Delhi High Court
Mohd. Iqbal & Ors vs Mst. Najma & Ors on 14 December, 2012
Author: Manmohan Singh
* HIGH COURT OF DEL1HI: NEW DELHI
% Judgment Pronounced on: December 14, 2012
+ CS (OS) No.572/1990
MOHD.IQBAL & ORS ..... Plaintiffs
Through Mr. Aly Mirza, Adv. with Mr. Niloy Das
Gupta, Adv.
Versus
MST.NAJMA & ORS ..... Defendants
Through Mr. S.D.Ansari, Adv. with Mr. I.Ahmed,
Adv.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The present suit has been filed by four plaintiffs seeking
following reliefs:
"(a) A declaratory decree be passed in favour of the
plaintiffs against the defendants to the effect that the
plaintiffs and defendants No.4 & 5 being the only legal
heirs of the late Mohd.Ahmed are entitled to this estate;
(b) In the alternative, in case it is held by the Hon‟ble
Court that the defendants No.1 to 3 are also the legal heirs
of the late Mohd.Ahmed, then a declaratory decree be
passed to the effect that the plaintiffs and the defendants
being the legal heirs of Mohd.Ahmed deceased are entitled
to succeed to his estate in the shares provided by Muslim
Law as detailed in para 4 of the plaint above;
(c) A preliminary decree for rendition of accounts be
passed in favour of the plaintiffs and against defendant
No.1 in respect of the assets of the deceased
Mohd.Ahmed;
(d) A preliminary decree for partition of the assets and the
immovable properties of Mohd.Ahmed be passed in favour
of the plaintiffs against the defendants whereby the suit
properties are ordered to be partitioned by metes and
bounds or in such other manner as deemed appropriate in
the circumstances of the case and whereby the shares of
the legal heirs of Mohd.Ahmed and that of plaintiff No.2
as co-owner are physically separated.
(e) A decree for `45,000/- be passed in favour of plaintiff
No.2 against defendants No.1 to 3 and 6 or such of them
as may be found liable in respect of his half share of the
rental income in the Wazirpur Industrial area property
after the death of Mohd.Ahmed on 15.1.89;
(f) On a preliminary decree being passed for rendition of
accounts and partition as prayed for, a Local
Commissioner or Officer of the Court be appointed for
obtaining accounts from defendant No.1 and for reporting
to the Court ways and means of effecting physical
partition and separation of the shares of the parties or for
recommending any other suitable mode of effecting the
said partition;
(g) On such report being received, final decrees for
rendition of accounts and partition be passed in favour of
plaintiffs against the defendants;
(h) A decree for permanent prohibitory be passed in favour
of the plaintiffs and against defendant Nos.1 to 3 whereby
they are restrained permanently from disposing of or
wasting the assets of Mohd.Ahmed deceased;
(i) Any other relief deemed fit and property in the
circumstances of the case may also kindly be granted;
(j) Costs of the suit be awarded."
Plaint:
2. It is averred in the plaint that the plaintiffs and defendant Nos.4
& 5 are the sons and daughters of Late Mohd.Ahmed (hereinafter referred to
as the deceased) who died on 15th January, 1989. The wife of the deceased,
Mst.Zubaidan had died on 16th November, 1981. Defendant No.1 claims to
be the second wife of the deceased. Defendants No.2 and 3 are minor
children born out of the said union of defendant No.1 and the deceased.
Defendant No.6 is the tenant/occupant of the property No.A-96/10,
Wazirpur Industrial Area, New Delhi which was owned by the deceased and
plaintiff No.2 each having ½ undivided share in the name of their erstwhile
partnership concern, Labour Printing Press.
2.1 The deceased also had 1/3rd undivided share in the property a)
bearing No.7649, Gali Munshi Abdul Rahim, Quresh Nagar, Sadar Bazar,
Delhi and b) the remaining 2/3rd share being owned by brother of the
deceased namely Mohd. Arif and the legal heirs of another deceased brother
Zafar Ahmed.
2.2 The plaintiffs state that at the time of his death, the deceased had
also left a substantial amount of moveable property including gold
ornaments of his first wife Mst.Zubaidan weighing more than 60 tolas and
other household items worth more than `5 lac. After the death of
Mst.Zubaidan in 1981, their sons and daughters opposed the desire of
Mohd.Ahmed to contract a second marriage as he was not maintaining good
health.
2.3 It is the case of the plaintiffs that Mohd.Ahmed did not formally
contract any such marriage, and no Nikah was performed. The defendant
No.1 was merely retained and employed for household work and it might be
possible that he developed a liaison with her. Due to ill health, at the
instigation of the person connected with the defendant No.1, the deceased
neglected the partnership business altogether and let out the Wazirpur
Industrial Area property to the tenant i.e. defendant No.6 who was paying
rent of `7500/- and the defendant No.1 started realizing rent/charges for
which she was not entitled. The defendant No.6 was called upon not to
make the payment of rent exclusively to the defendant No.1. Therefore, the
suit for rendition of accounts is also filed by the plaintiffs.
2.4 It is alleged by the plaintiffs that on the death of Mohd.Ahmed,
they and defendants No.4 and 5 inherited his estate, both movable and
immovable, in accordance with the Muslim Law of Inheritance. Plaintiffs
No.1 and 2 as sons are entitled to 1/4 th share each in the estate. In case,
however, it is held by the Court that defendant No.1 was the lawfully
wedded wife of deceased Mohd.Ahmed and defendants No.2 and 3 are their
children, then the entire estate of Mohd.Ahmed would devolve in the
following manner:
i. Defendant No.1 (widow) - 1/8th share.
ii. Plaintiff No.1 - 14/88 share.
iii. Plaintiff No.2 - 14/88 share.
iv. Defendant No.3 - 14/88 share.
v. Plaintiff No.3 - 7/88 share.
vi. Plaintiff No.4 - 7/88 share.
vii. Defendant No.2 - 7/88 share.
viii. Defendant No.4 - 7/88 share.
ix. Defendant No.5 - 7/88 share.
2.5 It is stated in the plaint that as defendant No.1 threatened to sell
and part with the possession of the two properties, plaintiffs No.1 and 2 filed
a suit for injunction being Suit No.125 of 1989 titled as Mohd. Iqbal and
another (who are plaintiff No.1 and 2 in present case) vs. Mst. Najma and 4
others, in the Court of Mrs. Urmila Rani, Senior Sub-Judge Ist Class at
Delhi. The said suit was withdrawn by plaintiffs No.1 and 2 with
permission to file a fresh suit on the same cause of action by order dated
21st November, 1989 on certain terms and conditions. It is alleged that
in the said suit defendant No.1 for the first time came out with the plea that
she was the lawfully wedded wife of Late Mohd.Ahmed „the deceased‟ and
defendants No.2 and 3 are their children. Late Mohd.Ahmed had executed
his last Will and testament either in her favour or in favour of their children
and by virtue of the said Will, his entire estate including the entire Wazirpur
Industrial Area property, was bequeathed to her or her children and they
became exclusive owners of deceased‟s estate. She denied the rights of
plaintiff No.2 as co-owner of ½ undivided share in the Wazirpur Industrial
Area property as plaintiff No.2 had relinquished his rights therein which is a
registered document.
