Bangalore District Court
Sardar Ali Khan vs Aliya Begum on 19 December, 2019
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 19th day of December, 2019.
O.S.No.25943/2013
Plaintiffs: 1. Sardar Ali Khan,
Aged about 51 years,
S/o Late Hyder Ali Khan,
R/at No.30, Sultanji Gunta Road,
New Bamboo Bazaar,
Bangalore01.
2. Kaleemulla Khan,
Aged about 49 years,
S/o Late Hyder Ali Khan,
No.41, 3rd Cross, 5th Main,
1st Floor, Ganganagar,
Bangalore32.
2 OS No.25943/2013
3. Aleemula Khan,
Aged about 49 years,
S/o Late Hyder Ali Khan,
No.17, Muthyalamma Koil C Street,
1st Floor, Bangalore01.
[By M/s Manzoor Pasha & Co.,Advocate]
V/s
Defendants: 1. Aliya Begum,
W/o Zameer Ahmed Khan,
Aged about 54 years,
R/at No.24, Cleveland Town C Street,
(Haines Road Cross), Bangalore05.
2. Liyaqath Ali Khan,
S/o Late Hyder Ali Khan,
Aged about 52 years,
R/at No.12/1, 1st Cross,
Marappa Garden, Benson Town,
Bangalore46.
3. Aquila Begum,
Aged about 53 years,
W/o Shoukath Ali,
No.603, BDA Layout, 16th Cross,
Lingarajapuram,
Bangalore84.
3 OS No.25943/2013
4. Ahmedulla Khan,
Aged about 46 years,
S/o Hyder Ali Khan,
R/at No.1207, W.Pratta,
APT, 1, Chicago, I.L 60626.
U.S.A.
Permanent R/at No.24,
Cleveland Town C Street,
(Haines Road Cross),
Bangalore560 005.
5. Hameedulla Khan,
Aged about 42 years,
S/o Late Hyder Ali Khan,
R/at No.172, Mackan Road,
(Mackan), Bangalore01.
6. Seema Sadiya Jabeen,
Aged about 39 years,
W/o Mohammed Junaid,
R/at No.10, Opp. MasjideUsman,
H.B.R Layout, 2nd Stage,
Peace Garden, Yaseen Nagar,
Bangalore45.
7. Sayeedulla Khan,
Aged about 37 years,
4 OS No.25943/2013
S/o Late Hyder Ali Khan,
R/at No.24, Cleve Land Town C Street,
(Haines Road Cross),
Bangalore560 005.
[By SJ Advocate for
Defendant Nos.2, 3 and 5]
[By GT Adv for Defendant Nos.1, 4, 6 and
7]
Date of Institution of the suit 20.06.2013
Nature of the (Suit or pronote, suit for
declaration and possession, suit for Partition Suit
injunction, etc.)
Date of the commencement of 07.02.2019
recording of the Evidence.
Date on which the Judgment was 19.12.2019
pronounced.
Year/s Month/s Day/s
Total duration 06 05 29
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
5 OS No.25943/2013
JUDGMENT
This suit is filed by the Plaintiffs against the Defendants claiming Partition of their 2/17th share each, in the Suit Schedule Property by meets and bounds.
2. Facts of the Plaintiffs case are as under:
It is the case of the Plaintiffs that, Plaintiffs and the Defendants are brothers and sisters, interse and intrun are the children of late Hyder Ali Khan and Saleemunnissa. They are Sunni Hanafi Muslims and governed by Islamic Law of Shariath.
Further it is contended that, the mother of the Plaintiffs and the Defendants by name Saleemunnissa is the sole and absolute owner of immovable property the Suit Schedule Property, as she had acquired the same, under Registered Sale Deed dtd.22.06.2000.6 OS No.25943/2013
Accordingly, her name is entered in the kahtha pertaining to the said property. The Suit Schedule Property is the western portion, the eastern portion of composite property bearing No.24 was owned and acquired by the father of the Plaintiffs and the Defendants Late Hyder Ali Khan S/o Late Dawood Khan under Sale Deed dtd.22.06.2000. Their father Hyder Ali Khan died intested on 12.04.2006 and the eastern portion of the composite property came to be settled among the children and the Plaintiffs have executed a Release Deed along with their sisters infavour of the Defendant No.1 on 02.07.2008.
