IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY 2016 BEFORE THE HON’BLE MR.JUSTICE PRADEEP D. WAINGANKAR REGULAR FIRST APPEAL NO.466/2012 BETWEEN:-
1. SMT. SHATAJ BEGUM AGED ABOUT 44 YEARS W/O SHOUKATH ALI KHAN R/AT. No.200/1518/2540 NALBANDWADI MOHALLA MAIN ROAD RAMANAGARAM TOWN.
2. SMT. SHAMEEM TAJ W/O SYED AMANULLA AGED ABOUT 42 YEARS R/AT. No.66, 4TH CROSS NEW GURAPPANA PALYA BANGALORE – 560 029.
(BY SRI: YOUNOUS ALI KHAN, ADV.,) AND:-
1. AFSAR PASHA AGED ABOUT 37 YEARS S/O LATE MOHAMMED KHALEEL.
2. KOUSAR PASHA S/O LATE MOHAMMED KHALEEL AGED ABOUT 32 YEARS.
3. SMT. SHARFUNNISSA AGED ABOUT 70 YEARS ... APPELLANTS W/O LATE MOHAMMED KHALEEL.
RESPONDENTS No.1 TO 3 ARE R/AT. No.40, 6TH CROSS, 8TH MAIN GUPTA LAYOUT JAYANAGAR 3RD BLOCK BANGALORE – 11.
... RESPONDENTS (BY SRI: M. SYED ROOHULLA, ADV., FOR R-1 & R-2 SRI: MANZOOR PASHA, ADV., FOR R3) THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:17.12.2011 PASSED IN O.S.26687/2007 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYO HALL, BANGALORE, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 01.02.2016, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
J U D G M E N T By judgment and decree dated 17.12.2011, a suit for partition filed by the plaintiffs in O.S.No.26687/2007 came to be decreed granting 1/6th share to each of the plaintiff Nos.1 and 2 in the suit schedule properties by 28th Additional City Civil Judge at Mayohall Unit, Bangalore.
2. Aggrieved by the judgment and decree, the defendant Nos.2 and 3 have preferred this appeal questioning the legality and correctness of the judgment and decree.
3. The parties are referred as they are referred in the suit. The appellants are referred as ‘defendant Nos.2 and 3’, respondent Nos.1 and 2 as ‘Plaintiffs and respondent No.3 as ‘defendant No.1’.
4. One Mohammed Khaleel died on 07.09.1998 leaving behind his wife Sharfunnissa/defendant No.1, his two sons of Afsar Pasha, Kousar Pasha plaintiff Nos.1 and 2 and three daughters Shataj Beguam, Shammeen Taj, defendant Nos.2 and 3 and one Johar Taj who is not made as a party to the suit. Item No.1 of the schedule properties is the self- acquired property of the father Mohammed Khaleel and item No.2 said to have been purchased by Sharfunnissa-defendant No.1 who is the wife of Mohammed Khaleel. It is the case of the plaintiffs that defendant No.2 created a gift deed in her name in respect of item No.1 property as if the gift deed executed by defendant No.1 her mother. The case of defendant No.3 is that defendant No.1 executed the oral gift (Hiba) in favour of her husband in respect of item No.2 shown in the schedule property. After coming to know that the properties came to be entered in the name of defendant No.2 and husband of defendant No.3 in pursuance of alleged gift deed, the plaintiffs who are the sons of Mohammed Khaleel demanded their 1/6th share each in the schedule properties. Defendant Nos.2 and 3 declined to give their share alleging that they have become the absolute owners of the properties by virtue of the gift deed. As such, the plaintiffs filed a suit for partition in O.S.No.26687/2007.
5. Defendant Nos.2 and 3 contested the suit. They filed written statement. The sum substance of the written statement filed by defendant Nos.2 and 3 is that the item No.1 property has been gifted to defendant No.2 by defendant No.1, her mother by executing a gift deed and item No.2 has been gifted to the husband of defendant No.3 by oral gift by defendant No.1 and therefore, they have become the absolute owner of the schedule property and hence they sought for dismissal of the suit filed by the plaintiffs.
6. Based on the pleadings, the Trial Court framed the following issues:-
1) Whether the plaintiffs prove that they are the tenants in common, commonly enjoying the suit property on the date of suit?
2) Whether the plaintiffs are entitled for 1/4th share in the suit properties?
