IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 335 of 2024 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2022 In R/SECOND APPEAL NO. 335 of 2024 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI ==========================================================

Approved for Reporting Yes No ==========================================================

SHABBIRBHAI SAMSHERBHAI BALUCHI Versus AYSHABIBI D/O GULAMBHAI SIDHIBHAI ==========================================================

Appearance:

MR DHRUV K DAVE(6928) for the Appellant(s) No. 1 MR ANKUR Y OZA(2821) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 27/11/2025

ORAL JUDGMENT

1. This Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) against the concurrent findings recorded by the Ld. Courts below, whereby, the Ld. First Appellate Court by Judgment and Decree dated 28.12.2021 passed in Regular Civil Appeal No. 30/2019 dismissed the First Appeal and has confirmed the judgment and decree passed in Regular Civil Suit No. 30/2008 by the Principal Senior Civil Judge, Rajpipla, District Narmada on 23.07.2019, whereby, the Plaintiff's Suit was allowed and that Will executed in favour of the appellant dated 10.03.2000 was declared null and void as it is found in contravention of provisions of Muslim law, further Defendant was directed to hand over the peaceful and vacant possession of the suit property to the plaintiff.

2. The Appellant is original Defendant – Respondent is original Plaintiff hereinabove, for the sake of brevity and convenience, they are referred to as their original status before the Ld. Trial Court.

3. The factual background of the case is that the immovable property bearing Sit No. 32, Survey No. 285 in Ward No. 7 of Rajpipla Nagar Palika, being House No. 222, (hereinafter referred to as ‘Suit property’) was owned by the deceased Ghulam Bhai, who expired on 17 March 2000. The plaintiff, Ayesha, is the sole daughter of the deceased Ghulam Bhai. The wife of the deceased Ghulam Bhai, namely Hajrabibi, expired on 4 September 2000. The Plaintiff filed a civil suit before the Ld. Trial Court inter alia on the averment that the defendant had got executed a fraudulent Will, on a stamp paper of Rs. 50/-, of the deceased Ghulam Bhai in regard to the suit property. On the basis of such fraudulent Will, the defendant intended to enter his name in the revenue record of the suit property, but the plaintiff filed an objection.

4. It is the case of the plaintiff that the deceased Ghulam Bhai had inherited the suit property from his father, late Siddik Bhai, who had purchased the said property by a registered sale deed and thereafter constructed a residential house upon it. The possession of the suit property was with the plaintiff. However, taking advantage of the ailments and the illness of the deceased Ghulam, the defendant got executed a Will in his favour in regard to the suit property. The Will was executed when the deceased was under intensive treatment in the S.S.G. hospital, and thus, without explaining the contents of the document, the defendant got executed the Will just seven days prior to the death of the deceased Ghulam Bhai. The plaintiff further contended that they are professing Muslim religion, and in view of the provisions of Muslim law, a Will of more than 1/3 of the property of the deceased is not permissible without the express consent of the successor. The plaintiff further contended that neither her late mother nor she consented to the Will, and therefore, execution of the Will is suspicious, doubtful and fraudulent. Accordingly, the Plaintiff claimed the relief to declare the Will dated 10th March 2000 alleged to have been executed in favour of the defendant, being contrary to the principles of Muslim law and null and void, and also seeks possession of the suit property.

5. The defendant h