Karnataka High Court
Hajarabi vs Jainabbi on 26 September, 2008
Bench: V.G Sabhahit, S.N.Satyanarayana
IN THE HIGH COURT OFAAKARNATAi€3§~..
<::RcU1'1' BENCH AT;:i)}i,§:;R'»§J§°s}I) -- =
DATED mis THE 26% DAY G'F__Sf:_'5I5'TEMBE£E, :>..0'os.__" »
PRETSHEN3' . % .V
THE HONBLE MR JUS'1*£¢E1V.G;s.«j$HAHi3'
THE. HOIWBLE MR'q't;sT2(;I:§s.:§;éATY.aNARAYANA
REGULAR F112s';'..»§PPaA.L. 1§"c;_.2'0<)3
_..R::«fA.5gj1::_0ss Q.:3 .JE§:'.rf:or~: $46.34»/2004
In ' '
8ETwEEVN;' . ' "
1 ..E~IAJAR.ABI..I- .
.. W] O.GAF1....IRKHAN SOUDAGAR
' EX"GE'D.82, GCCEQHOUSEHOLD WORK
_R,'. _0,B;~<::.N0. 1 13, CAMPBELGAUM
~. V'Si§{;*\_N'f;.§:'§iRKHAN
S;'.O;£§AFURKHAN SOUDAGAR
z'-£633.62, OCC.BUSINESS
'~ vR{iO.BC.NO.113, CAMP
BELGAUM. . .APPELLAN'I'S
M *. (Ey' Sri ; G BALAKRISHNA SHASTRY )
* !'sE\I§3 :
: ' JAZNABBI
W]O.GAFURKI-{AN SOUIIAGAR
AGED/72, OCC.H€)USEHOLD wom:
R/0.82, MARKET STREET
CAMP, BELGAUM
FAIZA
W/QMUSTAKHMEED HONGAL
AGE1150, OCC..i~+IOUSEHOLD WORK
H.NO.23, KHANAPUR R0AD,..eAM§=
BELGAUM
'BiLK§S _
W/CLABDUL SAMAD Ki~1.AN.APUR-I
AGED.-48, <)cc.H0usg1~§o1,D WGRE~{__
R/O.NO.3633, Kr§ANJAR._GA.LLIV
BELGAUM
AKELA A
{)1 0.GAFLIRKHAr:"«s0UDAc3;5R' 1 "
AGED.4;6','QC3C.H;QQSEHQLD. ~~. _ __
R/O.[ii,E>JO.§32,._. MARKET
CAM33', SELGA!.}M"~ff-- M.
QEAB-BEN' ' %
W}O.'MOHA£V1_1y€EDR?s«Fi'Q MULLA
AGE:D_.42, CiC(lH'QU;SEHOLD wow;
V _ 3/ 0. };8,V_1m:3f1----MA. MANz:L,
P 3 RCAD,._NEAR SUXT PROPERTY
" B;LIN»agaLow,"';8--ELGAuM
" V . I}»2j*I?z*2a;%;K}§AN
. , 3'/c;~.,<3m?URKHAN soumem
' AG_EI3t_-€~{), OCC.'I'RADE,
R-]O.'S2, MARKET STREET
~~f;?A'MP, BELGAUM
" SHAKEELA
D/O.-GAFURKHAN SOUDAGAR
37 YEARS, OCC.§~IOUSEHGi..D WORK
R/0.82, MARKET STREET
CAMP, BELGAUM
ILYAZ
S] O.GAFURKHAN SOU DAGAR
MAJOR, OCC.SI'UDEN'I'
10
11
12
R/0.82, MARKET STREET
CAMP, BELGAUM
BiBIZOHRA .--
D/{).GAFUi?I{I~~IAN SOUDAGAR
AGED33, OCC.HQUS;?3_H{}LIL} wmex
R/0.82, MARKET s1'REE'r"
CAMP, BELGAUM
KADARKHAN yr," C
S/QGAFURKHAN
AGED.32,V_OCC.S'w.E1ENT, .
R/O.82.,M_ARKET %
CAMf?,j._nBE:L{}_£';L.II%'!
AY1i13,1<1i-$25,151 GA.F:_fiéKHAri"' SC?13 [)AGAR
.AGE.}3;30, 'é::2:gc.&;w_9ENTVV...
<R/0f8'2v;'..1MAF%KET£*?REET
TBEL{}A!J_M.: -~.., M=.
AH'AMi&:i,)ALI " '
-- . s/o.§«;QHAMM13m%iUss1AN SHAIKH
MAJOR, '{;)CC. SERVICE
R;<)';§;.No.6'i,"Ixz:AR1<E:T STREET
15
.,C1*.MP,"~--B_ELGAUM
AޤDULSAT?AR BUDANSAB BISTI
MAJQR, 0630. BUSINESS
E?/()'.§~I.NO.61, MARKET S'I'REE'}'
" CAMP, BELGAUM
Q J SUMIT
MAJOR, OCQSERVECE
R]0.HC}U No.23,
KHANAPUR ROAD,
CAMP, BELGAUM
MUSHATAQ A HANAGAL
MAJOR, OCQSERVICE3
H.NO.23, KHANAPUR ROAD
16
17
18
19
29 .
KARNATAKA BANK
23
CAMP, BELGAUM
BABUSAHEI3 M NADA?'
MIKJOR, OCQSERVICE
GROUND FLOOR, H.NO.48
MARKET STREET, CAMP V
BELGAUM
MOHAN G GODLUR
MAJOR, R/0.133' FLOORV ~
H.NO.48, MARKET' S'FREE'§'~.__
CAMP, BELGAUEV1 _ " ' .' V
ABDULLATIF AB9U:}A:«:j'2;':EsAN<§Ai2;::i;'_'_.
MAJOR, C{":c.Bu.s;reEss'- % A
R/o.H.:N0,5;3., MAR;__<:E.'.i"
CAME.
mg MAf¢A%}ER~- %
SYf§_{)IQA'F»E i3A--N_K'-- " *
CAME, BELG§A{3_M=.,
THE MAINAQER .
SYNIBECATE BANK
* 1. MAINBIEANCH, BELGAUM
'fi§§3'."M;'{i\Ej5sGEI?
STATE: BANK OF INDIA
N£AINBRANCH, KHANAPUR ROAD
BEILGAUM
THE MANAGER
KAUOLKAR GALLI
BELGAUM
SHAME}?!
