Delhi District Court
W/O Mohd. Islam vs Mr. Rafiq on 2 August, 2011
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IN THE COURT OF SH. GOPAL SINGH CHAUHAN, CIVIL JUDGE
(WEST)2, DELHI
SUIT NO.403/06
Unique Case ID No. 02401C0030081999
Shrimati Razia Sultan
W/o Mohd. Islam,
D/o Late Sh. Sahabuddin,
R/o 33A, JExtension,
Laxmi Nagar, New Delhi
..........................PLAINTIFF
VERSUS
Mr. Rafiq
S/o Sh. Sahabuddin,
R/o House No.1616m Gali Tajran,
Suiwalan, Jamamasjid, Delhi
........................DEFENDANT
Suit filed on - 16/03/1999
Judgment reserved on 07/07/2011
Date of decision - 02/08/2011
SUIT FOR PARTITION AND POSSESSION
Suit No.403/06 Page 1/14
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JUDGMENT: By this judgment I shall dispose off the suit for partition and possession filed by the plaintiff.
1. That the plaintiff and defendant are real sister and brother. The suit property was originally purchased by Late Sh. Sahabuddin, who was the father of the plaintiff and defendant. The father of the parties passed away on 05/01/1973 leaving behind his three Lrs namely plaintiff, defendant and their mother Smt. Fakhrunissa. The mother of the parties was also expired on 20/09/1994 leaving behind the plaintiff and defendant as her only Lrs. That the plaintiff sometime after her marriage left the suit property, though her two children were born in the suit property itself and after that she started residing at her matrimonial home at Laxmi Nagar. Since then the entire property is in the possession of the defendant. The plaintiff asked the defendant on so many occasions to partition the property and hand over her one third share from the said property, but the defendant did not concede the legitimate and genuine demand of the plaintiff. The plaintiff also sent a legal notice on 13/06/1998 to the defendant. The defendant has no right, title or interest to withheld one third share of the plaintiff in the suit property. It has been prayed that the decree of partition and possession of the suit property be passed in the matter.
2. In WS several preliminary objections were taken by the defendant like the suit is without any cause of action, the suit is beyond pecuniary jurisdiction of this court, the same is under valued and the suit is infructuous as the matter has already been settled and the plaintiff was paid her share in terms of family settlement.
Suit No.403/06 Page 2/14
3 In the WS it was further submitted that after her marriage, the plaintiff resided with her husband at her matrimonial home at H.No. 1615, Sui Walan, Jama Masjid, New Delhi where some of her children born. That after marriage the plaintiff never resided in the suit property except her causal visits to her parents. It was further submitted that after the death of the father of the parties, an oral family settlement was made by their mother in respect of the property in the suit. As per the said settlement the defendant paid a sum of Rs.50,000/ to the plaintiff in the presence of Mohd. Ashraf Ali S/o Mohd. Mehmood Ali, R/o H.No. 1620 and Mohd. Sharif S/o Mohd. Rashid R/o H.No. 1619 of the same locality and the said settlement was also agreeable to the plaintiff as she was in need of money at that time. It was further argued that by accepting the said amount from the defendant, the plaintiff left with no right of inheritance in the said property. That the plaintiff has no right in the suit property in any capacity even as per law applicable to the parties. The situation of the suit property and residence of the parties in Delhi are admitted by the defendant. Rest of the averments made in the plaint including the service of the legal notice dt. 13/06/1998, were denied by the defendant.
3. The plaintiff has filed the replication wherein the plaintiff has reiterated and reaffirmed the facts mentioned in the plaint and denied the facts mentioned in the WS.
