K. Mohammed Muzamil Ahmed and Others vs K. Mohammed Illiyas and Others

Aravind Kumar, J.—Heard Sri. G. Balakrishna Shastry, learned counsel appearing for appellants. Perused the Judgment and decree passed by trial court as well as lower appellate court.

This second appeal has been preferred by unsuccessful plaintiffs questioning the correctness and legality of Judgment and decree passed by lower appellate court dated 15.07.2015 in R.A.14/2015 whereunder the lower appellate court has dismissed the appeal and affirmed the Judgment and decree passed by trial court dated 19.01.2015 in O.S.81/2008 whereunder suit filed by plaintiffs for partition and separate possession came to be dismissed.

Plaintiffs are the children of Sri. K. Mohammed Fayaz, 4th defendant. It was contended that suit schedule properties originally belonged to late Khasim Sab and he having acquired the same under a partition deed dated 01.04.1977 between himself and his two sons. It was further contended that deceased Sri. Khasim Sab was allotted ''A'' schedule properties and he expired on 24.04.2007 and on his demise the plaintiffs and defendants being the only legal heirs are entitled to the estate of deceased Khasim Sab. It was further contended that on account of head injury suffered by Sri. Khasim Sab during his life time he could not taken any independent decision and as such first defendant by taking advantage of the old age, lack of knowledge and illness of Sri. Khasim Sab obtained his signatures to Gift Deed dated 25.01.2001 which came to be registered and was shown thereunder as item No. 1 and 2 of suit schedule property as gifted to them. It was also contended said property was not delivered to the Donees by the Donor. It was also contended that first defendant pursuant to said Gift Deed had alienated item No. 1 of the suit schedule property in favour of Sri. Parveez Ahammed (7th defendant) and he in turn alienated the same in favour of 8th defendant. Plaintiffs also contended that first defendant had no right to execute sale deed in favour of 7th defendant. They further contended that first defendant had alienated item No. 2 of suit schedule property in favour of 9th defendant and he had no right to do and has committed illegal acts and 9th defendant sold the property in favour of second defendant and he in turn has sold the same in favour of 8th defendant and all these sale deeds are not binding on the plaintiffs.

It was also contended plaintiffs are not signatories to the sale deed executed in favour of 8th defendant or to any other proceedings. They have contended defendants 7 and 8 have no right to purchase the property from defendants 1 and 2 and only with an intention to deceive the plaintiffs and to make illegal gains these documents were created by defendants 1 and 2 from deceased Sri. Khasim Sab by playing fraud. It was also contended 4th defendant has got the property from deceased Sri. Khasim Sab in respect of item No. 4 and 5 on 01.07.2003 by virtue of registered sale deed which was duly registered in the office of Sub-Registrar, Chintamani and they had requested 4th defendant to effect partition and separate possession and same did not yield any result and hence suit in question is filed by them seeking partition and separate possession since defendants are colluding with each other. Defendants on service of suit summons appeared and defendants 1, 2 and 8 filed their written statement denying the plaint averments and sought for dismissal of the suit. 9th defendant though appeared did not file written statement and defendants 3 and 7 had been placed ex parte. On the basis of pleadings of the parties, trial court framed issues and while answering issue No. 1 on appreciation of evidence it was found that plaintiffs failed to prove that defendants had illegally and forcibly registered the Gift Deed relating to item No. 1 and 2 of suit property and plaintiffs had also failed to prove that first defendant has no independent right to sell item No. 2 of suit schedule property in favour of 9th defendant. While answering issue No. 3 which related to right of plaintiffs to claim share in the suit schedule property it has been held that under section 41 of Mahomedan Law it provides that the whole estate of a deceased Mahomedan if he has died intestate, devolves on his heirs at the movement of his death and the devolution is not suspended by a reason merely of a debts being due from the deceased. The heirs succeed to the estate of deceased Mahomedan as tenants in common in specific share. As such it came to be held that under Mahomedan law the son cannot maintain a suit against his father during the life time of his father since there is no concept of joint family in Muslim law. Hence, trial court dismissed the suit. Being aggrieved unsuccessful plaintiffs pursued their grievance before District and Sessions Judge, Chintamani. Lower appellate court on re-appreciation of facts, evidence and finding recorded on issue No. 3 which related to the right of plaintiffs to claim partition and separate possession held that said finding recorded by trial court is just and proper and accordingly dismissed the first appeal. Hence, second appeal has been preferred.

Sri. G. Balakrishna Shastry, learned counsel for appellants would contend that the finding recorded by courts below suffers from legal infirmity inasmuch as gift and sale deeds are to be held as null and void. Plaintiffs would inherit the property from Sri. Khasim Sab and as such he would contend that evidence on record would establish that deceased Sri. Khasim Sab was not mentally sound so as to execute Gift Deed and sale deeds. As such he would contend they are to be held as null and void and on these grounds the substantial questions of law as formulated in the appeal memorandum would arise for consideration.

It requires to be noticed at the outset that the evidence recorded by the courts below is based on appreciation of facts which in turn was based on available material evidence. Said finding recorded by both the courts which are based on facts does not suffer from any infirmity calling for interference at the hands of this court that too in a second appeal. Had it been non appreciation of available evidence or erroneous appreciation of available evidence or non appreciation of evidence at all by courts below then it can be held as one which gives scope for this court to formulate the substantial question of law which may arise inter se between parties in that regard. However such situation has not arisen in the instant case. Courts below have rightly noticed that deceased Sri. Khasim Sab had capacity to execute Gift deed and both the Donor and Donee have acted upon the said gift deed and there is valid acceptance of gift by Donees. In that view of the matter said finding recorded by courts below does not call for interference.

Yet another issue which has been raised before courts below relates to right of the plaintiff to seek for partition and separate possession and in that regard trial court had framed following issue:

"3. Whether the plaintiffs prove that they have got a right of share in the suit schedule property?"

As already observed herein above section 41 of Mahomedan Law prohibits son of a Mahomedan to file a suit during the life time of his father. Section 41 of the Mahomedan law reads as under:

"41. DEVOLUTION OF INHERITANCE - Subject to the provisions of secs. 39 and 40, the whole estate of a deceased Mahomedan if he has died intestate, or so much of it as has not been disposed of by will, if he has left a will (s.118), devolves on his heirs at the moment of his death, and the devolution is not suspended by reason merely of debts being due from the deceased (k). The heirs succeed to the estate as tenants-in-common in specific shares (l)".

Taking this aspect into consideration trial court and lower appellate court have rightly held son cannot maintain a suit under Mahomedan law against his father during the life time of his father, since there is no concept of joint family in Muslim law and infact son does not get a right to file a suit for partition in respect of a property belonging to his father that too during his life time.

In that view of the matter I do not find any other good ground which would enable this court to formulate the substantial question of law for being adjudicated and answered. Appeal is devoid of merits and is liable to be dismissed and accordingly it is hereby dismissed. Judgment and decree dated 15.07.2015 passed by II Additional District and Sessions Judge, Chickballapur (sitting at Chintamani) in R.A.14/2015 stands affirmed.