Partly allowed

Smt Hussain Bi v. Mohammed Dasthagir

Karnataka HC25 Sept 2024RSA/880/2013

Case brief

AI extract

What is this about?

Daughters sued their brothers for declaration, partition and separate possession of their deceased father's properties. The High Court held the daughters estopped from claiming item No.1, which had been mortgaged to KSFC and auctioned to a purchaser, but decreed partition of remaining items, granting each daughter 1/10th share.

What did the court decide?

Judgments set aside as to items Nos.2 to 7; plaintiffs decreed 1/10th share each and defendant Nos.1 to 4, 2/10th share each therein; item No.1 judgment maintained.

Smt Hussain Bi Vs Mohammed Dasthagir — Partition | Karnataka HC (2024)

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NC: 2024:KHC:40223 RSA No. 880 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF SEPTEMBER, 2024

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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. 880 OF 2013 (PAR)

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BETWEEN:

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SMT HUSSAIN BI

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DEAD BY LEGAL REPRESENTATIVES

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1(A) JOWHER THASLEEM

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W/O SYED ATHEEFULLA AGED ABOUT 46 YEARS

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1(B) K.MOHAMED IRFANULLA S/O MOHAMED KHASIM AGED ABOUT 44 YEARS

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Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA

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BOTH ARE R/AT BADA KAMAN VIJAYAPURA

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SMT ASIYA BANU W/O LATE ABDUL RAHIM SAB, AGED ABOUT 47 YEARS, RESIDENT OF NAYAKANAHATTY VILALGE, CHALLAKERE TALUK, CHITRADURGA DISTRICT.

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…APPELLANTS

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(BY SRI. B.K. MANJUNATH & N. KUMARASWAMY, ADVOCATE)

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AND:

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MOHAMMED DASTHAGIR S/O LATE.T. ABDUL RAHIM, AGED ABOUT 66 YEARS

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ABDUL KHUDDUS S/O LATE.T.ABDUL RAHIM, AGED ABOUT 64 YEARS,

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MOHAMMED HASHAM S/O LATE.T.ABDUL RAHIM, AGED ABOUT 55 YEARS,

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MOHAMMED ROUF S/O LATE.T.ABDUL RAHIM, AGED ABOUT 55 YEARS,

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1 TO 4 ARE RESIDENT OF TERU BEEDI, NAYAKANAHATTY, CHALLAKERE TALUK, CHITRADURGA DISTRICT.

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THE BRANCH MANAGER KSFC, CHITRADURGA BRANCH, CHITRADURGA - 577 501

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THE SUB-REGISTRAR CHALLAKERE TALUK, CHALLAKERE, CHITRADURGA DISTRICT.

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GOWRISH BABU S/O RAMA SHETTY, AGED ABOUT 64 YEARS, TAMARIND SEEDS MERCHANT, 2^ND CROSS, PAVAGADA ROAD, CHALLAKERE, TALLAKERE TALUK, CHITRADURGA DISTRICT.

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SPECIAL TAHSILDAR KSFC, RANGE OFFICE, NIJALINGAPPA LAYOUT, DAVANAGERE - 577 001

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….RESPONDENTS

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(BY SRI. R SHASHIDHARA, ADVOCATE FOR R1-R4 SRI. GIRISH R, BIPIN HEGDE, ADVOCATES FOR R5 AND R8 SRI. R.A. MACHA KANUR, AGA FOR R6 SRI. GURURAJ JOSHI, ADVOCATE FOR R7)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 24.1.2013 PASSED IN R.A.NO.56/2012 ON THE FILE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 7.7.2012 PASSED IN OS.NO.1/2006 ON THE FILE OF SENIOR CIVIL JUDGE, CHALLAKERE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This regular second appeal is filed by the appellants challenging the preliminary decree dated 24.01.2013 passed in R.A.No.56/2002 by the Principle District and Sessions Judge, Chitradurga and judgment and preliminary decree dated 07.07.2012 passed in O.S.No.01/2006 by the learned Senior Civil Judge, Challakere.