4. On the basis of the pleadings of the parties the issues were framed on 01/05/07 which are as under : Suit No.403/06 Page 3/14 4
1. Whether suit of the plaintiff has not been correctly valued for the purposes of court fees and jurisdiction? OPD
2. Whether the plaintiff is entitled to the decree of partition as prayed for? OPP
3. Whether the plaintiff is entitled to the decree of possession as prayed for? OPP
4. Relief.
5. In support of her case the plaintiff got examined three witnesses PW1 as herself, PW2 Sh. Sariruddin and PW3 Modh. Zaki. PW1 has tendered her evidence by way of affidavit and also exhibited certain documents. Ext. PW1/1 is the notice to the defendant dt.13/06/98. Ext. PW1/2 is the postal receipt in support of service of the notice. Ext. PW1/3 is the site plan. Certified copy of birth certificate of Ms. Rahna Parveen and Mohd. Iqram, children of the plaintiff, are Ext. PW1/4 and Ext. PW1/5 respectively.
In his defence the defendant got examined two witnesses, Sh. Ashraf Ali as DW1 and himself as DW2.
6. The arguments have been heard and the record has been carefully perused. Now, I shall give my issuewise findings which are as under :
7. ISSUE NO.1 Whether suit of the plaintiff has not been correctly valued for the purposes of court fees and jurisdiction? OPD The issue is based upon the objection taken by the defendant in his WS. It has been stated in the WS that the suit is beyond pecuniary jurisdiction of Suit No.403/06 Page 4/14 5 this court. In Para14 of her plaint the plaintiff has valued the suit property at Rs. 1Lakh for which court fees of Rs.3,320/ was paid for relief of possession and court fees of Rs.19.60paise was paid for relief of partition.
In reply to this para an evasive denial has been made and it has not been specifically averred as to how the subject matter of the present suit is beyond pecuniary jurisdiction of this court. No evidence has been led on behalf of defendant to prove this issue. Also PWs were not crossexamined on this point. Hence, the defendant has failed to prove this issue and the suit is prima facie found to be properly valued for the purposes of jurisdiction and court fees. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
8. ISSUE NO.2 & 3 Whether the plaintiff is entitled to the decree of partition as prayed for? OPP Whether the plaintiff is entitled to the decree of possession as prayed for? OPP For succeeding in the present matter the plaintiff was required to prove that she has got 1/3rd share in the suit property and she is entitled to recover possession thereof after getting the suit property partitioned.
The fact that after the death of father the plaintiff inherited one share in the suit property alongwith the defendant and their mother has been admitted by the defendant. It is not denied by the defendant that after the death of the mother the plaintiff and the defendant were the only LRs. In Mohammedan law in case of succession among collaterals male inherits double share to what is inherited by his female counterpart.
Suit No.403/06 Page 5/14
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9. Section58 of Indian Evidence Act, 1872 provides that the admitted facts are not generally required to be proved.
In the present matter the defendant has impliedly admitted the factum of 1/3rd share of plaintiff in the suit property, although he has claimed that in a oral family settlement the plaintiff has relinquished her share in favour of the defendant in lieu of Rs.50,000/.
As per the provisions of Section103 Indian Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. In the present matter as the 1/3rd share of plaintiff in the suit property has been admitted by the defendant, the plaintiff is relieved from burden of proving this fact.
Now, the onus to prove the fact that the plaintiff has relinquished her share in the suit property, has been shifted on the defendant.
10. In WS it has been submitted on behalf of defendant that after the death of the father of the parties, an oral family settlement was made by their mother in respect of suit proprty. As per the said settlement the defendant paid a sum of Rs. 50,000/ to the plaintiff in the presence of Sh. Ashraf Ali and Mohd. Sharif and the said settlement was also agreeable to the plaintiff as she was in need of money. That by accepting the said amount from the defendant, the plaintiff left with no right of inheritance in the suit property for all the time to come, as per the desire of mother. That thereafter, the defendant became the sole owner of the suit property even after the death of the mother, as per said settlement. Suit No.403/06 Page 6/14
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11. Another important question of law which is relevant for consideration in the facts of present matter is that whether alleged oral relinquishment of her share in immovable property by the plaintiff is valid in view of the provisions of section 17 of Indian Registration Act,1908.
Counsel for defendant has argued that oral relinquishment of share in immovable property is permissible under Mohammedan law.
