APNE080001042012 1
In the Court of the Civil Judge (Senior Division), Kavali
Present: Smt. M.Sobha,
Civil Judge (Senior Division), Kavali
Monday, this the 7 th day of April, 2025
O.S.No.129/2013
1. Patan Rahamath bi
2. Shaik Ghouse bi
3. Shaik Basheer bi …. Plaintiffs
Vs
1. Shaik Begum @ Peda Begum
2. Shaik Jaharabi (died) (the word died after 2nd defendant and plaintiffs 1 to 3 recognized as LR’s of her share as per the orders in
IA.No.611/2018, dt.21.12.2018)
3. Shaik Kalesha ( 3rd defendant added as per the orders in I.A.No.2/2022, dt.18.4.2023) …. Defendants
This suit is coming on 13.2.2025 for final hearing before me in the presence of Sri V.Nagaraju, Advocate for the plaintiffs and of Sri C.Venkata Rao, Advocate for the defendants 1 and 3 and and the matter is having been stood over for consideration till this day, this court delivered the following:
J U D G M E N T
The plaintiffs 1 to 3 filed the suit against the defendants 1 and 2 for partition of schedule properties into 13 equal shares and to allot 8/13th share to them by way of preliminarily decree and put the plaintiffs in separate possession of the same. (As the 2nd defendant died, so her legal heirs i.e., the plaintiffs 1 to 3 are jointly entitled to her 2/13th share and the plaintiffs entitled for totally 10/13th share) and if the defendants fails to do so, it may be done the same through due process of law and for costs.
2.The brief averments of the plaint filed by the plaintiffs is as follows:
(a) The 1st defendant is the only wife of late Shaik Hazi Basha and the 2nd defendant is the mother of Late Shaik Hazi Basha and the plaintiffs 1 to 3 are the sisters of Late Shaik Hazi Basha, and the 1st defendant is the
APNE080001042012 2 sister-in-law of the plaintiffs 1 to 3 and the 2nd defendant is the mother of plaintiffs 1 to 3 and both parties are the legal heirs of deceased Shaik Hazi
Basha and the suit schedule mentioned properties are their undivided joint family properties and as per the Mohammadan law all of them are the
Co-Sharers and Co-owners, the suit schedule mentioned properties are the properties of late Shaik Hazi Basha.
(b) The plaintiffs contended that the suit schedule properties are the absolute properties of late Shaik Hazi Basha and all the records stands in his name, during his life time, the said late Shaik Hazi Basha have been in uninterrupted peaceful possession and enjoyment of the same and during his life time, he never executed any legally valid Wills in favour of any body and he did not mortgage or did not execute any valid documents in favour of any body. On 10.10.2012 the said late Shaik Hazi Basha died intestate due to ill health, after his demise, as per Mohamadan law, the plaintiffs 1 to 3 and the defendants 1 and 2 are the legal heirs of his entire estate of suit schedule property. During the life time of Late Shaik Hazi Basha, he married the 1st defendant as his wife and during their wedlock, the 1st defendant did not begot any children and earlier to the death of Shaik Hazi
Basha, his father late Saidili Saheb was also died intestate and late Shaik
Hazi Basha had no brothers, except both parties to the suit no one stands as legal heirs.
(c) The plaintiffs further contended that after the demise of late
Shaik Hazi Basha, the plaintiffs1 to 3 and defendants 1 and 2 have been in joint rights, title, constructive possession and enjoyment of the suit schedule mentioned properties as Co-shares and Co-owners and as per the Mohamadan law of succession.
The plaintiffs 1 to 3 jointly have got 2/3rd share and the 1st defendant is entitled for 1/4th share and the 2nd defendant is entitled for 1/6th share in the total suit schedule mentioned properties, but as per the above stated shares are not useful for correct division, for which it is equally divided the following procedure. Plaintiffs 1 to 3 joint share is 2/3rd which is equal to the 8/12th, share 1st defendant share is 1/4th which is equal to the 3/12th share.
2nd defendant share is 1/6th which is equal to the 2/12th share.
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But the above division is also not supported for correct division, hence under permissible Mohammedan law, the plaintiffs 1 to 3 joint share is reduced to 8/13th share, the 1st defendant share is reduced to 3/13th share and the 2nd defendant share reduced to 2/13th share.
