A Mahomedan cannot bequeath more than one-third of his estate unless all heirs consent posthumously; failure to challenge registered wills on the ground of consent undermines any claim for partition.

JUDGMENT :

ANUBHA RAWAT CHOUDHARY, J.

1. This appeal has been filed against the judgment and decree dated 29.01.2019 (decree sealed and signed on 06.02.2019) passed by the learned District Judge-III, Gumla in Title Appeal No. 19 of 2015, whereby the learned 1^st appellate court has reversed the judgment and decree dated 29.08.2015 (decree sealed and signed on 10.09.2015) passed by the learned Civil Judge, Senior Division-II, Gumla in Partition Suit No. 08 of 2012.

2. The plaintiffs had filed the suit for partition of land claimed to have been inherited from their father, Md. Gulam Rasul, who purchased the land in the year 1966 and it was claimed that after his death, the land was left jointly owned by his three wives and children. The plaintiffs claimed that they are entitled to 2/5^th share of the remaining 0.37-acre land while the defendants are entitled to 3/5^th share. The plaintiffs prayed that the partition be allowed and after deputing the Survey Knowing Pleader Commissioner, the 2/5^th share of the plaintiffs be ordered to be carved out and separate takhta also be ordered to be prepared. Further, it was prayed that after partition possession be also delivered to the plaintiffs over their 2/5^th share through the process of the court. The suit was contested.

3. The trial court decreed the suit and 2/5^th share was declared in favour of the plaintiffs and 3/5^th share was declared in favour of the defendant nos. 1 to 3; the plaintiffs and the defendant nos. 1 to 3 were the sons of Gulam Rasul and each were declared to have 1/5^th share over the suit property. The 1^st appellate court held that there was no devolution of the property by inheritance and therefore the plaintiffs and defendants were not tenants in common in respect of the suit land and as such there was no unity of title and possession amongst them and set-aside the judgement of the trial court. The plaintiffs are the appellants before this Court.

4. This appeal was admitted for hearing vide order dated25.01.2023 on the following substantial questions of law:-

(i) Whether the first appellate court committed perversity by ignoring the fact that even though undisputedly the plaintiffs are heirs of Gulam Rasul, they having not consented to the bequest after the death of Gulam Rasul, the Will executed by Gulam Rasul in favour of the defendant no.3 –Md. Aslam was not valid in view of Article 117 of the principles of Mohammaden Law?

(ii) Whether both the courts below have committed perversity by admitting the Hibanama allegedly executed by Gulam Rasul in favour of Gajala Parween in the absence of any pleadings by any of the parties to the suit in respect of the same?

(iii) Whether the first appellate court committed illegality by observing that since 13 decimals of suit land have been mutated in the name of Gajala Parween, hence Gajala Parween is a necessary party to the suit and thus the suit is bad for nonjoinder of necessary party?

5. The Schedule of the land as per the plaint is as under:

SCHEDULE OF THE LAND

In suit situated at village Chetar, P.S. & District Gumla

Bounded by:-

North- Don Gajala Parveen.

South- Remaining area of the same plot.

East- Same plot already sold away.

West- Tanr Binkhu Oraon.”

6. Case of the plaintiffs

I. The specific case of the plaintiffs is that both the plaintiffs and the defendants are Muslims and they are governed by Muslim law in matters of inheritance and succession.

II. The father of the plaintiff, namely, Md. Gulam Rasul had purchased land measuring 0.60 acres under khata No. 62, Plot No. 647 situated in Mauza Chetar, Thana and District Gumla vide registered deed No. 2172 dated 06.12.1966 and got the property mutated in his name. Md. Gulam Rasul passed away leaving behind his three wives, namely, Jago Bibi, Bibi Batulan and Kamli Bibi; Jago Bibi left behind only one son, namely, Md. Akhtar (plaintiff No. 1); Bibi Batulan left behind one son, namely, Md. Makbul Alam (plaintiff no. 2); Kamli Bibi