Hindu Law does not limit a woman's right to be Karta. Marriage does not terminate a daughter's coparcenary status in her father's HUF. Societal perceptions cannot deny rights conferred by the legislature.
["Division Bench affirms woman as Karta","Statutory enlargement of coparcenary rights includes management rights","Marriage does not terminate daughter coparcenary status","Societal or religious objections cannot override statutory equality","Sole qualification: being senior-most coparcener"]
[Cites 11 , Cited by 0 ]
Delhi District Court
Jamal Mohd. And Anr vs Faiz Mohd. And Others on 3 March, 2025
CS DJ No.614706/2016
IN THE COURT OF SH. JITEN MEHRA, DISTRICT
JUDGE 10, CENTRAL DISTRICT, TIS HAZARI COURTS: DELHI.
CNR No. DLCT01-000880-2012
CS DJ NO.614706/2016
CS No.64/21
1. Jamal Mohd.
S/o Sh. Fida Mohd.
R/o 451, 3rd Floor, Chitla Gate,
Chawri Bazar, Delhi-110006.
2. Jamshed Mohd.
S/o Sh. Fida Mohd.
R/o 2379, 3rd Floor, Kucha Meer Hashim,
Turkman Gate, Delhi-110006.
.....Plaintiffs
Versus
1. Faiz Mohd.
2. Javed Mohd.
3. Raza Mohd.
(since deceased, through LRs)
4. Wali Mohd.
5. Kamal Mohd.
All sons of Late Sh. Fida Mohd.
All r/o 2379, 3rd Floor, Kucha Meer Hashim,
Turkman Gate, Delhi-110006.
6. Ata Mohd.
S/o Sh. Fida Mohd.
R/o 2375, Kucha Meer Hashim,
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.1 of 37
CS DJ No.614706/2016
Turkman Gate, Delhi-110006.
7. Fateh Mohd.
S/o Sh. Fida Mohd.
R/o 2377, Kucha Meer Hashim,
Turkman Gate, Delhi-110006.
8. Mst. Nazma Begum
W/o Sh. Mohd. Laiq
R/o 1693, Gali Saleem,
Pahari Bhojla, Jama Masjd, Delhi - 110006.
9. Mst. Yasmin Begum
W/o Sh. Mohd. Tahir,
R/o 3289, Gali Farhatullah,
Lal Kuan, Delhi - 110006.
10. Mst. Roshan Jahan
W/o Late Sh. Khalid Mehmood
R/o 2379, Kucha Mir Hashim,
Turkman Gate, Delhi-110006.
11. Mst. Husan Jahan
W/o Dr. Anwar Khan,
R/o D-335/36, 3rd Floor,
Nehru Vihar, Delhi.
12. Mst. Tabassum Begum
W/o Late Sh. Yaseen Khan
R/o 2379, Kucha Mir Hashim,
Turkman Gate, Delhi-110006.
13. Mst. Fariya Begum
W/o Mr. Faisal Khan,
1591, Sarai Khalil,
Sadar Nala Road, Sadar Bazaar,
Delhi 110006.
14. Zakia Begum
W/o Late Mohd. Ikram Khan
R/o 1377, Bazar Chitli Qabar,
Jama Masjid, Delhi - 110006. .....Defendants
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.2 of 37
CS DJ No.614706/2016
Date of Institution of the Suit : 26.11.2012
Date on which Judgment was reserved : 17.02.2025
Date of Judgment : 03.03.2025
JUDGMENT
SUIT FOR CANCELLATION OF WILL DATED 28.07.2011 AND
PERMANENT INJUNCTION
1. The plaintiffs have filed the present suit for cancellation of Will
dated 28.07.2011 and permanent injunction against the defendants.
Plaintiff's version as per the plaint
2. The mother of plaintiffs namely Mst. Nasim Begum wife of Late Sh.
Fida Mohd resident of 2379, Kucha Meer Hashim, Chitli Qabar, Turkman
Gate, Delhi was the sole and absolute owner of the entire property built
over an area of 94 sq. yards bearing no.451 (new) and 254 (old), Ward
No.9, inside Chitla Gate, Chawri Bazar, Jama Masjid, Delhi-06 by virtue
of a registered sale deed dated 11.07.1973 which consisted of five shops on
the ground floor alongwith first floor, second floor and the third floor.
3. Out of the five shops on the ground floor, four shops are in
possession of various tenants and one shop/godown on the ground floor
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.3 of 37
CS DJ No.614706/2016
had already been sold by the said Mst. Nasima Begum during her lifetime.
The entire third floor including terrace is stated to be in possession of the
plaintiff no.1 Jamal Mohd. Apart from selling of one shop, said Mst.
Nasima Begum had also sold the first floor and second floor.
4. The plaintiffs and defendants no.1, 2, 4, 7 to 12 are the real sons and
daughters of the said Mst. Nasima Begum, whereas, the defendants no.3, 5
and 6 are the sons of their father Late Sh. Fida Mohd. from his earlier wife
and as such, have no right, title or interest in the property left by said Mst.
Nasima Begum.
5. The plaintiffs have looked after their mother, who was residing with
the plaintiff no.2, and all her day to day needs in the best possible manner
up till her death on 15.04.2012. Even the last rites of Mst. Nasima Begum
were performed by the plaintiffs out of their own funds and the defendants
did not contribute a single penny.
