IN THE COURT OF XXV ADDITIONAL CHIEF JUDGE CITY CIVIL COURT: AT
HYDERABAD
THURSDAY, THE 13TH DAY OF OCTOBER, 2016
PRESENT: SRI P. KASI VISWESWARA RAO,
XXV ADDITIONAL CHIEF JUDGE
Original Suit No.149 of 2006
Between:- Syed Azeemuddin Ahmed S/o Late Syed Taj Mohammed, aged 43 years, Occ: Service, R/o portion of 16-3-802, Chanchalguda, Hyderabad.
....Plaintiff
AND
1. Syed Sadullah S/o Syed Taj Mohammad, aged 55 years, Occ: Business,
2. Azeemunnisa D/o Late Syed Taj Mohammed, aged 53 years, Occ: Household,
3. Ayesha Banu W/o Syed Alimuddin Mohd, aged 50 years,
4. Syeda Hidayat Banu D/o Late Syed Taj Mohammed, aged 48 years,
5. Mahedia Banu D/o Late Syed Taj Mohammed, aged 45 years,
6. Siddique Banu W/o Syed Taj Mohammed, aged 40 years,
7. Ameena Banu W/o Syed Ataullah, aged 35 years,
8. Batul Fatima W/o Syed Zainulabuddin Arif, aged 34 years,
9. Amtullah Banu D/o Late Syed Taj Mohammed, aged 32 years, all are R/o 16- 3-802, Chanchalguda, Hyderabad. 10.Syed Abdul Rahaman S/o Syed Mohammad Panah, age 53 years, Occ: Business, R/o 10-2-347/B/4/1, North Asifnagar, Hyderabad. (Died per L.R. defendant No.11)
11. Jameela Begum W/o Late Syed Abdul Rahman, aged about 52 years, Occ: Household, R/o H.No.10-2-347/B/4/1, North Asif Nagar, Hyderabad.
....Defendants
This suit is coming on 22.08.2016 before me for final hearing in the presence of Sri A.V.Srinivas Rao, Counsel for the plaintiff, Sri Damodar Mundra, Counsel for defendants 1,6 and 8 and of Sri Mohd.Shujauddin, Counsel for the defendants 2,4,5 and 9 and defendants 3,7 and 11 have remained ex parte and upon hearing both the counsel and on perusing the material available on record and the matter having been stood over for consideration till this day, the Court delivered the following:-
J U D G M E N T
This is a suit filed seeking the relief of partition of the suit A and B schedule properties among the plaintiff and defendants 1 to 9, as per Shariat Law, to allot 2/12th share to the plaintiff, to cancel the two alienations, made by defendant No.1 and his mother in favour of defendant No.10 and defendant No.1 and 4 in favour of defendant No.10 and for costs of the suit.
2.The plaint averments, in brief, are as follows: The plaintiff and defendants 1 to 9 are natural brothers and sisters. Syed Taj Mohammed, who is the father of the 2 O.S.No.149 of 2006 plaintiff and defendants 1 to 9 died on 05.12.2001. Their mother Fatima Banu died on 28.12.2005. The paternal grandmother of the plaintiff and defendants 1 to 9, by name
Buvva Bee W/o Syed Khurmid Meer, was the original owner of the suit schedule properties and she died on 02.08.1974. On her death, her only son by name Syed Taj
Mohammed succeeded to all the suit schedule properties. After death of Syed Taj
Mohammed, the suit schedule properties assumed the status of matruka properties, divisible among the heirs of the said Syed Taj Mohammed, who are the plaintiff and defendants 1 to 9 herein, as per Shariat Law of Succession. But, defendants 1 and 4 have conspired together and they have been attempting to appropriate the suit schedule properties among them. Items No.1 to 3 of suit B schedule properties, which are suituated at Parvatpur village, Zaheerabad mandal, are the subject matter of litigation between the plaintiff, defendants 1 to 9 and the encroachers of the said land, in W.P.No.24787/1998. Another writ petition was also filed in the year 2005 and both the said writ petitions are pending before the Hon'ble High Court of A.P. All the original documents are either in the custody of defendant No.1, who is the elder male member of the said family and looking after the said litigation or those documents might have been filed in those two writ petitions.
3.Defendant No.1, 4 and their mother have colluded and executed documents styled as agreement of sale-cum-GPA in favour of defendant No.10 for the land in
Sy.No.30 and 32 mentioned in suit B schedule properties and got registered the same as document No.4351/2005, dated 14.11.2005 and document No.1262/2006, dated 28.02.2006 respectively. The said two transactions are illegal and those documents were brought into existence to deprive other defendants and the plaintiff of their respective shares in the suit schedule property. The plaintiff and defendants 1 to 9 are entitled to equal share in all the properties left by their father Syed Taj
Mohammed, that defendant No.1 and 4 have no right to appropriate the suit schedule 3 O.S.No.149 of 2006 properties among themselves alone and hence, the plaintiff is seeking the cancellation of the said two transactions. Though the plaintiff has demanded defendant No.1 for partition of the said properties and for separate possession of his share, defendant No.1 refused to do so. Hence, the plaintiff has filed the suit seeking the relief of partition and cancellation of the said two documents as mentioned above.
