ALLAHABAD HIGH COURT

MISS. TALAT FATIMA HASAN VS HIS HIGHNESS NAWAB SYED MURTAZA ... ON 31 JULY, 1996

Summarised Judgement

Introduction

This suit for partition of moveable and immoveable properties left by late Syed Raza Ali Khan, Nawab of Rampur, rendition of accounts of income, profits, usufructs and benefits from the said property, and decree for pendente lite and future mesne profits, was filed by the plaintiff in the Court of District Judge, Rampur in the year 1972.

Facts of the Case:

In short the pleadings of the plaintiff are, that late His Highness, Maj. Gen. Sir Syed Raza Ali Khan Sahib Bahadur hereinafter referred to as 'the late Nawab' was the ruler of erslwhile Rampur State in U. P. By an agreement dated 15-5-1949, the late Nawab transferred the entire administration of the Rampur State to the Government of India, w.e.f. 1-7-1949 and granted to the latter, full authority, jurisdiction and power in relation to the territories of the said State. The said agreement also provided in Art. IV that the Nawab shall be entitled to the full ownership use. occupation and enjoyment of all private properties belonging to him on the date of the agreement.

The late Nawab was a muslim of the Shia Sect and the personal law applicable was the Muslim Shia Law. The inheritance of his private properties thus would be governed by the Muslim Personal Law (Shariat) Application Act 1937.

Observation of Court:

It is further pleaded by the plaintiff that certain rights, privileges and title which were guaranteed to the late Nawab when Constitution of India came into effect, were to continue even after his death and were to be enjoyed by his successor who according to the definition as given in Art. 363(22) of the Constitution was to be recognised by the President us Ruler.

It however, is undisputed that moveable’s in sizeable quantity were left by the late Nawab. The dispute between the parties with regard to the exact quantum of the moveable’s would probably have necessitated appointment of an Accounting Commissioner, had the plaintiffs claim of inheritance to a share by succession been established. The plaintiff having failed to establish such claim, in these proceedings now no further step is required in this regard. This issue thus is treated as redundant.

Judgement:

In view of the findings above, on the issues Nos. 2, 5 and 6 the plaintiff had failed to prove any right to the relief of partition, accounting and menses profits in the suit and the same is liable to be dismissed.

The plaintiff's suit is hereby dismissed with costs to the contesting defendant.

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Jharkhand High Court

Mukhtar Ahmad & Ors. vs Mahmudi Khatoon & Ors. on 19 May, 2010

Summarised Judgement

Introduction:

This appeal is directed against the judgment and decree dated 11.07.2000 (decree signed on 22.07.2000) passed by Sri Ajit Prasad Verma, Sub- Judge-IX, Ranchi in Partition Suit No. 164 of 1993 | 53 of 2000, by which judgment after discussing the case of the parties, the learned Subordinate Judge came to a conclusive finding that the plaintiff is entitled to get partition with respect to the properties mentioned in Item nos. 1, 2 and 3 of Schedule A of the plaint, Item no.3 of Schedule B of the plaint and Item no.12 of Schedule C of the Plaint.

Fact of the Case:

 In fact, the properties of most Jainab will be only distributed among the three sons, who are the three appellant- defendant nos. 1, 2 and 3, who will get 2/10th share each and their sister, the plaintiff, Mahmudi Khatoon, defendant no.4, Ahmadi Khatoon, defendant no.5, Shagira Khatoon and defendant no.6, Munira Khatoon will get 1/10th share each being the sons and daughters of Md. Yakub from his wife Most. Jainab, in whose name, the properties stand.

On the other hand, the plaintiff, who have appeared in the appeal as respondent no.1 admits the claim of the defendant nos. 1, 2 and 3 and submits that although the plaintiffs, who are daughters of Md. Yakub and Most. Jainab claimed in the plaint that the properties in Schedule A Item no.1 and Item no.2 were acquired by Md. Yakub, her father, but in the face of the sale deeds Ext. A/2 and A/3 admits that they are exclusive properties of Most. Jainab and also admits that she is entitled to only 1/10th share in Schedule A Item nos. 1, 2 and 3, Item no.3 of Schedule B.

