IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION Nos.17724 & 39444 OF 2016 (GM-CPC) BETWEEN:
1. SHRI. ABDUL KHAYUM A.S., S/O SHRI. LATE ABDUL SUBAN, AGED ABOUT 67 YEARS, R/AT: KOLLEGALA – 571 440, CHAMARAJANAGAR DISTRICT.
2. SMT. SHATHAJ BEGUM, W/O LATE SHRI. ABDUL REHMATH, AGED ABOUT 62 YEARS, R/AT: H.D. KOTE TALUK, SARAGURU – 571 121.
3. SMT. MUMTAZ BEGUM, W/O LATE SHRI. KHAZA ALLAUDIN, AGED ABOUT 59 YEARS, R/AT: NO.28, MASK STREET, MADIGONAPALYAM, DHARMAPURI – 636 702, TAMIL NADU STATE.
4. SMT. KHURSHID BEGUM, W/O SHRI. NAZEER AHMED, AGED ABOUT 55 YEARS, R/AT DODDABAGILU, T. NARASIPURA TALUK, MYSURU – 571 101.
5. SHRI. A.S. ABDUL SAMAD, S/O LATE SHRI. SUBHAN SAHEB, AGED ABOUT 52 YEARS, R/AT KOLLEGALA TALUK, CHAMARAJNAGAR DIST – 571 440.
6. SMT. SHARTAZ BEGUM, W/O NAWAZ PASHA, AGED ABOUT 51 YEARS, R/AT RAMAPURA, KOLLEGALA TALUK, CHAMARAJNAGAR DIST – 571 440.
7. SHRI. A.S.ABDUL MUNAF, S/O LATE ABDUL SUBHAN, AGED ABOUT 47 YEARS, R/AT NO.68, BHASKAR NAGAR, 1ST CROSS, ANJANAPURA POST, AVANAHALLI, BENGALURU SOUTH – 560 062.
8. SMT. JAMEELA BEGUM, W/O NOORULLA, AGED ABOUT 42 YEARS, CHAMARAJNAGAR – 571 313, CHAMARAJNAGAR DISTRICT.
9. SMT. BATHULA BI, D/O LATE MADAAR BI, AGED ABOUT 45 YEARS, R/AT NO.7/159, OLD KURUBA STREET, KOLLEGALA – 571 440, …PETITIONERS (BY SRI. MANJUNATH PRASAD V., ADVOCATE) AND:
1. SMT. FATHIMABI, W/O LATE ABDUL JALLEL, AGED ABOUT 80 YEARS, R/S D.NO.354, BEHIND MODERN RE-TRADING, FACTORY G.P. MALLAPURAM, KOLLEGALA – 571 440, CHAMARAJANAGAR DISTRICT.
2. KUM. S. SAVITHA, AGED ABOUT 29 YEARS, D/O K. SAMPATH KUMAR, EXCISE CONTRACTOR, SOUTHERN EXTENTION, KOLLEGALA – 571 440, CHAMARAJANAGAR DISTRICT.
3. SMT. JAYALAKSHMAMMA, AGED ABOUT 47 YEARS, D/O K. SAMPATH KUMAR, EXCISE CONTRACTOR, SOUTHERN EXTENTION, KOLLEGALA – 571 440, CHAMARAJANAGAR DISTRICT.
4. SRI. B. AHAMED BASHA, SINCE DEAD BY HIS LR’S, a. SMT. RAMEEZABI, AGED ABOUT 71 YEARS, W/O LATE B. AHMED BASHA, b. SRI. ABDUL AZAM, AGED ABOUT 54 YEARS, S/O LATE B. AHAMED BASHA, c. SMT. JAMEELA BEGUM, AGED ABOUT 51 YEARS, D/O LATE B. AHAMED BASHA, d. SRI. A. MOHAMED NAZIM, AGED ABOUT 49 YEARS, S/O LATE B. AHMED BASHA, e. SRI. AKRAM PASHA, AGED ABOUT 46 YEARS, S/O LATE B. AHAMED BASHA, f. SRI. A. SHAMEEM PASHA, AGED ABOUT 43 YEARS, S/O LATE B. AHAMED BASHA, ALL ARE R/AT D.NO.7/71, OLD KURUBARA STREET, KOLLEGALA – 571 440.
... RESPONDENTS (BY SRI.J.N.NAVEEN, ADV. FOR R2 AND R3;
R1, R4 (a to f) SERVED AND UNREPRESENTED) THESE WRIT PETITIONS ARE FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDERS DATED 05.03.2016 PASSED IN R.A.No.31/2010 IN I.A.Nos.5 AND 6 BY THE HON’BLE ADDL. DISTRICT AND SESSION JUDGE, CHAMARAJANAGAR SITTING AT KOLLEGALA AS PER ANNEXURE – A WITH EXEMPLARY COSTS AND ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners who are impleading applicants had filed I.A.Nos.5 and 6 before the Appellate Court in R.A.No.31/2010 and they filed the present petition being aggrieved by the order of the Appellate Court dismissing the applications for impleading filed by them. I.A.No.5 has been filed by Bathula Bi, who is said to be the wife of one of brothers of Ahmed Basha, while I.A.No.6 has been filed by the sisters of Ahmed Basha and sisters’ children, while the wife of Abdul Rahman is one of the impleading applicant and Abdul Rahman is stated to be the brother of B. Ahmed Basha.
2. The suit for declaration and injunction had been filed by Ahmed Basha. The suit came to be dismissed and an appeal has been filed in R.A.No.31/2010 and is pending. During the pendency of the appeal, impleading applicants have filed the said applications. It is the contention that under the personal law the wife of Abdul Jaleel had 1/4th interest and hence, the sale deed executed by her in favour of respondent Nos.2 and 3 herein did not convey full title as the sibling of Abdul Jaleel including the sisters’ brother had an interest in the property. In the appeal proceedings, impleading applicants have asserted that in the light of the interest that was claimed by Ahmed Basha, it is clear that impleading applicants also had similar interest and were necessary and not merely proper parties. The Appellate Court has rejected the applications while asserting that the impleading applicants were required to wait till the disposal of the appeal and assert their rights subject to, law of limitation.
3. It is to be noted that the Appellate Court observed at paragraph No.34 that the sisters of a deceased Mohamedan will get certain fixed share in the property of the deceased Mohamedan.
4. Looking into the nature of claim that being putforth by the impleading applicants and in specific, stating that they have an interest in the property of deceased Abdul Jaleel, which is a subject matter of proceedings by way of suit filed by one of the brothers’ of Ahmed Basha, the case that is made out regarding possession of interest by way of succession that opens up after the death of Abdul Jaleel, is a matter to be determined while considering the appeal. Nevertheless, the said parties cannot be shut out from the litigation by dismissing the applications in limine. The question as regards the entitlement, is a matter that needs to be proved when the appeal is taken up for disposal. At the stage of considering the impleading application prima facie case is made out that in the estate of the deceased Abdul Jaleel, the sibling who are now represented by way of impleading applicants also have an interest in the property.
5. In the light of the said position and also noting that the impleading applicants are to make out a case on merits of their claims in the proceedings, the impugned order is set aside. IA.Nos.5 and 6 are allowed and the impleading applicants are permitted to come on record.
6. Taking note that the regular appeal relates to the year 2010. The Appellate Court to expedite the case by taking note of the seniority of the matter viz-a-viz other pending cases.
7. Accordingly, the petitions are disposed of.
Sd/- JUDGE nvj