Karnataka High Court
Kamarunnisa W/O Mehboob Suban ... vs Mahiboobali S/O Basheerahemmd ... on 20 February, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF FEBRUARY 2023
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL No.200052/2015
Between:
Kamarunnisa
W/o Mehboob Suban Aralimatti
Age 67 Years,
Occ: H.H. Work
R/o Mubarak Colony
Opposite Housing Board Society
J.M. Road, Bijapur
...Appellant
(By Sri Raja Venkatappa Naik, Advocate)
And:
1. Mehiboobali
S/o Basheerahemmd Sharpyade
Age: 45 Years,
Occ: Service
R/o Managuli Gate,
Bijapur-586 101
2
2. Khajamainoddin
S/o Basheerahemmd Sharpyade
Age: 35 years, Occ: Business
R/o Managuli Gate,
Bijapur-586 101
3. Neelofer
W/o Mohammad Hanif Takkekar
Age: 40 Years, Occ: Teacher
R/o Badi Kaman,
Takkekar Building
J.M. Road, Bijapur-586 101
4. Nasarin S/o Suleman Mudhol
Age: 33 Years,
Occ: H.H. Work
R/o Gaddanakeri Cross
At Gadankeri,
Tq. & Dist. Bagalkot
5. Kamarunnisa
W/o Bashirahammad
Sharpyade,
Age: 70 Years,
Occ: Pensioner,
R/o Managuli Gate
Bijapur-586 101
6. Mallamma
W/o Shivanand Yalwar
Age: 50 Years,
Occ: Business
R/o Near Shams School,
Kirthi Nagar
Managuli Road,
Bijapur-586 101
7. Madhasudan
S/o Jaganath Joshi
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Age: 55 Years,
Occ: Business
R/o Basav Nagar,
Bijapur-586 101
8. Mukund
S/o Jaganath Joshi
Age: 50 Years,
Occ: Business
R/o Basav Nagar,
Bijapur-586 101
9. The Commissioner
Bijapur Development Authority
Managuli Road, Bijapur-586 101
10. Jaitunbi D/o Husensab Belif
(Jaitunabi W/o Khadirsab Sharpyade)
Age: 85 Years, Occ: Rtd. Teacher
R/o Managuli Gate, Kaman Khan Bazar
Mujawar Galli, Bijapur-586 101
...Respondents
(By Sri Manvendra Reddy and
Sri Narendra M. Reddy, Advocates R1 to R5;
Sri D.P. Ambekar, Advocate for R6 to R8;
R9 served; Appeal against R10 stand abated
V/o dated 07.06.2021)
This Regular First Appeal is filed under Section 96 of
CPC, praying to allow the appeal filed by the appellant, set
aside the impugned judgment and decree dated
30.04.2015 dismissing O.S.No.133/2010 passed by
learned I Addl. Senior Civil Judge & CJM at Vijayapur, in
the interest of justice and equity.
This Regular First Appeal having been heard and
reserved on 02.02.2023 and coming on for pronouncement
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this day, SREENIVAS HARISH KUMAR J., delivered the
following:
JUDGMENT
This is plaintiff's appeal. Her suit is for partition and separate possession of her 1/3rd share in landed property bearing Sy.No.23 measuring 16 acres 37 guntas of Kasaba, Vijayapur (Bijapur) (referred to as 'suit property' for convenience).
2. Her pleading is that suit property earlier belonged to her mother Mahaboobi who died on 1.8.1954 leaving behind three children including herself. Bashir Ahammad Sharpyade (for short referred to as 'Bashir Ahammad'), the father of defendants 1 to 4 and husband of defendant No.5, and Hasina are the other two children. Hasina died in the year 1965 leaving behind her and Bashir Ahammad. The plaintiff came to know that Bashir Ahammad obtained an entry of revenue record of 8 annas share of the suit property in his name on the 5 basis of a gift said to have been made by a woman by name Jaitunabi. The said gift was illegal as Jaitunabi was not the owner of 8 anna hissa or share in the suit property.
