Karnataka High Court
Abdulajij S/O Ibrahimsaheb Contractor vs Karimuddin S/O Ibrahimsab Contractor, on 8 January, 2014
Bench: N.Kumar, C.R.Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF JANUARY 2014
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE C.R.KUMARASWAMY
R.F.A. No.3085/2010
BETWEEN:
ABDULAJIJ S/O.IBRAHIMSAHEB CONTRACTOR
AGE: 60 YEARS, OCC: TIMBER MERCHANT &
AGRICULTURE, R/O BAGALKOT
DISTRICT BAGALKOT
... APPELLANT
(BY SRI.LAXMAN T.MANTAGANI, ADVOCATE)
AND:
1. KARIMUDDIN S/O IBRAHIMSAB CONTRACTOR,
AGE: 57 YEARS, OCC: TIMBER MERCHANT,
R/O WARD NO.10 OF BAGALKOT,
BAGALKOT,
NOW R/O SECTOR NO.38,
NEAR BHAVAKHAN HOUSE,
NAVANAGAR, BAGALKOT.
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2. ABDULZABBAR S/O IBRAHIMSAB CONTRACTOR,
AGE: 55 YEARS, OCC: TIMBER MERCHANT
R/O WARD NO. 10, BAGALKOT.
NOW R/O KALBUGI BUILDING,
SITUATED AT OLD MARATHI PRIMARY
SCHOOL, BAGALKOT.
3. HARUNRASHID S/O IBRAHIMSAB CONTRACTOR,
AGE: 53 YEARS, OCC: TIMBER MERCHANT,
R/O WARD NO. 10, BAGALKOT.
NOW R/O C/O GURADE RTD. GRAMA SEVAK,
NEAR MADARASA, YADAHALLI ROAD, MUDHOL,
SINCE DECEASED BY HIS L.RS.
3(A) SHAHANAZBEGAM
W/O.HARUNARASHID CONTRACTOR,
AGE MAJOR, OCC.: HOUSEHOLD WORK,.
3(B) KUMARI RANI
D/O.HARUNARASHID CONTRACTOR,
AGE MAJOR, OCC.: HOUSEHOLD WORK,.
3(C) KUMAR IBRAHIM
S/O.HARUNARASHID CONTRACTOR,
AGE MAJOR, OCC.: HOUSEHOLD WORK,.
3(D) KUMAR SALAHANDDIN
S/O.HARUNARASHID CONTRACTOR,
AGE MAJOR, OCC.: HOUSEHOLD WORK,.
3(E) KUMAR RAHAMATHULLA
S/O.HARUNARASHID CONTRACTOR,
AGE MAJOR, OCC.: HOUSEHOLD WORK,.
ALL ARE R/O.WARD NO.5, CTS NO.411,
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A/1, MUDHOL, DIST.: BAGALKOT.
4. SIKANDAR S/O IBRAHIMSAB CONTRACTOR,
SINCE DECEASED BY LRS,
4A. ZARINA W/O SIKANDAR CONTRACTOR,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O SECTOR NO. 14, NAVANAGAR, BAGALKOT.
4B. JANMAHAMMAD S/O SIKANDAR
CONTRACTOR, AGE: 41 YEARS,
OCC: BUSINESS, R/O SECTOR NO. 14,
NAVANAGAR, BAGALKOT.
4C. YUNIS S/O SIKANDAR CONTRACTOR,
AGE: 36 YEARS, OCC: BUSINESS,
R/O SECTOR NO. 14, NAVANAGAR, BAGALKOT.
4D. TABREZA S/O SIKANDAR CONTRACTOR,
AGE: 33 YEARS, OCC: BUSINESS,
R/O SECTOR NO. 14, NAVANAGAR, BAGALKOT.
4E. SAMIULLA S/O SIKANDAR CONTRACTOR,
AGE: 30 YEARS, OCC: BUSINESS,
R/O SECTOR NO. 14, NAVANAGAR, BAGALKOT.
