Telangana High Court
Smt. Naila Tabasum And 2 Others vs Sahara And 8 Others on 1 July, 2025
THE HON'BLE SMT. JUSTICE RENUKA YARA
APPEAL SUIT Nos.650 OF 2019 AND 60 OF 2020
COMMON JUDGMENT:
Heard Sri G. Rajeshwar Reddy, learned counsel for the
appellants in A.S.No.650 of 2019 and respondents in A.S.No.60 of
2020 and Smt. Naila Tabasum, Party-in-person/appellant No.1 in
A.S.No.60 of 2020 and respondent No.1 in A.S.No.650 of 2019.
Perused the record.
2. The above appeals are arising out of self-same judgment and
decree passed by the learned Addl. Senior Civil Judge at Karimnagar
(hereinafter referred to as 'the learned Trial Court') in O.S.No.96 of
2017, dated 12.06.2019. Therefore, both the appeals were taken up
for hearing analogously and are being disposed of by this common
judgment.
3. The suit was filed by the first wife and two sons of one Late
Syed Ahmed seeking partition and separate possession against the
deceased second wife's children and the third wife and daughter born
to her through Late Syed Ahmed with respect to suit schedule Item
Nos.1 to 3 properties. The learned Trial Court decreed the suit
partially while dismissing the plea of the first wife of Late Syed
Ahmed for allotment of a share to her and proceeded to allot the
share to her sons who are arrayed as plaintiff Nos.2 and 3 and the
remaining legal heirs of Late Syed Ahmed who are arrayed as
defendant Nos.1 to 8.
4. A.S.No.650 of 2019 is filed by the appellants/defendants and
A.S.No.60 of 2020 is filed by the appellants/plaintiffs. For the sake of
convenience, the parties are referred to as they are arrayed in the
main suit O.S.No.96 of 2017.
Brief facts of the case:
5. The relationship between the parties as stated by the plaintiffs is
that plaintiff No.1 is the first wife, plaintiff Nos.2 and 3 are the sons
and defendant Nos.7 and 8 are the daughters of plaintiff No.1 and her
late husband Syed Ahmed. Defendant Nos.2 to 5 are the children born
to Late Syed Ahmed from his deceased second wife. Defendant No.6 is
the daughter born to Late Syed Ahmed and defendant No.1 who is the
third wife of Late Syed Ahmed. The relationship between the parties is
not in dispute.
6. Late Syed Ahmed is the owner of is the owner of house No.6-2-
568 admeasuring 217 sq.yds. (hereinafter referred to as 'Item No.1'),
house No.6-2-573 admeasuring 429 sq.yds. (hereinafter referred to as
'Item No.2') and house No.6-2-563 admeasuring 0.05 gts. (hereinafter
referred to as 'Item No.3') situated at Hussainipura, Karimnagar. Said
Late Syed Ahmed died intestate on 06.04.2017.
7. Late Syed Ahmed during his life time paid maintenance to
plaintiff Nos.1 to 3 in addition to taking responsibility for performing
the marriages of defendant Nos.7 and 8. However, Late Syed Ahmed
died before defendant Nos.7 and 8 were married and their
responsibility has fallen on the plaintiff No.1 being mother. Late Syed
Ahmed was in possession of two shutters in Kamadhenu Complex
wherein business of weights and measures was done and there was
an income of Rs.60,000/- per month. The value of the business is
more than Rs.10,00,000/- and the shop is given to defendant Nos.2
and 5. Late Syed Ahmed performed the marriages of defendant Nos.2
to 4 and supported the children of second wife. Defendant Nos.1 and
6 were shown as nominees in bank accounts and LIC claims by Late
Syed Ahmed. They have withdrawn amounts up to Rs.7,50,000/- from
the bank accounts and LIC claims and thus are in good financial
position. Late Syed Ahmed paid maintenance to the plaintiffs up to
the year 2013 as the defendant Nos.7 and 8 were minor unmarried
daughters. After the death of Late Syed Ahmed on 06.04.2017,
defendant No.2 along with his brothers of Late Syed Ahmed quarreled
and fought with the plaintiffs at house No.1-4-126 and gave complaint
against them. When the plaintiffs reached the police station for
enquiry, their house i.e. H.No.1-4-126 was sealed and welded. The
defendants are residing in H.No.6-2-568 and received rents from Item
Nos.1 to 3 properties. In this backdrop, the plaintiff No.1 sought
partition and division of shares as per Mohammadan law and
therefore, suit for partition is filed.
