[2010] 10 S.C.R. 717 SMT. AJAMBI (DEAD) BY LRS. v: ROSHANBI AND ORS. (Civil Appeal No.7237 of 2010) AUGUST 30, 2010 B [DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE, JJ.]

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 respondentsI filed' suit seeking- ·- ,, . :. - decree. _., ' for! · 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 was not probated and was also neither genuine nor valid.8 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]

1.2. Along with the said issues which need to be determined and answered, there is another issue which B 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 the same could be relied upon, are disputed questions D of fact which are required to be determined by the court more appropriately by resorting to the provisions of Order XXll Rule 5 CPC. The said two issues being questions of fact, the parties must be allowed to lay their evidence in support of their respective cases. In that view of the E matter it is necessary to issue a direction in the present case to the aforesaid extent in terms of the provisions of Order XXll Rule 5 CPC. [Para .28] [728-C-F]

1.3. The trial court is directed to take evidence on the F two issues, namely: whether the appellant could claim to be a !egal representative and whether or not the will propounded by the appellant, allegedly executed on 20.8.2001 and registered in the Office of the sub- Registrar on 29.8.2001 is a legal and valid document in the eyes of G law. After completion of the recording of the said evidence, both documentary and oral, brought on record by the parties, the trial court shall record the finding on the status of the appellant and as to whether the Will propounded is legal and valid and how far the same could H 720 SUPREME COURT REPORTS [2010] 10 S.C.R. A be relied upon. The trial court shall thereafter send back to this Court the records with the findings and the evidence that might be adduced and already on record. On completion of the aforesaid process, the trial court shall transmit the entire records with the findings in terms B of this order to this Court, upon which, the appeal shall again be listed for hearing for further determination and orders. [Paras 30, 31] [729-E-H; 730-A-C] Kanhiya Singh Santok Singh and Ors. v. Kartar Singh, (2009) 5 sec 155 - relied on.c Abdul Rahim & Ors. v. Sk. Abdul Zabar & Ors. , (2009) 6 sec 160 - referred to. · Case Law Reference: D (2009) 6 sec 150 referred to Para 21 (2009) 5 sec 155 relied on Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No.· 7274 of 2010. E

From the Judgment and order dated 16.11.2005 of the High Court of Karnataka at Bangalore in RSA No. 578 of 2000. S.N. Bhat and Abhishek"for the Appellants. F D.N. Goburdhan for the Respondents. The Judgment of the Court was delivered by DR. MUKUNDAKAM SHARMA, J. 1. Leave granted. G . 2. This Special Leave Petition. is directed against the judgment and or.der dated 16.11.2005 passed by the High Court of Karnataka allowing the appeal filed by the respondents herein whereby the High Court has restored the judgment and decree of the trial court. The respondents Nos. 1 to 8 were the H AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 721 [DR MUKUNDAKAM SHARMA, J.] plaintiffs before. the trial Court and Usmansab Shaikaji Attar A was the original defendant in the suit which was filed seeking a decree for partition and separate possession of alleged 718 th share in the suit property bearing CTS No, 883/A and 883/ B, situated at Aralikatti Deshpande Galli, Belgaum. It was stated in the plaint that Shaikaji Attar, the father of the B respondents and the original defendant had two wives, namely Halimabi and Roshanbi who wasthe plaintiff No. 1. 3. It was submitted in the plaint that Shaikaji Attar died in or around 1969 leaving behind his second wife Roshanbi, i.e. plaintiff No. 1: six sons i.e. plaintiff Nos. 2 to 6. and defendant C No. 1 and two daughters i.e. plaintiff Nos. 7 and 8 and heir of pre-deceased son Umarsab. . .

4. In the said suit, the parties led evidence. The plaintiff No. 2 was examined as PW-1 and the original defendant was D examined as DW-1. Both the plaintiffs-respondents and the original defendant also produced certain documents which were exhibited in the suit.. The trial Court by its judgment and decree dated 27. 7 .1988 decreed the suit of the plaintiff by awarding 1/8 th share to the plaintiffs 1 to 6 and 1/16th share to plaintiffs E 7 and 8 Din the suit property and also 1/8th share in favour of the defendant. 5. Being aggrieved by the aforesaid judgment and decree of the trial Court, the original defendant Usmansab Shaikaji FAttar filed a regular appeal before the Court of Civil Judge, Belgaum, Karnataka. During the pendency of the aforesaid appeal, the original defendant produced some additional documents, namely the alleged memorandum of partition by way of additional evidence. G 6. The First Appellate Court by its judgment and decree dated 13.11.1995, dismissed the appeal filed by the original defendant. 7. Being aggrieved, the original defendant filed a second H 722 SUPREME COURT REPORTS [2010) 10 S.C.R. A appeal before -the High Court of Karnataka which was registered as RSA No. 299 of 1996. The High Court by its judgment and decree dated 17.9.1998 allowed the appeal and remanded the matter to the first Appellate Court for fresh disposal with a direction to receive documentary evidence B produced before it by the defendant by way of additional evidence.

