Bangalore District Court
Sri. Abdul Shakoor vs W/O Sri. R. Abdul Rahim on 24 June, 2019
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, (CCH-29) BENGALURU.
Title sheet for
Judgment in suits
(R.P.91)
Present: Smt. B.S. Bharathi, B.Sc., LL.B,
(Name of the Presiding Judge)
Dated: This the 24th day of June 2019
Original suit No.16671/2003
Plaintiffs:- 1. Sri. Abdul Shakoor,
S/o Late Sri. Babji Chotu,
Aged about 60 years,
#4/4, E No.7th Street,
Broadway Road,
H.K.P Road Cross,
Bangalore-51.
2. Sri. Abdul Wahab,
S/o Late Sri. Babji Chotu,
Aged about 55 years,
#9, 'B' Street (Broadway),
H.K.P Road Cross,
Bangalore-51.
3. Sri. Muneer Ahmed,
S/o Late Sri. Babji Chotu,
Aged about 50 years,
#19 C, First Street, Noha Street,
Nala Road, Bangalore-51.
4. Smt. Pyari Bee,
W/o Sri. Abdul Subhan,
Aged about 70 years,
#9 B Street, Slaughter House,
H.K.P Road, Bangalore-51.
2 O.S.No.16671/2003
5. Smt. Shiraj Banu,
W/o Sri. Shafeeq Ahmed,
Aged about 22 years,
#5, H.K.P Road Cross,
E No.11th Street, Bangalore-51.
6. Sri. Syed Mohammed @ Syed Aslam,
S/o Late Sri. H. Syed Ahmed,
Aged about 48 years,
R/at #29, 6th 'E' Street,
H.K.P Road Cross, Shivajinagar,
Bangalore-51.
(By Pleader : Sri. M.D. Raghunath Advocate)
V/s
1. Smt. Razia Begum,
Defendants:- W/o Sri. R. Abdul Rahim,
Aged about 52 years,
#44 (portion),
Muniswamy Road, Tasker Town,
Bangalore-51.
2. Smt. Sakira Begum,
W/o Late Sri. Abdul Gaffar,
Aged about 40 years,
#44 (portion),
Muniswamy Road, Tasker Town,
Bangalore.
(D.1 - Ex-parte, Sri. S. Suresh Kumar Advocate for D.2)
3 O.S.No.16671/2003
Date of Institution of the suit 19.12.2003
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Partition
injunction, etc.)
Date of the commencement of recording of 6.2.2013
the Evidence
Date on which the Judgment was 24.6.2019
pronounced
Year/s Month/s Days
Total duration 15 06 05
JUDGMENT
This suit is filed by the Plaintiffs against the Defendants praying for Defendants to effect partition and put the Plaintiff No.6 in possession and enjoyment of their share in the schedule property and also praying for Defendant No.1 and 2 to pay damages for use and occupation of portion of schedule property from 18.12.2000 to 18.12.2003 and the share of the Plaintiffs amounting to Rs.24,000/- and to direct the Defendant No.1 and 2 to pay damages of Rs.1,000/- from the date of suit till surrender and for costs and other reliefs.
4 O.S.No.16671/2003
2. According to the Plaintiffs property bearing No.2, Old No.28, Muniswamy Road (formerly bearing No.10 and known as Bileknahalli, 6th Division, Main Road Cross, New Street Northern side), original belonged to Smt. Rahamat Bi i.e., the mother of the Plaintiffs, Defendant No.1 and 2 and mother of Plaintiff No.5. According to the Plaintiffs Smt. Rahamat Bi purchased the schedule property under a Deed of Sale dtd: 17.2.1936 which is registered as No.1786, Book I, Vol 478, Page 159 and 160 in the Office of the Sub-Registrar, Bangalore. According to the Plaintiffs Smt. Rahamat Bi died intestate during the year 1952 and her legal heirs being her husband Mr. Bakar Kasab Babji Abdul Rahaman @ Chote Be @ Babji Chotu, the Plaintiffs 1 to 4 and mother of Plaintiff No.5 Smt. Bibijan, Defendant No.1 and 2 who succeeded to her estate. According to the Plaintiffs Mr. Bakar Kasab Babji Abdul Rahaman @ Chote Be @ Babji Chotu died on 3.5.1965 leaving behind the Plaintiffs and Defendants to succeed to his estate. The Plaintiff No.1 to 5 and Defendants jointly succeeded to the estate of their mother. Sri. Babji Chotu died leaving behind him his three sons Plaintiffs herein, four daughters the Defendant No.1 and 2 and Smt. Bibijan i.e., the mother of the Plaintiff No.5 to succeed his estate. The Defendant No.1 and 2 are in possession and enjoyment of the 5 O.S.No.16671/2003 schedule property and the Plaintiffs are also entitled for a share in the schedule property and they are in joint possession of the same. The Plaintiffs repeatedly requested the Defendants for partition of the Suit Schedule Property, for which the Defendant No.1 and 2 promised but postpone for the reasons best known to them. The Plaintiffs 1 to 3 are entitle for 2/9th share each and the Plaintiffs No.4 and 5 and Defendants each have 1/9th share in the schedule property. The Plaintiff No.1 to 3 for the above reasons issued legal notice calling upon the Defendants No.1 and 2 to effect partition and put the Plaintiffs in possession of their share in the Suit Schedule Premises vide legal notice dtd: 3.10.2003 which notice were received by the Defendant No.1 and 2, the Defendant No.2 instead complying the same has issued an untenable reply dtd:
14.10.2003, hence, this suit. According to the Plaintiffs two tenants in occupation and the Defendants were collecting the rents on behalf of all the parties and as such they are liable to account for the same. According to the Plaintiffs, Defendant No.1 and 2 are also liable to pay damages for use and occupation of portion of the schedule property at Rs.1,000/- per month and the Plaintiffs are restricting their claim for legally recoverable amount i.e., from 18.12.2000 up to 18.12.2003 amounting to Rs.36,000/- and the 6 O.S.No.16671/2003 share of the Plaintiffs comes to Rs.24,000/- and to continue to pay at Rs.1,000/- per month till surrender. According to the Plaintiff No.1 to 5 under the Sale Deed dtd: 10.1.2008 which was registered as Document No.SHV-1-03799-2007-08 and stored in CD No.SHVD94, in the Office of the Sub-Registrar, Shivajinagar, Bangalore, sold their undivided share, right, title and interest in the schedule property in favour of the 6th Plaintiff. Similarly the 1st Defendant also sold her right, title and interest in the schedule property in favour of the Plaintiff No.6 under a Deed of Sale dtd:
24.1.2008 which document is registered as No.SHV-1-03987-2007- 08 and stored in CD No.SHVD95, in the Officer of the Sub-Registrar, Bangalore. Since then Plaintiff No.6 has become the joint owner along with the Defendant No.2, as such the Plaintiff No.6 is a proper and necessary party to the present suit and he is bonafide purchaser for value. The 2nd Defendant refuse to sell her share to the Plaintiff No.2. The cause of action arose on 18.12.2000,
3.10.2003 and subsequently within the jurisdiction of this Court. There is no pendency of legal proceedings and litigation between the parties either past or present. The court fee paid by the Plaintiffs as per Karnataka Court Fees and Suits Valuation Act. Hence, prays for decreeing the suit.
