Mohamed Sharmasth and Others vs Mohamed Khasim, Since dead by his legal Representatives and Others

A.S. Pachhapure, J.—The appellant has challenged the decree for partition granted in favour of respondents No. 1(a) to (j) on a suit instituted by deceased Mohamed Khasim, the plaintiff in the lower Court. The parties will be referred as per their rank before the trial Court.

The facts relevant for the purpose of this appeal are as under-

The deceased appellant was the 1st defendant, whereas Mohamed Khasim, his legal representatives on the death have been arrayed as plaintiffs No. 1(a) to (j). Respondents No. 3 and 4 herein were defendants No. 7 and 8 before the trial Court. The appellant is not seeking any relief against defendants No. 3 to 8. Hence, they are not made parties in this appeal.

The relationship between the parties is not in dispute. The plaintiff and the 1st defendant are the sons of late Abdul Khadersab, whereas the 2nd defendant is his daughter. The other defendants were the tenants in some of the suit properties. The suit properties are door No. 1 to 6 in T.S. No. 955/1B situated at Tezab compound, Cowl Bazaar, Bellary, referred to as Schedule-A to F with the boundaries mentioned in the schedule to the plaint. The deceased plaintiff being the successor of late Abdul Khadersab and his mother Imambi, claims share in the suit schedule properties and therefore instituted the suit. After the demise of the parents though the plaintiff and 1st defendant were residing jointly in the suit property a dispute arouse between them and therefore the plaintiff requested for his share and as the defendants No. 1 and 2 were postponing the division of the properties on one or other pretext, hence the plaintiff was constrained to issue a notice on 22/06/1990 claiming 2/5th share in the suit properties. There was no response by defendants No. 1 to the notice issued. It is in these circumstances that the deceased plaintiff instituted the suit claiming his share and separate possession by appointing a Commissioner.

The defendants No. 1 to 2 have taken up the contentions that the plaintiff had separated long back from the family and further that he has converted to Ahmadee Sect and is an Ahmadee and therefore he cannot claim any share in the suit property under the cannons of ''Sunni Muslim Law''. They also contend that the deceased plaintiff relinquished his right in the property under a document produced at Ex.D-3 and therefore cannot claim any share. The third contention was that there was a partition earlier and a suit for second partition does not lie. So also they contend that there were debts and liabilities of the family and the plaintiff did not pay his share of debts and discharge the liability and thereby has lost his right to seek partition. Furthermore they say that there is a gift of the property by the deceased Imambi, the mother of these parties under a deed at Ex.D-6 and thereby the 1st defendant has become the absolute owner of the suit properties and the deceased plaintiff cannot claim any share (not pleaded in the written statement). The last contention was that all the legal representatives of the deceased plaintiff are not brought on record though they are entitled to share in the family properties and therefore the suit cannot be maintained.

So far as the 2nd defendant is concerned, she has supported the version of the 1st defendant and claims that one property was given to her by her mother Imambi under a deed at Ex.D-11 and that none of the parties have any share in the said property. On these grounds they have sought for the dismissal of suit.

The trial Court has framed the following issues-

Whether the plaintiff proves that he has got 2/5th share in the suit schedule property?

Whether he is entitled to partition and separate possession of his 2/5th share in the suit schedule property?

Whether the 2nd defendant proves that she has become the absolute owner of the part of the suit schedule property viz., the written statement schedule property by virtue of the settlement deed dated 17/12/1973 executed by her mother Imambi?

Whether she further proves that she is entitled to 1/5th share in the remaining portion of the suit schedule property?

To what relief are the parties entitled?

ADDITIONAL ISSUES

Whether D-3 and D-6 are not necessary or proper parties to the suit?

Whether D-1 proves that the court fee paid is insufficient?

Whether he further proves that plaintiff is not an heir of Abdul Khadarsab?

Whether he further proves that the plaintiff has separated from the family much earlier to the death of his mother?

Whether he further proves that the plaintiff is a tenant in respect of portion of the schedule property?

Whether he further proves that the plaintiff is not a Sunni and hence not entitled to any share in the schedule property?

Whether he further proves that plaintiff is a non Muslim and hence not entitled to any share?

Whether he further proves that the schedule property was fastened with several liabilities and he alone discharged them and hence he is entitled to schedule property?

It is thereafter that the deceased plaintiff was examined as P.W.1 and in his evidence he has got marked the documents at Ex.P-1 to 6, whereas the defendant No. 1 was examined as D.W.1 and the husband of 2nd defendant was examined as D.W.3 and the witnesses D.W.2 and 4 were examined. In their evidence the documents at Ex.D-1 to 21 have been marked. The trial Court after hearing the counsel for the parties and on appreciation of the material on record held that the plaintiff is entitled to 2/5th share in the suit property and the 2nd defendant is entitled to 1/5th share in the suit schedule property, except the property of the 2nd defendant under Ex.D-11 dated 17/12/1973. During the pendency of the suit the plaintiff died and therefore his legal representatives were brought on record as plaintiffs No. 1(a) to (j).

