Delhi District Court
Mst. Aman Jamal vs . Mohd. Shamim & Others on 26 October, 2013
Mst. Aman Jamal Vs. Mohd. Shamim & others
IN THE COURT OF SHRI VIRENDER KUMAR BANSAL : ADDL. DISTRICT JUDGE
(CENTRAL) 08, TIS HAZARI, DELHI
Suit No. 121/10
1. Mst Aman Jamal
W/o Sh. Mohd. Mia,
R/o 502, Churiwalan,
Jama Masjid, Delhi 110006
2. Mst. Surraiya Jamal,
W/o Sh. Sher Mohammed,
R/o 3rd Floor, Flat No.F-31,
Gali Gurdware Wali, Jawahar Park,
Laxmi Nagar, Delhi-110092
Plaintiff
Vs.
Mohd. Shamim
S/o Late Sh. Mohd. Yunus
R/o 5444, Kucha Rehman,
Chandni Chowk, Delhi-110006
Defendant
Date of institution of the suit :15.04.1986
Date of reserving Order :26.10.2013
Date of Order : 26.10.2013
JUDGMENT
1. Mst. Shahida Jamal filed the suit for partition, rendition of accounts and permanent injunction against Sh. Mohd. Shamim, Mohd. Shamil, Mst. Surraiya Jamal, Mst. Aman Jamal and Mst. Hoor Jamal. Summons were sent to the defendant. During the pendency of the suit Mst. Surraiya Jamal, Mst. Aman Jamal and Mst. Hoor Jamal moved application for CS No. 121/10 1 Mst. Aman Jamal Vs. Mohd. Shamim & others transposition as plaintiff. The application was allowed vide order dt. 16.03.2005 and Mst. Sarraiya Jamal, Mst. Aman Jamal and Mst. Hoor Jamal were taken as plaintiffs. Leter on 10.08.2007 plaintiff No.1 Shahida Jamal made the statement that she wants to withdraw from the suit on the basis of the her statement she was allowed to withdraw and amended memo was directed to be filed. Mst. Hoor Zamal also made statement on 20.08.2007 that she want to withdraw from the case and she was allowed to withdraw vide order dt. 20.08.2007. Finally the Mst. Aman Jamal and Mst. Surraiya Jamal remained as plaintiff and (hereinafter referred as plaintiff). Mohd. Shamim and Mohd. Shamil remained as defendants(hereinafter referred as defendants). Defendant No.2 despite service did not appear and therefore proceeded Exparte vide order dt. 24.07.2007. During pendency of suit Mohd.Shamil expired and his name was deleted from array of parties. The fact in brief as alleged by plaintiffs are that Md. Yunus was the owner of the property i.e. residential house bearing No.600, Gali Jutey Wali, Churiwalan, Delhi. Shops on ground floor and first floor bearing No.5153, 5153A, 5154, 5155 and 5156 situated at Rui Mandi, Sadar Bazar, Delhi. Shops bearing No.5620A, 5620B, 5620/1, 5621, 5621/A, 5621/B, 5622, 5622/A ground floor and first floor, 5623, 5623A, 5624, 5625, 5625A, ground floor and first floor. 5626, 5627, 5627A, 5627/1 ground floor and first floor 5628 ground floor and 5628 (passage), 5628A, 5628B, 5628C, 5645A, 5645B, 5645/1, 5646, 5646A, 5646B, 5647, 5649, 4649A, 5650, 5651, 5652, 5653, 5654, 5654A, 5654B, 5654C CS No. 121/10 2 Mst. Aman Jamal Vs. Mohd. Shamim & others situated at Gandhi Market, Sadar Bazar by virtue of Takseemnama dt. 23.03.1981 registered on 25.05.1981. Sh. Mohd. Yunus died on 18.02.1984. He was a Sunni Mohammdan. He left behind Mohd. Shamim and Mohd. Shamil as sons. Mst. Shahida Jamal, Mst.a Surraiya Jamal, Mst. Aman Jamal and Mst. Hoor Jamal the daughters. The parties are governed by Mohammdon law as applicable to Sunni. The plaintiff and defendant being the only heirs of deceased Mohd. Yunus are entitled to inherit the property in accordance with the Mohammdon law in the ratio that defendant No.1 and 2 beings sons get ¼th share each and the daughters inherit 1/8th share each. The properties of Late Sh. Mohd. Yunus are joint. After the death of the father the daughters i.e. sisters of the defendant no.1 and 2 asked them to give them their share of the rent but they were denied their right. The defendants were collecting rent from the tenants on the false representation that they are the absolute owners. All the sisters repeatedly asked the defendants to furnish the details of the rent received and collected by defendant No.1 from all the tenants. House No.600, Gali Jutey Wali, Churiwalan is in joint possession of the parties. i.e sisters and the brothers and the shops are in the possession of tenants. Keeping the property joint is causing lot of inconvenience and is a source of constant quarrel and dispute. Sisters asked their brothers to partition the property to which they refused and hence the suit asking decree of partition and rendition of account and injunction.
