Karnataka High Court
Dr.Abdulla S/O Late Mohd. Khasim Saheb vs Smt.Jannatbee W/O Late Raj Ahmed on 29 November, 2023
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RSA No. 7256 of 2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7256 OF 2011 (PAR)
BETWEEN:
DR. ABDULLA
S/O LATE MOHD. KHASIM SAHEB
AGE: 55 YEARS,
OCC: MEDICAL PRACTITIONER
R/O: H.NO.1166/6,
OPP: MALLESHAPPA ADVOCATE,
AIWAN-E-SHAHI AREA,
GULBARGA-585102.
...APPELLANT
(BY SRI AMEETH KUMAR DESHPANDE, SENIOR ADVOCATE FOR
SRI GANESH S. KALBURGI, ADVOCATE)
Digitally signed AND:
by SHILPA R
TENIHALLI
Location: HIGH 1. SMT. JANNATBEE
COURT OF W/O LATE RAJ MOHAMMED,
KARNATAKA
AGE: 60 YEARS, OCC: HOUSEHOLD
R/O: DESAI CAMPU, GANGAVATI,
DIST: RAICHUR.
2. NOOR JAHAN BEGUM
W/O MURTUZA
AGE: 53 YEARS,
OCC: HOUSEHOLD
R/O: H.NO.2-4-60,
LINGASUGUR PROPER
DIST: RAICHUR.
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RSA No. 7256 of 2011
3. MARIAMBEE
W/O ABDUL KHADAR BIDRI
AGE: 48 YEARS, OCC: HOUSEHOLD
R/O: NEAR GOVT. HOSPITAL,
ILLKAL, DIST: BIJAPUR-587154.
4. MOHD. IQBAL S/O MURTUZASAB
AGE: 30 YEARS, OCC: AGRICULTURE
R/O: H.NO.2-4-60,
LINGASUGUR PROPER
DIST: RAICHUR.
5. TAHIRABEE D/O MURTUZASAB
AGE: MAJOR, OCC: HOUSEHOLD
R/O: NEAR OLD GOVT. HOSPITAL,
ILLKAL, DIST: BIJAPUR-587154.
6. ROSHANBEE D/O MURTUZASAB
AGE: MAJOR, OCC:
R/O: H.NO.2-4-60,
LINGASUGUR PROPER
DIST: RAICHUR.
7. CHANDPASHA S/O MURTUZASAB
AGE: 18 YEARS,
R/O: H.NO.2-4-60,
LINGASUGUR PROPER
DIST: RAICHUR.
SINCE RESPONDENT NO.7 IS OF
UNSOUND MIND REPRESENTED BY HIS NATURAL
GUARDIAN THE RESPONDENT NO.2.
...RESPONDENTS
(BY SMT. HEMA L.K., ADV. FOR R2, R4, R6 & R7;
V/O DATED 30.01.2012, NOTICE TO R1 IS HELD
SUFFICIENT; R3 & R5 SERVED)
THIS RSA IS FILED U/S. 100 OF CPC, ALLOW THIS
APPEAL, SET-ASIDE THE JUDGMENT ND DECREE DATED
15.06.2011 IN R.A.NO.74/2010 PASSED BY ADDL. DIST.
JUDGE AT RAICHUR, CONFIRMING THE JUDGMENT AND
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RSA No. 7256 of 2011
DECREE DATED 24.04.2010 IN O.S.NO.36/2006 BY CIVIL
JUDGE (SR.DN.) AT LINGASUGUR, DIST. RAICHUR.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff in O.S.No.536/2006 (old O.S.No.287/2000)
on the file of learned Civil Judge (Sr.Dn.) at Lingasugur
(hereinafter referred to as 'Trial Court' for brevity) is impugning
the judgment and decree dated 20.04.2010, dismissing the suit
for cancellation of the decree dated 30.11.1990 passed in
O.S.No.44/1990 on the file of the Munsiff Court at Lingasugur,
district Raichur and the Will dated 11.01.1995, to correct the
revenue entries and the mutation in the revenue records
pertaining to the schedule properties and for partition and
possession of his share, which was confirmed in
R.A.No.74/2010 on the file of the learned Additional District at
Raichur vide judgment and decree dated 15.06.2011
hereinafter referred to as 'First Appellate Court' for brevity).
