Delhi District Court
Nusrat Fatima @ Zeba vs Abdul Rashid And Ors on 30 June, 2025
IN THE COURT OF DISTRICT JUDGE-05,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Presided by:-
Sh. Abhishek Srivastava, DHJS
RCA DJ No. 176/2018
CNR No:- DLCT01-015011-2018
Sh. Nusrat Fatima @ Zeba,
W/o Late Sh. Mohd. Razique Warse,@ Nazaare,
D/o Sh. Faiyaz Ahmad,
R/o H.NO. 238, Gali No. 7,A-Block,
Amrit Vihar, Burari, Delhi-110084 .......Appellant
Vs.
1. Sh. Abdul Rashid,
S/o Late Sh. Abdul Khalique @ Mohd. Khalique,
R/o Village & PO Bela-De-Adam,
Tehsil Patepur, PS-Baligaon,
Distt. Vaishali, Bihar,
Also At
H.No. C-29, Budhi Nagar, Inderpuri,
New Delhi.
2. Mohd. Zahid,
S/o Late Sh. Abdul Khalique, @ Mohd. Khalique,
R/o Village & PO Bela-De-Adam,
Tehsil Patepur, PS-Baligaon,
Distt. Vaishali, Bihar.
RCA DJ No. 176/2018
Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 1 of 21
3. Smt. Guddo
W/o Nakse Lal,
R/o C-105, Lal Bagh Flats,
Azadpur, Delhi-110033. ......Respondents
Date of Institution:- 12.11.2018
Date of conclusion of
final arguments:- 26.03.2025
Date of Judgment:- 30.06.2025
1. This is an appeal under Section 96 of CPC, 1908, challenging the judgment
and preliminary decree dated 25.09.2018 (henceforth 'impugned judgment'),
passed by the Court of Ld. Civil Judge- 07, Central District, Tis Hazari Courts,
Delhi (henceforth 'Ld. Trial Court') in Suit No. 98506/2016, 'Abdul Rashid V/s
Nusrat Fatima @ Zeba & Ors." (henceforth 'subject Suit'), whereby, the Suit of
the plaintiff for partition, possession and permanent injunction was decreed.
2. Appellant herein was the defendant No. 1 and the respondent No. 1 herein
was the plaintiff in Trial Court proceedings. Respondent Nos. 2 and 3 herein
were the defendant Nos. 2 and 3 in Trial Court proceedings. For convenience,
parties are referred to as per their original rankings before the Learned Trial
Court.
BRIEF FACTS OF THE CASE, AND THE PROCEEDINGS BEFORE THE
LEARNED TRIAL COURT
3. That the defendant no. 1 is the wife of the youngest brother of the plaintiff and defendant no. 2, namely Mohd. Razique Warsi @ Nazaare. Mohd. Razique Warsi @ Nazaare had purchased two vacant plots from the defendant no. 3 vide two separate sets of registered GPA, Agreement to sell, affidavit and receipt, all dated 08.11.2004, and subsequently developed/ constructed the same, out of his own funds, as a double storey building. Mohd. Razique Warsi @ Nazaare as such was the absolute and exclusive owner of the entire built up double storeyed property measuring the ground area 25+25=50 Sq. Yds. (part of Khasra No. RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 2 of 2138/10) at Gali No. 7, 'A' Block, Amrit Vihar, Burari, Delhi- 110084 (hereinafter referred to as 'suit property'). That Mohd. Razique Warsi @ Nazaare died on 24.08.2007 in an accident leaving behind his widow (defendant No. 1) and brothers (plaintiff and defendant no. 2). As per the Mohammedan Law the said property would devolve to the extent of 1/4th share in favour of defendant no. 1 and 3/8th share in favour of plaintiff and defendant no. 2 each.
