Bangalore District Court
O.S./7750/2005 on 3 June, 2020
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
[CCH-40], BANGALORE CITY.
Dated on this the 3rd day of June, 2020.
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 7750/2005
Plaintiff :-
Syed Ghouse @ Iqbal,
S/o. Late Syed Ahmed,
Aged about 45 Years,
R/at No.159, 14th Cross,
Govindapura Main Road,
Near Kausar Mark, Arabic College Post,
Bengaluru-560 045.
[By Sri. S.B., Advocate]
/ VERSUS /
Defendants :-
1. Syed Abdul Kareem,
S/o. Late Syed Ahmed,
Since dead by his LRs.
1(a). Razeeyabee W/o. Late Syed
Abdul Kareem, 65 years.
1(b). Syed Abbas,
S/o. Late Syed Abdul Kareem,
Aged about 36 years.
/2/ O.S.No. 7750/2005
1(c). Syed Abdul Raheem,
S/o. Late Syed Abdul Kareem,
Aged about 35 years,
1(d). B.V.Iesha,
D/o. Late Syed Abdul Kareem,
Aged about 32 years,
1(e). Kathum Bee,
D/o. Late Syed Abdul Kareem,
Aged about 30 years,
1(f). Kulsumbee,
D/o. Late Syed Abdul Kareem,
Aged about 29 years,
1(g). Syed Faruk,
S/o. Late Syed Abdul Kareem,
Aged about 33 years,
1(h). Syed Dastgir,
S/o. Late Syed Abdul Kareem,
Aged about 25 years.
1(i). Syed Dastgir,
S/o. Late Syed Abdul Kareem,
Aged about 25 years.
1(j). Zeenabee D/o. Late Syed Abdul
Kareem, 22 years,
1(k). Shagea D/o. Late Syed Abdul
Kareem, 20 years.
1(l). Sheheena D/o.Late Syed Abdul
Kareem, 20 years.
/3/ O.S.No. 7750/2005
1(m). Syed Navaz S/o.Late Syed
Abdul Kareem, 21 years.
All are R/at. Neelasandra,
Near Akbar Masjid,
Bengaluru-560 047.
2. Syed Mustaq @ Syed Esoodh,
S/o. Late Syed Ahmed,
Aged about 54 years,
R/o. Thimmaiah Road,
Bhaathi Nagar, Shivajinagar Post,
Bengaluru.
And also R/o.No.398,
Austin Town, Ward No.71,
Bengaluru-560 047.
3. Syed Pasha @ Mehboob,
S/o. Late Syed Ahmed,
Aged about 42 years,
R/at No.306, 27th Cross,
Thilak Nagar, Bengaluru.
4. Smt.Fathimunnissa,
D/o. Syed Ahmed,
W/o. Mohammed Ahmed,
Aged about 39 years,
R/o. Durga Mohalla,
Doddaballapura Town,
Doddaballapura,
Bengaluru Rural District.
5. Shafimunnissa,
D/o. Late Syed Ahmed,
W/o. Mohammed Fiaz,
/4/ O.S.No. 7750/2005
Aged about 33 years,
R/o. Durga Mohalla,
Doddaballapura Town,
Doddaballapura,
Bengaluru Rural District.
6. Smt.Khyrunnissa (Dead)
(D.1a, 1c, 1d, 1h- K.R., D.1b, 1d, 1e,
1f, 1i, 1j, 1k, 1l -Exparte,
D.2- K.N.K.R.,
D.3, 4, 5-B.V.B., for Advocates,
D.6 is abated)
Date of Institution of the suit : 7.10.2005
Nature of suit : Partition
Date of commencement of : 26.6.2019
evidence
Date on which the judgment is : 03.06.2020
pronounced
Years Months Days
Duration taken for disposal :
14 07 26
***
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of partition and separate possession of his 1/7th share, mesne profits and declaration that the gift deed executed by defendant No.6 in favour of defendant No.2 on /5/ O.S.No. 7750/2005 7.5.2003 in respect of the suit schedule property is the outcome of fraud and misrepresentation exercised by defendant No.2 on defendant No.6 and the gift deed executed by defendant No.2 on 23.9.2005 in favour of his wife and children is not binding upon the share of plaintiff.
2. That initially the present plaintiff and his mother i.e., defendant No.6 have filed the present suit for the relief of partition and separate possession and declaration. Subsequently, as per order on I.A.No.IV dated 24.1.2007 plaintiff No.1 has been transposed as defendant No.6.
3. It is the case of plaintiff that, the defendant No.6 is the mother of plaintiff and defendants No.1 to 5. That, one Syed Ahmed is the father of defendants No.1 to 5 and plaintiff and husband of defendant No.6. The said Syed Ahmed died on 20.5.2003 intestate leaving behind the plaintiff and defendants to succeed to his estate. That, the ancestor of the plaintiff and defendants by name Gulam Syed /6/ O.S.No. 7750/2005 Rasual had legally wedded wife Smt.Fathima Bee. Both of them died about 60 years back. The said Gulam Syed Rasual had a brother namely Syed Abdul Kareem who is the father- in-law of defendant No.6 and grand father of plaintiff and defendants No.1 to 5. The said Syed Abdul Kareem had two sons, one Syed Ahmed who is the husband of defendant No.6 and father of plaintiff and defendants No.1 to 5. The other son of Syed Abdul Kareem is by name Syed Abdulla. Both the aforesaid Gulam Syed Rasual and Syed Abdul Kareem were in possession and enjoyment of two separate independent properties adjacent to each other bearing Nos.397 and 398 as tenants under the Bengaluru City Corporation about decades back. That, there was a proposal to confer ownership rights upon the property in favour of the predecessor by virtue of long possession and enjoyment. The said Gulam Syed Rasual since had no issues has gifted orally i.e., "HIBBA" in favour of the husband of the defendant No.6 and father of the plaintiff and defendants No.1 to 5, the /7/ O.S.No. 7750/2005 property bearing No.398 and the other property bearing 397 in the possession of Syed Abdul Kareem came to be transferred in favour of Syed Abdulla who is the father-in-law of defendant No.6 and paternal uncle of plaintiff and defendants No.1 to 5. The said property is not subject matter of the present suit. Although suit schedule property was gifted in favour of the father of the plaintiff and defendants No.1 to 5, he has not obtained the necessary documents in his name in the book, with a result that the entries continued in the name of Smt.Fathima Bee. Even rents are paid to the Bengaluru City Corporation in her name.
