Jeelakhabi @ Maltan Bi vs K.Basha S/O Bandi Imam Sab
2021 Latest Caselaw 1624 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 25 t h DAY OF FEBRUARY, 2021

                        PRESENT

    THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR

                          AND

           THE HON'BLE MR.JUSTICE P.N.DESAI

             RFA NO.100139 OF 2017 (PAR & POS)
BETWEEN

1. JEELAKHABI @ MALTAN BI,
AGED: 37 YEARS, OCC: HOUSEWIFE,
R/O: H.NO.2061, 22ND WARD,
BALLARI BY-PASS ROAD,
SHASTRI NAGAR, HOSAPETE,
DIST: BALLARI-583201.

2. K.SHAMEEM BANU
D/O K. MEHABOOB BASHA,
AGED: 19 YEARS, OCC: STUDENT,
R/O: H.NO.2061, 22ND WARD,
BALLARI BY-PASS ROAD,
SHASTRI NAGAR,HOSAPET E,
DIST: BALLARI-583201.

3. K.MOHAMMED AZEEM
S/O K. MEHABOOB BASHA,
AGED: 17 YEARS, OCC: STUDENT,
R/O: H.NO.2061,22ND WARD,
BALLARI BY-PASS ROAD,SHASTRI NAGAR,
HOSAPETE,DIST: BALLARI-583201.
MINOR, REPRESENTED BY
NEXT FRIEND SISTER K.SHAMEEM BANU
D/O K.MEHABOOB BASHA,
                               :2



AGED: 19 YEARS, OCC: STUDENT,
R/O: H.NO.2061,22ND WARD,
BALLARI BY-PASS ROAD,SHASTRI NAGAR,
HOSAPETE,DIST: BALLARI-583201.

4 . K.MOHAMMED MAHIL
S/O K. MEHABOOB BASHA,
AGED: 14 YEARS, OCC: STUDENT,
R/O: H.NO.2061,22ND WARD,
BALLARI BY-PASS ROAD,
SHASTRI NAGAR,HOSAPET E,
DIST: BALLARI-583201.
MINOR, REPRESENTED BY
NEXT FRIEND SISTER
K.SHAMEEM BANU D/O K.MEHABOOB BASHA,
AGED: 19 YEARS, OCC: STUDENT,
R/O: H.NO.2061,22ND WARD,
BALLARI BY-PASS ROAD,SHASTRI NAGAR,
HOSAPETE,DIST: BALLARI-583201.

5. K.NUSRATH JAHAN
D/O K. MEHABOOB BASHA,
AGED: 12 YEARS,R/O: H.NO.2061,
22ND WARD,BALLARI BY-PASS ROAD,
SHASTRI NAGAR,HOSAPET E,
DIST: BALLARI-583201.
MINOR, REPRESENTED BY
NEXT FRIEND SISTER
K.SHAMEEM BANU D/O K.MEHABOOB BASHA,
AGED: 19 YEARS, OCC: STUDENT,
R/O: H.NO.2061,22ND WARD,
BALLARI BY-PASS ROAD,SHASTRI NAGAR,
HOSAPETE,DIST: BALLARI-583201.

                                       ...APPELLANTS
(BY SRI. ANANT HEGDE, ADV.)
                           :3



AND

1 . K.BASHA S/O BANDI IMAM SAB,
AGED: 35 YEARS,
OCC: TILES EMBEDDING CONTRACTOR,
R/O: 9TH WARD, 1ST CROSS,
SIDDALINGAPPA CHOWKI,HOSAPETE,
DIST: BALLARI-583201.

2 . IQBAL HUSSAIN
S/O BANDI IMAM SAB,
AGED: 32 YEARS,
OCC: TILES EMBEDDING CONTRACTOR,
R/O: 9TH WARD, 1ST CROSS,
SIDDALINGAPPA CHOWKI,
HOSAPETE,DIST: BALLARI-583201.

3. BEGUM W/O BANDI IMAM SAB,
AGED: 55 YEARS, OCC: BEEDI SHOP,
R/O: 9TH WARD, 1ST CROSS,
SIDDALINGAPPA CHOWKI,
HOSAPETE,DIST: BALLARI-583201.

4. BANDI IMAM SAB,
S/O LATE HUSSAIN SAB,
AGED: 62 YEARS, OCC: SECURITY GUARD IN
PRIVATE FIRM, R/O: 9TH WARD, 1ST CROSS,
SIDDALINGAPPA CHOWKI, HOSAPETE,
DIST: BALLARI-583201.
SINCE DIED RESPONDENT NOS.1 TO 3 ARE
LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.4.

                                         ...RESPONDENTS

(BY SRI. GOURI SHANKAR H MOT, ADV. FOR R1-R3)

    THIS RFA IS FILED UNDER SEC. 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 09.09.2016 PASSED IN
                                    :4



O.S.NO.542/2014 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
HOSAPETE,    PART LY DECREEING  THE SUIT FILED  FOR
PARTIT ION AND SEPARATE POSSESSION.

    THIS APPEAL COM ING ON FOR FINAL HEARING THIS DAY,
SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:


                           JUDGMENT

Heard the arguments of Sri.Ananth Hegde, learned

counsel appearing for the appellants and Sri.Gouri

Shankar.H.Mot, learned counsel appearing for the

respondent Nos.1 to 3.

