Karnataka High Court
R B Rasheed vs Smt Rasheeda Begum on 5 April, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2024:KHC:14999
RSA No. 1538 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1538 OF 2022 (PAR)
BETWEEN:
R B RASHEED
S/O BABI DEAD BY LRS
1. SMT NOORJAN
W/O LATE R B RASHEED
AGED ABOUT 62 YEARS
2. R BABA
S/O LATE R B RASHEED
AGED ABOUT 45 YEARS
3. SMT LESHA
D/O LATE R B RASHEED
AGED ABOUT 42 YEARS
Digitally
signed by 4. SMT SALMA
SUMA B N
Location: High D/O LATE R B RASHEED
Court of
Karnataka AGED ABOUT 40 YEARS
5. SMT MOUSINA
D IN LAW OF LATE R B RASHEED
W/O LATE MOULA
AGED ABOUT 42 YEARS
6. ASIF M.,
G/SON OF LATE R B RASHEED
S/O LATE MOULA
AGED ABOUT 22 YEARS
-2-
NC: 2024:KHC:14999
RSA No. 1538 of 2022
7. SMT UMMEHANI
G/DAUGHTER OF LATE R B RASHEED
D/O LATE MOULA
AGED ABOUT 21 YEARS,
ALL ARE R/O RENUMAKALAHALLI VILLAGE
GUDIBANDE TALUK, CHICKBALLAPURA DISTRICT.
...APPELLANTS
(BY SRI. SHAIKH SAOUD.,ADVOCATE)
AND:
1. SMT RASHEEDA BEGUM
D/O LATE ABDUL RAHEEM SAB
W/O LATE ISMAIL
AGED ABOUT 68 YEARS
R/AT RENUMAKALAHALLI VILLAGE
MANCHANABELE VILLAGE
MANDIKAL HOBLI
CHIKKABALLAPURA TALUK - 562 104.
2. SMT MAHABOOB BI
D/O LATE ABDUL RAHEEM SAB
W/O SYED IBRAHIM
AGED ABOUT 58 YEARS
R/AT MANCHANABELE VILLAGE
KASABA HOBLI
CHIKKABALLAPURA TALUK - 562 101.
3. R SAIFULLA
S/O LATE ABDUL RAHEEM SAB
AGED ABOUT 48 YEARS
4. R SHAFIULLA
S/O LATE ABDUL RAHEEM SAB
AGED ABOUT 57 YEARS
-3-
NC: 2024:KHC:14999
RSA No. 1538 of 2022
5. SMT NOOR JAN
W/O LATE MEHABOOB SABI
AGED ABOUT 73 YEARS,
R3 TO R5 ARE RESIDENTS OF
RENUMAKALAHALLI VILLAGE
MANDIKAL HOBLI
CHIKKABALLAPURA TALUK - 562 101.
...RESPONDENTS
(BY SRI. JAI PRAKASH REDDY, ADVOCATE FOR
SRI. BABA FAKRUDDIN P A.,ADVOCATE FOR R1 & R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 01.10.2022
PASSED IN RA.NO.45/2020 ON THE FILE OF THE PRINCIPAL
JUDGE, FAMILY COURT, CHIKKABALLAPURA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 28.02.2020 PASSED IN OS.NO.77/2014 ON THE FILE
OF THE SENIOR CIVIL JUDGE, GUDIBANDE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the defendant No.3 aggrieved by
the judgment and decree dated 28.02.2020 passed in
O.S.No.77/2014 on the file of Senior Civil Judge, Gudibande
(hereinafter 'the Trial Court') which is confirmed by the
judgment and order dated 01.10.2022 passed in
NC: 2024:KHC:14999
R.A.No.45/2020 on the file of Prl. Judge, Family Court at
Chikkaballapura (hereinafter 'the First Appellate Court').
2. The above suit is filed by the plaintiffs against the
defendants for the relief of partition and separate possession,
originally in respect of only one item of property i.e., Sy.No.6/1
situated at Renumakalahalli Village, Mandikal Hobli,
Chickballapur Taluk against defendant Nos.1 to 3. During the
pendency of the suit, item Nos.2 to 6 were included and
defendant Nos.4 Noor Jan was also subsequently impleaded.
3. The case of the plaintiffs is that;
(a). That land in Sy.No.6/1 measuring 2 acre 21 guntas,
Sy.No.38 measuring 14 guntas, Sy.No.39/6 measuring 21
guntas, and Sy.No.39/7 totally measuring 31 guntas out of
which 15 ½ quntas, house property bearing H.L.No.22, to an
extent of East to West 11+15 feet and North to South 38+19
feet and another house property bearing H.L.No.29 to an
extent of East to West 30 feet and North to South 57 feet
situated at Renumakalahalli Village, Mandikal Hobli,
Chickballapur Taluk originally belonged to Abdul Raheem Sab.
