gm THE HIGH cousrror KARNATAKA AT l3Ai\_3:6~.'é;!.j§i>'_§§«.'§-3' % DATED THIS THE 17" may of MARCi~§»'2_(}CJ§A--f: _ T _: BEFORE HONBLE MRJUSTICE Monm TAr~;Aéso:3:>As2 REGULAR sgcong k%%ap:»= Mu. _.B...9.tJ.!..I:e_e_Iy W] o . Aged ah9ut_52Vyésa:s;,V'w% 2. Noo1jaha n». . % M V _ D/0 1" defei::41a;mf.Va.1;xdA*--._ " W/ofibdnl '~ _AAgci17ab9ut .42 ye€aI"s*;--,..... * Sb. M:-:i2ami2i /Io Mphiiitfidm Pasha, Age(i*about-- ?'years, 4., sycci d Band @ Sabuial '"3/9 Rahtfian Barid, Major. & Begum ' D10 3'" plaintifl', about 40 years, Zatnila Begum D / o 3"! piaintifl" Aged aboui 32 years, V. _____ .. « 1€b} ;r¢a2.cczga%3afi-ubi '((2) Sy-.4.:Vci W "éiyr-,d Barid, F" Fssyed Akar Barid, "(ta syea shukur Band' , 7. Akila Begum, D / o 314 plaintifi' Aged about 3 1 years, 8. Rahiman Barid @ Iqbal Pasha S/0 3"' plaintiff, Aged about 30 years, All are residents of Thadigol, ROIHII' Hobli," _ " Srinivasapur Taluk. _ 1 y. 2"ppeHants ( By Sri Sri£_ihar.f_or Vagdafii " Advocate} , RcpIescn1._¢dby his "LE3: " ' (3.) Syezi Davoéd S] G Barid, " oflfizgar Band, " "S/0 Azgar Barid, S/o Azgar Barid, .. R.A.No.60/88 on the file of the Pr1.Civii Judge, Kevlar, allowing (g) Sydanobi, Sfo Azgar Baxid, (h) Syed Mohiuddhl Pasha, S] 0 Azgar Barid, (i) Sycd Makboo1Barid, S] o Azgar Barid, (j) Ameenabi, W] 0 Azgar Barid, Ronni' Hoblj, All are R/o. Tadigol if ' " 2. Pathakotc Narajranappa, «- Major; 'fiiadifiéfil. A '75 * . Remit Hoblj," * V _ _ SIiniv3a_sa3)ur V» " 3. Khasim Maivr» x % V. «_ M6i1::hant.V .ROnuf'-H955, . ' ,SIi;nivasa;;m_m7& Taiuk. .. Respondents
‘{ABy’S1iM’;(}.Ki1mar, Advocate for R-1(B-H)
and R-«2 Ta;-. 3, Sri s.M.ch.andmshckar,
V Advdcatc for R-2 and 3 (R1 (GE, G) and
S1’iM_.D.Vaishati, Advocate for R~1A)
U I
— This RSA is fiicd under Section 100 ofC.P.C;. against the
” jiidment and decree dated 23.1 1.1994 passed in
the appeal and setting aside the judgmcnt and decree passed
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by the r~>r1.Mu;s.sifi’, Kolar, in
1 1.9. 1987.
This RSA having been heard £1iiéi’1’eseI’ved«ufEJeuI§iei*s £53; A
31″ January 2009, the Court pmnougxced fhe jvsgeigxiientm;
day, the 17th March 2009: " . 2 JUDéfi%fli'ee"
This Regular sscssa by plaintiffs
against the ju(igr§xent””a:1.®(1: 23.11.1994,
passed in ‘r§§c[«ssifits%as filed by eight
plaj11tifi’$..fQr Vpossession of the suit
echeduie “‘O.’S’.No.388/ 1977 before the
Munsifi’ atVVVKeV1e:.r; suit came to be decreed in
plaintiff No.2 is entitled to 7/ 24th
‘–__sh:aI”e No.3 is entitled to 113th share in
ceifsné It is further held that the pxaimifis are
‘pot any share in scheduled Item Nosf! to 9 and
I ‘The 18’-‘ ciefendant~–Azgar Barid, (since deceased,
V’ ‘.”1’efi,aresented by legal representatives) was directed to
. ujfrender accounts in respect of the receipt and expenditure
of the money earned out of the seheauled items to be
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divided. Questioning the judgment and _
0.S.No.388/1977, the legal representa1:iv_e~s~oif~.defE?:13.dsfit*« V.