The Suit Schedule Property being the Western portion of the composite property bearing New No.24, Old No.15 stands in the name of their mother. Their mother Saleemmunissa died on 30.01.2013, leaving behind her the Plaintiffs and the Defendants, as her only legal heirs. Thus, Plaintiffs are entitled to have 2/17th share in the Suit Schedule Property. The 7 OS No.25943/2013 Plaintiffs are tenants in common/cosharers of the Suit Schedule Property. They requested the Defendants to have Partition and Separate Possession, but the same was denied. The Defendants are in hurry to alienate the said property. Thus, the Plaintiffs are constrained to the filed the present suit for Partition against the Defendants.
3. Suit summons of the Suit Plaint were issued to the Defendants. The Defendant No.4 appeared through his counsel on 25.08.2013 and filed his Written Statement on 27.09.2013. Defendant No.2 appeared on 10.11.2017. The Defendant Nos.1, 4, 6 and 7 appeared through their counsel on 10.11.2017. The Defendant No.1 filed her Written Statement on 02.12.2017. The Defendant No.2 filed his Written Statement on 02.01.2018. The Defendant Nos.6 and 7 filed a Memo on 02.12.2017 adopting the contents of the Written Statement filed by the Defendant No.1.
8 OS No.25943/20134. The Defendant No.1 in her Written Statement has denied all the allegations made by the Plaintiffs in the Suit Plaint. Further admits the relationship inbetween the Plaintiffs and the Defendants, as well as that the Suit Schedule Property was acquired by her mother under Sale Deed dtd.22.06.2000, but contends that, the Defendant No.4 out of love and affection towards his mother have purchased the property in the name of his mother. Her mother Saleemunnissa was a house wife and had no source of income to purchase the Suit Schedule Property. Since Defendant No.4 had sent all the amount for purchase of the Suit Schedule Property, her mother Saleemunnissa has executed Gift Deed in his favour, inrespect of the Suit Schedule Property on 30.01.2008. Further she contends that, inrespect of the Easter portion of the composite property, which was purchased by her father Hyder Ali Khan, after his death, all her brothers and sisters have 9 OS No.25943/2013 released their respective shares by virtue of Registered Release Deed 02.07.2008. Thus, she contends that, Plaintiffs are not entitled for any share in the Suit Schedule Property. Hence, their suit is to be dismissed.
5. The Defendant Nos.6 and 7 have adopted the contends of the said Written Statement filed by the Defendant No.1.
6. The Defendant No.2 has filed his Written Statement on 02.01.2018 contending that, the Plaintiffs and the Defendants are the brothers and the sisters and the Suit Schedule Property belongs to his mother, his mother died intested. After the death of his mother all her heirs will succeed to the Suit Schedule Property. Hence prayed to decree the suit of the Plaintiffs and to allot his 2/17th share, in the Suit Schedule Property.
7. Defendant No.4 has filed his Written Statement on 27.09.2013 denying all the allegations made by the 10 OS No.25943/2013 Plaintiffs in the Suit Plaint, but admits the relationship inbetween the Plaintiffs and the Defendants. Further he contends that, he had purchased the Suit Schedule Property in the name of his mother by paying the consideration through his mother Saleemunnissa. During the life time of her mother Saleemunnissa, she has executed a Registered Gift Deed in his favour on 30.01.2008 and he has accepted the said gift and accordingly his name is mutated in the records of the said property. Thus, contends that, he has become the owner of the Suit Schedule Property, during the life time of his mother. As on the day of death of his mother, the Suit Schedule Property was not available for succession, so the Plaintiffs are not entitled for any share in the Suit Schedule Property. Hence, prayed to dismiss the suit of the Plaintiffs.
11 OS No.25943/20138. On the basis of the pleadings, my learned predecessor in office, has framed the following issues on 17.06.2019 as under:
ISSUES
1. Whether the Plaintiffs prove that, the suit schedule property is available for Partition as on the date of filing of the suit?
2. Whether the Defendant No.4 proves that, he has purchased the suit schedule property in the name of his mother Smt. Saleemunnissa, as contended by him in para No.5 of his Written Statement?
3. Whether the Defendant No.4 proves that, his mother Saleemunnissa has gifted the suit schedule property to him under registered Gift Deed dtd.30.01.2008, as contended by him in para No.5 of his Written Statement?
4. Whether the Plaintiffs prove that, they are entitle for Partition and to 12 OS No.25943/2013 have their 2/17th share each in the suit schedule property?