6. After the death of Mst. Nasima Begum, the plaintiffs along-with the
defendants no.1, 2, 4, 7 to 12 are her only legal heirs and entitled to inherit
her estate as per the provisions of inheritance under Sunni Hanafi Muslim
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.4 of 37
CS DJ No.614706/2016
law.
7. It is stated that after the death of Mst. Nasima Begum, the relations
between the plaintiffs and defendants remained cordial, but after passing of
the time, their relations became strained and the defendants started picking
fight with the plaintiffs on trivial issues with intention to usurp the
property in question. The defendants want to dispossess the plaintiff no.1
from third floor and terrace of the suit property forcibly and deprive the
plaintiffs from the shops on the ground floor.
8. On 09.11.2012, the defendants reached the suit premises and
threatened the plaintiffs to dispossess them and also to sell, transfer,
alienate and create a third party interest in respect of the suit premises and
to induct new tenants in the shops of the ground floor. The plaintiffs
immediately reported the matter to the police vide complaint dated
09.11.2012 and thereafter came to know that the defendants had forged and
fabricated a Will dated 28.07.2011 allegedly executed by Late Mst.
Naseema Begum in favour of the defendants.
9. It is further averred in the plaint that mother of the plaintiffs namely
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.5 of 37
CS DJ No.614706/2016
Mst. Naseema Begum was seriously ill from the month of June, 2011 and
was suffering from various age related diseases, including high blood
pressure and was not in her full disposing mind and was not even able to
speak properly. The plaintiffs were taking her care up to the best of their
capabilities. It is the case of the plaintiff that the late mother, during her
lifetime, never discussed or disclosed about the execution of the said Will
to anybody including plaintiffs. The alleged Will is forged and fabricated
by the defendants and is also against the tenets of Muslim Law as a Sunni
Hanafi Muslim cannot disinherit her own sons and dispose her property by
way of will in favour of strangers or persons who are not her heirs.
Therefore, the defendants have got no right, title or interest to forcibly
dispossess him from the suit premises and to create the third party interest
in respect of the suit premises on the basis of said illegal and forged Will.
10. In para no.17 of the plaint, the cause of action is stated to have
arisen in favour of the plaintiff in the following manner:
17. That the cause of action for filing the present suit initially arose on
15.04.2012, when the mother of the plaintiffs expired. It further arose on
09.11.2012, when the defendants tried to forcibly dispossess and create
third party interest in respect of the suit premises. The cause of action
further arose, when the plaintiffs came to the knowledge of the forged and
fabricated Will dated 28.07.2011, when the plaintiff no.1 lodged
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.6 of 37
CS DJ No.614706/2016
complaint with police. It further arose, when the defendants tried to induct
new tenants in the shops after evicting the previous tenants of the Ground
Floor by receiving huge pugree amount and the cause of action for filing
of the present suit is still continuing and subsisting.
(Sic.)
11. The plaintiff thus prays for the following reliefs:
(a) relief of cancellation of Will dated 28.07.2011 allegedly executed
by Mst. Naseema Begum;
(b) a decree of permanent injunction restraining the defendants and
their attorneys, assignees, executors etc. from transferring, selling,
alienating and creating any third party interest in respect of the suit
property.
(c) a decree of permanent injunction restraining the defendants from
inducting any new tenants after evicting the existing tenant in
respect of four shops on the ground floor of the suit property.
Defendants' version as per their written statement:
Written statements of the defendants no. 1, 4, 5, 10 and 12
12. The defendants no.1, 4, 5, 10 and 12 filed a combined written
statement in which preliminary objections were raised that as per the
Shariyat Law, the plaintiff could have filed the suit for partition and not the
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.7 of 37
CS DJ No.614706/2016
present suit for cancellation of Will. It is further submitted that the value of
the suit property is more than Rs.50,00,000/- and hence, the present suit is
beyond the pecuniary jurisdiction of the Court. It is further stated that the
suit filed by the plaintiff is false and frivolous and is liable to be rejected
under Order VII Rule 11 CPC .
13. In the reply on merits, it is admitted that Mst. Nasima Begum wife
of Late Sh. Fida Mohd. was the sole and absolute owner of the entire
property bearing No.451 (new) and 254 (old), Ward No.9, inside Chitla
Gate, Chawri Bazar, Jama Masjid, Delhi by virtue of the legal and valid
documents. It is further submitted that Mst. Nasima Begum was not only
the mother of the plaintiffs but also the mother of the answering
defendants. It is submitted that no shop on the ground floor of the said
property had been sold by Mst. Nasima Begum. It was also denied that the
entire third floor including terrace was in the possession of the plaintiff
no.1.
14. It is further submitted that Mst. Nasima Begum, during her life
time, executed a Will dated 28.07.2011 thereby bequeathing the shop
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.8 of 37
CS DJ No.614706/2016
bearing private no.A in favour of her son Faiz Mohd. Khan (defendant
no.1), shop bearing private no.B in favour of her another son Kamal Mohd.
(defendant no.5), shop bearing private no.C in favour of her other son
Javed Mohd. Khan (defendant no.2), shop bearing private no.D on the
ground floor in favour of her another son Raza Mohd. (defendant no.3) and
the shop bearing private no.E on the ground floor in favour of her other son
Wali Mohd. (defendant no.4). It is further submitted that the defendants
no.1, 4 and 5 have sold their respective shops on the ground floor of the
said property in favour of the purchasers vide legal and valid sale deeds
executed by them. While one shop is in the possession of Javed Mohd
(defendant no.2), the fifth shop on the ground floor has been forcibly and
illegally occupied and trespassed into by the plaintiff no.1.