8. The suit claim is opposed by the defendants in totality.
Defendant No.2 filed written statement and the same is adopted by
defendant Nos.1, 3 to 8. The defendants disputed the plaintiffs claim
about residing in H.No.4-1-126 as it is a commercial shop
admeasuring 13 sq.yds. situated in the main vegetable market and
said property is in the occupation of Kotha Suresh, who is a tenant.
Plaintiff Nos.2 and 3 attained majority. The major fact disputed by the
defendants is about the legal status of plaintiff No.1 i.e. the
defendants disputed the claim of plaintiff No.1 being the legally
wedded first wife of Late Syed Ahmed. Instead, alleged that she has
been divorced on account of unbearable harassment and torture
meted out by her to Late Syed Ahmed. Further, it is alleged that
plaintiff No.1 deserted Late Syed Ahmed by going away from
Karimnagar to Sangareddy with plaintiff Nos.2 and 3 while
abandoning minor daughters defendant Nos.7 and 8 to reside with
their father. The defendants also admit that the Item Nos.1 to 3 are
self-acquired properties of Late Syed Ahmed. Defendant No.2
performed the marriage of defendant No.7 by spending an amount of
Rs.15,00,000/-. Upon knowing about the same, plaintiff No.1 created
nuisance at the marriage venue and at the house of defendant No.7
and her in-laws. The defendants denied having a business with
income of Rs.60,000/- per month and value of stocks being more
than Rs.10,00,000/- The shutters are not the property of Late Syed
Ahmed but rented property taken from Kamadhenu Society. The
defendants denied knowledge about defendant Nos.1 to 6 being
nominees and claiming the amounts from the banks and LIC claims.
The defendants denied refusing for partition and the entitlement of
plaintiffs' share of property. The defendants alleged that several efforts
were made by the elders of the community to bring about
reconciliation between plaintiff No.1 and Late Syed Ahmed but the
same could not materialize and therefore, divorce took place on
04.10.2003, wherein, late Syed Ahmed paid total Mehar and Iddath
amount and returned all the belongings of plaintiff No.1. Thereafter,
Late Syed Ahmed performed second marriage and the second wife
gave birth to defendant Nos.2 to 5. Thereafter, the second wife died
and Late Syed Ahmed married defendant No.1 who gave birth to
defendant No.6. The plaintiff No.1 filed several cases against Late Syed
Ahmed to harass him. On account of such harassment, Syed Ahmed
fell ill and died. The shutter which is Item No.3 is under mortgage to
Shriram City Union Finance Ltd., Karimnagar branch vide loan
account No.KMNG2TF1703310030 for an amount of Rs.12,00,000/-
with EMI of Rs.65,500/-. When late Syed Ahmed fell sick, he executed
a Will Deed dated 01.03.2017 bequeathing Item Nos.1 to 3 properties
in favour of defendant No.2 as he sacrificed his life for maintaining the
family. After the death of late Syed Ahmed, defendant No.2 acquired
Item Nos.1 to 3 schedule properties on the strength of the Will Deed
and therefore, neither the plaintiffs nor the defendant Nos.1, 3 to 8
have any right, title or interest over the said properties, as such,
sought dismissal of the suit.
9. On the basis of above pleadings of the plaintiffs and the
defendants, the learned Trial Court settled the following issues:
1. Whether the plaintiffs are having share in the suit schedule
property?