4F. ATTAULLA S/O SIKANDAR CONTRACTOR,
AGE: 28 YEARS, OCC: BUSINESS,
R/O SECTOR NO. 14, NAVANAGAR, BAGALKOT.
4G. PRAVEEN W/O MUNIRAHAMMAD PENDARI,
AGE: 46 YEARS, OCC: HOUSEHOLD WORK,
R/O PENDARI GALLI, BANAHATTI. BAGALKOT.
5. KALLAPPA S/O SHANKRAPPA SORAGANVI,
AGE: MAJOR, OCC: AGRICULTURE,
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BAGALKOT.
6. ISHAKSAB S/O ISMAILSAB RON,
SINCE DECEASED BY LRS,
6A. ASHABI W/O ISHAKSAB RON,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O KALADAGI, TQ. & DIST. BAGALKOT.
6B. SAIYADALI S/O ISHAKSAB RON,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O KALADAGI, TQ. & DIST. BAGALKOT.
6C. SHOUKATALI S/O ISHAKSAB RON,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O KALADAGI, TQ. & DIST. BAGALKOT.
6D. SHIRAJAHAMAD S/O ISHAKSAB RON,
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O KALADAGI, TQ. & DIST. BAGALKOT.
6E. MODINSAB S/O ISHAKSAB RON,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O KALADAGI, TQ. & DIST. BAGALKOT.
6F. WALIAHAMAD S/O ISHAKSAB RON,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O KALADAGI, TQ. & DIST. BAGALKOT.
7. AKATHARABAGUM W/O ABHULJABBAR
CONTRACTOR, AGE: 44 YEARS,
OCC: AGRICULTURE, BAGALKOT.
NOW R/O KALBUGI BUILDING,
SITUATED AT OLD MARATHI PRIMARY
SCHOOL, BAGALKOT.
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8. GOUSMODDIN S/O ABDULRAHIM DHALAYAT,
AGE: 46 YEARS, OCC: AGRICULTURE, BAGALKOT.
9. MAKTUMHUSEN S/O HUSENSAB TAHSILDAR,
AGE: 46 YEARS, OCC: TRADE,
R/O OPP. BASAVA NAGAR, K.B.N. SAW MILL &
TIMER MERCHANT, VIDYAGIRI, BAGALKOT.
10. JUBEDA W/O MAHAMMADHUSEN PENDARI,
SINCE DECEASED BY HER LRS
10A. IMTASAHAMAD S/O MAHAMMADHUSEN
PENDARI, AGE: 41 YEARS, OCC: CONSTABLE,
R/O F. NO. 7, BUILDING NO. 2,
PLOT NO. 8, MOUNT-VIEW, CO-OP SOCIETY,
MARUSHI ROAD, BHAVANI NAGAR,
ANDHERI EAST, MUMBAI.
10B. KUMARI. NASSEMA S/O MAHAMMADHUSEN
PENDARI, AEG: 36 YEARS, OCC: ADVOCATE,
R/O F. NO. 7, BUILDING NO. 2,
PLOT NO. 8, MOUNT-VIEW, CO-OP SOCIETY,
MARUSHI ROAD, BHAVANI NAGAR,
ANDHERI EAST, MUMBAI.
10C. KUMARI. SAIHIRABANU
S/O MAHAMMADHUSEN PENDARI,
AEG: 36 YEARS, OCC: ADVOCATE,
R/O F. NO. 7, BUILDING NO. 2,
PLOT NO. 8, MOUNT-VIEW, CO-OP SOCIETY,
MARUSHI ROAD, BHAVANI NAGAR,
ANDHERI EAST, MUMBAI.
11. JAHIDA W/O. HUSEN NAIK,
AGE 62 YEARS, OCC.: HOUSEHOLD WORK,
BAGALKOT.
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12. RAJESH S/O.BASANAGOUDA LINGADAL,
AGE MAJOR, OCC.: AGRICULTURE,
OPP.: P.M.NADAGOUDA, DENTAL COLLEGE,
BAGALKOT.
