- (1.) HEARD learned counsel for the appellant at the admission stage. This is defendants' second appeal arising out Original Suit No.66 of 2006. The suit was decreed on 26.3.2010 by Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Court No.14, Gorakhpur. Defendants were restrained from making any construction in the house in dispute without getting it partitioned. They were further restrained from interfering in the peaceful possession of the plaintiff -respondent no.1 over the house in dispute. Against the said judgment and decree Civil (Judges) Appeal no.12 of 2010 was filed which was dismissed by Additional District Judge, Court no.8, Gorakhpur hence this second appeal.
(2.) PLAINTIFF -respondent no.1 filed suit against his brother Nasir Khan and his four daughters. This appeal has been filed by the four daughters of Nasir Khan real brother of the plaintiff -respondent no.1. Nasir Khan father of appellants has been impleaded as respondent no.2. The house in dispute was purchased by Smt Saira Khatoon mother of plaintiff and Nasir Khan through registered sale deed dated 27.2.1958 who died on 5.4.2005. It was further pleaded that plaintiff is disabled and her husband stopped taking her care hence she was residing alongwith her mother. The house in dispute was inherited by plaintiff -respondent no.1 and her brother Nasir Khan - defendant no.1/respondent no.2. Appellants pleaded that their father Nasir Khan and their aunt plaintiff were deaf and dumb since birth. Their case was that their grand mother Smt. Saira Khatoon had executed a Will of the entire house in dispute in their favour on 23.7.2004. It was further pleaded that their grand father Mohd. Shafi executed registered Will on 3.12.1998 in favour of the appellants in respect of his agricultural land. The daughters also levelled allegation against their father Nasir Khan -defendant respondent no.2 that he was under the influence of his sister.
(3.) THE courts below found that plaintiff was residing in two rooms and defendants were residing in remaining four rooms of the house in dispute. The courts below further held that under Muslim Law no person could execute Will Deed of 1/3rd of his or her property. The courts below refused to decide the question as to whether the Will as alleged by the appellants was in -fact executed or not. Accordingly, it was held that even if appellants got 1/3rd share in the property on the basis of Will, they could get that partitioned. I do not find least error in the impugned judgments. Legally under Muslim Law no one can execute Will of his entire property. Only 1/3rd property can be bequeathed. There was absolutely no question of grant of consent by the plaintiff to the Will when she was denying even the existence of the Will. It was not denied by the appellants that plaintiff was residing in part of the house in dispute.;