Karnataka High Court
Nabi Sab vs Hatelsab on 14 July, 2023
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2023:KHC-D:7274
RSA No. 1467 of 2007
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF JULY, 2023
BEFORE R
THE HON'BLE MR JUSTICE V.SRISHANANDA
REGULAR SECOND APPEAL NO. 1467 OF 2007 (DEC/INJ)
BETWEEN:
SRI. NABISAB S/O. HUCHCHESAB AGNNAMANI,
AGE: 44 YEARS, R/AT: BAGENAGARKOPPA,
KALAGHATAGI, DHARWAD- 32.
...APPELLANT
(BY SRI. SADIQ N.GOODWALA AND
SRI. T.M.NADAF, ADVOCATES)
AND:
HATELSAB S/O HUCHCHEDAB SANNAMANI,
AGED ABOUT 23 YEARS,
R/AT: BAGENAGARAKOPPA,
TALUK: KALAGHATGI,
DIST: DHARWAD-32
CHANDRASHEKAR
LAXMAN ...RESPONDENT
KATTIMANI
(BY SRI. SURAJ M. KATAGI, ADVOCATE)
Digitally signed by
CHANDRASHEKAR THIS REGULAR SECOND APPEAL IS FILED UNDER
LAXMAN
KATTIMANI SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE
Date: 2023.07.27 DATED: 8.1.2007 PASSED IN R.A.NO.68/2003 ON THE FILE
15:41:37 -0700
OF THE II ADDL.CIVIL JUDGE (SR.DN.), DHARWAD,
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AND DECREE DATED: 28.1.2003 PASSED IN
OS.NO. 52/2001 ON THE FILE OF THE CIVIL JUDE (JR.DN.) &
JMFC, KALAGHATGI.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:7274
RSA No. 1467 of 2007
JUDGMENT
Present second appeal is filed by the plaintiff against the defendant.
2. The appeal came to be ad mitted on the following substa ntial question of law .
"In the light o f t he fi ndi ng i n the ne gativ e over issue N o.4 by the trial Co ur t, w hethe r t he lo wer a ppel la te co urt w as justi fied in r eve rsi ng t he fi ndi ng, as rec orded in p ara 21 of t he judgment a nd decr e e of the lo wer app ellate co urt , so as t o di smis s t he suit ? "
3. Parties are referred to as pl aintiff and defendant for the sake of conv enience a s per their original ranking in the trial Court.
4. Heard Sri T.M.Nada f and Sri Sadiq N.Goodwala, learned c ounsels for the appellant and Sri Suraj M.Katagi, learned counsel for the respondent.
5. Brief facts of the case are as under:
A suit came to be filed by the plaintiff in O.S.No.52/2001 before the Civil Judge (Jr.Dn.), -3- NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 Kalghatagi for the relief of declaration and permanent injunction against the defendant declaring that plaintiff is the absolute owner of the following properties.
Sl. Sy.No. Measurement
No.
1 1/2 6 gun tas
2 30 4 acre 39 g untas Situa ted at
Bogenag arakopp a
3 65/1 2 acre 16 g untas
village
4 110/1B 26 gunta s
6. It is contended by the plaintiff that the suit properties are ancestral properties which has fallen to the share of the plaintiff at a partition that took place in the year 1999 with his uncle and other relatives. After the partition in the year 1999, the revenue entries wer e mutated in the name of the plaintiff a nd he was enjoyi ng the suit prop erty as its owner in possession.
7. When th e matter stood thu s, defendant who is a stranger to the family of the plaintiff, started interfering with the suit property and laid a -4- NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 claim over the suit property even thoug h he did not possess right, title and interest over the suit property whi ch cons trained the plaintiff to file a suit seeking declaration and injunction.
8. After registration of the sui t, suit summons were issued and a detailed written statement came to be filed by th e defendant after hi s appearance.
9. In the written statement, th e defendant con tended that he is the son of Fakiramma-the secon d wife of Huchhesad-father of the plaintiff and therefore, he is entitled for half share in the suit property.
10. It is also contended that Fakiramma and Huchchesab had another daughter in their marr iage by name Fatubi.
11. Based on the rival contentions, trial Court raised following issues.
(1) Wheth er plain tiff proves that he is th e only son of Hu chhesab San n amani ? -5-
NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 (2) Wh ether plai ntiff proves that he has not acqui red pos session and ownershi p over the sui t property thro ugh his f ather Huchhes ab San n amani ?