4. The defendant No. 1 appeared in response to the summons of the Suit. In the written statement of the defendant No. 1 it was inter-alia pleaded that the plaintiff has not valued the suit properly for the purpose of court fees; that the suit of the plaintiff is bad for mis-joinder of party as the defendant No. 3 is not a necessary party; that the plaintiff and defendant no. 2 are not entitled to any relief as they have waived their right in the suit property by executing a document on 28.08.2007 to the effect that they shall not claim any right in the suit property in future and answering defendant shall be the sole and exclusive owner of the same; that the parties to the suit are not governed by the Mohammedan Law, rather would be governed by the provisions of Indian Succession Act, 1925; that the plaintiff has not sought partition of all the properties which are available for partition; that the deceased husband of the answering defendant was not the sole and exclusive owner of the suit property as the deceased husband utilised/ invested an amount of Rs. 1,50,000/- in cash (after borrowing the same from uncle of defendant no. 1) and Rs. 70,000/- (utilizing jewelry worth Rs. 70,000/- of defendant no. 1 given to her by her parents) in purchase of the land and construction of the suit property, and with these pleadings it is prayed that the suit of the plaintiff is liable to be dismissed with costs.
5. As none appeared on behalf of the defendant No. 2 and the defendant No. 3 they were proceeded ex-parte.
RCA DJ No. 176/2018Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 3 of 216. On the basis of the pleadings of the parties, following issues were settled by the Ld. Trial Court vide order dated 13.01.2009:-
1) Whether the plaintiff is entitled to a decree for partition, as prayed for?
OPP
2) Whether the plaintiff is entitled to a decree for permanent injunction, as prayed for? OPP
3) Whether the suit of the plaintiff is under valued? OPD
4) Whether the suit is bad on account of non-joinder/ mis-joinder of parties? OPD
5) Relief.
7. In order to substantiate his case, the plaintiff examined five witnesses. The plaintiff examined himself as PW1, Smt. Guddo (defendant No. 3) as PW3, Sh. Nakshe Lal (husband of defendant No. 3) as PW4, Mohd. Nirale (son of plaintiff) as PW4 and Sh. Tara Adhikari (UDC from record room, THC, Delhi) as PW5. On the other hand, from the side of the defendant No. 1, three witnesses were examined. Defendant No. 1 examined herself as DW1, one Sh. Shabbir as DW2 and Sh. Rijwan Ahmed as DW3.
FINDINGS OF LEARNED TRIAL COURT
8. After hearing arguments on behalf of both the parties and upon appreciation of evidence led on their behalf, Ld. Trial Court vide impugned judgment dated 25.09.2018, while deciding the issues No. 1 and 2 in favour of the plaintiff and issue No. 3 and 4 against the defendant No. 1, decreed the Suit of the plaintiff. Findings of Ld. Trial Court may be summarised as follows:-
(a) Submissions made on behalf of the defendant No. 1 that her deceased husband was not the owner of the suit property because there was/ is no sale deed in his favour, and that the suit property was not purchased solely from the funds available with the deceased husband are mutually destructive and self contradictory.RCA DJ No. 176/2018
Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 4 of 21On the one hand, the defendant No. 1 is contending that her husband had purchased the suit property however not solely from his own funds, and on the other hand it is contended that he is not the owner of the property.
(b) The defendant No. 1 has failed to prove that an amount of Rs.
1,50,000/- was given by the uncle of the defendant No. 1 to her deceased husband for purchase of the suit property. Her uncle who had allegedly given the said money was not examined in the court. In any case, the liability of the deceased husband would only be to the return the borrowed money and it can not be said he is not the owner of the suit property. Similarly, the defendant No. 1 has failed to prove that she had given an amount of Rs. 70,000/- for purchase of suit property. Admittedly, the property was purchased in the year 2004 and the defendant No. 1 was married on 22.04.2006.
(c) Document executed on 28.08.2007 Ex.PW1/D1 is not a valid document which could have transferred the rights of the plaintiff and the defendant No. 2 in the Suit property in favour of the defendant No. 1. Even otherwise, document Ex.PW1/D1 can not be used against the plaintiff and the defendant No. 2 as there can be no estoppel against the law.
(d) Defendant No. 1 has failed to lead any evidence showing that there were any other properties liable to be partitioned which the plaintiff failed to include in the suit.
(e) It is not the case of the parties that they are Shiyas and therefore they would be governed by Hanafi Law of Inheritance. As per law, the defendant No. 1 (wife of deceased) who happens to be a sharer would be entitled to 1/4th share in the suit property (as she has no RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 5 of 21child or child of a son). Plaintiff and the defendant No. 2 being residuaries would be entitled to inherit remaining property to the extent of 3/4th jointly and 3/8th separately.