Aggrieved by the judgment and decree of the Court below, the 1st defendant has filed this appeal raising the contentions enumerated above. This Court disposed of the appeal vide the judgment and decree dated 07/02/2003 and aggrieved by the same the 1st defendant approached the Apex Court in Civil Appeal No. 635/2004. The said appeal came to be disposed of by the Apex Court setting aside the judgment and order of this Court observing that there is a necessity to have a deeper consideration of the contentions and the material on record of the trial Court. So, in this context the matter has now come up for hearing.

I have heard the learned counsel for the legal representatives of the deceased appellant, the respondents No. 1(b), (d to j). The service of notice to R2 is held sufficient. Respondents No. 1(c), 3 and 4 are served and absent.

The points that arise for my consideration are-

Whether the plaintiff lost his right in the properties under ''Sunni Mohammedan Law'' after he joined Ahmadee Sect?

Whether it is proved that the plaintiff relinquished his right in the property under the registered deed at Ex.D-3 and thereby cannot claim any share in the suit properties?

Whether it is proved that there was a partition earlier to the institution of the suit and that the suit was not maintainable in law?

Whether the plaintiff is not entitled to the share in the suit properties on the ground that he did not pay the debt and discharge the liability in pursuance of the agreement at Ex.D-5?

In view of the gift in favour of the 1st defendant under Ex.D-6, whether the plaintiff is disentitled to claim the share in the suit properties?

Whether the suit is not maintainable on the ground that all the legal representative of the deceased plaintiff were not brought on record?

Whether the application in Misc. Cvl. 100216/2010 seeking the amendment of the written statement filed by the appellants deserves to be allowed?

Whether there are any grounds made out by the appellants to call for the interference in the judgment and decree of the Court below?

Adverting to the first contention regarding the plaintiff having embraced Ahmadee Sect it is relevant to refer to his admission in para 8 of the deposition wherein he specifically states that he belong to Ahmadee Sect and that the Ahmadees have got a separate Mosque and therefore it is the contention of the counsel for the appellant that as his parties belong to Sunni Sect in Mohammedan community, the rules regarding inheritance pertaining to Sunni Sect are not applicable to a person, who has embraced Ahmadee Sect and has become an apostate. The scrutiny of the material placed on record does not reveal anything so as to say that a person who has embraced Ahmadee Sect would lose all his rights of inheritance and even the counsel for the appellant was not able to refer to any of the provisions of law which would say that a person who has converted to Ahmadee Sect is not entitled to the share in the property.

Furthermore, as could be seen from the evidence of D.W.1, (the 1st defendant) he admits in para 12 of his deposition that the plaintiff being a Ahmadee is not debarred from inheriting the property of his mother. So, on the face of this admission the appellants cannot now contend that the plaintiff is not entitled to the share in the suit properties on the said ground.

The learned counsel for respondents has relied upon a decision of the High Court of Madras in (Indian Cases. Vol 37, page 65) in Criminal Revision Case No. 366/1921, dated August 30, 1922 (Narantakath Avullah v. Parakkal Mammu and others), wherein it was held - "It was expressly ruled that the sect known as Ahmadees are Muhammadans notwithstanding their pronounced dissent on several important matters of doctrine from the orthodox Muhammadan faith. In view of these authorities which I accept, it follows that a Muhammadan does not become an apostate by merely accepting the doctrines of Ahmadees. It was held that - The Ahmadiyans are in my view only a reformed sect of Muhammadans".

So as could be seen from the material placed on record the evidence of the parties and the dictum laid down in the decision referred to supra, I am of the opinion that merely because that the plaintiff joined Ahmadee sect he will not lose his right of inheritance.

Now to consider the contention with regard to the relinquishment of right by the plaintiff in the suit properties the defendant No. 1 relied upon Ex.D-3, which is a registered document dated 09/12/1959. This document is in modi language, the translation was not furnished and even the trial Court has not considered the contents of this document. Now I have to say that this contention of the learned counsel cannot be maintained firstly on the ground that there is no pleading in the written statement filed by the defendants No. 1 and 2 with regard to the relinquishment of rights in the suit properties by the plaintiff. It is only in the evidence of D.W.1 that there is reference to the relinquishment deed at Ex.D-3. It is well established principle of law that any amount of evidence in the absence of pleadings is not sufficient to accept the contention. Furthermore it is relevant to note that though this deed was executed in the year 1959, the 1st defendant also relies upon Ex.D-5 an agreement to partition, the property and this deed came to be executed on 09/02/1968. A perusal of the document reveals that there was a loan of Rs. 5,000/- of the family and that the parties agreed to contribute their share to discharge the loan liability and to get the partition after five years from the date of this document. So, if really the plaintiff had relinquished his share in the suit properties there was no question of the plaintiff being a party to Ex.D-5, wherein on payment of the debt or discharge of the liability he would get the share in the suit properties. Therefore, I am of the opinion that the contention of the appellants regarding the relinquishment of share by the plaintiff cannot be accepted.

