Disposed

Mukthar Ahmed Khan v. Sukanya Kumari

Karnataka HC1 Oct 2024WP/36877/2017

Case brief

AI extract

What is this about?

In a Writ Petition under Article 226, the High Court quashed the order refusing relief in Final Decree Proceedings. The Court found a discrepancy in the lower appellate judgment regarding share allocation and disposal rights. Instead of deciding merits, the High Court disposed of the petition by granting liberty to the petitioners to file for review/clarification in the Regular Second Appeal withi

What did the court decide?

Liberty to file an appropriate petition for review or clarification in R.S.A.No.176/2002 within one month.

Mukthar Ahmed Khan Vs Sukanya Kumari — Partition | Karnataka HC (2024)

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NC: 2024:KHC:48207 WP No. 36877 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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WRIT PETITION NO. 36877 OF 2017 (GM-CPC)

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BETWEEN:

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MUKTHAR AHMED KHAN, SINCE DEAD.

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1A. KOUSER SULTANA

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AGED ABOUT 74 YEARS,

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W/O LATE MUKTHAR AHMED KHAN,

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1B. ZULFIQAR AHMED KHAN, AGED ABOUT 55 YEARS, S/O LATE MUKTHAR AHMED KHAN,

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1C. IFTHEKAR AHMED KHAN, AGED ABOUT 53 YEARS, S/O LATE MUKTHAR AHMED KHAN,

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Digitally signed by MEGHA MOHAN

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Location: HIGH COURT OF KARNATAKA

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1D. VIKHAR AHMED KHAN, AGED ABOUT 50 YEARS, S/O LATE MUKTHAR AHMED KHAN,

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1E. YOUNUS AHMED KHAN, AGED ABOUT 46 YEARS, S/O LATE MUKTHAR AHMED KHAN,

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1F. UMME SALMA, AGED ABOUT 43 YEARS, D/O LATE MUKTHAR AHMED KHAN,

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1G. AZRA JABEEN AGED ABOUT 40 YEARS, D/O LATE MUKTHAR AHMED KHAN,

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1H. NASEER AHMED KHAN, AGED ABOUT 38 YEARS, S/O LATE MUKTHAR AHMED KHAN,

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1I. IMRAN AHMED KHAN, AGED ABOUT 36 YEARS, S/O LATE MUKTHAR AHMED KHAN,

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1J. MUDASSIR AHMED KHAN, AGED ABOUT 32 YEARS, S/O LATE MUKTHAR AHMED KHAN,

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ALL ARE RESIDING AT: NO.4684, 3^RD CROSS, RAJPUT BLOCK, N.R. MOHALLA, MYSORE-07.

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AMEER ALI BAIG, S/O. LATE JABBAR ALI BAIG, AGED ABOUT 70 YEARS, R/AT: NO.378/1, 30^TH CROSS, 26^TH MAIN, TILAKNAGAR, BANGALORE-560 041.

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…PETITIONERS

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(BY SRI. A. SAMPATH., ADVOCATE FOR LRS OF P1 AND P2)

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AND:

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SUKANYA KUMARI, AGED ABOUT 55 YEARS, W/O. BHARATHRAJ SINGH, D.NO.120, 2^ND CROSS, GAYATHRIPURAM, MYSORE-570 001.

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RAJA KUMARI AGED ABOUT 45 YEARS, D/O. LATE SONA BAI, KALKERE VILLAGE, TIPATUR TALUK, TUMKUR DISTRICT.

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A.N. KRISHNA SINGH, HUSBAND OF YESHODHA BAI, AGED ABOUT 50 YEARS, SINCE DEAD R/BY LR’S R4 TO R6.

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GOVINDA SINGH S/O. YESHODHA BAI, AGED ABOUT 65 YEARS,

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NARAYANA SINGH S/O. LATE YESHODHA BAI, AGED ABOUT 55 YEARS,

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SURENDRA SINGH S/O. LATE YESHODHA BAI, AGED ABOUT 50 YEARS,

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RESPONDENT NO.3 TO 6 RESIDING AT: D.NO.540, CHELUVAMBA AGRAHARA, K.R. MOHALLA, MYSORE-570 001.

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SHIVARAM SINGH S/O. LATE MADAN, MAJOR, RESIDING AT NO.540, VENNE SESHANNA STREET, 7^TH CROSS, K.R. MOHALLA, MYSORE-570 001.

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PREMA BAI W/O. LATE MADAN SINGH, MAJOR, VEENE SESHANNA STREET, 7^TH CROSS, K.R. MOHALLA, MYSORE-570 001.

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A.H. THIMMA SETTEE, S/O. LATE A. HANUMANTHA SETTE, MAJOR, RESIDING AT NO.4682/1, III CROSS, RAJPET BLOCK,

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NC: 2024:KHC:48207 WP No. 36877 of 2017

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N.R. MOHALLA, MYSORE-570 001.

