Civil Procedure Code, 1908 — S. 100 — Scope of second appeal — Substantial question of law — Limits of interference.
Held, jurisdiction under S.100 CPC is confined only to substantial questions of law. High Court cannot substitute its own view for that of the first appellate court unless the findings are contrary to law, or based on no evidence, or otherwise perverse. (Paras 14 & 15)
Evidence Act, 1872 — S. 68 — Proof of Will — Mandatory requirement of attesting witness.
Held, a Will cannot be used in evidence unless at least one attesting witness is examined, if available and capable of giving evidence. Merely examining the identifying witness before the Sub-Registrar or the scribe is not sufficient compliance with S.68. (Paras 26–27)
Indian Succession Act, 1925 — S. 63 — Execution and attestation of Will — Compliance mandatory.
For proof of Will, propounder must show that testator signed the Will in presence of witnesses, who attested it after seeing him sign or acknowledging his signature. In absence of examination of any attesting witness, Will cannot be held proved. (Paras 26–27)
Mohammedan Law — Will — Section 118 of Mulla’s Principles — Bequest to heir — Consent of other heirs — Extent of validity.
Under Muslim law, a Muslim cannot by Will bequeath more than one-third of his property unless the remaining heirs consent thereto after his death. No evidence was led to show any such consent by other heirs. Hence, Will in favour of one heir without others’ consent invalid beyond one-third share. (Paras 25–26)
Mohammedan Law — Gift — Essentials — Declaration, acceptance and delivery of possession.
For a valid gift under Muslim law, there must be (i) declaration by donor, (ii) acceptance by donee, and (iii) delivery of possession. Even if a written or registered deed exists, without delivery of possession, gift is invalid. Ex.A-19 found unproved. (Para 28)
Partition — Mohammedan law of inheritance — Son and daughter — Ratio of shares.
Where both parents are deceased and heirs are one son and one daughter, son takes double the share of daughter as per the “Principle of Tasib” embodied in Surah An-Nisa of the Holy Quran and applied through Muslim Personal Law (Shariat) Application Act, 1937. (Para 30)
Held:
(i) Will (Ex.B-1) not proved as per law;
(ii) Gift (Ex.A-19) invalid for want of delivery of possession;
(iii) First Appellate Court rightly decreed partition granting 1/3rd share to plaintiff (daughter) and 2/3rd share to defendant (son).
No substantial question of law arises for consideration.
Held that : Second Appeal dismissed. Decree of First Appellate Court confirmed. Parties to bear own costs.
(Paras 31–32)
CITATIONS REFERRED
Md. Khalilur Rahman v. Md. Fazlur Rahman, 1986 LawSuit (Kar) 192.
Mohammed Haneefa v. Salim, 2011 LawSuit (Ker) 714.
Allbux v. Allabi, 2007 LawSuit (Kar) 351.
In re Begum Shanti Tufail Ahmad Khan, 2005 LawSuit (All) 2012.
Anarali Tarafdar v. Omar Ali, AIR 1951 Cal 7.
Abdul Manan Khan v. Mirtuza Khan, AIR 1991 Pat 151.
APHC010358572013
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI
(Special Original Jurisdiction)
[3397]
FRIDAY,THE TENTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 506/2013
Between:
S.hussainvalli and Others ...APPELLANT(S)
AND
S Ameena Bee and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1.O UDAYA KUMAR
Counsel for the Respondent(S):
1.NARIKAL PRABHAKAR
The Court made the following:
2025:APHC:42440
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
SECOND APPEAL No.506 of 2013
JUDGMENT:
This second appeal under Section 100 of the Code of Civil Procedure,
1908 (hereinafter referred to as ―CPC‖) is filed aggrieved against the
Judgment and decree, dated 12.12.2012 in A.S.No.38 of 2006, on the file of
learned VI Additional District Judge (Fast Track Court), Tirupati, reversing the
Judgment and decree, dated 27.01.2006 in O.S.No.1465 of 1998, on the file
of learned Principal Junior Civil Judge, Tirupati.