It is also doubtful as to whether the plaintiff could have relinquished her full share in the suit property. It has been claimed by the defendant that the settlement took place during the life time of the mother. Admittedly, the suit property was initially owned by father of the parties. After the death of father his widow must be having some share in the suit property and it has been claimed that the settlement took place during the life time of the mother, it is highly doubtful whether the plaintiff could have relinquished that part of her share in advance which would be inherited by her in future in contingency of death of her mother. As per the provisions of Transfer of Property Act, mere a chance of inheritance is not transferable.
12. Counsel for the defendant has relied upon the case titled as Modinsaheb Peersaheb Peerzade & Ors. Vs. Smt. Meerabi & Ors., ILR 2000 KAR 3716, wherein it has been held that "15. It is wellrecognised right in Muslim Law that an heir apparent can relinquish the right of chance of succession in an oral family settlement or family arrangement. The Supreme Court in Gulam Abbas v Haji Kayyam Ali and Others, has held thus:"
Suit No.403/06 Page 7/14
8 "Para 11.It may be mentioned here that muslim jurisprudence, where theology and moral concepts are found sometimes mingled with secular utilitarian legal principles, contains a very elaborate theory of acts which are good (because they proceed from "hanna"), those which are bad (because they exhibit "qubuh"), and those which are neutral per se. It classifies them according to varying degrees of approval or disapproval attached to them (See: Abdur Rahim's "Muhammadan Jurisprudence", p. 106). The renunciation of a supposed right, based upon an expectancy, could not, by any test found there, be considered "Prohibited". The binding force in future of such a renunciation would, even according to strict Muslim Jurisprudence, depend upon the attendant circumstances and the whole course of conduct of which it forms a part. In other words, the principle of an equitable estoppel, far from being opposed to any principle of Muslim Law will be found, on investigation, to be completely in consonance with it.
Para 12.As already indicated, while the Madras view is based upon the erroneous assumption that a renunciation of a claim to inherit in future is in itself illegal or prohibited by Muslim Law, the view of the Allahabad High Court, expressed by Suleman, C.J., in Latafat Husain v Hidayat Hussain, while fully recognising that "under the Mohammadan Law relinquishment by an heir who has no interest in the lifetime of his ancestor is invalid and void", correctly lays down that such an abandonment may, nevertheless, be part of a course of conduct which may create an estoppel against claiming the right at a time when the right of inheritance has accrued".
"It has been further held that, such a relinquishment of the chance of an heir apparent succeeding to the estate can be relinquished by family Suit No.403/06 Page 8/14 9 arrangement in order to avoid future disputes in the family, even though it may not technically be a settlement of actually disputed claims."
It was further held therein : "18. In Kale and Others v Deputy Director of Consolidation and Others, the law relating to family settlement has been laid down in lucid and comprehensive manner by reference to catenation of decisions of the Supreme Court, Privy Council and other High Court in para 9 of the judgment, wherein, it has been held thus:"
"Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and receive their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise "Kerr on Fraud" at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:
"The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all Suit No.403/06 Page 9/14 10 parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend".
Further, in para 10, it is held thus:
"In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is wellsettled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property Suit No.403/06 Page 10/14 11 which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement".
He has also relied upo the judgments cited as 'Sh. Gangadhar Pandhari Harde V/s Uttam, 2008 (2) BomCR 1 and Ramdass Chimna V/s Pralhad Deorao and Others, AIR 1965 Bom 74'.
13. The legal questions whether the oral relinquishment of share by plaintiff was permissible in the law and that a mere chance of succession of an heir could be transferred in favour of some other person, would only assume importance in the present matter only after it is established that the defendant was able to prove the fact that the alleged oral settlement took place between the parties.
In their evidence affidavits, DW1 & 2 have stated several facts regarding the family settlement, which according to them took place during the life time of the mother of the parties. Interestingly no particular date,month or year has been mentioned when the alleged family settlement took place. Suit No.403/06 Page 11/14
12 However, the same stated to have been taken place during the life time of the mother. Admittedly, the mother expired on 30/09/94.
