JUDGMENT:

I have heard Mr.Kalyan, learned counsel, representing Mr.Jithender Rao Veeramalla, learned counsel on record for the appellant, on admission.

2. This appeal has been filed challenging the decree and judgment dated 26.07.2024 in A.S.No.16 of 2019 passed by the learned Principal District Judge, Nirmal, whereby the decree and judgment dated 02.02.2019 in O.S.No.68 of 2012 on the file of the learned Senior Civil Judge, Nirmal, has been confirmed.

3. Briefly stated the relevant facts are that, the suit vide O.S.No.68 of 2012 was filed by the respondent Nos.1 to 6/plaintiffs seeking partition and separate possession of the suit schedule properties (a house and a mulgi). The appellant as the defendant No.3 adopted the written statement of respondent Nos.7 and 8/ defendant Nos.1 and 2, wherein took stand that during the life time of Syed Riyaz Hussain/husband of defendant No.1 had executed a will deed dated 06.05.1993 in the presence of witnesses namely Mohd.Yousuf and Ram Kishan bequeathing the suit schedule properties in favour of his wife/defendant No.1 and after his demise she (defendant No.1) became absolute owner of the suit schedule properties. Further, the other properties, which are not part of the will, are the Inam lands, which are in dispute before the Waqf Board and they have no objection for partition of those properties. The trial Court, on considering the materials placed on record, held that the proposed will was not qualifying the requirements of Sections 63 and 68 of the Indian Succession Act, 1925 and the evidence of attestors/DWs.3 and 6 is shrouded in suspicious circumstances, held that the will deed/Ex.B-1 has not been proved. On appeal by the defendant No.3, the first appellate Court confirmed the trial Court’s judgment and dismissed the appeal.

4. Learned counsel for the appellant/defendant No.3 would contest that the Courts below failed to consider that the will deed/Ex.B-1 and the evidence of DWs 1 to 3 are proving the will deed. Further, the first appellate Court ought to have observed that the plaintiffs, who are daughters of respondent No.7/defendant No.1, disputing the will deed only to harass their mother and the Courts below failed to holistically consider the facts and circumstances in holding that the will deed was in fact executed by the husband of respondent No.7/defendant No.1. Therefore, to intervene with such perverse findings, the Second Appeal has to be admitted.

5. I have considered the submissions of the learned counsel and perused the materials on record.

6. At the outset, it is pertinent to note that under the law of will applicable to Muslims, no formality is required including the signature of the testator or attestation of any witness. Thus, oral or written or will made by gestures or will made even on death bed are valid. Even if the will is documented, it does not require to follow any specific prescribed or forms. However, to constitute valid will, a clear unambiguous intention of the testator subject to other limitations on testamentary powers and obligations is essential.

7. Further, in the property to be bequeathed, a Muslim person is permitted to the extent of one third of his estate after deducting the debts and funeral expenses. To bequeath beyond the one third, the testator has to obtain consent from the other heirs particularly when there are several heirs.

8. In Muslim inheritance law, wife, sons, daughters, parents, widow having children would get specified shares in the estate. In the present case, the appellant/defendant No.3 has been claiming execution of will bequeathing the suit schedule properties in the name of respondent No.7/defendant No.1, however, nowhere claimed that all other sharers had consented for such disposition, which is ex facie not in terms with the law of inheritance applicable to Muslims. Additionally, the plaintiffs, who are daughters, disputing execution of any will, much less, their consent in any manner.

9. Further, the evidence of defendants’