THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
A.S.No.220 of 2009
JUDGMENT:
This Appeal Suit has been filed under Section 96 of the Code of Civil Procedure, 1908 (for short 'C.P.C.') by the appellants/plaintiffs being aggrieved by the Judgment and Decree dated 29.12.2008 passed in O.S.No.44 of 2003 by the learned Senior Civil Judge, Jagtial, whereunder the suit filed by the plaintiffs/appellants herein for partition and separate possession, was dismissed.
2. The appellants herein are the plaintiffs and the respondents herein are the defendants in the suit and they will be referred as they were arrayed before the Trial Court in the suit for the sake of convenience.
3. As could be seen from the material available on record including the impugned Judgment, it manifests that the plaintiffs are the sons of the first wife of defendant No.2, whereas while defendant No.1 and her husband Yaseen are grandparents of the plaintiffs. They stated that defendant No.2 developed illicit intimacy with defendant No.4 and begot two children and also willfully deserted the plaintiffs and their mother about 5 years back. From then onwards, they along with their mother have been PSS,J 2 A.S.No.220 of 2009 residing separately at Jagitial. Prior to that they lived in a joint family property left behind by their grandfather bearing Municipal No.5-6-97 (Old 4-3-78) situated at Jagtial, originally which stands in his name and after his demise it was nominally mutated in the name of defendant No.4. They also stated that their father- defendant No.2 constructed a house at Karimnagar bearing Municipal No.6-1-56 with joint family funds, but it was kept in the name of defendant No.4 to deprive their rights. As such, they are entitled to claim share as per Mohammedian Law. They stated that defendant No.2, who is the father of plaintiffs, after deducting 1/8th share to defendant No.1 is entitled to claim 7/16th, share out of which plaintiffs are entitled to get 7/48th share each and remaining 7/48th share to be claimed by defendant No.2. Plaintiffs demanded for partition on 01.08.2003, but defendant No.2 refused the same with an intention to deprive their statutory rights and therefore, they constrained to file the suit for partition. The scheduled properties mentioned under item Nos.1 and 2 are ancestral properties.
4. Defendant No.2, who alone contested the suit, had vehemently opposed the contentions of the plaintiffs by filing written statement as follows:
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a) His father died about 20 years back and he constructed a house bearing No.5-6-97 at Jagtial out of his self-earnings and gifted the said property to his wife/defendant No.1 and her name was also mutated in the municipal records. Since then she has been paying all the taxes to the concerned authority, as such neither plaintiffs nor defendant Nos.2 to 4 have any right over the said property and not liable for partition.
b) As far as item No.2 of the suit schedule property is concerned, it is the self-acquired property of defendant No.4. She acquired the said property as sridhana property and during her life time no one is entitled to claim any share, therefore it is not liable for partition. Plaintiffs suppressed all the facts with an intention to grab the third party properties of the defendants. His marriage was performed with the mother of the plaintiffs on 13.04.1975 and out of their wedlock, they were blessed with the plaintiffs. After six years of their marriage, in the year 1981, Shahada Begum/mother of the plaintiffs deserted him and filed maintenance case as well as criminal cases against him and the same were closed. Thereafter, she filed another case vide M.C.No.12 of 2003, which was pending on the file of Judicial Magistrate of the First Class, Jagtial, against him seeking maintenance.
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c) He further stated that on 14.06.1998, he pronounced 'Talak' in the presence of witnesses and returned all Jahaz articles and paid an amount of Rs.1,200/- towards mehar, Rs.625/- towards dinner rati and Rs.1,000/- towards iddath for 1000 days and Rs.62,600/- through demand draft to the mother of the plaintiffs towards her present and future maintenance and also towards relinquishment of all her rights against him. He also paid an amount of Rs.10,000/- each to the plaintiffs towards their shares, if any or otherwise in the ancestral property and from his property. The mother of the plaintiffs acknowledged the amount and also relinquished their entire rights. Despite receiving the said amounts, she got filed the suit by colluding with the plaintiffs. The schedule mentioned properties are joint family properties and plaintiffs were never in peaceful possession of the same as such the plaintiffs are not entitled to claim any share.
5. On the basis of the pleadings, the Trial Court has framed the following issues for consideration:
1) Whether the suit schedule property of item No.1 was exclusive property of D-1's husband and whether he has gifted the said property exclusively?
2) Whether item No.2 of suit schedule property is self acquired property of D-4?
3) Whether the plaintiffs are entitled to 7/48th share each in suit schedule property?
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4) Whether the plaintiffs are in joint possession of suit schedule property?
6. During the course of trial, the plaintiffs, to support their case, got examined PWs.1 to 3 and marked Exs.A.1 to A.4. The defendants, to support their case, got examined DWs.1 and 2 and marked Exs.B.1 and B.2. The trial Court, after considering the entire evidence on record, dismissed the suit.