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For convenience, parties are referred to

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according to their rankings before the trial Court. Appellants are the plaintiffs, and respondents are the defendants.

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NC: 2024:KHC:40223 RSA No. 880 of 2013

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

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Plaintiffs filed a suit for declaration, partition, and separate possession against the defendants with respect to the suit schedule properties. It is the case of the plaintiffs that plaintiffs Nos.1 to 4 are the children of Sri. Abdul Rahim S/o Abdul Azeez. Said Abdul Rahim died about ten years back. During his lifetime, he purchased suit schedule properties out of his own earnings. During the lifetime of Abdul Rahim, the plaintiffs and defendants Nos.1 to 4 enjoyed suit schedule properties as tenants in common. Plaintiff No.1 married and lived with her husband, and Plaintiff No.2 attained the age of marriage. Soon after the death of Abdul Rahim, the plaintiffs and defendants became the sharers of the suit schedule properties. The plaintiffs have a 2/6th share in the suit schedule properties. Defendants Nos.1 to 4, without the knowledge of the plaintiffs, have mortgaged item No.1 of the suit schedule property in favour of Karnataka State

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Financial Corporation (for short K.S.F.C), and the mortgage is not binding on the share of the plaintiffs. It is contended that all the plaintiffs and defendants Nos.1 to 4 are entitled to the prescribed share under the Mohammedan law. In spite of the demand made by the plaintiffs, defendants Nos.1 to 4 did not perform the marriage of plaintiff No.1. During the pendency of the suit, defendant No.5 sold item No.1 of the suit schedule property in favour of the defendant No.7. Hence, prayed to decree the suit.

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Defendant No.5 filed the written statement denying the averments made in the plaint. It is contended that defendants Nos.1 to 4 have obtained the loan from KSFC. As they became defaulters, defendant No.5 initiated recovery proceedings against defendant Nos.1 to 4. defendant Nos.1 to 4 requested to repay the loan amount. It is contended that defendant No.4 filed a suit in O.S.No.26/2001 on the file of Civil Judge (Jr.Dn.), Challakere and the said suit was dismissed on 29.09.2005.

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Thereafter, defendant No.5 auctioned item No.1 of the suit schedule property and defendant No.7 was the highest bidder and accordingly issued a sale certificate in favour of defendant No.7. Hence, plaintiffs and defendant Nos.1 to 4 are not entitled to share in respect of item No.1 of the suit schedule property. Hence, the suit filed by the plaintiffs is not maintainable and barred by limitation and prayed to dismiss the suit against defendant No.5 insofar as item No.1 of the suit schedule property.

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Defendant Nos.1 to 4 filed a written statement

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admitting the relationship of plaintiffs with defendant Nos.1 to 4. It is contended that the father of the plaintiffs and defendant Nos.1 to 4 died intestate and denied the allegations made in para Nos.5 to 8 of the plaint and admitted the allegations made in para No.9 of the plaint. It is contended that in the year 1972, the father of the plaintiffs and defendant Nos.1 to 4, by obtaining a hand loan of Rs.50,000/- performed the marriage of plaintiff No.1 with Mohammed Khasim of Bijapur and it is

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contended that plaintiff No.1 had promised to defendants that she will not claim any share in the suit schedule property in future in front of Panchayathdars. Plaintiff No.2 and defendant Nos.1 to 4 have succeeded to the suit schedule properties and admitted that defendant Nos.1 to 4 had borrowed the loan from KSFC and plaintiff No.1 relinquished her right over the suit schedule properties. Hence, prayed to dismiss the suit.

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Defendant No.7 filed a written statement contending that he had purchased the property under public auction. In the auction, he was a bona fide purchaser of item No.1 of the suit property. Hence, prayed to dismiss the suit against defendant No.7.

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Defendant No.8 filed a memo for adopting same written statement filed by Defendant No.5.