CS No. 121/10 3
Mst. Aman Jamal Vs. Mohd. Shamim & others
2. Defendant No.1 filed his written statement alleging that suit has not been properly valued however it is admitted that the properties detailed by the plaintiff were owned by late Md. Yunus. It is also admitted that Mohd. Yunus died on 18.02.1984 but it is denied that he was suffering from prolonged illness or was seriously ill or struggling between life and death. It is also denied that he was not in possession of his vitals or was not having sound disposing mind. It is admitted that late Mohd.Younus was the owner of house no.600, Gali Jutewali, Churiwalan and number of shops situated at Rui Mandi, Gandhi Market, Sadar Bazar, Delhi. However the numbers are denied. It is also admitted that parties are suni muslim. It is also admitted that Mohd.Yunus with defendant no.1 and 2 as his sons, the plaintiff and defendant no.3 to 5 his daughters. It is alleged that Mohd.Younus executed a will dt.11.1.83 by which he bequeathed house no. 600, Gali Jute Wali, Chooriwalan, Delhi and the following shops to the defendant no.1, shop no.5620, 5621/5621A, 5622, 5622, 5623, 5623A, 5624, 5625, 5625, 5626, 5627, 5627, 5627A, 5628/5628, 5645/A 5645/B, 5645/1, 564646, 5647, 5648, 5647, 5649/1, 5650, 5651, 565253, 5654, 5654/A, 5163, 5153/A, 5154, 5651, 565253, 5654, 5641/A, 5153, 5153/A, 5154, 5155, 5156, Ward no.13, Sadar Bazar, Delhi to defendant no.1. The said Will was duly registered with the Sub Registrar, Delhi. Sh.Mohd.Younus also deemed it fit to gift his properties, shop bearing Municipal no.5620 to 5628 and 5647 to 5654, Ward No.13 in Gandhi Market, Sadar Bazar, Delhi built on free hold land measuring 320 sq.yards CS No. 121/10 4 Mst. Aman Jamal Vs. Mohd. Shamim & others and appended as under: East : Private Passage West : Private Passage North : Private Passage South : Private Passage and other property of defendant no.1. The possession of the properties was also given to him. The plaintiff and the other defendants had consented to the will of Mohd.Younus. It is denied that plaintiff or any other defendants is having any other interest in the property. It is alleged that the tenants of the property attorned to him and are paying rent to him. The house no.600, Gali Jutewali, Churiwalan, is in exclusive possession of defendant no.1 and shops gifted to the defendant no.1 are also in exclusive possession. He admitted that he filed earlier suit for partition which was dismissed as withdrawn.
3. Replication was filed, wherein plaintiff denied the averments mentioned in the written statement and reaffirmed the facts as mentioned in the plaint.
4. On the basis of pleadings following issues were made out on 19.10.2006.
1. Whether the plaintiffs are entitled to a preliminary decree of rendition of accounts as prayed for?(OPP)
2. Whether the plaintiffs are entitled to a preliminary decree of partition, if so to what extent of their share?(OPP) CS No. 121/10 5 Mst. Aman Jamal Vs. Mohd. Shamim & others
3. Whether the plaintiffs are entitled to a decree of permanent injunction as prayed for?(OPP)
4. Whether the suit has not been valued properly for the purposes of court fees?(OPD)
5. Whether Mohd.Younus had executed a Will dated 11.01.1983 bequeathing the property in favour of defendant no.1?(OPD)
6. Whether Mohd.Younus gifted his property i.e.shop bearing Municipal No.56205628 & 56475654, Ward no.13, Gandhi Market, Sadar Bazar in favour of defendant no.1?(OPD)
7. Relief.
Thereafter case was fixed for plaintiff evidence.
