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2011 Supreme(MP) 845
2012(1) JLJ 350
A.K. Shrivastava, J.
Akbar Khan (deleted) through LRs v. Faridabi
Second Appeal No.15 of 1999 (Indore); Decided on 22.11.2011.
Sunil Jain for appellants;
Vaibhav Jain for respondent No.1;
Ashish Vyas for respondents No.2 to 4.
Headnote:(1) Mohammedan Law -- Principles of Mulla Mohammedan Law, 19th Edition -- Arts.42 and 49 -- joint property of Mohammedan -- no prohibition to alienate undivided share or specific share prior to partition.
Indeed, it is borne out from the testimony of the plaintiff, her husband Shabir Khan and that of defendant that partition took place in the family earlier in which the suit property fell in the share of plaintiff‘s husband which he sold later on to the plaintiff.
[Para 15
Held : Even for the sake of arguments if it is hereby held that partition never took place among the brothers, there is no prohibition under the Mohammedan Law, not to alienate any specific item of the undivided share. According to me, under the Mohammedan Law normally any specific item of the undivided property should not be alienated by a Mohammedan because it may create anomaly to the other co-owners, but if a co-owner alienates any specific property without the consent of the other co-owners the alienation cannot be said to be illegal or not recognised by the law, but the other co-owners may sue for a partial partition of the property so alienated or sold.
Under the Mohammedan Law a co-sharer (co-owner) is authorised to sell his undivided share and in this regard Articles 42 and 49 of the Principles of Mohammedan Law by Mulla 19th Edition may be seen. Since there is no prohibition under the Mohammedan Law not to alienate the undivided share or even a specific share prior to the partition, the sale-deed executed by Shabir Khan in favour of plaintiff cannot be said to be bad in law particularly when it was never challenged by any of the defendants by filing counter-claim.
(2) Pleadings -- rule of -- mufasil pleadings -- some latitude view should be adopted and should not be construed strictly. AIR 1964 SC 538 followed. AIR 1937 Nag. 345 relied on. [Para 18
(3) Evidence Act, 1872 -- S.114 -- presumption under -- in examination-in-chief it was accepted that partition of joint property had taken place -- in cross-examination he kept silent about question of partition -- no other inference can be drawn except that partition had taken place. [Paras 21 & 22
¼1½ eqfLye fof/k && eqYyk ds eqfLye fof/k fl)kar] 19ok¡ laLdj.k && vuq-42 rFkk 49 && eqfLye dh la;qDr laifÙk && foHkktu ls iwoZ vfoHkkftr va‘k ;k fofufnZ"V va‘k vU;laØkar djus dk izfr"ks/k ugha gSA
okLro esa] oknh dh ifjlk{; ls izdV gS] fd mlds ifr ‘kchj [kku rFkk ml izfroknh ds dqVqac esa iwoZ esa gh foHkktu gks x;k Fkk ftlesa oknkarxZr laifÙk oknh ds ifr ds fgLls esa vkbZ Fkh ftls mlus okn esa oknh dks foØ; fd;kA
vfHkfu/kkZfjr % rdksZa ds fy, Hkh ;fn ,rn~}kjk ;g Bgjk;k tkrk gS fd Hkkb;ksa ds chp esa foHkktu dHkh ugha gqvk] eqfLye fof/k esa dksbZ izfr"ks/k ugha gS] vfoHkkftr fgLls dh fdlh fofufnZ"V oLrq dk vU;laØkar ugha djus ds fy,A esjs vuqlkj] eqfLye fof/k ds varxZr lkekU;r% eqfLye }kjk vfoHkkftr laifÙk dh fdlh fofufnZ"V oLrq dks vU;laØkar ugha fd;k tkuk pkfg, D;ksafd ;g vU; lgLokfe;ksa dks fo"kerk l`ftr djrk gS] fdarq ;g ,d lg&Lokeh vU; lg&Lokfeksa dh lgefr ds fcuk fdlh fofufnZ"V laifÙk dk vU;laØkar djrk gS] vU;laØe.k voS/k vFkok fof/k }kjk ekU;rk izkIr u gksuk ugha dgk tk ldrk] fdarq vU; lg&Lokeh vU;laØkar vFkok foØ; dh xbZ laifÙk ds vkaf‘kd foHkktu ds fy, okn pyk ldrk gSA
eqfLye fof/k ds varxZr ,d lg&va‘k/kkjh ¼lg&Lokeh viuk vfoHkkftr fgLlk foØ; djus ds fy, vf/kd`r gS rFkk bl laca/k esa eqYyk dh eqfLye fof/k ds fl)kar ds mUuhlok¡ laLdj.k ds vuqPNsn 42 rFkk 49 voyksdu fd;k tk ldrk gSA pwafd eqfLye fof/k ds varxZr foHkktu ds iwoZ vfoHkkftr va‘k ;k fofufnZ"V va‘k dks Hkh vU;laØkar u fd, tkus dk izfr"ks/k ugha gS] ‘kchj [kku }kjk oknh ds i{k esa laikfnr foØ;&foys[k fof/k dh n`f"V esa nks"kiw.kZ ugha dgk tk ldrk fof‘k"Vr% tcfd bls fdlh Hkh izfroknhx.k }kjk izfrnkok izLrqr dj dHkh Hkh vk{ksfir ugha fd;k x;k gSA
¼2½ vfHkopu && dk fu;e && eqQfLy vfHkopu && dqN mnkjrkiw.kZ n`f"Vdks.k viuk;k tkuk pkfg, rFkk lgh vFkZ esa vFkkZao;u fd;k tkuk pkfg,A , vkb vkj 1964 ,l lh 538 vuqlfjrA , vkb vkj 1937 ukx- 345 voyafcrA ¼iSjk 18