W] QHASANSAB SOUDAGAR
67' YEARS, OCC.HQUSE§~IOLD WORK
R] C}.MARKET STREET
EN RFA.CR€)B N0 34 OF' 2004
BETWEEN
1
JAINABBI '
W/O GAFURKHAN SQUDAGAR-._ "
72 YRS, occ: HOUSEHQ_L1'3_WORE{__ ' .
No.82, MARKET STREET;£I'._AM P
BELGAUM. _
FAEZA
W/O MUSTAKHMED V ;A
50 YRS, occ; HG'US'EH¥OLD_'WO§<'K:. *
2~1.N<:>.23,' E{IjIANAPUR'wROADV VA
CAMP:
kw; O"A.I%3DULi"fS'AMAD KHANAPUR¥
'43 Y:2s,'c;».c<;§ 'HQ'LI_SE--f~IOLD WORK
R50 NO.363-3;. KH ':é.Ja.-R GALLI
8;sLGAuM'=-- '
'AEQEELLA-» ., " "
" we .GAFURK_H--A'N SGUDAGAR
46:YRS,._ OCC HOUSEHOLD WORK
R./0 N'O..82, MARKET STREET
«'c:...§M;?, S-E-LGAUM
ZABEAEN
MGHAMMEDRAFIQ MULLA
42. YRS, OCC HOUSEHOLD WORK
" 23, FATIMA MANZIL, P 8 ROAD
M BELGAUM
IMTIYAZKHAN
S/O GAFURKHAN SOUDAGAR
40 YRS OCC TRAQE
82, MARKET STREET
BELGAUM
10
11
SI-IAKEELA D] O GAFURKI-{AN SOUDA
37 YRS, OCC HOUSEHOLDVWQRK "
32, MARKET S'}'REE'I', CAM"? BELGAUNAI ~ [I = ' _
mas S/0 GAFURKHAN SOU.DA--{}AR _
MAJOR, occ: ME:)1cAL'42s§RAcI%~IT1oNET:r§
32, MARKET STREET, CAN}? '--
BELGAUM
BIBIZORA D /0 GA€3'U§'?KI;:i;"5N"S()U'DA(3rAR
33 'ms 02:: HOUSE'I~i'C>LD:'WQRK'ww.
32, MARKET STR.EE"_I;.CAM,P ' " '
BELGAUM I
KAQARKHAMQ - ,* ' '[.g
S/O' (}Ai§'URKIr'i}'i1§I SOUQAGAR
32..Y_Rs,_ 0E;g::,.Bi£s;m::ss...,,.,..
R10 82; MA§?1<m".<:¥r;2EET, CAMP
'13E1.,GAUM'j~-_,_' ~ -
AYUBKHAN C;z3;FLr§;2;HAN SOUDAGAR
_ 30 YRS, 00¢' BUSINESS
i we N<:}';a2, MAEfKE'I' S'I'RE}3'I' CAMP
" ' ..... ..
AND ':
1,,
ACROSS OBJECTORS
T' sgfsfy' 314%-v::_:R}XV§K'l.IMAR.DGOKAKAKAR )
.}%;%JARABAi GAFURKE-IAN SOUDAGAR
3:2. YRS, occ: HOUSEHOLD WORK
B.C,NO. 3. 13, CAMP BELGAUM
H SIKHANDARKHAN GAFURKHAN S€)i}DAGrAR
62 YRS, GCC BUSINESS
B.C.NO. 1 13,
CAMP, BELGAUM. ... RESPONDENTS
(By Sri: G. BALAKRISH NA SHASTRY, ADV. ) ' THIS RFACROB IS FILED [V0 41 R 2:3.' R/wi' 4_ 151 OF eve AGAINST THE JUDGMENT AND'--DESERVE .131'. " ., 16.6.08 PASSED IN o.s.Nc;.65/92-:0'N~--T1»~m FILE'-.01? *i'HE<.. 13521.. CIVIL JUDGE (SR. 1:>N.), BELG;\U--M", P.txI§§_T1..Y. I DECREEING THE SUIT ma PAR'I'I"{*IOF£ AND'PQes§:ss_I~a.N'--.. AND RENEITION OF THE V.AC.-COUNTS ONL';~'u'I"O we _ EXTENT I'I' AFFECTS AIBVERSLYVTHE"E1'sI'1'ERES'F..:'O'FV THE * CROSS-OBJECTORS HEREXN, IN' f1f:+iE_ sure .9m-'PERTIES. The RFA and ._(1ro_;€:. s.s j. on for hearing ans} reserved for'j1ie¥;g::;e3;it,} .day'_ SABHAHIT, J., pronounced the followingg" V 1 e 3 £2.96 ;hrEz§é* e L This eejecfion arise out of the judgmeViif"jjas5.§e§1 flPr1.Civfl Judge (Sr.DI1.) eelgauniix:.o'.s.§:§'.'es}9V§e'-Lriaxed 15.5.2003. The appeen is filed piaietifis being aggrieved by the judgment " passed 'b3?--the {Tia} court in so far as it dismissed Tst1it'<;:_f"fl:1e jaaainufl partiy and cross objecfion 34/2004 is 1 to E 1 in the suit being aggrieved by the Vfinding 91; issue Nos.1 by"the trial court. ' H 2. The essential facts of the case leading upto this u and the cross objecfion with reference to the rank of the palties before the triai court are as follows:
W3 ().S.No.65/91 was filed on the fiie Belgaum by piaintiffs 1 to 5 defengiéiiiiie' 'te' b During the pendency of the suit Ne.'3, diedA. .. LRS were brought on plvdef d__ate<j.1l1 '}'he suit was filed seeking for a ~agai_nst f}ie«defefidants for awarding plamfifi No. 1/15¢»-
2 and 3's;
14/1609' share each 5's sham of ?/160*'1 'jfifcpeefies A to E and a separate A' 'equ:itable partition in metes 'teiéiéiitjeet.-'defndant No.6 to furnish the accounte the from the accounts of Gafu{z;i<i3.a,31 arid fer mense profits and costs. ' :isT'aven*ec¥ in the plaint that the propositus~-- Soudagar had two wives by name V «V (PIa_i11tifi' No.1) and Smtdainabbi (Defendant H " iggrzégé plaintifie 2 and 3 are the sons am pxamries 4 and .' daughters born to the fixst wife of Gafinkhan Soudagar. Defendaxats 6, 8, I0 and 11 are the : sons and defendants 2, 3, 5, '7 and 9 are the daughters born to Gafurkhan Kadarkhan Soudagar through second wife- I0 Jajnabbi(defe13da.nt No.1). Defendants 12 andgzhe tenants in occupation of the property bi":aI'i31g "'.§O11:S€:x situated at Market Street, and 15 are the tenants in occupatien__ E16 No.23, Khanapur Road, Be1gV:a'131:ii:..VI)efe"nc1a:1ts: V the tenants in difiefenf, <§f»_ siiuated at Market Street, camp§eé1gaum§'§-»%,V No.18 is the tenant in the sues: camp Belgaunx they descxtibed in schedigle '«'_C'1 lying with defendants 19 to 22-- the all of them are arrayeci as neecfséaly fo the suit. S(':hedu1e«A Comprises of the 'V :V%:ii;3movab1e properties. Schedu}e«B discloses purchased in the name of second deiL<nda_i1'L-.LA«j"'E§cheduIe--C discloses bank deyosits, fixed iiepoeiitsi deczeetal amount of Gefiukhan Kadarkhan " Schedule~D consists of descxiption of the VM Kadarkhan Soudagafis share in the firm Noble Shoe Mart and s<:hedule«E comprises of the amount due to» Gafurkhem Kaéarkhan soudagarg Gafurkhan Kadarkhan ll Soudagar inheriteci the properties bearing hoiiee V' and 23. situated at camp'4BA>eI'g;m_1t;"Vfeithe§r. Out of the said ancestral prepertiee Soudagar sold the property hheuse at Market Street, Belgaumend zeeeived-fey him on seiling the said fixed deposit as described 2'11 s¢:;ee3Tu1e--e' 'to :the_::p3;§i1';tt. ' ezfittt er the remaining two No.82 is being mad'? residence and the house:'-.§\Io.23Axvitésflteetgt'iet:but defendants 14 and 15 am} Gaf!Jrk}1e;r_: inherited at large extent of pmpiertiets ffom.. fat"::he:r. Gafurkhan commenced a shoe the name and style of 'Nobie Shoe Mart' in the Belgaum and he took the CTS.No.1961 and 1962 situated at Ramdeo Betgaum on lease from one Sripaudit Bhimaji Potdar his shoe mart by eenverting into a partnership V' l' consisting of himseifi Sheik Yakub Shaikh Ibrahim and plaizatiif No.2 in the newly acquired building in the name anti style of 'Noble Slaw Mart'. In the saici partnership fixm E, Gafurkhan Kadarkhan Souciagar had 25% profits and losses, which is descritjeii at fito--7the'g piaint. The said firm was looked ._ Sheik ibrahim and the firm V:is--.fic:it33er.v.ciis.s;c*}Ji:ti:§1 the ' A lifetime of Gafilrkhanv 'I;-or_. his death. Therefore, the to exist and ihe p1ainti.fl-'stand mg being the heirs of the share in the said firm. _ are not yet settled.
