Smt Rahamath Bi vs Syed Mudassir Saleem
2022 Latest Caselaw 3992 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 09TH DAY OF MARCH, 2022

                      PRESENT

       THE HON'BLE MR.JUSTICE G.NARENDAR

                         AND

       THE HON'BLE MR.JUSTICE M.G.S.KAMAL

REGULAR FIRST APPEAL NO.1933/2021 (PAR & DEC)

BETWEEN:


1.   SMT. RAHAMATH BI,
     W/O SYED MUDASSIR SALEEM,
     D/O LATE ADAM SHARIFF,
     AGED ABOUT 40 YEARS,

2.   MOHAMMED FOUZAN,
     S/O SMT. RAHAMATH BI,
     AND SYED MUDASSIR SALEEM,
     AGED ABOUT 8 YEARS

     MINOR REPRESENTED BY HIS
     NATURAL MOTHER AND GUARDIAN
     1ST APPELLANT SMT. RAHAMATH BI,

     BOTH ARE R/O # 79,
     3RD CROSS, KEB COLONY,
     UDAYAGIRI,
     MYSURU-570 005.

                                       ....APPELLANTS


(BY SRI. SOMASHEKAR KASHIMATH, ADVOCATE)
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AND:

1.     SYED MUDASSIR SALEEM,
       S/O ALHAJ SYED ABDUL WAJID,
       AGED ABOUT 50 YEARS,

2.     SMT. SAMMENA AYEESHA
       W/O KAMURUDDIN
       AGED ABOUT 57 YEARS

3.     KAMURUDDIN @ PARVEEJ
       S/O NOT KNOWN
       AGED ABOUT 62 YEARS

       RESPONDENT NO.1, 2 AND 3 ARE ALL
       R/O # 40, I FLOOR
       10TH CROSS,
       SHIVAJI ROAD,
       N R MOHALLA,
       MYSURU-570 005.

4.     AFTAB AHMED KHAN
       S/O ZAFAR MOHAMMED KHAN
       AGED ABOUT 41 YEARS,

5.     SMT. MUBEENA AYEESHA
       W/O AFTAB AHMED KHAN
       AGED ABOUT 52 YEARS

       BOTH RESPONDENT NO.4 AND 5
       R/O 39, NANDI DURGA ROAD,
       BENSUR TOWN,
       BENGALURU-560046.

                                          ....RESPONDENTS


     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC AGAINST THE ORDER DATED 07.10.2020 PASSED IN
OS No.24/2019 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE AND CJM, MYSURU, DISMISSING THE SUIT FOR
PARTITION AND DECLARATION AS NOT MAINTAINABLE.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
M.G.S.KAMAL J, DELIVERED THE FOLLOWING:
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                        JUDGMENT

Present regular first appeal is filed by the

plaintiffs against the judgment and decree dated

07.10.2020 passed in O.S.No.24/2019 on the file of I

Additional Senior Civil Judge & CJM, Mysore,

(hereinafter referred to as the 'trial Court'), in and by

which, the trial Court dismissed the suit of the plaintiffs

for relief of partition and declaration declaring the

plaintiffs to have got the 1/3rd share in the schedule

property and that the Gift Deed dated 12.04.2011 has

not binding on the plaintiffs.

2. It is the case of the plaintiffs that;

(a) defendant No.1 is the husband of the

plaintiff No.1 and father of the plaintiff No.2. That Alhaj

Syed Abdul Wajid, the father of the defendant Nos.1, 2

and 5 was the owner of the schedule property having

acquired the same from his retirement benefit.

(b) he had divided the suit property into three

parts, ground floor portion of the house was given to

defendant No.1, the 1st floor portion of the house was

given to the sister of defendant No.1 and vacant

portion on the back side of the house was given to

another sister of the defendant No.1.