(d) The plaintiffs also contended that after demise of their bother late Shaik Hazi Basha, the plaintiffs and the defendants 1 and 2 successfully completed his funeral function as per Mohammedan customs and usage and there after, all of them celebrated necessary death ceremony i.e., 9th day function and 20th and 40th day function with the expenses of plaintiffs 1 to 3. The plaintiffs contended that they wants to separate their joint share from the defendants and also inspite of personal demands and through mediators, but the defendants did not come forward for partition for the suit schedule property and more over as per their knowledge, and without their consent, the 1st defendant dishonestly and illegally trying to create some false documents by making false representations and colluded activities with her supporters, for which the 1st defendant is not entitled for the same and the documents cannot be enforceable according in to the law and they are not binding over the legal and valid rights of plaintiffs. Then immediately they issued legal notice on 23.11.2012, but the defendants either failed to come forward for partition of the suit schedule properties according to the Mohammedan law succession or gave proper reply.
(e) The plaintiffs further contended that their deceased brother
Shaik Hazi Basha, during his life time, he worked as village servant and got sufficient income with his job and also from the suit schedule properties and he never borrowed any amounts from others, but he gave amounts to the 3rd parties and the account details are shown by the 1st defendant, after ascertaining the same, out of which they are also entitled for a share.
(f) The plaintiffs contended that during pendency of suit 2 nd defendant/Shaik Jaherabi W/o Late Saidili Saheb died intestate on 13.07.2015 and the plaintiffs 1 to 3 being her daughters are the legal
APNE080001042012 4 representatives of the deceased 2 nd defendant and they are entitled for the share of 2 nd defendant.
(g) The plaintiffs contended that during pendency of the suit proceedings, the 1st defendant by name Begum @ Peda Begum executed a sham and nominal document in collusive manner i.e., registered gift settlement deed in favour of 3rd defendant by name Shaik Kalesha on 23.08.2021 vide document No.1830/2021 of S.R.O, Vinjamuru with regard to the some of the items of plaint schedule properties and said document is not valid and do not deprive the rights of the plaintiffs in the plaint schedule properties. Hence the suit for partition.
3. The 1 st defendant filed her written statement by admitting the relationship with the plaintiffs and denied the remaining averments in the plaint. The contents in the written statement is as follows:
(a) The 1st defendant contended that all the suit schedule properties are self acquired properties of her husband late Shaik Hazi Basha during his life time. She contended that the 1st plaintiff married one Pattan Khan and the 2nd plaintiff married one Shaik Masthan Basha and 3rd plaintiff married one Badulla and all are residing individually and separately and they have no connection and right over the properties. The plaintiffs never claimed any right over the properties by way of succession from their father or predecessors in the family. Either the plaintiffs or their father
Saidili Saheb have no connection with the plaint schedule properties and the plaintiffs are never be co sharers or co owners of the property and the plaint schedule properties are not the joint properties and it is the absolute properties of late Shaik Hazi Basha. Except the 1st defendant, no other person have got any right over the properties.
(b) Item No.1 of the plaint schedule property, previously belongs to
Shaik Moulali, Shaik Masthan sons of Kasim Saheb and Shaik Khajabi wife of Khajavalli. The above said Hazi Basha purchased the property on 12.06.1988. The description of the item No.1 in the plaint schedule is not mentioned correctly and boundaries are also not correct.
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(c) The Item No.2 of the plaint schedule property belongs to one
Medikonda Subbaiah previously and on 30.06.2001 the said Hazi Basha purchased the same.
(d) Previously item No.3 of the plaint schedule property belongs to
Brugumalli Veera Brahmachary and after his death, the above said Hazi
Basha purchased the property on 21.09.2000 from the legal representatives of Veera Brahmachary, they are Rajeswaram, Sudhakar Rao, Gandadhar
Rao, Srihari Rao and Surendra Babu.
(e) Item Nos.4 & 5 of the plaint schedule properties, previously owned by one Pallapu Ankaiah S/o. Guravaiah. Pallapu Malakondaiah S/o.
Ankaiah Pallapu Narasimham S/o. Ankaiah. The above said Hazi Basha purchased both items 4 & 5 on 07.03.1995 from the said persons.
(f) Previously item No.6 of the suit schedule property belongs to one
Udayagiri Hanumanthaiah S/o Muthalaiah and Udayagiri Chenchaiah S/o
China Narasaiah. The above said Hazi Basha purchased the property on 20.07.1973.
(g) Item No.7 of the plaint schedule property previously owned by one Shaik Dastagiri S/o. Mastan Saheb and the said Hazi Basha purchased the property on 16.11.1977 from the said person.
(h) Item No.8 is a house site previously owned by Pidikiti Kotaiah,
Pidikiti Narasimham, Pidikiti Srinivasulu sons of Kondaswamy and Chimati
Musalaiah s/o Subbaiah. The said Hazi Basha purchased the property on 25.09.1997 from the said persons.
(i) The 1st defendant contended that all the said above properties are the self acquired properties of Hazi Basha, except her, no other person have got any right over the suit schedule properties. Accordingly she prays to dismiss the suit with costs.