No.1 filed Regular Appeal No.60] 19)-8:3?
Court, Chintamani. The appea}._.to be v
impugned judgment and ofovember
1994. Consequently, passed by
the trial ()o1u’tfs..v_as came to be
dismissed. and decree
passed the Civil Court, this
second
2.. ., F014″ of convenience, the parties are
as per fanks before the trial Court.
understanding of the relationship
fhedpmfies, it is proper to have the genealogy of
‘ ” The geneaiogy as per plaintiffs is as under;
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GENEOLOGY
(According to plaintifis)
Mohiyuddin P.9:s’ha~. .. _
(Propositusi died 1:96%?~) ‘ a
(twc v?:’_m’e_s)
{Wife – 1) ed on 1944), :4. — P1aiiiLtifl’No.3)
(Son. “– ziied on s_i;9¥’%§} ~i~}’3efei1ri_axi’E No. I)
I:
(Wife — ‘No._1) (Daug_hter — Piaintiff No.2)
.. –. _. V
” Syed Rahaman Barid (1;
L’ Sabulal
— Son — P1air.1tifi’No.4
b) Shakila Begum
— Daughter – Plaintiff No.5
c) Zamila Begum
— Daughter — P1aint.ifi’ No.6
(1) Akhila Begum
—- Daughter — Plaintiff No.7
e) Rahiman Barid @ Ikbal
Pasha
— Son — Plaintiff No.8
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4. Case of the pia;’mifi’s is that : late Mogtgytmm
Pasha is the original owner of the suit propefizies
3rd plaintifi’~Maza,mbi @ “is A
Plaintiffs 4 and 8 are the sons 6′
are the daughters of Mohiyuddin .”PasI’xa:
plaintifl’ No.3. The of Mohiyuddin
Pasha was Noomhi. Mohiyfnddixy I expired in the
year 1964 and ash firedeeeased Mohiyuddin
Pasha. th:{e~,veat§ ekk1<§44, leaving behind two
sons 'in the year 1948) and Azgar
Barid (i.e.Q'defendant.'.N'o:_';i')t The piajmifis 1 and 2 are the
A' da "'3.te1f____érespectively of deceased Rehaman
.,I%.(§CtiIdiI1g to the plaintiffs, they are in joint
enjoyment of all the suit schedule
Ivhpropertiee, hnlong with defendant No. 1; but, defendant
V' "C_i'~}'oV. denied their share; Defendant No. 1 has been
enjoying the usufincts and income of all the properties;
'4 defendant No.1 wanted to eel} away the usufruets of the
properties to defendants 2 and 3, plaintfifs protested for
W
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the same; as their share in the propsrties is denied by
defendant No.1, plaintiils, filed the do
0.S.No.388/1977 for partition and
According to plaintiffs, MoI1i§fL1ddinV”*P£isha diedl_dpe1;;t 1 if d
years prior to the tiling of the
first son of Mohiyuddvix’-f” Barid, born
through Noorabi_A{fi;’st Wife} years prior to
filing of the ‘ 1
Pe:~iieex1i;.~¥é«id e defendant No.1 that the
piaa’nt1’fi’s”‘} uand doténdded for any share, inasmuch
as, thsir 14/1961 filed for partition
V’ssi3§ai*atéC:_>osses’sion came to be dismissed; that the
id piaintififs that first son of Mohiyucidin
M _Pasi1″a, send aman Barid, died ten years prior to filing
” .th(_: suit is incorrect, inasmuch as, he died in the year
“itself as is clear from the admission made by
i 1 and 2 in O.S.No.5I4/1961; that plaintifi” No.3
9’ ii 3 is not the second wife of Mohiyuddin. Pasha and that
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Court is not justified in dismissing the suit in its ent:1rety,
inasmuch as, p1a:nt;i:1′ No.3 s the second
Mohiyuddin Pasha and plaintifis 4 to 8 are *
daughters born to Mohiyuddins’ ;
Mazambi — p1aintifi’No.3; that at:EExs.P~1