(3) Whethe r Pl ain ti ff prove s that defendan t i s not a party to the parti ti on and Varadhi pe rtaini ng to M .E. No .817?
(4) Wh eth er defendant pro ves t hat the hi s mother is the 2nd wife of Hu chhes ab San n amani ?
(5) Whe th er defendan t pro ve s th at h im self an d pl aintif f are the join t all otees of the sui t pro pe rties?
(6) Wh ether this court is havin g pecun iary ju risdi ction to try th is su it?
(7) Whether pl ain ti ff pro ve s hi s abs olute ownership and e xclusi ve possession over the sui t properties as on the date of suit? (8) Whethe r plai ntif f is entitle for the dec ree of Permanent In junc tion as cl aim ed in th e sui t? (9) Whe th er defe ndant is having half share in the sui t prope rties?
(10) What order or decree?
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NC: 2023:KHC-D:7274 RSA No. 1467 of 2007
12. In order to prove the issues, plaintiff got examined himself as PW1 and also three more witnesses as PWs.2 to 4 and relied on 37 documents which were exhibited and marked as Exs.P1 to P37. On behalf of the defendant, defendant got examined as DW1 and he also examined Moulasab and Abdulra zak as DWs.2 and 3 and he also relied on 44 documents which were exhibited and marked as Exs.D1 to D44.
13. Apart from the parties filing the documents, one other doc ument which were available on the Court records was marked as Ex.C1 which is a case file and sub-markings were also made in the said file.
14. On conclusion of the recordi ng of the evidence, the learned trial Judge heard the parties in detail and decreed the suit of the plaintiff as under
by recording the findings on issues No.1 to 10:
"Is sues No .1: A ffirmat ive . Iss ue N o.2 : Affirmat ive . -7-
NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 Iss ue N o.3 : Affirmat ive . Iss ue N o.4 : No t t he le gally w edded sec ond wi f e Iss ue N o.5 : Ne gative.
Iss ue N o.6 : Affirmat ive . Iss ue N o.7: Af firm ative. Iss ue N o.8: Af firm ative. Iss ue N o.9: Ne ga tiv e.
Iss ue N o.10: As pe r final order fo r the f ollo wing reaso ns ."
"Th is su it i s dec reed as u nder:
It i s hereby declared th at th e plai n tif f i s th e absolu te o wne r and excl usive possesso r of th e sui t properties.
The defendant has be en permanently re strained from in terf eri ng wi th plain ti ffs peacef ul possession and e njoymen t of the sui t pro pe rties.
The re is no o rder as to costs. Draw dec ree accordingl y."
15. Being aggrieved by the same, defendant filed an appeal before the II Addl.Civil Judge (Sr.Dn.), Dharwad which was nu mbered as -8- NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 R.A.No.68/2003. The learned Judge in the first appellate Court, secured the records from the trial Court and after hearing the parties in detail, allowed the ap peal in toto and set aside the d ecree and dismissed the suit of the plaintiff.
16. Being aggrieved by the same, the plaintiff has preferred the present second appeal.
17. After hearing th e learned coun sel for the appellant, this Court admitted the appeal to consider the substantial question of law as referred to supra.
18. Sri Sadiq N.Goodwala and Sri T.M.Nadaf, learned counsel together contended that the first appellate Court had grossly erred in dismis sing the suit of the plaintiff especially after recording the finding on Issue No.4 that the marriage of the mother of the defendant is not pr oved and Smt.Fakiramma is not the second wife of father of the plaintiff.
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NC: 2023:KHC-D:7274 RSA No. 1467 of 2007
19. They also contended that the three types of marriage that are recogni zed under Mohammadan law as per Section 253. Thos e marriages are con sidered a s valid, irregular and void marriages and the alleged marriage of Fakiramma with father of the plaintiff would fall under the third category and namely 'Batil' marriage and such marriage having been declared as void-ab-initio, cannot be con sidered as a valid marriage and even for the sake of argument, if the defendant is to be accepted as son born to Fakiramma as a second wife of the father of the plaintiff, since it is void marriage, defendant cannot be considered as a sharer as illegitimate son born in 'Batil' marriage. Such illegitimate children do not pos sess any right of succession under Mohammadan law and therefore, sou ght for allowing the appeal.
