IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY REGULAR FIRST APPEAL NO.533 OF 2014 BETWEEN:
1. Fathimabi, W/o. late Nazeer Ahamed Khan, 2nd wife Aged about 53 years, House wife, R/a N.S.T. Road, Old Town, Bhadravathi, Shimoga District – 577 201.
2. Smt. Farzana Khanum, D/o. late Nazeer Ahamed, W/o. Imthiyaz Ahamed, Aged about 25 years, House Wife, R/a Anwar Colony, Old Town, Bhadravathi, Shimoga District – 577 201.
3. Smt. Farhana Khanum, D/o. late Nazeer Ahamed, W/o. T.K.Ibrahim Aged about 28 years, Teacher, R/at Channali Village, Yadagiri Taluk, Gulbarga District – 583 101.
(By Sri.Naveen Kumar M, Advocate for Sri.B.K.Manjunath, Advocate) AND:
1. Smt.Rasheeda Begum, W/o. late Nazeer Ahammed Khan, Muslim, 3rd wife Aged about 50 years, Agriculturist.
2. Imran Ahammed Khan, S/o late Nazeer Ahammed Khan, Aged about 32 years.
3. Ifran Ahammed Khan, S/o late Nazeer Ahammed, Muslim, Aged about 30 years.
4. Fharan Ahammed Khan, S/o late Nazeer Ahammed, Muslim, Aged about 29 years.
5. Umme Sumaiah @ Rumi, D/o late Nazeer Ahammed, Muslim, Aged about 28 years.
6. Mohsin Ahammed Khan, S/o. late Nazeer Ahammed, Muslim, Aged about 25 years, Respondent No.1 to 6 Resident of Madhavanagar Extension, …Appellants Old Town, Bhadravathi, Shimoga District – 577 201 7. Smt.Famidabi, W/o. late Nazeer Ahammed Khan, Muslim, 1st wife, Aged about 60 years, Ghousia Manzil, Opp. Murari Provision Stores Jannapura, Bhadravathi, Shimoga District – 577 201.
…Respondents (By Sri.Mallikarjun C. Basareddy, Advocate for R1 to R6; R-7 served) **** This Regular First Appeal is filed under Section 96 R/W Order XLI Rule 1 of the Code of Civil Procedure, 1908, praying to set aside the judgment and decree passed by the learned Principal Senior Civil Judge and JMFC at Bhadravathi in O.S.No.38/2009 dated 05.03.2014 and decree the suit as prayed for in the plaint.
This Regular First Appeal coming on for Hearing this day, the Court delivered the following:
JUDGMENT This is a plaintiffs’ appeal. The present appellants as plaintiffs had instituted a suit against the present respondents in O.S.No.38/2009 in the Court of learned Principal Senior Civil Judge and JMFC, Bhadravathi (hereinafter for brevity referred to as `trial Court’), for the relief of partition, declaration and cancellation.
2. The summary of the case of the plaintiffs is that plaintiff No.1, defendant Nos.1 and 7 are the wives of one late Nazeer Ahamed Khan. Plaintiffs Nos.2 and 3 are the minor daughters of plaintiff No.1 and Sri Nazeer Ahamed Khan. Defendant Nos.2 to 6 are the children born to said Sri Nazeer Ahamed Khan, through defendant No.1. Before her marriage with Sri Nazeer Ahamed Khan. Plaintiff No.1 was married to Mohammed S/o Rasheed, who was doing business in Dubai. She lived with her husband for eight years and gave birth to two sons and one daughter. The said Mohammed had earned a lot of money and accumulated wealth in the form of gold and silver items. He died due to Cancer. Due to which, plaintiff No.1 returned to India during the year 1980-81. While returning to India, she brought cash, gold and silver items of her late husband Mohammed.
It is further the case of the plaintiffs that in the year 1984, plaintiff No.1 married Sri Nazeer Ahamed Khan and gave gold, silver and cash, which she was possessing, to him for his business purposes. Sri Nazeer Ahamed Khan invested the said capital in his jewelry shop and earned a lot of money. The suit properties were acquired by Sri Nazeer Ahamed Khan during his lifetime. Late Nazeer Ahamed Khan was doing gold and silver business in the name and style of ‘Nazeer Ahmed Jewelers’ at NST Road, Bhadravathi. Out of the profits made by him in the business, he purchased the suit properties. The plaintiff No.1 has also stated that said late Nazeer Ahamed Khan, has returned things taken from plaintiff No.1 and also additional gold and silver were given to her as a mark of her sacrifice done by giving gold and silver ornaments for the business purpose of her husband.
The plaintiffs in their plaint have stated that plaintiff No.1 was legally wedded 2nd wife of said Nazeer Ahamed Khan. Defendant No.1 was the 3rd wife of said late Nazeer Ahamed Khan and defendant No.7 was the first wife of Sri Nazeer Ahamed Khan and defendant No.7 had no issues. Whereas, defendant Nos.2 to 6 born to defendant No.1 through Sri Nazeer Ahamed Khan. Defendant No.7 had a son born to her through her first husband by late Subre Rehaman Sab. The husband of plaintiff No.1, defendant No.1 and defendant No.7 i.e., late Nazeer Ahamed Khan, died on 27.02.1999.
