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NARENDRA KUMAR VYAS
Sulaxani – Appellant
Versus
Sattar Ali – Respondent
JUDGMENT (C.A.V.)
This second appeal has been filed by the appellants/defendants under Section 100 of the C.P.C. against judgment and decree dated 20.09.2007 passed by District Judge, Korea (Baikunthpur) (C.G.) in Civil Appeal No. 07A/2006 (Old Case No. 08A/2005) (Sattar Ali Vs. Jasimuddin & others) setting aside the judgment and decree dated 29.03.2005 passed by Civil Judge Class-II, Baikunthpur, District-Korea (C.G.) in Civil Suit No. 13A/2002 for declaration and possession of the suit property i.e. agricultural land bearing Khasra No. 685, 782 & 920 area admeasuring 0.25, 0.10 & 0.65 R.A. respectively situated at Village-Targawan, Patwari Halka No. 24, Revenue Circle- Patana, District-Baikunthpur (C.G.)
2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 13A/2002 which was filed for declaration and possession of the suit property.
3. The instant Second Appeal is admitted for hearing by this Court vide its order dated 11.08.2010 on following substantial questions of law:—
1. Whether the Will Ex. P-2 is proved in accordance with law, more particularly, law relating to Hiba under the Mohammedan Law ?
2. Whether the Will Ex. P-
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.
Mohammedan Law – Will – Bequest in favour of an heir is invalid unless other heirs consent to it after testator’s death.
Mohammedan Law—Will—Bequest in favour of an heir is invalid unless other heirs consent to it after testator’s death—Mohammeden cannot by Will dispose of more than a third of his estate after payment ....
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).
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