Ownership claims under Mohammedan law require joint consent among heirs for property transactions, upheld by courts in assessing the validity of alleged fraudulent transfers.

JUDGMENT :

H.P. SANDESH, J.

1. This matter is listed for admission. Heard the learned counsel for the appellants.

2. The appellants’ counsel submits that the suit is filed for the relief of declaration to declare that the plaintiffs are the absolute owners of the ‘A’ schedule property and also to declare that sale deed dated 02.06.2005 executed by defendant Nos.1 to 6 in favour of defendant No.7 is illegal, void and not binding upon the plaintiffs and also to declare that registered gift deed dated 09.12.2011 executed by defendant No.1 in favour of defendant No.2 is not binding upon the plaintiffs and also sought for the decree of possession of ‘B’ schedule property and claimed the permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule ‘B’ and ‘C’ properties.

3. The case of the plaintiffs in brief that father of plaintiffs, namely Abdul Azeez, was the youngest son of Tavakal Sabi had 3 sons namely Jahangeer Sab, Sheikh Fakruddin and Abdul Azeez. It is averred that Tavakal Sabi died leaving behind certain immovable properties and his three sons entered into partition dividing the properties by virtue of registered partition deed dated 20.02.1983. It is also the contention that ‘C’ schedule property of the partition deed was allotted to the share of father of plaintiffs Abdul Azeez which comprises of 3 items. In pursuance of the partition, mutation was accepted in the name of Abdul Azeez and he was in peaceful possession and enjoyment of the properties allotted to his share in the said partition. It is also the contention that suit schedule survey number is also one of the item of ‘C’ schedule property of the partition deed, the same is described as ‘A’ schedule in the plaint schedule. The father of plaintiffs and plaintiffs jointly cultivated the said land. That on 27.04.2008 Abdul Azeez died and thereafter on 04.01.2012 Smt.Kamrunnisa died who are the parents of the plaintiffs. It is also contended that defendant No.1 alleging that suit ‘A’ property had fallen to his share in the partition and khata changed to his name, even though there was no such partition. That the defendant No.1 on the basis of the said illegal katha, sold an extent of 1 acre 3 guntas in Sy.No.14/1 in favour of defendant No.7 vide sale deed 02.06.2005, the said property is described as ‘B’ scheduled property in the plaint schedule.

4. It is also contended that 1^st defendant has also executed a gift deed in favour his wife defendant No.2 in respect of 1 acre 3 guntas in Sy.No.14/1 and the same is described as ‘C’ scheduled property in the plaint schedule. It is contended that 1^st defendant is the close relative of the plaintiffs and is the son of Sheikh Fakruddin Sab, the elder brother of the Abdul Azeez, who is the father of plaintiffs. That the defendant No.1 playing fraud has created documents in collusion with defendant No.2 who is the wife of defendant No.1 in collusion with defendant No.7. That the defendant Nos.2 to 6 are the wife and children of defendant No1. It is contended that though they are not the owners of the property, they have jointly executed alleged sale deed. The defendant No.8 had filed suit in O.S.No.36/2006 claiming 29 guntas of land in Sy.No.14 alleging that parents of the plaintiffs had agreed to sell the said land in his favour by an agreement of sale dated 13.10.1989 and that he has perfected the title by a way of adverse possession.

5. It is contented that in the said suit defendant No.1 forged the signature of the parents of the plaintiff and filed the written statement to his convenience, the said suit came to be dismissed on 22.11.2007 and against the judgment, an appeal was filed in R.A.No.10