13 SMT.KHAIRUNNISA W/O.ALLABAX SAYED,
AGE 61 YEARS, OCC.: HOUSEHOLD WORK,
R/O.GUMMBAZ GALLI,
NEAR HAKEEM CHOWK, BIJAPUR.
... RESPONDENTS
(BY SRI.SHIVAKUMAR S.BADAWADAGI,
ADVOCATE FOR R1, R3A - R3D.
SRI.A.T.SAVANUR, ADVOCATE FOR R2 & R7.
SRI.A.A.NADAF, ADVOCATE FOR R4A-R4G.
R3E - SERVED. R6A - R6F - SERVED.
R8 & R9 - SERVED. R10A - R10C - SERVED.
R11 - HELD SUFFICIENT. R12 - SERVED.
SRI.MRUTYUNJAY TATA BANGAI, ADVOCATE FOR R13)
THIS APPEAL IS FILED UNDER SECTION 96 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED
24.04.2010 PASSED IN O.S.NO.19/2003 ON THE FILE
OF THE PRL. CIVIL JUDGE (SR.DN.) BAGALKOT,
DISMISSING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ORDERS THIS
DAY, N.KUMAR, J., DELIVERED THE FOLLOWING:
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JUDGMENT
This is a plaintiff's appeal against the judgment and decree of the trial Court, which has dismissed the suit for partition and separate possession of his share in the plaint schedule properties.
2. For the purpose of the convenience, the parties are referred to as they are referred to in the original suit.
3. The plaintiff and defendant Nos.1 to 4 and Sikundar Contractor were the sons of Ibrahimsaheb Contractor. The sons of Sikundar Contractor is no more and therefore, his LRs are defendant Nos.4A to 4F, 4G-Praveen is the daughter of Sikundar Contractor, defendant Nos.5 and 6 are the purchaser, after the death of 6th defendant, his L.Rs have been brought on record as defendant Nos.6A to 6F, defendant Nos.7 to 12 are the purchasers, who are :8: impleaded subsequently and 13th defendant is a daughter of Ibrahimsaheb Contractor. Apart from her he had three other daughters, who are not impleaded to the suit. Item Nos.1 to 6 of Schedule-B are agricultural lands, whereas house property, which originally belongs to Ibrahimsaheb is also a part of B-Schedule property. Schedule-C properties are purchased by the defendants i.e., Ibrahimsaheb in their own names.
4. The case of the plaintiff is that Ibrahimsaheb was the owner of the properties mentioned in Schedule-B properties. He died in the year 1991, his wife Mehabubbi also died. He had a first wife by name Jairabi, who has been divorced by Ibrahimsaheb during his lifetime. Therefore, after the death of Ibrahimsaheb, it is only his five sons i.e., the plaintiff and defendant Nos.1 to 4 have become joint owners of the properties owned by Ibrahimsaheb each having :9: 1/5th share in them. Schedule-C consists of the properties purchased by the various defendants out of the joint income of the plaintiff and the defendants derived from the estate of Ibrahimsaheb.
5. The CTS No.4/1A/1 of Ward No.IX of Bagalkot consists of residential quarters, a part of which is occupied by some of the defendants and substantial portion has been rented to the tenants. Probable rental income from these properties is Rs.48,000/- per annum. The said property also consists of Saw-Mill and Work-Shed of 75 G.I. Sheets and Teak Poles consisting of plant and machineries 12½ H.P. electric motor, grinder etc. the same is leased on monthly rent of Rs.9,000/- per month. Ibrahimsaheb also owned agricultural lands at Govindakoppa originally numbered as R.S.Nos.112 and 113/2. The said lands consists of 877 coconut trees, 1760 popogrante trees, 706 Sapota trees. The approximate income from these : 10 : fruit trees right from the time of Ibrahimsaheb is Rs.25,00,000/- per year.
