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O.S.317/2011
IN THE COURT OF THE SENIOR CIVIL JUDGE :: NARSAPURAM
Present : Sri P.Kesavacharyulu,
Senior Civil Judge, Narsapuram.
Monday, this the 21st day of January, 2019
O.S.No.317/2011
Between:
Khatijatul Kubra Safavi, W/o.Noor Mohammad, D/o.Saleemuddin Ahamadh, Aged 39 years, female, Muslim, Husband protection, 50348, 17…….Plaintiff 6B, Arroanagar, Kurnool2.
and
1.Azeemunnisa Begum Safavi, W/o.Fayaz Ahamadh, D/o.Saleemuddin Ahamadh, Aged 35 years, female, Muslim, Husband protection,C/o.S.Yusufkhan,7/E Brahmananda Reddy Colony, Malakpeta, Hyderabad.
2.Nahid Safavi Syeda, W/o.Syed Zakir, D/o.Kyyrudin, Ahamadh, Aged 46 years, female, muslim, advocate, near Kalpana prints, Rahman Street, Krishna Lanka, Vijayawada.
3.Razia Begum, W/o.Naziruddin Ahmadh, Aged 66 years, female, Muslim, Husband protection, 29th ward, coconut garden, canal road, Narasapur.
4.Nazhith Begum Safavi, W/o.Syed Maswood, D/o.Naziruddin Ahamadh, Aged 46 years, female, Muslim, Husband protection, 29th ward, Coconut garden, canal road, Narasapur.
5.Zaheda Begum Safavi, W/o.Syed Iqbal Basha, D/o.Naziruddin Ahmed, aged 43 years, female, Muslim, Husband protection, 29th ward, Coconut garden, canal road, Narasapur
6.Waheeda Begum Safavi, W/o.Kothapalli Riyaz Ahamadh, Naziruddin Ahamadh, Aged 40 yeas, female, Muslim, Husband’s protection, 29th ward, Coconut garden, canal Road, Narasapur
7.Hameeda Begum Safavi, W/o.Meera Mohiddin, D/o.Naziruddin Ahmed, Aged 36 years, female, Muslim, Husband protection, /2/
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29th ward, coconut garden, canal road,
Narasapur. …..Defendants
(The name of 2nd defendant was amended as per orders passed in I.A.1001/2014, dated 05.11.2014) This suit is coming on 29.11.2018 before me in the presence of Sri M.Satya Krishna, Advocate for the plaintiff and of Sri D.Nagi
Reddy, advocate for the defendants 1 and 2 and Sri
V.Venkatacharyulu, advocate for the defendants 3 to 7 and having stood over for consideration to this day till this day, this court delivered the following:
J U D G M E N T
1.This is a suit for a preliminary decree for partition, with past and future mesne profits, costs and other reliefs.
2.The plaint averments are as follows. The plaint schedule property originally belonged to one Ahamadhunnisa
Begum and her sister Shajada Begum by virtue of a registered settlement deed dated 31.01.1951. There was subsequently a partition between them under a registered partition deed dated 10.08.1955. Ahmedunnisa Begum got 3 sons namely Khyruddin
Ahmed, Naziruddin Ahmed, Saleemuddin Ahmed, and 5 daughters namely Siraja Begum, Farida Begum, Sajida Begum, Salma Begum and Nasreen Begum. Ahmedunnisa Begum in a sound and disposing state of mind executed a registered will dated 28.10.1993 in favour of her progeny. By the date of the execution of the said will, her two sons Kyruddin Ahmed and Saleemuddin Ahmed and her eldest daughter Siraja Begum had died. She bequeathed the ‘A’ schedule property in favour of her son Naziruddin Ahmed and the /3/
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progeny of her two deceased sons to be partitioned under the direction of her Naziruddin Ahmed and her grandson Syed Khalid.
It should therefore be construed that Naziruddin Ahmed and Syed
Khaid shall act as administrators in partitioning the said property.
Ahmedunnisa Begum died on 28.05.1998. Thereafter the will executed by her came into force. It was accepted and acted upon, and the legatees took possession of their respective shares.
Naziruddin Ahmed died in December, 2004. D3 is his wife and D4 to 7 are their children. Plaintiff and D1 are the daughters of
Saleemuddin Ahmed. After excluding the joint pathway of 24 cents out of Ac.178 cents, the remaining Ac.154 cents which is described more vividly in the plaint schedule, is to be partitioned in 3 equal shares among Nazirudden Ahmed, the progeny of Kyruddin
Ahmed and Saleemuddin Ahmed. Thus, plaintiff and D1 being the children of the Saleemuddin are entitled to 1/3rd share in Ac.154 cents, D2 who is the daughter of the deceased Kyrudden Ahmed is entitled to 1/3rd share in Ac.154 cents, and D3 to D7 are entitled to the remaining 1/3rd share in the said Ac.154 cents. The administrators Naziruddin Ahmed and Syed Khalid did not take steps for partition of the plaint schedule property. Plaintiff and D1 issued legal notice dated 18.12.2009 to D2 to D7 to come forward for partition. They issued a reply with false allegations, but, did not come forward for partition. Hence, the suit is filed for preliminary decree by partitioning the plaint schedule property and allotting Ac.025.7 cents to the plaintiff with separate possession, /4/
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for past and future mesne profits, and costs and other reliefs as aforesaid.
