law school memorial

8/6/2019 Law School Memorial

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LAW SCHOOL, COURT ROOM EXERCISE

IN THE HONBLE HIGH COURT OF INDIAAT ANDHRA PRADESH

IN THE MATTER OF

SYED MUBASHERUDDIN AHMED & 3 ORS.............................. APPELLANTS

VERSUS

SYEDA NUZHAT MURTUZA..................................................... .....RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

MOST RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENT


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WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................3

STATUTE REFERRED..... .....................................................................3

CASES REFERRED..................................................................................3

BOOKS REFERRED......................................................................... ........3

WEBSITE....................................................................................................4

LIST OF ABBREVIATION............................................ ...........................5

STATEMENT OF JURISDICTION................... ................................................... .6

SUMMARY OF FACTS........................................................ ................................. 7

STATEMENT OF ISSUES............................................................................ .........8

SUMMARY OF ARGUEMENTS....................................................................... ...9

ARGUEMENTS ADVANCED........................................................................... .10

PRAYER............................................ ....................................................................13


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Cases Referred

1. Damodar Kashinath Rasana v. Smt Shahajad Bibi, 1988(2) Bom CR 339.2. Furkan v. Mumtaz Begaum, AIR 1971 Raj 149.3. Smt Hadi Begum v smt Hajarabi 1986(1)civil LJ 476 at p. 502(ALL)4. Bedrul Islam v Ali Begum AIR 1935 Lah 2515. Abdul Hameed v Md. Yunus,AIR 1940 Mad 153

Articles Referred

1. www.islamlaws.com/islamic-law-of-will-what-is-wasiyat-in-islam/

2. www.rbi.org.in/scripts/FAQView.aspx?Id=33


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INDEX OF AUTHORITIES

STATUTES REFFERED

j CONSTITUTION OF INDIA,1950

j CIVILPROCEDURE CODE,1908

j FOREIGN EXCHANGE MANAGEMENT ACT,1999

WEBSITES

1.www

.munupatra.com2. www.juris.nic

3. www.indlaw.com

4. www.indiankanoon.com

5. www.indianpundit.com

BOOKS

y I.B Mulla, Commentary on Mohammedan Law , 2nd ed. 2009, Dwivedi Law

Agency.

y M.P. Jain, Indian Constitutional Law, Vol. 1, 5th ed. 2003, Wadwa and

Company, Nagpur.

y Asaf A.A Fyzee, Outlines of Muhammadan Law , 5th ed. 2008, Oxford

University Press.


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LIST OF ABBREVIATIONS

AIR - All India Reporter

Anr. - Another

Art. - Article

Edn. - Edition

Honble - Honourable

i.e. - That is

Ibid - At the same place

Ltd. - Limited

Pg. - Page

Para - Paragraph

Sec. - Section

HC - High Court

u/s - Under Section

v. - Versus

Vol. Volume


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STATEMENT OF JURISDICTION

THE PETITIONER HUMBLY APPROACHES THE HIGH COURT OF ANDHRA

PRADESH UNDER ARTICLE 226 OF INDIAN CONSTITUTION, 1950 INVOKING

THE JURISDICTION OF THE COURT TO ISSUE DIRECTIONS, ORDERS, OR

WRITS UNDER 226 OF THE CONSTITUTION OF INDIA.


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SUMMARY OF FACTS

1. The respondent in the original suit herein is the plaintiffwho seeking partition ofthe suit schedule properties claiming that the same belong to late Syeda Faqur

Noorjahan, her paternal aunt, who died issueless. The appellant are the son and

husband respectively of one pre deceased Syeda Aktar Jahan, younger sister of

Syeda Faqur Noorjahan .

2. Appellant are claiming a title underwill of Syeda Faqur Noorjahan and claimingtha property belongs to them and they have entered into an Agreement of Sale-

cum- General Power of Attorney for demolition of the houseexisting on the suit

schedule property and to develop the same into a residential complex.

