Partly allowed

Mahmadkhaseem Gonsusab Ghashi v. Mansur Imamsab Ghashi

Karnataka HC14 Aug 2023RSA/1980/2007

Case brief

AI extract

What is this about?

This Regular Second Appeal challenged the First Appellate Court reversing a Trial Court judgment dismissing a partition suit among Mohammedans. The High Court held that partition deeds executed under Muslim law severed the tenancy-in-common status, allowing the Trial Court to dismiss the suit. The Second Appeal was allowed, restoring the original judgment.

What did the court decide?

RSA allowed; First Appellate Court judgment and decree set aside; Trial Court judgment dated 17.12.2002 confirming dismissal of suit restored.

Mahmadkhaseem Gonsusab Ghashi Vs Mansur Imamsab Ghashi — Partition | Karnataka HC (2023)

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NC: 2023:KHC-D:8916 RSA No. 1980 of 2007

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR SECOND APPEAL NO.1980/2007 (RES)

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BETWEEN:

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MAHMADKHASEEM GONSUSAB GHASHI, SINCE DECEASED BY HIS LRS.

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1A. SMT. MEHARUNABHI W/O. MAHMADKHASEEMSAB GHASHI, AGE: 67 YEARS, OCC: HOUSE HOLD WORK.

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1B. SIKANDAR S/O. MAHMADKHASEEMSAB GHASHI, AGE: 50 YEARS, OCC: BUSINESS AND AGRL.,

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1C. UMRAN S/O MAHMADKHASEEMSAB GHASHI, AGE: 48 YEARS, OCC: BUSINESS AND AGRL.,

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1D. NORRUDDIN S/O. MAHMADKHASEEMSAB GHASHI, AGE: 37 YEARS, OCC:BUSINISS AND AGRL.,

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Digitally signed by SUJATA SUBHASH PAMMAR

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1E. JAIRUDDIN S/O. MAHMADKHASEEMSAB GHASHI, AGE: 37 YEARS, OCC: BUSINESS AND AGRL.,

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1F. SM. MAMTADEEBE W/O. ALLBHAKSHA KUNDAGOL, AGE: 51 YEARS, OCC: HOUSE HOLD WORK.

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1G. SMT. JAHEEDABI W/O.NORRAHMADSAB AMMINBHAVI, AGE: 49 YEARS, OCC: HOUSE HOLD WORK.

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1H. SMT. UMMISALMA W/O. ALLABHAKSHA ANANTAPURI, AGE: 46 YEARS, OCC: HOUSEHOLD WORK.

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1I. SMT. SAHANAJBANU W/O. NORAABMAD YELIGAR, AGE: 42 YEARS, OCC: HOUSEHOLD WORK, ALL ARE R/O: CHIKKERUR, TQ: HIREKERUR, DIST: HAVERI.

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…APPELLANTS

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(BY SRI PUNIT I BADIGER, ADVOCATE SRI LAXMAN T. MANTAGANI, ADVOCATE)

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- 2 - NC: 2023:KHC-D:8916 RSA No. 1980 of 2007

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AND:

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MANSUR IMAMSAB GHASHI, AGE: 36 YEARS, OCC:AGRIL.

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NIZAMUDDIN IMAMSAB GHASHI, AGE:33 YEARS, OCC:AGRIL.

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MAHABUBALI IMAMSAB GHASHI AGE: 54 YEARS, OCC:AGRIL,

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KHALISAB IMAMSAB GHASHI, AGE: 49 YEARS, OCC:AGRIL.

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MAHABOOBALI GOUSASAB GHASHI SINCE DECEASED BY LRS.

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5A. JAKEER MAHABOOBALI GHASHI, AGE: 35 YEARS, OCC:AGRIL.

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5B. FAROOQ AHAMAD MAHABOOBALI GHASHI, AGE: 32 YEARS.