3.D1 filed her written statement. It is admitted that plaintiff and D1 are the daughters of Saleemuddin Ahmed. It is alleged as follows. Khyruddin Ahmed, who is the father of D2, and
Saleemuddin Ahmed predeceased the testator Ahmedunnisa
Begum. So, plaintiff, D1, and D2 are nonheirs under
Mohammedan law. A bequest to a nonheir is valid without the consent of other heirs. Naziruddin Ahmed, who is the husband of
D3 and father of D4 to D7, is a heir, and bequest to a heir is not valid unless the other heirs consent to the bequest after the death of the testator. Naziruddin Ahmed did not take care of his mother
Ahmedunnisa Begum, he did not perform her obsequies and other ceremonies, and all expenses for such ceremonies were incurred by the daughter of Ahmedunnisa Begum and therefore the surviving sisters of Naziruddin Ahmed refused to give consent to the bequest.
D3 filed Writ Petition No.19105/10 by relinquishing her share in the plaint schedule property. So, she is not entitled to a share in the plaint schedule property and her share is to be distributed among D4 to D7. Under Mohammaden Law and the Shariat Act, if any Muslim male dies intestate succession will be, full sister will take half share as residence and daughter will take ½ share as sharer. Since Naziruddin Ahmed died intestate leaving behind 4 daughters who are D4 to D7, and four full sisters, his share has to /5/
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be distributed equally among his 4 daughters and 4 full sisters.
Plaintiff and D2 are entitled to 1/3rd share in the plaint schedule
Ac.154 cents. Hence, decree may be passed for 1/3rd share to D1 along with plaintiff with separate possession.
4.D2 filed written statement wherein she alleged as follows. She after the death of her father in 1970 shifted to
Vijayawada along with her mother. When Ahmedunnisa Begum died in 1998, D1 attended the obsequies in Narasapur and came to know that Ahmedunnisa Begum executed a registered will dated 28.10.1993 in respect of the plaint schedule property whereby D2 was bequeathed 1/3rd share out of Ac.154 cents. Later, D2 approached Naziruddin Ahmed for partition of the property as per the will, but without fulfilling the promise, he died in December, 2004. Syed Zakir, who is the husband of D2, and the soninlaw of
Naziruddin, by name Syed Masud, who is the husband of D4, are brothers. Due to that relationship, Syed Masud promised for an early amicable settlement of the property as per the will and therefore D2 did not take steps all these days for partition of her share. Under Mohammadan Law and under the Shariath Act, a
Muslim can dispose of his property to her living heirs as well as children of deceased heirs and the legacy will take effect after the demise of the testator. Therefore, this Court may partition the plaint schedule property as claimed by the plaintiff and to allot 1/3rd share to D2 with separate possession.
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5.D3 filed her written statement wherein it is alleged as follows. The so called will is believed to be a forged one, brought into existence by plaintiff in collusion with D1. At the time of the execution of the alleged will, the consent of the only living son at that time Naziruddin Ahmed was required and it was not taken and he was not at all aware of the existence of said will during his lifetime If at all the testator had to bequeath property without the consent of her only living son, she could bequeath only to the extent of 1/3rd of her property and not more. The suit property belonged to Nazirudden Ahmed and it was in his uninterrupted possession till his death on 13.04.2004 and thereafter his legal heirs succeeded and are in possession. Therefore, plaintiff, D1 and
D2 have no legal right or claim over the schedule property. D3 came to know about the existence of the will only in the year 2009 after receipt of a notice given by the plaintiff and D1. D3 and D4 issued a reply notice dated 18.01.2010 and denied the allegations in the notice. As alleged in the plaint, the will was executed on 28.10.1993, and the testator died on 28.05.1998, and plaintiff and
D1 remained silent for a period of 12 years. Why the alleged will was not revealed for 19 long years from the date of its execution is not known. Under Muslim Law only surviving son can acquire ancestral property by devolution and the predeceased sons or their progeny who are females will not acquire property by devolution.
The only surviving male heir at the time of the death of
Ahmedunnisa Begum was Naziruddin Ahmed on whom the suit /7/
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property devolved on the death of his mother. Plaintiff and D1 never made any demands till the notice. They left Narasapur permanently after the death of their father in 1975 and their marriages were performed in Kurnool. Hence, plaintiff is not entitled to any relief.
6.The written statement of D3 has been adopted by D4 to
D7 through a memo of adoption.
7.It may be noted that the name of D2 mentioned in the original plaint was Nahid Sultana Safavi. On a petition for amendment her name was amended in 2014 as Nahid Safavi
Syeda. Subsequently, no additional written statement was filed by any of the parties.
8.Following issues have been framed for trial on the basis of the record:
1.Whether the plaintiff is entitled to partition and separate possession as prayed for?
2.Whether the plaintiff is entitled to past profits?
3.Whether the plaintiff is entitled to future profits?
4.Whether the grandmother of D2 executed the will as pleaded or not and whether such bequest is legally valid or not?
5.To what relief plaintiff is entitled?
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9.Plaintiff examined herself as P.W.1 and marked Exs.A1 to A4. One of the attesting witnesses to the will has been examined as P.W.2. D2 examined herself as D.W.1 and in her chiefevidence
Ex.B1 was marked and in her crossexamination, Ex.B2 was marked on behalf of D3 to D7. D3 examined herself as D.W.2 and
Exs.B3 to B5 have been marked in her evidence. D7 examined herself as D.W.3.
