Karnataka High Court
Jamalsab S/O Ajijsab Badagi vs Smt Fajulabi W/O Ibrahimsab Attar on 8 August, 2013
Author: N.Kumar
Bench: N.Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 8th DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
REGULAR SECOND APPEAL NO.813/2003
BETWEEN:
1. JAMALSAB S/O AJIJSAB BADAGI
AGED.53 YEARS
2. ABDULSAB S/O AJIJSAB BADAGI
AGED.48 YEARS
3. ANWARSAB S/O AJIJSAB BADAGI
AGED.43 YEARS
ALL ARE AGRICULTURIST/COOLIE
AND R/O.NADIHARALAHALLI
RANEBENNUR TQ
...APPELLANTS
(BY SRI. AHMED ALI RAHIMAN SHAH,ADV. FOR A2 AND
SRI. M.M. MALAGI, ADV. FOR APPELLANTS)
AND:
1. SMT FAJULABI W/O IBRAHIMSAB ATTAR
MAJOR, HOUSEHOLD R/O.KONANTAMBIGI
RANEBENNUR TQ
2. SHAHANJBI
W/O.KHALEELSAB
MAJOR, HOUSEHOLD
R/O.KONANTAMBIGI
RANEBENNUR TQ
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3. SAKINABI
W/O.KASIMSAB BADAGI
AGED.93, OCC.HOUSEHOLD
R/O.KONANTAMBIGI
RANEBENNUR TQ
4. GOUSUBI
W/O.ALLABHAKSHA RANEBENNUR
AGED.62 YEARS
OCC.HOUSEHOLD
R/O.NUKAPUR, RANEBENNUR TQ
5. MOHAMMAD HUSAINSAB
AGED.48 YEARS,
6. CHAMAN SHARIFSAB, AGED.46 YEARS,
7. BABUSAB, AGED.44 YEARS,
8. HABIBULLASAB, AGED.38 YEARS,
9. MUSTAFASAB, AGED.36 YEARS,
RESPONDENTS 5 TO 9 ARE
S/O.BUDANSAB BADAGI
AGRICULTURIST AND R/O.KONANATAMBIGI
RANEBENNUR TQ
10. JAMALABI
W/O.BUDANSAB BADAGI
AGED.87, OCC.HOUSEHOLD
R/O.KONANTAMBIGI
RANEBENNUR TQ
11. IMAMBI
W/O.ISMAILSAB DALAHIT
AGED.37, OCC.HOUSEHOLD
R/O.KANCHARAGATTI, HAVERI TALUK
12. JAHIDABI
W/O.RAHAMATULLASAB RANEBENNUR
AGED.35, OCC.HOUSEHOLD
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R/O.NUKAPUR RANEBENNUR TQ
13. NAZEERSAB
S/O.IMAMSAB MUJAWAR
AGED.32, OCC.AGRICULTURIST
14. HAMIDABI
D/O.IMAMSAB MUJAWAR
AGED.31, OCC.HOUSEHOLD
15. MUJAMILLASAB
S/O.IMAMSAB MUJAWAR
AGED.28, OCC.AGRICULTURIST
16. HABIBULLASAB
S/O.IMAMSAB MUJAWAR
AGED.25, OCC.AGRICULTURIST
ALL ARE RESIDING AT KANCHARAGATTI
HAVERI TALUK
...RESPONDENTS
(BY SRI. DINESH M. KULKARNI, ADV. FOR R1 TO R9. R10, R11,
R13 TO 16 SERVED. R-12 NOTICE DISPENSED WITH.)
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THIS APPEAL IS FILED UNDER U/S. 100 OF CPC AGAINST
THE JUDGEMENT & DECREE DT. 11.7.2003 PASSED IN
R.A.NO.20/1998 ON THE FILE OF THE ADDL.CIVIL JUDGE
(SR.DN.), RANEBENNUR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DT. 17.9.1998 PASSED IN
OS NO.133/1991 ON THE FILE OF THE ADDL.CIVIL JUDGE
(JR.DN.) & II ADDL.JMFC, RANEBENNUR.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This is a plaintiffs' second appeal challenging the judgment and decree of the lower appellate Court which after setting aside the judgment of the trial Court, dismissed the suit of the plaintiffs for partition and separate possession.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The subject matter of the suit consists of one item of agricultural land which is described as "A1" schedule property and another item of house property and vacant land which is described as "A2" schedule property (which is hereinafter are referred to as the "schedule properties"). One Hussainsab was the propositus. His wife is Bibeema. Hussainsab died in the year 1945. The case of the plaintiff is both "A1" and "A2" schedule properties belongs to Hussainsab. They are ancestral properties of :5: plaintiffs and the defendants. There was no partition during the life time of Hussainsab. He died leaving behind 3 sons and 3 daughters. The plaintiffs are the children of Ajijsab-second son of Hussainsab. First defendant is Budansab. He is no more. Defendants 1(a) and 1(b) and defendants 4, 5, 6, 7 and 8 are the children of Budansab. 9th defendant is the wife of Budansab. Second defendant- Sakinabi and 3rd defendant Gousabi are the daughters of Hussainsab. Defendants 10 to 15 are the legal representatives of Basubi. Therefore, the plaintiffs and Kasimsab are entitled to any share in the schedule properties. Kasimsab executed a registered sale deed dated 08/05/1963 in favour of the first defendant- Budanasab for a consideration of Rs.100/-. The schedule properties are in the joint possession and enjoyment of the parties to the suit. The defendants by colluding with the revenue officials, have got the mutation entry made in their names in respect of the entire property on the basis of a wardi said to have been given by their father, relinquished his right to the schedule properties. The said :6: wardi is not in accordance with law and not binding on the plaintiffs. Their father died about 60 years back. Therefore they are entitled to half share in the suit schedule properties. Defendants 4 to 8 have no right, title and interest over the suit properties but still they are made as formal parties. The plaintiffs demanded a share. It was denied. Therefore, the plaintiffs were constrained to file a suit for partition and separate possession.
