Dismissed

Nawab Jaan v. Wazeer Ahmed

Karnataka HC4 Oct 2023RSA/1165/2015

Case brief

AI extract

What is this about?

This regular second appeal challenged a decree for partition. The court examined evidence regarding an alleged partition of inherited Muslim family property before a joint sale. Finding defendants failed to prove partition by revenue mutation or consistent evidence, the court dismissed the appeal, affirming the lower courts' decision to order partition of joint property.

What did the court decide?

Second appeal dismissed; preliminary and final decrees in favor of plaintiff for 1/3rd share in suit properties are confirmed.

Nawab Jaan Vs Wazeer Ahmed — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF OCTOBER 2023

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BEFORE

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THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

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REGULAR SECOND APPEAL NO.1165 OF 2015 (PAR)

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BETWEEN:

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NAWAB JAAN S/O LATE. MOHAMMED SAB AGED ABOUT 75 YEARS R/AT KAMANAKERE HUNDI VILLAGE KASABA HOBLI RAMANAHALLI POST MYSURU TALUK.

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...APPELLANT

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(BY SRI. ABUBACKER SHAFI, ADVOCATE)

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AND :

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WAZEER AHMED

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S/O LATE MOHAMEMD SAB DEAD BY HIS LEGAL REPRESENTATIVES

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SMT. ASMATH JAN W/O LATE WAZEER AHMED AGED ABOUT 78 YEARS

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2 . SHAHEEN TAJ D/O LATE WAZEER AHMED AGED ABOUT 47 YEARS

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3 . MOHASIN TAJ D/O LATE WAZEER AHMED AGED ABOUT 51 YEARS

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4 . MUBEEN TAJ D/O LATE WAZEER AHMED AGED ABOUT 50 YEARS

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5 . MAHABOOB PASHA S/O LATE WAZEER AHMED AGED ABOUT 50 YEARS

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6 . AMEER JAAN S/O LATE MOHAMMED SAB DEAD BY HIS LR'S

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6(A) AYUB PASHA S/O LATE AMEER JAAN AGED ABOUT 59 YEARS

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6(B) MUHEEB PASHA S/O LATE AMEER JAAN AGED ABOUT 55 YEARS

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6(C) YASMEEN TAJ D/O LATE AMEER JAAN AGED ABOUT 53 YEARS

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6(D) MUKTHAR PASHA S/O LATE AMEER JAAN AGED ABOUT 51 YEARS

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6(E) SARDAR PASHA S/O LATE AMEER JAAN AGED ABOUT 51 YEARS

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6(F) ANWAR PASHA S/O LATE AMEER JAAN AGED ABOUT 38 YEARS

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ALL ARE RESIDING AT KAMANAKERE HUNDI VILLAGE KASABA HOBLI RAMANAHALLI POST MYSURU TALUK AND DISTRICT.

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….RESPONDENTS

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(BY SRI. KRISHNAMURTHY G. HASYAGAR, ADVOCATE FOR R1 TO R5

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SRI. SUBHASH S., ADVOCATE FOR R6 AND R7)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.04.2015 PASSED IN R.A.NO.459/2014 ON THE FILE OF THE IV ADDITIONAL DISTRICT JUDGE MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.06.2014 PASSED IN O.S.NO.254/2008 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE AT MYSORE.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 31.08.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the appellant challenging

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the judgment and decree dated 04.06.2014 passed in O.S.No.254/2008 by the Principal Senior Civil Judge,

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Mysuru and judgment and decree dated 16.04.2015

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passed in R.A.No.459/2014 by the 4^th Additional District Judge, Mysuru.

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The parties are referred to as per their ranking before the trial Court. The appellant is defendant No.2. Respondent Nos.1 to 5 are the legal representatives of the deceased plaintiff and respondent No.6 is the defendant No.1.

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Brief facts leading rise to filing of this appeal are as under:

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Plaintiff filed a suit for partition and separate possession in respect of suit schedule properties. It is the case of the plaintiff that Kyrun Bi had a landed properties shown in the plaint. Kyrun Bi had three children i.e., plaintiff and defendant Nos.1 and 2. The plaintiff is the first son, defendant Nos.1 and 2 are the sons of Late Mohammed Sab and Kyrun Bi. The father of the plaintiff predeceased Kyrun Bi 40 years back.

