Karnataka High Court
Sheharalli S/O Hamidali Musti @ Shaikh vs Hamidali S/O Mahammadsab Musti @ Shaikh on 4 October, 2023
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NC: 2023:KHC-K:7930
RSA No. 200406 of 2015
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200406 OF 2015(DEC/INJ)
BETWEEN:
SHEHARALLI S/O HAMIDALI MUSTI @ SHAIKH
AGE:69 YEARS, OCC:AGRICULTURE
R/O:HAVINAL, TQ:INDI
NOW AT SHOLAPUR
TQ:SHOLAPUR, MAHARASHTRA STATE.
...APPELLANT
(BY SRI. BASAVAKIRAN G.R. FOR
SRI. D P AMBEKAR, ADVOCATE)
AND:
Digitally signed
by
1. HAMIDALI S/O MAHAMMADSAB MUSTI @ SHAIKH
LUCYGRACE SINCE DECEASED BY LRS.
Location: HIGH
COURT OF
KARNATAKA
2. JANNAATBI W/O HAMIDALI MUSTI @ SHAIKH
AGE:84 YEARS, OCC:HOUSEHOLD
R/O:HAVINAL TQ:INDI
DIST:VIJAYAPUR
3. YASHIN S/O HAMIDALI MUSTI @ SHAIKH
AGE:47 YEARS,
OCC:AGRICULTURE
R/O:HAVINAL TQ:INDI
DIST:VIJAYAPUR
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NC: 2023:KHC-K:7930
RSA No. 200406 of 2015
4. MURTUZ S/O HAMIDALI MUSTI @ SHAIKH
AGE:44 YEARS,
OCC:AGRICULTURE
R/O:HAVINAL TQ:INDI
DIST:VIJAYAPUR
5. KHADIR S/O RAJAK SAYYAD
AGE:57 YEARS,
OCC:AGRICULTURE
R/O:CHADACHAN TQ:INDI
DIST:VIJAYAPUR.
...RESPONDENTS
(BY SRI. ANANTH S. JAHAGIRDAR, ADV. FOR R2 TO R5)
R2 to R4 ARE TREATED AS LRS OF R1 V/O DATED 06.06.2019)
THIS RSA IS FILED U/S 100 OF CPC, PRYING TO ALLOW
THIS APPEAL AND SET-ASIDE THE IMPUGNED JUDGEMENT
AND DECREE DATED 29.08.2015, PASSED BY THE I
ADDITIONAL DISTRICT JUDGE, VIJAYPUR, DISMISSING R.A.
NO.115/2011 AND DECREE DATED 22.06.2010, PASSED BY
THE SENIOR CIVIL JUDGE, INDI IN O.S.NO. 75/2011, AND
FURTHER DECREE THE SUIT OF THE PLAINTIFF AND DISMISS
THE COUNTER-CLAIM OF THE DEFENDANT NO.5.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-K:7930
RSA No. 200406 of 2015
JUDGMENT
The present regular second appeal by the plaintiff assailing the concurrent findings of the Courts below, wherein, the suit for declaration, partition and separate possession and consequential relief of permanent injunction was dismissed by the Courts below.
2. The parties herein are referred to as per their ranking before the trial Court for the sake of convenience.
3. This Court, while admitting the appeal, has framed the following substantial questions of law on 08.01.2020:
"(1) Whether the Courts below have failed to analyse the alleged family custom or village custom as pleaded by the plaintiff?
(2) If the existence of alleged family custom or village custom is established, then, whether such a family custom or village custom as pleaded by the plaintiff would prevail upon the general rules of partition under Hanafi School of Sunni Sect of Mohammedan Law?-4-
NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 (3) Whether the Courts below have failed to appreciate the law regarding the partition among Mohammedans?
(4) Whether the judgment and decree impugned in this appeal deserves any interference at the hands of this Court?"
4. Learned counsel, Sri Basavakiran G.R. for Sri D.P. Ambekar, learned counsel appearing for the appellant and Sri. Ananth S. Jahagirdar, learned counsel for respondent Nos.2 to 5 have been heard on the substantial questions of law framed by this Court.