4. The 3rd defendant also filed his written statement and denied the averments made by the plaintiffs in the plaint. The contents in the written statement filed by the 3 rd defendant is as follows:
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(a) He contended that the 1st defendant is the only wife of late Hazi
Basha and plaintiffs 1 to 3 are his sisters, and also all the suit schedule properties are the self acquired properties of Hazi Basha, who acquired the same during his life time. He also contended that the plaintiffs have no connections with the properties and they have no right over the plaint schedule properties and they are residing separately. The plaintiffs never claimed any right over the properties by way of succession from their father and predecessors in the family and the plaintiffs never be co-sharers or co- owners of the property and the plaint schedule properties are the self acquired properties of Hazi Basha, who is the husband of the 1st defendant and she alone is entitled for the properties.
(b) The 3rd defendant also contended that presently the 1st defendant became aged and she is unable to attend even the house hold articles and the 3rd defendant and his wife used to attend all the necessities of the 1st defendant. The plaintiffs never attended the sad moment of death of Hazi
Basha even to console the 1st defendant. But after his death, the plaintiffs came forward to raise false cause of action of claiming the properties. As there are no other person to assist the 1st defendant, she took his assistance and she gave Ac.3.86 cents to him towards the security of his life and the plaintiffs have no right to question the said act of 1st defendant.
There is no cause of action for the suit and accordingly, he prays to dismiss the suit with costs.
5. Suit against 2nd defendant dismissed as abated and subsequently as per orders in IA.No.611/2018, dated 21.12.2018, the plaintiffs 1 to 3 were recognized as legal representatives of deceased 2nd defendant.
6. Basing on the above pleadings the following issues have been framed for trial:
1) Whether the plaintiffs entitled for partition of suit schedule property and separate possession of their share as prayed for ?
2) To what relief?
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7. During the course of trial, on behalf of the plaintiffs, the 3rd plaintiff herself was examined as PW1 and got marked Exs.A1 to A13, and one 3rd party to the proceedings as PW2.
On behalf of the defendants, the 1st defendant also filed her chief examination affidavit as DW1 and 3rd defendant examined as DW2, and no documentary evidence were marked on their behalf.
8.Heard arguments.
9. Issue No.1:
1) Whether the plaintiffs entitled for partition of suit schedule property and separate possession of their share as prayed for ?
This is the suit filed by the plaintiffs against the defendants for partition of the plaint schedule properties belonging to their deceased brother Hazi Basha and for separate possession and also for a share, fell to the share of deceased 2nd defendant/their mother.
10.(a) To prove the case of plaintiffs, the 3rd plaintiff filed her chief examination affidavit as PW1 and reiterated the entire plaint averments in her chief examination affidavit. PW1 also filed her additional chief examination affidavit and testified that during pendency of the suit proceedings between them and the defendants, but the 1st defendant by name Begam @ Peda Begam with a collusive manner executed a sham and nominal and legally unenforceable registered gift settlement deed in favour of 3rd defendant on 23.08.2021 vide document No.1830/2021 of
S.R.O, Vinjamuru with regard to the some of the Items of plaint schedule properties and said document is not valid according to law and do not deprive their rights in the plaint schedule properties.
(b) Through PW1, the documentary evidence were marked under
Exs.A1 to A13 apart from her oral evidence.
(i) Ex.A1 is the office copy of legal notice, dated 23.11.2012. PW1 relied upon the same to show that after the demise of Hazi Basha, they
APNE080001042012 8 demanded the defendants for partition of the plaint schedule properties and
Ex.A2 are postal receipts 2 in number.
(ii) Ex.A3 is No.3 adangals for the faslie 1413,1414,1417,1418,1420 and 1422 in respect of Item No.1 of plaint schedule property. Ex.A4 is No.3 adangals for the faslie 1417, 1418, 1420, 1422, relating to Item No.2 of plaint schedule property. Ex.A5 is No.3 adangals for the faslies 1414, 1418 1420, 1422, in respect of Item Nos. 3 and 4 of plaint schedule property
Ex.A6 is No.3 adangals for the faslie 1418, 1420, 1422, in respect of Item
No.5 of plaint schedule property. Ex.A7 is No.3 adangals for the faslie 1414,1418, in respect of Item No. 6 of plaint schedule property. Ex.A8 is
No.3 adangals for the faslie 1414,1420,1422, in respect of Item No. 7 of plaint schedule property.
PW1 relied upon the Exs.A2 to A8 to show that the plaint schedule properties stands in the name of her deceased brother Hazi Basha, which reveals the name of said Hazi Basha as owner of plaint schedule properties.