It is further the case of the plaintiffs that Sri Nazeer Ahamed Khan was living with defendant No.1. As such, after his death, defendant No.1 took over the control upon all the properties of the deceased Sri Nazeer Ahamed Khan. However, during his life time, Sri Nazeer Ahamed Khan had given gold ornaments to a tune of 10 kgs and 100 kgs of silver to the custody of the plaintiff No.1. After the death of late Sri Nazeer Ahamed Khan, within a span of three days, defendant Nos.1 to 4 and defendant No.1’s father by name M. Zainnullabuddin and seven brothers along with some rowdy elements went to the house of the plaintiffs and took all gold and silver ornaments despite the resistance made by the plaintiffs. At that point of time, the defendants also obtained by force signature of plaintiff No.1 on blank stamped papers, which the plaintiffs doubt that the defendants might have created some spurious documents against the plaintiffs.
The plaintiffs have further stated that after seven to eight days, they again came and insisted for sale of all gold and silver ornaments so that sale price would be given to plaintiff No.1. Due to the threat and safety aspect, plaintiff No.1 agreed to sell gold ornaments to the tune of 10 Kgs and silver ornaments to the tune of 100 kgs in favour of M. Zainnullabuddin of Soraba. He issued a cheque for `11 lakhs drawn on Canara Bank, C.N. Road, Bhadravathi in the name of plaintiff No.1 and also issued another cheque for a sum of `1,65,000/- drawn on Imdad Co-operative Society, Old Town, Bhadravathi. However, the said cheque of `1,65,000/- returned dishonoured when presented for realization.
The plaintiffs have also stated that the plaintiffs, more particularly, plaintiff No.1 has never entered into Partition Deed with the defendants. However, the defendants created a spurious document dated 03.06.1999 and got it registered before the Sub- Registrar, Bhadravathi, for which, plaintiff No.1 was not a signatory. However, the defendants apart from creating the said Partition Deed also got plaintiff No.1 impersonated through a third party before the Sub- Registrar and got it registered. The plaintiff No.1 further says that they along with defendants are tenants in common and are governed by Hanafi Mohammedan law of Succession. The plaintiffs and defendants are in joint possession and enjoyment of the suit schedule property. The plaintiffs having failed to get their legitimate share also made a representation to C.M.C, Bhadravathi requesting them not to change the khata of the immovable properties standing in the name of Sri Nazeer Ahamed Khan to the names of the defendant No.1. A similar representation was also given to the Tahsildar, Bhadravathi. However, defendant No.1 in collusion with some of the revenue officials got changed the plaint ‘A’ schedule property in her name. The plaintiffs have stated that plaintiff No.1 is entitled for a share of 8/64th and plaintiff No.2 and her sister Farhana Khanum are entitled to 7/64th share with respect to suit schedule ‘A’, ‘B’ and ‘C’ properties. With these, the plaintiffs have prayed for the relief of partition and separate possession of their share of 8/64th in favour of plaintiff No.1 and 7/64th for each of the remaining plaintiffs in suit schedule ‘A’, ‘B’ and ‘C’ properties. They have also prayed for a declaration and cancellation of the registered Partition Deed dated 03.06.1999 as ab-initio void and not binding on the right share of the plaintiffs. They have also prayed for the relief of permanent injunction and for appointment of Commissioner for survey and demarcation with respect to allotment of share of the plaintiffs. The plaint in three schedules include immovable properties in schedule ‘A’ and ‘B’ and ‘C’, the valuables in the form of gold worth of 2 kgs and silver worth of 60 kgs with a total estimated value of 20 lakhs and furniture worth of `2 lakhs said to be in the shop premises are all shown.
3. In response to the suit summons, defendant Nos.1 to 6 appeared through their counsel and filed their written statement. In their written statement, defendant Nos.1 to 6 though admitted that plaintiff No.1, defendant No.1 and defendant No.7 were the wives of late Nazeer Ahamed Khan but denied that defendant No.1 was a third wife of late Nazeer Ahamed Khan. They contended that the plaintiff No.1 was the third wife and defendant No.1 was second wife of said late Nazeer Ahamed Khan. Defendants did not deny the death of late Nazeer Ahamed Khan on 27.02.1999 and also not denied that he was running jewelry shop and dealing in the gold and silver articles. However, they denied that they amassed a large wealth and had given 10 kgs of gold and 100 kgs of silver to plaintiff No.1. They further denied that the defendants joined by the father of defendant No.1 and rowdy people entered the house of the plaintiffs and obtained by force her signature on blank stamped paper. They also denied that they had taken away valuables, gold and silver from the house of the plaintiffs. They denied that the suit property was in joint possession of both plaintiffs and defendants.
Defendant Nos.1 to 6 further contended that the plaintiffs have not approached the Court with clean hands. They specifically contended that after the death of Sri Nazeer Ahamed Khan, between the family of the plaintiffs and defendant Nos.1 to 6 and other family members, a settlement was arrived at on 03.06.1999 in the form of partition whereunder, the plaintiff No.1 for herself and on behalf of her minor daughters agreed to accept the cash of `12,65,000/-
and received the same in the presence of witnesses and also executed a document in that regard.