5. Brief facts of the case are that:
Plaintiff and defendant Nos.3 and 4 are the children of defendant Nos.1 and 2. It is the contention of the plaintiff that the family owned land bearing Bl No.333/1A measuring 10 acres 6 guntas which was standing in the name of defendant No.2 and land bearing Bl No.333/1B measuring 3 acres 14 guntas was standing in the name of defendant No.1. It is the contention of the plaintiff that originally it was single Bl No.333/1 measuring 13 acres 20 -5- NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 guntas which was standing in the name of Mohammed Gudusab Musti and the said Mohammed Gudusab Musti effected partition between his four sons namely, Hamidali, Shoukatali, Rajatali and Ilahi and the said Mohammedsab has given the said land by way of partition in favour of Hamidali and Rajatali and the mutation entry was effected. It is the further contention that Ilahi and Shoukatali have been given lands in the partition and accordingly, mutation entries were effected. It is the contention of the plaintiff that in the family of the defendants and the plaintiff, there is a convention and that the partition was effected during the life time of the father, and the said convention has been followed since time immemorial as per the hereditary custom in the village as well as the specific convention in the family of plaintiff and defendants.
6. It is the contention of the plaintiff that the customary principle of partition to be effected during the lifetime of the father was continued since 40 to 50 years in the family of the plaintiff and the defendants. As per the -6- NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 customary and hereditary principle that was in force in the family, the plaintiff is entitled to the legitimate share during the lifetime of defendant Nos.1 and 2. However, defendant Nos.1 and 2 colluding with defendant Nos.3 and 4 have denied the legitimate share to the plaintiff and this being so, defendant Nos.1 and 2 have sold the suit lands in favour of defendant No.5 without any legal necessity.
The cause of action, according to the plaintiff, arose on 01.03.2006 when defendant No.5 obstructed the possession of the suit schedule property.
7. The suit was resisted by defendant Nos.1 and 5 by filing written statement and also by filing counter claim. It is the contention of the defendants that the parties are Mohammedans and they are governed by Sunni Law of inheritance and the suit is not maintainable during the lifetime of defendant Nos.1 and 2. It is the contention of the defendants that defendant Nos.1 and 2 have owned the suit schedule property and the plaintiff and defendant Nos.3 and 4 are no way concerned with the suit schedule -7- NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 property. It is submitted that the father of defendant No.1 by name Mohammedsab purchased the suit schedule property for a valuable consideration and since then he enjoyed the suit schedule property as the absolute owner and in the year 1976, the father of defendant No.1 has given the suit schedule lands to defendant No.1 and Rajabali and their names have been appeared in the revenue records. It is the contention of the defendants that the Mohammedan Law does not recognize any birth right or partition right in favour of the sons during the lifetime of the father and no such custom or convention has been prevailed or recognized by the ancestors or their sons and the plaintiff is not entitled for any partition in the suit schedule property. Defendant Nos.1 and 5 by counter claim prayed for a decree of injunction restraining the plaintiff or anybody claiming under him or causing any type of obstruction in cultivation of the suit lands. Defendant Nos.2 to 4 adopted the written statement and counter claim filed by defendant Nos.1 and 5. -8-
NC: 2023:KHC-K:7930 RSA No. 200406 of 2015
8. The plaintiff filed objections to the counter claim of defendant Nos.1 and 5.
9. The trial Court based on the pleadings framed the following:
"ISSUES
1. Whether the plaintiff proves that he is in possession and cultivation of suit land along with defendants no.1 to 4?
2. Whether the plaintiff proves that as per the convention and hereditary custom the properties were effecting the partition in his family as contended in par-4 of the plaint?
3. Whether the plaintiff proves that defendants no 1 and 2 sold the suit properties in favour of defendant no 5 illegally without any family necessity?
4. Whether the defendant proves that the he is in possession and enjoyment of suit land by virtue of alleged sale deed dated 16.1.2006?
5. Whether the plaintiff is entitled for relief of 1/5th share in the suit property as well as -9- NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 partition and separate possession of the same?
