Karnataka High Court
Inayathulla vs Hidayath on 13 September, 2023
Bench: H.P.Sandesh
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RSA No. 2123 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2123 OF 2017 (RES)
BETWEEN:
1. INAYATHULLA
S/O LATE IMAM SAB,
AGED ABOUT 30 YEARS,
R/AT C-BLOCK, KHAJIPET
MOHALLA, GUDIBANDE TOWN,
GUDIBANDE TALUK,
CHICKBALLAPUR DISTRICT-561209
...APPELLANT
(BY SRI SHAIKH SAOUD, ADVOCATE)
AND:
1. HIDAYATH
S/O LATE IMAM SAB
Digitally signed
AGED ABOUT 40 YEARS,
by SHARANYA T RESIDENT OF C-BLOCK, KHAJIPET
Location: HIGH GUDIBANDE TALUK
COURT OF
KARNATAKA CHICKABALLAPUR DISTRICT-561209
2. IMRAN S/O LATE IMAM SAB,
AGED ABOUT 27 YEARS,
RESIDENT OF C-BLOCK KHAJIPET
MOHALLA, GUDIBANDE TOWN
GUDIBANDE TALUK,
CHICKBALLAPUR DISTRICT-561209
3. SMT. MUBINA W/O HANIF
D/O IMAM SAB
AGED ABOUT 38 YEARS,
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RESIDENT OF MYDUGOLAM
VILLAGE AND POST
HINDUPUR TALUK
ANANTHPUR DISTRICT
A.P. PIN NO.515 331.
4. SMT. BEEBIJAN W/O ABDULLA
D/O IMAM SAB,
AGED ABOUT 34 YEARS,
R/AT VATADAHOSAHALLI VILLAGE,
NAGARGERE HOBLI,
GOWRIBIDANUR TALUK
CHICKBALLAPUR DISTRICT
PIN CODE NO.561 208.
5. SMT. AFZAL
W/O ATHAULLA
D/O IMAM SAB
AGED ABOUT 32 YEARS,
R/AT MAMIDIMAKAAPALLI VILALGE,
LEPAKSHMI POST,
HINDUPUR TALUK
ANANTHAPUR DISTRICT
(A.P. ) PIN NO.515331.
...RESPONDENTS
(BY SRI S.N.ASWATHANARAYANA, SENIOR ADVOCATE FOR
SRI L.NARASIMHAMURTHY, ADVOCATE FOR R1,
SRI NOORANI P.S., ADVOCATE FOR R2;
SRI K.C.MANJUNATH, ADVOCATE FOR R3 TO R5)
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 01.09.2017 PASSED IN R.A.
NO.99/2013 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE AND JMFC, CHICKBALLAPUR, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
4.4.2013 PASSED IN O.S.NO.82/2008 ON THE FILE OF THE
CIVIL JUDGE (JR.DN) JMFC, GUDIBANDA.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for appellant.
2. The factual matrix of the case of the plaintiff
before the Trial Court is that the defendants have colluded
with each other and they have created the alleged deed
dated 09.02.2004 by obtaining the signature on the blank
paper and also it is the contention that property belongs to
the ancestors of the plaintiff and defendant Nos.2 and 3.
The alleged Will not going to survive as per the principles
of the Mohammedan Law and the plaintiff never given any
consent to execute the alleged Will dated 09.02.2004. The
defendants took the contention that defendant Nos.2 and
3 in their written statement that the property is self
acquired property of the defendant No.1. Hence, the Trial
Court having considered the pleadings of the parties given
opportunity to lead evidence and accordingly the plaintiff
himself examined as PW1 and got marked as Ex.P1 to
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Ex.P5. On the other hand the defendants have also
examined 4 witnesses and got marked Ex.D1 to Ex.D18.
3. The Trial Court having considered the material
on record i.e., both oral and documentary evidence comes
to the conclusion that the document of Will dated
09.02.2004 is created and defendants have colluded with
each other and also comes to the conclusion that the suit
schedule property belongs to the family and not in terms
of the Mohammedan law and the said Will executed and
the plaintiff has never given any consent to execute the
alleged Will.
4. The very contention of the defendant that it is
the self acquired property of the defendant No.1 has also
answered as negative and comes to the conclusion that
the plaintiff is entitled for relief and held that Will is not
valid in the eye of law.
5. Being aggrieved by the judgment and decree of
the Trial Court an appeal is filed before the appellate Court
in RA No.99/2013. The First Appellate Court having
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considered the grounds urged in the appeal memo,
formulated the point as whether the defendants have
established that the plaintiff has given his consent to
execute the Ex.D1- Will by the 1st defendant in favour
defendant Nos.2 and 3 by receiving sum of Rs.65,000/-
towards her share. The First Appellate Court having
considered both oral and documentary evidence and also
on re-appreciation of the evidence comes to the conclusion
that the plaintiff has established that the signature was
taken on the blank paper considering the evidence of
defendants and also comes to the conclusion that he was
not having the knowledge of the language in which the
document was written and also he was not given any
consent to write the same, when he comes to know about
the very execution of the document of Will, he had filed
the suit immediately and the appellate Court confirmed
the judgment of the Trial Court.
6. The counsel appearing for the appellant would
vehemently contend that the document is a registered
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document and also it has emerged in the evidence that he
has given consent by receiving an amount of Rs.65,000/-
and witness i.e., one of the sister also examined before
the Trial Court as DW3 and she has stated that with the
consent only Ex.D1 came into existence.