Defendant Nos.1 to 6 have further stated that defendant No.1 had executed a property transfer consent Deed dated 03.06.1999 in favour of the plaintiff No.1 for purchase of site with a building bearing khata No. 446, assessment No.453, NST Road, Old Town, Bhadravathi and for the purchase of the said property for a consideration of `5 lakhs, a sum of `2,50,000/- was paid by defendant No.1 to the plaintiff No.1. However, the said aspect was not shown in the Partition Deed dated 03.06.1999. The defendants further contended that apart from the above, proceeds of life insurance policy with Life Insurance Corporation of India against the life of Sri Nazeer Ahamed Khan, after his death, was also given to plaintiff No.1, which amounted for a sum of `81,992/-. Thus, all together plaintiffs were given in total sum of `15,96,092/-. However, the plaintiffs have suppressed all these aspects.
The defendants further stated that defendant No.7 since had no issues born to her from late Nazeer Ahamed Khan and she had already purchased some property during the life time of her husband Sri Nazeer Ahamed Khan under a registered Sale Deed dated 11.01.1982 and under another registered Sale Deed dated 13.07.1984 and also considering the fact that she was earning a substantial rental income from the same, she was not given any share in the suit schedule properties. Denying that plaintiffs are in any manner entitled for any share, much less, for the share, which they have claimed in their plaint and also denying that the plaintiffs are entitled for the relief, defendant Nos.1 to 6 prayed for dismissal of the suit.
By filing additional written statement, subsequent to the plaintiffs’ amendment to the plaint, the defendants denied the additional averments added to the plaint by the plaintiffs and reiterated that the plaintiffs have already taken their legitimate share in cash on 03.06.1999. As such, they are not entitled for any of the relief claimed by them.
4. Based on the pleadings of the parties, the trial Court framed the following issues:
‘1. Whether plaintiffs prove that the Registered Partition Deed dated 3.6.1999 was got created by defendants by misrepresentation and impersonation as contended in the plaint?
2. Whether plaintiffs further prove that there is no severance of tenants in common status between plaintiffs and defendants as contended in the plaint?
herself examined as PW1 and examined her brother one Sri. Bhasha as PW2 and got marked documents from Exs.P1 to P20. On behalf of defendant Nos.1 to 6, defendant No.4 led his evidence as DW1. The defendants also got examined one Sri.Meer Sharief and Sri.H. Pandarinath, as DWs2 and 3 respectively and got marked documents from Exs.D1 to D4. One Sri.D.Devendrappa, the senior Sub-Registrar of Bhadravthi was examined as CW1 and from him, a certified copy of the LTM register extract said to have been maintained in his office was marked as Ex.C1 and two signatures at Exs.C1(a) and C1(b).
6. The trial Court, after hearing the arguments from both sides, by its impugned judgment and decree dated 05.03.2014, while answering issue Nos.1, 2, 3 and 4 in the negative, proceeded to dismiss the suit and directed the plaintiffs to pay a Court fee of `75,375/-. It is against the said judgment and decree, the plaintiffs have preferred this appeal.
7. Respondent No.7 was served with notice but has remained absent.
8. Lower Court records were called for and the same are placed before this Court.
9. Heard the arguments of the learned counsel from both side and perused the materials placed before this Court, including the memorandum of appeal, the impugned judgment and the entire Lower Court Records.
10. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
11. In the light of the materials placed before this Court, the following points arise for my consideration in this appeal:-
‘i) Whether the plaintiffs have proved that the registered Partition Deed dated 03.06.1999 was a created document by defendants under misrepresentation and impersonation. As such, it is null and void and not binding on the right for the share in the property of the plaintiffs?
ii) Whether the plaintiffs are entitled for a share in the suit schedule properties as claimed by them?
iii) Whether the judgment and decree under appeal deserves an interference at the hands of this Court?’ 12. The undisputed facts are that the plaintiff No.1, defendant No.1 and defendant No.7 are the wives of one late Sri Nazeer Ahamed Khan and that they are all musilms. It is also an admitted fact that said late Sri Nazeer Ahamed Khan died on 27.02.1999 intestate.
The contentions of the plaintiffs that plaintiff No.1 was first married to one Sri. Mohammed, S/o Rasheed, a resident of Dubai (UAE) and that she lived with her said husband for about eight years and gave birth to two sons and one daughter is not denied by the defendants. Similarly, the plaint averment that said Mohammed, the first husband of plaintiff No.1 died out of Cancer. As such, plaintiff No.1 along with her son Barkath Ulla and daughter Shama Begum returned to India for settling here in the year 1981, is also not specifically denied by the defendants. Similarly, the plaint averment that defendant No.7 was first married to one late Subre Rehaman Sab and begot a son through him is also not been specifically denied by the defendants. Further, the plaint averment that late Sri Nazeer Ahamed Khan, the husband of plaintiff No.1, defendant No.1 and defendant No.7 was doing business as a Jeweler and dealing in gold and silver articles in Bhadravathi Town is also not denied from the defendants’ side.
