Kareem Khan vs Lt.Raheem Khan
2022 Latest Caselaw 5507 MP

                           1
         IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                             BEFORE
           HON'BLE SHRI JUSTICE SATISH KUMAR SHARMA

                 SECOND APPEAL No. 237 of 2009

     Between:-
1.   KAREEM KHAN S/O S/O HUSSAIN BAKSH , AGED
     ABOUT   82   YEARS, OCCUPATION: RETD.R/O
     DURGA     COLONY,GARAM      SADAK,MORAR
     DISTT.GWALIOR (MADHYA PRADESH)

2.   KAREEM KHAN THR. LRS. SMT SAKEENA @
     JARINA (DEAD)) W/O KAREENM KHAN, AGED
     ABOUT 78 YEARS, DURGA COLONY MORAR
     (MADHYA PRADESH)

3.   KAREEM KHAN THR. LRS. SALIM KHAN S/O LATE
     KAREEM KHAN , AGED ABOUT 60 YEARS,
     ABAHPURA KAMPOO       LASHKAR   (MADHYA
     PRADESH)

4.   KAREEM KHAN THR. LRS. RAFEEQ KHAN S/O
     LATE KAREEM KHAN , AGED ABOUT 55 YEARS,
     GHOSIPURA RAILWAY STATION KE PAAS
     LASHKAR (MADHYA PRADESH)

5.   KAREEM KHAN THR. LRS. NASIR KHAN S/O LATE
     KAREEM KHAN , AGED ABOUT 40 YEARS, DURGA
     COLONY MORAR (MADHYA PRADESH)

6.   KAREEM KHAN THR. LRS. RAHIS KHAN S/O LATE
     KAREEM KHAN , AGED ABOUT 38 YEARS, DURGA
     COLONY MORAR (MADHYA PRADESH)

7.   KAREEM KHAN THR. LRS. HAFIZ KHAN S/O LATE
     KAREEM KHAN , AGED ABOUT 35 YEARS, DURGA
     COLONY MORAR (MADHYA PRADESH)

8.   KAREEM KHAN THR. LRS. MOHM. JAMIL KHAN
     S/O LATE KAREEM KHAN , AGED ABOUT 32
     YE A R S , DURGA COLONY MORAR (MADHYA
     PRADESH)

9.   KAREEM KHAN THR. LRS. SMT. KANIJA BE D/O
     LATE KAREEM KHAN W/O SHRI RASID KHAN ,
     AGED   ABOUT   45   YEARS, BAWANPAYEGA
     LASHKAR (MADHYA PRADESH)

                                                   .....APPELLANTS
     (BY SHRI ALOK KATARE ADVOCATE)

     AND

1.   LT.RAHEEM KHANS/O LT.HUSSAIN BAKSH TH:
     LR'S, AGED ABOUT 70 YEARS, OCCUPATION: SMT.
     BITTIBAI, WD/O RAHEEM KHAN,R/O DURGA-
     COLONY, GARAM SADAK, MORAR, DISTT.
     GWALIOR (MADHYA PRADESH)
                                  2
2.        LATE RAHEEM KHAN (D) THR: LRS S/O KADIR
          KHAN S/O LATE RAHIM KHAN , AGED ABOUT 52
          YEAR S , OCCUPATION: R/O SAURABH KHA KA
          MAKAN,       SHAKURPUL J.J.COLONY, SAMAR
          TALKIES    KE   PAS,  NEW DELHI (MADHYA
          PRADESH)

3.        LATE RAHIM KHAN (D) THR: LRS S/O BASIR KHAN
          S/O LATE RAHIM KHAN , AGED ABOUT 45 YEARS,
          OCCUPATION: R/O PRES: DURGA COLONY,
          MORAR, DISTT. GWALIOR (MADHYA PRADESH)

4.        LATE RAHIM KHAN (D) THR: LRS S/O MUSTAQ
          KHAN S/O LATE RAHIM KHAN , AGED ABOUT 42
          YE A R S , OCCUPATION: R/O DURGA COLONY,
          MORAR, GWALIOR (MADHYA PRADESH)