10.Learned counsel for the plaintiff raised the following contentions. No credible material has been elicited in the cross examination regarding the will and therefore the will can be believed. Ex.B3 which is registration extract of the sale deed in favour of Naziruddin Ahmed was introduced for the first time without any plea and it cannot therefore be looked into and it has no probative value. In the Writ Petition filed by D3, she categorically admitted about the execution of the will. The attestor
P.W.2 proved the execution of the will. The adangals are in the name of Ahmedunnisa Begum. Therefore, the suit may be decreed.
Learned counsel for D1 and D2 contended as follows. As per the will, D2 has to get 1/3rd share, plaintiff and D1 have to get 1/3rd share, and D3 to D7 have to get 1/3rd share. There is no dispute between the parties regarding the shares. As per the law of
Muslim succession a woman can give 1/3rd of property if others have not consented. Therefore, the suit may be decreed. He filed a photocopy of Chapters XIV and IX. Whether both are from one and /9/
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the same book or not is not known. Whether Author or Authors are same or not is also not known. Learned counsel has not cited any decision of any Hon'ble High Court or the Hon'ble Supreme Court.
Learned counsel for D3 to D7 contended as follows. As per the Muslim Law, not more than 1/3rd can be bequeathed and permission was required to be obtained by Ahmedunnisa Begum from the living heirs and since it was not obtained, the suit has to be dismissed. The suit is also liable to be dismissed due to mal pleadings, lack of proper pleadings, and ambiguous pleadings. The prayer is absolutely ambiguous, since how many shares have to be partitioned and how many shares have to be allotted to plaintiff are not at all pleaded. Even as per the alleged will, Naziruddin
Ahmed and Syed Khalid have to partition as per their wish and they are the administrators as per the plaint pleadings. Therefore, even on this ground the suit has to be dismissed. The shares as sought in the plaint are not in accordance with the alleged bequest.
The testator Ahmedunnisa Begum died on 28.05.1998 and under the Limitation Act, the period of limitation for a partition suit is 12 years and from 28.05.1998, the said period of 12 years was already over and hence the suit is barred by limitation. The will is not genuine and the signatures on all the pages of the will are different from each other. The evidence of P.Ws.1 and 2 in their cross examination proves that the will is not genuine. Therefore, the suit may be dismissed.
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By way of reply, learned counsel for the plaintiff contended that bequest to a nonheir is valid to the extent of 1/3rd share even without the consent of heirs as held in Abdul Bari vs. Nazir
Ahmad {A.I.R. 1933 Oudh 142}, and therefore the bequest is valid.
There are no malpleadings or lack of proper pleadings or ambiguous pleadings and the pleadings are proper and unambiguous and clear. In a partition suit, it is not necessary to plead how many shares should be allotted to each of the shares, since even in a final decree petition shares can be modified, determined and allotted. Therefore, the suit may be decreed.
Issue Nos.1 & 4:
11.The facts mentioned in the table below are not in dispute:
Ahmedunnisa Begum (died on 25.05.1998)
Kyruddin Naziruddin Saleemuddin Siraja Farida Sajida Salma Nasreen Ahmed Ahmed Ahmed Begum Begum Begum Begum Begum (Predeceased (died subsequent (predeceased (predeceased (daughter) (daughter) (daughter) (daughter) (daughter son)to Ahmedunnisa son of Ahmedunna son of Ahmedunnisa Begum) Begum) Begum
D2 (daughter) D3 (wife) Plaintif(daughter) D1 (daughter)
D4 to D7 (daughters)
12.While plaintiff alleged that the plaint schedule property belonged to Ahmedunnisa Begum and her sister Shajada Begum by virtue of registered settlement deed dated 31.01.1951, D3 /11/
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pleaded in para No.4 of her written statement that the suit property belonged to her husband Naziruddin Ahmed.
13.D3 examined herself as D.W.2. In para No.4 of her chiefaffidavit she stated that the property belonged to her husband. She filed Ex.B3 which is registration extract of the sale deed marked subject to objection of the learned counsel for plaintiff that it be marked subject to proof. The contention of the learned counsel for the plaintiff is that there is no plea in the written statement of D3 regarding the said sale deed and it was introduced for the first time in the evidence of D.W.2 and hence it does not have probative value.
14.Coming to the contention that there is no plea regarding the sale deed, it is true that D3 has not specifically pleaded in her written statement that her husband purchased the property under the said sale deed, but she did plead that the suit property belonged to her husband. Hence, the said contention has no force.
15.A perusal of Ex.B3 shows that the property therein is 66 cents in R.S.No.11/1 out of the western side of the full extent of 74 cents. The boundaries of the said 66 cents mentioned in Ex.B3 are, the coconuts bunds in the same number belonging to the vendors on the east, the irrigation land of Ahmedunnisa Begum Saheb on the west, puntha and drainage on the north, and coconut garden in the same survey number belonging to the vendors on the south.
