Karnataka High Court
Wahid Khan vs Mahaboob Khan on 11 July, 2023
Bench: N.S.Sanjay Gowdapresided Bynssgj
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RSA No. 3120 of 2006
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO. 3120 OF 2006 (PAR)
BETWEEN:
1. WAHID KHAN S/O PEER KHAN
SINCE DECEASED BY LRS.
NAGAMMA @ RAIABEE
W/O WAHID KHAN
AGE: 55 YEARS
2. ZAITUNBEE W/O WAHID KHAN
AGE: 58 YEARS
3. REHANA BEGUM D/O WAHID KHAN
AGE: 35 YEARS
ALL ARE R/O CHITTAPUR,
TQ. CHITTAPUR
Digitally signed by DIST. GULBARGA-585 227
RAMESH MATHAPATI
Location: HIGH
...APPELLANTS
COURT OF
KARNATAKA (BY SMT HEMA L. KULAKARNI, ADVOCATE)
AND:
1. MAHABOOB KHAN W/O PEERKHAN
AGE: 55 YEARS, R/O CHITTAPUR
DIST. KALABURAGI-585227
2. SARDAR KHANAM W/O ABDUL GAFOOR
SINCE DECEASED BY LRS.
2A. JABBAR KHAN S/O ABDUL GAFOOR
AGE: 49 YEARS, OCC: POST MAN
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RSA No. 3120 of 2006
2B. SATTAR KHAN S/O ABDUL GAFOOR
AGE: 47 YEARS, OCC: POLICE CONSTABLE
2C. MUKTAR KHAN S/O ABDUL GAFOOR
AGE: 45 YEARS, OCC: PRIVATE CONTRACTOR
2D. NISAR KHAN S/O ABDUL GAFOOR
AGE: 42 YEARS, OCC: AUTO DRIVER
2E. MUNNA KHAN S/O ABDUL GAFOOR
AGE: 30 YEARS, OCC: STUDENT
2F. JULFO KHAN S/O ABDUL GAFOOR
AGE: 30 YEARS, OCC: STUDENT
2G. HALEEMA BEGUM W/O RAZAKMIYAN
AGE: 50 YEARS, OCC: TEACHER
2H. NAZAMA BEGUM W/O ANWARMIAYA
ALL ARE R/O H.NO.7/20/16 BILALABAD
KBN COLLEGE GULBARGA
3. SAHAZADI KHANAM W/O SARDAR KHAN
AGE: 50 YEARS, R/O MIZGURI
GULBARGA-585 104
4. KHALID KAREEM KHAN
S/O SARDAR KAREEM KHAN
AGE: 65 YEARS, OCC: AGRICULTURE
R/O MIZGORI, KALABURAGI.
...RESPONDENTS
(BY SRI GURUBASAVA C. NAYAK, ADVOCATE FOR SRI
RAMACHANDRA K., ADVOCATE FOR R3 & R4;
SRI B. NOOR ILYAS, ADVOCATE FOR R1;
SRI NAZEERUDDIN A CHENGTA, ADVOCATE FOR R2 (A TO H);
V/O DATED 26.06.2023 NOTICE TO LR'S OF PROPOSAL R1 IS
DEFERRED FOR THE PRESENT)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO ALLOW
THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
DATED 18.10.2006 PASSED IN R.A.NO.34/2003 BY THE
LEARNED CIVIL JUDGE (SR.DN.) SEDAM PARTLY REVERSING
THE JUDGMENT AND DECREE DATED 31.03.2003 PASSED IN
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RSA No. 3120 of 2006
O.S.NO.86/2000 BY THE LEARNED ADDL. CIVIL JUDGE
(JR.DN.) CHITTAPUR AND TO DISMISS THE SUIT OF THE
PLAINTIFF.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Mahaboob Khan, Sardar Khanam and Sahazadi
Khanam, the son and daughters of Peer Khan, instituted
the suit against their brother - Wahid Khan (defendant
No.1), his second wife Nagamma @ Rabiabee (defendant
No.2), his first wife Zaitunbee (defendant No.3) and her
daughter Rehana Begum (defendant No.4).
2. It was their case that the lands bearing Sy.No.448
measuring 3 acres 2 guntas, Sy.No.449 measuring 2 acres
18 guntas and Sy.No.453 measuring 13 acres 23 guntas
apart from two house properties which were all situate at
Basneer Gunj, Chittapur Taluk, were the properties
belonging to their father Peer Khan and on his death, they
and their brother Wahid Khan had succeeded to the same.