3. She pleaded further that after her marriage in the year 1969, she went to Goa and stayed with her husband for about 28 years. She returned to Vijapur after death of her husband. Her brother Bashir Ahammad died in June 2003. As long as brother was alive, there was no occasion for her to suspect the documents relating to the suit property. When defendants 6 to 8 made divisions of the suit property, she had to obtain revenue records and then she came to know that her brother Bashir Ahammad had created revenue records giving false information to the revenue authorities that she had given up her share in the suit property in his favour and thereby a mutation entry with No.5799 dated 29.12.1984 had come into 6 existence. As she used to sign in English, she suspected that her brother might have forged her signature to give a false information or vardhi to the Village Accountant for obtaining mutation in his name. Therefore she stated that the said mutation did not bind her interest. She also came to know that her brother had sold away certain extent of land in the suit property to defendants 6, 7 and 8 without her knowledge. Then she put forth demand for her 1/3rd share with the defendants 1 to 5 and as they declined her request, she approached the court for the above reliefs.
4. Defendant No.5, in her written statement, did not deny the relationship as stated by the plaintiff. She founded her defence by stating that plaintiff lost her right to seek partition when she made an oral gift of her share as evidenced by memorandum of oral gift dated 12.11.1984 and on another premise that as on 7 date of filing of the suit 16 acres 37 guntas in Sy. No. 23 was not available for partition. She stated that a portion of land in suit property was acquired in the year 1983 for formation of National Highway No.13. The compensation amount paid at that time was received by Bashir Ahammad and this was very much known to the plaintiff. And at that time she did not raise any objection for compensation amount being paid to her brother Bashir Ahammad. Subsequently Bashir Ahammad sold away some portion of the land to defendants 5, 6, 7 and 8 and disposed of many plots formed in 4 acres of land to many persons on gunta wise basis. The names of the purchasers were entered in the revenue records. All the purchasers are not made parties to the suit and therefore the suit is bad for non-joinder of parties.
4.1. Another specific defence of defendant No.5 is that the suit property belonged to Mahaboobi and 8 her sister Jaitunabi. Each had half share in the suit property. In the year 1997, Jaitunabi made oral gift of her share in favour of defendants No. 1 and 2 and the said gift was given into effect vide mutation entry No. 8121. Jaitunabi is still alive. In view of the gift made by Jaitunabi, plaintiff had no pre-existing right to claim partition in respect of the share that belonged to Jaitunabi and that she cannot also challenge the revenue entry because Jaitunabi she was very much alive and that she was not made a party to the suit. With these pleadings she sought for dismissal of the suit.
5. Defendant No.6 contended in the written statement that the suit was bad for non-joinder of necessary parties as many persons purchased several bits of land in the suit property. She further stated that she was one of the purchasers of 2 acres of land for valuable consideration and registered sale deed 9 dated 20.03.1996 executed by Bashir Ahammad. After purchase of 2 acres of land, she constructed a building there and started running a social organization for women namely, Sabala Training Kendra. The plaintiff was aware of all these aspects and having kept quite for a long time, if she filed a suit more than twelve years thereafter, suit would be barred by time.
6. Defendants 7 and 8 also filed a common written statement stating that each of them purchased 2 acres 20 guntas of land from Bashir Ahammad for valuable consideration, and before they purchased they gave a publication in newspaper called Nadoja Kannada calling for objections from the persons interested in the land. Bashir Ahammad and defendants 1 and 2 had absolute right, title and interest to alienate the property and the sale thus 10 made in their favour bound everybody including the plaintiff.
