Bangalore District Court
Noufal A vs Basheer A on 12 December, 2024
KABC010166142017
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU (CCH-36)
DATED ON THIS THE 12th DAY OF DECEMBER 2024
Present: Sri.J.V.Kulkarni, B.Sc., L.L.B.,
XXXV Addl. City Civil & Sessions Judge, Bengaluru.
O.S.No.4613/2017
Plaintiff : Mr.A.Noufal,
S/o.Late A.Moosa,
Aged about 36 years,
Residing in No.4, Ground floor,
PID No.73-190-4,
Thimmareddy Post,
Varthur Hobli, Bangalore Post,
Bangalore-560 017.
-Vs-
Defendants : 1. Mr.A.Basheer,
S/o.Late A.Moosa,
Aged about 58 years,
Residing at Muthoot House
(Alamanar), Post Annayram,
Thalassery-670672,
Kerala.
2. Mr.A.Ali,
S/o.Late A.Moosa,
Aged about 54 years,
Residing at Aliauada (Mislas),
House Post Annayaram,
2
O.S.No.4613/2017
Thalasserty-670672,
Kerala.
3. Mr.A.Jaleel,
S/o.Late A.Moosa,
Aged about 50 years,
Residing at Pullaiyath House,
Menapuram, Post Chokli,
Thalassery - 67062,
Kerala.
4. Mr.A.Mazeed,
S/o.Late A.Moosa,
Aged about 44 years,
Residing at N.S.Stores,
Noor Complex,
Islampur, HAL Post,
Bangalore-560 017.
5. Mr.A.Noushad,
S/o.Late A.Moosa,
Aged about 40 years,
Residing at No.4, Ground Floor,
A.M.S. Building,
(Moosa Stores)
Thimma Reddy Layout,
2nd Main Road,
Murgeshpalya, HAL,
Bangalore-560 017.
6. Mrs.Suhara,
D/o.Late A.Moosa,
Aged about 61 years,
Katilpidiga House,
Perganthur Post,
Thalassery Taluk,
Kannur District,
Kerala.
7. Mrs. Fathima,
D/o.Late A.Moosa,
3
O.S.No.4613/2017
Aged about 45 years,
Kanjanavida, Post Aniyaram,
Thalassery, Kannur District,
Kerala.
8. Mrs.Samsheera,
D/o.Late A.Moosa,
Aged about 38 years,
Aliavinda, Aniyaram Post,
Thalassery, Kannur District,
Kerala.
9. Mrs.Ayshu,
W/o.Late Moosa,
Aged about 78 years,
Residing at "Alindevide House",
Aniyaram Post,
Chokli, Thalasherry,
Kannur, Kerala-670672.
******
Date of institution of the suit : 06-07-2017
Nature of the suit : Partition
Date of commencement of : 28-01-2021
recording of the evidence
Date on which the judgment was : 12-12-2024
pronounced
Total duration : Years/s Month/s Day/s
07 05 06
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
4
O.S.No.4613/2017
JUDGMENT
The plaintiff filed the suit for partition and separate possession of his 1/6th share in schedule 'A' & 'B' properties and to declare the partition deed and release deeds, dated 4-12-2010 as not binding on the plaintiff as null and void.
2. The facts giving rise to the dispute briefly stated as follows:-
The plaintiff and defendants are the children and wife of deceased A.Moosa. The plaintiff is the youngest son, deceased Moosa had three daughters by name Suhara, Fathima and Shamsheera. During the life time of A.Moosa, he acquired 'A' schedule properties and these 'A' schedule properties are bequeathed among his sons by way of registered Will, dated 5-7-2005.
According to the plaintiff, as per the said Will, ground floor with super built up area measuring 1778 sq.ft along with 3 earmarked for car parking situated at private property bearing 108 of Konenagrahara Village, Varthur Hoblu, Bangalore East Taluk with undivided interest of land measuring 702.50 sq.ft, similarly, property bearing No.97, building known as Tan building situated at 5 O.S.No.4613/2017 Konenagrahara Village, Varthur Hobli, Bangalore East Taluk, measuring East to west 25 feet, North to South 18 feet, totally measuring 450 sq.ft consisting of ground and first floor are bequeathed by late Moosa in favour of the plaintiff and defendant Nos.1 to 5.