2. Defendant No.3 is the first appellant. Appellant

Nos. 2 to 5 were not parties in the suit. By judgment

dated 09.09.2016, the Prl. Senior Civil Judge & JMFC,

Hospet decreed the suit, O.S.No.542/2014, filed by

respondent Nos.1 and 2. The third respondent and the

deceased 4 t h respondent are defendant Nos.1 and 2

respectively in the suit. The suit was for partition and

separate possession in respect of three items of

properties described in the schedule to the plaint.

:5

3. The plaintiffs stated that they had equal share in

the suit properties. According to them they are the

members of the joint family. They also contributed

money for purchasing suit properties and construction of

the house. They alleged that defendant No.3 was

prosecuted for an offence punishable under Section 302

of IPC therefore, she has no share in the suit

properties. Defendant No.1 filed written statement and

the same was adopted by defendant No.2. They

consented for partition. Defendant No.3 who is appellant

No.1 here did not file written statement.

4. Sri.Ananth Hegde argues that the parties to the

suit are Mohammedans. There is no concept of joint

family among Mohammedans. The trial Court has

wrongly come to conclusion that the properties belong

to the joint family and therefore, the plaintiffs were

entitled to 1/5 t h share in item Nos.2 and 3 of the suit

schedule. Learned counsel submits that it is a wrong

finding. Actually, item Nos.2 and 3 properties were

purchased by husband of appellant No.1 and the :6

revenue records stood in his name. For this reason, the

plaintiffs cannot claim any right to seek partition in

these two properties. The trial Court has proceeded to

decree the suit as if the parties belong to joint family.

His further submission is that appellant No.1 did not file

her written statement because her counsel met with an

accident and was advised bed rest for about four

months. Appellant Nos.2 to 5 were necessary parties to

the suit, intentionally they were not made parties by the

plaintiffs. Therefore, he argued that judgment of the

trial Court requires to be set aside and the case

remanded for giving an opportunity to the appellants to

contest the suit.

5. Sri.Gouri Shankar H Mot submits that the

plaintiffs also contributed money for purchasing item

Nos.2 and 3 properties. All the parties were living

together in joint family and this is the reason for suit

being decreed. He places reliance on the judgment of

this Court between Shahajahan V/s. Fatima W/o

Abdul Gafar Hulkop and Others in :7

RFA.No.5813/2013 to argue that even among Muslims,

joint family exist.

6. The trial Court has held that the evidence on

record would disclose that item Nos. 2 and 3 properties

belong to the joint family consisting of the plaintiffs and

the defendants and they have equal share in the

properties. Though, the trial Court has arrived at a

conclusion that the revenue records pertaining to item

Nos.2 and 3 properties stood in the name of the

husband of defendant Nos.3, yet it came to conclusion

that plaintiffs could claim partition.

7. The parties to the suit are governed by

Mohammedan Law. There is no concept of joint family

among Muslim. In the commentary on Principles of

Mohammedan Law by Mulla, in Para 57, it is observed

that, if during the continuance of the family, properties

are acquired in the name of the managing member of

the family, if it is proved that they are possessed by all

members jointly, the presumption is that they are the :8

properties of the family, and not the separate properties

of the member in whose name they stand. For applying

this Principle, plaintiffs must plead and prove it. We do

not find such a pleading in the plaint in the present

case. That apart, it is not in dispute that item Nos.2 and

3 properties stood in the name of husband of defendant

No.3. The appellants have filed an application as per

I.A.No.4/2017 under Order XLI Rule 27 of CPC to

produce some documents for the purpose of establishing

that the properties stood in the name of K.Mehabbob

Basha the husband of the defendant No.3. We do not

want to deal with this aspect at length because of

another contention taken by the appellants. Appellant

No.1 could not file her written statement because of the

reason that her advocate met with an accident and was

bed ridden for about four months. Though in the

memorandum of appeal, that ground is not taken,

having regard to Order XLI Rule 2 of CPC we have

permitted the appellants to take such contention. In

view of the specific contention now urged by the :9

appellants' counsel, we are of the opinion that the

appeal deserves to be remanded so that the first

appellant can file her written statement. Appellant

Nos.2 to 5 were not parties in the suit. Since item Nos.

2 and 3 properties are said to have been purchased by

the husband of the 3 r d defendant, the appellant Nos.2 to

5 being the children of the 3 r d defendant, ought to have

been made parties in the suit. They are necessary

parties, for the 3rd defendant cannot represent her

children inasmuch as there is no concept of

representation under Mohammedan Law as is found in

Hindu Law. Since, the matter requires to be remanded,

the plaintiffs may implead them in the suit. Then the

documents sought to be produced along with

I.A.No.4/2017 may be produced by the appellants in the

suit. Therefore, we proceed to pass the following:

ORDER

Appeal is allowed. Judgment of the trial Court in

O.S.No.542/2014 on the file of the Senior Civil Judge,

Hospeth is set aside. Matter is remanded to the trial : 10

Court for fresh disposal. The first appellant i.e. the third

defendant is directed to file written statement within 30

days from the date of her appearance before the Court.

The respondents/plaintiffs shall implead appellant Nos.2

to 5 in the suit. All the parties shall appear before the

trial Court on 22.03.2021 without fail.

Registry to return all the documents produced

along with I.A.No.4/2017 to the appellants.

Sd/-

JUDGE

Sd/-

JUDGE VB/ -