(iii) PW1 also relied upon Ex.A9 which is the certified copy of registered gift settlement deed dated 23.08.2021 executed by 1st defendant in favour of 3rd defendant, the recitals in Ex.A9 reveals that the name of 3rd defendant is shown as the son of 1st defendant and she settled some property in his favour due to love and affection, after the death of her husband. PW1 also relied upon Ex.A11/the study and conduct certificate, dt.06.10.2021 of 3rd defendant to show that this father name is Mohamed
Aaj Basha, but not the deceased Hazi Basha.
(iv) PW1 also filed and got marked Ex.A12, the office copy of legal notice, dt.23.08.2021 issued by the plaintiffs to the defendants 1 and 3,
S.R.O, Vinjamur and Tahsildar, Kondapuam, to show that they issued the legal notice and requested the Sub Registrar and Tahsildar not to register any document and also not to mutate the names of defendants No.1 and 3 in the office records. PW1 also relied upon Ex.A10 the letter, dated 24.08.2021 received from Sub Registrar, Vinjamur by her, stating that the registration cannot be stopped unless an injunction order passed by the court of law. But there is no explanation from PW1, that whether she
APNE080001042012 9 obtained any injunction orders from the court or not, by filing any petition seeking for any injunction orders. As per Exs.A9 and A12, PW1 and remaining plaintiffs issued legal notice to the S.R.O and Tahsildar on one and the same date of Registration in the name of 3rd defendant by 1st defendant.
(v) PW1 also relied upon Ex.A13, the reply notice, dt.13.09.2021 from the defendants 1 & 3 to show that after issuance of legal notice under
Ex.A12 she received the reply notice from them. As per recitals, defendants 1 and 2 categorically stated that the notice schedule property is the absolute self acquired property of Shaik Hazi Basha, the husband of 1st defendant and the plaintiffs have no right or share in the plaint schedule properties.
(c) In the cross examination, PW1 testified that, her father name is
Shaik Sahedil Saheb and plaintiffs 1 and 2 are also the daughters of her father, and he died about 30 years back. She got married 37 years back and prior to her marriage, she resided with her father and after her marriage she went to her in-laws house. The deceased Hazi Basha is elder to her and the 2nd plaintiff, and he is younger to the 1st plaintiff. She testified that after her marriage she used to reside with her husband, his parents, his brother, and she never resided with her deceased brother Hazi Basha.
PW1 also testified that her husband is an agriculturist and owned half acre of agricultural land and he used to visit coolie work in addition to agriculture and her husband have one elder sister and one younger sister. In the ration card of her family, the names of herself, her husband and their children were mentioned. She also testified that she can examine plaintiffs 1 and 2.
She testified that her ration card doesn’t bear the name of her deceased brother. She and other plaintiffs and her deceased brother resided in separate houses and they never resided jointly. Her deceased brother is a drunkard and he admitted in the hospital and the doctors also treated
before his death, and also he used to visit the hospital whenever, he
suffered with ill health for a period of one year and he also took treatment in
Life Care Hospital, Kavali and later he went to a private clinic at Guntur. At
Kavali hospital, he used to spent Rs.10,000/- and whenever he fell ill and
APNE080001042012 10 at Guntur his spent Rs.2,00,000/-nearly. PW1 also testified that there are no family debts to Hazi Basha and he is having cash, but she doesn’t know how much amount in his hands prior to his death.
(d) PW1 also testified that the 1st defendant called all her relatives and local people and arranged dinner for all the people. For the 40th day function, 200 people attended for dinner and she and other plaintiffs never contributed any amounts to any one of the ceremonies after the death of her brother and never contributed any amounts to the medical expenses and also family debts. She also testified that she filed the suit, claiming her share in 8 Items of plaint schedule properties. The plaint schedule properties belonged to her father and again she testified that they belonged to her brother. She also testified that her brother acquired the properties through her father, but no written deed was executed by her father. She admitted that she has not filed any documentary poof to show that the plaint schedule properties were purchased by her father.
(e) PW1 also admitted that Item No.1 of plaint schedule property belongs to Sk.Moulali and Sk.Mastan sons of Kasim Saheb and her brother purchased Item No.1 from them. Item No.2 of plaint schedule property belongs to Medikonda Subbaiah and her brother purchased the same from him. Item No.3 of plaint schedule property belongs to Veerabrahmachari and after his death, her brother purchased the same from his legal heirs.
Items Nos.4 and 5 of the plaint schedule property originally belongs to
Pallapu people and her brother purchased the same from them. Item No.6 of plaint schedule property belongs to Udayagiri Hanumanthaiah and
Chenchaiah and her brother purchased the same from them. Item No.7 of the plaint schedule property belongs to Dasthagiri and her brother purchased the same from him. Item No.8 of the plaint schedule property belongs to Pidikiti people and her brother purchased the same. PW1 further admitted that her brother purchased Item Nos.1 to 8 of the plaint schedule properties from the nucleus amount. She admitted that she did not mention in the plaint or in her chief examination affidavit that her brother purchased
Item Nos.1 to 8 by selling the properties of her father. She denied that she and the plaintiffs 1 and 2 never lived jointly. She denied that the plaint
APNE080001042012 11 schedule properties are not joint family properties and they are not entitled for the reliefs. PW1 also admitted that she doesn’t know the properties of her father and where they were situated.