7 O.S.No.16671/2003
3. The Defendant No.1 has not appeared before the Court. Hence, she was placed ex-parte. The Defendant No.2 appeared through Advocate and filed written statement admitting the death of Sri. Babaji Chotu leaving behind three sons and four daughters. But, it is denied that they had any manner of right, title or interest to succeed to the property. According to this Defendant when his father Late Babji Chotu purchased the suit property there is building in a dilapidated condition. After the marriage of this Defendant with Abdul Gafar in the year 1968 the husband of this Defendant has constructed the entire property as the portion of the same measuring 30 X 16 which was gifted to this Defendant by her father as she is the last daughter. In the year 1971 the husband of the Defendant has reconstructed the entire property and the Defendant along with his family residing in the portion as the owner and this Defendant is paying tax from the year 1971. In the portion which is in the occupation of Defendant none has got any manner of right, title or interest in the schedule property as such the Plaintiffs have no manner of right and they are not entitled for share in the property which is in the occupation of this Defendant. According to Defendant No.2, the 1st Defendant Raziya Begum had filed a suit for 8 O.S.No.16671/2003 partition in OS.No.10919/1995 which came to be dismissed for default on 10.3.2004 by the City Civil Judge, Mayo Halli, Bangalore.
4. This Defendant No.2 submits that Late Babaji Chotu has left other property situated at No.2, Meenakshi Koil Street Cross, Shivaji Nagar, Bangalore and during his lifetime has constructed ground and 1st floor and the same is in the occupation of 13 tenants and the rent is collected by Abdul Wahab S/o Late Babaji Chotu who is residing at No.9, 'B' Street, Broadway Road, Bangalore, which has also to be included for partition and this Defendant deserves the right to take appropriate action for partition and possession of the share of the property bearing No.2, Meenakshi Koil Street Cross, Bangalore. According to the Defendant, OS.No.10919/1995 was filed by the 1st Defendant to the same effect apart from property gifted to this Defendant by her father. She admits that she had received notice.
5. According to this Defendant No.2, Abdul Wahab and others are collecting rents from tenants at present they are collecting total rent of Rs.25,000/- and have also received huge advance from tenants, as such the Plaintiffs nor the 1st Defendant has got any right over the property measuring 30 X 16 which is in 9 O.S.No.16671/2003 occupation of this Defendant, hence, the question of partition and postponing the same does not arise. There are no tenants in the Plaint Schedule Property and the question of accounting for the same does not arise. According to this Defendant she is entitled for share in the property situated in Meenakshi Koil Street, Shivajinagar, Bangalore.
6. Additional written statement is also filed by the 2nd Defendant stating that the Plaintiffs have suppressed the fact about death of 1st Plaintiff and 4th Plaintiff and till this date and have not taken any steps to bring the LRs of the said 1st Plaintiff and 4th Plaintiff on record. The 1st Plaintiff died on 20.4.2011 and the 4th Plaintiff died on 3.1.2013 and this has not been brought to the notice of this Hon'ble Court by the other Plaintiffs nor their Counsels and there is deliberate suppression of this fact. The Plaintiff No.1 died in the year 2011, since his LRs are not brought on record, the suit of 1st Plaintiff has to be abated. As regards the 4th Plaintiff the other Plaintiffs are required to take necessary steps within the stipulated period prescribed under the Code for bringing her LRs on record.
10 O.S.No.16671/2003
7. According to the Defendant No.2, amended plaint has been filed on 9.1.2013 and on that date both the 4th Plaintiff and 1st Plaintiff were dead and nobody have signed on the plaint on their behalf, the Plaintiffs are guilty of misrepresentation and suitable action has to be taken. The entire averments made by the Plaintiffs in the amended plaint are denied. According to this Defendant at no point of time the Plaintiffs have approached this Defendant in this regard and the averments that they are entitled for 2/9th share and 1/9th share are all baseless. According to this Defendant she is in occupation of the schedule property from immemorial and i.e., from 1971 and this Defendant and his family members are maintaining the schedule property and they have put up construction and paying municipal taxes and have incurred more than Rs.5,00,000/- in this regard, which is liable to be recovered from the Plaintiffs. The Plaintiffs seeking damages against this Defendant for occupation does not arise at all and on the contrary it is the Plaintiffs who are due to this Defendant. The 1st Defendant who was in occupation of the other portion of the Suit Schedule Property has sold the said portion of property in the year 2008 to the 6th Plaintiff and the same also not been brought to the notice of this Court by the Plaintiffs in the amended plaint. The alienation in 11 O.S.No.16671/2003 favour of 6th Plaintiff has been taken place during pendency of the appeal bearing RFA No.2061/2006 before the Hon'ble High Court of Karnataka, Bangalore. Hence, the relief sought for by the Plaintiffs is subject to Section 52 of the Transfer of property Act and the 6th Plaintiff has no locus-standi to contest the above suit.