2.6 During the course of arguments, learned counsel for the plaintiffs
submitted that the plaintiffs are claiming partition, rendition of accounts,
recovery and injunction etc. in respect of the estate of their father seeking
inter alia the following prayers:
"(A) 1/3rd undivided share in property No.7649, Gali Munshi
Abdul Rahim, Quresh Nagar, Sadar Bazar, Delhi; and
(B) Share as co-lessee in leasehold property No.A-96/10,
Wazirpur Industrial Area, Delhi, admeasuring 457.80 sq. yards
with the Plaintiff No.2 being the other co-lessee."
Written Statement by defendant No.1:
3. The written statement has been filed by the defendant Nos.1 to 3.
It is stated in the written statement that the suit has not been properly valued
for the purposes of Court Fee and jurisdiction. The plaintiffs have no locus
standi to file the present suit as they have nothing to do with the suit
property. Plaint does not disclose any cause of action. The plaintiffs have
not come to the Court with clean hands as the plaintiffs are guilty of
suppressing the material facts and the present suit has been filed by the
plaintiffs with malafide intentions to harass the defendant Nos.1 to 3. In the
written statement, it is specifically stated that defendant No.1 was the legally
wedded wife of the deceased and is now his widow. The defendant Nos.2
and 3 are daughter and son of the deceased from the defendant No.1 who
married the deceased on 20th January, 1982 in accordance with the Muslim
Rites at a Dower of `10000/-. They resided together at 7649, Quresh Nagar,
Delhi.
3.1 The plaintiffs did not join the funeral of the deceased who in his
lifetime had also been receiving beatings at the hands of the plaintiffs. The
deceased also lodged various complaints with the local Police Station in this
regard. It was admitted by defendant Nos.1 to 3 that the deceased had 1/3rd
share in the property No.7649, Gali Munshi Abdul Rahim, Quresh Nagar,
Delhi. However, as regard property No.A-96/10, Wazirpur Industrial Area,
Delhi, it was denied that the plaintiff No.2 was the co-owner of the suit
property or the plaintiff No.2 obtained lease of said property along with the
deceased or they both constructed the property.
3.2 As per the defendants, the deceased was the exclusive owner of
the said property as some disputes and differences arose between them, the
said partnership had been dissolved and the matter was referred to the
arbitration of Haji Riazuddin, Mohd. Akhlaq and Zafar Ahmed on 20th
January, 1983 who had announced their award on 21st January, 1983
whereby premises No.7122/XIV situated at Ghas Mandi, Pahari Dhiraj
Delhi, had been given to the plaintiff No.2 and in turn, the plaintiff No.2 had
surrendered all his rights, title and interest in the plot No.96/10, situated in
Wazirpur Industrial Area, Delhi, measuring 460 sq. yards, along with the
property No.7649, Quresh Nagar, Gali Darogawali, Delhi, which came to
the share of the deceased. The said award was acted upon by the parties and
became final.
3.3 The plaintiff No.2 relinquished his rights in respect of plot
No.96/10 by means of a relinquishment deed dated 19th April, 1983 which
was duly registered in the office of the Sub-Registrar, Delhi. Thus, the
plaintiffs are estopped from raising any claims in the estate of the deceased.
It is the deceased who had invested from his own income and jewellery of
defendant No.1 and raised the construction over the said property in
Wazirpur Industrial Area, Delhi. The deceased had been in possession of
the said property and he was receiving the rental income of the portions of
the said property which had been let to the defendant No.6.
3.4 It was denied that he left any gold ornaments belonging to
Mst.Zubaidan as alleged in the plaint. Therefore, the question of inheritance
of the estate of the deceased by the plaintiffs or any of the children of the
deceased does not arise as he was the absolute owner of the said property
and was rightly competent to deal with or dispose of the said property. By
virtue of Will dated 10th February, 1987, duly registered before the Sub-
Registrar, Delhi, he bequeathed all his estate in favour of defendant No.1
excluding the plaintiffs and other children from his first wife as he had
provided substantially in his life time to his children.
3.5 Since he had not paid Mehar to the defendant No.1, he also
provided for the same by way of handing over all the estate and assets by
giving and gifting the same in lieu of Mehar to the defendant No.1 during
his life time. Not only that, he had also executed a general power of
attorney in favour of defendant No.1, giving her all the rights to manage and
control the affairs of the entire holding of the deceased and the defendant
No.1 had been rightly acting even earlier on behalf of the deceased even
during his life time and subsequently after his death.
3.6 It is alleged in the written statement that he was hale and hearty
at the time of second marriage. His death was caused due to bad behaviour
of the plaintiffs towards him. It is denied by defendant No.1 that no Nikah
was performed. She is the lawfully wedded wife of the deceased and they
were married on 20th January, 1982 in accordance with the Muslim rites.
Issues:
4. From the pleadings, the following issues were farmed by this
Court on 21st February, 2005:
"1. Whether the suit is not properly valued for purposes of
Court fee and jurisdiction? OPD
2. Whether defendant No.1 is not the legally lawfully wedded
wife of Mohd.Ahmed and defendants No.2 and 3 are not
born out of any such wedlock? OPP
3. Whether the plaintiffs No.1 and 2 had executed
Relinquishment Deed dated 19.04.1983 in favour of
Mohd.Ahmed and if so, to what effect? OPD
4. Whether the suit property was left behind by late
Mohd.Ahmed? OPP
5. Whether defendant No.1 is liable to render accounts of the
income of the estate of Mohd.Ahmed? OPP
6. Whether disputes between the parties were referred to a
Panch/Arbitrator for adjudication. If so, whether the
decision rendered by the Panch/Arbitrator is binding upon
the parties?
7. To what reliefs are the parties entitled to?"
5. The plaintiffs examined five witnesses PW-1 Musarrat Hussain,
PW-2 Mohd. Akhlaq, PW-3 Mohd. Iqbal, PW-4 Naresh Kumar Parasar and
PW-5 Raj Kumar. The plaintiffs have also filed the affidavits in evidence of
PW-1 which is exhibited as Ex.PW-1/A, affidavit of PW-2 is exhibited
as Ex.PW-2/A and affidavit of PW-3 is exhibited as Ex.PW-3/A. The
defendant No.1 has examined one witness namely Mohd. Saeed, DW-1 who
is the power of attorney holder of defendant No.1. His affidavit is exhibited
as Ex.DW-1/A.
6. The plaintiffs have not filed any original document. However,
the defendants have filed the documents from time to time i.e. on 24 th
October, 1990, 23rd April, 1991, 5th May, 2005, 28th April, 2006 and 13th
July, 2006. The plaintiffs have admitted certain documents at the time of
admission/denial of the documents as well as at the stage of evidence. The
details of the exhibited documents are given as under:
1. Ex.PW-1/D-3 (Certified copy of the relinquishment deed
dated 19th April, 1983).
2. Ex.PW2/D-2 (Agreement for appointment of arbitrators dated
20th January, 1983).