However, defendants have specifically denied that the plaintiff No.1 was in possession of huge quantity of gold and silver not less than 10 kgs of gold and 100 kgs of silver and that she had sold those valuables under threat and that the amount of `11 lakhs and another sum of `1,65,000/- was given to her in the form of cheques towards the alleged sale consideration of the alleged sale of those gold and silver. Simultaneously, the defendants have also denied the contentions of the plaintiffs that the Partition Deed dated 03.06.1999 was a created documents and plaintiffs were not parties to the said documents. It is keeping these admitted, not disputed and disputed aspects into consideration, the evidence led by both sides are required to the analysed.
13. Plaintiff No.1 as PW1 in her examination-in- chief in the form of affidavit evidence has reiterated the contentions taken by the plaintiffs in the plaint. She specifically stated that she was not a party to the alleged Partition Deed dated 03.06.1999 and the defendants by impersonation have created a spurious document. She also stated specifically that father of defendant No.1 by name M. Zainnullabuddin and his seven brothers and rowdy elements entered her house and have illegally taken gold and silver ornaments. They also obtained her signature on a blank stamped paper. She further specifically stated that at the threat to her life and for safety of her daughters, she unwillingly agreed to sell gold and silver ornaments in favour of said M. Zainnullabuddin, who issued her a cheque for a sum of `11 lakhs and another cheque of `1.65 lakhs. However, cheque for `1.65 lakhs returned dishonoured when presented for realization.
PW-1 produced and got marked Death Certificate of her husband Sri Nazeer Ahamed Khan at Ex.P1, Khata transfer endorsement issued by City Municipality, Bhadravathi and dated 06.08.1996 at Ex.P2, the Property Tax assessment extract with respect to the property bearing No.2811 of Bhadravathi at Ex.P3. One more similar document at Ex.P4. A Mutation register extract at Ex.P5. A certified copy of the mutation register extract of another date at Ex.P6. Four RTC extracts at Exs.P7 to P10. One more mutation extract bearing M.R.No.14/2008-09 at Ex.P11. An endorsement issued by Old Town Police at Ex.P12. A copy of objection cum complaint dated 24.10.2009 by plaintiff No.1 to the CMC, Bhadravathi and to the Tahsildar, Bhadravathi respectively at Exs.P13 and P14. The Crop Certificate at Ex.P15 and two land cultivation Certificate at Exs.P16 and 17 respectively. She also produced two encumbrance certificate at Exs.P18 and 19. A Bank Pass Book pertaining to Saving Bank Account bearing No.22049/40 at Canara Bank, Channagiri Road, Bhadravathi was marked at Ex.P20.
PW-1 was subjected to a detailed cross- examination wherein, she admitted that defendant No.1 was the second wife of Sri Nazeer Ahamed Khan and defendant No.7 was his 1st wife, as such, she (PW1) was the third wife of the plaintiff. She denied suggestions made from the defendants’ side that she has on behalf of all the plaintiffs entered into a Partition Deed dated 03.06.1999 by accepting a consideration of a sum of `12,65,000/- and that the said document was registered on 08.06.1999. She denied that Ex.D1 is the said Partition Deed and that it bears her signature and left thumb mark.
14. One Sri.Basha, the brother of plaintiff No.1 was examined as PW2. The said witness in his examination-in-chief in the form of affidavit evidence has stated about the marital status of plaintiff No.1. He also stated that plaintiff No.1 was first married to Sri Mohammed Rasheed and while residing with him in Dubai, plaintiff No.1 gave birth to three children. He also stated that by the death of said Mohammed Rasheed, his sisters along with her children returned to India and settled at Bhadravathi. He has further stated that his sister had brought gold and silver along with her while returning to India. She was married to Sri Nazeer Ahamed Khan, who also died in the year 1999. The witness stated that after the death of Sri Nazeer Ahamed Khan, defendant No.1’s father, with his seven brothers and followers went to the plaintiffs house and attempted to take away gold and silver but failed in his attempt. Again after two to three days, the same persons came and obtained signature of plaintiff No.1 on a blank stamped paper by putting her under threat. He also stated that subsequently, father of defendant No.1 agreed to purchase gold and silver ornaments from his sister for sum of `12,65,000/-. Accordingly, he gave two cheques one for a sum of `11 lakhs and another for a sum of `1.65 lakhs. The witness specifically stated that there was no registered partition taken place between his sister and defendant Nos.1 to 6 to his knowledge. He stated that by impersonation, the documents might have been created.
In his cross-examination, PW2 denied the suggestions made to him about the plaintiffs’ being the parties to the alleged Partition Deed dated 03.06.1999.