5. Plaintiff examined Mohd.Mian as PW1. He is SPA of the plaintiff and supported the averments made in the plaint. During cross examination he admitted that none of the plaintiffs reside in the suit property and is also not in possession of any portion of the said property. He also stated that tenants of the shops are paying rent to the defendant no.1 since the demise of Mohd.Younus. He also stated that Moh.Younus at the time of his death was living with defendant no.1 at 5444, Kucha Rehman, Chandni Chowk, Delhi. He also stated that he does not know if Mohd.Younus executed the Will on 11.1.83 or that he executed the gift deed. He stated that he can not say if on account of pendency of suit in respect of shop no. CS No. 121/10 6
Mst. Aman Jamal Vs. Mohd. Shamim & others 5155 the defendant no.1 mentioned in the sale deed that the same was in respect of his share and share of defendant no.2 whereas the value received by him was the value of entire property on the date of sale. Thereafter plaintiff closed the evidence.
6. Defendant appeared in the witness as DW1, tendered his affidavit as DW1/A. During cross examination, he admitted that he is having four sisters and one brother. He denied the suggestion that he has purchased the share of Shahida Jamal and Hoor Jamal or has paid Rs.8 lacs as sale consideration to Shahida Jamala and Hoor Jamal. He stated that he voluntarily paid this amount to help them. He stated that he does not know if mark A (Will) was executed by his father in the hospital. He denied the suggestion that he manufactured these documents.
7. Defendant also examined Sh. M.M.Javed the witness to the Will.
8. Sh.Ajay Singh from the office of Sub Registrar was examined DW3. He brought the gift deed.
9. Sh.Shailendra Nigam was examined as DW4. He is witness to the gift deed Ex.DW4/1. Thereafter defendant closed his evidence.
10. Plaintiff appeared in the witness box in rebuttal evidence, tendered her CS No. 121/10 7 Mst. Aman Jamal Vs. Mohd. Shamim & others affidavit as PW2/A. During cross examination she denied the suggestion that the daughters of Mohd.Yunus gave any consent for execution of Will in favour of defendant no.1. She denied the suggestion that Mohd.Younus executed the gift deed dt.13.02.84 in sound mind and senses. She denied the suggestion that the application under Sec.340 Cr.PC is false.
11. I have heard the Ld.counsel for plaintiff and Ld.counsel for defendants and perused the record. My issue wise findings are as follows:
12. Issue no.4:Whether the suit has not been valued properly for the purposes of Court fees?(OPD) Firstly I take up the issue no.4. The defendant had taken the plea that plaintiff has not properly filed the suit for the purpose of court fee and jurisdiction. But during the course of arguments no such argument was forwarded by either of the parties. The defendant in the written statement, the defendant has just mentioned that the suit is not properly valued but no valuation report or evidence in this regard has been brought, whereas the plaintiff has valued the suit for the purposes of jurisdiction at Rs.2 lacs being the value of her share in the property for the purposes of court fee and jurisdiction. If the valuation is to be believed then according to the judgment of Delhi High Court cited as Zahoor Ahmed Vs.Rakhi Gupta & Others 2012 (189) DLT 244, wherein it was held that, "Valuation for the purpose of jurisdiction has to be the value of CS No. 121/10 8 Mst. Aman Jamal Vs. Mohd. Shamim & others the whole of the property which is the subject matter of portion whereas the valuation for the purposes of court fee would be such as provided under the Court Fee Act" .
As the valuation for the purposes of jurisdiction can come only on the basis of the total value of the property which will come to Rs.16 lacs as there are six cosharer according to the plaint. Plaintiff has alleged herself to be in the possession and therefore, fixed court fee was required to be paid. Therefore, the only fact which remains is that the valuation for the purpose of jurisdiction should have been at Rs.16 lacs i.e. the value of the total property but even then it will remain within the pecuniary jurisdiction of this court and hence this does not effect the case or the jurisdiction of this court. The issue is accordingly decided. It is held that the suit should be valued for the purposes of jurisdiction at Rs.16 lacs.