4. It is further averred that, Bengaluru City Corporation in the proceedings dated 6.5.1976 has resolved that the schedule property be sold to the persons in occupation. In that connection, they have fixed the sale consideration amount of Rs.11,435/-. The schedule property was dilapidated house and for which there was electricity /8/ O.S.No. 7750/2005 connection and the same has been obtained in the name defendant No.6. The plaintiff and defendants are in joint possession of suit schedule property and the same is undivided. The plaintiff is running a garage of an automobile and he is an automobile mechanic and so also defendants No.1 and 3. The defendant No.1 is running an auto which was given to him by the defendant No.3. Plaintiff and defendants have jointly contributed necessary amount of Rs.11,435/- and other incidental expenses for obtaining a sale deed from Bengaluru Mahanagara Palike. The said amount has been given to defendant No.2 for making payment to Bengaluru Mahanagar Palike and to obtain necessary documents for the benefits of their family. The defendant No.2 is worldly-wise and he has got practice of attending Government offices and getting the paper work done. The defendant No.2 had taken defendant No.6 to Sub- Registrar Office on the guise that a sale deed is going to be executed by Bengaluru Mahanagara Palike in favour of /9/ O.S.No. 7750/2005 defendant No.6. The documents came to be executed as sale deed and for which the thumb impression of defendant No.6 was taken and her photo was also obtained in the Sub- Registrar's office. The original sale deed is in the custody of defendant No.2. Since the details of the same did not come within the knowledge of the plaintiff, he is unable to obtain the certified copies of the same. Thereafter, within a period of 2-3 months the defendant No.2 has taken the defendant No.6 to the Sub-Registrar Office and obtained the thumb impression and photo of the defendant No.6 on the guise that the same required for the rectification of the sale deed, since the defendant No.6 is an illiterate, aged and her eye sight is not proper and is unable to identify the documents.
5. It is further averred that, the defendant No.2 by playing fraud and misrepresentation on the defendant No.6 has allegedly secured gift deed dated 7.5.2003. The defendant No.6 was a household woman lacking in worldly / 10 / O.S.No. 7750/2005 wisdom. She is innocent and most gullible person and as such, the defendant No.2 taking undue advantage of the same has secured the alleged gift deed in his favour in respect of suit schedule property without the knowledge of the plaintiff. The alleged identification of the thumb impression of the defendant No.6 was not knowing the purpose of the same, as the plaintiff is also illiterate, ignorant and lacking in worldly wisdom. Now the plaintiff has realized that it is a fraud created by defendant No.2 to wriggle out the situation and at the same time to encash his fraudulent act. Accordingly, the said gift deed has no legal force and same is void. Taking undue advantage of the said alleged gift deed, the defendant No.2 has created another gift deed dated 23.9.2005 in favour of his wife and son namely Jabin Taj and Master Syed Ismail to perpetuate his illegal gain. The said alleged gift deed has been created by the defendant No.2 during the pendency of the suit and as such the same has no legal force nor it binds the plaintiff in any manner.
/ 11 / O.S.No. 7750/2005 The donee of the said gift deed is very much aware of the pendency of the suit and thereby they do not derive any benefit there under. Hence, the said gift deed is not binding upon the plaintiff.
6. Plaintiff further averred that, the defendants No.1 and 3 to 5 had no occasion to suspect any foul played by the defendant No.2 and even to this day they are unable to get the details of any documents. The defendant No.2 was entrusted with the work of construction of new building on the suit schedule property for the benefit of both the parties and in that regard all of them have contributed whatever amount demanded by the defendant No.2 periodically. Now the construction is almost complete. At this stage, the defendant No.2 is refusing to allot the share to the plaintiff. The plaintiff and defendants are having the same interest and share over the suit schedule property. Hence, he prayed for decreeing the suit.
/ 12 / O.S.No. 7750/2005
7. In response to suit summons, the defendants entered their appearance through their respective counsels and have filed their written statements. The defendants No.1 and 3 to 5 have filed their common written statement in which they have admitted the claim of the plaintiff and also claimed that they are also entitled for equal share along with the plaintiff. The defendants No.1 and 3 to 5 have denied the alleged gift deed executed by defendant No.6 in favour of defendant No.2 and further contended that plaintiff and all the defendants have contributed the amount for purchase of suit schedule property in the name of defendant No.6.
8. The defendants No.2 and 6 have filed their separate written statement and have denied the claim of the plaintiff and further contended that suit of the plaintiff is not maintainable in the eye of law. The plaintiff has filed the present suit on imaginary cause of action. Defendants No.2 and 6 further contended that the plaintiff is not in possession / 13 / O.S.No. 7750/2005 of the suit schedule property, hence, he ought to have paid the court fee on the actual market value. The suit of the plaintiff is barred by limitation. Further contended that, the defendant No.6 has purchased the suit schedule property and she voluntarily executed registered Gift Deed in favour of defendant No.2. Defendant No.2 in turn has executed a gift deed in favour of his wife and son. Hence, the suit of the plaintiff is bad for non-joinder of necessary parties. The defendants No.2 and 6 have contended that the Gulam Syed Rasual and Syed Abdul Kareem were not the tenants under Corporation in respect of property Nos.397 and 398 and hence, they cannot bequeath the property in any manner. As per Mohammadan Law gift of the property without an absolute right therein by the donor is void and illegal. The present plaintiff being the one of the attesting witness to the sale deed dated 15.2.2002 and gift deed dated 7.3.2003, even then he has filed the present suit only with an intention / 14 / O.S.No. 7750/2005 to knock off the property. Hence, they prayed for dismissal of the suit.