11. (a) Coming to the evidence of PW2, who is the 3rd party to the suit proceedings. He testified in the chief examination affidavit that Shaik
Begam @ Peda Begam is the only wife of late Hazi Basha and his mother is Shaik Jaharibi and the plaintiffs are the sisters of said Hazi Basha and he has no issues and so all of them are the legal heirs of deceased Shaik Hazi
Basha and suit schedule properties are originally belonged to him and he purchased with the joint income of family and after his demise and at present those are undivided joint family properties, as per Mohammedan law they are co-owners and co-sharers of the same. He further testified that during the life time of Shaik Hazi Basha, he has been with uninterrupted peaceful possession and enjoyment of the same and he never executed any valid Wills in favour of anybody and he did not mortgage and execute any valid documents and he died in the year 2012 intestate, and after his demise and as per Mohammedan law, the plaintiffs and defendants 1 and 2 stands as legal heirs for his entire estate of suit schedule properties. He further testified the after the demise of Shaik Hazi
Basha, the plaintiffs and defendants 1 and 2 successfully completed the funeral function and thereafter all of them celebrated the death ceremonies with the expenses of plaintiffs only and after completion of functions, the plaintiffs demanded for amicable partition of suit schedule properties, but the defendants 1 and 2 did not come forward for partition. Thereafter, the 1st defendant illegally mutated her name in the revenue records in respect of suit schedule properties. The said Hazi Basha during his life time, he worked as village servant and he never borrowed any amount from others, but he gave the same to the 3rd parties and the 1st defendant did not show the account details. During the pendency of suit, Shaik Jaharabi died intestate in the year 2015. The 1st defendant also during the pendency of suit proceedings, she executed a sham and nominal registered gift settlement deed in favour of 3rd defendant with regard to some of the Items of plaint schedule properties by showing that he is the son, in fact he is not at all the son of Shaik Hazi Basha.
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(b) In the cross examination, PW2 admitted that he doesn’t know about the particulars of properties purchased by Hazi Basha, and where he purchased the same and for which amount. He also testified that the father of Hazi Basha namely Sidulu worked as Talari in the Revenue Department, but he doesn’t remember when he died and the mother of Hazi Basha died in the year 2015. He admitted that the entire plaint schedule properties were purchased by Hazi Basha and his wife i.e., 1st defendant alone is entitled for all the properties of Hazi Basha. He testified that for the funeral of Hazi Basha, the 1st defendant spent nearly Rs.1,50,000/- out of the personal amount of Hazi Basha, and she is entitled to the properties of her husband.
12.(a) On the other hand, the 1st defendant contended that the deceased Hazi Basha is her husband and during his life time, he purchased the properties and they are his self acquired properties and since the date of marriages of plaintiffs, they have been residing separately and they have no connection with their family and they have no right over the properties and the plaint schedule properties are not joint properties.
(b) In support of their version, the 1st defendant entered in to the witness box and filed his chief examination affidavit as DW1 and reiterated the written statement contents. She testified that there is no joint family properties between them and plaintiffs and all the properties shown in the plaint schedule are exclusive properties of her husband Hazi Basha and there are no undivided joint family properties among the plaintiffs and her husband and the plaintiffs never claimed the right over the properties by way of succession either from their father or predecessors in the family and the plaintiffs are never co-sharers or co-owners of the properties. She further testified that she became aged and unable to see the plaint schedule properties and even to do the house hold work and the 3rd defendant and his wife used to attend all her necessities and works, and she took the assistance of 3rd defendant and she gave Ac.3.86 cents of land to the 3rd defendant towards security of his life, and the plaintiffs have no right to question the said act. DW1 also testified that the plaintiffs never attended the sad moment of death of her husband and never compensated
APNE080001042012 13 any amount to discharge the debts incurred for the hospital expenses and other debts or never shared any amount even to the ceremonial function of her deceased husband.