8. Another additional written statement is also filed by the Defendant No.2 admitting that the suit property belonged to Late Rahamat Bi mother of the Plaintiffs and Defendant No.1 and 2 and mother of Plaintiff No.5. The schedule property belongs to Late Rahamat Bi is true. It is admitted that Smt. Rahamat Bi purchased the same by way of registered Sale Deed dtd: 17.2.1936. According to this Defendant Smt. Rahamat Bi died intestate during the year 1952. The said Late Rahamat Bi during her lifetime had made bequest in favour of her husband Mr. Bakar Kasab Babji Abdul Rahaman @ Chote Be @ Babji Chotu. The said Mr. Babji Chotu succeeded to the property, was enjoying the same as the absolute owner thereof and all the records such as khatha, khatha extract were mutated in his name and was paying the taxes in his name. Mr. Babji Chotu died leaving behind the Plaintiffs and the Defendants to succeed to the Suit Schedule Property. On the contrary, said Mr. Babji Chotu has made a bequest of 50% of the 12 O.S.No.16671/2003 Suit Schedule Property in favour of this Defendant. It is denied that Plaintiffs jointly succeeded to the estate of their mother and in particular to the share of the father also. It is admitted that during the death of Mr. Babji Chotu he had three sons and four daughters and the mother Plaintiff No.5, but the succession was determined by Hiba. All other contents are denied. According to this Defendant Plaintiff No.6 has no locus-standi to compel this Defendant to sell her property and the said Sale Deeds executed by other Plaintiff No.1 to 5 and 1st Defendant in favour of Plaintiff No.6 is barred bylaw of lis-pendency. The Plaintiff No.6 has no locus-standi to seek partition as he is not a member of the family of the Plaintiffs and Defendants. The Sale Deed dtd: 10.1.2008 and 24.1.2008 executed by Plaintiffs and Defendant No.1 will be effective if at all these Plaintiffs succeed in this suit and until such time the sale is void and is not binding on the parties especially this Defendant. The Plaintiff No.1, 3 and 4 are died and suit is abated. The Plaintiff No.6 has no right to seek possession as he cannot step into the shoes of Plaintiff No.1 to 5. Hence, prays for dismissing the suit.
9. On the basis of the above pleadings, the following issues have been framed:-
13 O.S.No.16671/2003
1. Whether the Plaintiffs prove that the Suit Schedule Property is the property owned by Sri. Babji Chotu, the father of Plaintiffs, Defendants 1 and 2 and mother of Plaintiff No.5?
2. Whether Defendant No.2 proves that the Suit Schedule Property was gifted to her by her father to an extent of 30 x 16' and her husband reconstructed the entire property?
3. Whether Plaintiffs are entitled for a share in the Suit Schedule Property? If so, what is the extent of their share?
4. Whether Plaintiffs are entitled for damages as sought for?
5. To what order or decree?
Additional Issues dtd: 30.5.2019
1. Whether the Plaintiffs prove that Plaintiff No.6 is the bonafide purchaser of the Suit Schedule Property?
2. Whether the Defendant No.2 proves that the said sale is barred by lis-pendency?
3. Whether the Plaintiffs are entitled for the relief sought for?
Additional Issues on IA.No.III/19 & IV/19 dtd: 3.6.2019
1. Whether 2nd Defendant proves that Smt.Rahmath Bi during her lifetime had bequeathed the Suit Schedule Property in favour of her husband Mr. Bakar Kasab Babji Abdul Rahman @ Chote Be @ Babji Chotu as contended in Para 3 of the Addl.
14 O.S.No.16671/2003
Written statement filed by 2nd Defendant on 30.5.2019?
2. Whether 2nd Defendant proves that Babji Chotu bequeathed 50% of Suit Schedule Property in favour of 2nd Defendant as contended by the 2nd Defendant in her written statement filed on 30.5.2019?
3. Whether the suit stands abated due to the death of Plaintiff No.1, 3 and 4? And to what order?
4. Whether Plaintiff No.6 is entitled for possession as prayed for?
10. To prove the case of the plaintiffs, the Plaintiff No.3 got examined himself as PW.1 and one more witness as PW.2 and got marked the documents as per Ex.P.1 to Ex.P.9 and the side of the Plaintiffs was closed. The Defendant No.2 got examined herself as DW.1 got marked the documents as per Ex.D.1 to Ex.D.23 and closed their side.
11. Heard both the sides.
12. My answers to the above issues is as follows:-
Issue No.1 : Deleted.
Issue No.2 : In the Negative.
Issue No.3 : The Plaintiffs No.1 to 3 are entitled for 2/10th share each and Plaintiffs No.4 and 5 are entitled for 1/10th share each and Defendant No.1 and 2 15 O.S.No.16671/2003 are entitled for 1/10th share each in the suit property.
Issue No.4 : In the Negative.
Additional Issues dtd: 30.5.2019
Addl.Issue No.1: In the Affirmative.
Addl.Issue No.2: In the Negative.
Addl.Issue No.3: In the Negative.
Additional Issues dtd: 3.6.2019
Addl.Issue No.1: In the Negative.
Addl.Issue No.2: In the Negative.
Addl.Issue No.3: In the Negative.
Addl.Issue No.4: In the Affirmative.