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 114 && mica/k ds v/khu mi/kkj.kk && eq[; ijh{kk esa ;g Lohdkj fd;k fd la;qDr laifÙk dk foHkktu gks x;k Fkk && izfrijh{kk esa foHkktu ds iz‘u ds fo"k; esa og ekSu jgk && blds vykok fd foHkktu gks x;k Fkk dksbZ vU; fu"d"kZ ugha fudkyk tk ldrkA ¼iSjk 21 rFkk 22
1. The judgment passed in this appeal shall also govern the disposal of connected S.A. No.42/1999 (Yasin Khan v. Farida Bi) filed by fourth defendant Yasin Khan since both the appeals have arisen from a suit filed by the plaintiff-respondent No.1.
2. Initially a suit for injunction was filed by the plaintiff on the basis of her ownership, however, according to her she was dispossessed from the suit property during the pendency of the suit in the trial Court and eventually she amended her plaint and has also sought relief of possession.
3. The suit property is agricultural land, the description whereof has been mentioned in the plaint and which is the subject-matter of the suit. According to plaintiff, she is the owner having possession of the suit property and is also cultivating the same. The land revenue is also being paid by her.
4. The defendants are not having any right in the suit property even then they are trying to take the possession illegally from her and with the said intention on 23.4.1987 they came and gave threat to dispossess the plaintiff, hence firstly she filed a suit for injunction and when lateron she was dispossessed on 15.4.1989 she amended her plaint and pleaded this fact that she has been dispossessed and also amended the relief clause of her plaint by adding the relief of restoration of possession.
5. Defendants 1 to 3 filed a joint written statement while defendants 4 to 6 filed a separate written statement but in both the written statements all the defendants denied the plaint averments. In the written statement filed by defendants No.4 to 6 it is pleaded that the property in question is the part of ancestral land which was owned by defendants’ and plaintiff’s husband’s father Nabi Noor Khan and after his death, plaintiff’s husband and other three sons of Nabi Noor Khan became joint owner of the suit property and other land left by said Nabi Noor Khan. Further they have pleaded that plaintiff’s husband Shabir Khan was not having right to sell any specific share to plaintiff without partition and even if he has sold the undivided share to his wife (plaintiff) it will not jeopardize the right of defendants. The factum of possession of plaintiff on the suit property is also denied. The defendants prayed that suit be dismissed.
6. Learned trial Court framed necessary issues and after recording the evidence of the parties, dismissed the suit and the dismissal was affirmed by learned first appellate Court by the impugned judgment and decree.
7. In this manner, this second appeal has been filed by the defendants No.1 to 3, which was admitted by this Court on 8.12.1999 on the following substantial question of law :
“Whether a co-owner of a joint property can convey valid title in specific parcel of land forming part of joint property without partition between the co-owners and without consent of all the co-owners?”
8. The other set of defendants 4 to 6 filed separate second appeal (S.A. No.42/1999) which was admitted on 29.1.1999 by this Court on the following substantial questions of law :
(1) Whether co-owner alone can sell the part of such commonly owned land when the shares of the co-owners are not specifically defined and exclusively owned and possessed?
(2) Whether the Ist appellate Court was within the jurisdiction in disturbing the findings recorded by the trial Court on the reasons given by it in its judgment?
(3) Whether the judgment and decree passed by the Ist appellate Court is illegal and perverse?
9. I have heard Shri Sunil Jain, learned counsel for appellants of this appeal and also Shri Ashish Vyas, learned counsel for appellants of connected second appeal (S.A. No.42/1999). Learned counsel for appellants of both the appeals have submitted that admittedly the suit property was owned by Nabi Noor Khan who was having four sons namely Shabir Khan (husband of plaintiff), Akbar Khan, Yasin Khan and Ahmad Khan. By inviting my attention to the findings of learned Courts below it has been put-forth by