NC: 2024:KHC:14999
(b). That the said Abdul Raheem Sab passed away
leaving behind his four children namely (1). Saifulla (defendant
No. 1), (2). Shafiulla (defendant No.2), (3). Rasheeda Begum
and (4). Mahaboob Bi, who are plaintiff No.1 and 2
respectively. That upon the demise of said Abdul Raheem Sab,
plaintiffs and defendant No.1 and 2 being his legal heirs
became entitled to the properties inheriting the same as
tenants-in-common. The Katha in respect to the suit schedule
properties had been mutated in name of defendant No.1 upon
death of their father. That since defendant No.1 and 2 were
acting detriment to the interest of the plaintiffs, they
approached defendant Nos.1 and 2 seeking their share in the
suit properties. That defendant No.3 is utter stranger to the suit
schedule properties, but he claimed to have purchased the item
No.1 of the suit property from the defendant No.1. Hence, the
plaintiffs have filed the suit for partition.
4. In response to the suit summons, the defendant No.1
to 3 appeared through their counsel. The defendant No.3 filed
his written statement denying the plaint averments and
contended that he had purchased the suit item No.1 from
defendant No.1 under registered deed of sale dated 28.6.2004
NC: 2024:KHC:14999
for valuable consideration. Since the date of purchase, he has
been in possession and enjoyment of the suit schedule item No.
1. It is further contended that, father of the defendant No.1
had purchased suit item No.1 from one Byanna under
registered sale deed dated 29.3.1947. Thereafter the defendant
Nos.1 and 2 were residing in joint family and they have
partitioned the properties orally. The defendant No.2 had
executed release deed in favour of defendant No.1 and his
father released from the joint family by redeeming his right
with respect to Sy.No.39/6 to an extent of 1 acre 38 guntas in
Sy.No.39/7 measuring 28 guntas; Sy.No.38 measuring 13
guntas of Renumakalahalli Village and in Sy.No.68/1 measuring
1 acre 1 guntas of Bommaganahalli village and released from
joint family by receiving amount of Rs.4,000/-. It is further
contended that, defendant No.1 was the absolute owner of the
suit item No.1 and he had mortgaged the same in favour of one
M.Sushmitha wife of Dr.G.Narayanaswamy by availing loan of
Rs.30.000/- he redeem the mortgage. Due to financial crisis,
the defendant No.1 sold suit item No. 1 in favour of this
defendant No.3 for legal necessity. It is further pleaded that,
father of defendant No.1 passed away about 20 years back,
NC: 2024:KHC:14999
since then defendant No.1 alone was enjoying suit item No.1.
The suit is barred by limitation, as suit was not filed within 12
years from the date of death of their father. The plaintiffs have
been ousted of their right over the suit schedule property, as
such they have no right to seek for partition. The plaintiffs
have not included all the properties belonged to defendant No.1
and 2. Hence, sought for dismissal of the suit.
5. Based on the pleadings, the Trial Court framed the
following issues for its consideration:
"1). Whether the plaintiffs prove that, themselves and the
defendants are the tenants-in-common of the suit
property?
2) Whether the defendant No.3 proves that the father of
defendant No.1 had purchased the property from Byanna
under the registered sale deed dated 29.3.1947?
3) Whether the defendant No.3 proves that. defendant
No.2 has executed release deed?
4) Whether the defendant No.3 proves that, he is the
absolute owner in possession of the suit schedule
property?
5) Whether the suit is barred by limitation?
6) Whether the plaintiffs are entitled for the relief as
prayed for?
7) What Order or Decree?"
NC: 2024:KHC:14999
6. The plaintiff No.1 examined herself as PW.1, one
additional witness had been examined in her favour as PW.2
and exhibited 9 documents marked as Ex.P1 to Ex.P9. In order
to prove their defence, defendant No.3 examined himself as
DW1 and exhibited 6 documents marked as Ex.D1 to Ex.D6.
After inclusion of item Nos.2 to 6, the plaintiffs did not adduced
any further evidence. On appreciation of the evidence the Trial
Court answered issue Nos.1 and 6 partly in the affirmative,
issue No.2 in the affirmative, issue Nos.3 and 5 in the negative
and consequently decreed the suit in part holding that
plaintiffs are entitled for 1/5th share together in suit item No.1
and defendant Nos.1 and 2 are entitled to 2/5th share each in
suit item No.1 only. Suit with respect to suit item Nos.2 to 6
were dismissed.
7. Being aggrieved by the aforesaid judgment and decree
legal representatives of defendant No.3 filed an appeal in
R.A.No.45/2020 before the First Appellate Court. Considering
the grounds urged the First Appellate Court framed the
following points for its consideration:
"1) Whether the legal heirs of defendant No.3 have
made out a case that the document sought to be
produced under I.A.No.2 is required to be allowed ?
NC: 2024:KHC:14999
2) Whether the legal heirs of defendant No.3 have
made out a case that the proposed amendment
sought in I.A.No.4 is required for proper adjudication
of the dispute ?