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The mother of plaintiff Kyrun Bi died 20 years back leaving behind the plaintiff and defendants as the sole legal representatives of the deceased Kyrun Bi. The plaintiff and defendants are entitled for share in the suit schedule properties left by deceased Kyrun Bi, as per shariat law as they are in joint possession and enjoyment of the same as co sharers/ tenants. As per sheriat law, the plaintiff and defendants are entitled to equal share i.e., 1/3^rd share each. The mother of the plaintiff and defendants was the absolute owner of land bearing Survey No.422 to an extent of 6 acre 10 guntas and land bearing survey No.266 to an extent of 4 acre 19 guntas situated at Kesare village, Kasaba

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hobli, Mysuru taluk, Mysuru. After the demise of Kyrun Bi, the properties were not partitioned among the plaintiff and defendants. The plaintiff and defendants jointly sold the portion of suit schedule properties to an extent of 4 acre to one

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Saraswathamma in Survey No.422 situated at Kesare village. The sale proceeds of the said land was divided equally among the plaintiff and defendants. The plaintiff learnt that the defendant No.2 without the knowledge of the plaintiff and 1^st defendant had sold the land to an extent of 0-20 guntas in Survey No.422 to Fayaz Ahmed Baig and defendant No.2 had made use of the sale proceeds for himself. The land bearing survey No.422 to an extent of 13 guntas of land was acquired by the Government for the purpose of varuna canal and remaining 1 acre 17 guntas in Survey No.422 has been changed in the name of 2^nd defendant. The plaintiff has got equal right to get the compensation of the land acquired by the government and remaining land of 1 acre 17 guntas in land bearing Survey No.422 and in land bearing Survey No.266 to an extent of 4 acre 19 guntas has to be divided equally among the plaintiff and defendants.

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After the demise of mother of the plaintiff, the plaintiff approached the defendants and requested the defendants to effect the partition, but the defendants refused to effect the partition. The plaintiff got issued a legal notice to the defendants calling upon them to effect the partition and put the plaintiff in possession of the suit schedule properties. Notice was duly served on the defendants. Inspite of service of notice, the said defendants did not comply the demands made in the notice. Hence, cause of action arose for the plaintiff to file the suit for partition and separate possession.

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Defendants filed joint written statement contending that the suit filed by the plaintiff is not maintainable and mother of the plaintiff and defendants purchased 6 acres 10 guntas of land in Survey No.422 which was divided equally between the plaintiff and defendants during her life time. The

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defendants and others have jointly sold their respective share of the properties. To gain a wrongful and to harass defendant No.2, plaintiff has included item No.1 in the schedule of the plaint. Item No.2 of the property was purchased by mother of the plaintiff and defendants and there was a declaration filed by Narasimhaiah before the Land Tribunal, Mysuru and after detail enquiry, Land Tribunal dismissed the declaration filed by the said Narasimhaiah. The said properties has to be divided equally among the plaintiff and defendants. It is contended that the plaintiff and defendants have already entered into Panchayath Palu-parikat in the village in the presence of Panchayathdars dated 10.06.2008. The plaintiff has suppressed the said fact and filed the suit. The defendants have no objection for partition in respect of item No.2 of the suit schedule properties and hence, prayed to dismiss the suit.

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5. The Trial Court, on the basis of the above

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said pleadings, framed the following issues:

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1. Whether the Plaintiff proves that the Plaintiff and the Defendants are entitled for 1/3^rd share in the suit properties?

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2. Whether the Plaintiff is entitled for mesne profits as prayed?

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3. Whether the Plaintiff is entitled for partition and separate possession in respect of suit properties?

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4. Whether the Defendants prove that 1^st item of suit property is the exclusive property allotted to the share of 2^nd Defendant?

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5. What order and what decree ?

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Plaintiff in support of his case, examined

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himself as PW-1 and got marked 14 documents as Exs.P1 to P14. Defendant No.2 was examined himself as DW-1 and got examined three witnesses as DWs-2 to 4 and got marked 5 documents as Exs.D1 to D5. The trial Court considering the oral and documentary evidence decreed the suit of the plaintiff. It is ordered

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and decreed that the plaintiff is entitled for 1/3^rd share

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in the suit schedule properties.