2. Whether the defendant No.2 is entitled to suit schedule
property by virtue of Will Deed alleged to be entitled by
defendants?
3. Whether the plaintiffs are entitled to decree for partition?
4. To what relief?
10. The plaintiffs examined PW1 and PW2 and got marked Exs.A1
to A16 documents. In response, the defendants got examined DW1
to DW4 and got marked Exs.B1 to B25 documents. Upon examining
the oral and documentary evidence on record, the learned Trial Court
partly decreed the suit allotting shares as per Mohammedan law to
plaintiff Nos.2, 3 and defendant Nos.1 to 8 while dismissing the claim
of plaintiff No.1 on the ground that she is a divorced wife and that
divorced wife is not entitled to allotment of share.
11. The learned Trial Court believed the genuineness of the Will
Deed dated 01.03.2017 and allotted 1/3rd share in Item Nos.1 to 3
properties in favour of defendant No.2. Though defendant No.2
claimed the entire suit schedule properties on the basis of Will Deed
marked under Ex.B1, the learned Trial Court allotted only 1/3rd
share on the ground that as per Mohammedan law, a bequest can be
made only to an extent of 1/3rd share to one of the heirs and in case,
the entire properties to be allotted to one heir, the remaining legal
heirs have to give their consent. The Will Deed is in excess of 1/3rd
share and in the absence of consent from the remaining legal heirs,
the same cannot come into effect. On this premise, 1/3rd share in
Item Nos.1 to 3 properties allotted to defendant No.2 and the reaming
extent is distributed among the plaintiff Nos.2, 3 and defendants on
the basis of their gender and relationship as per Mohammedan law.
Aggrieved by the said judgment and decree, the present appeals are
preferred.
Grounds of appeal in A.S.No.650 of 2019:
12. The defendants contended that the daughters are equally
entitled to equal share on par with the sons after allotting
appropriate share to defendant No.1. The defendants alleged that the
learned Trial Court failed to appreciate their version that plaintiff
No.1 is a divorced wife and therefore, there is no relationship for her
with the defendants. Further, it is alleged that the learned Trial Court
failed to appreciate the fact that through Will Deed dated 01.03.2017,
the suit schedule properties are bequeathed to defendant No.2 and
therefore, neither the plaintiffs nor the defendant Nos.1, 3 to 8 have
any right, title or interest over the properties. It is alleged that the
learned Trial Court erred appreciating that Will Deed is valid for
bequeathing only 1/3rd share to defendant No.2 and there is failure
to appreciate the evidence of DW3 and the Will Deed marked under
Ex.B1.
Grounds of appeal in A.S.No.60 of 2020:
13. The plaintiffs have preferred the appeal alleging that the Will
Deed dated 01.03.2017 is a fabricated document containing forged
signature of Late Syed Ahmed and that the said document is created
to deprive the legitimate rights of plaintiffs. The plaintiffs have sent
the Will Deed for Forensic Laboratory for inspection and in its
opinion dated 10.11.2017, the opinion is given stating that the
person who has written the sample signatures 'S1' to 'S7' did not
write the disputed signature marked under 'Q1'. Further, there are
similarities among the names and signatures in the blue portion
marked and disputed 'Q2' indicating common authorship. The next
ground raised is that the learned Trial Court failed to consider the
order dated 17.06.2014 in C.R.P.No.18 of 2009, wherein, it is held
that the revision petitioner failed to prove Ex.R1 Divorce Certificate
by examining any witnesses or Qazi and therefore, Ex.R1 is not a
valid divorce. On the basis of said finding, the plaintiff No.1 contends
that there is no divorce pronounced between herself and the
deceased Syed Ahmed. Further, I.A.No.360 of 2019 was filed to take
the opinion of Qazi and to receive the divorce certificate issued by the
Qazat office dated 04.10.2003 and the same was dismissed vide
order dated 02.05.2018. The said order is based on order dated
17.06.2014 passed in C.R.P.No.18 of 2009. The plaintiffs alleged that
plaintiff No.1 is a legally wedded wife of Late Syed Ahmed and
therefore, entitled to 1/12th share in Item Nos.1 to 3 properties.
