Dismissed

R B Rasheed v. Smt Rasheeda Begum

Karnataka HC5 Apr 2024RSA/1538/2022

Case brief

AI extract

What is this about?

In a partition suit under Muslim Personal Law, the High Court dismissed a Second Appeal filed by the legal representatives of a purchaser. The Court held that the original owner's sons and daughters were entitled to their specific shares, making the son's claim to absolute ownership untenable. The purported Will was invalid as it exceeded the permissible limit of one-third and favored a legal heir

What the court decided

AI extract

R B Rasheed Vs Smt Rasheeda Begum — Partition | Karnataka HC (2024)

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NC: 2024:KHC:14999 RSA No. 1538 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1538 OF 2022 (PAR)

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BETWEEN:

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R B RASHEED

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S/O BABI DEAD BY LRS

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SMT NOORJAN

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W/O LATE R B RASHEED AGED ABOUT 62 YEARS

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R BABA

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S/O LATE R B RASHEED AGED ABOUT 45 YEARS

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SMT LESHA

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D/O LATE R B RASHEED AGED ABOUT 42 YEARS

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SMT SALMA

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D/O LATE R B RASHEED AGED ABOUT 40 YEARS

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SMT MOUSINA

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D IN LAW OF LATE R B RASHEED W/O LATE MOULA AGED ABOUT 42 YEARS

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ASIF M.,

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G/SON OF LATE R B RASHEED S/O LATE MOULA AGED ABOUT 22 YEARS

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2 - NC: 2024:KHC:14999 RSA No. 1538 of 2022

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SMT UMMEHANI

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G/DAUGHTER OF LATE R B RASHEED D/O LATE MOULA

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AGED ABOUT 21 YEARS,

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ALL ARE R/O RENUMAKALAHALLI VILLAGE GUDIBANDE TALUK, CHICKBALLAPURA DISTRICT.

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…APPELLANTS

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(BY SRI. SHAIKH SAOUD.,ADVOCATE)

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AND:

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SMT RASHEEDA BEGUM D/O LATE ABDUL RAHEEM SAB W/O LATE ISMAIL

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AGED ABOUT 68 YEARS

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R/AT RENUMAKALAHALLI VILLAGE MANCHANABELE VILLAGE MANDIKAL HOBLI

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CHIKKABALLAPURA TALUK - 562 104.

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SMT MAHABOOB BI D/O LATE ABDUL RAHEEM SAB W/O SYED IBRAHIM AGED ABOUT 58 YEARS

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R/AT MANCHANABELE VILLAGE

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KASABA HOBLI

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CHIKKABALLAPURA TALUK - 562 101.

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R SAIFULLA

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S/O LATE ABDUL RAHEEM SAB

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AGED ABOUT 48 YEARS

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R SHAFIULLA

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S/O LATE ABDUL RAHEEM SAB AGED ABOUT 57 YEARS

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NC: 2024:KHC:14999 RSA No. 1538 of 2022

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SMT NOOR JAN W/O LATE MEHABOOB SABI AGED ABOUT 73 YEARS,

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R3 TO R5 ARE RESIDENTS OF RENUMAKALAHALLI VILLAGE MANDIKAL HOBLI

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CHIKKABALLAPURA TALUK - 562 101.

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…RESPONDENTS

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(BY SRI. JAI PRAKASH REDDY, ADVOCATE FOR SRI. BABA FAKRUDDIN P A.,ADVOCATE FOR R1 & R2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 01.10.2022 PASSED IN RA.NO.45/2020 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, CHIKKABALLAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.02.2020 PASSED IN OS.NO.77/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, GUDIBANDE.

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

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JUDGMENT

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This appeal is filed by the defendant No.3 aggrieved by the judgment and decree dated 28.02.2020 passed in O.S.No.77/2014 on the file of Senior Civil Judge, Gudibande (hereinafter 'the Trial Court') which is confirmed by the judgment and order dated 01.10.2022 passed in

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R.A.No.45/2020 on the file of Prl. Judge, Family Court at Chikkaballapura (hereinafter 'the First Appellate Court').

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The above suit is filed by the plaintiffs against the defendants for the relief of partition and separate possession, originally in respect of only one item of property i.e., Sy.No.6/1 situated at Renumakalahalli Village, Mandikal Hobli, Chickballapur Taluk against defendant Nos.1 to 3. During the pendency of the suit, item Nos.2 to 6 were included and defendant Nos.4 Noor Jan was also subsequently impleaded.

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The case of the plaintiffs is that;

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(a). That land in Sy.No.6/1 measuring 2 acre 21 guntas,

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Sy.No.38 measuring 14 guntas, Sy.No.39/6 measuring 21 guntas, and Sy.No.39/7 totally measuring 31 guntas out of which 15 ½ quntas, house property bearing H.L.No.22, to an extent of East to West 11+15 feet and North to South 38+19 feet and another house property bearing H.L.No.29 to an extent of East to West 30 feet and North to South 57 feet situated at Renumakalahalli Village, Mandikal Hobli, Chickballapur Taluk originally belonged to Abdul Raheem Sab.