5. Whether the Plaintiffs are entitle for the relief of Permanent Injunction against the Defendants?
6. What order? What decree?
9. The Plaintiffs inorder to prove their case, have got examined Plaintiff No.1 as PW1 and have got marked 03documents as Ex.P.1 to Ex.P.3. PW.1 was cross examined on behalf of the Defendant Nos.1, 4, 6 and 7 on 08.07.2019. Cross examination of PW.1 by Defendant No.2 was taken as 'Nil' on 08.07.2019, as Defendant No.2 is not having any adverse interest, then that of the Plaintiffs.
Per contra, the Defendant No.4 got himself examined as DW1 and got marked 11 documents as ExD1 to ExD11. DW1 was cross examined on behalf of the Plaintiffs on 30.08.2019. Cross examination of DW.1 13 OS No.25943/2013 by Plaintiffs was adopted by the Defendant Nos.2, 3 and 5. Defendant No.1 got examined herself as DW.2. DW.2 was cross examined on behalf of the Plaintiffs on 30.08.2019. Cross examination of DW.2 by Plaintiffs was adopted by the Defendant Nos.2, 3 and 5.
10. Heard the Arguments of the Learned Counsels for the Plaintiffs and the Defendants, respectively. Learned Counsel for the Plaintiffs have filed their written arguments. Learned Counsel for the Defendant Nos.1, 4 ,6 and 7 has filed his written arguments. Learned Counsel for the Defendant Nos.1, 4, 6 and 7 has placed his reliance on the two decisions
1) of the Hon'ble Apex Court in the case of Abdul Rahim and other V/s S.K Abdul Zabar and others (Civil Appeal No.1573/2009 date of disposal 06.03.2009); 2) of the Hon'ble High Court of Gauhati in the case of Sukur Ali V/s Jarina Bibi (RSA No.51/2009 date of disposal 02.04.2015). I have carefully gone through the written 14 OS No.25943/2013 arguments submitted on behalf of the Plaintiffs and the Defendant Nos.1, 4, 6 and 7, respectively. As well as, I have carefully gone through the decisions relied by the Learned Counsel for the Defendant Nos.1, 4, 6 and 7.
11. The suit was initially allotted to CCH29. As per the notification No.PPS(CCC) 68/14 dtd.01.12.2014, of the Principal City Civil and Sessions Judge, Bangalore, the case was transferred to CCH21. Thereafter, as per the notification No. ADMI(A) 413/2018 dated 31.07.2018 of the Principal City Civil and Sessions Judge, Bangalore and same was transferred to this Court on 24.08.2018.
12. My findings on the above said issues are as under:
Issue No.1 : In the Negative;
Issue No.2 : In the Affirmative;
Issue No.3 : In the Affirmative;
Issue No.4 : In the Negative;
Issue No.5 : In the Negative;
15 OS No.25943/2013
Issue No.6 : As per final order for the
following
:R E A S O N S:
13. As per the contentions of the parties to this suit, the undisputed facts are as under: That the Plaintiffs and the Defendants are brothers and sisters interse and they are children of Hyder Ali and Saleemunnissa. Hyder Ali purchase the Eastern portion of the composite property bearing New No.24, Old No.15 situated at Cleveland Town, C Street (Haines Road Cross), Bangalore, by virtue of Registered Sale Deed dtd.22.06.2000. Said Hyder Ali died on 12.04.2006. After the death of Hyder Ali, on settlement the Plaintiffs and their sisters have released their respective shares infavour of Defendant No.1 by virtue registered Release Deed dtd.02.07.2008.
The Western portion of the said composite property bearing New No.24, Old No.15 situated at Cleveland 16 OS No.25943/2013 Town, C Street (Haines Road Cross), Bangalore, is the Suit Schedule Property in this suit.
14. ISSUE NOs. 1 to 3:
All these three issues are taken for joint discussions, as they are interlinked with each other and to avoid repetition and confusion.
The Plaintiffs contended that, the Suit Schedule Property was purchased by their mother Saleemunnissa by virtue of Registered Sale Deed dtd.22.06.2000.
