law school memorial
TRANSCRIPT
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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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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
1. WHETHER MAKING WILL IS PERMISSIBLE UNDER MUSLIM LAWOR NOT?
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.
2. WHETHER RESPONDENT CAN BE PROHIBITED FROM ACQUIRINGPROPERTY RIGHTS IN INDIA BY VIRTUE OF FOREIGN EXCHANGE
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
1. WHETHER MAKING WILL IS PERMISSIBLE UNDER MUSLIM LAWOR NOT?
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.
2. WHETHER RESPONDENT CAN BE PROHIBITED FROM ACQUIRINGPROPERTY RIGHTS IN INDIA BY VIRTUE OF FOREIGN EXCHANGE
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