Dismissed

Sri Syed Sirajuddin @ Chand Pasha v. Smt Maimunnissa

Karnataka HC5 Sept 2024RFA/2064/2006

Case brief

AI extract

What is this about?

The High Court dismissed regular first appeals against a preliminary decree in a partition suit. The Court upheld the Trial Court's findings that the appellant failed to prove an alleged gift deed (HIBA) or that the sale of the property had the consent of the other co-sharers. The appeals are dismissed as devoid of merit.

What did the court decide?

Both appeals are dismissed with costs, confirming the Trial Court's preliminary decree without modification.

Sri Syed Sirajuddin @ Chand Pasha Vs Smt Maimunnissa — Partition | Karnataka HC (2024)

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NC: 2024:KHC:36515 RFA No. 2064 of 2006 C/W RFA No. 2054 of 2006

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR FIRST APPEAL NO. 2064 OF 2006 (PAR)

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C/W

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REGULAR FIRST APPEAL NO. 2054 OF 2006 (PAR)

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IN RFA NO.2064/2006

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BETWEEN:

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SRI.SYED SIRAJUDDIN @ CHAND PASHA S/O SYED KHADER AGED ABOUT 46 YEARS R/AT 9^TH MAIN ROAD BTM LAYOUT, I STAGE OPP. BISMILA REAL ESTATE AGENCY OLD GURAPANAPALYA BANGALORE

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…APPELLANT

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Digitally signed by ALBHAGYA Location: HIGH COURT OF KARNATAKA

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(BY SRI. M A HUMAYUN, ADVOCATE)

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AND:

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SMT.MAIMUNNISSA W/O SRI.ATTAULLA SHARIFF AGED ABOUT 59 YEARS R/AT NO.4, 7^TH MAIN 15^TH CROSS, SUBBARAJ LAYOUT LAKKASANDRA BANGALORE

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NC: 2024:KHC:36515 RFA No. 2064 of 2006 C/W RFA No. 2054 of 2006

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SMT. K.HABEEBUNNISSA W/O SRI IBRAHIM KHAN AGED ABOUT 50 YEAS R/AT NO.15, 7^TH MAIN ROAD BANNERGHATTA ROAD 2^ND CROSS NEW GURAPPANAPALYA BANGALORE - 560 081

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SRI. SYED MAHAMOOD S/O LATE SYED JAMALUDDIN AGED ABOUT 34 YEARS RESIDING AT NO.15, 7^TH MAIN ROAD BANNERGHATTA ROAD 2^ND CROSS NEW GURAPPANAPALYA BANGALORE - 560 081

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SRI.MUQTHIAR S/O PYAREJAN AGED ABOUT 31 YEARS RESIDING AT NO.MD 23/26 8^TH CROSS NEW GURAPPANAPALYA BANGALORE- 560 081

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SRI.MOHAMMED ALI S/O LATE SHAIKH BUDAN SAB AGED ABOUT 55 YEARS RESIDING AT NO.55, S.R. NAGAR MICO ROAD BANGALORE - 560 030

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THE COMMISSIONER BANGALORE CITY CORPORATION

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NC: 2024:KHC:36515 RFA No. 2064 of 2006 C/W RFA No. 2054 of 2006

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N.R.SQUARE

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BANGALORE - 560 002

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THE ASST. REVENUE OFFICER BANGALORE MAHANAGARA PALIKE JAYANAGAR COMPLEX MADIVALA RANGE BANGALORE - 560 011

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…RESPONDENTS

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(BY SRI. B N ANANTHA NARAYANA, ADVOCATE FOR R.1 TO R.3; SRI.M.L.GOWDA, ADVOCATE FOR R.4; SRI.B.V.MURALIDHAR, ADVOCATE FOR R.6 TO R.7; APPEAL IS DISMISSED AS ABATED AGAINST R.5 V/O/D 12.07.2024)

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THIS RFA IS FILED U/O 41 RULE 1 AND 2 R/W SEC.96 OF CPC AGAINST THE JUDGEMENT AND DECREE DT. 01.06.2006 PASSED IN O.S.NO.15274/2001 ON THE FILE OF THE XXVIII ADDL.CITY CIVIL JUDGE, MAYOHALL BANGALORE, DECREEING THE SUIT FOR PARTITION AND DECLARATION AND ETC.