The Defendant No.1 contends that, Saleemunnissa was the house wife, she was not an earning hand, the said property was purchased in the name of Saleemunissa under Registered Sale Deed dtd.22.06.2000 and the entire sale consideration amount was paid by the Defendant No.4. So her mother Saleemunnissa has executed Gift Deed dtd.30.01.2008 in the name of Defendant No.4.17 OS No.25943/2013
The Defendant No.4 contends that, since he had purchase the Suit Schedule Property in the name of his mother Saleemunnissa, she during her life time has executed a Registered Gift Deed dtd.30.01.2008, in his favour, so he has become the owner of the Suit Schedule Property and the Suit Schedule Property was not available for Partition as on the day of death of his mother.
15. The Plaintiffs have produced certified copy of the Registered Sale Deed dtd.22.06.2000 at Ex.P1. As per this document, it is seen that, Smt. Saleemunissa W/o Hyder Ali has purchased the Western portion of the property bearing No.24, Old No.15, situated at Cleveland Town, C Street (Haines Road Cross), Bangalore the Suit Schedule Property from Sri. Nazir Azeez A N for the valuable consideration of Rs.12,00,000/, out of which Rs.10,00,000/ is paid by Smt. Saleemunissa to her vendor Sri. Nazir Azeez A N, 18 OS No.25943/2013 before the SubRegistrar, byway of pay order No.070939 dtd.02.06.2000, drawn an Amanath Co operative Bank Ltd., Shivajinagar Branch, Bangalore, which can be evidenced on the basis of this document. Further these document evidences that the purchaser has been put in actual possession of the said property as on the day of its purchase.
16. Coming to the ocular evidence, more specifically cross examination of DW.1, at Page No.5, Para No.4, which reads as under: "I have not produced any document to show that I have paid the said sale consideration amount under the registered Sale Deed dt. 22.06.2000, executed in the name of my mother."
As per this evidence, Defendant No.4 contends that, he has paid the consideration amount under Ex.P1, but he admits that, he has not produced any document to show the same.
19 OS No.25943/2013Further as per the cross examination of PW.1, at page No.8, para No.4, which read as under: "It is false to suggest that Defendant No 4 has paid the consideration amout and has purchased the suit schedule property in the name of his mother Saleemunnissa."
As per this evidence, the Plaintiff has denied that Defendant No.4 has paid the consideration amount and has purchase the Suit Schedule Property in the name of his mother Saleemunissa.
Further as per the cross examination of PW.1, at Page No.7, Para No.2, which reads as under: "My mother purchased the suit schedule property on 22.06.2000. Sale consideration under the sale deed was paid in cash. I have paid the said sale consideration amount on behalf of my parents. I have not produced any document to show that, I have paid the said sale consideration amount on behalf of my parents."
20 OS No.25943/2013As per this evidence, Plaintiff No.1PW.1 contends that, he has paid the consideration amount on behalf of his parents, but he has not produced any document.
As per the above documentary evidence, it can be said that, on one hand Plaintiff No.1 contends that, he has paid the consideration amount under Ex.P1 Sale Deed dtd.22.06.2000. On the other hand the Defendant No.4 contends that, he has paid the consideration amount.
17. Further as per the version of the Defendant No.1 more specifically, in her Written Statement at Page No.2, at Para No.7, Line No.5 onwards, which reads as under: "...... The Defendant No.1 submits that the Plaintiff with malafide intention and also to get the favorable order from this Hon'ble Court, concelaed the true facts that the Defendant No.4 who employed in the United States of America, out of love and affection towards his mother had purchased the Suit Schedule Property i.e., Western portion of 21 OS No.25943/2013 the property bearing New No.24, Old No.15, PID No.916424, situated at Cleveland Town C Street, (Haines Road Cross), Bangalore 560005, within the BBMP Ward No.91, in the name of his mother Smt. Saleemunnissa. Smt. Sallemunnissa was a house wife had no source of income to purchase the property. The Defendant No.4 has sent the all amount for the sale consideration to purchase the Suit Schedule Property. That being the tru facts, Smt. Saleemunnissa, had executed a Gift Deed dtd.30.01.2008, vide Document Bearing No.SHV104035200708, stored in CD No.SHVD95, in the office of the Sub Registrar of Shivajinagar, gifting the entire Suit Schedule Property infavour of the Defendant No.4. It is to be noted that Smtl Saleemunnissa has categorically stated the reason why she had executed a Gift Deed infavour of the Defendant No.4. Accordingly, the khatha of the Suit Schedule Property was transferred to the name of the Defendant No.4 by BBMP."
