Bangalore District Court
) Mrs. Noorjan W/O Mr. Syed Noorulla vs ) Mr. Abdul Bari on 22 May, 2023
KABC0A0015732016
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.25171/2016
Dated this 22nd day of May 2023
Plaintiffs:- 1) Mrs. Noorjan W/o Mr. Syed Noorulla,
Major, D/o Late K. Mohammed Ghouse,
Residing at No.35/2, 5th Cross,
M.M. Block, Marappa Garden,
J.C. Nagar, Bengaluru-6.
2) Mrs. Zareena Begum,
W/o Mr. Amanulla Khan,
Major, D/o Late K. Mohammed Ghouse,
Residing at No.12, 1st Cross,
M.M. Block, J.C. Nagar, Bengaluru-6.
3) Mrls. Husna Mohsin Khan,
W/o Mr. Mohsin Khan,
Major, Grand D/o Late K. Mohammed Ghouse,
Residing at No.9/1, 1st Cross,
M.M. Block, Marappa Garden,
J.C. Nagar, Bengaluru-6.
4) Mrs. Reshma Shaheen,
W/o Mr. Javeed Khan,
Major, Grand D/o Late K. Mohammed Ghouse,
Residing at No.1/260, Jinnah House,
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Kaveripatnam, Krishnagiri District.
5) Mrs. Rubina Shaheen,
W/o Mr. Ibrahim Shariff,
Major, Grand D/o Late K. Mohammed Ghouse,
Residing at No.6, Bharath House,
Armugam Circle, Basavanagudi,
Bengaluru.
6) Mrs. Asma Shaheen,
W/o Mr. Mohammed Riyaz Pasha,
Grand D/o Mohammed Riyaz Pasha,
Residing at No.27, 10th Cross,
Pipeline Vijayanagar,
Bengaluru-40.
7) Mr. Nadeem Khasim,
Aged major,
S/o Mohammed Khasim,
Grand S/o late K. Mohammed Ghouse,
Residing at No.11/1,
1st Cross, Chinnappa Garden,
Benson Town Post, Bangalore-46.
8) Mr. Waseem Khasim,
Aged major, S/o late Mohammed Khasim,
Grand S/o late K. Mohammed Ghouse,
Residing at 2nd Cross,
Magadi Road, Ijur Mohalla,
Ramnagaram -562 159.
9) Mrs. Madiha Begum,
Aged major,
W/o late Mr. Suhail Khasim,
Daughter in law of late Mr. Maqbool,
Grand Daughter in Law of
late K. Mohammed Ghouse,
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Residing at No.4552, Masjid Mohalla,
Ramnagram-562 159.
10) Miss. Dania Sakin,
Aged minor,
D/o late Mr. Suhail Khasim,
Grand daughter of
late K. Mohammed Ghouse,
A minor represented by her mother
Plaintiff No.9 above, Residing at No.4552,
Masjid Mohalla, Ramnagram-562 159.
11) Mr. Abdul Gaffar .M,
Aged major,
S/o late K.M. Mastan & late Hafeeza Bee,
Residing at No.30,
Dispensary Road, Bangalore-1
12) Mr. Mohammed Kaleem,
Aged major,
S/o late K.M. Mastan & late Hafeeza Bee,
Residing at No.30,
Dispensary Road, Bangalore-1
13) Mrs. Naseem Akhtar,
Aged major,
W/o late Abdul Azeez,
Daughter in law of late K.M. Mastan
& late Hafeeza Bee,
Residing at No.10/1,
4th Cross, Old KEB Road,
Khyoom Garden,
Kaval Bysandra,
R.T. Nagar Post, Bangalore-32.
14) Mrs. Nafees Akhtar,
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Aged major,
W/o Ansar Pasha,
Grand Daughter of late K.M. Mastan
& late Hafeeza Bee,
Residing at No.10/1,
4th Cross, Old KEB Road,
Khyoom Garden,
Kaval Bysandra, R.T. Nagar Post,
Bangalore-32.
15) Mrs. Nikkhat Afshan,
Aged major,
W/o Mohammed Parvez,
Grand Daughter of late K.M. Mastan
& late Hafeeza Bee,
Residing at No.10/1, 4th Cross,
Old KEB Road, Khyoom Garden,
Kaval Bysandra, R.T. Nagar Post,
Bangalore-32.
16) Mr. Murad Sha Patel,
Aged major,
S/o late Abdul Azeez,
Grand Son late K.M. Mastan
& late Hafeeza Bee,
Residing at No.10/1,
4th Cross, Old KEB Road,
Khyoom Garden, Kaval Bysandra,
R.T. Nagar Post, Bangalore-32.
17) Mrs. Zamrud Shariff,
Aged major,
W/o late K.M. Shariff,
Daughter in law of late K.M. Mastan
& late Hafeeza Bee,
Residing at No.30,
Dispensary Road, Bangalore-1.
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18) Mrs. Shazia, Aged major,
W/o Syed Rafeeq,
Grand daughter of late K.M. Mastan
& late Hafeeza Bee,
Residing at No.30,
Dispensary Road, Bangalore-1.
19) Mrs. Hoor Saher, Aged major,
W/o Anees-Ul-Haq,
Grand daughter of late K.M. Mastan
& late Hafeeza Bee,
Residing at No.30,
Dispensary Road, Bangalore-1.
20) Mrs. Mahaboob Jan, Aged major,
W/o Mohammed Ismail,
D/o. late K.M. Mastan & late
Hafeeza Bee, Residing at No.2277,
11th Cross, Vinobha Nagar,
Kadugondanahalli, Bangalore-45.
(Since deceased by her legal representatives)
a) Mr. Mohammed Ismail alias Babu,
Aged major, S/o Late Abdul Jabbuv,
b) Mr. Mohammed Mohammed Arshad,
Aged 35 years, S/o. Mr. Mohammed Ismail
Alias Babu,
Both are residing at No.2277,
11th Cross, Vinobha Nagar,
Kadugondanahalli, Bangalore-45.
21) Mrs. Shahnaz Begum,
Aged major, W/o Noorulla Khan,
D/o. Late K.M. Mastan & late
Hafeeza Bee, Residing at No.60/1,
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1st Floor, 5th Cross, Gospel Street,
Lingarajapuram, Bangalore-84.
22) Mrs. Mubeen Taj,
Aged major, W/o Altaf Pasha,
D/o. late K.M. Mastan & late
Hafeeza Bee, Residing at No.4577,
Masjid Mohalla,
Ramanagrarn-562 159.
23) Mrs. Jabeen Taj, Aged major,
W/o Shabbir Ahmed, D/o late K.M. Mastan
& late Hafeeza Bee, Residing at No.117,
7th Main Road, New Baglur Layout,
Lingarajapuram, Bangalore-84.
24) Mr. Shujad Ahmed, Aged major,
S/o late Shahzad Ahmed,
Grand son of late K.M. Mastan
& late Hafeeza Bee,
Residing at No.39, Harry's Road,
Benson Town, Bangalore-46.
25) Mr. Shoib Ahmed, Aged major,
S/o late Mr. Shahzad Ahmed,
Grand son of late K.M. Mastan
& late Hafeeza Bee,
Residing at No.39, Harry's Road,
Benson Town, Bangalore-46.
26) Mr. Shabbir Ahmed, Aged major,
S/o late Mr. Shahzad Ahmed,
Grand son of late K.M. Mastan
& Hafeeza Bee, Residing at No.39,
Harry's Road, Benson Town,
Bangalore-46.
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27) Mr. Sabir Ahmed, Aged major,
S/o. late Mr. Shahzad Ahmed,
Grand son of late K.M. Mastan
& late Hafeeza Bee, Residing at No.39,
Harry's Road, Benson Town,
Bangalore-46.
28) Mrs. Mohsina Kausar, Aged major,
W/o Fairoze Ahmed,
Grand daughter of late K.M. Mastan
& late Hafeeza Bee,
Residing at No.39, Harry's Road,
Benson Town, Bangalore-46.
29) Mrs. Tahseen Kausar, Aged major,
W/o Amjad Ahmed,
Grand daughter of late K.M. Mastan
& late Hafeeza Bee, Residing at No.29,
Ahmed Sait Road, Frazer Town,
Bangalore-5.
