Bobba Ramesh Vs Sharfunnisa

MOHAMED GHOUSE SHARIFF @ NASEEB S/O. LATE ABDUL JABBAR SHARIFF, AGED ABOUT 56 YEARS, RESIDING AT 2/2/54, ANDRONKHILLA, NEAR JAMIA MASJID, RAICHUR-584 104.

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NASEEMUNNISSA W/O. RASHEED AHMED, AGED ABOUT YEARS, NIZAMUDDIN MOHALLA, BABA LANE, MYSORE ROAD, BENGALURU-560 026.

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AYISHA BEGUM W/O. MOHAMED ALI, AGED ABOUT 71 YEARS, RESIDING AT H. NO. 2-5-48/2, SHALAMSABDODDI, KOT THALLAR, RAICHUR-584 104.

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…RESPONDENTS

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(BY SRI. AMEET KUMAR DESHPANDE, SENIOR ADVOCATE FOR SRI. ANIL KUMAR.S, ADVOCATE FOR R1-R7; SRI. P.S. MALIPATIL, ADVOCATE FOR R9;

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NC: 2026:KHC:1578-DB RFA No. 1240 of 2016

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HC-KAR

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R8 IS SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 13.04.2016 PASSED IN O.S NO. 90/2008 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND CJM, TUMAKURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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

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CORAM: HON'BLE MR. JUSTICE D K SINGH and

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HON'BLE MR. JUSTICE S RACHAIAH

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE D K SINGH)

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The present First Appeal has been filed under Section

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96 R/w Order 41 Rule 1 of CPC against the judgment of decree dated 13.04.2016 passed by the learned Additional Senior Civil Judge and CJM, Tumakuru, in O.S.No.90/2008.

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The plaintiffs' had filed suit for partition of the properties left behind by late Mahaboob Shariff. The description of the properties are given in the plaint. The plaintiff's are the brothers and sisters of late Mahaboob Shariff.

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NC: 2026:KHC:1578-DB RFA No. 1240 of 2016

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HC-KAR

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3. The defendant No.4, who is the appellant herein had

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purchased the suit schedule property in Item No.5, from the widow of late Mahaboob Shariff. The suit came to be filed by the plaintiffs. The defendant No.4 was proceeded ex-parte, since he did not answer the summons. Defendant No.1 i.e., Rafeeqa Banu, wife of Late Mahaboob Shariff and defendant No. 5 also died during the pendency of the suit and their legal heirs were brought on record, before the impugned judgment and decree could be passed. On the basis of the pleadings, the learned trial Court framed the following issues:

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"1. Whether defendant No.2 proves that late Mahaboob Shariff executed gift deeds dated 18.08.1991 and 31.03.2003, making gift of suit schedule item No.1 and 4 properties respectively in his favour ?

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2. Whether plaintiffs are entitled for the relieves as prayed ?

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3. What order or decree ?"

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The learned Trial Court decreed the suit vide the

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impugned judgment and decree. However, in respect of

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HC-KAR

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the right of defendant No. 4, the learned trial Court observed that though defendant No.4 did not choose to appear and contest the suit in spite of service of summons, defendant No.4 would be at liberty to agitate his right upon suit schedule Item No. 5 property against the legal heirs of defendant No.4.

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The suit schedule properties in Item Nos.1, 3, 5 and 6 are partitioned vide judgment and decree passed by the learned Trial Court. However, the suit was dismissed in respect of Item No.4 of the suit schedule property.

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Smt. S. Susheela, learned Senior Counsel for the appellant/ Defendant No. 4 submits that defendant No. 4 would be entitled to undivided 1/4^th share, which would have been the share of defendant No.1-Rafeeqa Banu. She further submits that the observation of the learned

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Trial Court in paragraph 30 that defendant No.4, who is appellant herein would be entitled to agitate his right upon suit schedule Item No. 5 property against the legal heirs of

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HC-KAR

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the defendant No.4, appears to be a typographical error, inasmuch as defendant No.4 cannot agitate his right against his own legal heirs.

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It is further submitted that the petitioner's application to participate in the FDP proceedings is not being entertained by the Executing Court on the basis of this observation.

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On the other hand, learned counsel for the plaintiffs/respondents has submitted that the defendant No.4 would be entitled only to the extent of share of the deceased defendant No.1 in the suit schedule property in Item No. 5. He cannot claim 1/4^th share in respect of all the properties left behind by deceased Mahaboob Shariff.

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The learned counsel for the plaintiffs/respondents has placed reliance on the judgment in Syed Shah Ghulam Ghouse Mohiuddin and Others versus Syed Shah Ahmed Mohiuddin Kamisul Quadri (1971) 1 SCC 597 , in support of his submission. It is submitted that there is no question

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NC: 2026:KHC:1578-DB RFA No. 1240 of 2016

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HC-KAR

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of equitable partition of all the properties left behind by

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Mr. Mahaboob Shariff, and his legal heirs would be entitled

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for the proportionate share in all the properties left behind him.

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We have considered the aforesaid submissions and perused the records.

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The point for consideration, which arise in this appeal

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is:-

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"Whether the appellant/defendant No.4 would be

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entitled for equitable share in all the properties of late Mahaboob Shariff, after the death of Rafeeqa Banu, from whom he had purchased the

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suit schedule property in Item No. 5 or he would

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be entitled only for 1/4^th share in suit schedule property in Item No.5 ?"

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This issue has not been gone into by the learned Trial Court inasmuch as appellant/defendant No.4 did not chose

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HC-KAR

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to answer the summons and not participated in the proceedings in Original Suit No.90/2008.

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We do not answer this question in this present

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appeal. The Trial Court has left it open to the appellant/defendant No.4 to agitate his right under the sale deed dated 19.11.2008 executed by late Rafeeqa Banu, wife of late Mahaboob Shariff in respect of the suit schedule property in Item No.5, which would include his objection in FDP proceedings by filing an appropriate application.

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However, we record the submission of the learned Senior Counsel for the respondents/plaintiffs that they would not have any objection insofar as the right to 1/4^th share of the appellant/defendant No. 4 is concerned in respect of the suit schedule property Item No.5.

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