After the death of Moosa on 21-1-2010, the 'A' schedule properties were available for partition among plaintiff and defendants. The 'B' schedule properties are the properties jointly acquired by the plaintiff and defendant Nos.1 to 5. Therefore, 'B' schedule properties are also available for partition.
The plaintiff alleged that the defendant Nos.1 to 5 colluded with each other falsely represented the plaintiff that they will provide equal partition of 'A' schedule properties and 'B' schedule properties. The plaintiff believed the words of defendant Nos.1 to 5, he signed the registered partition deed, dated 4-12-2010. In the said partition, 'G' schedule property is allotted to the share of the plaintiff.
The plaintiff alleged that the first and fifth defendant in collusion with defendant Nos.2 to 4 have falsely represented to the plaintiff that 'B' schedule properties are unable to be divided and in lieu of his share, the defendant Nos.1 to 5 will pay Rs.35,00,000/-. 6
O.S.No.4613/2017 According to the plaintiff, Rs.10,00,000/- is to be paid by the defendant No.1, Rs.10,00,000/- is to be paid by defendant No.2, Rs.5,00,000/- each by defendant Nos.3 to 5. The plaintiff believing the representation of all the defendant Nos.1 to 5, signed the partition deed and release deed in favour of defendant Nos.1 & 5. As per partition deed, 'G' schedule property allotted to the plaintiff and defendant Nos.2 to 5 agreed to pay total sum of Rs.35,00,000/- to the plaintiff. Now, they are refusing to pay the Rs.35,00,000/- to the plaintiff. Therefore, the plaintiff has issued legal notice, dated 17-03-2017, calling upon the defendants to pay the said amount. The legal notice duly served upon the defendants. They have issued untenable reply. Therefore, the plaintiff without any alternative remedy filed the suit for declaration that the execution of Will dated 5-7-2005 is null and void since the deceased has bequeathed the entire property in favour of the defendant Nos.1 to 5 and the plaintiff.
The defendants misrepresented the plaintiff and on false assurances of payment of Rs.35,00,000/- got executed the partition deed and release deed on 4-12-2010. Therefore, both the partition deed and release deeds are null and void, not binding on the interest of the plaintiff.7
O.S.No.4613/2017 The plaintiff alleged that the 1 st and 5th defendants have taken the benefit of additional built up area and land belonging to the plaintiff on false representation that they would compensate the plaintiff in terms of money to set up business by opening departmental stores. But, despite all these years, they have not made any payment.
The plaintiff contended that the defendants are earning rental income out of additional area. He alleged that the partition not equal and therefore, he sought to set aside the earlier partition and sought to allot 1/6th share in the suit schedule 'A' & 'B' schedule properties as per Muslim laws and declare that the partition and release deeds, dated 4-10-2010 are null and void not binding on the plaintiff. Hence, he sought to decree the suit.
3. The suit summons issued to the defendants, all the defendants appeared through their counsel. The defendant Nos.1 to 5 have filed joint written statement. Defendants Nos.6 to 8 have filed joint written statement. Defendant No.9 has filed independent written statement but the sum and substance of the written statement filed by the defendants is that they admitted the relationship of plaintiff with them. They contended that late A.Moosa 8 O.S.No.4613/2017 executed registered Will on 05-07-2005 wherein, item Nos.1 and 2 of 'A' schedule properties are bequeathed to all the sons equally. All the defendants contended that item Nos.1 and 2 of 'B' schedule properties purchased by jointly by plaintiff and defendant Nos.1 to 5 by virtue of registered sale deed, dated 31-10-2000 and 28-02-2003.
The defendants took contention that after the death of Late A.Moosa, the sons of Late A.Moosa decided to divide the properties. Accordingly, on 4-2-2010 they entered into registered partition deed in respect of 'A' schedule properties, the remaining defendants and plaintiff executed the release deeds in respect of 'B' schedule property in favour of defendant Nos.1 and 5. All the defendants categorically denied the fact that they have agreed to pay Rs.35,00,000/- to the plaintiff at the time of partition.
