Adam Ali v. Altaf Hussain And ORS.

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IN THE HIGH COURT OF JUDICUTURE AT BILASPURJC^ri

FIRST APPEAL N0.

M /2011 APPELLANT :

ADAM ALI AGED ABOUT 56 YR£ S/0 IBRAHIM BHAI BOHRA J\'\t-.:. R/ O SAKIN JUNI LINE, BILASPUFv DEFENDENTNO.l ,..-•' CHHAmSGARH.

VERSUS

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TAH-ABHANPUR, /i'

DISTT:RAIPUR(C.G.) RESPONDENT DEFENDENT N0.2 2./ MOHSIN ALI AGED 50 YEARS S/0 RAJABBHAI DAVAWAi.A R/0 SAKIN JUNI LINE. BILASPUR RESPONDENT 3.

MOQLCHAND KHANDELWAL P^EFENDENT N0.3 > AGED70YEARS S/0 CHIRANJEEV LAL KHANDELWAL R/0 SAKIN GOLE BAZAR NEELKAMALHOTEL, GOLEBAZAR, BILASPUR (C.G.;

RESPONDENT ,A.

MOHD. RAFEEQ BUKHARI AGED 0EFENDENTN0.4 4t^% .^'u^'

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AGAINST THE JUDGEMENT AND DECREE PASSED BY 9TH ADDiriONAL DISTRICT JUDGE.

BILASPURLF.T.C.) IN CIVIL SUIT N0. 20A/2004.

DECREEINGTHE^UITFOR POSSESSION OF THE SUIT HOUSE ON 1^12/2010.

^ :^ HIGH COURT OF CHHATTISGARH AT BILASPUR Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.I.S.UBOWEJA, JJ.

First Appeal No.4 of 2011 Adam Ali Appellant

Versus

Altaf Hussain and others ResDondents ;??;,i»2r";-"i.And s:Si:is^ First Appeal No.49of2012 Appellant AltafHussain

Versus

AdamiAli and others Respondents JUDGMENT^I=©RCONS1DERATION Sd/- T.P. Sharma Judge Hon'ble Mr.l.S.Uboweja, J.

-^ Sd/- Inder Singh Uboweja Judge POST FOR PRONOUNCEMENT OFTHE JUDGMENT ON: 22/12/2014 Sd/- T.P. Sharma Judge

^9.0 y^^ F,A.Nos.4of2011 & 49 of 2012 •\ 'fu:..:

HIGHCOURT OF CHHATTISGARH AT BILASPUR Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.I.S.UBOWEJA, JJ.

FirstABBeal No.4 of 2011 Appellant Adam Ali

Versus

Respondents 1.

Altaf Hussain 2.

Mohsin Ali (died) 2A. Smt.FaridaVanak 2B. Munira Vanak 2C. Must NazeerVanak 3.

IStbdWand Khandelwal i3.

Mohd.Rafeeq BuKhacipeleted) 5.

Municipal Corporation, Bilaspur And :"-'''::^'

First ADpeal N6.49 of 2012 Appellant AltafHyssain i Afersus Respondents 1.

Actam'jMi:,;;

2.

rlVlohsinAli (d(ed) 2A.; SiTitiEarida Vanak 2B.Munira^/anak 2C. Must NazeerVanak 3.

Moolch&nd Khandellal 4.

Municipal Corporation, Bilaspur (FIRST APPEALS UNDER SECTION 96 OF THE CPC) Mr.Shri Kumar Agrawal, Senior Advocate with Mr.Anand Kumar Gupta, counsel for appellant in F.A.No.4 of 2011 and for respondent No.1 in F.A.No.49of2012.

Mr.K.A.Ansari, SeniorAdvocatewith Mr.Devesh Kumar Kela, counsel for AltafHussain.

Ms Pushpa Dwivedi, counsel appears on behalf of Mr.Ashutosh Singh Kachhawahha, counsel for Municipal Corporation, Bilaspur. None present fpr oth^r respondents.

^ai F.A.Nos.4of2011 & 49 of 2012

JUDGMENT

(Deliveredon 22nd December, 2014) The following judgment of the Court was delivered by T.P.Sharma, J:-

1. F.A.No.4 of 2011 filed by appellanVdefendant No.1 Adam Ali and F.A.No.49 of 2012 filed by appellanVplaintiffAltafHussain against the judgment and decree dated 15.12.2010 passed bythe 9th Additional District Judge (F.T.C.), Bilaspur, in Civil Suit No.20A/2004, whereby the trial Court has partially decreed the suit for declaration oftitle, permanent injunction and possession in favour of plaintiff-Altaf Hussain are being disposed of by this common judgment.

