Bombay High Court
Mir Nasiri Ali Mujahid Nasir And Anr vs Mir Azghar Ali Khalid Nasiri And Ors on 28 April, 2026
2026:BHC-AUG:19230-DB
1 FA 1941-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 1941 OF 2024
1. Mir Nasiri Ali Mujahid Nasir
Age : 75 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
2. Mohan s/o Kashinathrao Kale
Age : 60 years, Occu. : Agri. & Business
R/o. Dhanshree Dhanora Road,
Beed, Tq. & Dist. Beed. .. Appellants
(Org. defendant Nos. 1 & 3)
Versus
1. Mir Azghar Ali Khalid Nasiri
S/o. Mir Akbar Asli Nasiri
Age : 68 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
2. Mir Ather Ali Farooq Nasiri s/o Mir
Akbar Ali Nasiri.
Age : 66 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
3. Mir Amjad Ali Zubair Nasiri s/o Mir
Ali Nasiri,
Age : 60 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
2 FA 1941-2024.odt
4. Mir Dwar Ali Tariq Nasiri s/o Mir
Ali Nasiri
Age : 60 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
5. Mir Azam Ali Taha Nasiri s/o Mir
Ali Nasiri
Age : 48 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh. .. (Org. Plaintiffs)
6. Amatul Yusuf Hafsa Nasiri s/o Mir
Ali Nasiri,
Age : 60 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
Through their G.P.A. Holder
Mateen Khan s/o Khizer Khan,
Age : 44 years, Occu. : Business
R/o. Rhilla Galli, City Chowk
Aurangabad, Tq. & Dist. Aurangabad.
7. Amatul Butuool Siddiqua Nasiri
D/o Late Mir Akbar Ali Nasiri
Age : 46 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh. (Org. defendant No. 2)
.. Respondents
WITH
CIVIL APPLICATION NO. 8563 OF 2024
IN
FIRST APPEAL NO. 1941 OF 2024
1. Mir Nasiri Ali Mujahid Nasir
Age : 75 years, Occu. : Business
R/o. House No. 20-1-330,
3 FA 1941-2024.odt
Kokabazar, Hyderabad
Andhra Pradesh.
2. Mohan s/o Kashinathrao Kale
Age : 60 years, Occu. : Agri. & Business
R/o. Dhanshree Dhanora Road,
Beed, Tq. & Dist. Beed. .. Applicants
(Org. defendant Nos. 1 & 3)
Versus
1. Mir Azghar Ali Khalid Nasiri
S/o. Mir Akbar Asli Nasiri
Age : 68 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
2. Mir Ather Ali Farooq Nasiri s/o Mir
Akbar Ali Nasiri.
Age : 66 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
3. Mir Amjad Ali Zubair Nasiri s/o Mir
Ali Nasiri,
Age : 60 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
4. Mir Dwar Ali Tariq Nasiri s/o Mir
Ali Nasiri
Age : 60 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
5. Mir Azam Ali Taha Nasiri s/o Mir
Ali Nasiri
4 FA 1941-2024.odt
Age : 48 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh. .. (Org. Plaintiffs)
6. Amatul Yusuf Hafsa Nasiri s/o Mir
Ali Nasiri,
Age : 60 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh.
Through their G.P.A. Holder
Mateen Khan s/o Khizer Khan,
Age : 44 years, Occu. : Business
R/o. Rhilla Galli, City Chowk
Aurangabad, Tq. & Dist. Aurangabad.
7. Amatul Butuool Siddiqua Nasiri
D/o Late Mir Akbar Ali Nasiri
Age : 46 years, Occu. : Business
R/o. House No. 20-1-330,
Kokabazar, Hyderabad
Andhra Pradesh. (Org. defendant No. 2)
.. Respondents
Mr. N. L. Jadhav, Advocate for the Appellants/Applicants.
Mr. P. R. Katneshwarkar, Senior Advocate a/w Mr. Anuj A.