The defendants contended that the plaintiff knowing well the contents of the partition deed and release deeds, signed the release deed, therefore, after lapse of so many years, now he cannot set up the plea that he has misrepresented by the defendants and fraud has been played on him.
4. The defendant Nos.6 to 8 in their written statement stated that they don't want any share in the suit schedule properties 9 O.S.No.4613/2017 because they are provided with money and jewelries. They are provided with money and settled in their life. They admitted the execution of the Will, partition deed and release deeds.
5. The defendant No.9 filed independent written statement, wherein she admitted the execution of the will by her husband Late A.Moosa and she also admitted the execution of partition deeds and release deed among the plaintiff and defendant Nos.1 to 5. All the defendants sought to dismiss the suit of the plaintiff.
6. Based on the pleadings, my Predecessor has framed the following issues:-
1. Whether plaintiff proves that he is entitled for 1/6th share in suit 'A' and 'B' schedule properties? (Recasted as per Order, dated 27-1-2024)
2. Whether the plaintiff proves that his father Late A.Moosa had executed a Will dated 05-07-2005? (Recasted as per Order, dated 27-1-2024)
3. Whether plaintiff proves that the Partition Deed and Release Deed dated 4-12-
2010 are not binding on him?
4. Whether defendants prove that item Nos.1 and 2 of 'A' schedule properties are the self acquired properties of their father and accordingly, their father 10 O.S.No.4613/2017 executed a registered Will on 5-7-2005?
5. Whether defendants prove that item Nos.1 and 2 of 'A' schedule properties for partition as per the registered Partition Deed dated 4-12-2010?
6. Whether defendants prove that item Nos.1 and 2 of 'B' schedule properties are jointly purchased by them along with plaintiff by way of a registered Sale deed dated 28-02-2003?
7. Whether defendants prove that plaintiff has executed two Release Deeds along with them for the purpose of equal distribution of properties on 4-12-2010?
8. What Order or Decree?
7. The trial was commenced. The plaintiff examined as P.W.1. Exs.P.1 to P.10 were marked on behalf of the plaintiff. He closed his side. Defendant No.5 examined as D.W.1. Exs.D.1 & D.2 were marked on behalf of the defendants. They closed their side.
8. I heard the arguments of learned counsel for the plaintiff and learned counsel for the defendants.
9. The learned counsel for the defendants relied upon the following decision:-
1. (2002)5 SCC 383: Lalith Kumar Jain and another Vs. 11 O.S.No.4613/2017 Jaipur Traders Corporation Pvt.Ltd.
10. My findings to the above issues are as follows:-
Issue No.1 : In negative
Issue No.2 : Redundant
Issue No.3 : In negative
Issue No.4 : In affirmative
Issue No.5 : In affirmative
Issue No.6 : In affirmative
Issue No.7 : In affirmative
Issue No.8 : As per final order for the following:-
REASONS
11. Issue No.1:-It is undisputed fact that the plaintiff and defendants are the family members, defendant No.9 is the mother of the plaintiff and other defendants. It is also undisputed fact that A.Moosa is the father of plaintiff and defendant Nos.1 to 8 and husband of defendant No.9. The parties are not in dispute that 'A' schedule properties are acquired by A.Moosa during his life time. Initially, when the suit was filed in the year 2017, the plaintiff disputed that late A.Moosa has executed Will on 5-7-2005. Subsequently, the plaint was amended, he admitted that his father 12 O.S.No.4613/2017 has executed the Will and bequeathed 'A' schedule properties in favour of all his sons equally. Therefore, execution of Will is not in dispute. After amendment of the plaint, even the defendants in their written statement admitted that late A.Moosa has executed Will dated 5-7-2005. It is not in dispute that item Nos.1 and 2 of 'B' schedule properties are jointly purchased by the plaintiff and defendant Nos.1 to 5. The dispute is in respect of unequal partition.