9. On the basis of the pleadings, documents produced by the parties, this Court framed the following issues and additional issues :
1) Whether plaintiff proves that Sri.Gulam Syed Rasul orally gifted the property No.398?
2) Whether plaintiff proves that defendant No.1, defendant No.3 and himself jointly contributed Rs.11,435/- with incidental expenses gave it sale consideration to defendant No.6 for purchase of suit property?
3) Whether plaintiff proves, that 2nd defendant undue influenced the 6th defendant and obtained through her some documents by playing fraud?
4) Whether plaintiff proves that 2nd defendant by claiming exclusive right / 15 / O.S.No. 7750/2005 over suit property refused to give share of himself, D1, 3 to 5?
5) Whether plaintiff proves that it being a joint property, plaintiff, D1, 3 to 5 are entitle for equal share?
6) Whether 2nd defendant and 6th defendant prove gift deed dated 7.5.03 and deed of rectification also?
7) Whether suit barred by law of limitation?
8) Whether suit is under valued and Court fee paid is incorrect?
9) Whether plaintiff, D1, 3 to 5 are entitle to 1/9th share each?
10) Whether plaintiff, D1, 3 to 5 are entitled to mesne profits?
11) What decree or order?
ADDITIONAL ISSUES FRAMED ON 6.3.2019
1) Whether the plaintiff proves that Gift Deed dated 7.5.2003 is the out come of / 16 / O.S.No. 7750/2005 fraud and misrepresentation exercised by defendant No.2 on defendant No.6?
2) Whether the plaintiff proves that gift deed dated 23.09.2005 is null and void?
3) Whether the defendant No.2 proves that suit of the plaintiff is not maintainable in the present form?
10. In order to substantiate his claim, the plaintiff examined himself as P.W.1 and got marked Exs.P.1 and P.28. The defendants No.3, 2 and 4 have been examined as D.Ws.1 to 3 respectively and got marked the documents Exs.D.1 to D.3.
11. That, during the pendency of the suit defendant No.6 died. The counsel for plaintiff filed Memo stating that the present plaintiff and defendants No.1 to 5 are the only legal heirs of defendant No.6.
12. Heard the arguments of both sides.
13. My findings on the above issues are as follows:
/ 17 / O.S.No. 7750/2005
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : In the negative.
Issue No.5 : In the negative.
Issue No.6 : In the affirmative.
Issue No.7 : In the affirmative.
Issue No.8 : In the affirmative.
Issue No.9 : In the negative.
Issue No.10 : In the negative.
Addl.Issue No.1 : In the negative.
Addl.Issue No.2 : In the negative.
Addl.Issue No.3: In the affirmative.
Issue No.11 : As per final order, for the
following:
REASONS
14. Issue No. 1 :- The plaintiff has filed the present suit for the relief of partition and separate possession of his 1/7th share in the suit schedule property and for the relief of declaration that the Gift Deed dated 7.5.2003 executed by defendant No.6 in favour of defendant No.2 is the outcome of fraud and misrepresentation exercised by defendant No.2 / 18 / O.S.No. 7750/2005 on defendant No.6 and the gift deed executed by defendant No.2 in favour of his wife and children on 23.9.2005 is not binding upon the share of plaintiff.
15. In order to establish his case, plaintiff himself examined as P.W.1 and got marked the documents Exs.P.1 to P.28. The examination-in-chief of P.W.1 is nothing but replica of petition averments. P.W.1 in his examination-in- chief deposed that defendant No.6 is the mother of plaintiff and defendants No.1 to 5. The plaintiff and defendants No.1 to 5 are the children of deceased Syed Ahamed and defendant No.6. The husband of defendant No.6 and father of plaintiff and defendants No.1 to 5 died on 20.5.2003 intestate leaving behind the present plaintiff and defendants to succeed his estate. That, their ancestor by name Gulam Syed Rasual had a legally wedded wife Smt.Fathimabee. Both of them died about 60 years back. The said Gulam Syed Rasual had a brother namely Syed Abdul Kaleem who is / 19 / O.S.No. 7750/2005 the father-in-law of defendant No.6 and grand-father of plaintiff and defendants No.1 to 5. The said Abdul Khareem had two sons, viz., Syed Ahamed i.e., husband of defendant No.6 and father of plaintiffs No.1 to 5. The other son of Syed Abdul Khareem is Syed Abdulla. The said Gulam Syed Rasual and Abdul Khareem were in possession and enjoyment of two separate independent properties adjacent to each other bearing Nos.397 and 398 as tenants under the then Bangalore City Corporation about decades back. That, there was a proposal to confirm ownership rights upon the property in favour of said Syed Rasual and Syed Abdul Khareem by virtue of long possession and enjoyment. That, said Gulam Syed Rasual had no issues and has gifted orally the suit schedule property in favour of the husband of defendant No.6 and father of plaintiff and defendants No.1 to
5. P.W.1 further deposed that although the suit schedule property was declared in favour of father of plaintiff, defendants No.1 to 5 and husband of defendant No.6, he has / 20 / O.S.No. 7750/2005 not obtained the change of name in the books of the then Bangalore City Corporation, with the result, the entries continued in the name of Smt.Fathimabee. The rents are paid in her name. Subsequently, on 6.5.1976 the Bangalore City Corporation has resolved that, schedule property be sold to the persons in the occupation and the Corporation has fixed the sale consideration amount at Rs.11,435/-. The electricity connection was obtained in the name of defendant No.6. The defendants No.1 and 3 have contributed for purchase of suit schedule property. The defendant No.2 has taken defendant No.6 to the Sub-Registrar Office in connection with the sale deed and for which the thumb impression of defendant No.6 was taken and her photo was also obtained. The original sale deed is in the custody of defendant No.2. The defendant No.6 is illiterate and her eye sight is also not proper. She is unable to identify the document. She followed the direction of defendant No.2. The defendant No.2 played fraud on defendant No.6 and got / 21 / O.S.No. 7750/2005 executed gift deed in is favour on 7.5.2003 and subsequently defendant No.2 executed the gift deed in favour of his wife and son on 23.9.2005. The act of defendant No.2 is illegal. The plaintiff has got 1/7th share in the suit schedule property. Hence, he prayed for decreeing the suit and has produced the documents Exs.P.1 to P.28. Though P.W.1 deposed in his examination-in-chief at page No.3, para No.8 that, "The Gulam Syed Rasual had orally gifted the suit schedule property in favour of father of plaintiff and defendants No.1 to 5 and husband of defendant No.6", but plaintiff has failed to produce an iota of document in order to show that the said Gulam Syed Rasual was the owner of the suit schedule property. Per contra, P.W.1 himself in his cross-examination at page No.12 clearly admitted that the suit schedule property has been granted to defendant No.6, which clearly goes to show that the suit schedule property has been allotted to the defendant No.6.