4.Defendants 1,2,4 to 6 and 8 and 9 are contesting the suit. Defendant No.1 has filed written statement admitting the relationship between plaintiff and defendants 1 to 9. It is further mentioned that the plaintiff already left the house during the life time of his father, by taking his share from the joint family property and since then he is no way connected with the family of defendant No.1. Defendant No.10 is the owner and possessor of item Nos.4 and 5 of suit B schedule property, by paying entire sale consideration to the mother of defendant No.1 during her life time. The mother of the defendants 1 to 9 has already executed registered agreement of sale- cum-GPA in favour of defendant No.10 and delivered possession of the said item
Nos.4 and 5 of suit B schedule property to defendant No.10. Smt.Buvva Bee, who is the paternal grandmother of the plaintiff and defendants 1 to 9, was the original owner of suit schedule properties, after her demise, her son (father of the plaintiff and defendants 1 to 9), succeeded to her properties and after his demise, the mother of the plaintiff and defendants 1 to 9 succeeded to the said properties as owner. The plaint averment that after demise of Syed Taj Mohammed, the suit schedule properties assumed the status of matruka properties, divisible among the heirs of
Syed Taj Mohammed, including the plaintiff and defendants 1 to 9, is not correct.
After demise of Syed Taj Mohammed, his wife succeeded to the said properties, her name was mutated in the revenue records and during her life time, she has sold item
Nos.4 and 5 of suit B schedule properties to defendant No.10 and she has bequeathed suit A schedule property to defendants 2 to 4.
4 O.S.No.149 of 2006
5.It is further mentioned that defendant No.1 has been prosecuting the writ petitions pending before the Hon'ble High Court. The plaintiff at no point of time claimed the said property, nor assisted defendant No.1 either financially or in any other manner for prosecuting the said matter in the Hon'ble High Court, as the plaintiff had no right or interest in respect of the suit schedule properties. The plaint averment that defendant No.1, 4 and their mother colluded together and executed documents in favour of defendant No.10, in respect of land in Sy.No.30 and 32 of suit
B schedule properties, is not correct. The said transaction cannot be termed as illegal and sham in any manner, what so ever. The plaintiff has filed the suit only with a view to harass him and to gain unlawfully. As the plaintiff was already ceased to be a member of the said joint family during the life time of their father, having taken his share from his father, the plaintiff had no right or interest in the suit schedule properties. As item No.4 and 5 of suit B schedule properties are in possession of defendant No.10, the plaintiff cannot say that he is still in possession of the said properties. The mother of the plaintiff is having every right to alienate the said items 4 and 5 of suit B schedule properties, for the purpose of family needs.
There is no cause of action for the plaintiff to file the suit and the suit is liable to be dismissed with costs.
6.Defendants 2, 4 to 6, 8 and 9 have filed memo adopting the written statement filed by defendant No.1.
7.Subsequently, defendant No.2,4,5 and 9 have filed their common written statement. They have denied the plaint averment that after death of their father Syed
Taj Mohammed, suit A schedule property has became matruka property, the same is divisible among the plaintiff and defendants 1 to 9 and they are entitled to share in the suit schedule property as per Shariat Law of Succession. They have denied the plaint averment that defendant No.1 and 4 and their mother have colluded and 5 O.S.No.149 of 2006 executed documents in favour of defendant No.10 in respect of land in Sy.No.30 and 32 of suit B schedule property. A part of land was sold under agreement of sale- cum-GPA to defendant No.10 to the knowledge of one and all. The remaining suit B schedule property is a matruka property of their father. After alienation of 63 acres of land, there exists 92 acres of land and the same is liable for partition among the plaintiff and defendants 1 to 9. Except the said 92 acres of land, which is part of suit
B schedule property, there are no other properties left over for partition and separate possession. The plaintiff is not at all in joint possession of suit B schedule property or suit A schedule property, the plaintiff has illegally occupied portion of suit A schedule property on 26.01.2008, that is subsequent to the filing of the suit.
8.Defendant No.2, 4, 5 and 9 are unmarried, they rendered services to their parents and in lieu of love and affection towards them, their father Syed Taj
Mohammed has executed an oral gift-cum-declaration in their favour on 03.11.1997 and gifted suit A schedule property and they have executed acknowledgment of oral gift. They are in possession and enjoyment of the entire suit A schedule property, admeasuring 276 sq. yards, being its absolute owners. Hence, seeking partition of suit A schedule property by the plaintiff does not arise. They have reposed confidence on defendant No.1, who is their own brother and who is having cordial relationship with them and defendant No.1 himself engaged an advocate on their behalf, thereafter they came to know that defendant No.1 has colluded with the plaintiff, got filed the suit and also executed registered release deed, vide document
No.4575/2007, dated 20.12.2007. After receiving summons in the suit, they have handed over the suit summons to defendant No.1 as they are illiterate and parda observing ladies. The plaintiff and defendant No.1 are their brothers and they have conspired together and hatched a plan to knock away suit A schedule property.
Hence, they have filed a suit for declaration and recovery of possession and 6 O.S.No.149 of 2006 damages against the plaintiff herein, in O.S.No.496/2011 and it is pending on the file of this Court. Tthe plaintiff after occupying portion of suit A schedule property on 26.01.2008, has been creating nuisance day by day, by scolding them with the help of his wife and brother-in-law and hence, they have lodged complaint against the plaintiff and his wife. The plaintiff has disconnected the electricity connection of the premises in which they are residing and the plaintiff has been causing threats to them and he has been trying to neck them out of suit A schedule property. Hence, they are seeking dismissal of the suit.