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
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3. Brief facts of the case are that the plaintiff filed the
suit against the defendants in respect of the landed properties
i.e., (i) Survey No.72/2/1 measuring 5 acres and Survey
No.72/2/1 measuring 5 acres, situated at Yalgaldinni village,
Lingasugur taluka, eight landed properties bearing (ii) Survey
No.220/2 measuring 5.30 acres, Survey No.222/1 measuring
2.35 acres, Survey No.222/2 measuring 3.07 acres, Survey
No.224/1 measuring 5.11 acres, Survey No.224/2 measuring
2.26 acres, 224/3/2 measuring 25.30 acres, Survey No.233/2
measuring 2.10 acres and Survey No.233/3 measuring 1.17
acres of Yardona village, five house properties i.e., (iii) House
bearing Municipal No.8-30 (old) 2-4-60 (new), House bearing
Municipal No.12-90 (old) 2-4-209 (new), House bearing
Municipal No.2-5-210 (new), House bearing Municipal No.11-
111/112 (old) 2-11-77 (new) and House bearing Municipal
No.8-30 (old) 2-4-178 (new) situated at Lingasugur and also
(iv) plot bearing No.12-227/2/12/103 and plot No.2-11-76
(herein after referred to as 'schedule properties' for brevity).
4. It is contended that the father of the plaintiff
Dr.Mohammed Khasim Sab Tegginmani and mother Khader Bee
were living in Lingasugur. The father expired on 21.11.2000.
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The mother pre-deceased him and died on 15.04.1997.
Defendant Nos.1 to 3 are the sisters of the plaintiff. Defendant
Nos.6 and 7 are the sons and daughters of defendant No.2 and
another son by name Ibrahim had already dead. Defendant
No.7 is also her son, but, he is of unsound mind.
5. It is contended that on 14.08.1980 defendant Nos.1
to 3 have executed a registered release deed relinquishing their
rights in their father's properties in favour of the plaintiff. On
16.06.1980 defendant Nos.4 and 7 being minors represented
by their mother - defendant No.2 herein, filed the suit
O.S.No.44/1990 before the Munsiff Court at Lingasugur seeking
permanent injunction in respect of the schedule properties.
6. The plaintiff herein, who was the defendant in the
said suit was placed exparte and the said suit was came to be
decreed. Defendant No.2 had alleged in the said suit that her
father Mohammed Khasim Sab had executed registered Will on
11.01.1995 bequeathing few properties in her favour. In fact,
the plaintiff had contributed and extended financial help in
purchasing the properties in the name of his father Mohammed
Khasim Sab. Defendant No.2, who separated herself from her
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husband, took undue advantage of the love and affection of her
father and brought him under influence and succeeded in
getting the document styled as 'Will'. She also managed to get
exparte decree in her favour. Therefore, the judgment and
decree passed in O.S.No44/1990 is not binding on the plaintiff.
Hence, the same is liable to be cancelled.
7. It is contended that defendant No.2 has concocted
the Will purported to have executed by her father and mother.
Infact, her mother was not in a position to speak or understand
any action. Therefore, neither the father nor the mother of the
plaintiff and defendant No.2 have executed any Will in favour of
defendant No.2 or her sons.