7. Defendant No.10 contended in her written statement that she was the full sister of Mahaboobi and they both inherited the suit property from their father Hussain Sab Belief. She had half share in the suit property and she transferred her share in favour of defendants No.1 and 2 by making an oral gift as evidenced by mutation entry No.8121. She stated that because of gift made by her, the plaintiff had no right to claim partition in the suit property and that she could not also challenge the gift made by her. Her further contention was that in the year 1984 the plaintiff made oral gift of her undivided share in favour of her brother Bashir Ahammad and at the time of making oral gift, herself, Maihebobi Shaik, Hasimbi Shaikh and defendant No.5 were present as witnesses. Bashir Ahammad accepted the gift in 11 presence of the witnesses and took over the possession of the gifted property. He gave a report or varadi to the Tahsildar based on the gift and accordingly, an entry regarding the gift was made in the revenue records.
8. Defendant Nos.1 to 4 adopted the written statement of defendant No.5 by filing a memo.
9. The trial court struck eight issues and two additional issues, of which main issues are 1 to 5, and additional issue No.1, which are as follows:
" 1. Whether the plaintiff proves that M.E.No.5799 dated 29.12.1984 is not binding on her?
2. Whether plaintiff further proves that she is entitled for 1/3rd share in the suit land?
3. Whether defendants No.1 to 5 proves that the rights of plaintiff if any in suit land has been extinguished in the year 1984?12
4. Whether defendants No.1 to 5, 7 and 8 proves that suit is bad for non-joinder of necessary parties as stated in their written statement?
5. Whether above defendants further proves that suit is barred by law of limitation?"
Additional Issue No.1:
Whether the defendant No.10 proves that, she has made oral gift of her half share in favour of defendant Nos.1 and 2?
10. The trial court answered issue Nos.1 to 3 in the negative, and issue Nos.4, 5 and additional issue No.1 in the affirmative. The trial court proceeded to dismiss the suit because issues 4 and 5 were held in affirmative. We will refer to the findings of the trial court later.
11. The plaintiff has filed two applications, one under Order VI Rule 17 of C.P.C. (I.A.No.1/2022) for amending the plaint and the other under Section 151 13 of C.P.C. (I.A.No.1/2023) for production of additional documents.
12. We have heard the arguments of Sri Raja Venkatappa Naik, learned counsel for the plaintiff/appellant, Sri Manvendra Reddy, learned counsel for defendants/respondent Nos.1 to 5 and Sri D.P. Ambekar for defendants 6 to 8 / respondents 6 to
8. The appeal against defendant No.10/respondent No.10 stood abated. We will deal with the points of arguments later, but their arguments give rise to following points for discussion:
(i). Whether the application filed under Order VI Rule 17 of CPC deserves to be allowed?
(ii). Whether additional documents can be taken on record?
(iii). Are the findings of the trial court on issues 2 and 3 correct?14
(iv). Are the findings of the trial court on issues 4 and 5 correct?
(v). What order?
Point No.(i):
13. Sri Raja Venkatappa Naik argued that certain material facts which were necessary to be pleaded were found to have been left out. The reasons are assigned in para-6 of the application.
Therefore it is necessary that the plaintiff should be permitted to amend the plaint. He further argued that the proposed amendment is necessary for adjudication of the appeal. The trial court has held that the suit is barred by time though its finding on issue No.4 is against the defendants 1 to 5. The defendants have mainly contended about oral gift said to have been made by the plaintiff in favour of her brother, but the finding of the trial court is that there 15 was no such gift and what Ex.D.49 would depict is a kind of relinquishment, about which the finding is against the defendants 1 to 5. In order to elucidate that defendants 1 to 5 cannot make use of Ex.D.49, certain facts are to be pleaded and therefore the application is made. He has referred to the judgment of the learned Single Judge of this court in the case of Puttamaramma Vs. Giriyappa and Ors. (2016 (1) KCCR 173), and of the Hon'ble Supreme Court in the cases of Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil and Ors. (AIR 1957 363), and Varun Pahwa vs. Renu Chaudhary [2019 AIAR (Civil) 482].