6. During the life time of Ibrahimsaheb sine he was sick and operated and was in bed for number of months, the defendants also availed loans of the security of his properties from B.D.I.C. Bank, Bagalkot to the extent of Rs.25,000/-, three loans of Rs.2 Lakhs, Rs.50,000/- and Rs.1 Lakhs from the Sangli Bank, Bagalkot and K.S.I. Co-operative Bank, Bijapur to the extent of Rs.30,000/-. The loan was also raised for purchase of Ashok Leyland Truck shown in the schedule-C. These loans were raised on the securities of the properties of Ibrahimsaheb. From the income from the aforesaid properties, the defendants have purchased the properties mentioned in Schedule-C, which consists of agricultural lands, lorry and house property in Bagalkot. The defendants have purchased these properties in their names as they were : 11 : managing the affairs of the properties of Ibrahimsaheb during his life time and as well as after the death. The other defendants have purchased the properties from those defendants as set out in para-6 of the plaint. it is the specific case of the plaintiff that after the death of Ibrahimsaheb, the defendant Nos.1 to 3 got entered their names for the suit lands as well as for the suit house in Schedule-B on the ground that they have been gifted to the defendant Nos.1 to 3. Subsequently, they have also got mutation entries made under M.E.No.2388 to the effect that they effected a partition in between themselves in the lands. They have also got subsequently got the names of the purchasers entered for these properties. In fact, Ibrahimsaheb never gifted any property and there was no valid gift in favour of the defendant Nos.1 to 3 as contended by them. The CTS authorites colluding : 12 : with defendant Nos.1 to 3 have made illegal and bogus entries in favour of defendant Nos.1 o 3.
7. During the life time of Ibrahimsaheb the property CTS No.4/1A/4B was given to the present plaintiff by way of oral gift and during the life of time of Ibrahimsaheb he was competent to gift the properties. The defendants have no right in the properties of Ibrahimsaheb during his life time and they cannot question the legality of the transfer of the proeprty in favour of the plaintiff by Ibrahimsaheb. By his own earnings, the plaintiff has also purchased some lands at Sigikeri village during 1992-93. In this background, the defendants are not willing to allot plaintiff his legitimate share in the Schedule-B properties, which are the joint properties, which they have inherited. Defendant Nos.4 and 5 filed O.S.No.67/1997 against the present plaintiff and others for partition and separate possession of CTS : 13 : No.4/1A/4B and other properties, which came to be dismissed for default. Similarly, O.S.No.224/1999 was also filed by the defendant No.1 and 3 against Sangli Bank and Abdul Jabbar for partition in respect of CTS No.4/1A/1 of Ward No.9 of Bagalkot and the same was also dismissed.
8. The defendant No.1 also filed O.S.No.101/1998, with his two brothers, defendant Nos.2 and 3 against the plaintiff and defendant No.4 for partition in respect of CTS No.4/1A/4b, which was also dismissed long back. But in all these suits, the property of the family were not included. Since the plaintiff has not been allotted his legitimate 1/5th share in all these properties, he filed the suit for partition and separate possession of his legitimate 1/5th share in all the B and C schedule properties. : 14 :
9. After service of summons, the defendants entered appearance and filed their written statement. The 1stt defendant admitted the relationship setout in the plaint. However, he denied that the suit schedule 'B' and 'C' properties are the joint family properties of plaintiff and defendants No.1 to 4. He further denied the allegation that schedule 'C' properties are purchased from joint income derived from the income of the plaint schedule properties. It is his specific case that those properties are purchased in their individual capacity out of their own earnings. He contended that CTS No.4/1A/1 of Ward No.1, the house and the saw- mill, were gifted by the deceased Ibrahimsaheb in the name of defendants No.1 to 3. The 4th defendant has filed a suit for partition and separate possession of the suit properties. The present plaintiff had filed a written statement on 15.06.1998 stating that in respect of CTS No.4/1A/1 and in the timberr business situated in : 15 : the said premises, Ibrahim saheb had made arrangements. The City Survey Officers had issue notice regarding making entries on the strength