Mohd. Sirajuddin vs Smt. Paribee
2023 Latest Caselaw 3030 Tel

      THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                           A.S.No.220 of 2009
JUDGMENT:

This Appeal Suit has been filed under Section 96 of

the Code of Civil Procedure, 1908 (for short 'C.P.C.') by the

appellants/plaintiffs being aggrieved by the Judgment and Decree

dated 29.12.2008 passed in O.S.No.44 of 2003 by the learned

Senior Civil Judge, Jagtial, whereunder the suit filed by the

plaintiffs/appellants herein for partition and separate possession,

was dismissed.

2. The appellants herein are the plaintiffs and the

respondents herein are the defendants in the suit and they will be

referred as they were arrayed before the Trial Court in the suit for

the sake of convenience.

3. As could be seen from the material available on record

including the impugned Judgment, it manifests that the plaintiffs

are the sons of the first wife of defendant No.2, whereas while

defendant No.1 and her husband Yaseen are grandparents of the

plaintiffs. They stated that defendant No.2 developed illicit

intimacy with defendant No.4 and begot two children and also

willfully deserted the plaintiffs and their mother about 5 years

back. From then onwards, they along with their mother have been PSS,J

residing separately at Jagitial. Prior to that they lived in a joint

family property left behind by their grandfather bearing Municipal

No.5-6-97 (Old 4-3-78) situated at Jagtial, originally which stands

in his name and after his demise it was nominally mutated in the

name of defendant No.4. They also stated that their father-

defendant No.2 constructed a house at Karimnagar bearing

Municipal No.6-1-56 with joint family funds, but it was kept in the

name of defendant No.4 to deprive their rights. As such, they are

entitled to claim share as per Mohammedian Law. They stated that

defendant No.2, who is the father of plaintiffs, after deducting

1/8th share to defendant No.1 is entitled to claim 7/16th, share out

of which plaintiffs are entitled to get 7/48th share each and

remaining 7/48th share to be claimed by defendant No.2. Plaintiffs

demanded for partition on 01.08.2003, but defendant No.2 refused

the same with an intention to deprive their statutory rights and

therefore, they constrained to file the suit for partition. The

scheduled properties mentioned under item Nos.1 and 2 are

ancestral properties.

4. Defendant No.2, who alone contested the suit, had

vehemently opposed the contentions of the plaintiffs by filing

written statement as follows:

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a) His father died about 20 years back and he constructed a

house bearing No.5-6-97 at Jagtial out of his self-earnings and

gifted the said property to his wife/defendant No.1 and her name

was also mutated in the municipal records. Since then she has

been paying all the taxes to the concerned authority, as such

neither plaintiffs nor defendant Nos.2 to 4 have any right over the

said property and not liable for partition.

b) As far as item No.2 of the suit schedule property is

concerned, it is the self-acquired property of defendant No.4. She

acquired the said property as sridhana property and during her

life time no one is entitled to claim any share, therefore it is not

liable for partition. Plaintiffs suppressed all the facts with an

intention to grab the third party properties of the defendants. His

marriage was performed with the mother of the plaintiffs on

13.04.1975 and out of their wedlock, they were blessed with the

plaintiffs. After six years of their marriage, in the year 1981,

Shahada Begum/mother of the plaintiffs deserted him and filed

maintenance case as well as criminal cases against him and the

same were closed. Thereafter, she filed another case vide

M.C.No.12 of 2003, which was pending on the file of Judicial

Magistrate of the First Class, Jagtial, against him seeking

maintenance.

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c) He further stated that on 14.06.1998, he pronounced

'Talak' in the presence of witnesses and returned all Jahaz articles

and paid an amount of Rs.1,200/- towards mehar, Rs.625/-

towards dinner rati and Rs.1,000/- towards iddath for 1000 days

and Rs.62,600/- through demand draft to the mother of the

plaintiffs towards her present and future maintenance and also

towards relinquishment of all her rights against him. He also paid

an amount of Rs.10,000/- each to the plaintiffs towards their

shares, if any or otherwise in the ancestral property and from his

property. The mother of the plaintiffs acknowledged the amount

and also relinquished their entire rights. Despite receiving the

said amounts, she got filed the suit by colluding with the plaintiffs.

The schedule mentioned properties are joint family properties and

plaintiffs were never in peaceful possession of the same as such

the plaintiffs are not entitled to claim any share.

5. On the basis of the pleadings, the Trial Court has framed

the following issues for consideration:

1) Whether the suit schedule property of item No.1 was exclusive property of D-1's husband and whether he has gifted the said property exclusively?

2) Whether item No.2 of suit schedule property is self acquired property of D-4?

3) Whether the plaintiffs are entitled to 7/48th share each in suit schedule property?

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4) Whether the plaintiffs are in joint possession of suit schedule property?

6. During the course of trial, the plaintiffs, to support

their case, got examined PWs.1 to 3 and marked Exs.A.1 to A.4.