12. According to the plaintiff, at the time of execution of the partition deed by him, the defendant Nos.1 to 5 have assured him that they will give Rs.35,00,000/- because the plaintiff given less extent of the properties in 'B' schedule. In para No.7 of the plaint, the plaintiff stated that the first defendant agreed to pay Rs.10,00,000/- second defendant agreed to pay Rs.10,00,000/-, remaining defendant Nos.3 to 5 are agreed to pay Rs.5,00,000/- each to the plaintiff because the less extent is given to him in the partition deed, execution of the release deed by the plaintiff, defendant Nos.2 to 4 in favour of defendant Nos.1 and 5 in respect of 'B' schedule properties is not disputed. But, the case of the plaintiff is that the defendants assured him to pay Rs.35,00,000/- 13
O.S.No.4613/2017 which is not paid by them. Therefore, the earlier partition deed and release deeds are vitiated by fraud and not binding on him.
13. The case of the plaintiff falls under Proviso 2 of Section 92 of the Evidence Act. Because, the partition deed, release deeds are marked as Exs.P.1 to P.3. In all these three documents, there is no recitals that the defendant Nos.1 and 2 agreed to pay Rs.10,00,000/- each to the plaintiff and defendant Nos.3 to 5 have agreed to pay Rs.5,00,000/- each to the plaintiff. Therefore, the burden lies upon the plaintiff to prove that there is a oral agreement between the plaintiff and defendant Nos.1 to 5 that they will compensate the plaintiff by way of money because of less extent is granted to him in 'B' schedule properties. Except examination of the plaintiff, the plaintiff has not produced any materials to show that the defendants have agreed to pay Rs.35,00,000/-. The plaintiff is the signatory to Exs.P.1 to P.3, it is trite law that whenever a person affix his signature to the document and it is a registered instrument law presumes that the executant has written the contents and signed the documents. Grasim Industries Ltd., Vs.Agarawal Steels Ltd., In order to disprove the contents of Exs.P.1 to P.3, no materials were produced by the plaintiff. No attesting witnesses to Exs.P.1 to P.3 14 O.S.No.4613/2017 examined to prove that at the time of execution of these document, the defendants agreed to pay Rs.35,00,000/- to him.
14. During the cross-examination of P.W.1, he clearly admitted that there is no writing in Exs.P.1 to P.3 that the defendants have to pay Rs.35,00,000/- to him. On the other hand, the cross- examination of P.W.1 clearly suggests that the partition deed, dated 4-2-2010 is acted upon. Because, P.W.1 in page 7 and 8 of his cross-examination categorically admitted that 'G' schedule property mentioned in Ex.P.1 fell to his share. It consists of 3 shops. One of the shop has kept for preparing the bakery products. Earlier, it was run by the family members, now it is run by the tenants. Other two shops are converted as house for residence of the plaintiff. The plaintiff admit that the machinery in the shop given to the tenants are belonging to him. This clearly goes to show that he has accepted 'G' schedule properties mentioned in Ex.P.1. In fact, the property allotted to the plaintiff is 'G' schedule property in Ex.P.1. I have examined Ex.P.1. It is a registered partition deed effected between the plaintiff and defendant Nos.1 to 5, wherein,'A' schedule property is fell as entire property available for partition. 'B' schedule property allotted to the first defendant. 'C' schedule property is allotted to the 15 O.S.No.4613/2017 second defendant. 'D' schedule property is allotted to 3rd defendant. 'E' schedule property allotted to the 4th defendant. 'F' schedule property allotted to defendant No.5 and 'G' schedule property allotted to the plaintiff. This registered partition deed is effected on 4-12-2010, the signature of the plaintiff is clearly visible in all the pages. His photo and thumb impressions are also obtained in the registered instrument.
