Karnataka High Court
Shri Mohamed Khasim vs Bruhat Bangalore Mahanagara on 17 December, 2020
Author: R Devdas
Bench: R Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2020
BEFORE
THE HON' BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.35535 OF 2014(LB-BMP)
BETWEEN
SHRI MOHAMED KHASIM
S/O LATE MOHAMMED IMAM SAHEB
AGED ABOUT 66 YEARS,
R/AT OLD HOUSE NO.2185
(NEW NO.439 & 440)
SAMPIGE ROAD, MALLESWARAM,
BANGALORE-560003
...PETITIONER
(BY SRI R BHADRINATH, ADVOCATE)
AND
1. BRUHAT BANGALORE MAHANAGARA
PALIKE, CORPORATION OFFICES
N.R.SQUARE, J.C.ROAD,
BANGALORE-560002
REP BY ITS COMMISSIONER
2. ASSISTANT REVENUE OFFICER
BRUHAT BANGALORE MAHANAGARA
PALIKE, GANDHINAGAR SUB-DVISION
DR T.C.M ROYAN ROAD,
BANGALORE-560009
3. SMT.MAHABOOB BI @
SMT. KHATEJA BI
D/O MOHAMED IMAM
W/O SHRI MOHAMED GHOUSE PEER,
AGED ABOUT 63 YEARS,
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R/AT NO.10, 3RD CROSS, 4TH MAIN,
V.R.PURAM, PALACE GUTTAHALLI,
BANGALORE-560003
4. SMT.MALIKA BEGUM
D/O LATE FATHIMA BI AND
LATE SYED NOORUDDIN
AGED ABOUT 55 YEARS,
R/AT NO.50, 2ND CROSS
MILLERS ROAD, BENSON TOWN
BANGALORE-560046
5. SHRI SYED NASEERUDDIN
S/O LATE FATHIMA BI AND
LATE SYED NOORUDDIN
AGED ABOUT 53 YEARS,
R/AT NO.50, 2ND CROSS,
MILLERS ROAD, BENSON TOWN,
BANGALORE-560046
6. SMT.SHABANA BEGUM
D/O LATE FATHIMA BI AND
LATE SYED NOORUDDIN
AGED ABOUT 49 YEARS,
R/AT NO.50, 2ND CROSS,
MILLERS ROAD, BENSON TOWN,
BANGALORE-560046
7. SHRI SYED FAHEEMMUDDIN
S/O LATE FATHIMA BI AND
LATE SYED NOORUDDIN
AGED ABOUT 47 YEARS,
R/AT NO.50, 2ND CROSS,
MILLERS ROAD, BENSON TOWN,
BANGALORE-560046
8. SMT.NASEEMA BEGUM
D/O LATE FATHIMA BI AND
LATE SYED NOORUDDIN
AGED ABOUT 45 YEARS,
R/AT NO.50, 2ND CORSS,
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MILLERS ROAD, BENSON TOWN
BANGALORE-560046
9. SHRI SYED ZUBAIRUDDIN
S/O LATE FATHIMA BI AND
LATE SYED NOORDUDDIN
AGED ABOUT 43 YEARS,
R/AT NO.50, 2ND CROSS,
MILLERS ROAD, BENSON TOWN,
BANGALORE-560046
10 . SHRI SYED NAYEEMUDDIN
S/O LATE FATHIMA BI AND
LAE SYED NOORUDDIN
AGED ABOUT 39 YEARS,
R/AT NO.50, 2ND CROSS,
MILLERS ROAD, BENSON TOWN,
BANGALORE-560046
11 . SHRI SYED SALAUDDIN
S/O LATE FATHIMA BI AND
LATE SYED NOORUDDIN
AGED ABOUT 37 YEARS,
R/AT NO.50, 2ND CROSS,
MILLERS ROAD, BENSON TOWN
BANGALORE-560046
...RESPONDENTS
(BY SRI S H PRASHANTH, ADVOCATE FOR R1 & R2
SRI MOHAMMED NASIRUDDIN, ADVOCATE FOR R3 TO R11)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
ANNEXURE-A ENDORSEMENT DTD.5.3.2014 ISSUED BY THE R-2
TO THE PETITIONER SUBJECTING EFFECTING KHATHA IN THE
NAME OF THE PETITIONER AFTER REMOVING THE NAMES OF
FATHIMA @ KHURSHID BI, MAHABOOB BI @ KHATEJA BI AND
ETC.