No.2 share in both p rofits and iosses. that. property described in A schepfilile. of fhenialaifxt are the ancestral properties of iiadarkhan Soueiagar, which were inherites by of his father, being the son of his father. Uni" of .tI:1eT"' ancestral 13I'0P€I'1:ies Gafurkhan Kadarkhan soid the pmgeerfies beaming house Nos.48 and 63 name of the seeoad w'1fe-firs£ defendant axzé the sale ~-consideration received by him has been kegt in Fixed deposit which is disclosed in C schedule of the plaiat and ancestra} pzoperty bearing house No.23 has been lei; out by Gafurkhan 3.3 Kaciarkhan Soudagar to defendants 14 and and Gafarkhan Kadarkhan Souti.éiga1'« Qiit of derived from the ancestral propertieeiiagid outthe derived from the shoe aisedhi fort of maintaining the family,' He wee." sorizeameunt after meeting the expenses "said savings were utilised for the vv'V1i':i'o1::e:'ties bearing house Noe}: §i'r;t__ bearing Nos.48 anci of .éeco;;idfwife--eiefeI;dant No.1 and the "By Gafurkhan Kaciarkhan Soudagai'*Q_utt of and also with the assistance of the ,3;-tea-.stra1 have been described in scheduie-B it (if though the properties bearing house N0s.48 in the name of the first ctefendant, the seme have' tieen purchased by Gafurkhan Kadarkhan out of his own money. At the relevant time, No.1 had no income to acquire the pmperties and _,,_'i7F~;aS incapable of purchasing any of the properties as he bag. :10 independent eeurce of income. It is further averrecl that after ptirchase of the properties Gafurkhan Kadarkhan. let 5;',/3 EL, 14 out house No.61 to diffexexzt tenants and at pliesenis is in the occupation «sf defenciantsw1:'.2. b j Rs.?'O/~ and Rs.3S/- per naonth out property bearifig house'Ne';*é8 £oAdifl'eren%v-Vteiiekiite at V present the same is the of .tlefet:td:;3,?;1ts 15 and 16 respeetiveiy. house No.61 to different tenants. and of defendant No.18. was recovering the rent fimtn properties as we}! as the the tenants. The rent received' the utilised for the purpose of ttte' also to acquixe the properties. Theeefeie, tlzetttietiebers of the family used. to enjoy the ' It is f11rther averted that Gafurkhan i{a¢}'erk12.3iit:'E'.VSeudagar had fiied O.S.No.159/1977 against Mohairgrtied Yusuf Makmmsaheb soudagar for the relief of A "re performance and in the alternative for the refilnd of t the adva;:1ee'money'. The said suit was partlyu decreed on u 26.9.84 and enter was passed for refund of money of Rs.14~,OG(}/- with appropriate costs and interest at 6% per i,<>~5>.
15 annum. Gafurkhan Kadarkhan Soudagar fxlfiii Petition No.2(}8/198'? for Iecovery»A0f._the éL14:'1_QjuI3f£ V against the judgment debtors m':
considcratioxl in the said exécfifion pefjtian. céieathv . L' of the decree ho1fie;'»Gafi1r}{;ii;§"§z§__ VAvVv§3uda,gar, piamtiifs and defend&1v1it..§"bci;%1g cjatitied to receive the decmetal 'Vstheir legitimate sham. it is defendants 1 to 11 used tc; house: bearing No.82 at Mai§;ct._ Thereafter due to quaxtrels bemeefi' t.1§_e defendant No.1, Gafurkhan .askcd pia1'11tifl' No.1 to reside along to avoid any further bikering in the famiiy I for the convenience, of the family staIite€i.__vi'é:$ui€iiixg in H.No.}}3, camp-Bclgaum, Whereas the dgfetzéafits 1 to 11 am useci to visit the house wherein his was residing along with he}: chikiren. In trhe: month July, 1989 Gaflzrkhan Soudagar lost his sense due to brain tumor ané was advised to visit Bombay Hospital for the purpose of hcaith check-up. Accordingly, he was taken to '~\;;..i_,,,%'é , Bombay hospitai in the month of October, was detected that he was sufi'ering"frem V' ' Juiy 1989 onwards Gafurkhan sense due to brain tumor he ¥A:5'1"eaL13e<fib, expired on 22.12.1989, The r;1ece%§iseci'V£12as Haiizy will, as such succession cafie' 'Ab? 22.12.89 when Gafurkhan s0gd.agar ieyjely onwards, late coma and had lest his 'i 'aking undue advantage of Kadarkhan Soudagar, it is revea}ee1"V.}::3:ye~ §he= the recoxds that the sixth defexidant 1ias "\'vit}:v1'drawn amount from the accoums ' uaeee of Gafurkhan Kaclarkhan soudagar for 1sV.T'Vlj.e¢b1e for the accounts. Gafurkhan iiadarkhan Seucie13gar :iever executed any power of attrorney in favour of .A e1efeed.a:nt No.6 for the purpose of Withdrawing any money to " Ierge extent from his accounts. Qefendant No.6 has illegaly and "zmlawfuliy withdrawn his amount {mm the accounts of the deceased by misrepresenting the facts and therey misappmprmted ihe amount. Defendants 19 to 22 failed to g;,\,9g.