15. The learned counsel for the defendants argued that this partition deed was effected on 4-12-2020. the suit was filed on 6-7- 2017. Therefore, it is clearly barred by limitation. On the other hand, the learned counsel for the plaintiff argued that in the written statement filed by the defendants, they have not taken the pleas that the suit is barred by limitation, unless the specific defence is taken such plea cannot be considered by the Court. I have gone through Section 3 of the Limitation Act, the mandate of Section 3 of the limitation Act is that it is the duty of the Court to dismiss any suit instituted after the prescribed period of limitation, irrespective of the fact that limitation has been set up as a defence. There is no need for any decisions. However, recently, Hon'ble Supreme Court in 2024 INSC 427, in case of S.Shivaraj Reddy died represented by his 16 O.S.No.4613/2017 L.Rs Vs.S.Raghuraj Reddy and others by referring other Judgments of Hon'ble Supreme Court held that a Specific defence has not taken by the defendants. It is the duty of the Court to dismiss of the suit, if it is instituted after the prescribed period.
16. Apart from it, as per Article 59 of Limitation Act, the period of limitation is 3 years when it become first known to the plaintiff. The plaintiff being signatory therefore it is within the knowledge of the plaintiff that he participated in the execution of the partition deed, on the same day, two registered release deeds are executed in favour of defendant Nos.1 and 5 by the plaintiff and defendant Nos.2 and 4. Therefore, the limitation bards to run from the date of execution of partition deed and two registered release deeds i.e., from 4-12-2010 the suit is filed on 6-7-2017. Therefore, it is clearly barred by limitation.
17. Apart from it, the learned counsel for the plaintiff argued that there is a false assurance by the defendant Nos.1 to 5 to pay Rs.35,00,000/- and fraud has been played on the plaintiff. They argued that when fraud has played and deception is committed, limitation does not begins to run. At the cost of repetition, there is a 17 O.S.No.4613/2017 long line of decision of Hon'ble Supreme Court that while interpreting the documents, no external aid should be provided. The Hon'ble Supreme Court in (2006)6 SCC 293, in case of State Bank Of India & Anr vs Mula Sahakari Sakhar Karkhana Ltd held that a document, as is well known, must primarily be construed on the basis of the terms and conditions contained therein. It is also trite that while construing a document the court shall not supply any words which the author thereof did not use. Therefore, in Exs.P.1 to P.3, there are no recitals that the defendant Nos.1 to 5 have agreed to pay RS.35,00,000/-. Therefore, limitation begins to run from 4-12-2010. The suit is filed beyond three years. Therefore, section 3 of the Limitation Act can be pressed into service. The plaintiff has already received his share in 'A' schedule property by virtue of Will executed by his father late A. Moosa and he got partitioned the 'B' schedule properties by virtue of partition deed, dated 4-10-2010. He executed release deeds in favour of defendant Nos.1 and 5. Therefore, he is not entitled for any share in the suit properties. Accordingly, I answer issue N.1 in the negative.
18. Issue No.2:- This issue is in respect of the execution of the Will because prior to amendment of the Will, the plaintiff sought 18 O.S.No.4613/2017 to cancel the Will executed by his father on 5-7-2005. But, after amendment, this issue becomes redundant because, the plaintiff admitted execution of the Will and forbidden that only 1/3rd can bequeath by his father. The defendants are also not disputed the execution of the Will dated 5-7-2005. Even the daughters have filed the written statement stating that they are not claiming any share in either 'A' either schedule properties or 'B' schedule properties. However, for the academical interest, a Muslim can execute the Will only to the extent of 1/3rd properties. In Quran it is not prescribed however in Hadis of Prophet it is prescribed. Only 1/3rd of the property can be bequeathed by a Muslim. But, after amendment, this issue it is redundant. Hence, I answer issue as redundant.