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The Trial Court, based on the above said pleadings, framed the following issues:

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1) Whether the plaintiffs prove that they are entitled for 2/6^th share in the suit schedule properties?

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2) Whether the plaintiffs prove that the defendant Nos.1 to 4 have mortgaged the item No.1 of the suit schedule property in favour of the defendant No.5 involving the share of plaintiffs?

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3) Whether the defendant Nos.1 to 4 prove that plaintiffs have already obtained their legitimate share in the suit schedule properties in terms of money?

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4) Whether the defendant Nos.1 to 4 proves that the defendant No.5 has not properly deduced the repaid amount?

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5) Whether the defendant No.5 proves that suit is not maintainable?

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6) Whether the Court fee paid is sufficient?

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7) What decree or order?

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Additional Issues:

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Whether plaintiffs prove that the defendant No.5 has sold the suit schedule item No.1 in favour of defendant No.7 and it is hit by Section 52 of T.P.Act?

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In order to establish the case of the plaintiffs,

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plaintiff No.2 was examined as PW.1 and marked 15 documents as Exs.P1 to 15. In rebuttal, defendant Nos.5,

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7, 8 and 3 examined themselves as DWs.1 to 4 and marked 58 documents as Exs.D1 to D58. The trial Court, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, answered issue Nos.1 to 5, additional issue No.1 in the negative, issue No.6 in the affirmative, issue No.7 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 07.07.2012. The plaintiffs, aggrieved by the judgment and preliminary decree passed in O.S.No.1/2006, preferred an appeal in R.A.No.56/2012 on the file of Principal District and Sessions Judge Chitradurga.

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The First Appellate Court framed the following points for consideration:

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1) Is the finding of the learned trial judge that the plaintiffs are estopped from seeking partition correct?

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2) Whether the finding of the learned trial judge that the trial Court has no jurisdiction to entertain the suit in respect of item Nos.2 to 6 is correct?

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3) Whether the finding of the learned trial judge that the Court fee paid by the plaintiff is sufficient is correct?

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The first Appellate Court on the reassessment

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of oral and documentary evidence, answered point Nos.1 to 3 in the affirmative. Consequently, dismissed the appeal vide judgment dated 24.01.2013 and confirmed the judgment and decree passed by the trial Court. The plaintiffs aggrieved by the impugned judgments and decrees passed by the courts below, have filed this regular second appeal.

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Heard the learned counsel for the plaintiffs and the learned counsel for the defendants.

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Learned counsel for the plaintiffs submits that, admittedly, suit schedule properties were owned and possessed by the father of plaintiffs and defendant Nos.1 to 4. He submits that defendant Nos.1 to 4 have no right to mortgage item No.1 of the suit schedule property in favour of defendant No.5. He submits that defendant No.5

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has auctioned item No.1 of the suit schedule property during the pendency of the suit and the said transaction is hit by Doctrine of Lis pendency . The trial Court could have granted a share with respect to other items of the suit schedule properties, but the trial Court committed an error in dismissing the entire suit for partition and separate possession. Hence, on these grounds, prays to allow the appeal.

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Per contra, learned counsel for defendant No.7

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submits that defendant Nos.1 to 4 have obtained a loan from defendant No.5, mortgaged item No.1 of the suit schedule property. Defendant Nos.1 to 4 committed default in paying the loan amount, and defendant No.5 issued a paper publication to auction the item No.1 of suit schedule property. Defendant No.5 conducted a public auction, and in the said public auction defendant No.7 was the highest bidder and accordingly defendant No.5 issued a sale certificate in favour of defendant No.7. He submits that it is not the case of the plaintiffs that defendant Nos.1

