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Partition-Partition deed executed between two brothers-Challenged as being sham, nominal and never acted upon by one brother after 58 years after death of other brother-Brothers continuing business jointly and staying together even after partition-Parties in exclusive possession and occupation of their respective shares and properties under the partition deed and dealing with them as independent owners and not as joint owners- Held, partition deed is complete, valid and effective and there is valid Partition. Practice and procedure-Impleadment-Death of appellant pending appeal-Legal heirs impleaded-Failure of one of the legal heirs to engage counsel-Effect- Held, judgment binding on all parties including all legal heirs of deceased appellant. M and S were brothers who executed a partition deed, Ex. D-2, in the year 1914. Thereafter S, father of appellants, filed a suit for partition and possession in respect of Item Nos. 1, 2, 3 and 4 of plaint schedule properties after the death of M against his legal heirs alleging that the partition deed was sham, nominal and never acted upon. Defendants filed written statement alleging that partition deed was acted upon and there was already a partition in the year 1914 in which Item No. 1 of plaint schedule property was allotted to their father, M, and that M and S dealt with properties allotted to them as independent owner and not as joint owners. Trial court decreed suit in respect of Item Nos. 2, 3 and 4 but dismissed suit in respect of Item No. 1 of plaint schedule property. Appellants filed appeal against finding of Trial Court in respect of Item No. 1 property which was dismissed by the High Court. Hence, this appeal by the legal representatives of S. During the pendency of appeal, appellant No. 1 expired and his legal heirs were brought on record. Appellants contended that partition in the year 1914 is sham and nominal and properties continued to be joint properties belonging to the two brothers; that High Court failed to consider many crucial documents and without considering evidence that all the properties were mortgaged, purchased and sold jointly by both the brothers even though they entered into partition deed in 1914; that parties are governed by Cutchi Menons Act, 1938 and the Courts below have not rightly applied the principles of law in the matter of succession and inheritance; and that notice of appeal may also be issued to one of the legal heirs of appellant No.l who has not engaged any counsel. Respondents contended that concurrent finding of Courts below on facts does not call for interference by this Court. Dismissing the appeal, the Court HELD: 1. The plaintiff, in fact; has accepted the rights under the partition deed and has acted upon its recitals. He has on his own account sold the Bungalow that was allotted to him. The original plaintiff has utilised the sale proceeds for himself and he has also disposed of the site which was allotted to him under the said partition deed. Therefore, the plaintiff/appellants are estopped from alleging that the partition deed was a nominal one and not intended to be acted upon. The original plaintiff and M have dealt with the properties as independent owners and never as joint owners. [641-E, F] 2. The partition deed was executed in 1914. The suit was filed in 1972. Thus, the documents stood for 58 years till the suit was filed in 1972 and accepted by all the parties including the late plaintiff himself. A reading of the plaint would show that the plaintiff had never asked for a share in Item No.l during the life time of M and, the suit was filed only after the death of M in 1967. It is also admitted by the plaintiff that suit Item No. 1 was in possession of M during his life time. When the partition of 1914 has been accepted and acted upon by the brother for all these years and had brought about an equitable settlement of the distribution of the properties between them, the plaintiff/appellants cannot now come round and say that the document is sham and nominal. [642-A, B, D-E] 3. The fact that the plaintiff and M even after the partition continued the business jointly, stayed together under the same reef for some time or the other and acquired properties out of their business in the names of either of them, cannot render Ex.D-2 a sham document. [647-B] 4. The entire evidence on record shows that the parties have been in possession and occupation of their respective shares and properties allotted under the partition deed and have dealt with the same. The partition deed is complete, effective and irrevocable. The Mid partition is valid and effective and has vested in the plaintiff and M absolute and unalterable right in the properties under the said deed. [648-B, 645-E] 5. The factum of partition and the deed of 1914 having been accepted, and in the absence of any evidence to destroy the validity of the partition deed the application of Hindu Law or Muslim Law would not alter the findings in the case. [647-G] 6. It is the duty of the legal representatives who have knowledge about the pending proceedings in this Court to engage the counsel. When they fail in engaging the counsel in spite of the knowledge of the pendency of the appeal, the said legal representative is responsible for his lapse. It is held that this judgment is binding on all parties to the proceedings including the seven legal representative of appellant No. 1. [650-C] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3496 of 1996. 2003 AIR 4444, 2003(4 )Suppl.SCR638 , 2003(12 )SCC419 , 2003(8 )SCALE527 , 2003(9 )JT463

CASE NO.:

English: Karnataka High Court, in Bangalore, I...