8. It is contended that sons of defendant No.2 are
uneducated. The parents of the plaintiff performed their
marriages. They were not doing any work, but, they are
leading happy life under the shelter of their grandfather. It is
stated that even though it is projected that the plaintiff has sold
some properties given to him, infact, the same were sold to
meet the financial need of the family of defendant No.2. The
plaintiff has never signed the Will in question. It is a concocted
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document created by defendant No.2 with the help of her
children and on the basis of the said document, revenue
records were mutated in their names even prior to the death of
the father of the plaintiff. The plaintiff being the only the son of
Mohammed Khashim Sab was never notified regarding such
revenue entries. Infact, defendant No.2 and her husband have
executed release deed and therefore, she was not having any
right over the schedule properties. Therefore, the revenue
entries effected on the basis of the concocted document, is to
be corrected. It is stated that the plaintiff is entitled for 10.8
Annas a and his three sisters are entitled for 5.4 Anna each in
the schedule properties.
9. It is stated that defendant No.2 and her sons are
intending to alienate or create charge over the schedule
properties. Therefore, they are to be restrained by an order of
permanent injunction from alienating or creating any charge
and the plaintiff be granted the relief of possession of the
schedule properties. Therefore, the plaintiff prayed for the
reliefs as stated above.
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10. Defendant No.2 filed the written statement denying
the contentions taken by the plaintiff. The relationship between
the parties as stated in the plaint is admitted. It is contended
that the schedule properties at Serial Nos.1, 2, 7 and 8 are
exclusive properties of defendant No.1 as the same were
acquired from her husband under the registered sale deeds.
Item Nos.2 and 3 being the house properties were not
belonging to defendant No.2 and she was not concerned to the
same.
11. It is contended that other schedule properties were
acquired by defendant No.2 along with her sons by virtue of the
registered Will executed by her parents and after their death,
defendant No.2 and her sons became the absolute owners.
Accordingly, the revenue records were mutated in their names.
12. It is stated that the house properties bearing Nos.2-
4-209 and 2-5-10 of Lingasugur were not the properties of the
parents of defendant No.2. Survey No.220/2 measuring 5.30
acres was belonging to the husband of defendant No.2, who
acquired it under partition. Survey No.220/1 belongs to the
Government and Survey No.222/2 measuring 3.07 acres also
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did not belong to the parents of defendant No.2. The said
lands were purchased by defendant No.2 under the registered
sale deed dated 07.05.1993. Similarly, Survey No.233/2
measuring 2.10 acres was purchased by defendant No.2 under
the sale deed dated 11.06.1970. Survey No.233/3 was
acquired by defendant No.2 from its earlier owner Murtuza Sab.
Defendant Nos.2, 4 and 7 are in exclusive possession of these
properties as owners.
13. It is stated that Survey No.72/2/1 belongs to the
mother of defendant No.2, who bequeathed the said property
under the gift deed dated 09.07.1984 and since then defendant
Nos.2, 4 and 7 are in exclusive possession and enjoyment of
the same. Survey No.72/2/2 of Yalgaldinni village was
acquired by defendant Nos.2, 4 and 7 under the registered gift
deed dated 09.07.1984 executed by the father of defendant
No.2 and since then they are in possession of the same.
14. It is contended that defendant Nos.2, 4 and 7 have
filed the suit O.S.No.44/1990 before the Munsiff Court at Yadgir
against the plaintiff seeking permanent injunction. The said
suit was decreed as prayed for.
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15. It is stated that Survey No.222/1 measuring 2.35
acres, Survey No.224/1 measuring 5.11 acres, Survey
No.224/2 measuring 2.26 acres and Survey No.224 measuring
0.34 acres have been acquired by defendant Nos.2, 4 and 7
under the registered Will dated 10.09.1990 and after the death
of the testator Mohammed Khashim Sab, the Will was acted
upon. Plot Nos.2-4-60 and 2-4-178 of Lingasugur and house
property bearing Nos.8-30, 2-11-76 and 2-11-77 were gifted in
favour of defendant Nos.2, 4 and 7 by the father of defendant
No.2 in the year 1983. He also orally gifted the house property
bearing No.2-12-103 in their favour out of love and affection.
The gift deed was accepted by them and they are in possession
of said properties. The gift of all these properties was
confirmed in O.S.No.44/1990.
