Karnataka High Court
Shamshuddin vs Khamrunisssa on 22 October, 2024
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NC: 2024:KHC-D:15272
RFA No. 100157 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100157 OF 2016 (PAR/POS)
BETWEEN:
SHAMSHUDDIN
S/O. P.K. MOHAMMED,
AGE: 48 YEARS,
R/O: SILVER TOWN,
GOKUL ROAD,
HUBBALLI-580030.
DIST: DHARWAD.
...APPELLANT
(BY SRI. S. G. KADADAKATTI, ADVOCATE)
AND:
1. KHAMRUNISSSA
W/O. K.P. ALI, AGE: 48 YEARS,
ASHPAK
KASHIMSA R/O: IKHODI,
MALAGALADINNI
DIST: KANNUR-670307
KERALA STATE.
2. SMT. SAKEENA
Location:
HIGH W/O. RIYAZ K.P, AGE: 42 YEARS,
COURT OF R/O: MASKUT-OMAN,
KARNATAKA ARAB COUNTRY-113.
3. SMT. AYESHA
W/O. ASIF PUAKKAL,
AGE: 39 YEARS,
R/O: HOSUR, HUBBALLI - 580030,
DIST: DHARWAD.
4. SMT.FATIMA
W/O. P.K. MOHAMMED,
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NC: 2024:KHC-D:15272
RFA No. 100157 of 2016
AGE: 81 YEARS,
OCC: HOUSE HOLD WORK,
R/O: KESHWAPUR,
HUBBALLI - 580023,
DIST: DHARWAD.
5. ASKARALI
S/O. P.K. MOHAMMED,
AGE: 43 YEARS,
R/O: HOSUR,
HUBBALLI-580030,
DIST: DHARWAD.
6. SMT. SHARIFUNNISH
W/O. ABDUL HAMEED,
AGE: 58 YEARS,
OCC: HOUSE HOLD WORK,
R/O: GANESH PETH,
BINDARGI ONI,
HUBBALLI-580020,
DIST: DHARWAD.
...RESPONDENTS
(BY SRI. M.R. MULLA, ADVOCATE FOR R3 (ALSO GPA HOLDER TO
R-1 & R-2)
THIS RFA FILED UNDER ORDER XLI RULE 1 R/W. SECTION
96 OF CPC., PRAYING TO PASS AN ORDER BY SETTING ASIDE
THE JUDGMENT AND DECREE IN O.S. NO.372/2013 DATED
21.01.2016 ON THE FILE OF IIND ADDITIONAL SENIOR CIVIL
JUDGE, HUBBALLI BY ALLOWING THE APPEAL WITH COSTS
THROUGHOUT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:15272
RFA No. 100157 of 2016
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is filed by defendant No.2. The appeal is filed
challenging the part of the judgment and decree awarding
share in respect of item No.4 property, which is a residential
site measuring 2 guntas 2 annas bearing number 91/B/2, plot
number 35 in Rayanal Village, Taluk Hubli.
2. The suit in respect of item No.5 is dismissed and
the plaintiff has not questioned the said judgment and decree.
3. The suit in respect of remaining item No.1 to 3
properties is decreed and defendants have not questioned the
said judgment and decree.
4. Defendant No.2, who is the brother of the plaintiffs,
raised a contention that the suit property at item No.4 is the
self acquired property of defendant No.2 and his wife as they
purchased the property under the registered sale deed dated
03.11.2002. The Trial Court rejected the said defence and
granted a decree for partition in respect of item No.4 property.
As already noticed, the suit is dismissed in respect of item No.5
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property on the premise that the said property exclusively
belongs to 1st defendant.
5. Learned counsel appearing for defendant
No.2/appellant would contend that the Trial Court committed
an error in applying the concept of joint family, though the
parties to the proceedings are the Mohammedans. It is
submitted that there is no concept of joint family among the
Mohammedans and despite, the property standing in the name
of defendant No.2 and his wife, the suit is erroneously decreed
in respect of item No.2 property.
6. It is also urged that the property stands in the
name of defendant No.2 and his wife and his wife is also a
necessary party to the suit. Though the contention is raised
that wife of 2nd defendant is a necessary party, the Trial Court
did not answer the said issue and decreed the suit in respect of
the property to which 2nd defendant's wife is also the joint
owner.
