# Mohd. Mubin & Anr v. Ateeq Ahmad Kaif & Ors

- **Citation:** (2026) 3 ILRA 1070
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-03-18
- **Case number:** First Appeal No. 129 of 2026
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-mubin-anr-v-ateeq-ahmad-kaif-ors-54864
- **Pages:** 31

## Text

_Characters 0–39,990 of 102,375. This is a partial read: ask again with offset=39990 for what follows._

1070 INDIAN LAW REPORTS ALLAHABAD SERIES
arrived is not clear. At the time of the accident the plaintiff was about 24 years old(multiplier of 18
is applicable) and if his monthly income is taken at ? 3,000/- per month and even if his earning
capacity loss is taken at 50% even then he was entitled to a compensation of 1,500 x 12 x 18= ?
3,24,000/- towards loss of future earnings due to permanent disability, but the trial court has only
awarded a lump-sum compensation of ? 2,50,000/- towards it, which is grossly inadequate, since if
the compensation is calculated by taking 100% functional disability, then the compensation to
which the plaintiff is entitled is Rs.3,000X12X18=Rs.6,48,000.

51. It is further apparent that the trial court has not awarded any compensation towards loss
of earning due to future prospects of the plaintiff. The trial court has only awarded a compensation
of ? 50,000/- towards pain and suffering, special diet which is also inadequate considering that he
suffered amputation of his left hand below elbow. After considering the cash memos of medicine
purchased amounting to Rs.13,830/-, prescription of the doctors and discharge card, the trial court
has awarded a sum of ? 1 lakh towards medical expenses to the plaintiff, which is inadequate,
because the trial court has not awarded any compensation towards future medical expenses. In
totality, the trial court has awarded less compensation to the plaintiff, which cannot be reduced any
further in this appeal. The trial court has further directed adjustment of ? 12,500/- awarded by the
Collector Pilibhit to the plaintiff in the case instituted by him under the Public Liability Insurance
Act, which is justified.

52. For the aforesaid reasons, the trial court has not committed any illegality in concluding
that the plaintiff has suffered injuries due to electrocution from the high tension electricity line of
the defendant and awarding compensation of ? 3,87,500/-along with pendentelite and future interest
@ 5% per annum, which warrants no interference from this Court in exercise of its appellate
jurisdiction. The appeal is meritless and is liable to be dismissed.

53. Accordingly, the appeal is dismissed with costs throughout. Consequently, the
impugned judgment and decree dated 28.11.2013 of the trial court is affirmed.

54. Interim order, if any, stands vacated.

55. Office is directed to send back the record of the trial court.
----------
(2026) 3 ILRA 1070
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 129 of 2026

Mohd. Mubin & Anr. ....Appellants
Versus
Ateeq Ahmad Kaif & Ors. ...Respondents
3 All. Mohd. Mubin & Anr. Vs. Ateeq Ahmad Kaif & Ors.
1071
Issues for Consideration
(i) Whether the alleged Wills dated 16.08.2015 and 07.01.2016 executed by deceased Mohd. Anas and Mohd.
Iliyas respectively, in favour of their legal heirs (sons), without consent of the other heirs, conferred any right,
title or interest upon the plaintiffs under Sunni Hanafi Muslim Law?
(ii) Whether the alleged Wills were surrounded by suspicious circumstances and whether the plaintiffs
successfully discharged the burden of proving their due and valid execution?
(iii) Whether, in absence of a claim for partition and in presence of co-heirs having inherited interests in the
property, the plaintiffs were entitled to cancellation of the sale deed dated 24.10.2016 and permanent
injunction against the purchasers?
(iv) Whether the suit was bad for non-joinder of necessary parties, namely all legal heirs of deceased Mohd.
Iliyas, whose consent was essential for validating the alleged bequests?
(v) Whether the trial court rightly dismissed the suit seeking cancellation of sale deed and injunction?

Headnotes
Mohammedan Law-Sunni Hanafi Law-Will-Bequest in favour of heir-Validity-Consent of
other heirs-Necessity.

HELD: Under Sunni Hanafi Law, a bequest in favour of an heir is not valid unless the other heirs consent to
such bequest after the death of the testator. The consent must be express and cannot be inferred from silence
or inaction. Where the beneficiaries under the alleged Wills were themselves legal heirs of the deceased and
the remaining heirs disputed the execution, authenticity and legality of the Wills, the bequests remained
inoperative for want of consent. Consequently, no right, title or interest accrued to the plaintiffs on the basis
of the alleged Wills. [Paras 60 to 69]

Mohammedan Law-Will-Bequest to heir and rule of one-third-Applicability.

HELD: The rule limiting testamentary disposition to one-third of the estate applies to bequests in favour of
strangers. Where the bequest is made in favour of an heir, the controlling requirement is consent of the other
heirs after the death of the testator. In the absence of such consent, even a bequest in favour of an heir does
not become operative. [Paras 66 to 68]

Will-Proof of execution-Suspicious circumstances-Burden on propounder-Judicial conscience.