(c) Coming to the cross examination of DW1, in which she testified that her husband is Shaik Hazi Basha and the plaintiffs are his sisters. The 2nd defendant is her mother-in-law. Her husband died about 14 years ago and the plaint schedule properties stands in the name of her husband. The plaintiffs, who are her sister-in-laws filed the suit for partition of the properties, but she has an objection for the partition of the same. She admitted that they have no children. To discharge the debts incurred at the time of ill health of her husband, she sold some of the plaint schedule properties to defendant No.3, who is the son of her sister, under sale deed about 3 years ago. She admitted that it is not mentioned in the sale deed about passing of consideration between her and 3rd defendant and also it was not mentioned in the said sale deed that it was executed towards discharge of debts and she admitted that she mentioned in Ex.A9 that 3rd defendant is her son. She further testified that on instructions of 3rd defendant, the sale deed under Ex.A9 was prepared. One Madhav and
Seshaiah are the attestors of sale deed and they are her co-villagers. She denied that during the pendency of the suit, she executed the sale deed in favour of 3rd defendant and the same is invalid.
(d) DW1 also admitted that she received legal notice under Ex.A12 issued by the plaintiffs after execution of sale deed in favour of 3rd defendant and she and 3rd defendant issued reply notice under Ex.A13, but she doesn’t know the contents and as on the date of death of her husband, she is not having any cash. She denied that the funeral expenses of her husband was incurred by the plaintiffs. Again she testified that she spent the expenses and the plaintiffs were present at the time of funeral of her husband and they rendered help. She also testified that after the death of her husband, she has not allotted any share of the properties of her husband to the 2nd defendant, but she gave Ac.2.00 land to the plaintiffs at her village after the demise of her husband. She admitted that she cannot say the details of the said property and same was not reduced into writing.
APNE080001042012 14 She further admitted that she did not mention in her written statement or in her reply notice about the allotment of Ac.2.00 land to the plaintiffs. She admitted that she mentioned in her written statement that except herself, there are no legal heirs to her deceased husband and the daughters are the legal heirs of her deceased mother-in-law/defendant No.2. She admitted that she did not file any additional written statement by admitting that the 3rd defendant is her son. She denied that she did not mention in her written statement about the division of shares shown by the plaintiffs is not correct.
She denied that after the demise of any Muslim male person, his wife is entitled for a share of 1/4th only and the remaining shares will be gone to residuary ie., mother, sister, brother and father. She admitted as on the date of demise of her husband, her father-in-law is no more. She denied that her mother-in-law is entitled to 1/6th share in the plaint schedule properties and the plaintiffs are entitled for 2/3rd share in the plaint schedule properties. She denied that she executed the settlement deed in favour of 3rd defendant to prolong the litigation.
13.(a) The 3rd defendant also filed his chief examination affidavit as
DW2. He testified that all the suit schedule properties are self acquired properties of Hazi Basha and he acquired the same during his life time. All the plaintiffs are residing separately and they have no connection with the schedule properties and they have no right over the plaint schedule properties. The plaintiffs never claimed any right over the properties by way of succession from their father and predecessors in the family. Either the plaintiffs or their father have no connection with the plaint schedule properties and they never be co-sharers or co-owners of the property, except the 1st defendant, no other person have right, title over the plaint schedule properties. DW2 also testified that since his child hood, he was brought up by the family of 1st defendant and he used to assist the family necessities. The plaintiffs never attended the sad moment of death of Hazi
Basha, even to console the 1st defendant. After the death of Hazi Basha, the plaintiffs raised the litigation with a false claim. DW2 further testified that his marriage was performed by 1st defendant and she gave Ac.3.86 cents to him towards security of his life.
APNE080001042012 15
(b) In the cross examination, DW2 admitted that he has no documentary proof to show that his father is Hazi Basha. Again he says that since the age of 5 years, he was brought up by said Hazi Basha and he has no documentary proof to show that the said Hazi Basha adopted him since the age of 5 years and he was resided along with Hazi Basha in his house. His father is one Mohammad. He testified that the defendant
No.1 is his senior paternal aunt and he got knowledge about the suit since 12 years. He testified that he could not say the details of plaint schedule properties and also its extent and he doesn’t remember the date of Ex.A9
Certified Copy of registered settlement deed executed by 1st defendant in his favour and the details of the property shown in Ex.A9. He admitted that his name was not mutated in the revenue records since the date of Ex.A9 and no other revenue records is available to him to show that he has been in possession and enjoyment of the properties shown in the settlement deed. He testified that after death of Hazi Basha, his marriage was performed in the year 2019 and he did not file any documentary proof to show that his marriage expenses was incurred by defendant No.1. He admitted that the contents of Ex.A9 was got prepared on the instruction of defendant No.1 and he affixed his signatures in the settlement deed and his name is shown as the son of defendant No.1. He admitted that the plaintiffs also attended the funerals of Hazi Basha and no properties allotted to the plaintiffs from the properties of late Hazi Basha. After issuance of Ex.A12 legal notice by the plaintiffs, they never try to cancel the settlement deed and if the plaintiffs and 1st defendant partitioned the plaint schedule properties, he has an objection as he is entitled for all the plaint schedule properties as he looked after the welfare of the said Hazi Basha.
