant and Maqbul which lead to serious differences. There
was no reproachment or reconciliation between S. Maqbul and his second
wife Parveen.Item No.1 is concerned, S. Maqbul during his lifetime has
bequeathed the same in favour of the 1st defendant by assigning the cogent
satisfactory reasons for making such a testamentary dispossession in favour
of the 1st defendant. As per the intention reflected by the testator in the
registered Will, dated 22.09.1986, the 1st defendant alone became entitled to
Item No.1 of the schedule properties and none else. It was duly acted upon
and given effect, after the death of S. Maqbul on 01.06.1997. These facts
have been known to all including the relatives of S. Maqbul on his parents
side. It is executed by him in a sound and disposing state of mind. Item No.2
of the schedule property was purchased by S.Maqbul with the financial
assistance of the 1st defendant from the previous legitimate owner, under a
registered document dated 11.09.1975 for Rs.13,275/- which was only a
vacant site then. The 1st defendant advanced money to her husband for
construction of shop room to carry on business in Hardware, for which also he
borrowed amount of Rs.2,77,800/- during his lifetime. In fact, in the Income
Tax returns, the name of the 1st defendant is also shown as one of the
creditors from whom S. Maqbul has taken amounts. The plaintiffs cannot have
a right for the stock in trade found Item No.2. Even according to the principles
of Mohammadan Law, the debts of the deceased Maqbul have got a
paramount charge and precedence over the other claims of sharers. Maqbul
during his lifetime, he had orally gifted Item No.2 of the schedule property
along with the movables found in it and item Nos.3 and 5, unconditionally
delivered possession of the same to the 1st defendant in the presence of S.
Jaafer, N. Sharfun and others. The gift so made by him was without any
reservations and in full compliance of the principles of Mahommadan Law.
Due to such affinity, the 1st defendant could not obtain the registered
document but none the less the oral gift made by S. Maqbul concerning to
Item No.2 of the schedule property and movables thereon, item Nos.3 and 5
perfectly valid, legally enforceable against all including the plaintiffs, even if
they are said to be sisters of S. Maqbul. Under the circumstances stated, the
1st defendant alone is absolute owner of the properties.
7.Based on the above pleadings, the trial Court framed the following
issues:
(1) Whether the registered Will, dated 22.09.1986 is true and binding on
the plaintiffs?
(2) Whether the valuation made and court fee paid are not correct?
(3) Whether the suit is bad for mis-joinder of parties?
(4) Whether the oral gift set up by the 1st defendant in respect of items 2,
3 and 5 is true?
(5) Whether the schedule properties are liable to be partitioned, and if
so to what share the plaintiffs are entitled to?
(6) To what relief?
The trial Court also framed the following additional issue on 19.03.2002:
Whether the plaintiffs 3 to 10 and defendants 3 to 8 have nothing to do
with the suit property?
8. During the course of trial in the trial Court, on behalf of the Plaintiffs,
PW1 to P.W.7 were examined and Ex.A1 to Ex.A14 and Ex.X.1 to Ex.X.6
were marked. On behalf of the Defendant No.1, DW1 to DW4 were examined
and Ex.B1 to Ex.B.7 were marked.
9.After completion of the trial and on hearing the arguments of both
sides, the trial Court decreed the suit preliminarily with costs vide its judgment,
dated 10.12.2007, against which the present appeal is preferred by the 1st
defendant in the suit questioning the Decree and Judgment passed by the trial
Court.
10. The cross appeal is filed by the plaintiffs 1 and 4 to 8 challenging the
finding given by the trial Court relating to Will and the brief facts of the cross
appeal are as follows:
The Cross Appellants filed O.S.No.105 of 1997 for partition and
separate possession relating to items 1 to 5 of the suit schedule property. The
1st respondent who is 1st defendant in the suit is the wife of the deceased S.
Maqbul, who claims that her husband had executed a registered Will, dated
22.09.1986 in her favour relating to item No.1 of the suit schedule property
and also made oral gift in her favour relating to item No.2 of the suit schedule
property and movables thereon. She also denied the relationship between the
plaintiffs 1 and 2 as sisters of her husband and hence claimed for dismissal of
the suit. The trial Court believed the registered Will said to have been
executed by the deceased, but held that the Will is valid only to the extent of
1/3rd share in item No.1 and directed that remaining 2/3rd of share shall be
divided as 1/4th to the wife and 3/4th to the sisters i.e., plaintiffs. The plaintiffs
being aggrieved by the finding relating to the Will in respect of item No.1 of the
suit schedule property, challenging which this cross appeal is being filed within
the time.