Issue No.5 : As per the final order
for the following:-
REASONS
13. Issues No.2 to 4 and Addl. Issue No.1 to 3 dtd:
30.5.2019 and Addl. Issue No.1 to 4 dtd: 3.6.2019 :- Since these issues are connected, they are taken together for giving reasons. This suit is filed by the Plaintiff No.1 t o 5 against the Defendant No.1 and 2 praying for direction to the Defendants to 16 O.S.No.16671/2003 effect partition and to damages. According to the Plaintiffs originally Suit Schedule Property belongs to the father of the Plaintiffs and Defendant No.1 and 2 and mother of Plaintiff No.1. According to the Plaintiffs Mr. Bakar Kasab Babji Abdul Rahaman @ Chote Be @ Babji Chotu died on 3.5.1965 leaving behind three sons Plaintiffs and four daughters i.e., Defendant No.1 and 2 and mother of Defendant No.5 to succeed to his estate and therefore according to the Plaintiffs, Plaintiff No.1 to 4, Defendant No.1 and 2 and the mother of the Plaintiff No.5 succeed to the estate and they are entitled for the share in the Suit Property and they are in joint possession of the Suit Property.
14. The Defendant appeared before the Court and contested the suit. Thereafterwards, this Court after recording evidence i.e., my predecessor in office on 24.7.2006 dismissed the suit of the Plaintiffs stating that Plaintiffs have not proved that Sri. Babji Chotu was the owner of the suit property. Against the said order of dismissal the Plaintiffs No.1 to 4 preferred Writ Petition No.12939/2016 before the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka on 10.8.2018 allowed the Writ Petition and remanded the matter to the Trial Court directing the Trial Court to frame proper and appropriate issues basing on the 17 O.S.No.16671/2003 pleadings of the parties and reasonable opportunity for both parties to led in their evidence and directed this Court to dispose of this suit in accordance with law.
15. After the remand the plaint was amended and it is contended by the Plaintiffs that the suit property originally belonged to the mother of Plaintiffs No.1 to 4 and Defendant No.1 and 2 Smt.Rahamat Bi. It is stated by the Plaintiffs that Smt. Rahamat Bi purchased the schedule property under a Deed of Sale dtd: 17.2.1936 which is registered as No.1786, Book I, Vol 478, Page 159 and 160 in the Office of the Sub-Registrar, Bangalore. It is stated that Plaintiffs Smt. Rahamat Bi died intestate during the year 1952 and her legal heirs being her husband Mr. Bakar Kasab Babji Abdul Rahaman @ Chote Be @ Babji Chotu, the Plaintiffs 1 to 4 and mother of Plaintiff No.5 Smt. Bibijan, Defendant No.1 and 2 who succeeded to her estate. It is also stated that the father of the Plaintiffs No.1 to 4 and Defendant No.1 and 2 Mr. Bakar Kasab Babji Abdul Rahaman @ Chote Be @ Babji Chotu died on 3.5.1965 leaving behind the Plaintiffs and Defendants to succeed to his estate. It is stated Plaintiffs and Defendants jointly succeeded to the estate of their mother. Therefore, it is stated by the Plaintiffs 18 O.S.No.16671/2003 that Plaintiffs No.1 to 3 are entitled 2/9th share and Plaintiff No.4 and 5 are entitled for 1/9th share each in the suit property.
16. During the pendency of the suit, the Plaintiff No.1 to 5 executed registered Sale Deed in respect of their share which was registered on 10.1.2008 in favour of Plaintiff No.5. The Defendant No.1 also sold her right and title in favour of Plaintiff No.6 under registered Sale Deed on 24.1.2008 which document is registered as No.SHV-1-03987-2007-08 and stored in CD No.SHVD95, in the Officer of the Sub-Registrar, Bangalore. Hence, Plaintiff No.6 has become the joint owner along with the Defendant No.2, since 2nd Defendant refused to sell her share to the Plaintiff No.6. Therefore, they have also amended the prayer and sought for effecting partition and put the Plaintiff No.6 in possession and enjoyment of their share in the schedule property and they have also sought for damages from Defendant No.1 and 2 at the rate of Rs.1,000/- from and also sought for damages amounting to Rs.24,000/- for use and occupation of the suit property by the Defendant No.1 and 2 from 18.12.2003.
17. The Defendant No.2 who has filed written statement earlier to remand by the Hon'ble High Court of Karnataka has 19 O.S.No.16671/2003 admitted that her father Sri.Babji Chotu was the owner of the suit property, but she contended that after the marriage of this Defendant No.2 with Abdul Gafar in the year 1968 the husband of this Defendant has constructed the entire property as the same measuring 30 X 16 which was gifted to this Defendant by her father as she is the last daughter. It is also contended that in the year 1971 the husband of the Defendant has reconstructed the entire property and the Defendant along with his family is residing in the portion as the owner and this Defendant is paying tax from the year 1971. It is stated that the Plaintiffs have no manner of right, title in respect of the portion of the property which is in the occupation of the Defendant No.2.
18. Later, after the case was remanded by the Hon'ble High Court of Karnataka and later the Plaintiffs got amended the plaint stating that the suit property belonged to their mother Smt. Rahamat Bi and their mother Smt. Rahamat Bi purchased the suit property as per the registered Sale Deed dtd: 17.2.1936, the 2nd Defendant filed additional written statement admitting that the suit property was purchased Smt. Rahamat Bi who is her mother on 17.2.1936. But, in the additional written statement she sated that Smt. Rahamat Bi died in the year 1952. It is also stated that Smt. 20 O.S.No.16671/2003 Rahamat Bi during her lifetime had made a bequest in favour of her husband Mr. Bakar Kasab Babji Abdul Rahaman @ Chote Be @ Babji Chotu who is the father of Defendant No.2. It is also stated that Sri. Babji Chotu succeeded to the property and enjoyed the property as absolute owner. He bequested 50% of the suit property in favour of 2nd Defendant. Therefore, it is clear that earlier the Defendant No.2 contended that suit property measuring 30 x 16 was gifted to her and later after remand she filed additional written statement stating that 50% of the suit property was bequested to her. She has not stated that in what manner it was bequested to her and she takes different version in the additional written statement even though she admits that her mother is the original owner of the suit property.