9.Defendant No.10 has contested the suit by filing written statement stating that defendant No.1 to 4 and their mother alienated suit B schedule properties to him and he has been in possession and enjoyment of the same, which is situated at
Zaheerabad. He denied the plaint averment that defendant No.4 is trying to alienate the residential house and he is nothing to do with the said residential house. He has purchased the land in Sy.No.30, which is item No.4 in suit B schedule property, from
Fatima Banu and defendant No.1, under a registered agreement of sale-cum-GPA, vide document No.4351/2005, dated 14.11.2005, by paying the entire sale consideration of Rs.3,95,000/- and he has obtained no objection certificate from defendant No.2 to 9 at the time of registration. After death of Fatima Banu, defendant
No.1 and 4 approached him for sale of land in Sy.No.32, admeasuring Acs.31-35 gts., situated at Zaheerabad mandal, he purchased the same by paying entire sale consideration to them under registered document No.1262/2006, dated 28.02.2006.
As he paid entire sale consideration for the said two properties, which are items 4 and 5 of suit B schedule properties, he is having every right to alienate the same in any manner whatsoever. Only after verifying the records, he has entered into agreement of sale with the said Fatima Banu. It is not within his knowledge that the plaintiff is also one of the sons of Fatima Banu and he has obtained no objection 7 O.S.No.149 of 2006 certificate from defendants 2 to 9, as he was under the bona fide belief that defendants 1 to 9 are the only legal heirs of Fatima Banu. If the plaintiff is a natural son and legal heir of Fatima Banu, he has to establish his rights in respect of the suit schedule properties. The plaintiff had no right or interest to seek partition in respect of the said items purchased by him. The claim of the plaintiff at 2/12 share cannot be more than 10 acres of land out of total extent of Acs.63-20 gts., situated in Sy.No.30 and 32 as shown in suit B schedule properties. He is a bona fide purchaser of items 4 and 5 of suit B schedule properties and the other defendants have no right in any manner in respect of the said two properties. There is an internal dispute among the plaintiff and defendants 1 to 9 and he was made a scapegoat in their hands and he nothing to do with the dispute between them. Defendant No.10, therefore, seeks the
Court to dismiss the suit with costs.
10.Defendant No.10 died during the pendency of the suit and defendant No.11 was added as his legal representative. Defendant No.11 has remained ex parte.
11.Defendants 3 and 7 have remained ex parte.
12.Basing on the above pleadings, the following issues were settled for trial:
1. Whether Smt.Fatima Begum is the absolute owner and possessor of property? If so, the agreement of sale-cum-GPA dated 14.11.2005 executed by her in favour of defendant No.10 is binding on plaintiff ?
2. Whether the suit property is available for partition, if so among whom and into how many shares ?
3. Whether the plaintiff is entitled for partition of suit schedule property ?
4. To what relief ?
13.Additional Issues:-
1. Whether the father of plaintiff and defendants 2,4,5 and 9 had executed oral gift-cum-declaration dated 03.11.1997, in favour of defendants 2,4,5 and 9, in respect of plaint A schedule property ?
2. Whether there is any property from B schedule is available for partition, if so, whether the defendants have got any share in it ?
14.On behalf of the plaintiff, PW1 and PW2 were examined and Ex.A1 to A10 were marked. Though the plaintiff has filed the evidence affidavit of Syed Yakoob, as 8 O.S.No.149 of 2006
PW3, he did not appear before the Court and his examination-in-chief cannot be taken into consideration. On behalf of defendants 2,4,5 and 9, they have examined defendant' No.2 as DW1 and got marked Ex.B1. They have also examined the husbands of defendant No.6 and 8 as DW2 and DW3, on their behalf.
15.As defendant No.10 died, defendant No.11 was brought on record as his legal heir and defendant No.11 remained ex parte. Defendant Nos.1,6 and 8 have not adduced any evidence.
16.Heard the arguments of both the learned counsel.
17.Additional Issue No.1:-
This issue was framed to the effect that whether the father of defendants 2,4,5 and 9 had executed oral gift-cum-declaration, dated 03.11.1997, in favour of defendants 2,4,5 and 9, in respect of suit A schedule property ?
The case of the plaintiff is that his paternal grandmother by name Smt.Buvva
Bee was the original owner of suit schedule properties, she died on 03.08.1974, her only son Syed Taj Mohammed (father of the plaintiff) succeeded to her properties and after his death, the suit schedule properties assumed the status of matruka properties, divisible among the heirs of Syed Taj Mohammed, who are the plaintiff and defendants 1 to 9 herein. The plea of defendant No.1 is that during the life time of his mother, she has bequeathed suit A schedule property to defendants 2,4,5 and 9 and the plaintiff filed the suit only to harass the defendants. The case of defendants 2,4,5 and 9 is that their father Syed Taj Mohammed, out of love and affection, orally gifted suit A schedule property in their favour, their father has executed memorandum of oral gift on 03.11.1997 and they are absolute owners of suit A schedule property and they have also filed a suit seeking declaration that they are the owners of suit A schedule property.