5.        LATE RAHIM KHAN (D) THR: LRSSMT. KHATUN
          W/O KHADAR KHAN , AGED ABOUT 48 YEARS,
          OCCUPATION: D/O LATE RAHIM KHAN, R/O
          KHALIDAPURA, BAMORE (MADHYA PRADESH)

6.        LATE RAHIM KHAN (D) THR: LRSSMT. GUDDAN
          W/O RASHID KHAN D/O LATE , AGED ABOUT 46
          Y E A R S , OCCUPATION: RAHIM KHAN, R/O
          BANSIPURA, MORAR DISTT.GWALIOR (MADHYA
          PRADESH)

7.        SMT. HASAN BAIW/O CHUNNI KHA D/O LATE
          HUSEN    BAKSH , AGED ABOUT 75 YEARS,
          OCCUPATION: R/O INDRA NAGAR, AWADPURA,
          LASHKAR, GWALIOR (MADHYA PRADESH)

                                                                  .....RESPONDENTS

(BY SHRI N.K.GUPTA, SR.ADVOCATE WITH SHRI BALDEV CHHARIYA ADVOCATE )

T h is appeal coming on for hearing this day, the court passed the following:

JUDGEMENT.

(DELIVERED ON 19TH OF APRIL, 2022) This second appeal has been filed by the appellant/(defendant no.1) against the the judgment and decree dated 5.3.2009 passed by XI Additional District Judge (Fast Track) Gwalior in Civil Appeal No.2A of 2009 (Karim Khan Vs. Late Rahim Khan through LRs), whereby, his appeal was dismissed and the judgment/decree dated 29.2.2008 passed by I Civil Judge Class 2 Gwalior in Civil Suit No.14A of 2005 was affirmed.

Brief facts giving rise to this second appeal are that, the appellant/defendant Karim Khan and respondent Rahim Khan are real brothers and respondent/defendant Hassan Bai respondent no.2 is their sister. Appellant Karim Khan and respondent Rahim Khan both have died and their LRs are on record.

Initially, respondent/(plaintiff Rahim Khan) filed a Civil Suit No.107A of 1999 against appellant/defendant Karim Khan) claiming half share in the disputed house owned by their father. The suit filed was decreed on 24.3.2000. In First Appeal No.30A of 2002, the matter was remanded to the trial court vide judgment dated 29.10.2004 for retrial after impleadment of their sister Hassan Bai. On the direction of appellate court, Hassan Bai was impleaded as defendant no.2. After retrial, the suit was partly decreed vide Judgment/Decree dated 29.2.2008 in favour of the plaintiff. He was declared owner of the 40% share in the disputed house and the defendant was restrained from alienating his share. Appellant/defendant Karim

Khan preferred first appeal against the judgment and decree dated 29.2.2008, which came to be dismissed on 5.3.2009. Being aggrieved of the same, this second appeal has been preferred by appellant/defendant Karim Khan. During pendency of appeal, appellant Karim Khan has died and his LRs have been brought on record.

The instant appeal vide order dated 3.5.2010 was admitted on the following substantial question of law :

"In view of will (Ex.D/1) having been found proved, whether learned Courts below have acted illegally in holding that the plaintiff is entitled to 40% share in the suit property"?.

Heard learned counsel for the parties and perused the submissions filed on behalf of appellants as well the material available on record.

Learned counsel for the appellants has contended that it is well proved by evidence adduced on behalf of defendant no.1 that the disputed house was purchased by the defendant no.1 in the name of his father who in turn, executed a will in his favour, whereby, the disputed house was given to him. The will in question has been found proved by both the courts below.

True it is that, bequest by Mohammedan to his heirs is not valid unless other heirs also consented to the bequest after the death of testator, but in this case, after death of Hassan Bai, daughter of deceased Hussain Baksh has given explicit consent to the will executed in favour of Karim Khan. Even late Rahim Khan also executed a compromise deed whereby, the will in question was acknowledged and written consent was given by him accordingly. Thus, appellant/defendant Karim

Khan is sole owner of the disputed property. Still without any basis or reasoning, the learned trial court has declared LRs of plaintiff Rahim Khan to be owner of 40% of the disputed property. Finding of the trial court as well as appellate court is perverse being contrary to the fact and law. It has been further contended that the decree of declaration cannot be passed without seeking partition of joint property. The impugned judgment and decree deserves to be quashed and set-aside.