to P47 conckusively reveé1i«-{fiat is the Wife and
plaintifts 4 to 3 are m¢.v4c}*;j1§gysn’.’s.sgf4A’Meii:iy’i1ddi11 Pasha
born thI’011g.h_V Né§3). He further
subznited at by the first
AppeHate1.,.ACeux’§. is» 1:0′ the records and therefore,
the same is””1ia;b1e ‘:0 be” aside. However, the learned
~ A011″ of the plaint:iffs~appeiia11ts
that plaintifis 1 and 2 may not be entitled
to ” share through Rehaman Barid who
% % his fiather – Mohiyuddin Pasha – the
_ pfopesitus.
” ~ Per contra, it is argued on behaif of contesting
fespondents i.e., defendants I (a) to 16) that, the first
}’>
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(3) Whether the first Appellate Court is
justifled in dismissing the suit filed by
Plaintififs 3 to 8 mainly on the gbund
the Nikhanama: evidencing the maxfiege cf A
plaintiff No.3 with Mohjyuddjn Pashéaigjss-sf «
not produced? 1 4′ ” “id ‘ 4’
(4) Whether the .1buIi.ti~..
Deed Ex.I)~1 Jexecutedxifbyss Mo1fi}*1.1ddiii
Pasha in tavousfi first; »«3%irs».sNeqrabi are
liable to to
the P1’§s¢11xtVj’suifi? :[ ‘ V
As of the defendant
NO. I thati-31¢ have the second wife. In
other woxwde; the No.3 that she is the
‘._second.;%g§?ife.of the is denied by defendant No. 1.
__ is argued by defendant No. 1 that
” V the sons and daughters of plajmifl
Pit1’Q.3 get any share in the property. in this
s an applimtion is filed by defendant No. 1 in
appeal, before this Court, under Order 41
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..1q..
Rule 27 of C.P.C. for leading additional evidence. He
produced a Xerox copy of Nikhanama of _
contend that plaintifl” No.8 had a_.z1″oi1§.e3_t dd ” =
Shaik Suiaimansaheb Zamirmdar mute year i9?¥i’.{‘3n§..n_:«
therefone, she is not the Wife ‘me ”
contended by the deiendant by t.’1e’Ast;dte1nent
of objections filed byv to 8 to the
appficauon for e em the
plaintiffs have plailltiif No.3
marrying Sulaimansaheb
Zami11dat;”*i;1fi_16 ” %
8.V_State1aeI1t_o,-f ebjeefions are filed by the piaintflfs
to .tI1e.e{ppl:§;ea3:ion ieading additional evidence by
tote? oiia that the marna’ ge of plaintifi” No.3 is
stated! to. been taken place when she was just
” the same never came to be acted upon. The
A Nikha certificate mentioned above is stated to
Iihave been issued by the Secmetary, Masjid Edga
1/>
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Kabrastan, Noorpur Village, Srinivasapura ‘l’al1A.~r.~}:;”
District. According to the plaintifle, n_11031:’ b
even attain the puberty at e
consequentiy, she never Iived.wi1_;1; ;
Zamindar as his wife. ‘ _ _ ‘ V
9. The eonteI1tio1e.s'”f-eiA’1 eermot be
accepted. Deiendatlt Veiliewed to lead
additional 30 years. The
suit is bbe matter had gone
up to Hoigfblgg. gt’ India. The Apex Court
has remanded Ltiléfi xixafierv Court. After remand, the
appiieetggemer 1eee.iege;1c1iuona1 evidence is filed. The
A’eepAy;’ef; cannot be ailowed to be produced at
‘– .. No plausible explanation is
to why the document sought to be
Iiew was not produced eariier. Even according
ciefeedant No.1, the Nikhanama is found in the register
bk eeeietaz’ned by the concerned Muthavali in Dargah. 11’ it is
M
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Rehaman Barid died in the year 1945. lt is _