HELD: Where execution of a Will is surrounded by suspicious circumstances, the burden upon the propounder
becomes heavier and all legitimate suspicions must be removed by cogent and satisfactory evidence before
the Will can be accepted. Mere proof of signatures, attestation or testamentary capacity is insufficient where
suspicious circumstances exist. The Court must be satisfied that the document genuinely represents the last
testamentary disposition of the testator. [Paras 70 to 73]

Will-Suspicious circumstances-Testator shown to be treating deceased co-owner as aliveEffect.

HELD: The alleged Will of Mohd. Iliyas dated 07.01.2016 described Mohd. Anas as owner of half share in the
property despite the admitted fact that Mohd. Anas had died earlier on 12.10.2015. Since Mohd. Anas and
Mohd. Iliyas were close associates and business partners, it was improbable that Mohd. Iliyas would have
been unaware of the death of Mohd. Anas. The recital treating a deceased person as alive constituted a
significant suspicious circumstance affecting the genuineness of the Will. [Para 74]

Will-Suspicious circumstances-Property bequeathed as exclusive property though owned
jointly with others.

HELD: The evidence on record established that Standard Handloom Store, M.M. Textiles and Standard Cold
Storage were not exclusively owned by Mohd. Anas and Mohd. Iliyas. The alleged Wills nevertheless
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeded on the basis that they were sole owners thereof. Such incorrect description of ownership by
persons who were fully aware of the constitution and ownership of their business concerns constituted a
suspicious circumstance casting doubt upon the authenticity of the alleged Wills. [Paras 75 to 77]

Will-Propounder not entering witness box-Effect.

HELD: The propounder of the alleged Will of Mohd. Anas, namely plaintiff Mohd. Mubin, did not enter the
witness box to explain or dispel the suspicious circumstances surrounding the Will. Failure of the principal
beneficiary and propounder to lead evidence in support of the Will constituted an additional circumstance
militating against acceptance of the document. [Paras 78 and 79]

Will-Contradictory evidence regarding place of execution-Suspicious circumstance.

HELD: The alleged Wills were shown in the documents to have been prepared by a deed writer at Sahawar,
District Kasganj, whereas the attesting witnesses deposed that the Wills were prepared at Standard Cold
Storage, Ganjdundwara and Standard Handloom, Ganjdundwara respectively. The contradiction regarding the
place of preparation and execution of the Wills created a serious suspicion which remained unexplained.
[Paras 80 and 81]
Will-Bequest of property not exclusively owned by testator-Suspicious circumstance.

HELD: The evidence disclosed that the house allegedly bequeathed by Mohd. Iliyas to his wife had been
acquired jointly with other co-owners. The recital in the Will treating the property as exclusively belonging to
the testator was inherently improbable and constituted another suspicious circumstance surrounding the
execution of the Will. [Paras 82 to 84]

Necessary parties-Suit founded on Will-Consent of heirs required under Muslim Law-Nonimpleadment of all heirs.

HELD: Since consent of all heirs was legally necessary for giving effect to a bequest in favour of an heir, all
legal heirs of deceased Mohd. Iliyas were necessary parties. The plaintiffs impleaded only one son of Mohd.
Iliyas and omitted his wife, daughters and another son. In absence of such necessary parties, the suit suffered
from non-joinder. [Para 69]

Sale deed-Execution by co-heirs claiming inheritance-Cancellation-Absence of partition suit.

HELD: Even if the alleged Wills were disregarded, the plaintiffs and defendants alike were legal heirs of the
deceased and possessed inheritable interests in the property. The sale deed executed by some of the heirs in
favour of the purchasers could not be declared void ab initio merely because the plaintiffs asserted a
competing claim. At best, a dispute regarding the extent of inherited shares could arise, for which the
appropriate remedy was partition. In absence of a prayer for partition, the plaintiffs were not entitled to
cancellation of the sale deed. [Para 86]

Specific Relief Act, 1963-Section 41(h)-Permanent injunction-Availability of efficacious
remedy of partition-True owner not liable to be restrained.

HELD: The purchasers derived title through legal heirs who had inherited a share in the property. Where an
efficacious remedy of partition was available and had not been sought, the plaintiffs were not entitled to
permanent injunction. A person who fails to establish title cannot seek to restrain the true owner or persons
claiming through lawful title. The suit for injunction was barred under Section 41(h) of the Specific Relief Act,
1963. [Paras 88 to 91]

Civil Procedure-First Appeal-Dismissal at admission stage.
3 All. Mohd. Mubin & Anr. Vs. Ateeq Ahmad Kaif & Ors.
1073
HELD: The trial court correctly held that the alleged Wills were inoperative and surrounded by suspicious
circumstances and that the plaintiffs were not entitled to cancellation of the sale deed or injunction. No
ground for interference in appellate jurisdiction was made out. The appeal was liable to be dismissed under
Order XLI Rule 11 C.P.C. [Paras 85, 92 and 93]