8. During the pendency of the aforesaid second appeal before the High Court after remand, the original defendant c Usmansab died on 7.4.1996. The said defendant left behind his wife Ajambi and she was brought on record as the legal heir of the original defendant. The First Appellate Court thereafter examined Ajambi as AW-1 who was allowed to lead additional evidence and she got the documents exhibited as exhibit (Ex.) D-7 and D-10, which were received as·additional D ·documents. The plaintiff No. 2 was examined as RW-1. 9. Thereafter, the Additional Civil Judge (Senior Division) Belgaum by a judgment and decree dated 1.4.2000 allowed the appeal filed by the original defendant, set aside the E judgment and decree of the trial court, and consequently dismissed the suit filed by the plaintiffs holding that the additional documents which are produced and exhibited as Ex. D-7 were executed by the predecessor-in-interest, namely Shri Shaikaji during his lifetime and he disposed of the property as F per his Will by dividing the property into two parts as claimed by the defendant.

10. The first Appellate Court also held that in view of the pleadings, the documents exhibited as Ex. D-7 is proved, and it is established in terms thereof that there were two divisions G effected to the suit property. In arriving at this conclusion, the first Appellate Court also took note of the fact that the names of the persons who were enjoying the aforesaid two divisions had been entered int~ relevant records concerning the property and the said entries had not been challenged by the plaintiff. In H conjunction with the aforementioned facts, since the parties AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 723 [DR. MUKUNDAKAM SHARMA, J.] were paying tax to the extent of their property only, it was held A that there was a prior partition between the parties and therefore the claim of the plaintiffs was not tenable. Consequently, the appeal was allowed and the suit was dismissed. · B 11. Being aggrieved by the said judgment and decree, an appeal was filed by the respondents herein and the plaintiffs in the original suit before the High Court of Karnataka which was registered as RSA No. 578 of 2000.

12. The High Court by its impugned judgment and decree C dated 16.11.2005 allowed the appeal and set aside the judgment and decree of the first appellate court. In the aforesaid judgment and decree, the High Court held that although the document Ex. D-7, which was executed in1958, indicates that some of the properties have been shown to have D been earmarked and assigned to the plaintiffs and the defendants, the same cannot be treated as a partition deed since it is not registered. It was held that a partition deed is to be compulsorily registered and since Ex. D-7 is not a registered document, it could not be relied upon. Furthermore, E the High Court took note of the fact that while the suit was filed in the year 1985, the aforesaid documents came· to be produced in the year 1994 at the .,..,pellate stage after suffering a decree before the trial Court and the same came to be produced nearly after eleven years. F 13. It was also noted that Shaikaji, predecessor-in-interest, had allegedly created the document exhibited as Ex. D-7 died in the year 1969, while the entries in the CTS register came to be made only in the year 1979. The High Court observed that if the 1958 partition had really been acted upon as per Ex. D- G 7 immediately after the death of Shaikaji, the said entries would have been made within a reasonable time and they would not have waited upto the year 1979, when such entries came to be made. H ! • 724 SUPREME COURT REPORTS [2010] 10 S.C.R.

A 14. The High Court, therefore, held that Ext. D-7 cannot be acted and relied upon for the purpose of establishing a prior partition of the suit property. Consequently, the appeal was allowed and the judgment and decree of the first appellate court was ·set aside. B 15. Being aggrieved by the judgment and decree, the present appeal was filed in this Court by Smt. Munira, alleged to be the wife of Kesarkhan Pathan, claiming herself to be the beneficiary under the Will. executed by Ajambi during her lifetime. Smt. rvJunira claims that Ajambi had bequeathed the C property under the Will iri favour of Smt. Munira who· is allegedly Ajambi's brother-in- law's daughter. 16. The said Will was purportedly executed on 20.8.2001 and the came to be registered in the office of the Sub-Registrar D Belgaum on 29.8.2001. Through the aforesaid Will, Ajambi allegedly Dbequeathed her property CTS No. 883/A measuring 66:61 sq. meters to the legatee Smt. Munita, wife of Kesarkhan Pathan claiming under title to the aforesaid portion of the property. Smt. Munira filed the aforesa~d appeal before this E Court alongwith an application praying for bringing on record Munira as the legal representative of the deceased Smt. Ajambi.

