SMT.AJAMBI (DEAD) BY LR. Vs ROSHANBI AND OTHERS
Bench: ANIL R. DAVE,ADARSH KUMAR GOEL
Case number: C.A. No.-007237-007237 / 2010
Diary number: 6440 / 2006
Advocates: S. N. BHAT Vs
D. N. GOBURDHAN
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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.