20. Per con tra, Sri Suraj M.Katagi, learned cou nsel for the respondent vehemently c ontended that file from Tahsildar office marked at Ex.C1
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NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 sufficiently exposes the hollowness in the case of the plaintiff and therefore, the learned Judge in the first appellate Court rightly re-appr eciated the material on record by exercisin g the power ves ted in it under Section 96 of the C.P.C. and rightly dismissed the suit of the plaintiff.
21. He also invited the attention of the Court to the deposition of DW1 wherein defendant has unequivocally deposed before the Court that in the wedlock between Huchchesab and Fakiramma, his elder sister Fatubi and defend ant were born. To support the same, he has relied on the indirect evidence. The learned judge in the first appellate Court, ha s appreciated the same and has come to the conclu sion that the children born to Fakiramma being the second wife of Huchchesab who is the father of the plaintiff are therefore legitimate children, and therefore, they also have right in the suit property and therefore, suit for declaration by the plaintiff claiming he is the absolute owner and
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NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 defendant is a stranger cannot be countenanced in law and therefore, rightly dismissed the suit of the plaintiff and sought for dismissal of the present appeal.
22. In the light of the arguments p ut forth on behalf of the parties, in respect of the subs tantial ques tions of law, this Court per used the material on record meticulously including the trial Court records.
23. In order to appreciate whether the defendant can be termed as legitimate son which is the opinion formed by the first appellate Court while upsetting the decree of the trial Court, it is just and necessary for this Court to cull out S ection 253 of the Mohammadan Law which rea ds as under:
253. Va lid, i rregul ar an d vo id ma rriag es :
A m arria ge may be valid (s ahi h), or irregular (fasid) , or v oid fro m t he beginni ng (batil).
Irre gula r or i nv alid marria ges: The te rm "fasid" is translat ed in Baillie's Di ges t as "i nv alid", but a s the w ord "i nva lid" in t he Englis h la nguage als o me ans "v oid," "irregular " a nd has bee n substit ut ed f or "i nv alid" in co nf ormity wit h
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NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 t he us age o f mo d ern writ ers o n the s ubje ct . As to i rregul ar mar riages , s ee s ec s. 254 to 259 and sec. 263. A s to vo id marria ges, see secs . 260 to
262. The Ma rriage of a S ha fei virgi n girl who has att ai ned puberty i f s he is giv en i n marria ge i n a pr oper fo rm is valid. Muham mad Haji Kamm u v. Et hiyam ma (1967) Kerala L. T.913.
24. In the case on hand, plaintiff has cross- examined DW1 and his witnesses. In para 23(a) of the dep osition of DW1, DW1 has admitted that he is the ignorant about the fact that there is no mention in Ex.D7 as to the fact that the alleg ed marr iage between Huchchesab and Fakiramma is first marriage or not. There is also a suggestion made that Fakiramma had married one Moulasab Mena sagi in the year 1996. However, the defendant has denied such a suggestion. It is also suggested that in the year 1980, Fatubi was born to Moulasab Menasagi and Fakiramma and in the year 1981.
25. DW1 has clearly admitted that in the 'varadi' (report) to the revenue authority to change
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NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 the entry in respect of the suit lands, includin g the name of the defendan t, one Moulasab Sanna mani has sign ed for and on his behalf of defendant a s his elder brother. The same is also found in Ex. C1 s eries which is marked as Court document.
26. Sinc e defendant DW1 has admitted in clear and categorical terms that one Moulasab Sannamani who is the elder brother of DW1 has signed as a guardian of DW1, it presupposes that Fakiramma must have been married M oulasab Menasagi earlier to her marriage with Huchchesab.