English: Karnataka High Court, in Bangalore, India. Français : La haute cour de l’État de Karnataka, à Bengalore, en Inde. (Photo credit: Wikipedia)

Appeal (civil) 3496 of 1996

PETITIONER:
AZEEZ SAIT `DEAD‘ BY L.RS. AND ORS.

RESPONDENT:
AMAN BAI AND ORS.

DATE OF JUDGMENT: 13/10/2003

BENCH:
ASHOK BHAN & DR. AR. LAKSHMANAN

JUDGMENT:
JUDGMENT

2003 Supp(4) SCR 638

The Judgment was delivered by DR. AR. LAKSHMANAN, J.

This appeal is directed against the judgment and order dated 21.4.1994
passed by the High Court of Karnataka at Bangalore in R.F.A. No. 247 of
1982 wherein the Division Bench of the High Court affirmed the judgment and
decree of the Principal Civil Judge, Mysore. While dismissing the appeal
filed by the appellants the Division Bench affirmed the judgment and decree
dated 12.2.1982 passed by the Principal Civil Judge, Mysore in O.S. No.
69/1972 wherein the trial court decreed the suit for partition filed by the
plaintiff in respect of Item Nos. 2, 3, & 4 of plaint schedule properties
and for possession in respect of item Nos. 2, 3 and 4 and dismissed the
suit in respect of item No.1 of plaint schedule properties.

2. The brief facts for the purpose of filing this appeal in short are
follows:

Late Sattar Abba Sait filed a suit for partition and separate possession of
the plaint schedule properties into two equal shares and to put the plaint
in separate possession of his half share after dividing the schedule
properties comprising of each property owned by the then joint family of
Abba Sait.

3. Defendants 1-4 filed written statements denying the plaint allegation.
They stated that there was already a partition in 1914 between the two
brothers and denied the statement that Sattar Sait was jointly enjoying the
properties in question. The further stated that the said partition deed was
acted upon as soon as the deed was entered into between the two brother and
the plaintiff, that is, the father of the appellants herein accepted his
share in the said partition deed and has acted upon the recitals. They
further stated that Mohd. Abba Sait and Sattar Abba Sait have dealt with
the properties as independent owners and never as joint owners.

4. The fifth defendant filed written statement stating that he is neither a
mortgagee of the Ist Item of the plaint schedule property or any other
items of the suit properties and prayed for dismissal of the suit against
him. The sixth defendant filed written statement stating that she is the
mortgagee of Item No. 1 of plaint schedule property. The plaintiffs replied
to the written statement of defendants 1-4 reiterating the stand taken in
the plaint and further stated that the properties mentioned in item Nos.
1-5 are joint family properties and they are entitled for half share as the
properties derived from Abba Sait and the plaintiff and the late Mohd. Abba
Sait never acted upon the partition deed of 1914 and the same was formal by
producing large number of documents which are produced before the High
Court and also along with this appeal. The trial Court framed the necessary
issues out of the pleadings. After framing the issues, the plaintiff was
examined as PW-1 and the first appellant herein as PW-2. The defendants
examined Abdul Rahman Sait, first defendant as DW-1. The trial Court held
that the plaint schedule Item No.1 was purchased in the name of the
plaintiff and suit Item No.4 was purchased in the name of Mohd. Abba Sait.