of the oral gift on 23.11.1991 by the decease Ibrahimsaheb. Plaintiff submitted no objection to make entry in the name of defendants No.1 to 3 in the CTS records on the strength of the oral gift. Therefore, the gift was completed in the year 1991 itself. plaintiff was estopped from claiming any right over the suit properties. Suit Schedule 'B' properties, item nos.3 and 4 was already gifted by the original owner Ibrahimsaheb by oral gift. In the written statement filed by the plaintiff in O.S.No.67/1997 the said fact is also admitted. The defendants have sold some of the properties purchased by them to defendants No.5 to 12 to discharge their loans raised for the business. Alienations made by them in favour of defendants No.5 to 12 is for legal necessity. Plaintiff has no right : 16 : to challenge the said alienations. The right of the plaintiff over the suit schedule properties was denied in the year 1997 itself when he had filed written statement in O.S.No.67/1997. Therefore, the suit filed by the plaintiff is barred by law of limitation. The schedule property bearing CTS No.4/1A/1 is already acquired and compensation amount has been awarded by the Special Land Acquisition Officer. The defendants have disposed of the properties under acquisition. Niether the plaintiff nor the defendants NO.1 to 4 are in possession of the suit schedule properties. Therefore, the court fee paid under Section 35(2) of the Karnataka Court Fee and Suit Valuation Act is not proper.
10. The 2nd defendant also filed a separate written statement reiterating the very same allegations/grounds made by defendant No.1. He denied that Ibrahimsaheb was sick and the defendants : 17 : have obtained loan from Sangli Bank and other banks and that out of the income derived from the schedule properties, they have purchased schedule 'C' properties. He asserts that the property standing in his name were all purchased out of his own earnings and it is his self acquired property. Plaintiff has no right in the said properties. There was already a partition in the family during the lifetime of Ibrahimsaheb. They are all residing separately after the death of Ibrahimsaheb. Ibrahimsaheb had made a will during his lifetime. Plaintiff has not included in the schedule to the suit, the properties which had fallen to his share and therefore, the suit is not maintainable. The reference application is pending before the competent Court seeking apportionment of compensation. In these circumstances, the plaintiff has filed false suit and, therefore, he sought for dismissal of the suit.
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11. Defendant No.4 also filed a detailed written statement. In fact, he supported the case of the plaintiff.
12. Defendant No.6(b) also filed written statement contesting the claim reiterating the allegations/grounds made by other defendants. Defendant No.8 also filed a written statement setting out the purchase of properties for valuable consideration and he is enjoying the said properties in which the plaintiff has not right. Defendant no.9 also filed written statement setting up title and denied the title of the plaintiff. Defendant No.13-daughter of deceased Ibrahimsaheb filed written statement claiming a share in the schedule properties.
13. On the aforesaid pleadings, the Trial Court framed the following issues:
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"1. Whether the plaintiff proves that, he is entitled to 1/5th share in the suit schedule 'B' and 'C' properties?
2. Whether the plaintiff further proves that, himself, defendants 1 to 4 are the sons of Ibrahimsaheb?
3. Whether the defendant no.7 proves that, defendant No.7 purchased RS No.83/1 for Rs.20,000-00 under registered sale-deed out of her money?
4. Whether the defendant nO.2 proves that, RS No.113/2, 174, 83/1 are self acquired properties of himself and his wife?
5. Whether the defendant No.2 further proves that, there was already partition in the family during the life time of Ibrahimsaheb?
6. Whether the suit is bad for non-
inclusion of the property CTS
No.4/1A/1B?
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7. Whether the suit is bad for non-joinder of necessary parties?
8. Whether the defendant No.13 proves that, she is entitled to 1/26th share in the suit properties?
9. Whether the plaintiff is entitled to the reliefs sought for?
10. What order or decree?
Additional Issues:
1. Whether the defendant No.1 proves that, deceased Ibrahimsaheb made oral gift on 23-11-1991 in respect of CTS No.4/1A/1?
