Madhya Pradesh High Court
Abdul Gaffar vs Liyakat Hussain & Ors. on 20 August, 2025
Author: Vishal Dhagat
Bench: Vishal Dhagat
NEUTRAL CITATION NO. 2025:MPHC-JBP:39279
1 FA-181-1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
FIRST APPEAL No. 181 of 1998
ABDUL GAFFAR
Versus
LIYAKAT HUSSAIN & ORS.
Appearance:
Shri Mohammad Adil Usmani - Advocate for appellant.
Shri Vijay Shukla - Advocate for respondent Nos. 1 to 4.
Reserved on 16/07/2025
Delivered on 20/08/2025
..............................................................................................................................................
JUDGMENT
Appellant has preferred First Appeal under Section 96 of Code
of Civil Procedure challenging judgment and decree dated
19/02/1998 passed by District Judge, Sagar in Civil Suit No.11-
A/1997.
2. Brief facts of the case are that appellant was plaintiff before
trial Court and respondent Nos. 1 to 4 were defendant Nos.1 to 4 and
respondent No.5 was defendant No.5. Appellants as well as
defendant Nos. 1 to 4 were son and grand son of deceased Abdul
Aziz. Defendant No.5 Rasoolan Bi is wife of Abdul Aziz. Abdul
Aziz was owner of a property, which is known as 'Roshan Manzil'
situated in Gujrati Bazar, Sagar. Abdul Aziz before his death has
executed two wills in respect of his property i.e. Roshan Manzil.
First registered will is dated 28/05/1987, which was done in favour of
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2 FA-181-1998
defendant Nos.1 to 4. Second will is dated 06/12/1987, which was
done in favour of plaintiff appellant. Testator died on same day i.e.
on 06/12/1987. Legatee filed an application for getting the will
registered. Application was dismissed. Thereafter, appeal was
preferred. Appeal was allowed on 06/07/1989 and second will also
got registered. Appellant plaintiff had preferred a suit for declaration
that will dated 06/12/1987 is last will of Abdul Aziz and first will
dated 28/05/1987 is illegal and invalid. Prayer was also made that
mutation order dated 22/04/1994 based on first will is ineffective and
no title interest is created in favour of defendant Nos.1 to 4 by will
dated 28/05/1987. Parties get their title and interest over property on
will dated 06/12/1987. Prayer was also made to grant permanent
injunction against defendant Nos.1 to 4 for not transferring the
property to create charge over it. Learned trial Court after
considering the pleadings of parties and evidence adduced, dismissed
the suit vide its judgment and decree dated 19/02/1998. Said
judgment and decree is under challenge in First Appeal.
3. Counsel appearing for appellant has challenged the judgment
and decree passed by trial Court on grounds that trial Court
committed error of law in holding that will dated 06/12/1987 was not
a valid will. Provisions of Mohammedan Law were disregarded. Trial
Court in issue Nos.1, 3 & 4 held that Ex.P-1 was not valid will and
was executed by testator in fit state of mind, therefore, trial Court
had committed error in not decreeing the suit. It is submitted that
respondent Nos.1 to 4 raised grounds that testator was ill when last
will was executed, however said ground was not proved by defendant
Nos. 1 to 4, therefore, suit ought to have been decreed. Trial Court
committed error in disregarding provision of Section 195 of
Mohammedan Law. First will was clearly revoked and cancelled by
testator when he executed last will. Trial Court gave a finding that
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3 FA-181-1998
last will was not forged and previous will was cancelled by last
instrument, therefore, previous will Ex.D-1 ought to have been held
to be void.
4. Counsel appearing for respondent Nos. 1 to 4 supported the
judgment and decree passed by trial Court. It is submitted that
pleadings of parties and evidence was considered in detail by trial
Court. Law was also considered in right perspective and no error has
been committed by trial Court in decreeing the suit. Counsel for
respondent relied upon judgment dated 30/01/2025 passed in First
Appeal No.305/2004 between The Carona Co. Ltd. and Others Vs.