3. Ex.PW-2/D-1 (Arbitration Award dated 21st January, 1983).
4. Ex.DW-1/7 (Iqrarnama Babat Adaigi Meher dated 25th May,
1988).
5. Ex.DW-1/6 (General Power of Attorney executed by deceased
in favour of defendant No.1 dated 6th June, 1988).
6. Ex.DW-2/D4 (hand-written Will by the deceased dated 25 th
April, 1984).
7. Ex.DW-2/DA (certified copy of the registered Will of
deceased dated 10th February, 1987).
8. Ex.PW-2/D2 (Photograph of the deceased).
9. Ex.DW-1/2/Mark A/Ex.DW-1/D1 (Nikahnama).
10.Ex.DW-1/9/Ex.PW-2/D1/Mark B (Invitation Card of
marriage)
11.Ex.DW-1/10/Ex.PW-2/D1/Mark C (Copy of order passed by
Urmila Rani, Sub-Judge dated 21st November, 1989).
12.Ex.DW-1/11/Ex.D-1/Mark D (Ration Card).
13.Mark E (Copy of the complaint recorded as DD No.16A dated
29th April, 1982)
7. DW-1 in his affidavit exhibited the documents i.e. Ex.DW-1/2
(Nikahnama), Ex.DW-1/9 (Invitation Card), Ex.DW-1/10 (Copy of the order
passed by Urmila Rani, Sub-Judge on 21.11.1989), Ex.DW-1/11 (Ration
Card) & Ex.DW-1/12 (Complaint recorded as DD No.16A dated 29th April,
1982) which were de-exhibited and were marked as Mark A to E
respectively. The document i.e. DW-1/2 (Nikahnama) was re-exhibited as
Ex.DW-1/D1 in cross-examination. It has been noticed from the orders
passed by the Joint Registrar as well as pleadings of the parties that various
documents have been exhibited twice. Some documents are exhibited
before the Joint Registrar. It was pointed out to the learned counsel for the
defendant Nos.1 to 3. However, the same was not clarified by him. He was
also seeking time to file the written submissions, the same was also filed.
Therefore, it took time to pronounce the judgment in the matter for awaiting
about the clarification on documents and written-submissions.
ISSUE NO.1:
8. Burden to prove this issue was upon defendants No.1 to 3. No
evidence has been led by the defendants on this issue. Although it was
stated in the written statement that the plaintiffs were not in possession of
either of the suit properties and the plaintiffs had to pay ad-valorem Court
Fee for seeking partition and possession. Learned counsel for the plaintiffs
has referred to two decisions i.e. Chief Inspector of Stamps v. Indu Prabha
Vachaspati, (1998) 9 SCC 157 and Dr.Durga Parmar & Ors. v. V.K. Verma
& Ors., 112 (2004) DLT 793, wherein it was held that if a property is in
possession of a tenant, then it is enough to conclude that the members of the
family are in joint constructive possession. It is argued by the plaintiffs‟
counsel that there is specific statement made in the plaint, as no evidence is
led, the plaintiffs undertake to pay the ad-valorem Court Fee if, ultimately
decree is passed in favour of the plaintiffs.
The undertaking given by the plaintiffs‟ counsel is accepted. If
situation arises, necessary orders in law for paying the ad-valorem Court Fee
would be passed.
ISSUE NO.2:
9. The burden of proving the said issue has been put on the
plaintiffs. The plaintiffs No.1 and 2 who appeared as PW-2 and PW-3 in
their testimony deposed that after the death of Mst.Zubaidan in 1981, the
children of the deceased opposed his desire to contract a second marriage as
he was not maintaining the good health. The deceased did not formally
contract any such marriage and always represented to his relations that no
Nikah was performed. The defendant No.1 was only retained and employed
for household work and it might be possible that he developed a liaison with
her. However, it is not denied by them that defendants No.2 & 3 are the
children of late Mohd.Ahmed with defendant No.1. It is argued by the
learned counsel for the plaintiffs that as the defendant No.1 herself did not
enter into the witness box to identify her Nikahnama which was sought to be
proved by the attorney of the defendant No.1, the same has no evidence
value in the eyes of law. Even original Nikahnama was not produced and
the same has also not been proved in secondary evidence. The age
mentioned in the affidavit of DW-1 and appearing in the Nikahnama is
inconsistent. The dower mentioned in the Nikahnama of `10,000/- was to
be paid at the time of Nikah. The execution of an Iqrarnama by the
deceased subsequently in lieu of Mehar thereby gifting his properties to the
defendant No.1 is contrary to the law. Thus, the plaintiffs have discharged
their burden on issue No.2.
DW-1 deposed that defendant No.1 is his real sister, the
defendants No.2 and 3 are his Bhanji and Bhanja. Mst. Nazma, defendant
No.1 and the deceased were married on 20th January, 1982 in accordance
with Muslim rites and custom at a dower of `10,000/-. He is the attorney of
defendant No.1. He has also identified his signatures. The power of
attorney is marked as Ex.DW-1/1. He deposed that the Nikahnama was
executed as per Muslim Law and the customs and the same is exhibited as
Ex.DW-1/D1 in his cross-examination. Certified copy of the will
Ex.PW-2/DA and original Iqrarnama, Ex.DW-1/7 are perused wherein it is
mentioned that late Mohd.Ahmed has married twice. Similarly, in the
Iqrarnama Ex.DW-1/7, a specific statement has been made by the deceased
that defendant No.1 is his second wife and he had to pay `10,000/- as Mehar
to her. Burden to prove issue No.2 is upon the plaintiffs. The plaintiffs in
their testimony have not challenged the signatures of the deceased. There
were three witnesses to the marriage. Not a single witness was summoned
by the plaintiffs to prove that the marriage was not solemnized or she is not
wife of the deceased. It is also not proved by the plaintiffs that the copy of
Nikahnama filed by the defendants is forged and fabricated, rather PW-2
and PW-3 who are the sons of the deceased in their statements have stated
that they started living separately when their father brought defendant No.1,
as earlier they were living together. In their testimonies, it was also stated
that they opposed the marriage of their father with defendant No.1. In the
cross-examination of DW-1, the copy of Nikahnama was exhibited as
Ex.DW-1/D1. The defendant No.1 also produced copy of the ration card
(Mark D) of the deceased in which the name of defendant No.1 is mentioned
as his wife. DW-1 deposed that the Nikah was performed in his presence.
He was not crossed on this aspect. Therefore, it is proved beyond any doubt
that the defendant No.1 is the lawfully wedded wife of the deceased. As far
as defendants No.2 and 3 are concerned, the plaintiffs have not denied the
fact that they are born from the deceased and defendant No.1. The plaintiffs
were not able to demolish the statement of DW-1 in his cross-examination
who had also stated that the rishta of marriage came through one Sh.Badru.