Fulfagar, Advocate i/b Mr. Mohammad Aseem, Advocate for
Respondent Nos. 1 to 6.
CORAM : KISHORE C. SANT AND
SUSHIL M. GHODESWAR, JJ.
Date on which reserved for order : 29th January, 2026.
Date on which order pronounced : 28th April, 2026.
FINAL ORDER (PER KISHORE C. SANT, J.) :-
1. This appeal by original defendant Nos. 1 and 3 arises out of
5 FA 1941-2024.odtthe judgment and decree passed in Special Civil Suit No. 48/2013
by the learned Civil Judge Senior Division, Aurangabad dated
01.06.2024. By way of said judgment the suit is partly decreed
with proportionate cost. It is held that the plaintiff Nos. 1 to 6 and
defendant No. 1 and 2 are entitled to partition and separate
possession of their respective shares as given i.e. plaintiff Nos. 1 to
5 and defendant No. 1 are held to be entitled to 1/7 th share each
whereas, plaintiff No. 6 and defendant No. 2 are held to be
entitled to 1/14th share each. It is further declared that, the sale
deed executed by defendant No. 1 in favour of defendant No. 3 is
not binding on plaintiff Nos. 1 to 6 and defendant No. 2. Further,
defendant Nos. 1 and 3 are restrained from creating third party
interest in the suit property till actual partition and handing over
the possession takes place. The Commissioner is directed to effect
partition.
2. Record and proceedings is received and paperbook is also
prepared. The appeal is therefore taken up for final disposal by
consent of the parties at the stage of admission.
3. The relationship between the parties is that the plaintiffs
and defendant Nos. 1 and 2 are real brothers and sisters. Their
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father Mir Akbar Ali Nasiri died on 22.05.2010. The deceased was
owner of the suit property. The suit property is plot No. 13 in
Survey No. 12, C.T.S. No. 18315, admeasuring 112 ×150 sq. yards
i.e. 1,51,200 sq.ft., near Deogiri College, Osmanpura,
Aurangabad. Other properties are plot Nos. 4, 5 and 6
admeasuring 2349 sq. yards adjacent to Iddgah of Osmanpura,
Aurangabad bearing old Municipal No. 5-5-2022, new no. 6-4-
120/2, C.T.S. No. 18315/P as described more particularly in the
suit.
4. Plaintiffs filed a suit with the case that there was a power of
attorney executed in the year 2007 by deceased Mir Nasiri in
favour of defendant No. 1 being elder son. The plaintiffs and
defendant No. 2 had confidence in defendant No. 1. The deceased
father was residing with plaintiffs at Hyderabad. It is alleged that
the defendant No. 1 by playing mischief grabbed the suit
properties claiming that it is orally gifted in January 2008 to him
by the deceased father. When inquired, the deceased father denied
execution of any gift deed and his signature on the so called gift
deed. It is thus a case that the signature of father is obtained by
defendant No. 1 by playing deceitful tactics. The defendant No. 1
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thereafter moved an application in the year 2010 and mutated his
name in city survey office for recording the property in his name.
The authorities on receipt of such application issued notices to
plaintiffs in February 2011. The receipts of notices were signed by
defendant No. 1 and kept the plaintiffs in dark. When the
plaintiffs asked for partition, defendant No. 1 disclosed about the
Will executed by deceased father on 22.08.2008. It is their specific
case that they never gave no objection for mutation in the name of
defendant No. 1. It is on these grounds the suit came to be filed.
5. It is the case of the defendant No. 1 that the deceased father
had executed a Will in his favour and after death of father the
plaintiffs and defendant No. 2 have executed declaration cum
consent deed giving no objection and validated the execution of
the Will. Being a will executed for more than 1/3 rd of property, as
per Mohammeden Law, other heirs are required to give consent or
no objection to Will. The plaintiffs have given consent as per law.