Observation of Court:

After hearing both the parties and after going through the evidences on record, I find that the plaintiff-respondent no.1, Mahmudi Khatoon preferred the partition suit no. 164 of 1993 before the Sub Judge, Ranchi against the three defendant-appellant nos. 1, 2 and 3 and her three sisters namely Ahmadi Khatoon, Sagira Khatoon and Munira Khatoon as defendant nos. 4, 5 and 6.

In the light of the aforesaid discussions, it appears that the properties of Item no. 1, 2 and 3 of Schedule A were proved by defence nos. 1 to 3. The Schedule A Item no.1 property was purchased by Bibi Jainab from one Arthar Barla on 06.03.1964, which was marked as Ext. A/2. Item no.2 is a registered sale deed executed by Md. Yakub in favour of his wife Bibi Jainab on 27.02.1953 which is marked as Ext. A/3 and another registered sale deed executed by Md. Yakub in favour of Bibi Jainab on 10.02.1956 has been marked as Ext. A/4.

No discussion of witnesses is required, since the finding arrived at by the trial court with regard to the properties available for partition have been accepted by the appellant- defendant nos. 1, 2 and 3 and also plaintiff-defendant no.1 and the rest of the non-contesting respondents-defendant nos. 7 to 11 have only objected the case of the plaintiff.

Judgement:

Accordingly, this appeal is allowed and the claim of the appellants that the properties of Schedule A and B can only be partitioned among the sons and daughters of Bibi Jainab is accepted and allowed.

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Madras High Court

Sulaika Bivi And Six Others vs Rameeza Bivi And 10 Others on 20 October, 2000

Summarised Judgement

Introduction:

The defendants 1 to 7 are the appellants. The first appellant is the mother and appellants 2 to 7 are the children of the first appellant through one Late Mohammed Sultan Maracayar. The first respondent is the plaintiff. Respondents 2 to 5 are the sisters and brothers of the first respondent. Respondents 7 to 11 are the legal heirs of the 9th defendant who was the 4th respondent in the first appeal.

Facts of the Case:

The short facts of the case are that the late Mohammad Sulthan Maracayar who had his permanent residence at Pattukottai was having the flourishing business in cycle under the name and style of Deen Cycle Company at Pattukottai. It is stated that the 9th. defendant In the suit one K.Jamal Mohammad, one of the sons was assisting Mohammad Sulthan Maracayar in his last days in the business and that the said Mohammad Sulthan Maracayar executed a will dated 20.1.1956.

Under the Will, he bequeathed properties described in 'A' schedule to the will to the 9th and 11th defendant, and the properties described in 'B' schedule to the will to the first appellant and her children i.e. appellants 2 to 6. It is also stated in the Will that whatever properties that were left out in the Will if and when traced out, should go to 9th and 11th appellants.

Therefore, as per the will, no property was allotted to the plaintiff and defendants 7, 8, 10 and 12. 7th defendant is one of the daughters of the first defendant. 8th and 12th defendants are the daughters of late Mohammad Sulthan Maracayar through his second wife Hazarammal. 10th defendant one K.M.Deen Mohammad is also one of the sons of late Mohammad Sulthan Maracayar through his second wife Hazarammal.

After the demise of late Mohammad Sulthan Maracayar, the plaintiff filed the suit in the year 1972 for partition alleging that the 9th defendant along with the first defendant, taking advantage of the ill-health of late Mohammad Sulthan Maracayar managed to obtain the wilt dated 20.1.1966, that after the death of late Mohammad Sulthan Maracayar, the 9th defendant obtained the signatures of the plaintiffs in some blank papers by stating that they were required for mutation purposes, that later on the plaintiffs came to know about the execution of the alleged will dated 20.1.1966 that the Will was not a true will and that the same was also invalid inasmuch as the consent of the heirs was not assigned to it after the death of the testator, the late Mohammad Sulthan Maracayar.