Appeal dismissed at the admission stage. (E-14)

Case Law Cited
Zoharbee and Another v. Imam Khan (D) through LRs and Others, 2025 SCC OnLine SC 2252 -
relied on; Sulaxani and Another v. Sattar Ali and Others, 2022 SCC OnLine Chh 803 - relied on;
Mohammed Haneefa v. Salim, 2011 SCC OnLine Ker 3700 - relied on; Mohamed v.
Kunhalankutty and Others, RSA No. 607 of 2023, Neutral Citation No. 2023:KER:65466 - relied
on; Nazar Deen v. Sadar Deen, 2013 SCC OnLine HP 1077 - relied on; H. Venkatachala Iyengar
v. B.N. Thimmajamma, 1958 SCC OnLine SC 31 - relied on; Shashi Kumar Banerjee v. Subodh
Kumar Banerjee, 1963 SCC OnLine SC 114 - relied on; Shivakumar v. Sharanabasappa, (2021)
11 SCC 277 - relied on; Padhiyar Prahladji Chenaji (Dead) through LRs v. Maniben Jagmalbhai
(Dead) through LRs, (2022) 12 SCC 128 - relied on; Ratnagiri Nagar Parishad v. Gangaram
Narayan Ambekar, (2020) 7 SCC 275 - relied on; Sanjay Paliwal v. Bharat Heavy Electricals Ltd.,
2026 SCC OnLine SC 83 - relied on; Gurdial Singh (Dead) through LRs v. Jagir Kaur (Dead) and
Another, 2025 SCC OnLine SC 1466 - relied on; Jamil Ahmad v. Vth ADJ, Moradabad, (2001) 8
SCC 599 - referred to; Trinity Infraventures Ltd. v. M.S. Murthy, 2023 SCC OnLine SC 738 -
referred to; Abdul Manan Khan v. Murtuza Khan, AIR 1991 Pat 154 - referred to; Noorunissa v.
Rahaman Bi, (2001) 3 Mad LJ 141 - referred to; Bayabai v. Bayabai, AIR 1942 Bom 328 -
referred to; Narunnisa v. Shek Abdul Hamid, AIR 1987 Kar 222 - referred to; Salayjee v.
Fatimabi, AIR 1922 PC 391 - referred to; Ghulam Mohammad v. Ghulam Hussain, AIR 1932 PC
81 - referred to; Mahomed Ata Husain Khan v. Husain Ali Khan, AIR 1944 Oudh 139 - referred
to; Rahummuth Ammal v. Mohammed Mydeen Rowther, (1978) 2 Mad LJ 499 - referred to;
Mahaboobi v. Kempaiah, AIR 1955 Mys NUC 705 - referred to; Sajathi Bi v. Fathima Bi, AIR
2002 Mad 484 - referred to.

List of Acts / Statutes/Books
Code of Civil Procedure, 1908; Specific Relief Act, 1963; Indian Evidence Act, 1872; Indian Succession Act,
1925; Mulla's Principles of Mahomedan Law.

List of Keywords
Mohammedan Law; Sunni Hanafi Law; Bequest to heir; Consent of heirs; Inoperative Will; Suspicious
circumstances; Proof of Will; Propounder; Attesting witness; Non-joinder of necessary parties; Partition;
Cancellation of sale deed; Permanent injunction; Co-heirs; Testamentary succession; Judicial conscience.

Case Arising From
Judgment and decree dated 20.01.2026 passed by the Civil Judge (Senior Division), Kasganj in Original Suit
No. 174 of 2016, Mohd. Mubin and Another v. Ateeq Ahmad Kaif and Others

Appearance for Parties
For the Appellants: Sri Devansh Misra and Sri Mohd. Afzal.
For the Respondents: Sri Prem Chandra and Sri Sudhanshu Kumar.

(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant appeal has been filed under Section 96 C.P.C. against the impugned judgment
and decree dated 20.01.2026, passed by the Court of Civil Judge (Senior Division), Kasganj, in
Original Suit No. 174 of 2016 (Mohd. Mubin and another vs. Ateeq Ahmad Kaif and others),
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
whereby the plaintiffs suit seeking cancellation of the registered sale deed dated 24.10.2016,
executed by the defendants of the second set in favour of the defendants of the first set, and also
seeking the relief of permanent injunction restraining the defendants from interfering with their
peaceful possession of the disputed property, has been rejected.

Plaint Case

2. The factual matrix is that the plaintiffs instituted Original Suit No. 174 of 2016 against
defendants nos. 1 to 3, who are referred as defendants of the first set, who have purchased disputed
property through sale deed dated 24.10.2016, from defendants no.4 to 13, who are the legal heirs of
Mohd. Iliyas and Mohd. Anas, referred as defendants of 2nd set. Defendant no. 4, Mohd. Uwais is
the son of deceased Mohd. Iliyas, and defendants nos. 5 to 13, are the legal heirs of deceased
Mohd. Anas.