30) Mrs. Taskeen Kausar,
Aged major, W/o Mohammed Younus,
Grand daughter of late K.M. Mastan
& late Hafeeza Bee, Residing at No.40/2,
'E' Main, 6th Street, H.K.P. Road Cross,
Bangalore-51.
31) Mrs. Rehana Begum,
Aged major, W/o late Mahaboob Pasha,
D/o late K. Abdul Jabbar,
Residing at No.25/9,
1st Cross, M.M. Block,
Marappa Garden, J.C. Nagar,
Bangalore-6
32) Mrs. Haseena Khanum, Aged major,
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W/o Safeer Ahmed Khan,
D/o late K. Abdul Jabbar,
Residing at Belgumba Road,
Adjacent to Sirpalli Sulami Mutt,
Tumkur.
33) Mrs. Rizwana Begum, Aged major,
W/o Abdul Gaffar M,
D/o late K. Abdul Jabbar,
Residing at No.30,
Dispensary Road, Bangalore-1.
34) Mr. Rafeeq Ahmed, Aged major,
S/o late K. Mohammed Yousuff
& Late Zulekha Bee,
Residing at No.30,
Dispensary Road, Bangalore-1.
35) Mr. Mohammed Ismail Riyaz,
Aged major, S/o late K. Mohammed Yousuff
& late Zulekha Bee, Residing at No.30,
Dispensary Road, Bangalore-1.
36) Mr. Irshad Ahmed Yusuf,
Aged major, S/o late K. Mohammed Yousuff
& late Zulekha Bee, Residing at No.30,
Dispensary Road, Bangalore.
37) Mr. Mohammed Khasim Naushad,
Aged major, S/o late K. Mohammed Yousuff
& late Zulekha Bee,
Residing at No.43-B,
Robertson Road,
Frazer Town, Bangalore-5.
38) Mr. Mohammed Farooq, Aged major,
S/o late K. Mohammed Yousuff
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& late Zulekha Bee, Residing at No.30,
Dispensary Road, Bangalore-1.
39) Mr. Ameerullah Y., Aged major,
S/o late K. Mohammed Yousuff
& late Zulekha Bee, Residing at No.30,
Dispensary Road, Bangalore-1.
40) Mr. Ajmal Yousuff, Aged major,
S/o late K. Mohammed Yousuff
& late Zulekha Bee, Residing at No.30,
Dispensary Road, Bangalore-1.
41) Mrs. Shameem Ansari, Aged major,
W/o late Mujeeb Ansari,
D/o late K. Mohammed Yousuff
& late Zulekha Bee, Residing at No.23,
Park Road, Tasker Town,
Bangalore-51.
42) Mrs. Naseema Begum, Aged major,
W/o R. Nawab Jan,
D/o. late K. Mohammed Yousuff
& late Zulekha Bee, Residing at No.35/1,
Spencer Road, Frazer Town,
Bangalore-5.
43) Mrs. Nasreen Banu, Aged major,
W/o Kaleem Shariff,
D/o late K. Mohammed Yousuff
& late Zulekha Bee, Residing at No.30,
Dispensary Road, Bangalore-1.
Plaintiffs 2 to 10 in this suit represented by their
Power of Attorney, Noorjan the Plaintiff No.1,
above named.
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KABC0A0015732016
Plaintiffs 12 to 30 in this suit represented by their
Power of Attorney, Abdul Gaffar M. the Plaintiff
No.11 above named.
Plaintiffs 32 and 33 in this suit represented by
their Power of Attorney, Rehana Begum the
Plaintiff No.31 above named.
Plaintiffs No. 34 to 36 and Plaintiffs 38 to 43 in
this suit represented by their Power of Attorney,
Mohammed Khasim Naushad the Plaintiff No.7
above named.
(Rep. By - Sri M.M.A, Advocate)
V/s
Defendants:- 1) Mr. Abdul Bari, Aged major,
S/o late K. M. Mastan & late
Hafeeza Bee, Residing at No.30,
Dispensary Road, Bangalore-1
2) Mr. Nayeem Pasha, Aged major,
S/o late K. M. Mastan & late
Hafeeza Bee, Residing at No.30,
Dispensary Road, Bangalore-1
3) Mrs. Sehar Banu, Aged major,
W/o late Mohammed Aslam,
Daughter-in-law of late
K. Mohammed Ghouse,
Residing at No.30,
Dispensary Road, Bangalore-1.
4) Mr. Mohammed Shoib, Aged major,
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KABC0A0015732016
S/o late Mohammed Aslam,
Grand S/o of late
K. Mohammed Ghouse,
Residing at No.30,
Dispensary Road, Bangalore-1.
5) Master Mohammed Shakib,
Aged major,
S/o late Mohammed Aslam,
Grand S/o of late
K. Mohammed Ghouse,
Residing at No.30,
Dispensary Road, Bangalore-1.
6) Miss. Zaiba, Aged major,
D/o late Mohammed Aslam,
Grand D/o late K. Mohammed Ghouse,
Residing at No.30, Dispensary Road,
Bangalore-1.
(D1 by - Sri M.S, Advocate, D2 to 6 - Exparte)
Date of Institution of the suit 11/02/2016
Nature of the (Suit or pro-note, Partition
suit for declaration and
possession, suit for injunction,
etc.)
Date of the commencement of 13/03/2017
recording of the Evidence.
Date on which the Judgment 22/05/2023
was pronounced.
12 OS.No.25171/2016
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KABC0A0015732016
Year/s Month/s Day/s
Total duration -07- -03- -11-
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:: JUDGMENT ::
This is a suit filed for relief of partition and separate possession of the suit schedule property and certain other reliefs by the plaintiff No. 1 to 43 against defendant No. 1 to
6.
2. The plaint averments in brief are that, originally, the suit schedule property was purchased by five joint purchasers under the sale deed dated 17-03-1960 and the five purchasers are Mohammed Ghouse whose branch is represented in the present suit by plaintiff No. 1 to 10 and defendant No. 3 to 6, Hafeeza Bee whose branch is represented in the present suit by plaintiff No. 11 to 30 and defendant No. 1 & 2, Abdul Jabbar whose branch is 13 OS.No.25171/2016 Judgment KABC0A0015732016 represented in the present suit by plaintiff No. 31 to 33, Zulekha Bee whose branch is represented in the present suit by plaintiff No. 34 to 43 and the fifth purchaser was one Mohammed Khaleel who is not impleaded in the present suit on the ground that he has already released and gifted away his 20% share in the property to the various other parties of the present suit. The further plaint averments are that, after the purchase by the aforestated five purchasers under the aforestated sale deed, the five purchasers were in joint possession and after their death, their legal representatives are in joint possession of the suit schedule property. Pleading that, there is no partition between the branches of the five joint purchasers and defendant No. 1 and 2 are in enjoyment of portions of suit schedule property in excess to their entitlement and the defendants when called upon to effect partition have not cooperated with the plaintiffs, the plaintiffs have filed the present suit contending that the plaintiffs together are entitled to 87.3% in the suit schedule property 14 OS.No.25171/2016 Judgment KABC0A0015732016 and for partition and separate possession of their respective share and also for relief of inquiry into mesne profits.
3. The suit schedule property is described as follows;
All that piece and parcel of properties bearing No. 29, 30 and 31, old No.s 134 to 136, situated at Dispensary Road, (Narayana Chetty Road), Bangalore consisting of two shops in the ground floor measuring 15 x 50 feet and 15 x 40 feet and the rest are residential portions, the total property measuring East 81.6 + 31.3 feet, West 112 feet, North 15.3 + 23.2 feet, South 37.7 feet, bounded as follows;
East by No. 32, Dispensary Road, West by No. 28, Dispensary Road, North by private property, South by Dispensary Road.