2. As per plaintallegation, ptartiessare governed by Sunni Law. One Karam Hussain wassewiVftD|;3tKig?shops; hE)t;ise|and|godown situate at Bilaspur shown inlialaint having one daughter namely Nafis Akhtar, wife of plaintiff A[t^ftl-fi|ssain. Defendant Adam Ali was brought up byKaram Hussain and wrasresiding with Karam Nussain since hewas aged about oneyear, Karam Hussain solemnized his marriage and he was working under Karam Hussain as servant. By taking bengfitEJfcoldness and illness of Karam Hussain, defendant Adam Ali succeeded in getting his signature upon blank stamp paper and subsequently same was-farged as will dated 25.4.84 with a view to debar the daughter ofiKarainil-tussairKfrom her right of inheritance.

Afler death of Karam Hussain, his'only daughter Nafis Akhtar inherited the property left by Karam Hussain and came into possession. Aadam Ali was cleyer person and by taking benefit of position of Nafis Akhtar, who was parda nasin, defendant Adam Ali deposited Rs.20,000-20,000/- in a fixed deposit in the name of Nafis Akhtar and also succeeded in adding his name. He has also lodged false report against Nafis Akhtar on 12.7.85 and succeeded in getting one consent letter in his favour relating to alleged will executed by her father.

Substantially-on the ground that defendant Aadam Ali, who was servant of deceased Karam Hussain and Karam Hussain has not executed any will dee-d in his<Tavour and Nafis Akhtar has not consented the will in accordance with Muslim law, suit for declarationoftitle, permanent injunction, possession and mesne profit was filed by Nafis Akhtar, daughter of Kar?m Hussain on 27.6.87.

3.

By filing written statement, defendant Adam Alj has denied the adverse allegation and has pleased that he was brought by Karam Hussain, Karam

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6. We have heard leaned counsel for the parties, perused the judgment & decree impugned and record ofthe trial Court.

7. Mr.Shri Kumar Agrawal, learned Senior Advocate along with Mr.Anand Kumar Gupta, counsel for the appellant in F.A.No.4 of 2011 and for respondent No.1 in F.A.No.49 of 2012 has vehemently argued that property in question was owned by Karam Hussain, Nafisa Akhtar was his daughter, defendant Mam,/^yw^^gtSg ^p^^<£saFn Hussain, Aadam Ali was assisting Kal'affll-jiussaih in his business ahdl'ie was also partner in his business, s"0n 25.4.84 in presence of witnesses Karam Hussain has exeeuted will deed Ex.D/Sin favourofdefendantAdam Ali inwhich condition N(K3 was mentioned thatAdamAliwillpayRs.40,000/- in FDR in the name of his daughter Nafis. Affer cleath of Karam Hussain Aadam Ali has deposited Rs.40,000/- in FDR'm.thie name of Nafis Akhtar As per clause 190 of the Mohammedan Law,]Karani Hussain was competent to dispose of his property by will to strangerto^theextent of one-third, he was also competent to dispose o^toisleriitire groperty by will to stranger with the consent of his heirs after his death (testator).

8. Learned Senior Advocate has further argued that after death of Karam Hussain, his only heir Nafis Akhtar has given consent in writing on 20.7.85 vide registered consent letter Ex.D/1.

Learned SeniorAdvocate placed reliance of Ex.D/13 i.e. suit filed by original plaintiff Smt.Nafis Akhtar and plaintiff Altaf Hussain against defendant-Adam Ali for declaration and permanent injunction before the 3 CivU Judge Class-11, Bilaspurin Civil Suit No.15A/95, which was returned vide Ex.P/16 on the ground of jurisdiction. Thereafter original plaintiff Nafis Akhtar has amended her plaint relating to the fact that she has never consented, which was hopelessly time barred. Learned Senior Advocate has also argued that suit as filed was time barred.

9. On the other hand, Mr.K.A.Ansari, Senior Advocate with Mr.Devesh Kumar Kela, counsel app§aringfor respondent No.1 in F.A.No.4 of2011 and forthe appellant in F.A.No.49 of 2012 has vehemently argued that undisputedly

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F.A.Nos.4of2011 8.490f2012 original plaintiff Nafis Akhtar was sole heir of Karam Hussain, who died on 29.3.1985, defendant-Aadam Ali is not heir of Karam Hussain, he was brought up by Karam Hussain and he was servant, therefore, Mohammedan Law does not permit him to inherit the property left by Karam Hussain, after death of Nafis Akhtar, plaintiff Altaf Hussain has inherited the property of Nafis Akhtar i.e. plaintiff Altaf Hussain is sole surviving heir of deceased Karam Hussain and is entitled to inherit the property shown in plaint. By committing forgery defendant Adam Ali has succeeded in getting one document in the style of will as Ex.D/3 in his name, which was not executed on 25.4.1984, although he succeeded in getting signature of Karam Hussain upon blank stamp paper which has J,?