As per this the Defendant No.1 who happens to the elder sister of the Plaintiffs and the Defendant No.4 contends that, the Defendant No.4 has out of love and affection towards his mother Saleemunissa, he has 22 OS No.25943/2013 purchased the Suit Schedule Property, in her name and he has sent all the amount for the sale consideration to purchase the Suit Schedule Property, as Saleemunissa is a house wife and had no source of income to purchase the property. Further she contends that, due to the said act of the Defendant No.4, her mother Saleemunissa has executed a Gift Deed on 30.01.2008, bequeathing the Suit Schedule Property infavour of the Defendant No.4.
18. Further the Defendant No.4 has produced the original Gift Deed dtd.30.01.2008 at Ex.D1. As per this document, it is seen that, Saleemunissa has bequeathed the Suit Schedule Property infavour of Defendant No.4 and Defendant No.4 is represented by his sister the present Defendant No.6. Further this document also evidences that, the present Defendant No.6 has accepted the gift made by Saleemunissa, 23 OS No.25943/2013 infavour of the Defendant No.4, on behalf of Defendant No.4.
Further as per the recitals in Ex.D21 at Page No.2, Para No.2 last but four lines, which reads as under: "...... The entire sale consideration for the scheduled property was given by the donee Ahmed Ulla Khan and none of other 9 children, have spent any amount towards the purchase of the scheduled property."
This recitals in Ex.D1, exhibits the intention of the doner Saleemunissa to bequeath the Suit Schedule Property infavour of the Defendant No.4.
Thus, it is clear on the basis of this documentary evidence, that it is the Defendant No.4 who has paid the consideration amount under Ex.P1 Sale Deed dtd.22.06.2000 and not by any of the other heirs of deceased Saleemunissa, much the less the Plaintiff No.1.
24 OS No.25943/201319. Further the Defendant No.4 has produced Khatha certificates and Khatha extract pertaining to the Suit Schedule Property at Ex.D3 to Ex.D6. As per Ex.D3 and Ex.D5, the names of Hyder Khan and Saleemunissa is shown as the Kathedar of the compposite property bearing Municipal New No.24, Crosspending PID No.916924. Further as per Ex.D4 and Ex.D6, name of the Defendant No.4 is shown as the Khadethar of the Suit Schedule Property. This documents exhibits that, the Gift DeedEx.D1 is acted over.
20. Further the Defendant No.4 has produced Encumbrance Certificates at Ex.D7 and Ex.D8. Ex.D7 evidences about the transaction of purchase made by the Saleemunissa from Nazir Azeez on 22.06.2000. And Ex.D8 evidences about the transaction of gift made by the Saleemunissa infavour of Defendant No.4 on 30.01.2008.
25 OS No.25943/201321. Further the Defendant No.4 has produced Assessment of property tax challan at Ex.D9 and Property tax receipt at Ex.D10 pertaining to the Suit Schedule Property. As per this documents it is seen that, the name of the Defendant No.4 is shown to be the owner of the Suit Schedule Property in Ex.D10.
22. Further Defendant No.4 has produced the electricity requisition at Ex.D11. As per this document the name of the holder of electricity meter bearing RR No.1E16624 is Ahamed Ulla Khan, No.24, Krishnaranjendra Wadeyar Cleveland Town, Bangalore.
23. Further the Defendant No.4 has produced notice issued by the BBMP Authorities dtd.16.07.2009, at Ex.D2. As per this document, it is seen that, the BBMP Authorities have issued this notice, for fixation of assessment inrespect of the Suit Schedule Property, 26 OS No.25943/2013 most important, the said notice is addressed to the Defendant No.1 and the Defendant No.4.
24. On consideration of all the above documents, it can be said that, the Gift Deed executed by Saleemunissa infavour of Defendant No.4 as per Ex.D1 is acted over, that to during the life time of Saleemunissa. Further on care perusal of the situation prevailing in the family of the Plaintiffs and the Defendants, at the time of execution of Gift Deed Ex.D1, most important that, Ex.D1 is executed by Saleemunissa infavour of her son the Defendant No.4, in his absence, which goes to show that, 1) the intention of Saleemunissa to bequeath the Suit Schedule Property infavour of her son i.e., her voluntariness and 2) that no any pressure was on Salemunissa, at the time executing Ex.D1 Gift Deed, as Defendant No.4 was not at all present, during that period. Thirdly, the gift made by Saleemunissa is accepted by the Defendant No.6 27 OS No.25943/2013 who happens to the sister of the Plaintiffs and the Defendant No.4, on behalf of the Defendant No.4.