3. It was stated that Wahid Khan being the elder son
had got his name mutated in the records. It was also
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stated that since the properties belonged to their father
Peer Khan, according to Mohammedan Law, the plaintiffs
were entitled to 2/3rd share and Wahid Khan was entitled
to 1/3rd share.
4. It was contended that Wahid Khan had contracted a
second marriage with Nagamma @ Rabiabee and he was
also having a daughter by name Rehana Begum.
5. It was stated that the house properties were their
father's properties and Wahid Khan got his daughter's
name entered in the municipal records.
6. It was stated that the revenue records were
surreptitiously entered in the name of Wahid Khan and in
the name of his second wife in respect of Sy.No.453 and
they were, therefore, constrained to institute a suit.
7. Wahid Khan, his wives and daughter contested the
suit by filing a written statement.
8. Their principal contention was that the land bearing
Sy.Nos.448 and 449 had been purchased when Wahid
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Khan was a minor by his step mother Anser Begum under
a registered Sale Deed and these two lands were
purchased from the amount that she had received as
Mehr. It was, therefore, stated that Wahid Khan was the
owner of said lands.
9. As regards Sy.No.453, it was contended that the said
property was the exclusive property of his second wife
Nagamma as she had purchased the same under the
registered Sale Deed dated 21.01.1982.
10. As far as the house properties were concerned, a
plea was taken that a partition had already been taken
place about 30 years ago and the houses had been
allotted to Wahid Khan and he was in possession of the
same. It was, therefore, stated that the siblings of Wahid
Khan had no right to claim a share.
11. The Trial Court, on consideration of the evidence
adduced before it, came to the conclusion that land
bearing Sy.Nos.448 and 449 had been purchased in the
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name of Wahid Khan and it was, therefore, his properties
and his siblings had no right to claim a share. The Trial
Court also held that Sy.No.453 was purchased by the
second wife of Wahid Khan and it was, therefore, her
exclusive property. The Trial Court also upheld the
contention that there was a partition of the house
properties and it accordingly dismissed the suit.
12. An appeal was preferred by the plaintiffs.
13. The Appellate Court, on re-appreciation of evidence,
came to the conclusion that land bearing Sy.Nos.448 and
449 had been purchased when Wahid Khan was a minor
and it was his father Peer Khan who had paid the sale
consideration. The Appellate Court held that the second
wife of Peer Khan i.e., Anser Begum had no source of
income and therefore, the properties had been purchased
by Peer Khan alone and as a consequence, all his children
had succeeded to the suit properties.
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14. The Appellate Court, however, confirmed the
dismissal of the suit in respect of Sy.No.453 i.e., the
property stated to have been purchased by Nagamma, the
2nd defendant and it accordingly granted the decree only in
respect of land bearing Sy.Nos.448 and 449 in favour of
the plaintiffs. The Appellate Court also held that the earlier
partition set up by Wahid Khan had not been proved and it
accordingly proceeded to grant a decree in respect of
house properties also.
15. As against the said judgment of the Appellate Court,
only Wahid Khan, his two wives and his daughter are in
appeal.
16. The plaintiffs have accepted the dismissal of their
suit in respect of Sy.No.453 i.e., the land held to be
belonged to Nagamma by not preferring an appeal.
17. The subject matter of this appeal is, therefore,
confined only to the rights of the parties in respect of land
bearing Sy.Nos.448 and 449 and the house properties.
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18. This Court, while admitting the appeal, has framed
the following substantial question of law:
"Whether the lower Appellate Court was
justified in holding that the step sons of
Anser Begum are entitled to a share in
the suit schedule property?"
19. Learned counsel for the appellants/defendants
contended that the lands bearing Sy.Nos.448 and 449 had
been purchased by Anser Begum and Wahid Khan jointly
and the consideration for these properties had been paid
by Anser Begum. She submitted that as a result, Wahid
Khan would become the owner of the properties especially
when Anser Begum had died without any issues. She
contended that the arguments advanced by Wahid Khan's
siblings were contradictory, inasmuch in one breath, they
contended that they were all children of Peer Khan
through his first wife Anser Begum, whereas during the
course of cross-examination, they sought to set up the
story that they were the children of Peer Khan through his
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second wife Anser Begum and this by itself disentitle them
from seeking any relief.