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5C. AKBAR MAHABOOBALI GHASHI,

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5D. NOORJAHAN W/O. MAHABOOBALI GHASHI, AGE:50 YEARS,

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ALL ARE R/AT.CHIKKERUR, TQ:HIREKERUR, DIST: HAVERI.

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…RESPONDENTS (BY SRI. AVINASH BANAKAR, ADVOCATE FOR R1 TO R4; R5(A) TO R5(D) ARE SERVED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO

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SET ASIDE JUDGMENT AND DECREE PASSED BY THE COURT OF ADDITIONAL CIVIL JUDGE (SR.DN) RANEBENNUR, IN R.A.NO.15/2003 DATED 23.06.2007, REVERING THE JUDGMENT AND DECREE PASSED BY THE COURT OF CIVIL JUDGE (JR.DN) AND JMFC, HIREKERUR IN O.S.NO.34/93, DATED 17.12.2023.

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- 3 - NC: 2023:KHC-D:8916 RSA No. 1980 of 2007

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This Regular Second Appeal is filed by the defendant No.1 challenging the judgment and award passed in RA No.15/2003 dated 23.06.2007 by Addl. Civil Judge (Sr.Dn.) Ranebennur which has reversed the judgment and decree passed in OS No.34/1993 dated 17.12.2002 by the Civil Judge(Jr.Dn.) and JMFC., Hirekerur.

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Ranks of the parties are referred as per their ranking before the trial Court for easy reference and convenience.

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Brief facts of the case are that the plaintiff has filed suit for declaration to declare that he is the joint owner along with defendants in respect of suit schedule property. The trial Court has dismissed the suit on the ground that there was partition (not on the principle of Governing Hindu Law) among the shareholders and accordingly each are enjoying their respective shares and mutations are effected and therefore the status of tenant-in-common is not

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4 - NC: 2023:KHC-D:8916 RSA No. 1980 of 2007

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existing. Therefore, as per Exs.D1 to D4, all are enjoying their respective shares and also suit schedule properties belonging to the share of the defendants. Hence, prays to dismiss the suit.

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The First Appellate Court has reversed the judgment and decree passed by the trial Court on the ground that the suit property is not included in the partition effected in the year 1979 and thus, all the parties are tenants-in-common in respect of the suit schedule property. Therefore, declared plaintiff and defendants are tenants in common.

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Further opined that the parties are governed by Mohammedan law and concept of joint family is in Hindus is not applicable to the parties in the suit. Therefore, negatived the contention and rejected the documents Exs.D1 to D4.

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Heard the arguments of learned counsel for the parties and perused the material available on record.

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5 - NC: 2023:KHC-D:8916 RSA No. 1980 of 2007

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This Court on 05.09.2013 has framed the following substantial question of law:

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“Whether the lower appellate Court was justified in accepting the concept of joint family between the plaintiffs and defendants, when admittedly the parties to the suit are Mohammedans and are not governed by the provisions of Hindu Law regarding succession?”

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The parties herein are Mohammedans and are governed by the Mohammedan law. There is no concept of joint family or ancestral family but, the property held by the original propositus was enjoyed by his sons as tenants in common. One Khasimsab is elder in the family and he has two sons namely Ghouse sab and Imam sab. The plaintiffs and defendant Nos.2 and 3 are the children of the Imamsab. Defendant No.1 is son of Ghouse sab. Under the Mohammedan law, the properties in the family are being enjoyed as tenants-in-common.

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It is the case of the defendant No.1 that, as parties are governed by Mohammedan law being Mohammedans,

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6 - NC: 2023:KHC-D:8916 RSA No. 1980 of 2007

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even though, there is no concept of joint family as stated but, all the sons have made an arrangement themselves and resolved that these suit properties belonging to the original propositus Khasim sab in the year 1979 as per Ex.D1 and D2 which are called as “Smaranatra Tippani Patra”. Therefore, it is the contention of the defendant No.1