eonsifier the paxfieulars of w the money'7«.i_.1lega113% and unlawfully Withdrawn by the-' eixthfl ' Kasmataka Bank, Kadoikar further averned that de;fen.daz3.;Es"v_:1 T], ' have succeeded to the propefiy of Soddagrax-giescfibed in Schedu1e~A to E and entif_1ed&,vto as prayed in the piaint refersred toetxove,-"" e
4. included by way of amendmeiifie f1iataV."'Gafe:'*1&}i2;.1n Soudagar purchased the pmfirerties 38 and 63 in the name of his sister lbrahxm saheb Bombewale of and tI 1e"-'said properties were in posseseion anti 'Venjo'3}e2e_et;e.eef Gafixrkhan Kadarkhan Soudagaz: and he said properties held by the tenants even % _ though em seine were purchased in the name of his sister. Later Sitxaeifohaxabi expired leaving behind her legal heirs heirs entered azi agreement on 7.5.1952 admitting even though said properties were standing in the name .4 their mother-»Johezabi the same were heid and managed by Gafurkhan Kadarkhan Soudagar so as to confirm the pre- \,t-J'~ existing right over the said property. It is aiso :a've;j1fe_§1 likewise the property bearing house No.48 of.' was owned by Szti.Naraya11a Bhofeanoaaew imie an advance agreement sa1e"W:if.h sm;;.;q1:a:abi;« '*rhe--., said sale consideration paid No;=1 'fine said V' property was purchased t1qe"'i1aii;je of._§'.>mt.JoI3ai*abi under mgisterefi deed of sale the said sale c:::)I1si;:1eI'at:ioI1_..:-*;=i1¥o:s.1:z1'i: iiéae ' No. 1. Therefore,- after ,tl1e~ 1;§:.*f legal heirs executed agree1:ee.n*c of """/".'_2".i32_ in the name of the first plaintifl' the sale consideration amount Waeifiaiii byV.'I1erVv__ve1;ile purchasing the pmperty hearing »A l::V1'c"2.xz_V$e.VbvAI'i;o.~'~!¢:&:V3:~--.Therefore, ai} along the said propeI1.y && eoéeession and enjoyment of the plaintiff No.1 an§i"her:I1'1;"e.band. After the death of Joharabi, Gafurkhan V. got transferred properties bearing house Nos.3'?', 63 and 48 of camp~Beigaum to the extent of 5/731 endivided share in the name of his second wife~S1:nt.Jajnabi for a sum of Rs.3,00{)/- under a registred deed dated 29.11.1955. The balance saie eonsicleratien amount of \3,\j.?s .
19 Rs.3,00(}/- was paid by plaintifi' No.1 in the preseneefsf _ sub--~Registra:r at Belgaum to the sellers. partition amongst the legal heirs Hglteszfialfii» new beaflng house Nes.3'?' and caAt1:<1_e"to be share of Ismailshaikh the bearing house Nos.48 and 68. Abdul Gafurkhan Soudagar eveatnté sale in respect of the aforesaid in the name of the first was got executeé. in the Raise detefidatnt but the considerafioa was paid by uthe said pmpertzies were under the tltaixagetfieflt. V"Ga;ffi=.1rkhan Kadarkhan Souéagar. Thus, bearing house Nos.48 and 63 are the 1 and not the exclusive properties of first def€i1d9I§t.' - A 2 .. AA fiefcndanm 1 and 6 filed written statement averting
-- suit of the galainfifis is faisc and vexatious, contmxy trc " and éenied the averments maiie in the plaint. It was « aveireti that scheduiefi properties bearing house N0s.48 and 63 ncxmtioned and schedule B annexed to the plaint are \§~/3 20 purchased by the first defendant and plainfifi ciaim to scheduled?» properties on the grouné 1 V' deed in favour of defendant No.1 is henemi 4.'reaI, Vt owner of the pmperty was Gafixrkhaiix its averreci that under Section %~»§t._v"<')'f..VtheA'£1enam§Lbv.ft'ts§11eacfion " L' (Pm}1ibi.t:ion} Act, 1988 119 suit, ela§;'n.oi*..acfiei1' 'tO,.'CI1Af;}ICC any tight in respect of suit is not maintainable invzespeet'»of'fi:V1e He {ienied the aV€'iZ§€Ii'§£$':: "pa1*a¥7'V'V*ti:1at after meeting the expenseéi ofttze "ufae keeping some amount in deposit. "§'1ViVefg_ alsoV' defiieclflghe averments made that house _. Nos34Q "situated in Market Street, Belgamzn was Soudagar from the savings and Vaheeistance of the ancestral properties. it is V . fiuther that at the time of marriage of defendant Gafurkhan Soudagar she was given substantial g¢td"ofnamant$ and also other jewellery. Defendant No.1 fer Vt " plitehase of preperties mentioned in scheduie-B to the plaint " s0l(i_ti1e golé ornaments threugh her husband and purchased schedule-B properties. it is false ; that gm, 9:
"'x}";"\.»;§ .
22 cc3I3.strt1ct first 1100:' over the ground floor and fixed deposit mentioned at Sy.No.:3"Ais"t:rA_b'e ifozél construction of first floor over the amount of fixed depflsit fi2€%.3i3.!i€>ne£i "'(3; was utihzed by the sixth defe;1da1:;t"fee;_ediist;"uct}id1:-of~£i:r'st floor. It is further averreci entitled to any share in the 4, 6 and 8 mentioned i"(3__'V same is utilised for payme;:te...of" V jihe deceased-Gufarkhan. and for family property and the suit of the 'ifi the said items of property at S1. 4, 6 ere liable te be dismissed as the same is.;;§oz Law. it is further averred that in View of the defendants 3 to 11 have spent Rs'.25,0__€){);.--:"'fo1* funerai expenses of the deceased and also f0rs_1ast*ri.tes and rituals. The pigmy amount at S1.No.1 and 2 " amount stanziing in the name of Gufarkhan ....;£1enti0ned at S.Nc.:.'7 of schedule '£1' annexeé to the plaint, first defendant is entitles to 1/ 16¢ shale and the defendants 2 to 11 are joinfiy entitled to 49/ 30 sham. It is further \9«§*-
23 averted that it is true that Gufarkhan izlherried properties bearing H.Nos.6l and 82 both situated in MarketV--'sueet, Camp Belgaum and i~I.No.23 situated in camp, Beigaum. Gufarkhan had a brothgég VV Mohazrzmed Khan and Gufarkhan separate possession of his share High Court. During the ;§em1_ene}?"' 91"' Mohammad Khan died.__ G11farl;héi;'1.go't_Vho:1.$e'i\Fos.H€§:} and 32 and both situated at and H.No.25 Madxaeg Gufarkhan had taken premises' eituated in High street camp. Belga§i:m~.and A shop subsequently under the name ei'««._Roya1 Shoe Mart. Subsecfuenfly, for better to Grampatgalli and to Ramdevgajli, }3elgaum"W}::e're he started a shop under the name and style 'cf fNo§1e--~Shoe Mart'. it is further averred that on the expiry period of ten years menztioned in partnership deed, VA .,pz:--;rtnersi1i;9 should disselve. It is filrther averted that VV defendant N06 had came of age and Gufarkhan Wanteé {(3 settle defendant No.6 in his life and therefore Gufarkhaxz \;;n».£ 25 Soudagar succession opened in respect of the said Defendants 1 to 11 011 the death of .
and ate entitled to 59/80 the "' 'V preperties and sought for said shfixje 1733: 'bV{:j'E.1_IIK'3.3"
by paying court fee.