4. On issuance of suit summons, the defendants No. 2 to 6 were duly served and placed ex parte. It was only defendant No. 1 who appeared and filed written statement and contested the suit. In the written statement filed by defendant No. 1, he 15 OS.No.25171/2016 Judgment KABC0A0015732016 admitted the purchase of suit schedule property by five purchasers under the sale deed dated 17-03-1960. He also admitted the relationship of the plaintiffs and Defendants, with the various purchasers under the said sale deed as stated in the plaint. However, he denied the joint possession of the plaintiffs and instead took up the plea that there was oral partition between the five purchasers under which towards her 20% undivided share, his mother Hafeeza Bee, was allotted South-Western portion measuring East to West 16.2 feet and North to South 40 feet, totally measuring 648 square feet, along with building constructed thereon consisting of ground floor and first floor and after allotment of the same towards her share, the said Hafeeza Bee gifted the same to the defendant No. 1 under oral gift/ Hiba and has also executed confirmation of the gift dated 6-1-1992 and on the strength of the same, defendant No. 1 has also got evicted the tenant from the shop premises by filing OS 8161 of 2009. Thereby pleading that defendant No. 1 is exclusively entitled 16 OS.No.25171/2016 Judgment KABC0A0015732016 to aforestated 648 square feet out of the suit schedule property under the Hiba executed by his mother and defendant No. 1 has in turn gifted the same to his wife and sons, the Defendant No. 1 prayed for dismissal of the suit.
5. On the basis of the above rival pleadings, the following issues have been framed;
1) Whether the plaintiffs prove that they are entitled to 87.3% in the schedule property?
2) Whether the plaintiffs prove that they and the defendants are solely and jointly entitled to shares as per Paragraph 16 of the Plaint?
3) Whether the plaintiffs prove that they are entitled for partition and separate possession according to their shares?
4) What order or decree?
17 OS.No.25171/2016
Judgment KABC0A0015732016
6. In the trial, the plaintiff No. 11 examined himself as PW1 and got marked Ex. P-1 to P-17. Further, on behalf of the plaintiffs, in the cross examination of DW1, Ex. P-18 is marked by confronting to DW1. On behalf of the defendants, the defendant No.1 examined himself as DW1 and got marked Ex. D-2 to D-7. Ex. D-1 was got marked by confronting to PW1 in his cross examination.
7. Thereafter, I have heard the arguments of both sides and perused the records of the case.
8. At the time of arguments, the Learned Counsel for plaintiffs filed memo for revision and recalculation of the shares of the parties to which the defendant No. 1 has filed detailed objections. However, the law is settled that, the court will allot the shares to the parties on the basis of the shares to which the parties are entitled to as per the applicable law, irrespective of the prayer sought for in the Plaint. Therefore, the said memo is not of much consequence. As will be 18 OS.No.25171/2016 Judgment KABC0A0015732016 discussed infra, while answering the issues, the shares of the parties will be determined by applying the applicable Mohammedan law to the facts of the case.
9. I have perused the records of the case.
10. My answer to the issues are as follows;
Issue No. 1 to 3 : As per finding.
Issue No. 4 : As per final order for the following :
:: REASONS ::
Issue No. 1 to 3.
11. These issues require common discussion and hence considered together.
12. At the outset, the case of the plaintiffs in brief is that suit schedule property was originally purchased by five purchasers under sale deed dated 17-03-1960 and the plaintiffs and defendants represent the legal heirs of the said 19 OS.No.25171/2016 Judgment KABC0A0015732016 five purchasers. On this basis, the plaintiffs have filed the present suit for partition and separate possession of their respective shares in the suit schedule property on the ground that defendant No. 1 and 2 are in possession of excess portion of suit schedule property than that to which they are entitled to and they have not cooperated when the plaintiffs called upon them for a fair division of the property as per the shares as per the applicable law.
13. It is only defendant No. 1 who has entered appearance and contested the suit and the other defendant No. 2 to 6 are placed ex parte. In essence, the defence raised by defendant No. 1 is that he represents the branch of second purchaser under the sale deed dated 17-03-1960 i.e. Hafeeza Bee being her son and there was oral partition between the five purchasers in which a portion of the suit schedule property measuring 648 square feet more fully described in his written statement was allotted to Hafeeza Bee towards her share and she has gifted the same under Hiba followed by confirmation 20 OS.No.25171/2016 Judgment KABC0A0015732016 of Hiba dated 6-01-1992 in his favour and therefore he is exclusively entitled to said 648 square feet of suit schedule property. On this basis, pleading earlier partition between the five purchasers under the sale deed dated 17-03-1960, he has prayed for dismissal of this suit.
14. As already noted Supra, in support of their case, the plaintiffs have examined plaintiff No. 11 as PW1 and got marked Ex. P1 to P18 of which Ex. P18 is marked by confronting to DW1 in his cross-examination. Ex. P1 is the sale deed dated 17-03-1960 under which the suit schedule property was purchased by the five purchasers. Ex. P2 is the mortgage deed dated 7-08-1964 executed by the said five purchasers mortgaging the said property in favour of one Dr. Benjamin and Mrs. Benjamin for Rs. 25,000. In the said mortgage deed itself, there is endorsement of receipt dated 23-08-1991 in respect of discharge of the said mortgage and for having returned the original documents to one Mohammed Yusuf who is husband of one of the mortgagers. Ex. P3 is gift 21 OS.No.25171/2016 Judgment KABC0A0015732016 deed dated 18-03-2006 by Tahira Begum who is the wife of purchaser No. 3 under the sale deed namely Abdul Jabbar under which it is recited that earlier she had released 7% out of her 20% in favour of children of purchaser No. 2 Hafeeza Bee and under the said document she has gifted remaining 13% out of her 20% in favour of her daughters namely plaintiff No. 31-33 herein. Ex. P4 is the release deed dated 18- 03-2006 by purchaser No. 5 Mohammed Khaleel in favour of plaintiff No. 11 releasing 5% out of his 20% to the releasee. Ex. P5 is another release deed dated 18-03-2006 executed by aforestated Tahira Begum wife of Abdul Jabbar who is purchaser No. 3 under the sale deed releasing 7% out of her 20% in favour of 5 daughters of Hafeeza Bee. Ex. P6 is a release deed dated 18-03-2006 executed by Mohammed Khaleel releasing 2.5% out of his 20% share in favour of plaintiff No. 12. Ex. P7 is a release deed dated 26-03-2007 executed by the 3 daughters of Mohammed Ghouse who is purchaser No. 1 under the sale deed releasing 4.2% out of 22 OS.No.25171/2016 Judgment KABC0A0015732016 their 12% to Zulekha Bee who is purchaser No. 4 under the sale deed. Ex. P8 is the gift deed dated 31-07-2004 executed by Mohammed Khaleel who is purchaser No. 5 under the sale deed gifting 10% out of his 20% share to Mohammed Yusuf who is the husband of purchaser No. 4 - Zulekha Bee. Ex. P9- 11 are show cause notices issued by the BBMP to Mohammed Ghouse who is purchaser No. 1 under the sale deed calling upon him to show cause as to why the Suit Schedule Property should not be attached for non-payment of tax and the purpose of producing the same is to show that revenue records are standing in the name of purchaser No. 1 - Mohammed Ghouse. Ex. P12 is the judgment and decree in OS 8161 of 2009 dated 17-07-2010 filed by defendant No. 1 herein against tenant of shop of Suit Schedule Property, which suit has been decreed and the said tenant has been directed to vacate and hand over the possession to defendant No. 1. Ex. P13-16 are the various powers of attorney executed by various plaintiffs authorizing certain other plaintiffs to file 23 OS.No.25171/2016 Judgment KABC0A0015732016 the present suit. Ex. P17 is the Judgment and decree in OS 3804 of 2011 dated 18-09-2017 which was a suit for bare injunction filed by the legal heirs of Hafeeza Bee against defendant No. 1 and 2 for bare injunction which has been dismissed on the ground that it is for the said parties to seek substantive relief of partition, which has resulted in filing of the present suit. Ex. P18 which is marked by confronting to DW1 is the Judgment and decree in OS 4730 of 2002 dated 05-01-2006 which was the earlier ejectment suit filed by defendant No. 1 which was dismissed.