The suit properties have thus validly come to him and he has
become absolute owner of the suit properties. It is contended that
since he became absolute owner of the property he had a right to
dispose off the property and therefore sale deed is valid.
8 FA 1941-2024.odt
6. It is further case of the defendant No. 1 that he was looking
after his father during his old age. The father, to avoid conflict,
amongst the heirs executed registered Will in his favour on
22.08.2008. One Mrs. Rehana Sultana w/o Sayyad Imam and Mr.
Mir Hussain Ali Bilal Nasiri, son of Mir Asghar Ali Khalid Nasiri i.e.
plaintiff No. 1 have signed the Will as witnesses. After death of
father on 22.05.2010 the plaintiffs and defendant No. 2 executed
consent deed of declaration cum no objection in favour of
defendant No. 1. Thus, the registered Will is validated as required
under Mohammeden Law. On the strength of this Will the
defendant No. 1 applied for mutation of his name in the property.
Now the name of defendant No. 1 is entered in P.R. card by issuing
notices to all the plaintiffs and defendant No. 2. The plaintiffs also
appeared before the City Survey officer. Their objections were
considered by the officer. It is only after hearing them the name
was entered in the P.R. card by order dated 19.04.2011 whereby
the objections of the plaintiffs and defendant No. 2 came to be
rejected. The plaintiffs accepted the said order and there is no
challenge raised to the entries in the revenue record. Except the
property in the Will, other properties are shared between the
successors. There is already a partition that took place between
9 FA 1941-2024.odt
the parties. On this say the defendant prayed for dismissal of the
suit.
7. The defendant No. 3 also appeared in the suit and pleads
that the defendant No. 1 had the authority to dispose off the
property as he was rightful owner of the same.
8. The learned Trial Judge on the basis of pleadings framed the
issues and decreed the suit by accepting the case of the plaintiffs
holding that the plaintiff Nos. 1 to 6 and defendant No. 1 and 2
are entitled to the said property and separate possession. The Trial
Judge on evidence held that the Will is surrounded by suspicious
circumstances and disbelieved the same. A decree is passed as
stated in the opening paragraph. So far as sale deed in favour of
defendant No. 3 is concerned, it is held that, since defendant No.
1 had no authority to sale the property, the sale deed is not
binding upon others.
9. The learned advocate Mr. N. L. Jadhav for the appellants
vehemently argued the appeal. He submits that the learned Trial
Judge has failed to appreciate that there was a Will voluntarily
executed in favour of defendant No. 1. Once initial burden to
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prove Will is discharged by the defendant, the burden to prove the
genuineness of Will is wrongly placed upon the defendant No. 1.
Since the Will is disputed by the plaintiffs it was for them to prove
their case. The consent executed by the plaintiffs also would show
that there are signatures appearing on the same and still the Court
ignored the said fact. The plaintiffs’ stand that under the pretext
of submitting document to the City Survey officer for taking
entries in the name of the plaintiffs the signatures were obtained
is wrongly accepted by the Court. The plaintiffs are well educated
persons. On knowing the contents of the document they have
signed. It is not the case of the plaintiffs that the signatures and
thumb impressions are not of the plaintiffs. The Court committed
mistake in accepting the verification. The plaint is verified by the
General Power of Attorney. This material aspect is not considered
by the Trial Court as General of Power Attorney has verified plaint
without personal knowledge to him.
10. He further submits that the theory of earlier partition is
clearly accepted in the cross in the evidence of PW -1, Mir Dawar
Ali Tariq Nasiri (Exh. 145-C) that there was earlier partition. In
the cross examination it is further admitted by the witness for the
11 FA 1941-2024.odt
plaintiffs Mir Mohd. Ali. This witness could not state as to when
his father met with an accident in the year 2007 he could not
produce any document to that effect. He further accepted that
because of the accident of father he was bedridden and could not
make movement much. The evidence of Mohammad Abdul
Qayyum – PW-3 is also not properly appreciated, in his submission.
