Court Rules Will Favoring One Heir Invalid Without Consent of Others, Protects Ex-Wife's Right to Residence Under Mohammedan Law and Transfer of Property Act
In a significant decision on property rights within Muslim joint families, the Delhi High Court on October 13, 2026, dismissed a Regular Second Appeal filed by Sheikh Firozuddin seeking exclusive possession and permanent injunction against Farida, the ex-wife of his brother, over a jointly owned family property in East of Kailash, New Delhi.
The dispute arose when Sheikh Firozuddin claimed absolute ownership of the property on the basis of a Will executed by his mother, Mst. Saidul Nisa, and a declaration of surrender by his brother Mr. Aftab Ahmad. The Plaintiff contended that the Will granted him exclusive ownership, and that Farida's occupation of a room on the first floor was unauthorized trespass. The Plaintiff further sought to restrain Farida from using common facilities and to recover damages for unauthorized occupation.
However, the trial court and the first appellate court found that the Will was not proved in accordance with the law. Crucially, the attesting witnesses' testimonies were inconsistent and the material witness was not examined, leading to doubts about the Will's authenticity. Moreover, under Mohammedan law, a Muslim cannot bequeath more than one-third of his estate to a single heir without the consent of other legal heirs. Since no such consent was proved, the Will was held valid only to the extent of one-third of the property, invalidating the Plaintiff's claim of exclusive ownership.
The declaration of surrender executed by Mr. Aftab Ahmad in favor of Sheikh Firozuddin was also found to be invalid as it was unstamped and unregistered, failing to comply with the Registration Act. This document could not extinguish the rights of Mr. Aftab Ahmad or his wife Farida over the property.
Further, Farida's right of residence was protected under Section 39 of the Transfer of Property Act, 1882, which safeguards the right of a third person entitled to maintenance against gratuitous transfers intended to defeat such rights. Since Mr. Aftab Ahmad had not validly relinquished his share, Farida, as his wife, was entitled to reside in the property and could not be treated as a trespasser.
The Court also examined the claim for a permanent injunction restraining Farida from entering any other portion of the property beyond the one room she occupied. It was found that the Plaintiff failed to demonstrate any attempt by Farida to trespass into other parts of the property. The Court emphasized that the property was joint and undivided, and the proper remedy for the parties was partition or settlement, not injunction.
The Court upheld the concurrent findings of fact by the trial and first appellate courts and declined to reappreciate the evidence in the second appeal. The substantial question of law regarding the limited injunction was answered against the Plaintiff, leading to dismissal of the appeal.
This judgment reiterates the protections afforded under Mohammedan law regarding bequests and the rights of spouses in joint family properties, and underscores the importance of proper legal formalities for declarations affecting property rights. It also clarifies that disputes over joint family property require partition or settlement rather than injunctions to restrict possession.
Bottom Line:
Mohammedan Law - Suit for possession and injunction by brother-in-law against brother's wife/ex-wife in respect of joint family property - Plaintiff failed to prove exclusive ownership on basis of Will and declaration of surrender - Under Mohammedan law, bequest by Muslim in favour of an heir beyond one-third without consent of other heirs is invalid to that extent - Wife who entered property through husband having share/claim in undivided property cannot be treated as trespasser - Unregistered and unstamped relinquishment cannot defeat her right of residence/maintenance - In absence of evidence of threatened trespass into other portions, injunction rightly refused.
Statutory provision(s):
Mohammedan Law, Transfer of Property Act, 1882 Section 39, Indian Registration Act, 1908 Sections 17 and 49, Code of Civil Procedure, 1908 Section 100
Sheikh Firozuddin v. Farida, (Delhi) : Law Finder Doc Id # 2996353