18.The evidence of the plaintiff, as PW1, is to the effect that defendants 1 to 9 his 9 O.S.No.149 of 2006 brothers and sisters and defendant No.1 is the eldest among the sons and daughters of their father. The suit schedule properties originally belonged to the grandmother of the plaintiff and defendants 1 to 9, by name Smt.Buvva Bee, she died on 03.08.1974 and the suit schedule properties devolved on their father by way of matruka. After his death, the said properties were mutated in the name of their mother Smt.Fatima Banu, who died on 28.12.2005. After her death, the plaintiff and defendants 1 to 9 became sole heirs and successors to the suit schedule properties and the same are liable to be partitioned among them. He has further stated that his mother, defendants 1 and 4 colluded together and without his knowledge, executed two documents styled as agreements of sale-cum-GPA in respect of Sy.Nos.30 and 32, shown in suit B schedule properties, in favour of defendant No.10 and the said documents are marked as Ex.A5 and A6. He has further stated that Those two transactions are invalid, illegal and sham. He has filed IA.No.1291/2006 in this suit, seeking the relief of temporary injunction to restrain defendants 1 to 10 from dealing with the property covered by the above transactions and injunction was granted, vide order dated 11.12.2006, but the defendants sold away the entire property covered by the said injunction order in violation of the said orders, for which he filed contempt petition. He has further stated that he is residing in portion of suit A schedule property, but defendants 2 to 4 are harassing him and his family and filed false criminal cases against him and his wife. The mother of the plaintiff and defendants 1 to 9, had no right to alienate the suit schedule properties left by their father. PW1 in his additional examination-in-chief has stated that there is no such relinquishment document executed jointly by his mother and elder brother and the alleged Hiba nama is a forged one and invalid under law. He was never convicted in any of the criminal cases filed by the defendants, against him and the entire written statement of them is a bundle of lies.
10 O.S.No.149 of 2006
19.In his cross examination, PW1 stated that defendants 2,4,5 and 9 are unmarried and his other sisters were married and living separately. He has admitted that defendants 2,4,5 and 9 are residing in suit A schedule property and he has never seen the alleged document of memorandum of gift, dated 03.11.1997 till this date. He has denied the suggestion that after his marriage in the year 2004, he has shifted his family to a rented house at Chanchalguda, due to strained relationship with the defendants. He has admitted that his elder brother Syed Sadullah (defendant No.1) used to take care of the entire family and that all his family members abide by the words of his elder brother and all of them used to give respect to his elder brother.
He has admitted that DW2 and DW3 herein are his brothers-in-law and except he, no other family member is claiming for partition of the suit schedule property. His evidence is further to the effect that he does not know whether his brother Syed
Sadullah is claiming any share in suit A schedule property. He further stated that he does not know whether defendant No.4 singed on Ex.A6 at the request of defendant
No.1. PW1 further denied that the gift deed dated 03.11.1997 was singed by his father and signature shown to him on Ex.B1 is the signature of his father.
20.The plaintiff has examined A.A.S.Moosa Attan Bhai, who is resident of
Chanchalguda, Hyderabad, as PW2. His evidence is to the effect that the father of the plaintiff and defendants 1 to 9 died in the year 2001 and his wife died in the year 2005. He has further stated as as an elderly relative, he used to visit the house of the parents of the plaintiff, where the plaintiff and defendants 1 to 9 used to live in two portions. He also stated that even after marriage of the plaintiff, the plaintiff has been living with his family in a portion of suit A schedule property. His evidence is further to the effect that the father of the plaintiff has mortgaged suit A schedule house property with condition to repurchase, that the father of the plaintiff redeemed the house after the death of his mother and the father of the plaintiff never gave suit 11 O.S.No.149 of 2006
A schedule property as gift to anybody and the defendants appear to have forged some documents to claim the said property as gift. He also stated that the defendants are quarrelsome women, he has seen the defendants beating the wife of the plaintiff and when he interfered, the defendants attacked him. In his cross examination, PW2 stated that he never stood as attestor for any document executed by the father of the defendants. He denied the suggestion that as he had no acquaintance with the father of the plaintiff, he cannot say whether the gift deed executed in favour of defendants 2,4,5 and 9 by their father, is a fabricated one.
21.Defendants 2,4,5 and 9 have examined defendant No.2 as DW1. They have examined both the attestors of Ex.B1, memorandum of gift, as DW2 and DW3. The evidence of defendant No.2, as DW1, is to the effect that her father Late Syed Taj
Mohammed was the absolute owner and possessor of the suit A schedule property, having purchased the same under registered sale deed, vide document
No.1574/1980, dated 23.11.1979, from Shameem Sultana, that he was in possession and enjoyment of the same and as the plaintiffs are his unmarried daughters and due to natural love and affection, he had orally gifted the said property to them and he has executed memorandum of oral Hiba on 03.11.1997. She has further stated that she along with defendant 4,5 and 9, have filed a suit in O.S.No.496/2011 for declaration and recovery of possession of suit A schedule property against the plaintiff herein. Her brother Syed Sadullah, who is defendant No.1 herein, has colluded with the plaintiff herein and misrepresented to them, that they all have bona fide believed their brother Syed Sadullah (defendant No.1), they have blindly signed on the documents presented by him, without knowing the contents therein and taking advantage of the same, he has executed release deed vide document No.4575/2005,
dated 20.07.2005, along with their mother, in favour of them, relinquishing 2/6th
share of himself and his mother in the suit A schedule property and subsequently got 12 O.S.No.149 of 2006 filed the present suit on the file of this Court. She also stated that after coming to know that their brother Syed Sadullah has colluded with their another brother (plaintiff), they have engaged another advocate and got filed their separate common written statement in the present suit. The plaintiff has forcibly trespassed into portion of suit A schedule property by physically assaulting them, as such, they filed a criminal complaint against the plaintiff. Her evidence is further to the effect that the defendants 2,4,5 and 9 have accepted the gift made by their father in respect of the suit A schedule property, they have been continuing in possession of the said property and the plaintiff and other defendants have no share in the said property.