16. It is further contended that the parents of
defendant No.2 executed the registered Will dated 11.01.1995
bequeathing Survey Nos.222/1, 224/1, 224/2 and 223/2 in
favour of defendant Nos.2, 4 and 7. The plaintiff is the
signatory to the said registered Will as consenting witness. The
said Will was also acted upon and the defendants are in
possession and enjoyment of the said properties.
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17. It is contended that the father of the plaintiff had
given CTS Nos.72, 714, 715 and 86/B of Ilakal and plot No.2-
12-102 of Lingasugur along with other properties to the plaintiff
and those properties were sold by him. Plot No.2-11-76 was
given by the father to defendant No.2, which was subsequently
transferred to defendant No.2 in lieu of another land
transferred by defendant No.2 in favour Stm.Mahmooda
Begum. Therefore, it is contended that the plaintiff has no
manner of right, title or interest over any of the properties and
not entitled for any relief. Accordingly, prayed for dismissal of
the suit.
18. On the basis of these pleadings, the Trial Court
framed the following issues and additional issues:
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19. The plaintiff examined himself as PW.1 and got
marked Exs.P1 to P51 in support of his contentions. Defendant
No.2 examined herself as DW.1, got examined DWs.2 to 6 and
got marked Exs.D1 to D45 in support her defence. The Trial
Court after taking into consideration all these materials on
record, answered issues Nos.1 to 3, 6 and 7 in the negative
and issue Nos.2, 4, 5, 8, 9 and additional issue Nos.1 to 4 in
the affirmative and accordingly, dismissed the suit of the
plaintiff.
20. Being aggrieved by the same, the plaintiff has
preferred R.A.No.74/2010. The First Appellate Court on re-
appreciation of the materials on record dismissed the appeal by
confirming the impugned judgment and decree passed by the
Trial Court. Being aggrieved by the same, the plaintiff is before
this Court.
21. Heard learned Senior Advocate Sri Ameet Kumar
Deshpande for the appellant/plaintiff and learned counsel
Smt.Hema L.K. for respondent Nos.2, 4, 6 and 7/defendant
Nos.2, 4, 6 and 7.
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22. Learned Senior Advocate submitted that the
relationship between the parties is categorically admitted by
the contesting defendant No.2. Mohammed Khashim Sab, who
died on 21.11.2000 is the husband of Khader Bee, who also
died on 15.04.1997. They had four children i.e., plaintiff and
defendant Nos.1 to 3. Defendant Nos.4 to 7 are the children of
defendant No.2. Learned counsel would submit that even
though the plaintiff has putforth two Wills as per Exs.D19 and
D29, the same are not proved in accordance with law. The
second Will marked as Ex.D29 is said to have executed jointly
by the father and mother of the plaintiff, which is not
permissible under the Mahomedan Law. Admittedly, it is only
the father of the plaintiff, who was the owner of the schedule
properties. There was absolutely no reason as to how the
mother of the plaintiff joined in execution of the Will that too
when she was suffering from paralysis attack and was not in a
position to execute the same.
23. Learned Senior Advocate further submitted that the
Trial Court has committed an error in framing issue No.7
placing burden on the plaintiff to prove that the Will in question
was not executed and answered the same in the negative.
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Even though defendant No.2 had taken specific contentions in
the written statement tracing ownership over the schedule
properties, the same are not proved in accordance with law.
The Trial Court as well as the First Appellate Court committed
an error in recording the finding concurrently against the
plaintiff. The reasoning given by both the Courts is erroneous
and therefore, the same is liable to be set aside. Accordingly,
he prays for allowing the appeal.
24. Per contra, learned counsel for the respondent
Nos.2, 4, 6 and 7 opposing the appeal submitted that the
relationship between the parties is admitted by the contesting
defendants, but, the contention taken by the plaintiff that
defendant No.2 concocted the Wills and the gift deed is fortified
by the positive evidence led before the Trial Court. The plaintiff
is the consenting witness to the Will executed as per Ex.D29.