THIS WRIT PETITION IS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
R. DEVDAS J., (ORAL):
The dispute in this writ petition is the entry of the names of the respondents No.3, 4 and 8 in the katha register maintained by the respondent-BBMP with respect to the properties bearing No.6, 6/1 & 6/2, property No.15 situated at 7th Cross, Malleswaram, Bengaluru.
2. It is the contention of the petitioner that one Mohd. Imam Saheb had acquired the property. It appears that besides owning several immoveable properties, Mohd. Imam Saheb also owned a cloth business for which he had obtained a licence in the name of Mohd. Dastagir, his son by his first wife. On 18.08.1958, Mohd. Dastagir executed an unregistered Release Deed in favour of Mohd. Imam Saheb, acknowledging the fact that all the properties, including the cloth business belonged to Mohd. Imam Saheb and that on receipt of a sum of Rs.5,000/- he had voluntarily released and relinquished all his rights and title over the properties belonging to Mohd. Imam Saheb, including the shop.
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3. After execution of the said Deed of Release, Mohd. Imam Saheb executed a Deed of Trust on 29.02.1960, in respect of his various properties both moveable and immoveable. The said deed has also been referred to as a Hiba. After the death of Mohd. Imam Saheb, his son Mohd. Dastagir filed a suit for partition and separate possession in O.S.No.273/1972 which was subsequently renumbered as Original Suit No.381/1980, before the City Civil Court at Bengaluru. The case putforth by the Mohd. Dastagir was that the Release Deed dated 18.08.1958 was not binding on him as the said deed had been executed by him only in deference to his father's wishes. It was contended by Mohd. Dastagir that the said document is a sham document and was not acted upon and in any event not valid under Mohammedan Law. It was also pleaded that the plaintiff had been informed by his father that if he execute the Release Deed, Hafiza Bi, second wife of Mohd. Imam Saheb, would also return certain properties which had been given to her and her children by Mohd. Imam Saheb. It was the case of the Mohd. Dastagir that after execution of the Release Deed Mohd. Imam Saheb re-possessed certain properties from Hafiza Bi by way of oral gift. In the written statement a contention was taken in view of the Release -6- Deed executed by Mohd.Dastagir that he was not entitled to any share in the suit properties apart from the two sites and house in Srirampuram. A contention was also taken by the defendants that the Mohd. Imam Saheb has created a trust by virtue of the Trust Deed dated 29.02.1960 and has appointed the petitioner herein as a Trustee for the purpose of performing various religious rites coupled with the condition that the properties were not to be alienated. It was contended that the Trust Deed was in effect a Wakfnama and late Mohd. Imam Saheb had created a Wakf-alal-Aulad and consequently the properties which formed the subject matter of the said document were not liable to be partitioned. The Trial Court came to a conclusion that under the Trust Deed dated 29.02.1960 a Wakf-alal-Aulad was created and consequently the properties set out in item No.1 to 3 in the schedule to the plaint were not partible and would not form the subject matter of any partition. However, the trial court held that remaining properties were partible, but the plaintiff i.e. Mohd. Dastagir was not entitled to any share therein.
4. Four appeals, being RFA Nos.562/87,823/87, 196/90 and 561/1987 were filed challenging the judgment passed by the trial court. The four appeals were taken up together by this -7- Court and were disposed of by a common judgment dated 05.10.1998. By the said judgment, the appeals preferred by Mohd. Dastagir was allowed. The appeals preferred by the defendants No.4 and 5 and defendant Nos.8 to 10 in respect of issue Nos.13 and 14 were allowed. Consequently, the appeal preferred by the petitioner herein was dismissed. This Court took a view that the Trust Deed has not been acted upon at all and on the contrary it was held that neither had any valid trust nor valid wakf created in the eye of law so as to deprive the plaintiff from getting a share in the property left by his father. This Court held that both the Release Deed and the Trust Deed were invalid and the heirs of Mohd. Imam Saheb were all entitled to their respective shares in the properties of late Mohd. Imam Saheb.