22.In her cross examination, DW1 stated that they are not having any other document, except document No.1574/1980 executed by Smt.Shameem Sultana, to show that their father got right over the suit schedule property. She denied the suggestion that the said document is only a re-conveyance deed, earlier to that document, their father has mortgaged the suit schedule house with Shameem Sultana, vide document No.159/1978, that the suit schedule property originally belonged to their paternal grandmother Smt.Buvva Bee and after her death, the said property fell to her father, who is the only son of Smt.Buvva Bee and hence, the suit schedule property is their matruka property. She has further stated that their father made oral gift of suit schedule property in their favour, in the presence of Syed Shah
Mohammed (DW2) and Syed Zainulabuddin Arif (DW3). She has admitted that the agricultural land situated at Zaheerabad belonged to her paternal grandmother. She also stated that the suit A schedule property was gifted to her, defendant No.4,5 and 9, by their father and the agricultural land situated at Zaheerabad, alone is liable for partition. She denied the suggestion that the suit schedule property and the said agricultural lands situated at Zaheerabad are matruka properties and hence, both the said properties are liable for partition among the plaintiff and defendants. She denied 13 O.S.No.149 of 2006 the suggestion that she, their elder brother Syed Sadullah and their younger sisters have colluded together and filed the suit in O.S.No.496/2011 against the plaintiff herein only with a view to deprive him from getting his share in the suit schedule properties. She has further denied the suggestion that the plaintiff has been in possession of suit A schedule property from the beginning, he did not trespass into the same in the year 2008, as claimed by her and that she, defendant No.4,5 and 9 have filed the suit in O.S.No.496/2011, as a counter blast to the present suit.
23.Defendants 2,4,5 and 9 have examined Syed Shah Mohammed, who is the husband of their sister, as DW2. His evidence is to the effect that his father-in-law
Late Syed Taj Mohammed was the absolute owner and possessor of the suit schedule properties, having purchased the same under registered sale deed, dated 23.11.1979, that his father-in-law has executed a gift deed on 03.11.1997 in favour of defendants 2,4,5 and 9, out of love and affection, for the services rendered by them to him and as they are unmarried. He has further stated that his father-in-law signed on the said gift deed in the presence of himself and the other attestor by name Syed
Zainulabuddin Arif (DW3) and that he and DW3 have attested the said gift deed. He has further stated that since the date of execution of the said memorandum of oral gift, defendants 2,4,5 and 9 are in possession and enjoyment of the said property as absolute owners, they were in possession of the said property even prior to the said gift and the plaintiff was never in possession of the suit schedule property. His evidence is further to the effect that after the marriage of plaintiff, the plaintiff left the house and he was staying in a separate rented house bearing No.18-8-4,
Chanchalguda and the said house belongs to Syed Zahed Ahmed S/o Syed Gaffar
Ahmed. He has further stated that the plaintiff has illegally occupied a portion of suit
A schedule property without having any right and causing harassment to defendants 2,4,5 and 9. In his cross examination, DW2 denied the suggestion that his father-in- 14 O.S.No.149 of 2006 law did not purchase the suit A schedule property, but got the property from his mother, the suit A schedule property was mortgaged and his father-in-law got the said house released from mortgage. He has also denied the suggestion that the document executed by Smt.Shameem Sultana in favour of his father-in-law is not a sale deed and it is only a release deed. He denied the suggestion that his father-in- law did not execute any gift deed in favour of defendants 2,4,5 and 9, they have created Ex.B1 memorandum of oral gift after death of their father and he is deposing false to help them.
24.The plaintiffs have examined the said Syed Zainulabuddin Arif, who is the husband of their another sister, as DW3. His evidence also reveals that his father- in-law Late Syed Taj Mohammed was the absolute owner and possessor of the suit schedule property, having purchased the same under registered sale deed, dated 23.11.1979, that his father-in-law has executed a gift deed on 03.11.1997 in favour of defendants 2,4,5 and 9 out of love and affection, for the services rendered by them to him and as they are unmarried. He has further stated that his father-in-law signed on the said will in the presence of himself and the other attestor by name
Syed Shah Mohammed (DW2) and that he and DW2 have attested the said gift deed.
He has further stated that since the date of execution of the said memorandum of oral gift, defendants 2,4,5 and 9 are in possession and enjoyment of the said property as absolute owners, they were in possession of the said property even prior to the said gift and the plaintiff was never in possession of the suit A schedule property.
His evidence is further to the effect that after the marriage of the plaintiff, the plaintiff left the house and he was staying in a separate rented house bearing No.18- 8-4, Chanchalguda and the said house belongs to Syed Zahed Ahmed. He has further stated that the plaintiff has illegally occupied a portion of suit A schedule property without having any right and causing harassment to defendants 2,4,5 and 9. In his 15 O.S.No.149 of 2006 cross examination, DW3 denied the suggestion that his father-in-law did not purchase the suit A schedule property, but got the said property from his mother. He has also denied the suggestion that the document executed by Smt.Shameem Sultana in favour of his father-in-law is not a sale deed and it is only a release deed. He denied the suggestion that his father-in-law did not execute any gift deed in favour of defendants 2,4,5 and 9, they have created Ex.B1 memorandum of oral gift after death of their father and he is deposing false to help them. He further denied the suggestion that as defendants 2,4,5 and 9 are unmarried and they promised to him to give suit schedule property to his children, he is deposing false.