7. He would also submit that the appellant, though
produced the xerox copy of the registered sale dated
03.11.2000, same is not inadvertently not marked before the
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Trial Court and the appellant has filed an application before this
Court invoking Order XLI Rule 27 of the Code of Civil Procedure
to produce the original sale deed. Thus, he would pray for
dismissal of the suit in respect of item No.4 property by
allowing the appeal.
8. Learned counsel appearing for the
plaintiffs/respondents would contend that the suit property at
item No.4 is the property purchased from the income from the
remaining properties which belonged to the family of the
plaintiffs and defendants. He would contend that the Trial Court
has carefully analyzed the evidence on record and has come to
the conclusion that the purchase of the property in the name of
defendant No.2 and his wife is from the income from the
remaining properties belonging to the plaintiffs and the
defendants. Thus, he would pray for dismissal of the appeal.
9. It is also his submission that valid grounds are not
made out to allow the application under Order XLI Rule 27 of
the Code of Civil Procedure and appellant ought to have
produced the original sale deed before the Trial Court itself. He
would also submit that the document produced before this
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Court is not the original sale deed, but is a colored Xerox copy,
as such, same is inadmissible.
10. This Court has considered the contentions raised at
the bar and perused the records.
11. The following points arise for consideration:
(a) Whether the appellant is able to establish that item
No.4 property is the self acquired property of his
wife and himself?
(b) Whether the appellant has made out a ground for
production of additional document?
(c) Whether the Trial Court is justified in granting a
decree for partition in respect of item No.4
property?
12. It is well settled principle of law that concept of
joint family is unknown among the Mohammedans. However,
there may be exceptional cases where even the Mohammedans
may live as joint family members. But, this has to be pleaded
by way of a custom. No such custom is pleaded and established
in this case. This being the position, the Court cannot accept
that the plaintiffs and defendants constituted the joint family.
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13. The next question is, "whether item No.4 property
is the property belonging to the plaintiffs and the defendants?"
The Trial Court has held that the properties are purchased by
P.K.Mohammed, the father of the plaintiffs and defendants.
However, the record of right produced before the Trial Court by
the plaintiffs themselves would clearly demonstrate that the
said property at item No.4 stands in the name of defendant
No.2 and his wife.
14. The plaintiffs in their plaint have pleaded that the
said property is purchased in the name of defendant No.2 from
the income derived from the properties at items No.1 to 3 and
5. The said contention cannot be accepted as the plaintiffs
haave not pleaded the existence of custom relating to the joint
family in their family. This being the position, the finding of the
Trial Court that the property at item No.4 is the property
purchased by P.K.Mohammed is an erroneous finding without
any basis. Hence, the Trial Court could not have held that item
No.4 property is the joint property of the plaintiffs and
defendants.
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15. As far as application under Order XLI Rule 27 of the
Code of Civil Procedure is concerned, it is noticed that the
plaintiff seeks to produce the colored xerox of the registered
sale deed dated 03.11.2000. No explanation is provided as to
why the original is not produced. Hence, this Court is of the
view that no ground is made out to entertain the colored xerox
copy which is said to be the secondary evidence. However, the
record of right produced by the plaintiffs which is marked at
Exhibit P.1 itself would disclose that the property at item No.4
stands in the name of defendant No.1 and his wife. Wife of
defendant No.1 is not made a party. The Trial Court could not
have passed a decree for partition in respect of item No.4
property which stands in the name of defendant No.2 and his
wife.
16. Apart from that, there are no materials to hold that
the said property is the joint property of the plaintiffs and
defendants. Hence, the Trial Court could not have granted a
decree for partition in respect of item No.4 property.
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17. For the aforementioned reasons, the appeal has to
be allowed in part. The part of the judgment and decree passed
by the Trial Court have to be set aside.
18. Hence, the following:
ORDER
i. Appeal is allowed in part.
ii. The Judgment and decree in O.S.No.372/2013
dated 21.01.2016 on the file of the II
Additional Senior Civil Judge, Hubballi insofar
as item No.4 property are set aside.
iii. The suit is dismissed in respect of item No.4
property and decreed in respect of items No.1
to 3 properties.
iv. No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
BRN