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IN RFA NO. 2054/2006

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BETWEEN:

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SRI MUQTHIAR S/O PYAREJAN AGED ABOUT 31 YEARS RESIDING AT NO.MD-23/26

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8^TH CROSS, NEW GURAPPANAPALYA BANGALORE - 560 081

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SRI MOHAMMED ALI S/O LATE SHAIKH BUDAN SAB AGED ABOUT 55 YEARS RESIDING AT NO.55 S R NAGAR

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4 - NC: 2024:KHC:36515 RFA No. 2064 of 2006 C/W RFA No. 2054 of 2006

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MICO ROAD BANGALORE - 560 030

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...APPELLANTS

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(BY SRI. M L GOWDA, ADVOCATE FOR R.1 APPEAL IS DISMISSED AGAINST A.2 AS ABATED V/O/D 12.07.2024

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AND:

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SMT MAIMUNNISSA W/O SRI.ATTAULLA SHARIFF AGED ABOUT 59 YEARS RESIDING AT NO.4, 7^TH MAIN 15^TH CROSS, SUBBARAJ LAYOUT LAKKASANDRA

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BENGALURU

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SMT. K.HABEEBUNNISA W/O SRI.IBRAHIM KHAN AGED ABOUT 50 YEARS RESIDING AT NO.15, 7^TH MAIN BANNERGHATTA ROAD, 2^ND CROSS NEW GURAPPANAPALYA BENGALURU - 560 081

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SRI SYED MAHAMOOD S/O LATE SYED JAMALUDDIN AGED ABOUT 34 YEARS RESIDING AT NO.15 7^TH MAIN ROAD BANNERGHATTA ROAD 2^ND CROSS, NEW GURAPPANAPALYA BENGALURU - 560 081

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SRI.SYED SIRAJUDDIN @ CHAND PASHA S/O SYED KHADER AGED ABOUT 46 YEARS

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5 - NC: 2024:KHC:36515 RFA No. 2064 of 2006 C/W RFA No. 2054 of 2006

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RESIDING AT 9^TH MAIN ROAD BTM LAYOUT, 1^ST STAGE OPP. BISMILA REAL ESTATE AGENCY OLD GURAPANAPALYA BENGALURU

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THE COMMISSIONER BANGALORE CITY CORPORATION N R SQUARE BENGALURU - 560 002

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THE ASST. REVENUE OFFICER BANGALORE MAHANAGARA PALIKE JAYANAGAR COMPLEX MADIVALA RANGE BENGALURU - 560 011

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...RESPONDENTS

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(BY SRI. B N ANANTHA NARAYANA.,ADVOCATE)

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THIS RFA IS FILED U/O 41 RULE 1 AND 2 R/W SEC.96 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 01.06.2006 PASSED IN O.S.NO.15274/2001 ON THE FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE, MAYOHALL BANGALORE, DECREEING THE SUIT FOR PARTITION AND DECLARATION AND ETC.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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These two captioned appeals are filed by defendant

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Nos.1 to 3 assailing the preliminary decree drawn in a partition suit bearing O.S.No.15274/2001. Defendant No.1 has preferred an appeal in RFA No.2064/2006. Defendant Nos.2 and 3 have filed an appeal in RFA No.2054/2006. These two appeals are taken together for consideration.

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Heard learned counsel on record and perused the records.

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For the sake of brevity, the parties are referred as they are ranked before the Trial Court.

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Facts leading to the case are as under;

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Plaintiff Nos.1 and 2, father of plaintiff No.3, defendant No.1 and one Syed Anwar are the children of one Syed Khader. The present plaintiffs are seeking partition in the property held by their brother Syed Anwar,

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who has constructed a residential house in the suit schedule property and therefore, the plaintiffs contended

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that they along with defendant No.1 are tenants in common and they have legitimate right in the suit schedule properties. The plaintiffs also contend that Syed Anwar died leaving behind his wife Smt.Noorjan @ Noorunnisa, who has relinquished all her rights in respect of the suit schedule properties and returned back to her parental home after receiving compensation. The plaintiffs contend that their mother Smt.Mehrunnissa has made testamentary arrangements indicating that house property is distributed among the children when she died on 03.10.1982. The plaintiffs contend that they along with defendants being legal heirs, who were entitled to succeed to the estate left behind by Syed Anwar and therefore, claimed to be in joint possession along with defendant No.1 as co-owners.

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The present suit is filed being aggrieved by the alienations made by defendant No.1 in favour of defendant Nos.2 and 3 under registered sale deed dated 01.04.1999. Basing this alienation ascause of action, the plaintiffs have

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instituted the present suit seeking relief of partition and separate possession.

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On receipt of summons, defendant Nos.1 to 3 have filed their written statement and have contested the suit. Defendant No.1, though admitted that the suit property was originally owned by Syed Anwar, however, set up a HIBA in his favour alleging that his brother Syed Anwar has gifted the property on 21.03.1972 and therefore, defendant No.1 claimed to be the absolute owner of the suit schedule property.