15. On behalf of the defendants, as noted supra, defendant No. 1 has examined himself as DW1 and got marked Ex. D1 to D7. Ex. D1 which is marked by confronting to PW1 is release deed dated 11-07-2019 executed by husband and adopted son of plaintiff No. 20 herein gifting 1.4% of their share in the suit schedule property to defendant No. 1. Ex. D2 is the Confirmation of Hiba dated 06-11-1992 said to be executed by Hafeeza Bee who is purchaser No. 2 gifting her 24 OS.No.25171/2016 Judgment KABC0A0015732016 share in the property namely 648 square feet in favour of defendant No. 1. Ex. D3 is the Judgment and decree in OS 8161 of 2009 which is already marked as Ex. P12. Ex. D4 is the Judgment and decree in OS 3804 of 2011 which is already marked as Ex. P17. Ex. D5 is the Judgment and decree in OS 122 of 2000 dated 26-10-2011 which is suit for partition in respect of Ramanagar properties. Ex. D6 is the order sheet in PCR 184 of 2011 accepting the 'B' report filed by the IO in respect of private complaint instituted by Plaintiff No. 12 herein against defendant No. 1 alleging that the Hiba at Ex. D2 herein is a concocted and fabricated document. Ex. D7 is a gift deed dated 16-02-2016 executed by defendant No. 1 gifting the portion of Suit Schedule Property gifted to him under Ex. D2 Hiba which measures 648 square feet in favour of his wife and children.
16. Having considered the oral and documentary evidence on record, at the outset, it is to be noted that there is no dispute between the parties that suit schedule property was 25 OS.No.25171/2016 Judgment KABC0A0015732016 originally purchased by 5 purchasers under sale deed dated 17-3-1960. This is the specific plaint averments in support whereof Ex. P1 is marked which is the original sale deed and this fact is not disputed in the written statement of defendant No. 1. Perusal of Ex. P1 discloses that under the said sale deed dated 17-3-1960, 5 purchasers namely Mohammad Ghouse, Hafeeza Bee, Abdul Jabbar, Zulekha Bee and Mohammad Khaleel have purchased the suit schedule property. It is crucial to note that both in Ex. P1 which is the sale deed under which the property is purchased and also in Ex. P2 which is the subsequent mortgage deed executed by the said 5 purchasers, the measurement of the property is not available but the property is only described as Property Bearing No. 134-136 New No. 29-31 Dispensary Road. However, there is no dispute between the parties as to the measurement of the suit schedule property because the said measurement is forthcoming from documents at Ex. P3 onwards and the same measurements are also mentioned in 26 OS.No.25171/2016 Judgment KABC0A0015732016 the Gift Deed at Ex. D1 executed by husband and adopted son of Plaintiff No. 20, gifting 1.4% of their share in the suit schedule property to Defendant No. 1. These measurements tally with the measurements of the suit schedule property stated in the Plaint Schedule. Therefore, since in the document of both the Plaintiffs as well as the contesting Defendant No. 1, the measurements are forthcoming which tallies with the measurements as stated in the suit schedule, it can be safely concluded that there is no dispute either with regard to the identity or measurement of the suit schedule property between the parties and further the parties all admit that the said suit schedule property was originally purchased by 5 purchasers under sale deed dated 17-3-1960 at Ex. P1.
17. Under the said sale deed dated 17-3-1960 at Ex.P 1, the respective shares of the 5 joint purchasers is not specifically stated. Therefore, Section 45 of the Transfer of Property Act comes into play which lays down that where immovable property is transferred for consideration to two or 27 OS.No.25171/2016 Judgment KABC0A0015732016 more persons, they will be entitled to such shares therein proportionate to their respective share in the fund from which the Property was purchased and in the absence of evidence as to interest in the fund to which they were respectively entitled, such persons shall be presumed to be equally interested in the property. Therefore, it follows that under the undisputed and admitted sale deed dated 17-3-1960, the 5 purchasers namely Mohammed Ghouse, Hafeeza Bee, Abdul Jabbar, Zulekha Bee and Mohd Khaleel acquired equal shares in the suit schedule property i.e. each of the 5 purchasers acquired 20% each in the suit schedule property.
18. It is crucial to note that according to the plaint averments, the plaintiff's No. 1 to 43 and Defendant No. 1 to 6 are the legal representatives of the purchaser No. 1 to 4 and the purchaser No. 5 is not impleaded in the suit since he is said to have gifted / released his share to the other parties. Further, it is to be noted that the relationship of the parties 28 OS.No.25171/2016 Judgment KABC0A0015732016 with the original purchasers as pleaded in the Plaint is not disputed in the written statement of defendant No. 1 who is the only contesting defendant.
19. However, before proceeding to consider what is the share of the various parties in the suit schedule property on the basis of their relationship with the original purchasers, it is necessary to consider the principle defence taken by defendant No. 1 that, in a oral partition between the purchasers Hafeeza Bee was allotted property bearing No. 29 and portion of property bearing No. 30 measuring 648 square feet consisting of construction on ground and first floor which in turn she has gifted to defendant No. 1 under the confirmation of Hiba dated 6-1-1992.
20. This contention of defendant No. 1 requires to be rejected for the following short reasons. Firstly, for said purchaser No. 2 Hafeeza Bee to be entitled to gift specific portion measuring 648 square feet in favour of defendant No. 29 OS.No.25171/2016 Judgment KABC0A0015732016 1, it was first necessary to prove that Hafeeza Bee was allotted 648 square feet of suit schedule property towards her 20% share in the suit schedule property. In other words, it was necessary for defendant No. 1 to first prove oral partition between the five original purchasers and allotment of 648 square feet of suit schedule property towards share of Hafeeza Bee in such oral partition. It is this oral partition which defendant No. 1 has hopelessly failed to prove because he has not produced a single scrap of document in support of the same. Be it noted that, as per the show-cause notice issued by BBMP at Ex. B 9-11, the revenue records of suit schedule property is still standing in the name of purchaser No. 1, Mohammed Ghouse. In his cross-examination, defendant No. 1, (DW1), says at the very beginning of his cross-examination dated 30-1-2023 that the oral partition took place 15 to 20 years back but he does not remember the date. Therefore, even the date of alleged oral partition is not brought on record. Further, since revenue records in respect of entire suit 30 OS.No.25171/2016 Judgment KABC0A0015732016 schedule property continues to stand in the name of purchaser No. 1, Mohammed Ghouse, it follows that the revenue records are not changed on the basis of the alleged partition. Most importantly, nowhere has defendant No. 1 pleaded what was the share allotted to the remaining four original purchasers. If really there was oral partition between the five original purchasers as contended by defendant No. 1, then defendant No. 1 should have been able to state what was the share allotted to the other four purchasers under the said oral partition. However, nowhere the defendant No. 1 has brought on record what was the share given to the other four joint purchasers and only states what was the share given to his mother - Hafeeza Bee. This is another reason for disbelieving the case set up by defendant No. 1 about the alleged oral partition between the five purchasers of the sale deed dated 17-03-1960.