14. Defendants 1 to 5 have filed statement of objections to the amendment application. Sri Manvendra Reddy and Sri D.P. Ambekar opposed the application for amendment, and their argument in this regard was that whatever the plaintiff wants to 16 further state by amending the plaint has already been pleaded by her. The amendment is in the nature of commenting the judgment of the trial court and this kind of amendment is not permitted in the appeal.
15. We have perused the proposed amendments. The plaintiff wants to insert para-4 (A) to (E) and para-7(A), (B), (C) & (E) in the plaint and claim additional reliefs as per para-8(A) and (B). There cannot be a second word with regard to proposition that plaint can be amended at any stage. But the suit was filed in the year 2010, that means restriction imposed by amendment brought to Order VI Rule 17 by Act No.22 of 2002 is applicable. The proviso to Order VI Rule 17 clearly states that an application for amendment of pleading shall not be allowed after the trial has commenced. And in case the court is of the opinion that amendment can be granted, it should be satisfied that the party seeking 17 amendment was not able to plead the facts sought to be introduced by way of amendment before commencement of trial in spite of being diligent. This requirement is not forthcoming in the application filed by the plaintiff.
16. Secondly the proposed amendments are in the nature of commenting the findings given by the trial court in its judgment and also looks like a written argument. It also appears like reply to the written statement of the defendants. Therefore this kind of amendment cannot be permitted.
17. Then in para-12 of the application, the plaintiff has stated that she assigned the case papers to an Advocate namely Sri R.V. Naik who in turn handed over the case papers to Sri Syed Habeeb, Sri S.V Deshmukh and Mahadev Patil. Syed Habeeb died in the year 2020 and Sri R.V. Naik was infected with covid-19. Again in the month of November 2021 18 she assigned the papers to Sri R.V. Naik who, after having read the papers felt that amendment was necessary to plaint.
18. Learned Advocate might have felt that it is necessary to amend the plaint, but it is not explained as to why she did not think of pleading those facts much earlier. Even otherwise, the facts sought to be introduced by inserting para-4(A) to (E) and 7 (A), (B), (C) & (E), as already stated, are in the nature of making comments on the findings of the trial court and therefore such an amendment cannot be allowed. The additional reliefs that the plaintiff wants to claim are not necessary because if the evidence adduced by defendants 1 to 5 on the oral gift is found to be not believable or insufficient, the plaintiff would obviously become entitled to a share in the suit property in accordance with the Mohammedan's law. 19
19. Learned Single Judge has held in the case of Puttamaramma (supra) that the power of the court to allow amendment at the appellate stage is not barred and the appellate court cannot go into the merits of the proposed amendment. In the case of Pirgonda (supra) the facts disclose that plaintiff made an application for amendment of plaint in the trial court. The said application was rejected by the trial court and also dismissed the suit. In the appeal, the High Court allowed the application for amendment. The Hon'ble Supreme Court having found that the amendment proposed by the plaintiff did not change the nature of the suit, confirmed the order of the High Court. There the plaintiff wanted to plead the material facts, but not so in the case on hand. In the case of Varun Pahwa (supra), the plaintiff wanted to correct a mistake made by an advocate while drafting the plaint. The Hon'ble Supreme Court 20 found that it was a curable defect and therefore the amendment could be allowed. Hence it is clear that none of these decisions helps the plaintiff.
20. As we have found that the proposed amendment is not in the nature of stating material facts and rather appears to be like a written argument and are in the nature of the grounds that can be taken in an appeal, no purpose would be served even if the application is allowed. Therefore the application I.A.No.1/2022 is to be dismissed.