3". Having regard zit; theeabueie'}§iIeadinfiS;"?he"Vfol1owing issues were framed:
1. Wheflfler the properties shoWnVvdaf't£)"'E«VVare deceased Gafurkhan as alleged'? : d V . ' V
2. u'd'W11e1;1.;1e;~ prove that the suit v"II1CIL'1'fi'(3I3i_3(1'.vi11 scl1ed1}Je--B of the plaint were «deceased Gafinkhan Soudagar in the name of .?l3.".§t; from his savings and also with the income j 5:" properties?
AA Whether the first defendant proves that the d ciaim of plainfifis in respect of B schedule properties is '4 under Secfi of the Benami Transacfions (Prohibition Act 1988 as contended?
26
4. Whether the defendants 1 and 6 pI'Q$.?f3_' ' amount shown at S.No. 1 of 'C' schedule has improvement of H.Ne:>.82 as contenc2éd"'?"' « ¢_
5. Whether the deferici-ants V6 flfic amounts shown at S}.No.3,4,6'vL4a.#§é 8 of '(3._vv$(:i1cc¥§;11e have been utilised towards late Gafizrkhan'?
6. Whegiicr pi"os.r'F.,:' 'that they have spent "'tLii3;*2§rcis expenses of late Gafurklzian: are liable to coxttxibutc to the extent <V3 f=1:11cirV éontcnded? ., defendant No.6 pmve that late the entire shop including his tenancy his favour as contended?
Whsther the plaintiffs plmve that late
-' had 25% share in profit anti iosses in the firm j 'IsfibWn at schedu1c--D as aiieged?
9. Whether the defendant N<:;s.1 and 6 are liable for account?
\v;.,} 27
10. Whether the court fee paid " V correct?
11. Whether the entitléfl respective share in suit pmpertieef' _
12. To What ordei"oi"dee§ee'?' V
8. On behalf of No.2 was examined P33. On behalf of the Soudagar defendant No.8 2 and Jafa1'beig.:::. Inamdar was exaeainec1A'osp4DWto D18 Wen: got marked. The trial com"; eoéieidexing the contention of the ieamed fovz':""'{A11e parties and appreciating the oral adduced by the pa.rt1e' 5 before it, by 16.6.2003 anewered the above issues as '««___foHoWs: " 3 '._p_'fA';€;s11e No.1: The plaintiffs have proved that the deceased has left behind the pmperfies mentioned in A, I) and E schedule properties and properties mentioned at S1.Nos. 1, 2, 4 to 8 in C seheéule. Issue No.2: In the negative.
\:--~9> 28 issue N03: In the negafive.
issue NO.4 : Does not survive for consideration. issue No.5: in the negative. t Issue No.6: In the negative.
Issue No.7: In the negative.
Issue No.8: In the aflirmafive.
Issue No.9:fn the afirmative.
Issue No. 10: In the affixmatjve. « issue No.1 1: As per .
Issue No.12: As per the and accordingly decreedtne' 'siiit in part by declaring .1 and defendant No.1 are enfifled At'o__ 41,! 16¢?' and piaintifiis prayer for pmfifien cf tne eemperties is rejected. Defendants . t 1 iiie éiitjected Vtettxender the accounts for the amounts account of the deceased menionted at 1:116 suit C schedule and both the parties are '.._'"d.i1"ected' render the accounts of rents and profits if any by them from the above mentioned pmpertiestfor ..." ""adjfa2stment of the rents and profits in accordance with their fl'vsha1'e and partition of the immovable properties shall be efleeted by the Court Commissioner to be appointed as per M 29 the provisions contained in Section 54 of aggrieved by the above said judg*mez:t«d;_ate&1., 16.6.2003 passed by the trial this appeal and cmss objecti0i:_:is~...fi1edAb;: _defeiiidAat"1if£'s?"'1V 3:6 1} " L' in the suit.
9. We have 11ea1vwd<--..{i1;eA i1ca1f:1ed"V~ appearing for the appeflazfis and the afié heard the learned Veftisss objector and the responfiéfim. Emsé' QI3jectib§f1';' V 10; {he contentions urged by the learned for the pazfies in the appea} and thev' (.:z1Er}$s~§f3b_ject:io1:i;'« the points that arise for our A L-deferniiziaijén Ezhis appeal are:
_ » ' Whether the finding of the ma; cow that " died leaving behinci the properties comprised in Schedule-A, D and E of the suit schedule properties and properfies mentioned at S1.Nos.1,2,4 to 8 in 'C' seheziule properties and that the plaintiffs and defendants 1 to 11 are entitled to \§2_,\,S€>u 30 ',%:.._eé' ' $9.1" "- ' .'u a share £11 the said properties is }{1S'£LOI'. jcallsé interference in this appeai?' A
2. Whethtar the the on issue Nos. .{,4,5,6 "and 31" is or cafls for interferencé
3. Whe§11€fm £.he court that the Iififusé No§.63 and 48 item M '..iVIV1VVVI§?~'v4schcdu}e property is the and plaintiffs are not _ eiiifitltgd in the schedule property is 3 _:]T.17ii'§)1?i.f.i¢fC3 ;{V)'I"'a'£.*c".i1lVS for interference in this appeal?
V the finding of the tI'ia£ court wgaxfling V___vs1;3£i*eAéaflotted to the plaintififi and the defendants is z jiistififitti or calls far iI1tCI'f€3I'C}1CC in this appealfi t V' * ._ What Qrcler?
we answer the above wants as foliowsz Point No.1: The finding of the trial court is justified and daes not cal} for interferezzce in this appeal. ._\-A ;:-3'_,\5'_:M_H_\L M , \'\a:-uF;;'*. 31 mm No.2; The finding of the ma; cour_t:"i:3:
and d{)t':2S not cal} for intetfetttnce in this V Point No.3: The finding of gig: %:9111v.*t* is and does not caii for i11teIfere1:+ce in 1 Point No.4: The f1I1ding"'cffi.i;11e jttstified and class not call . in appeal.