21. Once this conclusion is reached that defendant No. 1 has failed to prove the oral partition and allotment of 648 31 OS.No.25171/2016 Judgment KABC0A0015732016 square feet in the said partition to the share of Hafeeza Bee, it follows that even accepting the confirmation of Hiba dated 6- 11-1992 at Ex. D-2 at face value, it follows that Hafeeza Bee had no right to gift that specific portion of 648 square feet in favour of defendant No. 1 because it is not proved that the said specific portion of suit schedule property was allotted to her in the oral partition. In the absence of proof of the oral partition, the alleged gift by Hafeeza Bee of said specific portion is invalid. Apart from this, defendant No. 1 has also failed to prove due execution of Hiba at Ex. D-2 by his mother Hafeeza Bee in his favour for the following reasons. Firstly, it is to be noted that defendant No. 1 has not produced the original confirmation of Hiba. At paragraph 2 of his cross- examination dated 30-1-2023, he gives the explanation that original gift deed executed by his mother was stolen when he was travelling. However, no FIR or any other paper publication is produced to show the loss of the original confirmation of Hiba. Therefore, there is no proper 32 OS.No.25171/2016 Judgment KABC0A0015732016 explanation for non-production of the original Hiba. Secondly, the defendant No. 1 has not examined the witnesses to the said Hiba to prove due execution of the same by his mother in his favour. Thirdly, it is to be noted that in the cross- examination of defendant No. 1, (D-W-1), at paragraph 6, the Judgment and decree in OS 4730 of 2002 is confronted to him and on his admitting the same, it is marked as Ex. P-18. Paragraph 7 of Ex. P-18 Judgment discloses that it was a suit for ejectment filed by defendant No. 1 against the tenant of suit-schedule property. By the said Judgment, the suit for ejectment has been dismissed on the ground that the defendant No. 1 herein, who was the plaintiff in the said suit, has failed to prove that he is the lawful owner of the property. At paragraph 12 of the said Judgment, the court has observed that the defendant No. 1 herein, who was the plaintiff in the said suit, has admitted that his mother was the owner of the property and such being the case, all the legal heirs are successors of deceased mother who have not been made 33 OS.No.25171/2016 Judgment KABC0A0015732016 parties in the suit and naturally inference must be drawn that all those successors to the deceased lady as per their personal law become successors to the right, title and interest of the deceased. It is further observed in the said Judgment that, it is not the case of the plaintiff (defendant No. 1 herein) that he alone is the successor to the estate of his deceased mother. Therefore, on reading Ex.P 18 Judgment, it is clear that in the said suit in OS 4730 of 2002, the defendant No. 1 herein, who was the plaintiff of the said suit, did not plead and produce the alleged Hiba by his mother in his favour and that is the reason why the court has observed that all the successors of deceased mother are also entitled to the property. Therefore it is clear that, as late as in the year 2002 when the suit was filed, the confirmation of Hiba which is said to be of the year 1992 was not brought to light. Therefore nearly 10 years after the alleged confirmation of Hiba of the year 1992, it was kept in the dark in the earlier suit, which throws doubt about the genuineness of the said document. 34 OS.No.25171/2016
Judgment KABC0A0015732016 For the above reasons, I hold that defendant No. 1 has also failed to prove the execution of confirmation of Hiba at Ex. D2 by his mother in his favour. For the above reasons, I hold that defendant No. 1 has hopelessly failed to prove his defence, firstly, regarding oral partition among the five purchasers of the sale deed dated 17-03-1960 and allotment of 648 square feet of suit schedule property as the share of his mother Hafeeza Bee and also failed to prove the gift of said 648 square feet by his mother Hafeeza Bee in his favour. Consequently I hold that the defence of defendant No. 1 that he is exclusively entitled to 648 square feet out of the suit schedule property cannot be accepted.
22. Before parting with this point, one contention raised by Learned Counsel for defendant No. 1 requires to be addressed. It was argued that as per the Judgment in OS 8161 of 2009 at Ex. P12, the suit filed by defendant No. 1 herein for ejectment of the tenant of said 648 square feet of suit schedule property was decreed and by Judgment in OS 35 OS.No.25171/2016 Judgment KABC0A0015732016 3804 of 2011, the suit for bare injunction filed by other legal heirs of Hafeeza Bee against Defendant No. 1 and 2 herein has been dismissed. Therefore, it was argued that on the basis of the above Judgments, firstly by decreeing the suit for ejectment filed by defendant No. 1 in OS 8161 of 2009, the claim of defendant No. 1 as exclusive owner of 648 square feet has been accepted and secondly by dismissing the suit for bare injunction in OS 3804 of 2011, it was argued that the claim of the plaintiffs for right over suit schedule property has been declined. Therefore, it was argued that as a result of the above Judgments which are marked as Ex. P12 and 17, the present suit is not maintainable. This contention cannot be accepted for the following reasons. In so far as the Judgment in OS 8161 of 2009 whereby the suit for ejectment filed by defendant No. 1 against the tenant of 648 square feet of suit schedule property has been decreed is concerned, it is to be noted that plaintiffs herein were not parties in the said suit and hence the decision in the said suit is not binding on the 36 OS.No.25171/2016 Judgment KABC0A0015732016 plaintiffs. Further, the said decree of ejectment is an ex parte Judgment which was obtained by suppressing the dismissal of earlier suit for ejectment filed by the same plaintiff, (defendant No. 1 herein) in OS 4730 of 2002. Therefore, merely decreeing the said suit for ejectment against the tenant will not amount to recognizing exclusive right of the defendant No. 1 herein to 648 square feet in suit schedule property. In so far as dismissal of OS 3804 of 2011 filed by some of the plaintiffs herein against defendant No. 1 and 2 for bare injunction is concerned, the said Judgment in fact goes against the defendant No. 1 herein and is totally in favour of the plaintiffs herein. The said Judgment is marked as Ex. P17 and at page 6 of the said Judgment, the issues of the said suit are extracted. Issue No. 4 and 5 deal with the contention of defendant No. 1 herein about oral partition and allotment of specific share to his mother Hafeeza Bee and execution of gift deed by Hafeeza Bee in favour of defendant No. 1. At page 8 of the said Judgment, both issue No. 4 and 5 have been 37 OS.No.25171/2016 Judgment KABC0A0015732016 answered in the negative, which means that in the said suit, the defence taken by defendant No. 1 herein, which is the same defence taken in the present suit regarding oral partition and allotment of 648 sqft to his mother Hafeeza Bee and gifting of said 648 sqft by his mother Hafeeza Bee in favour of defendant No. 1, has been disbelieved. However, in spite of answering the said issues against defendant No. 1, the court in the said suit dismissed the suit for the reasons stated in Paragraph 20 that all the legal representatives of joint owners under sale deed dated 17-3-1960 are not made parties. And also at Paragraph 21, the court has observed that since substantive relief of partition is not sought for, suit for bare injunction is not maintainable and only on these technical grounds, the suit for bare injunction was dismissed. Therefore, it is clear that, in the said suit, the defence raised by defendant No. 1 was disbelieved and the only ground for dismissal of the suit was because it was suit for bare injunction without seeking the substantive relief of partition. 38 OS.No.25171/2016
Judgment KABC0A0015732016 Therefore, by implication, in the said suit, liberty was reserved to the plaintiffs to implead all the legal heirs of all the joint owners under sale deed dated 17-3-1960 and seek the substantive relief of partition, which is precisely what has been done in the present suit. Therefore, the said Judgment, far from helping the defendant No. 1, goes against the case of defendant No. 1, since in the earlier suit, the defence raised by the defendant No. 1 has been substantively rejected. For all the above reasons, I hold that the suit of the plaintiffs is maintainable for partition and separate possession and therefore, it is for this court to proceed to quantify the shares of the various parties of the present suit according to their relationship with the five original purchasers under the sale deed at Ex. P1.
23. Before proceeding further, it is to be noted that in the cross-examination of Pw1, a contention has been raised that all the plaintiffs have not given power of attorney in favour of Pw1. It is to be noted that Ex. P13-16 are the various powers 39 OS.No.25171/2016 Judgment KABC0A0015732016 of attorney executed by various plaintiffs in favour of signatories of the plaint, in other words, the plaint is signed by plaintiff No. 1 for herself and on behalf of plaintiff No. 2 to 10, plaint is signed by plaintiff No. 11 for himself and also on behalf of plaintiff No. 12 to 30, the plaint is signed by plaintiff No. 31 for herself and also on behalf of plaintiff No. 32 and 33 and finally the plaint is signed by plaintiff No. 37 for himself and also for plaintiff No. 34 to 36 and 38 to 43 and the respective powers of attorney which are all executed prior to the institution of the suit are produced and marked as Ex. P13-16. Therefore the plaint is duly signed by the respective powers of attorneys of all the plaintiffs. No doubt it is only plaintiff No. 11 who has examined himself in support of the case. However, when the plaintiffs have come to the court with common case, it is not necessary that each of the plaintiffs should step into the witness box and one plaintiff can depose on behalf of all the other plaintiffs and therefore there is no defect in the prosecution of the suit by the 40 OS.No.25171/2016 Judgment KABC0A0015732016 plaintiffs. Another contention raised in the cross-examination of Pw 1 is that certain other properties have been sold away by the plaintiffs behind the back of Defiant No. 1 and another suit for partition has been filed in Ramanagar Court and the said judgment of Ramanagar Court is produced and marked as Ex. D5. However, these contentions need not detain the court because this is a suit only for partition of specific suit schedule property which has been purchased by 5 specific purchasers under sale deed dated 17-3-1960. Therefore, this is not a suit for general partition of properties acquired by ancestors and therefore the concept of partial partition is inapplicable and therefore the fact that there are other properties in Ramanagar belonging to the ancestors of the parties for which separate suit has been filed or that some other property belonging to the ancestors has been sold away is inconsequential in so far as the present suit is concerned because this is a suit only for partition of one specific 41 OS.No.25171/2016 Judgment KABC0A0015732016 property which has been purchased under sale deed dated 17-3-1960 by the legal heirs of the said purchasers.