11. Heard Sri Rajendra Bussa, learned counsel for the appellant and
heard Sri M.R.S. Srinivas, learned counsel for the respondents/cross
objectors.
12. Now the points for determinationin the first appeal are:
1) Whether the relationship of the plaintiffs 1 and 2 with the 1 st
defendant was established by the plaintiffs?
2) Whether the trial Court has erred in conferring 1/3rd share in the
properties shown in Ex.B.1 Will executed by Maqbul in favour of
appellant holding the testamentary power of a Mahommadan to
dispose of his property by Will to the extent of 1/3rd share?
3) Whether the registered Will, dated 22.09.1986 proved in
accordance with law and the same is binding on plaintiffs 4 to
8/cross objectors?
4) Whether the trial Court is justified in decreeing the suit for
partition in respect of plaint schedule properties?
13. Point No.1:
Whether the relationship of the plaintiffs 1 and 2 with the 1 st
defendant was established by the plaintiffs?
The 1st defendant contended that the evidence produced by the
plaintiffs would not establish the relationship of plaintiffs 1 and 2 with the
deceased Maqbul i.e., husband of appellant/1st defendant. In the case on
hand, originally the plaintiffs 1 and 2 instituted a suit for partition against the
defendants. The specific case of the plaintiffs 1 and 2 is that they are the
sisters of Maqbul/husband of the 1st defendant. The appellant/1st defendant
specifically denied the relationship of plaintiffs 1 and 2 with her husband,
therefore, the burden casts upon the plaintiffs 1 and 2 to prove the same. To
discharge their burden, the plaintiffs relied on the evidence of P.W.2 to P.W.7.
The plaintiffs relied on Ex.A.1 and Ex.A.2. Ex.A.1 is marriage certificate and
Ex.A.2 is the death extract of Maqbul i.e., the husband of 1st defendant, it
shows father name of Maqbul is Syed Meeran Sahib.
14. The plaintiffs relied on Ex.X.3 to Ex.X.5 and Ex.A.3 to Ex.A.14 which
shows that the father of 1st plaintiff is Meeran Sahib. The plaintiffs also relied
on marriage video cassette under Ex.A.12. In its judgment, the trial Court held
that video cassette is displayed during the course of trial and arguments and
the video cassette and photos exhibited by the plaintiffs as Ex.A.5 and Ex.A.6
established about the relationship in between the plaintiffs 1 and 2 with the
defendants. Ex.A.3 is the certificate issued by the Secretary, A.P. State Haj
Committee, Hyderabad. Ex.A.4 is the ownership certificate issued by the
Committee, Madanapalle Municipality. Ex.A.5 and Ex.A.6 are family photos of
Maqbul. Ex.A.7 is bunch of photos with negatives. Ex.A.8 is study certificate,
dated 22.10.1997. The documentary evidence produced by the plaintiffs
establishes that the plaintiffs 1 and 2 are none other than the sisters of Maqbul
i.e., husband of 1st defendant.
15. In Civil cases the preponderance of probability constitutes a
sufficient ground for decision, if the facts and circumstances are such that no
reasonable man would draw a particular inference from them or if the degree
of probability in the case is such that as to include anyhypothesis besides one
to be proved then the party who relies on a particular theory cannot be said to
have discharged the onus of proof of establishing that theory. But, if the
evidence strongly preponders in favour of any of the two theories set up, the
Court is entitled to act on it. It is a trait law that witnesses might lie, but the
documents would not do so. In the case on hand, the plaintiffs 1 and 2 proved
by producing oral and voluminous of documentary evidence to prove that they
are none other than the sisters of Maqbul i.e., husband of 1st defendant.
Accordingly, point No.1 is answered against the appellant/1st defendant.
16.Point Nos.2 and 3:
(2)Whether the trial Court has erred in conferring 1/3rd share in the
properties shown in Ex.B.1 Will executed by late Maqbul in favour
of appellant holding the testamentary power of a Mahommadan to
dispose of his property by Will to the extent of 1/3rd share?