3. It was averred in the plaint that Mohd. Anas died on 12.10.2015, leaving behind his legal
heirs, namely plaintiff no. 1, Mohd. Mubin, and defendants nos. 5 to 13.

4. It was further pleaded that Mohd. Iliyas died on 29.01.2016, leaving behind his son,
plaintiff no. 2 Mohd. Parvez, and defendant no. 4 Mohd. Uwais, as well as wife, one more son and
nine daughters. However, the said legal heirs were not impleaded as parties to the suit.

5. The plaintiffs further averred that Mohd. Anas and Mohd. Iliyas were close friends, who
jointly carried on a handloom business under the name and style of Ajnam Standard Store,
Ganjdundwara; M. Textile, Sujawalpur; and Standard Cold Storage, Ganjdundwara, in which they
were having 1/2-1/2 ownership.

6. It was further averred that Mohd. Anas and Mohd. Iliyas had jointly purchased through
sale deed dated 01.05.2004, a two-storey shopping complex at Kasganj. It was also averred that
Mohd. Anas, prior to his death, executed a Will dated 16.08.2015, and similarly, Mohd. Iliyas
executed a Will dated 07.01.2016. On the basis of the aforesaid Wills, the plaintiffs became joint
owners in possession of an equal half share in the disputed property, in respect of which the
defendants have no right, title, or interest.

7. It was further averred that the mother and other siblings of plaintiff no.1, who were
arrayed as defendants no.5 to 13 and the siblings of plaintiff no.2 bore enmity towards the
plaintiffs, who were trying to interfere in the peaceful possession of the disputed property, which
was with the plaintiffs.

8. It was further averred that the disputed property, which is in the nature of shops and
house was in the possession of the plaintiffs, some of which has been rented regarding which rent
receipts have been issued.

9. It was further averred that no formal partition has taken place between the plaintiffs
regarding the disputed properties, and after the death of Mohd. Anas and Mohd. Iliyas, the
plaintiffs became owner of equal share in the disputed property.
3 All. Mohd. Mubin & Anr. Vs. Ateeq Ahmad Kaif & Ors.
1075
10. It was further averred that the defendants of the second set, who are legal heirs of
deceased, Mohd. Iliyas and Mohd. Anas, who are defendants no.4 to 13, have illegally executed the
sale deed of the disputed property without any right, title and interest in favour of the defendants of
the first set on 24.10.2016, which was void ab initio and liable to be cancelled.

11. It is the specific case of the plaintiffs that the defendants have got no right title or
interest in the disputed property.

12. In the above backdrop, the plaintiffs have claimed the following reliefs:-

 (i). By decree of the Court, the sale deed dated 24.10.2016 regarding the disputed
property, which has been executed by the defendants of the second set in favour of the defendants
of the first set be declared void ab initio and cancelled and its information be sent to the concerned
Sub Registrar.

 (ii). By decree of permanent injunction granted in favour of the plaintiffs against the
defendants, the defendants, their family members, servants and representatives be restrained from
illegally occupying, constructing, altering and executing a sale deed in respect of the disputed
property and also from interfering in the peaceful possession of the plaintiffs.

Written Statement of the defendants

13. The defendants submitted their written statement before the trial court, in which, they
denied that Mohd. Anas had executed a Will on 16.08.2015 and Mohd. Iliyas had executed a Will
on 07.01.2016. The defendants claimed that since they have inherited the disputed property, they
had a right to execute the sale deed regarding the disputed property in favour of the defendants of
the 1st set.

14. It was specifically pleaded that both the above alleged Wills were forged and fabricated
documents, on the basis of which, no right title and interest has accrued to the plaintiffs in the
disputed property.

15. It was further averred that Mohd. Anas had equal love and affection for his all the sons,
daughters and wife, as such, there was no reason for Mohd. Anas to execute the Will in favour of
the plaintiff no.1 Mohd. Mubin.

16. It was further averred that no family settlement took place between Mohd. Anas and his
son Mohd. Mateen on 31.05.2012 whereby the son was debarred from inheriting the properties of
the deceased. It was further averred that after the death of Mohd. Iliyas, all his legal heirs became
the owners of the disputed property as such, the defendants of the 2nd set had executed the sale
deed regarding their respective share in the disputed property, in favour of defendants of the 1st set.
It was further averred that as owner of M.M.Textiles, the name of Mohd. Uwais and Mohd. Ameen
was recorded in District Industries Centre Kasganj, hence, no Will could have been executed
regarding this property by Mohd. Anas and Mohd. Iliyas. Similarly, the ownership of Standard
Cold Storage vested in Mohd. Anas, Mohd. Iliyas, Mohd. Iqbal, Mohd. Anwar, Mohd. Farruq,
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
Mohd. Zaki, Mohd. Taki and Mohd. Mubin as such, Mohd. Anas and Mohd. Iliyas could not have
executed the Will regarding the entire Cold Storage.

