Karnataka High Court
Mehaboobsab S/O Usmansab Barodwale vs Shanhansha S/O Usmansab @ Usmansha ... on 23 October, 2024
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RFA No. 4148 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.4148 OF 2012 (PAR-)
BETWEEN:
SRI. MEHABOOBSAB
S/O. USMANSAB BARUDWALE,
AGE: 52 YEARS,
OCC: PRIVATE SERVICE,
R/O: HAVERI. NOW AT MUMBAI, RAVI.
RACHANA CORNER CO-OPERATIVE SOCIETY,
PLOT NO. 62, KAMOTI NAVI MUMBAI,
DIST: RAIGAD
REPTD., BY GENERAL POWER OF ATTORNEY HOLDER
SRI. SURESH S/O. MALLAPPA HOSAMANI,
AGE: 46 YEARS,
OCC: BUSINESS AND AGRICULTURE,
OPP. DISTRICT COURT, M.G.ROAD,
ASHPAK
KASHIMSA
HAVERI, TQ: DIST: HAVERI.
MALAGALADINNI
...APPELLANT
(BY SRI. LAXMAN T. MANTAGANI, ADVOCATE)
Location:
HIGH
COURT OF AND:
KARNATAKA
1. SHANHANSHA S/O. USMANSAB @ USMANSHA
BHARADWALE, AGE: 42 YEARS,
OCC: PRIVATE SERVICE,
R/O: HAVERI,
TQ: DIST: HAVERI.
NOW AT BOMBAY SHA-BLAJOM CO-OPERATIVE
HOUSING SOCIETY, E-WING,
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RFA No. 4148 of 2012
PLOT NO. 7,
2ND FLOOR, OPP: S. T. DEPOT,
NALASUPARA WEST,
DIST: THANE 401203, BOMBAY.
2. SHAHAJAHAN @ SHAHAJAHANBEGUM
W/O. USMANSAB @ USMANSHA BHARUDWALE,
(SINCE DECEASED BY LR'S)
2a. BAHADURSHAH USHMANSHA BARUDAWLE,
DEVARAGUDIHAL ROAD,
VANI PLOT,
BEHIND MASJID,
FARZANA BEGUM LAKKUNDI,
PLOT CTS NO. 128/1, PLOT NO.5,
OLD HUBLI-580024.
2b. MRS. NAZMA MOHMADSHAFI SHEK
ADARSHA APARTMENT, A WING,
1ST FLOOR NO.103,
BEHIND NAVAVATI HOSPITAL
GAONTHAN, VELEPARLE WEST,
MUMBAI-400056.
2c. RESHMA RIYAZ SHEK
MANISH LOTUS BUILDING CO-OP SOCIETY,
BLDG NO. 30'B' WING, 1ST FLOOR,
BEHIND MANISH NAGAR MARKET,
ANDHERI WEST, FOUR BUNGLOW,
MUMBAI - 400053.
2d. MUMTAZ RAFIQ SHEK,
VATSALA TAI NAGAR,
TAKKAR BABA COLONY,
BLDG - 7 (M.MRD),
1ST FLOOR,
KURLA, EAST MUMBAI - 400024.
3. SRI. MOHAMMAD BURHAN
S/O. MAHAMMAD HANIF CHUDIGAR,
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NC: 2024:KHC-D:15343
RFA No. 4148 of 2012
AGE: 24 YEARS,
OCC: BUSINESS,
R/O: M.G.ROAD, HAVERI,
TQ: DIST: HAVERI.
4. SRI. MOHAMMAD SHIRAJ
S/O. MAHAMMAD HANIF CHUDIGAR,
AGE: 23 YEARS,
OCC: BUSINESS,
R/O: M.G.ROAD, HAVERI,
TQ: DIST: HAVERI.
5. SMT. SARASWATIBAI
W/O. VENKATARAMAN HEBBAR,
AGE: 72 YEARS,
OCC: HOUSEHOLD WORK,
R/O: OPP. DR. SAKHARE BUILDING,
ASHWINI NAGAR,
TQ: DIST: HAVERI.
...RESPONDENTS
(BY SRI. N. P. VIVEKMEHTA, ADVOCATE FOR R3 AND R4)
---
THIS RFA IS FILED U/SEC.96 OF CPC., PRAYING TO SET-
ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO.69.2010
DATED 15.06.2012 ON THE FILE OF THE ADDL. CIVIL JUDGE
(SR.DN) COURT, HAVERI AT: HAVERI, AND TO ALLOW THIS
APPEAL AND THE SUIT OF THE PLAINTIFF BE DECREED WITH
COSTS THROUGHOUT, IN THE INTEREST OF THE JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
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RFA No. 4148 of 2012
ORAL JUDGMENT
1. This appeal is directed against a decree dismissing
the suit for partition and separate possession.