The defendants, to support their case, got examined DWs.1 and 2

and marked Exs.B.1 and B.2. The trial Court, after considering the

entire evidence on record, dismissed the suit.

7. Being aggrieved, this appeal has been filed on the

following grounds:

a) Though they have filed Exs.A.1 to A.3 to establish that

the suit schedule property is 'Matruka' property, the trial Court

has given more weightage to the oral evidence of DWs.1 and 2 and

without giving any weight to the documentary evidence held that

item No.1 of the suit schedule property, which was gifted to

defendant No.1 by her husband.

b) In fact, it is the self-acquired property of Yaseen and

the plaintiffs are his grand-sons and being the legal heirs, they are

entitled for share in the Matruka property. Therefore, the plaintiffs

have filed O.S.No.44 of 2003 on the file of the learned Senior Civil

Judge, Jagtial, for partition and separate possession against their

grand-mother/defendant No.1, father/defendant No.2,

uncle/defendant No.3 and defendant No.4/second wife of

defendant No.2. During the pendency of suit, respondent No.1 PSS,J

/defendant No.1 died as such, her legal heirs were brought on

record vide I.A.No.1 of 2023 in A.S.No.220 of 2009, dated

10.08.2023 as respondent Nos.5 to 7.

c) The trial Court relying on the plea set up by the

defendants, stated that the plaintiffs' mother received a sum of

Rs.62,600/- towards permanent alimony from defendant No.2 and

settled the dispute by way of compromise. As such, the plaintiffs

are not entitled for any share in the property though they have got

independent right in the plaint schedule property, which is

different from the permanent alimony.

d) The trial Court held that there is no cogent evidence to

establish that plaint schedule properties are joint family properties

and further held that item No.2 was purchased from sridhana of

defendant No.4. But the concept of sridhana is not applicable to

Muslim personal law and the trial Court erred in relying on it.

Further, the trial Court has held that suit for partition has not

filed within a period of limitation i.e. 12 years and therefore, the

suit is not maintainable and accordingly, dismissed the suit.

8. Heard the learned counsel for the plaintiffs as well as

the learned counsel for the defendants and perused the material

available on record.

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9. Now, the point that would emerge for determination is:

Whether the Judgment and Decree impugned in this appeal is sustainable under law or warrants interference of this Court?

10. On perusal of the entire material placed before this

Court, it depicts that the plaintiffs have reiterated the contents of

their plaint in the chief-affidavit of PW.1 and during the course of

cross-examination, he stated that defendant No.1 got mutated the

suit schedule property in the year 1998, after the death of their

grandfather and that item No.1 is the self-acquired property of

their grandfather. He stated that he along with his mother and

brother was residing in the said property with defendant No.1 and

they were necked out about five years back. He also stated that

defendant No.4 is not the wife of defendant No.2, but she was kept

mistress and got one daughter through her. He filed ownership

certificate in respect of item No.2 of suit schedule property. He

further stated that defendant No.2 has purchased the site with the

amount given by his grandfather and constructed house with his

earnings. His father was appointed in the State Bank of

Hyderabad in the year 1994 as an attender. He also stated that

defendant No.2 married his mother on 13.04.1975 and they lived

together for six years and later, defendant No.2 eloped with

defendant No.4. However, he denied the suggestions put to him PSS,J

that defendant No.2 obtained divorce from his mother in the

presence of elders and obtained a document attested by a Notary

on 16.06.1998 and his mother also received Rs.62,600/- towards

permanent alimony, Rs.10,000/- to plaintiff Nos.1 and 2 and

relinquished their rights on behalf of them.

11. PW.2 was examined-in-chief but he did not turn up

for cross-examination, as such his evidence was eschewed. PW.3,

who is said to be close friend of his grandfather, stated that item

No.2 was purchased by defendant No.2 and constructed a house

by taking loan in the year 1991. In the cross-examination, he

stated that father of defendant No.2 died in the year 1980 and he

worked as attender in the Government School. He constructed a

house with his self-earnings and he did not know about the oral

gift given by Yaseen to his wife/defendant No.1. He further stated

that he never visited item No.2 of suit schedule property at any

point of time.

12. Defendant No.2 himself examined as DW.1 and he

reiterated the contents of written statement in his affidavit and

admitted the relationship with the plaintiffs. He further stated that

he had taken defendant No.4 to his house in the year 1981 and

that the mother of the plaintiffs has filed two maintenance cases

against him. He filed counter in M.C.No.12 of 1987 pending on the PSS,J

file of the Judicial Magistrate of the First Class on 23.03.1988 and

that he gave divorce to her before Khazi, Karimnagar. He stated

that item No.1 was purchased by his father and item No.2 RCC

building was transferred through registered gift settlement deed in

the name of defendant No.4 and he also stated that he did not

know whether his father executed any gift deed in favour of

defendant No.1 or not.