6. Whether the plaintiff is entitled for relief of permanent injunction?
7. Whether the defendant is entitled for relief of permanent injunction as prayed in counter claim?"
10. In order to substantiate his claim, plaintiff examined himself as PW.1 and four witnesses as PWs.2 and 5 and got marked documents at Exs.P-1 to 10. On the other hand, defendant No.1 examined himself as DW.1. Thereafter, as per the memo filed by defendants' counsel evidence of DW.1 was discarded on 4.3.2012. Defendant No.2 examined himself as DW.2, defendant No.5 as DW.3, defendant No.4 as DW.4 and got marked documents at Exs.D-1 to D-10.
11. The trial Court on the basis of pleadings, oral and documentary evidence held that:
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NC: 2023:KHC-K:7930 RSA No. 200406 of 2015
i) The plaintiff has failed to prove the possession and cultivation of suit land along with defendant Nos.1 and 2;
ii) The plaintiff has failed to prove that as per the convention and hereditary custom, the properties were partitioned by effecting partition in the family as contended in para 4 of the plaint;
iii) The plaintiff failed to prove that defendant Nos.1 and 2 have sold the suit property in favour of defendant No.5 illegally without any legal necessity;
iv) Defendant No.5 proved that he is in possession and enjoyment of the suit land by virtue of the sale deed dated 16.01.2006;
v) The plaintiff failed to prove that he is entitled for 1/5th share in the suit schedule property;
And by judgment and decree, the Trial Court dismissed the suit with cost and allowed the counter claim of defendant No.5 and restrained the plaintiff by way of
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NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 permanent injunction, permanently from obstructing the peaceful possession and enjoyment of suit lands.
12. Aggrieved by the dismissal of the suit, the plaintiff preferred the appeal before the first appellate court. No appeal was preferred against allowing of the counter claim of defendant No.5.
13. The first appellate court on re-appreciation of the entire oral and documentary evidence concurred with the judgment and decree of the trial court.
14. Aggrieved by the concurrent finding of facts in dismissing the suit of the plaintiff, the present appeal by the plaintiff.
15. Learned counsel for the appellant would contend that the Courts below have failed to appreciate the family customs that prevailed over the general rule of succession and would contend that Section 2 of the Muslims Personal Law (Sheriat) Application Act permits the suit seeking partition insofar as agricultural lands and
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NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 would contend that the Courts below were not justified in dismissing the suit holding that the plaintiff during the lifetime of his father is not entitled for partition under Mohammedan Law.
16. Per contra, learned counsel appearing for the respondents would justify the judgment and decree of the Courts below and would contend that Mohammedan Law does not recognize any birth right or partition right during the life time of the father. It is contended that the substantial questions of law framed by this Court need to be answered against the appellant.
17. The undisputed facts are that the parties are Mohammedans, the plaintiff is the son of defendant Nos.1 and 2. The contention of the plaintiff is that there is a family custom and convention about seeking a partition during the lifetime of the father. Though it is unknown in Mohammedan law, the said custom prevailed in the village as well as in the family of the brothers of defendant No.1 and his grand-father. According to the appellant-plaintiff
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NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 the suit schedule properties are the agricultural lands and as per Section 2 of the Muslims Personal Law (Shariat) Application Act, 07.10.1937, if there appears to be any custom, it can be pleaded insofar as an agricultural lands are concerned and the present suit was maintainable.
18. In order to answer and arrive at a conclusion whether the courts below were justified in dismissing the suit, the relevant provisions that needs to be looked into is Section 2 of the Muslims Personal Law (Shariat) Application Act and Section 52 of Mohammedan Law. Section 2 of the Muslims Personal Law (Shariat) Application Act reads as under:
"2. Application of Personal Law to Muslims.-- Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and
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NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
Plain reading of Section 2 of the said Act makes it clear that the custom, which has been contended by the plaintiff, has to be in respect of agricultural land.