17. On presentation of the appeal by her, the same was registered and the application was registered as interlocutory F application which came up for consideration before this Court. An order was passed on 3.4.2006 whereby the interlocutory application was allowed and notice was directed to be issued on the special leave petition and also on the prayer for interim relief. G 18. The interlocutory application filed by the appellant was allowed by this Court but on perusal of the record, we find that. the said order was passed ex-parte and before issuance of notice to the respondent. The right to be impleaded as a party H in an appeal could be questioned and challenged and such AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 725 [DR. MUKUNDAKAM SHARMA, J.] right to challenge the locus cannot be taken away from the A respondents herein without giving them an opportunity of hearing. Therefore, although the aforesaid application vvas allowed, the same was always subject to any objection that is raised by the respondents herein. In fact, the respondents had raised such an issue immediately upon appearance. Therefore, B the aforesaid issue is required to be decidedas the same is a disputed question of fact.

19. The respondents having been served in the said appeal, they entered appearance and filed a counter affidavit C which is sworn by Smt. Roshanbi who was the second wife of late Shaikaji Attar. In the said counter affidavit, she has stated that in the special leave petition, there is a mention of the purported Will allegedly executed during the pendency of the second appeal and that she challenges the validity and legality of the aforesaid Will. She has also contended that the said D purported Will has not been probated. She has also stated in the said counter affidavit that the purported executant has no absolute right to execute the aforesaid Will pending litigation. It has been contended that Smt. Munira cannot claim the property through the purported Will of the first wife, allegedly E dated 20.8.2001, claiming herself to be brother in law's Cldaughter and that she has no legal right to the property nor any right to file the appeal before the High Court.

20. When the suit was taken up for hearing, the counsel F for the respondent took up the plea that the. aforesaid Will propounded by Smt. Munira has not been probated and that the said Will is neither genuine nor valid. It is also alleged that under the Mahomedan Law, no claim for inheritance of the property of a deceased widow could be claimed through an G alleged Will which is not proved and even if such Will is found to be legal and valid, such person would be entitled to only 1/ 3rd of the property and the remaining 2/3rd to be given to the actual heirs of the family. Reference was also made to Mufla, an authority on Mahomedanlllaw, in Chapter IX - "Wills'', at H 726 SUPREME COURT·REPORTS [2010] 1o·s:c.R. A paragraphs 118.and 131 of.the said1treatise,.wherein itis·Jaid dowmthat,under a·will only 1/3rd of"the1net-estate[could;be bequeathed and that the remaining part ofthe·net estate.would be inherited byJhe Jegal·heirs and-legal representatives. 21. This Court in the case of Abdul Rahim & Ors. Vs. Sk.8 Abdul.Zabar &Ors. reported Jn (2009) 6.SCC 160 held.thus: -"15. We may notice the. definition of gift as contained in various. textbooks. In Mulla'.s Principles of Mohammadan Law.the "hiba" is defined as a transfer.oLpr.operty made c immediately w~thout any exchange by one .per.son to ar:iother and accepted by or on behalf of later (sic latter). A.A.A. Fyzee in his Outlines. of Muhammadan Law defined "gift" in the following terms:

"AMAN may lawfully make a gift of his, property toD another during his .lifetime; or he may give it away : to someone after his death by.will. The first is. called a disposition inter vivos; the second, a testamentary disposition .. Muhammadan law. permits both k1nds of-transfers; but while a.disposition inter vivos ·isE unfettered as to .quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will."... " F 22. The learned Counsel appearing for the parties made their arguments on the merit of their claims of the respective parties, but .we are of the considered opinion that-before we can address ourselves on.the merit of the claims of the parties G and determine the respective shares, it woultLbe necessary to determine as to whether or not the aforesaid purported .Will propounded by the present appellant herein is a legal and valid document in the eyes of law and if so, to what right, if any, the appellant is entitled to in the said property. 231n the interlocutory H application, the present appellant had stated that she would be AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 727 [DR. MUKUNDAKAM SHARMA, J.]