5. The trial Court passed the judgment and decree and indicated in
paragraph supra and decreed the suit.

6. Aggrieved by the judgment and decree of the trial court in regard to
item No., the appellants herein and their late mother filed R.F.A. No.
247/1982 before the High Court of Karnataka and raised several contentions
contending that the Civil Judge has erred in not property considering Exs.
P-2 to P-12 produced by the plaintiff which go to show the manner in which
the parties dealt with the properties even after the partition deed of 1914
and that the Civil Judge has erred in not considering that the parties have
dealt with the properties as if the said item No.1 of plaint schedule
property continued to be a joint property of late Mohd. Abba Sait and
Sattar Abba Sait. It was further contended that the learned Civil Judge has
failed to consider that as the business was continued, earlier debts had to
be discharged and hence all the properties were sold subsequently or
alienated as evidenced as per Ex. P-5 to P-8 irrespective of the partition
deed and hence the partition is sham and nominal and that it was not acted
upon.

7. Before the High Court, defendants 1-4 have not challenged the findings
of the trial Court in regard to item Nos. 2-4 of the property either by way
of separate appeal or by way of cross-objections. The defendants supported
the findings of the trial Court in regard to item No.1 of plaint schedule
property and contended that the property mentioned in Ex. D-2 came to the
share of late Mohd. Abba Sait and the plaintiff and the properties in
succession has come to defendants 1-4 and item No.1 was hypothecated by the
two brothers and the plaintiff never took any interest in discharging the
loans and the entire loan was discharged by the legal heirs of late Mohd.
Abba Sait as the property fell into their share as per Ex. D-2 and they
were continuously paying the taxes in respect of the property in question.

8. During the pendency of the appeal before the High Court, the mother of
the appellant herein died. The first defendant also died and respondents
1-5 herein were brought on record as legal representatives of the deceased
-Ist defendant. On consideration of the entire evidence, the High Court had
no option but to reach the conclusion that the plaintiff/ appellants and
his legal representatives have failed to establish that Ex. D-2, partition
deed, as a sham and nominal document, that never intended to be actual
upon. The High Court, accordingly, recorded its answer to the point holding
that the appellants have failed to establish that they are the joint owners
of Item No.1 of the property along with defendants Nos. 1-4 and that they
have half share in it. The High Court has further held that the learned
trial Judge had rightly declined to grant decree in the favour of the legal
representatives of the appellant/ plaintiffs in respect of item No.1
mentioned in the Schedule forming part of the plaint and held that the
decree in that regard is sound and flawless deserving affiramance.
Aggrieved by the judgment and decree passed by the High Court in R.F.A. No.
247/1982, the appellant/plaintiffs preferred the above appeal.

9. The main controversy between the appellants and the legal
representatives of the deceased Abba Sait in this appeal centres around the
property mentioned as Item No.1 in the schedule forming part of the plaint.
It is a house property named as “Abba Manzil”, Abba Road, bounded on the
East by site of Late Sri Chammaiah, by West Sattar Manzil belonging to Dr.
Sambashivan, North by lane, and Shakoor Manzil by South Abba Road
consisting of vacant site as enclosed by the compound.

10. Mr. NDB Raju, learned counsel appearing for the appellants submitted
that the High Court has failed to consider many crucial documents (Ex. P-1
to P-12) and without considering the evidence that all the properties were
mortgaged, purchased and sold jointly by both the brothers and in all the
transactions both the brothers put their signatures even though they
entered into in partition deed in 1914 which they never acted upon. He
further submitted that both the Courts failed to look into the contention
put forward by the appellants that the partition in the year 1914 is a sham
and nominal and the properties continued to be the joint property belonging
to two brothers. According to the learned counsel for the appellants, the
properties belong to both the brothers and they have dealt with those
properties and incurred debts and sold those properties. Learned counsel
also submitted that both the Courts have not rightly applied the principles
of law in the matter of succession and inheritance in the present case as
parties in the present case are Cutchi Memons and are governed by Cutchi
Memons Act, 1938.

11. Concluding his arguments, learned counsel for the appellants submitted
that both the Courts have erred in not passing the decree as prayed for in
respect of Item No.1 of plaint schedule and have erred in passing only a
decree for partition only in respect of item Nos. 2, 3 & 4 of the plaint
schedule property and for possession in respect of item Nos. 3 &4 of the
plaint schedule property.