Point No.5: in_vievt% 1, is 4, the of the g;r;a1_ VVf<tt:fittterfcmnce in this appeal for the V 1}; '~.}%:()IN;FS J:Thcsc yoints are consiséered tog¢t§1er itztemonnected and to avoid V. is; clettttttxtnm the perusa} of the pleadings ans} by the parfias before the trial court coA1x.sz.g,)x'§.s;E3:1g_Vt' evidence of PW1-fomth plainfiff, SW. 1- No.8 that there is no dispute among the gaarties Vt tha fact that Gafurkhan Kadarkhan Souciagar was __t1:§c pmpasitus and he died due to ailmexxt on 22.11.99 afier tn'-zatmcnt. It is Well settled that in Mohammedan law the parties wouid be entitietd to Share only after the death of the \9J\ 32 propositus and the question of ancestral and 1 "
pmperty or joint family properties de"i}ot.a:.§:lt3ly_.vl.tc:$ lauci, the parties have a fixed share the deceased in accordance With_?.t.'1e Mt:$h.amI1;1etlai:;Vl;aw.":it is " V the contention of the pla5.t_1.tift's'V.tt1;tt"_§:el:erlu1eé4A,B,C:D and E properties are the ll _ by Gafurkhan S-audagar 11 are entitled to their law in the said properties. eeggltetntion of defendants tl1at pmpefty H.N<>s.63 anti 48 and item No.C3e..ef tlte are in the name of S€ivC(lt.1'dx"é'*?if€ ef Kadarkhan Sotzdagar and the » "net entitled to shame in the said properties. It is of the defendants that Gafurkhan not have 25% share it} the Show mart as ';;1v.r_e;'z*etl" 'by the plaintiffs and the said pmperty has been oraliy along with stock and trade in favour of sixth l V' " "defendant and wherefore, the plaintiffs are not emitted to share in the said property also. \9J> 33
13. In order to substantiate the conterxigioniid ~ panics, p1aintifi' No.2-Sikandarkhan u"
and he has got marked docuineidis substantiate the contention defendaniisd; f;ie.fenri{ant -. V L' No.8 has been examined as fie lies DW2 reganding the man; who is not a party to the suitand $11) 18. It is clear fxom the reiterated the avexmente stated that plainfiffs are enfidiedv .s{d:;edu1e properties described in A to 'ofdfhe Iias got marked the documents Exs.I§1"to Véoszipgoertdtdof his contention. It is eiicited in 'med. of PW. 3. that his grandfather's name e'2x2*e.s~ Kadarkhan Soudagar. He had two wives and one'--..__€1s1_13.gt:1;£e1*§ Mohammedkhan was his eidest son. was his second son and Zoharabi was his and his grandfather had held house properties I\Eos.6, 82, 60 and 84 at Marketstreet camp, Bvelgaum and house properties at No.23 Khanapur Road and his grandfather was tanning the busifless of Royal Shoe Mart '\9~o5'> 34 and his gransrather died somewhere in 1948 to 19;:ébzane thereafter in the partition his une1e~Mo11am1ne;i~~--K};s__i_1'Weiss given. to his share house Nos.6O and 62 Camp Belgaum and his father ..3:éas Nos.82, 84 of Marketstzeet and 'mad and also shoe business"v;s1:;d hjs"'fs_the§i= 1«ié;d'VV started V' residing separately ,3 eéiutheféiepesed that she was assisting his He was also doing shoe buses;-ess 'at; 'He was alone in eanyiiieg en ..._1__1s3der the name and style 'Rpyal Shoe M:;.11::%'a:. It is further elicited in para-21 of his *c;oss;exa1 I1i'1§ati£>n 'that it is not true to suggest that heviise of marketstreet are standing in the :'fi fsf.cI,efendant. He has verified the GLR extract of these Even now, these houses are standing in the nanae .'£?.e}1a1'abi. Zoharabi is his father's younger sister. He fjmuduced GLR extract of those houses. It is true that the deeds in respect of houses 48 and 63 are sfanding in the name of fins: defendant. it is hue that Exfietition 35/95 is stiii pending. The said execution petition was for recovery \3~\}>-
35 of Rs.14,000/- by defendants 1 to 11 and recovered under the said executzicung ' his cross-exam1n' ation that it is fie; tie_iie'[vtoTT'sn_A g'g.est, brother--I1iyas was with hisV»{f£ fi:her aii" sjiiiyas" V was knowing about tee vhexyas eftendiné more on his father and since V Ifigres, his father in Mumbai also a.i;nv th¢..vvj;e1iS§fi; iixiet attend to his college. it eeféfidants 1 to 11 have met an father; It is further eficiteti that he was not personaliy presen_t w1_1en 22 executed. It is not true to suggcet 'father teas looking afler entire transaction «. flf to note the same in the notebook. _Ii: to _ieuggest that he house Nos.48 and 63 were ekclesive of fust defendant.
'A 1934} DW.1-Ilyas Gafixrkhan Soudagar 'is defendant the suit and he has reiterated the avennents made in "the _w:€it%:e13t statement in his exaztnination in chief. He has stated in para-6 of the examination in chief that house No.63 aué 48 described in Schedule-B are standing in the name of \);J* 36 his mother. His grandfather i.e. mothefs father had given goid ornaments to his mother and by selling T1101?-'_> gold omaments his mother purchaseci those two l10i1»§3e--sf.'._ His name was Abduirehman Shaikh. He had position. House No.63 consists of t is in possession of a tenant and chilciren of pmmee No.3«Hasa_Vint"keahafi is neiv.: His"? mother alloed them tofstay ivithotlt payment 0f rent. House No.48 céaeiste In the ground floor there firs': floor his elder sister--F'ajza Mustaqezhzeerl (dare;-1fda§i1:-- term; is residing. His mother is collectiilg ffifif tlitaf: tenants of H.No.48. it is not true-to " father had purchased these two houses A fx'am'tOt1tf<}f income in the name of his mother and it is met t;:ue.vtAteAtsuggest that his father had incudcted tenants these: houses. He has further eieposed in his cross- V 'x,exa.%§ination that so far as A schednie pmperty, they have __;rfever xefused the plamfifis to give their share. The house groperty situated at Bhaékalgalli was purchased by his father in the name of p]aintifi' No.3-Hasankahan. At that \§»\.3\ 37 time Hasankahan was studying in 8* or 93* income from any source. Pie hadeenaté aftag xiniiiéetiit. ' j the time when the said house marked documents Exs.{)1 Ifis elieikgi '§.:ross--* V examination that his da:e%_'§ifA-»,:t;im; fig "«2Q,1251954. He compietcd his eduesficifiz His marriage took place on 26.10.. 