3) Whether the judgment and decree of the trial
court is apparent, illegal, perverse and capricious,
therefore requires interference by this court?
4) What order?"
8. On re-appreciation of the evidences, the First Appellate
Court answered point Nos.1 to 3 in the negative and
consequently dismissed the appeal confirming the judgment
and decree passed by the Trial Court. Being aggrieved by the
same legal representatives of deceased defendant No.3 are
before this Court.
9. Sri.Shaikh Saoud, learned counsel for the appellant
reiterating the grounds urged in the memorandum of the
appeal submitted that at the stage of First Appeal the legal
representatives of deceased defendant No.3 had filed an
application seeking to amend the written statement to bring on
record the Will that was executed by the father of the plaintiffs
and defendant Nos.1 and 2 on 27.04.1991 bequeathing entire
item No.1 of the suit schedule properties in favour of defendant
No.1. He further submitted that the First Appellate Court
grossly erred in not allowing the amendment to the written
- 10 -
NC: 2024:KHC:14999
statement to bring on record the factum of the execution of
Will. He further submitted that the properties were mortgaged
by the father of the plaintiffs and defendant Nos.1 and 2 and
the same was redeemed by defendant No.1 by paying the
money out of his own hand. Thus by virtue of Will as well as by
repaying the mortgaged amount, defendant No.1 had become
the absolute owner of the property, capable of conveying the
same on his own. It is his further submission that the deed of
sale in question was executed by the defendant No.1 in favour
of defendant No.3 on 28.06.2004, whereas the suit is question
was filed in the year 2014, as such the suit was barred by
limitation. Thus he submits that the Trial Court and the First
Appellate Court have grossly erred in not appreciating this
aspect of the matter, giving raise to substantial question of law.
10. Per contra, Sri.Jai Prakash Reddy, learned counsel for
the respondents-plaintiffs justifying the judgment and decree
passed by the Trial Court and confirmed by the First Appellate
Court submitted that there has been no whisper with regard to
the Will purported to have been executed by the father of the
plaintiffs and defendant Nos.1 and 2 before the Trial Court and
the same was brought before the First Appellate Court. He
- 11 -
NC: 2024:KHC:14999
further submits notwithstanding the same, the First Appellate
Court has looked into the relevant provisions of law applicable
to the parties and has declined to accept the contentions of the
parties and dismissed the appeal. He submits that no
substantial question of law would arise for consideration in this
appeal.
11. Heard. Perused the records.
12. The admitted fact of the matter is that plaintiffs and
defendant Nos.1 and 2 are the children of late Abdul Raheem
Sab. It is also admitted fact that the item No.1 of the suit
schedule properties originally belonged to late Abdul Raheem
Sab, he having purchased the same in terms of deed of sale
dated 29.03.1947. Parties are governed under the provisions
of Muslim Personal Law. Upon the demise of the Abdul Raheem
Sab, plaintiffs being daughters and defendants being sons are
entitled for their specified shares. In that view of the matter,
defendant No.1 could not have claimed to be exclusive owner of
the properties of Abdul Raheem Sab and alienated the same in
favour of defendant No.3. In any case, defendant Nos.1 and 2
have not filed their written statement, it was only the
defendant No.3 who is the purchaser, has filed his written
- 12 -
NC: 2024:KHC:14999
statement, raising the issue with regard to purported discharge
of mortgage by defendant No.1.
13. It is also interesting to note that in the regular
appeal filed by the legal representatives of the defendant No.3
before the First Appellate Court a plea with regard to father of
the plaintiff and defendant No.1 having executed a Will dated
27.04.1991 in favour of defendant No.1 was sought to be
brought on record. Though, attempts to bring said plea in the
written statement by amendment was rejected, the First
Appellate Court has adverted to the provisions governing
testamentary disposition. Deceased was not entitled to execute
the Will in excess of 1/3rd of his share, that too in favour of
non-heirs. In the present case, the legal representatives of
defendant No.3 are seeking to contend that the entire property
was bequeathed in favour of defendant No.1. Such a plea is
untenable, even if there was such a Will, same could not have
been established in the eye of law as rightly taken note of by
the First Appellate Court.
14. Though issue of limitation is pleaded, the suit
schedule property was sold admittedly in the year 2004 and the
suit has been filed in the year 2014, that is within 10 years, as
- 13 -
NC: 2024:KHC:14999
such the Trial Court and the First Appellate Court have held
that the suit was not barred by limitation.
15. Accordingly, this appeal is dismissed confirming the
judgment and decree passed by the Trial Court and the First
Appellate Court.
16. No irregularity or illegality can be found with the said
reasoning arrived at by the Trial Court and confirmed by the
First Appellate Court. No substantial question of law would arise
for consideration in this appeal.
17. Needless to state, that the sale made by the defendant
No.1 in favour of the defendant No.3 would be valid only to the
extent of share of the defendant No.1.
Sd/-
JUDGE
RL