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NC: 2024:KHC:14999 RSA No. 1538 of 2022

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(b). That the said Abdul Raheem Sab passed away leaving behind his four children namely (1). Saifulla (defendant No. 1), (2). Shafiulla (defendant No.2), (3). Rasheeda Begum and (4). Mahaboob Bi, who are plaintiff No.1 and 2 respectively. That upon the demise of said Abdul Raheem Sab, plaintiffs and defendant No.1 and 2 being his legal heirs became entitled to the properties inheriting the same as tenants-in-common. The Katha in respect to the suit schedule properties had been mutated in name of defendant No.1 upon death of their father. That since defendant No.1 and 2 were acting detriment to the interest of the plaintiffs, they approached defendant Nos.1 and 2 seeking their share in the suit properties. That defendant No.3 is utter stranger to the suit schedule properties, but he claimed to have purchased the item No.1 of the suit property from the defendant No.1. Hence, the plaintiffs have filed the suit for partition.

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In response to the suit summons, the defendant No.1 to 3 appeared through their counsel. The defendant No.3 filed his written statement denying the plaint averments and contended that he had purchased the suit item No.1 from defendant No.1 under registered deed of sale dated 28.6.2004

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NC: 2024:KHC:14999 RSA No. 1538 of 2022

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for valuable consideration. Since the date of purchase, he has been in possession and enjoyment of the suit schedule item No. 1. It is further contended that, father of the defendant No.1

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had purchased suit item No.1 from one Byanna under registered sale deed dated 29.3.1947. Thereafter the defendant

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Nos.1 and 2 were residing in joint family and they have partitioned the properties orally. The defendant No.2 had executed release deed in favour of defendant No.1 and his father released from the joint family by redeeming his right with respect to Sy.No.39/6 to an extent of 1 acre 38 guntas in Sy.No.39/7 measuring 28 guntas; Sy.No.38 measuring 13 guntas of Renumakalahalli Village and in Sy.No.68/1 measuring 1 acre 1 guntas of Bommaganahalli village and released from joint family by receiving amount of Rs.4,000/-. It is further contended that, defendant No.1 was the absolute owner of the suit item No.1 and he had mortgaged the same in favour of one M.Sushmitha wife of Dr.G.Narayanaswamy by availing loan of Rs.30.000/- he redeem the mortgage. Due to financial crisis, the defendant No.1 sold suit item No. 1 in favour of this defendant No.3 for legal necessity. It is further pleaded that, father of defendant No.1 passed away about 20 years back,

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since then defendant No.1 alone was enjoying suit item No.1. The suit is barred by limitation, as suit was not filed within 12 years from the date of death of their father. The plaintiffs have been ousted of their right over the suit schedule property, as such they have no right to seek for partition. The plaintiffs have not included all the properties belonged to defendant No.1 and 2. Hence, sought for dismissal of the suit.

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Based on the pleadings, the Trial Court framed the following issues for its consideration:

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"1). Whether the plaintiffs prove that, themselves and the defendants are the tenants-in-common of the suit property?

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2) Whether the defendant No.3 proves that the father of defendant No.1 had purchased the property from Byanna under the registered sale deed dated 29.3.1947?

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3) Whether the defendant No.3 proves that. defendant No.2 has executed release deed?

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4) Whether the defendant No.3 proves that, he is the absolute owner in possession of the suit schedule property?

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5) Whether the suit is barred by limitation?

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6) Whether the plaintiffs are entitled for the relief as prayed for?

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7) What Order or Decree?"

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The plaintiff No.1 examined herself as PW.1, one additional witness had been examined in her favour as PW.2 and exhibited 9 documents marked as Ex.P1 to Ex.P9. In order to prove their defence, defendant No.3 examined himself as DW1 and exhibited 6 documents marked as Ex.D1 to Ex.D6. After inclusion of item Nos.2 to 6, the plaintiffs did not adduced any further evidence. On appreciation of the evidence the Trial Court answered issue Nos.1 and 6 partly in the affirmative, issue No.2 in the affirmative, issue Nos.3 and 5 in the negative and consequently decreed the suit in part holding that plaintiffs are entitled for 1/5^th share together in suit item No.1 and defendant Nos.1 and 2 are entitled to 2/5^th share each in suit item No.1 only. Suit with respect to suit item Nos.2 to 6 were dismissed.

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Being aggrieved by the aforesaid judgment and decree legal representatives of defendant No.3 filed an appeal in R.A.No.45/2020 before the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for its consideration:

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"1) Whether the legal heirs of defendant No.3 have made out a case that the document sought to be produced under I.A.No.2 is required to be allowed ?