2. Whether the court fee paid in incorrect?
If so what is the correct court fee?
3. Whether the defendant No.9 further proves that, he is the bonafide purchaser for valuable consideration of RS No.83/3 and 83/4?
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4. Whether the defendant nO.4A to 4G prove that, they are entitled to 1/5th share in the suit schedule properties? The plaintiff, in order to substantiate his claim, examined himself as P.W.1, and produced 19 documents which are marked as Exs.P.1 to P19. Defendants examined the 1st defendant as D.W.2, defendant No.13 as D.W.3 and one Shirajahamad Isaksab Ron, one of the attesting witnesses to gift on which reliance is placed on by the defendants, as D.W.1. Defendants produced 12 documents, which are marked as Exs.D.1 to D.12.
14. The Trial Court, on appreciation of the aforesaid oral and documentary evidence on record, held that the plaintiff has failed to prove that he has got 1/5th share in plaint 'B' and 'C' schedule properties. The plaintiff has proved that they are all children of Ibrahimsaheb and Ibrahimsaheb also left : 22 : behind four daughters. It was further held that the gift set up by the plaintiff in his favour is not proved, whereas the gift set up by defendants No.1 to 3 are proved. Further, the Court held that Ibrahimsaheb effected partition of all his properties during his lifetime and the properties allotted to the share of his sons were gifted by him. Acting on the basis of this gift, mutation entries were transferred in their names during his lifetime. Thereafter, they raised loan on security of these properties. They have purchased several properties in their individual capacity out of their own funds. Therefore, on the day Ibrahimsaheb died, he did not leave behind any properties to his sons to succeed. It also took note of the stand of the plaintiff in the written statement filed by the plaintiff in the suit filed by the defendants, where he had categorically admitted that they are all living separately after partition and there is no joint family. : 23 : In the light of the aforesaid evidence, the Trial Court dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree of the trial Court, the plaintiff is in appeal.
15. Learned counsel for the appellant assailing the impugned judgment and decree of the trial Court contended that the property which was gifted to the plaintiff was the subject matter of acquisition. After the award, the matter was referred to the Reference Court for determination of the market value. Defendants No.1 to 3 filed an application seeking apportionment of the share. The Reference Court, after enquiry, was of the view that the gift is not proved. The property belongs to Ibrahimsaheb and after his death, as family continues to be joint all the four daughters are entitled to equal share. The appeal filed against the said order by the plaintiff also came to be dismissed and therefore, he submits that his : 24 : case that the family continues to be joint and there is no partition is clearly established, but the trial Court committed a serious error in dismissing the suit of the plaintiff holding that there is no joint family and that a partition had taken place earlier.
16. Per contra, learned counsel for the defendants supported the impugned judgment and decree.
17. The learned counsel appearing for defendant No.13 submitted that against the impugned judgment and decree she has preferred an appeal before the District Court and is pending and she, admittedly, being the daughter of Ibrahimsaheb, has not been granted any share in the family properties, according to Mohammedan Law and, therefore, he submits that dismissal of the suit is not proper.
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18. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under:
i) Whether the plaintiff proves that plaintiff and defendants No.1 to 4 constitute joint family or they are joint tenants and the schedule properties belongs to the family.
ii) Whether the plaintiff proves that there was no partition prior to death of Ibrahimsaheb and Ibrahimsaheb left any schedule properties on the date of his death.