19. Issue No.3:- The plaintiff has not examined the material witnesses to Exs.P.1 to P.3. One Jamal and Vijayan are the attesting witnesses for Exs.P.2 and P.3. The same witnesses are the attesting witnesses. The scribe of all these documents are one and the same. The attesting witnesses and scribe of Exs.P.1 to P.3 not examined to prove that there is a separate oral agreement between the plaintiff and defendant Nos.1 to 5, wherein,t he defendant Nos.1 to 5 have agreed to pay Rs.35,00,000/- to the 19 O.S.No.4613/2017 plaintiff. The plaintiff consciously signed Exs.P.1 to P.3, accepted the shares mentioned as 'G' schedule property in Ex.P.1. The partition deed is acted upon. On the dame day, he executed release deeds in respect of 'B' schedule properties for he measurements therein in favour of defendant Nos.1 and 5. Unless, fraud and deception is proved, he cannot seek for cancellation of the partition deed and release deeds. Higher standard of proof is required in case of fraud is pleaded. How, the fraud is played by the defendants is not proved by the plaintiff by leading cogent documentary and oral evidence and attesting witnesses are not examined, even his mother who is the defendant No.9 in this case filed the written statement denying the plaint averments and denying the fact that the defendant Nos.1 to 5 have agreed to pay Rs.35,00,000/- to the plaintiff. Under these circumstances, I answer issue No.3 in negative.
20. Issue Nos.4 to 6:- These issues are in respect of nature of 'A' and 'B' schedule properties. It is anybody's case that 'A' schedule properties are jointly purchased by them. All the parties to the suit admitted that 'A' schedule properties are purchased by Late A.Moosa, the father of the plaintiff and 'B' schedule properties are jointly purchased by plaintiff and defendant Nos.1 to 5. In this 20 O.S.No.4613/2017 regard, the defendants produced Exs.D.1 and D.2 examined defendant No.5 as D.W.1. Nothing helpful to the case of the plaintiff elicited during the cross-examination of D.W.1 regarding the payment of Rs.35,00,000/- to the plaintiff or regarding the fact that 'B' schedule properties are jointly purchased by them. Exs.D.1 & D.2 clearly depicts that 'B' schedule properties are jointly purchased by plaintiff and defendant Nos.1 to 5 on 30-10-2000 & 28-2-2003. These 'B' schedule properties are subject matter of partition deed and two release deeds which are marked as Exs.P.1 to P.3. Therefore, without much discussion, I answer issue Nos.4 to 6 in affirmative.
21. Issue No.7:- The contents of Exs.P.2 and P.3 reveals that the plaintiff, defendant Nos.2 to 4 have executed release deeds in favour of defendant Nos.1 and 5 in respect of portion of 'B' schedule properties. The plaintiff is signatory to those documents. Those documents are registered documents. Therefore, the documents are binding on them.
22. The learned counsel for the defendants relied upon (2002)5 SCC 383 Manjunath Anandappa Urf. Shivappa ... vs 21 O.S.No.4613/2017 Tammanasa & Others, it is in respect of Section 276 & 31 of Specific Relief Act, regarding delay in latches in claiming the relief. This decision is applicable to the case in hand. Because, the plaintiff is party to the partition deed and two release deeds executed on 4-12-2010. Therefore, I answer issue No.7 in affirmative.
23. Issue No.8:- In view of my findings to the above issues, I pass the following:-
ORDER Suit of the plaintiff dismissed with costs. Draw Decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 12th day of December 2024) (J.V.KULKARNI) XXXV Addl.City Civil & Sessions Judge, Bengaluru ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : Mr.A.Noufal Witnesses examined on behalf of the defendants.
D.W.1 : Sri.A.Naushad
22
O.S.No.4613/2017
Documents marked on behalf of the plaintiff.
Ex.P.1 : Partition Deed, dated 04-12-2010
Ex.P.2 : Certified copy of Release Deed,
dated 04-12-2010
Ex.P.3 : Release Deed,
Dated 4-12-2010
Ex.P.4 : Copy of the legal notice
Ex.P.5 : Postal receipts
Exs.P.6 to : Postal acknowledgments
P.9
Ex.P.10 : Certified copy of the Registered Will
dated 05-07-2005
Documents marked on behalf of the defendants.
Ex.D.1 : Certified copy of Sale Deed,
dated 30-10-2000
Ex.D.2 : Certified copy of Sale Deed,
dated 28-02-2003
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
Digitally signed
by JEEVAN
JEEVAN KULKARNI
KULKARNI Date: 2024.12.16
17:08:28 +0530