25. It is necessary for the donee to prove that the gift was the result of the free exercise of independent will. The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction has been fully explained to the donor by some independent and qualified person so completely. In this case the firm intention of Saleemunnissa to bequeath the property to the Defendant No 4, only, can be gathered as per recitals, since he had paid the consideration amount, shows the firm intention and establishes the execution is the result of free exercise of independent will of Saleemunnissa the Donee. And since the Defendant No 4 was not personally present at the time of execution of the Gift DeedExD1 by Saleemunnissa, question of any influence on the DoneeSaleemunnissa, is also ruled 28 OS No.25943/2013 out. So it can be said that the execution of the Gift Deed by Saleemunnissa is with free exercise of her independent will and not under any influence of the Donee. I find support to my above view as per the decision in the case of Kairum Bi w/o: Abdul Shukan and others Vs Mariam Bi and another, reported in AIR 1960 Mad 447, wherein it is held that, "The donee has to satisfy the Court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing; and in cases where there are no other circumstances this may be the only means by which the donee can rebut the presumption."
26. Though the Plaintiffs impeach the execution of the Gift DeedExD1 on the ground of undue influence. Inorder to do so, they have to plead precisely the nature of influence exercised, manner of use of influence and the unfair advantage obtained by the Defendant No 4.
29 OS No.25943/2013But nothing is pleaded by the Plaintiffs, even the Plaintiffs have not pleaded about the execution of the Gift DeedExD1 by Saleemunnissa infavour of the Defendant No 4.
27. There are three conditions for making Gift, viz., (I) Declaration of gift; (2) Acceptance of gift; and (3) Delivery of possession.
As already discussed as to the declaration coupled with intention of Saleemunnissa to bequeath the Suit Schedule property to her son the Defendant No
4. First ingredient is satisfied.
Secondly, Acceptance of Gift is also an important ingredient. As per ExD1Gift Deed, it is seen that the Defendant No 6, who happens to be the sister of the Plaintiffs and the Defendant No 4 and the daughter of the doneeSaleemunnissa has accepted the Gift for and on behalf of her brother the Defendant No 4. Though 30 OS No.25943/2013 Defendant No 4 personally has not accepted the Gift, but the Gift made by Saleemunnissa is accepted by the Defendant No 6, wherein she has also affirm the said transaction, by adopting the contents of the Written Statement of the Defendant No 1. What the law requires is the acceptance of the gift and not specifically the acceptance of the Gift by the donee only, even a competent person can accept the Gift on behalf of some other person (donee). Express or implied, acceptance by conduct is sufficient to constitute a valid gift. The only exception would be a case where gift is made by a guardian to his ward. I find force to my above view as per the decision of the Hon'ble High Court of Karnataka, in the case of Abdul Rahman Vs Anthifa Begum, reported in AIR 1998 Kant 39, wherein the case of Ahmad Khan Vs Zamroot Jan, reported in AIR 1950 Pesh 11 is relied.
Thus, the Defendant No 4 has satisfied that her mother has executed the Gift DeedExD1, with full 31 OS No.25943/2013 understanding of the execution and of the nature and effect of the transaction. Hence execution of the Gift DeedExD1 is a fair one.
Thus the Defendant No 4 has proved that he had purchased the Suit Schedule Property in the name of his mother Smt Saleemunnissa and inturn she has gifted the it to him, as per the Gift Deed dated 30.01.2008 ExD1. HENCE I ANSWER ISSUE NOS.2 & 3 IN THE AFFIRMATIVE.
28. The Defendant No 4 has proved the declaration made by his mother to bequeath the Suit Schedule Property to him. Such declaration made by Saleemunnissa will be binding to all her heirs. The Plaintiffs and the Defendant Nos 1 to 3 and 5 to 7, claiming succession through Saleemunnissa, will be bound by her declaration made under ExD1Gift Deed. I find support to my above view as per the decisions in the case of Jhuman Vs Hussain reported in AIR 32 OS No.25943/2013 1931 Oudh 7; Jainulunnissa Vs Mohammad Zia, reported in AIR 1937 All 547 and Nurbai Vs Abraham Mohammad, reported in AIR 1939 Bom 449, wherein it is held that, "Declaration in the deed of gift will bind the heirs".