3. The respondent is the legal heir of the Syeda Faqur Noorjahan and is claming 2/3of the property. As makingwill is not permissible under Muslim law. Though

Respondent migrated to Pakistan but she shifted to India long back and

Citizenship Certificate has been issued to her and she is married to Indian Citizen

also. The original suit was filed by respondent seeking temporary Injunction

restraining the appellants from making further demolition of the part of the suit

schedule property. And temporary Injunction was granted to the herein respondent

4. Now this Civil Miscellaneous Appeal has been filled by the Appellant to quashthe decision of lower court and allow them to start the constructionwork.


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ISSUES RAISED

1. WHETHER MAKING WILL IS PERMISSIBLE UNDER MUSLIM LAWOR NOT?

y IS RESPONDED ENTITLED FOR2/3 OF THE PROPERTY OR

NOT?

2. WHETHER RESPONDENT CAN BE PROHIBITED FROM ACQUIRINGPROPERTY RIGHTS IN INDIA BY VIRTUE OF FOREIGN EXCHANGE

MANAGEMENT?


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SUMMARY OF ARGUEMENTS


Under pure Islamic lawwill is permissible but under prescribed limit.Muslims has a

right of testamentary disposition of his property or in otherwords he may dispose of

his property by making a will orwasiyat but his testamentary power is limited to the

disposal of only 1/3 of his property. This limitation is declared by Prophet so that the

power should not beexercised to the injury of the lawful heirs.

y IS RESPONDED ENTITLED FOR 2/3 OF THE PROPERTY OR

NOT?

1. Here in the present case appellants have entered into a development agreementand under the said agreement the appellants are demolishing the existing

structures of the property so as to raise new structures and there by altering the

nature of the suit schedule property .And they are claiming for thewhole property

of the deceased through thewill without the consent of the respondent who is the

legal heir of the deceased. Consent of the heirs have been made mandatory

because the Islamic lawwants to restrict injustice to the heirs, therefore a testator

cannot reduce orenlarge the shares of heirs. According to both the limitations laid

under Islamic Law

appellant is only entitled for 1/3th of the share in property andrest of the property belongs to the respondent who is the legal heir of the

deceased.


MANAGEMENT?

Sec 6(3)(i) of FEMA will not be applicable on the respondent as Citizenship

Certificatewas issued to respondent on 5-7-2004, the respondent came to India

long back and having married an Indian Citizen, she has been staying in India for

the past several years. Hence, Respondent is entitled for acquiringProperty rights

in India


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ARGUEMENTS ADVANCED


In general practice among Muslims in India, they do not usually make a will. But

Bukhari1

has mentioned a tradition, according to which Muslim can dispose of his

property within prescribed limit.

For Hanafi Law Hedaya is the chief source of the law concerning Wills. This

authority has been recognised by all courts but beside this authority law ofwills is

also subject to Indian Succession act, 1925.

The term Will is defined under sec 2(h) of Indian Succession Act, 19252.It says that

for a valid will there must be:

1. Legal Declaration

2. Legal declaration should be related to his own property.

3. Takeeffect after his death

4. Intention must be clear3

Under pure Islamic law all these conditions apply but also a limit is prescribed.

Muslims has a right of testamentary disposition of his property or in otherwords he

may dispose of his property by making a will orwasiyat but his testamentary power is

limited to the disposal of only 1/3 of his property.4This limitation is declared by

Prophet so that the power should not beexercised to the injury of the lawful heirs.5

IS RESPONDED ENTITLED FOR2/3 OF THE PROPERTY OR NOT?

Respondent being the legal heir of Syeda Faqur Noorjahan is entitled for 2/3 of her

property. Makingwill is permissible under Islamic Law but testator can dispose only

1/3 of his property.

According to Hedaya6:

1Mohammad Ali: Manual o f Hadith (Lahore 1944),344-35,No2

2"Will" means the legal declaration of the intention of a testator with respect to his property which

he desires to be carried into effect after his death.3

Abdul Hameed v Md. Yunus,AIR 1940 Mad 1534

M. Sautarya, quoted by Ameer Ali.5

M. Sautarya , quoted by Ameer Ali.6

The Hedaya, 671


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Wills are declared to be lawful in the Quran and the tradition; and all our doctors,

moreover, have concurred in this opinion

Islamic law has created a balance by giving the testator a limited right to dispose of his

property according to his wishes and at the same time the power has been limited to

safeguard the interest of the heirs.

