Karnataka High Court
Smt Sabirunnisa vs Noor Unissa Begum W/O O M Ayab Khan Dead By ... on 27 February, 2024
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NC: 2024:KHC:8237
WP No. 51445 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 51445 OF 2019 (GM-CPC)
BETWEEN:
1. SMT. SABIRUNNISA
W/O SHAHABUDDIN
D/O SYED KHADER
AGED ABOUT 68 YEARS
PROPRIETOR: SHAHEEN SHOW CENTRE
BANGALORE ROAD, CHINTAMANI,
CHICKABALLAPUR-563125.
2. SRI. P. SYED KHAN
S/O LATE P. MOHIDDIN KHAN
AGED ABOUT 80 YEARS
FRUIT MERCHANT,
BANGALORE ROAD,
CHINTAMANI,
CHICKABALLAPUR-563125
SINCE DEAD BY LRS
2(a) P. AZEEZ KHAN,
S/O LATE P. SYED KHAN,
Digitally AGED ABOUT 68 YEARS,
signed by BS
RAVIKUMAR R/A 6TH SECTOR, B MAIN,
Location: BEHIND FERNHILL APARTMENT,
HIGH D.NO.L50, H.S.R.LAYOUT,
COURT OF BANGALORE.
KARNATAKA
2(b) SHAMSHAD BEGUM,
D/O LATE P. SYED KHAN,
AGED ABOUT 60 YEARS,
R/A K.G.N. HIGH SCHOOL,
CHINTAMANI,
CHIKKABALLAPURA DISTRICT
2(c) PARVEEN TAJ
D/O LATE P. SYED KHAN,
AGED ABOUT 58 YEARS,
R/AT II BLOCK, CHINNASANDRA
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WP No. 51445 of 2019
CHINTAMANI TALUK,
CHIKKABALLAPURA DISTRICT.
2(d) P. MOHAMMAD RAFI KHA,
S/O LATE P. SYED KHAN,
AGED ABOUT 50 YEARS,
2(e) P. ILIYAZ KHAN,
S/O LATE P. SYED KHAN,
AGED ABOUT 47 YEARS,
2(f) SHAHEENA BEGUM,
D/O LATE P. SYED KHAN,
AGED ABOUT 45 YEARS,
PETITIONER NOS.2(d) TO 2(f)
ARE R/A K.G.N. HIGH SCHOOL,
CHINTAMANI,
CHIKKABALLAPURA DISTRICT.
AMENDMENT CARRIED OUT AS PER
ORDER DATED 12.02.2024.
...PETITIONERS
(BY SRI. VIVEK N., ADVOCATE FOR SRI. RAHUL S REDDY,
ADVOCATE)
AND:
NOOR UNISSA BEGUM
W/O O.M. AYAB KHAN
DEAD BY LRS
1. SMT. KURSHIDUNNISA
W/O ABDUL RAHEEM
AGED ABOUT 73 YEARS
2. SMT. SHAMEEM
W/O AJAJ KHAN
AGED ABOUT 71 YEARS
3. SRI. UMAR KHAYAM KHAN @ BABU
S/O M. AYUB KHAN
AGED ABOUT 69 YEARS
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4. SRI. QUTUBUDIN KHAN @ ASLAM KHAN
S/O M. AYUB KHAN
AGED ABOUT 67 YEARS
5. SRI. FAZLUNUNNISA
W/O FAYAZ AHMED
AGED ABOUT 66 YEARS
6. SRI. IBRAHIM KHAN
S/O M. AYUB KHAN
AGED ABOUT 65 YEARS
7. SRI. RAHAMAT
S/O MINHAAJ KHAN
AGED ABOUT 64 YEARS
8. SRI. GHOUSE KHAN
S/O M. AYUB KHAN
AGED ABOUT 63 YEARS
9. SMT. ASMATH
W/O JAMEEL AHMED KHAN
AGED ABOUT 62 YEARS
10. SMT. SALMA
W/O CHAND
AGED ABOUT 64 YEARS
11. SRI. USMAN KHAN
S/O M. AYUB KHAN
AGED ABOUT 59 YEARS
RESPONDENT NOS.1 TO 11 ARE
RESIDING AT ATS BUILDING,
K.R. EXTENSION, CHINTAMANI,