29. As per Chapter 22, Synopsis 11 of Mohammadan Law, which deals with "main principles of succession the Rule of Vested inheritance", which says that, "It is well established rule of Muslim Law that property never remains in a state of abeyance but on the death of proprietor passes to his various heirs. By the term 'Vested Inheritance' is meant the share of inheritance that vests in their immediately on the death of the propositus (whose property is claimed).
The movement a person takes his last breath, his property vests in his heirs, though the actual 33 OS No.25943/2013 distribution according to the shares of each heir, may take place after some time.
30. As per Chapter 22, Synopsis 12 of Mohammadan Law, which deals with "Opening of Inheritance", which says that, "The inheritance, for the first time, open on the death of the person".
Thus Succession open on the death of a Mohammedan. The moment a person dies, his property devolves on his heirs. Succession is a process, by which the heirs become entitled to the interest of a deceased person.
In the present case Saleemunnissa died on 30.01.2013 as per ExP3, but she had Gifted the Suit Schedule Property to the Defendant No 4 on 30.01.2008 as per ExD1, much prior to her death. So as on the day of her death, the property was not available, inorder to 34 OS No.25943/2013 get it devolved infavour of her heirs. When the property is not available for the Plaintiffs and Defendant Nos 2, 3 & 5, to succeed, as on the death of Saleemunnissa, then the said property is not available for partition.
Thus the Plaintiffs have failed to prove that the Suit Schedule Property is available for partition, on the day of death of Saleemunnissa. Hence I answer Issue No 1 in the NEGATIVE.
31. ISSUE NO.4:
When the Plaintiffs have failed to prove that the Suit Schedule Property was available for succession on the day of death of Saleemunnissa, then they or other heirs including Defendant Nos 2, 3 & 5, of Saleemunnissa, will not be entitle to have share by way of partition.
HENCE, I ANSWER ISSUE NO.4 IN THE
NEGATIVE.
35 OS No.25943/2013
32. ISSUE NO.5:
When the Plaintiffs and the Defendant Nos 2, 3 & 5 have failed to show that they are having right in the Suit Schedule Property and when the Defendant No 4 has proved that he has become the owner of the Suit Schedule Property by way of Gift DeedExD1, injunction as prayed for by the Plaintiffs, cannot be granted against the Defendants, much the less against the Defendant No 4, who happens to be the true owner.
HENCE, I ANSWER ISSUE NO.5 IN THE
NEGATIVE.
33. ISSUE NO.6:
For answering the above issues, I proceed to pass the following:36 OS No.25943/2013
ORDER Suit of the Plaintiffs is Dismissed.
Looking to the relationship
inbetween the Plaintiffs and the
Defendants, both the parties, are
directed to bear their own costs.
Draw Decree, accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 19th day of December, 2019) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 37 OS No.25943/2013 SCHEDULE:
All that piece and parcel of immovable property comprising of land and the residential building structures standing thereon being the western portion of the property bearing New No.24, Old No.15, PID No.916924 situated at Cleveland Town C Street, (Haines Road Cross), Bangalore5600 005, within the BBMP Ward No.91, measuring East to West on the Northern side 23 feet., 6 inches, and on the Southern side 20 feet., 3 inches and North to South on the Eastern side 65 feet., 9 inches on the Western side 67 feet., 9 inches, totally admeasuring 1459.82 Sq.ft., and bounded on the East by: Portion of the same property.
West by: Permises No.15N, North by: C Street and.
South by: Portion of premises No.15N. [AbdulRahiman. A.Nandgadi] 38 OS No.25943/2013 LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Aleemula Khan.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1: Certified copy of Sale Deed dtd.22.06.2000. Ex.P.2: Death certificate.
Ex.P.3: Death certified of his mother. LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1: Ahmedulla Khan. DW.2: Aliya Begum.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D.1: Registered Gift Deed dtd.30.01.2008. Ex.D.2: Notice issued by BBMP dtd.16.07.2009. Ex.D.3 to 6: Two khata certificates and two khatha extracts.
Ex.D.7 & 8: Two Encumbrance certificates. Ex.D.9: Challan.
Ex.D.10: Property tax receipt. Ex.D.11: Electricity requisition.39 OS No.25943/2013
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)