7. Being aggrieved, this appeal has been filed on the following grounds:
a) Though they have filed Exs.A.1 to A.3 to establish that the suit schedule property is 'Matruka' property, the trial Court has given more weightage to the oral evidence of DWs.1 and 2 and without giving any weight to the documentary evidence held that item No.1 of the suit schedule property, which was gifted to defendant No.1 by her husband.
b) In fact, it is the self-acquired property of Yaseen and the plaintiffs are his grand-sons and being the legal heirs, they are entitled for share in the Matruka property. Therefore, the plaintiffs have filed O.S.No.44 of 2003 on the file of the learned Senior Civil Judge, Jagtial, for partition and separate possession against their grand-mother/defendant No.1, father/defendant No.2, uncle/defendant No.3 and defendant No.4/second wife of defendant No.2. During the pendency of suit, respondent No.1 PSS,J 6 A.S.No.220 of 2009 /defendant No.1 died as such, her legal heirs were brought on record vide I.A.No.1 of 2023 in A.S.No.220 of 2009, dated 10.08.2023 as respondent Nos.5 to 7.
c) The trial Court relying on the plea set up by the defendants, stated that the plaintiffs' mother received a sum of Rs.62,600/- towards permanent alimony from defendant No.2 and settled the dispute by way of compromise. As such, the plaintiffs are not entitled for any share in the property though they have got independent right in the plaint schedule property, which is different from the permanent alimony.
d) The trial Court held that there is no cogent evidence to establish that plaint schedule properties are joint family properties and further held that item No.2 was purchased from sridhana of defendant No.4. But the concept of sridhana is not applicable to Muslim personal law and the trial Court erred in relying on it. Further, the trial Court has held that suit for partition has not filed within a period of limitation i.e. 12 years and therefore, the suit is not maintainable and accordingly, dismissed the suit.
8. Heard the learned counsel for the plaintiffs as well as the learned counsel for the defendants and perused the material available on record.
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9. Now, the point that would emerge for determination is:
Whether the Judgment and Decree impugned in this appeal is sustainable under law or warrants interference of this Court?
10. On perusal of the entire material placed before this Court, it depicts that the plaintiffs have reiterated the contents of their plaint in the chief-affidavit of PW.1 and during the course of cross-examination, he stated that defendant No.1 got mutated the suit schedule property in the year 1998, after the death of their grandfather and that item No.1 is the self-acquired property of their grandfather. He stated that he along with his mother and brother was residing in the said property with defendant No.1 and they were necked out about five years back. He also stated that defendant No.4 is not the wife of defendant No.2, but she was kept mistress and got one daughter through her. He filed ownership certificate in respect of item No.2 of suit schedule property. He further stated that defendant No.2 has purchased the site with the amount given by his grandfather and constructed house with his earnings. His father was appointed in the State Bank of Hyderabad in the year 1994 as an attender. He also stated that defendant No.2 married his mother on 13.04.1975 and they lived together for six years and later, defendant No.2 eloped with defendant No.4. However, he denied the suggestions put to him PSS,J 8 A.S.No.220 of 2009 that defendant No.2 obtained divorce from his mother in the presence of elders and obtained a document attested by a Notary on 16.06.1998 and his mother also received Rs.62,600/- towards permanent alimony, Rs.10,000/- to plaintiff Nos.1 and 2 and relinquished their rights on behalf of them.
11. PW.2 was examined-in-chief but he did not turn up for cross-examination, as such his evidence was eschewed. PW.3, who is said to be close friend of his grandfather, stated that item No.2 was purchased by defendant No.2 and constructed a house by taking loan in the year 1991. In the cross-examination, he stated that father of defendant No.2 died in the year 1980 and he worked as attender in the Government School. He constructed a house with his self-earnings and he did not know about the oral gift given by Yaseen to his wife/defendant No.1. He further stated that he never visited item No.2 of suit schedule property at any point of time.
12. Defendant No.2 himself examined as DW.1 and he reiterated the contents of written statement in his affidavit and admitted the relationship with the plaintiffs. He further stated that he had taken defendant No.4 to his house in the year 1981 and that the mother of the plaintiffs has filed two maintenance cases against him. He filed counter in M.C.No.12 of 1987 pending on the PSS,J 9 A.S.No.220 of 2009 file of the Judicial Magistrate of the First Class on 23.03.1988 and that he gave divorce to her before Khazi, Karimnagar. He stated that item No.1 was purchased by his father and item No.2 RCC building was transferred through registered gift settlement deed in the name of defendant No.4 and he also stated that he did not know whether his father executed any gift deed in favour of defendant No.1 or not.
13. DW.2 is the co-brother of defendant No.2 i.e. wife of defendant No.2/Sultana Begum and the wife of DW.2 are sisters and he supported the version of DW.1 in toto. He also acted as witness in M.C.No.12 of 1987 filed by the mother of the plaintiffs. He stated regarding the gift settlement deed executed in favour of defendant No.4 vide document No.6685 of 2001 dated 19.11.2001 under Ex.B2.