(3) Whether the registered Will, dated 22.09.1986 proved in
accordance with law and the same is binding on plaintiffs 4 to
8/cross objectors?
The specific case of the appellant/1st defendant is that during the
lifetime of her husband, her husband Maqbul executed a registered will, dated
22.09.1986 in her favour bequeathing item No.1 of the suit schedule property.
The plaintiffs herein are disputing the said registered will. Therefore, the
burden casts upon the preponder of the will to prove the same. In order to
prove the same, the 1st defendant examined one of the attestors in the will as
D.W.2 and the scribe of the will is examined as D.W.4 and the original
registered will is marked as Ex.B.1. The law is well settled that even though
the alleged will is a registered will, no importance will be given to the said
registered will and it cannot be treated as a genuine will unless it is proved in
terms of Section 68 of the Indian Evidence Act, 1872 r/w Section 63 of the
Indian Succession Act.
Section 68 of the Indian Evidence Act, 1872 read as follows:
68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been called for the purpose
of proving its execution, if there be an attesting witness alive, and subject to
the process of the Court and capable of giving evidence:
[Provided that it shall not be necessary to call an attesting witness in
proof of the execution of any document, not being a Will, which has been
registered in accordance with the provisions of the Indian Registration Act,
1908 (XVI of 1908), unless its execution by the person by whom it purports to
have been executed is specifically denied.]
17. It is evident that in cases where the documents sought to be proved
is required by law to be attested, the same cannot let be in the evidence
unless at-least one of the attesting witnesses has been called for the purpose
of proving the attestation, if any, such attesting witness is alive and capable of
giving evidence and is subject to the process of the Court. Section 63 of the
Indian Succession Act deals with the execution of unprivileged wills and inter
alia, provides that every testator except those mentioned in the said provision
shall execute his will according to the rules stipulated therein. Section 63 of
the Indian Succession Act defines as follows:
63. Execution of unprivileged Wills.--
Every testator, not being a soldier employed in an expedition or engaged in
actual warfare, or an airman so employed or engaged, or a mariner at sea,
shall execute his Will according to the following rules:--
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed
by some other person in his presence and by his direction.
(b)The signature or mark of the testator, or the signature of the person signing
for him, shall be so placed that it shall appear that it was intended thereby to
give effect to the writing as a Will.
(c)The Will shall be attested by two or more witnesses, each of whom has
seen the testator sign or affix his mark to the Will or has seen some other
person sign the Will, in the presence and by the direction of the testator, or
has received from the testator a personal acknowledgement of his signature
or mark, or the signature of such other person; and each of the witnesses
shall sign the Will in the presence of the testator, but it shall not be necessary
that more than one witness be present at the same time, and no particular
form of attestation shall be necessary.
18. In the case on hand, the original registered will is marked as Ex.B.1.
The preponder of the will to discharge her burden examined one of the
attestors in the said registered will as D.W.2 and the scribe of the said
registered will examined as D.W.4. As seen from the evidence of D.W.2, he
narrated in his evidence how Ex.B.1 will is executed. He also stated at the
time of execution of will, the testator Maqbul is in sound and disposing state of
mind and the will was scribed by D.W.4, as per the instructions of executant,
later the scribe read over the contents of the will in their presence and the
testator also admitted the same. He is the first attestor in the registered will,
one Munwar Husssain is second attestor. D.W.2 identified the signature of the
testator in the registered will Ex.B.1 and he further stated it was registered in
Sub-Registrar Office on 22.09.1986.
19. D.W.4 the scribe of the will also narrated in his evidence that as per
the instructions given by the testator, he scribed Ex.B.1 will and after Ex.B.1
will is scribed, he read over the contents to the testator in the presence of the
attestors and the testator admitted the same and after that it was registered in
the Sub-Registrar Office.
20. Both D.W.2 and D.W.4 are uninterested witnesses and they are the
Hindus and both the parties in the suit are Muslims and though D.W.2 and
D.W.4 are subjected to cross examination, their evidence is not shattered on
material aspects of the case. The ingredients of Section 63 of the Indian
Succession Act are not missing in the evidence of D.W.2 and D.W.4. Both
DW.2 and D.W.4 stated at the time of execution of the registered will, the
testator is in a sound and disposing state of mind. The date of execution of
registered will Ex.B.1 is 22.09.1986. The testator died on 01.06.1996. The
gap in between execution of registered will and death of testator is 14 years.