/ 22 / O.S.No. 7750/2005
16. Besides, Hiba (gift) has been defined under the Mohammadan Law, "Hiba is a transfer of property made immediately and without any exchange by one person to other and accepted by or on behalf of the later". That, as per Section 122 of Transfer of Property Act, to make gift the property must be in existence and the donor must be owner of the property and he must be in possession of the same. Under Mohammadan Law oral gift is permissible and writing is not essential for the validity of gift either of moveable or an immovable property. There are 3 essentials of a valid gift: (1) Declaration of gift by donor; (2) An acceptance of the gift, expressed or implied by or on behalf of donee; and (3) delivery of possession of the subject of the gift by the donor to the donee. In this case, the plaintiff has utterly failed to prove that as on the date of alleged Hiba made by Gulam Syed Rasood, he was the owner of the suit schedule property. The plaintiff has failed to establish the above said 3 essentials of valid gift. P.W.1 himself in his cross-
/ 23 / O.S.No. 7750/2005 examination at page No.14 unequivocally admitted that, "¸ÀzÀj UÀ¯ÁªÀiï ¸ÉÊAiÀÄzï gÀ¸ÀƯï, ¸ÉÊAiÀÄzï C§Äݯï PÀjA gÀªÀgÀÄUÀ¼ÀÄ CUÁ° CxÀªÁ CªÀgÀ ºÉAqÀwAiÀÄgÁUÀ° ¸ÉÊmï £ÀA.397 ªÀÄvÀÄÛ 398 £ÉÃzÀݪÀÅUÀ¼À ªÀiÁ°ÃPÀgÁVgÀ°®è J£ÀÄߪÀÅzÀÄ ¤d." D.W.1 also in his cross-examination at page No.7 clearly admitted that, "UÀįÁªÀiï ¸ÉÊAiÀÄzï gÀ¸ÀƯï gÀªÀgÀ ºÉ¸ÀjUÁUÀ° CxÀªÁ ¥ÁwêÀiÁ©Ã gÀªÀgÀ ºÉ¸ÀjUÁUÀ° ©©JA¦. gÀªÀgÀÄ Rjâ¥ÀvÀæªÀ£ÀÄß ªÀiÁrPÉÆnÖgÀ°®è." That, P.W.1 and D.W.1 themselves admitted that the said Gulam Syed Rasual and Syed Abdul Kareem were not the owners of Site No.397 and
398. That, as per Section 58 of the Indian Evidence Act facts admitted need not be proved. The said Gulam Syed Rasual and Syed Abdul Kareem were not at all owners in possession of suit schedule property. Though plaintiff produced voluminous documents i.e., Exs.P.1 to P.28, none of the documents establish the ownership and possession of said Gulam Syed Rasual. That, the plaintiff has utterly failed to adduce the evidence of witnesses who were allegedly present / 24 / O.S.No. 7750/2005 while making the said Hiba. Without documentary evidence Court cannot grant the relief. Accordingly, I answer Issue No.1 in the negative.
17. Issues No.2, 3 and 6 and Additional Issues No.1 and 2 :- That, as discussed supra the plaintiff has utterly failed to prove that the said Gulam Syed Rasual was the owner of the property and also failed to prove the alleged oral Hiba made by Gulam Syed Rasual.
18. It is admitted fact that suit schedule property has been allotted by the then Bangalore City Corporation in the name of defendant No.6 and sale deed has also been executed in her name as per Ex.P.22. P.W.1 also in his cross-examination at page No.12 clearly admitted that, "zÁªÁ¸ÀévÀÛ£ÀÄß ªÀĺÁ£ÀUÀgÀ ¥Á°PÉAiÀĪÀgÀÄ £À£Àß vÁ¬Ä ºÉ¸ÀjUÉ ªÀiÁrPÉÆnÖgÀÄvÁÛgÉ." P.W.1 further admitted in his cross-
examination at page No.14 that, "PÁ¥ÉÇðgÉõÀ£ï gÀªÀgÀÄ ¤£Àß
/ 25 / O.S.No. 7750/2005
vÁ¬ÄAiÀÄ ºÉ¸ÀjUÉ ¤¦-22 gÀAvÉ Rjâ¥ÀvÀæ ªÀiÁrPÉÆqÀĪÀ ¥ÀǪÀðzÀ°è CªÀgÀÄ ¸ÀéwÛ£À ªÀiÁ°ÃPÀgÁVgÀ°®è J£ÀÄߪÀÅzÀÄ ¤d." D.W.3 also in her cross- examination at page No.7 clearly admitted that, "©©JA¦.gÀªÀgÀÄ £À£Àß vÁ¬ÄAiÀÄ ºÉ¸ÀjUÉ Rjâ¥ÀvÀæ ªÀiÁrPÉÆnÖgÀÄvÁÛgÉ£ÀÄߪÀÅzÀÄ ¤d. ¤¦-22 Rjâ¥ÀvÀæzÀ°è PÀAqÀħgÀĪÀ ¨ÁªÁavÀæ £À£Àß vÁ¬ÄUÉ ¸ÉÃjzÀÄÝ CVgÀÄvÀÛzÉ. zÁªÁ¸ÀéwÛUÉ £À£Àß vÁ¬Ä ªÀiÁ°ÃPÀ¼ÁVzÀݼÀÄ ªÀÄvÀÄÛ ¨ÉÃgÉ AiÀiÁgÀÄ CVgÀ°®è J£ÀÄߪÀÅzÀÄ ¤d. ©©JA¦.UÉ £À£Àß vÁ¬Ä ºÀt ¸ÀAzÁAiÀÄ ªÀiÁr zÁªÁ¸ÀévÀÛ£ÀÄß Rjâ¹gÀÄvÁÛgÉ J£ÀÄߪÀÅzÀÄ ¤d", which clearly goes to show that the defendant No.6 has purchased the suit schedule property independently and neither the plaintiff nor the defendants No.1 to 5 have contributed for purchase of suit schedule property. Besides, on perusal of Ex.P.22 - Sale Deed dated 31.12.2002 it reveals that the then Bangalore City Corporation has executed registered sale deed in favour of defendant No.6. The present plaintiff is one of the attesting witnesses to the said sale deed. He being the attesting witness, well aware about all the affairs of suit schedule / 26 / O.S.No. 7750/2005 property, even then he has filed the present suit only with an intention to engulf the property.
