Md. Akram and Md. Mukarram vs Md. Mohinuddin

D.G.R. Patnaik, J.—This appeal is directed against the judgment dated-31.08.1999, and its corresponding decree dated 13.09.1999, passed by the Sub-Judge Vth, Ranchi in Partition Suit No. 172 of 1996, whereby the suit for partition as filed by the appellant/plaintiff was dismissed.

The suit properties described in Schedule A and B to the plaint are located at two different places and both claimed by the plaintiffs as joint property of the plaintiff and the defendants.

The appellant/plaintiff had prayed for partition of the suit properties on the basis of pleadings stated as follows:

The plaintiffs and the defendant are guided by the Hanafi School of Muslim law.

The Schedule "A" property was originally owned by Sheikh Nizamuddin, who had transferred the property to his wife, Bibi Hafizan by way of a Registered sale-deed and after acquiring a valid right, title and interest over the property, she has remained in peaceful occupation and possession of the suit property.

Later, Bibi Hafizan transferred the aforesaid Schedule "A" property in favour of her two sons, namely, Sheikh Shamsuddin and Sheikh Mohinuddin. Consequent upon the transfer made in their favour by way of a registered sale deed, the said property came to be recorded in the joint names of both the brothers, namely, Sheikh Shamsuddin and Sheikh Mohinuddin. The two brothers had a sister, namely, Bibi Kulsum Khatoon and before her death, she had transferred her share in the joint family property in favour of her aforesaid two brothers. The plaintiffs/appellants are the surviving heirs of Sk. Shamsuddin who had died in the year 1972.

The plaintiffs have claimed that the property described in Schedule "B" to the plaint is also joint property to which they had succeeded after the demise of their father, late Sheikh Shamsuddin. Since the plaintiffs were at that time minors, both the minors as well as the properties were looked after by their uncle Sheikh Mohinuddin. Though no partition of the joint family properties was made, the plaintiffs and the defendants have been using and occupying the properties and living therein, according to their convenience. Later, the plaintiffs claimed partition of the suit properties but upon their request being turned down by the defendants, the plaintiff filed the Partition suit on 09.07.1996 for getting a declaration of their half share, not only in the properties described in Schedule "A" and "B" of the plaint, but also in the income earned by the defendant from the five shops, which he had let out on rent.

The defendant/respondent had contented the suit, inter alia, on the following grounds:

(i) That the suit properties already stood partitioned though Panchayat between the plaintiffs and the defendants, on 28.02.1992, under which the Schedule A property was given to the share of the defendant and the Schedule "B" property was given to the share of the plaintiffs and, therefore the plaintiffs'' claim for further partition is misconceived and not maintainable.

(ii) The property described in Schedule "A" had originally belonged to Md. Nizamuddin, father of the defendant, who had transferred the Schedule "A" property in favour of his wife Bibi Hafizan by registered sale deed dated 16.09.1964 (Exhibit-3).

(iii) It is incorrect and false to state that the defendant''s sister, Bibi Kulsum Khattoon had forgone her share in favour of her brothers.

(iv) It is also incorrect and false to state that 19 square feet 13 Chak purchased by the defendant from his own fund exclusively, was given to his brother, Sheikh Shamsuddin out of love and affection.

(v) The shops located within the Schedule "A" property which had fallen in the share of the defendant, came to be exclusively occupied by him and thereafter, let out on rent.

On the basis of the rival pleadings, the learned court below had framed the relevant issues, as follows:

(i) Is the suit maintainable as framed?

(ii) Has the plaintiff''s cause of action was valid for the suit?

(iii) Is the suit barred by the law of limitation?

(iv) Is the suit barred by the non-joinder of necessary parties?

(v) Whether the suit is under-valued?

(vi) Whether the suit is barred by the principles of estoppel, waiver and acquiescence?