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The plaint schedule property is 83 cents in R.S. No.11/1, 21 cents in R.S. No.11/2, 74 cents in R.S. No.11/3, and excluding the joint lane of 024 cents, the plaint schedule extent is Ac.154 cents and it is said to be situated as a continuous plot. The plaint schedule boundaries are, Scavengers colony on the east, property of
Komanapalli Issak, K.Sundara Rao and others on the south, property of Farida Begum and Nazeer Begum on the west, and
Rustumbada drain bund and Road on the north. Thus, it can be seen that the boundaries in the plaint schedule and those in Ex.B3 are absolutely different, and the extents are also different.
Moreover, in Ex.B3, the extent is 66 cents out of the full extent of 74 cents in R.S. No.11/1. So far as the said survey number 11/1 is concerned, in the plaint schedule it is stated that the extent in that survey number is 83 cents out of Ac.113 cents. It is not stated in the plaint schedule that the said extent Ac.113 cents is full extent. Thus, it can be said that both the properties are entirely different. Hence, the evidence of D.Ws.2 and 3 that the property belonged to Naziruddin Ahmed cannot be accepted. Moreover, nothing is elicited out of the crossexamination of P.Ws.1 and 2 to prove that at least 66 cents out of the plaint schedule 83 cents in
R.S. No.11/1 was purchased by Naziruddin under the original of
Ex.B3 sale deed. Hence, it can be concluded that D3 to D7 failed to prove that the above said plaint schedule 83 cents in R.S.
No.11/1 was purchased by Naziruddin Ahmed and it was his own /13/
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property. Similarly, there is no documentary evidence to prove that the entire plaint schedule property belonged to Naziruddin Ahmed.
16.On the other hand, it is the evidence of P.W.1 that the property belonged to Ahmedunnisa Begum and Shajada Begum by virtue of registered settlement deed dated 31.01.1951 and there was partition subsequently between them under the registered partition dated 10.08.1955. Plaintiff in her crossexamination by
D3 to D7 deposed that she cannot say the nature of the documents executed by the father of Ahmedunnisa Begum and Shajada Begum in their favour. However, it is elicited from her crossexamination that Shajada Begum sold away her share and Ahmedunnisa Begum executed a will. Hence, although plaintiff stated that she cannot say the nature of the document executed by the father of
Ahmedunnisa Begum and she does not know whether
Ahmedunnisa Begum and her sister made any arrangement between them in respect of the properties, the same cannot be useful to D3 to D7. Furthermore, D.W.2, who is D3, in her cross examination by the plaintiff admitted that all the properties came from the parental side of her motherinlaw. Her motherinlaw is no other than Ahmedunnisa Begum. Above all, D3 clearly admitted in her crossexamination by the plaintiff that the plaint schedule extent is Ac.154 cents and it fell to the share of her mother. It should be motherinlaw, since it is nobody’s case that the property fell to the share of the mother of D3. Therefore, it can be said that the plaint schedule property originally belonged to Ahmedunnisa /14/
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Begum and her sister and in the partition between them,
Ahmedunnisa Begum acquired the plaint schedule property.
Hence, the evidence of D.W.2 who is D3 in her crossexamination by the plaintiff that she does not know that Ex.B3 was executed by
Ahmedunnisa Begum is not helpful.
17.For the foregoing reasons, it can be said that the plaint schedule property belonged to Ahmedunnisa Begum.
18.Plaintiff propounded Ex.A1 will said to have been executed by Ahmedunnisa Begum. She examined herself as P.W.1 and one of the attesting witnesses as P.W.2. Learned counsel for
D3 to D7 contended that the evidence of these two witnesses in their crossexamination itself goes to show that the will is not proved and it is not genuine. The evidence of the said two witnesses so referred is being discussed below.
19.Plaintiff deposed in her crossexamination by the learned counsel for D3 to D7 that she was not present at the time of the execution of the will and she does not know who were present at the time of the execution of the will and she does not know who are the attestors and the scribe of the will. Plaintiff has not claimed to have been a witness to the will. She might not been present at the time of the execution of the will and she does not know who were present at that time and who are the attestors and the scribe of the will. But, the will is required to be proved to be /15/
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according to law. If any attesting witness could prove the execution of the will, this evidence will not be useful to D3 to D7.
20.Plaintiff examined P.W.2 who stated that he is attesting witness to the will. In para 2 of his chiefevidence, he deposed as follows:
“I submit that I affixed my signatures as first attestor on the registered will No.68 dated 28.10.1993. I have seen, while the testator Ahmed Unnisa Begum Saheba affixed her signature on the Regd Will No.68 dt.28.10.1993 as executant. Ahmed Unnisa Begum Saheba has seen while myself and second attestor affixing our signatures on the Regd Will No.68 dt.28.10.1993.”