Mohd. Aarif and Others and in First Appeal No.383/2004 between
Mohd. Aarif & Others Vs. The Carona Co. Ltd. & Others. In said
appeals judgment and decree was passed by trial Court dated
22/04/2004 in Civil Suit No.40-A/1998 for eviction against Carona
Co. Ltd. It is submitted that by trial Court as well as Appellate Court
order of eviction has been passed, therefore, benefit will accrued to
defendant Nos. 1 to 4. Reliance is also placed on judgment passed by
Privy Council in case of Musa Miya Walad Mahammad Shaffi &
Another Vs. Kadar Bax Walad Khaj Bax & Another, AIR 1928 PC
108, wherein it was held that gift was not complete in absence of any
delivery of possession or relinquishment of control over the property
by grand father. Further reliance is placed on judgment passed by
Madras High Court in case of Rahiman Sahib & Others Vs.
Uthumansa Rowther reported in AIR 1925 Madras 997. In said case
it was held that bequest of more than 1/3rd of testator's property in
favour of legatee is invalid unless other heirs consent expressly
impliedly after testator's death. Prayer is made for dismissal of First
Appeal.
5. Heard counsel for the parties.
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4 FA-181-1998
6. Appellant has raised the ground that since issue Nos. 1, 3 &
4 were decided to effect that Ex.D-1 i.e. will dated 06/12/1987 was
not a forged will, said will cancels will dated 22/05/1987. Mutation
order dated 22/04/1994 is to be declared as invalid on basis of said
first will. Further to buttress his submission it was argued that
respondent Nos. 1 to 4 have not lead any evidence to show that
testator was not in fit condition of mind to execute the will.
Respondent No.1 has admitted the signature of testator and there was
no denial of same. He also admitted that he had signed on the said
will, therefore, suit ought to have been decreed on basis of will dated
06/12/1987. On the contrary counsel appearing for respondents
submitted that thought will was not forged, but same was not valid in
accordance with Mohammedan Law. To buttress his submission he
relied upon judgment passed by Privy Council and Madras High
Court.
7. On going through facts and circumstances of case and
Mohammedan Law and citation placed before this Court it is found
that will cannot be executed in excess of 1/3rd part of property of
testator. There has to be consent of other legal heirs after execution
of will by testator. In this case testator died on same day of execution
of will dated 06/12/1987, therefore, there is no question of consent of
other legal heirs of deceased on the will. Further whole property i.e.
Roshan Manzil has been bestowed. It is also contrary to
Mohammedan Law, therefore, no error is found in judgment and
decree passed by trial Court in not decreeing the suit though last will
dated 06/12/1987 was not found to be forged. Said will was not valid
according to Mohammedan Law as discussed above, therefore, suit
was rightly not decreed by trial Court on ground that first will was
not held to be forged. Since last will dated 06/12/1987 was held not
to be valid in accordance with Mohammedan Law, therefore, even if
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5 FA-181-1998
no evidence has been adduced by defendant No.4 that mental
condition of testator was not fit for executing first will, will not affect
the legal validity of judgment and decree passed by trial Court.
8. Counsel for appellant has also raised a ground that first will
dated 28/05/1987 was cancelled by subsequent will dated
06/12/1987, therefore, no title accrued to defendant Nos.1 to 4 and
will dated 28/05/1987 ought to have been declared illegal and invalid
and mutation order as void.
9. Since last will was declared by Court to be invalid and not in
accordance with Mohammedan law, therefore, last will could not
have been relied for cancellation of first will. Further appellant
plaintiff has specifially not challenged first will dated 28/05/1987 to
have been executed by testator contrary to Mohammadan law. In
view of same, no error has been committed by trial Court in passing
the impugned judgment and decree.
10. In view of above, First Appeal is dismissed.
(VISHAL DHAGAT)
JUDGE
as