entitled to claim on the basis of the Will,. the property being CTS A No. 883/A measuring 66.61 sq. meters. The following sentence of the application being relevant is extracted below:-"4. It is submitted that Ajambi.during her life time executed a ~Will'. in favour, of her brother-in-law's daughter namely, B Smt. Munira Wife of Kesarkhan Pathan on.20.8.2001 and it came torbe .duly registered in the office of the Sub-Registrar, Belgaum on 29.8.2001. By the said Will, Ajambi bequeathed·her'property C:T.S. No. 883/A measuring 66.61 sq. meters to the legatee Smt. Munira W/o Kesarkhan Pathan. Thus Smt. Munira became the C absolute owner of. property C.T.S. No .. 883/A of Aralikatti Deshoande.Galli, ·Belgaum." 24. Therefore, it is established from the record that her claim is restricted on. the basis of the.purported Will to the D property No. C.T.S. 883/A measuring 66.61 sq. meters only wherein she claimed to be the absolute owner. In case the Will propounded by her is found to be. not genuine and valid, in that case her entire claim will have to be rejected and the aforesaid · property. i.e. C.T.S. No. 883/A would revert back to the actual E owners· namely ·the .present 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, she may not be entitled to more than 1/3rd of the said property namely C.T.S. No. :883/A. F -

25. These are'the events which have arisen 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 theo .parties. G 26. The first issue is as to whether the Will propounded by the appellant herein namely Smt. Munira,.wife of Kesarkhan Pathan allegedly executed on 20.8.2001and registered in the H 728 SUPREME COURT REPORTS [2010] 10 S.C.R. A Office of the sub-Registrar on 29.8.2001, is a legal and valid document in the eyes of law. 27. If the aforesaid issue is answered in favour of the appellant Smt. Munira, the further question that is to be determined is as to whether the appellant herein on the basis8 of the aforesaid Will is entitled only to 1/3rd of the said area in terms of the Rules and Principles of Mahomedan Law.

28. Along with the said issues which need to be determined andD answered, in our estimation, there is another C 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 D principles of Mahomedan Law. There are also some decisions of the Supreme Court touching upon the said issue. But 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 E is legal and valid and how far the same could be relied upon, are disputed questions of fact which are required to be determined by the court more appropriately by resorting to the provisions of Order XXll Rule 5 of the Code of Civil Procedure, 1908 [for short "CPC"]. The said two issues being questions F of fact, the parties must be allowed to lay their evidence in support of their respective cases. In that view of the.matter we consider it necessary to issue a direction in the present case to the aforesaid extent in terms of the provisions of Order XXll Rule 5 CPC.

G 29. The decision to act on the basis of Order XXll Rule 5 has been taken in consideration of the proposition laid down by this Court in the case of Kanhiya Singh Santok Singh and Ors. Vs. Kartar Singh reported in (2009) 5 SCC 155, in which the Supreme Court has held thus: H ,, AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 729 [DR. MUKUNDAKAM SHARMA, J.] "17 ....... The High Court had overlooked this disputed A question of fact and held that the three sons had separate business for which they could not fall under the category of "tenant" under the provisions of the Act. Furthermore, this question of fact cannot be decided without permitting the parties to lead evidence in respect of their respective B cases and without coming to. a finding on such question of fact by the court." In paragraph 19, this Court held thus: "19. Thus considering the ambiguous position regarding C the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the matter to the trial court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death D by taking evidence and thereafter, come to a finding whether the appellants shall be brought on record in the second appeal as the legal representatives of late Santok Singh." E 30. We accordingly direct the trial court to take evidence in the manner indicated above on the two issues, namely: -

(1) Whether the appellant could claim to be a legal representative? F And (2) Whether or not the will propounded by the appellant herein, namely, Smt. Munira, wife of Kesarkhan Pathan, allegedly executed on 20.8.2001 and registered in the Office of the sub-Registrar on 29.8.2001 is a legal and G valid document in the eyes of law? 31. After completion of the recording of the said evidence, both documentary and oral, brought on record by the parties, the trial court shall record the finding on the status of the H 730 SUPREME COURT REPORTS (2010] 10 S:C.R. A appellant and.as.to.whether the Will propounded is legal and valid and.how.far the same could be relied upon. The trial court shall thereafter send.back to this Court the records with findings and.evidence that might be adduced aF1d already on record. The. aforesaid.process-shall be completed1within1a,period,of B fol:lr. months;from the date of receipt o.f the recordJromthis Court and on completion thereof, the. triaLcourt shall transmit the entire records with the findings in terms of this order to. this Court, upon which, the appeal shall again be listed for hearing_ for further determination and orders. Let the original records be c sent back to the trial court immediately. B.B.B. Appeal adjourned.

[2010] 10 S.C.R. 717 SMT. AJAMBI (DEAD) BY LRS. v: ROSHANBI AND ORS. (Civil Appeal No.7237 of 2010) AUGUST 30, 2010 B [DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE, JJ.]