21.In the crossexamination, P.W.2 deposed s follows:
“I am a document writer. Begum Saheb is the name of the executant. I can’t say her full name. I came to know as she told me that she executed the will; otherwise I did not know. I personally don’t know the contents in the will. I came know on being informed by her. I don’t know her age. I don’t know whether her age was mentioned the will or not. I have no acquaintance with her signature. The scribe is Koya Ranga Rao. Pulaparti Surya Rao is resident of my village Pasaldeevi. Since the executants is my villager, I know her and I used to go to her house. I got friendship with her son whom I call as Saibugaru for 25 to 30 years. My surname and the surname of the 2 nd attestor is the same, but we are not relatives. The scribe Koya Rangarao is not my guru. I got friendship with Koya Rangarao as he is my codocument writer. It is true that the digit ‘8’ in the date ‘28’ at the left upper column Ex.A1 will is corrected to ‘8’. The signatures of the executants on the four pages of Ex.A1 will are different from each other. Witness adds, the difference in the size. I do not know that not only in the size but in the letters there is difference. It is not true to suggest that the will is forged and the signatures on the will are not the signatures of the executants. It is not true that the will is not valid.” /16/
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22.It is true that P.W.2 deposed that Begum Saheb is the name of the executant and he cannot say her full name and that he came to know since she told him that she executed the will, and otherwise, he did not know. It is also true that he stated that he does not know her age and whether her age was mentioned in the will or not and he has no acquaintance with her signature. It is further true that he admitted that he got friendship with the son of the executant and the digit ‘8’ in the date ‘28” at the left upper column in Ex.A1 will is corrected to ‘8’. He also admitted that the signatures of the executrix on the 4 pages of Ex.A1 will are different from each other and that he does not know that not only in the size but also in the letters there is difference.
23.However, his chief which is extracted above is that he has seen while the testator was affixing her signature on the will and vice versa. This specific evidence has not been challenged in his crossexamination to be false. What is suggested to him is that the will is forged and the signatures on the will are not the signatures of the executants and that the will is not valid. But, it is not specifically suggested to P.W.2 in the crossexamination that he has not seen the executant signing the will and vice versa. Being attesting witness he might not know the full name of the executant and the contents in the will and the age of the executant. It is not necessary for an attesting witness to know the contents in the will /17/
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he attested. What is required is that he should see the executant signing the will or putting thumb impression, as the case may be, and vice versa. To this extent, he has withstood the cross examination.
24.Coming to the difference in the signature of the executants on all the 4 pages of Ex.A1 will and the correction of the digit ‘8’ as deposed by P.W.2 in his crossexamination, one important piece of evidence is the affidavit of D3 which was filed in support of the Writ Petition No.19105/2010. It is marked as
Ex.B1. The said writ petition seems to have been filed by D3 against inter alia the Narasapur Municipality seeking a declaration that the inaction of the Municipality in mutating her name in the
Municipal records with regard to half portion of the house is illegal.
Along with the writ petition, D3 filed the abovesaid affidavit. The relevant portions in the affidavit touching the will are extracted below:
“My husband Late Naziruddin Ahmed has required ½ portion of house property in H.No. 13254, Canal Road, Narsapur municipality, West Godavari Dist through will deed dt. 28101993 from his mother Ahmedunnisa Begum, W/o.Late Ziauddin Ahmed.
The other two sons except my husband were died prior to execution of will dt.28101993.
My motherinlaw executed will deed dt. 2810 1993 bequeathing her properties in favour of her daughters and my husband more particularly in respect of house property bearing no. 13254 located in Narasapur Municipality. As per the said registered will deed dt.28101993 the ½ portion of /18/
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the house towards eastern side was allotted to my husband Late. Naziruddin Ahmed and he remaining ½ portion of the house towards western side was allotted to the daughters of my motherin law.
Then on 19082009 I have made a requisition to the Commissioner, Narasapur Municipality i.e., respondent no. 3 stating all the facts and for mutation of ½ of house property in my name as per will deed dt. 28101993.
I have submitted all the documents i.e. will deed dt.28101993, electricity bills in support of my claim.
If the respondent no.3 not mutated my name as per will deed dt.28101993 I will become homeless and I will be dispossessed from the house and I will deprive my property.
The Inaction of respondent no.3 in mutating my name in municipal records with regard to ½ portion of house property bearing no. 13254 basing on will deed dt. 28101993 is illegal, arbitrary and violative of principles of natural justice.”
25.From the own affidavit of D3, it can be seen that not at one place but at 7 places in the affidavit she admitted the will executed by her motherinlaw Ahmedunnisa Begum. Having admitted the will in the writ petition filed before the Hon'ble High
Court by way of affidavit dated 30.07.2010 which was supported by the verification appended to the affidavit, D3 has taken plea in her written statement in the present suit that her motherinlaw did not execute any will and the will is forged.
26.D3 and her daughter D4 issued Ex.A3 reply notice wherein they alleged that the will is forged. Ex.A3 reply notice is /19/
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dated 18.01.2010. The date of the above said affidavit is
30.07.2010. Thus, subsequent to Ex.A3 reply notice, the above said affidavit was sworn in by D3. The affidavit thus lends absolute support to the evidence of the evidence of the attestor P.W.2 and the case of plaintiff that Ahmedunnisa Begum executed the will.
27.It may be noted that Ex.A3 reply was issued pursuant to Ex.A2 notice dated 18.12.2009 issued by plaintiff and D1, to D3 to D7 wherein plaintiff and D1 took specific plea that Ahmedunnisa
Begum executed a will. It may further noted that in the writ petition, D3 based her claim on the will. As extracted above, she sought her name to be mutated in the records basing on the will in respect of the half portion of the house. Despite all these facts, D3 not only pleaded in her written statement in the present suit that the will is forged, but she also crossexamined P.W.2 to elicit that the will is forged and that there is change in the digit ‘8’ and the signatures of the executants on all pages of the will Ex.A1 are different. But, D3 specifically admitted the will in the affidavit and also the date of the will. D.W.3 in her crossexamination by learned counsel for plaintiff deposed that she read the will after the suit was filed and she came to know about the will when the notice was issued and that the notice was issued without completely reading the will. For all the above reasons, it can be concluded that the plaintiff is able to prove that the will is executed by Ahmedunnisa
Begum and it can be said that it was executed in a sound and disposing state of mind, particularly when D3 herself based her /20/
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claim in the writ petition relying upon the will. Hence, the contentions of the learned counsel for D3 to D7 with respect to the will are not tenable.