25.It is submitted by the learned counsel for the plaintiff that the evidence adduced by the defendants itself reveals that their mother and eldest brother Syed
Sadullah have executed release deed, relinquishing their rights in the suit A schedule property in favour of defendants 2,4,5 and 9, which clearly reveals that there was no oral gift made by their father in respect of the suit A schedule property, that Ex.B1 gift deed is created by defendants 2,4,5 and 9 and that as Ex.B1 is unregistered document, it is not legally valid document. He also submitted that the suit A schedule property is the matruka property of their father, and not exclusive property of their father and hence, the same is liable for partition among the plaintiff and defendants 1 to 9 along with suit B schedule properties. On the other hand, it is submitted by the learned counsel for defendants 2,4,5 and 9 that the defendants by adducing satisfactory evidence, have established that their father was the absolute owner of the suit A schedule property, that their father has orally gifted the said property in their favour taking into consideration the fact that they are unmarried and they are not having any job and the defendants by examining both the attestors of Ex.B1 memorandum of oral gift, have established their case. He has further submitted that the defendants 2,4,5 and 9 have satisfactorily explained that without knowing the 16 O.S.No.149 of 2006 contents of release deed, they have signed on the same, having believed their eldest brother Syed Sadullah (defendant No.1 herein) and that is the reason why they have changed their counsel and they have filed their common written statement in the suit and though the plaintiff has taken the plea that Ex.B1 memorandum of oral gift is a forged and fabricated document, he has not taken any steps to prove the same by sending Ex.B1 with the admitted signatures of his father to handwriting expert for the purpose of comparison of the signatures of his father and for obtaining expert opinion and hence, defendants 2,4,5 and 9 are the absolute owners of suit A schedule property. He has also submitted that Ex.B1 memorandum of oral gift does not require registration, it is a valid and genuine document.
26. From the above evidence adduced by both sides, the relationship between the parties, DW2 and DW3 is admitted. From the evidence adduced by defendants 2,4,5 and 9, it is evident that their father has purchased the suit schedule property from
Smt.Shameem Sultana under a registered sale deed. Though the plaintiff took the plea that the said registered sale deed is only a re-conveyance deed executed by
Smt.Shameem Sultana in favour of his father and it is not a sale deed, the defendant has not filed into the Court a copy of the said registered document No.159/1978. It is also evident that defendants by examining defendant No.2 as DW1 and by examining both the attestors of Ex.B1 as DW2 and DW3, have established that their father has executed Ex.B1 memorandum of oral gift on 03.11.1997 in a sound and disposing state of mind. DW2 and DW3 have specifically stated that their father-in-law has signed on Ex.B1 in their presence and they have attested Ex.B1. From the above evidence of DW1 to DW3, it is evident that out of the sons and daughters of Syed Taj
Mohammed, defendants 2,4,5 and 9 alone are unmarried, they are not having any job or income and the same is admitted by PW1 in his cross examination. In such circumstances, the evidence of DW1 to DW3 that the father of the plaintiff has 17 O.S.No.149 of 2006 considered that defendants 2,4,5 and 9 are unmarried and they are not having any job, their father has orally gifted the suit schedule property in their favour and subsequently executed Ex.B1 memorandum of oral gift, is natural, cogent and convincing. Defendants 2,4,5 and 9 have explained the circumstances with regard to execution of release deed by their mother and eldest brother and about their signing on the same, by stating that they have believed their eldest brother and that is the reason why after they came to know about the mischief played by their elder brother, in collusion with the plaintiff herein, they have changed their advocate and they have filed their common written statement in the suit, in the place of adoption memo filed by them, adopting the written statement of their eldest brother as defendant No.1.
27.The evidence adduced by defendants 2,4,5 and 9 reveals that their father has orally gifted the suit schedule property in their favour and subsequently he executed
Ex.B1 memorandum of oral gift and they have been in possession and enjoyment of the suit A schedule property as owners. In the decision relied on by the learned counsel for defendants 2,4,5 and 9 and reported in Hafeeza Bibi and others vs.
Shaikh Farid (dead) by LRs. and others (AIR 2011 SC 1695), the Hon'ble Supreme
Court has considered the provisions of Section 123 and 129 of Transfer of Property
Act and Sections 17 and 49 of Registration Act. In the said decision, the Hon'ble
Supreme Court has held that the three essentials of a gift under Muslim Law are
1. declaration of the gift by the donor
2. acceptance of the gift by the donee and
3. delivery of possession to the donee
It is further held that if the said three essentials are fulfilled, the oral gift is completed and irrevocable, if the donor has recorded the transaction of oral gift into writing, it does not become formal document or instrument of gift and it does not require registration. In view of the said decision rendered by the Hon'ble Supreme 18 O.S.No.149 of 2006
Court, in the case on hand, though the father of the plaintiff and defendants has orally gifted the suit A schedule property in favour of defendants 2,4,5 and 9 and executed Ex.B1 memorandum of oral gift, Ex.B1 does not require registration and it is a valid gift deed executed in favour of defendants 2,4,5 and 9 by their father.
Therefore, I am of the opinion that the contention raised by the learned counsel for the plaintiff that as Ex.B1 is an unregistered document, it is not valid and binding on him, cannot be accepted.
28.From the above discussion, I am of the opinion that the plaintiff has failed to establish that suit A schedule property is the matruka property of his father Syed Taj
Mohammed and that it is divisible among all the heirs of his father Syed Taj
Mohammed and that the defendants 2,4,5 and 9 have established that their father has gifted suit A schedule property in their favour by executing the original of Ex.B1 memorandum of oral gift. Therefore, I hold on this issue that defendants 2,4,5 and 9 have established that their father had executed oral gift-cum-declaration, dated 03.11.1997 in their favour in respect of suit A schedule property. Accordingly this issue is answered in favour of defendants 2,4,5 and 9 and against the plaintiff.