15. It is further submitted that by virtue of the said Will, the deceased
Smt. Naseema Begum bequeathed the entire third floor, without terrace, of
the aforesaid property in favour of her two sons and two daughters namely
Ata Mohd. (defendant no.6), Fateh Mohd. (defendant no.7), Smt. Nazma
Begum (defendant no.8) and Yasmeen Begum (defendant no.9) and the
roof/terrace of the third floor of the said property has been bequeathed by
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.9 of 37
CS DJ No.614706/2016
the deceased Smt. Nasima Begum in favour of her four daughters namely
Mst. Roshan Jahn (defendant no.10), Husan Jahan (defendant no.11),
Tabassum Begum (defendant no.12) and Mst. Fariya Begum (defendant
no.13).
16. It is alleged therein that the plaintiff no.1 in collusion and conspiracy
with the plaintiff no.2, forcibly and illegally trespassed into one shop on
the ground floor, third floor and the open roof of the third floor of the said
property and due to the torture at the hands of the plaintiffs, the mother of
the answering defendants Mst. Naseema Begum died. Even though the
mother of the answering defendants has debarred the plaintiffs from
inheriting any of her properties, even then, the plaintiffs are in possession
of much more than their share in the said property and the plaintiffs are
liable to handover the physical possession of the portions to the
defendants, i.e. one shop on the ground floor, third floor and roof of the
third floor.
17. The relationship between the parties and Mst. Naseema Begum and
her husband are admitted. It is submitted that the other defendants no.3, 5
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.10 of 37
CS DJ No.614706/2016
and 6, who are the children of Sh. Fida Mohd. From his previous wife are
also entitled to the properties of Mst. Naseema Begum. The plaintiffs are
quarrelsome persons and also used to harass, torture and humiliate the
deceased Mst. Naseema Begum leading to her untimely death. It is
submitted that the children from the previous wife of the husband of the
deceased Mst. Naseema Begum are also entitled to her properties and the
Will executed by her is legal and valid. The plaintiffs have malafide
intention to grab their share and right. Mst. Naseema Begum executed the
Will dated 28.07.2011 in her full senses and she died on 15.04.2012 ie.
after 9 months of the execution of the said Will. It is further submitted that
the defendants are entitled to their shares in the suit property which have
been forcibly and illegally occupied by the plaintiff no.1 in collusion with
the plaintiff no.2 and the plaintiffs cannot be permitted to grab the shares
of the defendants.
Written statements of the defendants no. 3, 6, 7 and 13
18. The defendants no.3, 6, 7 and 13 filed a combined written statement
in which the preliminary objections have been taken therein that the
mother of the plaintiff had not executed any Will to the knowledge of the
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.11 of 37
CS DJ No.614706/2016
answering defendants and even otherwise, the alleged Will dated
28.07.2011 was not permissible in Sunni Muslim law.
19. In the reply on merits, the defendants no.3, 6, 7 and 13 admitted the
contents of the plaint and further stated that they had also helped the
plaintiffs take care of their mother Mst. Nasima Begum. However, the
answering defendants denied that only the plaintiffs and defendants no. 1,
4, 7, 8- 12 were the only legal heirs of their mother. They also denied that
they had picked any fights with the plaintiffs or wanted to usurp the
property of their mother. The incident of 09.11.2012 was also denied as
having never taken place. It was further admitted by the answering
defendants that Late Mst. Nasima Begum was seriously ill and was
suffering from old age related issues and was also not in her full disposing
mind at that time. It was submitted that the alleged will dated 28.07.2011
was a forged and fabricated one. However, the answering defendants
sought dismissal of the present suit.
Written statement of defendants no.2, 8, 9 and 11
20. No written statement was filed on behalf of the defendants no.2, 8, 9
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.12 of 37
CS DJ No.614706/2016
and 11 and they were also proceeded ex-parte vide order dated 08.02.2013.
Written statement of defendant no. 14
21. The defendant no14, Mst. Zakiya Begum, who was a subsequent
purchaser of one of the shops on the ground floor and was impleaded on
the plaintiff's application under order 1 rule 10 CPC , also did not file any
written statement and adopted the written statement filed by the defendants
no. 1, 4, 5, 10 and 12, s reflected in order dated 13.05.2014.
Replication by the plaintiffs
22. In the replication filed by the plaintiffs, the contents of the written
statement filed by the defendants no.1, 4, 5, 10 and 12 were denied and the
averments of the plaint were reaffirmed. It is reiterated that the plaintiffs
are the real sons of Mst. Naseema Begum who according to the alleged
Will have been debarred/dis-inherited as per the defendants. It is denied
vehemently that the plaintiff no.1 illegally trespassed/occupied the 5 th shop
on the ground floor as alleged by the defendants. It is submitted that the
said shop was sold by Mst. Naseema Begum herself during her lifetime. It
is further submitted that Faiz Mohd., Kamal Mohd. And Wali Mohd. have
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.13 of 37
CS DJ No.614706/2016
fraudulently sold the said property after filing of the suit by the plaintiffs
and having received notice/summons from the court and even otherwise,
such transfer is not valid and the subsequent purchasers are also bound by
the present suit. It is further submitted that the defendants have admitted
that the plaintiffs are in possession of the suit premises and the factum of
the share of the plaintiffs in the said property.