17. It was further averred that the ownership of Standard Handloom Store vested in Mohd.
Anas, Mohd. Iliyas, Mohd. Zaki and Mohd. Iqbal as such, Mohd. Anas and Mohd. Iliyas could not
have alone executed the Will regarding this property.

18. It was further averred that the house which was bequeathed to the wife of Mohd. Anas
was jointly owned by Mohd. Anas and Mohd. Bilal, as such, no Will could have been executed
regarding this house by Mohd. Anas. It was further averred that after the death of Mohd. Anas and
Mohd. Iliyas, the names of their legal heirs were mutated as owners in the agricultural land and
thereafter, Smt.Naseem Begum the wife of deceased Mohd.Iliyas, executed the sale deed of her
share in the agricultural land in which the plaintiff Mohd. Pervez was a witness, which also proves
that the alleged Wills are forged and fabricated.

19. It was further averred that the house bequeathed to Smt. Naseem Begum by Mohd.
Iliyas was purchased through 2 sale deeds. One sale deed was executed in favour of Mohd. Iliyas
and Mohd. Iqbal whereas, the other sale deed was executed in favour of Mohd. Shareef and Mohd.
Younis, as such, Mohd. Iliyas was not the sole owner of that house who could not have executed
the Will regarding it. It was further averred that in the alleged Will's, shops situated in Mohalla
Ganeshpur are constructed on agricultural land, the ownership of which is vested in the legal heirs
of Mohd. Anas and Mohd. Iliyas, hence no Will could have been executed by them regarding these
shops. It was further averred that plaintiffs are neither owner of the disputed property nor in its
possession. The plaintiff's suit is barred under Section 31 and 41 of the Specific Relief Act. The
plaintiff's have got no right to get the sale deed cancelled.

20. It was also averred that the Will was also related to some agricultural property of which
registration was required. It was also averred that according to the Muslim Law, the alleged Wills
could not have been executed.

Issues framed by the trial court

21. The trial court on the basis of the pleadings of the parties framed the following issues:-

 (i). Whether the plaintiffs are the owner in possession of the disputed property, as
described in the plaint?

 (ii). Whether the sale deed dated 24.10.2016, has been illegally executed regarding the
disputed property which is void ab initio?

 (iii). Whether a Will has been executed on 16.08.2021 regarding the disputed property?

 (iv). Whether the suit has been insufficiently valued?

 (v). Whether the court fees paid is insufficient?
3 All. Mohd. Mubin & Anr. Vs. Ateeq Ahmad Kaif & Ors.
1077
 (vi). Whether the suit is barred by Sections 34, 38 and 41 of the Specific Relief Act, 1963?

 (vii). Where any cause of action has accrued to the plaintiffs?

 (viii). To what relief, the plaintiffs are entitled?

Oral Evidence of the parties

22. The plaintiffs examined Mohd. Pervez as PW-1, Khalilurrahman as PW-2, Mohd. Taki
as PW-3 and Naeem Akhtar as PW-4, whereas the defendants examined Ateeq Ahmed as DW-1
and Mohd. Abbas as DW-2.

23. PW-1 Mohd. Pervez deposed in his examination in chief that Mohd. Anas died on
12.10.2015 leaving behind his wife Smt. Shakila, 4 sons and 5 daughters, as his heirs. Similarly,
Mohd. Iliyas died on 29.1.2016 leaving behind his 3 sons, 9 daughters and wife Smt. Naseem
Begum. He further deposed that Mohd. Iliyas and Mohd. Anas were very close friends, who had a
joint business, who used to frequently visit the handloom business, which was in the name and
style of Standard Store, Ganjdundwara, M. Textile Sujawalpur and Standard Cold Storage
Ganjdundwara, in which they were having equal share of 1/2-1/2. He further deposed that the
disputed property was jointly owned by Mohd. Iliyas and Mohd. Anas, which was purchased
through sale deed dated 1.5.2004. He further deposed that prior to his death Mohd. Anas had
executed a Will on 16.8.2015, by which his property was bequeathed to his legal heirs. He further
deposed that Mohd. Anas had entered into a family settlement with his son Mohd. Mateen on
31.5.2012, as such, Mohd. Mateen was not bequeathed any property. He further deposed that
similarly Mohd. Iliyas had executed a Will on 07.1.2016 bequeathing his property to his legal heirs.
He deposed that on the basis of the above Wills, the plaintiffs are the owner in possession of the
disputed property, in which the defendants have got no right title and interest. He further deposed
that vide sale deed dated 24.10.2016 executed by defendant of the 2nd set, the disputed property
has been sold to defendant of the 1st set, without any right, the sale deed being void-ab-initio,
whose cancellation is necessary.