14. There is no dispute regarding the fact that defendant No.2 is father and defendant No.1 is the grandmother of the plaintiffs. Plaintiffs have filed the suit for partition in item Nos.1 and 2 of suit schedule property and claimed 7/48th share to each of them. Whereas defendant No.2 stated that his father orally gifted item No.1 in favour of his mother/defendant No.1 and he gifted the item No.2 in favour of his wife. As such plaintiffs are not entitled for any share in the said properties. Defendant No.2 PSS,J 10 A.S.No.220 of 2009 further contended that he gave divorce to his first wife on 14.06.1998 itself and also paid an amount of Rs.62,600/- towards permanent alimony and apart from that he paid Rs.10,000/- to the plaintiffs in the form of demand drafts, thereupon, the mother of the plaintiffs has relinquished their rights over the properties. As such, they are not entitled for any share in the schedule properties.
15. The learned Counsel for the plaintiffs contended that no person other than Kartha can relinquish. Mother is not the coparcener and not Kartha, as such she cannot relinquish shares of her minor children. He relied upon the Judgment of the Hon'ble Apex Court in the case of Prasanta Kumar Sahoo v. Charulata Sahu, 1 in which it was held that "Relinquishment or alienation of undivided coparcenary interest of a coparcener in favour of another coparcener without the consent of that coparcener or the other coparcener is null and void."
He further submitted that the said law has also been held by the erstwhile High Court of Andhra Pradesh in Pasagadugula Narayana Rao v. Pasagadugula Rama Murthy, 2 wherein the Court has categorically held that:
1
2023 SCC Online SC 360 2 2015 SCC Online 346 PSS,J 11 A.S.No.220 of 2009 "Any relinquishment or release of a coparcener share can only be by way of a written instrument and in the absence, thereof a plea of release or relinquishment of share cannot be entertained."
16. Defendant No.2 at one point of time stated that item No.2 of the suit schedule property was constructed by defendant No.4 with the amount gifted by her parents and at another point of time stated that he gifted the property in favour of defendant No.4 and also filed a gift settlement deed in support of his contention. Whereas the plaintiffs have filed the ownership certificate issued for item Nos.1 and 2 along with market value of the said properties. The plaintiffs stated that even after desertion by defendant No.2 they along with their mother resided in the house of defendant No.1 and they were necked out about five years prior to the filing of the suit. When they demanded for partition, defendant No.2 refused to give their share, as such they filed a suit for partition.
17. Admittedly, item No.1 was purchased by the husband of defendant No.1 i.e., grandfather of the plaintiffs and after his demise, it was mutated in the name of defendant No.1. So also defendant No.2 had purchased item No.2 and the same was gifted to defendant No.4 to avoid share to the plaintiffs. There is no PSS,J 12 A.S.No.220 of 2009 dispute regarding the fact that the plaintiffs are children of defendant No.2 and also the properties shown in item No.1 is the ancestral property and item No.2 is the self-acquired property of defendant No.2.
18. As rightly held above, the mother of the plaintiffs cannot relinquish right of her minor children and thus, the plea of relinquishment of their right taken by defendant No.2 cannot be accepted. Defendant No.2 has not examined any of the elders of the panchayat in whose presence he paid an amount of Rs.62,600/- towards permanent alimony and Rs.10,000/- to the plaintiffs each through demand drafts and the terms of panchayat were never reduced into writing therefore the contention of defendant No.2 that he already paid permanent alimony to the mother of the plaintiffs and also paid of Rs.20,000/- to the plaintiffs towards relinquishment of rights, was not established and cannot be considered.
19. After meticulously scanning the entire material available on record, this Court is of the considered view that the right of the plaintiffs, who are grandchildren of defendant No.1, over the ancestral property cannot be legally relinquished by their mother on receipt of some amount towards permanent alimony. As such, the impugned Judgment and Decree is not sustainable PSS,J 13 A.S.No.220 of 2009 under law and warrants interference of this Court while exercising the jurisdiction under Section 96 of C.P.C. Further, the plaintiffs being children of defendant No.2 and grandchildren of defendant No.1, are entitled for the share, as claimed.
20. Under the circumstances narrated hereinabove, this appeal is allowed, with costs by setting aside the Judgment and Decree dated 29.12.2008 passed in O.S.No.44 of 2003 by the learned Senior Civil Judge, Jagtial.
Plaintiffs 1 and 2 are entitled for 7/48th share each in item Nos.1 and 2 of the suit schedule properties and preliminary decree is passed accordingly.
Pending miscellaneous applications, if any, shall stand closed.
_________________________ JUSTICE P.SREE SUDHA DATED: 10.10.2023 PNS PSS,J 14 A.S.No.220 of 2009 THE HONOURABLE SMT. JUSTICE P.SREE SUDHA A.S.No.220 of 2009 Dated 10.10.2023 PNS