19. That, in order to establish their defence, the defendant No.2 has been examined as D.W.2 and got marked the documents Exs.D.1 to D.3 i.e., Gift Deed dated 7.5.2003, Rectification Deed dated 22.5.2003 and Gift Deed dated 23.9.2005. The examination-in-chief of D.W.2 is nothing but replica of written statement averments. D.W.2 in his examination-in-chief deposed that, defendant No.6 has purchased the suit schedule property and she being the absolute owner in possession of suit schedule property has voluntarily executed registered Gift Deed in his favour as per Ex.D.1 on 7.5.2003 and Rectification Deed as per Ex.D.2 on 22.5.2003 and defendant No.6 delivered the possession of the suit schedule property on 7.5.2003 itself. The defendant No.2 by exercising his proprietary right has executed registered Gift Deed as per Ex.D.3 on 23.9.2005 in favour of / 27 / O.S.No. 7750/2005 his wife and son. The plaintiff and defendants No.1, 3 to 5 are no way concerned with the suit schedule property. Hence, he prayed for dismissal of the suit.
20. Though the counsel for plaintiff cross-examined D.W.2 in length, but nothing worth has been elicited from the mouth of D.W.2 in order to disbelieve the version of defendants No.2 and 6. The counsel for plaintiff much cross- examined D.W.2 with respect to name of defendant No.6. P.W.1 himself admitted the Ex.P.22 - sale deed and ownership of defendant No.6 over the suit schedule property, the question of denying the name of defendant No.6 does not arise at all. Besides, it is not the case of plaintiff that the defendant No.6 has impersonated and got registered the sale deed in her name. It is well settled law that, documentary evidence prevails over oral evidence. That, in a decision reported in (2000) 7 Supreme Court Cases 104 [S.Saktyvail (dead) by L.Rs Vs. M.Venugopal Pillai and / 28 / O.S.No. 7750/2005 others] in which the Hon'ble Apex Court held that, "According to provision (4) to Sub-Section of 92 of the Evidence Act, where under law a contract or disposition is required to be writing and the same has been reduced to writing its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and therefore no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered rescinded or substituted." In another decision reported in (2004) 2 Supreme Court Cases 283 [Krushi Utpadana Mandi Samithi Sahaswan District Badaon Vs. Bipin Kumar and another], in which the Hon'ble Apex Court held that, "Head Note C : Evidence Act, 1872 - S.92 and 115 - Held, Precludes a party from leading evidence contrary to the / 29 / O.S.No. 7750/2005 terms of written document." The said decisions are aptly applicable to the case in hand. That, as discussed supra, the plaintiff being one of the attesting witnesses, he cannot deny the sale deed - Ex.P.22.
21. That, defendant No.6 being the absolute owner in possession of suit schedule property has executed registered Gift Deed in favour of defendant No.2 as per Ex.D.1 on 7.5.2003. The plaintiff being the one of the attesting witnesses to the said gift deed, he cannot deny the said document.
22. It is an admitted fact that, the parties to the suit are governed under the Mohammadan Law as they are muslims. In such situation the case of the plaintiff that the suit schedule property is purchased out of the joint family nucleus and as such the suit schedule property is the joint family property in joint possession and enjoyment of the plaintiffs and defendants cannot be acceptable and it holds / 30 / O.S.No. 7750/2005 no merits. It is well settled principles of Mohamadan Law that there is no joint family existing in the eye of law and there is no joint family concept. It is well settled principle of law that if any property purchased by a member in his or her name under the registered sale deed, it is his/her property and at no point of time it can be called as joint family property. In such a situation the case of the plaintiff that the suit schedule property was purchased by defendant No.6 out of joint family nucleus and as such suit schedule property is the joint family property wherein plaintiff along with defendants are having a definite share in the suit schedule property cannot be accepted. It holds no merits. The very claim of the plaintiff over the suit schedule property is against the principles of Mohammadan Law. The plaintiff has filed the suit on the principles of Hindu Law, which is not applicable to the parties to the suit who are governed under the Mohammadan Law. In such a situation the case of the / 31 / O.S.No. 7750/2005 plaintiff for claiming his share in the suit schedule property has to be discarded and disbelieved.
23. The counsel for the plaintiff argued that, the defendant No.2 and 6 have colluded with each other and have created Ex.D.1 and Ex.D.3 - Gift Deeds only with an intention to defeat the rights of plaintiff. Though, the plaintiff and defendants No.1 and 3 to 5 have denied the due execution of Ex.D.1 - Gift deed, but it is well settled law that, the author of the document can only deny its execution. The third party cannot question the genuineness of said document. In this case, the donor i.e., defendant No.6 herself admitted in her written statement that she has voluntarily executed registered Gift Deed in favour of defendant No.2. That, in a decision reported in AIR 2002 KAR 1441 [Raghavendra Rao and others Vs. N.Veeravenkatarao and others], in which the Hon'ble High Court of Karnataka held that, "Evidence Act - Execution of / 32 / O.S.No. 7750/2005 document - Proof - Admissibility - Only the person who is said to be executor of a document must deny the execution of the document and none others and denial must be specific." The said decision is aptly applicable to the case in hand. The plaintiff cannot deny the said gift deed - Ex.D.1. Therefore, there is no water in the arguments advanced by the counsel for the plaintiff.