Point No.(ii):
21. I.A.No.1/2023 is filed under Section 151 of CPC for production of three documents. Actually the application is to be treated as filed under Order 41 Rule 27 of CPC. Firstly the application does not satisfy the requirement of Rule 27 of Order 41. The affidavit filed in support of the application contains reiteration 21 of some facts stated in the plaint and reference to some transactions which according to plaintiff are bogus. The documents that she has produced are record of rights of the suit property pertaining to period 2020-2021 to 2022-2023 to show that the names of the defendants 1 to 5 are still depicted in column No.9 of RTC. Even if these documents are taken on record, they serve no purpose because in the RTC extracts already marked as per Ex.P.1 to 4, the sale transaction is depicted. This appeal can be decided by referring to the documents already placed before the court and hence application I.A.No.1/2023 is to be dismissed.
Point No. (iii):
22. The findings given by the trial court on these two issues appear to be eccentric. The pleadings clearly disclose that there is no dispute about the relationship between the plaintiff and, defendants 1 to 22 5 and 10. To repeat, plaintiff is the sister of Bashir Ahammad, the father of defendants 1 to 4 and husband of defendant No.5. Defendant No.10 is the sister of Mahaboobi, the mother of the plaintiff and Bashir Ahammad. Though the plaintiff has stated in her plaint in such a way as defendant No.10 is a stranger, the answer she has given in the cross- examination discloses that she does not dispute that defendant No.10 is the sister of Mahaboobi. This being what the oral evidence discloses, the trial Judge has given a finding that the plaintiff, Bashir Ahammad and Hasina are not the children of Mahaboobi. He has arrived at this conclusion based on an entry in mutation register extract marked Ex.P5 where it is recorded that Bashir Ahammad, Hasina, Kamarunisa, Jaitunabi are all the children of elder brother of Mahaboobi who died on 1.8.1954. For this reason the further finding is that Bashir Ahammad, Hasina, 23 Kamarunisa are not sharers in accordance with tenets of Mohammedan Law. If Ex.P5 alone is considered, this finding of the trial court may be correct, but if the entire evidence is assessed in the background of pleadings, this finding cannot be held to be correct, because from the pleadings it can be very much made out that there is no dispute with regard to relationship. Be this aspect as it may.
23. Another undisputed fact is that Mahaboobi and her sister Jaitunabi inherited the suit property from their father. The plaintiff has not stated in her plaint that Jaitunabi inherited one half of the suit property after demise of her father. But in the cross- examination, the plaintiff, i.e., PW1 has clearly admitted that her mother and defendant No.10 got half share each in the suit property.
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24. The plaintiff claims 1/3rd share in the suit property. She had a sister by name Hasina, but it has come in evidence that she died unmarried. Probably for this reason, plaintiff might have claimed 1/3rd share, had Hasina been alive, plaintiff would have got 1/4th share in the suit property in accordance with rules of succession applicable to Mohammedans. But the specific contention of the defendants 1 to 5 is that defendant No.10 made a gift of her share in favour of defendants 1 and 2, and the plaintiff also made a gift of her share in favour of her brother Bashir Ahammad. The gifts introduced by defendants 1 to 5 and 10 have come in the way of the plaintiff's right of inheritance. The examination of evidence should be confined to availability of proof regarding the oral gifts. If the oral gifts are not proved obviously plaintiff takes her legitimate share.
