Nouman Patel and Others vs Hanifabee and Others

B. Veerappa, J—This is a plaintiffs'' second appeal against the judgment and decree dated 09.12.2009 made in R.A. No. 22/2008 on the file of the Civil Judge (Sr. Dn.), Kudligi, confirming the judgment and decree of the Trial Court dated 12.02.2008 made in O.S. No. 138/2004 on the file of the Civil Judge (Jr. Dn.) Kudligi, dismissing the suit for declaration and permanent injunction and also the cancellation of gift deed dated 16.03.1981.

It is the case of the plaintiffs that the plaintiff Nos. 1 to 11 are the sons and daughters of defendant No. 1. Plaintiff Nos. 10 and 11 are minors and represented by their father Patel Abdul Wahaba Saheb. The grand father of the defendant Nos. 1 and 2 by name Kamal Saheb had six children by name Hasan Sharif Sab (Defendant No. 1 and 2''s father), Abdul Hakkim Sab, Mariyam Bee, Abdul Khadar, Abdul Aziz Sab and Sharif Bee. Hassan Sharif Sab having 10 children namely Yakuf, Jubedabee, Sagiram Bee, Abdul Hai, Habibabee, Ashiyabee, Hazirabee, Nameelabee, Hanifabee and Hammabee.

It is their further case that the father of defendant Nos. 1 and 2 and his brothers were divided from the joint family long back. The father and mother of defendant Nos. 1 and 2 were expired. During the lifetime of defendant No. 1 and father of defendant No. 2, had executed a registered Will'' deed in favour of defendant No. 1 regarding ''A'' schedule properties on 12.01.1967. Previously, defendant No. 2 had already taken his share in their father''s properties. At the time of execution of a registered Will'' deed, Hassan Sharief Sab i.e., defendant No. 1 and father of defendant No. 2 was in state of sound mind and with free consent executed a registered Will'' deed in favour of defendant No. 1. In the said Will'' the father of defendant No. 1 clearly mentioned that in the ''A'' schedule properties, the defendant No. 1 has no right to alienate the ''A'' schedule properties to anybody in any manner and the sons and daughters of defendant No. 1 have a right and title. So the defendant No. 1 is not the absolute owner of the ''A'' schedule properties. The plaintiff Nos. 1 to 11 are the absolute owners of the suit schedule properties.

In view of the Will'', the plaintiffs are the absolute owners of the suit schedule properties and they are in peaceful possession and enjoyment of the schedule properties without anybody''s obstruction or interference till today. The ''5'' schedule mentioned house property previously belonged to defendant No. 1 and defendant No. 2''s mother Khasimbee @ Rahim Bee. On 08.06.1955 the mother of defendant No. 1 gifted away the ''5'' schedule property in favour of defendant No. 1. In the ''3'' suit schedule property, the plaintiffs are in possession and enjoyment of the same. The plaintiff Nos. 1 to 11 and defendant No. 1 are living and residing at same roof. Defendant No. 2 unnecessarily trying to interfere and disturbing the peaceful possession and enjoyment of the schedule mentioned properties etc. Therefore, they filed the suit.

The defendants filed written statement and denied the entire plaint averments and contended that suit is filed by the plaintiffs is false, vexatious, frivolous and contended that the very suit filed by the plaintiffs is not maintainable and the Court has no jurisdiction to try the suit etc. Therefore, sought for dismissal of the suit.

On the basis of the pleadings, the Trial Court framed the following issues:

"1. Whether plaintiffs prove that they are absolute owners in possession and enjoyment of the suit schedule properties?

Whether plaintiffs further prove that they are in peaceful possession and enjoyment of the suit schedule properties?

Whether plaintiffs further prove that the defendants are trying to interfere into their possession over the plaint schedule properties?

What order or decree?"

In order to prove their case plaintiff No. 1 examined himself as P.W. 1 and marked documents Exs. P-1 to P-10. Defendants have not produced any documents nor adduced any evidence.

The Trial Court after considering the oral and documentary evidence has come to the conclusion and recorded a finding that the plaintiffs failed to prove that they are the absolute owners and in peaceful possession and enjoyment of the suit schedule property as on the date of the suit and also failed to prove that the alleged interference by the defendants. Accordingly, the Trial Court dismissed the suit with costs of Rs. 250/-.

Against the said judgment and decree, the plaintiffs -- appellants filed R.A. No. 22/2008, who after hearing both the parties by the impugned judgment and decree dated 09.12.2009 had dismissed the appeal confirming the judgment and decree of the Trial Court. Against the said concurrent finding of fact, the present regular second appeal is filed.

I have heard the learned counsel for the parties to the lis.

Shri C.R. Hiremath, learned counsel appearing on behalf of Shri J.S. Shetty for the appellants had contended that both the Courts below committed an error in not considering the material documents on record which depicts that the plaintiffs are owners and in possession of the suit schedule property as on the date of the suit. Therefore, he sought to set aside the impugned judgment and decree of the Courts below.

Shri T. Basavanagouda, learned counsel for the respondent No. 4 sought to justify the impugned judgment and decree of the Courts below.

I have given my anxious consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.

The plaintiff examined himself as P.W. 1 and produced the material documents Exs. P-1 to P-10 in support of his case.