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to 4 have misused the loan and mortgage deed executed by defendant Nos.1 to 4 in favour of defendant No.5 is binding on the plaintiffs. He submits that PW.1, in the course of cross-examination, admitted that she was well aware of the mortgage deed executed regarding item No.1 of the suit schedule property by defendant Nos.1 to 4 in favour of defendant No.5. He submits that plaintiffs are estopped from claiming a share in item No.1 of the suit schedule property. He submits that both the courts below were justified in passing the impugned judgments insofar as item No.1 of the suit schedule property. Hence, on these grounds prays to dismiss the appeal insofar as item No.1 of the suit schedule property. Defendant Nos.1 to 4 submits that suit schedule properties were owned and possessed by the father of the plaintiffs and defendant Nos.1 to 4. It is contended that plaintiffs have relinquished their rights in respect of the suit schedule properties, and they are not entitled to a share in the suit schedule properties. Hence, prayed to dismiss the appeal.

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NC: 2024:KHC:40223 RSA No. 880 of 2013

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This court vide order dated 06.06.2017,

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admitted the appeal on the following substantial questions of law :

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1) Whether the finding of the courts below that the plaintiffs' suit is barred by principles of estoppels is in conformity with Section 115 of Indian Evidence Act?

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2) Whether the findings of Courts below that the jurisdiction of the Civil Courts is barred is in accordance with Section 32(g) of KSPC 1951 and Section 1961 Karnataka Lands Reforms Act?

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3) In the absence of denial of the relationship of plaintiff Nos.1 to 4, whether the courts below were justified in dismissing the suit of the plaintiffs for their share in the suit properties? Whether dismissal of the application of the appellants under Order 41 Rule 27 of CPC by the first appellate Court is sustainable?

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16. SUBSTANTIAL QUESTION OF LAW No.1 :

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It is the case of the plaintiffs that, plaintiffs and defendant Nos.1 to 4 are the brothers and sisters and children of one Abdul Rahim. The suit schedule property item No.1 was purchased by the father of the plaintiffs and defendant Nos.1 to 4. He died intestate. The plaintiffs and

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defendants are in joint possession as tenants in common and there is no partition effected between the plaintiffs and defendants. Defendant Nos.1 to 4 have no right to mortgage the suit item No.1 of the suit schedule property in favour of defendant No.5, and the said mortgage deed executed by defendant Nos.1 to 4 is not binding on the plaintiffs. Further, plaintiffs to establish their case produced the documents Ex.P1 is the paper publication, wherein defendant No.5 issued the paper publication fixing the date of auction insofar as item No.1 of the suit schedule property. Ex.P2 is the khata extract in respect of suit schedule property. Ex.P3 is the Assessment register extract in respect of khata No.1291, Ex.P4 to 12 are the RTC extracts, Ex.P13 to 15 are the certified copies of sale deeds which disclose that Abdul Rahim had purchased the suit schedule properties under the said sale deeds.

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During the course of cross-examination, PW.1 admitted that item No.1 of the suit schedule property was mortgaged by defendant Nos.1 to 4 in favour of defendant

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NC: 2024:KHC:40223 RSA No. 880 of 2013

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No.5 in connection with the loan obtained by them. Further, she has clearly admitted her brothers have availed the loan and mortgaged item No.1 of the suit property as security and also admitted that defendant No.7 purchased the property from defendant No.5 and further, she has admitted that defendant No.5 has taken all the steps in accordance with law before auctioning the item No.1 of the suit schedule property. In rebuttal, she also admitted that the father of the plaintiffs had purchased the suit schedule properties under the registered sale deed. Defendant No.5 examined it's official as DW.1, who has deposed that defendant Nos.1 to 4 were in partnership and produced a partnership deed and approached defendant No.5 and independently obtained a loan from defendant No.5 and sanctioned the same for Rs.1,05,000/- and deferred the loan for second-hand machineries sold by KSFC on 01.09.1997 and subsequently additional loan of Rs.6,04,000/was sanctioned on 30.04.1997 and KSFC has got mortgaged the property. Further defendant Nos.1 to 4 have

