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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
BIBHU DATTA GURU
Jaibun Nisha, Wd/o. Late Abdul Sattar Lodhiya – Appellant
Versus
Mohd. Sikandar, S/o. Gulam Mustafa – Respondent
| Table of Content |
|---|
| 1. filing of second appeal under section 100 cpc. (Para 1 , 2) |
| 2. plaintiff's claim and basis for the suit. (Para 3) |
| 3. defendant's written statement and claims. (Para 4) |
| 4. trial and appellate court's judgments. (Para 5 , 6) |
| 5. arguments from plaintiff's counsel. (Para 7) |
| 6. arguments from defendant's counsel. (Para 8) |
| 7. court's evaluation of legal principles. (Para 9 , 10 , 11) |
| 8. discussion on free and informed consent. (Para 12 , 13) |
| 9. clarifications on burden of proof under muslim law. (Para 14 , 15) |
| 10. principles regarding bequests under muslim law. (Para 19 , 20) |
| 11. misdescription or overstatement of claim cannot defeat lawful claims. (Para 22) |
| 12. final judgment and decree. (Para 23 , 24 , 25 , 26) |
Judgment :
Bibhu Datta Guru, J.
1. The present Second Appeal has been filed by the appellant/plaintiff under Section 100 of the Code of Civil Procedure, 1908, assailing the judgment and decree dated 28.01.2016 passed by the learned Second Additional District Judge, Korba (C.G.) in Civil Appeal No. 12-A/2015 (Smt. Jaibun Nisha vs. Mohd. Sikandar & Anr.), whereby the judgment and decree dated 07.02.2015 passed by the learned Civil Judge, Class-II, Korba (C.G.), in Civil Suit
Mahomedan law restricts testamentary bequests to one-third of the estate without consent from other heirs, a principle courts erred in evaluating, leading to misjudgment of the plaintiff's rights.
Mohammedan Law – Will – No formality or a particular form is required in law for the purpose of creating a valid will – An unequivocal expression by testator serves the purpose.
Point of Law : Section 100 of CPC provides that, (1) Save as otherwise expressly provided in body of this Code or by any other law for time being in force, an appeal shall lie to High Court from ever....
A Muslim cannot bequeath property exceeding one-third without consent from all heirs, rendering such wills invalid if contested; ownership must not exclude necessary parties.
Preliminary decree for partition – Modified – A gift (Hiba) is the conferring of a right of property in something specific without an exchange (ewaz).
Implied consent to a bequest under Mohammedan Law cannot be inferred from silence or inaction; it must be established through affirmative acts.
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