Bangalore District Court
Mrs. Mehar Taj vs Mrs. Kamar Taj on 2 April, 2016
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
XVII Addl. City Civil & Sessions Judge.
Dated this 2nd Day of April, 2016
O.S.No. 2242/2014
Plaintiffs : 1. Mrs. Mehar Taj
D/o late Mohammed Baksh
Aged about 45 years,
R/at No.252, 6th Main Road,
K.M. Colony, Siddapura,
Bengaluru
2. Mrs. Mubeen Taj,
D/o late Mohammed Baksh
Aged about 40 years,
3. Mr. Mohammed Khalid
S/o late Mohammed Baksh
Aged about 30 years,
Plaintiffs 2 and 3 are
R/at Parvathi Temple,
Motinagar,
Bengaluru - 2.
[By Sri. B.Krishnagowda - Adv.]
-Vs-
Defendants : 1. Mrs. Kamar Taj,
D/o Late Mohammed Baksh
Aged about 46 years,
2. Mr. Mohammed Usman
S/o late Mohammed Baksh
Aged about 41 years,
3. Mrs. Ayesha Banu
D/o late Mohammed Baksh
2 OS.No.2242/2014
Aged about 37 years,
4. Mr. Mohammed Sadiq
S/o late Mohammed Baksh
Aged about 36 years,
5. Mr. Mohammed Adil
S/o late Mohammed Baksh
Aged about 32 years,
6. Miss. Shazia Banu
D/o late Mohammed Baksh
Aged about 26 years,
No.1, Pojjery Cheluvaraya Swamy
Lane, Thigalarapet,
Bengaluru -2
7. Mr. Syed Sardar
Aged about 45 years,
Proprietor of Kissan Agency,
No.1/1, Pojjary Cheluvaraya
Swamy Laone, S.J.P. Road Cross,
Thigalarapet,
Bengaluru -2
8. Mrs. Farida
W/o Zuzer
Aged about 45 years,
Proprietor of Industrial Fasteners
& Tools, No.1, 1st Floor,
Pojjary Cheluvaraya Swamy Laone,
Thigalarapet,
Bengaluru -2
9. Mr. N.S.Vijay Raj
Aged about 45 years,
Proprietor of Mark Engineering
No.1/1, 1st Floor,
Pojjary Cheluvaraya Swamy Laone,
Thigalarapet,
Bengaluru -2
10. Mr. Iqbal
[Deleted]
3 OS.No.2242/2014
[D1, 3 to 9 - By Sri. N.R.S., Adv.]
Date of institution of the suit 19.03.2014
Nature of the suit Partition
Date of commencement of 31.08.2015
recording the evidence
Date on which the judgment 02.04.2016
was pronounced
Total duration Years Months Days
02 00 14
(Ravindra Hegde),
XVII Addl. City Civil & Sessions Judge.
**********
JUDGMENT
This suit is filed by the plaintiff against the defendants for partition and separate possession of their 1/9th share each in the suit properties and for mesne profits.
2. The brief facts of the plaintiff's case is that, the plaintiffs 1 to 3 and the defendants 1 to 6 are the children of late Mohammed Baksh who died on 27.12.2010 leaving behind the plaintiffs and defendants 1 to 6 are his legal heirs. Mohammed Baksh was the absolute owner of the suit properties. The suit item No.1 property has come the share of Mohammed Baksh by the registered partition deed dated 21.1.1969. Item No.2 property bearing No.252 is also belonging to Mohammed Baksh. Mohammed Baksh has put 4 OS.No.2242/2014 up construction in the item No.1 consisting of ground floor, first floor and second floor and this property is commercial property. The defendant No.7 is tenant in ground floor on monthly rent of Rs.16,000/- and in the first floor, front portion is given on rent to defendant No.8 on monthly rent of Rs.5,000/- and the back portion is given on rent to defendant No.9 on monthly rent of Rs.5,000/-. The defendant No.5, 6 and 3rd plaintiff are residing in the second floor. After the death of Mohammed Baksh, the plaintiffs and defendants 1 to 6 have succeeded to the estate of the deceased and there is no partition effected between the parties. The 5th defendant is looking after the affairs of the joint family and has been collecting the rent from the tenants. The 5th defendant has started to mismanage the affairs of the joint family and is not giving account for the rent received and is not sharing the rents. The plaintiffs and defendants 1 to 6 are having equal share and they are the co-owners and hence, the plaintiffs have sought partition and separate possession of their share. It is stated that though they requested the 5th defendant to effect the partition, she has not effected partition. With these averments, this suit is filed.
5 OS.No.2242/2014
3. The defendants 1, 3 to 9 have appeared through their counsel, but have not filed the written statement. The defendant No.2 has appeared personally, but has not filed the written statement. Earlier, there was defendant No.10 and his name is deleted.
4. Now the points that arise for my consideration are:-
1) Whether the plaintiffs are entitled for partition and separate possession of their share as prayed?