Relevant proceedings in the suit
23. An application under Order 1 rule 10 CPC was filed by the plaintiff
no.1 seeking to implead one Smt. Zakiya Begum as a defendant, who was
stated to be the daughter of the sister-in- law of the defendant no.1. It was
submitted that the plaintiffs had come to know that the defendant no.1 had
transferred the shop bearing no. A, at the corner on the ground floor of the
property, in the name of the aforementioned Zakiya Begum, which was
stated to be a benami transaction. Notice of the application was issued to
her and she filed her reply stating that she had further sold the said shop
no.A to one Mst. Shehzadi Begum on 30.10.2013. The application of the
plaintiff no.1 was allowed vide order dated 04.02.2014 and Zakiya Begum
was impleaded as the defendant no.14 in the present suit. It was also
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.14 of 37
CS DJ No.614706/2016
recorded that the proposed defendant no.14 had not produced any
documents of transfer of ownership in favour of Mst. Shehzadi Begum and
only she was being impleaded as a necessary party to the suit.
24. The defendant no.3 expired during the pendency of the present suit
and his legal representatives were brought on record vide order dated
16.08.2022 by the ld. Predecessor of the Court.
25. It is pertinent to mention that the defendants no.3, 6, 7 and 13 filed a
combined written statement in which it was admitted in para no.12 of the
reply on merits that Late Mst. Nasima Begum had not executed any Will
dated 28.07.2011. Further, in para no.13 of the reply on merits, it was also
admitted that from June, 2011 onwards, Late Mst. Nasima Begum was
unwell and was not in a sound disposing mind to execute the Will in
question. In para no.14 of the reply on merits, it was also admitted that the
Will dated 28.07.2011 was a forged and fabricated document. However,
the defendants no.3, 6, 7 and 13 sought for the dismissal of the present suit.
The said written statement was filed through one Sh. A. A. Qureshi,
Advocate and was taken on record on 08.02.2013.
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.15 of 37
CS DJ No.614706/2016
26. Vide order dated 13.05.2014, the defendants no.3, 8, 9 and 11 were
proceeded against ex-parte as none had been appearing on their behalf
since the last date. Thereafter, almost five years later, an application under
Order IX rule 7 CPC dated 20.9.2019 was filed on behalf of the defendant
no.3 to set aside the ex-parte order dated 13.05.2014. In the said
application by the defendant no.3 filed through another counsel, it was
alleged that he along with the defendants no.1, 2, 4 and 5 had engaged Sh.
A. A. Qureshi Advocate to represent them in the present suit and contrary
to the instructions of the defendant no.3, the said advocate admitted the
claim of the plaintiff in the joint written statement filed. It was also alleged
that the said advocate advised the defednant no.3 not to appear in the
present suit and he was accordingly proceeded against ex-parte. On coming
to know of the professional misconduct of his advocate, the defendant no.3
also filed a complaint before the Bar Council of Delhi against him. The
defendant no.3 also annexed photocopy of his complaint dated 30.7.2019
addressed to the Bar Council of Delhi and letter/reply of the Bar Council of
Delhi dated 14.08.2019 informing the defendant no.3 to re-file the said
complaint in the desired format with particulars.
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.16 of 37
CS DJ No.614706/2016
27. The said application was taken by before the Court on 19.11.2019
and the plaintiff was directed to file his reply to the same. The said
application remained pending before the Court till 16.08.2022, on which
date it was intimated to the Court that the defendant no.3 had expired and
the LRs of defendant no.3 were also brought on record on the same date.
Thereafter the said application under Order IX Rule 7 CPC came to be
dismissed for non-prosecution on 05.10.2023.
Issues framed
28. Vide order dated 28.07.2014, the following issues were framed in
the present suit:
1. Whether the suit has been partly valued for the purposes of
court fee and jurisdiction? OPP
2. Whether the suit is within the pecuniary jurisdiction of this
court? OPP
3. Whether the suit in the present form is seeking the relief of suit
for partition of the immovable property, is maintainable? OPD
4. Whether Mst. Nasima Begum was competent to execute Will
dated 28.07.2011 under Muslim Law applicable to Sonni
Females? OPD
5. Whether the Will dated 28.07.2011 was executed by Mst. Nasima
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.17 of 37
CS DJ No.614706/2016
Begum in sound physical and mental state? OPD
6. Whether the plaintiff is entitled to the degree of cancellation of
Will dt. 28.07.2011 pertaining to Mst. Nasima Begum? OPP
7.Whether the plaintiff is entitled to decree of permanent injunction
against the defendants as are claimed? OPP
8. Relief.
(sic.)
29. The issues no.1 and 2 were treated as preliminary issues. However,
in view of the subsequent increase in the pecuniary jurisdiction of the
district courts, vide order dated 22.11.2016, it was recorded that
"Appearing counsels conceded that the issues framed as preliminary issues
have lost their relevance in view of the enhancement of pecuniary
jurisdiction of this court and also submit that the question may require
trial."
30. There are two spelling mistakes in the aforementioned issues framed
by my ld. predecessor, which are being corrected presently. In the issue
no.4, instead of the word 'Sonni', the same ought to read as 'Sunni'.
