Dismissed

Mohammad Altaf v. Zahoor Ahmad and 10 Ors.

Allahabad HC10 Feb 2020SAPL/19/2016

Case brief

AI extract

What is this about?

In this second appeal, the High Court dismissed the appeal. The court rejected an application to produce additional evidence under Order 41 Rule 27 CPC. On merits, relying on the lower courts' findings, the Court upheld the decree granting the appellant 1/3rd share in the partnership business and subject property, finding the alleged oral heeba invalid due to lack of completion and contrary eviden

What did the court decide?

The appeal filed by Mohammad Altaf is dismissed, affirming the lower courts' decree granting 1/3rd share to the appellant.

Mohammad Altaf Vs Zahoor Ahmad and 10 Ors. — Partition | Allahabad HC (2020)

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Court No. - 53

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Case :- SECOND APPEAL No. - 19 of 2016

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Appellant :- Mohammad Altaf Respondent :- Zahoor Ahmad And 10 Ors. Counsel for Appellant :- Javed Husain Khan,Gulrez Khan,W.H. Khan Counsel for Respondent :- Parvez Ahmad

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Hon'ble Vivek Agarwal,J.

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Heard Sri Gulrez Khan, learned counsel for the appellant.

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Civil Misc. Application No. 109516 of 2016 has been filed under the provisions of Order 41 Rule 27 CPC seeking to produce additional evidence in the shape of hand writing expert report on document dated 25.8.1981, paper no. 50 Ga on the question of genuineness of the signatures of Rais Ahmad and also on the document dated 8.10.2012 of signatures of respondent nos. 1, 3, 4 & 5 so also to take copies of the notices of assessment on record.

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Admittedly, second appeal has been filed against the judgment and decree dated 28.9.2015 passed by learned Additional District Judge, Court No. 2, JP Nagar dismissing the Civil Appeal No. 9 of 2011, Mohammad Altaf Vs. Zahoor Ahmad and others against the judgment and decree dated 24.3.2011 passed by learned Civil Judge (SD), JP Nagar on O.S. No. 113 of 2002; whereby suit filed by the plaintiff has been decreed.

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Vide application under Order 41 Rule 27, notices issued by Nagar Palika Parishad, Amroha bearing date of 20.5.2002 and 5.2.2005 is sought to be brought on record. Similarily, Annexure-3 is an application filed by Mohmmad Altaf before the Incharge Officer, Nagar Palika Parishad, Amroha in which it is mentioned that the applicant Mohammad Altaf has withdrawn his appeal No. 29 of 1982 vide order dated 10.7.1985 from the Court CJM. Therefore, as per order dated 27.5.1985 his amount be allowed to be refunded. Annexure-4 is the letter addressed to the Incharge Officer, Nagar Palika, Amroha dated 4.3.2006. Annexure-5 is letter dated

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25.6.1981 enclosing therewith tax assessment with effect from 1.4.2006 to 31.3.2011 and 1.4.1999 rto 31.3.2002. Annexure-8 is receipt dated 23.4.10983. Thereafter there is receipt dated 23.8.200, 17.7.2002 and 13.10.2005. No report of the hand writing expert is enclosed alongwith the application under Order 41 Rule 27CPC as is mentioned in the prayer clause. Details of the documents have been discussed as have been filed by the appellant starting from Annexure-1 page-8 till last page-9. All these documents appears of a date prior to decision of the original suit on 24.3.2011. There is no justification for filing of such documents at this belated stage of second appeal.

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None of the requirement as are mentioned in order 41 Rule 27 for accepting the document on record are made out. Therefore, the application under Order 41 Rule 21 is rejected.

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On merits of the appeal, it is admitted fact that plantiff Zahoor Ahmad and others being sons of Hazi Rais Ahmad has filed suit for partition and renunciation of accounts. In this suit, it is mentioned that Shobha Singh was owner of single story house situated at Bazar Bangla Chauraha vide registered sale deed dated 22.3.1968. This property was purchased by Mohd. Sharif, Rais Ahmad, Sayeed Ahmad, Sardar Ahmad, Mohd. Altaf and Mohd. Laik vide registered sale deed dated 5.5.1981. Mohd. Sharif, Rais Ahmad, Sayeed Ahmad and Mohd. Laik transferred their rights in favour of Rais Ahmad, Sardar Ahmad and Mohd. Altaf. As per plaintiff Janata Nursing Home was opened in the partnership of defendant no. 1 and 2 by the father of the plaintiffs and Janata Drugs Emporium was also opened in which father of the plaintiff and that of defendant no. 1 and 2 were partners besides three other sons namely Hazi Buddhan, Mohd. Sharif, Sayeed Ahmad and Mohd Laik. After death of the father of the plaintiffs they have 1/3rd share in the income of the said occupation, as their father was 1/3rd partner in the said property alongwith defendant nos. 1 and 2, but after death of their father on 14.10.1998 neither any accounts have been rendered nor sharing of profits has been carried out.