2. The plaintiff claimed half share in the suit schedule
properties on the premise that the suit schedule
properties were gifted to the plaintiff and her
brother, the first defendant. The plaintiff claims that
the properties were gifted by her mother, the second
defendant, and the said gift is said to be an oral gift.
3. The genealogy provided is as follows:
Imambi
(poti 1969)
Shahajahanbegum= Usmansab Noorjahan
(Res No.2)
Mehaboobsab Shahansha Bahadurshah Sharaf
(Appellant) (Res No.1) Unnisa
1) Nazima 2) Mumtaz 3) Shameena 4) Reshma
Begum Banu Begum
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4. One Imambi was the owner of the property and she
died in the year 1969. She was survived by two
daughters, Shehajahan begum and Noorjahan,
Shehajahan Begum had two daughters and two sons.
5. Shehajahan Begum was the second defendant before
the Trial Court and she died during the pendency of
this appeal. The plaintiff is the son of Shehajahan
Begum and the first defendant is the brother of the
plaintiff. The fifth defendant is said to be the tenant
of the suit property.
6. As per the averments made in the plaint, there was a
partition between Shehajahan Begum and Noorjahan
in the year 1982, and in the said partition, the suit
property was allotted to the share of Shehajahan
Begum. The title over the property is claimed on the
basis of the oral gift said to have been made in the
year 1989 in favor of the plaintiff and the first
defendant by the second defendant Shehakana
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Behum. Hence the suit is filed by the plaintiff seeking
partition of her half share based on the said oral gift.
7. The first defendant did not contest the suit. The
second defendant, the mother of the plaintiff,
contested the suit. The first defendant disputed the
execution of the alleged oral gift in 1989. In addition,
the first defendant took a stand that she had sold the
suit property to defendants No.3 and 4 under the
registered sale deed dated 21.11.2010. Thus, the
second defendant prayed for the dismissal of the
suit.
8. The purchasers, defendants No.3 and 4 also filed a
written statement disputing the claim relating to the
oral gift and claimed to be the owners of the property
under the registered sale deed executed by the
second defendant.
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9. The Trial Court framed the following issues:
1) Whether plaintiff proves that, himself and
deft.No.1 and 2 are co-owner and tenants
in common of the suit schedule
properties?
2) Whether plaintiff proves that, the
defendant No.2 was gifted the suit
schedule properties in favour of him and
defendant No.1 on 15-12-1989 in respect
of suit properties?
3) Whether plaintiff proves that himself and
defendant No.1 are became the owner of
suit properties on the basis of gift?
4) Whether deft.No.2 proves that herself and
Noorjahan Begum have got divided the
properties in 1982 and suit properties
were fallen her share?
5) Whether defendant No.3 & 4 proves that
they are the bonafide purchasers of the
suit schedule properties?
6) Whether defendant No.3 and 4 proves
that, the suit of the plaintiff is not
maintainable without seeking the relief of
declaration?
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7) Whether deft.No.5 proves that, the suit of
the plaintiff is hit by the rule of estoppel?
8) Whether deft.No.5 proves that the suit of
the plaintiff is barred by the law of
limitation?
9) Whether deft.No.5 proves that the plaintiff
has paid insufficient Court fee?
10) Whether plaintiff is entitle the relief of
partition and separate possession?
11) Whether plaintiff is entitle 1/2 share the
suit properties?
12) What order or decree?
10. The trial Court dismissed the suit on the premise that
the oral gift is not established. Aggrieved by the
aforementioned judgment and decree, the plaintiff is
before this Court.
11. Sri Laxman T.Mantagani, learned counsel appearing
for the plaintiff/appellant would contend that the
plaintiff's mother- defendant No.2 filed HRC
No.3/1989 seeking eviction of the property of the
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tenant. In the said proceedings, she has made a
statement that she has gifted the property in favour
of her two sons and claimed eviction from the tenant
on the premise that the premise is required to run
the business for her two sons. The said proceeding
was dismissed as abated as the tenant died during
the pendency of the said proceedings. Then,
defendant No.2 filed a suit for eviction before the
Civil Judge, Haveri in O.S.No.197/2006. In the
aforementioned proceedings, defendant No.2 has
stated that she has gifted the property in the year
1989 in favour of plaintiff and defendant No.1, her
children, as such, the oral gift is established and
defendant No.2 could not have sold the property.
12. It is urged that the parties being the Mohammadans,
oral gift is very much recognized in law and the trial
Court committed an error in dismissing the suit on
the premise that the oral gift is not established. He
would also contend that the sale transaction in the
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name of defendants Nos.3 and 4 is during the
pendency of O.S.No.197/2006 and transaction is hit
by Rule of lis-pendence.