13. Issue no.5: Whether Mohd.Younus had executed a Will dated 11.01.1983 bequeathing the property in favour of defendant no.1? Ld.counsel for defendants submitted that Mohd.Younus executed the Will which was got registered before the Sub RegistrarII, New Delhi on 13.01.83 and in this Will the testator Sheikh Mohd.Younus son of Naziruddin, the father of the plaintiff and the defendants mentioned that he is having immovable property i.e. one house double storey pakka built CS No. 121/10 9 Mst. Aman Jamal Vs. Mohd. Shamim & others Hadobast Municipal no.600, Illaqa no.9, situated gali Jutewali, Churiwalan, Delhi City where he is residing which came to his share in division deed dt. 23.3.71. He is the absolute owner in possession of the property and bequeathed this property to defendant no.1. He has also bequeathed property situated in Ward no.13 bearing no. 5620, 5621/5621A, 5622, 5622, 5623, 5623A, 5624, 5625, 5625, 5626, 5627, 5627, 5627A, 5628/5628, 5645/A 5645/B, 5645/1, 564646, 5647, 5648, 5647, 5649/1, 5650, 5651, 565253, 5654, 5654/A, 5163, 5153/A, 5154, 5651, 565253, 5654, 5641/A, 5153, 5153/A, 5154, 5155, 5156, Illaqa VIII situated Sadar Bazar, Delhi City and one house double storey municipal no.600, Illaqa No. 9, situated gali Jutewali, Churiwalan, Delhi. Ld.counsel submitted that this is a registered Will. Defendant examined the witness to prove this Will which is mark A. There is no reason to disbelieve this Will. By virtue of this Will defendant has become the owner of all these properties. Ld.counsel submitted that M.M.Javed the attesting witness to this Will was examined as DW2. He proved the execution of the Will mentioning that registrar came to the hospital for registration of Will. One counsel read over the contents of the Will to Sh.Mohd.Younus. Thereafter, he signed the Will and also put his thumb impression after admitting to be correct. He also stated that he was in sound disposing mind. Ld.counsel submitted that in view of this fact, it is clear that defendant no.1 has become owner of all these properties and these properties are not open to partition. CS No. 121/10 10
Mst. Aman Jamal Vs. Mohd. Shamim & others
14. Ld.counsel for the plaintiffs submitted that the parties are Mohammedan and according to Mohammedan law, a Mohammedan can not dispose off more than a third of the surplus of his estate after payment of funeral expenses and debts. Ld.counsel submitted that in view of this fact itself this will does not confer any right, title or interest upon the defendant no.1 in these properties. Ld.counsel further submitted that the execution of Will itself is shrouded with doubts. Admittedly, Mohd.Younus was in the hospital at the time of execution of Will. Mohd.Younus died in the hospital. The doctor is not a witness. There is no certificate annexed that testator was in sound disposing mind. The sub Registrar who reached the hospital also not examined. Ld.counsel submitted that under the circumstances as the Will itself is shrouded with doubts and as per Mohammedan law, the father of the parties could not have bequeathed/disposed off more than 1/3rd of his estate. This will does not confer any right of defendant no.1. Ld.counsel in support of his arguments relied upon the judgment cited as Shehammal Vs. Hasan Khani Rawther, VI (2011) SLT 267, wherein it was held that, "A Mohammedan can not by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of one third can not take effect unless the heirs consent thereto after the death of the testator. The said principle of testamentary CS No. 121/10 11 Mst. Aman Jamal Vs. Mohd. Shamim & others disposition of property has been the subject matter of various decisions rendered by this Court from time to time and it has been consistently stated and reaffirmed that a testamentary disposition by a Mohammedan is binding upon the heirs if the heirs consent to the disposition of the entire property and such consent could either by express or implied. Thus, a Mohammedan may also make a disposition of his entire property if all the heirs signified their consent to the same. In other words, the general principle that a Mohammedan can not by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by the consent of all the heirs".