1 997. io 11 have given instructions statement. The geneologr vcorrect. Gafurkhan was dealing' He sag rich by birth. He had ea1'i1ecizA"gp<i<1 business also. It is further elicited cities iiotvknow as to whether his father was .- «. 011 iee-itiziier business. It is true that Kadarkhan iheii had a shop in martket street, It is business dealing with ieather articries. it is true ,t1iat during 195869 Gafurkhan had started a shop in ":i:V'_Grsis[s_patga}fi, carrying on business in ieather arficies. It vééas a rented premises and the business was run by Gafurkhan in the said premises for 15 t9 18 years. It was his proprietary concern. Later, he shifted his business ta \9«§* 40 gandfather had advanced money to Jainabi. it is not true to suggest that his maternal gra11dfathe1* had no capaei§y*e'.f';§je;9ay such amount during 1955 and the stantiing the name of Jainabi were '4 u and he was collecting rent from eiicited in his cr0ss~exami;1atim; thafit is notefiige itoz s'1i'g5g"e~.=;f'p that his mother never freated pmpefiies be; separate properties from the V fiate date of depesition, He did nofg about non--
payment __of; AV de»f£:n_(1a11'ts 12 to 18. He had made enquiry?' shown in C schedule. These depgjsitg weeee-iyitlgx name of his father-Gafurkhan and ., is of these deposits. He has denieé :t1<:e V$ufg{ge$i§_C§I;V'.:~fi1at p1aiz1tifi's are requesting them ta effect 1:A)a-3.ftitig;:I;~ the family properties and to filmish accounts. DW.2-Jafarbeg Yusuf Beg inamdar has deposed evidence that he knows defendant No.{S--imi:i;azkhan u wazad piaintifl' No.3--Hasar2kha11. He started his business during F973, since 1975 he has got aequaintence with said Hasankhan and imtiazkhan. During 1995 they entered into WV?» 4i comyromise. The fanlily has get presgaerty at Camp. 111 the eomymmise it was agreed that };£a1a'iu to vacate the tenants of -oieft possessien 01' the same to agreed that the property given to themother of in his pzesence. At that time eee' Shaikh, Waheed Mtsnrafiabatii, :were also present. After <:0m5;'3ri.s,e; Vc$fi'.£:.. «also written. As per the eompimmisett --g§Viteitvs3_§i'itter1,' thereafier the same was get typed ex; 5 tbotnd has pmduceci the same as per Ex.1Di8_ V-}1:¢is"'ide}:;~.tiiTied the signature of Hatiz Isa and is Veiteited in his cross-examinatien that he emne 'vet-jntaéet with Gafurkhan in connection with his 1eather.~b1§$;ifiess. He does not know about the other two np;~opert_it;es said to be situated in that street. He has not made 'at;§%.«'famiiy settiement éiuring the lifetime of Gafurkhazz. He _i:i1as no knowledge abcmt the afiaim 0f the family during the iifetime of Gaikrkhan. He dares net know whether the property situate at Shadkalgalli is seifwacquired pmperty of \_>'2J\ 42 Hasankban. Hasankhan died about five years--'..e;'go examined on 27.3.2003). He was aisO'--ea11j{'iz1g;< in leather at Khattiehazar, Be1gaum.'»':He:1§$%ae nevi ._ . JL113-h Imtiazkhan ané I~iaS€i31=V>"1fi33 aleil'? *<"?°.I[VI1""v=-T for"? settlement for a peri0<;1.of 18. He cannot remember the ()_f_fi u given by given by Hasankhan I decision as to how the per the agreement, crs.No_.4§ev~;eVe- V: fiom the tenants. Likewiée, vacated by Hasankhan and as per the ='£e rx2:s' tifl dézte they have not iIl113]'!i§$t23.1tCd'V as .,1;eVlV§owv't1ze properties are to be shared. ' " _1"54.:l't eiear from the above said evicience adduced by the the 'trial court that evidence of DW2 is not heipfdié' :0 the parties as §3}x.D18 has not been »iiI1pie;3:1e%1ted even as per the fact elicited in the Crass;
-- e;§ei1;einafion of DW, 1 and further, legal heirs of plaintiff No.3 defendant No,6 have not been examined to Show that there was a compramise as per Ex.}Z)}.8. it is clear fmm the facts eliciteci in the emss-examhiafion of I)W.2 that he was \%,9* 43 not aware of the afiairs of the famfly during the lifefime of Gafurkhan. He knows littie about the partition suit between the children of Gafurkhan through first wife and chfldxfen of second wife. He has no knawiedge about the "igfft behind by Gafurkhan and Ex.{)18 has and wherefore, evidence af DW.2:'i駻ii6'€« b T in the present case anti therefo1'e,.__ 'left. evidence of P°W.1-piaintifi; e:1efex;§ci:_~;1i"£;vV4I'ii'(;'.t§:--DW.'7tV and the documents got _to éahvefmifiate their ccmtentionf ' is Ve£eé£r._én::_';*ipprcciation 0f the evidcnee of PX'-V.1 {JV-1.1 a$ contents of the documentary evidence ' parties that the evidence of DWK1 and the " '-- fifoduced by him would clearly Show that has left behind the preperties Comprised in V " ;3.§hedu1e~A, D and E and S1.Nos.1, 2, 4 to 8 in C schedule. 'Eiewever, his evidence is not hlepful in proving the T contention of the plaintiffs that properfics 'bearing heuse i'~E0s.63 ané 48 in E3 scheduie which is standing in the name cf the first defendant was pmchased by Gafurkhan out of his \9»\/3 44 own income benami in the namt: of his wife. of the document Ex.P23 Wouid cieariy show; "
property comprised in B SCh13C§§L'lé"iS'pi1i'Qh£;§f3E§CiV:v3:}}' d€'ff€1ii3.{~i;fij No. 1. The evidence of Dw.
defendant No.1--Jainabi 'n1g)t}i§ér the suit property by sellipg gQ:1d----;iif.'3.:§in.§§11t.'¥'.' i£?hi<:hA..*:=a'as given to her by her father. shows that father of Jah1abi«§ijm dr::iEii1flé 1:11; sound. The contenf;§0ni'~..9f _ :(f$<":}¥1sici-.=:rati{:I1 amount for by, Gafurkhan in respect of the the name of first defendant in I'F'Spt§Ct {Sf prepertiés is not substanfiated by . «V z3§:$:tEé1*3'aI' an the contention of the plainfifls that puzchased benami in the name of first Qkautd E A »..g1efend£iifi,'is also not 135%» as it is clear fiom the material <:13:1"r§£:-orci that the contents of the saint: deed does not Show V. amount was paid by Gafilrkhan. The evidsncc of DW.1 is not at ali helpful to substantiate the said contention of me piaixztiffs. The stock account in Ex.P3 that Rs.3,0()(}/- was paid by Hasankhan is also not helpful to the plaintifis to \9\,.% .
45 contend that the saint pmpeety was purchasged pIa1;:1' tifi" as it is not the avennent .ma§1e L. behalf and Iiasankhan is not.