The Trial Court considering the entire material on record has recorded a finding that the plaintiffs have not produced any credible documents to show that as on the date of the filing of the suit they were in peaceful possession and enjoyment of the suit schedule properties. The material documents, demand register extracts -- Exs. P-4, P-5 and RTC extracts -- Exs. P-6 to P-9 discloses the name of the defendants as on the date of the filing of the suit. Defendants are in possession and enjoyment of the suit schedule properties. Therefore, the suit filed by the plaintiffs for declaration is not maintainable.

Further, the plaintiffs have not produced any previous documents to show that they are in peaceful possession and enjoyment of the suit schedule properties continuously. Accordingly, the Trial Court dismissed the suit. The lower Appellate Court after re-consideration of the entire material on record has come to the definite conclusion that the relationship of the parties are not in dispute. The plaintiffs are the children of the 1st defendant. Defendant Nos. 1 and 2 are the children of Hussain Sharif Sab, who is the grandfather of the plaintiffs. P.W. 1 deposed that the father and brothers were divided very long back and enjoying their respective shares of the property. The defendant No. 2 also took their share from his father. The grandfather of the plaintiffs executed a registered Will'' Ex. P-1 in favour of the defendant in respect of the ''A'' schedule property on 12.01.1967. The grandfather was no more, since then the plaintiffs are in peaceful possession and enjoyment of ''A'' suit schedule properties along with 1st defendant. The evidence of P.W. 1 coupled with the documents have remained un-controverted. Merely because of the same, the Court cannot blindly decree the suit. On reading of Ex. P-1 -- registered Will'' dated 12.01.1967 discloses that Hussian Shariff who was the father of the defendant Nos. 1 and 2 bequeathed ''A'' suit schedule property in favour of his daughter 1st defendant with a condition that her daughter has got a right over the suit schedule property after his death. There is a condition in Ex. P-1 with regard to the enjoyment with regard to ''A'' schedule properties. The children of the 1st defendant who are the plaintiffs having right title over the suit schedule properties after his death of testator. Plaintiffs have not pleaded that at the time of execution of the Will'' they were born. The defendant No. 2 has taken the contention in the written statement that the said registered Will'' is void, in view of the provisions of Section 120 of the Mahomedan Law which reads as under.

"Bequest to unborn person.- A bequest to a person not yet in existence at the testator''s death is void; but a bequest may be made to a child in the womb, provided it is born within six months from the date of the will.

Admittedly, the plaintiffs have not produced any material evidence on record to prove that the plaintiffs are in existence at the time of execution of registered Will''. In the absence of the same, taking into consideration the age of the plaintiffs shown in the plaint that they were not born at the time of execution of Will''. Therefore, Ex. P-1 the registered Will'' is void and no right, title, interest is convey to the plaintiffs.

The Appellate Court further held that according to the plaintiffs they were in possession of the suit schedule properties. Ex. P-3 is original gift deed, Ex. P-2 is the registered gift deed executed by the defendant No. 1 in favour of the defendant No. 2 pertaining to the suit schedule properties. Ex. P-4 demand register extracts discloses the name of defendant Nos. 3 and 4 in the possession of the suit schedule properties. After his death, the condition in Ex. P-1 with regard to enjoyment and possession of ''A'' schedule property, the children of the 1st defendant, who are the plaintiffs having right, title over the suit schedule property after the death of the testator. The plaintiffs have not pleaded in the plaint that at the time of execution of the Will'' they were born. The 2n defendant has taken a contention in the written statement that the said registered Will'' is void, since on the date of the execution of the Will'' by the testator, the present plaintiffs were not yet in existence and there is no evidence on record to prove that the plaintiffs are in possession and enjoyment of the suit schedule properties. Therefore, the Trial Court on the basis of the oral and documentary evidence has rightly come to the conclusion that the plaintiffs have failed to prove their right, title and interest over the suit schedule property, as on the date of the suit. Accordingly, the lower Appellate Court dismissed the appeal confirming the judgment and decree of the Trial Court and further held that as per Ex. P-5, the name of the defendant Nos. 3 and 4 shown in possession as owner''s column pertaining to house properties. Ex. P-4 does not prove that the plaintiffs are in possession of the suit schedule properties. Exs. P-6 to P-9 RTC relates to suit schedule properties stand in the name of the 2nd defendant Ex. P-10 certified copy of the order sheet and memo in O.S. No. 38/1975, wherein the name of the 2nd defendant and others reflects in respect of suit schedule properties. The said suit got dismissed stating that the matter is settled out of the Court. The RTC extract discloses the name of the 2nd defendant entered in relating to the suit schedule properties. The order passed in O.S. No. 38/1975, the Trial Court on the basis of Exs. P-1 to P-10 has rightly come to the conclusion that the plaintiffs name not shown in the revenue records at Exs. P-1 to P-9 as on the date of the suit and defendants are in possession and enjoyment of the suit schedule properties. Therefore, the Appellate Court dismissed the appeal confirming the judgment and decree of the Trial Court.

The solitary grievance of the plaintiffs in the present appeal is that as on the date of the execution of the registered Will'' dated 12.01.1967 they were born and therefore, they have every right in terms of the Will'' executed by the testator. Both the Courts based on oral and documentary on record concurrently held that the plaintiffs were not born as on the date of the Will'' executed by the testator and in view of the provisions of Section 120 of the Mohammedan Law that persons who are not yet in existence at the testator''s death the Will'' is void. In view of the same, the impugned judgment and decree of the Courts below is in accordance with law.

Appellants have not made out any case and no substantial question of law involved in the present appeal. Accordingly, the appeal is dismissed at the stage of admission itself.