2) What decree or order?
5. In support of the plaintiff's case, PW.1 is examined. Ex.P1 to P5 are marked.
6. Heard the arguments.
7. My answer to the above points are as under:-
Point No.1: In the affirmative Point No.2: As per final order, for the following:
REASONS
8. Point No.1:- The case of the plaintiffs is that the plaintiffs and defendants 1 to 6 are the children of Mohammed Baksh and the suit properties belonged to Mohammed Baksh and on his death in 2010, the plaintiffs and defendants 1 to 6 have become the co-owners of the suit property and each are 6 OS.No.2242/2014 having 1/9th share in the suit properties. The defendants 7 to 9 are tenants. The defendants 1, 3 to 9 though appeared through counsel, have not filed the written statement and defendant No.2 has also not filed the written statement.
9. The plaintiff No.3 has given evidence as P.W.1 and stated the plaint averments in chief evidence. The plaintiffs have produced the death certificates of their father and mother as Ex.P1 and P2. The copy of the partition deed by which item No.1 property came to Mohammed Baksh is produced as Ex.P3. Khatha extract and khatha certificate in respect of item No.1 property is produced as Ex.P4 and P5. The defendants have not contested the matter.
10. On looking to the documents, pleadings and evidence of P.W.1, the relationship between the parties is not disputed by the defendants. The plaintiffs and defendants 1 to 6 are the children of Mohammed Baksh and Pyare Jan, who have died in 2010 and 2005 respectively as seen in death certificates Ex.P1 and P2. the suit item No.1 property is standing in the name of Mohammed Baksh as seen in khatha extract and khatha certificates produced at Ex.P4 and P5. The copy of the partition deed is also produced to show that this property has come to the share of Mohammed Baksh in the 7 OS.No.2242/2014 family partition. These documents show that the suit item No.1 property belonged to the family of the plaintiffs and defendants 1 to 6 and they have inherited the same from their father Mohammed Baksh. The plaintiffs have contended that the plaintiffs are having 1/9th share in the suit properties.
11. There is another property item No.2 in respect of which there are no documents to show that it belonged to Mohammed Baksh. The learned counsel for the plaintiffs has submitted that this property was acquired by Mohammed Baksh by G.P.A. On the basis of G.P.A., Mohammed Baksh cannot be said to have acquired title to the said property and as such, the suit item No.1 property only can be considered as the property left behind by Mohammed Baksh which is to be partitioned between the plaintiffs and defendants 1 to 6. The plaintiffs 1 and 2 and defendant No.1,3 and 6 are the daughters of Mohammed Baksh and plaintiff No.3 and defendants 1, 4 and 5 are the sons of Mohammed Baksh. As they are governed by Mohammedan Law, wherein the daughters get half of sons share, the plaintiffs 1 and 2 defendant No.1,3 and 6 being the daughters are entitled for 1/13th share each and the plaintiff No.3 and defendants 2, 4 and 5 being sons are entitled 2/13th share each. Therefore, the 8 OS.No.2242/2014 plaintiffs are entitled for partition and separate possession of their share in the item No.1 of the suit property.
12. The defendants 7 to 9 are the tenants. It is stated that the defendant No.5 is receiving the rents and is not sharing the rent with the other co-owners who are the plaintiffs and defendants 1 to 4 and 6. The plaintiffs even filed applications praying to direct the defendants 7 to 9 to deposit the rents before the court. These applications are not opposed by the defendants. As stated above, the plaintiffs are entitled for partition and separate possession of their share in the suit item No.1 property. The partition may take time, until then it is proper to direct the defendants 7 to 9 to deposit the rents before the court. As the plaintiffs have contended that the defendants 7 to 9 are paying rents to defendant No.5 and defendant No.5 is not sharing the rents with the other defendants, it is proper to direct the defendants 7 to 9 to deposit the rents in the court till final decree is drawn or till further orders. Accordingly, this point is answered.
13. Point No.2:- For the discussion made on above point, the suit of the plaintiffs is to be decreed. Accordingly, following order is passed :-
9 OS.No.2242/2014
ORDER Suit of the plaintiffs is decreed without costs. The plaintiffs 1 and 2 are entitled for partition and separate possession of their 1/13th share each and the plaintiff No.3 is entitled for his 2/13th share in the suit item No.1 property.
The defendants 7 to 9 are directed to deposit the rents in respect of the premises occupied by them in suit item No.1 property, in the court till drawing final decree or till further orders.
Draw preliminary decree.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 2nd day of April, 2016).
(Ravindra Hegde), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 Mohammed Khalid List of documents exhibited for plaintiffs:
Ex.P1 & 2 Death certificates
Ex.P3 Certified copy of partition deed
10 OS.No.2242/2014
Ex.P4 Khatha extract
Ex.P5 Khatha certificate
List of witnesses examined for defendants:
Nil List of documents exhibited for defendants:
Nil XVII Addl. City Civil & Sessions Judge, Bengaluru.