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 respondentsI filed' suit seeking- ·- ,, . :. - decree. _., ' for! · 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 was not probated and was also neither genuine nor valid.8 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]

1.2. Along with the said issues which need to be determined and answered, there is another issue which B 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 the same could be relied upon, are disputed questions D of fact which are required to be determined by the court more appropriately by resorting to the provisions of Order XXll Rule 5 CPC. The said two issues being questions of fact, the parties must be allowed to lay their evidence in support of their respective cases. In that view of the E matter it is necessary to issue a direction in the present case to the aforesaid extent in terms of the provisions of Order XXll Rule 5 CPC. [Para .28] [728-C-F]

1.3. The trial court is directed to take evidence on the F two issues, namely: whether the appellant could claim to be a !egal representative and whether or not the will propounded by the appellant, allegedly executed on 20.8.2001 and registered in the Office of the sub- Registrar on 29.8.2001 is a legal and valid document in the eyes of G law. After completion of the recording of the said evidence, both documentary and oral, brought on record by the parties, the trial court shall record the finding on the status of the appellant and as to whether the Will propounded is legal and valid and how far the same could H 720 SUPREME COURT REPORTS [2010] 10 S.C.R. A be relied upon. The trial court shall thereafter send back to this Court the records with the findings and the evidence that might be adduced and already on record. On completion of the aforesaid process, the trial court shall transmit the entire records with the findings in terms B of this order to this Court, upon which, the appeal shall again be listed for hearing for further determination and orders. [Paras 30, 31] [729-E-H; 730-A-C] Kanhiya Singh Santok Singh and Ors. v. Kartar Singh, (2009) 5 sec 155 - relied on.c Abdul Rahim & Ors. v. Sk. Abdul Zabar & Ors. , (2009) 6 sec 160 - referred to. · Case Law Reference: D (2009) 6 sec 150 referred to Para 21 (2009) 5 sec 155 relied on Para 29 CIVIL APPELLATE JURISDICTION : Civil Appeal No.· 7274 of 2010. E

From the Judgment and order dated 16.11.2005 of the High Court of Karnataka at Bangalore in RSA No. 578 of 2000. S.N. Bhat and Abhishek"for the Appellants. F D.N. Goburdhan for the Respondents. The Judgment of the Court was delivered by DR. MUKUNDAKAM SHARMA, J. 1. Leave granted. G . 2. This Special Leave Petition. is directed against the judgment and or.der dated 16.11.2005 passed by the High Court of Karnataka allowing the appeal filed by the respondents herein whereby the High Court has restored the judgment and decree of the trial court. The respondents Nos. 1 to 8 were the H AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 721 [DR MUKUNDAKAM SHARMA, J.] plaintiffs before. the trial Court and Usmansab Shaikaji Attar A was the original defendant in the suit which was filed seeking a decree for partition and separate possession of alleged 718 th share in the suit property bearing CTS No, 883/A and 883/ B, situated at Aralikatti Deshpande Galli, Belgaum. It was stated in the plaint that Shaikaji Attar, the father of the B respondents and the original defendant had two wives, namely Halimabi and Roshanbi who wasthe plaintiff No. 1. 3. It was submitted in the plaint that Shaikaji Attar died in or around 1969 leaving behind his second wife Roshanbi, i.e. plaintiff No. 1: six sons i.e. plaintiff Nos. 2 to 6. and defendant C No. 1 and two daughters i.e. plaintiff Nos. 7 and 8 and heir of pre-deceased son Umarsab. . .

4. In the said suit, the parties led evidence. The plaintiff No. 2 was examined as PW-1 and the original defendant was D examined as DW-1. Both the plaintiffs-respondents and the original defendant also produced certain documents which were exhibited in the suit.. The trial Court by its judgment and decree dated 27. 7 .1988 decreed the suit of the plaintiff by awarding 1/8 th share to the plaintiffs 1 to 6 and 1/16th share to plaintiffs E 7 and 8 Din the suit property and also 1/8th share in favour of the defendant. 5. Being aggrieved by the aforesaid judgment and decree of the trial Court, the original defendant Usmansab Shaikaji FAttar filed a regular appeal before the Court of Civil Judge, Belgaum, Karnataka. During the pendency of the aforesaid appeal, the original defendant produced some additional documents, namely the alleged memorandum of partition by way of additional evidence. G 6. The First Appellate Court by its judgment and decree dated 13.11.1995, dismissed the appeal filed by the original defendant. 7. Being aggrieved, the original defendant filed a second H 722 SUPREME COURT REPORTS [2010) 10 S.C.R. A appeal before -the High Court of Karnataka which was registered as RSA No. 299 of 1996. The High Court by its judgment and decree dated 17.9.1998 allowed the appeal and remanded the matter to the first Appellate Court for fresh disposal with a direction to receive documentary evidence B produced before it by the defendant by way of additional evidence.