Observation of Court:

We therefore conclude that the will dated 20.1.1966 executed by late Mohammad Sulthan Maracayar came to be executed as claimed by the parties concerned. Therefore, the claims of the appellants 2 to 6 will have to be worked out on the basis of the application of Muslim Personal Law and we are therefore obliged to set aside the judgment of the learned Single Judge to that extent. So far as that part of the order of the learned Judge in respect of the cross objection is concerned, inasmuch as the learned Judge has proceeded on the misconception that the same was preferred by the 9th and 11th defendant, the said part of the order is liable to be set aside and the same is also set aside. Moreover as against that part of the order, no further appeal was brought before us expressing any grievance at the instance of the first respondent at whose instance only the cross objection was preferred. Consequently the cross objection also fails and the same is dismissed.

Judgement:

Therefore the appeal is thus allowed to the extent mentioned above. There will be no order as to costs.

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Income Tax Appellate Tribunal - Hyderabad

Assistant Commissioner Of ... vs Trustees Of Prince Moazam Jah ... on 28 November, 1994

Summarised Judgement

Introduction:

These eleven appeals by the Revenue are against the order of the Commissioner of Wealth-tax (Appeals) for assessment years 1978-79 to 1988-89. For the sake of convenience, they are being disposed of by this common order.

The common question in all these appeals concerns the assessment made under Section 21(4) of the W.T. Act. The common grounds raised in the appeals are as under :

The CWT (Appeals)-I should have held that the provisions of Section 21(4) are clearly applicable in this case in view of the disputes amongst the children of Prince Moazam Jah leading to a court litigation and also in view of the fact that the ITAT held that the interest of Prince Shahmat Ali Khan was remote and contingent;

The CWT (Appeals should have appreciated the fact that in the light of the Supreme Court's decision reported in 108 ITR 555 matter relating to an assessment should be based on facts only existing as on the relevant date and accordingly he should have held that the beneficiaries in this trust are unknown and that their shares are indeterminate.

Facts of the Case:

In pursuance of an agreement with Government of India and out of natural love and affection, HEH Nawab Sir Mir Osman Ali Khan, Nizam of Hyderabad, created a trust depositing Rs. 1.82 crores with the Government of India with tax-free interest at the rate of 1 per cent per annum on 8-10-1949 for the benefit of his son Walashan Prince Moazam Jah (hereinafter referred to as "the Prince") and his daughter-in-law princess Niloufer, wife of the said Prince.

The Trustees filed the return offering the interest of the beneficiaries under Section 21 (1) of the W.T. Act declaring the value of interest of the Prince stating therein that the interest of the Prince is offered in his assessment directly under Section 21(2). No value seems to have been declared in the returns for the interest of the remainder man, Prince Shahmat Ali Khan and of the residuary interest under Section 21(lA) of the WT Act. The assessments of Prince Shahmat Ali Khan were reopened to include the remainder man's interest. Similarly, the assessments of the Trust were reopened to include the residuary interest under Section 21 (4) of the Act.

Observation of Court:

We have heard the parties and considered their rival submissions. We are concerned in these appeals only with the validity of the protective assessments under Section 21(4) of the WT Act which are made on the ground that there was an alleged dispute regarding remaindermen, raised by the assessee before the Commissioner (Appeals) in the case of Prince Shahmat Ali Khan. The dispute is stated to be that a part of the property was gifted by the Prince to his daughter Sb. Fatima Fouzia born through Razia Begum who was not recognised by the Nizam as wife of the Prince.

Judgement:

Taking into consideration the aforesaid, we are of the opinion that the Wealth-tax Officer was not justified in invoking the provisions of Section 21(4) of the WT Act by treating the Trust to be non-specific wherein the shares of the beneficiaries were not identifiable or were indeterminate on the alleged dispute raised by the daughter of the Prince, Sb. Fatima Fouzia. The CWT (Appeals) was, therefore, justified in cancelling the assessments made on the Trustees under Section 21(4) of the Act. His order is upheld.

In the result, the appeals are dismissed.