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mortgaged item No.1 of the suit schedule property, and the defendants have produced a copy of the undertaking letter marked as Ex.D1 i.e., defendant Nos.1 to 4 have undertaken to mortgage in respect of item No.1 of the suit schedule property in favour of KSFC for the due repayment of loan of Rs.1,05,000/- sanctioned by the KSFC to the defendant Nos.1 to 4. Ex.D2 is the memorandum of entry, which discloses that defendant Nos.1 to 4 have deposited title deeds in respect of item No.1 of the suit schedule property. Ex.D3 is the security agreement. Ex.D4 of the loan sanctioned letter, Ex.D5 is the letter of the defendants, Ex.D6 is the mortgage deed, Ex.D7 is the paper publication which discloses that defendant Nos.1 to 4 committed default and defendant No.5 initiated proceedings and item No.1 of the suit schedule property was put in auction and issued paper publication. Ex.D8 is the mahazar. Ex.D9 is the certified copy of the order sheet in O.S.No.26/2001, which discloses that defendant No.4 filed a suit against defendant No.5. Ex.D10 is the certified copy of the plaint in O.S.No.26/2001. Ex.D11 is the

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written statement filed in O.S.No.26/2001, Ex.D12 is the copy of writ petition filed by defendant Nos.1 to 4 against KSFC in W.P.No.22442/2005. This Court vide order dated 07.10.2005, dismissed the writ petition. Ex.D13 to 15 are the communication addresses of KSFC to defendants Nos.1 to 4. Ex.D16 is the certified copy of the complaint filed by defendant No.5 against Mohammed Rouf- defendant No.4, wherein he has issued a cheque in favour of defendant No.5 and the said cheque was dishonoured and thereafter, KSFC filed a complaint under Section 200 of Cr.P.C., for the offence punishable under Section 138 of N.I Act. Ex.D17 is the certified copy of the order sheet in O.S.No.26/2001, which discloses that defendant No.5 filed a memo for dismissing the complaint as withdrawn. The said memo was taken on record, and the complaint was dismissed as withdrawn. Ex.D18 is the copy of the order passed by this Court in W.P.No.5365/2007 filed by the firm against KSFC. The said writ petition was dismissed vide order dated 29.08.2008. Ex.D19 is the copy of the order passed by the Additional District and Sessions

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Judge, Chitradurga, under Section 31(1)(a) of the KSFC, wherein defendant No.5 filed a petition against defendant Nos.1 to 4 and said petition was allowed by the learned District and Sessions Judge, Chitradurga vide order dated 11.01.2010 invoking personal guarantee. Ex.D21 is the death certificate of Abdul Rahim Sab, Ex.D22 is the genealogical tree of plaintiffs and defendants, which discloses that plaintiffs and defendant Nos.1 to 4 are the children of Abdul Rahim and Ex.D23 is the certified copy of the release deed, which discloses that Karnataka Industrial Co-operative Bank Limited executed release deed in favour

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of defendant No.4 dated 06.03.1995. Ex.D24 is the registered sale deed, which discloses that defendant No.5 executed the registered sale deed in favour of defendant No.7 in respect of item No.1 of the suit schedule property. Ex.D25 is the assessment extract in respect of property No.1291, Ex.D26 is the Encumbrance certificate, Ex.D27 and 28 are the assessment extracts, Ex.D29 is the house list extract.

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NC: 2024:KHC:40223 RSA No. 880 of 2013

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From the perusal of records, PW.1 has admitted that defendant Nos.1 to 4 have obtained loan from KSFCdefendant No.5 and they have failed to repay the loan amount and they have committed default and defendant No.5 put item No.1 of the suit schedule property for auction and defendant No.7 purchased the item No.1 of the suit schedule property. The plaintiffs kept quiet till the defendants raised the loan from KSFC and also did not raise any objection to execute the mortgage deed as per Ex.D6. Further, defendant No.5 also issued a paper publication inviting the auctioning of the property. The plaintiffs made defendant No.5 to initiate proceedings and have not raised any objection. The plaintiffs challenged the loan obtained by defendant Nos.1 to 4 from defendant No.5 and also the sale deed executed by defendant No.5 in favour of defendant No.7. The conduct of the plaintiffs is hit by the principle of Estoppel and it is in conformity of section 115 of Evidence Act, wherein plaintiffs and defendant No.7, defendant Nos.1 to 4 have right to mortgage the said item No.1 of the suit schedule property

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and defendant No.7 has purchased the property in the auction and he is a bonafide purchaser. Hence, in view of the above discussion, I answer the substantial question of law No.1 in the affirmative.