Under such circumstances, he could not have challenged the
said Will. The attesting witnesses are examined as DWs.3 and
4. Moreover, the plaintiff has filed sworn affidavit as per
Ex.D30 before the notary public who is examined as DW.5. The
scribe of the Will, who is also an advocate is examined as
DW.6. Even though all these witnesses were cross-examined
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at length, nothing has been elicited to disbelieve their version.
Therefore, the Trial Court and the First Appellate Court were
right in accepting the contention of defendant No.2.
25. Learned counsel further submitted that Ex.D8 is the
deposition of the father of the plaintiff in O.S.No.44/1998. The
witness categorically deposed regarding the gift of the
properties in favour of defendant No.2, who was plaintiff in the
said suit. There is absolutely no reason to disbelieve the
version of the father of the plaintiff and defendant No.2.
26. Learned counsel further submitted that since the
schedule properties were standing in the joint names of the
father and mother of the plaintiff and defendant No.2, they
have jointly executed the Will bequeathing the properties in
favour of defendant Nos.2, 4 and 7 only with an intention to
avoid technicalities. The Wills dated 10.09.1990 and
11.01.1995 marked as Exs.D19 and D29 find similar recitals
and the properties were bequeathed in favour of defendant
Nos.2, 4 and 7. There is no bar for executing the joint Will and
on that count, the Wills in question cannot be revoked.
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Therefore, the learned counsel for the respondents prayed for
dismissal of the appeal with costs.
27. Perused the Trial Court and the First Appellate
Court records. Vide order dated 26.06.2013, the appeal was
admitted to consider the following substantial question of law:
"Whether the lower appellate Court was
justified in recording a finding that the subsequent
Will did not impliedly revoke the earlier Will of the
mother of the second defendant?"
My answer to the above substantial question is in the
'Affirmative' for the following:
REASONS
28. The relationship between the parties is not in
dispute. Few items of the properties mentioned in the plaint
are said to be not belonging to the family and the same is not
seriously disputed. It is contended by defendant No.2 that she
has purchased Survey NosS.222/2 and 233/2 under the
registered sale deeds - Exs.D5 and D6. On the basis of these
sale deeds, name of defendant No.2 was mutated in the
revenue records as could be seen from Exs.P46 and P49. The
plaintiff is examined as PW.1 and he categorically admits this
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fact that defendant No.2 had purchased these two items of
properties. The contention of the plaintiff that he contributed
for purchase of the properties is not probablisied.
29. Defendant No.2 contended that she acquired
Survey No.220/2 through her former husband. Ex.D45 is the
copy of the registered partitioned deed executed by the
husband of defendant No.2, which supports the contention of
defendant No.2 in that regard. Therefore, the contention of
the plaintiff that the said properties are available for partition
cannot be accepted. Similarly, defendant No.2 contends that
Survey No.233/3 is acquired by her under the sale deed. The
revenue records produced by the plaintiff as per Ex.P34 show
the name of defendant No.2 as the purchaser of the land.
Strangely, even PW.1 admits this fact during her cross
examination.
30. Defendant No.2 has taken a specific defence that
Survey No.72/2/1 and 72/2/2 were acquired by her under the
registered gift deeds executed by her father and mother
respectively. She has produced those gift deeds as per
Exs.D10 and D13. Since the date of gift deed in the year 1985,
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name of defendant No.2 is mutated and appearing in the
revenue records. It is specifically contended by defendant No.2
that she has accepted the gift and she is in possession and
enjoyment of the same since from the date of the gift deed.
The plaintiff had never challenged these registered gift deeds
executed by his parents. Therefore, he cannot claim any right
over these properties.
31. Much relevance was placed on the contention taken
by the plaintiff regarding the Wills marked as Exs.D19 and D29.