Ld.Counsel submitted that in view of this the issue be decided in favour of the plaintiff and against the defendants.
15. After hearing the arguments and going through the record, I found that admittedly the testator was in the hospital as admitted by the attesting witness examined as DW2. There is no certificate annexed with the Will issued by the doctor attending the patient i.e. the testator that he was in sound disposing mind. No doubt it is not required under law but once the patient was reported to be ill and was in hospital in my opinion it become CS No. 121/10 12 Mst. Aman Jamal Vs. Mohd. Shamim & others relevant. According to the witness he was having some blood pressure problem and he remained admitted in the Holy Family Hospital for about 8 days. Keeping in view this fact coupled with law that a Mohammedan can not dispose of more than 1/3rd surplus of his estate, unless the heirs consent thereto. In the present case there is no such consent brought on record or even pleaded. The Will itself is shrouded in doubt, therefore, in my opinion, this Will is not proved and does not confer any right, title or interest what so ever in defendant no.1 with respect to properties situated in Ward no.13 bearing no. 5620, 5621/5621A, 5622, 5622, 5623, 5623A, 5624, 5625, 5625, 5626, 5627, 5627, 5627A, 5628/5628, 5645/A 5645/B, 5645/1, 564646, 5647, 5648, 5647, 5649/1, 5650, 5651, 565253, 5654, 5654/A, 5163, 5153/A, 5154, 5651, 565253, 5654, 5641/A, 5153, 5153/A, 5154, 5155, 5156, Illaqa VIII situated Sadar Bazar, Delhi City and one house double storey municipal no.600, Illaqa No.9, situated gali Jutewali, Churiwalan, Delhi.
16. Issue no.6:Whether Mohd.Younus gifted his property i.e. shop bearing Municipal No.56205628 & 56475654, Ward No.13, Gandhi Market, Sadar Bazari in favour of defendant no.1?
Ld.counsel for defendant submitted that the Mohammedan law permit a Mohammedan to gift his property and by exercising that power Mohd.Younus gifted the shops bearing municipal no.5620 to 5628 and 5647 to 5654, Ward no.13, situated in Gandhi Market, Sadar Bazar, Delhi to CS No. 121/10 13 Mst. Aman Jamal Vs. Mohd. Shamim & others the defendant no.1. The gift deed has been proved on record as Ex.PW1/1. The signature on the gift deed are not denied and by virtue of this gift deed which has also been accepted by donee, the defendant has become the exclusive and absolute owner of these properties and therefore, the plaintiff and defendants are not left with any right in the property. Ld.counsel submitted that under the circumstances these properties are not subject to partition. Ld.counsel submitted that gift deed is not required to be registered. Ld.counsel submitted that as the defendant has discharged his onus in respect of the gift deed. This issue be decided in favour of the defendants and against the plaintiffs.
17. Ld.counsel for plaintiff submitted that in Mohammedan law, there are three essential ingredients of a gift.
1. Declaration of gift by the donor
2. Acceptance of the gift express or implied by or on behalf of the donee and
3. delivery of possession.
Ld.counsel submitted that in the present case there is no delivery of possession or taking of possession of gift by the donee actual or constructive as there is no such delivery of possession the gift is not complete. Ld.counsel submitted that in the present case in the gift deed DW1/1 itself it is mentioned that, " whereas the donor, first party is the owner and in possession CS No. 121/10 14 Mst. Aman Jamal Vs. Mohd. Shamim & others of the property shops bearing municipal no.56205628, 5647 to 5654, Ward no.13, situated in Gandhi Market, Sadar Bazar, Delhi built at the free hold land measuring 320.9 sq.yards and pointed as under..........."
