judgmenthck.kar.nic.in › judgmentsdsp › bitstream › 123456789 › ... DATED THIS THE 11 TH BEFORE THE …IN THE HIGH COURT OF KARNATAKA, GULBARGA BENCH DATED THIS THE 11 TH DAY

IN THE HIGH COURT OF KARNATAKA,

GULBARGA BENCH

DATED THIS THE 11TH

DAY OF JUNE, 2014

BEFORE

THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL NO.2414/2006

BETWEEN:

1. Baleequzzaman

S/o Late Haji Khurshiduzzaman

Aged about 54 years,

R/o Haji Oil Milss,

Yadgir.

Gulbarga – 585 201.

2. Shamshuzzaman

S/o Late Haji Jan Mohd.


R/o Haji Oil Milss,

Yadgir.


3. Khaja Rafta

S/o Haji Jan Mohammed


R/o Haji Oil Milss,

Yadgir.


4. Razia Shahana

1

W/o Sayed Rafiddun


R/o Haji Oil Mills,

Yadgir-585 201.

5. Badar Jahan

D/o Haji Khurshiduzzaman


R/o Haji Oil Mills,

Yadgir – 585 201. … APPELLANTS

(Shri Liyaqat Fareed Ustad, Advocate for appellant-1

Shri R.S. Sidhapurkar, Advocate for appellant-2 and 3

Appellant-4 and 5 are served)

AND:

1. Hussaini Begum

Since deceased by LRS.

1 a) Sayeeda Banu

D/o Nooruddin Munshi

Aged about 62 years

R/o C/o M.N. Ahmed Shah Noor

Plot No. 18, Sector-10m

Koperkhavana Navi,

Mumbari

Maharastra State – 400709.

1 b) Shaheeda Banu

W/o Kaliquzzaman


R/o C/o K.K. Zaman

Samrat Co-operative having soceity

Plot No.12, Sector-7

Koperkhavana Navi,

2

Mumbari


1c) Mohammed Eshasan Nazeer

S/o Nooruddin Munshi

Aged about 56 years

Railway Employee

H.No.159/1, Railway Line

Near Pakha Bowli

Solapur

Maharastra – 400 709.

1 d) Azgari Banu

W/o Khaja Abdul Rasheed

Aged abput 58 years,

R/o C/o M.N. Ahmed shah

Plot No. 18, Sector -10

Koperkhavana Navi,

Mumbari


1 e) Shaista Anwari

W/o Najuddin


R/o C/o M.N. Ahmed shah

Plot No. 18, Sector -10

Koperkhavana Navi,

Mumbari


2. Saleha Tasneem

W/o Munshi Mohd. Ahesan Nazir


R/o N.N. Munshi 159/1,

Railway Lines

3

Solapur (M.S.) – 585 201.

3. Sugra Bee

W/o Late Haji Mohd. Khaja

Since deceased and No. LRS.

4. Mr. Khaja Abdul Rashid

S/o Late Abdul Samad

Aged about 60 years

R/o Khaja Moinuddin

Haji Oil Mills

Yadgir – 585 201.

5. Khaja Moinuddin



R/o Khaja Moinuddin

Haji Oil Mills

Yadgir – 585 201.

6. Khaja Gulam Samadani



R/o Khaja Moinuddin

Haji Oil Mills

Yadgir – 585 201.

7. Zainab Khatoon

W/o Marghoob Ahmed Adoni

Since deceased by her LRS :

7 a) Marghoob Ahmed Adhoni

S/o M. Fakheer Ahmed Adhoni


4

7 b) Md. Ibrahim Khaleel

S/o M. Marghoob Ahmed Adhoni


7 c) Md. Farooquie Shakeel\

S/o M. Marghoob Ahmed Adhoni


7 d) Shaheda Khatoon

W/o Md. Iqbal Sundkey


7 e) Ubeda Khatoon

W/o M.A. Hafeez Sana Bhandari


7 f) Saeeda Khatoon

W/o Md. Munwar Ali Muchale


7 g) Mohammadi Begum

W/o K. Zakir Jamal


7 h) Zubeda Khatoon Feroz

D/o M. Marghoob Ahmed Adhoni


7 i) Waheeda Khatoon Afroz



7 j) Sameena Tabassum



5

All are residents of

C/o Mubeen Ahmad Adoni

Mominpura, Khara Bawli

Gulbarga,


8. Hashmat Khatoon

W/o Md. Shafi


R/o C/o Khaja Moinuddin

Haji Oil Mills

Yadgir – 585 201.