24. It is well settled law that, the registered document has got presumptive value and registered document prevails over the oral evidence. That, in a decision reported in 2019 SAR (Civil) 166 [Jamila Begum (Dead) through L.Rs Vs. Shameem Mohammad (Dead) through L.Rs and another], in which the Hon'ble Apex Court held that, "A registered document carried with it a presumption that it is validly executed." In this case also the defendant No.6 has executed registered Gift Deed in favour of defendant No.2 and hence, it has got presumptive value.
/ 33 / O.S.No. 7750/2005
25. The plaintiff claims that, the defendant No.2 played fraud on defendant No.6 and got executed gift deed as per Ex.D.1. The plaintiff has failed to prove that the defendant No.2 has played fraud on defendant No.6 and got executed gift deed as per Ex.D.1. Besides, as per Order VI Rule 4 of C.P.C. in case of fraud, undue influence, etc., the pleadings must be specific regarding the same. But, the plaintiff has not pleaded regarding the fraud or undue influence, etc., in his plaint. That, admittedly, defendant No.6 has executed a registered Gift Deed as per Ex.D.1 in favour of defendant No.2 i.e., much prior to filing of the present suit. The plaintiff being one of the attesting witness to the said document and he is well aware about the execution of gift deed - Ex.D.1. There is no pleadings and evidence as regards to the fact that the defendant No.6 had executed gift deed in favour of defendant No.2 with an intention to defeat the claim of the plaintiff over the suit schedule property. It is well settled law that, without specific pleadings, evidence and / 34 / O.S.No. 7750/2005 documents, Court cannot grant the relief. That, in a decision reported in 2002 (3) KLJ 512 [Patel Thippeswamy Vs. Smt.Gangamma and others] in which the Hon'ble High Court of Karnataka clearly held that, "A party pleading fraud and misrepresentation in respect of a transaction must give material particulars of allegations and in absence of such particulars, his plea is to be rejected. The defendants contended that the gift deed was got executed by misrepresentation and playing fraud on the third defendant. Defendants did not furnish the particulars of alleged misrepresentation and fraud. In the absence of particulars it cannot be held that the gift deed was obtained by misrepresentation." In another decision reported in (2011) 12 Supreme Court Cases 18 [Saradamani Kandappan Vs. S.Rajalaxmi and others] in which the Hon'ble Apex Court held that, "Head Note L : Code of Civil Procedure, 1908 - O.VI Rule 4 - Fraud - Burden of proof - Pleadings - Whenever a party wants to put forth contention of fraud, held : Specific / 35 / O.S.No. 7750/2005 pleadings as to fraud are to be made and proved." The said decisions are squarely applicable to the case in hand. In this case also the plaintiff made stray allegation without any proper pleadings and proof as regards to the alleged fraud. Hence, without specific pleadings and proof, the Court cannot grant the relief.
26. The defendant No.6 being the absolute and exclusive owner of suit schedule property has voluntarily executed registered Gift Deed in favour of defendant No.2 as per Ex.D.1 and on the same day the possession of the property has been delivered to the plaintiff. Since 7.5.2003 till 23.9.2005 the defendant No.2 is in possession of suit schedule property. P.W.1 also in his cross-examination at page No.15 clearly admitted that, "2£Éà ¥ÀæwªÁzÀ £ÀªÀÄä£ÀÄß AiÀiÁªÀvÀÄÛ ºÉÆqÉzÀÄ Nr¹gÀĪÀÅ¢®è, £À£Àß vÁ¬Ä zsÁ£À¥ÀvÀæzÀ ªÀÄÆ®PÀ ¸ÀévÀÛ£ÀÄß 2£Éà ¥ÀæwªÁ¢UÉ PÉÆlÖ ¢£ÁAPÀ¢AzÀ CvÀ£ÀÄ zÁªÁ¸ÀéwÛ£À ¸Áé¢üãÀ EgÀÄvÁÛ£É J£ÀÄߪÀÅzÀÄ ¤d", which clearly goes to show that defendant No.6 / 36 / O.S.No. 7750/2005 has executed registered Gift Deed as per Ex.D.1 in favour of defendant No.2 and defendant No.2 is in possession of suit schedule property.
27. The evidence of P.W.1, D.Ws 1 to 3, Ex.P.22 - Sale Deed and Ex.D.1 - gift deed and Ex.D.2 - Rectification Deed clearly goes to show that defendant No.6 being the absolute owner has executed registered Gift Deed and rectification deed in favour of defendant No.2. The plaintiff and defendants No.1, 3 to 5 have no rights over the suit schedule property. Accordingly, I answer Issues No.2, 3 and Additional Issues No.1 and 2 in the negative and Issue No.6 in the affirmative.
28. Issues No.4, 5, 9 and 10 : - That, as discussed on Issues No.1 to 3 and Additional Issues No.1 and 2, though P.W.1, D.W.1 and 3 have deposed that they have got share in the suit schedule property, but they have failed to prove the fact that they have contributed for purchase of suit / 37 / O.S.No. 7750/2005 schedule property and further failed to prove the alleged oral gift deed executed by Gulam Syed Rasual and also failed to prove that they are the tenants in common. Hence, the question of refusing to give share to the plaintiff and defendants No.1, 3 to 5 by the defendants No.2 and 6 does not arise at all. The plaintiff and defendants No.1, 3 to 5 are not entitled for the share in the suit schedule property as prayed for. Accordingly, I answer Issues No.4, 5, 9 and 10 in the negative.