28.Learned counsel for the plaintiff contended that a bequest by a Muslim to an extent of 1/3rd share of a nonheir is valid, while learned counsel for D3 to D7 contended that the bequest is not valid.
29.In Abdul Bari case(supra) it has been held that when a disposition is in favour of a nonheir, it is valid and operative in respect of 1/3rd of the testator's estate without the consent of the heirs under Mohammadan Law. It has been further held that a grandson whose father has died in the lifetime of the testator is a nonheir.
30.As extracted in the pedigree above, and even as per the pleadings, there is no dispute that Kyruddin Ahmed and
Salamuddin Ahmed died even before the date of the execution of the will by Ahmedunnisa Begum. Therefore, D2 who is the daughter of Kyruddin Ahmed, and plaintiff and D1, who are the daughters of Saleemuddin Ahmed, can be said to be nonheirs.
Therefore, as held in the above case, Ahmedunnisa Begum is entitled to bequest 1/3rd of her estate to plaintiff, D1 and D2, who are nonheirs, even without the consent of her only living son by then and who was her heir Naziruddin Ahmed. To the same effect, /21/
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is the law laid down in Mohammad Gousuddin (died) vs. Kaza
Moinuddin (died) {2009 (3) APLJ 236}.
31.Now the point is, whether Ahmedunnisa Begum confined the bequest only to the extent of her 1/3rd share in her estate?
32.For the above said purpose, the recitals in Ex.A1 will have to be looked into. The will discloses that by virtue of the settlement deed dated 31.01.1951 and the partition deed dated 10.08.1955, Ahmedunnisa Begum acquired Ac.193 cents in R.S.
No.10 and there was a house bearing D.No.13254. This is the very house in respect of which the writ petition was filed by D3 seeking a direction to the Municipality to mutate her name in the municipal records for half portion of the house.
33.Another property covered by the will Ex.A1 is Ac.113 cents in R.S. No.11/1, 21 cents in R.S. No.11/2, 74 cents in R.S.
No.11/3, acquired in O.S.202/1957.
34.It is stated in Ex.A1 will that 50 cents in R.S. No.10 was bequeathed to Farida Begum (shown as A schedule in the will), 40 cents to Sajida Begum (shown as B schedule in the will), 50 cents to Salma Begum (shown as C schedule in the will), 40 cents to
Nasreen Begum (shown as D schedule in the will). Thus, the total of the A to D schedules is Ac.180 cents in R.S. No.10 out of
Ac.1.93 cents. The remaining 013 cents is mentioned as F /22/
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schedule in the will. It is stated in the will that the house bearing
D. No.13254 on the said 13 cents has to be divided into two, and
Naziruddin Ahmed shall take the eastern side portion, and the 4 daughters (except Siraja Begum who died even by then) shall take the remaining western portion in the house. This seems to be exactly the house seeking mutation of which in the name of D3 for half portion, she filed the writ petition relying upon the will for her name. The Ac.193 cents in R.S. No.10 was thus bequeathed to the 4 daughters and the then living son Nasruddin Ahmed by
Ahmedunnisa Begum.
35.As far as the land in R.S. Nos.11/1, 11/2 and 11/3 is concerned, the total extent mentioned in the will is Ac.208 cents.
It is mentioned in the will that 30 cents in R.S. No.11/1 was given to Siraja Begum who is the daughter of Ahmedunnisa Begum. The extent thus remained was Ac.178 cents. As per Ex.A1 will, it is stated in page 3 that the offspring of the deceased Kyruddin Ahmed and Saleemuddin Ahmed and the then living son Nazirudddin
Ahmed shall take the said Ac.178 cents equally after excluding joint way.
36.Hence, it can be said that the total property mentioned in the will is Ac.193 cents in R.S. No.10, and Ac.208 cents in R.S.
Nos.11/1, 2, 3. The total is thus Ac.401 cents. Out of this,
Ahmedunnisa Begum can bequeath 1/3rd share. It comes to Ac.1 33 cents. The 1/3rd to D2, and 1/3rd to plaintiff and D1 together, /23/
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out of the plaint schedule Ac.154 cents, after excluding the joint way of 024 cents, comes to about Ac.102 cents. It is less than
Ac.133 which Ahmedunnisa Begum is entitled to bequeath to non heirs even without the consent of heirs. In view of these facts and the law laid down in the aforesaid two decisions, the evidence of
D.Ws. 2 and 3 plaintiff and D1 and D2 have no legal right does not have force.
37.It is true by the will Ex.A1, the daughters were bequeathed Ac.180 cents and half of the house to them and the remaining half to Nazirudden Ahmed in the extent of 13 cents and it is also mentioned in the will that 30 cents was given to another daughter Siraja Begum. Whether these extents are in accordance with law or not is a matter between Nasrudden Ahmed and his heirs and/or his 4 sisters or their heirs. But plaintiff and D1 and
D2 being nonheirs cannot grievance, if any, over that matter.
