IMPORTANT POINT
Though there is no concept of joint family or partition in Muslims, it is always open to a person to give his property to his children in a particular manner.

JUDGMENT :

Anil R. Dave, J.

This appeal has been filed against the judgment delivered on 16th November, 2005 in R.S.A. No.578 of 2000 by the High Court of Karnataka at Bangalore.

2. The facts giving rise to the present Appeal, in a nutshell, are as under:

The appellant is the original defendant in the Suit. The plaintiffs, who are respondents herein, had filed a Suit for partition and separate possession of the 7/8th share in the Suit property. The property in question originally belonged to late Shaikaji, whose first wife Halimabi had died and thereafter he had married Roshanbi. Out of the first marriage with Halimabi, late Shaikaji had two children and one of them had died whereas he had six children through his second marriage with Roshanbi. The Suit was filed by the second wife and her children against the defendant, who is the heir of the first wife.

3. The Suit was in respect of property which was purchased by Shaikaji and the suit property was in occupation of all the family members.

4. The Suit, being O.S.No.153 of 1985 was decreed on 27th July, 1988.

5. The said judgment and decree had been challenged by way of an appeal and the said appeal was dismissed on 13th November, 1995 by the first Appellate Court. Being aggrieved by the said judgment, an appeal was filed in the High Court. The High Court had allowed the appeal by remanding the matter to the first Appellate Court for its fresh disposal with a direction to permit the parties to lead documentary evidence in relation to a memorandum of partition dated 12th August, 1958.

6. In pursuance of the order of the High Court, the first Appellate Court had permitted production of the aforestated document Ex.D7 dated 12th August, 1958, which is in a nature of a memorandum of partition, whereby, during the lifetime of Shaikaji, the property in question had been divided among the children of the first wife and the second wife. In pursuance of the aforestated document, necessary revenue entries were made, whereby the property bearing CTS NO.883 was divided into CTS No.883/A and CTS No.883/B. The aforestated facts are not in dispute and it is also an admitted fact that the eastern part of the property, CTS No.883/B, was in possession of the plaintiffs i.e. the children of the second wife as well as late Shaikaji, whereas the western part of the property, CTS No.883/A, was in occupation of the son of the first wife. The first Appellate Court considered the validity of the aforestated document dated 12th August, 1958 and came to the conclusion that the property had been divided earlier, which was recorded under a document dated 12 August, 1958, which was duly signed by late Shri Shaikaji and the document had also been attested by two independent witnesses. Unfortunately neither Shaikaji nor the attesting witnesses were alive at the time when the said document was exhibited as Ex.D7. The said document was believed by the lower Appellate Court and on the basis of the evidence which had been adduced in addition to the aforestated document, the first Appellate Court had set aside the decree passed by the Trial Court and held that the property had been divided during the lifetime of late Shaikaji and therefore, the plaintiffs were not entitled to 7/8th share in the Suit premises which consisted of CTS No.883/A and CTS No.883/B. According to the lower Appellate Court, the property had been duly divided and was in occupation of the respective parties even during the lifetime of late Shaikaji.

7. The said judgment dated 1st April, 2000 delivered by the lower Appellate Court in Regular Appeal No.75/1998 had been challenged before the High Court in Regular Second Appeal No.578/2000, which had been allowed by the High Court and therefore, this appeal has been filed. The High Court did not agree with the view expressed by the lower Appellate Court mainly on the ground that Ex.D7 had not been registered as it ought to have been registered as it was compulsorily registerable. The High Court was also of