There is failure to appreciate the documentary evidence while partly
decreeing the suit. On the basis of aforementioned grounds, the
plaintiffs sought to set aside the judgment and decree of the learned
Trial Court.
Written arguments in A.S.No.650 of 2019:
14. In the appeal filed by the defendants in A.S.No.650 of 2019,
written arguments are filed referring to the contentions of the written
statement, the evidence adduced and the findings given by the
learned Trial Court. It is emphasized that late Syed Ahmed had
executed a Will Deed/Ex.B1 bequeathing his self-acquired properties
in favour of defendant No.2. Whereas, the learned Trial Court erred
in appreciating the same and therefore, allotted only 1/3rd share. It
is alleged that the evidence of DW3 ought to have been taken into
consideration while appreciating Ex.B1 Will Deed. Further, it is
alleged that the Advocate Commissioner's report states that it is not
possible to divide Item Nos.1 to 3 properties in small pieces among all
the legal heirs. It is not practically feasible. Further, the defendants
contended that there is no evidence on record to show that there is
income of Rs.30,000/- per month from Item Nos.1 o 3 properties or
that Item No.3 shutters has stock value of Rs.10,00,000/-. Also, it is
alleged that the oral evidence of DW2 and DW3 is not appreciated in
proper perspective. A reference is made to cross examination of DW4
who deposed that Late Syed Ahmed pronounced thalak on
04.10.2003 before Syed TaherHussan, Md. Saleem and Syed Sarwar.
Analysis of the Court in A.S.No.650 of 2019::
15. As per the grounds raised in A.S.No.650 of 2019, the primary
ground on which the judgment and decree of the learned Trial Court
are challenged is the finding given about the allotment of shares to
various parties. According to the defendants, after allotment of
1/12th share to defendant No.1, the rest of the sons and daughters
are entitled to allotment of equal share. However, such is not the
case in Mohammedan law. Different quantum of shares are allotted
to the wife, daughters and sons. There is no concept of allotment of
equal share to sons and daughters as per Mohammedan law and
therefore, such a ground raised for challenging the judgment and
decree is not sustainable.
16. The second ground raised by the defendants is that there is
failure to appreciate the contents of Ex.B1 Will Deed dated
01.03.2017. While the defendants are challenging the quantum that
can be bequeathed through Will Deed/Ex.B1, the plaintiffs are
challenging the genuineness of Ex.B1. In this Context, it is crucial to
note that the learned Trial Court has referred to Mulla principles of
Mohammadan law 23 edition, 2011 for arriving at conclusion that
only property to an extent of 1/3rd share can be bequeathed through
Will Deed and that anything more requires consent of remaining legal
heirs. This legal proposition is not challenged or disputed by the
plaintiffs or the defendants. The defendants without giving any
reasonable ground to discard Mulla principles of Mohammadan law
are arguing for allotment of total property marked under Item Nos.1
to 3 in favour of defendant No.2. However, since the parties involved
are Mohamadans and their property division is governed by
Mohammadan law, it is invariable and mandatory to follow
Mohammadan law in distributing the property. Therefore, when the
rules of Mohammandan law limit the property that can be
bequeathed through a Will Deed at 1/3, it can only be appreciated to
such extent and anything more than that has to be set aside.
Therefore, the learned Trial Court allotting the property to an extent
of 1/3rd share in Item Nos.1 to 3 in favour of defendant No.2 is
appropriate and cannot be interfered with.
17. Lastly, the defendants would contend that the allotment of
shares as per the preliminary decree passed by the learned Trial
Court is not practically feasible as the shares would be small and
they cannot be divided. Said ground alone cannot be a reason for
challenging the decree and judgment as such questions would be
examined during the execution of the preliminary decree. When
shares cannot be divided, alternative methods of distribution are
examined by the execution court. At this appeal stage, said ground
cannot be sustained for challenging the preliminary decree passed by
the learned Trial Court.