12. Learned counsel appearing for the appellants, at the time of hearing,
invited our attention to the pleadings, evidence, both oral and documentary
and exhibits filed by both the parties.

13. Per contra, Mr. P.R. Ramasesh, learned counsel appearing for the
respondents, submitted that the special leave petition/appeal does not
involve any substantial question of law of public importance which requires
to be considered by this Court and that the only issue involved in the
appeal refers to one Item of the property, a residential building known as
Abba Manzil (Item No.1) of plaint schedule property which has been allotted
to the share of the father of the defendant/respondents by way of partition
deed in 1914. Learned counsel would further urge that the High Court as
well as the trial Court has concurrently accepted the validity of the
partition of 1914 on the basis of the admissions made by the plaintiff
himself during the course of the depositions as well as other material
evidence on record and that has been acted upon admittedly. Thus it is
submitted that the special leave petition gives rise only to a question of
fact decided on appreciation of evidence concurrently held by both the
Courts in favour of the defendants, therefore, does not call for
interference by this Court under Art. 136 of the Constitution of India.
Learned counsel for the respondents have also invited our attention to the
detailed discussion made by the Courts below in regard to the various
exhibits and the findings in regard to the various issues and, in
particular, issue Nos. 4 & 7.

14. We have given our thoughtful consideration in regard to the contentions
raised by both the parties. We have perused the pleadings and exhibits
marked and, in particular, the partition deed. In our opinion, it is not
correct to say that the original plaintiff and Mohd. Sait effected a
nominal partition deed. The plaintiff, in fact, has accepted the rights
under the partition deed and has acted upon its recitals. He has on his own
account sold the Bungalow that was allotted to him known as ‘Shukoor
Manzil’ to Mrs. Ganjami, w/o Mr. Abdul Rahim Ganjami. The original
plaintiff has utilised the sale proceeds for himself and he has also
disposed, of the site which was allotted to him under the said partition
deed. Therefore, in our opinion, the plaintiff/appellants are estopped from
alleging that the partition deed was a nominal one and not intended to be
acted upon. The original plaintiff and Mohd. Sait have dealt with the
properties as independent owners and never as joint owners.

15. The evidence adduced in this case would clearly disclose that the
original plaintiff and Mohd. Sait have dealt with the properties as
independent owners and never as joint owners. The partition deed, in our
view, is complete, effective and irrevocable. Even on the assumption that
provisions of Hindu Law or Muslim Law are attracted as alleged by the
learned counsel for the appellants, the said partition is valid and
effective and has vested in the plaintiff and Mohd. Sait absolute and
unalterable right in the properties under the said deed.

16. We have also perused the pleadings. It transpires from the pleadings
that item Nos. 3 & 4 and some other land situated at Malli-halli and Bannur
were purchased by Abba Sait and that Abba Manzil and item No.2 were
purchased by Sattar Sait and Mohd. Abba Sait in addition to other
properties which are not the subject manner of the suit.