The learned counsel contended that there was a partition earlier to the institution of the suit and in this regard he has taken up a contention in the written statement stating that the plaintiff had separated from the family much earlier to the death of Smt. Imambi and that he cannot maintain a suit for partition. To support this contention he relies upon the evidence of P.W.1, wherein there is a suggestion that on 11/12/1959 he sold his share in the suit property in favour of the another brother Mehaboob, who died without leaving any legal representatives. The plaintiff states in his evidence that the document dated 11/12/1959 was a nominal document and was not acted upon. Though he states that he was separated about 4-5 years prior to the death of his mother this assertion at the most is separate residence and does not indicate that there was a partition of the family properties and it is not sufficient to prove the division of the family properties. Furthermore, it is in the evidence of the parties that the plaintiff was in one of the suit property till his death. Though it is contended that he was the tenant of the said property, the defendant has not produced any document to show that there was an agreement of tenancy. No rent receipts have been produced except the oral version of D.W. 1 and D.W.2. There is no material on record to hold that the plaintiff was a tenant. The 1st defendant in his evidence admits that the plaintiff did not pay the rent, but he does not take any action in the Court of law to recover the rent and if really the plaintiff was a tenant there is no question of the 1st defendant relying upon Ex.D-5 an agreement to the partition. In the normal circumstances it cannot be said that the plaintiff, who was elder to the 1st defendant could be in occupation of the portion of the suit property as a tenant. So taking into consideration the circumstances stated above it cannot be said that there was a partition earlier to the institution of the suit.

The learned counsel for appellant contends that in pursuance of the agreement at Ex.D-5, the plaintiff did not contribute his share of debt and in the circumstances he cannot claim the share in the suit properties. It is not in dispute that the parties entered into this agreement to partition under Ex.D-5 on 09/02/1968, the property Door No. 1(1) was in possession of S.M. Ratnaswamy and A.P.Kani, who had given a loan of Rs. 5,000/- and it was to be repaid in five years by instalments and the parties agreed that till the discharge of this loan there shall not be any division in the family and that after the discharge of the loan and regular partition deed would be drawn and registered. Though there is such a condition in the agreement at Ex.D-5, the mere non-payment of the portion of the debt does not take away the right of the plaintiff in the suit property. At the most the defendants No. 1 and 2 could seek the contribution of the share of the plaintiff in the said debt. Further it is relevant to note that the creditors referred to supra had taken the property under the mortgage and the mother of the plaintiff Smt. Imambi instituted O.S. No. 10/1971 in the Prl. Munsiff Court at Bellary, seeking redemption and reconveyance deed. The suit was decreed and a registered reconveyance deed came to be executed in favour of Smt. Imambi. So when the redemption was granted under a decree neither there is any material to show that defendants No. 1 or 2 have contributed their share in the debt nor there is any material on behalf of the plaintiff to show that he contributed his share. So, when the reconveyance deed was executed in pursuance of the decree in O.S. No. 10/1971 an inference could be drawn that it was Imambi, who must have paid the money by seeking contribution from her children and therefore it cannot be said by any stretch of imagination that the plaintiff cannot claim any share in the property for non-payment of his portion of debt or liability.

Now adverting to the contention of the learned counsel for the appellant about the gift deed at Ex.D-6, the said document is dated 03/08/1977. It is typed in English language. There is a thumb impression and it is attested as that of Imambi. The perusal of this document reveals that it is the 1st defendant who looked after his mother properly and to her satisfaction and in the circumstances executed the gift deed and handed over the actual possession of the same.

So far as this contention is concerned, it is relevant to note that there is no such pleading in the written statement of the 1st defendant regarding the execution of the gift deed by Imambi in favour of the 1st defendant. In the absence of pleading, any amount of evidence is of no help to the 1st defendant. Even otherwise it is relevant to note that if really Imambi had executed the gift deed on 03/08/1977, the 1st defendant could have got entered his name in the revenue records of the property on the basis of Ex.D-6. No steps have been taken by the 1st defendant at any time till the date of the institution of the suit. The document Ex.D-6 has seen the light of the day only after the institution of the suit. In the circumstances, I am of the opinion that the gift is not proved and Ex.D-6 is not a valid document, it is a document created by the defendant solely with an intention to defeat the share and interest of the plaintiff in the suit properties.