2. The appellant herein is the defendant and the respondent Nos.1 and 2
herein are the plaintiffs in O.S.No.1465 of 1998, on the file of learned Principal
Junior Civil Judge, Tirupati.
3. The plaintiffs initiated action in O.S.No.1465 of 1998, on the file of
learned Principal Junior Civil Judge, Tirupati, with a prayer for partition of
plaint schedule property into 3 equal shares by metes and bounds and allot
1 share to the plaintiffs and put the plaintiffs in separate possession and
enjoyment thereof, for future mesne profits and for costs of the suit.
4. The trial Court dismissed the suit in O.S.No.1465 of 1998, on the file of
learned Principal Junior Civil Judge, Tirupati. Felt aggrieved of the same, the
plaintiffs in the above said suit filed A.S.No.38 of 2006, on the file of learned
VI Additional District Judge (Fast Track Court), Tirupati. The learned VI
Additional District Judge (Fast Track Court), Tirupati, disposed off the appeal
by setting aside the decree and judgment passed by the trial Court and
passed preliminary decree. Aggrieved thereby, the defendant in the suit
approached this Court by way of second appeal.
5. For the sake of convenience, both parties in the appeal Will be referred
to as they are arrayed in the original suit.
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6. The case of the plaintiffs, in brief, as set out in the plaint averments in
O.S.No.1465 of 1998, is as follows:
The suit schedule property was originally an ancestral property of one
Shaik Ibrahim Saheb, who is the husband of the plaintiff No.1 and the father of
the plaintiff No.2 and the defendant and after performing the marriages of his
children, he had gifted 1/3rd share of the house property to his daughter on
24.12.1988, with the consent of the defendant. Thereafter, the said Shaik
Ibrahim Saheb died intestate on 15.05.1991 and during his lifetime, he
executed a Will dated 24.03.1991, under the compulsion of the defendant by
bequeathing the entire property to his wife i.e., the plaintiff No.1 with life
interest and absolute rights over the property to the defendant. The plaintiff
and the defendant are residing jointly by enjoying the property. While so, Late
Shaik Ibrahim Saheb is not entitled to bequeath the entire property as his own
and as such, the Will dated 24.03.1991, said to have been executed by the
father of the plaintiff No.2 and the defendant is null and void. Under the
influence of his wife and others, the defendant is threatening the plaintiffs to
vacate the schedule premises and as disputes have arisen between the
plaintiffs and the defendant, mediation has taken place and the mediators
have suggested the parties to partition the suit schedule property into 3
shares. But, as the defendant is not taking any steps to the partition of the suit
schedule property, the plaintiffs were constrained to file the suit.
7. The defendant filed written statement before the trial Court denying the
material averments in the plaint, except admitting the relationship between the
parties and Late Shaik Ibrahim Saheb and contended as follows:
The suit is not maintainable either in fact or in law and hence the suit is
liable to be dismissed. The defendant denied the averment about Late Shaik
Ibrahim Saheb gifted 1/3rd share of house property to his daughter on
24.12.1998 with his consent. He further pleaded that in the registered Will
dated 24.03.1991, the said Late Shaik Ibrahim Saheb has given a life interest
in favour of the plaintiff No.1 alone and absolute rights over the property to the
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defendant. The defendant had pleaded that he had given a room to the
plaintiff No.1 and the remaining property is under his absolute possession.
Originally, the suit schedule property belongs to his grandfather, by name
Shaik Bade Saheb and the same was devolved upon his father by name
Late Shaik Ibrahim Saheb, under a registered partition deed, dated
16.06.1958 and since then they had been enjoying the absolute rights over
the suit schedule property. The other contention of the defendant is that,
during the lifetime of his father, the defendant had raised a RCC constructed
house in a portion of the property devolved upon him and a Zinc sheet roofed
house in the schedule mentioned premises. After the demise of Late Shaik
Ibrahim Saheb, the defendant had again raised RCC construction in the
remaining portion of the suit schedule premises by raising loans from private
parties and Tirupati Co-operative Bank Ltd., by pledging the same under a
registered mortgage deed with the Bank. He further pleaded that the plaintiff
No.2 is assisting the plaintiff No.1 in all the highhanded activities and causing
trouble to the defendant herein and as such, the suit schedule property cannot
be partitioned. Hence, sought for dismissal of the suit.