29. Issue No.7 : - The defendant No.2 in his written statement has specifically contended that the suit of the plaintiff is barred by limitation. Defendant No.2 further contended that he has executed gift deed as per Ex.D.3 in favour of his wife - Jabeena Taj and son -Master Syed Ismail on 23.9.2005 i.e., much prior to the filing of suit. Whereas, the plaintiff sought the relief of declaration that the gift deed dated 23.9.2005 is null and void and not binding on his share / 38 / O.S.No. 7750/2005 in the year 2018. Hence, the suit of the plaintiff is barred by limitation. That, on perusal of the entire material available on record, it reveals that initially plaintiff filed the present suit on 7.10.2005 for the relief of partition and separate possession of his 1/7th share in the suit schedule property. Subsequently on 24.7.2018 the plaintiff filed I.A.No.14 under Order VI Rule 17 C.P.C. for amendment of plaint and thereby claimed the additional reliefs of declarations that the Gift Deed dated 7.5.2003 executed by defendant No.6 in favour of defendant No.2 is null and void and not binding upon his share and the gift deed executed by defendant No.2 in favour of his wife Jabeen Taj and his son Master Syed Ismail is null and void. The said application came to be allowed on 28.11.2018. That as discussed supra, the plaintiff being one of the attesting witness to the gift deed - Ex.D.1, he is well aware about the said gift deed on 7.5.2003 itself i.e., much prior to the filing of the suit. Even then he has not sought the relief of declaration while filing the suit. That, as per / 39 / O.S.No. 7750/2005 Article 58 of the Limitation Act, to obtain declaratory relief the limitation is 3 years when the right to sue first accrues. In this case, the plaintiff came to know about the execution of said Gift Deed - Ex.D.1 on 7.3.2003 itself and the right to sue accrued upon the plaintiff on the said date itself. But, he has sought the declaratory relief in the year 2018 i.e., after the expiry of more than 15 years. If at all the plaintiff has got share in the suit schedule property, he ought to have filed the suit immediately when he came to know about the execution of gift deed as per Ex.D.1, but the plaintiff has failed to file the suit within limitation, which clearly goes to show that plaintiff is not diligent in seeking the remedy. It is well settled law that "Law assists the person who is diligent in seeking the remedy". That, in a decision reported in AIR 2015 KAR 83 [H.B.Shivakumar Vs. L.C.Hanumanthappa], in which the Hon'ble High Court of Karnataka held that, "Head Note A : Limitation Act (36 of 1963) - Article 58 - suit for declaration - Limitation - Defendant disputed identity of suit / 40 / O.S.No. 7750/2005 property on 16.5.1990 in his written statement - Thus, right to sue for relief of declaration as to title to property arose when same was denied and disputed by defendant - Such a relief ought to have been claimed within period of 3 years from 16.5.1990 - Fact that High Court in appeal allowed the application for amendment of plaint seeking relief of declaration on 28.03.2002 - And plaint was amended on 24.07.2002 - Suit for such a relief filed thereafter was clearly barred under Article 58." The said decision is aptly applicable to the case in hand. In this case also the plaintiff came to now about the execution of registered gift deed Ex.D.1 on 7.5.2003 itself, whereas, he has filed the amendment application in the year 2018, which is clearly barred by limitation. Hence, the suit of the plaintiff is barred by limitation. Accordingly, I answer Issue No.7 in the affirmative.
30. Issue No.8 : - The plaintiff pleaded in his plaint and also P.W.1 in his evidence deposed that he is in / 41 / O.S.No. 7750/2005 possession of suit schedule property. Hence, he paid court fee under Section 35(2) of the Karnataka Court Fees & Suits Valuation Act and has paid court fee of Rs.400/-. But, P.W.1 in his cross-examination at page No.15 unequivocally admitted that, "¥ÀæwªÁ¢ £ÀA.2 FUÀ zÁªÁ¸ÀéwÛ£À°è ªÁ¸ÀªÁVgÀÄvÁÛ£É. 2£Éà ¥ÀæwªÁ¢AiÀÄ£ÀÄß ºÉÆgÀvÀÄ ¥Àqɹ ¨ÉÃgÉ AiÀiÁgÀÄ zÁªÁ¸ÀéwÛ£À°è ªÁ¸ÀªÁVgÀĪÀÅ¢®è JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ J¯ÁègÀÆ ºÉÆqÉzÀÄ Nr¹ CªÀ£ÀÄ M§â£Éà EgÀÄvÁÛ£É. FUÀ ¸ÀĪÀiÁgÀÄ 15 ªÀµÀðUÀ¼À »AzÉ 2£Éà ¥ÀæwªÁ¢ £ÀªÀÄä£ÀÄß ºÉÆqÉzÀÄ Nr¹gÀÄvÁÛ£É. 2£Éà ¥ÀæwªÁzÀ £ÀªÀÄä£ÀÄß AiÀiÁªÀvÀÄÛ ºÉÆqÉzÀÄ Nr¹gÀĪÀÅ¢®è, £À£Àß vÁ¬Ä zsÁ£À¥ÀvÀæzÀ ªÀÄÆ®PÀ ¸ÀévÀÛ£ÀÄß 2£Éà ¥ÀæwªÁ¢UÉ PÉÆlÖ ¢£ÁAPÀ¢AzÀ CvÀ£ÀÄ zÁªÁ¸ÀéwÛ£À ¸Áé¢üãÀ EgÀÄvÁÛ£É J£ÀÄߪÀÅzÀÄ ¤d.", which clearly goes to show that the plaintiff has been ousted from the suit schedule property much prior to the filing of the suit. That, as per Section 58 of the Indian Evidence Act, admitted facts need not be proved. The plaintiff utterly failed to prove that suit schedule property is in joint possession of plaintiff and defendants. Since the plaintiff claimed the relief of / 42 / O.S.No. 7750/2005 declaration that Gift Deed dated 7.5.2003 executed by defendant No.6 in favour of defendant No.2 and the Gift Deed dated 23.9.2005 executed by defendant No.2 in favour his wife and son in respect of suit schedule property are null and void to the extent of his share, hence, he ought to have paid court fee on actual market value under Section 24(b) of Karnataka Court Fees & Suits Valuation Act. In the valuation slip the plaintiff himself mentioned that valuation of the suit schedule property is Rs.15 Lakh. Hence, the court fee paid by the plaintiff on the plaint is insufficient. Accordingly, I answer Issue No.8 in the affirmative.