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25. So far as gift made by defendant No.10 is concerned, it appears that it is not disputable by the plaintiff. When a specific question was put to PW1 in the cross-examination about the gift made by defendant No.10, she did not deny it; rather her answer was that she did not know. Whether she was aware or not aware, does not matter much because defendant No.10 adduced evidence as DW2 and stated in tandem with the contents of her written statement that she gifted her share in Sy. No. 23 in favour of Mehiboobali, i.e., defendant No.1 and Khajamainoddin, i.e., defendant No.2 in the month of March 1997 and then submitted a report, i.e., vardhi to the village accountant about which there is an entry in Ex.P8. Her evidence in this regard has not been impeached in the cross-examination, the counsel for the plaintiff just gave suggestions denying oral gift made by her and that she could not have made an 26 oral gift as she had no right. She has denied the suggestions. Besides the oral testimony of DW.2, documentary proof is also available. Exs.D50, 51 and 52 are the documents summoned by defendants from the office of Thasildar for proving the oral gift. Ex.D50 is the memorandum of oral gift containing the signature of Jaitunabi, Ex.D51 is the application given by defendants 1 and 2 to the Village Accountant for entering their names in the revenue record on the basis of oral gift and Ex.D52 is the notice issued in Form No. 21 based on the application as per Ex.D51. Ex.P8 is the relevant entry in the mutation extract which shows that katha was made out in the name of defendants 1 and 2 pursuant to oral gift. Moreover when the donor herself states about the oral gift made in accordance with principles of Mohammedan Law and its being acted upon finds corroborative evidence from an entry in the revenue record, the evidence 27 with regard to it is to be accepted. Therefore the plaintiff cannot lay claim on that portion of the suit property which was gifted by defendant No.10 in favour of defendants 1 and 2. There remains half portion of suit property which was inherited by Mahaboobi.
26. Defendants 1 to 5 have stated that the plaintiff gifted the share that she had in the property inherited by Mahaboobi in favour of her brother. In regard to the specific contention of defendants 1 to 5 about the gift said to have been made by the plaintiff, the trial court has given a finding that oral gift has not been established. Referring to Ex. D 49, the trial court has held that it appears to be like a relinquishment deed and since it was not registered, it cannot be acted upon to accept the contention of defendants 1 to 5.
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27. It was the argument of Sri Raja Venkatappa Naik that plaintiff being the daughter of Mahaboobi is entitled to claim 1/3rd share in the suit property. Defendants 1 to 5 failed to establish the oral gift. Exs. D48 and D49 do not evidence the oral gift. Though Mohammedan Law provides for gifting a property orally, whenever a party relies upon such a transaction of gift, he must prove it. In this case the defendants 1 to 5 have not established that the plaintiff orally gifted her share in favour of Bashir Ahammad. As has been rightly held by the trial court, Exs.D48 and D49 cannot be considered as proof for coming into being of oral gift. There is no corroborative evidence. In this view, the finding of the trial court in this regard is sustainable.
28. But Sri Manvendra Reddy, learned counsel for defendants 1 to 5, argued that oral gift can be proved only by circumstances. Defendants 1 to 5 29 have been able to prove that the plaintiff gifted her share in favour of Bashir Ahammad. The conduct of the plaintiff should be taken into consideration to draw an inference that she has deliberately denied the oral gift made by her. Defendant No.10-Jaitunabi being the aunt of the plaintiff and Bashir Ahammad has clearly given evidence that she was very much present at the time when the plaintiff orally gifted her share in favour of Bashir Ahammad. Besides this there is evidence of DW3 who corroborates the evidence of DW2 and stated that he was also very much present at the time when the plaintiff gifted her share. On the basis of the oral gift there was change in the revenue record; Bashir Ahammad thereafter sold away the suit property to many persons in bits and pieces. The plaintiff never took objection for the transactions of sale made by Bashir Ahammad. Hence these circumstances are very much important and the 30 trial court has ignored all these aspects. He argued for answering issuing No.3 in favour of defendants 1 to 5.
29. Sri D.P.Ambekar appearing for respondents 6 to 8 also argued that the court can draw inferences from the circumstances to come to conclusion whether oral gift came into existence or not. In this case, Bashir Ahammad sold away the suit property to many persons and respondents 6 to 8 are some of them. There are many such purchasers who have not been impleaded. In fact all the sale transactions which the plaintiff did not object happened only after the plaintiff made the oral gift. She kept quite for a long time and her silence itself indicates that she did gift away her share. In this view, the finding of the trial court on issue No.3 is to be set aside.
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30. As finding on issue No.3 has gone against the defendants despite the fact that the suit was dismissed, in accordance with Order 41 Rule 22 CPC, the defendants can question the findings on that issue without filing cross-objection. It was in this background that Sri Manvendra Reddy and Sri D.P.Ambekar argued.