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Delhi High Court

Abdul Majeed & Anr. vs Hammad Ahmed & Ors. on 27 November, 2018

Summarised Judgement

Introduction:

The present interlocutory appeals are from a common order of a learned Single Judge, made in two suits. The first suit [CS(OS) 162/2017- hereafter "the first suit"] - filed by Asad Mueed (who and his brother Abdul Majeed are called the "Asad Mueed" group), is primarily against Hammad Ahmed and his son Hamid Ahmed (hereafter "Hammad" and "the Hammad group") seeking reliefs in effect, for the said Hammad group ought to be removed from the position of trustees of Hamdard Laboratories (hereafter "HLI" or "the trust"). The second suit - CS(OS) 211/2017 (hereinafter "the second suit") was filed by Hammad against the Aswad Mueed group The second suit seeks a declaration that Abdul Majeed was no longer Mutawalli of Hamdard Laboratories (India) (hereinafter "HLI") on the ground that he was in breach of obligations under the Trust Deed dated 28.08.1948 as amended from time to time. Permanent injunction was also sought to restrain Abdul Majeed from continuing as Mutawalli of the Trust.

Facts of the Case:

The facts are that one Janab Abdul Mueed, father of Asad Mueed and Abdul Majeed, was the eldest son of the trust's Wakif Mutwalli, i.e. Haji Hakim Abdul Hamid (hereafter "Wakif Mutuwalli"). The said Wakif Mutuwalli was the son of the trust's founder, Hakim Hafiz Abdul Majid. Abdul Mueed, his son (and brother of Hammad) was the first Chief Mutawalli of HLI; he assumed the office of Chief Mutawalli upon the death of the Wakif Mutuwalli and held it till his demise in March, 2015.

The first suit (OS 164/2017) alleged that in 2006, Hammad who was in-charge of the Marketing and Sales Department of HLI was ousted due to his involvement in various acts of defalcation of organizational monies. Various civil and criminal proceedings were initiated against him. It was alleged that in 1998, Hammad Ahmed, as head of Marketing & Sales of HLI appointed Eden Enterprises Pvt. Ltd., a non-existent entity as distributor of HLI products. That entity came into existence after the appointment of Eden Enterprises Pvt. Ltd. as distributor; it had a share capital of `3,000/- and its promoter was one Shammi Tandon, a subordinate. Within a span of few months, HLI products worth crores were given to the said enterprise by the second defendant being head of Marketing & Sales without payment of sale price. The said enterprise did not pay the price of the goods as a result wrongful loss of `1.76 crores was caused to HLI. Criminal Complaint Case No.7/1/2012 is pending against the second defendant and others in this regard, besides CS(OS) 59/2011 for recovery of the siphoned goods / proceeds.

Observation of Court:

In the opinion of this court, the designation of Abdul Majeed as Secretary or Nazir, i.e second in seniority of the Chief Mutawalli (whose position was known and accepted during the life time of the Wakif Mutawalli) prima facie is a strong circumstance that the plain "lineal male primogeniture" rule of succession applied to the office of Chief Mutawalli, rather than an uncertain collegial "ambulatory" lineal succession which is more likely to lead to disputes. The indication in the Deed and the conduct of the parties are strong circumstances to prefer this interpretation. This court, therefore, is of the opinion that the view of the single judge on this aspect was based on an incorrect interpretation of the relevant terms of the Deed.

Judgement:

The appeals therefore succeed, but subject to the above terms. The parties are directed to appear before the single judge, for further hearing, on 10.12.2018. The appeals are allowed in the above terms.

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Delhi High Court

Mohd Farooq Khan vs Zubeda Khatoon And Ors. on 22 March, 2013

Summarised Judgement

Introduction:

The plaintiff (Mohd. Farooq Khan) has filed a suit for partition and injunction. He is the son of Abdul Waheed Khan who was the owner of a double storied house bearing No. C-24/A, Block-C, Okhla Vihar, New Delhi-110025. Abdul Waheed Khan had died on 05.08.2006 leaving behind his widow, two sons and three daughters. Defendant No. 1 who is the widow of late Abdul Waheed Khan and defendant No. 5, her daughter are occupying a part of the suit property. Defendants No. 2, 3 and 4 the other legal heirs are stated to be residing separately.