by plaint1’fi’s 1 and 2 herein in the . s%;:j1t% x
O.S.No.514/1961 that Reha111a11:=..:13a.3<-igi .fiv¢1uie(i -.ii*1-
1945. It is not in dispute thaiz pfepdsitus 'I$fie.t3iy1§iddm:V: e
Pasha died in the year 31964. the first
son of Mohiyuddin u his fir-st wife
Neorabi. 'I'h1;s,– it Barid
pmdeeeasee__ I and 2 being the
wife and claim share in the
pmperdes who predeceased his
father (Mot'iiy3;:cI.dVii;._."V1-'?:';1s3§é;»4the propositus}, they are not
1;_e the suit scheduled properties.
.. fmm ciaiming any share in the
prcfiertiee' ef;_}:?:?{VehiyuddiI1 Pasha. Moreover, the earlier
them in 0.S.N0.5I4/1961 came to be
' on merits. The properfies invoived in the said
" 'etzif. are also involved in the present suit. Hence, plaintiifs
:1 and 2 are not entitled to any share in the property and
V'
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consequently, their claim is rightly dismissed
Appellate Court.
11. Re: second and third
second and third questiof15 “~C,>i’ iavf a:.=..¢1a¢ase}s
conveniently by clubbing “t_hey_ ‘ up for
consideration together.
12. In {suit 14/ 1961,
defendant 1 -I9. had contended that
Momyucidio had got second wife
and five Chiliirerfi through second wife. it was
fuJthe.fr’co11tei1de§i”ihei*ei11 that the earlier suit was not
V” View of non—joinder of the second wife
‘the ii1ie~.efjiIdien born to her. In View of the same, it is
that the Mohiyuddin Pasha — the
H H K ~44″}:¥.£’0;.1:1.sit1js..had got second wife and five children are hem
sthrough second wife. If realiy the plaintiff No.3 is
T the second wife and plaintiifs 4 to 8 are not the
“children born to Mohiyuddin Pasha through his second
<\.J'**«
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wife, the defendant No.1 should have taken a ‘fiefixfite
stand by disclosing the name of second wiie I
children born to second wife. The silence
No.1 in this regard amounts to ‘
defendant No.1 that is, the wife and
plaintiffs 4 to 8 are the to Moh1y1′ iddifl
Pasha – the pmpesitus’
13. V. of the year 1977 of
Thadigel The said voters list
is preparedé’ in elections of 1977. Ex.P–1
revea}s”tI;1a.t prainair is the Wife of Mohjyuddin Pasha
&aadV:%V%’shaA%%§aas«aged ‘about 45 years duI’1n’ g the said year.
of Birth issued by the competent
_ autfieritgf.’ -The said certificate clearly reveals that female
.4 H ” .e:L:i.I;:I_”was “born to Mohiyuddin Pasha and plairltiff No.3 on
1953. Ex.P–3 reveais that a male child was born to
T Mehiyuddin Pasha and piaintitr No.3 on 13.2.1956.
x Ex?-4 reveals that female child was born to Mohiyuddin
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Pasha and pia1’ntifi’ No.3 on 22.10.1958. _
that male chiid was born. to Mo1}i.yuddiz1″‘ = = ” =
plamtiff No.3 on 1.4.1961. ..
certificate issued by Goveitmaem: Hitghe1* _Sck§ool, *
Thadigol, relating to pIam1ifl’No{A8:–_lq1§al _1éi;x.P.–7 is
the transfer certificate /A Primary Boys
School, ‘I’11adigo1,– in No.4-Syed
Rehaman reveal
that the .:};§Q1.or}iiyuddin Pasha. Thus,
it is plaintiffs 4 to 8 are the
children to _k:»1§1:iyu§idm Pasha through Mazambi
.3). to P»? are the public documents
—by the jurisdictional authorities ciurm g
the’co1″3érse.«o§5ifeg1:’Vxlarwork.
