High Court

Legal Reasoning

1 sa 23.2024+ca.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO.23 OF 2024Afsarbee Rabbani Patel (Died) Through L.Rs. Shari AtikRashedsab Patel And Ors.VERSUSFarjanabee Ilahibaksh Pathan And Ors....Advocate for Appellants : Mr. Kazi S SAdvocate for Respondent 1 : Mr. Shaikh R.R. Advocate for Respondent no.2,3 & 5 : Mr. T.R. QuadriRespondent nos.4/1 to 4/10 deleted.Respondent no.6- served....WITH CIVIL APPLICATION NO. 1469 OF 2024 IN SA NO.23 OF 2024 … CORAM :S. G. CHAPALGAONKAR, J.Dated:November 27, 2024ORDER :-1.Appellants/original defendant nos.1,6 and 7impugns judgment and decree passed by the District Judge-2,Nilanga dated 18.10.2023 in R.C.A. No. 43 of 2018 so alsojudgment and decree dated 10.9.2008 passed by the CivilJudge J.D. Nilanga in R.C.S.no.106 of 2017. Respondent no.1Farzanabee Pathan instituted R.C.S. no.106 of 2017 claimingrelief of partition and separate possession of the suit landbearing Survey Numbers 88 and 89 situated at village Jau, Tq.Nilanga. According to plaintiff, her mother Bipasha inherited 2 sa 23.2024+ca.odtshare in suit property from her grand father Bandagi and grandmother Wahidbee alongwith her sister Ruqayyabee andAfsarbee. Her grand father expired in 1948. Her grandmother expired in the year 2004. Her mother Bipasha expiredin the year 1960. Her grand mother was cultivating said landduring her lifetime. After death of the grand motherWahidbee, defendant nos.1 to 5 were cultivating the land.However, in the year 2011, when plaintiff asked defendantno.1 to partition the land and hand over possession of hershare, she refused to do so and asserted her own right on thebasis of compromise decree in R.C.S. No.264 of 1998 and alsoinformed that she has transferred land in favour of defendantnos.6 and 7 by way of sale-deed. Consequently, plaintiff filedsuit claiming aforesaid relief.2.Defendant nos.1, 6 and 7 contested the claim byfiling written statement and denied claim of the plaintiff. Theyspecifically denied that defendant nos.2 to 5 and plaintiff arelegal heirs of late Bandagi Jigar Patel. They pleaded thatdaughters of Wahidbee i.e. Ruqayyabee, Bipasha and Afsarbeerelinquished their right in entire immovable property.Wahidbee was the sole owner and possessor of suit property of 3 sa 23.2024+ca.odtlate Bandagi Jigar Patel. She gifted property by way of Hiba infavour of defendant no.1-Afsarbee. Mutation entries wererecorded on the basis of Hiba in favour of defendant no.1.Subsequently, Wahidbee obstructed Afsarbee i.e. defendantno.1. Hence, R.C.S. no.264 of 1998 was filed by her fordeclaration of ownership and injunction. In that suitcompromise is recorded. Consequently, decree is passed,which is intact till this date. Afsarbee acquired exclusiveownership after Wahidbee. She sold same to defendant nos.6and 7. As such, plaintiff has no locus standi to claim the relief.3.The Trial Court framed issues, recorded evidenceof the parties and concluded that plaintiff has right in the suitland and the decree in RCS no.264 of 1998 is not binding onright of plaintiff and approved plaintiff’s share to the extent of7/24. Trial Court further declared that sale-deed dated14.12.2006 executed by defendant no.1 in favour of defendantnos.6 and 7 is nominal and not binding on right of the plaintiff.Defendant nos.1,6 and 7 filed R.C.A. No.43 of 2018 beforeDistrict Court, at Nilanga. Appellate Court confirmed thefinding of the Trial Court and dismissed the appeal. 4 sa 23.2024+ca.odt4.Mr. S.S. Kazi, learned advocate appearing forappellants submits that Courts below have erroneously rejectedcase of defendants that Wahidbee was absolute owner of theproperty as her daughters had relinquished their shares in herfavour. Thereafter, Wahidbee made oral gift in favour ofdefendant no.1. Further, there was a compromise in R.C.S.No.264 of 1998 conferring right in favour of defendant no.1.Courts below have erroneously discarded voluminous evidenceand granted decree in favour of plaintiff. Mr. Kazi wouldfurther submit that, both the Courts have wrongly decidedissue of limitation and Muslim Succession while carving outthe shares. Mr. Kazi would submit that when deceasedBandagi was survived by widow and daughters without anymale issue, widow is entitled to get 1/8th share and sisterswould together take 2/3rd share. Rest of the property will goto residue. This particular aspect is not taken care of by theCourts below while carving out shares. In support of hiscontentions, he relies upon judgment of this Court in case ofMubarakunnis Mohammed Naseem and others Vs. MoinuddinMohd. Usman Khan and others reported in 2009(3) Bom.C.R.2and judgment of High Court of Karnataka in case of Smt. Razia 5 sa 23.2024+ca.odtBegaum Vs. Abdul Khadar and others reported in (2008) 3 AIRKant 190.5.Per contra, Mr. R.R. Shaikh, learned advocateappearing for respondent no.1 supports concurrent findingrecorded by both the Courts and consequential decree.6.Having considered submissions advanced and aftergoing through reasoning adopted by the Courts below, it can beobserved that, there is no dispute that suit lands wereoriginally owned by Bandagi Jigar Patel, who died leavingbehind widow Wahidbee and three daughters namelyRuqayyabee, Bipasha and Afsarbee. Plaintiff is daughter ofBipasha, who died in the year 1960. Bandagi died in the year1948, whereas Wahidbee died in the year 2004 as perpleadings in the plaint.7.Naturally, as per succession, plaintiff would beentitled to receive share in the property left behind by Bandagior Wahidbee alongwith her maternal aunts namely Ruqayyabeeand Afsarbee.8.Defendant no.1-Afsarbee claims that, her motherWahidbee