31. Additional Issue No.3 : - The defendants No.2 and 6 have taken up the specific defence that the suit of the plaintiff is not maintainable and same is barred under the principles of Mohammadan Law and as such the plaintiff has no right of partition over the suit schedule property and he cannot claim any share in the suit schedule property.
/ 43 / O.S.No. 7750/2005 Admittedly, the plaintiff, defendants No.1, 3 to 5 in this suit have based their entire claim under the principles of Hindu Law, in spite of the fact that the parties to the case are governed under the principles of Mohammadan Law, the plaintiff has stated that after the death of their father, the joint family exists in the eye of law and all the members are jointly residing in the suit schedule property as the members of joint family and out of the joint family nucleus the suit schedule property was purchased by the defendant No.6 and the suit schedule property is the joint family property of plaintiff and defendants. As discussed supra, while discussing on Issues No.1 to 10 and Additional Issues No.1 and 2, the very concept called joint family in the Mohammadan Law does not exist and there is no concept called joint family under the Mohammadan Law. Under such circumstances, suit of the plaintiff claiming a definite share in the suit schedule property is not maintainable.
/ 44 / O.S.No. 7750/2005
32. That, in a decision reported in ILR 1996 KAR 484 [Usman Sab Vs, Dastagiri Sab], in which the Hon'ble High Court of Karnataka held that, "Under Mohammadan Law there is no such thing as joint Hindu family nor the concept of joint Hindu family property applicable to the Hindu law is applicable to the Muslims". The said decision is aptly applicable to the case in hand
33. That, under the Mohammadan Law a person will not get any birth right on the property of his father or mother. There is no phenomena like interest in the Mohammadan Law. In such situation, the plaintiff will not get any inherent right over the suit schedule property which was purchased by defendant No.6 out of her own earnings. Even P.W.1 also in his cross-examination admitted the same. Hence, the suit of the plaintiff itself is not maintainable in the eye of law. Hence, by taking into consideration of the facts / 45 / O.S.No. 7750/2005 and evidence available on record, I answer Additional Issue No.3 in the affirmative.
34. Issue No.11 :- In view of the above discussions, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby dismissed with costs.
Plaintiff is liable to pay court fee under Section 24(b) of the Karnataka Court Fees & Suits Valuation Act on the market value of the suit schedule property i.e., on Rs.15 Lakh as calculated by the plaintiff, soon after the expiry of the appeal period. If plaintiff fails to pay the same, office is hereby directed to calculate the requisite court fee on Rs.15 Lakh and to intimate the concerned Tahsildar to recover the same from the plaintiff as if it was the land revenue and remit the same to the Court account.
/ 46 / O.S.No. 7750/2005 Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 3rd day of June, 2020.) (KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Syed Ghouse @ Iqbal
2. List of documents exhibited for plaintiff:
Ex.P.1 : Family tree dated 28.1.2011.
Ex.P.2 : Electricity bill for the period of Jan-2003.
Ex.P.3 : Election pamphlet.
Ex.P.4 : Electricity bill for the period of Sep-2003.
Ex.P.5 : Electricity bill for the period of Nov-2003.
Ex.P.6 : Electricity bill for the period of May-2004.
Ex.P.7 : Electricity bill for the period of June-
2004.
Ex.P.8 : Electricity bill for the period of July-2004.
Ex.P.9 : Electricity bill for the period of Aug-2004.
/ 47 / O.S.No. 7750/2005
Ex.P.10 : Electricity bill for the period of Oct-2004.
Ex.P.11 : Electricity bill for the period of Nov-2004. Ex.P.12 : Death certificate of Kyrunnissa dated 11.11.2011.
Ex.P.13 : Endorsement issued by BBMP dated 22.3.2011.
Ex.P.14 : Tax paid receipt dated 18.4.1968. Ex.P.15 : Tax paid receipt dated 15.12.1961. Ex.P.16 : Tax paid receipt dated 13.1.1962. Ex.P.17 : Tax paid receipt dated 3.1.1968.
Ex.P.18 : Tax paid receipt dated 18.5.1962. Ex.P.19 : Ration card issued Food and Civil Supply Department.
Ex.P.20 : Election I.D card of Karimunnissa. Ex.P.21 : Election I.D card of Syed Ahmed.
Ex.P.22 : C/c sale deed dated 31.12.2002.
Ex.P.23 : Electricity bill for the period of Jan-2005. Ex.P.24 : Electricity bill for the period of July-2002. Ex.P.25 : Electricity bill for the period of Nov-2002 Ex.P.26 : Electricity bill for the period of April-
2005.
Ex.P.27 : Tax paid receipt dated 6.7.1989.
Ex.P.28 : Death certificate of Syed Ahmed dated 27.5.2003.
/ 48 / O.S.No. 7750/2005
Ex.P.29 : Passport dated 25.7.1990.
Ex.P.30 : Zerox copy of ration card of
Shajahan
3. List of witnesses examined for the defendants :
D.W.1 : Syed Pasha @ Mehboob.
D.W.2 : Syed Mustaq.
D.W.3 : Smt.Fathimunnissa.
4. List of documents exhibited by the defendants : -
Ex.D.1 : C/c of gift deed dated 7.5.2003. Ex.D.2 : C/c of rectification deed dated 22.5.2003. Ex.D.3 : C/c of gift deed dated 23.9.2005.
(KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 49 / O.S.No. 7750/2005
03/06/2020
Judgment pronounced in the open Court
(Vide separate Judgment):-
ORDER
Suit of the plaintiff is hereby dismissed with costs.
Plaintiff is liable to pay court fee under Section 24(b) of the Karnataka Court Fees & Suits Valuation Act on the market value / 50 / O.S.No. 7750/2005 of the suit schedule property i.e., on Rs.15 Lakh as calculated by the plaintiff, soon after the expiry of the appeal period. If plaintiff fails to pay the same, office is hereby directed to calculate the requisite court fee on Rs.15 Lakh and to intimate the concerned Tahsildar to recover the same from the plaintiff as if it was the land revenue and remit the same to the Court account.
Draw decree accordingly.
(KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City.