een subsequently prepared and under force and pressure of pther- respQndents, defendant Adam Ali has obtained signature ofRlainWj^ltafeHussainandhiSMfeNafisAkhtar upon the alleged consent letterEx.D/1. Plaintiff Altaf Hussain and hiswife have not consented voli.t0:tari!y.ln absence of proofof lawful and due executiqn pf will and in absence of consent of Nafis Akhtar after death of testator, defendant Adam Ali did not become owner 6f theproperty in question. 10.0efendant Adam Ali has hofsharedyin establishing the shops owned by Karam Hussain and this is noUtMe question of only inheritance of immovable property, but also the question (^ inheritance of credibility of business left by Karam Hussain. Learned SeFiior AdyiBGate has further argued that as per evidence of defendant Adafig j9t|i,?

h£':was not having personal kriowledge of the will, will hasnot been executed before him and he came into possession of will latter on. His witness Mohsin Ali (DW-2) has deposed that Karam Hussain has executed will Ex.D/3 before him and they have signed on will Ex.D/3 before Karam Hussain.

He has also deposed that Ex.D/1 was executed by plaintiff Altaf Hussain and his wife before him, but in his crossexamination, he has not approved his evidence given in chief. Hisevidence alone is not sufficient to prove the fact that Karam Hussain has executed will Ex.D/3 and Nafis Akhtar & Altaf Hussain have executed Ex.D/1 as consent letter.

In absence of such document, defendant Adam Ali is not having any right or title over the property.

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3^ F.A.Nos.4 of 2011 & 49 of 2012 11.Learned Senior Advocate placed reliance in the matter of Rani Purnima Debi and another v. Kumar Khagendra Narayan Beb and another in which the Supreme Court has held that surrounding circumstances at the time of execution makes the will suspicious. Learned Senior Advocate further placed reliance in the matter of Ram Piari v. Bhagwant and others in which the Supreme Court has held that in absence of proof of genuine will and signature, will cannot be acted upon. Learned Senior Advocate also , placed reliance in the matter of H.Venkatachala lyengar v.

B.N.Thimmajamma and others in which the Supreme Court has held that in absence of cogent evidence, will cannot be considered as duly and validly executed. Learned counsel relied upon Gurdial Kaur and others v. Kartar Kaur and others^ in wliich^tbCSUpreme Cpurt has held that only registration 6f will is not;sugicienl tb yisp^l suspicioH r|gar8fhg,yalidity of will. Learned Senior Adwocate further placed reliance in the mattgr of Gorantla Thataiah v. Th|^al(ura Venkata Subbaiah and others in which the Supreme Court hiasheld that propoundertakingpromjnentpart, in execution ofarid receiving benefit regarding scrutiny of ^eyidenee of execution and sound disposing state of mind of testator is riot legalsand lawful execution of will. Learned Senior Advocate further plaoed; reliahce in the matter of Shashi Kumar Banerjee and others v. Sybodh Kumar Banerjee since deceased and after him his legal representatives and others in Which the Supreme Court has held that will musf'be.pcoyed by attesting witnesses in terms of Section 63 of the Succession Act.

12. In the present case, by adducing documentary and ocular evidence, both the parties have admitted the existence of will Ex.D/3 and consent letter Ex.D/1. Plaintiff Altaf Hussain has admitted the signature of Karam Hussain upon will Ex.D/3, but has denied the execution ofwill. As per his evidence, defendant Adam Ali succeede'd in getting signature of Karam Hussain upon blank stamp paper and after his death he has forged the document Ex.D/3. He has also pleaded and deposed that, alleged consent letter Ex.D/1 has been obtained by AdamAli under pressure, fear and force. 1AIR1962SC567 2AIR1999 SC 1742 3AIR1959SC443 4AIR1998 SC 2861 5AIR1968 SC 1332 6AIR1964SG529

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F.A.Nos.4of2011 & 49 of 2012 13.Clause 190 ofthe Mohammedan Law reads thus:- "190.Extent of bequeathable property.-A Mohammedan is not entitled to dispose of his property (which would otherwise devolve on his heirs under Mohammedan law) by will in favour ofa person who is not a heir, in excess of one-third except in the following cases:

(1) where subject to the provisions of any law for the time being in force, such excess is permitted by a valid custom;

(2) where there are no heirs of the testator;

(3) where the heirs existing at the time of the testator's death, consent to such bequest after his death;

(4) where the only heir is ttae husband or the wife and the bequest Qfsueh exeessicloesfnotaffect his or her share." 14.As per clause 1tO:Wthe Mohammedan Law.agMol'iammedan iscompetent to beejuesWis property to stranger to the extent of one-thlrd without consent of hisorhere heir. As per sub-clause (3) of Clause 190 of tHe Mphammedan Law, a Mohammedan is also'cQmpetent to bequest his entireproperty on the basis of consent of heirs existing atthe time of death of testator, after his death,to stranger.