24. In cross-examination, PW-1 deposed that the wife of Mohd. Iliyas, who is also his
mother, namely Naseem Begum has died on 26.8.2021. He accepted that when his father Mohd.
Iliyas died on 29.1.2016, his mother and all siblings were alive. He also accepted that the wife of
Mohd. Anas, namely Shakila Begum has died in the year 2021. He accepted that when Mohd. Anas
died his wife, sons and daughters were alive. He accepted that Mohd. Anas and Mohd. Iliyas were
Sunni Muslim. He accepted that he has not impleaded his sisters in the suit. He accepted that the
property on which Standard Handloom Store, Ganjdundwara was situated, was owned by Mohd.
Anas and Mohd. Iliyas along with others. He also accepted that in the business of Standard
Handloom in the year 2015, there were 4 partners namely Mohd. Anas, Mohd. Iliyas, Mohd. Pervez
and Mohd. Mubin. He accepted that he has not seen the sale deeds of the properties owned by
Mohd. Anas and Mohd. Iliyas. He failed to disclose the names of partner and director of the firms
Standard Handloom and Standard Cold Storage. He admitted that besides his brother Mohd. Uwais
and himself, none of his siblings have been impleaded as a party to the suit.
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
25. He further disclosed that on the day his father Mohd. Iliyas executed his alleged Will,
he did not accompany him. The Will was written on stamp papers of ₹ 10/- denomination, which
were purchased by his father from Patiyali, the Will was scribed by Kishan Chand. Patiyali is the
tehsil of Ganjdundwara. He denied the suggestion that the alleged Will of his father was a forged
and fabricated document, which does not contain the signature and thumb impression of his father.
He accepted that sale deed of the disputed property was executed in favour of defendants of the 1st
set, by his brother, sisters and mother. He also accepted that in the property of Standard Cold
Storage there were several partners namely Mohd. Anas, Mohd. Iliyas, Mohd. Iqbal, Mohd. Anwar,
Mohd. Farooq, Mohd. Zaki, Mohd. Taki and Mohd. Mubin. He also accepted that in the property
Standard Handloom Mohd. Anas, Mohd. Iliyas, Mohd. Zaki and Mohd. Iqbal were partners. He
also accepted that after his father's death, insofar as the agricultural land was concerned, the names
of his mother, his other brothers including himself and unmarried sisters were mutated. He also
accepted that the heirs were free to sell the property, as per the Will. He also accepted that he is the
attesting witness of the sale deeds, executed regarding the land, which was sold by his mother and
sisters. He also accepted that the house which was bequeathed to his mother by the alleged Will of
his father, was purchased by his father Mohd. Iliyas and his(father's) brothers, through 2 sale deeds.
He also accepted that when his father had executed his alleged Will, at that time Mohd. Anas had
already died on 12.10.2015.

26. Khalilurrahman PW-2 deposed in his examination-in-chief that Mohd. Anas had
executed a Will on 16.8.2015 in favour of Mohd. Mubin, on which he signed as attesting witness
alongwith Nathoo Shah. They Will was scribed on the direction of Mohd. Anas by Kishan Chand
Saxena, deed writer Tehsil Sahawar, District Kasganj, on stamp papers, which was signed and
thumb affixed by Mohd. Anas after reading it, in his and Nathoo Shah's presence. The Will was
written on four stamp papers of ₹ 20/- denomination. On this Will photographs of the testator and
attesting witnesses were pasted.

27. PW-2 deposed in cross-examination that he met Mohd. Anas for the first time in the
year 1995, when his(Mohd.Anas) factory in industrial area, Sahawar road, Sujawalpur was under
construction. Mohd. Mubin is the son of Mohd. Iliyas, he knows Mohd. Mubin for the last 35
years, he has family relations with him. He was told by Mohd. Mubin to give his testimony. There
was a difference in age of 20 years between him and Mohd. Anas. He participated in the funeral of
Mohd. Anas, who died on 12.10.2015 in Apollo Hospital, Delhi. He used to have talks with Mohd.
Anas, but no talks regarding his(Mohd.Anas) children ever took place. He was never told by Mohd.
Anas regarding the properties he possessed. Mohd. Anas never had any talk with him regarding any
Will. Mohd. Anas never went with him to Etah. He was never told by Mohd. Anas that he will get a
deed prepared by deed writer in Tehsil Sahawar. He has no knowledge whether Mohd. Anas and
Mohd. Iliyas went to Tehsil Sahawar for preparation of any deed. The alleged Will was scribed by
Kishan Chand Saxena. He reached around 1:30 2:00 PM, he was telephoned by Mohd. Anas,
Mohd Mubin was not present, the Will was prepared in his presence, which was dictated by Mohd.
Anas, but he was not aware, which property was bequeathed to whom. He does not remember
anything about the contents of the Will, but he remembers, that a Will was prepared. He was never
told by Mohd. Anas whether a dispute exists or not, between him and his children regarding
property. The children of Mohd. Anas were not present, when the Will was prepared. He accepted
that the agricultural land of Mohd. Anas was included in the Will. He was not aware who, when
3 All. Mohd. Mubin & Anr. Vs. Ateeq Ahmad Kaif & Ors.
1079
and from where the stamps were purchased, he was not aware whether the stamps were available or
not, in Tehsil Sahawar. He further deposed that it took about 3 hours for preparing the Will. He was
called by Mohd. Anas at Standard Cold Storage, Ganjdundwara for the preparation of Will, and
was not directed to come to Tehsil Sahawar. He denied the suggestion that no such alleged Will
was executed by Mohd. Anas, which was prepared fraudulently by him in collusion with Mohd.
Mubin.