(f) Plaintiff is entitled for permanent injunction restraining the defendant No. 1 from alienating the suit property except to the extent of her own share.
(g) It is a settled principle that in a suit for partition, the plaintiff has to affix the court fee only on the value of his own share and not on the whole suit property.
(h) Defendant No. 1 has failed to lead any evidence that the suit is bad on account of non-joinder/ misjoinder of parties.
GROUNDS OF APPEAL
9. The aforesaid judgment has been challenged by the defendant No. 1 in the present appeal inter alia on the following grounds:-
(A) That the Ld. Trial Court vide Order dated 22.09.2014 wrongly decided the additional issue No. 1A (framed on 11.08.2014) by holding that the parties are governed by Shariat Law. Inheritance under Muslim Law should be governed by provisions of Indian Succession Act, 1925.
(B) That the Ld. Trial Court failed to appreciate that the alleged documents of ownership marked as Mark A to Mark D (Power of Attorney, Agreement to Sell, Affidavit and receipt) are not proof of ownership of deceased Mohd. Razique Warsi @ Nazaare over the suit property. It is settled law that ownership of an immovable property can only be transferred by way of registered Sale deed. (C) That the Ld. Trial Court failed to appreciate the respective testimonies of PW3 (Smt. Guddo) and PW4 (Sh. Nakse Lal) in RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.Judgment dated 30.06.2025 Page No. 6 of 21
perspective as they failed to disclose the name in whose favour PW3 executed the documents on 08.11.2004.
(D) That the Ld. Trial Court failed to appreciate that the PW1 (plaintiff) was not a competent witness to depose about the document Mark A to Mark D as PW1 was neither the executant nor a witness to the document.
(E) That the Ld. Trial Court committed grave error in relying on an admission of defendant No. 1 that her deceased husband was the owner of the Suit property. Ownership of immovable property can only be established by a registered Sale deed and not on mere admission of a person which may be made under the wrong impression.
(F) That the Ld. Trial Court committed grave error in relying upon the Mark A to Mark D which were not proved in accordance with law. (G) That the Ld. Trial Court wrongly disbelieved the taking of loan of Rs. 1,50,000/- by the husband of defendant No. 1 from the uncle of defendant No. 1. Further, Ld. Trial Court wrongly disbelieved the defendant No. 1 (DW1) on the aspect of her providing assistance of Rs. 70,000/- to her deceased husband. Ld. Trial Court failed to appreciate that if any amount of loan is utilised in the purchase of an immovable property or in construction thereof is a charge on the said immovable property.
(H) That the Ld. Trial Court wrongly observed and held that Ex.PW1/D1 is a relinquishment deed and is not a valid document. Contention of the defendant No. 1 was that Ex.PW1/D1 is a declaration to the effect that whole ownership of the suit property would be with the defendant No. 1.
RCA DJ No. 176/2018Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 7 of 21(I) That the Ld. Trial Court has wrongly held that the plea of non-
inclusion of the property situated in the native village (available for partition) is not taken by the defendant No. 1. Plaintiff has admitted in cross-examination that all the brothers have an equal share in the property situated in the native village.
(J) That the Ld. Trial Court failed to appreciate that in the present case the plaintiff was to pay the court fee on the whole value of the suit property and not as per his own share.
REPLY
10. No reply to the appeal has been filed on behalf of the respondents. ARGUMENTS
11. Arguments were heard on behalf of the appellant and respondent Nos. 1 and 2. Ld. counsel for the appellant during arguments questioned the judgment of the Ld. Trial Court on the grounds referred above and prayed for its setting aside. Per Contra, Ld. Counsels for the respondent Nos. 1 and 2 submitted that the Ld. Trial Court rightly decided the Suit and prayed for the dismissal of the present appeal with costs. The written arguments have also been filed on behalf of the respondent No. 1 and 2.
REASONING
12. In essence, the appellant (defendant No. 1) is challenging the impugned judgment and the preliminary decree on following five grounds;
(A) Shariat Law would not be applicable. Inheritance would be governed by provisions of Indian Succession Act, 1925. (B) Plaintiff has failed to prove the ownership of the deceased (propositus) Mohd. Razique Warsi @ Nazaare over the suit property.