14. The counsel for the plaintiffs vehemently argued that during the life time of deceased Hazi Basha, he gained some properties from joint family properties and obtained registered sale deeds, so it is undisputed one and all documents are in the name of said Hazi Basha. Further he argued that the Muslim law is applicable to both parties and Section 64 of Mulla’s
Mohammedan Law is applicable to the present suit and the plaintiffs after completion of death ceremonies of late Hazi Basha, they issued a legal
APNE080001042012 16 notice to the defendants, but they kept quiet and not coming for partition.
Even the 1st defendant did not produce any evidence to show that she performed the ceremonies of her husband and after completion ceremonies, the plaintiffs filed the suit for partition of properties of Hazi
Basha, but during the pendency of suit, the 1st defendant executed a registered settlement deed under Ex.A9 and the same is not valid and not binding on the plaintiffs and all the plaint schedule properties are the joint properties of plaintiffs and defendants 1 and 2 and the same are liable to be partitioned as per Muslim Law.
He also relied upon the decision, dated 26.06.1989 (AIR 1991
JAMMU AND KASHMIR,8) in between Maqsooda Begum And Ors. Vs
Shahnawaz Khan And Ors.
“On the death of a Sunni Muslim, after the payment of his funeral expenses, debts and legacies, his property is divided amongst various relatives belonging to the class of sharers and the residue, if any, then goes to the relatives shown in the class of residuaries. In the absence of the sharers, the property goes directly to the residuaries, while in the absence of both the sharers and the residuaries, the property is inherited by the distant kindred except, where the sharer is the wife or husband of the deceased, then the distant kindred does not inherit in presence of any sharer or residuaries. The rights of a sister to inherit the property of a Sunni Muslim, as follows.
The full sister inherits in three capacities:
(a) She takes as sharer if there is no child, child of a son h.l.s. father, true grandfather or full brother and she is entitled to 1/3 rd share (or 2/3 rd collectively when there are two or more sister).
(b) She inherits as a residuary with her full brother.
(c) She inherits as a residuary with daughter or sons daughter h.l.s. or one daughter and a son’s daughter h.l.s. provided there is no nearer residuary.” It would thus be seen that sister has an interest in the property of the deceased and even if she does not get the share as a sharer, she gets it as a residuary, the deceased was admittedly survived by a widow, two daughters and a sister.
APNE080001042012 17 He further argued that herein the plaintiffs comes under the category of residuaries as per Section 61 of Hanafi law of Inheritance and prays to decree the suit by allotting shares to the plaintiffs as per amended plaint.
15. On the other hand, the counsel for the defendants also vehemently argued that the deceased Hazi Basha is the brother and the plaintiffs are his sisters and during his life time, he acquired all the plaint schedule properties with his own earnings and defendant No.1 is the wife and defendant No.2 is his mother and the 3rd defendant is the assistant to the 1st defendant. He argued that after the death of Hazi Basha, the plaintiffs who are his sisters filed the suit and contended that there is no dispute with regard to the owner ship of property and he argued that all the plaint schedule properties are joint properties, but the Muslim Law does not recognize Muslim joint family and as per admission made by PW1, there is no joint family and no joint family properties and all the properties were earned by the husband of defendant No.1. Though it is mentioned in
Ex.A9/registered gift settlement deed executed by defendant No.1 in favour of 3rd defendant that, he is the son of deceased Hazi Basha, but the sisters of Hazi Basha have no right in the plaint schedule properties. He argued that as per Section 61 of Hanafi law of Inheritance, there is a precondition that after payment of funeral expenses, debts, and legacies, then only the members are entitled for a share. But PW1 clearly admitted that they never contributed any amount to the funeral expenses of deceased Hazi Basha and that Section 63 of Hanafi law of Inheritance is not applicable and the 1st defendant alone entitled for the properties of her husband deceased Hazi
Basha and prays to dismiss the suit.
16. (a) Heard arguments of both counsels and also the entire evidence of both parties and the documentary evidence of the plaintiffs. Admittedly, the plaintiffs filed the suit for partition of properties stating that the suit schedule mentioned properties are undivided joint family properties and as per
Mohammedan Law, the plaintiffs and defendants 1 and 2 are the co- sharers and co-owners and they have been in constructive possession and enjoyment of the properties, and they celebrated the funeral function of
Hazi Basha with the expenses of plaintiffs 1 to 3. But the 1st defendant
APNE080001042012 18 denied that the suit schedule properties are joint family properties and stated that they are the self acquired properties of Hazi Basha and except her, no other have got any right over the plaint schedule properties. The evidence of PW1 clearly reveals that after her marriage, she resided with her husband and with his family and she never resided with her deceased brother Hazi Basha and as per the admission of PW1, she and other plaintiffs never contributed any amounts to any one of the death ceremonies of her brother Hazi Basha and never contributed any amounts towards the medical expenses, so, it is clear that the plaintiffs failed to follow the precondition as required under Section 61 of Hanafi law of
Inheritance.