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The 2^nd defendant, aggrieved by the

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judgment and decree passed by the trial Court preferred the appeal in R.A.No.459/2014 on the file of IV Additional District Judge, Mysuru.

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The First Appellate Court, after hearing the parties, has framed the following points for

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consideration:

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1. Whether Trial Court is justified in decreeing the suit?

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2. Whether Judgment and Decree of Trial Court calls for interference?

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3. Whether Order?

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The First Appellate Court, on

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re-appreciating the oral and documentary evidence, answered point No.1 in the affirmative, point No.2 in the negative and consequently, dismissed the appeal

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filed by the 2^nd defendant and confirmed the judgment and decree passed by the trial Court.

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The 2^nd defendant, aggrieved by the preliminary decree passed by the trial Court as well as the judgment and decree passed by the First Appellate Court, has filed this second appeal.

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This court has admitted the appeal on the following substantial question of law :

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'Whether Courts below were justified in decreeing the suit for partition without considering the recital in the sale deed dated 06.05.1996 Ex.P.11 which reflects that except the land belonging to 2^nd defendant having been sold to Smt. Saraswathamma and there was prior partition between the plaintiff and defendant Nos.1 and 2?

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Heard learned counsel for the plaintiffs and

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learned counsel for defendant No.2.

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Learned counsel for the 2^nd defendant

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submits that during the life time of mother of the plaintiff there was a partition between the plaintiff and defendants. In the said partition, the item No.1 of the suit schedule properties was fallen to the share of the 2^nd defendant. Defendant No.2 had sold the portion of the suit lands in favour of Smt. Saraswathamma under a registered sale deed dated 06.05.1996 as per Ex.P.11. He submits that the entire recitals of Ex.P.11 is to be considered, but not a stray sentence in Ex.P.11. Hence, he submits that the Courts below have committed an error in passing the impugned judgments and decrees. Hence, on these grounds, prays to allow the appeal.

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Per contra, learned counsel for the plaintiff submits that there was no partition between the plaintiff and defendants during the life time of their mother. He submits that the 2^nd defendant in order to

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establish the alleged partition has not examined any witnesses who were present at the time of alleged partition. He submits that though the plaintiff and defendants have jointly sold the land under Ex.P.11, the 2^nd defendant has signed as a co-sharer, but not as an attesting witness. He submits that from the bare reading of recital of Ex.P.11, it discloses that 2^nd defendant is shown as a joint owner of land under sale. He submits that after demise of mother of the plaintiff, the properties were jointly entered in the name of the plaintiff and defendants. Hence, he submits that there was no partition between the plaintiff and defendants as alleged by defendants in the written statement. He submits that the Courts below have concurrently recorded the finding of fact contending that there was no partition between the plaintiff and defendants and rightly passed the

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impugned judgments and decrees. Hence, on these grounds, prays to dismiss the appeal.

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Perused the records and considered the

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submissions of learned counsel for the parties.

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Substantial question of law :

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It is not in dispute that the suit schedule

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properties were purchased by Kyrun Bi i.e., mother of plaintiff and defendants. She died leaving behind the plaintiff and defendants as the legal representatives. It is the case of the defendants that mother during her

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life time has partitioned the suit schedule properties and as per the partition, item No.1 of the suit schedule properties was fallen to the share of defendant No.2. It is contended that the plaintiff and defendants have sold the portion of suit schedule properties in favour of Smt. Saraswathamma. In order to establish the case of the plaintiff, the plaintiff

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examined himself as PW.1 and he has reiterated the plaint averments in the examination-in-chief and further produced the documents Ex.P.1 is the copy of legal notice calling upon the defendants to effect the partition in the suit schedule properties; Ex.P.2 stands in the name of plaintiff and defendants jointly in respect of land bearing Survey No.422 for the year 1988-89; Ex.P.3 is the RTC extract of land bearing Survey No.266 stands in the name of plaintiff and defendants for the year 2007-08; Ex.P.4 is the RTC extract of land bearing Survey No.422 in the year 2007-08 stands in the name of Government and the 2^nd defendant; Exs.P.5 is the RTC extract; Ex.P.6 is the MR extract dated 31.01.2007 reflects that land bearing survey No.266 mutated in the name of plaintiff and defendants; Exs.P.7 and 8 are the genealogical tree of the family of the plaintiff and defendants; Ex.P.9 is the MR extract stands in the

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name of Smt. Saraswathamma entered on the basis of registered sale deed; Ex.P.10 is the RTC extract of land bearing Survey No.422 stands in the name of 2^nd defendant; Ex.P.11 is the certified copy of the registered sale deed executed by the plaintiff and defendants in favour of Smt. Saraswathamma; Ex.P.12 is the Encumbrance certificate and Exs.P.13 and 14 are the Forms issued by the Muslim Girls Orphanage, Mysuru.

