K. Shafiulla vs K. Mahaboob Baig
2022 Latest Caselaw 3247 AP

  HIGH COURT OF ANDHRA PRADESH::AMARAVATI
MAIN CASE No: S.A.NO.272 OF 2022
                                 PROCEEDINGS SHEET
Sl.                                                                                               OFFICE NOTE

No.
       DATE                                         ORDER
2.    01.07.2022   KSR,J

                     The first plaintiff in O.S.No.235 of 2010 on the file of the Court of
                   Senior Civil Judge, Adoni is the appellant. He along with second
                   plaintiff filed the above suit for partition. The defendants contested
                   the suit by filing a written statement. Both parties adduced evidence
                   in support of their respective claims. After an elaborate trial, the suit
                   was decreed by way of judgment and decree, dated 19-03-2015.
                   Aggrieved by the same, both the plaintiffs filed Appeal Suit viz.,
                   A.S.No.32 of 2015 before the II Additional District Judge, Adoni,
                   which was dismissed by judgment and decree, dated 21-01-2022.
                   Aggrieved by the same, the present Second Appeal is filed.

                    In view of the above facts and circumstances and in view of the
                   following substantial questions of law,

                      1. Whether the courts below are justified in dismissing the suit
                           for partition among sharers, when the alleged Will was
                           executed beyond 1/3 of the total property under the Will, as
                           Mohammadan should not bequeath more than one third of his
                           net estate, it is called the "bequeathable third", when the Will
                           fails if these restrictions are not followed, the Will is invalid as
                           the Will is opposed to Islam, as such the courts below should
                           have held the alleged Will is against to the provisions of
                           Mohammedan Law?

                      2. Whether the Cortes below have correctly dealt Sections 39
                           and 40 of Mulla Mohammedan Law, as its specifically says
                           that no Muslim can bequeath beyond 1/3 of property, if
                           beyond 1/3 of property, the consent of all legal heirs have to
                           be obtained, but in the case on hand there is no such consent
                           and they never accepted to execute Will for the entire Plaint
                           Schedule    Property   in   favour   of   the   1st   respondent/1st

defendant? AND

3. Whether the courts below are justified in believing Ex.B-1 Will, though it is registered, but was held by Hon'ble Supreme Court in the judgment reported in AIR 1972 SC 249 mere registration of Will does not dispense with the proof of execution and attestation of the Will in accordance Section 68 of Evidence Act, that the Profounder would be called upon to show by satisfactory evidence that the Will was signed by the testator and he was in a sound and disposing state of mind, Sl. OFFICE NOTE

No.

DATE ORDER apart from that he would understood the nature and effect of the disposition, when there is surrounded by suspicious circumstances, it is duty to remove those suspicious circumstances on the part of the profounder and he has to prove it beyond all reasonable doubts, whereas in the case on hand, there are several infirmities in proving the Will and 1st respondent/1st Defendant failed to remove those suspicious circumstances?

ADMIT the Second Appeal.

_________________ K.SURESH REDDY,J

TSNR