The learned counsel contends that some of the legal representatives of the deceased plaintiff were not brought on record and therefore the suit of the plaintiff cannot be maintained. On this aspect of the matter he has relied upon the decision of this Court reported in 1998 part-II Kar. Law Journal page-37 (Subbanna.Y.K. v. Kamaiah and others), it has been held that -

In a suit for partition of the property of a Hindu joint family, necessary parties to the suit are: (a) heads of all branches; (b) females who are entitled to a share on partition; (c) purchaser of the portion of the plaintiffs share in a case where the plaintiff himself is a coparcener; (d) if the plaintiff himself is a purchaser from a coparcener, his alienor and (e) in case the devolution of interest in Mithakshare Coparcenery property has taken place as per section 6 of the Hindu Succession Act, all those persons on whom the interest in the property has devolved. In a case where the devolution of interest in the property of a male Hindu has taken place in accordance with Section 8 of the Hindu Succession Act, all those heirs on whom the interest in the property has devolved upon.

So far as the applicability of the principle laid down by this Court is concerned, it is relevant to note that the deceased plaintiff was the head of the branch, including his wife and children and being the eldest son of his late father and mother. He died only after recording of the evidence and on his death an application has been filed to bring the legal representatives on record. The said application was allowed by the trial Court and his L.Rs. i.e., plaintiffs No. 1(a) to (j) were brought on record. It is relevant to note that as the plaintiff had an independent share in the suit property, his share devolves upon his legal representatives. They jointly take the share of the deceased plaintiff and merely because that one of the joint sharers are not parties to the suit and more particularly they were not brought on record when the plaintiff died during the pendency of the suit, it cannot be said that the principle will apply to the case on these facts. If there are other legal representatives they are at liberty to claim their share from the share of the deceased plaintiff and there is no such bar to claim their share.

In the written statement the 1st defendant has taken up a contention that the suit is to be dismissed for non-joinder of necessary parties and that pertains to the contention raised that of the legal representatives of deceased plaintiff were not brought on record. This contention is also answered on the ground stated supra.

Furthermore the 1st defendant had instituted the suit against the plaintiff in O.S. No. 903/1990 and the copy of the plaint in the said suit has been produced by the plaintiff at Ex.P-15. This fact has been admitted by D.W. 1 in his evidence also. So the 1st defendant in para 3(a) of the plaint pleads "the plaintiff and the 2nd defendant are brothers and inherited a complex of building with a big open space from their mother late Smt Imambi and the said Imambi having had obtained a decree for specific performance of reconveyance of the major portion of the said property in O.S. No. 10/1971 dated 18/12/1971 on the file of M. Munsiff, Bellary, and the defendants therein having had remained exparte, the Hon''ble Court executed a sale deed in favour of said Smt. Imambi." So, this suit which was instituted in the year 1990 reveals about the admission by the 1st defendant in the pleadings. So, once he admits in the suit instituted in O.S. No. 903/1990 his contention about relinquishment, the gift and that the plaintiff has no share in the suit property is taken away by his admission in the plaint. So taking into consideration all these circumstances, I am of the opinion that the trial Court on proper appreciation of the material on record has granted a decree for partition and there is no error or illegality in the judgment and decree of the Court below.

Now so far as the application for amendment of the written statement is concerned, it is relevant to note that the CPC has been amended by Act No. 104 of 1976 with effect from 01/02/1977 and Order 6 Rule 17 the proviso reads "provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial." The appellant has submitted this application on 07/01/2010. He intends to incorporate a contention that a suit for partition is not maintainable and that the suit should have been for specific performance. In support of this application one of the appellants had filed an affidavit and it is their claim that when there was an agreement as per Ex.D-5 to effect the division in the family after the payment of the debt and discharge of liability, the only course open to the plaintiff was to file a suit for specific performance of agreement at Ex.D-5. It is relevant to note that an agreement for partition is not in the nature of a contract. It is claiming of the share in the family properties in accordance with law. So, when an agreement puts a condition that the division will be only after the payment of debt, the party could institute a suit for partition in case if the share is refused. There is no question of filing a suit for specific performance of the agreement Ex.D-5 for getting a registered deed of partition. When the plaintiff was at a liberty to institute a suit such a contention is of no help to the 1st defendant. Furthermore, there is an inordinate delay of more than 14 years in filing this application. There is nothing in the affidavit to show that the 1st defendant or his legal representatives were diligent in seeking an amendment. In that view of the matter I am of the opinion that the application has no merit and it deserves to be rejected. Considering the discussion about the contentions raised by the appellant, I am of the opinion that the Court below was justified in granting a decree for partition and that the appellants have not made out any grounds to call for an interference in the decree of the Court below. Hence, as there are no merits in this appeal I answer the above points in negative and in the result the appeal is dismissed. No order as to costs.