The power of attorney holder was examined as PW-4, he accepted
that the power of attorney was executed after filing of the suit. So
far as this witness is concerned, it is submitted that he was highly
interested witness. The general power of attorney is signed by the
plaintiffs on 11.10.2017 whereas the suit is of the year 2013. The
Court failed to appreciate evidence of the defendant i.e.
handwriting expert who deposed in favour of the defendant. The
Court, however, failed to appreciate this fact that the said witness
has clearly stated that the signatures on the consent deed were of
the plaintiffs and defendant No. 2 without recording any finding
as to how document of Will is suspicious. The Court has wrongly
held the document to be suspicious when witness No. 2 of the
defendant has clearly stated in his evidence that the
memorandum/acknowledgment of past oral gift is accepted by the
plaintiffs in presence of this witness. The theory that already the
12 FA 1941-2024.odt
land was gifted to the defendant No. 1 and in that view it was not
required to execute Will again in his favour is taken to be
suspicious thing. The Court failed to appreciate that the Will was
executed as a precaution to avoid the disputes in future. Mir
Asghar Ali, the witness to the Will is also examined in the Court.
The plaintiffs have never disputed the signature on the consent
deed. Mere suspicion about the Will is not sufficient to come to
the conclusion. On all these grounds he submits that the learned
Trial Court has wrongly passed the decree. He thus prays for
allowing the appeal by setting aside the decree.
11. The learned senior advocate Mr. Katneshwarkar a/w learned
advocate Mr. Anuj Fulfagar i/by Mohammad Aseem for
respondent Nos. 1 to 6 vehemently argued that, to see as to
whether the Will is proved, this Court has to see section 64 of the
Evidence Act. He submits that the Will specifically needs to be
proved. At least one witness needs to be examined to prove the
contents. So far as suspicion is concerned, there is no evidence to
show that it is the deceased who dictated the contents of the Will.
The witness Rahana Sultana in her evidence stated that the Will
was written by the deceased when in fact the Will is a typed
13 FA 1941-2024.odt
document and there was no question of writing the contents by
the deceased. There is nothing to show that the executor of the
Will has taken initiative. Thus, the evidence of this witness is not
sufficient. From the cross examination of this witness he points
out that the witness has accepted that the deceased was suffering
from Glaucoma and thus he was not in a position to read the
document. So far as theory of partition, he submits that, had there
been really a partition of the properties, there would have been
reference to all the properties. However, in the present case, there
is no reference to the properties situated at Hyderabad. Thus, even
this partition is suspicious. Handwriting expert’s report is rightly
considered. The conclusion of the expert is pointed out. He
submits that the disputed signatures and admitted signatures
show different speed of writing skill and penmanship. He justifies
the judgment and submits that there is no substance in the appeal
and appeal deserves to be dismissed with costs.
12. On these submissions and from the facts, the points arising
for consideration are –
(i) whether the Will is proved to be a genuine Will,
(ii) whether the plaintiffs have given consent to the Will,
14 FA 1941-2024.odt
(iii) whether the family partition had already taken place,
(iv) whether the judgment and decree deserves to be quashed and
set aside.
13. Learned advocate Mr. Jadhav for the appellants relies upon
the following judgments judgment :
(i) Achambat Abdul Rahim Vs. Achambat
Kunhalikutty Haji’s Son Muhammed Haroon, 2022
3 ILR (Ker) 391.
(ii) Smt. Indu Bala Bose and others Vs. Manindra
Chandra Bose and another, 1981 0 Supreme (SC)
479.
(iii) Shashi Kumar Banerjee and others Vs. Subodh
Kumar Banerjee and others, 1964 0 AIR (SC) 529.
(iv) Naresh Charan Das Gupta Vs. Paresh Charan
Das Gupta, 1955 AIR 363.
(v) Meena Pradhan Vs. Kamla Pradhan, AIR
2023 SC 4680.
(vi) Muddasani Sarojana Vs. Muddasani Venkat
Narsaiah and Ors., 2007 AIR (A.P.) 50.