Written arguments in A.S.No.60 of 2020
18. In the appeal filed by the plaintiffs in A.S.No.60 of 2020,
written arguments are filed referring to the contentions of the plaint,
the evidence adduced and the findings given by the learned Trial
Court. The Will Deed/Ex.B1 is challenged by the plaintiffs
questioning its genuineness referring to a Forensic Laboratory report
dated 10.11.2017.
Analysis of the Court in A.S.No.60 of 2020:
19. It is point to be noted that the plaintiffs are referring to a
Forensic Laboratory report dated 10.11.2017 but said report is not
exhibited before the learned Trial Court during adjudication of the
suit. The documents marked on behalf of the plaintiffs under Exs.A1
to A16 have no reference to Forensic Laboratory report and therefore,
this Court is unable to appreciate the said contention of the
plaintiffs.
20. The second major issue is about the legal status of plaintiff
No.1 being a legally wedded wife of Late Syed Ahmed or whether she
was a divorcee. In that context, heavy reliance is placed upon the
finding given by this Court in C.R.P.No.18 of 2009 vide order dated
17.06.2014, wherein, it is held that Ex.R1 Divorce Certificate is not
proven as no witness is examined. It is to be seen that the order in
C.R.P was passed on 17.06.2014, whereas, the judgment itself in the
suit is delivered in the year 2019. Further, DW4 was examined on
17.04.2018 i.e. almost four (4) years subsequent to passing of the
order in C.R.P.No.18 of 2009.
21. It is pertinent to note that DW4 not only deposed that divorce
was pronounced by Late Syed Ahmed, but also produced Thalak
register to prove the same. It is also pertinent to note that DW4 who
is the Qazi deposed that Mehar and Iddath were observed and
plaintiff No.1 signed in the Thalak register. Last but not least, DW4
deposed that the photograph of plaintiff No.1 is obtained and is
affixed in the Thalak register and thereafter, the Divorce certificate
was issued. As on the date of passing of order in CRP, the Qazi who
issued divorce was not examined. While so, the learned Trial Court
passed its judgment and decree after the Qazi was examined as DW4.
22. There is utter failure on the part of plaintiff No.1 in cross
examining DW4 when unimpeachable evidence is produced in the
form of Thalak register with the signature and photograph of plaintiff
No.1 about acknowledging the divorce, receiving Mehar and Iddath
and signing in the Thalak register. By failing to examine DW4, the
plaintiff No.1 has damaged her case about being a legally wedded
first wife of Late Syed Ahmed and not a divorcee. Once DW4 is
examined, the onus shifts to plaintiff No.1 when she is claiming to be
a legally wedded wife of Late Syed Ahmed. However, when there is
failure to cross examine DW4, a presumption arises under Section
114(g) of the Indian Evidence Act that facts to be elicited from cross
examination of DW4 are against plaintiff No.1 and therefore, plaintiff
No.1 has chosen not to cross examine DW4. Once it is proven that
plaintiff No.1 is a divorcee and not legally wedded wife, as per
Mohammadan law, no share can be allotted to plaintiff No.1.
Therefore, the finding given by the learned Trial Court dismissing the
plea of plaintiff No.1 for allotment of share is appropriate and cannot
be interfered with.
23. In view of the foregoing discussion of the appeal grounds raised
by the contesting parties in A.S.Nos.650 of 2019 and 60 of 2020,
none of the grounds raised are sustainable and therefore, both the
appeals are liable to be dismissed.
24. In the result, both the Appeal Suits are dismissed. No costs.
Miscellaneous applications, if any, pending in these appeals,
shall stand closed.
____________________
RENUKA YARA, J
Date: 01.07.2025
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THE HON'BLE SMT. JUSTICE RENUKA YARA
APPEAL SUIT Nos.650 OF 2019 AND 60 OF 2020
1st July, 2025
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