RCA DJ No. 176/2018Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 8 of 21(C) Plaintiff and the defendant No. 2 vide document Ex.PW1/D1 declared to the effect that whole ownership of the suit property would be with the defendant No. 1.
(D) Plaintiff has failed to include all the properties available for partition in the present Suit.
(E) Plaintiff has wrongly valued the Suit for the purpose of Court fee and jurisdiction.
13. Let us deal with all the five grounds (taken by the appellant) one by one.
14. The Muslim Personal Law (Shariat) Application Act, 1973 governs the non-testamentary succession. However, different Shariat laws apply to the Sunni and Shia sects of Muslims. Section 2 of the Act reads as under;
2. Application of Personal Law to Muslims.--Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
15. Part V of the Indian Succession Act, 1925 deals with Intestate Succession. Section 29 of the Act states that this part shall not apply to the property of Muhammadan. Thus, submissions of Ld. Counsel for the appellant is clearly in the teeth of the Act.
16. In the considered view of this Court Ld. Trial Court correctly held that the parties in the matter would be governed by the Shariat Law. Ld. Trial Court is further correct in holding that [I]t is to further observe that it is not the case of RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 9 of 21either of the parties that they are Shiyas and therefore they are to be governed by Hanafi Law of Inheritance.
17. Plaintiff's case is that the deceased (propositus) Mohd. Razique Warsi @ Nazaare purchased the vacant plots from the defendant No. 3 vide two separate sets of registered GPA, Agreement to sell, affidavit and receipt, all dated 08.11.2004, and subsequently developed/ constructed the same, out of his own funds, as a double storey building. Ld. Counsel for the appellant while relying on a decision of Hon'ble Supreme Court in Suraj Lamp & Industries Pvt. Ltd. V/s State of Haryana & Anr.; AIR 2012 SC 206 contended that the plaintiff, who seeks partition of the suit property, fails to prove the ownership of the deceased over the suit property and as such the suit is liable to be dismissed. It was also argued on behalf of the appellant that since the plaintiff has filed photocopies of registered GPA, Agreement to sell, affidavit and receipt (Mark A to Mark D), these documents can not be considered for proving the contents of these documents.
18. Case of the plaintiff is that the deceased Mohd. Razique Warsi @ Nazaare purchased the vacant plots from the defendant No. 3 Smt. Guddo through documents Mark A to Mark D. Plaintiff to prove these facts examined himself as PW1, vendor (defendant No. 3) as PW3, husband of defendant No. 3 Sh. Nakselal as PW4, and his son Mohd. Nirale as PW4 (inadvertently PW4 has been given to two witnesses). PW3 Smt. Guddo deposed to the effect that I had sold the suit property to a person whose name I do not remember. On 08.11.2004 vide two separate sets of registered GPA, agreement to Sell, affidavit and receipt and the same has already marked as 'A' collectively which bears my sign at point A & B. Those documents have photographs of mine and purchaser which are at point C & D . PW4 Sh. Nakselal deposed to the effect that I was the attesting witness of the document which is already marked as Mark RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 10 of 21'A' collectively and I put my thumb impression at point 'X' . Perusal of documents Mark A to Mark D shows that these documents are executed by Smt. Guddo in favour of Mohd. Razique Warsi @ Nazaare.
19. Section 60 (a) of the Bharatiya Sakshya Adhiniyam, 2023 (Section 65 (a) of the Indian Evidence Act, 1872) speaks about giving secondary evidence of document(s) in case where the originals are in power and possession of the person against whom the document is sought to be proved, and when after notice mentioned in Section 64 BSA, 2023 (Section 66 of IEA, 1872), such person does not produce it.
20. It appears that during the trial, the plaintiff served the defendant No. 1 with a notice under Order 12 Rule 8 CPC (Copy filed in Court on 13.01.2009). It appears that the said notice was sent through Regd. AD/ U.P.C. The same are exhibited as Ex.PW1/2. It further appears that at the time of exhibiting of Ex.PW1/2, an objection was raised on behalf of defendant No. 1 regarding mode of proof. Fact remains that no suggestion was given to PW1 that no such notice was sent to the defendant No. 1 on behalf of the plaintiff. By way of notice, the defendant No. 1 was asked to produce all the original documents in her custody pertaining to suit property. It seems that the defendant No. 1 failed to produce the original documents. To my mind, giving such a notice was sufficient notice to the defendant No. 1 as required under section 64 BSA, 2023. Section 64 of the Bharatiya Sakshya Adhiniyam, 2023 speaks about 'such notice to produce as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case'.