(vii) Sridevi and Others Vs. Jayaraja Shetty and
Others, 2005 (2) SCC 784.
(viii)Madhukar D. Shende Vs. Tarabai Aba
Shedage, AIR 2002 SC 637.
(ix) O. Bharathan Vs. K. Sudhakaran, 1996 AIR
(SC) 1140.
15 FA 1941-2024.odt
14. In the case of Achambat Abdul Rahim (supra), it is held that
every Mahomedan of sound mind and not a minor can dispose of
his property by Will. The same is not valid unless other heirs’
consent to bequest after his death. In the said case it was inferred
from the circumstances and conduct of the parties that there was a
consent.
15. In the case of Smt. Indu Bala Bose and others (supra), the
parties suspecting genuineness of Will were discussed such as an
attempt of the propounder to conceal real nature of testators
illness. The propounder’s failure to tell the date when the testator
went to his lawyer, non production of draft and no explanation
etc.
16. In the case of Shashi Kumar Banerjee and others (supra),
the constitution bench held that it is for the propounder to prove
the Will. It is held that, in absence of suspicious circumstances
surrounding the execution of Will, proof of testamentary capacity
and the signature of the testator as required by law is sufficient to
discharge the onus. Where there are suspicious circumstances, the
propounder of Will has to explain them away to the satisfaction of
the Court.
16 FA 1941-2024.odt
17. The judgment in the case of Naresh Charan Das Gupta
(supra), it is again of the suspicious circumstances and the onus to
prove that the Will is genuine or is suppressed from suspicious
circumstances.
18. In the case of Meena Pradhan Vs. Kamla Pradhan (supra),
the question was of section 63 of the Evidence Act. There the Will
was accepted to be genuine on recording finding that the Will was
executed by free Will and when the executor was in a sound
deposing state of mind. This finding was recorded on the basis of
evidence of the attesting witness. There was no any evidence to
show that testator was not in a fit or suitable mental condition at
the time of execution of the Will. No suspicious circumstances
were found.
19. The judgment in the case of Muddasani Sarojana (supra) is
on section 67 of the Indian Evidence Act which mandates that the
signature and handwriting of a person on a written document can
be proved only by examining the person concerned. This
judgment is relied upon the appellants in support of his
submission that the plaintiffs have not come forward to disclose
signature of the testator.
17 FA 1941-2024.odt
20. In the case of Sridevi and Others (supra), the Court has
considered provisions of section 63 of the Indian Succession Act
and the mode of prove the Will. It is held that, same is as
required to prove any other document. However, in addition, the
party has to comply with the requirements of section 63 i.e. to
produce at lease one of the attesting witnesses. It is thereafter the
onus would shift on the other side who dispute the genuineness of
Will.
21. In the case of Madhukar D. Shende Vs. Tarabai Aba
Shedage, (supra), the Hon’ble Apex Court considered section 63 of
the Succession Act, 1925. In the said case, the Court found that
the suspicion about the Will was without any foundation when
there was nothing found unnatural. The evidence adduced was
also satisfactory. It is held that, the Court would not record a
finding that the Will is not proved merely on account of certain
assumed suspicion or supposition.
22. The judgment in the case of O. Bharathan (supra), this Court
finds that, this judgment is not of much help to the appellants.
23. Learned Senior Advocate Mr. Katneshwarkar for respondents
18 FA 1941-2024.odt
relies upon the following judgments :
(i) Gorantla Thataiah Vs. Thotakura Venkata
Subbaiah and Others, AIR 1968 SC 1332.
(ii) Ramrao Punjabrao Pawar & Others Vs.
Sarubai Dalpatrao Pawar through L.R., Yavatmal,
2006 (1) Mh.L.J. 610.
(iii) B. Venkatamuni Vs. C. J. Ayodhya
Ramsingh and Others, 2007 AIR (SC) 311.