9. Mumtaz Begum

W/o Asgarali


R/o C/o Khaja Moinuddin

Haji Oil Mills

Yadgir – 585 201.

10. Admedi Shahnaz

W/o Late Haji Khurshiduziaman

Since deceased her LRS are

Already on record.

11. Ameena Begum

W/o Haji Burhanuddin Ahed,

Since deceased by her LRS

11 a) Haji Mohd. Burhuanuddin

S/o Abdul Khader


(Husband of Respt. 13)

6

11 b) Md. Hameeduddin

S/o Haji Mohd Burhanuddin

Aged about 55 years

Since deceased by his LRs.

i) Sarwat Rahiya

W/o Hameeduddin


ii) Naseeruddin Ahmed

S/o Hameeduddin

Aged about 22 years

iii) Nuzhat Aliya

D/o Hameeduddin

Aged about 23 years

iv) Nusarat Ayesha

D/o Hameeduddin

Aged about 22 years

v) Ishrat Furkhana

D/o Hameeduddin

Aged about 20 years

vi) Zeshan Farheen

D/o Hameeduddin

Aged about 17 years

Since minor represented by her

Mother LR.b(1)

All are residents of

Mohella Asar Shareef

Yadgir Town of Gulbarga District – 585 201.

7

11 c) Md. Najmuddin

S/o Haji Mohd. Burhanuddin


11 d) Md. Azizuddin



11 e) Abdul Khader



11 f) Md. Wheeduddin



11 g) Rahamatunnisa

W/o Abdul Rahman


11 h) Azgari Banu

W/o Abdul Hameed


11 i) Sayeeda Banu

W/o Sayed Mohsin


All are residents of Mohella

Asar Sareef

Yadgir Town

Gulbarga District – 585 201.

12. Zaheerunnisa Begum

W/o Abdul Wahab Sagri

8

Aged about 58 years

C/o Haji Burhanuddin Ahmed Mohella

Asare Shareef Yadgir- 585 201.

13. Khuteja Begum

W/o Abdul Saleem

Aged about 55 years

C/o Haji Burhanuddin Ahmed Mohella

Asare Shareef Yadgir- 585 201.

14. Khaleequzzaman

S/o Late. Haji Khurshiduzzaman


R/o Haji Oil Mills,

Yadgir – 585 201.

15. Ahmed Mohiuddin

S/o Late. Haji Khurshiduzzaman


R/o Haji Oil Mills,

Yadgir – 585 201.

16. Parveen Khurshid

W/o Mirza Mahaboob Baid


R/o Haji Oil Mills,

Yadgir – 585 201.

17. A. Rauf

S/o Khaja Moinuddin

Aged about 35 years

R/o Bharat Beedi Factory

Muslimpura

Yadgir – 585 201.

9

18. Md. Ishaq

S/o Khaja Moinuddin

Aged about 33 years

R/o Bharat Beedi Factor

Muslimpura

Yadgir – 585 201.

19. Khaleel Ahmed

S/o Khaja Moinuddin

Aged about 33 years

R/o Bharat Beedi Factor

Muslimpura

Yadgir – 585 201.

20. Jaleel Ahmed

S/o Allabhaksh

Age: 38 years

Occupation: Marketing

R/o Sada Dawaze

Dhangar Locality

Yadgir. … RESPONDENTS

(Shri Ashok S. Kinagi, Advocate for respondent- 17 to 19

Shri N. M. Srinivasa Murthy, Advocate for respondent-16

Smt. Nalina Venkatesh, Advocate for respondent-1, 2, 4 to 6,

7 (a to j), 8, 9, 11 (b1 to b6), 11 (c to I)

Respondent 1(a to e) appeal dismissed vide order dated 17.12.2008

Respondent-11 (c to f) are Legal representatives of the deceased

Respondent-11 (a))

This Regular First Appeal is filed under Section 96 of the Code of

Civil Procedure, 1908 against the Judgement and Award dated 25.09.2006

passed in O.S. No. 10/1996 on the file of the Civil Judge (Senior Division)

at Yadgir, decreeing the suit for partition and separate possession.