14′._ EI1 further support of the case of the plajnfiffs,
brother of the first wife of Mohiyuddin Pasha
“‘–‘.éisV_e$(am1’ned as PW-1. He was aged about 75 years at the
«time of his examination. He is none other than the
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maternal uncle of defendant No. 1. He has ciearly
emphatically deposed that Mohiynddin Pasha _
wives i.e., Noorabi and Mazamhi Ne;3}.:’jj’~_I§lo~»srabi V’: d v
is the genitive sister of PW- 1. PV:V._-1 ”
Mohiyuddin Pasha took eeifter the
death of his first wife ‘«§1e{_i”.s_ss” as to how
the marriage ‘Attended the
marriage of Pasha. In
spite of by defendant No. 1,
nothing evidence of PW–1. if
really plaintifi’..__N0.(§ legally wedded wife of
_.1’s*!.o1r1iy1Vfad:.diV1:”‘:_5iA’ VvPasha,…__.PW«1 wouid not have supported
‘npeiirticularly when defendant No.1 is none
»,___otheI.’ fihe’eisiefer’s son of F’W- 1. The evidence of PW– 1
V .natL1fa} reliable. No reasons are torthcommg to
me version of PW- 1, particularly in the fight of
-fioiunéinous supporting documentary evidence in the form
7 I -. ‘Exs.P- 1 to P-‘?’.
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15. The evidence of PW» 1 is fully _
evidence of PW-2 who is an independent ” = ‘V
also deposed that plaintifi’ No.3 is:’»3;he1-~1té?i3ie4″of
Pasha and Mohiyuddin Pasha, *
the death of his frst Wife Noor3,_oi’:A:§11d._»_tha1’t’ 4 to 3
were born to – -to the wedlock
between
16. supported by the
evidenceVovof.PW~f3 r;;eid:eVV_:~§*:side11t of same vmagc.
He has ~ No.3 is the wife of
Mohiyuddiri’ of the said wedlock, piaintifis
, .4 to s;a;~ejba;-:1. .’I5\+’\=L4_.oi«’.~:«vp1ai11’€iif No.3 herself. Pws.2 to 4
“have” in their cI’oss—-examination. ‘1’It1e evidence
of PWSQ I V1:o’.v’V?éif_,V.ooupieci with the documents at Ex-s.P-1 to
‘P37 it amply clear that Mohiyuddin Pasha married
after the death of his firs: wife Noorabi. 1:; is also
‘. from the material on record that pla}.z11:i1fs 4 to 8 are
to Mohiyuddin Pasha through Mazambi.
“*3
\4
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handed over to the first Wife Noorabi under Mehar Deed
and that the Deed of Mehar was created only a witlia
to avoid share to the first son born *
Noorabi. According to them, the i’11*st~weon K V’
viz., Rehaman Barid (husband of
of plaintiff No.2) was ‘ the
properties and was residing skins. a to
avoid him any share in Mohiyuddin
Pasha created oi’ Noorabi
nominally. on record, the
trial was not acted upon
and that nroperties continued with
Mohiyuddin ‘.’l11i”‘urie’&irV of the $6 fmding arrived at
ofgtllel passed in earlier suit in
058..§¢’o.’5e1%§’/.oi955V=lIVilgdisposed of on 19″: January 1963),
x””V’vwnicn =.§vas.- on the admission of the propositus
” iiisdidéliyuddinii’ Pasha himself and the admission of the
defendant No.1 herein, it is not open for
lieieieiidant No.1 again to contend that the properties»:
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belonged to Noorabi (the iirst wife of the preposits
Mohiyudciin Pasha) exclusively as they were _’t..ezher
in Mehsar. The judgtnent and decree”
O.S.N0.514/I961 has attained see”
defendant No.1 himself has
passed in O.S.No.514/ 196k1e.sjj9F;ts.eEx. 1′:5«_16 ‘re1iec:V
upon the same for opposizlgzhes. s9g1j{.,1b;.’§p9;1tition.