7. The counsel for appellant would vehemently
contend that both the Courts have committed an error in
entertaining the suit and the very suit itself is not
maintainable when the suit was filed.
8. The counsel has also relied upon the judgment
passed by this Court dated 14.08.2014 and the counsel
would vehemently contend that in a similar set of facts
and circumstances of the case, this Court considered very
Section 117 of Mohammedan Law and the counsel brought
to notice of this Court paragraph No.17 wherein discussion
was made under this provision bequest to a heir is not
valid unless other heirs also given consent to the bequest
after the death of the testator. In both the provisions it is
material to note that 'consent' referred to is not qualified
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with any pre-conditions or riders. The word 'consent' in
both these provisions is 'consent' simpliciter. Thus it could
either express or implied. This means, 'consent' is to the
testamentary disposition by the deceased after his demise.
Therefore by the language of this provision, it can be
understood that 'consent' need not be in the bequest itself
or during the lifetime of the testator. The testator's will to
bequeath his estate to his heir by will is not barred but it is
valid only if it is consented to after his demise by other
heirs.
9. The counsel referring this judgment would
vehemently contend that the very contention of the
defendant before the Trial Court is also that an amount of
Rs.65,000/- was paid and he gave consent and also he is a
signatory and not disputed the signature made by him.
Only contention that the signature was obtained
fraudulently and the same has not been proved and
therefore this Court has to frame substantive question of
law that both the Courts fail to take note of the material
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on record. Hence, this Court has to frame substantive
question of law that both the Courts not dealt with the
matter under Section 117 of Mohammedan Law and also
Will deed was registered on 09.02.2004 and the very
plaintiff was present at the time of execution of the
document and the same is not been considered by both
the Courts. Even though the proper issues were framed
and the same is also not properly considered. Hence, this
Court has to admit and frame substantive question of law.
10. Per Contra, the counsel appearing for the
respondent would vehemently contend that the
respondents have also not disputing the signature and
took specific contention that signature was taken on the
blank paper fraudulently. Though contend that an amount
of Rs.65,000/- was paid and DW1 categorically admitted
that to that effect the document was executed and the
same was given to the advocate, the same is not placed
before the Court. Though he again says that he has given
only zerox and also not even made any efforts to summon
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the document of receipt for having paid the sum of
Rs.65,000/- by making any efforts and the document Will
also does not discloses anything about having made the
payment also and all these aspects are considered by the
Trial Court as well as the First Appellate Court. The First
Appellate Court in detail dealt with the matter at
paragraph No.19 and 20 of the judgment and comes to
the conclusion that it does not requires any interference.
11. Having heard the appellant's counsel and also
the counsel appearing for the respondents and also in
keeping the provisions of Section 117 of the 'Wills' chapter
of the Mohammedan Law, no doubt the provision is very
clear with regard to the consent has to be obtained after
the death of the executor. The judgment of this Court
which is referred by the counsel for appellant is also very
clear with regard to the provisions of Section 117 of
Mohammedan law. No dispute with regard to the principles
as well as the provision.
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12. The main contention of the plaintiff that by
fraudulently they have obtained the signature to Ex.D1
and he was not aware of the same and also material
discloses that the plaintiff was also not aware of the
Kannada language in which the document of Ex.D1 was
prepared and the same is admitted.
13. Apart from that though contend that an amount
of Rs.65,000/- was paid no material is placed before the
Court and the same has been considered by the Trial Court
by appreciating both oral and documentary evidence. Even
the First Appellate Court on re-appreciation of both oral
and documentary evidence having considered the material
on record, comes to the conclusion in paragraph No.19
that the defendants have not produced agreement said to
be executed by the plaintiff for having received an amount
of Rs.65,000/- from his father. No such document is
produced even though admitted that the document is in
their custody and also comes to the conclusion that the
pleadings of defendant is not in consonance with the
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document Ex.D1 with respect to the execution of alleged
agreement by the 1st plaintiff in favour of the 1st defendant
and also taken note of that during the course of cross
examination D.W1 has deposed that the plaintiff has
retained the original agreement with him. But, there is no
pleadings with regard to the said fact and also not
produced the documents, even the copy is with his
custody and same is also not produced and no notice was
given to the plaintiff to produce the original document,
since he claims that the same is in the custody of the
plaintiff and no such efforts are made.
14. The First appellate Court has also in paragraph
No.20 taken note of the evidence of witnesses merely
because only signature is found on the document cannot
be a ground that he has given a consent to Ex.D1 by
receiving an amount of Rs.65,000/-. Having taken note of
material available on record, when the defendants have
not proved the fact that the plaintiff has given consent to
execute the document and also the very averments that
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he has received an amount of Rs.65,000/- by filing the
document at Ex.D1 but, the plaintiff categorically stated in
the plaint that fraudulently the signature was taken and
when he comes to know about the document of Ex.D1 he
immediately filed the suit even during the life time of the
father itself and when such material available before the
Court, I do not find any error committed by the Trial Court
as well as the First Appellate Court in coming to the
conclusion that Ex.D1 is created by the defendants by
colluding with each other and not committed any error in
appreciating both oral and documentary evidence placed
on record and said reasoning is also given in the judgment
based on the admissions given by the witnesses. Hence, in
the absence of any perversity, I do not find any ground to
admit the appeal and to frame substantive question of law
by invoking Section 100 of CPC.
15. In view of the discussions made above, I pass
the following:
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ORDER
The appeal is dismissed.
Sd/-
JUDGE
RHS
