LAW SCHOOL, COURT ROOM EXERCISE

IN THE HONBLE HIGH COURT OF INDIA AT 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

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 251 5. 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 CIVIL PROCEDURE CODE,1908 j FOREIGN EXCHANGE MANAGEMENT ACT,1999

WEBSITES

1. www.munupatra.com 2. www.juris.nic 3. www.indlaw.com 4. www.indiankanoon.com 5. www.indianpundit.com

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

M.P. Jain, Indian Constitutional Law, Vol. 1, 5th ed. 2003, Wadwa and Company, Nagpur. 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 plaintiff who seeking partition of the 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 under will of Syeda Faqur Noorjahan and claiming tha property belongs to them and they have entered into an Agreement of Salecum- General Power of Attorney for demolition of the house existing 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 2/3 of the property. As making will 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 quash the decision of lower court and allow them to start the construction work.

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ISSUES RAISED

1. WHETHER MAKING WILL IS PERMISSIBLE UNDER MUSLIM LAW OR NOT?

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IS RESPONDED ENTITLED FOR 2/3 OF THE PROPERTY OR NOT?

2. WHETHER RESPONDENT CAN BE PROHIBITED FROM ACQUIRING PROPERTY RIGHTS IN INDIA BY VIRTUE OF FOREIGN EXCHANGE MANAGEMENT?

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SUMMARY OF ARGUEMENTS 1. WHETHER MAKING WILL IS PERMISSIBLE UNDER MUSLIM LAW OR NOT? Under pure Islamic law will is permissible but under prescribed limit.Muslims has a right of testamentary disposition of his property or in other words he may dispose of his property by making a will or wasiyat 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 be exercised to the injury of the lawful heirs.
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IS RESPONDED ENTITLED FOR 2/3 OF THE PROPERTY OR NOT?

1. Here in the present case appellants have entered into a development agreement and under the said agreement the appellants are demolishing the existing 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 the whole property of the deceased through the will 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 law wants 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 ACQUIRING PROPERTY RIGHTS IN INDIA BY VIRTUE OF FOREIGN EXCHANGE MANAGEMENT? Sec 6(3)(i) of FEMA will not be applicable on the respondent as Citizenship Certificate was 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 acquiring Property rights in India

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ARGUEMENTS ADVANCED

1. WHETHER MAKING WILL IS PERMISSIBLE UNDER MUSLIM LAW OR 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 of wills is also subject to Indian Succession act, 1925. The term Will is defined under sec 2(h) of Indian Succession Act, 1925 2.It says that for a valid will there must be: 1. 2. 3. 4. Legal Declaration Legal declaration should be related to his own property. Take effect after his death 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 other words he may dispose of his property by making a will or wasiyat 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 be exercised to the injury of the lawful heirs. 5

IS RESPONDED ENTITLED FOR 2/3 OF THE PROPERTY OR NOT? Respondent being the legal heir of Syeda Faqur Noorjahan is entitled for 2/3 of her property. Making will is permissible under Islamic Law but testator can dispose only 1/3 of his property. According to Hedaya6:

Mohammad Ali: Manual of Hadith (Lahore 1944),344-35,No2 "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 153 4 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 two ways .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 estate whether in favour of stranger or his heirs.7 2. If will 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 the estate of a testator.9 To substantiate the stand of the Respondent the case of Bedrul Islam v Ali Begum10, is worth mentioning. , In this case the the honble High court of Lahore 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 the extent of one-third of the testators property without the concurrence of the testators heirs.

Damodar Kashinath Rasana v. Smt Shahajad Bibi, 1988(2) Bom CR 339. Also observed in Furkan v. Mumtaz Begaum, AIR 1971 Raj 149. 9 Baillie II , 247 10 AIR 1935 Lah 251 11 1986(1)civil LJ 476 at p. 502(ALL)
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WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

Here in the present case appellants have entered into a development agreement and under the said agreement the appellants are demolishing the existing 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 the whole property of the deceased through the will 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 law wants 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 ACQUIRING PROPERTY 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 Certificate was 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.
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Sec 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 be graciously pleased to 1. Quash the writ 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 of which respectfully submitted S/r:______________________ Counsel for the Respondent

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