21. Hon'ble High Court of Delhi in Prem Chandra Jain V/s Sri Ram; 2009 (113) DRJ 617 has held that there is no need to file an application for leading secondary evidence. It has further been held that a party seeking to prove documents by secondary evidence is required to lead evidence of the existence RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 11 of 21of circumstances/situations in which secondary evidence is permissible, and whether or not a case for leading secondary evidence has been made out is to be decided at the stage of disposal of the suit. Hon'ble High Court of Delhi reiterates these principles in Sanyogta Prakash V/s Dhir Bala Malhotra & Ors., 2010 (115) DRJ 109. Thus, it was not at all incumbent on the plaintiff to move any application for leading secondary evidence.
22. In the given facts and circumstances of the case, this Court is of the considered view that the plaintiff has been able to prove the circumstances permitting him to lead secondary evidence to prove documents Mark A to Mark D. The plaintiff on the basis of secondary evidence Mark A to Mark D has been able to prove that Mohd. Razique Warsi @ Nazaare was the owner of the Suit property albeit not in the classical sense.
23. As already noted, Ld. Counsel for appellant has argued that since there was/ is no Sale deed in favour of deceased (propositus) Mohd. Razique Warsi @ Nazaare, he can not be considered as owner of the Suit property. It is an admitted case that Mohd. Razique Warsi @ Nazaare before his demise was in occupation/ possession of the Suit property. Defendant No. 1 in her evidence affidavit Ex.DW1/A deposed to the effect that Sh. Razique Warsi @ Nazaare acquired the suit property for the management and control through Power of Attorney dated 08.11.2004 after payment of premium.
24. It thus stands admitted/ proved that Mohd. Razique Warsi @ Nazaare dehors ownership rights in the classical sense had right in the Suit property, may be, merely possessory rights. On Mohd. Razique Warsi @ Nazaare demise, the defendant No. 1 is exclusively enjoying the said rights. Defendant No. 1, while continuing to enjoy the said rights, can not deny the rights/ shares of the plaintiff and the defendant No. 2 on the specious plea that Mohd. Razique Warsi @ Nazaare is not proved to be the owner of the Suit property.
RCA DJ No. 176/2018Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 12 of 2125. Here, I would like to refer to certain paras of judgment passed by Hon'ble High Court of Delhi in Surjit Singh & Ors. V/s Ekta Gulati & Ors.; 2012 SCC OnLine Del 4233;
"5. In the circumstances, what stands admitted/proved is that the father of the parties, namely Shri Purushottam Singh was having rights in the said shop, whether they be ownership rights or rights by way of adverse possession or merely possessory rights. The said rights, on the demise of Shri Purushottam Singh, are being enjoyed by the appellants only who are but two out of five legal heirs of Shri Purushottam Singh. The appellants, while continuing to enjoy the said rights, cannot deny the share of the daughters of Shri Purushottam Singh therein on the specious plea of Shri Harbhajan Singh being the recorded owner of the shop.
6. It is significant to note that the appellant do not claim the possessory rights of the shop from Shri Harbhajan Singh and the appellant no 1 in his cross examination recorded on 30th April 2011 expressly admitted, "I am in possession of this property through my father". On specific query today also as to whether the appellants claim to be occupying the shop under any authority from the legal heirs of Shri Harbhajan Singh, the counsel replies in negative.
7. Once it stands proved that the possession of the appellants of the shop is by inheritance from the father, I am of the view that possessory rights i.e. the right to control property including the right to exclude others are a facet of different kinds of rights over immoveable property and can be subject matter of partition and such possessory rights by a person who is not necessarily the owner cannot be appropriated by few only of the legal heirs to the exclusion of others and all the legal heirs are entitled to a share in the said possessory rights with respect to the property."