Further in issue no.6, the word ' degree' ought to be read as 'decree'. The
issues no.4 and 6 are corrected in the above terms.
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.18 of 37
CS DJ No.614706/2016
Evidence adduced by the Plaintiff
31. The plaintiff no.1 Sh. Jamal Mohd. examined himself as PW-1 and
tendered his evidence by way of affidavit as Ex. PW-1/A on 06.06.2018, in
which the contents of the plaint were reiterated. He relied upon the
following documents in support of his case:
a. Copy of sale deed dated 11.07.1973 mentioned as Ex. PW 1/1 in
the affidavit was de-exhibited as the same was not found on record.
b. Site plan as Ex. PW 1/2.
c. Certified copy of Will dated 28.7.2011 as Ex. PW 1/3.
d. The copy of complaint dated 09.11.2012 was collectively
exhibited as Ex. PW1 /4 (Colly) (OSR).
e. Postal receipts mentioned as Ex. PW 1/5 (colly) were de-
exhibited as the same were not part of record.
f. Copy of burial receipts in Urdu as Ex. PW 1/6 (OSR).
g. Copy of death certificate as Ex. PW 1/7.
h. Copy of queries and replies with regard to Muslim Law as
Mark A.
i. Copy of regularisation slip as Ex. PW 1/9 (OSR).
32. In his cross-examination dated 04.10.2018 by the Ld. Counsel for
defendants no.1, 4, 5, 10 and 12, he deposed that he was residing in
property no. 451, 3rd Floor, Chitla Gate, Chawri Bazar since the year 2008.
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.19 of 37
CS DJ No.614706/2016
He admitted that his mother was the owner of the entire property and that
the property was constructed upto 3rd floor. He also admitted that he was
having possession of the roof of the 3rd floor. He deposed that his mother
was residing at House no.2379, Kucha Mir Hashim, Chitli Qabar Turkman
Gate. He denied the suggestion that he never resided with his mother at any
given time. He deposed that before her death, his mother was residing with
his younger brother, the plaintiff no.2 namely Jamshed Mohd. He denied
the suggestion that he used to quarrel with his mother for property and
never took care of her. He deposed that he did not have any record with
regard to the medicine, food and clothes provided by him to his mother. He
denied the suggestion that he did not have the record as he never took care
of his mother. He deposed that he had deight brothers and six sisters. He
stated that he did not whether as per sharia law, he was not entitled to share
which was under his possession and that he was in possession of more than
the share he was entitled to as per sharia law. He denied the suggestion that
his mother had debarred the plaintiffs as they never used to treat her well
or that he never visited his mother. He dneied the suggestion that
immediately prior to she was not well and conscious. He deposed that
sometimes his mother used to forget. He stated that he did not have any
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CS DJ No.614706/2016
documentary proof regarding the medical treatment given to her or to show
that she was being treated for memory loss. He deposed that she had not
executed any Will as she was not capable of executing the Will and he
filed the copy of the same on Record. PW-1 further testified that he came
to know about the execution of the Will on 09.11.2012 and that the witness
to the alleged Will were friends of his elder brother. He deposed that the
day when his brothers fought with him, he came to know that the Will was
forged and that the copy of the Will Ex. PW-1/3 was provided to him by
his sister. The witness stated that he never went to the office of the
Registrar for checking whether the said Will was forged or not. He denied
the suggestion that his mother was not happy with him as he had forcibly
occupied third floor and the roof of house no.451. He denied the
suggestion that he had prepared forged document of shop bearing private
no.D and sold it to one Abdul Mannan for a consideration of Rs.5,00,000/-.
He voluntarily stated that his mother had sold it. He further stated that he
did not remember whether in the said document, he and his father-in-law
were the witnessess. He denied the suggestion that when a sum of
Rs.5,00,000/- was demanded from him by his mother, he had quarreled and
misbehaved with her. He denied the suggestion that his mother had validly
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CS DJ No.614706/2016
executed the Will which was genuine. The witness was not cross-examined
by the Ld. Counsel for the other defendants and the plaintiff's evidence
was closed on 07.12.2023.
Evidence adduced by the defendant
33. The defendants did not examine any witness despite availing
multiple opportunities and their evidence was closed by the Court vide
order dated 28.03.2024.
Arguments of the parties
34. Ld. counsel for the plaintiffs Sh. S. S. Nizami has argued that with
respect to the issues no.1 and 2, the plaintiff in para no.19 of the plaint has
assessed the valuation of the suit for the purpose of court fees and
jurisdiction at Rs.3,05,000/- for the relief of cancellation of the will and
permanent injunction. It is submitted that the evidence of the plaintiff has
gone unrebutted and the defendant has not led any evidence to show that
the value of the suit for the purpose of court fees and jurisdiction is
incorrect. Further, with respect to the relief of cancellation and permanent
injunction, it is the plaintiff's discretion whether to institute such a suit
before the Civil Judge or the District Judge. The cancellation of an
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CS DJ No.614706/2016
instrument can only be on the basis of the value of the instrument, which in
the present case was a Will and hence, there could be no fixed value for the
same.