(vii) Whether the suit properties have already been partitioned between the parties on 28.02.1992 by the Panchayat and the Schedule "A" properties were allotted to the defendant and Schedule "B" to the plaintiff and since then the parties are enjoining exclusive possession of their allotted share?

(viii) Whether plaintiffs are entitled to a decree of partition as prayed?

(ix) To what other reliefs which the plaintiffs are entitled to?

Both the parties adduced their respective evidences. Upon considering and discussing the evidences adduced by the parties, the trial court recorded its findings on the issues Nos. VII and VIII in favour of the defendant/respondent observing that there has already been a partition of the (sic) properties finally on 28.02.1992 by the Panchayat whereby the Schedule "A" property, was allowed to the share of the defendant and the Schedule "B" property to the plaintiff and therefore, there is no question of any further partition and as such, the plaintiffs are not entitled to claim partition of the suit properties again.

In consonance with the findings on the issues Nos. VII and VII the issues Nos. III and IX were also decided against the plaintiff. The remaining issues were however, decided in favour of the plaintiffs.

Assailing the impugned judgment and decree, Mr. P.K. Prasad learned senior counsel for the appellants/plaintiffs would advance inter-alia the following grounds:

(i) That the findings of the learned court below on the main issues relating to defendant''s claim (sic) partition, are totally perverse and against the evidences on record and are totally misconceived.

Elaborating this ground, learned Counsel explains that as per the principle of law since the plaintiffs had disputed the previous partition, therefore, the onus was exclusively on the defendant to prove the same.

The defendant had adduced oral evidence through 11 witnesses in support of his claim that the partition was held by the Panchayat and has based his claim on the purported Panchayat document, namely, Exhibit B. The defendant in (sic) evidence has claimed that the parties have been living separately since 1965 and later, (sic) 28.02.1982, the partition of the properties was made in presence of a Panchayat. The evidence relating to any previous separation is beyond the pleadings of the defendants and being therefore not admissible in evidence, the learned court below should not have relied upon the same.

(ii) On the point of Panchayati, D.W.8, namely, Md. Mubarak had claimed that he had scribed the Panchayati document and that the Panchayat was convened at the request of the plaintiff No. 3 and plaintiff No. 4 and that in presence of the Panchayat, the partition was effected. Significantly, this witness has also admitted that before effecting the partition through the Panchayat, neither measurement was taken nor any valuation of the properties was done. Furthermore, even the defendant, who had examined himself as L.W. 11, had categorically acknowledged that though a Panchayati was convened in the year 1992 but the same was not given effect to. Learned Counsel argues that in view of such admission, the trial court could not have dismissed the suit for partition.

(iii) Exhibit B, which has been claimed to be the document of Panchayati, does not bear the signatures/L.T.I. of Most. Mazidan Khatoon, widow of Sheikh Shamsuddin and that of the plaintiff Nos. 1 and 2. Learned Counsel explains that under the Mohammedan Law, different co-sharers are tenants in common and therefore, no co-sharer can be represented by another. In absence of the signatures of Most. Mazidan Khatoon and that of the plaintiff Nos. 1 and 2, the purported Panchayati document cannot be held binding against them, nor can it be considered, as to have been acknowledged and accepted by them. Learned Counsel submits that this admitted fact as appearing in the evidence, has been erroneously overlooked by the learned court below.

(iv) Exhibit B, even on a bare reading, is a document effecting partition. As such, it was compulsorily registrable under the provisions of Section 17 of the Registration Act. Exhibit B, being an unregistered document, cannot be admissible in law. The trial court has erred in accepting and relying upon the said document (Exhibit B), in evidence to draw its inference and to record its finding of previous partition.

(v) In order to prove that he had made constructions over the Schedule A properties, the defendants had adduced certain documents, in evidence. All these documents marked as Exhibit, C, D, E, E/19 and F, are post-litem documents and even on the face of it, they appear to have been manufactured for creating evidence. The learned trial court has erred in placing reliance on these documents.