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f. f 15.Much stress has been given by plaintjff Altaf Hussain relating to forgery of ^ will, but the fact remain tHiayhie;Rlaintiffl|has admitted the signature of Karam Hussain upon will Ex.D/3. As per para 9 of the plaint, on 19.7.1985, defendant Adam Ali has deposited Rs.20,000-20,000/- in FDR in the name oforiginal plaintiffNafis Akhtar, although itis further pleaded that bytaking benefit of parda nasin defendant Adam Ali alsosucceeded in adding his name, but the fact remain that Rs.40,000/- has deposited in FDR in the name of Nafis Akhtar, which was within her knowledge and was the condition No.3 ofwitt Ex.D/3. Execution ofconsent Ex.D/1 has also not been denied by plaintiff Altaf Hussain which contents the factum of deposit of Rs.40, OOO/- and factum of will executed in favour of defendant Adam Ali. 16.

The plaintiff has tried to explain the circumstance in which the aforesaid document was executed and as per his case, it was executed under pressure, fear and force, it was notvoluntarily execution by consent. Original plaintiff Nafis Akhtar and plaintiff Altaf Hussain have firstly filed civil suit for declaration and permanent injunction against defendant Adam Ali on 27.6.

3 ^ F.A.Nos.4of2011 & 49 of 2012 consent and circumstances for execution of consent letter, first time it was pleaded by amendment in the year 2002, although the plaintiff was having definite knowledge of alleged document and circumstances of consent. She has not refused an amount of Rs.40,000/- deposited in FDR in her favour in compliance of will Ex.D/3. As per evidence of plaintiff Altaf Hussain, at the time of execution of consent letter Ex.D/1, they were under fear, but at the time of filing of first civil suit in the year 1986, at l?ast plaintiff Altaf Hussain and his wife Nafis Akhtar were not under fear, but reason best known to them, they have not pleaded the aforesaid fact in their plaint filed on 27.9.1987.

17.Ex.D/1 clearly discloses the executiorrofwill by Karam Hussain andconsent of his daughter NafisAklitaj'. rhejeQnsent by heir after death oftestator may be implied oEexpiressed'and it is not required tct^give the consent in writing. Conduct olKeirs is material.

IS.DdCurnentary evidence, conduct ofthe plaintiff, the fact that the^plaintiff has not pleaded relating to cireumstance in which the consent letter was executed in his pleading and aceepting FDR consequent to will are sufficient to infer that original plaintiff Nafis Akhtar and plaintiff Altaf Hussain have consented the will after deatH of testator, which also proved the due and ) valid execution of will Ex.D/3! by^Karam tiussain in favour of defendant Adam Ali.

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19.As held by the Supreme Court in the matters of Rani Purnima Debi, Ram Piari, H.Venkatachala, Gurdial Kaur, Gorantla Thataiah, Shashi Kumar Banerjee (supra), will is required to be proved beyond suspicion and only registration of will is not sufficient to infer the due and lawful execution. In the present case, executioh of will has been admitted by plaintiff Altaf Hussain vide consent letter Ex.D/1, the plaintiff has acted upon the will by receiving FDR of Rs.40,000/- and he has given yalid consent. These circumstances are sufficient to establish the factthat Karam Hussain has executed the will Ex.D/3 voluntarily and in fit'state ofmind.

20.The plaint allegation, execution ofconsent Ex.D/1 by heirofKaram Hussain, conduct of heir of Karam Hussain and plaintiffAltaf Hussain were sufficient :i to deny the claim of plaintiffAltaf Hussain, but by the judgmentand decree impugned the trial Court has not considered the aforesaid facts and conduct ofthe parties relating to consent and thereby partially decreed thesuit in :L.-

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F.A.Nos.4of2011 & 49 of 2012 favour of plaintiff Altaf Hussain by ignoring the law relating to will and consent applicable in Mohammedan Law and thereby committed illegality. 21.Consequently, F.A.No.4 of 2011 deserves to be and is hereby allowed, F.A.No.49 of 2012 is liable to be and is hereby dismissed and consequent to suit filed on behalf ofAltaf Hussain is liable to be and is hereby dismissed.

22. Parties shall bear the cost of appeal.

)23.Advocate fee, if certified, as per schedule.

24. Decree be drawn up accordingly.

Sd/- T.P. Sharma Judge Sd/- Inder Singh Uboweja Judge