Facts of the Case:

Plaintiff claims to be in occupation of two rooms, one kitchen, toilet and bathroom on the ground floor. The averment made in the plaint decipher that the plaintiff is apprehensive that defendants No. 1 and 5 would disturb his peaceful possession in the suit property. The present suit has been filed seeking a partition of the suit premises as also a decree of injunction restraining defendants No. 1 and 5 from interfering with his peaceful possession in the suit property.

The appellant is aggrieved by the impugned order. His submission is that it is not a reasoned order and while not granting relief to the plaintiff on any count no reasons have been given in the impugned order.

On behalf of the appellant, it is submitted that the order of the trial court suffers from a gross infirmity; attention has been drawn to the report of the Station House Officer (SHO) dated 30.06.2010 of the concerned police station wherein it has been noted that the appellant was in possession of the property and was occupying two rooms at the ground floor having an entrance from the back side and the bathroom and the toilets were in common usage of the plaintiff and the tenants of defendant No. 1. Submission is that this report has been ignored; the appellant being in physical possession of the suit property could not have been denied the right of the essential service of electricity without which no human being can live with dignity.

Observation of Court:

A suggestion has been put to the learned counsel for the respondents that a sub-meter can be affixed for the appellant and he can pay his separate electricity charges. This suggestion having been negatived; accordingly, the appellant is permitted to get a sub-meter installed in the premises at his expense. Needless to state that the electricity charges will be borne by the appellant.

The appellant also admittedly being in common use of the toilet and bathroom which were being shared by the appellant, his family and the tenants of defendant No.1, the appellant and his family are permitted to continue to use this facility and the access of the appellant and his family to this portion of the property will be from the back side of the suit property. This arrangement was also noted in the status report filed by the concerned SHO. Status quo ante is accordingly restored. This being only a prima facie view, the aforesaid arrangement shall continue during the pendency of the suit.

Judgement:

Appeal is disposed of in the above terms. No orders as to costs. CM Nos. 11450/2012 (stay) & 11451/2012 (for direction) 17In view of the orders passed in the appeal, these applications stand disposed of.

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Delhi District Court

Nasim Bano vs Intizar Ahmed & Ors on 18 July, 2014

Summarised Judgement

Facts of the Case:

Plaintiff has filed the present suit for partition, possession and permanent injunction on the ground that plaintiff and defendants are brothers and sisters. Late Sh. Hanifa Begum was the absolute owner of property bearing H. No. M-287, near Bismillah Masjid, Gali No. 1, Subhash Mohalla, Maujpur Delhi measuring 55 Sq. Yds. (hereinafter to be referred as the suit property).

The mother of the parties to the suit died intestate and therefore, the parties to the suit inherited the suit page 1 of 4 property as per Muslim Succession Law and plaintiff as well as defendants have become co-owners of the suit property by operation of law and are entitled to 1/8 shares in the suit property.

It is further stated that in the plaint that the suit property has not been partitioned amongst the co-owners and defendant no. 1 is in use and occupation of the suit property with the permission of the plaintiff and defendants no. 2 to 6. The ownership documents of Late Hanifa Begum and previous chain of title deed pertaining to the suit property is in possession of defendant no. 1. Plaintiff and defendant no. 2 to 6 had requested the defendant no. 1 to partition the suit property and deliver their respective shares, however, defendant no. 1 has flatly refused and threatened to usurp the suit property by creating third party interest.

In his written statement defendant no. 1 has interalia claimed that plaintiff has got no right in the suit property. The suit property is a self acquired property of the defendant no. 1. Defendants have purchased the same with Kifayatullah on the basis of a GPA dated 14.03.2000. It is also stated that the mother of defendant was owner of a property bearing no. 12A/92, Vijay Mohalla, Gali No 11, Maujpur Delhi-53 which was disposed of by her for Rs. 13,80,000/- for the marriage of her two daughters namely Shaher Bano and Husan Bano.

Observation of Court:

I have heard the submissions of Ld. counsels for the parties and gone through the record of the case.1 have been changed as the signatures of the seller Kifayatullah are apparently different on the first and second page of both the documents. This court is of the considered opinion that at this initial state this court can not form any final opinion either in regard to the defence raised by defendant no. 1 or the claim made by plaintiff and both the parties are required to establish their respective stands by page 3 of 4 leading their evidence.