(vi) In denial of the defendant''s claim of partition and in order to prove that the suit properties continued to be joint properties, the plaintiff''s had adduced evidences of eight witnesses and had also adduced documents including the municipal receipts, which categorically confirm that the taxes in respect of both the properties, used to be paid in the joint names of the parties, even after 1992.

Mr. Rahul Gupta, learned Counsel for the Respondent/defendant while offering support to the impugned judgment and decree of the court below, would want to highlight the following aspects in evidence adduced on record to controvert the grounds advanced by the appellants. Learned Counsel argues that on the issue of previous partition, the evidence adduced by the defendant/respondent clearly point out:

(a) That the parties had separated in the year 1965.

(b) The Panchayat in the year 1992 was convened at the instance of the plaintiff No. 1, Most. Mazidan Khatoon and plaintiff Nos. 3 and 4, namely, Md. Akram and Md. Mokarram.

(c) The plaintiff Nos. 3 and 4 were present in the Panchayat alongwith the defendants.

(d) The parties had accepted the settlement as recorded by the Panchayat and which were incorporated in the Panchayat''s Award.

(e) In token of their acceptance, the plaintiff Nos. 3 and 4 as well as the defendant, had appended their respective signatures on the Panchayat documents, namely, Exhibit B.

(f) The parties had acted pursuant to such settlement.

Elaborating the grounds learned Counsel explains that on the factum of the Panchayati meeting, the plaintiff''s witness No. 4, namely, Md. Sirajuddin, had admitted that the Panchayati meeting was held and in his presence properties of the parties, were partitioned and he too had appended his signature on the Panchayati document (Exhibit B). This fact has also been accepted and affirmed by the defendant''s witness Nos. 3, 4, 5 and 10, all of whom have categorically stated that the Panchayat meeting was convened at the instance of Most. Mazidan, Md. Akram and Md. Mokarram. This part of the evidence of the defendants witnesses, have not been controverted by the plaintiff in the respective cross-examination of these witnesses and therefore it has to be deemed that the evidence of these witnesses on the point that the Panchayat meeting was initiated at the instance of Most. Mazidan Md. Akram and Md. Mokarram, has been admitted by the plaintiffs. The further evidence of theses witnesses, which had remained uncontroverted and confirmed, is that Md. Akram (Plaintiff No. 3) and Md. Mokarram (Plaintiff No. 4), was present at the Panchayat meeting alongwith the defendant. This is further confirmed by their respective signatures on Exhibit C. The signatures of both plaintiff No. 3 and plaintiff No. 4 was identified by defendants witness No. 3, who claimed that both the brothers had put their respective signatures in Exhibit B and this part of the evidence of the D.W. 3 has not been controverted by the plaintiff.

As regards the appellants'' contention that the Panchayat document (Exhibit B) is a document of partition and had to be compulsorily registrable under the provisions of Section 17 of the Registration Act and in absence of registration, it could not be introduced or accepted in evidence, learned Counsel declares that such argument of the learned Counsel for the appellant is totally misconceived. It is explained that the Panchayat meeting was held only to facilitate the parties to settle their disputes regarding partition. The parties had mutually settled their dispute and the terms of settlement was thereafter, recorded in the Panchayat''s Award. As such, the document (Exhibit B) cannot be termed as a document of partition so as to invite the necessity of registration. This fact has been affirmed by the defence witness No. 4 and also by the defendant himself, who was examined as D.W. 11. It is further argued that the plaintiffs have not challenged the mode of partition before the Panchayati, and neither have they cross-examined either of the witnesses, namely, D.W. 4 and D.W. 11 on this point. Pursuant to the settlement made in presence of the Panchayati, the parties had acted in terms of the settlement and this fact has been confirmed by the evidence of the defendant''s witnesses, and even by the witnesses adduced by the plaintiff. Learned Counsel explains that the plaintiff''s witness No. 7 has categorically admitted that he has been living in the property at Shanti Chowk, since the past 7-8 years prior to the date of his examination and that his father had died in the year 1982-83 and further, that the defendant had constructed five shops in the property situated at the Central street. The fact that the defendant had carried out building constructions within the property located at Central Street, has been affirmed by the defendant''s witness No. 3, who has stated categorically that the constructions were carried out about 6-7 days prior to the date of his examination. This, according to the learned Counsel, implies that the plaintiffs were aware of the constructions being carried out by the defendant and they had never raised any objections against such constructions.