17. It was argued by the learned counsel for the appellants that if the
properties mentioned in Ex. D-2 Partition Deed, really been allotted to the
share of the plaintiff and Mohd. Abba Sait and if the debt obtained by
Mohd. Abba Sait under Ex. P-12 in his individual capacity and for himself,
there was no need to include the two items of the properties mentioned in
Ex. D-2 allotted to the share of the plaintiff in Ex. P-12 and for the
plaintiff to join Mohd. Abba Sait in Execution of Ex. P-12. The argument
appears to be attractive at its first flush. But on a deeper consideration
of the evidence, it appears to be very facile and weak. In the first
instance, the possibility of S. Channaiah having insisted the two
properties allotted to the share of plaintiff under Ex. D-2 being included
in the hypothecation deed as a security for the repayment of loan advanced
by him to Mohd. Abba Sait and the plaintiff to join Mohd. Abba Sait to
execute the deed in view of the fact that plaintiff and Mohd. Abba Sait
were carrying on business jointly, living jointly and acquiring properties
in their names out of the family business profits, is again a reasonable
possibility that cannot be excluded. There is again the possibility of S.
Channaiah to ensure complete security for the repayment of the loan, having
asked Mohd. Abba Sait to hypothecate the two properties of his brother and
of having compelled Mohd. Abba Sait to persuade the plaintiff to join the
execution of the hypothecation deed, which cannot be dismissed as
unacceptable. The subsequent conduct of Mohd. Abba Sait and his legal
representatives in the matter of discharge of hypothecation debt highlights
the conclusion that the loan obtained under Ex. P-12 was by Mohd. Abba Sait
for himself. As rightly pointed out by the High Court, clear evidence has
come on record to show that Mohd. Abba Sait, during his life time, to
discharge part of hypothecation debt, sold his two sites in favour of S.
Channaiah under Ex. P-7. To discharge the hypothecation debt, after his
death, his legal representatives mortgaged a portion of Abba Manzil, Item
No.1 in favour of defendant No. 6 for Rs. 60,000/- on 24.4.1970. Though the
plaintiff was a party to the suit filed by S. Channaiah and in the
execution taken out by Boraiah Basaviah and Sons, he did not contribute a
single ple to discharge the decretal amount. That belies his claim that
item No.1, subsequent to 1914, was treated as a family property. It is also
in evidence that the plaintiff himself built Shukoor Manzil in 1924 and
sold it in 1935 and that he sold that site allotted to him under Ex. D-2 in
1935 which would also show that the inclusion of the said two properties in
Ex. P-12 did not constitute an impediment to dispose of the same as owner.
It is also clear from the evidence that ever since 24.6.1914, item No.1 was
in possession of Mohd. Abba Sait till his life time and after his death,
his legal representatives have continued to remain in possession of the
same, letting out a portion of it. There is unimpeachable evidence placed
on record to show that for a long period between 1925-26 and 1967-68, it
was Mohd. Abba Sait who was paying taxes levied in respect of Item No. 1 to
Municipality.

18. In our opinion, the fact that the plaintiff and Mohd. Abba Sait even
after the partition continued the business jointly, stayed together under
the same roof for some time or the other and acquired properties out of
their business in the names of either of them, cannot render Ex. D-2 a sham
document. We have, therefore, no option but to reach the inevitable
conclusion that the plaintiff and his legal representatives have failed to
establish that Ex. D-2 is a sham and nominal document and it was not acted
upon.

19. As already noticed, the suit was contested by the respondents herein on
the basis that there was a partition in the year 1914 itself between the
brothers Sattar Abba Sait and Mohd. Abba Sait, that the partition was acted
upon and Abba Manzil. Item No.1, fell to the share of the defendant’s
father. The partition deed was executed in 1914. The suit was filed in
1972. Thus, the documents stood for 58 years till the suit was filed in
1972 and accepted by all the parties including the late plaintiff himself.
Sattar Abba Sait, during the course of his evidence before the trial Court
(page 29 of Vol.KK of the appeal paper book), has accepted the partition
deed of 1914 as well as the division of properties then. Shakoor Manzil,
another property which fell to the share of the plaintiff was sold by him
as belonging to him exclusively.

20. Learned counsel appearing for the appellants contended that the parties
are governed by the provisions of Cutchi Menons Act. We are of the view
that the issues as to whether Hindu Law or Mohammedan Law should be applied
to the parties under suit is not really relevant and does not alter the
situation because the partition had taken place in the year 1914 as between
the brothers. The factum of partition and the deed of 1914 having been
accepted, and in the absence of any evidence to destroy the validity of the
partition deed the application of Hindu Law or Muslim Law would not alter
the findings in the case. When the partition of 1914 has been accepted and
acted upon by the brother for all these years and had brought about an
equitable settlement of the distribution of the properties between them,
the plaintiff/appellants cannot now come round and say that the document is
sham and nominal. A reading of the plaint would show that the plaintiff had
never asked for a share in ‘Abba Manzil’ during the life time of Mohd. Abba
Sait, and the suit was filed only after the death of Mohd. Abba Sait in
1967. It is also admittedly by the plaintiff that suit item No. 1 was in
possession of Mohd. Abba Sait during his life time. Subsequently,
defendants are in possession of the same. The entire evidence on record
shows that the parties have been in possession and occupation of their
respective shares and properties allotted under the partition deed and have
dealt with the same. The trial court as well as the High Court have
accepted the partition of 1914 for the cogent and convincing reasons
recorded thereunder. The appellants have not shown any reason to interfere
with the judgment of the High Court.

