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2003(7) Supreme 551
SUPREME COURT OF INDIA
(From Karnataka High Court)
Ashok Bhan & AR. Lakshmanan, JJ.
Azeez Sait dead by Lrs. & Ors. -Appellants
versus
Aman Bai & Ors. -Respondents
Civil Appeal No. 3496 of 1996
Decided on 13-10-2003
Counsel for the Parties :
For the Appellants : N.D.B. Raju, Ms. Bharathi, R. Ms. Prerna Kumari and Guntur Prabhakar, Advocates.
For the Respondents : P.R. Ramasesh, Ms. Vandana Inlan, Advocates, Mrs. V.D. Khanna, Advocate (NP).
Held : 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. 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 the 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. II 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 belonging to him as exclusively. (Paras 18 and 19)
The issue 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 admitted 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. (Para 20)
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 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. (Para 21)
JUDGMENT
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 and 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 as 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 plaintiff 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 Abba Sait was jointly enjoying the properties in question. They 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 1st 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 as indicated in paragraph supra and decreed the suit.
6. Aggrieved by the judgment and decree of the trial Court in regard to Item No. 1, 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 properly 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
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