Learned Counsel argues that an attempt was made by the plaintiffs to suggest that the construction made in the property at Central street were actually from the income derived from the beetel shop business of the family. This plea has been falsified even by the evidence of the plaintiff No. 2, who in his examination as P.W. 7, has admitted that his father used to do business of stitching tents. He has not claimed that his father also used to sit in the beetel shop or that the beetel shop was a joint property and neither has the plaintiff sought partition of the alleged joint business.

Referring to the evidence of P.W. 6, examined by the plaintiffs, learned Counsel explains that P.W. 6 is a Tax collector of Ward No. 11 and 13 and in his cross examination by the defendants, he has acknowledged that Sheikh Shamsuddin''s family was living at Shanti Chowk, whereas, Sheikh. Mohinuddin''s family is living in the Central Street''s house. He has also affirmed that he goes to collect tax from Shanti Chowk and the heirs of Sheikh Shamsuddin pay the tax and likewise when he resides at Central Street, the defendant and his family members pay the tax.

The fact of partition is also confirmed from the undisputed evidence that it was the defendant who had constructed the shops and inducted the tenants therein. The admission of this fact on the part of the plaintiffs, confirms, according to the learned Counsel, that pursuant to the settlement arrived at between the parties, the parties did act in accordance with the terms of settlement and while the plaintiffs had obtained the property at Shanti Chowk as their share, they had allowed the properties at the Central street, to the exclusive share of the defendant.

Having heard the learned Counsel for the parties, it would be worthwhile to point out some of the relevant undisputed facts, which are as follows:

(i) Admittedly, the suit properties were derived jointly by the plaintiff''s ancestor, Sk. Shamsuddin and his brother, namely, the defendant Sk. Mohinuddin.

(ii) The suit properties mentioned in Schedule "A" and Schedule "B" are located at two separate and distinct localities.

(iii) The plaintiffs, since long have been using and occupying the properties described in Schedule "B" while the defendant alongwith his family members, has been using and occupying the properties described in Schedule "A".

Since, much emphasis has been laid by the plaintiff/Appellant on "joint family" the well settled law in this context is that amongst the Mohammedans there is no presumption of jointness. When the members of a Mohammedan family live in commensality, they do not necessarily form a "Joint Family" in the sense in which that expression is used with regard to Hindus. The mere fact of members of a Mohammedan family living in commensality and holding their properties jointly is not sufficient to raise the presumption which, under the Hindu Law, arise from de facto jointness. The so-called Mohammedan joint family cannot be treated as a legal unit having a corporate existence and as such, possessing property.

However, as has been held in the judgment of this Court in the case of Rukaiya Begum and Others Vs. Fazalur Rahman and Others, ,

Notwithstanding the fact that there is no presumption of jointness and joint family business in Mohammedans, but in certain circumstances the Court may up-hold such eventuality. There is nothing contrary to law in Mohammedan adult members of a family carrying on family property for the benefit of all the members of the family including the minors and females, and the Court may up-hold it and such legal consequences as follow from it, although the Court will not impart into it all the legal consequences, which would follow from such a family trade when it is conducted by the Hindu joint family or of the legal consequences of the lawful partnership.