24. Before parting, this court may take note of gift deed by defendant no. 1 in favour of his wife and children, which is marked as Ex. D7. The said gift deed is inconsequential because when defendant no. 1 has failed to prove that he acquired specific share of 648 sq. ft. in Suit Schedule Property under the Hiba at Ex.D 2, for the reasons noted above, it follows that he could not have gifted the same in favour of his wife and children. Moreover, it is a lis pendens document since it is executed few days after the filing of the present suit, in that the present suit is filed on 11-02-2016, whereas the said document is executed on 16-02-2016 and therefore being a lis pendens transaction, there was no need for the plaintiffs to seek any declaration with respect to the same.
42 OS.No.25171/2016
Judgment KABC0A0015732016
25. Therefore, let me now proceed to quantify the shares of the parties on the basis of their relationship with the original 5 purchasers.
26. As already noted, each of the 5 original purchasers was entitled to 20% share in the suit schedule property.
27. In so far as the first purchaser, Mohammed Ghouse, is concerned, as per the plaint averments which are not disputed in the written statement of Defendant No. 1, said Mohammed Ghouse had three daughters, namely Plaintiff No. 1, Plaintiff No. 2, pre-deceased Maqbool Jan and one son, namely Mohammad Aslam. Under Mohammedan law, the son is entitled to twice the share of the daughter. Therefore, out of the 20% of Mohammed Ghouse, his son Mohammad Aslam is entitled to 8% whereas his 3 daughters are entitled to 4% each. Therefore, out of the 20% of Mohammad Ghouse, his son Mohammad Aslam, whose branch is represented in the present suit by Defendant No. 3 to 6, is entitled to 8%. His 43 OS.No.25171/2016 Judgment KABC0A0015732016 three daughters are entitled to 4% each. That is, the three daughters are entitled to 12%. However, the three daughters of Mohammad Ghouse, as per the release date at Ex. P-7, have released 4.2% out of the 12% in favour of the purchaser No. 4, Zulekha Bee. Therefore, in so far as the branch of first purchaser Mohammad Ghouse is concerned, Defendant No. 3 to 6, who represent the branch of son of Mohammad Ghouse, are together entitled to 8% share in the suit schedule property and his three daughters are together entitled to 12 minus 4.2 equals 7.8%. That is, Plaintiff No. 1 and 2 are each entitled to 2.6% share and Plaintiff No. 3 to 10, who represent the branch of third daughter Maqbool Jaan, are entitled to 2.6% together.
28. In so far as the second purchaser Hafeeza Bee. is concerned, she has five daughters and six sons. As already noted, supra, under Mohammadan law, son is entitled to double the share as that of the daughter. Therefore, the share of the branches of the daughters, is 1 / 17th and the share of 44 OS.No.25171/2016 Judgment KABC0A0015732016 the sons is 2 / 17th in 20%. Therefore, the sons of Hafeeza Bee, namely Plaintiff No. 11, 12, Defendant No. 1 and 2 and the branches of the predecessor sons, namely Plaintiff No. 13 to 16 and Plaintiff No. 17 to 19 are each entitled to 2 / 17 share in 20%, namely 2.35%. And the share of the daughters, namely Plaintiff No. 20 to 23 and the branch of the predecessor daughter namely Plaintiff No. 24 to 30 will be 1.17%. In addition, Plaintiff No. 11 gets 5% share which is released in his favour by the purchaser No. 5 as per the release deed at Ex. P. P4, Plaintiff No. 12 gets additional 2.5% share released in his favour by the same purchaser No. 5 as per the release deed at Ex. P6. In addition, the daughters of Hafeeza Bee namely Plaintiff No. 20 to 23 and the branch of predecessor daughter, namely Plaintiff No. 24 to 30 also get 1.4% each, released in their favour by Tahira Begum as per Ex. P5. It is to be noted that under Ex. P5, Tahira Begum has leased 7% to the five daughters of Hafeeza Bee, which works out to 1.4% to each of the daughters. 45 OS.No.25171/2016
Judgment KABC0A0015732016
29. In so far as the branch of Hafeeza Bee is concerned, another point to be noted is that Plaintiff No. 20 has died during the pendency of the suit and after her death, her husband and adopted son have together gifted 1.4% which she obtained under aforestated release deed from Tahira Begum in favour of Defendant No. 1 as per the release deed dated 11-07-2019 at Ex. D1. In this regard, it is the contention of the plaintiffs in the "Memo for Revision and Recalculation of Shares" dated 14-03-2023 [filed into court on 15-03-2023] that since Plaintiff No. 20, Maqbool Jan died issue-less, her husband only inherits ½ share and remaining ½ share goes to the other sharers, namely the siblings, with the brothers as usual taking twice the share of the sisters. The share of Plaintiff No. 20 is 1.17% as daughter of Hafeeza Bee and 1.4% which she acquired under the release deed by Tahira Begum at Ex. D5 i.e. the total share of Plaintiff No. 20 was 2.57%. Out of the same half-share namely 1.285% is inherited by her husband namely Plaintiff No. 20 (a) who is 46 OS.No.25171/2016 Judgment KABC0A0015732016 brought on record in the present suit and he has released the same to Defendant No. 1 under the release deed at Ex. D1. (Note : Although under the said release deed what is released is 1.4%, it is trite that a person cannot transfer larger share than what he has and therefore it should be construed as release of 1.285% to which Plaintiff No. 20 (a) was entitled to, in favour of Defendant No. 1). At this stage a short digression is necessary to note that on the death of Plaintiff No. 20 initially LR application was filed to bring Plaintiff No. 20 (a) and (b) on record on the ground that they are the husband and adopted son of deceased Plaintiff No. 20. To said IA, objection came to be filed by the Defendant No. 1 dated 21- 01-2019 contending that no children have been born from the wedlock of Plaintiff No. 20 and Plaintiff No. 20 (a). A detailed order came to be passed on the said application by this Court dated 31-05-2019 allowing the application only insofar as bringing on record the husband of deceased Plaintiff No. 20 and rejected the application for bringing on record the alleged 47 OS.No.25171/2016 Judgment KABC0A0015732016 adopted son of Plaintiff No. 20. From the averments of the affidavit in support of the said LR application and the objections filed thereto by the contesting Defendant No. 1, it is clear that, even according to the plaintiffs, the second proposed LR was the adopted son of Plaintiff No. 20, whereas according to Defendant No. 1, Plaintiff No. 20 and her husband did not have any issues at all. It is to be noted that, under Mohammedan law, there is no concept of adoption. In this regard, reference may be made to law laid down in Dagadabai v. Abbas, (2017) 13 SCC 705 : (2017) 5 SCC (Civ) 718 : 2017 SCC OnLine SC 431 at page 709, as follows;
20. Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land. It is a settled principle of Mohammadan Law that Mohammadan Law does not recognise adoption (see Section 347 of Mulla Principles of Mahomedan Law, 20th Edn., p. 430). (Emphasis Supplied)
30. Therefore the question of proposed LR No. 2 being considered as adopted son does not arise. Therefore it follows 48 OS.No.25171/2016 Judgment KABC0A0015732016 that Plaintiff No. 20 and her husband did not have any issues as contended at the earliest point of time by Defendant No. 1 himself. Therefore the contention subsequently raised by Defendant No. 1 in the objections filed to the "memo for revision and recalculation of shares" contending that Plaintiff No. 20 in fact had a son who has joined his father in executing the release deed at Ex. D1 is nothing but blowing hot and cold and cannot be accepted. Therefore I accept the contention taken by Defendant No. 1 himself at the earliest point of time in the objections to the LR application that Plaintiff No. 20 had no issues. Therefore I hold that, under Mohammedan law, the husband of Plaintiff No. 20 was only entitled to half share and the remaining half share of Plaintiff No. 20 would devolve upon her surviving siblings, with the brothers taking twice that of the share of the sisters (Note :
The branch of pre-deceased siblings of Plaintiff No. 20 do not take any share in the estate of Plaintiff No. 20 since the Principle of Representation is inapplicable in Mohamedan Law 49 OS.No.25171/2016 Judgment KABC0A0015732016 as laid down in Mulla's Principles of Mohamedan Law by former Chief Justice of India Sri. M. Hidayatullah, 19th Edition at section 53 which lays down as follows;
53. Principle of representation. According to the Sunni Law, the expectant right of an heir-
apparent cannot pass by succession to his heir, nor can it pass by bequest to a legatee under his Will. According to the Shia law, it does pass by succession in the cases mentioned in sec. 93 below. A, a Sunni Mahomedan, has two sons, B and C, B dies in the lifetime of A, leaving a son D. A then dies leaving C, his son, and D, his grandson. The whole of A's property will pass to C to the entire exclusion of D. It is not open to D to contend that he is entitled to B's share as representing B. Moola Cassim v. Moola Ahmed (1905) 33 Cal. 173, 32 I.A.