29.Issue Nos.1,2,3 & Additional Issue No.2:-
The evidence of the plaintiff, as PW1, is to the effect that his paternal grandmother Smt.Buvva Bee was the original owner of suit schedule properties, after her death his father Syed Taj Mohammed succeeded to all her properties, after the death of his father, his mother, he and defendants 1 to 9 became successors to the said properties and all the said properties are liable for partition among him and defendants 1 to 9. The plaintiff has filed death certificates of Smt.Buvva Bee, Syed
Taj Mohammed and Smt.Fatima Banu and they were marked as Ex.A1, A2 and A9. He has further stated that after death of his father, his mother, defendant No.1 and 4 have colluded together and without his knowledge, his mother and defendant No.1 19 O.S.No.149 of 2006 have executed the original of Ex.A5 agreement of sale-cum-GPA with possession,
dated 14.11.2005, in respect of land in Sy.No.30, admeasuring Acs-31-25 gts (item
No.4 of suit B schedule property) in favour of defendant No.10. He also stated that defendant No.1 and 4 have executed the original of Ex.A6, agreement of sale-cum-
GPA with possession, dated 28.02.2006, in respect of land in Sy.No.32 admeasuring
Acs-31-35-gts (item No.5 of suit B schedule property), in favour of defendant No.10 and that they have appropriated the sale consideration amount themselves, the said two transactions are illegal and hence, he seeks the Court to cancel both the said transactions. He has filed Ex.A7, which is certified copy of account No.3 relating to the year 2004-2005, in respect of land in Sy.No.30 and 32 of Parvathpur village and it shows that the father of the plaintiff Syed Taj Mohammed is the pattadar and possessor of the said two itmes (item No.4 and 5 of suit B schedule property). He has also filed Ex.A8, which is encumbrance certificate in respect of land in Sy.No.30.
The plaintiff has filed Ex.A10, which is Fatwa, dated 09.04.2006, stating that both sons (plaintiff and defendant No.1) are given two shares and daughters (defendants 2 to 9) are given one share each in the house and landed properties. His evidence is further to the effect that his mother had no right under the Muslim Personal Law to execute any will in respect of the properties left behind by his father, either his mother or eldest brother had no right to alienate the said items 4 and 5 of suit B schedule properties under the originals of Ex.A5 and A6 documents. He also stated that the cases filed against him by his sisters in criminal Courts were ended in acquittal, they have been harassing his wife and children and he is seeking the relief of cancellation of the originals of Ex.A5 and A6 and for partition of plaint B schedule properties into 12 equal shares and for allotment of 2/12 share to him. In his cross examination, PW1 has admitted that defendants 2,4,5 and 9 used to sign on the documents as per the instructions of defendant No.1 out of respect on defendant 20 O.S.No.149 of 2006
No.1. He has further stated that he does not know whether his sister/defendant No.4 signed on Ex.A6 at the request of defendant No.1.
30.The evidence of PW2 is to the effect that the defendants appear to have forged some documents to claim the suit schedule properties. The evidence of defendant
No.2, as DW1, is to the effect that suit B schedule properties are their matruka properties, after death of her father, defendant No.1 has sold part of suit B schedule properties and that suit B schedule properties are liable for partition and
W.P.No.383/2006 is pending. She has denied the suggestion that, she, her elder brother and her mother have executed registered agreement of sale-cum-GPA in favour of defendant No.10 in respect of part of suit B schedule properties and that she and defendants 4,5 and 9 have filed suit in O.S.No.496/2011 to deny the share of the plaintiff.
31.Though defendants 2,4,5 and 9 have examined DW2 and DW3, who are the attestors of Ex.B1 memorandum of oral gift, they did not state anything with regard to the suit B schedule properties.
32.From the above evidence adduced by the plaintiff, it is evident that the plaintiff has not placed any material before the Court to show that items 1 to 3 of suit B schedule properties are the properties of his father and those properties are available for partition. With regard to item No.4 of suit B schedule properties, it is an agricultural land situated at Sy.No.30 of Parvathpur village, admeasuring Acs-31-25 gts, Ex.A5 reveals that the mother of plaintiff and defendants 1 to 9, by name Fatima
Banu and defendant No.1 have executed the said document on 14.11.2005 in favour of defendant No.10 for sale consideration of Rs.3,95,500/- and it is mentioned therein that the vendors due to in need of financial assistance, have offered to sell the said land to defendant No.10 and after receiving consideration they have executed the original of Ex.A5 and delivered possession of the said property. A 21 O.S.No.149 of 2006 careful perusal of Ex.A6 reveals that defendant No.1 and 4 have executed the said document in favour of defendant No.10, alienating Acs-31-35 gts, situated at
Sy.No.32 of Parvathpur village (item No.5 of suit B schedule property), for consideration of Rs.3,98,500/-. It was recited in Ex.A5 and A6 that the vendors are the sole and absolute joint owners, they are in peaceful possession of the said properties and originally the said lands belonged to Syed Taj Mohammed. The evidence adduced by both sides reveal that the father of the plaintiff and defendants 1 to 9 died on the year 2001, thereafter their mother Fatima Banu died on 28.12.2005 and she along with her eldest son defendant No.1, have alienated item
No.4 of the suit B schedule property after receiving consideration and as they were in need of financial assistance. Therefore, it is evident that as defendants 2,4,5 and 9 are unmarried daughters of Syed Taj Mohammed and they are residing in suit A schedule house property, their mother and defendant No.1 used to look after their welfare and their mother and defendant No.1 have alienated item No.4 of suit B schedule property and within four months thereafter, defendant No.1 and 4 have alienated item No.5 and the only inference that can be drawn is that only to meet the said family expenses, items 4 and 5 of suit B schedule properties were alienated in favour of defendant No.10, after receiving sale consideration from defendant No.10.