As stated supra, both D.W.2 and D.W.4 are Hindus and uninterested
witnesses and both the parties in the suit proceedings are Muslims. In fact,
there are no suspicious circumstances surrounded the execution of Ex.B.1
will. For the aforesaid reasons, I am of the considered view that Ex.B.1 will is
proved in accordance with law. On appreciation of the entire evidence on
record, the learned trial Judge also came to the same conclusion that Ex.B.1
registered will is proved in accordance with law.
21. It was contended by the learned counsel for the appellant that the
trial Court erred in conferring 1/3rd share in the properties shown in Ex.B.1 will
executed by late Maqbul in favour of the appellant/1st defendant holding that
the testamentary power of Mahommadan to dispose of his property by will is
limited to the extent of 1/3rd share. As stated supra, Ex.B.1 registered will is
proved by preponder of the will in according to law. In fact, there are no
suspicious circumstances surrounding the will. As per Muslim Law, a Muslim
can bequeath only 1/3rd of his right in item No.1 of the suit schedule property
by virtue of the will and the 1st defendant get only 1/3rd share in item No.1 of
the suit schedule property under Ex.B.1. The trial Court held in its judgment
that "Under Section 118 of principles of Mahommadan Law Mulla, the
testamentary power of a Mahommadan is regulated according to which a
Mahommadan cannot by will dispose of more than a third of the surplus of his
estate after payment of funeral expenses and debts".
22. For the aforesaid reasons, the learned trial Judge rightly held in its
judgment that by virtue of Ex.B.1 will, 1st defendant got 1/3rd share in item
No.1 of the suit schedule property under Ex.B.1 will.
23. Point No.4:
Whether the trial Court is justified in decreeing the suit for
partition in respect of plaint schedule properties?
As stated supra, the relationship of Plaintiffs 1 and 2 with Maqbul i.e.,
husband of 1st defendant is proved by the plaintiffs by producing oral and
documentary evidence, the plaintiffs 1 and 2 are none other than the sisters of
Maqbul i.e., husband of 1st defendant. During the pendency of the suit, the 1st
plaintiff died leaving behind plaintiffs 3 to 10 and one Quddus Ahmand as her
legal heirs. Since, she has not joined with the plaintiffs to prosecute the suit
proceedings, she was added as 3rd defendant in the suit by the plaintiffs and
the 3rd defendant died during the pendency of the suit and the legal
representatives of the 3rd defendant are brought on record defendant Nos.4 to
8. Since the 1st plaintiff also died during the pendency of the suit, plaintiffs 3 to
10 are brought on record as legal representatives of the 1st plaintiff.
24. It is the specific case of the appellant/1st defendant that her husband
orally gifted the remaining properties in the presence of S. Jaaffer Khan and
N. Sharfun. Under Mahommadan Law oral gift is also permissible. The oral
gift has to be proved by way of producing oral evidence. The first defendant
relied on the evidence of D.W.3. N. Sharfun is only examined as D.W.3 by the
1st defendant. The other witness to the alleged oral gift as stated by 1st
defendant by name S. Jaaffer Khan is not examined as witness by the 1st
defendant. In fact, the date and month and year of alleged oral gift is not even
spoken by the 1st defendant either in the written statement or in the evidence,
likewise D.W.3 also not stated the same in his evidence about the date and
month and year of alleged oral gift in favour of the 1st defendant made by her
husband. Maqbul executed a registered will on 22.09.1986 in favour of the 1st
defendant bequeathing item No.1 of the plaint schedule property, in such a
case, what prevented him to execute a registered gift deed in favour of the 1st
defendant or at-least he has to mention about the other property in the said
original registered will itself instead of making alleged oral gift in favour of the
1st defendant. Therefore, the alleged oral gift as pleaded by the 1st defendant
is not at all proved.
25. By giving cogent reasons, the learned trial Judge rightly granted
preliminary decree of partition. After careful consideration, this Court views
that the trial Court correctly evaluated the oral and documentary evidence in
all aspects and rightly decreed the suit. Therefore, I align with the conclusion
drawn by the trial Court. For the aforesaid reasons, the appeal suit and the
cross appeal are liable to be dismissed.