(c) After the marriage, plaintiffs No.1 and

defendant No.1 were living in ground floor of this

property. When the plaintiff No.1 conceived for the first

time, her father-in-law namely, Alhaj Syed Abdul Wajid

had promised that he would gift the property to the

child to be born. That the keys of the ground floor

portion is still with the plaintiff No.1. That

unfortunately, due to frequent quarrel between the

plaintiff No.1 and defendant No.1, pregnancy got

terminated. Plaintiff No.1 conceived yet again and went

to her parents house for bed rest. There were serious

differences between plaintiff No.1 and defendant No.1

resulting in filing of proceedings for maintenance which

are pending.

(d) Plaintiff No.1 is presently residing with her

elder sister along with her child and she has no house

or income for her living. That she demanded her

legitimate share in the schedule property from the

defendants which was refused. That the plaintiff issued

legal notice dated 22.03.2017 which met with an

untenable reply dated 15.04.2017. The plaintiff No.1

from the contents of the reply learnt about the gift

deeds executed by her father-in-law in favour of the

defendants and that the said documents were not

genuine and binding and same were created to defraud

the rights of the plaintiffs.

(e) the father-in-law had gifted portion of the

property to his wife, who in turn had gifted the same to

the defendant No.1. Which the defendant No.2 had

subsequently purchased from the defendant No.1 and

that all the transactions had taken place behind the

back of the plaintiffs and they were not binding on the

plaintiffs.

Hence, suit for partition and declaration seeking

1/3rd share in the suit schedule property was filed.

3. Defendant Nos.1 to 3 filed written

statement questioning the maintenance of suit and

also denying the claim of the plaintiffs over the suit

schedule property.

4. The trial Court framed the following issues

for its consideration;

"(1) Whether the plaintiffs prove that they are entitled for 1/3rd share in the suit properties?

(2) Whether the plaintiffs prove the gift deeds executed by her father -in- law in favour of the defendants are not binding on them?

(3) Whether the plaintiffs prove that the sale made by defendant No.1 in favour of defendant No.2 is not binding on them?

          (4)  Whether           the        suit   is      not
          maintainable?

(5) Whether the plaintiffs are entitled for the reliefs claimed in the suit?

(6) What order or decree?"

and took up the issue No.4 as a preliminary issue for

consideration and by impugned judgment and decree

dated 07.10.2020 held the aforesaid issue in

affirmative and consequently dismissed the suit.

Aggrieved by the same appellants/plaintiffs are before

this Court.

5. Learned counsel for the plaintiffs reiterating

the grounds urged in the memorandum of appeal

submitted that the father of the defendant No.1 had

orally assured to make a gift deed in favour of child to

be born to the plaintiffs. As such, plaintiffs are having

entitled over the property. Besides, she is entitled for

1/3rd share in the suit schedule property. That the trial

Court could not have dismissed the suit while

answering the issue No.4 as preliminary issue without

adverting to the facts and circumstances of the matter.

Hence, seeks for allowing of the appeal.

6. Heard learned counsel for the parties.

Perused the records.

7. The plaintiff No.1 being the wife of the

defendant No.1 and daughter-in-law of said Alhaj Syed

Abdul Wajid, plaintiff No.2 being son of the defendant

No.1 and grand-son of the late Alhaj Syed Abdul Wajid,

is not disputed. The subject matter of suit schedule

property originally belong to Alhaj Syed Abdul Wajid.

Admittedly, the said Alhaj Syed Abdul Wajid has

executed gift deeds during his life time conveying the

property in favour of his wife and children- defendants.

Under the provisions of Muslim Personal Law right to

succession would open up only upon the demise of the

owner of the property and specified sharers, heirs and

distant kindred would get their shares. In the instant

case, the plaintiff Nos.1 and 2 not falling in any of the

categories, cannot claim any pre-existing/vested right

in the suit schedule property belonging to Alhaj Syed

Abdul Wajid. As rightly taken note of by the trial Court

at paragraph 13 of the judgment, the plaintiffs have

got no right to claim share in the suit schedule

property. When the plaintiffs have no right of any

nature over the suit schedule property, the question of

disputing the deeds of gift purportedly executed by

Alhaj Syed Abdul Wajid during his life time including

their validity or otherwise would not arise. No grounds

made out for admission of the appeal.

Hence, the appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

RU