15. Defendant No.4 as DW1 in his examination- in-chief in the form of affidavit evidence has reiterated the contentions taken up by defendant Nos.1 to 6 in their written statement. He has stated that the contention of the plaintiffs that his father flourished in business because of the alleged financial assistance said to have been made by plaintiff No.1 is false. He stated that his father, who was running a jewelry shop in the name of ‘Nazeer Ahmed Jewelers’ at Bhadravathi died on 27.02.1999. He stated that the entire suit schedule property is self acquired property of his father. He stated that the contention of the plaintiff that father of defendant No.1 joined by other people trespassed into the house of plaintiffs and taken away the valuables including the gold and silver were also false. He also stated that the contention of the plaintiffs that plaintiff No.1 sold huge quantity of gold and silver to the father of defendant No.1 and in return two cheques were given totaling to a sum of `12,65,000/- is also false. On the other hand, he stated that those two cheque amounting to `12,65,000/- were given to the plaintiffs as consideration and as a part of their share in the Partition Deed dated 03.06.1999. He stated that the partition was entered into between the plaintiffs and defendants, which Deed came to be registered subsequently. He also stated that apart from the same, the plaintiffs’ had also secured a house at the cost of `5 lakhs for their residence by his father and Life Insurance Policy proceeds of a sum of `81,992.40 was also given to plaintiff No.1 after the death of his father. In his support, he produced the original registered Partition Deed dated 03.06.1999 and got it marked at Ex.D1. Marked some of the signatures therein at Ex.D1(a) to D1(d). A letter issued by Life Insurance Corporation of India was got marked by him at Ex.D2. A certified copy of the Sale Deed dated 06.08.2003 and General Power Attorney were got marked by him at Exs.D3 and D4 respectively. The witness was subjected to detailed cross-examination, wherein, for all the suggestions made to him from the plaintiffs’ side suggesting the case of the plaintiffs was not admitted as true by him. On the other hand, he has denied all those suggestions put to him.
16. One Sri.Meer Sharief, S/o of M.D.Sharief was examined as DW2 from the defendants’ side. In his examination-in-chief in the form of affidavit evidence, he has stated that the suit schedule property is the self acquired property of the deceased Sri Nazeer Ahamed Khan, who died on 27.02.1999. The deceased was known to him and is also aware of the suit transaction. After the death of Sri Nazeer Ahamed Khan, a dispute arose with respect to the property of the deceased, as such on 03.06.1999, the parties expressed their intention to enter into a Partition Deed. As such, on 08.06.1999, a Partition Deed was registered in the office of the Sub-Registrar.
As per the said Partition Deed, plaintiffs received a sum of `12,65,000/- from the first defendant and agreed to relinquish her rights. He too has signed the said document as a witness along with one Sri. M. Zainnullabuddin. The said document was prepared in the presence of one Sri.H.Pandarinath, an advocate. At that time, all the parties including the plaintiff No.1 was present. The witness identified the said Partition Deed at Ex.D1 and his signature therein at Ex.D1(a) and the signatures of the plaintiff No.1 at Ex.D1(d). He was subjected to a detailed cross- examination wherein, he adhered to his original version.
17. One Sri.H.Pandarinath, an advocate from Bhadravathi was examined as DW3. In his examination-in-chief in the form of affidavit evidence, the said witness has stated that he knows the parties to the suit and also late Sri Nazeer Ahamed Khan, the husband of defendant No.1, who was running a jewelry shop in Bhadravathi. He has stated that after the death of Sri Nazeer Ahamed Khan, the parties to the suit approached him on 03.06.1999 expressing their desire to partition the property. As such, by obtaining the documents and opinion from them, he verified the same and prepared the Partition Deed, which he read over to both the parties. The same was prepared on a stamped paper and was got registered in the office of Sub-Registrar on 08.06.1999. The witness has also stated that he read over the contents of the Partition Deed, which the parties have understood and have put their signatures in his presence. At that time, the plaintiff No.1 was also present before him. This witness also identified the said Partition Deed at Ex.D1 and stated that DW2 and one Sri.M.Zainnullabuddin have also put their signatures to the said document. The witness has identified his signature at Ex.D1(c) and stated that plaintiff No.1 has also put her signature in urdu language. He was also subjected to a detailed cross- examination wherein, he adhered to his original version.
18. One Sri.D.Devandrappa, Senior Sub- Registrar at Bhadravathi was examined as CW1. In his examination-in-chief from the side of the defendants, the witness has stated that he is producing two registers as per the summons issued to him by the Court. A Partition Deed between plaintiff No.1 and defendant Nos.1 and 2 was registered in his office on 08.06.1999. He has produced a copy of the register stating that it contains the signature and thumb mark of the executants to the documents and got them marked at Ex.C1 and signature of the plaintiff No.1 therein at Ex.C1(a) and C1(b). In his cross- examination, from the defendant’s side, he has given some more details as to how the execution and registration procedure would be conducted in his office. He also admitted a suggestion as true that there are possibilities of impersonation in the execution of the document.
19. It is not in dispute that the deceased had the suit schedule properties standing in his name. The revenue documents produced by the plaintiffs in support of their case also corroborates the said aspect, which is not in serious dispute from the defendants’ side. It is also not seriously disputed that the plaintiffs have approached to the municipal authorities and the jurisdictional Tahsildar about the transfer of khata to be made in the name of defendant Nos.1 to 6 after the death of Sri.Nazeer Ahamed Khan. As such, the complaint and objections made by the plaintiffs as per Exs.P13 and 14 are also not seriously disputed. However, the point of serious dispute is about the execution of the alleged Partition Deed at Ex.D1. According to the plaintiffs, plaintiff No.1 has not executed the said document. However, somebody has impersonated her and got the said document executed. The plaintiffs have also taken a contention that plaintiff No.1 had brought huge wealth in the form of gold and silver while returning from Dubai in the year 1980-81 and that she had given gold and silver to her husband for investment in his business. The plaintiffs through PW1 have also stated that the deceased has returned additional gold and silver to plaintiff No.1 as a mark of her sacrifice. It is these contention of the plaintiffs, which have been in serious dispute.