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NC: 2024:KHC:14999 RSA No. 1538 of 2022

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2) Whether the legal heirs of defendant No.3 have made out a case that the proposed amendment sought in I.A.No.4 is required for proper adjudication of the dispute ?

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3) Whether the judgment and decree of the trial court is apparent, illegal, perverse and capricious, therefore requires interference by this court?

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4) What order?"

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On re-appreciation of the evidences, the First Appellate

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Court answered point Nos.1 to 3 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same legal representatives of deceased defendant No.3 are before this Court.

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Sri.Shaikh Saoud, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submitted that at the stage of First Appeal the legal representatives of deceased defendant No.3 had filed an application seeking to amend the written statement to bring on record the Will that was executed by the father of the plaintiffs and defendant Nos.1 and 2 on 27.04.1991 bequeathing entire item No.1 of the suit schedule properties in favour of defendant No.1. He further submitted that the First Appellate Court grossly erred in not allowing the amendment to the written

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statement to bring on record the factum of the execution of Will. He further submitted that the properties were mortgaged by the father of the plaintiffs and defendant Nos.1 and 2 and the same was redeemed by defendant No.1 by paying the money out of his own hand. Thus by virtue of Will as well as by repaying the mortgaged amount, defendant No.1 had become the absolute owner of the property, capable of conveying the same on his own. It is his further submission that the deed of sale in question was executed by the defendant No.1 in favour of defendant No.3 on 28.06.2004, whereas the suit is question was filed in the year 2014, as such the suit was barred by limitation. Thus he submits that the Trial Court and the First Appellate Court have grossly erred in not appreciating this aspect of the matter, giving raise to substantial question of law.

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Per contra, Sri.Jai Prakash Reddy, learned counsel for the respondents-plaintiffs justifying the judgment and decree passed by the Trial Court and confirmed by the First Appellate Court submitted that there has been no whisper with regard to the Will purported to have been executed by the father of the plaintiffs and defendant Nos.1 and 2 before the Trial Court and the same was brought before the First Appellate Court. He

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11 - NC: 2024:KHC:14999 RSA No. 1538 of 2022

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further submits notwithstanding the same, the First Appellate Court has looked into the relevant provisions of law applicable to the parties and has declined to accept the contentions of the parties and dismissed the appeal. He submits that no substantial question of law would arise for consideration in this appeal.

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Heard. Perused the records.

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The admitted fact of the matter is that plaintiffs and defendant Nos.1 and 2 are the children of late Abdul Raheem Sab. It is also admitted fact that the item No.1 of the suit schedule properties originally belonged to late Abdul Raheem Sab, he having purchased the same in terms of deed of sale dated 29.03.1947. Parties are governed under the provisions of Muslim Personal Law. Upon the demise of the Abdul Raheem Sab, plaintiffs being daughters and defendants being sons are entitled for their specified shares. In that view of the matter, defendant No.1 could not have claimed to be exclusive owner of the properties of Abdul Raheem Sab and alienated the same in favour of defendant No.3. In any case, defendant Nos.1 and 2 have not filed their written statement, it was only the defendant No.3 who is the purchaser, has filed his written

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NC: 2024:KHC:14999 RSA No. 1538 of 2022

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statement, raising the issue with regard to purported discharge of mortgage by defendant No.1.

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It is also interesting to note that in the regular appeal filed by the legal representatives of the defendant No.3 before the First Appellate Court a plea with regard to father of the plaintiff and defendant No.1 having executed a Will dated 27.04.1991 in favour of defendant No.1 was sought to be brought on record. Though, attempts to bring said plea in the written statement by amendment was rejected, the First Appellate Court has adverted to the provisions governing testamentary disposition. Deceased was not entitled to execute the Will in excess of 1/3^rd of his share, that too in favour of non-heirs. In the present case, the legal representatives of defendant No.3 are seeking to contend that the entire property was bequeathed in favour of defendant No.1. Such a plea is untenable, even if there was such a Will, same could not have been established in the eye of law as rightly taken note of by the First Appellate Court.

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Though issue of limitation is pleaded, the suit schedule property was sold admittedly in the year 2004 and the suit has been filed in the year 2014, that is within 10 years, as

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NC: 2024:KHC:14999 RSA No. 1538 of 2022

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such the Trial Court and the First Appellate Court have held that the suit was not barred by limitation.

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Accordingly, this appeal is dismissed confirming the judgment and decree passed by the Trial Court and the First Appellate Court.

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No irregularity or illegality can be found with the said reasoning arrived at by the Trial Court and confirmed by the First Appellate Court. No substantial question of law would arise for consideration in this appeal.

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Needless to state, that the sale made by the defendant No.1 in favour of the defendant No.3 would be valid only to the extent of share of the defendant No.1.

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Sd/JUDGE

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List No.: 1 Sl No.: 17

R B Rasheed v. Smt Rasheeda Begum

Case brief

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What the court decided

R B Rasheed v. Smt Rasheeda Begum

Case brief

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