The testamentary capacity of a Mohammedan is limited in twoways .He does not possess

an unlimited power of making disposition by will. The two fold restriction are in respect

of the person in whose favour the bequest made and as to what extent to which he can

dispose of his property.

The limitations or restrictions which have been put are:

1. Testator cannot will for more than 1/3 of his estatewhether in favour of stranger

or his heirs.7

2. Ifwill is made is made in favour of non- heirs or in favour of few heirs which is in

excess of 1/3 and other legal heirs do not consent to it, the bequest will take into

effect for one-third only.8

The testamentary power of a Mohammedan is limited to the bequeathable one-third. The

bequeath able one-third means a third of theestate of a testator.

9

To substantiate the stand of the Respondent the case ofBedrul Islam v Ali Begum10

, is

worth mentioning. , In this case the the honble High court ofLahore observed that a

bequest in excess of 1/3rd is not valid without the consent of the heirs.

Further in the case of Smt Hadi Begum v smt Hajarabi11

,honourable court held that a will

is valid to theextent of one-third of the testators property without the concurrence of the

testators heirs.

7Damodar Kashinath Rasana v. Smt Shahajad Bibi, 1988(2) Bom CR 339.

8Also observed in Furkan v. Mumtaz Begaum, AIR 1971 Raj 149.

9Baillie II , 247

10AIR 1935 Lah 251

111986(1)civil LJ 476 at p. 502(ALL)


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Here in the present case appellantshaveentered into a development agreement and under

the said agreement the appellants are demolishing theexisting structures of the property so as

to raise new structures and thereby altering the nature of the suit schedule property .And they

are claiming for thewhole property of the deceased through thewill without the consent of

the respondent who is the legal heir of the deceased. Consent of the heirs have been made

mandatory because the Islamic lawwants to restrict injustice to the heirs, therefore a testator

cannot reduce or enlarge the shares of heirs. According to both the limitations laid under

Islamic Law appellant is only entitled for 1/3th of the share in property and rest of the

property belongs to the respondent who is the legal heir of the deceased.


MANAGEMENT?

The respondent cannot be prohibited from acquiring property rights in India by virtue

of foreign exchange management act, 1999.

Acquisition of immovable property in India by persons resident outside India (foreign

national) is regulated in terms of section 6 (3) (i) of the Foreign Exchange

Management Act (FEMA), 1999.12

Sec 6(3)(i) of FEMA will not be applicable on the respondent as Citizenship

Certificatewas issued to respondent on 5-7-2004, the respondent came to India long

back and having married an Indian Citizen, she has been staying in India for the past

several years. Respondent is citizen of India. Therefore, this act will not be applicable

to the respondent.

Hence, it can be concluded from above arguments that respondent is entitled for 2/3rd

of the share in the property and respondent cannot be prohibited from acquiring

property rights in India by virtue of Foreign Management Act, 1999.Thus, appellants

should not be allowed to start the construction work in schedule property as it will

cause the injury to the interest of lawful heir respondent.

12Sec 6(3)Without prejudice to the generality of the provisions of sub-section (2), the Reserve Bank

may, by regulations, prohibit, restrict or regulate the following(i) acquisition or transfer of immovable property in India, other than a lease not exceeding five

years, by a person resident outside India;


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PRAYER

Wherefore in the light of issue raised, arguments advanced, reasons given and

authorities cited, the council of respondent humbly pray and implore this Honble

High court to begraciously pleased to

1. Quash thewrit petition filed by the Appellents in the Honble court of law

2. Maintain the status quo of the impugned order

Pass any other order that this court may deem fit in the interests of justice, equity and

good conscience.

Place: Andhra Pradesh

All ofwhich respectfully submitted

S/r:______________________

Counsel for the Respondent

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