31. In our opinion the finding of the trial court that Ex.D49 depicts a transaction of release is incorrect. Exs.D48 and D49 must be read in the background of oral evidence. Ex.D48 is a photostat copy of the application made by the plaintiff to the village accountant on a stamp paper. Ex.D48 shows that plaintiff herself requested the village accountant to delete her name from the revenue record and enter the name of her brother as she herself voluntarily gave up her right in respect of her share in the suit property. Ex.D49 is an application made by Bashir 32 Ahammad requesting to enter his name in the revenue record because her sister gave up her right over her share. It is because of the reason that the word '©lÄÖ PÉÆÃnÖzÉÝãÉ' (relinquished or given up)' is used in Ex.D48 dated 12.11.1984, the trial court has held that it is a relinquishment deed. But if the oral evidence is considered, DW.1 has stated that the plaintiff made oral gift of her share in favour of Bashir Ahammad. In the cross-examination a suggestion was given that the plaintiff did not give up her right. Denying the suggestion, she further answered that there was a talk in between the plaintiff and Bashir Ahammad in the presence of Hasimbee, Jaitunabi, Mahaboob Shaikh and herself regarding the oral gift to be made and thereafter plaintiff went to the office of Thasildar and made a statement about having given her share in the suit property to her brother Bashir Ahammad on 12.11.1984. DWs.2 and 3 corroborate the testimony 33 of DW.1 in this regard. If DW.2-Jaitunabi has stated in the examination-in-chief that the plaintiff made oral gift in respect of her share in favour of her brother Bashir Ahammad and at the time of making oral gift, herself, Mahaboob Shaikh, DW.1 and one Hasimbee were present. She also stated that Bashir Ahammad accepted the oral gift in their presence and took over possession. Thereafter the plaintiff executed a document on a bond paper and gave a report to the Thasildar for effecting mutation in the revenue records. If her cross-examination is perused, what appears is that the counsel for the plaintiff questioned her only on the gift made by her in favour of defendants 1 and 2 in the year 1997 and not on her evidence in the examination-in-chief about gift made by plaintiff in the year 1984 in favour of Bashir Ahammad. For this reason, the evidence of DW.2 34 about the oral gift made by the plaintiff is to be accepted.
32. DW.3 - Mahaboob Shaikh has stated in the examination-in-chief that the plaintiff made oral gift of her share in November, 1984 to Bashir Ahammad. His clear evidence is that the oral gift was made in his presence and in the presence of Jaitunabi and thereafter Bashir Ahammad accepted the offer of oral gift. Since the plaintiff and Bashir Ahammad were in the joint possession of suit property till then, after the oral gift he took over 1/4th share of the plaintiff to his exclusive possession. He has also stated that the plaintiff submitted a report or varadi to the office of Thasildar on 12.11.1984. Though certain questions were put to DW.3 in the cross-examination regarding the oral gift, but he appears to have not been discredited.
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33. Ex.D48 is the vardi or the report printed on a bond paper which DWs.2 and 3 have referred in their evidence. The trial court has rejected Ex.D48 treating it as a document evidencing transaction of relinquishment without registration. Sri Raja Venkatappa Naik also argued that Ex.D48 does not evidence the oral gift and it was a relinquishment deed without registration. In this context the evidence of DW.7 requires to be referred to. DW.7 was the Thasildar of Vijayapura taluk. Her evidence is that there was a change in the mutation as per entry No.5799. In Ex.P6 there is reference to mutation entry No.5799 based on the report given by the plaintiff. Though DW.7 has not given proper answers when she was questioned on Exs.D48 and 49, she has clearly stated about the mutation effected. Probably for the reason that she was not the Thasildar at the time when the plaintiff gave a report, she might have 36 found it difficult to speak about Exs.D48 and 49. But the effect of the evidence of DW.7 and Ex.P6 is that based on the reports as per Exs.D48 and 49, relating to the share of plaintiff, revenue record was mutated in the name of Bashir Ahammad.