(Underlined by me) RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 13 of 2126. It may be noted that the decision in Sunil Gupta V/s Nargis Khanna; 2018 SCC OnLine Del 9082 too is a precedent for the proposition that even possessory rights in an immovable property can be subject matter of partition. Hon'ble High Court of Delhi in Sunil Gupta Case while referring to Iresh Duggal V/s. Virender Kumar Seth; 2014 SCC OnLine Del 6674, Bharat Insulation Company V/s. Suraj Parkash; (2015) 221 DLT 216 and Dalip Kumar V/s. Om Prakash 2015 SCC OnLine Del 11768 observed that even tenancy rights are capable of partition between two or more tenants. Hon'ble High Court while referring to UOI V/s. Mohinder Pratap Soni; 2016 (157) DRJ 221, Madan Lal V/s. Kuldeep Kumar; MANU/DE/4039/2013, Pragun Buildtech (P) Ltd. V/s. Sarla Aggarwal; 190 (2012) DLT 164, Surendra Pal V/s. Ravindra Pal Singh; (2014) 5 HCC (Del) 369 and Satish Kumar Chojar V/s. Subhashni Chopra; (2014) 7 HCC (Del) 376 further observed that conditions in the lease deed prohibiting partition of leasehold interest do not come in the way of partition of the superstructure.
27. In Shyam Behari & Ors. V/s Ram Kishan & Ors., 2013 X AD (Delhi) 236, partition suit had been filed qua a property allotted by DDA to one late Sh. Munna Lal. It was held that though late Sh. Munna Lal did not own the suit property allotted by DDA, yet the partition suit was very much maintainable. Hon'ble High Court of Delhi held that [T]he law of inheritance/succession covers all assets of the deceased; an immovable property, even if on license, would be a valuable asset of the deceased and in the absence of the law or any provision under which the said allotment was made, making a distinction, I am unable to accept the argument of the counsel for the appellants/defendants.
28. The point therefore is that it is not necessary that only those properties can be subject matter of partition that are proved to have been under 'ownership' rights on paper.
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Judgment dated 30.06.2025 Page No. 14 of 2129. In this connection another argument of Ld. Counsel for appellant may also be considered. It was argued that the Suit property was not solely purchased from the funds of the deceased husband. Her deceased husband took a loan of Rs. 1,50,000/- from her uncle. Even she provided an amount of Rs. 70,000/- to her husband. In the considered view of this Court her mere self serving ipse dixit to this effect will be of no avail. I am in agreement with the findings of Ld. Trial Court in this regard which I am reproducing herein below;
"14...Again, regarding the plea that amount of Rs. 1,50,000/- was given by uncle of defendant no. 1 for purchase of suit property has not been proved by way of any evidence. Her uncle who had allegedly given the said money himself was not examined before the court. Even if, it is admitted for sake of arguments that any such money was given by uncle of defendant no. I to her deceased husband for purchase of suit property, it does not mean that the deceased husband did not become absolute owner of the suit property and his only liability was only repayment of said amount. Similarly, no evidence is led on behalf of defendant no. 1 to prove that she had given amount of Rs. 70,000/- for purchase of said property. Moreover, admittedly the property was purchased in the year 2004 and defendant no. 1 was married on 22.04.06 as submitted in her cross examination. Again, there is no evidence that this amount was given for construction of the suit property. Therefore, this plea also remains not proved."
30. During arguments much emphasis was given to a document Ex.PW1/D1. Ld. Counsel for the appellant argued that the plaintiff and the defendant No. 2 vide document dated 28.08.2007 Ex.PW1/D1 declared to the effect that whole ownership of the suit property would be with the defendant No. 1. Defendant No. 1 in order to prove Ex.PW1/D1 examined two witnesses DW2 Sh. Shabbir (a scribe who wrote the document dated 28.08.2007) and DW3 Sh. Rizwan Ahmed (one of the attesting witnesses to the document dated 28.08.2007).
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Judgment dated 30.06.2025 Page No. 15 of 2131. It may be noted that Ex.PW1/D1 is a handwritten document attested by some of the witnesses. This is neither notarized nor registered.
32. The Registration Act, 1908, unlike the Transfer of Property Act, 1882, strikes only at documents, and not at transactions. In the same way, the Registration Act does not require that every transaction affecting immovable property should be carried out only through a registered instrument. All that it enacts is that when a document is employed to effectuate any of transactions specified in Section 17 of the Act, such document must be registered.