(iv) Ashiq Ali (deceased) through his L.Rs. And
others Vs. Yasin Mistri (deceased) through his
L.Rs. And Others, 2021 SCC OnLine HP 735.
24. In the case of Gorantla Thataiah (supra), it is held that, the
suspicious circumstances must be judged in the facts and
circumstances of each particular case. It is held that, when the
propounder himself takes a prominent part in the execution of the
Will which confers substantial benefits on him that itself is a
suspicious circumstance.
25. In the case of Ramrao Punjabrao Pawar (supra), it was
found that the Will was executed by taking advantage of fragile,
physical and mental health of the deceased and his helplessness in
the circumstances at the relevant time.
26. In the case of B. Venkatamuni (supra), the Court relied upon
19 FA 1941-2024.odt
the judgment in thecae of Dr. Surendra Pal and others Vs. Dr.
(Mrs.) Saraswati Arora and another, (1974) 2 SCC 600. It is held
that, the propounder has to show that the Will was signed by the
testator; that he was at the relevant time in a sound disposing
state of mind, that he understood the nature and effect of the
dispositions, that the putting the signature to the testament of his
own free will and that he has signed it in the presence of two
witnesses who attested it. It is necessary to be proved as
necessary elements to satisfy the conscience and to remove
suspicion with reasonable man may, in relevant circumstances of
the cases, entertained.
27. In the case of Ashiq Ali (supra), the questions of law were
framed as to whether adverse inference against the due execution
of legal and valid Will could be drawn by the learned Appellate
Court for not examining the scribe to prove the Will. The second
question was in the facts of the case. It is held since it was in the
facts of the case. This Court need not discuss the same.
28. In the case of V. Prabhakara Vs. Basavaraj K. (Dead) By Lr.,
AIR 2021 SC 4830, the Hon’ble Apex Court, on facts, recorded
that, the brother of the appellant therein and other sister were
20 FA 1941-2024.odt
present at the time of execution of Will. No doubt was raised by
them. In such circumstances, it is held that the Appellate Court
unnecessarily suspected the execution when there was no
reasonable ground to suspect. The presence of sister of the
appellant was also doubted without any material on record and it
is in that view the Will was taken to be proved.
29. In the case of Ramesh Chandra Agrawal Vs. Regency
Hospital Ltd. And Ors., AIR 2010 SC 806. It is observed that, to
rely upon the evidence of the handwriting expert it needs to be
shown that the expert has made a special study of a subject or he
has acquired special experience in the field. It is thereafter the
evidence of such witness expert can be accepted. In the present
case, this Court does not find that any case is made out to show
that PW-5 was not having a requisite experience or expertise in
the field.
30. The judgment in the case of K. S. Vs. Shyla Joseph and
others, AIROnline 2025 SC 1323, this latest judgment is also in
respect of Will. The testator in the said case allotted suit property
to all his children/defendants except plaintiff. It was plaintiff’s
case that the Will is surrounded by suspicious circumstance. In
21 FA 1941-2024.odt
that case, the testator was examined after 24 years of the date of
execution. The Court held that it was not expected that he would
give every minute detail. Merely because he does not remember
the minute detail cannot be said to be suspicious circumstance.
31. In the case of Rani Purnima Debi and another Vs. Kumar
Khagendra Narayan Deb and another, AIR 1962 SC 567. In the
said case, it was considered that, the testator had not made proper
provision for his wife and the sister who were dependent upon
him. The propounder was the sole beneficiary under the Will. The
propounder himself had taken part in execution of Will. The
signature of the testator was not appearing to be his usual
signature. It was brought on record that the testator was in habit
of signing blank papers. The contents of the Will and the signature
of the testator were in a different way. It is in that view the
propounder was required to explain the suspicious circumstances.
The witness who was examined was interested witness and in that
view the Court held that the Will suffers from suspicious
circumstances.
