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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7237 OF 2010

Smt. Ajambi ( Dead) by LR. …….Appellant(s)

Versus

Roshanbi & Others ..….Respondent(s)

J U D G M E N T

ANIL R. DAVE, J.

1 This appeal has been filed against the judgment delivered

on 16th November, 2005 in R.S.A. No.578 of 2000 by the High

Court of Karnataka at Bangalore.

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2. The facts giving rise to the present Appeal, in a nutshell,

are as under:

The appellant is the original defendant in the Suit.  The

plaintiffs,  who  are  respondents  herein,  had  filed  a  Suit  for

partition and separate  possession of  the  7/8th share  in  the

Suit property.  The property in question originally belonged to

late  Shaikaji,  whose  first  wife  Halimabi  had  died  and

thereafter he had married Roshanbi.  Out of the first marriage

with Halimabi, late Shaikaji had two children and one of them

had  died  whereas  he  had  six  children  through  his  second

marriage with Roshanbi. The Suit was filed by the second wife

and her children against the defendant, who is the heir of the

first wife. 3. The Suit was in respect of property which was

purchased by Shaikaji and the suit property was in occupation

of all the family members.  

4. The Suit, being O.S.No.153 of 1985 was decreed on 27th

July, 1988.

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5. The said judgment and decree had been challenged by

way of an appeal and the said appeal was dismissed on 13th

November, 1995 by the first Appellate Court.  Being aggrieved

by the said judgment, an appeal was filed in the High Court.

The  High  Court  had  allowed  the  appeal  by  remanding  the

matter to the first Appellate Court for its fresh disposal with a

direction to permit the parties to lead documentary evidence in

relation  to  a  memorandum  of  partition  dated  12th August,

1958.

6. In pursuance of  the  order  of  the High Court,  the first

Appellate Court had permitted production of the aforestated

document Ex.D7 dated 12th August, 1958, which is in a nature

of a memorandum of partition, whereby, during the lifetime of

Shaikaji, the property in question had been divided among the

children of the first wife and the second wife.  In pursuance of

the  aforestated  document,  necessary  revenue  entries  were

made, whereby the property bearing CTS NO.883 was divided

into CTS No.883/A and CTS No.883/B.  The aforestated facts

are not  in  dispute  and it  is  also  an admitted fact  that  the

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eastern part of the property, CTS No.883/B, was in possession

of the plaintiffs  i.e. the children of the second wife as well as

late Shaikaji, whereas the western part of the property, CTS

No.883/A, was in occupation of the son of the first wife. The

first Appellate Court considered the validity of the aforestated

document dated 12th August, 1958 and came to the conclusion

that the property had been divided earlier, which was recorded

under a document dated 12 August,  1958, which was duly

signed by late Shri Shaikaji and the document had also been

attested by two independent witnesses.  Unfortunately neither

Shaikaji  nor  the  attesting  witnesses  were  alive  at  the  time

when the  said document  was exhibited  as Ex.D7.  The said

document was believed by the lower Appellate Court and on

the basis of the evidence which had been adduced in addition

to the aforestated document, the first Appellate Court had set

aside the decree passed by the Trial Court and held that the

property had been divided during the lifetime of late  Shaikaji

and therefore, the plaintiffs were not entitled to 7/8th share in

the Suit premises which consisted of CTS No.883/A and CTS

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No.883/B.   According  to  the  lower  Appellate  Court,  the

property had been duly divided and was in occupation of the

respective parties even during the lifetime of late Shaikaji.   

7. The said judgment dated 1st April, 2000 delivered by the

lower Appellate Court in Regular Appeal No.75/1998 had been

challenged before the High Court in Regular Second Appeal

No.578/2000, which had been allowed by the High Court and

therefore, this appeal has been filed.  The High Court did not

agree with the view expressed by the lower Appellate Court

mainly on the ground that Ex.D7 had not been registered as it

ought  to  have  been  registered  as  it  was  compulsorily

registerable.  The High Court was also of the view that Ex. D7

was not produced at the time when the trial was conducted

and  the  said  document  had  not  been  relied  upon  by  the

defendant at the time of the trial though he was in possession

of the said document.  Moreover, the High Court was of the

view that there is no concept of joint family in Muslims and

therefore,  there  could  not  have  been  any  partition  or  joint

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family property among the plaintiffs and the defendant, who

belong to the family of Shaikaji.