8. On the basis of above pleadings, the learned trial Judge, framed the
following issues for trial:
(1) Whether the plaintiff is entitled for partition and allotment of ½
share of plaint schedule properties?
(2) To what relief?
Learned trial Judge also framed the following additional issues:
(1) Whether the gift deed, dated 24.12.1988 is true and valid?
(2) Whether the 2nd plaintiff is entitled for share in the plaint schedule
property?
9. During the course of trial in the trial Court, on behalf of the plaintiff,
P.Ws.1 to 3 were examined and Exs.A-1 to A-19 were marked. On behalf of
the defendants, D.Ws.1 to 5 were examined and Exs.B.1 to B.3 were marked.
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10. The learned Principal Junior Civil Judge, Vijayawada, after
conclusion of trial, on hearing the arguments of both sides and on
consideration of oral and documentary evidence on record, dismissed the suit.
Felt aggrieved thereby, the plaintiffs filed the appeal suit in A.S.No.38 of 2006,
on the file of learned VI Additional District Judge, Tirupati, wherein, the
following point came up for consideration:
Whether the plaint schedule property is required to be partitioned, if so
at what ratio?
11. The learned VI Additional District Judge, Tirupati i.e., the first
appellate Judge, after hearing the arguments, answered the points, as above,
against the defendants and allowed the appeal filed by the plaintiffs. Felt
aggrieved of the same, the defendant in O.S.No.1465 of 1998 filed the present
second appeal before this Court.
12. On hearing both side counsels at the time of admission of the appeal,
on 20.02.2015, the Composite High Court of Andhra Pradesh at Hyderabad
framed the following substantial questions of law:
(a) Whether the lower appellate Court is justified in decreeing the
suit and partitioning the suit schedule property into 3 shares and
awarding one share to the 2nd respondent herein and 2 shares to
the appellant herein on the premise of execution of registered
Will dated 21.03.1991, was not proved?
13. Heard Sri O.Udaya Kumar, learned counsel for the appellant/defendant
and Sri N.Prabhakar, learned counsel for the respondents/plaintiffs.
14. In a second appeal under Section 100 of CPC the High Court cannot
substantiate its own opinion for that of First Appellate Court unless the Court
finds that the conclusions drawn by both the Courts are erroneous being, (i)
contrary to the mandatory provisions of the applicable law or (ii) contrary to
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the law as pronounced by the Apex Court or (iii) based on inadmissible or no
evidence.
15. The jurisdiction of the High Court in second appeal under Section 100 of
CPC is strictly confined to the case involving substantial question of law and
while deciding the second appeal under Section 100 of CPC, it is not
permissible for the High Court to re-appreciate the evidence on record and
interfere with the findings recorded by both the Court below and if the First
Appellate Court has exercises its discretion in a judicial manner, its decision
cannot be recorded as suffering from an error either of law or of procedure
requiring interference in a second appeal.
16. The undisputed facts are the sole-plaintiff filed the suit against the
defendant/son for partition of the suit schedule property and to allot one such
share to the plaintiff. The plaintiff is the mother of the defendant and the
husband of the sole-plaintiff i.e., the father of the defendant by name
Shaik Ibhrahim Saheb died on 15.05.1991 i.e., prior to the institution of the
suit. The relationship between both the parties is undisputed. In the plaint, it
was averred that during his lifetime, the husband of the plaintiff/ the father of
the defendant executed a Will on 24.03.1991, ‗under the compulsion of the
defendant’ by bequeathing the entire property to his wife i.e., the sole-plaintiff
with life interest and the absolute rights over the property to the defendant.
