Smt Zaibunnissa vs Smt Haseena Begum @ Haseenabi
2022 Latest Caselaw 460 Kant

                            1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 11 TH DAY OF JANUARY, 2022

                         BEFORE

        THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

     REGULAR SECOND APPEAL No.1308 OF 2015 (PAR)


BETWEEN:

1.     SMT. ZAIBUNNISSA
       W/O LATE SYED BASHEER
       (SINCE DEAD BY LR'S-APPELLANT NO.3)


2.     SMT.REHAMATHUNNISSA
       D/O LATE SYED BASHEER
       AGED ABOUT 50 YEARS
       RESIDING AT KAKACHI
       BHADRAVATHI
       SHIVAMOGGA DISTRICT

3.     SRI.CHAND PASHA
       S/O LATE SYED BASHEER
       AGED ABOUT 30 YEARS
       RESIDING AT KHAJI MOHALLA
       OLD TOWN, BHADRAVATHI
       SHIVAMOGGA DISTRICT
       (LR OF APPELANT NO.1)
                                           ... APPELLANTS
       (BY SMT.SREEVIDYA.G.K., ADVOCATE)


AND:

1.     SMT.HASEENA BEGUM @ HASEENABI
       W/O AMANULLA KHAN
       AGED ABOUT 34 YEARS
                               2



       R/AT KHAJI MOHALLA
       OLD TOWN, BHADRAVATHI
       SHIVAMOGGA DISTRICT.

2.     SMT. ZABEENA TAJ
       W/O MOHAMMED RAFI
       MAJOR, R/O KOTE AREA
       OLD TOWN, BHADRAVATHI
       SHIVAMOGGA DISTRICT.
                                            ... RESPONDENTS

     (BY SRI.VARADARAJ.R.HAVALDAR, ADV.FOR C/R1 & R2)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED:09.04.2015
PASSED IN R.A. NO.74/2011 ON THE FILE OF THE IV ADDL.
DISTRICT & SESSIONS JUDGE, SHIVAMOGGA SITTING AT
BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED:07.07.2010 PASSED IN
OS NO.80/1996 ON THE FILE OF THE ADDL. SENIOR CIVIL
JUDGE, JMFC, BHADRAVATHI.

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

                         JUDGMENT

1. This appeal is filed by the original defendant and her

step daughter and step son.

2. The daughters of Syed Basheer i.e., Haseena Begum

and Jabeena Taj instituted a suit for partition against

Zaibunnissa - the first appellant herein. It was contended

that the suit property was the property of their father Syed

Basheer who died on 04.09.1995 leaving behind him the

plaintiffs and the defendants as his legal heirs. It is

contended that their father Syed Basheer had acquired the

suit properties under the Registered Partition deed dated

18.06.1991 which had taken place between him and his

brothers. It was also stated that Item No.2- coconut garden

had been acquired by Syed Basheer under a Darkhasth.

3. The step mother i.e., defendant filed the written

statement admitting the relationship of the parties. She also

admitted that item No.1 was acquired by Syed Basheer under

the Registered Partition deed dated 18.06.1991 and item

No.2 was given to Syed Basheer under Darkhasth. She,

however, contended that Syed Basheer had taken a loan in

Canara Bank for the development of item No.2 and Canara

Bank had instituted a suit for recovery and had obtained a

decree for Rs.41,040/- and all the legal heirs of Syed Basheer

were liable to pay the said loan amount.

4. The defendant also set up a plea that one Kanthilal had

given her a job and while she was working under him, she

had given her a house which was sold for a sum of

Rs.2,25,000/- and she had invested the entire amount

towards construction of a building on item No.1 and

therefore, the structure existing on item No.1 was her

absolute property.

5. The Trial Court framed, initially, five issues and

subsequently formed four more additional issues. After

analyzing the evidence, the trial Court came to the conclusion

that the plaintiffs were entitled to 7/16th share in both the

items. The plea of an earlier partition was negatived. The

Trial Court also came to the conclusion that the defendant

had failed to prove that she had constructed the RCC building

over item No.1 by investing her own amount of Rs.

2,25,000/-.

6. The Trial Court, ultimately, decreed the suit and

granted the daughters of Syed Basheer, 7/16th share each

and also granted 2/16th share in favour of the defendant.

The plaintiffs and the defendant were made liable to

discharge the loan borrowed by Syed Basheer in the same

proportion.

7. Being aggrieved by the said decree, Syed Basheer's

wife Smt.Zaibunnissa (original defendant) and daughters of

Syed Basheer and son of Syed Basheer preferred an appeal.

8. The Appellate Court, after re-appreciating the evidence,

came to the conclusion that the Trial Court was justified in

decreeing the suit for partition in the light of the admitted

relationship and it proceeded to dismiss the appeal.

9. It is as against this concurrent finding, this second

appeal has been preferred.

10. Smt.Sreevidya G.K, learned counsel for the appellant

strenuously argued that the decrees passed by the Courts

below were incorrect and the shares awarded to the plaintiffs

and the defendant was also incorrect.

11. A perusal of the pleadings of the original defendant

clearly goes to show that the defendant admitted that the

plaintiffs were the daughters of Syed Basheer and she also

made a clear admission that the suit properties did belong to

Syed Basheer. In the light of this admission, on the death of

Syed Basheer, the entitlement of the plaintiffs to succeed to

the property cannot be in doubt at all.

12. The argument that the shares awarded to the plaintiffs

was incorrect is not substantiated on any legal basis. The

Trial Court has noticed that the plaintiffs being the daughters

would be entitled to 7/16th share of item Nos.1 and 2 of the

suit properties. This apportionment of 7/16th share, in

accordance with Section 16 of the Mohammedan Law, is not

established to suffer from infirmity by the learned counsel for

the appellant.

13. In my view, there is no question of law, much less, a

substantial question of law arising for consideration and

consequently, the second appeal is dismissed.

Sd/-

JUDGE

SKS/GH