21. The High Court, on a careful and meticulous examination, has held that
the appellant had failed to establish that he is the joint owner of the
item No. 1 with Abba Sait and that he is entitled to half share in it. The
above finding deserves affirmance and we, therefore, affirm the same.

22. During the pendency of the appeal, the appellant-Azeez Sait died on
28.12.2001 leaving behind his legal representatives who are as follows:

1. Zubeda Bai wife widow 75

2. Tasneem Bai Daughter married 52

3. Adil Sait Son married 50

4. Shehnaz Bai Daughter married 47

5. Yasmeen Bai Daughter married 39

6. Shaheena Bai Daughter married 36

7. Tanveer Sait Son married 34

23. The death certificate issued on 4.4.2002 by the Mysore City Corporation
was filed as an Annexure along with the application for substitution of
legal representatives of late Azeez Sait. Civil Appeal came up for hearing
on 6.8.2003. A representation was made on behalf of the appellant that
appellant No.1 expired and, therefore, time was sought for filing the
application for bringing heirs of the deceased appellant on record. By
order dated 6.8.2003, this Court adjourned the matter for four weeks for
the said purpose. Thereupon, the appellants filed the application for
substitution on 8.9.2003 which again came up before this Court on 17.9.2003
for directions with office report. This Court on the said date passed the
following order.

“Application for bringing on record the legal heirs of the deceased
appellant No.1 is allowed.

At the request of the learned counsel for the appellants for filing
vakalatnama on behalf of the legal representatives of deceased appellant
No.1, adjourned for two weeks”.

24. At the time of hearing on 7.10.2003, learned counsel for the appellant
submitted that he has entered appearance on behalf of all the legal
representatives except Adil Sait who refused to engage him for arguing the
appeal on his behalf. Therefore, fresh notice may be ordered to him. We are
unable to countenance the said submission. A close scrutiny of the averment
made in the application for substitution clearly shows that Adil Sait has
knowledge of the pendency of the appeal. Paragraphs 5 to 8 of the
application for submission read thus:

“5. That the legal representatives were not aware of the case pending in
Supreme Court. The case was fully handled and corresponded only by deceased
Mr. Azeez Sait. Later on when the old papers were searched the petitioners
got the correspondence of lawyer and case pending in the Supreme Court.

6. That two of the daughters also reside abroad and they also were to be
appreciated to prosecute the appeal and as such the delay is caused.

7. That the legal representatives were not aware of the procedure of this
Hon’ble Court and there is some delay in filing the substitution
application. And the same be condoned in the interest of justice.

8. That the legal representatives are very much interested in prosecuting
the appeal. Hence, the legal representatives be brought on record and the
appeal may be heard on merits.”

25. The application for submission was ordered by this Court on the basis
of the averments made in the application and on the basis of the
representation made by the counsel for the appellant on 17.9.2003.
Therefore, we hold that all the legal representatives mentioned in the
application for substitution are aware of the proceedings and, therefore,
it is upto them to engage or not to engage a counsel to argue the case to
which they have knowledge. This apart, the estate of the deceased appellant
is also represented by all other legal representatives. it is the duty of
the legal representatives who have knowledge about the pending proceedings
in this Court to engage the counsel. When they fail in engaging the counsel
in spite of the knowledge of the pendency of the appeal, the said legal
representative is responsible for his lapse. We, therefore, hold that this
judgment of ours is binding on all parties to the proceedings including the
seven legal representative of Azeez Sait who did on 28.12.2001.

26. For the foregoing reasons, we have no hesitation to dismiss the appeal.
Since the parties to this action are near relatives, we order no costs.

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