Both these Wills are registered documents. The recitals found
in Exs.D19 and D29 are similar and bequeath was in favour of
defendant Nos.2, 4 and 7. Ex.D19 was executed by Khadar
Bee, whereas Ex.D29 was executed by both Mohammed
Khasim Sab and Khadar Bee. Even though it is contended by
the learned Senior Advocate that execution of the Will jointly by
Mohammed Khasim Sab and Khadar Bee is not permissible
under the Mohammaden Law, but, no such bar was brought to
the notice of the Court. Even though it is only Mohammed
Khasim Sab is the owner of the properties in question under the
Will, his wife Khadar Bee joined in execution of the Will. It is
not in dispute that the names of both Mohammed Khashim Sab
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and Khadar Bee was appearing in the revenue records in
respect of the same. Thus a reasonable explanation is offered
as to why Mohammed Khasim Sab also joined in executing the
registered Will.
32. In proof of the Wills in question, defendant No.2
deposed herself as DW.1. She examined DWs.2 and 3, who are
the attesting witnesses to both the Wills. DW.6 is an advocate,
who is said to be the scribe of Ex.D29. DWs.3, 4 and 6 have
categorically stated regarding execution of the Wills by the
testators and attestation of the same. DW.5 is the notary
public who spoke about Ex.D30, which is the affidavit sworn by
the plaintiff in support of Ex.D30. Even though all these
witnesses were cross-examined at length, nothing has been
elicited from them to disbelieve their versions. But, on the
contrary, the plaintiff who is examined as PW.1 has given fatal
admissions, which is self destructive.
33. Admittedly, the plaintiff is a party in
O.S.NO.44/1998. It is also admitted that he was placed
exparte in the said suit and the suit was came to be decreed in
favour of defendant No.2. The plaintiff has not chosen to
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challenge the said judgment and decree passed against him.
There is absolutely no reason as to why the plaintiff is seeking
the relief of cancellation of the decree passed by the competent
Civil Court, without challenging the same in accordance with
law. Viewed from any angle, the plaintiff has failed to
substantiate his contention as taken in the plaint. On the other
hand, defendant No.2 who came up with a specific defence in
the written statement, is successful in probablising the same
including proving the gift deeds, sale deeds and the Wills in
question. When the Will as per Ex.D29 said to have been
executed by the parents of defendant No.2 bequeathing the
properties in question in favour of defendant No.2, 4 and 7 is
proved and the same has been acted upon after the death of
the testator by mutating their names in the revenue records, I
do not find any reason to accept the contention of the plaintiff.
More particularly, when the plaintiff himself acknowledged due
execution of Ex.D29 by sworn affidavit as per Ex.D30 before
the notary public, who is examined as DW.5 Ex.D8 -
deposition of the father of the plaintiff and defendant No.2
assumes importance in view of Section 33 of the Indian
Evidence Act. The cumulative effect of these documents and
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facts and circumstances go to show that the plaintiff is not
entitled for any relief.
34. I have gone through the impugned judgment and
decree passed the Trial Court and the First Appellate Court. I
do not find any reason to interfere with the same. Even though
it is contended by the appellant that the First Appellate Court
was not justified in recording a finding that the subsequent Will
executed by the mother of defendant No.2, the same could not
be substantiated in the light of the discussion held above.
35. Considering the materials placed on record, the
Trial Court and the First Appellate Court recorded concurrent
findings of fact. There is no illegality and perversity in the said
findings. Hence, I answer the above substantial question of law
against the appellant and in favour of the respondents and
proceed to pass the following.
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 18.09.2007
passed in O.S.No.36/2006 on the file of the learned
Civil Judge (Sr.Dn.) at Lingasugur and the judgment
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decreed dated 15.06.2011 passed R.A.No.74/2010
on the file of the learned Additional District Judge at
Raichur, are hereby confirmed.
Registry is directed to send back the Trial Court and the First
Appellate Court records along with copy of this judgment.
Sd/-
JUDGE
SRT
CT-VD
