Soumitra Pal, J. - (1.) THIS second appeal arising out of the judgement dated 31st October, 2014 passed in Title Appeal No. 26 of 2010 was admitted on the following substantial questions of law: - - "i) Whether the learned courts below were right in dismissing the claim of the appellant whereby she has challenged the WILL alleged to have been executed by her mother on 20/04/1998 on the ground that the same is barred by limitation when admittedly the mother of the appellant expired on 18/01/2013 and the suit has been filed on 12/11/2003? ii) Whether a suit challenging the WILL can be said to be barred by limitation, if the same is filed within a year from the date of death of the Testator? iii) Whether a WILL executed by Saira Begaum, a Mohammedan Lady, in respect of land measuring 18 mtrs x 3.3 mtrs in land bearing survey No. 228 measuring total area 4150 sq.ft situated at Aberdeen Village, under Port Blair Tehsil, South Andaman District to her one of her heirs Arif Ali is valid when all the heirs of the said lady did not accord their consent as per Rule 192 (i) of the Law of WILLs -
(2.) MRS . Anjili Nag, learned advocate for the appellant/plaintiff submitted that her client filed a suit for partition in respect of property relating to several survey numbers. However, the judgement and decree dated 31st October, 2014 passed by the learned Additional District Judge, Andaman and Nicobar Islands, Port Blair in Title Appeal No. 26 of 2010 as well as the judgement and decree dated 30th December, 2009 passed by the learned Trial Judge in Title Suit No. 64 of 2003 are bad both in law and in fact as both the Courts below failed to consider the point of law raised by the appellant. On the point of maintainability, submission was both the Courts below were wrong and incorrect in dismissing the suit and the appeal on the ground that the challenge made by the appellant to the WILL is barred by limitation. Both the Courts failed to consider that though the WILL was executed on 28th September, 1995 and registered on 20th April, 1998, as the testatrix expired on 18th January, 2003, as the suit filed on 12th November, 2003 was within three years as per the Limitation Act, 1963, it is not barred by limitation. Since right to challenge a WILL accrues from the date of death of the testatrix, limitation cannot be counted from the date of knowledge of the appellant of the WILL.
(3.) REGARDING the validity of the WILL, submission was though a WILL under the Mohammedan Law, in order to be valid and enforceable in law, has to fulfill certain conditions under Rule 192, in the instant case, however, the WILL of Saira Begum, the mother of the appellant falls short of the requirements stipulated therein. Referring to Rule 192 of the Mohammedan Law, submission was since bequest to an heir is not valid unless other heirs consent and as consent is mandatory and as there is no dispute that the signature of the appellant was not obtained, the WILL under the law is invalid. It was submitted that normally in a WILL there is no mention about the consent of the heirs. Though the WILL in question speaks of the consent of all other children, however, as the signature of the appellant was not obtained, the WILL is invalid. Submission was consent should be by acts and deeds and implied consent cannot be derived. Though submission was made with regard to Rule 192, it was not considered by both the Courts below.;