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that all the properties held as tenanted properties in common and was severed and they have become tenantsin-common themselves as per deeds and are made as four copies and reported to the revenue authorities and accordingly mutations are effected and record of rights are prepared in respect of all the properties. Therefore, the suit property is one of the properties which is put for arrangement to become new tenant and put possession over the property. Thus, in this way all the children of Khasim sab are enjoying respective shares. Upon perusing Exs.D1 and D2 which are the documents making arrangement themselves for effecting the respective shares in order to meet an end to dispute and to become new tenant. These Exs.D1 and D2 have been acted upon. The

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7 - NC: 2023:KHC-D:8916 RSA No. 1980 of 2007

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First Appellate Court had committed error by observing that the suit property is not included in Exs.D1 and D2arrangement of partition deeds and thus held that plaintiff as tenant in common for all the properties including the suit property. But, upon perusing Exs.D1 and D2, the suit property is also included in the said Exs.D1 and D2 deeds. Therefore, observation of the First Appellate Court that the suit property is not included in Exs.D1 and D2 is not correct. Also, the First Appellate Court has discarded Exs.D1 and D2 on the ground that the parties in the suit are Mohammedans and partition effected themselves is not available for the party in the suit. The First appellate Court committed error in observing that the Exs.D1 and D2 are partition deeds which proves that all the parties to the suit were enjoying the properties as tenants-in-common but not having a joint family status. Ex.D1 cannot be considered as partition deed as if it is made by Hindu undivided Family as per Hindu law. In order to put an end to their status for the properties, they are the tenants-in-common and shall become new tenants over the land. Various liabilities are

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8 - NC: 2023:KHC-D:8916 RSA No. 1980 of 2007

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there that are to be divided among the sons and in the present case, this is not disputed by the plaintiff that existence of Exs.D1 and D2 making arrangement for getting their respective shares from the Exs.D1 and D2 documents. Therefore, the trial Court justified in dismissing the suit but first appellate Court is not right in decreeing the suit. The trial Court as stated above, since the parties in the suit are Mohammedans, are not governed by the provisions of Hindu Law regarding succession and thus, the evidence Exs.D1 and D2 terminating the tenants in common status. Exs.D1 and D2 cannot be considered as partition deed done under the Hindu Law. But, Khasim Sab had two children by name Ghouse Sab and Imam Sab. The plaintiffs are sons of Imam sab. Plaintiffs and defendant Nos.1, 2 and 3 are children of Imamsab. Defendant No.1 is the son of Ghouse sab. When this being the fact, in the year 1979, there was end of status of tenants-in-common among the children of Ghouse sab and Imam sab by virtue of Exs.D1 and D2 deeds. In Exs.D1 and D2 also the suit properties are included. In this regard, First Appellate Court has

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9 - NC: 2023:KHC-D:8916 RSA No. 1980 of 2007

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committed error and this is perverse in nature. Therefore, the First Appellate Court has committed error in reversing the judgment and decree passed by the trial Court. Accordingly, the substantial question of law is answered holding that the First Appellate Court is not justified in reversing the judgment and decree passed by the trial Court.

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Therefore, the judgment of trial Court is restored by setting aside the judgment and decree of the First Appellate Court. Hence, I pass the following:

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ORDER

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i) Appeal is allowed.

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ii) The judgment and decree dated 23.06.2007 passed in RA No.15/2003 by the Addl.

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Civil Judge (Sr.Dn.) Ranebennur is set aside and judgment and decree dated 17.12.2002 passed in OS No.34/1993 by Civil Judge(Jr.Dn.) and JMFC., Hirekerur is confirmed.

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10 -

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NC: 2023:KHC-D:8916 RSA No. 1980 of 2007

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iii) No order as to costs.

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iv) Draw decree accordingly.

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SD/JUDGE

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HMB List No.: 2 Sl No.: 28 CT-ASC

Mahmadkhaseem Gonsusab Ghashi v. Mansur Imamsab Ghashi

Case brief

What is this about?

What did the court decide?

Mahmadkhaseem Gonsusab Ghashi v. Mansur Imamsab Ghashi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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