35. It was further argued by the ld. counsel for the plaintiffs that with
respect to the issue no.3, the burden was upon the defendants, which has
not been discharged by them. Further, the right of the plaintiff to file suit
for partition was under a cloud owing to the Will, which first had to be
declared null and void. It was further submitted that issues no.4 and 5 were
also required to be proved by the defendants, who have failed to do the
same and must be decided against them. Hence, it was submitted that
plaintiff was entitled to have the issues no.7 and 8 decided in his favour.
36. The ld. counsel for the plaintiff further submitted that a Will made
by a Muslim in favour of her legal heirs was null and was liable to be
cancelled. He relied on the following judgments in support of his
contentions Ghulam Mohammad vs Ghulam Hussain , AIR 1932 PC 81;
Fukkan vs Mst. Mumtaz Begum, AIR 1971 Raj 149, Abdul Mannan Khan
vs Murtaza Khan, AIR 1999 Pat 155 to buttress his point that under
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CS DJ No.614706/2016
Muslim personal law, a bequest in favour of legal heirs was invalid and
could only be cured by the consent of all other legal heirs. He further
argued that some of the defendants had also admitted that Late Mst.
Nasima Begum was unwell around the time of the creation of the alleged
Will and the same was forged and fabricated. Hence, he prayed that the
suit be decreed in the favour of the plaintiffs.
37. None appeared on behalf of the defendants for final arguments,
despite opportunity given.
Issue wise findings and reasons
Issue no.1
38. I shall first decide issue no.1, which is reproduced below for the
sake of convenience:
1. Whether the suit has been partly valued for the purposes of court
fee and jurisdiction? OPP
39. The plaintiff in para no.19 of the plaint has valued the present suit
for the purpose of court fees and jurisdiction at Rs.3,05,000/-. The plaintiff
has sought a relief of cancellation of the Will dated 28.07.2011 executed
by his late mother. Although the relief of cancellation of the said Will has
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been sought, as the plaintiffs are not the executors of the said Will,
essentially the plaintiffs are seeking the relief of declaration, along with
permanent injunction. The relief of permanent injunction is also sought
retraining the defendants from transferring, selling, alienating and creating
any third party interest and retraining the defendants from inducting any
new tenant, which is consequential to the relief of the declaration sought
by the plaintiff.
40. In Sujata Sharma v. Manu Gupta & Ors., 2010 (116) DRJ 97, the
Hon'ble High Court of Delhi observed that Section 7(iv)(c) of the Court
Fees Act, 1870 is limited to cases where a 'consequential relief' is claimed
in addition to a 'declaratory relief'. The said provision would not apply
where the additional relief would qualify as 'further relief' and not
'consequential relief'. In the said case, the Court was of the view that
'consequential relief' was sought in the suit along with the relief of
declaration and hence, the plaintiff was liable to pay court fees in terms
of Section 7(iv)(c) of the Court Fees Act, 1870.
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41. In Sushila Malge v. Raj Singh Bhatti and Ors. , 2019 SCC OnLine
Del 7485, the Hon'ble High Court of Delhi has held while dealing with a
suit where declaratory relief as well as relief of permanent injunction was
sought, observed that once a suit is for declaration with consequential
relief, Section 7(iv)(c) of the Court Fees Act, 1870 will apply and ad
valorem court fees will have to be paid on valuation, which, as per Section
8 of the Suits Valuation Act, 1887, is the same for the purposes of court
fees and jurisdiction. To the same effect is the judgment of the Hon'ble
High Court of Delhi in Sarvinder Singh and Anr. v. Chief Manager, Punjab
National Bank and Ors. , (2019) 265 DLT 573.
42. In the present case, the suit has been valued by the plaintiffs at
Rs.3,05,000/- on which a court fees of Rs.9150/- has been paid. As per
section 7 (iv) (c) of the Court Fees Act, 1870 the plaintiff is given the
liberty to ascribe his own value to the suit. Further, it is settled law that
ordinarily, the value ascribed by the plaintiff to the suit has to be accepted.
Hence, I find that the present suit has been properly valued for the purpose
of jurisdiction and court fees. The issue no.1 is decided in favour of the
plaintiff.
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Issue no.2
43. I shall next decide issue no.2, which is reproduced below for the
sake of convenience:
2. Whether the suit is within the pecuniary jurisdiction of this
court? OPP
44. As already mentioned, the present suit has been valued at
Rs.3,05,000/-. The pecuniary jurisdiction of the District Judge Court starts
from suits having valuation of more than Rs. 3 Lakhs, upto Rs. 2 Crores.
Hence, the issue no.2 is decided in favour of the plaintiffs.
Issue no.3
45. I shall next decided issue no.3, which is reproduced below for the
sake of convenience:
3. Whether the suit in the present form is seeking the relief of suit
for partition of the immovable property, is maintainable? OPD
46. The plaintiffs have sought the reliefs of cancellation of Will and
permanent injunction. The plaintiffs have not sought the relief of partition
in the present suit and only sought the cancellation of Will dated 28.7.2011
executed by his mother Late Mst. Nasima Begum along with the relief of
permanent injunction against alienation of the properties and induction of
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tenants. There is no requirement that a co-sharer must seek partition of a
property and may choose to remain as tenants in common. Hence, the
question which arises is whether the suit with respect to seeking injunction
against the co-sharers, without seeking the relief of partition is
maintainable?
47. As per the plaintiff, the property in question comprises of five shops
on the ground floor, with one shop having been already sold off, The first
and second floors also having been sold off and the plaintiff no.1 is stated
to be in exclusive possession of the third floor and terrace.