33. Mulla in his book The Registration Act (Eleventh Edition) writes and I quote that Section 17 (1) (b) of the Registration Act is so broadly worded that any non-testamentary instrument, which either creates or assigns right, title and interest or allegedly does so can be registered. Such a broad language was used by the legislature to see that any document of transfer of immovable property does not escape the compulsory registration.
34. The import of contents of Ex.PW1/D1 is that the plaintiff and the defendant No. 2 would have no right/ title/ interest in the Suit property and the whole ownership of the suit property would be with the defendant No. 1. Clearly, the document Ex.PW1/D1 (be it a declaration/ waiver/ relinquishment) appears to be one such document which is required to be compulsorily registrable under Section 17 of the Registration Act, 1908. Section 49 of the Registration Act, 1908 deals with the effect of non-registration of documents which is compulsorily registrable under Section 17 of the Act. Section 49 provides that any document so required to be registered shall not, unless it has been so registered (1) affect any immovable property comprised therein, or (2) be received as evidence of any transaction affecting such property. And, as already noted, Ex.PW1/D1 is not a registered document.
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Judgment dated 30.06.2025 Page No. 16 of 2135. Then there was an argument by the Ld. Counsel for the appellant that the Suit of the plaintiff must fail as the plaintiff did not include all the properties available for partition in the present Suit. Ld. Counsel for the appellant has drawn the attention of the Court to the testimony of PW1 who deposed in cross- examination to the effect that [M]y deceased brother Sh. Nazare was having equal share in the residential house in the village till his time alongwith me and my another brother Mohd. Zahid.
36. It may be noted that the present Suit is regarding partition of a property solely owned by Mohd. Razique Warsi @ Nazaare. It is not the case of the defendant No. 1 that there was any other property which was owned by Mohd. Razique Warsi @ Nazaare. Further, defendant No. 1 has not led any positive evidence (oral or documentary) showing/ proving that there is any other property wherein her deceased husband (at the time of his death) had a vested right, title or interest. So far as cross-examination of PW1 is concerned, to appreciate the context, it should be read in its entirety. PW1 deposed in cross- examination to the effect that [M]y deceased brother had no property in our native village. As on date I have no property in Bihar. I am residing in a house built over the land gifted to my mother by her parents. The said land underneath the said house is in the name of my maternal uncle. The gift in favour of my mother was oral. The said gift was orally made by my maternal uncle. I have not taken any step to get the said house mutated in the name of all three brothers after the death of my mother. My deceased brother Sh. Nazare was having equal share in the residential house in the village till his time alongwith me and my another brother Mohd. Zahid.
37. In any case, partial partition is permissible amongst the Muhammedans. I am quoting certain paras from a decision rendered by Hon'ble the Jammu & RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 17 of 21Kashmir High Court in Khazir Bhat V/s Ahmad Dar and Others reported as AIR 1960 J & K 57;
6. The main question that falls for consideration, therefore, is whether their is substance in the contention that the suit as framed can be held to be incompetent as seeking what is called partial partition. In dealing with this question, we have to bear in mind what I stated earlier namely, that the parties are Mohammadans who claim to be heirs under the Mohammadan Law in respect of the property in question.
7. The doctrine of partial partition is applicable only to a Hindu coparcenary where the coparceners are joint in estate and not to Muslims who are only tenants in common. Under the Mohammadan Law the heirs of a deceased Mohammedan succeed to a definite fraction of every part of his estate.
8. The doctrine of survivorship is not known to Mohammedan Law. The shares of heirs under the Mohammedan Law are definite and known before actual partition, whereas under the Mitakshara Law no individual member of an undivided family can predicate of the joint family property that he has a certain definite share. The theory of Hindu Law is that every coparcener is entitled to the entire joint family property, that is to say, every part of it and the share of no coparcener in the undivided coparcenary can be limited to a specified item of property or to a definite share of it. This is certainly not the case regarding the heirs under the Mohammedan Law who are only tenants in common and whose shares ate definite and specified in law.
9. All that happens on partition is a division by metes and bounds and separate possession and enjoyment of specified items of property, the specific share of each heir being already determined by the law itself. It is unnecessary to set out the other points of difference between the two systems of law. Suffice it to say that the principle of partial partition RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 18 of 21which is applicable to a Hindu coparcenary is not applicable to co-heirs under the Mohammedan Law.
