Page No.# 1/4 vs Naina Akhtar
2022 Latest Caselaw 1192 Gua

                                                                    Page No.# 1/4

GAHC010059132021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : Test.App./1/2021

         MD. FAIZUR ALI AND 4 ORS.
         S/O- LATE NABIRUDDIN ALI, R/O- HOUSE NO. 114 DWARANDA,
         PANJABARI, P.O. KHANAPARA, P.S. DISPUR, GUWAHATI, DIST.-
         KAMRUP(M), ASSAM.

         2: MD. NOUSHAD ALI
          S/O- LATE NABIRUDDIN ALI
          R/O- HOUSE NO. 114 DWARANDA
          PANJABARI
          P.O. KHANAPARA
          P.S. DISPUR
          GUWAHATI
          DIST.- KAMRUP(M)
         ASSAM.

         3: MD. JAKIR ALI
          S/O- LATE NABIRUDDIN ALI
          R/O- HOUSE NO. 114 DWARANDA
          PANJABARI
          P.O. KHANAPARA
          P.S. DISPUR
          GUWAHATI
          DIST.- KAMRUP(M)
         ASSAM.

         4: MD. ANOWAR ALI
          S/O- LATE NABIRUDDIN ALI
          R/O- HOUSE NO. 114 DWARANDA
          PANJABARI
          P.O. KHANAPARA
          P.S. DISPUR
          GUWAHATI
          DIST.- KAMRUP(M)
         ASSAM.
                                                                           Page No.# 2/4


            5: MD. HAFIZ ALI
             S/O- LATE NABIRUDDIN ALI
             R/O- HOUSE NO. 114 DWARANDA
             PANJABARI
             P.O. KHANAPARA
             P.S. DISPUR
             GUWAHATI
             DIST.- KAMRUP(M)
            ASSAM

            VERSUS

            NAINA AKHTAR
            D/O- LATE NABIRUDDIN ALI, R/O- HOUSE NO. 114 DWARANDA,
            PANJABARI, P.O. KHANAPARA, P.S. DISPUR, GUWAHATI, DIST.-
            KAMRUP(M), ASSAM.



Advocate for the Petitioner   : MR. R SARMA

Advocate for the Respondent : MR K TALUKDAR




                                   BEFORE
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                     ORDER

JUDGMENT AND ORDER 04.04.2022 Hear Mr. R. Sarma, learned Counsel appearing for the appellants as well as Mr. B.C. Talukdar, learned Counsel representing the respondent.

2. This is an appeal under Section 299 of the Indian Succession Act, 1925 against the judgment dated 22.12.2020 passed by the Additional District Judge No. 2, Kamrup (M), at Guwahati in PTS Case No. 01/2018.

3. Late Hajiran Begum was the owner of a plot of land measuring 1 katha 4 lessas bearing Dag No. 325 (old)/1680 (New) of Patta No. 160 (old)/1522 (new) of village Dwaranda Gaon under Beltola Mouza in the district of Kamrup (M). She has five sons and one daughter. Before her death, on 31.05.2014, she executed a WILL on Page No.# 3/4

19.02.2013 bequeathing 16 lessas of her said land to her only daughter Naina Akhtar (the respondent).

4. The respondent filed an application before the court of the District Judge seeking probate upon the WILL and ultimately the probate was granted in her favour.

5. The present appellants are her brothers, who now claim that under Section 118 of the Mohammedan Law, their mother did not have the right to bequeath the entire property in favour of their only sister.

6. Now, the point for determination in this appeal is whether a Mohammedan can bequeath his or her entire property in favour of a person.

7. At this stage, a brief visit to Section 118 of the Mohammedan Law would be fruitful and reads as under:

"118. Limit of testamentary power: A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debs. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator".

8. The learned counsel Mr. Talukdar submits that this point was not raised by the appellant before the trial court.

9. Per contra, Mr. Sarma submits that a pure question of law can be raised at any time of the proceeding. According to Mr. Sarma, question of fact that requires investigation and enquire and for which no factual foundation has been laid by a party before the court below cannot be raised at an appellate stage.

10. I have given my anxious consideration to the submissions made by the learned counsels for both sides.

11. Section 118 of the Mohammedan Law prohibits a person from bequeathing more than one-third of the surplus of his estate after payment of funeral expenses and debts. Bequest in excess of the legal third cannot take effect unless the heirs consent thereto after the death of the testator.

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12. It is a pure question of law. Therefore, it can be raised at any time. Because such a question does not involve any investigation of facts.

13. Under the aforesaid premises reasons, bequest of the 16 lessas of land in favour of the respondent is not permitted by law and, therefore, it is bad in law.

14. The respondent will be entitled to only 8 lessas of land not 16 lessas of land, as bequeathed by her mother.

15. For the said reason, this court is of the opinion that the appeal deserves to be partly allowed. The impugned judgment is modified accordingly. The respondent shall be entitled to only 8 lessas of land out of the aforesaid 1 katha 4 lessas of land bearing Dag No. 325 (old)/1680 (New) of Patta No. 160 (old)/1522 (new) of village Dwaranda Gaon under Beltola Mouza in the district of Kamrup (M).

16. The appeal is partly allowed with the aforesaid observation.

JUDGE

Comparing Assistant