20. Learned counsel for the respondents, on the other
hand, supported the judgment and decree of the Appellate
Court and stated that there was no substantial question of
law involved in this appeal.
21. The son and two daughters of Peer Khan instituted
the suit with the following plea:
"That the plaintiff No.1 and the defendant
No.1 are real brothers. The plaintiffs No.2
and 3 are their real sisters. The defendant
No.2 is the second wife and the defendant
No.3 is the first wife of the defendant No.1.
The defendant No.4 is the daughter of the
defendant No.1."
22. This assertion, by itself, goes to show that plaintiffs 1
to 3 and defendant No.1 were all children of Peer Khan.
The plea was not to the effect that Wahid Khan was the
son through Anser Begum. It is therefore, clear that the
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relationship of the parties vis-à-vis Peer Khan was
admitted.
23. A further plea was as follows:
"That, the father of the plaintiffs and the
defendant No.1 was the owner and
possessor of the suit properties. He died
leaving behind the plaintiffs and
defendant No.1 as his legal heirs."
24. Thus, the second plea was that the properties
belonged to their father Peer Khan and on his death, they
had succeeded to his properties as his legal heirs.
25. As noticed above, the claim insofar as Sy.No.453 has
come to an end and therefore, the only question to be
looked into is as to whether the lands bearing
Sy.Nos.448 and 449 belonged to Peer Khan and as a
consequence, whether his children would be entitled
to succeed to the property.
26. The Sale Deed under which the lands in Sy.Nos.448
and 449 were purchased was produced as Ex.D3 and the
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translated copy had been marked and has also been
produced in the records.
27. This Sale Deed contains a recital that the vendor
Basawanta was selling the lands bearing Sy.Nos.448 and
449 for a sale consideration of Rs.1,200/- in favour of
Wahid Khan, who was aged 7 years and was the son of
Peer Khan. The Sale Deed states that the property was
being sold in favour of Wahid Khan who was under the
guardianship of his father Peer Khan and Anser Begum,
who was aged 19 years. The fact that Wahid Khan was
only 7 years as on the date of the sale would clearly
indicate that he would have no source of income at all to
purchase the properties and it will, therefore, have to be
assumed that his father had paid the consideration.
28. An assertion is no doubt made in the written
statement that suit lands were purchased from the funds
belonging to Anser Begum, the second wife of Peer Khan.
However, the Sale Deed indicates that she was aged 19
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years and this would, therefore, indicate that she would
have no source of income to pay the sale consideration.
29. Learned counsel for the appellants, however, sought
to contend that there was evidence to indicate that Anser
Begum had received some amount as Mehr from her
husband whom she had divorced.
30. Apart from self-serving statements, there was no
evidence to show that Anser Begum was married to
another individual and that marriage had ended in divorce,
as a result of which, she obtained Mehr. In my view, since
there is absolutely no evidence indicating that Anser
Begum possessed Rs.1,200/- to purchase lands in
Sy.Nos.448 and 449, it will have to be held that the entire
sale consideration was paid by Peer Khan, the father of the
plaintiffs and the 1st defendant. The Appellate Court has
rightly taken the view that there was no explanation
forthcoming as to why Peer Khan would purchase the
properties in the name of his minor son and the second
wife. As already noticed above, since Anser Begum was
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only aged 19 years and there was no proof of any kind
that she possessed means to purchase any property, the
finding of the Appellate Court that the lands in Sy.Nos.448
& 449 were the properties of Peer Khan cannot be found
fault with.
31. Since it has been held that the lands bearing
Sy.Nos.448 and 449 were purchased by Peer Khan, it is
obvious that on his death all his children would succeed to
the properties and thus, the properties never belonged to
Anser Begum for her step sons to make a claim over the
said properties. The question of law is accordingly
answered.
32. The finding regarding grant of a decree in respect of
house properties will also have to be upheld since the
Appellate Court has recorded a finding of fact that the
earlier plea of partition set up by Wahid Khan had not
been established and since the partition plea set up
presupposes that the properties belonged to Peer Khan.
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Thus, the decree passed by the Appellate Court for
partitioning the house properties is also upheld.
33. The second appeal is accordingly dismissed.
Sd/-
JUDGE
PKS
CT: M