Hence, the com;em::on<% in that regard
and med
was nomifiei _.;;1pon. Hence, item
Nos. 14i'fpI'0perties also are liable
to be to 8 and defendant No. 1.
:.,.’_!_§g;u “The first Appellate Court is not
4.°j’!15%'{ecif”§:1″h€3ldi1i§”‘iifeat items N0s.3, 4, 6, 7, 9, 10,. 12
£iQf.1~*}iabie to be divided as the same are not
‘ _ {he name of Mohiyuddin Pasha, but are
L in the name of Ramachandra Rao 85
Rao. These properties are tenanted
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properties. Mohiyuddin Pasha was
properties. Said Ramaehandra Rae and
Rae are the owners of iands. ‘I’he tenisfifitetip
liable to be partitioned. ‘I’hu’s, ” L.
are to be divided among the (i’eiefode;r1tV’1\!’er.VV1’encifgplainfitfs
3 to 8. As aI’o1’eI11en’ti:<)._i':I–.i-:_('i,"_V:V are not
entitled for sharejn tl1e..e2dird.proIder§§ie_s'Rehaman Barid
— husband Nd: of plaintifi’ No.2
predeceased t Rehaman Barid had
pmdecerdsed.’ 3 i branch is excluded rmm
claiming ;5:arfrtio1i;– . the earlier suit for partition
_ and f>’0sse’ssiAon filed by the plaintiifs 1 and 2
‘O.-S:§1’1’o.514/1961 is also dismissed. in View of
r I and 2 are not entitled for partition.
‘Hence, zthe persons now entitled for partition are
“‘..(‘1effeI1:;1_anr.No.1 and plaixltifls 3 ta 3 — i.e., plaiI1fifi’N’o.3 is
of the propositus, p1aim:ifi’No.4 and pla1’ntifi’No.8
V the sons and piaintifis 5, 6 and 7 are the daughters.
Thus, it is clear that the properties wilt have to be divided
V7
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among Wife and ttmee sons and three 5 daughters of
Mohiyuddin Pasha. H .
Under Mohamadan Law, the wife
as the Sharer. The >
defendant No.1 and piai11tj1I’se’4_.te a e’tt1e *’
three sons together or jointly / three V
daughters together _ out of the
remaining 7/831 each of
the three sofiisé and each of the
daughter’ 2 of the suit scheduie
properties. ._ order is made :
2. Plaintfif No.3 «g ea. Pyarembi
is enfitlefi to ” — 1/8*h share
2. Defeodant Barid
A ….. – Stlare
Syed Rehman Bane ‘cl
‘«@’~Sabu1.@. entitled to — 7/3631 share
4. £)ef’?e:1:1§iai1£.VNo.8 — Rahiman Barid – 7/36¢ share
1/’
1 .i . ,_ %rb;</
m31m
5. Plaintiff No.5 —- Shakila Begum
is entitled to — 7/7295′.
6. Plai11ti1i’N’0.6~–ZamilaBegum 1 v A_ .g
is entitled to .. 4–=.7/.’Z’2″d’
7. P1aént.ifi’No.7 — Akhila Begum V
is entitled to Lk ?’/”£253 “Share V
Appeal is allowed jfidgjfiexzt and decree of
iower Appellate isiset the suit
is decreed to be
Sd/-»
Judge