32. On all these discussions, this Court finds that, in the present
case, facts are required to be considered which are discussed
below :
22 FA 1941-2024.odt
33. As already stated that the present case mainly revolves
around two issues i.e. execution of a Will and secondly, the
consent/NOC. Both the questions are material as no gift can be
made and no Will can be executed beyond 1/3 rd share of a person
in the property. In the present case, admittedly the alleged gift in
the year 2008 and Will dated 22.08.2008, both are in respect of
more than 1/3rd share of the property as per Mohammeden Law.
It is in that view, the defendant No. 1 was required to prove both
these documents to be genuine. The contention of the defendant
that the burden is wrongly shifted upon the defendant is not
correct one, since the plaintiffs have sufficiently made out a case
pointing out the suspicious circumstances giving rise to a
reasonable doubt about the genuineness of the Will. It was in that
circumstances the Trial Court expected defendant No. 1 to prove
both the documents specifically. No fault can be found with the
Trial Court in expecting defendant No. 1 to prove those
documents.
34. It is admitted position that the parties are related to each
other. The defendant No. 1 claims right over the property only on
the basis of Will allegedly executed by the father of plaintiffs and
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defendant Nos. 1 and 2. The Will is registered at Hyderabad. The
property in the Will is situated at Aurangabad. Except this
property under Will other properties are negligible. The deceased
was suffering from Glaucoma and was 90 years of age when the
Will was executed. He also claims that the plaintiffs and defendant
No. 2 have ratified the Will by giving no objection or consent on
15.01.2011.
35. The plaintiffs have examined six witnesses whereas, the
defendant No. 1 has examined three witnesses in his favour. The
main documents on the record to be considered are first Will and
secondly alleged consent deed. The documents on record showing
health condition of deceased, General Power of Attorney executed
in favour of defendant No. 1 by the plaintiffs and defendant No. 2
dated 11.10.2017, memorandum of understanding dated
11.10.2017, sale deed dated 26.02.2013 etc.
36. Main contention of the appellant that the burden to prove
that Will is genuine is wrongly placed upon him. Therefore, the
question is as to whether the Trial Court was right in putting the
burden to prove the Will on the defendant No. 1. It is admitted
fact that the deceased Mir Akbar Ali Nasiri was above 90 years of
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age when he executed the Will. It is brought on record by the
plaintiffs that the deceased was not in a proper condition to
understand the things. He was also not in a condition to read the
documents. It is admitted by the attesting witness Rehana that the
deceased was suffering from illness. On one hand, it is the case of
the defendant that the contents were in the handwriting of the
deceased whereas, it has already come on record that the Will is
typed. Another story of the defendant is that the deceased had
executed a gift deed/memorandum of Hiba in his favour in the
year 2008. The plaintiff’s witness – PW-1 has clearly stated the
Will dated 22.08.2008 is a fabricated and prepared document. So
for as knowledge is concerned, he stated that, after the defendant
No. 1 made an application for mutation entries in respect of the
properties, the authorities had issued notice and it is on such
notices they came to know about the Will. The Trial Court has
further considered that, under the Mohammeden Law a person
can bequeath his property only to the extent of 1/3 rd of his
property.
37. It is also considered that the defendant was required to
prove the consent/NOC dated 15.01.2011 executed by the
25 FA 1941-2024.odt
plaintiffs. The Trial Court has also considered that the plaintiffs
have also produced evidence to show that the Will suffers from
suspicious circumstances. It is brought on record that the deceased
was suffering from Glaucoma and various other health issues.