In the cross-examination, DW-1 has stated that defendant No.1 is
suffering from various ailments and thus unable to move without any
support, hence, she executed the Power of Attorney in his favour to depose
on her behalf. He admitted that she is about 62-63 years old. The
Nikahnama contains the Mehar which was fixed at `10,000/-. Mehar was
not paid at the time of Nikah. Plot No.A-96/10, Wazirpur Industrial Area in
lieu of Mehar was transferred in the name of defendant No.1. Plaintiffs
under these circumstances have failed to prove their burden on issue No.2,
hence, the same is decided in favour of defendants No.1 to 3 and against the
plaintiffs.
ISSUES NO.3, 4 & 6:
10. Issues No.3, 4 & 6 are inter-linked with each other, therefore,
these issues are being decided together. The plaintiffs examined five
witnesses, namely, PW-1 Musarrat Hussain, PW-2 Mohd. Akhlaq, PW-3
Mohd. Iqbal, PW-4 Naresh Kumar Parasar and PW-5 Raj Kumar. As
regards the testimonies of PW-1 to PW-3, they almost reiterated the
statements made in the plaint.
Evidence of the Plaintiffs:
11. PW-1 Mussarat Hussain who is the brother-in-law of plaintiffs
No.1 & 2 and son-in-law of the deceased has tendered his examination-in-
chief by way of his affidavit dated 26th July, 2005 who is not a party to the
suit. He has stated that it is not correct that plaintiff No.2 had given up his
right by way of relinquishment deed dated 19 th April, 1983 Ex.PW-1/3. It is
denied by him that the deceased Mohd.Ahmed became owner of the entire
property. He also deposed that after the death of the deceased the suit
property is inherited by all his legal heirs and the same is to be divided
between them by virtue of law of inheritance. Rest of his statement is
almost similar to the statement made in the plaint.
In his cross-examination, he stated that at the time of the death of
Zubaidan Begum, the plaintiffs were about 25-30 years of age. The
plaintiffs No.3 & 4 were married and residing separately in their own
houses. Plaintiff No.1 was in service at that time and plaintiff No.2 was
assisting his father in his business. He admitted that defendant No.1 started
residing with the deceased after the demise of his first wife Smt. Zubaidan
Begum and both were residing in the property No.7649, Quresh Nagar,
Sadar Bazar, Delhi. Plaintiffs No.1 & 2 were also residing with them. They
started living separately when their father brought defendant No.1. He
admitted that a dispute between the plaintiffs and the deceased arose and
thereafter the matter was referred to the Biradari people and was settled by
the said Biradari. However, it was denied by him that in consequence
thereto, the Printing Press came to the share of the plaintiffs besides other
things. He was not aware when the construction work of the said Wazirpur
plot was carried out and when the tenants were inducted thereon. He denied
that after the settlement, late Mohd.Ahmed became the absolute owner of
the plot of Wazirpur Industrial Area.
12. PW-2 Mohd. Akhlaq Qureshi is plaintiff No.2 who tendered his
examination-in-chief by way of affidavit dated 26th July, 2005. It was stated
by him that the plot of land of property No.A-96/10, Wazipur Industrial
Area, Delhi was obtained on leasehold basis from the DDA by his father
Mohd.Ahmed and himself as allottees. Plaintiff No.1 has nothing to do with
the allotment of the leased plot. Plaintiff No.1 was also not a partner in the
firm Labour Printing Press. The construction was made by both i.e. by him
and his father. It is denied by him that he had given up his rights in the
allotted property. He further stated that no follow up action was taken with
DDA as was compulsory in respect of joint allotment and thus, at the time of
the death of the deceased in 1989 the leasehold rights in the property
subsisted in the names of both the said parties i.e. himself and his father.
And in any case, if the allegations of defendants No.1 to 3 are taken as
correct, his inheritance as a legal heir on the death of Mohd.Ahmed cannot
be taken away under the Muslim law of inheritance in which all the legal
heirs of the deceased are entitled to their shares. He states that part of
property No.A-96/10, Wazirpur Industrial Area, Delhi is in the
tenancy/occupation of defendant No.6 for which he was paying `7500/- per
month and not `4500/- as alleged by defendant No.1. She is now realizing
more than `20,000/- per month from the tenant apart from retaining portion
of the property. Thus, she is liable to render the accounts.
In cross-examination, he again reiterated that plaintiff No.1 has
nothing to do with the plot No.A-96/10, Wazirpur Industrial Area, Delhi.
The said plot was in the name of Labour Printing Press and he and his father
were equal partners in the said business. He admitted that the disputes in
respect of the suit properties were discussed before his uncle namely Late
Sh. Zafar Ahmad. He did not remember as to whether Mr. Riaz Uddin as
well as Mohd. Aklakh were present at that time or not. However, he
admitted his signatures at points A & B on the Award dated 21 st January,
1983 (Ex.PW-2/D-1). He has admitted his signatures at points A, B & C on
the certified copy of the document Ex.PW-1/D-3 i.e. the registered
relinquishment deed dated 19th April, 1983. He submitted that he cannot
identify the signatures of his father on the agreement for appointment of
Arbitrators (Ex.PW-2/D-2). It was admitted by him that in order to resolve
the dispute between him and his father, his uncle had got prepared all these
documents with the understanding that the same would be kept in his
custody. He has also been seeking the writing of his father on Ex.PW-2/D-4
as well as the signatures of his father on the Will dated 25 th April, 1984 at
Mark A with the handwriting of the deceased. With regard to the
subsequent Will, he did not admit the signatures at points A, B & C on the
certified copy of the registered Will dated 10 th February, 1987, he stated that
the same does not look like the signatures of his father. He was shown the
complaints made by his father vide DD No.16A dated 29th April, 1982
(Mark E), he pleaded his ignorance if any police complaint was made by his
father against the plaintiffs, which contained allegations that his father was
beaten up by plaintiffs No.1 & 2. He was also not sure about any complaint
made against him by defendant No.1. He was shown the invitation card
Ex.PW-2/D-1 of his marriage which was solemnized on 15 th July, 1987 in
which the name of his father was not printed, he stated that it was got
printed by his uncle, therefore, he cannot make any comment. He admitted
that his uncle‟s name is mentioned in the invitation card. He admitted that
his father did not participate in his marriage nor has he invited his father in
the same, as it was the duty of his uncle and his family to invite him. He
was not sure as to whether any invitation card of his marriage was given to
his father.
In the cross-examination recorded on 21st May, 2008, he stated
that he had no knowledge who had intimated about the death of his father to
the MCD and who made the payments to the caretakers of the kabristan for
burial expenses of his father. He identified the photograph shown to him
which is Ex.PW-2/D-2. He denied that the photograph of his father is of the
same day on which his marriage had taken place. He admitted that he had
not seen his father after that day. He also admitted in the cross-examination
that Mohd. Sayeed (DW-1) belongs to the same Biradari and is the brother
of defendant No.1 and two children i.e. one daughter and one son were born
from his father and defendant No.1. He admitted that after the settlement,
the premises along with the machineries situated in 7122, Gali Telian,
Pahari Dheeraj, Delhi-110006 came in his share and he started running
business in the said premises. According to him, it was only a temporary
settlement and the said premises is still in his possession. He did not
remember the name of the Architect, who constructed the Printing Press
premises at Wazirpur plot which was started in 1977-78, nor he remembered
the address of the Architect. Similar is the position about his rough location
where he used reside or had his office. Similar is also the position of the
Civil Engineer. He also did not remember as to which documents were
annexed to the application for sanction of building construction plan. He
also did not remember the name of the Contractor. He stated that he had no
knowledge about the fact as to how much area was got constructed from
which of the Contractors as well as about the total covered area. He was
also not aware of how much payment was made by his father and who got it
constructed subsequently. He admitted that he had not filed income tax
return in the Court and cannot produce the same or any document in Court
to show that any money was spent towards the construction of the factory.