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…RESPONDENTS

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(BY SRI. KARUMBAIAH T.A., ADVOCATE FOR C/R1, R2, R4, R5 AND R6;

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R4 TO R6 ARE TREATED AS LR’S OF DEAD R3

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V/O/D 15.03.2019;

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R7 TO R9-NOTICE DISPENSED WITH V/O/D 15.03.2019)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN FDP 40/2007 FROM THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MYSORE AND SET ASIDE THE ORDER DATED 15.07.2017 VIDE (ANNEXURE-H).

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON 04/07/2024, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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CAV ORDER

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The present petition is filed by the 5^th respondent in O.S.No.193/1978, aggrieved by the order passed in FDP.No.40/2007 dated 07.07.2017 by the Principal Senior Civil Judge & CJM, Mysuru, whereby the trial Court held that the Final Decree Proceedings is maintainable and appointed the Court commissioner to divide the suit schedule property as per the modified decree in RSA.No.591/2002 by metes and bounds.

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The facts of the case are that the suit was originally filed by one Smt.Lakshmi Bai claiming 4/9^th share in the suit

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schedule properties, past mesne profits from 23.02.1974 up to the date of suit and directing the defendant Nos.3 and 4 to execute a Sale Deed in favour of the plaintiff conveying 5/9^th share in the suit properties, plaintiff conveying 5/9^th share in the suit properties in pursuance to plaintiff’s preferential right to purchase the said share for a consideration of an amount of Rs.19,445/- and to put the plaintiff in possession of the suit properties together with future mesne profits from the date of suit till delivery of possession. The suit property is house property bearing Door Nos.4683 and 4684 situated in 3rd cross, IV Block, N R Mohalla, Mysore. It is the case of the plaintiff that the suit property belonged to the joint family of the plaintiff's husband Shivaram Singh and his sons Madan Singh and Krishna Sing. The said Shivaram Singh died in the year 1940 and Krishna Singh died unmarried in or about 1950 and Madan Singh died on 1.10.1972. After the death of Shivaram Singh and Krishna Singh, the suit property passed on to Madan Singh as sole surviving co-parcener subject to plaintiff's 1/3^rd share as per Section 8(1)(d) of Mysore Act 10 of 1933 and the remaining 2/3^rd share belonged to joint family of Madan Singh and his son Shivaram Singh who is the 1^st defendant. After the death of

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Madan Singh, his undivided 1/3^rd share in the joint family property devolved upon his son and wife, i.e., defendant Nos.1 and 2 in equal shares and the plaintiff as heir to Madan Singh got 1/9^th share in addition to 1/3^rd share which she already had and thus, the plaintiff became entitled to 4/9^th share in the suit property. On 23.02.1974, the 2^nd defendant for herself and as guardian of 1^st defendant sold the property in favour of 3^rd defendant for an amount of Rs.35,000/- though she had no right to do so. The 3^rd defendant in turn sold portion of the suit property to 4^th defendant on 12.07.1975. According to the plaintiff the said sale deeds are not binding upon the plaintiff and her share in the suit property.

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A preliminary decree was passed whereby the suit is declared holding that the original plaintiff is entitled for 4/6^th share in the suit scheduled property and original plaintiff Lakshmi Bai shall also share the debts of an amount of Rs.25,000/- to the extent of her share in the joint family properties and sale deed Ex.D-3 does not bind the interest of Lakshmi Bai in the suit properties. Aggrieved thereby, the purchaser defendant No.5 had filed R.A.No.73/1990 and defendant No.4 had filed R.A.No.76/1990 and both the appeals

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were allowed by setting aside the Judgment and Decree dated 17.07.1985 passed by the learned Principal Civil Judge, Mysore, in O.S No.193/1978. In that, the Court observed that there were outstanding loans of the family and for discharge of the said loan, the 1^st defendant acting through the 2^nd defendant had sold the suit property in favour of the 3^rd defendant. It was for family benefit. The 1^st defendant as sole surviving coparcener has right to do so even without seeking concurrence or consent of family heirs. Therefore, the Court held that the sale effected by defendant Nos.1 and 2 in favour of the 3^rd defendant is not liable to be set aside and consequently the sale effected by 3rd defendant in favour of defendant Nos.4 to 6 cannot be interfered with. The Court further observed that the 3^rd defendant was a bonafide purchaser for value without notice and the 3rd defendant was put in possession of the suit property and the Court also observed that the 3^rd defendant had sold the suit properties in different portions to defendant Nos.4 to 6 who are also the bonafide purchasers for value without notice. If at this point of time the said sales are set aside, defendant Nos.3 to 6 would be put to great hardship and irreparable injury and accordingly, the Court held that the

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plaintiffs would not be entitled for partition and separate possession of their share in the suit property. Aggrieved thereby, the plaintiffs had filed R.S.A.No.176/2002.