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19. SUBSTANTIAL QUESTION OF LAW NO.2 :

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Defendant Nos.1 to 4 have obtained a loan from KSFC and also executed a letter of undertaking and mortgaged the suit schedule property and they have committed default, and KSFC invoked personal guarantee by filing a petition under Section 31(1)(aa) of the Karnataka State Finance Corporation Act, 1951 (for short KSFC Act) before the Additional District Judge, Chitradurga. The copy of the miscellaneous petition is marked as Ex.D19, and the said miscellaneous petition came to be allowed and award marked as Ex.D20. Defendant No.5 has taken possession of the property under Section 29 of the KSFC Act, and defendant No.5 has issued paper publication as per Ex.P1 for auctioning the suit schedule properties. The said property was auctioned. In view of the above discussion,

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the provisions of Section 32(g) of the KSFC Act, 1951, and II provision of the Karnataka Land Revenue Act are not applicable to the present case in hand. As observed above, the plaintiffs are not entitled to partition in respect of item No.1 of the suit schedule property. In view of the above discussion, substantial question of law No.2 does not arise for consideration.

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20. SUBSTANTIAL QUESTION OF LAW NO.3 : It

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is the case of the plaintiffs that suit schedule properties

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were purchased by Abdul Rahim, the plaintiffs and defendant Nos.1 to 4 are the children of Abdul Rahim. Abdul Rahim died intestate. Plaintiffs and defendants have inherited the properties. There is no partition effected between the plaintiffs and defendants in respect of other items of the suit schedule properties except item No.1. The plaintiffs and defendants are tenants in common, and said aspect was not considered by the courts below and committed an error in dismissing the suit in respect of item Nos.2 to 7. The plaintiffs, being the daughters of

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Abdul Rahim, are entitled to the share in the suit schedule properties. Though defendants Nos.1 to 4 are the sons of Abdul Rahim, plaintiffs are entitled to 1/10^th share each and defendants Nos.1 to 4 are entitled to a double share of the plaintiffs i.e., 2/10^th share each. The trial Court committed an error in dismissing the suit of the plaintiffs in respect of item Nos.2 to 7. Defendant Nos.1 to 4 have not denied the relationship of the plaintiffs with them. In the absence of denial, the trial Court could have granted a share to the plaintiffs as they were sharers under the Mohammedan law. In view of the above discussion, I answer the substantial question of law No.3 in the negative.

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21. SUBSTANTIAL QUESTION OF LAW NO.4 :

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I have perused the records of the first Appellate Court. I do not find any application filed by either of the parties for the production of additional evidence. In view of the same, substantial question of law No.4 does not arise for consideration.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is allowed in part.

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The impugned judgments passed by the courts below are set aside insofar as item Nos.2 to 7 are concerned.

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Suit of the plaintiffs is decreed in part. The plaintiffs are entitled to 1/10^th share each and the defendants Nos.1 to 4 are entitled to 2/10^th share each insofar as item Nos.2 to 7 of the suit schedule property.

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Rest of the judgments passed by the courts below insofar as item No.1 is maintained.

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No order as to the costs.

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Sd/(ASHOK S.KINAGI) JUDGE

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SKS

Smt Hussain Bi v. Mohammed Dasthagir

Case brief

What is this about?

What did the court decide?

Smt Hussain Bi v. Mohammed Dasthagir

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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