IMPORTANT POINT
The main legal point established in the judgment is that the validity of a marriage and the ownership of property can be determined based on the principles of Mohammedan Law, statutory provisions, and the doctrine of res judicata.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. Predecessor-in-interest of the present appellants Md. Sofi preferred this second appeal challenging the judgment of reversal dated 19th December, 1989 passed by the Assistant District Judge, Sealdah, Alipore, in Title Appeal No. 83 of 1989, on 30th January, 1989. By the impugned judgment, First Appellate Court has set aside the judgment passed by the Learned Munsif 4th Court Sealdah, in Title Suit No. 240 of 1986 and decreed the said suit.

2. Predecessor-in-interest of the respondents herein namely Jumrati had filed a suit for eviction of licensee against Md. Sofi, the predecessor-in-interest of appellants, alleging that Md. Sofi was inducted as a licensee in respect of one room by Sugia Bibi, alias Sukia Bibi alias Sufia Bibi (hereinafter called as Sugia Bibi) admitted erstwhile owner of the suit property. Plaintiff further alleged that after becoming owner of the suit property and after the death of said Sugia Bibi, he did not renew said licence and as such the defendant/licensee has no right to possess the said premises and as such he filed aforesaid suit for eviction of licensee and recovery of possession and permanent injunction being aforesaid T.S. No. 240 of 1986.

3. Md. Sofi contested the said suit by filing written statement wherein he has specifically denied the allegations made in the plaint and he also denied that the erstwhile owner Sugia Bibi at any point of time had executed any deed of sale in plaintiff’s favour. Said Md. Sofi further contended that he got marriage with Sugia Bibi and he resided with her in the suit premises as husband and wife. The proforma defendant Jaigunessa Bibi is the daughter of said Sugia Bibi by her alleged first husband, who is now married and is residing at her matrimonial house.

4. Learned Trial Court framed six issues out of which issue no. 3 is whether the defendant is a licensee under the plaintiff in respect of the suit property or not. While deciding the said issue the court below held that plaintiff claimed that he became owner of the suit property by dint of will executed by Sugia Bibi. Plaintiff is to prove that he is the owner of the suit property and that the will executed by Sugia Bibi in his favour is genuine one. In this context learned Trial Court referred Mohammedan law and observed that since Jaigunnesa/the defendant no. 2 is admittedly the daughter of Sugia Bibi, so Sugia Bibi cannot dispose of her entire properties by the said will without taking consent from Jaigunnessa and there is nothing to show that such consent was obtained by Sugia Bibi. Accordingly plaintiff cannot claim absolute ownership in the suit property and his ownership is under challenge. He further observed that on the contrary defendant no. 1 has claimed himself as the husband of Sugia Bibi and as such he is the co-sharer in respect of the suit property along with plaintiff and as such plaintiff had no authority to file suit for eviction of licensee against the defendant and plaintiff also failed to prove the alleged licence granted to defendant no. 1 and accordingly Trial court held that the plaintiff is not entitled to get decree as prayed for.

5. Learned trial court has specifically held that a person who has no right over the property cannot revoke the grant and file suit for eviction. As defendant No.1 has specifically alleged that after the death of Sugia Bibi, he as husband of Sugia Bibi had inherited share in the suit premises, along with Jaigunnesa and in fact Sugia Bibi had not executed any deed of sale in favour of plaintiff Jamrati in respect of the suit premises and as according to Mohammedan law, a Mohammedan can bequeath legally only one third of his or her estate after meeting of ceremonial and burial expenses and since the entire property has been bequeathed by the said Sugia Bibi in favour of the plaintiff and under Mohammedan law in order to validate the said bequeath, in its entirety all heirs of the deceased testatrix have to give their consen