8. The learned counsel appearing for the appellant i.e. the

original defendant submitted that the High Court committed

an error by not relying upon the document Ex.D7 dated 12th

August,  1958.   He  submitted  that  the  said  document  was

executed by Shaikaji giving details with regard to his family

and giving a portion of his property bearing No.CTS 883 to the

son of his first wife and another portion of the property to the

children of his second wife.  Late Shaikaji had continued to

stay with his second wife and children of the second wife in

the  property  which  was  subsequently  numbered  as  CTS

883/B.

9. He also submitted that  division of  the property among

the children of two wives was duly recorded in Ex.D7, which

was executed by late Shaikaji and the said document, which

was  presented  after  30  years,  was  admissible  as  per  the

provisions of the Indian Evidence Act and there was no reason

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to  disbelieve  the  said  document.   Moreover,  the  learned

counsel drew our attention to certain admitted facts pertaining

to admission by the plaintiffs with regard to their approaching

independent  persons  when a  dispute  had  been  raised  with

regard  to  possession  of  the  Suit  property.  There  was  an

evidence  to  show that  some  understanding was arrived at

earlier  among  the  family  members,  which  was  reflected  in

Ex.D7,  which  was  duly  acted  upon  and  therefore,  it  was

submitted by the learned counsel that there was no reason for

the High Court to take a different view than the one which was

taken by the lower Appellate Court.

10. On the other hand, the learned counsel appearing for the

respondents/original  plaintiffs  submitted that  the  document

Ex.D7 had not been produced by the defendant at the time of

the trial though he was in possession thereof and there was no

justifiable reason for not producing the said document at the

time  of  the  trial.   Moreover,  he  submitted  that  the  said

document ought to have been registered but since it was not

registered, it ought not to have been relied upon by the lower

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Appellate Court and the High Court was justified in ignoring

the said document.

11. No other submission was made by the learned counsel.

We have heard the learned counsel and have perused the

impugned judgment and the evidence recorded by the courts

below.

12. Upon perusal of the evidence, we are of the view that the

lower Appellate Court was correct in its conclusion that late

Shaikaji had made arrangements with regard to his property

during  his  lifetime  and  the  said  arrangements  had  been

subsequently recorded in Ex.D7, which had been duly acted

upon by the revenue authorities by dividing the suit property

into  two  different  parts  namely,  CTS  No.883/A  and  CTS

No.883/B.  It is not in dispute that the property which had

been  divided  by  late  Shaikaji  was  in  occupation  of  the

respective parties and the said fact has also been recorded in

the revenue record.

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13. It  is  true  that  there  is  no  concept  of  joint  family  in

Muslims  but  it  was  open  to  late  Shri  Shaikaji  to  give  his

property  to  his  children  in  a  particular  manner  during  his

lifetime, which he rightly did, so as to avoid any dispute which

could have arisen after his death.  The arrangement so made

was  duly  accepted  by  the  family  members  and it  was  also

acted upon.  Only thereafter a formal record of the said fact

was made by late Shaikaji in Ex. D.7.

14. In  our  opinion,  genuineness  of  Ex.D7  was  rightly  not

questioned by the lower Appellate Court and the High Court

was not  correct when it  questioned its legality  and validity,

especially when the plaintiffs had filed a suit after more than

25 years of the aforestated understanding, which had taken

place during or prior to 1958.  

15. For the reasons stated hereinabove and more particularly

those stated by the lower Appellate Court, we allow the appeal

and set aside the judgment delivered by the High Court so as

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to give effect to the judgment and decree passed by the lower

Appellate Court.   

16 Thus, the appeal stands disposed of as allowed with no

orders as to costs.

…...…..……………............J.                                             (ANIL R. DAVE)

                                 ...

…..............................J.                                              (ADARSH KUMAR GOEL)

New Delhi June 29, 2016.