The sole-plaintiff further pleaded that the plaintiff and the defendant are living
jointly by enjoying the property and the Late Shaik Ibhrahim Saheb, is not
entitled to bequeath the entire property as his own, as such, the said Will
dated 24.03.1991, executed by the deceased Shaik Ibhrahim Saheb, is null
and void. During the pendency of the suit, the daughter of the sole-plaintiff
was added as the 2nd plaintiff in the suit, as per the orders in I.A.No.485 of
2002, dated 19.07.2002. It is the specific case of the defendant that originally,
the suit schedule property belongs to his grandfather by name Shaik Bade
Saheb and the same was devolved upon his father Late Shaik Ibrahim Saheb,
under a registered partition deed, dated 16.06.1958 and he executed a
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registered Will dated 24.03.1991. In the plaint, it was specifically averred that
the said Late Shaik Ibrahim Saheb, died intestate on 15.05.1991, during his
lifetime he executed a Will on 24.03.1991, ‗under the compulsion of the
defendant’ by bequeathing the entire property to his wife i.e., the plaintiff with
life interest and the absolute rights over the property to the defendant herein.
The plaintiff who is none other than the mother of the defendant filed the
present suit for seeking relief of partition of the plaint schedule property and
prayed to allot one such share to the sole-plaintiff.
17. It was contended by the learned counsel for the appellant/defendant
that since the Ex.B-1 certified copy of the Will is proved, the
appellant/defendant is entitled to the entire plaint schedule property by virtue
of the Will under Ex.B-1 dated 24.03.1991, executed by his father. Though
the plaintiff had admitted about the execution of Will by the Late Shaik Ibrahim
Saheb, the plaintiff had specifically contended in the plaint itself that under the
compulsion of the defendant only, the said Will dated 24.03.1991, was
executed by the Late Shaik Ibrahim Saheb. Admittedly, the original Will has
not yet been produced by the propounder of the alleged Will. The original Will
is produced by the D.W.5, who is the employee of the Bank at Tirupati, under
which Bank the Ex.B-1 was deposited. The Xerox copy of the Will is filed and
the same is marked as Ex.B-3. The first appellate court held in its judgment
that as per the observation of the trial Judge, the D.W.5 has produced the
original Will for comparison, but the propounder of the Ex.B-1 Will has not
taken any steps to produce the Will. Admittedly, the certified copy of the Will is
only marked as Ex.B-1 through D.W.1 and the Xerox copy of the Will is
marked as Ex.B-3. It is the specific contention of the plaintiff in the plaint itself
that “under the compulsion of the defendant/her son” only the said
original of Ex.B-1 Will was executed by her husband and that she filed the suit
for seeking of partition of the plaint schedule property. It clearly goes to show
that the plaintiff/mother of the defendant is not accepting the Will.
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18. As seen from the certified copy of the Ex.B-1, there are three attestors
to the Ex.B-1 Will. In order to discharge his burden, the propounder of the Will/
sole-defendant failed to examine the attestors in the Will. Learned counsel for
the appellant contended that the 1st attestor is the 2nd plaintiff and the 2nd
plaintiff had consented the Will and she is the 1st attestor in the Will.
Therefore, no proof is required to prove the Ex.B-1 Will. Learned counsel for
the appellant contended that the first appellate Court failed to see that the 2nd
plaintiff consented the Will, executed by her father during his lifetime and did
not objected the loan availed by the defendant, more so, consented to
bequeath the property as per Section 118 of the Muslim Law and that the
plaintiffs are estopped by conduct. As per the plaint averments, under the
compulsion of the defendant only the Late Shaik Ibrahim Saheb executed the
Will and the same is reiterated by the mother and the sister of the defendant
i.e., the 1st and 2nd plaintiffs herein in the plaint in the present suit.
19. As stated supra, in the plaint itself, it was specifically pleaded that under
the compulsion of the defendant only, the Late Shaik Ibrahim Saheb executed
the Will in favour of the defendant, it does not mean that the Late Shaik
Ibrahim Saheb had voluntarily executed Ex.B-1 Will, it also does not mean
that the testator executed Ex.B-1 without coercion and undue influence. There
are three (03) attestors to the Ex.B-1 Will, but, none of the attestors are
examined by the propounder of the Ex.B-1 Will. P.W.1 is one of the attestor
and she admitted her signature as the 1st attestor and she does not admit the
contents of the Will Ex.B-1. Nothing was elicited from P.W.1 by the learned
counsel for the defendant that the Ex.B-1 was voluntarily executed by the Late
Shaik Ibrahim Saheb and the contents of the Will are read over to the testator
and he admitted the contents of the Will and the testator is in conscious state
of mind at the time of execution of the Will.