20. The contentions of the plaintiff No.1 that she had brought huge quantity of gold and silver while her return from Dubai has admittedly not been supported with any documents except her oral testimony and the evidence of her brother i.e., PW-2.
The plaintiff No.1 as PW-1 both in the plaint, as well in examination-in-chief has stated that while she was returning from Dubai after the death of her first husband, has brought huge quantity of gold and silver ornaments. The same has been seriously disputed by the defendants. Admittedly, the plaintiff No.1 has not produced any documents to show that she had brought any such worth or valuables with her. No doubt, she has stated in her cross-examination that in a communal riot which is said to have been taken place in the year 1984, her house was burnt, as such, all the documents which she was in possession of have been burnt and destroyed, however, in the very same cross-examination, she has further stated that she had disclosed all the ornaments which she had brought from Dubai to the Customs authority, still, she did not attempt to secure the duplicate copies of the documents from the Customs authority. The said statement of PW-1 in her cross-examination goes to show that though she could able to secure necessary documents or at least, copies of the documents to substantiate her contention that she had brought valuables in the form of gold and silver ornaments while returning from Dubai to India, she has failed to make any attempt to secure documents in that regard. As such, despite she having an opportunity of producing the documents, she did not do it. Thus, the said contention of PW-1 that she had brought huge quantity of gold and silver ornaments while coming back to India remains not established.
Secondly, it is also the contention of the plaintiffs both in the plaint, as well in the evidence of PW-1 that after the death of Nazeer Ahamed Khan, within a span of three days, the defendant Nos.1 to 4 and the 1st defendant’s father Sri M.Zainnullabuddin and his seven brothers and rowdy elements, with an intention to take away the gold and silver ornaments, illegally entered her house and taken all gold and silver ornaments. When PW-1 resisted, they insisted her to execute a document and she executed document on a stamp paper. Thus, according to the plaintiffs, as well PW-1, within three days of the death of her husband – Nazeer Ahamed Khan, the defendants joined by the other people, barged into her house and taken all gold and silver ornaments. Though the said contention was not admitted by the defendants, still, the very pleading of the plaintiffs, as well, the very evidence of PW-1 in its further part, is contradictory to what the contention of the plaintiffs at the earlier was. It is because the very same plaintiffs and the very same PW-1 in the very same plaint, as well in the very same examination-in-chief as PW-1, have further stated that those defendants and their henchmen once again visited her house after seven to eight days and insisted for gold and silver ornaments so that the sale price would be given to her towards the gold and silver items. Due to threat to her life and to that of her daughters, she unwillingly agreed to sell the gold and silver ornaments in favour of Zainnullabuddin and he issued a cheque for a sum of `11 lakhs and another cheque for `1,65,000/-.
In her cross-examination, PW-1 has given some more details as to the alleged forcible sale of her valuables to the father of defendant No.1 by stating that when those defendants had come to her house and forced to sell the gold and silver ornaments, they had taken 10 kgs. of gold and 3 kgs. of silver from her. This statement that the defendants during their alleged second visit to the house of the plaintiff, they took 10 kgs. of gold and 3 kgs. of silver would falsify her earlier statement, as well the pleading that within three days of the death of Nazeer Ahamed Khan, the defendants barged into her house and taken away all gold and silver ornaments. Thus, the pleading and the evidence from the plaintiffs’ side within themselves are contradictory to each other.
That apart, had really the defendants, joined by their henchmen, barged into her house and threatened with dire consequences and taken away the valuables, which according to the plaintiffs, were gold and silver ornaments, that too, in huge quantity, she was expected to lodge a police complaint without further delay. Admittedly, in the instant case, not just immediately after the alleged first visit of the defendants to her house and the alleged taking away of all the gold and silver ornaments, but, also even after the alleged second visit of the defendants after seven to eight days thereafter, who alleged to have forcibly taken away 10 kgs. of gold and 3 kgs. of silver, the plaintiffs, more particularly PW-1, has not chosen to lodge any police complaint nor even to take any appropriate action against those alleged persons. Thus, it is not only the plaint averments of the plaintiffs, as well the evidence of PW-1 that they had kept in their house a huge quantity of gold and silver running to several kgs. creates doubt, but, also their further alleged inaction towards the alleged taking away of those valuables by the defendants would further strengthen the suspicion in believing the case of the plaintiffs. Therefore, in the absence of any piece of document, a mere self-serving oral testimony of PW-1 that the defendants had taken all the valuables running into several kgs. of gold and silver from her house remains hard to believe.