28. Mohd. Taki PW-3 deposed in his examination-in-chief that plaintiff Mohd. Pervez is
the son of Mohd. Iliyas, in whose favour a Will was executed on 7.1.2016 by Mohd. Iliyas , on
which he along with Rasool Ahmed Ansari had signed as attesting witness. He further deposed that
the Will was prepared on the direction of Mohd. Iliyas by Kishan Chand Saxena, deed writer,
Tehsil Sahawar, District Kasganj, on stamp papers, in his handwriting. After its preparation, it was
signed and thumb impression was affixed on it, by Mohd. Iliyas in his and Rasool Ahmed Ansari's
presence. The Will was prepared on 4 stamps of Rs.10/- denomination, on which the photographs
of the testator and attesting witnesses were also pasted.

29. PW-3 in cross-examination deposed that Mohd. Anas was his brother, who died on
12.10.2015. Mohd. Anas has 4 sons and 4 daughters, whose wife is not alive. He was not aware
whether Mohd. Anas equally loved his children or not. He knew Mohd. Iliyas for the last 30 40
years, who has 3 sons and 9 daughters, whose wife died about 3 4 years back. Mohd. Iliyas and
Mohd. Anas started their business in partnership about 50 years back, from clothes in Standard
Handloom. When this witness was asked whether he was the co-owner of Standard Cold Storage
along with Mohd. Anas, Mohd. Iliyas and others, then he feigned ignorance about it, which is very
surprising. Mohd. Iliyas knew both Hindi and English. An accountant was employed in Standard
Handloom, who used to keep accounts, which was frequently checked by Mohd. Iliyas and Mohd.
Anas. He accepted that all the properties of Mohd. Iliyas were situated in Tehsil Patiyali. He
accepted that Mohd. Iliyas bequeathed his agricultural land to all his heirs, because he saw that
deed, which was prepared on 7.1.2016 at Standard Handloom. He was called to Standard
Handloom, at that time Mohd. Iliyas, Rasool Ahmed and some scribe were present. Prior to
7.1.2016, he had no conversation with Mohd. Iliyas regarding the Will. At that time, no employee
of Standard Handloom was present. He reached there after having lunch, he does not remember the
time when he reached. He knew Rasool Ahmed previously, who was a clerk in a school. He was
not aware which property was bequeathed to whom in the Will. He never went to Sahawar and
Patiyali with Mohd. Iliyas regarding the preparation of Will. Mohd. Iliyas had taken out 4 stamps
of ₹ 10/- denomination each and a white paper in his presence and then dictated the Will. The
stamps were not purchased by him, he was not aware by whom and when, they were purchased. He
accepted that Mohd. Mubin and Mohd. Pervez used to sit at Standard Handloom. He was not aware
whether Mohd. Iliyas used to equally love his children or not. He never had any talk with Mohd.
Iliyas in this regard. He was not consulted about the Will by Mohd. Iliyas. He denied the
suggestion that the Will was prepared fraudulently in collusion with him, by Mohd. Mubin and
Mohd. Pervez. He was not aware regarding the Will of Mohd. Anas.

30. Naeem Akhtar PW-4, who was a tenant in the disputed property, deposed in his
examination in chief that he is the tenant of Mohd. Mubin and Mohd. Pervez, who are his
landlords, to whom rental of the shop at the rate of ₹ 7,150/- per month is being paid by him. He
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
deposed that besides Mohd. Mubin and Mohd. Pervez, none other family member has demanded
rent from him. He further deposed that originally his brother Mohd. Haseeb was the tenant in the
shop, and after he vacated the shop, now he's the tenant. He was aware that Mohd. Mubin and
Mohd. Pervez are the owners of the disputed property on the basis of Will executed by their father.

31. In cross-examination, he disclosed that he has filed a case against defendants of the 1st
part, for obtaining compensation regarding damage caused to his shop. He denied that he has
written anything in his evidence affidavit regarding the alleged Will of Mohd. Anas and Mohd.
Iliyas.