This appeal coming on for Hearing this day, the Court delivered

the following:

10

JUDGMENT

Heard the learned Counsel for the appellants and the

learned Counsel for respondents 17 to 19, the counsel for the

legal representatives of R-11, R-12 and R-13. The Counsel for

respondents 1, 2 and 16 remains absent. The other respondents

remain unrepresented.

2. The brief facts leading to this appeal are as follows:

The parties are referred to by their rank before the trial

court for the sake of convenience.

Appellant No.1 was defendant no.15 and appellant no.2

was defendant no.9 and appellants 3,4 and 5 were defendants

10,17 and 18, respectively. Respondent no.1 and respondent

no.2 were the plaintiffs before the trial court.

The plaintiffs claim to be sharers under the Mohammedan

Law of Inheritance to the properties and one Haji Mohammad Khaja.

For the sake of clarity, the genealogical tree which was not in

dispute is reproduced hereunder:

11

HAJI MOHAMMED KHAJA (SAUDAGAR) (DIED 1944)

Wives

1st wife 2

nd wife 3

rd wife

Zalnab Bee Aishabe Sugra Bee

(died in 1934) (died in 1965) (died on

27.03.1997)

(Issueless D-1)

Daughter (Gefoorunnisa died in 1966)

Son Son Daughter

Haji Jan Mohammmed Abdul Samad Rabiya bee (died during

(died 1973) (died 1950) lifetime of her father

(predeceased)

Son Son Son Daughter Daughter Daughter

Khaja Khaja Khaja Zainab Hashmat.K Mumtaz

Abdul Moinuddin Gulam Khatoon (D-6) Begum

Rasheed (D-3) Samdani (dead) (D-5) (D-7)

(D-2) (D-4)

Son Son Son Daughter Daughter Daughter Daughter

Haji Shamsu Khaja Hussaini Ameena Zahirunnisa Khuteja

Mohd. - zzaman Rafat Begum Begum (dead) Begum Begum

Khurs- (D-9) (D-10) (died) (D-11) (D-12) (D-13)

-heeduzaman (P-1)

Died 1980

Wife Ahmedi Shahnaz (died)D-8

Son Son Son Daughter Daughter Daughter Daughter

Khaliqu Belequ Amhmed Razia Saleha Badarjahan Paveen

-zzaman – zzaman Mohiuddin Shahana Taneem Khursheed

(D-4) (D-15) (D-16) (D-17) (Pltf.2) (D-18) (D-19)

12

As could be seen, the plaintiff no.1 was the grand

daughter of Haji Mohammed Khaja through his son Haji Jan

Mohammad and Plaintiff no.2 was the grand daughter of Haji

Jan Mohammed, again through his son Haji Mohd.

Khursheeduz zaman. Defendants 20,21,22 are said to be

purchasers of the properties that are the subject matter of the

suit and one of the purchasers who has been impleaded in the

course of this appeal and who would be a party to the

proceedings, shall be arraigned as defendant no.23.

It is the case of the plaintiffs that Haji Mohammad Khaja

popularly called Haji Khaja Soudagar is said to have died in the

year 1944 leaving behind him plaintiffs 1 and 2 and defendants

1 to 19. It is claimed that he was the owner of the suit schedule

properties, though the plaintiffs admit that some properties were

purchased in the name of Haji Jan Mohammed, however it is

claimed that the ownership was that of Haji Mohammed Khaja.

It is hence contended that Haji Mohammed Khaja was a

leading businessman in Yadgir town and had several

13

businesses, including ginning and pressing cotton mills, oil

mills etc., though at the time of the presentation of the plaint,

these industries were said to be defunct. The plaintiffs contend

that they, along with defendants 1 to 19, inherited properties as

tenants in common and were in joint possession and enjoyment

of the same. After the death of Haji Mohammed Khaja, his

sons namely, Haji Jan Mohammed and Abdul Samad

continued the businesses till their respective deaths. It is

claimed that because of the differences between the women folk

in the family, it was not possible for the parties to continue to

live together and therefore, had demanded their shares in March

1995, and the demand was followed up with a legal notice to all

the defendants, which was resisted by the defendants and

therefore, the suit.