Thirdly, the case of the plaintiff No.1 is further that it is Zainnullabuddin, who is said to be the father of defendant No.1, and his seven brothers and other rowdy people who within four days of the death of her first husband, barged into her house and took away all the gold and silver items from her house. Further it is also the case of the plaintiff No.1 that the very same defendants have once again visited her house after seven to eight days of their previous visit to her place and threatened her of dire consequences. According to the plaintiffs and PW-1, at that time, she agreed to sell 10 kgs. of gold and 3 kgs. of silver to the said Zainnullabuddin. It is not understandable as to when the very same person is said to have taken away large quantity of gold and silver from criminally trespassing into her house and against her consent, which basically amounts to a serious criminal offence, still, how come the very same plaintiff agreed to sell further large quantity of gold and silver to the very same person. This also further strengthens the doubt in the case of the plaintiffs.
The plaintiffs though have examined PW-2 in support of their case, admittedly the said witness is the brother of PW-1 and even according to him, he was not an eye witness to the alleged incidents of the defendants entering into house of the plaintiff and taking away the valuables. Though he has narrated about the alleged incident on the similar lines as that of PW-1, but, no where he has stated that he was present when the alleged incident took place or attempted to prevent the same. Had the alleged incident of taking away the valuables from the house of the plaintiffs really taken place in the same manner as narrated by the plaintiffs, then, it was expected that PW-2 being the brother of PW-1, who was his widowed sister, should have necessarily taken immediate preventive measures or legal actions against the alleged miscreants. Even he has also not whispered anything about what steps he had taken, at least, in taking his sister to the police station and getting a complaint lodged through her. Further, said PW-2 in his examination-in-chief has stated that when the defendants, including Zainnullabuddin and the alleged rowdy elements visited the house of plaintiff No.1 within three days of the death of Nazeer Ahamed Khan, they attempted to take the valuables, but, they could not. The said evidence of PW-2 is contrary to the pleading and the evidence of PW-1, according to whom, the intruders i.e., Zainnullabuddin, his brothers and other henchmen were successful in taking away all the gold and silver items from her house in the first visit itself. As such also, the evidence of PW-2 does not run in consonance with that of PW-1 and creates serious doubt in believing the same.
Fourthly, it is the case of the plaintiffs that the payment of `11 lakhs and another sum of `1,65,000/- in the form of two cheques to them was towards the alleged sale consideration of 10 kgs. of gold and 3 kgs. of silver by PW-1 to Zainnullabuddin. According to the plaintiffs, the said Zainnullabuddin was also running a jewellary shop. If that were to be the case, then, there ought to be some documentation regarding alleged sale of such a huge valuables by the plaintiffs in favour of said Zainnullabuddin. Admittedly, there is no piece of document evidencing the alleged sale of those articles in favour of said Zainnullabuddin. On the other hand, the Partition Deed at Ex.D-1 clearly narrates as to what that consideration was. It mentions clearly that the said amount of `12,65,000/- was as the share that was going to the plaintiffs under the Partition Deed dated 3.6.1999, which came to be registered on 8.6.1999.
21. From the defendants’ side, apart from the evidence of DW-1, they have examined two more witnesses as DW-2 and DW-3. Said DW-2 claims himself to be a known person to Nazeer Ahamed Khan, the husband of PW-1 and DW-1 and has stated that, after the death of Nazeer Ahamed Khan, the parties to the Partition Deed dated 3.6.1999, decided to partition the property of deceased Nazeer Ahamed Khan, as such, they entered into a Partition Agreement dated 3.6.1999. The witness has also stated that he is a signatory to the said document as a witness. He has also stated that the said document was registered with the office of the Sub-Registrar, Bhadravati, on 8.6.1999. DW-2 has not only identified the said document at Ex.D-1, but, also identified and got marked his signature and that of PW-1 at Ex.D-1(a) and Ex.D-1(b) respectively.
Even in his cross-examination, he adhered to his original version. He has given more details as to in which place the negotiation took place and where the document was drafted and prepared. He has disclosed the name of one Sri Pandarinath, who was said to be a practicing advocate and stated that it was in his office, the settlement towards partition took place and he subscribed his signature to the alleged document in the same place. He denied that the registration of that document on 8.6.1999 was by impersonation in the place of PW-1. The statement of the witness that he knows deceased Nazeer Ahamed Khan and about his business has not been denied in his cross-examination. Therefore, undisputedly being a known person to the family of the deceased Nazeer Ahamed Khan, he being acknowledged in the alleged settlement between the wives of Nazeer Ahamed Khan with respect to sharing of the property, the same cannot be ruled out. This is also for the reason that his description about when and how the alleged settlement and entering into Partition Deed took place has been further corroborated by the evidence of DW-3.
22. DW-3 – H.Pandarinath, an Advocate practicing at Bhadravati, has stated that he knows Nazeer Ahamed Khan, who was running a jewellary shop in N.S.T. Road, at Bhandravati. He has stated that the suit schedule properties were self-acquired properties of said Nazeer Ahamed Khan. After his death, the parties to Ex.D-1 decided to partition the properties among themselves. As such, on 3.6.1999, all of them came to his house along with the documents and it is after hearing them and verifying the documents placed before him, he prepared the draft Partition Deed. He has also stated that he not only prepared the Partition Deed, but, also read it out to the parties, who have all understood the contents of the said document. It is only thereafter, they all executed the document in his presence.