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Defendant No.1 questioned the competence of his

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mother Meharunnisa bequeathing the property in question by contending that the same is bad in law. Defendant No.1, while justifying the alienations, also contended that these alienations were made with the consent of plaintiffs and therefore, the sale deed executed by defendant No.1 in favour of defendant Nos.2 and 3 binds the plaintiffs and therefore, suit for partition is liable to be dismissed.

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Defendant Nos.2 and 3 have filed written statement and have contended that they have made huge investments and therefore, claimed to be bonafide purchasers. Defendant Nos.2 and 3 contended that the plaintiffs have filed a frivolous case only to deprive the purchasers’ right over the suit schedule property.

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Based on the rival contentions, the Trial Court framed issues. The plaintiffs and defendants have led in oral and documentary evidence. The Trial Court on re-assessing the oral and documentary evidence answered Issue Nos.1 to 3 in the Affirmative and Issue Nos.5, 6, 8 and 9 in the Negative. The Trial Court while answering Issue Nos.5 to 8 in the negative held that defendant No.1 has failed to substantiate the Gift Deed in his favour by Syed Anwar. While answering issue No.8 in the Negative, the Trial Court has also held that defendants have failed to substantiate that the sale deed executed by defendant No.1 in favour of defendant Nos.2 and 3 was with the consent of the plaintiffs.

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10 - NC: 2024:KHC:36515 RFA No. 2064 of 2006 C/W RFA No. 2054 of 2006

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Feeling aggrieved by the decree granted in the partition suit, defendant No.1 has preferred an independent appeal in RFA No.2064/2006 and defendant Nos.2 and 3 have jointly filed an appeal in RFA No.2054/2006. It is brought to the notice of this Court that defendant No.3, who is arrayed as appellant No.2 in RFA No.2054/2006, is reported to be dead in 2000 and no steps are taken to bring the legal heirs of defendant No.3. Therefore, the appeal is dismissed as abated insofar as defendant No.3 is concerned.

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Having heard the learned counsels and on independent assessment of the pleadings, oral and documentary evidence, the following points would arise for consideration;

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1) Whether findings of the Trial Court that the defendants have failed to substantiate that Syed Anwar, during his lifetime, has executed HIBA in favour of defendant No.1 in respect of

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the suit schedule property on 21.03.1972 is perverse?

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2) Whether Trial Court findings that defendants have failed to substantiate that the alienations made by defendant No.1 in favour of defendant Nos.2 and 3 is with the consent of the plaintiffs is palpably erroneous ?

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Findings on Point No.1 :- It is an established

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fact that the suit schedule property was originally owned by Syed Anwar. Upon his death, the estate was inherited by Plaintiff Nos.1 and 2, Defendant No.1, and the father of Plaintiff No.3, as Class-II heirs under the relevant succession laws. This inheritance is not in dispute. However, the contention arises from Defendant No. 1's claim that Syed Anwar, during his lifetime, executed a HIBA (gift) in his favor, thereby transferring absolute ownership of the property to him. Based on this alleged gift, Defendant No.1 has argued that the partition suit filed

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by the plaintiffs is unsustainable, as the property no longer forms part of the estate to be divided.

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12 - NC: 2024:KHC:36515 RFA No. 2064 of 2006 C/W RFA No. 2054 of 2006

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Given this contention, the onus was on Defendant No. 1 to provide evidence to substantiate his claim that Syed Anwar conveyed the property to him through the HIBA. It is a well-established principle of law that once a party asserts a claim, the burden of proof lies with that party to prove the facts necessary to support their case. In this instance, Defendant No. 1 alleged that the property had been transferred to him through a HIBA during Syed Anwar’s lifetime, and thus he was required to produce credible and sufficient evidence to support this claim.

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However, despite making this assertion in his written statement, Defendant No. 1 failed to provide any substantive evidence to prove the execution of the HIBA. The only document produced by him was a certified copy of a sale deed dated 01.04.1999. However, this document, by itself, did not establish the existence of a HIBA or the transfer of rights to the property. No other documentary evidence or witness testimony was brought forward to

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13 - NC: 2024:KHC:36515 RFA No. 2064 of 2006 C/W RFA No. 2054 of 2006

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confirm the gift or conveyance of the property in his favor. The absence of any proof casts serious doubt on the validity of Defendant No. 1’s claim.

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In light of these circumstances, this Court finds that Defendant No. 1 has not discharged the burden of proof placed upon him. The Trial Court, in its judgment, correctly concluded that there was no credible evidence to support Defendant No. 1's claim of ownership through the alleged HIBA. As such, the Trial Court’s decision to answer Issue No. 6 in the negative is both reasonable and justified. Consequently, this Court also finds it appropriate to answer Point No. 1 in the negative, as Defendant No. 1 has failed to establish his alleged rights to the property through the purported HIBA. In absence of rebuttal evidence let in by defendant No.1, this Court is of the view that the Trial Court was justified in answering Issue No.6 in the Negative. In that view of the matter, Point No.1 is accordingly answered in the Negative.