Ld.counsel submitted that from this it is clear that donor is in actual physical possession of these properties. Though on page 3, it is mentioned that donor has given the possession of said gifted property to the second party donee in clause 2 but there was no actual transfer of possession as donor continued to possess in the suit property even after the execution of this gift deed. Ld.counsel submitted that this gift deed is of 13.2.84 and Mohd.Younus died on 18.2.84 in the hospital, this also creates doubt about correctness of this gift deed. Ld.counsel submitted that even after the execution of this gift deed Mohd.Younus continued to possess the same property which clearly shows that he had not delivered the possession to the donee and hence all the essential ingredients of the gift were not complied with, therefore, the gift is not complete. Ld.counsel in support of his arguments relied upon the judgment cited as Hafeeza Bibi & Others Vs. Shaikh Farid by LR's & Others IV (2011) SLT 104, wherein it was held that, "this Court referred to the Principles of Mohammedan Law by Mulla, 19th Edition and in paragraph 5 noticed the legal position, in relation to a gift by Muslim CS No. 121/10 15 Mst. Aman Jamal Vs. Mohd. Shamim & others incorporated therein, thus:
"5. Under Section 147 of the Principles of Mahommedan Law by Mulla, 19th Edition, edited by Chief Justice M.Hidayatullah envisages that wriging is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only the gift is complete. Section 152 envisages CS No. 121/10 16 Mst. Aman Jamal Vs. Mohd. Shamim & others that where the donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift".
Ld.counsel submitted that in view of the settled law the gift as alleged by CS No. 121/10 17 Mst. Aman Jamal Vs. Mohd. Shamim & others the defendant is not complete and hence does not confer any right, title upon the defendant.
18. After hearing the arguments and going through the record, I found that in the case of Mehboob Saahab Vs. Syed Ismail and Others (Supra), it has been clearly held that in Mohammedan law a gift to be valid the three essential ingredients have to be full filled.
1. A declaration of gift by the donor
2. Acceptance of the gift express or implied by or on behalf of the donee and
3. Delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150.
If these conditions are complied with then the gift is complete. The judgment also held that where the donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. In the present case there is a gift deed where in the donor declares his intention to gift certain properties to the donee, there is acceptance also of the donee. Donor is admittedly in possession as mentioned in the gift deed itself but the actual physically possession was never delivered to the donee as the donor continued to possess in the property gifted to the donee and he never physically departed from the premises with all his CS No. 121/10 18 Mst. Aman Jamal Vs. Mohd. Shamim & others goods and chattles, therefore, in view of the judgment of the Hon'ble Supreme Court, the gift is not complete under the Mohammedan Law. Hence does not confer any right, title or interest on the defendant no.1. The issue is accordingly decided.
19. Issue no.1 and 2:Whether the plaintiffs are entitled to a preliminary decree of rendition of accounts as prayed for?
Issue no.2:Whether the plaintiffs are entitled to a preliminary decree of partition, if so to what extent of their share?
Issue no.1 and 2 are taken together as over lapping and inter connected. Ld.counsel for plaintiff submitted that admittedly the property is in dispute that is mentioned in the plaint were owned by Mohd.Younus, father of the parties. He was the absolute owner as he got the properties in the partition deed which fact is also admitted by the defendant. The partition deed has been placed on record. Mohd.Younus died on 18.2.84 leaving behind the suit property. There were residential house as well as shops, the shops are on rent and the rent of the same is collected by defendant no.1 which fact is not denied as defendant no.1 himself as mentioned in reply on merits of para 5 on page 3 of the written statement that the tenants have attorned to him. Ld.counsel submitted that once the tenants have attorned to him, they started paying rent to him. The properties left behind by the father are liable to be partitioned among all the sons and daughters of CS No. 121/10 19 Mst. Aman Jamal Vs. Mohd. Shamim & others Mohd.Younus. The parties are suni Muslim and according to the law all the daughters are entitled to 1/8th share each being four daughters and the sons are entitled to equal share in the half property left behind by Mohd.Younus i.e.1/4th each. Ld.counsel submitted that till date admittedly suit property has not been valued. This fact is admitted by the defendant himself in the sale deed dt.3.8.07 duly registered, copy of which is on record as Ex.DW1/P1 and in this sale deed on page 4 it is specifically mentioned that, "whereas the said Mohd.Younus died at Delhi on 18.02.84 leaving behind two sons namely Mohd.Shamil and Mohd.Shamin and four daughters namely Mst.Hoor Jamal, Mst.Aman Jamal, Mst.Surraiya Jamal and Mst.Shahida Jamal and those they all have inherited the said property left behind by their late father being his sons and daughters and all are co owners there of having undivided share herein. The wife of said Mohd.Younus has already died".