48. It is settled law that a co-sharer who is not in possession of any part
of the property cannot seek a bare injunction against other co-sharers in
possession thereof, without seeking the relief of partition. The Hon'ble
High Court of Calcutta has held in the decision of Bachaspati Bhattacharya
and Ors. Vs. Mira Bhattacharjee and Ors. , AIR 2008 (Cal) 68 that if a co-
sharer is dissatisfied with the joint possession of the parties in the joint
properties, his remedy lies by filing a suit for partition. So long as the
partition is not effected, all the co-sharers have right in every part of the
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CS DJ No.614706/2016
property and as such, one co-sharer cannot restrain the others from
exercising their right over any part of the property without claiming
partition thereof.
49. However, the above settled position of law is not without exception.
Where a co-sharer is not in possession of any part the property, he is
entitled to seek injunction against other co-sharers where such act
complained of amounts to ouster or is otherwise adverse to his interest.
50. The Hon'ble High Court of Punjab and Haryana has held in the
decision of Bachan Singh vs Swaran Singh , 2000 (3) RCR (Civil) 70 as
follows:
"17) On a consideration of the judicial pronouncements on the subject, we
are of the opinion that:
(i) a co-owner who is not in possession of any part of the property is not
entitled to seek an injunction against another co-owner who has been in
exclusive possession of the common property unless any act of the person in
possession of the property amounts to ouster prejudicial or adverse to the
interest of co-owner out of possession.
(ii) Mere making of construction or improvement of the common property does
not amount to ouster.
(iii) If by the act of the co-owner in possession the value or utility of the
property is diminished, then a co-owner out of possession can certainly seek an
injunction to prevent the diminution of the value and utility of the property.
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CS DJ No.614706/2016
(iv) If the acts of the co-owner in possession are detrimental to the interest of
other co-owners, a co-owner out of possession can seek an injunction to
prevent such act which is detrimental to his interest.
18. In all other cases, the remedy of the co-owner out of possession of the
property is to seek partition, but not an injunction restraining the co-owner
in possession from doing any act in exercise of his right to every inch of it
which he is doing as a co-owner"
51. In the present case, the plaintiff is admittedly in portion of a part of
the property, i.e. the third floor and roof. The act of the co-sharer's
/defendants in alienating the property would be an action which would be
detrimental to the interest of the plaintiff no.1, who is in possession of a
part of the property. Hence, the relief of permanent injunction restraining
the defendants from transferring any part of the property is maintainable in
the present suit.
52. However, with respect to the relief of permanent injunction against
induction of any new tenant after eviction of the existing tenant, the same
cannot be granted to the plaintiffs, as that would amount to handing over
the control/rights of a specific portion of the property, which cannot be
done without seeking the relief of partition.
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CS DJ No.614706/2016
53. Hence, the issue no.3 is decided in the terms that the relief of
permanent injunction restraining the defendants from transferring any part
of the property is maintainable in the present suit. However, the relief of
permanent injunction against induction of any new tenant after eviction of
the existing tenant is not maintainable, in the absence of a suit for partition.
Issues no.4
54. I shall next decide issue no.4, which is reproduced below for the
sake of convenience:
4. Whether Mst. Nasima Begum was competent to execute Will
dated 28.07.2011 under Muslim Law applicable to Sunni Females?
OPD
55. It is not disputed that the mother of the parties, Late Mst. Nasima
Begum was the second wife of her husband Sh. Fida Mohd. The plaintiffs
no.1 and 2, along with the defendants no.1, 2, 4, 7 to 12 were the sons and
daughter of Late Mst. Nasima Begum and Sh. Fida Mohd. The defendants
no.3, 5 and 6 were the sons of Sh. Fida Mohd. from his earlier wife and
hence the step-sons of Late Mst. Nasima Begum. It is also not disputed
between the parties that Hanafi Muslim law was applicable to her.
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CS DJ No.614706/2016
56. It is the contention of the plaintiffs that under Hanafi Muslim law, a
person could not execute any Will in favour of her legal heirs and further,
the defendants no.3, 5 and 6 were her step children and hence did not have
any right to succeed to her properties.
57. The Hon'ble High Court of Himachal Pradesh, after reviewing all
the relevant case law on the said aspect has held in the decision of Shakila
and Ors vs Bano, MANU/HP/0856/2015 as follows:
"16. The Will Ext. DW-1/A stands duly proved by DW-1 Dharam Dass, DW-2
Naresh Thakur and DW-3 Kashmir Chand. Paras 117 and 118 of the
Principles of Mahomedan Law, by Sir Dineshaw Fardunji Mulla, (20th
Edition) read as under:
"117. Bequests to heirs: A bequest to an heir is not valid unless the other heirs
also consent to the bequest after the death of the testator. Any single heir may
consent so as to bind his own share.
A bequest to an heir, either in whole or in part, is invalid, unless consented to
by other heir or heirs and whosoever consents, the bequest is valid to that
extent only and binds his or her share. Neither inaction nor silence can be the
basis of implied consent.
Explanation:- In determining whether a person is or is not an heir, regard is to
be had, not to the time of the execution of the will, but to the time of the
testator's death.