In view of certain transaction having taken place where

properties were sold to the defendants who are now brought on

record, defendants 20 to 22 who had purchased the properties

prior to the filing of the suit and defendant no.23, who has

14

now been impleaded by this judgement during the pendency of

the suit. It was claimed that the sale deeds so executed in

favour of the said parties are null and void and not binding on

the plaintiffs. It is claimed that the suit properties are matrooka

properties, namely properties that are liable for partition

between the parties to the suit and some of the properties have

been transferred by defendants inter se and without the

knowledge or consent of the plaintiffs which are sought to be

questioned. In the plaint, the plaintiffs have indicated the

shares that would be allotted to each of the parties in fractions

and have furnished bare details and certain allegations that

were made and the value thereof by defendants 9, 10, 14,15 and

16 and sought for declaration that the sale deeds pertaining to

the house property bearing Municipal 3/6-30 sold to defendant

no.11 as being null and void and have sought for a declaration

that the plaintiffs were entitled to 141/2560 share (5.5%) share

in all the suit properties and for possession of the share.

Defendants 2, 7, 9, 10 and 15 were the contesting defendants.

15

The other defendants who had filed written statement

conceding the claim of the plaintiffs were defendant 2, legal

representatives of defendant no.5; defendants 6, 7; the legal

representatives of defendant no.11; defendants 12 and 13. The

other defendants did not choose to file any written statement.

On the basis of the said pleadings, the court below has framed

the following issues:

1. Whether plaintiffs prove that Haji Mohammed Khaja died in

1944 leaving behind him the plaintiff and defendants 1 to

19?

2. Whether plaintiffs prove that deceased Haji Mohd. Khaja

was absolute owner in possession of suit properties?

3. Whether plaintiffs and defendants No.1 to 19 inherited suit

properties as tenants in common?

4. Whether plaintiffs proves their joint possession enjoyment

over suit properties ?

5. Whether plaintiffs prove that sale deeds executed by D-9,

D-10, D-15 are null and void?

16

6. Is the suit abated?

7. Is the suit hit by provision of Benami Transactions

(Prohibition) Act, 1988?

8. Is the suit collusive one?

9. Whether Sy.No.795 of Yadgiri (B) is shown twice in both

schedules of plaint?

10. Is there no cause of action for the suit?

11. Is the court fees paid inadequate?

Additional Issue:

Whether the suit is barred by limitation?

The court below has answered the issue no.1 partly in

the affirmative and 2 to 5 and 11 in the affirmative and Issues 6

to 10 and the additional issue in the negative and proceeded to

decree the suit with costs holding that the plaintiffs together

were entitled to 5.5% share in the suit properties and that the

share be separated and they be put in possession of their

respective shares and that the properties sold by defendants 9,

17

10, 14 to 16 in favour of defendants 11, 20, 21 and 22 are not

binding on the plaintiffs. It is this judgment and decree which

is under challenge.

3. The learned Counsel for the appellants were heard at

length. The counsel for the respondents 1 and 2 who are the

plaintiffs before the court below failed to appear.