Ld.counsel submitted that from this documents itself which has been executed during pendency of the present suit in the year 2007, it is clear that defendant himself admits that the suit properties have not been partitioned among the sons and daughters of Mohd.Younus and further that he is not the exclusive or absolute owner of the property. They all are co sharer and co owners having undivided share herein. Ld.counsel CS No. 121/10 20 Mst. Aman Jamal Vs. Mohd. Shamim & others submitted that under the circumstances, it can not be said that the plaintiffs or the daughters or the sisters of defendant no.1 and 2 are not having right in the property. Ld.counsel submitted that plaintiff also gave a notice under Order 12 Rule 2 and Order 12 Rule 8 CPC to place on record the GPA executed by Mohd.Shamil, the defendant no.2 in favour of Mohd.Shamin, the defendant no.1. Ld.counsel submitted that defendant has failed to reply or answer this notice and has also not placed on record the copy thereof, hence the photocopy of the same can be relied upon and in this document also on page no.3 it is mentioned that, "and whereas the said Mohd.Younus died at Delhi on 18.2.84, leaving behind two sons namely Mohd.Shamil and Mohd.Shamin and four daughters namely Mst.Hoor Jamal, Mst.Aman Jamal, Mst.Surraiya Jamal and Mst.Shahida Jamal and thus they all have inherited the said property left behind by their late father being his sons and daughters and all are co owners thereof having undivided share herein. The wife of said Mohd.Younus had already died".
Ld.counsel submitted that in view of this clear admission by the defendants, it is clear that the suit property is not partitioned. The defendant no.1 is not the absolute owner as claimed by him. He is also not having any exclusive right to collect the rent, therefore, the plaintiffs are entitled to the rendition of account and also partition of the suit property CS No. 121/10 21 Mst. Aman Jamal Vs. Mohd. Shamim & others according to their share in the property.
20. Ld.counsel for defendant submitted that the plaintiffs or any other sisters of defendant no.1 and 2 are not having any right in the property. They are left with no right or interest in the suit property after Mohd.Younus, the father of parties executed the Will dt.11.1.83 and gifted the remaining property in favour of defendant no.1 vide gift deed dt.13.2.84 Ex.DW1/1. Ld.counsel submitted that so far as the averment in the sale deed about joint property is concerned it was mentioned on the insistence of Smt.Sudesh Juneja the purchaser in order to avoid any controversy in future as she wanted to get this fact mentioned that they are all joint owners and that is why this fact was mentioned in the sale deed Ex.DW1/P1. Ld.counsel submitted that the suit for necessary corrections in the sale deed has already been filed. Ld.counsel submitted that in fact the defendant received the entire consideration amount and not the consideration to the extent of his share. This fact itself establishes that the defendant no.1 is the absolute owner of the property and plaintiff is not left with any right. Ld.counsel submitted that as defendant no.1 is the absolute owner that is why the tenants after accepting him as the owner started paying rent to him and plaintiffs have no right to claim any share in the rent collected. It is prayed that keeping in view all these facts, it is clear that plaintiffs are not having any right in the property. The issues be decided in favour of the defendants. CS No. 121/10 22
Mst. Aman Jamal Vs. Mohd. Shamim & others
21. After hearing the arguments and going through the record, I found that in decision of issue no.5 and 6 it has already been decided that defendant no. 1 does not get any right on the basis of the Will and the gift deed. There is a registered will placed on record by the plaintiff executed by defendant no. 1 in favour of Sudesh Juneja, whereby he sold the portion of the property to Sudesh Juneja. The averments made in this sale deed are very important. In this document though it is with respect to property no.5155 only but on page 4 it is mentioned that, "And whereas the said Mohd.Yunus died at Delhi on 18.2.84 leaving behind two sons Namely Mohd.Shamil and Mohd.Shamim and four daughters namely Mst.Hoor Jamal, Mst Surraiya Jamal, Mst.Aman Jamal and Mst.Shahida Jamal and thus they all have inherited the said properties left behind by their late father being his sons and daughters and all are coowners thereof having undivided share therein, the wife of said Sh.Mohd.Yunus has already died". From this it is clear that the defendants in the sale deed is not making reference of 5155 only but he is making reference of all properties