19. The relationship between the parties is not in dispute. Ibrahimsaheb did own certain properties. The evidence on record clear establishes that during his lifetime, he effected partition of all his properties, which is something unknown to Mohammedan Law. But, the modus operandi adopted by him was, after effecting partition, the shares allotted to his sons were : 26 : gifted by him. In terms of the gift, mutation entries were made in the name of defendants No.1 to 3, khatas were made in their names, they asserted their absolute right over the properties, they approached the financial institutions, borrowed money, improved their properties, sold some of the properties, discharged the loan and acquired some other properties in their own names. Insofar as, the plaintiff is concerned, he also claims one item which was subject matter of suit by way of gift. The mutation entry on which he relied on and the gift discloses that the property was given by his father to him at partition by way of gift. Therefore, the case of gift pleaded by the plaintiff was not accepted by the Reference Court, which finding has been affirmed by this Court in appeal, whereas the gift made in favour of defendants No.1 to 3 are all evidenced by documentary evidence, attesting witness to the gift : 27 : has been examined, gift has been acted upon, mutation entries were made and khatas were made, loans have been borrowed, some of the properties have been sold and this gift is followed by delivery of possession. In fact, the plaintiff, in his written statement filed by him in the suit filed by defendant no.4, has taken the specific stand that after partition, they are residing separately, there is no joint family and the plaintiffs in the said suit have no right in the properties fallen to his share. It is in this background, the trial Court has held that on the day Ibrahimsaheb died, there was no property left by him, he had distributed all his properties to his children and, therefore, on his death his heirs did not succeed to any estate at all. Further, it held, in view of the documentary evidence on record coupled with the admission of the plaintiff in the written statement filed by him, it is clear that a partition had taken place : 28 : earlier and all the brothers were living separately and managing their properties exclusively for themselves. When once, it is shown that there is no joint family in existence, the properties which are subject matter of the suit are not joint family properties and when there was a partition even during the lifetime of their father, the suit for partition by one of members of the family is not maintainable. Merely, because in the reference proceedings, it was held that property which the plaintiff was claiming under the gift deed did not belong to him exclusively, as he failed to prove the gift and the said property being property of Ibrahimsaheb, all the children have an equal share, that would in no way establish the case of the plaintiff that the family is joint and the properties belong to joint family. Therefore, the finding recorded by the Trial Court is based on legal evidence, based on admission of the plaintiff made by him in the earlier : 29 : proceedings and, therefore, it cannot be found fault with.
20. It was contended by the plaintiff that 'C' schedule properties were acquired out of the income derived from 'B' schedule properties and, therefore, it also partakes the character of joint family property. When once it is held that 'B' schedule properties are not joint family properties; they are all properties of the defendants which was gifted to them by their father, even if 'C' schedule properties is acquired out of the income derived from 'B' schedule properties, it would not constitute joint family properties. Among defendants, partition is effected and that, in no way, would support the case of the plaintiff and therefore, seen from any angle, we do not see any merit in the claim made by the plaintiff.
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21. It is interesting to note that the plaintiff, who claims to be the member of the joint family and claims the schedule properties as joint family properties, deliberately does not include the property, which is standing in his name, on the pretext that it is his self-acquired property. If that property which stands in his name is self-acquired property, he cannot lay claim on those properties which are all standing in the names of defendants, which was acquired after the death of their father. Insofar as 'B' schedule properties are concerned, they were gifted to the defendants. On the basis of the gift, mutation entries were made during the life time of their father on the basis of the wardi submitted by him and they have taken possession of the properties, they have asserted their independent title by raising loan on the said properties and therefore, said properties also cannot be considered as joint family properties. : 31 :
22. It is also to be taken note that Ibrahimsaheb had four daughters. When a son is seeking partition and separate possession of his legitimate share in the suit schedule properties claiming it to be the properties of his father, he ought to have made daughters of Ibrahimsaheb as parties to the suit, as daughters are also entitled to a share - half of what the sons are entitled to, under Mohammedan Law. The fact that he did not make all the daughters parties to the suit was also rightly held against him by the Trial Judge. Similarly, when he did not include properties standing in his name, the suit for partition was not maintainable. It is, on an overall circumstances of these facts, the trial Court, on proper appreciation of the oral and documentary evidence on record, had rightly held that the plaintiff had failed to establish his claim and was justified in dismissing the suit. We do not see any merit in this appeal.
: 32 :Accordingly, the appeal is dismissed.
SD/-
JUDGE SD/-
JUDGE Vnp*/KMS