He did not know after how much time of making construction, the said
premises was let out. He admitted that after the death of his father,
defendant No.1 was taking the rent. He admitted that the parties entered
into an agreement delegating powers to Panchayat to resolve the disputes.
However, he answered that it was family panchayat and it was just to avoid
conflict and a temporary truce was made. He also admitted that the family
panchayat had given decision which is Ex.PW-2/D-1 which bears his
signatures. He also admitted the signatures of his father on the document
Ex.PW-2/D-1. He also admitted the execution of the relinquishment deed
Ex.PW-1/D-3 which bears his signatures. He also identified the signatures
of his father at points B & C on mark B which is now marked as Ex.PW-
2/DA i.e. Will dated 10th February, 1987. He admitted that initially, the
Labour Printing Press was the proprietary concern in which his father was
the sole proprietor who has also obtained the MCD licence (Ex.PW-2/DB)
of the suit property. Later on, his father made him a 50% partner in the firm
and thereafter, the said licence was issued in the name of the firm. He
admitted that when the premises was let out, his father was receiving the rent
and after his death, defendant No.1 started collecting the rent from the tenant.
13. PW-3 Mohd. Iqbal who is plaintiff No.1 in the suit filed his
affidavit dated 26th July, 2005 in his examination-in-chief. The statement
made in the affidavit is almost the same as made by PW-1 and PW-2 as well
as in the plaint. In the cross-examination, he also admitted that defendant
No.1 belongs to their Biradari and they are residing in the same locality. He
was unaware whether his father had married defendant No.1 or not, as the
marriage did not take place in his presence. However, it was admitted by
him that he opposed when his father brought defendant No.1 home. He
identified the signatures of his father on Ex.PW-2/D-1, Ex.PW-2/D-2,
Ex.PW-1/D-3 as well as on Ex.PW-1/D-4. In the cross-examination, he
admitted that he had no documentary evidence to show that his mother had
60 tolas of jewellery and valuable items worth `5 lacs. He also admitted
that the Printing Press located at Kasabpura is in the custody of his brother
Mohd. Akhlak, plaintiff No.2. Municipal number of the said Printing Press
is 7122, Ghass Mandi, Pahari Dheeraj, Delhi and both himself and plaintiff
No.2 were living jointly since 1983 when they separated from their father.
14. PW-4 Naresh Kumar Parasar was examined in Court on 13th
January, 2010 who had brought the summoned record i.e. relinquishment
deed dated 19th April, 1983. The said document was duly registered with
the Sub Registrar, Delhi. It was confirmed by him that the said certified
copy was issued by their office, which is already exhibited as Ex.PW-1/D-3.
15. PW-5 Raj Kumar s/o Sh. Brahma Das, UDC from DDA,
Industrial Branch, Delhi was examined in Court on 13 th January, 2010. He
had also brought the summoned record pertaining to plot No.96/10, Block
A, Wazirpur Industrial Area, Delhi. It was stated by him that the said plot
was allotted for a perpetual lease deed dated 11 th April, 1977 to M/s Labour
Printing Press, R/o 7649, Street Munshi Abdul Rehman, Quresh Nagar,
Sadar Bazar, Delhi. He has compared the photocopy from the Court record
which is the same as the office copy available. It was a registered perpetual
lease deed which is marked as Ex.PW-5/1. As per the DDA record, the
property is not mutated till date. However, on 27th February, 2001
defendant No.1 applied for mutation but the same is not mutated. In the
cross-examination, he admitted that as per the office note dated 28 th May,
1997 the mutation in the name of Smt. Najma Begam had been kept pending
till the decision of the suit. He also stated that it is correct that certified
copy of the perpetual lease deed which was registered before the Sub
Registrar, Delhi is not on the record, brought by him on that day.
Evidence of Defendant No.1:
16. Defendant No.1 examined only one witness i.e. Mohd. Saeed
who appeared as DW-1 and tendered on record his affidavit dated 9 th July,
2010 in examination-in-chief and the same is exhibited as Ex.DW-1/A. He
is the brother of defendant No.1 and is the constituted attorney of defendant
No.1. The deed of power of attorney dated 29 th June, 2010 executed by
defendant No.1 in his favour and duly attested by the Notary Public is on
record and the same is exhibited as Ex.DW-1/1. He confirmed in his
testimony that his sister Smt. Najma was married to the deceased according
to Muslim rites and customs. Nikahnama was executed as per the Muslim
law and custom and the same is exhibited as Ex.DW-1/D1/Mark A/Ex.DW-
1/2. She is the lawful wedded wife of the deceased. They married on 20th
January, 1982 at a dower of `10,000/- and they were residing together at
7649, Quresh Nagar, Delhi.
He further stated that the deceased was the exclusive owner of
the property at Wazirpur Industrial Area. Most of the averments made in the
affidavit are similar as made in the written statement. He admitted certain
documents i.e. the award passed by the Arbitrator as Ex.PW-2/D-1, the
Relinquishment Deed dated 19th April, 1983 executed by the plaintiffs in
respect of the property at Wazirpur Industrial Area which was duly
registered in the office of Sub Registrar, Delhi, as Ex.PW-1/D-3, the Will
dated 10th February, 1987 executed by the deceased as Ex.DW-2/DA, the
General Power of Attorney executed by the deceased in favour of defendant
No.1 as Ex.DW-1/6, the agreement for Mehar executed by the deceased
exhibited as Ex.DW-1/7, the reference of dispute to the Arbitrator by an
agreement exhibited as Ex.PW-2/D-2, the invitation card of the marriage of
plaintiff No.2 exhibited as Ex.DW-1/9/Ex.PW-2/D1/Mark B, the order dated
21st November, 1989 passed by a Sub Judge, Delhi in a suit filed by the
plaintiffs No.1 & 2 for injunction, Mark C, copy of the ration card in order
to show that the deceased and defendant No.1 were residing as husband and
wife, Mark D, and the copy of the complaint duly recorded by the police as
DD No.16A dated 29th April, 1982, Mark E. It is stated by him that late
Mohd.Ahmed was the absolute owner of the Wazirpur property and he had
duly executed a Will dated 10th February, 1987 which was duly registered
before the Sub Registrar, Delhi bequeathing all his estate in favour of
defendant No.1 excluding and debarring the other children from his first
wife and their inheritance from his estate, as he had already provided
substantial to them. He further stated that after the date of relinquishment
deed Ex.PW-1/D-3, award and the follow up actions, the deceased had
disposed of the properties and jewellery of defendant No.1 and had raised
the construction over the property in Wazirpur Industrial Area, Delhi. The
deceased was in possession of the said property and had also been receiving
the rental income of portions of the said property which had been let out to
other parties i.e. defendant No.6. The main cause of the death of the
deceased was the bad behavior of the plaintiffs otherwise he was hale and
hearty. He further stated that the plaintiffs had assaulted his sister i.e.
defendant No.1 as well as their father on various occasions.