32. Ateeq Ahmed, defendant no.1 examined himself as DW-1, who deposed in his
examination-in-chief that the plaintiffs are not the owner in possession of the disputed property. He
deposed that the disputed property was owned by Mohd. Anas and Mohd. Iliyas, who purchased it
through sale deed dated 01.5.2004, and after their death, on the basis of mutual consent, the
defendants of the 2nd set, became the owner in possession of the disputed property, which was sold
by them to the defendants of the 1st set through sale deed, and now defendants of the 1st set are the
owners in possession of the disputed property, which has been sold to them through the above sale
deed. He specifically denied that no Will was ever executed by Mohd. Anas and Mohd. Iliyas
during their lifetime, the alleged Will was forged and fabricated, which was prepared to usurp the
disputed property and depriving the other legal heirs of their rights in the disputed property. It was
further deposed that Mohd. Anas and Mohd. Iliyas equally loved their children and wife, as such,
the alleged Will which created difference between their wife and children, could not have been
executed by them. It was further deposed that Mohd. Anas and Mohd. Iliyas were aware that as per
the Sunni Muslim law they could not have bequeathed their entire property through Will, as such
no question arises of executing of any Will regarding the entire property.

33. It was further deposed that the business of MM textiles, Sujawalpur was registered in
the ownership of Mohd. Uwais and Mohd. Ameen, in District Industries Centre Kasganj, as such no
question arises of execution of any Will by Mohd. Anas and Mohd. Iliyas regarding this property.

34. Ateeq Ahmed DW-1 further deposed in his examination-in-chief that the plaintiffs are
not the owners in possession of the disputed property. The disputed property was purchased by
Mohd. Anas and Mohd. Iliyas and after their death, in accordance with the oral agreement reached
between their legal heirs, the defendants of the 2nd set became the owners in possession of the
disputed property, which was subsequently sold to defendants of the 1st set through sale deed. It
was further deposed that Mohd. Anas and Mohd. Iliyas never executed any Will during their
lifetime in favour of the plaintiffs and the alleged Will was forged which was fabricated to usurp
the property of the deceased and to deprive the legal heirs from their rightful share in the disputed
property. It was further deposed that Mohd. Anas and Mohd.Iliyas used to equally love their
children and wife as such, the alleged Will which accorded differential treatment to the children,
could never have been executed by them. It was further deposed that Mohd. Anas and Mohd. Iliyas
were well aware that as per the Sunni Muslim law they cannot execute any Will regarding their
entire property, as such, the alleged Will regarding the entire property could not have been
executed by them. It was further deposed that the business of MM Textiles Sujawalpur was
registered in the name of Mohd. Uwais and Mohd. Ameen at District Industries Centre Etah,
3 All. Mohd. Mubin & Anr. Vs. Ateeq Ahmad Kaif & Ors.
1081
currently District Industries Centre Kasganj, as such, Mohd. Anas and Mohd. Iliyas could not have
executed any Will regarding this property.

35. It was further deposed that the ownership of Standard Cold Storage vested in Mohd.
Anas, Mohd. Iliyas, Mohd. Iqbal Hussain, Mohd. Anwar, Mohd. Farruq, Mohd. Zaki, Mohd.Taki
and Mohd. Mubin as such, Mohd. Anas and Mohd. Iliyas could not have executed the Will
regarding the entire Cold Storage.

36. It was further deposed that the ownership of Standard Handloom Store vested in Mohd.
Anas, Mohd. Iliyas, Mohd. Zaki and Mohd. Iqbal Hussain as such, Mohd. Anas and Mohd. Iliyas
could not have executed any Will regarding the above property. It was further deposed that the
house bequeathed to the wife of Mohd. Anas and Mohd. Iliyas, did not belong to Mohd. Anas and
Mohd. Iliyas as such, no Will could have been executed regarding that house.

37. It was further deposed that insofar as the agricultural land was concerned, the names of
all the legal heirs of the deceased Mohd. Anas and Mohd. Iliyas were mutated in the revenue
records and thereafter, Smt.Naseem Begum, who is the wife of Mohd. Iliyas executed the sale deed
in respect of her share in the agricultural land, in which the plaintiff No. 2 Mohd. Pervez was a
witness, which also proves that the alleged Will's are forged and fabricated. It was further deposed
that the plaintiffs are not the owners in possession of the disputed property, who have fabricated
forged rent deeds and receipts.

38. It was further deposed that the defendants of the 1st set are the owner in possession of
the disputed property on the basis of sale deeds executed in their favour by the defendants of the
2nd set. Further, the defendants of the 1st set are bonafide purchasers of the disputed property as
such, the plaintiffs have got no right to get the alleged sale deed cancelled.

39. DW-1 in cross-examination accepted that Mohd. Anas and Mohd. Iliyas were the
owners of the disputed property, which has been purchased by him through sale deed dated
24.10.2016. He further deposed that he came to know about the family settlement between the legal
heirs of Mohd. Anas and Mohd. Iliyas, from some of the legal heirs of the deceased. Standard Cold
Storage was auctioned by bank on 24.8.1997, in favour of Mohd. Anas, Mohd. Iliyas, Mohd.