(b) Further PW1 testified that the plaint schedule properties i.e.,
Item Nos.1 to 8 were purchased by her brother Hazi Basha from the nucleus amount, but she failed to adduce any documentary proof to show that her deceased brother purchased the properties from the nucleus amount. PW1 who is the 3rd plaintiff testified that her brother acquired the properties through her father, but she clearly admitted that there is no documentary proof to show that the plaint schedule properties were purchased by her brother through his father. Even the 3rd party to the proceedings who entered in the witness box as PW2 also admitted that the plaint schedule properties were purchased by Hazi Basha and for his funerals, the 1st defendant spent nearly Rs.1,50,000/- amount. PW2 who entered in to the witness box in support of case of plaintiffs, but he did not support their version. Admittedly the 1st defendant as DW1 did not produce any documentary proof to show that she allotted Ac.2.00 of land to the plaintiffs. DW1 also admitted that she executed a gift settlement deed during the pendency of the suit in favour of 3rd defendant/DW2. But it is for the plaintiffs to prove their case by adducing any documentary evidence and also cogent evidence to show that they followed the precondition as required under Section 61 of Hanafi law of Inheritance, to claim their share over the plaint schedule properties. Except the sole testimony of PW1/3rd plaintiff, she did not intend to examine the remaining plaintiffs in support of their claim for a share in the plaint schedule properties and moreover the
Musilm law does not recognize a Mohammedan joint family as a legal
APNE080001042012 19 entity. When the members of a Mohammedan family live in commensality, they do not form a joint family. Under Muslim Law there is no concept of a joint family or joint family property, unlike in Hindu Law, and each individual has the right to own and manage their property independently. Various court rulings emphasize that the concept of joint family property is not applicable to Muslims and in the instant case on hand, the plaintiffs failed to prove their case by adducing any evidence as reqired under Muslim Law and the decision relied up on by the counsel for the plaintiffs is not applicable to the case on hand, and the facts and circumstances are different in the present suit.
From the foregoing discussion, findings and reasons the plaintiffs are not entitled for the relief of partition of plaint schedule properties as prayed for. Accordingly, issue No.1 is answered against the plaintiffs.
17. Issue No.2:
To what relief?
In view of findings in issue No.1, this issue is also answered against the plaintiffs.
18. In the result, suit is dismissed with out costs.
Directly typed to my dictation and corrected and pronounced by me in the open court, this the 7th day April, 2025.
Fair Copy: Civil Judge (Senior Divison)
Kavali.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFFS: DEFENDANTS:
P.W.1:Shaik Basheer BiD.W.1:Sk. Begum @ Peda Begum
P.W.2:Shaik Rasool BashaD.W.2:Sk. Kalesha
DOCUMENTS MARKED FOR PLAINTIFFS:-
Ex.A1: Office copy of legal notice, dated 23.11.2012
Ex.A2: Postal receipts 2 in number
APNE080001042012 20 Ex.A3: No.3 adangals for the faslie 1413,1414,1417,1418,1420 and 1422 in respect of Item No.1 of plaint schedule property.
Ex.A4: No.3 adangals for the faslie 1417,1418,1420,1422, in respect of Item No. 2 of plaint schedule property.
Ex.A5: No.3 adangals for the faslie 1414,1418,1420,1422, in respect of Item Nos. 3 and 4 of plaint schedule property.
Ex.A6: No.3 adangals for the faslie 1418,1420,1422, in respect of Item No.5 of plaint schedule property.
Ex.A7: No.3 adangals for the faslie 1414,1418, in respect of Item No. 6 of plaint schedule property.
Ex.A8: No.3 adangals for the faslie 1414,1420,1422, in respect of Item No.7 of plaint schedule property.
Ex.A9: Certified copy of registered gift settlement deed, dated 23.08.2021 executed by 1st defendant in favour of 3rd defendant.
Ex.A10 : Letter, dated 24.08.2021 from Sub Registrar Office, Vinjamuru to the 3rd plaintiff.
Ex.A11 : Study and Conduct Certificate, dt.6.10.2021 of 3rd defendant.
Ex.A12 : Office copy of legal notice, dt.23.08.2021 issued by the plaintiffs to the defendants 1 and 3, SRO, Vinjamuru and Tahsildar, Kondapuam.
Ex.A13 : Reply notice, dated 13.09.2021 from the defendants 1 & 3.
DOCUMENTS MARKED FOR DEFENDANTS
- NIL -
Civil Judge (Senior Divison)
Kavali.
APNE080001042012 21