177. In the case cited above their Lordships of the Privy Council observed: "It is a well-known principle of Mahomedan law that if any of the children of a man die before the opening of the succession to his estate, leaving children behind, these grand- children are entirely excluded from the inheritance by their uncles and their aunts." The son of a predeceased son is therefore not an heir. If in the above case, B bequeathed any portion of his expectant share in 'A's property to X, the latter would take nothing under the will. "A mere possibility such as the expectant right of an heir- apparent, is not regarded as present or vested interest, and cannot pass by succession, bequest or transfer so long as the right has not actually come into existence by the death of the present owner.") 50 OS.No.25171/2016 Judgment KABC0A0015732016
31. Therefore as already noted, I hold that out of the 2.57% share of Plaintiff No. 20, her husband inherited 1.285% only, therefore the husband and adopted son of Plaintiff No. 20 could not have released 1.4% in favour of Defendant No. 1 but they could release only 1.285% in favour of Defendant No. 1 under Ex. D1. The remaining 1.285% devolves upon the surviving siblings, namely the brothers - Plaintiff No. 11 and 12 and the surviving sisters namely Plaintiff No. 21 to 23 and the brothers take 0.233% each and the sisters take 0.116% each.
32. So, amongst the legal heirs of Hafeeza Bee, the share of Plaintiff No. 11 is 2.35% as legal heir of Hafeeza Bee, 5% as releasee from Muhammad Khaleel under the release deed at Ex. P 4 and 0.233% as legal heir of his sister - Plaintiff No. 20 i.e. the total share of Plaintiff No. 11 is 7.583%. The share of Plaintiff No. 12 is 2.35% as legal heir of his mother Hafeeza Bee, 2.5% as releasee from Muhammad Khaleel under Ex. P6 release deed and 0.233% as legal heir of Plaintiff No. 20 i.e. 51 OS.No.25171/2016 Judgment KABC0A0015732016 the total share of Plaintiff No. 12 is 5.083%. The share of Plaintiff No. 13 to 16 is 2.35% which Abdul Azeez inherited as the son of Hafeeza Bee. Similarly the share of Plaintiff No. 17 to 19 is 2.35% which K. M. Sharif inherited as the son of Hafeeza Bee. Plaintiff No. 20 is dead and her husband has already released his share in favour of Defendant No. 1 and therefore no share needs to be allotted to the branch of Plaintiff No. 20. The share of Plaintiff No. 21 is 1.17% which she inherited as daughter of Hafeeza Bee, 1.4% which she acquired as releasee from Tahira Begum under Ex. P5 and 0.116% which she acquired as legal heir of her sister - Plaintiff No. 20 i.e. the total share of Plaintiff No. 21 is 2.686%. Similarly the share of Plaintiff No. 22 and 23 is also 2.686% for the reasons already noted supra in respect of Plaintiff No. 21 which is equally applicable to Plaintiff No. 22 and 23. The share of Plaintiff No. 24 to 30 who represent the branch of Ahamas Bhanu is 1.17% which said Ahamas Bhanu acquired as the legal heir of Hafeeza Bee and 1.4% 52 OS.No.25171/2016 Judgment KABC0A0015732016 which Ahamas Bhanu acquired as releasee under the release deed by Tahira Begum at Ex. P5 i.e. the total share of Plaintiff No. 24 to 30 is 2.57%.
33. Now turning to the third purchaser namely Abdul Jabbar is concerned as per the recitals of gift deeds at Ex. P3 and release deed at Ex. P5, the third purchaser Abdul Jabbar gifted his entire 20% share in the suit-schedule property in favour of his wife - Tahira Begum and out of the said 20% Tahira Begum gifted 13% to her daughters - Plaintiff No. 31 to 33 under Ex. P3 gift deed and released 7% in favour of children of Hafeeza Bee as per release deed at Ex. P5. Therefore the share of Plaintiff No. 31 to 33 is 13%.
34. In so far as Plaintiff No. 34 to 43 are concerned, they are the legal heirs of fourth purchaser Zulekha Bee and her husband Mohammad Yusuf. Therefore firstly they are entitled to 20% of purchaser No. 4 - Zulekha Bee. Apart from this, as per the release deed at Ex. P7, 4.2% share in the suit- 53 OS.No.25171/2016
Judgment KABC0A0015732016 schedule property was released in favour of Zulekha Bee and hence they are also entitled to said 4.2%. In addition, under the gift deed at Ex. P8, 10% was gifted by purchaser No. 5 Mohammad Khaleel in favour of husband of Zulekha Bee & therefore totally Plaintiff No. 34 to 43 are entitled to 34.2% share in suit-schedule property.
35. In so far as Defendant No. 3 to 6 are concerned, they represent the branch of Mohammad Aslam who is the only son of first purchaser Mohammed Ghouse. As already noted, since Mohammed Ghouse had three daughters and one son, the share of each daughter is already determined above as 4% and therefore the share of the son would be 8%. Therefore, Defendant No. 3 to 6 are entitled to 8% share in suit schedule property.
36. In so far as Defendant No. 1 is concerned, he gets 2.35% as legal heir of Hafeeza Bee. In addition, he gets 1.285% which is the share of Plaintiff No. 20 (a) which is released in 54 OS.No.25171/2016 Judgment KABC0A0015732016 his favour as per Ex. D1 and in addition he gets 0.233% as legal heir of his sister - Plaintiff No. 20 and therefore the total share of Defendant No. 1 is 3.868% in suit schedule property.
37. In so far as Defendant No. 2 is concerned, he gets 2.35% as legal heir of his mother Hafeeza Bee and gets 0.233% as legal heir of his sister - Plaintiff No. 20 and therefore the total share of Defendant No. 2 in suit schedule property is 2.583%.