Plot No.96/10, Wazirpur Industrial Area, Delhi
17. It is the admitted case of parties that there were differences and
disputes arose between the deceased and plaintiff No.2 Mohd. Akhlaq, due
to which the partnership was dissolved and the matter was referred to the
arbitration of Haji Riazuddin son of Sh. Mohd. Yusuf, Ikhlaq son of Mohd.
Yusuf and Zafar Ahmad son of Hafiz Mohd. Ibrahim vide agreement for
appointment of arbitrators (Ex.PW-2/D2) dated 20th January, 1983 who
pronounced their award (Ex.PW-2/D1) whereby premises No.7122/XIV
situated at Ghas Mandi, Pahari Dhiraj Delhi, had been given to the plaintiff
No.2 and in turn, the plaintiff No.2 had surrendered all his rights, title and
interest in the plot No.96/10, situated in Wazirpur Industrial Area, Delhi,
measuring 460 sq. yards, along with the property No.7649, Quresh Nagar,
Gali Darogawali, Delhi, which came to the share of the deceased. The said
award was acted upon by the parties and became final. The plaintiff No.2 is
admittedly in possession of the said property. The said fact is also
confirmed by plaintiff No.1 in his testimony. The Award was also not
challenged by any of the plaintiffs. The plaintiff No.2 in lieu of the said
settlement relinquished his rights in respect of plot No.96/10 by means of
relinquishment deed dated 19th April, 1983 Ex.PW-1/D-3 which was duly
registered in the office of the Sub-Registrar, Delhi.
18. Extracts of the Award dated 19th January, 1983 (Ex.PW-2/D-1)
read as under:-
"We, Haji Riazuddin son of Shri Mohd. Yusuf,
resident of 6375/13, Gali Ishwar Parshad, Bara Hindu Rao,
Delhi, Mohd. Ikhlaq son of Mohd. Yusuf, resident of
3580, Gali Thelewali, Bara Hindu Rao, Delhi, Zafar
Ahmad s/o Hafiz Mohd. Ibrahim, r/o 7649/14 Gali Daroge
Wali, Qasabpura, Delh, (Panchs) (Arbitrators) aforesaid.
S/Shri Mohd. Ahmad s/o Hafiz Mohd. Ibrahim Party No.1,
Ikhlaq Ahmad s/o Shri Mohd. Ahmad, party No.2,
residents of 7649/14, Gali Daroga Wali, Delhi, vide their
agreement of appointment of arbitrator, dated 20 January,
1983, we are appointed as Arbitrator.
Whereas we the Arbitrators (Panchs) have been
appointed to resolve the dispute of Labour Printing Press,
7122/14, Mandi Ghas, Pahari Dhiraj. We have
heard/taken the statement of both the parties and we
announced/give our decision in the presence of both the
parties, and the same has been explained to them and
both the parties in their sound disposing mind have
understood the same admit the same to be correct of their
own accord, and have accepted the Award and have put
their signatures in token of its correctness on the Award.
The Award is as under:
1. That the entire plot No.96/10, measuring 460 sq. yards,
situated at Wazirpur Industrial Area, Delhi, alongwith
goodwill of Labour Printing press and a Lathe machine,
telephone No.518234 and a sum of Rs.15000/- in cash
have been given to the party No.1, and the remaining
entire printing press alongwith business place
No.7122/14, as his share, according to Muslim Law, has
been given to party No.2 and Iqbal Ahmad, and till today,
the debt and assets of the Firm, and liabilities of the
Market and Authorities, Income tax etc. and the amount
due to Chit Fund Company of Rs.6200/- shall be payable
by the second party. Hereafter, the second party and
Iqbal Ahmad will not have any concern or claim to entire
property of the first party, i.e. moveable and immovable.
Therefore, these terms of decision have been
subscribed, so that it may become the proof and may be
used in the time of need. This Deed has been ascribed on
21.Jan., 1983 (Friday) in the hand-writing of Shri Hem
Chander Saxena-Deed Writer No.35, License No.5.
Shri Ikhlaq Ahmad party No.2 Sd/- in English
Mohd. Ahmad party No.1 Sd/- in English
Sh. Iqbal Ahmad Sd/- in English
Haji Riazuddin Mukir Sehikh Haji Riazuddin Thumb
Impression
Mohd. Ikhlaq Arbitrator Sd/- in English
Mohd. Ikhlaq 21.1.83 Thumb mark.
Shri Zafar Ahmad Arbitrator Sd/- in Urdu, and thumb
impression."
19. PW-2 Mohd. Akhlaq, plaintiff No.2 who tendered his
examination-in-chief by way of affidavit dated 26th July, 2005 had in his
testimony stated that plaintiff No.1 has nothing to do with the allotment of
the leased plot as he was not a partner in the firm M/s Labour Printing Press.
The plaintiffs, on the other hand, have stated alternatively that in case, it is
held that the defendant No.1 was the lawfully wedded wife of late Mohd.
Ahmed and defendants No.2 & 3 are their children, the estate of the
deceased would devolve in all the legal heirs in accordance with the Muslim
Law of Inheritance. The plaintiffs No.1, 3 & 4 had not pleaded that they
were at any point of time partners or shareholder of the Wazirpur property.
20. In view of the above, it is proved beyond any doubt that the
plaintiff No.2 had relinquished all his rights and titles pertaining to the said
plot in favour of his father. As regards the construction on the plot, the
plaintiff No.2 totally failed to prove in evidence that he had spent any
amount on construction, as in his cross-examination the defendant No.1 was
able to demolish all his claims. Thus, his claim is rejected and it is held that
after relinquishment, the deceased Mohd. Ahmed became the exclusive and
sole owner of the plot at Wazirpur Industrial Area along with the goodwill
of the firm M/s Labour Printing Press. The plaintiffs had not denied that the
share of the Printing Press along with business place No.7122/XIV came to
the share of plaintiff No.2 and the same is still in his possession. This also
fortified the statement made by the learned counsel for the plaintiffs during
the hearing of the case as the relief of partition pertaining to above
mentioned property which came to the share of plaintiff No.2 was given up.
21. Now, it is to be considered, whether after the death of Late
Mohd. Ahmed, his legal heirs are entitled to inherit his estate pertaining to
the said plot in accordance with the Muslim Law of Inheritance. The said
claim of the plaintiffs and defendant Nos.4 and 5 is denied by defendant
No.1.
22. In order to prove her case, defendant No.1 produced on record
the following documents:-
(a) Original Will dated 25th April, 1984 written by the deceased
in his own handwriting as Ex.DW-2/D4.
(b) Certified copy of the Will dated 10 th February, 1987 as
Ex.DW-2/DA.