CHICKBALLAPUR DISTRICT-565307
MOHAMMED ISMAIL @ NAWAB
S/O LATE MOHAMMED GHOUSE
DEAD BY HIS LRS
12. ZAHEDUNNISA
W/O LATE MOHAMMED ISMAIL
AGED ABOUT 73 EYARS
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13. NAZ SULTANA
D/O LATE MOHAMMED ISMAIL
AGED ABOUT 46 YEARS
14. MD. ZAINULLA ALIAS MOHAMMED INAYATHULLA
S/O LATE MOHAMMED ISMAIL
AGED ABOUT 48 YEARS
15. MD. GHOUSE ALIAS SAIF
S/O LATE MOHAMMED ISMAIL
AGED ABOUT 46 YEARS
16. MD. KHADAR ALI
S/O LATE MOHAMMED ISMAIL
AGED ABOUT 44 YEARS
17. KHALEEL UR REHMAN
S/O LATE MOHAMMED ISMAIL
AGED ABOUT 42 YEARS
RESPONDENT NOS.12 TO 17 ARE
RESIDING AT GAJANNA CIRCLE,
POLYTECHNIC ROAD,
CHINTAMANI TOWN,
CHICKABALLAPUR DISTRICT-565307
18. SMT. LAKSHMIDEVAMMA
AGE MAJOR
R/A NO.352, 1ST N BLOCK
RAJAJINAGAR,
BENGALURU-560010
19. DR. G.S. SHANTH, MBBS
AGE MAJOR
MEDICAL PRACTIONER,
SHANTHI CLINIC, M.G. ROAD,
CHINTAMANI,
CHIKKABALLAPURA-565307
20. SRI. H.S. TIRUNARAYANA IYENGAR
AGE MAJOR
PROP. J.B. BAKERY
M.G. ROAD, CHINTAMANI TOWN,
CHICKBALLAPURA-565307.
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FATHIMUNNISA
W/O LATE MOHAMED GHOUSE
DEAD, LRS ALREADY ON RECORD
21 SRI. P. MOHABOOB KHAN
S/O SYED KHAN
AGE MAJOR
R/A M.G. ROAD, CHINTAMANI TOWN,
CHICKBALLAPURA-565307.
22. SRI. ABIDUNNISA AND ABIDA
W/O MOHAMMED ABBAS
AGED ABOUT 59 YEARS
R/A NAREPPA ROAD
CHINTAMANI
CHICKBALLAPUR-565307
...RESPONDENTS
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE FOR CAVEATOR
RESPONDENT NO.3;
NOTICE SERVED ON RESPONDENT NOS.1 TO 11, 14, 18 AND 22;
VIDE ORDER DATED 12.02.2024 PETITION AGAINST RESPONDENT
NOS.12 TO 22 IS DISMISSED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
IN FDP NO.2/1989 BEFORE THE SENIOR CIVIL JUDGE AND JMFC,
CHINTAMANI AND QUASH THE ORDER DATED 27.09.2019 PASSED
ON I.A.NO.15 AND 16 IN FDP NO.2/1989 BEFORE THE SENIOR CIVIL
JUDGE AND JMFC, CHINTAMANI VIDE ANNEXURE-J.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners, who were defendant Nos.6 and 7 in FDP
No.2/1989 pending consideration before the Civil Judge (Sr.
Dvn.) and JMFC, Chintamani (henceforth referred to as 'Final
Decree Court') have filed this petition challenging an order
dated 27.09.2019 passed therein, by which, their applications
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(I.A.Nos.15 and 16) to work out equity for substituted security
due to reduction of their interest in suit item No.3, were
rejected.