The plaintiffs/appellants have claimed that the properties described in Schedule "A" and "B" are joint family properties and the parties have been holding the same as co-sharers. The further contention of the plaintiffs is that during the lifetime of Sk. Shamsuddin, there was no partition of the properties, between him and his brother Sk. Mohinuddin and even after his death, the properties were never partitioned amongst the defendant and the heirs of Sk. Shamsuddin. It is also claimed that at the time of the death of Sk. Shamsuddin, the plaintiffs were minors and as such, the entire properties were looked after and managed by their uncle, namely, the defendant, Sk. Mohinuddin, for the benefit of the members of the family including the minors and the females. It is on the basis of these claims that the plaintiffs have sought for partition of the suit properties, claiming further, that the onus to prove the previous partition is entirely upon the defendant.

From the pleadings of the Respondent/defendant, it appears that the defendant has accepted the fact that the properties had belonged jointly to both the parties but such jointness ceased to exist since after the partition held in presence of the Panchayat on 28.02.1992.

Accepting that the onus lay upon the defendant to prove the previous partition, the defendant has adduced evidences in support of his claim that the properties stood partitioned between the parties, which was affirmed by the Panchayat on 28.02.1992.

Besides, the oral evidences of the witnesses, the documents upon which the defendant has laid emphasis, is Exhibit-B, which is the purported Award of the Panchayat.

The plaintiffs/appellants have challenged this document, as being of no consequence on the ground that the document (Exhibit B) claimed essentially as a document of partition ought to have been registered and in absence of registration as laid down under the provisions of Section 17 of the Registration Act, such document cannot be used in evidence in proof of partition. The plaintiffs would find fault with the findings of the trial court on this ground.

The defendant has explained the mode of partition by asserting firstly, that even as admitted by the plaintiffs, while the plaintiffs have been using and occupying the property described in Schedule "B", since long, the defendant has been using and occupying the properties described in Schedule "A" to the plaint. Such exclusive use and occupation by the parties, was though according to convenience, but pursuant to the mutual settlement between the parties, the same situation was allowed to continue by way of final partition and it was these terms of settlement, which was recorded vide Annexure-B, which is nothing but a memorandum of settlement and not a deed of partition and as such, it does not require to be registered.

As regards the evidence in respect of the mode of partition, the supporting evidence is that of the defence witness No. 4 and of the defendant himself, who was examined as D.W. 11, both of whom have affirmed that the parties had mutually settled their dispute and the terms of the settlement was recorded in the Panchayat''s Award (Exhibit B). As rightly pointed out by the learned Counsel for the Respondent, this part of the evidence of the defence witnesses, have not been controverted by the plaintiffs in cross-examination of either of these witnesses.

From the recitals of the document (Exhibit B), it transpires that it is a recording of the settlement, arrived at by and between the parties in respect of the Division of the properties between the plaintiffs and the defendant.

It may be noted that the fact that the plaintiffs having been exclusively using and occupying the properties described in Schedule "B" and that the defendant has been exclusively using and occupying the properties described in Schedule "A", since long, though according to their convenience, as has been admitted by the plaintiffs in their own pleadings.

Under such circumstances, the objection of the plaintiffs/appellants that Exhibit B, was necessarily registrable and that in absence of registration, it could not have been admitted in evidence, cannot be sustained. The Document (Exhibit B), being a recording by way of a memorandum of settlement already effected by the parties, can certainly be used in proof of the terms of settlement arrived at, in between the parties.

As has been held in a judgment of this Court in the case of Zeyarat @ Jeyarat Hussain v. Kamsmali Mian (since dead) and Ors.. reported in 1993 (1) P.L.J.R. 172, the inference of previous partition can be drawn on the basis of various circumstances, such as, separate residence, possession, payment of rent, separate transaction and cultivation of lands separately for a long time etc. These features primarily applicable in case of joint Hindu family and are available for similar inference for previous partition of a Muslim Family as well.