38. In so far as the 5th purchaser Mohammed Khaleel is concerned, he has released 5% to Plaintiff No. 11 under Ex. P4 release deed. He has released 2.5% to Plaintiff No. 12 under Ex. P6 release deed. He has gifted 10% to Mohammed Yusuf under Ex. P8 gift deed. Therefore this explains for 17.5% out of his 20% share. According to the plaint averments, Mohammed Khaleel also gifted or released 2.5% to Plaintiff No. 17 to 19 but said release deed or gift deed is not 55 OS.No.25171/2016 Judgment KABC0A0015732016 on record. Therefore, the above quantification of shares answers for 97.5% of suit schedule property. The remaining 2.5% either belongs to Mohammed Khaleel or if indeed there is a release deed or gift deed by Mohammed Khaleel of 2.5% share in favour of Plaintiff No. 17 to 19, then it belongs to Plaintiff No. 17 to 19. After full-fledged trial, I do not want to dismiss this suit only on the ground that the document in respect of release or gift of 2.5% by Mohammed Khaleel in favour of Plaintiff No. 17 to 19 is not produced in this suit and not impleaded the branch of 5 th purchaser - Mohammed Khaleel. Instead, the law is settled that a party who is entitled to share can be impleaded even at the stage of FDP proceedings. In this regard, reference may be made to the law laid down by the Hon. High Court of Karnataka in the case of S.K. Lakshminarasappa v. B. Rudraiah, 2011 SCC OnLine Kar 3545 : ILR 2012 Kar 4129 : (2012) 4 AIR Kant R 424 : (2013) 1 KCCR 672 at page 4191, as follows; 56 OS.No.25171/2016
Judgment KABC0A0015732016
62. In a suit for partition not only those who are entitled to a share in the joint family property but also those persons who are entitled to maintenance and also those persons for whose marriages provision has to be made from out of the funds of joint family property are necessary parties. A transferee of an item of property from the vendee who purchased it from a party to the suit is not directly a transferee and therefore there is no nexus between the transferee and the party to the suit from whom the property was purchased. Therefore, such transferee is not a necessary party to the suit. In a suit for partition of properties of a Joint Hindu Family, there is no legal bar even after a preliminary decree had been passed, in an appropriate circumstances to add a party under Order 1 Rule 10, in the final decree proceedings if the Court thinks that the addition of such party is necessary to adjudicate upon all questions effectively and completely. The proceedings in a partition suit do not become final unless the final decree is passed. It is only the final decree that brings about termination of suit. The Court can add a party in a partition suit even after a preliminary decree but before a final decree takes place. A suit for partition is finally disposed off only with the passing of a final decree. Impleading of additional parties subsequent to passing of a preliminary decree in a suit for partition is permissible, only if none of the questions already settled by the preliminary decree would not have to be re-opened by reason of such a joinder. Therefore, it is clear in order to decide the share to which each member of a family or a person claiming under such member of a joint family, the necessary parties are only the members of the joint family. Once all those members are made parties, the suit for partition cannot be dismissed on the ground of non-joinder of necessary parties. The purchasers from those members of the family or subsequent purchasers from the earlier purchasers are proper parties in a suit for partition. They could be, added even during final decree proceedings. For not adding them as parties, a suit for partition cannot be dismissed.
(Emphasis Supplied) 57 OS.No.25171/2016 Judgment KABC0A0015732016
39. In the light of the above law, there is no embargo for impleading a necessary sharer even in FDP proceedings provided his or her share is declared in the preliminary decree. Therefore, I hold that in FDP proceedings, if the registered release deed or gift deed by Mohammed Khaleel in favour of Plaintiff No. 17 to 19 is produced, then remaining 2.5% shall be allotted to Plaintiff No. 17 to 19 or in case such release deed or gift deed is not produced then the remaining 2.5% share shall be allotted in favour of Mohammed Khaleel (5th purchaser) or his legal heirs.
40. In view of the above detailed discussion, I proceed to quantify the shares of the various parties in the suit schedule property as follows;
i) The share of Plaintiff No. 1 & Plaintiff No. 2 is 2.6% each
ii) The share of Plaintiff No. 3 to 10 jointly is 2.6%.
iii) The share of Plaintiff No. 11 is 7.583% 58 OS.No.25171/2016 Judgment KABC0A0015732016
iv) The share of Plaintiff No. 12 is 5.083%.
v) The share of Plaintiff No. 13 to 16 together is 2.35%.
vi) The share of Plaintiff No. 17 to 19 together is 2.35%.
vii) No share is allotted to branch of Plaintiff No. 20 for reasons already discussed supra.
viii) The share of Plaintiff No. 21 to 23 is 2.686% each
ix) The share of Plaintiff No. 24 to 30 together is 2.57%.
x) The share of Plaintiff No. 31 to 33 is 13%
xi) The share of Plaintiff No. 34 to 43 is 34.2%.
xii) The share of Defendant No. 1 is 3.868%
xiii) The share of Defendant No. 2 is 2.583%.
xiv) The share of Defendant No. 3 to 6 is 8%.
xv) The remaining 2.5% share in the suit schedule property is allotted to the purchaser No. 5 namely Mohammed Khaleel or his branch or in case any registered document is produced showing release or gift of the same in favour of Plaintiff No. 17 to 19 in FDP proceedings, the 2.5% shall be allotted to Plaintiff No. 17 to 19.
41. Accordingly, I answer issue No. 1 to 3. 59 OS.No.25171/2016
Judgment KABC0A0015732016 Issue No. 4.
42. Having answered issue No. 1, to 3 as above, I hold that the parties are entitled to partition & separate possession of their respective shares as quantified supra. In so far as relief of enquiry into mesne profits is concerned, the law is settled that in suit for partition there is no question of grant of mesne profits and there can only be separate enquiry into accounts of the income and expenditure of suit schedule property from the date of institution of this suit (vide Parvathi v. Venkatramana Prasad,: ILR 2003 KAR 2304). Accordingly, I answer issue No. 4 and proceed to pass the following :
:: ORDER ::
The suit of the plaintiffs is decreed, in part. It is held that the parties are entitled to partition and separate possession of their respective shares in the suit schedule property which is quantified as follows; 60 OS.No.25171/2016
Judgment KABC0A0015732016
i) The share of Plaintiff No. 1 & Plaintiff No. 2 is 2.6% each ii) The share of Plaintiff No. 3 to 10 jointly is 2.6%.
iii) The share of Plaintiff No. 11 is 7.583%
iv) The share of Plaintiff No. 12 is 5.083%. v) The share of Plaintiff No. 13 to 16
together is 2.35%.
vi) The share of Plaintiff No. 17 to 19 together is 2.35%.
vii) No share is allotted to branch of
Plaintiff No. 20 for reasons already
discussed supra.
viii) The share of Plaintiff No. 21 to 23 is 2.686% each.
ix) The share of Plaintiff No. 24 to 30 together is 2.57%.
x) The share of Plaintiff No. 31 to 33 is
13%
xi) The share of Plaintiff No. 34 to 43 is
34.2%.
xii) The share of Defendant No. 1 is
3.868%
61 OS.No.25171/2016
Judgment
KABC0A0015732016
xiii) The share of Defendant No. 2 is
2.583%.
xiv) The share of Defendant No. 3 to 6 is
8%.
xv) The remaining 2.5% share in the suit
schedule property is allotted to the
purchaser No. 5 namely Mohammed
Khaleel or his branch or in case any
registered document is produced
showing release or gift of the same in
favour of Plaintiff No. 17 to 19 in FDP
proceedings, the 2.5% shall be allotted to Plaintiff No. 17 to 19.
There shall be separate enquiry into accounts of the income and expenditure of suit schedule property from the date of this suit.
Considering the relationship between the parties, there shall be no order as to cost.
Office to draw decree accordingly.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 22nd day of May, 2023] (Sri. S. Sudindranath) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.
62 OS.No.25171/2016
Judgment KABC0A0015732016 :ANNEXURE:
WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 : Abdul Gaffar S/o Late Mr. K. Mohammed Mastan DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P1 Sale Deed dated 17/03/1960
Ex.P2 Deed of Mortgage dt: 07/08/1964 with
discharge
Ex.P3 Deed of gift dt: 18/03/2006
Ex.P4to7 4 Release Deeds
Ex.P8 Gift Deed dt: 31/07/2004
Ex.P9to11 3 BBMP Tax Notices
Ex.P12 Certified copy of Judgement and Decree in
OS.No.8161/2009
Ex.P13to16 4 Power of Attorney
Ex.P17 Certified copy of Judgement and Decree in
OS.No.3804/2011
Ex.P18 Certified copy of Judgement and Decree in
OS.No.4730/2002
WITNESSES EXAMINED FOR DEFENDANTS:
D.W.1 : Abdul Bari S/o Late K.M. Mastan
DOCUMENTS MARKED FOR DEFENDANTS:
Ex.D1 : Release Deed Dt: 11/07/2019
Ex.D2 : Certified copy of Confirmation of HIBA dt:
06/01/1992
63 OS.No.25171/2016
Judgment
KABC0A0015732016
Ex.D3 : Certified copy of Judgement and Decree in
OS.No.8161/2009
Ex.D4 : Certified copy of Judgement and Decree in
OS.No.3804/2011
Ex.D5 : Certified copy of Judgement and Decree in
OS.No.122/2000
Ex.D6 : Certified copy of Order Sheet in
PCR.No.184/2011
Ex.D7 : Original Registered Gift Deed dt: 16/02/2016
along with accompanying sketch
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.