19. The Plaintiffs in support of their case examined Plaintiff No.3 as PW.1 and Plaintiff No.6 is the purchaser as PW.2. PW.1 in his evidence has produced certified copy of the Sale Deed of his mother at Ex.P.3. He has also produced the Sale Deed executed by Plaintiff No.1 to 5 in favour of Plaintiff No.6 in respect of their share at Ex.P.4. He has produced Ex.P.5 which is the Sale Deed executed by Defendant No.1 in respect of her share in favour of Plaintiff 21 O.S.No.16671/2003 No.6. On perusal of the Ex.P.3 Sale Deed it is clear that the mother of the Plaintiffs Smt. Rahamat Bi was the original owner of the suit property and she has purchased as per registered Sale Deed dtd: 17.2.1936.
20. It is the first contention of the Defendant No.2 that her father gifted property measuring 30 X 16 in her favour. Later she contended that half of the suit property was gifted by her father in her favour. The Defendant No.2 who was examined as DW.1 has contended that her husband has constructed the building in the suit property and they are in possession of that suit property since 1971. Later she gave further evidence after the remand and in her evidence she contended that after the death of her mother her father Sri. Babji Chotu succeeded to the suit property and he bequest the 50% of suit property in favour of the Defendant No.2 i.e., according to her he gave 50% of the property through Hiba i.e., oral Gift Deed. Hence, according to her she is in possession of the said 50% of the suit property and she is the absolute owner of the suit property. During the cross-examination she denies that after the death of her mother all the Plaintiffs No.1 to 4 and Defendant No.1 and 2 and mother of the Plaintiff No.5 got share in the suit property. During the cross-examination, she says that her 22 O.S.No.16671/2003 mother gifted the property to her father in writing. She says that her mother might have got registered the Gift Deed. That means, as per this evidence given by DW.1 i.e., Defendant No.2 in the cross-examination it is clear that she is not aware how the property was transferred to her father after the death of her mother. Even though she contends that her mother gifted the property to her father during her lifetime, there is no evidence before the Court to show that the property was gifted by her mother to her father during the lifetime of her mother. Even though during her cross-
examination she says that she has seen the Gift Deed personally, she has not produced the Gift Deed to show that her mother executed Gift Deed in respect of the suit property in favour of her father. Even though she contends that her father in turn gifted 30 X 16 feet property in favour of her and later she contends that 50% of the property was gifted to her by her father, in support of her version she has not adduced evidence or produced any document. Even though in Muslim Law oral gifts are recognized, she has to give evidence to prove the oral gift also when Plaintiffs are denying the said gift by their father in favour of this Defendant No.2. When she is claiming ownership over the suit property basing on the gift, it is mandatory on her part to prove the oral gift in her favour or 23 O.S.No.16671/2003 written gift deed by her mother in favour of her father. Except the sole testimony i.e., sole evidence there is no evidence before the Court to prove her contention. Merely because she is in possession of the suit property she cannot claim that she is in possession of the suit property as per oral gift executed by her father. Therefore, for the above said reasons I feel that Defendant No.2 has failed to prove that her father has gifted the extent of 30 X 16 feet property or 50% of the property and her husband reconstructed entire property.
21. As per documents produced by PW.1 i.e., Plaintiff No.3 it is clear that the suit property belongs to the mother of the Plaintiffs and Defendant No.1 and 2. Therefore, it is clear that when the mother of the Plaintiffs is not alive and even the father of Plaintiffs No.1 to 4 and Defendant No.1 and 2 is not alive and they died intestate, the property devolves on the Plaintiffs No.1 to 4 and mother of the Plaintiff No.5 and Defendant No.1 and 2 and they will succeeded to the estate of their mother.
22. During the pendency of the suit the Plaintiff No.1 to 5 and Defendant No.1 executed the Sale Deed in respect of their share in the suit property to the Plaintiff No.6 as per Ex.P.4 and Ex.P.5. It is 24 O.S.No.16671/2003 the contention of the Defendant No.2 that the sale is hit by law of lis-pendency as per Section 54 of the Transfer of Property. On perusal of Ex.P.4 it is clear that Plaintiff No.1 to 3 have sold their 2/10th share and Plaintiff No.4 and 5 have sold 1/10th share to the Plaintiff No.6 on 10.1.2008 for i.e., total extent of 8/10th share for total consideration of Rs.9,60,000/-. On perusal of Ex.P.5 it is clear that Defendant No.1 has sold her 1/10th share as per registered Sale Deed dtd: 24.1.2008 to the Plaintiff No.6 for total consideration of Rs.1,20,000/-. On perusal of dates of Sale Deeds these Sale Deeds were made by Plaintiff No.1 to 5 and Defendant No.1 in favour of Plaintiff No.6 in respect of their share during the pendency of the suit itself. Now, we have to consider the said Sale Deed is hit by Section 52 of Transfer of Property Act as contended by the Defendant No.2 or not. Section 52 of the Transfer of Property Act says as follows:
Section 52 Transfer of Property pending suit relating thereto. - During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] of [any] suit or proceedings which is not collusive and in 25 O.S.No.16671/2003 which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
23. On perusal of above said Section 52 of Transfer of property Act, it is clear that the said section contemplates that property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or under which may be made therein. Therefore, we have to consider that the transfer made by Plaintiff No.1 to 4 and Defendant No.1 in favour of Plaintiff No.6 has affected the rights of Defendant No.2 or not as per Section 52 of Transfer of Property Act. As per the above said discussion it is clear that Plaintiffs No.1 to 5 and Defendant No.1 has got share in the suit property along with Defendant No.2. As per Ex.P.4 and Ex.P.5 the Plaintiff No.1 to 5 and Defendant No.1 has sold their share in the suit property to the Plaintiff No.6. Therefore, when the Plaintiff 26 O.S.No.16671/2003 No.1 to 5 and Defendant No.1 have got share in the suit property and when they have only sold their right and interest in respect of the suit property and they have not sold the share of the Defendant No.2 and it will not affect the right of Defendant No.2. Therefore, it is clear that when it is not affecting the right of Defendant No.2 and share title of the Defendant No.2 is intact Section 52 of the Transfer of Property will not attract to the share of Defendant No.2.