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14 - NC: 2024:KHC:36515 RFA No. 2064 of 2006 C/W RFA No. 2054 of 2006

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Regarding Point No.2 :- Defendant No. 1, in the

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alternative, has contended that the plaintiffs consented to and authorized him to sell the suit schedule property to Defendant Nos. 2 and 3. However, beyond the pleadings in the written statement, there is no evidence on record to substantiate that such consent was ever given by the plaintiffs. It is a well-settled principle of law that mere assertions in pleadings do not constitute evidence. In the case of Union of India v. Ibrahim Uddin [(2012) 8 SCC 148], the Hon'ble Supreme Court held that “pleadings are required to be proved by leading substantive evidence and failure to do so renders such pleadings unsupported and unsubstantiated.”

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In this case, Defendant No. 1 has not produced any documentary proof or witness testimony to corroborate his claim that the plaintiffs consented to or authorized the sale. In the absence of any such evidence, this Court is of the opinion that Defendant No. 1 had no authority to alienate the entire extent of the suit schedule

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property in favor of Defendant Nos. 2 and 3. His failure to establish ownership through the alleged HIBA further weakens his standing to alienate the property. The Hon'ble Supreme Court, in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana [(2012) 1 SCC 656], has emphasized that “a person cannot transfer a better title than what he himself possesses.” Since Defendant No. 1 failed to establish his claim to absolute ownership, he could not legally transfer the entire property.

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Furthermore, the contention that the plaintiffs had consented to the alienation is unsupported by any credible evidence. Defendant No. 1, having raised this plea, bore the burden of proof to substantiate the claim, as per the ruling in Ranganayakamma & Anr v. K.S. Prakash [(2008) 15 SCC 673], where the Court reiterated that “the burden of proof lies on the person who asserts a fact.” Since no such proof was forthcoming, the Trial Court rightly concluded that the alienation by Defendant No. 1 in

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favor of Defendant Nos. 2 and 3 was not with the plaintiffs’ consent.

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Additionally, it is clear that the plaintiffs are not signatories to the sale deed dated 01.04.1999. Under the Transfer of Property Act, 1882, particularly Section 54, a valid sale requires the execution of a sale deed by the rightful owners of the property. Since the plaintiffs did not execute or consent to this sale deed, the alienation cannot bind their legitimate share in the suit schedule property. This principle finds support in the decision of the Hon'ble Supreme Court in Vidya Devi v. Prem Prakash [(1995) 4 SCC 496], where the Court held that “a transfer made without the consent of co-sharers does not bind the nonconsenting co-sharers and their legitimate share remains unaffected by such alienation.”

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Therefore, the alienation made by Defendant No. 1 to Defendant Nos. 2 and 3 cannot affect the plaintiffs' legitimate share in the suit schedule property. The

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plaintiffs have successfully demonstrated that the alienation does not bind their share, and the Trial Court rightly recognized this in its findings on Issue No. 8. The plaintiffs' shares remain unaffected by the sale, as they are not parties to the transaction.

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Conclusion and the Trial Court's Findings on Issues Nos.6 and 8:

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After a comprehensive review of the evidence and the contentions raised by the parties, this Court finds that Defendant No. 1 has failed to prove that he acquired absolute ownership of the suit schedule property through the alleged HIBA from Syed Anwar. In addition, Defendant No. 1 has also failed to substantiate his claim that the alienation made in favor of Defendant Nos. 2 and 3 was with the plaintiffs' consent. The Trial Court’s findings on Issue Nos. 6 and 8, both answered in the negative, are well-founded and do not suffer from any legal infirmities. The principles laid down by the Hon'ble Supreme Court in Kalyan Singh Chouhan v. C.P. Joshi [(2011) 11 SCC 786], which stressed the importance of substantiating

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pleadings with evidence, further reinforce the correctness of the Trial Court’s findings. This Court concurs with the Trial Court's judgment and holds that Defendant No. 1’s failure to produce any rebuttal evidence justifies the dismissal of his claims. Accordingly, both appeals are devoid of merit and stand dismissed.

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Both appeals are devoid of merits and accordingly, stand dismissed.

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Pending applications, if any, are also dismissed.

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SD/(SACHIN SHANKAR MAGADUM) JUDGE

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NBM

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List No.: 2 Sl No.: 12

Sri Syed Sirajuddin @ Chand Pasha v. Smt Maimunnissa

Case brief

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Sri Syed Sirajuddin @ Chand Pasha v. Smt Maimunnissa

Case brief

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