The Karnataka High Court has held that a first cousin brother on the mother's side is not entitled to a share in the property of the deceased uncle, under the category of residuaries, as per Section 65 of the Mohammedan Law.
A single judge bench of Justice H.P. Sandesh dismissed the appeal filed two brothers questioning the order of civil judge restraining them from enjoying the property of their deceased uncle and granting a decree in favour of the deceased's daughter, Modinbai alias Fakrubi, the original-plaintiff.
It was the case of the woman that her father Alisab Dubalesab Kadampur was the owner and in possession of the suit schedule properties. He was in lawful possession along with plaintiff and her husband Maktumsab. She also claimed that she is the only daughter and her father had performed her marriage assuring that the property will devolve upon her.
Even otherwise, she claimed she succeeded to the suit property by inheritance. It was pleaded that the defendants are the sons of her mother's elder sister Davalbi and in order to grab the suit schedule properties, they indulged in creating forged and bogus documents such as Will etc., on the pretext that their deceased uncle had executed such documents in their favour.
The appellants herein claimed that their father and deceased Alisab were cousins. Thus, they claimed to be residuaries under the Mohammedan law. They submitted that the original-plaintiff is entitled for 1/2 share and remaining property goes to the residuaries.
The bench observed that if there are no sharers or if there is residue left after satisfying sharers' claims, the residue devolves upon residuaries in the order set-forth in terms of Section 65 of the Mulla's Principles of Mohammedan Law.
In the present, it noted that it is an undisputed fact that plaintiff is the only daughter to the deceased Alisab and he had no son. Further, from a perusal of the pleadings, it came to a conclusion that the Appellants' father and deceased Alisab were not brothers. Thus, it observed,
"It is clear that defendants' father is not real brother of the plaintiff's father but only admitted relationship is that the plaintiff and defendants are cousins since the plaintiff's mother and defendants' mother are sisters and hence the very contention of the plaintiff's counsel that the defendants come within Section 65 of the Mohammedan Law cannot be accepted and they cannot claim as residuaries."
So far the execution of Will is concerned, the Court reiterated that propounder of the Will has a duty to remove all suspicious circumstances, which the Appellants herein failed to satisfy.
"The evidence varies with regard to the date, writing of the Wills...merely because the documents are registered, the Court cannot come to the conclusion that the same is executed by Alisab."
Accordingly, it held that the trial Court has rightly come to the conclusion that defendants have failed to prove the factum of the very execution of documents by the executant and merely because the documents are registered, the Court cannot come to the conclusion that the same is executed by Alisab.
Case Title: HUSAINSAB v. MODINABI @ FAKRUBI
Case No: R.F.A.No.1979/2005
Citation: 2022 LiveLaw (kar) 326
Date of Order: 12TH DAY OF AUGUST, 2022
Appearance: Advocate J.S.SHETTY for appellants; Advocate S.P.KULKARNI for respondent