24. It is argued by the advocate for Defendant No.2 that during the pendency of the suit Plaintiff No.1 and 3 died and their LRs were not brought on record and Plaintiff No.6 is alone continuing the suit as a purchaser. Since, Plaintiff No.6 has purchased the suit property and the said Sale Deed is hit by Section 52 of Transfer of Property Act. The Plaintiff No.6 alone cannot continue the case and he cannot step into the shows of other Plaintiffs and he has no right to continue the suit. Therefore, this suit is hit by non-joinder of legal heirs of Plaintiff No.1, 3 and 4. Therefore, it is admitted that during the pendency of the suit itself the share of Plaintiff No.1 to 5 and Defendant No.1 is sold to Plaintiff No.6. As per the above said discussion, it is also clear that the said sale is not hit by Section 52 of the Transfer of Property Act as the Plaintiff No.1 to 5 and Defendant No.1 has got share in the 27 O.S.No.16671/2003 suit property along with the Defendant No.2 and the said sale is not affecting the right and share of Defendant No.2.
25. The Advocate for Defendant No.2 has relied Judgment of Hon'ble Supreme Court between Dhanna Singh V/s Baljinder Kaur dtd: 4.4.1997.
26. In the said Judgment it is held as follows:
"Civil Procedure Code, Order 18 Rule 17 - Transfer of Property Act, Section 52 - Additional evidence - Lis pendens - Original Defendant gave up the right to lead evidence -
Subsequent purchaser who stepped into the shoes of the first Defendant does not get any right to lead any evidence- The transfer in his favour will be hit by the doctrine of lis pendens as well. "
On perusal of the above said Judgment in detail it is clear that in that suit a decree for permanent injunction was sought restraining the Defendants from raising any construction over the suit property. The application was filed by the subsequent purchaser of the Defendant and the same was rejected. Against the 28 O.S.No.16671/2003 said order of said rejection the appeal was filed before the Hon'ble Supreme Court. In the said judgment it is clearly stated that since the said sale is hit by doctrine of lis pendency under Section 52 of the Transfer of Property Act, the subsequent purchaser cannot get any right to lead any evidence as he is stepped in to the shoes of 1st Defendant who has given up right to lead evidence, in that circumstances the subsequent purchaser will not get any right to lead evidence. But, the above said decision is not applicable to the case on the hand, as the facts of this case are different. Here the Plaintiff No.3 has already given evidence as PW.1 and Plaintiff No.6 has given evidence as PW.2. In the above said case relied by Defendant No.2 it is clear that the evidence of the Defendant who has sold the property was not willing to lead any evidence and subsequent purchaser tried to lead evidence and that was rejected on the ground that it was hit by lis pendens. But, in this case, the purchaser made by the Plaintiff No.6 is not hit by lis pendency as per the above said discussion as the said purchase by the Plaintiff No.6 will not affect the right of Defendant No.2. Moresoever, here Plaintiff No.3 has also given evidence, unlike in that case the person who has sold the property was not ready to give evidence. Therefore, the facts of that case and this case is totally different. As 29 O.S.No.16671/2003 per the principles laid down by our Hon'ble Supreme Court in many decisions in order to apply any principle laid down by Apex Court the facts of that case must be similar with the facts of this case, otherwise it cannot be said that the principles laid down in the above said decision is applicable to this case also. Therefore, the principle laid down in the above case is not applicable to this case.
27. The Advocate for Defendant No.2 has also relied on the another Judgment of Hon'ble Supreme Court reported in the case of State of Punjab V/s Nathu Ram decided on 1.5.1961. In the said Judgment it is held as follows:
"Civil Procedure Code, 1908, Order 22, Rule 4 and 11 and Order 1 Rule 9 - Correspondents - Abatement of appeal as against one Respondent
- Acquisition of land jointly owned by two brothers - Award of compensation jointly in favour of both
- Abatement of appeal against one Respondent - Appeal would not proceed alone against other -
Determination of share in absence of legal representative not permissible in law."
30 O.S.No.16671/2003On perusal of the above said Judgment of Hon'ble Supreme Court it is clear that in the said Judgment it is held that the question whether the a Court can deal with such matter or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible.
28. The Advocate for Defendant No.2 relied another Judgment of Allahbad High Court between Salim V/s First Addl. Civil Judge, Senior Division, Saharanpur. In the said Judgment it is held as follows:
"A. Transfer of Property Act, Section 44 - Partition Act, 1892 Section 4 Family dwelling house - Co- sharer transferring his share in favour of stranger - Buyer cannot have right to joint possession - He has a right of partition - Section 44 of T.P. Act will be applicable - No matter parties were Muslims and there is no concept of joint undivided family among Muslims as envisaged among Hindus. (1908) ILR 30 Allahabad 324 (FB) and AIR 1990 Supreme Court 867 relied.31 O.S.No.16671/2003
B. Transfer of property Act, Section 44 and 53A - Family dwelling house - Co-sharer transferring his share to a stranger - Suit for prohibitory injunction restraining a co-sharer from transferring his share in family dwelling house in favour of stranger, the order granting mandatory injunction against the buyer for vacating family dwelling house was passed, the same cannot be challenged on the ground that he having been in possession of suit house prior to the suit, the said situation cannot be interfered with."
