Back
1987 Supreme(HP) 73
High Court Of Himachal Pradesh
V.P.GUPTA
JAMILA - Appellant
Versus
MOSQUE - Respondent
R. S. A. No, 46 of 1977
Decided On : 11/16/1987
Important Points
Subject
Property Law - Wills and Succession
Act Referred
Headnote
WILL - VALIDITY - MOHAMMEDAN LAW - TESTATOR'S POWER TO BEQUEATH PROPERTY - CONSENT OF HEIRS - ADVERSE POSSESSION - REQUIREMENTS - SUIT FOR POSSESSION - LOCUS STANDI - REPRESENTATIVE CAPACITY - ORDER 1, RULE 8, C. P. C.
Fact of the Case:
Sondha, the owner of a house, executed a will bequeathing the property to two mosques. The appellant, who was in possession of one room of the house, claimed adverse possession. The plaintiffs, representing the Muslim community of Nahan, filed a suit for possession.
Finding of the Court:
The court held that the will was validly executed and that the appellant had failed to prove adverse possession. The court also held that the plaintiffs had locus standi to file the suit in a representative capacity.
Issues: 1. Whether the will executed by Sondha was valid under Mohammedan Law? 2. Whether the appellant had acquired title to the property by adverse possession? 3. Whether the plaintiffs had locus standi to file the suit in a representative capacity?
Ratio Decidendi: 1. Under Mohammedan Law, a testator can dispose of only a third of his property by will without the consent of his heirs. However, in the present case, the testator had no heirs in India and the appellant had failed to prove that the testator's son, who was living in Pakistan, had objected to the will. Therefore, the will was held to be valid. 2. To establish adverse possession, the appellant had to prove that he was in possession of the property adversely and in hostility to the knowledge of the testator. However, the appellant had failed to prove any act or hostile act on his part to claim ownership of the property or disclaim the title of the testator. Therefore, the appellant's claim of adverse possession was rejected. 3. The plaintiffs, as followers of Islam and residents of Nahan town, had a locus standi to file the suit for their benefit and for the benefit of the followers of Islam. The suit was filed in a representative capacity under Order 1, Rule 8, C. P. C., and the court had permitted the plaintiffs to file the suit in such capacity.
Final Decision: The appeal was dismissed.
For the appellant(s)/petitioner(s):Shri Chhabil Dass, Advocate. For the respondent(s):Miss Kamlesh Sharma, Advocate.
V. P. Gupta, J. —This regular second appeal is directed against the judgment and decree, dated 7-4-1977 passed by the learded District Judge, Nahan.
2. Briefly, the facts are that Shri Sondha son of Hussain Bux was the owner and in possession of the disputed house (detailed in the plaint). He bad one son Nur Ali, who migrated to Pakistan at the time of partition of the country.
3. Respondents Nos. 1 to 4 (hereinafter plaintiffs Nos. 1 to 4) have filed the present suit for possession of the disputed house in the court of Senior Sub-Judge, Nahan on 21-1-1970, alleging that Sondha had executed a valid will, dated 12-12-1962, in favour of plaintiffs Nos. 1 and 2 by this will he had appointed Abdul Shakoor and Chaudhry Hussain Bux of Nahan town as executors. The executors were to take steps to hand-over the possession of the disputed house to plaintiffs Nos. 1 and 2 (mosque situate in Mohalla Kachha Talab, Nahan and mosque situate in Mohalla Shamsher Ganj, Nahan) as wakf property. Plaintiffs Nos. 3 and 4 joined in the suit under Order 1, Rule 8, C. P. C. in a representative capacity on their behalf and on behalf of other worshipers and followers of the Islam community, Nahan town.
4. The allegations in the plaint are that Sondha was occupying one room in the disputed house and the rest of the house was in possession of the appellant (hereinafter defendant No. 1), who was a tenant under Sondha during his life-time but in case the tenancy was not proved then the possession of defendant No. 1 was of a licensee. Sondha died in January, 1963 and the executors performed the last rites of Sondha with the amount which they realised by auctioning the movable property of Sondha and Ks. 200 cash left by Sondha. The executors handed over the ownership of the suit property to plaintiffs Nos. 1 and 2, that is, the two mosques, and thus plaintiffs Nos. 1 and 2 are the owners of the suit property.
5. The defendant No. 1 took illegal possession of the room which was in possession of Sondha, and thus he is now in possession of the whole of the disputed house. Defendant No. 1 was approached to settle the dispute with the plaintiffs amicable and he premised and agreed to vacate the possession of the room which had illegally been occupied by him after the death of Sondha. Regarding the other portion of the disputed house, he agreed to pay Rs. 100 per year, but later on he resiled from the assurance and promise given by him and refused to hand-over the vacant possession of the disputed house to the plaintiffs. Hussain Bux, executor is dead while only Abdul Shakoor, executor is alive and therefore, Abdul Shakoor has been impleaded as defendant No. 2. According to the will, Abdul Shakoor (executor) has no right to file a suit for possession of the suit property.
6. The suit was contested by the appellant (defendant No. 1) who alleges that the plaintiffs have no locus standi to file the suit and he was not a tenant or a licensee of the disputed property. He claims the disputed property adversely and alleges that he had taken possession of the same immediately after Nur Ali son of Sondha left for Pakistan. The house was lying vacant and he occupied the same without the consent of Sondha deceased. He never conceded the rights of Sondha to the suit property. It is further alleged that Sondha never executed any valid will in favour of plaintiffs Nos. 1 and 2 and after the death of Sondha, he (defendant No. 1) never entered into any agreement and never agreed to pay annual rent of Rs. 100 in respect of the half of the suit property to the plaintiffs. An application for ejectment under section 13 of the Eeast Punjab Urban Rent Restriction Act was filed against him by defendant No. 2, but the same was dismissed. The plea of limitation was also raised by defendant No.
1. On the pleadings of the parties, the following issues were framed : —
1. Whether the plaintiffs 1 and 2 have any locus standi to file this suit ? Opp 1 and
2. 2. Whether defendant No. 1 was a lice