13. Learned counsel for the respondents would defend
the impugned judgment and decree by raising a
contention that oral gift said to have been executed
by defendant No.2 in favour of plaintiff and
defendant No.1, is not established and defendant
No.2-mother of the plaintiff herself has disputed the
claim of oral gift in the written statement. It is also
urged that defendants No.3 and 4 have purchased
the property under registered sale deed dated
21.01.2010 and have acquired valid title over the
property and the plaintiff does not have any right
over the property and prayed for dismissal of this
appeal.
14. This Court has considered contentions raised at the
bar and perused the records.
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15. The following points arise for considerations:
i. Whether the appellant has established
execution of oral gift in her favour and in
favour of defendant No.1 by defendant
No.2 ?
ii. Whether defendants No.3 and 4 established
that they have purchased the property
from defendant No.2 ?
16. Though it is stated that defendant No.2 has executed
oral gift in respect of the suit property, which was
allegedly in possession of defendant No.5, the said
oral gift is not reported to the revenue authorities.
There is no change in the property records based on
the oral gift. The properties continued to stand in the
name of defendant No.2-mother and it is also
relevant to note that defendant No.2 filed HRC
No.3/1989 seeking eviction of the tenant.
17. This being the position, it cannot be said that plaintiff
has acquired title of the property under the alleged
oral gift as the alleged oral gift is not proved. Even
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after dismissal of HRC No.3/1989 as abated on
account of death of the original tenant, the
defendant No.2 filed the suit in O.S.No.197/2006
seeking eviction.
18. In the said suit, the plaintiff moved an application to
implead herself as a party based on the alleged oral
gift. The said application was filed in the year 2011
on the premise that there was an oral gift in the year
1989. The trial Court has noticed this conduct on the
part of the plaintiff in not instituting the eviction
proceeding and not filing a suit for eviction.
19. It is relevant to note that, in the cross-examination,
the PW.1 has admitted that she has not taken
possession of the property based on the alleged oral
gift. It is also admitted by the PW.1 in the cross-
examination that she has not collected rent from the
tenant after the alleged oral gift in the year 1989. In
the cross-examination the plaintiff states that the
suit is filed based on the statement (Ex.P.11) given
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by defendant No.2, in HRC No.3/1989. The trial
Court has concluded that the claim based on the said
statement in HRC No.3/1989 is not sufficient enough
to uphold the claim based on the unregistered oral
gift.
20. The trial Court has also noticed the fact that there is
no rent agreement between defendant No.5 and the
plaintiff in respect of the suit property though the
plaintiff made a claim that he acquired joint right
over the property based on the alleged oral gift. In
the cross-examination, it is further admitted that no
witnesses were present when the property was
allegedly gifted in favour of the plaintiff and
defendant No.1.
21. It is also noticed by the trial Court that defendant
No.2 has paid the tax after 1989, which also would
indicate that defendant No.2 continued to exercise
her right as owner of the property.
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22. The trial Court has also taken into consideration
Ex.D1 to D9 and also considered the evidence given
by DW.1. Ex.D.1 is the objection filed by the plaintiff
before the Tahasildar, Haveri objecting to
certification of mutation in the name of defendant
Nos.3 and 4 to claim right over the property based
on the registered sale deed executed by defendant
No.2. In the said objection, the plaintiff did not make
a claim that he had acquired the property on the
basis of alleged gift deed of 1989. Absolutely, there
is no reference to the gift of 1989 in the said
objection filed in 2011. The trial Court has concluded
that this is one of the circumstances, which would
suggest that the claim relating to gift is not a valid
claim.
23. Ex.D.2 is the registered sale deed executed in the
name of defendants No.3 and 4 and defendant No.2
has not disputed the execution of the sale deed.
Defendant No.2-mother has not supported the case
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of plaintiff and defendant No.1, who are her children.
It is also relevant to note that defendant No.1-the
son of defendant No.2 has not made any claim based
on the alleged gift of 1989 and has not disputed the
execution of sale deed by defendant No.2-his the
mother and all the property records are changed in
the name of defendants No.3 and 4 subsequent to
purchase of the property by defendants No.3 and 4
in the year 2010.
24. On overall appreciation of the evidence led before
the trial Court, the trial Court has concluded that
plaintiff had filed a suit seeking share in the property
only on the basis of the statement in HRC No.3/1989
by defendant No.2. Said statement by defendant
No.2 in HRC proceeding that she has executed a oral
gift in favour of her sons appears to be a statement
made to make out a ground that the property is
required for their bona-fide use.
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25. On re-appreciation of the materials placed before this
Court, this Court is of the view that the finding given
by the trial Court that the alleged gift is not
established, does not call for any interference.
26. If at all the property was gifted in 1989, the eviction
suit would have been initiated by the plaintiff and
defendant No.1. However the HRC proceeding and
subsequent suit were filed by defendant No.2.
27. Under these circumstances, this Court does not find
any reason to interfere with the judgment and decree
passed by the trial Court. Accordingly, the appeal is
dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
gab - upto para 9
AM - para 10 to end
CT:ANB