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During the course of cross examination,

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nothing has been elicited from the mouth of this witness. In rebuttal the 2^nd defendant was examined as DW.1. He has deposed that there was a partition between the plaintiff and defendants in respect of item No.1 of the suit properties and further stated that the plaintiff and defendants have jointly executed a registered sale deed in favour of Saraswathamma in respect of Survey No.422 as per Ex.P.11. In order to

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prove that there was a partition between the plaintiff

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and defendants, the defendant examined two witnesses namely Narayanappa as DW.2 and H.T. Jayaramu as DW.3 who have deposed that there was partition between the plaintiff and defendants. In the said partition item No.1 of the suit schedule properties was allotted to the share of defendant No.2. Smt. Saraswathamma was examined as DW.4 i.e., purchaser of item No.1 of suit schedule properties. She has deposed that there was partition between the plaintiff and defendants. The plaintiff and defendant Nos.1 and 2 have sold the item No.1 of the suit schedule properties allotted to their share. During the course of cross examination, it is elicited that she does not know about the partition between the plaintiff and defendants. In order to prove the factum of partition, the burden is on the defendants, the defendant No.2 has not produced any records to

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establish that on the basis of alleged partition, revenue entries were changed in the name of respective parties. The defendants except pleading that there was a prior partition, has not produced any documents. Further, admittedly, the parties are Mohammedans and they are bound by Shariat law. The personal law of Muslim does not recognize the system of joint holding of the properties as is common against the Hindus and further there was no dispute that the properties were owned by Kyrun Bi as observed above, concept of partition is unknown to Muslim Law.

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Be that as it may, succession opens in case of Muslim only upon the death of a person that means to say the sons and daughters, who are living at the time of death of the mother or father only entitle to share in the properties of father and mother. They become tenants in common. In the present case, the

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mother of the plaintiff died leaving behind the plaintiff and defendants, as the sole legal representatives. The plaintiff and defendants were alive at the time of death of their mother and they are entitled for the share in the suit schedule properties.

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From the perusal of Ex.P.11 which was executed by the plaintiff and defendants jointly in favour of Smt. Saraswathamma, there is no recital in the registered sale deed regarding the alleged partition that took place between the plaintiff and defendants during the life time of mother of plaintiff. Further, it also reflects that the plaintiff and defendants are the joint owners. The 2^nd defendant has signed as vendor and not signed as an attesting witness. If at all there was a partition as alleged in the written statement, the 2^nd defendant could have signed on Ex.P.11 as an attesting witness and not as a owner. On the contrary, the 2^nd defendant has signed

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as one of the vendor. Further DW.1 has deposed that the partition was effected during the life time of mother of plaintiff and defendants, wherein DW.2 has deposed that partition was effected after the death of mother of plaintiff and defendants. There is inconsistency in the evidence of DWs.1 and 4, wherein the DW.1 deposed that partition was taken place during the life time of mother of plaintiff and DW.4 deposed that partition was effected after the death of mother of the plaintiff. There is doubt with regard to the alleged partition when it was taken place, whether during the life time of mother or after the death of mother. The said fact has not been clarified by the defendants. Thus, the defendants have failed to prove that there was a prior partition in respect of the suit schedule properties. The trial Court as well as the First Appellate Court considering the evidence of the parties and also recital of Ex.P.11 have rightly passed

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the impugned judgments and decrees. Hence, in view of the above discussion, I answer substantial question of law partly in affirmative and partly negative.

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In view of the aforesaid facts and

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circumstances, I proceed to pass the following:

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ORDER

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The appeal is dismissed.

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SD/JUDGE

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SKS

Nawab Jaan v. Wazeer Ahmed

Case brief

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Nawab Jaan v. Wazeer Ahmed

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