Shri N.K.Gupta learned Sr.counsel appearing for the defendants submits that as per Article 117 and 118 of the Mohammedan Law by Mullas, a Mohammedan cannot bequest to an heir unless other heirs consented to the same. Further, he cannot bequest more than 1/3rd of his estate. In this case, the will in question has been executed for whole of the estate owned by deceased Hussain Baksh for which, no consent has been given by deceased/plaintiff Rahim Khan. Hence, to the extent of his share, the will in question cannot be acted upon. The learned trial court has duly appreciated the factual and legal position of the case and after leaving the share of defendant Karim Khan and Sister Hassan Bai, 40% share has been declared in favour of the plaintiff. The provisions of Mohammedan Law are quite different to the provisions of Hindu law. Learned courts below have rightly decided the dispute in the light of the well established principles of Mohammedan Law. The appeal is baseless and deserves to be dismissed. He places reliance upon the judgments rendered by Hon'ble Apex Court in the case of Narunnisa Vs. Shek Abdul Hamid reported in AIR 1987 Kant. 222 and by this Court in Kallobai Vs. Babukhan, reported in 2009 (3) MPLJ 231.

Heard. Considered.

In view of the above mentioned substantial question of law, whereupon the present appeal has been admitted, the provisions of Mohammedan Law contained under Article 117 and 118, dealing with the bequest by a Mohammedan, are relevant which are quoted below :

"117. Bequests to heirs. A bequest to an heir is not valid unless the other heirs also also consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share.

A bequest to an heir, either in whole or in part, is invalid unless

consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. Neither inaction nor silence can be the basis of implied consent".

"11 8 . 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 debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator".

On bare perusal of the above provisions and as expounded in the above judgments, it is well settled legal position that a Mohammedan cannot bequest more than 1/3rd of his estate. Further, he cannot bequest to his heirs unless other heirs give consent to the same.

In this case, deceased Hussain Baksh died leaving behind two sons and one daughter. He has executed will in question bequesting his whole property in favour of the appellant. Being more than 1/3rd share, the will executed in his favour by deceased Hussain Baksh i.e. father of litigating parties cannot be acted upon and accordingly the appellant cannot be held to be entitled of whole of the property of Hussain Baksh.

Learned trial Court has categorically and correctly appreciated the fact situation and declared the plaintiff owner of the 40% share of disputed property leaving aside rest of 60% share of the property for appellant/defendant and his sister/respondent/defendant No.2.

The alleged compromise between the plaintiff and the defendants has not been found proved after appreciation of evidence led by both the sides. This court is also in conformity of the same, mainly because, the alleged compromise was stated to have been arrived at between the parties during pendency of the litigation. Therefore, had it been so, the same was required to be placed before the trial court. But it has not been produced before it. Besides, the physical and mental state of the plaintiff was not sound to execute the said compromise, therefore, the courts below have rightly rejected the plea of the defendants in this regard.

Learned trial Court has declared share of plaintiff as per his entitlement in accordance with Mohammedan Law, therefore, relinquishment of share by the sister in favour of defendant No.1 does not affect the share of plaintiff herein.

Accordingly, such relinquishment has no relevance so far as the share of plaintiff in the disputed property is concerned.

A son can file a suit for declaration of his share in the property of his deceased father and consequential injunction and for this purpose, a suit for partition is not essential, therefore, learned trial Court has not committed any mistake in granting relief in question.

In view of the above discussion and reasons stated, this Court is of the view that learned courts below have correctly appreciated the factual and legal aspect of the case. No illegality or infirmity whatsoever, has been detected in the impugned judgements. The appeal sans merits and is, hereby dismissed.

(SATISH KUMAR SHARMA) JUDGE 19.04.2022.

Rks

RAM KUMAR SHARMA 2022.04.19 17:08:05 +05'30'