13. DW.2 is the co-brother of defendant No.2 i.e. wife of

defendant No.2/Sultana Begum and the wife of DW.2 are sisters

and he supported the version of DW.1 in toto. He also acted as

witness in M.C.No.12 of 1987 filed by the mother of the plaintiffs.

He stated regarding the gift settlement deed executed in favour of

defendant No.4 vide document No.6685 of 2001 dated 19.11.2001

under Ex.B2.

14. There is no dispute regarding the fact that defendant

No.2 is father and defendant No.1 is the grandmother of the

plaintiffs. Plaintiffs have filed the suit for partition in item Nos.1

and 2 of suit schedule property and claimed 7/48th share to each

of them. Whereas defendant No.2 stated that his father orally

gifted item No.1 in favour of his mother/defendant No.1 and he

gifted the item No.2 in favour of his wife. As such plaintiffs are not

entitled for any share in the said properties. Defendant No.2 PSS,J

further contended that he gave divorce to his first wife on

14.06.1998 itself and also paid an amount of Rs.62,600/- towards

permanent alimony and apart from that he paid Rs.10,000/- to

the plaintiffs in the form of demand drafts, thereupon, the mother

of the plaintiffs has relinquished their rights over the properties.

As such, they are not entitled for any share in the schedule

properties.

15. The learned Counsel for the plaintiffs contended that

no person other than Kartha can relinquish. Mother is not the

coparcener and not Kartha, as such she cannot relinquish shares

of her minor children. He relied upon the Judgment of the Hon'ble

Apex Court in the case of Prasanta Kumar Sahoo v. Charulata

Sahu, 1 in which it was held that

"Relinquishment or alienation of undivided coparcenary interest of a coparcener in favour of another coparcener without the consent of that coparcener or the other coparcener is null and void."

He further submitted that the said law has also been held by the

erstwhile High Court of Andhra Pradesh in Pasagadugula

Narayana Rao v. Pasagadugula Rama Murthy, 2 wherein the

Court has categorically held that:

2023 SCC Online SC 360

2015 SCC Online 346 PSS,J

"Any relinquishment or release of a coparcener share can only be by way of a written instrument and in the absence, thereof a plea of release or relinquishment of share cannot be entertained."

16. Defendant No.2 at one point of time stated that item

No.2 of the suit schedule property was constructed by defendant

No.4 with the amount gifted by her parents and at another point of

time stated that he gifted the property in favour of defendant No.4

and also filed a gift settlement deed in support of his contention.

Whereas the plaintiffs have filed the ownership certificate issued

for item Nos.1 and 2 along with market value of the said

properties. The plaintiffs stated that even after desertion by

defendant No.2 they along with their mother resided in the house

of defendant No.1 and they were necked out about five years prior

to the filing of the suit. When they demanded for partition,

defendant No.2 refused to give their share, as such they filed a

suit for partition.

17. Admittedly, item No.1 was purchased by the husband

of defendant No.1 i.e., grandfather of the plaintiffs and after his

demise, it was mutated in the name of defendant No.1. So also

defendant No.2 had purchased item No.2 and the same was gifted

to defendant No.4 to avoid share to the plaintiffs. There is no PSS,J

dispute regarding the fact that the plaintiffs are children of

defendant No.2 and also the properties shown in item No.1 is the

ancestral property and item No.2 is the self-acquired property of

defendant No.2.

18. As rightly held above, the mother of the plaintiffs

cannot relinquish right of her minor children and thus, the plea of

relinquishment of their right taken by defendant No.2 cannot be

accepted. Defendant No.2 has not examined any of the elders of

the panchayat in whose presence he paid an amount of

Rs.62,600/- towards permanent alimony and Rs.10,000/- to the

plaintiffs each through demand drafts and the terms of panchayat

were never reduced into writing therefore the contention of

defendant No.2 that he already paid permanent alimony to the

mother of the plaintiffs and also paid of Rs.20,000/- to the

plaintiffs towards relinquishment of rights, was not established

and cannot be considered.

19. After meticulously scanning the entire material

available on record, this Court is of the considered view that the

right of the plaintiffs, who are grandchildren of defendant No.1,

over the ancestral property cannot be legally relinquished by their

mother on receipt of some amount towards permanent alimony. As

such, the impugned Judgment and Decree is not sustainable PSS,J

under law and warrants interference of this Court while exercising

the jurisdiction under Section 96 of C.P.C. Further, the plaintiffs

being children of defendant No.2 and grandchildren of defendant

No.1, are entitled for the share, as claimed.

20. Under the circumstances narrated hereinabove, this

appeal is allowed, with costs by setting aside the Judgment and

Decree dated 29.12.2008 passed in O.S.No.44 of 2003 by the

learned Senior Civil Judge, Jagtial.

Plaintiffs 1 and 2 are entitled for 7/48th share each in item

Nos.1 and 2 of the suit schedule properties and preliminary decree

is passed accordingly.

Pending miscellaneous applications, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATED: 10.10.2023 PNS PSS,J

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

A.S.No.220 of 2009

Dated 10.10.2023 PNS