4. After service of summons, defendants 1 to 9 appeared through their counsel. Defendants 10, 11, 12, 14 and 15 were placed exparte. Defendant Nos.1 to 9 filed their written statement. They do not dispute the genealogy. They contend that the legal heirs of Basubi were not made parties to the suit and suit is bad for non- joinder of necessary parties. They admitted that "A1" schedule properties belongs to Hussainsab. First defendant is cultivating the said land. Kasimsab, his brother and son of Hussainsab, sold his share in the property in his favour. In the year 1965 defendants 1, 2 :7: and 3 and deceased Basubi and deceased Ajijsab-father of the plaintiffs and also Badima partitioned "A" schedule properties. Others took their share by way of money. Thereafter, they gave a wardi to the revenue authorities. On the basis of the said wardi, the name of defendant No.1 is entered in the revenue records. Insofar as schedule "A2" properties is concerned that was not a property which was owned by Hussainsab. Defendant No.1 purchased the open space from one Gurappa for sale consideration of Rs.10/-. After purchase of said open space, he is in possession of the said open space. He again purchased the adjacent land to the open space measuring East-West 7, mola and North-South 15 mola for a sale consideration of Rs.100/-. The said sale deed was obtained in favour of his minor son defendant No.4. Therefore, the plaintiffs have no right, title and interest over the said property. Therefore, the plaintiffs are not entitled to any share.
5. On the aforesaid pleadings, the trial Court framed 6 issues which are as under:
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1. Whether the suit is bas for non-joinder of necessary parties?
2. Whether plaintiffs prove that suit schedule A-1 and A-2 properties are in the joint ownership of the plaintiffs and defendants?
3. Whether plaintiffs prove that they have got half share or any share in the suit schedule A-1 and A-2 properties?
4. Whether deft. NO.1 proves that deceased Ajijsab father of plaintiffs 1 to 4 had relinquished his right in respect of suit schedule A-1 property in his favour in the year 1965?
5. Whether deft. NO.1 proves that after th e death of deceased Husseinsab he purchased suit schedule A-2 property in the name of his son deft.NO.4 and constructed hut(Chappar)?
6. What decree or order?
6. In order to substantiate their claim 3rd plaintiff was examined as PW-1. He produced 9 documents which :9: are marked as Exs.P-1 to P-9. On behalf of defendants, first defendant was examined as DW-1 and 3rd defendant was examined as DW-2. They produced 16 documents which are marked as Exs.D-1 to D-16.
7. The trial Court, on appreciation of the aforesaid oral and documentary evidence on record held suit is not bad for non-joinder of necessary parties. The plaintiffs have proved that the suit schedule properties are under the joint ownership of plaintiffs and defendants. The plaintiffs have proved that they have a share in the suit schedule properties. Defendant No.1 had failed to prove that Ajijsab-father of plaintiffs 1 to 4 had relinquished his right in respect of the suit schedule "A1" property in his favour in the year 1965. Defendant No.1 has also failed to prove that item "A2" of the schedule property was purchased by him in the name of his minor son-defendant No.4 and constructed a hut after the death of Hussainsab and therefore it decreed the suit of the plaintiff granting 1/3rd share in both A1 and A2 properties to the plaintiffs. : 10 :
8. Aggrieved by the said judgment and decree of the trial Court, defendants 1 to 10 preferred a Regular Appeal.
9. The lower appellate Court framed the following points for consideration:
1. Whether trial court fell in error in holding that the suit properties are the joint family properties of plaintiffs and defendants?
2. Whether trial court fell in error in not appreciating the case of parties without keeping in mind the principles of Mohammedan Law?