20. D.W.2 is the identifying witness before the Sub-Registrar and D.W.4 is
the scribe of the Will. It is well settled that the ‗evidence of the identifying
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witness and the scribe cannot be equated with the evidence of the attestor’.
For the reasons best known to the propounder of the Will/defendant, though
the attestors are alive, he did not venture to examine the atttestors to prove
the Will.
21. Learned counsel for the appellant/defendant placed a reliance on the
Judgment of the Karnataka High Court in Md. Khalilur Rahman vs.
Md. Fazlur Rahman1
. The ratio laid down in the aforesaid case law is not at
all applicable to the present case. In the case on hand, it is the specific
contention of the plaintiffs that under the compulsion of the defendant only the
Late Shaik Ibrahim Saheb executed the Will.
22. Learned counsel for the appellant/defendant placed another reliance on
Mohammed Haneefa vs. Salim2
, wherein the Kerala High Court held as
follows:
“11. A Division Bench of this Court in Kunhi Avulla V. Kunhi Avulla, 1963 kerLT
1173 had occasion to consider the very question whether consent of other heirs is
necessary in case the bequest is in favour of not a single heir but to some of the heirs.
Their Lordships held:
The main controversy between the parties is about the effect of Clause 7 of
Exhibit B22. Shri Kuttikrishna Menon contended the disposition therein to be
testamentary in nature and being in favour of some of the heirs not consented to by
the other heirs after the death of the testator void under the Mohammedan Law. That
contention seems to us correct. Unlike the case of Hindu co-parceners, no son can
claim any interest in the properties of a Muslim in his lifetime and the reference in the
aforesaid clause to rights under the Shariat can only be to right of succession on
mammad’s death. In paragraph 117 of the Principles of Mohammedan Law by Mulla,
the learned author observes:
A bequest of an heir is not valid unless the other heirs consent to the bequest
after the death of the testator.
There is no case that the plaintiffs, who are two of the heirs of Mammad, have
subsequent to Mammads’s death, assented to the disposition under Clause 7 of
Exhibit B22, which must therefore fail under the Mohammedan Law. ”
1
1986 LawSuit(Kar) 192
2
2011 LawSuit(Ker) 714
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23. Learned counsel for the appellant/defendant placed another reliance on
Allbux vs. Allabi3
, wherein a Division Bench of Karnataka High Court held as
follows:
“11. Learned Single Judge of this Court while interpreting the scope of Section
118 of Mohammedan Law in the case of Md.Khalilur Rahman V Md. Fazlur Rahman
ILR 1986 Kar. 2115, has held as under:
“ Mohammedan Personal Law dictates that if a Muslim executes a Will,
bequeathing any of his properties or all his properties in favour of one of his
heirs, consent of the remaining heirs would be necessary to validate the
bequest….Knowledge of the bequest and inaction for a long period by an heir
challenging the bequest are sufficient to presume that the said heir had signified
consent by his conduct.”
24. Learned counsel for the appellant/defendant placed another reliance on
In RE:Begum Shanti Tufail Ahmad Khan an Application for Grant of
Probate of the Property and Credut of Executor vs. In RE: Jalauddin S/o
Badruddin4
, wherein the Allahabad High Court held as follows:
“13. In Anarali Tarafdar v. Omar Ali and Ors. AIR (38) 1951 Calcutta 7, it was held
by Calcutta High Court that under the Mahomedan Law a Mahomedan cannot by Will
dispose of more than one-third of his estate unless such bequest in excess of the legal
third is consented by the heirs after the death of the testator……….”