Judgement:

Keeping in view of these facts and circumstances, the present suit can not be rejected. The preliminary issue is disposed of accordingly.

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Delhi High Court

Sheikh Anis Ahmad vs State & Ors on 16 March, 2011

Summarised Judgement

Introduction:

This is an appeal filed by the appellant who sought letters of administration regarding Will dated 20.11.1984 allegedly executed by Mst. Nawab Begum, the deceased testatrix. The third respondent on the other hand contested the said probate petition. While describing the will relied upon by the appellant as forged and fabricated, she also set up another Will dated 05.06.1992 alleged to have been executed by Mst. Nawab Begum, the deceased testatrix in her favor bequeathing whole of her property which is a registered document and had been also attested by two witnesses.

Question of Law:

Whether the deceased Smt. Nawab Begum had executed any valid will dated 5.6.1992 in favour of respondent no. 3 Mst. Gohar Sultan while in sound and disposing mind and in the presence of at least two attesting witnesses? If so, its effect?

If issue no. 1 is not proved then whether Mst. Nawab Begum had executed any valid will dated 20.11.1984 in favour of petitioner Sheikh Anis Ahmed while in sound and disposing mind and in the presence of at least two attesting witnesses? If so, its effect?

Observation of Court:

The trial Court vide impugned order accepted the Will set up by the respondent as genuine and valid even though the only attesting witness examined by the said respondent has not supported her. While deciding issue No.1 in favor of the respondent, the learned ADJ has not given any finding on issue no. 2 on the pretext that the will set up by the third respondent was later in time and thus superseded the earlier will propounded by the appellant and thus dismissed the petition filed by the appellant. However the Court has granted the probate of the Will dated 05.06.1992 in favor of respondent No.3.

It is further submitted that even though it is the case of the third respondent that the deceased testatrix signed the Will Ex.OW2/1 in presence of two attesting witnesses while only one witness i.e. Malik Mohd. Tanvir was examined as OW3, who has stated that he does not know Nawab Begum and that she did not sign the Will in his presence nor he signed in her presence.

In view of that the Judgment/order passed by the ADJ in respect of issue No.1 cannot be sustained. Consequently, the appeal is allowed.

Judgement:

However, as the ADJ has not given any finding on issue No.2 despite availability of evidence, the case is remanded back to the ADJ to decide Issue No.2 on the basis of the evidence led on behalf of the appellant and to return a fresh finding on issue No.3. Parties to appear before the Addl. District Judge on 28.03.2011. The Addl. District Judge will decide the matter afresh taking into consideration the observation made by this Court above within a period of one year from the date of appearance of the parties.

With these observations, the appeal is disposed of with no orders as to costs.

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Allahabad High Court

Smt. Shanti Devi Wife Of Sri Jhunni ... vs Government Of U.P. Through ... on 28 March, 2006

Summarised Judgement

Facts of the Case:

Though the present petition has been filed assailing the order dated 26.7.2005 passed in revision No. 73/02-03 passed by Deputy Director Consolidation, Mohammdabad, a disconcerting feature forced itself on my notice that the original record containing original document of the petitioner had been missing since the year 1983 and further that the case has been lingering decision for the last 25 years and also noticing that despite peremptory direction of the Court embodied in writ petition No. 883 of 2004 to reconstruct the record and to expedite disposal of the case, no headway had been made to the detriment of the interest of the petitioner, it was directed by means of order dated 6.3.2006 that Sri D.S.Pathak, Deputy Director Consolidation Farukhabad shall put in appearance before this Court on 28th March 2006 alongwith the record of case No. 5152 decided on 25.6.1983.

Observation of Court:

Before parting, it should be noticed that a disapproving practice on the revenue side/consolidation side has been in vogue and it cannot be said that the practice of removing records to their respective residences by the officials working in the revenue courts/consolidation courts has gone unnoticed by the authorities. In the various subordinate courts, the practice was completely banned by means of various circulars issued from time to time by this Court followed by harsh action against the erring officials.