On perusal of the above said Judgment it is clear that in the said Judgment the Hon'ble High Court of Allahabad has clearly held that the buyer cannot have the right to joint possession, but he has got right of partition. Section 44 of TP Act will be applicable. No matter parties were Muslims and there is no concept of joint undivided family as envisaged in Hindus.
29. Section 44 TP Act clearly says as follows:
"Section 44 Transfer by one co-owner.
- Where one of two or more co-owners of immovable property legally competent in 32 O.S.No.16671/2003 that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred."
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
30. On perusal of the said Section it is clear that in the said section it is clearly held that the transferee acquires its share and interest in the property and he can enforce partition of the same, but subject to the condition of liabilities affecting the date of transfer. But, if is a dwelling house, the purchaser will not get right of joint possession that means, he cannot have right to joint possession, but he has right to partition. 33 O.S.No.16671/2003
31. In the said case, Plaintiff filed an injunction restraining the Defendant No.1 and 2 from delivering the possession to Defendant No.3 and subsequently the Respondent i.e., the Plaintiff filed an another application seeking mandatory injunction directing the Defendant No.3 to remove all his household articles and to remove and vacate the house. In that case, it is contended by the Plaintiff that without affecting any partition of the family dwelling house, the Defendant No.1 and 2 are attempting to transfer their share in favour of Defendant No.3 and attempting to deliver possession in favour of him. The Defendant No.3 contended as per the registered Agreement of Sale dtd: 29.5.1990 Defendant No.1 and 2 has delivered possession to him and Sale Deed was executed on 13.1.1992 in respect of the family dwelling house. Therefore, the mandatory injunction for removing the Defendant No.3 from the suit premises was rejected by the Munsif, Saharanpur. Against the said order, appeal was preferred before District Judge, Saharanpur and later it was transferred to Ist Court of Additional Civil Judge, Senior Division, Saharanpur and the same learned Addl. Senior Division Judge, allowed the said appeal and directed the Defendant No.3 to remove his articles from the suit premises and to vacate the possession. Against the said order Writ Petition was preferred 34 O.S.No.16671/2003 before Hon'ble High Court. In the said case, the Hon'ble High Court has clearly held that as per Section 44 of Transfer of Property Act the purchaser cannot claim that he is in joint possession of the suit property, he can only file partition suit and therefore, he is not entitled for joint possession along with the co-owners in the dwelling house in view of Section 44 of the Transfer of Property Act. In the said Judgment at Para No.24 the Hon'ble High Court has held as follows:
"Therefore, the right acquired by the Defendant No.3 is a restricted right only for enforcement of partition. He cannot have any right to joint possession or other common or part enjoyment of the property."
32. Therefore, on perusal of the said Judgment, it is clear that even though the purchaser has no right for joint possession along with the co-owners in a dwelling house, he can enforce for partition of his share. Therefore, it is clear that as per the principle relied by the Advocate for Defendant No.2 itself the Plaintiff No.6 cannot claim joint possession of the suit property which is a dwelling house along with Defendant No.2. However, he can 35 O.S.No.16671/2003 enforce partition, since he is already a purchaser. Therefore, when Plaintiff No.6 has already purchased the suit property from Plaintiff No.1 to 5 and Defendant No.1, merely because Plaintiff No.1 and 3 alive it cannot be said that the suit is bad for non-joinder of necessary parties i.e., the legal heirs of Plaintiff No.1 and 3, since Plaintiff No.6 is the purchaser of right, title and share of Plaintiff No.1 to 5 and Defendant No.1 he can continue the suit for partition, since he has got a right of claiming partition as per Section 44 of Transfer of Property Act itself. Section 44 Transfer of Property Act clearly contemplates the right of the Plaintiffs to continue the suit by giving evidence. Here, Plaintiff No.6 is not claiming joint possession along with Defendant No.2 or he is not claiming any mandatory relief for possession. He is seeking relief of partition and possession of his share which he has purchased from Plaintiff No.1 to 5 and Defendant No.1. Therefore, when he has already acquired right, title and interest over the share of Plaintiff No.1 to 5 and Defendant No.1, this suit will not hit by non-joinder of necessary parties i.e., the legal heirs of Plaintiff No.1, 3 and 4 and Plaintiff has got right to continue the suit by giving evidence. Therefore, basing on this decision relied by the advocate for Defendant No.2 this Plaintiff can continue the suit as a purchaser. 36 O.S.No.16671/2003
33. The Advocate for Defendant No.2 also relied another decision of Hon'ble Supreme Court between Dorab Cawasji Warden V/s Coomi Sorab Warden. Even in the said decision it is held as follows:
"A. Transfer of Property Act, Section 44 - Scope of Section 44 explained - Dwelling house held in equal shares by undivided family of two brothers - Family divided in status - Property not divided by metes and bounds - Brothers should be deemed to be holding the property as members of undivided family -
Transfer of share by one brother would come within the mischief of second paragraph of Section 44.
B. Transfer of Property Act, 1882 Section 44 Partnership Act, 1932 Section 4 Dwelling house held by undivided family - One of the members selling his share - Purchaser has no right to joint possession of the dwelling house - If transferee files suit for partition, a member of family can purchase transferee's share on 37 O.S.No.16671/2003 value to be fixed in accordance with law - Injunction against transfer should not be denied as it would cause irreparable injury to the other members of the family."
34. On perusal of the said decision it is clear that in that judgment it is only held that the purchaser cannot claim joint possession, he can file a suit for partition. Therefore, principle laid down in the above case is applicable to the Plaintiffs case only.
Therefore, it is clear that in this suit Plaintiff No.6 is not claiming joint possession and interest and he is claiming partition and separate possession and hence this principles is not applicable to this case. In view of the above discussion it is also clear that the suit of the Plaintiff is not hit by Section 52 of Transfer of Property Act.