3) Whether the defendant No.2 and 3 prove that on 12.09.2001 defendant No.1 gifted the suit property to defendant No.2 in the presence of plaintiffs and defendant No.3, defendant No.2 became absolute owner in possession of the suit property?
4) Whether this court has no territorial jurisdiction to try this suit?
5) Whether the defendant No.1 proves that defendant No.2 and 3 and her son-in-laws misrepresented her and obtained her signature on blank stamp papers and created the deeds?
6) What order or decree?
7. The plaintiffs in order to prove their case examined plaintiff No.1-Afser Pasha as PW.1 and relied upon 7 documents marked as Exs.P1 to P7. Defendant Nos.1 to 3 were examined as DW.1 to DW.3 respectively. Exs.D1 to D6 were marked. Ex.D1 is a declaration in respect of oral gift in favour of the husband of defendant No.3 by defendant No.1. Ex.D2 is the Khata certificate. Ex.D3 is the gift deed said to have been executed by defendant No.1 in favour of defendant No.2 in respect of item No.1. Ex.D4 is the Khata certificate which shows that item No.1 property has been entered in the name of defendant No.2 on the strength of Ex.D3. Exs.D5 and D6 are also Khata certificates. The defendant No.1/mother who has been examined as DW.1 supported the case of the plaintiffs. She has denied having executed any gift deed either oral or by way of document and went on record to depose that both the so called gift deed and Hiba declaration had created and fabricated by the defendant Nos.2 and 3 just to knock off the properties. The Trial Court, on appreciation of evidence and upon hearing the submission made by the learned counsel appearing for the parties, recorded a finding that the so called gift deed and Hiba declaration are created and fabricated by defendant Nos.2 and 3 and thereby decreed the suit filed by the plaintiffs granting 1/6th share to each of the plaintiffs in both the schedule properties by the impugned judgment and decree. Aggrieved by the same, this appeal is preferred by defendant Nos.2 and 3.
8. I have heard the submission made by the learned counsel appearing for the parties. Perused the records.
9. The following points would arise for my determination:-
i) Whether the finding recorded by the Trial Court that gift deed and Hiba declaration are created documents is proper?
ii) Whether the division of the properties made by the Court below is proper?
Re. Point No.1 10. Admittedly, item No.1 of the schedule properties was acquired by the father of the parties to the suit Mohammed Khaleel and after his death the property came to be entered in the name of defendant No.1 his wife Smt.Sharfunnissa. Item No.2 is the self acquired property of Sharfunnissa. Defendant Nos.2 and 3 are married daughters. There was no reason for defendant No.1 to gift the properties to defendant Nos.2 and 3 the married daughters without giving any share in the property to another daughter Johar Taj. The case of the plaintiffs is that they are created documents. To prove the gift deed, the witnesses are not examined by defendant Nos.2 and 3. Defendant No.1 the mother who alleged to have executed a gift deed and Hiba declaration has categorically stated in her evidence that those documents were not executed by her and that by taking her signature on a blank paper they have been created. Further, item No.1 is the property acquired by Mohammed Khaleel, the father of the parties to the suit. In that case, defendant No.1 mother has no right to execute a gift deed in respect of entire item No.1 property. Thus, the Court below on appreciation of evidence and having regard to the relationship between the parties to the suit held that both the gift deed Ex.D3 and Hiba declaration Ex.D1 are created documents by defendant Nos.2 and 3. On my re-appreciation of evidence, I am in agreement with conclusion reached by the Court below.
Re. Point No.2 11. If both the Hiba declaration and gift deed are held to be created documents, then both the properties are available for partition between the parties to the suit. The parties are Mohammadens governed by Shariat law. In that case, plaintiff Nos.1 and 2 are entitled for 2/7th share each, defendant No.1 mother is entitled for 1/8th share, defendant No.2 and defendant No.3 and another daughter who is not a party are entitled for 1/7th share each in both the schedule properties. In that extent, the division made by the court below requires modification.
12. Hence, the appeal is allowed-in-part. The judgment and decree dated 17.12.2011 passed in O.S.No.26687/2007 on the file of the 28th Additional City Civil Judge at Mayohall Unit, Bangalore, stands modified holding that each of the plaintiff Nos.1 and 2 are entitled for 2/7th share, defendant No.1 is entitled for 1/8th share, defendant No.2-Shahtaj Begum, defendant No.3-Shameen Taj and one Johar Taj are entitled for 1/7th share each in both the items of the schedule properties by metes and bounds.
Draw a preliminary decree accordingly.
Sd/-
JUDGE PMR