8. During the pendency of the aforesaid second appeal before the High Court after remand, the original defendant c Usmansab died on 7.4.1996. The said defendant left behind his wife Ajambi and she was brought on record as the legal heir of the original defendant. The First Appellate Court thereafter examined Ajambi as AW-1 who was allowed to lead additional evidence and she got the documents exhibited as exhibit (Ex.) D-7 and D-10, which were received as·additional D ·documents. The plaintiff No. 2 was examined as RW-1. 9. Thereafter, the Additional Civil Judge (Senior Division) Belgaum by a judgment and decree dated 1.4.2000 allowed the appeal filed by the original defendant, set aside the E judgment and decree of the trial court, and consequently dismissed the suit filed by the plaintiffs holding that the additional documents which are produced and exhibited as Ex. D-7 were executed by the predecessor-in-interest, namely Shri Shaikaji during his lifetime and he disposed of the property as F per his Will by dividing the property into two parts as claimed by the defendant.

10. The first Appellate Court also held that in view of the pleadings, the documents exhibited as Ex. D-7 is proved, and it is established in terms thereof that there were two divisions G effected to the suit property. In arriving at this conclusion, the first Appellate Court also took note of the fact that the names of the persons who were enjoying the aforesaid two divisions had been entered int~ relevant records concerning the property and the said entries had not been challenged by the plaintiff. In H conjunction with the aforementioned facts, since the parties AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 723 [DR. MUKUNDAKAM SHARMA, J.] were paying tax to the extent of their property only, it was held A that there was a prior partition between the parties and therefore the claim of the plaintiffs was not tenable. Consequently, the appeal was allowed and the suit was dismissed. · B 11. Being aggrieved by the said judgment and decree, an appeal was filed by the respondents herein and the plaintiffs in the original suit before the High Court of Karnataka which was registered as RSA No. 578 of 2000.

12. The High Court by its impugned judgment and decree C dated 16.11.2005 allowed the appeal and set aside the judgment and decree of the first appellate court. In the aforesaid judgment and decree, the High Court held that although the document Ex. D-7, which was executed in1958, indicates that some of the properties have been shown to have D been earmarked and assigned to the plaintiffs and the defendants, the same cannot be treated as a partition deed since it is not registered. It was held that a partition deed is to be compulsorily registered and since Ex. D-7 is not a registered document, it could not be relied upon. Furthermore, E the High Court took note of the fact that while the suit was filed in the year 1985, the aforesaid documents came· to be produced in the year 1994 at the .,..,pellate stage after suffering a decree before the trial Court and the same came to be produced nearly after eleven years. F 13. It was also noted that Shaikaji, predecessor-in-interest, had allegedly created the document exhibited as Ex. D-7 died in the year 1969, while the entries in the CTS register came to be made only in the year 1979. The High Court observed that if the 1958 partition had really been acted upon as per Ex. D- G 7 immediately after the death of Shaikaji, the said entries would have been made within a reasonable time and they would not have waited upto the year 1979, when such entries came to be made. H ! • 724 SUPREME COURT REPORTS [2010] 10 S.C.R.

A 14. The High Court, therefore, held that Ext. D-7 cannot be acted and relied upon for the purpose of establishing a prior partition of the suit property. Consequently, the appeal was allowed and the judgment and decree of the first appellate court was ·set aside. B 15. Being aggrieved by the judgment and decree, the present appeal was filed in this Court by Smt. Munira, alleged to be the wife of Kesarkhan Pathan, claiming herself to be the beneficiary under the Will. executed by Ajambi during her lifetime. Smt. rvJunira claims that Ajambi had bequeathed the C property under the Will iri favour of Smt. Munira who· is allegedly Ajambi's brother-in- law's daughter. 16. The said Will was purportedly executed on 20.8.2001 and the came to be registered in the office of the Sub-Registrar D Belgaum on 29.8.2001. Through the aforesaid Will, Ajambi allegedly Dbequeathed her property CTS No. 883/A measuring 66:61 sq. meters to the legatee Smt. Munita, wife of Kesarkhan Pathan claiming under title to the aforesaid portion of the property. Smt. Munira filed the aforesa~d appeal before this E Court alongwith an application praying for bringing on record Munira as the legal representative of the deceased Smt. Ajambi.

