Smt. Khatunabi W/O Maktumsab ... vs Smt. Maktumbi W/O Mattesab ...
2022 Latest Caselaw 3090 Kant

                            1


            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.S.A.NO. 100508 OF 2018

BETWEEN:

SMT.KHATUNABI
W/O MAKTUMSAB SAIYADKHANNAVAR
@ BINKADAKATTI
SINCE DECEASED BY LRs
APPELLANTS NO.1 TO 5
DIED ON 10.03.2018
DEATH CERTIFICATE IS PRODUCED

1. SMT. NOORJAN
W/O MEHABOOB SAB
DADAPPANAVAR
AGED ABOUT 54 YEARS,
OCC: HOUSEHOLD,
R/O HOUSE NO.488, NEAR KANNADA SCHOOL,
PLOT NO.488 OF GANGAIMADI
GANGIMADI GADAG-582101

2. SRI. MAHAMADALI
S/O MAKTUMSAB SAIYADKHANNAVAR
@ BINKADAKATTI
AGED ABOUT 52 YEARS,
OCC: PVT WORK, R/O AMBEDKAR NAGAR,
TQ: ANAND NAGAR LAST BUS STOP
HUBLI-580020.
                            2


3. SMT. MAKTUMBI
W/O MABUSAB GUTTAL
AGED ABOUT 51 YEARS,
NEAR KANNADA SCHOOL,
GANGIMADI GADAG-582101.

4. SRI.IMAMSAB
S/O MAKTUMSAB SAIYADKHANNAVAR
@ BINKADAKATTI
AGED ABOUT 49 YEARS,
OCC: DRIVER, R/O KALLIMATH ONI
NAVALAGUND TQ-582208.

5. SMT. HUSENABI
W/O HANIFSAB
BODLEKHANNAVAR
AGED ABOUT 46 YEARS,
OCC: HOUSEHOLD, R/O HOUSE NO.488,
NEAR KANNADA SCHOOL,
GANGIMADI GADAG-582101

                                    ...APPELLANTS

(BY SRI.SANTOSH.B.MANE, ADVOCATE)

AND:

1. SMT. MAKTUMBI
W/O MATTESAB SAIYADKHANNAVAR
@ BINKADAKATTI
AGED ABOUT 63 YEARS,
OCC: HOUSEHOLD WORK

2. SRI.IMAMSAB
S/O MATTESAB SAIYADKHANNAVAR
@ BINKADAKATTI
AGED ABOUT 50 YEARS,
OCC: PVT WORK.
                              3


(BOTH RESP 1 & 2 ARE RESIDENTS
OF KABARSTAN ROAD SUDAGAD SIDDAR
COLONY RAJEEV GANDHINAGAR
GADAG-582101

3. SMT. JANNATABI
W/O MAKTUMSAB TAHASILDAR
AGED ABOUT 48 YEARS,
OCC: HOUSEHOLD WORK,
R/O HOSPET ONI,
ANNIGERI VILLAGE OF NAVALAGUND
TALUK-582208.

4. SRI.RAJESAB MATTESAB
SAIYADKHANNAVAR @ BINKADAKATTI
AGED ABOUT 46 YEARS,
OCC: RAILWAY EMPLOYEE
R/O RAILWAY QUARTERS H.NO.267/B
GADAG-582101.

5. SRI.MAKTUMSAB
S/O MATTESAB
SAIYADKHANNAVAR @ BINKADAKATTI
AGED ABOUT 44 YEARS,
OCC: PVT WORK,
R/O HOUSE NO.1743,
NEAR KANNADA SCHOOL,
GANGIMADI GADAG-582101.

                                           ...RESPONDENTS

(BY SRI.J.S.SHETTY, ADVOCATE FOR R1-R5)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908,
AGAINST THE JUDGMENT AND DECREE DTD: 20.03.2018 PASSED
IN R.A.NO.114/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC, NAVALGUND, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DTD: 25.08.2015, PASSED IN
O.S.NO.394/2013 ON THE FILE OF THE CIVIL JUDGE AND JMFC,
                                 4


NAVALGUND, DISMISSING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION AND DECLARATION.

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THIS
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

The captioned second appeal is filed by the unsuccessful

defendants questioning the judgment and decree of the first

appellate Court in granting 1/4th share to plaintiff No.1 and

defendant No.1 in Survey No.530/2B+2C.

2. For the sake of convenience, the parties are

referred to as per their rank before the trial Court.