was owner of the property after death of her father 6 sa 23.2024+ca.odtBandagi. Name of Wahidbee was entered in revenue record.Mother of plaintiff Bipasha or plaintiff have no concern withthe suit land. In the year 1998 Wahidbee gifted suit land inher favour in presence of the witnesses. Accordingly, shebecame owner of the suit land. It is also contended that rightin respect of suit property was relinquished in favour ofWahidbee by her three daughters. However, some disputearose. Therefore, defendant no.1 Afsarbee filed R.C.S. No.264of 1998 seeking relief of injunction and in view of compromise,rights have been acquired by defendant no.1.9.Trial Court, after considering pleadings of partiesrecorded finding that plaintiff is entitled to claim propertybeing legal heir of Bipasha. Trial Court recorded finding thatdefendant no.1 failed to prove her claim as regards to oral gift(Hiba). Similarly, decree in R.C.S. no.264 of 1998 would notcreate any right in favour of defendant no.1; particularly, inexclusion of right of the plaintiff, who was not party to thatsuit. Trial Court also endorsed aforesaid finding of fact.Consequently, applying principles of succession Act, Trial Courtworked out the shares and passed the decree of 7/24th share infavour of plaintiff, which is endorsed by the Appellate Court. 7 sa 23.2024+ca.odt10.Mr. Kazi, learned advocate appearing forappellants submits that, there is patent error in working outshares since as per Muslim Law, widow would get 1/8th share,daughters would be entitled for cumulative share of 2/3rd ofEstate left by father and rest of portion must go back toresidue. In support of his contentions, he relied uponjudgment of the Karnataka High Court in case of Smt. RaziaBegaum. In the said case, it is held that in view of provisionsof section 63 of Mohammedan law when other sharer is notavailable, residue will go back to surviving legal heirs.Apparently, aforesaid judgment has no application in facts ofthe present case. In this case, no other legal heir of Bandagi iscoming before Court. No details of residuary are mentioned inwritten statement. Further, defendant no.1 herself is one ofthe daughter of Bandgi and, therefore, her sisters would deriveequal share from estate left by her father. Therefore, there isno force in the contentions of Mr. Kazi in this regard.11.Trial Court has rightly approved 1/8th share ofWahidbee being widow of Bandagi and 7/24th share to each ofdaughter of Bandagi. Trial Court has accordingly approvedright of defendant no.1 on 7/24th share being one of the 8 sa 23.2024+ca.odtdaughter in addition gift of 1/8th share of Wahidbee. Plaintiffis given only 7/24th share from the suit property, which is inconsonance with law governing the succession. No material isplaced before this Court depicting fault in the shares carvedout by the Trial Court.12.Mr. Kazi would further submit that suit filed by theplaintiff in the year 2018 was hopelessly barred by limitation.It is pertinent to note here that, plaintiff has claimed relief ofpartition of undivided share that has been received being legalheir from her father Bandagi alongwith defendant no.1. TrialCourt as well as Appellate Court considered aforesaid aspect indetail and held that there is no limitation prescribed for filingthe suit of partition. Admittedly, in view of law of succession,mother of plaintiff Bipasha, defendant no.1-Afsarbee would getright by way of succession on death of their father. Theywould be termed as ‘tenant in common’ or joint owners. Incase of Gafur Bhai Chhotabhai Maniyar vs Smt. Sugrabai FakirMohamed reported in 1995(2)BOMCR61, it is held that jointowner under Mohammedan law cannot claim adversepossession against co-owner. In that view of the matter, issue 9 sa 23.2024+ca.odtof limitation would not be obstacle to claim right of theplaintiff.13.Mr. Kazi relying upon judgment of this Court incase of Mubarakunnis Mohammad Naseem and others (supra)submits that, in view of Article 58, 65 and 113 limitation ofthree years from the date of accrual of right would apply.However, said case relates to suit for administration of theestate of father. Court on interpretation of provisions of lawand looking to relief claimed therein concluded that Article113 and 58 of the Limitation Act would apply in facts of thecase for claiming relief of declaration from the date of accrualof cause of action. Apparently, law laid down in aforesaidjudgment has no application in the facts of this case. Here,plaintiff is claiming partition and separate possession of jointshare in the property/estate left by her grand father.Consequently, there is no merit in this second appeal. Nosubstantial question of law is raised. Hence, second appealstands dismissed. No costs. Pending civil application, if any,also stands disposed off.14.At this stage, Mr. Kazi, learned advocate appearingfor the appellants submit that, execution of the decree under 10 sa 23.2024+ca.odtappeal was stayed by this Court vide order dated 12.3.2024.Similarly, there was interim protection. He would urge tocontinue the same for a period of eight weeks (8) sinceappellants wish to approach the Apex Court.15.Perusal of order dated 12.3.2024 passed on civilapplication no.1469 of 2024 shows that order was not passedon merit, but it was interim arrangement in the wake of datefixed for handing over of possession to plaintiff and immediatehearing for admission of appeal was not possible. However,after considering concurrent finding of fact, second appeal isdismissed on merit. There is no propriety in continuing theinterim relief. Hence, prayer stands rejected.( S. G. CHAPALGAONKAR, J. )…aaa-