17. On presentation of the appeal by her, the same was registered and the application was registered as interlocutory F application which came up for consideration before this Court. An order was passed on 3.4.2006 whereby the interlocutory application was allowed and notice was directed to be issued on the special leave petition and also on the prayer for interim relief. G 18. The interlocutory application filed by the appellant was allowed by this Court but on perusal of the record, we find that. the said order was passed ex-parte and before issuance of notice to the respondent. The right to be impleaded as a party H in an appeal could be questioned and challenged and such AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 725 [DR. MUKUNDAKAM SHARMA, J.] right to challenge the locus cannot be taken away from the A respondents herein without giving them an opportunity of hearing. Therefore, although the aforesaid application vvas allowed, the same was always subject to any objection that is raised by the respondents herein. In fact, the respondents had raised such an issue immediately upon appearance. Therefore, B the aforesaid issue is required to be decidedas the same is a disputed question of fact.

19. The respondents having been served in the said appeal, they entered appearance and filed a counter affidavit C which is sworn by Smt. Roshanbi who was the second wife of late Shaikaji Attar. In the said counter affidavit, she has stated that in the special leave petition, there is a mention of the purported Will allegedly executed during the pendency of the second appeal and that she challenges the validity and legality of the aforesaid Will. She has also contended that the said D purported Will has not been probated. She has also stated in the said counter affidavit that the purported executant has no absolute right to execute the aforesaid Will pending litigation. It has been contended that Smt. Munira cannot claim the property through the purported Will of the first wife, allegedly E dated 20.8.2001, claiming herself to be brother in law's Cldaughter and that she has no legal right to the property nor any right to file the appeal before the High Court.

20. When the suit was taken up for hearing, the counsel F for the respondent took up the plea that the. aforesaid Will propounded by Smt. Munira has not been probated and that the said Will is neither genuine nor valid. It is also alleged that under the Mahomedan Law, no claim for inheritance of the property of a deceased widow could be claimed through an G alleged Will which is not proved and even if such Will is found to be legal and valid, such person would be entitled to only 1/ 3rd of the property and the remaining 2/3rd to be given to the actual heirs of the family. Reference was also made to Mufla, an authority on Mahomedanlllaw, in Chapter IX - "Wills'', at H 726 SUPREME COURT·REPORTS [2010] 1o·s:c.R. A paragraphs 118.and 131 of.the said1treatise,.wherein itis·Jaid dowmthat,under a·will only 1/3rd of"the1net-estate[could;be bequeathed and that the remaining part ofthe·net estate.would be inherited byJhe Jegal·heirs and-legal representatives. 21. This Court in the case of Abdul Rahim & Ors. Vs. Sk.8 Abdul.Zabar &Ors. reported Jn (2009) 6.SCC 160 held.thus: -"15. We may notice the. definition of gift as contained in various. textbooks. In Mulla'.s Principles of Mohammadan Law.the "hiba" is defined as a transfer.oLpr.operty made c immediately w~thout any exchange by one .per.son to ar:iother and accepted by or on behalf of later (sic latter). A.A.A. Fyzee in his Outlines. of Muhammadan Law defined "gift" in the following terms:

"AMAN may lawfully make a gift of his, property toD another during his .lifetime; or he may give it away : to someone after his death by.will. The first is. called a disposition inter vivos; the second, a testamentary disposition .. Muhammadan law. permits both k1nds of-transfers; but while a.disposition inter vivos ·isE unfettered as to .quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will."... " F 22. The learned Counsel appearing for the parties made their arguments on the merit of their claims of the respective parties, but .we are of the considered opinion that-before we can address ourselves on.the merit of the claims of the parties G and determine the respective shares, it woultLbe necessary to determine as to whether or not the aforesaid purported .Will propounded by the present appellant herein is a legal and valid document in the eyes of law and if so, to what right, if any, the appellant is entitled to in the said property. 231n the interlocutory H application, the present appellant had stated that she would be AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 727 [DR. MUKUNDAKAM SHARMA, J.]