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The judgment of the Appellant Court in dismissing the suit was set aside and this Court held that the plaintiffs are entitled for 8/18^th share in the suit property and defendant Nos.1 and 2 together are entitled to 10/18^th share in the property. In other respects, the judgment and decree of the lower appellate Court remains unaffected. Basing on the said judgment and decree passed in RSA, the plaintiffs have approached the trial Court for the Final Decree Proceedings. In that the purchaser i.e., defendant Nos.4 to 6 have filed their objection with regard to maintainability of the final decree proceedings. It is their case that the plaintiffs have twisted the judgment of the High Court in R.S.A.No.176/2002 and R.S.A.No.591/2002. The High Court upheld the findings of the Lower Appellate Court as far as the rights of the purchaser are concerned. The trial Court has rejected their objections. Aggrieved thereby, they are before this Court.

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Learned counsel appearing for the petitioners has drawn the attention of this Court to Para No.16 in R.S.A.No.176/2002. He submits that the High Court in the appeal had observed that the lower appellate Court has come to the conclusion that the defendant No.1 through defendant No.2 was entitled to sell the suit property towards the discharge of the family debt and therefore, the said sale was for the family necessities, the learned Judge has also referred to the position of law as has been observed by the learned author Mulla in his Hindu law, 16^th Edition. The lower appellate Court also found on the evidence placed by the parties that defendant No.3 was a bonafide purchaser without notice and so were defendant Nos.4 to 6. As the said finding of the lower appellate Court is based on the evidence let in by the parties, this Court in second appeal cannot interfere with the finding of fact unless it is shown that the said finding suffers from the error of perversity. As no such error is pointed out, no substantial question of law arises in respect of the said finding recorded by the lower appellate Court. Therefore, insofar as the sale effected by defendant No.3 in favour of defendant Nos.4 to 6 is concerned, no defect can be found in the reasoning given by the lower appellate Court. The

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Court further observed that in the light of the foregoing reasons, only the operative portion of the judgment delivered by the lower appellate Court requires to be modified in view of the finding recorded by the learned Judge of the lower appellate Court on point No.(1) framed by him. Accordingly, it was declared that the plaintiffs are entitled to 8/18^th share in the suit property and defendant Nos.1 and 2 together are entitled to 10/18^th share. Learned counsel submits that when the sale in respect of the defendants is upheld by the Court, question of executing the decree by the plaintiffs would not arise and in the second appeal, the Court in a way had upheld the order of the lower appellate Court but however in the judgment, the operative portion it is shown that the plaintiffs are entitled to 8/18^th share in the suit property. It is submitted that when the Court has held that the defendant is a bonafide purchaser and there is absolutely nothing wrong in the order of lower appellate Court and it was also observed that the property was sold for the joint family necessities and in that case, the plaintiffs are not entitled for any share. He submits that the executing Court ought to have looked into these aspects.

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Learned counsel appearing for the respondents/ plaintiffs submits that in the RSA, the order of the appellate Court was set aside and the suit was decreed in favour of the plaintiffs. In that case, the final decree proceedings were initiated. The Court had rightly held that the order passed in the RSA has to be given effect to and rightly held that the objection that is raised by the defendants are not tenable and had rightly dismissed the petition.

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Having heard the learned counsels on either side, perused the entire material on record. The trial Court had decreed the suit filed by the plaintiffs and the lower appellate Court has given a finding that the property was sold for the joint family debts and as such the same is binding on the plaintiffs and held that the sale in respect of the defendants is valid and allowed the appeal by dismissing the suit. The judgment passed in the regular second appeal shows that as rightly pointed out by the learned counsel for the appellants, the Court upheld the finding of the lower appellate Court with regard to the joint family necessities and the binding nature of the same on the plaintiff. The Court gives a finding that in the sale effected by defendant No.3 in favour of defendants No.4 to

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6, no defect can be found in the reasoning given by the lower appellate Court. This Court in second appeal observed that the defendant is the bonafide purchaser and the property is sold for discharging the family debts. All those findings are based on evidence and the Court in second appeal cannot interfere with the finding of fact unless it shows that the said finding suffers from the error of perversity. This Court has perused the operative portion of the order which shows that the plaintiff is entitled for 8/18^th share. This Court finds force in the argument of the learned counsel appearing for the petitioners that there is some discrepancy in the judgment passed in R.S.A.No.176/2002. The petitioners ought to have filed a review petition and sought a clarification from the Court. But unfortunately, the parties have kept quiet and for the first time before the executing Court they have raised this objection. The executing Court cannot go into all these issues and the duty of the executing Court is to execute the decree. Looking at the observation and the operative portion of the order, this Court is of the view that an opportunity should be given to the petitioners or else lot of injustice will be caused to them. In the light of the above discussions, this Court deems it appropriate

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to give an opportunity to the petitioners to file an appropriate petition seeking clarification/review of the judgment and decree in R.S.A.No.176/2002 dated 12.09.2007. Accordingly, this Court is passing the following:

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ORDER

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i. Accordingly, this writ petition is disposed off giving liberty to the petitioners to file an appropriate petition in R.S.A.No.176/2002 dated 12.09.2007 within a period of one month from the date of receipt of copy of this order.

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ii. All I.As. in this writ petition shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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MEG CT:BCK LIST NO.: 2 SL NO.: 4

Mukthar Ahmed Khan v. Sukanya Kumari

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Mukthar Ahmed Khan v. Sukanya Kumari

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