35. In view of the above said discussion, it is also clear that the Plaintiff No.6 is the bonafide purchaser of the property. The Defendant No.2 has failed to prove that the said sale is barred by lis pendency.
36. In view of the above said decision it is also clear that as per Muslim Law the Plaintiff No.1 to 3 are entitled for 2/10th share 38 O.S.No.16671/2003 each and Plaintiff No.4 and 5 and Defendant No.1 and 2 are entitled for 1/10th share each in the suit property. Here, admittedly the Plaintiffs No.1 to 5 and Defendant No.1 have sold extent of their share and title to the Plaintiff No.6. They have also taken sale consideration amount of Rs.9,60,000/- and Defendant No.1 has taken sale consideration Rs.1,20,000/- as per the Sale Deed dtd:
10.1.2008 and 24.1.2008 i.e., at Ex.P.4 and Ex.P.5 respectively.
Therefore, when they have already sold the property and taken the sale proceeds, the question of granting damages as sought by the Plaintiffs will not arise.
37. In view of the above said discussion, when the Plaintiffs No.1 to 5 and Defendant No.1 has sold their 8/10th share and 1/10th share to the Plaintiff No.6 and in view of Section 44 of TP Act Plaintiff No.6 is entitled for partition of his share i.e., 8/10th share and 1/10th share in the suit property and for separate possession to that extent. Hence, I answer Issue No.2 in the Negative, Issue No.4 in the Negativ. Additional No.2 dtd: 30.5.2019 in the Negative and also answer Additional Issue No.1 dtd: 30.5.2019 in the Affirmative.
38. In view of the above said discussion, I answer issue No.3 stating that Plaintiffs No.1 to 3 are entitled for 2/10th share each 39 O.S.No.16671/2003 and Plaintiff No.4 and 5 are entitled for 1/10th share each in the suit property and Defendant No.1 and 2 are entitled for 1/10th share each in the suit property. In view of the above said reason, since the Plaintiff No.6 is the purchaser is entitled for partition and separate possession of his extent of the property purchased by him i.e., 8/10th share + 1/10th share in the suit property from Defendant No.2, hence, I answer Additional No.4 dtd: 3.6.2019 in the Affirmative.
39. Additional Issue No.1, 2 and 3 framed on 3.6.2019 and in view of the above said reason, I answer Issue No.5 as follows:
ORDER The suit of the plaintiffs is partly decreed.
It is held that Plaintiff No.6 is entitled for partition and separate possession of the 8/10th share + 1/10th share of the suit property from the Defendant No.2.
The Defendant No.2 is hereby directed to handover the possession of the above said share to the Plaintiff No.6.40 O.S.No.16671/2003
The other reliefs for damages from Defendant No.1 and 2 is rejected.
Draw decree accordingly.
[Dictated to the Stenographer on 24.6.2019, by pronouncing same in the open Court and the same was transcribed by her and typed by her and thereafterwards corrected and signed by the Presiding Officer on 24th day of June 2019).
[B.S. Bharathi ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bengaluru.
SCHEDULE All that piece and parcel of land together with construction standing thereon of premises bearing No.2, Old No.28, Muniswamy Road (formerly bearing No.10 and known as Bileknahalli, 6th Division, Main Road Cross, New Street Northern side), PID No.78-6- 2, bounded on:
East by : Mohammad's House.
West by : Usman Saheb's House.
North by : Muniswamy Road (formerly Cross New Street).
South by : Amansab's house.
41 O.S.No.16671/2003
ANNEXURE
1. List of witnesses examined for the plaintiff :-
P.W.1 : Muneer Ahmed.
P.W.2 : Syed Mohammed @ Syed Aslam.
2. List of documents marked:-
Ex.P.1 : Copy of legal notice dtd: 3.10.2003 issued to
Defendants.
Ex.P.2 : Reply dtd: 14.10.2003.
Ex.P.3 : Certified copy of the Sale Deed dtd: 17.2.1936.
Ex.P.4 : Certified copy of the Sale Deed dtd: 10.1.2008
entered into between Mr. Babji Abdul Shukoor and others in favour Syed Mohammed Ahmed @ Syed Aslam.
Ex.P.5 : Certified copy of the dtd: 24.1.2008 entered into between Raziya Begum in favour of Syed Mohammed Ahmed @ Syed Aslam.
Ex.P.6 : Certified copy of khatha certificate.
Ex.P.7 : Certified copy of khatha.
Ex.P.8 : Tax paid receipt.
Ex.P.9 : Encumbrance Certificate.
42 O.S.No.16671/2003
3. List of witnesses examined by the defendant:
DW.1 : Shakeera Begum.
4. List of documents marked by the defendant:
Ex.D.1 to : Receipts for amount paid.
Ex.D.3 Ex.D.4 : Two Rations Cards. and Ex.D.5
Ex.D.6 to : Nine Water and tax paid receipts. Ex.D.14 Ex.D.15 to : Three notices issued by BBMP for payment of Ex.D.17 tax.
Ex.D.18 : Two khatha certificate.
and
Ex.D.19
Ex.D.20 : Application for issue of Voters Identity Card.
Ex.D.21 : Votes ID Card and Adhaar Card.
and
Ex.D.22
Ex.D.23 : Piligrim pass.
(B.S. Bharathi),
XXVIII ACC & SJ, B'luru.
43 O.S.No.16671/2003
Judgment pronounced in open Court
as under :- (vide order separately)
ORDER
The suit of the plaintiffs is partly decreed.
It is held that Plaintiff No.6 is entitled for partition and separate possession of the 8/10th share + 1/10th share of the suit property from the Defendant No.2.
The Defendant No.2 is hereby directed to handover the possession of the above said share to the Plaintiff No.6.
The other reliefs for damages from Defendant No.1 and 2 is rejected.
Draw decree accordingly.
(J.R.Mendonca), XXVIII ACC & SJ, B'luru.