26. In the result, the appeal suit and the cross appeal are dismissed.
Considering the facts and circumstances of the case, each party do bear their
own costs in the appeal suit as well as in the cross appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
REGISTRAR
//TRUE COPY//
SECTION OFFICER
To,
1. SMT S PYARI BEGUM HYDERABAD 19 OTHERS, W/o. Quddus Ahmed
R/o. D.No. 16/3-993/3, New Malakpet, Hyderabad. (died)
2. Smt S Rameeza Bi, W/o. Syed Saheb R/o. N.V.R. Street, Madanapalle,
Chittoor Dist.
3. Smt Mazharul Qamer, W/o. Basith Faruqui R/o. 993/1/B, Nar Dawn School,
New Malakpet, Hyderabad.
4. Smt Noorulqamer, W/o. Md. Abdul Ghayyum R/o. 993/3, Near Dawn
School, New Malakpet, Hyderabad.
5. Noor Ahmed, S/o. Quddus Ahmed R/o. 16-3-993/3, Near Dawn School,
New Malakpet, Hyderabad.
6. Smt Rashida, W/o. Qudratullah Khan R/o. D.No. 18-14-156/2, Kanchan
Bagh, Hyderabad.
7. Mr Iqbal, S/o. Quddus Ahmed R/o. D.No. 16-3-993/3, Near Dawn School,
New Malakpet, Hyderabad.
8. Smt Munawar Sulthana, W/o. Sayyed Nainul Abdin R/o. D.No. 993/3, Near
Dawn School, New Malakpet, Hyderabad.
9. Smt Saleema Sulthana, W/o. Syyed Sajid R/o. D.No. 993/3, Near Dawn
School, New Malakpet, Hyderabad.
10. Smt Abida Sulthana, D/o. Quddus Ahmed R/o. D.No. 993/3, Near Dawn
School, New Malakpet, Hyderabad. (Respondents 3 to 10 are added as per
orders in I.A. No.
11. V Abdullah Kutti, S/o. Ungal Ungal Kutti Proprietor of Ashraf Cut Pieces
R/o. Reading Room Street, Madanapalle, Chittoor Dist.
12. Sri Quddus Ahmed died, S/o. Mohammad Ahmed R/o. 16-3-993, Near
Dawn School, New Malakpet, Hyderabad.
13. S Sameer Ahmad, S/o. Late Quddus Ahmed R/o. D.No. 16-3-993/3, Near
Dawn School, New Malakpet, Hyderabad.
14. S Nazeer Ahmed, S/o. Late Quddus Ahmed R/o. D.No. 16-3-993/3, Near
Dawn School, New Malakpet, Hyderabad.
15. S Nissar Ahmed, S/o. Late Quddus Ahmed R/o. D.No. 16-3-993/3, Near
Dawn School, New Malakpet, Hyderabad.
16. S Fayaz Ahmed, S/o. Late Quddus Ahmed R/o. D.No. 16-3-993/3, Near
Dawn School, New Malakpet, Hyderabad.
17. Smt S Rahatunnisa Begum, W/o. Late Quddus Ahmad (Respondents 13
to 16 are added as per orders in IA No. 739/2001 dated 12-12-2001)
(Respondents 11-17 are not necessary parties to this appeal)
18. g r venkata chalapathy reddy, -
19. shaik mahaboob basha, r/o. d.no. 1/329, punganuru road, basinikonda
colony, town & post, madanapally (m), chittoor district.
20. smt gousia begum, r/o. d.no.1/329, punganuru road, basinikonda colony
Town & post, madanapally (m), chittoor dist. RR-18 to 20 are impleaded as
per the hon'ble c.o.dt;2-7-15 made in asmp-2090/14.
21. One CC to SRI. RAJENDRA BUSSA Advocate [OPUC]
22. One CC to SRI. M R S SRINIVAS Advocate [OPUC]
23. One CC to SRI. SURESH KUMAR REDDY KALAVA Advocate [OPUC]
24. One CC to SRI. MANJARI S GANU Advocate [OPUC]
25. Two CD Copies
HIGH COURT
VGKRJ
DATED:28/07/2025
ORDER
AS NO. 209 OF 2008
AND
CROSS APPEAL (SR) No.4570 OF
2008