118. Limit of testamentary power: A Mahomedan cannot by will dispose of
more than a third of the surplus of his estate after payment of funeral
expenses and debts. Bequests in excess of the legal third cannot take
effect unless the heirs consent thereto after the death of the testator."
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CS DJ No.614706/2016
58. In India the laws of inheritance with respect to Muslims can be
broadly divided under the Shia law and the Hanafi law, which are
recognized under the Muslim Personal Law (Shariat) Application Act,
1937 . Under Muslim personal law in general, a step child is not considered
as an heir of his non-biological parent and can only succeed to the property
of his biological parent. Hence, the prohibition against providing for them
by way of a Will will not apply. However, there is an absolute restriction
under the Hadidth against a person bequeathing more than 1/3rd of his net
property by way of a Will, which would result in reducing the rights of the
primary heirs and residuaries.
59. In the present case under the Will Ex. PW-1/3, provision has been
made by Late Mst Nasima Begum in favour of her step sons, i.e. the
defendants no.3, 5 and 6, which is beyond the permissible limit of 1/3 rd of
her properties. Further, the said Will has also bequeathed the entire
property in favour of her sons and daughters the defendants no.1, 2, 4, 7, 8,
9, 10, 11, 12 and 13, who are otherwise also her legal heirs, to the
exclusion of the plaintiffs no.1 and 2. It is neither pleaded nor proved that
the other heirs of Late Mst. Nasima Begum have given their consent to the
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CS DJ No.614706/2016
said Will. Hence, the said bequest is also void on the ground that it makes
provision for heirs, who are otherwise entitled to succeed to the property of
Late Mst. Nasima Begum by way of succession.
60. Hence, I find that the Will dated 28.07.2011 has been drawn up
contrary to the provisions of Muslim personal law and hence the issue no.4
is decided against the defendants no.1, 4, 5, 10 and 12.
Issue no.5
61. I shall next decide issue no.5, which is reproduced below for the
sake of convenience:
5. Whether the Will dated 28.07.2011 was executed by Mst. Nasima
Begum in sound physical and mental state? OPD
62. The onus of the above issues was on the defendants no.1, 4, 5, 10
and 12 who have asserted in para no.13 of their reply on merits that the
Will dated 28.07.2011 was executed by Late Mst. Nasima Begum in a
sound disposing mind and expired nine months of its execution on
15.04.2012. The defendants have not led any evidence in support of their
contentions. As noted above, the defendant no.3 also sought to disown the
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CS DJ No.614706/2016
admission of the Will in the combined written statement filed by him along
with the defendants no.6,7 and 13, through his application under Order IX
rule 7 CPC dated 20.9.2019. However, no application to amend his written
statement was moved by him and the said application also was dismissed
in default on 05.10.2023.
63. None of the above defendants also stepped into the witness box to
prove their claims and hence, the issue no.5 is decided against the
defendants no.1, 3, 4,5,6, 7, 10, 12 and 13.
Issue no. 6
64. I shall next decide issue no.6, which is reproduced below for the
sake of convenience:
Whether the plaintiff is entitled to the decree of cancellation of Will
dt. 28.07.2011 pertaining to Mst. Nasima Begum? OPP
65. At the outset I must mention that the plaintiff ought to have sought a
decree for declaration rather than cancellation, as he is not the executant of
the Will in question ( Suhrid Singh @ Sardool Singh vs. Randhir Singh ,
Jamal Mohd. & Ors. Vs. Faiz Mohd. & Ors. Page No.35 of 37
CS DJ No.614706/2016
MANU/SC/0210/2010). In view of the issues no.4 and 5 having been
decided against the defendants, the plaintiffs are held entitled for a decree
for cancellation of the Will dated 28.07.2011 as null and void. The plaintiff
is also held entitled to a decree for permanent injunction, restraining the
defendants and their attorneys, assignees, executors from transferring,
selling, alienating and creating any third party interest in the property
bearing no.451 (old no.254), Ward no.IX, inside Chitla Gate, Chawri
Bazaar, Jama Masjid, Delhi - 110006 comprising of four shops on the
ground floor, third floor and terrace. The issues no.6 and 7 are decided in
favour of the plaintiffs accordingly.
Relief
66. In view of the aforementioned findings and reasons, a decree of
cancellation of the Will dated 28.07.2011 is passed in favour of the
plaintiffs on the ground that the same is null and void as per Muslim
personal law. A decree of permanent injunction is also passed in favour of
the plaintiffs, restraining the defendants no.1-14 and their attorneys,
assigns, executors etc. from alienating, transferring or otherwise creating
any third party interest in the property bearing no. 451 (old no. 254), Ward
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CS DJ No.614706/2016
no.IX, inside Chitla Gate, Chawri Bazaar, Jama Masjid, Delhi - 110006
comprising of four shops on the ground floor, third floor and terrace. The
prayer seeking the decree of permanent injunction against the defendants
restraining them from inducting any new tenants in the four shops of the
ground floor of the property and eviction of the existing tenant is declined.
The costs of the suit are also awarded in favour of the plaintiffs. Decree
sheet be drawn up accordingly. File be consigned to the record room after
due compliance. The digitally signed copy of this judgment be uploaded
forthwith.
Digitally
signed by
JITEN JITEN
Date:
MEHRA
MEHRA 2025.03.03
16:36:57
Announced in the open court (Jiten Mehra)
+0530
on 03rd March, 2025. DJ-10/Central/THC
Delhi.
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