The said witness even in his cross-examination adhered to his original version and has given some more details as to what opinions they gave regarding the partition and what are all the documents they have produced before him. This witness in his cross- examination has identified the signatures in all the pages of Ex.D-1 as the signature of PW-1. Thus, the evidence of DW-3, who is a practicing advocate, that he prepared the Partition Deed at the request of both the parties to the suit and that the said Partition Deed was executed in his presence in his office is corroborated by the evidence of DW-2, which evidence of these two witnesses, further corroborates the evidence of DW-1 that such a partition took place on 3.6.1999, wherein herself and her children and also the plaintiffs were the parties to the document.
23. The Sub-Registrar who was examined as CW-1 has also given his evidence about the parties to the document presenting the document at Ex.D-1 for registration before him on 8.6.1999. He has given the details as to when the said document was produced before him and how he registered the said document. He also produced the Register of the registration, which includes the signature and the thumb impression. Though the said witness has not specifically identified as the signature or the thumb impression of plaintiff No.1 as hers in the document, but, he said that plaintiff No.1 was present and in his presence, the document was registered in the presence of the parties to the Partition Deed at Ex.D-1.
24. This evidence of DW-2, DW-3 and CW-1 makes it trustworthy and corroborates the case of the defendants that the Partition Deed was not a document either by misrepresentation or by impersonation, but, PW-1 knowing fully well the nature of the document, had executed it out of her own volition. In such a situation, merely because PW-1 in her cross-examination denies her signature in Ex.D-1 itself does not warrant referring of the said signature to a Handwriting Expert. The evidence of eye witnesses i.e., DW-2 and DW-3 and the evidence of CW-1 with respect to the registration of the document at Ex.D-1 would all could clearly establish that it was PW-1 herself who has put her signature after knowing the contents and nature of Ex.D-1. As such, the very contention of the plaintiff No.1 that her signature was taken on a blank paper in forcible manner is not acceptable.
25. Lastly, it is the case of the plaintiffs that the document at Ex.D-1 was obtained by fraud and that there was her impersonation at the time of registration of the said document. As already observed above, the aspect of the registration of the said document by impersonation could not able to be established by her. Further, it is the settled principle of law that the person who alleges the fraud in any transaction is required to establish the same. In the instant case, the plaintiffs though have alleged the fraud said to have been played in getting Ex.D-1 executed, as observed above, could not able to establish the same. As such, the contention of the plaintiffs that existence of Ex.D-1, the Partition Deed, was a result of fraud, has fallen short of proof. The result is that the plaintiffs have failed to establish that there was no partition between the plaintiffs and the defendants and Ex.D-1 was a document obtained by fraud or under impersonation.
26. The trial Court after appreciating all the materials placed before it, including the evidence in its proper perspective, has given proper finding to the issues framed by it and has rightly held that the plaintiff No.1 has failed to prove her case. The trial Court has also observed that since the relief sought for by the plaintiffs was for declaration, the necessary Court fee is required to be paid by the plaintiffs.
27. Though the learned counsel for the appellants in his argument submitted that the finding of the trial Court with respect to deficiency in the Court fee is incorrect, but, except making a single sentence statement, he could not enunciate as to how the finding of the trial Court with respect to deficiency of the Court fee is erroneous. On the other hand, admittedly the relief sought for by the plaintiffs is to declare that the Partition Deed dated 3.6.1999 as null and void ab initio and is also not binding on her. Further they have also prayed for cancellation of the said document. As such, the trial Court considering the relief sought for by the plaintiffs and also the quantum of Court fee that was paid, has observed that there is deficiency in the payment of the Court fee. As such, it directed the plaintiffs to pay the deficit Court fee, in which finding of the trial Court, I do not find any error.
In view of the fact that trial Court’s direction to pay the deficit Court fee of `75,375/- is not found fault with, the appellants who have valued the appeal under Section 49 of the Karnataka Court Fees & Suits Valuation Act, 1959, are required to pay not only the said deficit Court fee ordered in the suit by the trial Court, but, also the same Court fee even in this appeal also. Their failure to pay the deficit Court fees would lead to recover the same from the plaintiffs/appellants as arrears of land revenue.
In view of the above reasoning, I do not find any reason to interfere in the judgment and decree under appeal.
28. Accordingly, I proceed to pass the following order:
ORDER The Appeal is dismissed. The judgment and decree dated 5.3.2014, passed by the learned Prl.Senior Civil Judge & J.M.F.C., at Bhadravathi, in O.S.No.38/2009, is confirmed.
The appellants to pay the deficit Court fee of a sum of `75,375/- even in this appeal also within four weeks from today. The said deficit Court fee ordered both in the Original Suit, as well in this appeal if not paid within the said period, the Registry of this Court to take appropriate steps for recovering the same as arrears of land revenue in accordance with law.
In view of dismissal of the appeal, IA.No.1/2014 does not survive for consideration.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court without delay.
Sd/- JUDGE dn/bk