5. The matters went up to the Hon'ble Supreme Court. The Hon'ble Supreme Court, in its judgment dated 15.12.2006 in Civil Appeal Nos.3023-3024/2000 along with Civil Appeal Nos.3025-3026/2000 held that the Deed of Release loses much of its significance once it is established that the properties forming the subject matter of the document dated 29.02.1960 comprises a trust. The Supreme Court held that the document dated 29.02.1960 is not a Wakf-alal-Aulad and the properties -8- mentioned in the document cannot be treated as a dedication to a Wakf. It was held that the properties mentioned in the document vested in the trustees for the time being in the management and the same are not partible amongst the heirs of late Mohd. Imam Saheb.
6. However, the dispute in this writ petition is in respect of the properties which were gifted to Smt.Fathima.Bi, Khurshid Bi and Smt.Mahaboob Bi @Khateja Bi flowing under three separate registered gift deeds, all dated 5.12.1971.
7. As could be seen in the judgment of the Hon'ble Supreme Court, it was noticed that Mohd.Imam Saheb had reserved to himself the power to alienate the trust properties but one of the conditions stipulated in the deed that his two minor daughters were to be given immoveable properties worth Rs.8,000/-. Further direction was given by the executant that after his death his daughters Mymoona Bi and Fathima Bi, each to be given a share of the immoveable properties of the value of Rs.8,000/- on condition that they would not be entitled to the said immoveable properties if they had no male issues. A specific direction was given that the properties given to the -9- Fathima Bi or Ayesha Bi would also revert to the trust if they had no male issues. There is no dispute that the said three gift deeds were executed owning to the said conditions stipulated in the trust deed. However, it is the contention of the petitioner that the said gift deeds could not have been executed in view of the revocation of the Deed of Release dated 18.08.1958. The learned counsel for the private respondents submits that three suits in O.S.No.5811/2013, O.S.No.7714/2014 and 7716/2014 have been filed arraying the petitioner as a defendant and a decree for permanent injunction and declaration that the petitioner is not entitled to initiate HRC proceedings against the tenants of the property under the trust deed have been sought.
8. Having heard the learned counsels and having perused the petition papers, this Court finds that the authorities of the BBMP are required to register the katha in the name of a person who claims under a registered document. Admittedly the kathas in respect of the properties mentioned in the three gift deeds have been registered in the name of the persons who have acquired right, title and interest under the three gift deeds. The prayer in this writ petition is to set aside the endorsement issued by the respondent No.2 Assistant Revenue Officer, Gandhinagar -10- Sub-division, BBMP declining to remove the name of the persons in whose names the katha has been registered in the office of the BBMP and in their place to show the name of the petitioner.
9. Having regard to the judgment passed by the Hon'ble Supreme Court where the conditions stipulated in the Trust Deed dated 29.02.1960 to give immoveable properties worth Rs.8,000/- to his two minor daughters was stipulated, has also been considered. There is no declaration as of now by any competent court of law declaring the three gift deeds as void. The learned counsel for the petitioner would also admit that the petitioners has not challenged the three gift deeds. That being the case, no fault could be found in the action of the BBMP in registering the kathas with respect to the properties scheduled in the three gift deeds in favour of the persons to whom the gift has been made under the registered documents. Therefore, the impugned endorsement dated 05.03.2014 is in accordance with law.
10. Needless to observe that the observations made in this order shall not come in the way of the petitioner proceeding to challenge the three gift deeds or raise a contention in any of -11- the pending litigations. It is once again made clear that the observations made herein above shall not prejudice the case of the petitioner in any pending litigation or any other litigation that could be instituted by the petitioner.
Writ petition is accordingly dismissed.
Sd/-
JUDGE KLY/