34. Then if the order sheet or proceeding sheet dated 19.08.2013 of the suit maintained by the trial court is seen, it appears that the defendants' application I.A.No.11 filed under Section 65 of the Evidence Act was allowed and they were permitted to mark photostat copy of the statement dated 12.11.1984 given by the plaintiff before the village accountant. Thus Ex.D48 came to be marked. Once the trial court granted permission to mark the photostat copy as secondary evidence, it can be considered. Now if the contents of Exs.D48 and 49 are interpreted harmoniously in the background of the oral testimonies of DWs.1 to 3, the inferences that can 37 be drawn are that only after the plaintiff expressed her intention to make oral gift of her share in the suit property in favour of her brother; and having done so, she might have gone to Taluka Office to give a report as per Ex.D48 stating that she had given up her share in favour of her brother. Therefore the word "given up or relinquishment" cannot be construed as a transaction of release or relinquishment which requires registration. It must be construed as giving up right pursuant to oral gift made by her. Mohammadan law permits oral gifts. Section 129 of Transfer of Property Act is an exception to Section 123 of Transfer of Property Act. If the evidence is assessed in this way, it can be stated that defendants 1 to 5 were able to prove the oral gift made by the plaintiff in favour of Bashir Ahammad. The trial court has failed to appreciate the evidence from this angle, its conclusions are very perfunctory. Consequent to 38 holding that oral gift has been established, the plaintiff cannot claim share in the suit property. Though finding of the trial court on issue No.2 is sustainable, its finding on issue No.3 is not sustainable. Therefore on point No.(iii), our answer is that issue No.2 is answered correctly and the finding on issue No.3 is not correct.
Point No.(iv):
35. It was the argument of Sri D.P. Ambekar that because many purchasers have not been impleaded, the suit is bad for non-joinder of necessary parties and the trial court has rightly answered issue No.4 in the affirmative. In our opinion in a suit for partition, the purchaser of undivided share is not necessary party, for the suit can be decided in his absence. In a suit for partition, the necessary parties are those who are entitled to claim share. The purchaser is a proper party in as much as in case the 39 suit is decreed holding that plaintiff is entitled to a share, the right of the purchaser is not lost; all that he becomes entitled to is the share of his vendor.
Therefore in the final decree proceeding, he can participate and plead for carving out the share of his vendor in his favour. The trial court has wrongly held that purchasers here are necessary parties. Of course, in the suit some of the purchasers are made parties, and not all, but the suit did not become bad for this reason.
36. Issue No.5 is with regard to limitation and the finding of the trial court is in the affirmative. It has applied Section 108 of the Limitation Act to hold that suit is time barred. The evidence on record shows that the plaintiff made oral gift in the year 1984. It is not her case that she was forced or coerced to make such a gift. She simply denies it. If according to her she had not made gift she should 40 have questioned it within three years from 12.11.1984. The evidence shows that after the death of her husband she returned to Vijayapura in year 1998 and settled there in a separate house. Till the year 2010, she did not question various sale transactions made by defendants 1 to 5. From the evidence it can be inferred that plaintiff might be aware of all the sale transactions as she has clearly stated that she used to visit the house of defendants 1 to 5 very often. If really she had not made any gift, she should have stated as to what step did she take concerning her share. There is no evidence to this effect. Therefore the suit having been brought in the year 2010 is highly time barred.
Point No.(v):
37. The trial court has dismissed the suit based on the findings on issue Nos.4 and 5. As we have answered issue No.3 in the affirmative by reversing 41 the finding of the trial court, the suit should fail for this reason also. Therefore the following:
ORDER Appeal is dismissed confirming the ultimate decision of the trial court to dismiss the suit.
There is no order as to costs in the facts and circumstances.
Sd/-
JUDGE Sd/-
JUDGE Ckl/BL