Moreover, in Ex.A1 will it is stated that Ahmedunnisa Begum had previously given Ac.1162 cents in Kopparru village to her sons. If this extent is also taken into consideration, the plaint schedule property is certainly less than 1/3rd share of Ahmedunnisa Begum.
38.Moreover, it may be noted that in the written statement of D3, she pleaded the last sentence of para 3:
“If at all the testator of the alleged will had to bequeath the property without the consent of her only living son, /24/
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she could bequeath only to the extent of 1/3 of her property not more.”
39.Thus, even according to the plea of D3, Ahmedunnisa
Begum was entitled to bequeath 1/3rd share without the consent of
Naziruddin Ahmed who was only heir and living son by the date of
Ex.A1 will. Morever, even D.W.3 deposed in para 4 of her chief evidence that the testatrix has no right to make bequest without consent of her son and she can only bequeath 1/3rd of her property. As held in the above said two cases, the bequest made by
Ahmedunnisa Begum since did not extend more than 1/3rd of her total share as mentioned in the will itself to plaintiff and D1 and D2 being nonheirs, it is valid even without the consent of the then living heir Naziruddin Ahmed.
40.The contention of the learned counsel for D3 to D7 is that the evidence of plaintiff in her crossexamination shows that the suit is liable to be dismissed. The said evidence is:
“I filed the suit for partition of of 'E' schedule property. I filed 'A' to 'E' schedules. 'A' schedule property is 50 cents of agricultural land, 'B' schedule property is 40 cents, plaint 'C' schedule is 50 cents, plaint 'D' schedule property is 40 cents, plaint 'E' schedule property is Ac.178 cents. I sought for partition of 'E' schedule property only. I have not seen the written statement filed by D3 to D7.
41.Plaintiff deposed that she is a housewife and she discontinued Degree. Being so, and being a woman, she might have /25/
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deposed that she filed A to E schedules. The fact that she deposed that she sought for partition of E schedule property only shows that she sought partition of E schedule property. There is only one plaint schedule and not more than that. But, there are A to F schedules in the will Ex.A1. The E schedule in the will is the subject matter of the present suit. Therefore, merely on the evidence of plaintiff extracted above, she cannot be nonsuited.
42.Learned counsel for D3 to D7 contended that the suit is liable for dismissal because of malpleadings, lack of proper pleadings, and ambiguous pleadings, and also because of ambiguity in the prayer as to how many shares should be partitioned and how many shares should be allotted to plaintiff.
Learned counsel for the plaintiff contended that the suit being for partition, the pleadings are sufficient and the prayer is proper, since determination of shares, allotment thereof, can be done at any time and even modification of shares is permitted by law.
43.The contention of the learned counsel for the plaintiff seems to be acceptable, because plaintiff and D1 and D2 are seeking allotment of property as per the will which is valid to the extent of 1/3rd of the share of the estate of Ahmedunnisa Begum to nonheirs who are plaintiff and D1 and D2. The sisters of
Naziruddin Ahmed are not parties to the suit. No party in the present suit sought to bring them on record, perhaps because the daughters of Ahmedunnisa Begum have no claim or grievance, or /26/
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perhaps even if they have any claim or grievance, they can seek necessary reliefs in accordance with law governing the suits for partition, if they are aggrieved by the extent of shares bequeathed under the will other than to the plaintiff and D1 and D2.
44.Another contention of the learned counsel for D3 to D7 is that Nazirudden Ahmed and Syed Khalid were nominated to effect partition as per their wish and plaintiff did not take any steps in enforcing it. Learned counsel contended even according to the plaintiff, the said two persons are administrators and therefore the plaintiff ought to have taken steps in that direction.
45.It is true that in the will it is stated that Nazirudden and
Syed Khalid have to partition as per their wish to the children of her deceased sons. But it has to be noted at the same time that in the very same will it is stated that the children of the deceased sons have to get equally along with Nazirudden Ahmed jointly. So, all that Naziruddin Ahmed and Syed Khalid have to do is to effect partition equally between plaintiff, D1 and D2, and Naziruddin
Ahmed. It is the case of plaintiff that since Naziruddin Ahmed did not effect partition, as per the will, the suit is filed. Hence, the contention of the learned counsel for D3 to D7 has no force.
46.It is contended by the learned counsel for D3 to D7 that as per the Limitation Act, the suit is barred by limitation from 28.05.1998 on which date Ahmedunnisa Begum died.
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47.The notice Ex.A2 was issued by plaintiff and D1 on 18.02.2009. It is true that in para 6 of the plaint it is stated after the demise of Ahmedunnisa Begum, the will executed by her came into force and it was accepted and acted upon and legatees took possession of their respective shares. But, it is not the plea of plaintiff that she came to know about the said will on 28.05.1998 itself. Nothing is brought out of the crossexamination of P.W.1 which will show that plaintiff came to know about the will on 28.05.1998. In fact, he deposed in her crossexamination that she was not present at the time of the execution of the will. Hence, so far as the plaintiff is concerned, it does not appear that the suit is barred by limitation.
48.It is true that as contended by the learned counsel for
D3 to D7, D.W.1 who is D2 deposed in her chiefevidence itself that she attended the obsequies on the death of her grandmother
Ahmedunnisa Begum and came to know that Ahmedunnisa Begum executed registered will. But, because the suit is filed in time, it cannot be dismissed against D.W.1.