(c) Agreement for payment of Mehar dated 25th May, 1988 as
Ex.DW-1/7.
23. Will dated 25th April, 1984 (Ex.PW-2/D4) &
Will dated 10th February, 1987 (Ex.DW-2/DA)
The defendant No.1 had filed the original Will dated 25 th April,
1984 which is proved as Ex.PW-2/D4 signed by the deceased. It is claimed
that it is in the handwriting of the deceased himself.
The defendant No.1 also filed certified copy of second Will dated
10th February, 1987 which is proved as Ex.DW-2/DA which is attested by
two witnesses, namely Sirajuddin and Mohd. Saeed who is the brother of
defendant No.1 and her constituted attorney and deposed as DW-1 on behalf
of defendant No.1. In both the Wills Ex.PW-2/D4 and Ex.DW-2/DA, the
deceased bequeathed all his movable and immovable properties in favour of
his second wife Smt. Nazma Begum, defendant No.1. The details of the
immovable properties are given as Plot No.A-96/10 (460 Sq. Yards) situated
at Wazirpur Industrial Area, Delhi as well as 1/3 rd share of the deceased in
his ancestral land bearing No.7649, Gali Munshi Abdul Rahim, Quresh
Nagar, Sadar Bazar, Delhi. In his last Will Ex.DW-2/DA, he declared that
he married twice; his first wife died leaving behind two sons i.e. plaintiff
No.1 and plaintiff No.2; they have taken their shares from all his movable
and immovable properties and are living separately from him and have no
concern whatsoever. All the four daughters from the first wife are married
and happily living and he did not want to give them anything more from his
remaining movable and immovable properties.
24. Both the Wills are proved by DW-1 in his deposition who also
stated in his evidence that all the children of the deceased from his first wife
had been excluded and debarred from claiming any inheritance from the
estate of the deceased, as when he was alive, he provided for his children
substantially and to the best of his available means and capacities. As the
deceased had not paid any mehar to the defendant No.1, he had provided for
the same by giving assets in lieu of mehar to defendant No.1.
25. Under Muslim Law, bequest in excess of 1/3 rd of estate cannot
take effect unless such bequest is consented to by heirs after the death of
testator. In the present case, as per the last Will the bequest was more than
1/3rd of the estate of the deceased in favour of defendant No.1 with regard to
two properties i.e. Plot No.A-96/10 (460 Sq. Yards) situated at Wazirpur
Industrial Area, Delhi as well as 1/3 rd share of the deceased in his ancestral
land bearing No.7649, Gali Munshi Abdul Rahim, Quresh Nagar, Sadar
Bazar, Delhi.
26. Though after the last Will, the deceased had also executed
agreement for payment of mehar by which in lieu of mehar which was paid
at the time of marriage, the deceased gave the ownership right of the
immovable property i.e. Plot No.A-96/10 (460 Sq. Yards) situated at
Wazirpur Industrial Area, Delhi to his wife i.e. defendant No.1 and also
gave the possession and declared that she would have a right of possession
as owner of the said plot or let out the same to anybody. The said agreement
was also signed by defendant No.1 who accepted her mehar from the
deceased. At the same time, the Will also includes another property i.e. 1/3 rd
share of the deceased in his ancestral land bearing No.7649, Gali Munshi
Abdul Rahim, Quresh Nagar, Sadar Bazar, Delhi debarring the other legal
heirs of the deceased. The Will disposes of more than 1/3 rd of estate after
the payment of funeral expenses and debts and there is no evidence placed
on record that the heirs have consented to such a bequest. Exception to the
law is if the registered Will produced is 30 years old which is a presumption
under Section 90 of the Evidence Act, 1872 absence of heirs, consent of
heirs, husband and wife, as the sole heirs, as it is permitted by custom which
is recognized among Kutchi Memons and Khojab but the custom is excluded
by the Indian Shariat Act, 1937, The West Punjab and N.W.F. (Shariat) Acts
and the Kutchi Memons Act, 1938. A Mohammedan may dispose of his
property by Will even in excess of 1/3 rd where it is permitted by custom.
Even consent has to be given either expressly or impliedly which cannot be
inferred from the conduct of the heirs. In the present case, none of the
conditions as mentioned are applicable. Therefore, the claim of defendant
No.1 under the Will must fail.
27. However, whatever may be her other rights to the properties of
the deceased, she would be entitled for the same. As regards property
bearing No.7649, Gali Munshi Abdul Rahim, Quresh Nagar, Sadar Bazar,
Delhi, the deceased had 1/3rd share in the said property, a decree is
accordingly passed to the effect that the plaintiffs and defendants were the
legal heirs of the deceased Mohd. Ahmed are entitled in the shares provided
by Muslim Law as detailed in para 4 of the plaint.
28. The above mentioned document i.e. agreement for payment of
Mehar dated 25th May, 1988, Ex.DW-1/7, is duly signed by the deceased as
well as defendant No.1 and also witnessed by two witnesses, namely, Sh.
Barkat and Sh. Sirajuddin. The main contents of the said documents read as
under:-
"That we, both parties are husband and wife, and I, first
party have to pay Rs.10,000/- to the second party towards
Mehar which was agreed at the time of marriage. We, both
parties have children, and I, first party, do not know as to
at what time I may due to my sickness, and due to non-
payment of Mehar amount during my life time I can be
held responsible in Heaven, and I, first party wish of my
own, that my entire plot No.96/10, Block „A‟ measuring
457.80 sq. yards situated at Wazirpur Industrial Area,
Delhi, which consists, as stated below, of which I am the
sole owner be given to second party, and I give the said
plot towards mehar to the second party my wife through
this agreement, and I, first party have delivered the
possession and ownership of plot in payment of Mehar to
my wife/second party and made her its absolute owner and
I, first party and my heirs are left with no claim/concern
with the ownership or possession of the aforesaid plot, nor
I shall claim, in future. Now the second party has a right
to possession as owner of the said plot or let out the same
against any rate of rent to anybody and to make
constructional additions alterations as per her desire, and
to mortgage or sell the same; and the second party will
have all rights of ownership, which I was having. It will
be the duty of the second party to maintain herself and her
children from the income of the said plot and she will have
to pass her life in my name and in maintaining the
children. If the second party remarries, then the second
party will not have any right or claim or concern with the
aforesaid plot. I, second party has taken possession of the
above plot in payment of Mehar."
It is the admitted position that in the Nikahnama (Ex.DW-
1/2/Mark A/Ex.DW-1/D1) the amount of Mehar is mentioned as Rs.10,000/-
which was not paid at the time of contract of marriage. Mehar is accepted by
defendant No.1. The plaintiffs did not summon any of the witnesses who
had signed the agreement for payment of Mehar. The argument of the
plaintiffs is that the said document is a forged document as after the alleged
execution of Ex.DW-1/7 the deceased had executed the General Power of
Attorney dated 6th June, 1988 (Ex.DW-1/6) in favour of defendant No.1 for
the purpose of collecting the rent. Counsel submits that if the property in
view of Mehar has already come to defendant No.1, the question of
executing the General Power of Attorney does not arise. Thus, it is not a
genuine document.