entitled to claim on the basis of the Will,. the property being CTS A No. 883/A measuring 66.61 sq. meters. The following sentence of the application being relevant is extracted below:-"4. It is submitted that Ajambi.during her life time executed a ~Will'. in favour, of her brother-in-law's daughter namely, B Smt. Munira Wife of Kesarkhan Pathan on.20.8.2001 and it came torbe .duly registered in the office of the Sub-Registrar, Belgaum on 29.8.2001. By the said Will, Ajambi bequeathed·her'property C:T.S. No. 883/A measuring 66.61 sq. meters to the legatee Smt. Munira W/o Kesarkhan Pathan. Thus Smt. Munira became the C absolute owner of. property C.T.S. No .. 883/A of Aralikatti Deshoande.Galli, ·Belgaum." 24. Therefore, it is established from the record that her claim is restricted on. the basis of the.purported Will to the D property No. C.T.S. 883/A measuring 66.61 sq. meters only wherein she claimed to be the absolute owner. In case the Will propounded by her is found to be. not genuine and valid, in that case her entire claim will have to be rejected and the aforesaid · property. i.e. C.T.S. No. 883/A would revert back to the actual E owners· namely ·the .present 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, she may not be entitled to more than 1/3rd of the said property namely C.T.S. No. :883/A. F -

25. These are'the events which have arisen 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 theo .parties. G 26. The first issue is as to whether the Will propounded by the appellant herein namely Smt. Munira,.wife of Kesarkhan Pathan allegedly executed on 20.8.2001and registered in the H 728 SUPREME COURT REPORTS [2010] 10 S.C.R. A Office of the sub-Registrar on 29.8.2001, is a legal and valid document in the eyes of law. 27. If the aforesaid issue is answered in favour of the appellant Smt. Munira, the further question that is to be determined is as to whether the appellant herein on the basis8 of the aforesaid Will is entitled only to 1/3rd of the said area in terms of the Rules and Principles of Mahomedan Law.

28. Along with the said issues which need to be determined andD answered, in our estimation, there is another C 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 D principles of Mahomedan Law. There are also some decisions of the Supreme Court touching upon the said issue. But 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 E is legal and valid and how far the same could be relied upon, are disputed questions of fact which are required to be determined by the court more appropriately by resorting to the provisions of Order XXll Rule 5 of the Code of Civil Procedure, 1908 [for short "CPC"]. The said two issues being questions F of fact, the parties must be allowed to lay their evidence in support of their respective cases. In that view of the.matter we consider it necessary to issue a direction in the present case to the aforesaid extent in terms of the provisions of Order XXll Rule 5 CPC.

G 29. The decision to act on the basis of Order XXll Rule 5 has been taken in consideration of the proposition laid down by this Court in the case of Kanhiya Singh Santok Singh and Ors. Vs. Kartar Singh reported in (2009) 5 SCC 155, in which the Supreme Court has held thus: H ,, AJAMBI (DEAD) BY LRS. v. ROSHANBI AND ORS. 729 [DR. MUKUNDAKAM SHARMA, J.] "17 ....... The High Court had overlooked this disputed A question of fact and held that the three sons had separate business for which they could not fall under the category of "tenant" under the provisions of the Act. Furthermore, this question of fact cannot be decided without permitting the parties to lead evidence in respect of their respective B cases and without coming to. a finding on such question of fact by the court." In paragraph 19, this Court held thus: "19. Thus considering the ambiguous position regarding C the status of the appellants relating to their status as tenants, it was necessary for the High Court to remit the matter to the trial court for a proper determination of the factual aspects whether the appellants were in fact carrying on business with late Santok Singh at the time of his death D by taking evidence and thereafter, come to a finding whether the appellants shall be brought on record in the second appeal as the legal representatives of late Santok Singh." E 30. We accordingly direct the trial court to take evidence in the manner indicated above on the two issues, namely: -

(1) Whether the appellant could claim to be a legal representative? F And (2) Whether or not the will propounded by the appellant herein, namely, Smt. Munira, wife of Kesarkhan Pathan, allegedly executed on 20.8.2001 and registered in the Office of the sub-Registrar on 29.8.2001 is a legal and G valid document in the eyes of law? 31. After completion of the recording of the said evidence, both documentary and oral, brought on record by the parties, the trial court shall record the finding on the status of the H 730 SUPREME COURT REPORTS (2010] 10 S:C.R. A appellant and.as.to.whether the Will propounded is legal and valid and.how.far the same could be relied upon. The trial court shall thereafter send.back to this Court the records with findings and.evidence that might be adduced aF1d already on record. The. aforesaid.process-shall be completed1within1a,period,of B fol:lr. months;from the date of receipt o.f the recordJromthis Court and on completion thereof, the. triaLcourt shall transmit the entire records with the findings in terms of this order to. this Court, upon which, the appeal shall again be listed for hearing_ for further determination and orders. Let the original records be c sent back to the trial court immediately. B.B.B. Appeal adjourned.