Evidence of PW. 1 is also n§>t4--..I;qe1pfi:; in .the:tV"r;s;:1a.1f and has admitted that sale (:Zee_(_1: the the fimt ciefendant. It is receipts Show that tent was being collecteet and the same wezxld not that the property pu1'chasett._.wV jgsvecond wife-Jainabi-first defe1;jt§ttéttt'A ieffjne wherefore, rent receipts. Exs.P;1--. heipful to substantiate the c:oI;tentioxti"~0:fV t.h_éj-- The tria} court has righly held tespect pmpert:€es aiieged to have been purchaeed V 'ttame ofwife and unmarried eiaughter, there is .22 that the property belongs to the wife or datightegr imless it is shown that it is for the benefit of Wife 2 V. xai1d._cla;..1ghter unless contrary is proved and in the present Ateabtse, no contxaxy evidence is iead to prevent the said Vt " "presumption under Section 4 at the said Act as rightly held by the trial court and Wherefore, the finding of the ma} court \3-J» 46 that the plaintifib have proved that behind the pang:-eny comprised in sciheétdejfl, Bi schedule is justified and aceo1di1iA§1y,::'--ie*iiediiig'bf.the" ._ court on issues 1 and 2 is It Was the "
defendants and to thatvexjrent me aof"%:h.e.vv:=j1ppella11t negativing the claim 01; of house 5103.63 and "defendant No.1 éieseribed So far as item N{).3 ciear from the Inaterial on Whatever is produced to Show that the Jamomxt was kept in Syndicate 'VB"e1gau1:fi" and in the absence of producfion of » that behalf, question of ailotting any share " would not arise and therefore, rejection of iiithe suit for share in item No.3 of (3 schedule is V rig1}t1yV71iega{ived by the tzial court.
18. Issues 5 and 6 relatefi to the questi-en as to us Whether defenéants 1 and 6 have emved that the amount shown at S1.Nos.3, 4, 6 and 8 in the suit C sclzledule were utiliseé towards the mefiical expenses of iate Gafurkhan and \P-.e ( 47 \fiu\\"* whether defendantipmved that they have spent . towards funera} expenses of Gafurkhaa and " "
are liable to contribute to that eictentef contended.
19. issue No.7 u:Vé:<)_:1te1A'1t_¥Lén 't.?-_;ken by defendant No.6 that Sfoudagar orally gifted the enfixje in schedule relating to zéfié was run by Gafurkhan Defendant No.6 is not exefisieee of DWKE is not at all heipful in xpifiiingtt11e'.$e;i£§:~~'%'contention. it is well settled that = Mohammedan iaw. However in crater "th"i-VaAdee§at1*9;'t;7en of gift is established it must be shown tit';.at'*'t]:1e' eieuef either in the presence of Witnesses or othe'ru§'ié;veV fitade a yubfic statement that he gifted the x V' V. in favour of the dance and that he divested himself the ownership 0f the property by defivering such htvtpossessien as the yroperty is capable of to the donee who accepted the gift and in the present case there is no such averment regarding essential ingredients of anal gift and no t\9J>, 48 person is examined to preve the said oral gift even the donee-defemtiant No.6 is also not examined in case. Under the cimumsiances, the trial court answered the said issue agaifiet the em' [1 defe192f:£a1;~te,:V" " H
20. issue NO.8 pertains to:;bf£}1e:(;41ic:.sf:ip1ii',3-ans: to. the plaintifl" prove that Gafusrighazrfhed 25%%s1;g~;:~e' i:3:;1.)'.r0f3t»e. and lees in the firm. Issue 3"€.V:<:..>.x.A9 'pew; question about the accountabifity._ of to in View of the ;5fd{%e'd I and 6 withdrawn the amouiat of Gafurkhan after his death UK' the _ "ar;:et211_ righfly answered the said (the eifilmafive and directed that defendants 1 and V E0-.aceou:1t for the same anti the said finding is pa1s¢ guszgiede;
" So far as 25% share of Gafurkhan Soudagar and in the firm shown in sczhefiule-D as aiieged, having regard to the evidezme of PW.1 as also the facts eiiciied in {he er<;>ss~--exam;inatien of DW.j{ that he éoes not knew as to whether his father had 25% share in the said firm and he VJ .
49 does no: lmow the nature of business his father vefase and he does not know whether the said _ converteé. into partnership business, it is c1e~a;=.. u .. court has rightly held that the Gafurkhax; iiadarkhagn Soudagar haei' e schedule-D to: the piaint. §ssuex'N e'. 11 pe'r§.a»'ifiuné;sv':to "€;he share to which £116: parties areenfifieili of ebove said finding of the trial c:01z;'§ by us having regard;'t{5 Irfiateriai 611 «it is clear that the finding of the coniemion of the defendaiitséand'11d1diizg i.i;Ieit' fa1aintifl's am entitled to share in schexi:1¥e--A, "E jemieerfies and item Nos.1, 2, 4 to 8 of . {EV end that the plaintifie ave entitied to i§g§»1;g®;saV:':~:os.43 and 63 of 8 schedule properties azué iteg NQ;3' c$f schedule properties is justified. The next quesficxfwould be as to the vaiidity of the finding given by court regaxding the share which the parfies are ejéltifled to in answer to question No.1.
22. It is clear from the finding given by the trial court if that parées does not dispute the relationship intersQa"§
-50 Gafurkhan Kadarkhan Soudagar had two _1 and defendant No.1. Plaintiffs 2 to 5 are the first wife and defendants 2 to 1 2-':;=;i%e'--m¢ b second Wife. Wherefore, Gafiirkhaeie u how through the first bore V to the second Wife-firs?' eiefenai:a&ij;.-- 'H-ep hast «also page behind be? '. M two daughters ale; to 'the- :=wifev.a11d seven daughters born to the ser.§d11d as the principles of $uccessio_n«";§e:jtééJ.1i31g..1:o__:'inhereteLnee of the propefigy, two WiveS; 1n*oe1'é" :.;6:fi¥:'_'shaIeVeach. Sons took double the share 'efVVd'a.11ghtei'e[ each son of the deceased cf iiaearkhei; Seuéagar burn through the first and seee-incl'-ew1fe axeflegitifled to 14116031 shale each ané each deceased through the first and second wife get""::"i..,Vq"i:t;')(}*h shape in. the above said properties i.e. in sceeefilea, :3 and E: pmpelfies and s1.Nos.1,2, 4 to 8 A "ii" eiefitioned in suit C scheduie. Whezefore, the finding of the court regarding share to which the parties are entifleé. to is aiso justified and does not suffer from any error or iiiegality as to call for infierferenee in this appeal. '\,9-J».
Accereiingiy, We hofi that the judgment and ~ by the trial court is justified interference in this aypeal.
23. POINT No.5; In viewjjjefjaalr answje::r'v.:«$.:ai5i;;{éés"points V for determination, we aeswer by that the judgment and decree is justified and does next' appeal and the cmss o13jecfibe1_s; the following order:
and Cross Objection No.34/QGQ4 judgment and decree passed by ftizejj AA Cf': Pflcjvfl Judge (Sr.Dn.), Belgaum, in j 'A Q.V'S.jN<$';'€§5]j'1991 dgiéé 16.6.2003 is confirmed. Sd/-» Iudge Sd/-~ Judge l::sv**