of late Mohd.Younus son of Sh.Nasiruddin father of the parties herein and also mentioning that all the sons and daughters are the coowners in all these properties have undivided share herein. In this document their names are also given and they are the plaintiffs are also given and they are the CS No. 121/10 23 Mst. Aman Jamal Vs. Mohd. Shamim & others plaintiffs and defendants in the present case. There is another document power of attorney executed by Mohd.Shamil defendant no.2 in favour of defendant no.1. There also similar averments is there and it is mentioned that all the parties to the suits are co owners and having undivided share in the property. Therefore, in my opinion as defendant themselves admit that the property is still not partitioned and the sister are also having right in the property. On the other hand, the claim of defendant no.1 of his absolute ownership on the basis of Will and Gift deed has not been established. I am of the considered opinion that the properties are liable to be partitioned according to Mohammedan law i.e. equal share in the half property by the daughters and equal share in the half property by the sons i.e. 1/8th share to each of the daughters and 1/4th share to each of the sons. It is pertinent to mention here that during the pendency of the suit defendant no.2 also died leaving behind his brother and sisters. As per the Mohammdan Law, the full sister gets share in the residing if there is full brother in the ratio of 2/3rd and 1/3rd. As the Mohd.Shamil has 1/4th share, therefore 1/3rd of the same will go to Mohd.Shamim and 2/3 rd will be divided equally among the four sisters. So far as rent is concerned, defendant himself has admitted that tenants have attorned to him. Admittedly he has not given any rent or share in the rent to any of his sister, though they are entitled to receive the same, therefore parties are also entitled to the rendition of account with respect to the rent. The issues are accordingly decided.
CS No. 121/10 24
Mst. Aman Jamal Vs. Mohd. Shamim & others
22. Issue no.3:Whether the plaintiffs are entitled to a decree of permanent injunction as prayed for?
Ld.counsel for defendant submitted that plaintiffs are not having right title or interest in the suit property, therefore, they are not entitled to any injunction, but keeping in view the discussions on all the issues as it is held that all the parties are co owners and are having undivided share in the property. They are also entitled to protect their interest in the property and also preserve the property but in case any third party interest is created by any of the party, it will prejudice the rights of the other parties and will also cause irreparable loss to the parties. The plaintiffs are having the right in the property. Balance of convenience is also in their favour and if the defendant no.1 creates third party interest, it will prejudice their right in the property and will also cause irreparable loss, therefore issue is decided in favour of the plaintiff. Plaintiffs are entitled to injunction against defendant no.1 that he shall not create any third party interest or part with possession.
23. Relief.
In view of the above discussions, a preliminary decree is passed that all the sisters are entitled to 1/8th share in the suit property and 1/24th in the share of Mohd.Shamil and the brothers are entitled to 1/4 th share in the suit property and 1/12th in the share of Mohd.Shamil. The plaintiffs are also entitled to rendition of accounts. The defendant no.1 and 2 are restrained CS No. 121/10 25 Mst. Aman Jamal Vs. Mohd. Shamim & others from parting with possession, transferring, alienating the property or creating third party interest in the suit property. Decree sheet be prepared accordingly.
Now to come up on 19.12.13.
VIRENDER KUMAR BANSAL ADDL.DISTRICT JUDGE08 CENTRAL, TIS HAZARI, DELHI Announced in open court on 26.10.13.
CS No. 121/10 26 Mst. Aman Jamal Vs. Mohd. Shamim & others Suit no.121/10 26.10.13 Present: Parties in person with counsel.
Vide separate judgment announced in open court a preliminary decree is passed that all the sisters are entitled to 1/8 th share in the suit property and 1/24th in the share of Mohd.Shamil and the brothers are entitled to 1/4th share in the suit property and 1/12th in the share of Mohd.Shamil. The plaintiffs are also entitled to rendition of accounts. The defendant no.1 and 2 are restrained from parting with possession, transferring, alienating the property or creating third party interest in the suit property. Decree sheet be prepared accordingly.
Now to come up on 19.12.13.
VIRENDER KUMAR BANSAL ADDL.DISTRICT JUDGE08 CENTRAL, TIS HAZARI, DELHI 26.10.2013 CS No. 121/10 27