“14. In Abdul Manan Khan v. Mirtuza Khan AIR 1991 Patna 151, Hon’ble
S.B.Sinha, J (as he then was) held relying upon Section 118 of Mullah’s principles of
Mahomedan Law that a Mahomedan cannot by a Will dispose of more than one-third
of the surplus of his assets after payment of funeral expenses an debts. The bequeath
in excess of legal third cannot take effect unless the heirs consent thereto after the
death of the testator……”
25. Section 118 of the Mullah‘s principles of Mohammedan Law says that a
Mohammedan cannot by a Will dispose of more than one-third of the surplus
of his assets after payment of funeral expenses and debts. The bequeath in
3
2007 LawSuit(Kar) 351
4
2005 LawSUit(All) 2012
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excess of legal third cannot take effect unless the heirs consent thereto after
the death of the testator. In the case on hand, there is no evidence on record
to show that the 2nd plaintiff had voluntarily consented the Ex.B-1 Will. Mere
attestation in a Will does not mean that she had consented the Will and she
knows the contents of the Will. Nothing was elicited from P.W.1 that she
consented the Will Ex.B-1 and after knowing the contents in the Ex.B-1 Will
only the 2nd plaintiff attested the Will.
26. The law is well settled that even though the alleged Will is a registered
Will, no importance will be given to the registered Will and it cannot be treated
as a genuine Will unless it is proved in terms of Section 68 of the Indian
Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1956.
Section 68 of the Indian Evidence Act reads as under:
―68. Proof of execution of document required by law to be attested.––If a
document is required by law to be attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its execution, if
there be an attesting witness alive, and subject to the process of the Court and
capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a will, which has been registered in accordance
with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its
execution by the person by whom it purports to have been executed is specifically
denied.‖
It is evident that in cases where the document sought to be proved is
required by law to be attested, the same cannot let be in evidence unless at
least one of the attesting witnesses has been called for the purpose of proving
the attestation if any such attesting witness is alive and capable of giving
evidence and is subject to the process of the Court. Section 63 of the Indian
Succession Act deals with execution of unprivileged Wills and, inter alia,
provides that every Testator except those mentioned in the said provision
shall execute his Will according to the rules stipulated therein. It reads:
―63. Execution of unprivileged wills.—
Every testator, not being a soldier employed in an expedition or engaged in actual
warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his
will according to the following rules:—
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(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by
some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him,
shall be so placed that it shall appear that it was intended thereby to give effect to the
writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the
testator sign or affix his mark to the will or has seen some other person sign the will, in
the presence an d by the direction of the testator, or has received from the testator a
personal acknowledgment of his signature or mark, or of the signature of such other
person; and each of the witnesses shall sign the will in the presence of the testator, but
it shall not be necessary that more than one witness be present at the same time, and
no particular form of attestation shall be necessary.‖
27. In the case at hand, the original Will is not at all produced by the
propounder of the Will and the original Will is not marked as an Exhibit and
admittedly there are three (03) attestors to the Will and none of the attestors
are examined by the propounder of the Will. The propounder of the Will
examined the identifying witness before the Sub-Registrar as D.W.2 and the
scribe of the Will as D.W.4. ―The evidence of D.W.2 and D.W.4 i.e., the
identifying witness and the scribe cannot be equated with the evidence of the
attestor.‖ As stated supra, though it was elicited from the 2nd plaintiff/P.W.1 in
cross-examination that she signed as an attestor in the alleged Will, nothing
was elicited from the P.W.1 in cross-examination by the learned counsel for
the defendant that the Ex.B-1 Will was attested by three (03) attestors
including the 2nd plaintiff, each of whom has seen the testator sign or affix is
marked to the Will or has seen some other person sign the Will, in the
presence and by the direction of the testator or has received from the testator
a personal acknowledgment of his signature or mark and each of the witness
shall sign the Will in the presence of the testator. Nothing was elicited from the
P.W.1 by the learned counsel for the defendant that the contents in the Ex.B-1
are true. It is also not elicited from P.W.1 that on perusal of the contents of the
Ex.B-1, the P.W.1 signed as an attestor to the Will. It is also not elicited from
P.W.1 that by the time of execution of Will, the testator is in a sound and
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disposing state of mind and the contents in the Will are read over to him. The
ingredients of Section 68 of the Indian Evidence Act, 1872 r/w Section 63 of
the Indian Succession Act are missing in the evidence of P.W.1. As noticed
supra, the original Will is not at all produced by the plaintiff, only the certified
copy of the Will is marked as the Ex.B-1. Though the said Will is available in
the Bank, he has not taken any steps to produce the said Will. For the
aforesaid reasons, I am of the considered view that the Ex.B-1 Will is not
proved in accordance with law.