19. Undisputedly, the suit schedule properties are agricultural lands. However, in order to establish the custom that prevailed in a particular community, the necessary proof of such customs has to be evidenced by oral and documentary evidence. The plaintiff tried to substantiate his claim, placing reliance on the mutation entry, wherein the names of defendant No.1 and his brothers have been effected, the mutation entry, more particularly Exs.P-8 and P-9 disclose about the partition has been effected. The said evidence placed by the plaintiff is not sufficient to arrive at the conclusion that there prevails a custom and hereditary in the family of the
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NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 plaintiff and defendants. Section 52 of the Mulla's Principles of Mohammedan Law reads as under:
"52. Birth-right not recognized The right of an heir apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor.
A, who has a son B makes a gift of his property to C. B, alleging that the gift was procured by undue influence, sues C in A's lifetime on the strength of his right to succeed to A's property on A's death. The suit must be dismissed for B has no cause of action against C. B has no cause of action, for he is not entitled to any interest in A's property during A's lifetime. But the gift would be liable to be set aside if the suit was brought after A's death, provided it was brought within the period of limitation.
Such a right as that claimed by B in the above illustration is a mere spes succession, that is, an expectation or hope of succeeding to A's property if B survived A. The Mahomedan law "does not recognize any... interest expectant on to the right as heir in the person entitled to it according to the rules of succession, he possesses no right at all".
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NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 Plain reading of Section 52 of Mohammedan Law envisages that a birth right is not recognized under Mohammedan Law and the right of an heir would come into existence only on the death of the ancestor and until that, he is not entitled to any interest in the suit schedule property.
20. Ex.P-8 is a partition made by a propositus during the lifetime of the propositus, which is evidenced between defendant Nos.1 and 2, merely because there is a partition, the plaintiff has not established as to the customs about the partition between the family of the plaintiffs and defendants from ancestors. In the absence of the same, the trial Court was justified in arriving at the conclusion that, in the absence of any material to evidence the customs and conventions that prevailed in the family of the plaintiff and the defendants and in light of Section 52 of the Mohammedan Law, the succession opens only after the death of the ancestor and therefore, the interest of claiming right in the suit schedule property during the
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NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 lifetime of the father is not permissible and dismissed the suit of the plaintiff.
21. The first appellate Court has re-appreciated the oral and documentary evidence placed before it and the proposition of law and has arrived at the conclusion that the plaintiff is not entitled for share during the lifetime of the father.
22. The material on record evidences that the plaintiff has failed to establish the right that has occurred to the plaintiff during the lifetime of the father since under Mohammedan Law, no person has a right in the property by birth and there is no concept of joint family among the Mohammedans as long as the father is alive, the children do not profess any right in the property and it is only on the death of the father, the children living at that time would inherit. The concept of the representation is entirely unknown to the law governing the Muslims (Sunni Law). Right of inheritance arises on the death of the person owning the property and the question of devolution
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NC: 2023:KHC-K:7930 RSA No. 200406 of 2015 of inheritance rests entirely decided at the time when the person through whom the heirs claim dies-death being the sole guide. The concept under the Mohammedan Law to seek partition during the lifetime of the father by the sons is unknown. Hence, the custom cannot purview the law and even assuming that there was any custom prevailing the oral testimony and documentary evidence to such an extent regarding the proof of custom has to be established.
23. The plaintiff has failed to establish any such custom prevailing in the family of the plaintiff and defendants. The Courts below have rightly held that the plaintiff is not entitled for any share in the suit schedule property during the lifetime of his father. In the backdrop of the said facts, the manner in which the Courts below have considered the entire oral and documentary evidence, this Court is of the considered view that the same does not call for any interference.
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NC: 2023:KHC-K:7930 RSA No. 200406 of 2015
24. For the foregoing reasons, the substantial questions of law framed by this Court need to be answered against the appellant herein holding that the Courts below were justified in holding that the plaintiff has failed to prove the family customs or the village customs as pleaded by the plaintiff and the family custom as pleaded by the plaintiff could not come under the purview of law nor overrule nor would prevail over the general rule of partition and Hanafi School of Sunni Sect of Mohammedan Law.
25. For the foregoing reasons, this Court pass the following:
ORDER
i) The regular second appeal filed by the plaintiff is hereby dismissed.
ii) The judgment and decree of the Courts below stands confirmed.
Sd/-
JUDGE S*/List No.: 1 Sl No.: 52