3. Whether trial Court fell in error in holding that there was no partition in respect of the family properties?
4. What order or decree?
10. After re-appreciating the entire evidence on record, the lower appellate Court held that the finding of the trial Court that "A1" and "A2" schedule properties are : 11 : the joint family properties in which the plaintiffs have a right is vitiated. The finding of the trial Court that there was no partition in the family is erroneous. It held that the father of the plaintiff has relinquished his interest in the schedule properties. On the basis of the said relinquishment and the wardi given, the revenue authorities have mutated the name of first defendant which stood for 20 long years without any disturbance. It proves the case of family arrangement and relinquishment and therefore, the plaintiffs have no right to seek for partition and separate possession. Thus, it allowed, the appeal dismissing the suit of the plaintiffs.
12. Aggrieved by the said judgment and decree of the lower appellate Court, plaintiffs are in second appeal.
13. This appeal was admitted on 06/10/2004 to consider the following substantial questions of law:
a. Whether the learned Judge of the first appellate Court is justified in dismissing the suit with the reasonings that the plaintiffs' father Mr. : 12 : Ajijsab had executed a relinquishment deed in favour of defendant No.1?
b. Whether the judgment of the first appellate Court calls for interference?
14. I have heard the learned counsel for the parties.
15. The genealogy is not in dispute. Relationship between the parties is not in dispute. It is also not in dispute that the landed property item No.A1 to the schedule belongs to Hussainsab. He died in the year 1945 leaving behind 3 sons and 3 daughters. His wife is also no more. It is also not in dispute that Kasimsab son of Hussainsab, who had interest in item No.A1 of the schedule property, executed a registered sale deed in the year 1963 for a consideration of Rs.100/- in favour of Budansab. Thus, Kasimsab lost his right and interest to item No.A1 to the schedule property. 20 years prior to the date of the suit some where in the year 1965 itself, : 13 : mutation was made in the name of Budansab. The specific case pleaded by Budansab is, other sharers to the property have relinquished their respective interest in his favour after receiving consideration. In other words, at a partition, he has paid consideration and taken their share, which is evidenced by the wardi and subsequent entries in the revenue records which remained undisturbed for nearly 20 years. In order to prove this case, they have also examined his sister Gousubi as DW-2. She does not speak about the family arrangement or partition. Her specific case is each one of them have relinquished their interest by receiving consideration of Rs.100/- in favour of Budansab. She also says, it is by written document. She does not know whether it is registered or not. As against this evidence, we have the evidence of the plaintiff who contend their father-Ajijsab had not relinquished his interest in favour of Budansab. After his death, they are entitled to his share. As the relinquishment is not evidenced by any registered document, the right of Ajijsab was not extinguished and therefore the plaintiffs are : 14 : entitled to the said share. In the light of these facts, the question that arises for consideration is whether the brothers and sisters of Budansab lost their right in item NO.A1 to the schedule property by giving a wardi and by subsequent entry.
16. Even if we accept the case of the plaintiffs that the brothers and sisters received a sum of Rs.100/- relinquishing their interest, which is evidenced by a wardi and mutation entry, in law, those persons do not lose their right to the immoveable property. If a daughter is paid Rs.100/-, the share of the son would be double i.e. Rs.200/-. At any rate, if Rs.100/- is the consideration paid for relinquishment, the said relinquishment would have the effect, only, if it is, by way of a registered document. This relinquishment negatives the case of partition in the family and therefore merely because a wardi was given, on that basis mutation entry was made and for 20 long years no claim was made, would not take away the right of the plaintiffs to their share to which their father was entitled to : 15 : in the same. The share to which Ajidsab was entitled to is 2/9th and therefore, the plaintiffs are entitled to the said share i.e., 2/9th share in item No.1 to the schedule properties.
17. Insofar as item No.2 to the schedule properties is concerned, Exs.D-2 and D-3, the sale deeds for the year 1956 shows that Budansab purchased these two items of the properties under a registered sale deed in favour of his minor son-4th defendant for a valuable consideration. The argument is, on the day the said properties were purchased, they were all members of the joint family and the consideration has been paid out of the nucleus of the joint family and therefore notwithstanding the fact that the properties stood in the name of the 4th defendant, the plaintiffs are entitled to a share. In the first place, the parties to the proceedings are all Mohammaden. The concept of joint family or co-parceners is unknown. Assuming for the sake of argument that all of them are living under a common roof and by their collective : 16 : earnings, they have acquired these properties, the said fact has to be established by placing acceptable evidence. No such evidence is forthcoming and therefore it is not possible to hold that item No.A2 to the schedule property is a joint family property in which the plaintiffs' father had a share. Therefore, the plaintiffs' suit for share in item NO.A2 to the schedule property is not maintainable. In that view of the matter, I pass the following order:
a. The Appeal is partly allowed.
b. The appellants are entitled to 2/9th share in the item No.A1 to the schedule property.
c. The judgment and decree of the lower appellate Court insofar as item NO.A2 to the schedule property, is concerned, is affirmed.
d. The parties to bear their own costs.
Sd/-
JUDGE Kmv