14. The crossexamination of DW1 took place on 20/03/08. During his crossexamination the DW1 has deposed that mother of parties expired approximately 24years back. He has also deposed that the transaction of Rs. 50,000/, averred in his affidavit, must have taken place approximately 2425 years back.
The defendant has tried to make out a case that the defendant was in need of money for raising construction at plot situated at Laxmi Nagar at the time when the family settlement took place and she received an amount of Rs.50,000/ from the defendant in lieu of her share. In his crossexamination the defendant/DW2 has stated that the house of plaintiff was purchased after selling the house No.1615, Suinwalan. Further he has admitted that he does not have any saving bank account till date and that he earns approximately Rs.3,000/ to Rs. 4,000/ per month from his business. That in the year 199495 his total income was Rs.2,000/ to Rs.2,500/ per month, again said it was approximately Rs. 3,000/ per month. He has also admitted that in his evidence affidavit the date and month of the alleged incident of Rs.50,000/ was not mentioned.
15. It does not seem to be probable that the defendant had paid a sum of Rs.50,000/ to the plaintiff as he himself admitted in his crossexamination that he was earning only Rs.2,000/ to Rs.2,500/ per month and he must be having liability of feeding his family and moreover he was not maintaining any savings account anywhere. He has not disclosed anywhere in his plaint or evidence Suit No.403/06 Page 12/14 13 affidavit as to from where he brought Rs.50,000/ which has been allegedly paid by him to the plaintiff. Further, the payment of Rs.50,000/ also seems to be doubtful as no particular details i.e. date, month or year has been specified by the defendant or other DW either in the plaint or in the evidence affidavits of Dws. It is only during crossexamination the DW1 had stated that the family settlement took place around 2425years back. It is a matter of common observation that whenever any transfer of any interest in an immovable property takes place, generally a record of it is kept or the persons concerned are not likely to forget the details of such transaction. In the present matter it is found that the defendant/DW2 and DW1 have miserably failed to prove the fact that oral family settlement ever took place between the parties.
16. The onus to prove that there exists cause of action for claiming the relief of partition and possession was still lying on the plaintiff.
In plaint it has been claimed that the plaintiff asked the defendant on so many occasions to partition the suit property.
17. Counsel for defendant has argued that the plaintiff has never asked the defendant to partition the suit property and no legal notice was ever served upon the defendant, hence, the present suit is without cause of action. He has referred to the crossexamination of plaintiff/PW1 wherein she has stated that she does not remember the exact date, month and year when the defendant was requested to partition the property.
Counsel for the defendant has also pointed out certain contradictions in the testimony of Pws. He has strongly argued that the plaintiff has no cause of Suit No.403/06 Page 13/14 14 action in her favour as she has failed to prove that she asked the defendant to partition the suit property.
18. Even if it is taken for the sake of arguments that the plaintiff has failed to prove the fact of demanding of partition of suit property by her from the defendant and that the legal notice dt.13/06/98 was never served upon the defendant, it is settled legal proposition that for seeking partition in the matter the filing of the suit is sufficient and no previous demand of partition or sending any notice is required.
As it has already been found that the defendant admitted the share of the plaintiff in the suit property and he has failed to prove that the defendant had relinquished here share in alleged oral family settlement, the plaintiff is found entitled to 1/3rd share in the suit property. In his crossexamination DW2 has admitted that suit property is constructed since his father and mother were alive, upto four stories. The plaintiff is also found entitled to relief of partition of her share in the suit property and to recover possession thereof. Accordingly, the suit is decreed in favour of plaintiff. The suit is partly allowed in favour of the plaintiff and the plaintiff is found to be having 1/3rd share in the suit property i.e. bearing No.1616, Gali Tajran, Suinwalan, Delhi, consisting of ground, first, second and third floors (specifically shown in the site plan).
Let a preliminary decree be drawn in the matter.
(GOPAL SINGH CHAUHAN) Civil Judge (West)2, Delhi Announced in the open court on 02/08/2011.
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