The emphatic assertion of the defendant/Respondent in this case, is that a partition was effected between the parties by way of mutual settlement under which, while the plaintiffs were allowed exclusive right over the properties described in Schedule "B", which was already in their use and occupation since long, the defendant was allowed exclusive right over the Schedule "A" properties as his share. It may be noted that both the properties are distinct and separate and could not, therefore, have been called for partition by metes and bounds or by reference to its evaluation.

The next circumstance, adverted to by the Respondent is the payment of rent in respect of the individual properties. Though, as per the evidence of the witnesses and the rent receipts produced by the plaintiffs, the rent for both the properties continued to be paid in the joint names of the two brothers, namely, Sk. Shamsuddin and Sk. Mohinuddin, even after the purported date of partition but such payment of rent in the joint names had ceased after some time and as per the evidence of the Tax Collector adduced by the plaintiffs themselves, the municipal taxes for the properties used to be paid separately by the occupiers of the individual properties.

A third circumstance, adverted to by the defendant is that the partition was acted upon by the parties, in as much as, the defendant was allowed to carry out certain constructions including shops within the Schedule "A" property, from his own funds and despite knowledge of the constructions being carried out, the plaintiffs have never objected to the same.

Learned Counsel for the appellants would argue that the construction over the Scheduled properties, was made from the income derived from the beetel shop business which was the joint business of the family and the defendant being the elder member in the family, had made improvements over the properties for the benefits of all the members of the family including the plaintiffs and as such, such constructions was never objected to.

This plea of the plaintiffs/appellants, does not find support from any reliable evidence or any specific pleading. On the contrary, it is in the admission of the witnesses that the beetel shop business was run exclusively by the defendant and the plaintiffs'' father, Sk. Shamsuddin had never participated in running the beetel shop business. Rather, Sk. Shamsuddin had his own separate tailoring business. The learned trial court has taken note of these facts and has rightly drawn the inference that the parties had acted upon the terms of settlement of partition.

As regards the objections against the factum of Panchayati meeting and the denial of partition in presence of the Panchayat and also on the ground that such settlement through the Panchayat document (Exhibit B) cannot be held binding on all the members, particularly on the co-sharers, namely, Most. Mazidan and on the plaintiff Nos. 1 and 2, since none of them was signatories to the Panchayat Document (Exhibit B), it has been pointed by the defendant/respondent that mere absence of signatures on the document (Exhibit B), will not negate the factum of the Panchayati and the factum of partition. Ever as admitted by the plaintiffs'' witnesses, the Panchayat meeting was convened at the instance of Most. Mazidan and the plaintiffs, namely, Md. Akram and Md. Mokarram, who had appended their respective signatures to the Panchayat document (Exhibit B). These members of the plaintiffs'' family were present through out, at the Panchayat meeting, as has been affirmed by the plaintiffs'' witness No. 4 and the defendant witness Nos. 4, 5, 8, and 10. It may be noted that the plaintiffs constitute one family comprising of the surviving heirs of Sk. Shamsuddin while, the defendant and his children constitutes the other family. The fact that the defendant was allowed to enjoy the exclusive right over the Schedule "B" property, even to the extent of allowing him to raise constructions over the said properties and induct tenants within the shops constructed therein, without there being any objection at any point of time from any of the members of the plaintiffs'' family including plaintiff Nos. 1 and 2, is sufficient to draw the inference that even otherwise, the entire members of the plaintiffs'' family including those, who are not signatories to the Panchayat Document (Exhibit B), had accepted the terms of settlement and had allowed the defendant to act upon the same.

The above circumstances which have been brought in evidence on record, do amply demonstrate definite features from which a reasonable and legitimate inference of partition can be drawn. The trial court has rightly relied upon these circumstances to draw the inference of previous partition. I do not find any impropriety or perversity either in the inferences drawn by the trial court or on the findings recorded by it. As such, the findings of the trial court do not call for any interference. I find no merit in this appeal. The judgment and decree of the trial court is, therefore, hereby confirmed.

This appeal is, accordingly, dismissed. Though in the facts and circumstances, there shall be no order as to costs.