29. As regards the dower is concerned, Section 41 of the
Mohammedan Law provides that it is not in every case payable at once nor
is it to be deferred in every case. The law allows the division of dower into
two parts, "Prompt" and "Deferred". Deferred dower payable on the
termination of marriage by death or divorce. The liability to pay deferred
dower binds the husband during his lifetime and his estates after his death.
In case, there is an agreement for payment of dower earlier than dissolution
of marriage by death, such an agreement cannot be given effect to. It is also
settled law that the husband may pay it by transferring property in lieu
thereof under Section 47 of the Mohammedan Law. Dower is also an
actionable claim and it is also heritable. If a Mohammedan widow obtains
possession of the property of her husband lawfully and without any force or
fraud, she or her heirs are entitled to retain possession and there is a
presumption thereto.
30. It is no doubt true that the General Power of Attorney (Ex.DW-
1/6) is of subsequent date to the mehar document (Ex.DW-1/7) and it does
not mention the factum of agreement of mehar. In case, Ex.DW-1/6 is read,
it appears that the document was mainly executed in favour of defendant
No.1 to maintain the property in the Government Department and to realize
the rents from the tenants. In the mehar document, it is clearly mentioned
that he was not feeling fit, probably he had issued the General Power of
Attorney but at the same time, it appears from the defence raised by
defendant No.1 that he was beaten by plaintiffs No.1 & 2 on various
occasions as also appeared from complaint recorded as DD No.16A dated
29th April, 1982 (Mark E) and other statements made by defendant No.1. It
appears to the Court that the deceased did not want to disclose the said fact
of agreement of mehar to plaintiffs No.1 & 2 till his death. Other evidence
i.e. invitation card (DW-1/9/Ex.PW-2/D1/Mark B) also indicates that in the
marriage of plaintiff No.2 the name of the deceased did not appear, the
plaintiffs No.1 & 2 also did not attend any of his last rites and the deposition
of DW-1 who stated that the main cause of the death of Mohd. Ahmed was
due to bad behavior of the plaintiffs who had also assaulted defendant No.1.
Burden to prove issue No.4 was upon the plaintiffs. There were
some apprehensions about the genuineness of Ex.DW-1/7 i.e. agreement for
payment of mehar dated 25th May, 1988 raised by the plaintiffs. At the time
of agreement, he was the sole owner of the property. He had also given the
possession thereto. It is a written document duly attested by two witnesses.
None of the witnesses was summoned by the plaintiffs in order to prove that
it is a forged and fabricated document. The effect of such agreement was to
be given after the death of the deceased, thus after execution of the
agreement in case the General Power of Attorney Ex.DW-1/6 was executed
whereby defendant No.1 was given power to receive the rent from the
tenants or to maintain the property, it could not be declared that the said
agreement for payment of mehar is forged document. It is the admitted
position that the plaintiffs had not examined the handwriting expert to
establish that the agreement is not signed by the deceased and defendant
No.1. There was no suggestion given by the plaintiffs at the time of cross-
examination of DW-1 on this aspect. In the absence of above, it is held that
Ex.DW-1/7 is a valid document and validly executed in favour of defendant
No.1 who accepted the mehar given by her husband by which she became
the exclusive owner of the property at Wazirpur Industrial Area, Delhi.
31. The deceased husband of defendant No.1 had to pay due amount
of Rs.10,000/- towards mehar which was agreed at the time of marriage and
in lieu thereof the deceased by virtue of the agreement for payment of mehar
gave one of his properties i.e. plot at Wazirpur Industrial Area to his second
wife, the defendant No.1 who accepted the same. Therefore, it is held that
the agreement for payment of mehar is a valid document and the defendant
No.1 is the exclusive owner of the property i.e. plot No.96/10, Block A,
Wazirpur Industrial Area, Delhi.
32. In view of the findings arrived by this Court, issue Nos.3, 4 and 6
are decided as under:
(i) The finding of the issue No.3 is that the plaintiff No.2 had
executed the relinquishment deed dated 19th April, 1983 in
favour of late Sh.Mohd. Ahmed (Ex.PW-1/D3) by which
the plaintiff No.2 had surrendered his all rights with regard
to one of the properties i.e. A-96/10, Wazirpur Industrial
Area, Delhi. In view of the said relinquishment, the
deceased Mohd. Ahmed became the sole and exclusive
owner of the said property and the possession of the same
was given by the deceased in favour of defendant No.1 by
means of Ex.DW-1/7 i.e. agreement for payment of Mehar
dated 25.05.1998.
(ii) The finding of Issue No.4 is that the deceased late
Sh.Mohd. Ahmed at the time of his death left behind the
following properties:
"(A) 1/3rd undivided share in property No.7649, Gali
Munshi Abdul Rahim, Quresh Nagar, Sadar Bazar,
Delhi; and
(B) Share as co-lessee in leasehold property No.A-
96/10, Wazirpur Industrial Area, Delhi,
admeasuring 457.80 sq. yards with the Plaintiff
No.2 being the other co-lessee."
(iii) Issue No.6 is decided in favour of the defendant No.1 and
against the plaintiff No.2 in view of the reasons given in
earlier paras of my judgment. The decision rendered by
the arbitrators is binding upon the plaintiff No.2 as the said
decision had been acted upon between the plaintiff No.2
and the deceased Mohd. Ahmed. Even the plaintiff No.1
has admitted that the suit property bearing No.7122/XIV
situated at Ghas Mandi, Pahari Dhiraj Delhi, came into the
share of plaintiff No.2. In view of the arbitration award
and settlement, the plaintiff No.2 had executed the
relinquishment deed Ex.PW-1/D-3. Thus, the issue No.6 is
decided accordingly.
33. With regard to issue No.5, since the finding of property No. A-
96/10, Wazirpur Industrial Area, Delhi, is given in favour of plaintiff No.1,
the question of rendering accounts by the defendant No.1 does not arise.
Therefore, the issue No.5 is decided against the plaintiffs.
34. For the aforesaid reasons, the suit of the plaintiffs is decreed
partly to the extent that a preliminary decree is passed by declaring that
plaintiffs and defendants are legal heirs of the deceased except defendant
No.1 who is wife, and they are entitled to succeed to his property i.e. 1/3rd
share in the property bearing No.7649, Gali Munshi Abdul Rahim, Quresh
Nagar, Sadar Bazar, Delhi in the shares provided by Muslim Law as detailed
in para 4 of the plaint. The defendant No.1 who is in possession is
restrained from creating third party interest or transferring possession of any
portion of the suit property to any third party until a final decree is passed by
this Court. Parties are granted liberty to give their necessary suggestions
within 8 weeks from today with regard to partition by metes and bounds or
any other method or manner for the purpose of passing the final decree.
Rest of the prayers made by the plaintiffs mentioned in the plaint are
dismissed. Issue No.7 is also decided accordingly. Parties to bear their own
costs.
35. List the matter on 22nd April, 2013 before the Roster Bench for
further proceedings.
MANMOHAN SINGH, J.
DECEMBER 14, 2012