As stated supra, Since F.I.R. has already been lodged in the matter, the S.S.P. Farukhabad is directed to supervise investigation into the matter regard being had to the allegations made in the writ petition of certain hands bearing hand in the disappearance of record and submit a report to this Court on the date fixed listing the steps taken by the Police in the matter.

Judgement:

Office is directed to supply a certified copy of this order to the learned Standing Counsel and also Chief Standing counsel for onward transmission to the State Government. A Copy be also transmitted within a week from today to the Chief Secretary, State of U.P. for necessary information and action.

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Madras High Court

Sulaika Bivi And Six Others vs Rameeza Bivi And 10 Others on 20 October, 2000

Summarised Judgement

Introduction:

The defendants 1 to 7 are the appellants. The first appellant is the mother and appellants 2 to 7 are the children of the first appellant through one Late Mohammed Sultan Maracayar. The first respondent is the plaintiff. Respondents 2 to 5 are the sisters and brothers of the first respondent. Respondents 7 to 11 are the legal heirs of the 9th defendant who was the 4th respondent in the first appeal.

Facts of the Case:

The short facts of the case are that the late Mohammad Sulthan Maracayar who had his permanent residence at Pattukottai was having the flourishing business in cycle under the name and style of Deen Cycle Company at Pattukottai. It is stated that the 9th. defendant In the suit one K.Jamal Mohammad, one of the sons was assisting Mohammad Sulthan Maracayar in his last days in the business and that the said Mohammad Sulthan Maracayar executed a will dated 20.1.1956. Under the Will, he bequeathed properties described in 'A' schedule to the will to the 9th and 11th defendant, and the properties described in 'B' schedule to the will to the first appellant and her children i.e. appellants 2 to 6. It is also stated in the Will that whatever properties that were left out in the Will if and when traced out, should go to 9th and 11th appellants.

Therefore, as per the will, no property was allotted to the plaintiff and defendants 7, 8, 10 and 12. 7th defendant is one of the daughters of the first defendant. 8th and 12th defendants are the daughters of late Mohammad Sulthan Maracayar through his second wife Hazarammal. 10th defendant one K.M.Deen Mohammad is also one of the sons of late Mohammad Sulthan Maracayar through his second wife Hazarammal. After the demise of late Mohammad Sulthan Maracayar, the plaintiff filed the suit in the year 1972 for partition alleging that the 9th defendant along with the first defendant, taking advantage of the ill-health of late Mohammad Sulthan Maracayar managed to obtain the wilt dated 20.1.1966, that after the death of late Mohammad Sulthan Maracayar, the 9th defendant obtained the signatures of the plaintiffs in some blank papers by stating that they were required for mutation purposes, that later on the plaintiffs came to know about the execution of the alleged will dated 20.1.1966 that the Will was not a true will and that the same was also invalid inasmuch as the consent of the heirs was not assigned to it after the death of the testator, the late Mohammad Sulthan Maracayar.

Observation of Court:

We therefore conclude that the will dated 20.1.1966 executed by late Mohammad Sulthan Maracayar came to be executed as claimed by the parties concerned. However there is no scope for applying the terms of the said will in respect of the Minor appellants 2 to 6 with reference to whom there was no scope for accepting the terms of the said will after the demise of the late Mohammad Sulthan Maracayar.

Therefore, the claims of the appellants 2 to 6 will have to be worked out on the basis of the application of Muslim Personal Law and we are therefore obliged to set aside the judgment of the learned Single Judge to that extent. So far as that part of the order of the learned Judge in respect of the cross objection is concerned, inasmuch as the learned Judge has proceeded on the misconception that the same was preferred by the 9th and 11th defendant, the said part of the order is liable to be set aside and the same is also set aside.

Judgement:

Moreover as against that part of the order, no further appeal was brought before us expressing any grievance at the instance of the first respondent at whose instance only the cross objection was preferred. Consequently the cross objection also fails and the same is dismissed. Therefore the appeal is thus allowed to the extent mentioned above. There will be no order as to costs.

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 AS - 29122019