3. The brief facts of the case are as under:

(a)The plaintiffs filed a suit in O.S.No.394/2013 seeking

the relief of partition and separate possession. The plaintiffs

claimed that Survey No.530/2B is inherited by both the

plaintiffs and defendants after the death of Imamsab. The

plaintiffs further specifically claimed that the property bearing

Survey No.530/2C was jointly purchased by both the brothers

i.e. Makthumsab, who is the ancestor of the present

appellants-defendants and Mattehsab, who is the ancestor of

respondents-plaintiffs. The plaintiffs claim that these

properties are joint family properties and they are entitled for

their legitimate share in the suit schedule properties.

(b)Defendant No.4 on receipt of summons contested the

proceedings and stoutly denied the claim of the plaintiffs

insofar as property bearing No.530/2C is concerned. He

specifically claimed that his father purchased the property

under the registered sale deed dated 2.6.1970 and therefore,

it is his self acquisition. By way of counter claim, the

defendants sought absolute title over Survey No.530/2C.

(c)The trial Court on appreciation of the oral and

documentary evidence answered Issue No.1 in the negative

and held that plaintiffs have failed to prove that Makthumsab

and his brother Matthesab have jointly purchased the property

bearing No.530/2C. While examining Issue No.2, the trial

Court has come to the conclusion that the defendants have

succeeded in proving that Survey No.530/2C was purchased

by Makthumsab and therefore, was of the view that the

plaintiffs are not entitled for any share in Survey No.530/2C.

(d)Feeling aggrieved by the judgment and decree of the

trial Court, the plaintiffs preferred an appeal in

R.A.No.114/2015.

(e)The appellate Court on re-appreciation of the oral and

documentary evidence on record found that the trial Court

erred in not properly appreciating the oral and documentary

evidence on record. The appellate Court was of the view that

the trial Court has totally misread Ex.D1, which is the sale

deed pertaining to Survey No.530/2C totally measuring 2

acres 34 guntas. Referring to the recitals in the sale deed as

per Ex.D1, the appellate Court found that Survey No.530/2C

was purchased in the name of Muktumsab as the manager of

the family. These recitals would go against the claim of the

defendants. The defendants have contended that Muktumsab

was serving in Railway Department and out of his independent

earnings he had purchased this property. However, on

examining the material on record, the appellate Court found

that to substantiate this defence, the defendants have not

produced any documents. The appellate Court on examining

Ex.D5 was of the view that Survey Nos.530/2B and 530/2C

were amalgamated and the names of plaintiffs and defendants

were jointly entered. On these set of reasoning, the appellate

Court has proceeded to allow the appeal in entirety granting

share to plaintiffs in both the properties i.e. Survey

Nos.530/2B and 530/2C.

(f)Being aggrieved by the judgment and decree of the

appellate Court, the defendants have preferred this second

appeal.

4. Heard the learned counsel for the appellants-

defendants and the respondents-plaintiffs. Perused the

judgments rendered by both the appellate Court as well as the

trial Court.

5. The controversy between the parties is only in

respect of Survey No.530/2C. On examination of the material

on record, this Court would find that the appellate Court has

properly appreciated the oral and documentary evidence and

has come to the conclusion that Survey No.530/2C was

purchased in the name of Mukthumsab who is the elder son of

Imamsab on behalf of the family. The recitals of the sale deed

as per Ex.D1 clearly mentions that it is purchased in the

capacity of a manager. On perusal of Ex.D2, it clearly reveals

that in 1970, both Survey Nos.530/2B and 530/2C which was

purchased subsequently were clubbed and after the death of

propositus Imamsab, the names of Rajabi wife of Imamsab,

Muktumsab, who is the ancestor of defendants and Mattesab,

who is the ancestor of plaintiffs were jointly entered in respect

of Survey Nos.530/2B and 530/2C. These entries indicate that

plaintiffs and defendants are in joint possession and the same

is borne out from the records as per Exs.P1, P2 and D7. The

claim of plaintiffs and defendants that their sisters namely

Husainbi and Sahebi have relinquished their right in the suit

schedule properties would also weakens their case. If at all

Muktumsab had purchased Survey No.530/2C from his

independent earnings, then the question of his sisters

relinquishing their share in Survey No.530/2C would not arise.

6. It is more than a trite law that there is no concept

of joint family among Mohammedans unless the customs in

that regard is pleaded and proved. In the present case, the

propositus Imamsab owned Survey No.530/2B. Father of

defendants namely Muktumsab purchased Survey No.530/2C

and subsequently, it was amalgamated with Survey

No.530/2B. But the sale deed as per Ex.D1 dated 2.6.1970

clearly indicates that the same was purchased in the capacity

of Manager of the family. Therefore, the appellate Court was

justified in holding that Survey No.530/2C is a joint family

property and as joint sharers, the suit is decreed in entirety

granting legitimate share to plaintiffs. I do not find any

infirmity or illegality in the judgment and decree passed by the

appellate Court. No substantial question of law arises.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE

*alb/-