LexSMT. AJAMBI (DEAD) BY LRS. versus ROSHANBI AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2010] 10 S.C.R. 717 SMT. AJAMBI (DEAD) BY LRS. v: ROSHANBI AND ORS. (Civil Appeal No.7237 of 2010) AUGUST 30, 2010 [DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE, JJ.] B Code of Civil Procedure, 1908 - Or. XX/I, r. 5 - Suit seeking decree for partition and separate possession of 7/Bth y share in the property in question - Suit decreed - Decree set aside by First Appellate Court - Meanwhile the original defendant died and 'A' brought on record as his legal heir - High Court restored the decree of the trial court -'A' died, purportedly leaving behind a Will - Appellant, claiming herself D to be beneficiary under the Will, challenged the decree before the Supreme Court - Held: Disputed questions of fact having arisen in view of certain events after delivery of the judgment by the High Court, such questions of fact are required to be determined and decided, prior to adjudication on the 6 respective claims of the parties - Trial court accordingly·· directed to take evidence for proper determination of the · factual aspects and to transmit the entire records with the findings to the Supreme Court for further determination and orders by the Supreme . Court ~ Mahomedan Law - Will. F. ' . .· I . . . .- .. ', .,· ·, . . The respondents filed suit seeking decree for · . I ' - ·- ,, . :. - . _., ' ! partition and separate possession of 718th share in the property in question. The suit was decreed. The decree was set aside by the First Appellate Court. Meanwhile the original defendant in the suit died, whereupon 'A'cwas .. G ', brought on record as his .. legal heir. The High Court. restored the decree of the trial court. 'A' died, purportedly .· · leaving behind. a Will. 717 H 718 SUPREME COURT REPORTS [2010] 10 S.C.R. A The appellant, the daughter of A's brother-in-law, claiming herself to be beneficiary under the said Will, challenged the decree before the Supreme Court. Per contra, the respondents contended that the Will 8 was not probated and was also neither genuine nor valid. They further contended that under the Mahomedan law, no claim for inheritance of the property of 'A', a deceased widow, could be claimed through an alleged Will which is not proved and even if such Will is found to be legal C and valid, such a legatee would be entitled to only 1/3rd of the property. Exercising the power under Order 22, Rule 5, the Court. o HELD: 1.1. The claim of the appellant is restricted on the basis of the said purported Will. In case the Will propounded by the appellant is found to be not genuine and valid, her entire claim will have to be rejected and the property in question would revert back to the E respondents. If, however, the aforesaid Will is found to be legal and valid, even in that event and as per the pleadings and the contentions of the respondents, the appellant may not be entitled to more than 1/3rd of the said property. These are the events which have arisen F after delivery of the judgment by the High Court. Therefore, two issues arise for consideration at this stage, which are required to be determined and decided prior to entering into the respective claims of the parties. The first issue is as to whether the Will propounded by the appellant allegedly executed on 20.8.2001 and registered G in the Office of the sub-Registrar on 29.8.2001, is a legal and valid document in the eyes of law. If the aforesaid issue is answered in favour of the appellant, the further question that is to be determined is as to whether the appellant, on the basis of the aforesaid Will, is entitled only H · AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 719 to 1/3rd of the said area in terms of the Rules and A Principles of Mahomedan Law. [Paras 24, 25, 26 and 27] [724-D-E; 725-F-G; 726-H] B 1.2. Along with the said issues which need to be determined and answered, there is another issue which arises for consideration, which is as to whether the appellant could claim to be a legal representative. Out of the said three issues raised herein, in so far as the question of entitlement of the appellant's share is concerned, the same appears to be a question of law as it forms a part of the principles of Mahomedan Law. But C the other two issues, namely, the status of the appellant and whether she would claim to be a legal representative along with the question as to whether the Will propounded by the appellant is legal and valid and how far th
Excerpt shown. Read the full judgment & AI analysis in Lexace.