49.Ex.B2 is copy of the chiefaffidavit of D.W.1 and it is marked in the crossexamination of D.W.1. She deposed that her name in the original plaint is Nahid Sultana Safavi and in the chief affidavit of D.W.1, the name is corrected. She stated that she does not know whether there are any corrections in para 1 of her chief affidavit. Then she stated that there is correction in her name in /28/
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her chiefaffidavit. In Ex.B2, the name of D.W.1 is mentioned as
Nahid Sultana Safavi and in the chiefaffidavit of D.W.1 filed in the
Court, the name as corrected is Nahid Safavi Syeda. The name of the witness might not have been corrected in the copy of her chief affidavit supplied to the learned counsel for D3 to D7, but D.W.1 stated that her name in her chiefaffidavit is corrected. It is not the case of D3 to D7 that because of noncorrection of the name of the witness in the copy of the chiefaffidavit Ex.B2, D3 to D7 were prejudiced or they sustained any kind irreparable loss. Being related to D2 they must have known the actual name of D2.
Moreover, as stated above, the name of D2 was amended on a petition subsequent to the filing of the suit. Hence, the correction of the name in the chiefaffidavit of D.W.2, without making such correction in Ex.B2, cannot be sufficient to dismiss the suit, particularly when it is not even suggested to D.W.1 in her cross examination by D3 to D7 that the correction caused any injustice to them, and although D.W.1 was crossexamined on 27.7.2018 and nothing was argued on this aspect on behalf of any party.
Moreover, the correction finds initial.
50.Exs.B4 and B5 are adangal copies obtained from Mee seva in which Ahmedunnisa Begum was shown to be pattadar and possessor in respect of Ac.113 cents in R.S.11/2 and 21 cents in
R.S. No.11/3 respectively and the nature of the possession was mentioned as “purchase”. But, these two documents are not helpful, because as stated above, D3 herself based her claim in the /29/
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writ petition on the will and it is held above that the property belonged to Ahmedunnisa Begum. Moreover adangals do not confer title. Ex.A4 is the pattadar passbook in the name of Ahmedunnisa
Begum. This is also not much useful, for the same reasons.
51.Plaintiff deposed in her crossexamination that the plaint schedule property is not in the possession of anyone and she stated that it is to be partitioned. She further stated that no tax is levied for the plaint schedule property and the property is recorded in the Government records in the names of all the parties. D.W.2 deposed in her crossexamination that her motherinlaw used to pay taxes. D.W.2 deposed in her crossexamination by D1 and D2 that after the death of her motherinlaw the respective shares are enjoying their respective shares. D.W.2 and for that matter even
D.W.3 in their chiefevidence claimed that till the death of
Naziruddin Ahmed he was in possession and thereafter his heirs (D3 to D7) are in possession. However, since the suit being for partition, these aspects are not of much importance.
52.For the foregoing reasons, it is held that Ahmedunnisa
Begum executed the will and it is valid for the bequest made by her to plaintiff, D1 and D2, and plaintiff is entitled to partition and separate possession as stated below. Issue Nos.1 and 4 are thus answered.
Issue Nos.2 and 3:
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53. In view of the answer to the above issues, plaintiff shall be entitled to mense profits from the date of suit till delivery of possession of her share from D3 to D7, to be ascertained on a separate application to be filed in that regard in accordance with law. Issue Nos.2 and 3 are accordingly answered.
Issue No.5:
54.In the result:
(a)plaint schedule property (Ac.1.54 cents) shall be divided, into equal three shares and plaintiff and D1 shall be entitled together to 1/3rd share out of Ac.154 cents with separate possession, and D2 shall be entitled to 1/3rd share out of Ac.154 cents with separate possession;
(b) plaintiff shall be entitled to mesne profits from the date of suit till the date of delivery of possession of her share to her from D3 to D7, to be ascertained on a separate application to be filed by plaintiff in that regard in accordance with law.
The suit is accordingly decreed. A preliminary decree shall be passed as aforesaid with costs.
Dictated to the Stenographer Grade – II, transcribed by him,
corrected and pronounced by me in the open court, on this the 21 st day of January, 2019.
Senior Civil Judge,
Narsapur /31/
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APPENDIX OF EVIDENCE
WITNESS EXAMINED
FOR THE PLAINTIFF:FOR THE DEFENDANTS
P.W.1 : K.SafaviD.W.1 : N.Safavi Syeda P.W.2 : P.Venkateswara RaoD.W.2 : Razia Begum D.W.3 : H.Begum Safavi
DOCUMENTS MARKED
FOR THE PLAINTIFF:
Ex.A1/28.10.1993/Registered will No.68 executed by Ahmedunnisa Begum Saheb Ex.A2/18.12.2009/Legal notice by plaintiff
Ex.A3/8.01.2010/Reply notice by D3 and D4 Ex.A4//Pattadar passbook
FOR THE DEFENDANTS :
Ex.B1/03.03.2014/Certified copy of Writ petition in W.P.No.19105/2010 on the file of Hon’ble High Court of A.P Ex.B2//Copy of chiefevidence of D.W.1 in O.S.317/2011 Ex.B3/02.02.1956/Certified copy of sale deed Ex.B4/25.05.2018/Adangal copy Ex.B5/25.05.2018/Adangal copy
SCJ, NSP
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