2. A suit in O.S.No.17/1987 was filed for partition and
separate possession of the plaintiff's 1/3rd share in the suit
schedule properties, which was decreed and a preliminary
decree was passed declaring that the plaintiff is entitled to 1/3rd
share, while defendant No.1 is entitled to 2/3rd share in the suit
schedule properties.
3. The defendant Nos.6 and 7 claiming to have
purchased the entire suit item No.3 from defendant No.1 were
brought on record in FDP No.2/1989. The said defendants filed
applications (I.A.No.15 and 16) for allotment of suitable
properties out of the share of defendant No.1 to offset their
deficit 1/3rd in suit item No.3. The Final Decree Court cursorily
rejected these applications in terms of the impugned order on
the ground that the judgment of the Trial Court declaring that
defendant No.1 is entitled to 2/3rd share in the suit item No.3
was confirmed by the Hon'ble Supreme Court in Special Leave
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to Appeal (C) Nos.745-748/2017 and therefore, they have no
right to seek for equity against the plaintiff.
4. Being aggrieved by the said order, this writ petition
is filed.
5. During the pendeny of this writ petition, petitioner
No.2/defendant No.7 died and his legal representatives were
brought on record.
6. The learned counsel for defendant Nos.6 and 7
submitted that in terms of the preliminary decree, defendant
No.1 is entitled to 2/3rd share in the suit item No.3. Therefore,
defendant Nos.6 and 7 being lawful purchasers of the entire
extent in suit item No.3 deserves be compensated in view of
the preliminary decree declaring that defendant No.1 is entitled
to 2/3rd share in the suit properties. He submits that there are
other properties, where defendant No.1 is entitled to 2/3rd
share and therefore, defendant Nos.6 and 7 are entitled to be
compensated out of the share in other properties that may fall
to the share of defendant No.1 in the suit schedule properties,
except suit item No.2, which is allotted to the plaintiff.
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7. The learned counsel for the plaintiff submitted that
the plaintiff is granted 1/3rd share in the suit schedule
properties and that the suit item No.2 is allotted to the share of
the plaintiff and therefore, except her 1/3rd share in suit item
No.3 and other properties as well as suit item No.2, she has no
objection for substitution of security to compensate defendant
Nos.6 and 7 to the extent of deficit 1/3rd share.
8. I have considered the submissions made by the
learned counsel for defendant Nos.6 and 7 as well as the
learned counsel for the plaintiff.
9. It is now trite that a member of a family cannot sell
a specified property but can only alienate his/her undivided
share. In the face of preliminary decree declaring that the
plaintiff is entitled to 1/3rd share and defendant No.1 is entitled
to 2/3rd share in the suit schedule properties, defendant Nos.6
and 7 being the purchasers are only entitled to work out equity
to allot share that may fall to defendant No.1 in item No.1. In
so far as short fall is concerned, defendant Nos.6 and 7 deserve
to be compensated from out of the other properties, where a
share is declared in favour of defendant No.1. In similar
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circumstances, this Court had held in MFA No.200638/2019
(D.D. 28.07.2023) that the purchaser is entitled for such
substitution.
10. Hence, this writ petition is allowed. The impugned
order dated 27.09.2019 passed by the Senior Civil Judge and
JMFC, Chintamani is set aside. The applications (I.A.Nos.15 and
16) filed by defendant Nos.6 and 7 are allowed. The Final
Decree Court is directed to allot 2/3rd share in suit item No.3 to
defendant Nos.6 and 7 and also work out equity by identifying
a suitable property other than suit item No.1, where defendant
Nos.6 and 7 could be suitably compensated from out of the
share that may fall to defendant No.1.
11. In view of the judgment dated 15.02.2019 passed
by the Hon'ble Supreme Court in Special Leave to Appeal (C)
Nos.745-748/2017, the possession of 8 ft x 25 ft. in suit item
No.3 shall be handed over to the plaintiff forthwith.
Sd/-
JUDGE
PMR