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Defendant nos. 1 and 2 in their turn filed their written statement and submitted that in 1975 Mohd. Sharif, Rais Ahmad, Sayeed Ahmad, Sardar Ahmad, Mohd. Altaf and Mohd. Laik established a partnership business in the name of Janata Nursing Home and Janata Drugs Emporium in which partnership deed was executed on 28.8.1975. On 5.5.1981 Mohd. Sharif, Mohd. Sayeed and Mohd. Laik transferred their interest in favour of Rais Ahmad, Sardar Ahmad and Altaf Ahmad. As business of Nursing Home failed, therefore, a deed of dissolution was drawn on 1.4.1981 and thereafter on 25.5.1981 father of the plaintiff namely Rais Ahmad had taken his 1/3rd share from defendant no. 1 and relinquished his share in the partnership. On the basis of the such settlement of accounts, acknowledgement on revenue stamp with signatures of the father of the plaintiff was handed over to the father of defendant no.1. Similarly, defendant no. 2 had also executed a Heebanama in favour of defendant no. 1. It is also submitted that Rais Ahmad on 25.5.1981 in lieu of share in the property situated at Delhi had transferred his 1/3rd share through oral Heeba in front of the witnesses which was accepted by defendant no. 1. As a result, the defendant no. 1 came in possession of share of the property of plaintiffs father and thereafter plaintiffs are not left with any share in the property of the plaintiffs father.

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Learned Trial Court framed as many as 10 issues and in regard to issue no. 3 whether any dissolution deed of the partnership was prepared, recorded specific finding alongwith Issue No. 2 and 7 i.e. whether plaintiffs have 1/3rd share in the business of Janata Nursing Home and whether the suit is barred by period of limitation held that PW-1 Noor Mohammad has specifically stated on oath that business of Nursing Home and Drugs Emporium has not been dissolved and partnership is still intact. It has also come on record that DW-1 Sayeed Ahmad armed with the so called deed of dissolution dated 1.4.1981 had not produced it in original, but photostat copy was produced and that too was not proved by the parties as per the provisions contained in the Evidence Act and therefore it is not admissible in the evidence. It also recorded a finding that suit is not barred by partial partition and also rejected the plea of defendant no. 1 and 2 that the suit

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property is not possible tobe partitioned. It was also held that suit is not barred by the principles of estoppel and based on such analysis of the evidence held that plaintiff alongwith defendant nos. 3 to 7 are entitled to 1/3rd share in the property of disputed Nursing Home and directed defendant nos. 1 and 2 to handover 1/3rd portion of the said Nursing Home in favour of plaintiff and defendant nos. 3 to 7. The suit in relation of accounts was dismissed.

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Learned First Appellate Court has affirmed the findings recorded by the trial court and held that judgment and decree passed by the Trial Court does not call for any interference.

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Learned Counsel for the appellant vehemently submits that once Rais Ahmad had conveyed 1/3rd share of the property on the basis of oral Heebanama then plaintiffs could not claim any share in the suit property and consequently cannot claim partition.

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In this regard it is important to refer to the evidence of DW-1 Mohd. Altaf who admitted in cross examination that oral Heeba was made by Sardar Ahmad and Rais Ahmad together and when such oral Heeba was made business was also closed. When this oral Heeba was made on 25.5.1981 the day of Monday and time was about 12:00 noon. Riyazuddin and Intezar were present when oral Heeba was made at a private shop. Sons of Rais Ahmad were not present and both Sardar Ahmad and Rais Ahmad had signed separately. In the Tahrir i.e. writing number of the house and its boundaries were not mentioned. This witness also admitted that despite Heeba names of all are mentioned in the records. The Court admitted Intezar and Riyazuddin to be a witness to the Heebanama and scrutinized the evidence of Intezar Ahmad DW-3, who in his cross examination admitted that two persons had made a Heeba in favour of Dr. Altaf in front of him and three others had made Heeba earlier to that. He admitted that there was exchange of money and such money was paid by Dr. Altaf to Rais Ahmad and Sardar Ahmad. This exchange of money had taken place after execution of the document. DW-2 Sayeed Ahmad in his cross examination admitted that he is a hearsay witness. Similarly, DW-2 has

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admitted that he has no knowledge of dissolution deed. It also came on record that DW-3 has admitted that there was exchange of money and therefore trial court has rightly held that three ingredients of valid Heeba as per Mohmmandom Law could not be proved, therefore Hiba loses its sanctity. Once it has come on record and it was not a bare gift but transfer of property had taken place for consideration of money which was paid by the donee in favour of the so-called doner. It has also come on record that in the so-called Heebanama filed alongwith document No.50-C, it is mentioned that Rais Ahmad transferred his 1/3rd share in favour of Altaf Ahmad in lieu of property at Delhi whereas defendant-witness DW-3 has admitted that money transaction took place there. Even if it is, presumed that money transfer is permissible in Heeba but the writings of the Heeba turns out to be contrary to the oral evidence adduced by DW-3. Therefore, the courts below have not committed any error in discarding such Heebanama as was filed by defendant as document 50-C. The onus was on the defendant nos. 1 and 2 to prove the factum of law , but have failed to discharge his burden and therefore the factum of partition and transfer of share of property of the father of the plaintiffs could not be proved and therefore the courts below have rightly decreed the suit and dismissed the appeal. In view of such appreciation of evidence as has come on record no substantial question of law lest one proposed by the appellant in the memo of appeal are made out. Therefore, the appeal fails and is dismissed.

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Order Date :- 10.2.2020 S.K.S.

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Mohammad Altaf v. Zahoor Ahmad and 10 Ors.

Case brief

What is this about?

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Mohammad Altaf v. Zahoor Ahmad and 10 Ors.

Case brief

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