28. The respondent No.2/plaintiff No.2 relied on unregistered gift deed
under Ex.B-19. ―Under the Mahomedan Law three things are necessary for
creation of a gift. They are (i) declaration of gift by the donor, (ii) acceptance of
the gift express or implied by or on behalf of the donee and (iii) delivery of
possession of the subject of the gift by the donor to the donee. The deed of
gift is immaterial for creation of gift under the Mahomedan Law. A gift under
the Mahomedan Law is not valid if the above-mentioned essentials are not
fulfilled, even if there be a deed of gift or even a registered deed of gift. In
other words even if there be a declaration of acceptance of the gift, there will
be no valid gift under the Mahomedan Law if there be no delivery of
possession, even though there may be registered deed of gift.‖
29. The first appellate Judge on re-appreciation of the entire evidence on
record held in its judgment that the 2nd plaintiff has failed to prove that the
Ex.A-19 gift deed is a valid gift. The alleged gift said to have been executed by
her father under Ex.A-19 is dated 24.12.1988 and her father was alive till May,
1991, but the 2nd plaintiff has not taken any steps to mutate the property in her
name. The first appellate Judge by giving cogent reasons held that there is no
evidence before the Court to believe that the 2nd plaintiff has fulfilled the
ingredients required for a valid gift. The said finding is not challenged by the
2
nd plaintiff and the said finding reached its finality. The first appellate Judge
by giving cogent reasons disbelieved the alleged gift and ordered 1/3rd share
in the plaint schedule property to the 2nd plaintiff and no appeal has been
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preferred by the 2nd plaintiff against the judgment passed by the first appellate
Judge.
30. It is undisputed that the parents of the 2nd plaintiff and the defendant by
name Shaik Ibrahim Saheb and S.Ameena Bee are no more. The father of the
defendant died prior to the filing of the suit and the mother of the defendant
died during the pendency of the first appeal. The defendant died on
16.02.2019, i.e., during the pendency of the second appeal and his legal
representatives are brought on record. Except the 2nd plaintiff and the soledefendant, there are no legal heirs to the said Late Shaik Ibrahim Sahem and
Late S.Ameena Bee. Under Muslim Law, the son gets double the share of a
daughter and the rule where the son receives double the share is based on in
a ‘Principle of Tasib’. “The principle that a son receives double the share
of a daughter is a divine directive found in the Holy Quran, specifically
‘Surah-An-Nisa’. In India, the distribution of property for Muslims is
governed by their personal law, as stated in the Muslim Personal Law
(Shariat) Application Act, 1937. This act mandates that the inherence
rules in the Quran are followed.” Therefore, by giving cogent reasons, the
learned First Appellate Court has rightly decreed the suit by awarding one
share to the 2nd plaintiff and 2 shares to the sole-defendant in the partition
suit.
31. After careful consideration, this Court views that the first appellate Court
has properly appreciated the evidence on record while reversing the judgment
and decree passed by the trial Court and by giving cogent reasons, the first
appellate Court held that the plaintiff is entitled the relief of partition in the
plaint schedule property. In the light of the material on record and upon
earnest consideration, now it is manifest that the substantial question of law
raised by the appellant did not arise or remain for consideration. This Court is
satisfied that the case did not involve any substantial question of law for
determination.
2025:APHC:42440
32. Resultantly, the Second Appeal is dismissed, by confirming the decree
and judgment passed by the first appellate Court. Considering the facts and
circumstances of the case, each party do bear their own costs in the Second
Appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
__________________________
V. GOPALA KRISHNA RAO, J.
Date: 10.10.2025
SRT
2025:APHC:42440
29
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Second Appeal No.506 of 2013
Dt. 10.10.2025
SRT
2025:APHC:42440