In these circumstances, I am of the opinion that the plaintiff has failed to establish that items 1 to 3 of suit B schedule property originally belonged to his father, that his mother, defendant No.1 and 4 have colluded together and executed the originals of
Ex.A5 and A6 in favour of defendant No.10, only to deprive him from getting his share in those properties and the plaintiff is not entitled to the relief of partition of items 1 to 3 and for cancellation of the originals of Ex.A5 and A6 in respect of items 4 and 5 of suit B schedule properties.
33.It is submitted by the learned counsel for the plaintiff that as the suit B 22 O.S.No.149 of 2006 schedule properties originally belonged to the father of the plaintiff and defendants 1 to 9, their mother or defendant No.1 or defendant No.4 have no right to alienate items 4 and 5 of suit B schedule properties and they cannot convey title in favour of defendant No.10 in respect of items 4 and 5 of suit B schedule properties and hence, those two documents are liable for cancellation and the plaintiff is entitled for partition of suit B schedule properties. On the other hand, it is submitted by the learned counsel for defendants 2,4,5 and 9 that as the mother of the plaintiff and defendants 1 to 9 along with defendant No.1 has alienated item No.4 and defendant
No.1 and 4 have alienated item No.5 in favour of defendant No.10, after receiving sale consideration from defendant No.10 and those sales were made to meet the financial necessities of the said family, the plaintiff has no right to question the said alienations and the plaintiff is not entitled to the relief of partition.
34.As already mentioned above, the plaintiff or the defendants have not placed any material before the Court to show that items No.1 to 3 of suit B schedule properties originally belonged to their father Syed Taj Mohammed. The plaintiff has only filed Ex.A7 account No.3 relating to the year 2004-2005 in respect of items 4 and 5, which reveal that their father was the pattadar and possessor of those two items only. As the mother of the plaintiff and defendants 1 to 9, defendant No.1 and 4 have alienated items 4 and 5 only to meet their family necessities and they have received consideration as mentioned in the documents, it is evident that defendant
No.10 is a bona fide purchaser of items 4 and 5 and the originals of Ex.A5 and A6 documents cannot be cancelled. Therefore, I am of the opinion that the arguments advanced by the learned counsel for the plaintiff cannot be accepted and that the plaintiff is not entitled to the relief of partition of suit schedule properties and for cancellation of the originals of Ex.A5 and A6.
35.From the above discussion, I hold on issue No.1 that the original of Ex.A5 23 O.S.No.149 of 2006 registered agreement of sale-cum-GPA with possession, dated 14.11.2005 executed by defendant No.1 and his mother, is binding on the plaintiff and defendants 1 to 9. I hold on issue No.2 that the suit schedule properties are not available for partition. I hold on additional issue No.2 that there are no properties in suit B schedule properties available for partition among the plaintiff and defendants. I hold on issue
No.3 that the plaintiff is not entitled to the relief of cancellation of the originals of
Ex.A5 and A6 and he is not entitled to the relief of partition of suit A and B schedule properties. These issues are accordingly answered.
36.Issue No.4:-
In view of the above findings on issues 1 to 3 and additional issues 1 and 2, the plaintiff is not entitled to the relief of cancellation of the original of Ex.A5, dated 14.11.2005 and the original of Ex.A6, dated 28.02.2006 and that the plaintiff is not entitled to the relief of partition of the suit schedule properties and that the suit is liable to be dismissed.
In the result, the suit is dismissed with costs.
Dictated to the Stenographer, transcribed and typed by her corrected and
pronounced by me in the open Court, on this the 13th day of October, 2016.
Sd/-
P.KASI VISWESWARA RAO,
XXV ADDITIONAL CHIEF JUDGE
CITY CIVIL COURT, HYDERABAD.
APPENDIX OF EVIDENCE: Witnesses Examined
For the plaintiff: For the defendants: PW1: Syed Azeemuddin Ahmed DW1: Azeemunnisa PW2: A.A.S. Moosa Attan Bhai DW2: Syed Shah Mohammed PW3: Syed Yakoob (not examined) DW3: Syed Zainulabuddin Arif
Documents marked for the plaintiff:
Ex.A1 is the death certificate of Buvva Bee Ex.A2 is the death certificate of Syed Taj Mohammed Ex.A3 is the valuation statement No.3 Ex.A4 is the encumbrance certificate 24 O.S.No.149 of 2006
Ex.A5 is the agreement of sale cum GPA with possession dated 14.11.2005 Ex.A6 is the certified copy of agreement of sale cum GPA with possession dated 28.02.2006 Ex.A7 is the certified copy of pahani patrika for the year 2004-2005 Ex.Á8 is the certified copy of encumbrance certificate in respect of Sy.No.30 and 32 Ex.A9 is the death certificate of Fathima Banu Ex.A10 is the fathwa issued by darul ifta zamia nizamia along with English translation
Documents marked for the defendants:
Ex.B1 is the certified copy of memorandum of gift in Urdu with English translation
Sd/-
P.KASI VISWESWARA RAO,
XXV ADDITIONAL CHIEF JUDGE
CITY CIVIL COURT, HYDERABAD.