4. On hearing the counsel for the appellant as well as the

Counsel for the other respondents, who are present, it is straight

away noticed that there are several discrepancies in the

judgment of the court below, which requires the matter to be

remanded. Firstly, it is to be seen that the trial court has

accepted the sketchy description of the suit properties and the

list of properties provided by the plaintiffs as well as the shares

indicated by the plaintiffs as to the entitlement of each of the

parties and has proceeded to decree the suit in favour of the

plaintiffs. This is not welcome. The detailed description of

each of the suit items was necessary and it was also necessary

18

for the production of title deeds in respect of the several

properties or at least the ownership to have been determined in

accordance with law. The mere production of a list of

properties, the record of rights and the Municipal Khata

Extracts of properties, which were the records that were made

available, were insufficient for the court below to proceed to

decree the suit in favour of the plaintiffs. One other aspect is

that the plaintiffs had, in passing, claimed that certain properties

were purchased in the name of Haji Jan Mohammed, which in

fact, were the properties acquired by Haji Mohammed khaja

and though the Trial Court had thought it fit to frame an issue

as to whether the Benami Transactions (Prohibition) Act, 1988

(Hereinafter referred to as the ‘1988 Act’, for brevity), would

apply, has not chosen to take it to its logical conclusion in

dealing with it. This was relevant insofar as the claim that there

were properties which were acquired by Haji Jan Mohammed,

which were only in name and that it belonged to Haji

Mohammed Khaja, the court has proceeded on the footing that

19

it did belong to Haji Mohammed Khaja, when in fact, certain

properties stood in the name of Haji Jan Mohammed. In the

eye of law, this was not permissible. This aspect of the matter

has not been addressed by the court below. Therefore, if there

was a claim of the defendants to the effect that certain

properties were owned by Haji Jan Mohammed, it was

incumbent on their part to produce title deeds in respect of

those properties and the court should have examined the scope

and effect of the 1988 Act, in assuming that the properties

belonged to Haji Mohammed Khaja. The second aspect is that

the Mohammedan Law of Inheritance, when the parties herein

belonged to Sunni Sect, does not provide for inheritance by

birth. Therefore, if any of the parties were born after the death

of the Haji Mohammed Khaja, they would have to be excluded

in accordance with the established principles of Mohammedan

Law of Inheritance. This aspect has also not been taken into

account and the court below has proceeded as if every party

named by the plaintiffs was entitled to a share. It is necessary

20

to examine the aspects as to which of the parties would inherit

and which parties would have to be excluded. This is a

significant aspect that requires to be addressed by the Trial

Court. Thirdly, there are sale transactions in favour of third-

parties and sale transactions inter se between the defendants. If

the executants of the sale transactions did not inherit the

properties, the transactions to that extent would be void and

would not bind the other sharers. This has also not been

examined in proceeding to hold that the sale deeds did not bind

the plaintiffs. The validity of the sale deeds being executed

even during the life time of Haji Jan Mohammed and if those

properties had been acquired by him in his name, the effect and

validity of the sale deeds would have to be addressed, which

has not been done. Therefore, to hold that all such sale

transactions were null and void would be unfair to the

defendant purchasers. This is to be examined by the court

below. The percentage of share to each individual would vary

according to the status. In that , the Law of Inheritance of

21

Sunnis prescribes a definite share in resect of an individual

depending on his relationship with the deceased and to that

extent, the shares indicated by the plaintiffs do not appear to be

accurate. This has been accepted by the court below without

any question. This would lead to injustice. Therefore, there is

to be a determination of the share of each individual with

reference to the table, which is available in “Mulla’s Principles

of Mohammedan Law”, 19th edition and the same should be

applied strictly. If the plaintiff herself is found not to be a

sharer, the judgment is patently erroneous and therefore this is a

significant aspect, which has not been taken into consideration

by the court below.

Therefore, it would now require the court below to

reframe the issues appropriately. The issues framed earlier may

be eschewed and issues ought to be precise and to the point and

not necessarily based on the rambling pleadings of the parties.

The Trial Court shall permit the parties to tender evidence in

22

respect of the said issues and shall proceed to determine the suit

in accordance with law.

It is also brought to the attention of the court that even

during the pendency of this appeal, there have been several

transactions. It is therefore open to the parties to make

necessary applications to implead such purchasers as any such

transactions during the pendency of the suit or the pendency of

this appeal, would attract the rigour of Section 52 of the

Transfer of Property Act,1882. Therefore, the court below shall

also take into account such transactions and deal with the effect

of the same appropriately.

It is also to be noticed that even if the executants of the

sale deed were competent to transact, since they had the

exclusive benefit to the exclusion of other sharers, who are

entitled to join them, the shares of the respective sharers would

have to be proportionately reduced at the time of allotment of

shares on a final determination. If the executants were

competent to execute the sale deeds, the purchaser’s rights shall

23

not be jeopardized to that extent and those sale deeds would be

saved.

Notice to be issued to all the parties especially the

plaintiffs or their legal representatives, since they have

remained absent before this court, and proceed with the suit on

day to day basis to the extent possible and to decide the matter

finally within a period of four months from the date of receipt

of a certified copy of this judgment. The office to remit the

records to the trial court forthwith.

Sd/-

JUDGE

nv

24

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judgmenthck.kar.nic.in › judgmentsdsp › bitstream › 123456789 › ... DATED THIS THE 11 TH BEFORE THE …IN THE HIGH COURT OF KARNATAKA, GULBARGA BENCH DATED THIS THE 11 TH DAY