From the evidence of plaintiffs it is seen that the signatures on the
consent/NOC are denied by the plaintiffs. It is specific case that
their signatures are forged. The Plaintiffs witness No. 2 namely
Mir Mohd. Mazher Ali Arif Nasiri filed an affidavit of evidence
stating that the Will is fabricated document. The consent/NOC
does not bear valid signatures. He clearly stated that, his father
i.e. plaintiff No. 3 met with an accident in the year 2007 and
suffered heavy injury. Since 2007 he was bedridden and he was
not in a position to put signature on the documents in the year
2011 and thus, there was no question of his signing the
consent/NOC. So far as PW-3 Mohammad Abdul Qayyum is
concerned, who stated about the health condition of deceased
father of the plaintiffs and defendants No. 1 and 2, he stated that
he used to treat the deceased. He stated that the deceased was
also suffering from some other diseases like kidney and lung
diseases. He has also given the details of the hospital and doctors
treating the deceased. PW-4 is the power of attorney holder of the
26 FA 1941-2024.odt
plaintiffs and defendant No. 2 which is executed on 11.10.2017.
He, in clear terms, stated that the signatures of the plaintiffs on
the form namuna nos. 9 and 12 used in the proceedings before the
revenue authority are forged and are used in the office of city
survey officer. The handwriting expert is also examined as PW-5.
There is handwriting expert’s opinion on record who has given
opinion that the signatures of the plaintiffs do not match with the
signatures on the alleged consent/NOC. Thus, the signatures on
the form namuna nos. 9 and 12 are not of the plaintiffs. In spite of
cross-examination his evidence remained unshattered.
38. So far as evidence of defendant No. 1 is concerned, to prove
Will, he examined only DW-2 Rehana Sultana, an attesting
witness. The learned Trial Judge also compared the signatures of
the deceased appearing on the partition deed dated 28.08.2003
and the signature appearing on general power of attorney
executed on 11.10.2017 with the signatures appearing on the
Will. Trial Court found that the signature on the Will appears to be
different from other two signatures appearing on Exh. 178 and
Exh. 238 i.e. partition deed and general power of attorney
executed on 11.10.2017. All this evidence coupled with the
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evidence as regards health condition of deceased, the Court
recorded a finding that the Will appears to be suspicious. She
came to conclusion that the consent/NOC also appears to be
fabricated. It is not shown that the deceased himself took
initiative to execute the Will and to get it registered. There is also
an opinion of handwriting expert which is believed by the Trial
Court.
39. On taking overall view in the matter, this Court finds that,
the Trial Court has taken a view which cannot be faulted with.
There needs to be overwhelming reasons to set aside the findings
and observations by the Trial Court. This Court is dealing with the
first appeal and therefore, this Court has to consider as to whether
the evidence is property appreciated by the Trial Court, unless this
Court comes to conclusion that the findings recorded by the Court
and the observations made by the Court are against the evidence
of record, no decree can be set aside. This Court has also needs to
consider as to whether the Trial Court has rightly put the burden
upon defendant No. 1 to prove the Will to be genuine.
40. This Court has already considered the judgments as
discussed above. In the present case, this Court finds that, the
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judgment in the case of Rani Purnima Debi and another (supra) is
squarely applicable. It is brought on record that the property
allegedly given to defendant No. 1 by alleged Will is the major
property of the deceased. Other properties are just negligible. One
can hardly believe that the deceased would give practically entire
property to only one son/defendant No. 1. So far as consent is
concerned, as already discussed, this Court finds that, even the
consent/no objection is also not proved to be genuine. This Court
does not find that the Trial Court has committed any mistake in
coming to conclusion that the defendant No. 1 failed to prove the
Will. There are enough suspicious circumstances appearing on
record. Therefore, this Court finds that, there is no interference
required in the impugned judgment and order. On this discussion
all the points need to be answered against the
appellant/defendant No. 1. As all the points are answered against
defendant No. 1, it is clear that, he had no authority to transfer
entire property in favour of defendant No. 3. Thus, even the sale
deed is rightly held to be not binding on plaintiffs and defendant
No. 2.
41. Considering all above, the first appeal deserves to be
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dismissed and the same is hereby dismissed. No order as to costs.
42. In view of dismissal of first appeal, civil application does not
survive and the same also stands disposed of.
( SUSHIL M. GHODESWAR, J.) ( KISHORE C. SANT, J. )
P.S.B.