27. Taking note of these aspects of the matter , learned trial Judge while recording the finding on Issue No.4 came to the ca tegorical conclusi on that Fakiramma is not the second wife of Huch chesab. The discussion in this regard is found in paragraph 41 whic h reads as under:
"(41 ) A ccording to Moham me da n L aw a wo ma n is not ent itle t o m arry 2nd time during t he subsist enc e of ma rital relatio nship wi th 1st husb and , i.e. unles s the 1s t marria ge w as
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NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 diss olved eit her by Talaq.. or b y t he death of first hus band. As alrea dy no ted a bo ve in this case d efe nda nt has not produced a ny typ e of evide nce t o sho w that p rior t o 14.5.1972 the dat e on which marria ge of Fake era bi was sol em nized wi th Huches ab Sa nna mani mari tal rela tio nship of Fak eerabi a nd Moula sab Me nas agi wa s dis sol ved e ither by way of div or ce or by the death of Moulas ab M enas age . He nc e, I have pr es um ed that t he m arria ge of Fa keer abi D /o Fa krusab N adaf sole mniz ed wit h Huche sa b s /o Na bisab Sannamani wa s invalid a nd v oid as pe r Moha mm edan La w. As t he ma rriage o f Fakeera bi D/o Fa krsua b Na daf s olem nized with H uc hesab Na bisab Sa nna ma ni was v oid a nd inval id the defe nda nt Fat obi who ar e offsp ri ngs of v oid marria ge c annot be co nsid er e d as a le gal repres entative of H uc hesa b Sa nnama ni . The material availa ble on r ecord s hows t hat the plaintiff w as born after the d eat h o f H uc hes ab Sannamani. It is not t he case of t he de f endant t ha t H uc hesa b Sannamani has ac knowl edge d him as a so n. It is adm itt ed by the def e nda nt that his mot her Fak eerabi has go t m entioned his nam e as so n of Huc hesa b Sa nnamani in the sc hool rec ords. H ence it is to be pres umed tha t the defe nda nt is not a son of H uchesa b S annama ni. Und er Mo hamm e da n Law t he r ul e of f act umula te whic h is available in Hi ndu la w is not in e xist ence . Ac cording to Mom ma dan law either directly on i ndirectly it is no t poss ible to
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NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 pr es um e that the de f endant is a le gitimate so n of H uc hesa b Sa nnam ani. He nc e wit hout muc h disc ussio n I c am e to the c oncl us ion t hat the plaintiff is t he only so n o f H uches ab S anna ma ni a nd marria ge of Fa kee rabi s olem nized with H uc hesa b Sa nnam ani on 14.5.1972 as me ntio ne d in t he docum ents marke d at e xhibit D-6 and D-7 is a vo id ma rri age as s uch Fake era bi is not the le gal ly we dded 2nd wif e o f Huc hesab N abisab Sannamani. He nce I a nswe r Issue NO. 1 in the affirma tiv e. A nd Is sue N o. 4 i n the ne ga tiv e. "
28. Since the defendant pleaded that he is the son born to Fakiramma through Huchchesab who is the father of the plaintiff, it was incumbent on the defendant to establish that the marriage of Fakiramma with Huchchesab was a valid marriage.
29. Admittedly, since the elder brother namely Moulasab Sannamani has signed as guardian of the defendant as discussed supra as is found in Ex.C.1, Fakiramma must have been married to Moulasab Menasagi as is suggested to DW.1 by the plaintiff in the year 1966.
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NC: 2023:KHC-D:7274 RSA No. 1467 of 2007
30. Unless the first marriage of Fakiramma with Moulasab Menasagi is duly dissolved as per the Mohammadan law, her marriage with Huchchesab should be considered as a 'Batil' marriage.
31. Therefore, even though the defendant is the son of Huchchesab through Fakiramma, he would be considered as an illegitimate son. Therefore, the finding recorded by the First Appellate Court without there being any discussion that the defendant and his sister Fatubi are the legitimate son and daughter of Fakiramma needs interference by this Court in this appeal.
32. In the absence of any plausible evidence placed on behalf of the defendant that Fakiramma was eligible to marry Huchchesab, without there being a decree of divorce or dissolution of marriage in accordance with the Mohammadan law as is discussed by the trial Court in paragraph No.41 referred to supra, this Court is of the considered opinion that contrary finding recorded by the learned Judge in the First Appellate Court holding that the
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NC: 2023:KHC-D:7274 RSA No. 1467 of 2007 defendant is a legitimate son and therefore dismissing the suit, in the considered opinion of this Court is a perverse finding.
33. Accordingly, from the above discussion, invariably, the substantial question of law raised above is to be answered in affirmative and accordingly it is answered and following order is passed.
ORDER The appeal is allowed and the judgment of the First Appellate Court passed in R.A. No.68/2003 dated 08.01.2007 is hereby dismissed and the decree passed by the trial Court in O.S. No.52/2001 dated 28.01.2003 is restored.
In the facts and circumstances of the case, there is no order as to costs.
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JUDGE CLK/SH List No.: 3 Sl No.: 4