10. If authorities are needed for this proposition, I may cite Vazir v. Dwarkamal AIR 1922 Sind 41 (FB). This position has been pointed out in several other decisions, see for instance, Relumal v. Huzur Baksh AIR 1947 Sind 179. I may also refer to a Division Bench ruling of the Madras High Court in Moideensa Rowthen v. Muhammad Kasim Rowthen 28 Ind Cas 895 : AIR 1916 Mad 248. Ayling and Tyabji JJ. pointed out in that decision as follows:
"With reference to the first point (i.e., whether a suit for partial partition was maintainable) it need only be stated that under Mohammedan Law the estate of a deceased person devolves on his death on his heirs and each of the heirs becomes entitled to his definite fraction of every part of the estate. It is, therefore, futile to describe a suit in which one heir claims to receive his share of the property of the deceased from another heir as a suit for partial partition and to say that, therefore, the suit is not maintainable. Both the terminology and the principles of Hindu Law are in such a case inapplicable."
11. It does not appear to be necessary to dwell upon this aspect of the case at any greater length. It is not a correct proposition of law to say that Muslim sharers who are tenants in common are obliged to sue for partition of all the properties in which they are interested. There is nothing to preclude one of them from seeking a partition of some of the items of the properties.
12. Such a suit cannot be held to be incompetent on the doctrine of partial partition which is known and applied to suits for partition of Hindu joint family property. Banakara Basavana Gowd and Others Vs. Banakara Doddalingappa and Another, and Mulji Narotam v. Hiralal AIR 1929 Bom. 424 relied on by the learned District Judge are not RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 19 of 21relevant to the real point at issue. These decisions merely deal with the rule of Hindu Law as applied to the particular facts; they have no application to a suit for partition by Muslim co-sharers, nor arc they apposite to the facts of a case like the present.
(Underlined by me)
38. Lastly, it was contended on behalf of the appellant that the plaintiff has wrongly valued the Suit for the purpose of Court fee and jurisdiction. In a suit for partition the jurisdictional value is the value of the suit property and court fee is payable on the share claimed. If the plaintiff is not in possession of the property (suit property), court fee on the share claimed has to be paid. Plaintiff has pleaded the market value of the Suit property of Rs. 1,50,000/- and paid the Court fee of Rs. 2,930/- on Rs. 56,250/- (value of 3/8th share of the Suit property). No contrary evidence has been led on behalf of the defendant No. 1. Plaintiff as such has rightly valued the Suit for the purpose of Court fee and jurisdiction.
39. From the above discussion this Court concludes that the suit of the plaintiff is rightly decreed by the Ld. Trial Court and there is no error in the impugned judgment and preliminary decree dated 25.09.2018. The plaintiff is entitled to 3/8th share in the Suit property. Likewise, the defendant No. 1 is entitled to 1/4th share in the Suit property and the defendant No. 2 is entitled to 3/8th share in the suit property.
40. Parties to the Suit are at liberty to effect the partition of the Suit property, which is situated at Gali No. 7, A-Block, Amrit Vihar, Burari, Delhi-110084 measuring 50 Sq. Yds. by metes and bounds within 3 months from today, failing which the Ld. Trial Court would pass a final decree as per law.
41. The present appeal is thus dismissed and the impugned judgment and preliminary decree dated 25.09.2018 passed by Ld. Civil Judge- 07, Central RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.
Judgment dated 30.06.2025 Page No. 20 of 21District, Tis Hazari Courts, Delhi in Suit No. 98506/2016 is upheld. Parties to bear their own costs.
42. Preliminary decree sheet be prepared accordingly.
(Announced in the open court on this 30th day of June, 2025 This Judgment consists of Twenty One of signed pages).
(Abhishek Srivastava) District Judge-05, Central, THC, Delhi Digitally signed by ABHISHEK ABHISHEK SRIVASTAVA SRIVASTAVA Date:
2025.06.30 15:14:38 +0530 RCA DJ No. 176/2018 Nusrat Fatima @ Zeba Vs. Abdul Rashid & Ors.Judgment dated 30.06.2025 Page No. 21 of 21