A second suit for partition is maintainable even though the earlier suit for the same relief was withdrawn by the parties without seeking any leave of the Court.

Headnote:
In a suit for partition and separate possession of properties, the court held that an oral Hiba (gift) was not acted upon and the document evidencing the Hiba was not genuine. The court also held that a second suit for partition was maintainable even though the earlier suit for the same relief was withdrawn by the parties without seeking any leave of the Court. The court further held that the shares were allotted as per the Fatwa issued by Darul-Ifta-Jamia-Nizamia and the Hon'ble Apex Court, particularly, prohibited the enforcing of Fatwas issued by the institution Darul Ifta Organization and the reliance placed by the trial Court in this regard is not valid.
Fact of the Case:

The plaintiffs filed a suit for partition and separate possession of properties. The defendants contended that the properties were settled by their parents before they left for Hajj pilgrimage in the month of September, 1978. The plaintiffs contended that the properties are Matruka properties and that the suit properties were not yet partitioned till date and the same were liable to be partitioned among the parties to the suit.
Finding of the Court:

The court held that there was no oral Hiba made on 19.09.1978 as contended by the appellants. The court also held that the document marked as Ex.B6, which was contended to be a written Hiba, was not genuine. The court further held that a second suit for partition was maintainable even though the earlier suit for the same relief was withdrawn by the parties without seeking any leave of the Court. The court also held that the shares were allotted as per the Fatwa issued by Darul-Ifta-Jamia-Nizamia and the Hon'ble Apex Court, particularly, prohibited the enforcing of Fatwas issued by the institution Darul Ifta Organization and the reliance placed by the trial Court in this regard is not valid.
Issues: 1) Whether there is any oral Hiba as contended by the appellants on 19.09.1978 and whether the same was acted upon? 2) Whether a second suit for partition is maintainable in view of the withdrawal of the earlier suit for the same relief without seeking any leave from the Court? 3) Whether the judgment of the trial Court in decreeing the suit awarding a preliminary decree in respect of plaint A and B schedule properties is in accordance with law or liable to be set aside?
Ratio Decidendi: 1) The essentials of a valid Hiba for an immovable property are: declaration by the donor, acceptance by the donee and transfer of possession from the donor to the donee. 2) A second suit for partition is maintainable even though the earlier suit for the same relief was withdrawn by the parties without seeking any leave of the Court. 3) A Fatwa is an opinion, only an expert is expected to give. It is not a decree, not binding on the court or the State or the individual. It is not sanctioned under our constitutional scheme.
Final Decision: The CCCA is dismissed, upholding the judgment and decree dated 15.06.2016 passed in O.S. No.19 of 2003 by the IX Additional Chief Judge, City Civil Court, Hyderabad. No order as to costs.

JUDGMENT :

G. Radha Rani , J.

This appeal is filed by the appellants-defendants No.6 and 8 aggrieved by the judgment and decree dated 15.06.2016 passed in O.S. No.19 of 2003 by the IX Additional Chief Judge, City Civil Court, Hyderabad.

2. The parties are hereinafter referred to as arrayed before the trial Court.

3. The plaintiff filed a suit for partition and separate possession as party-in-person submitting that his father late Dr.Mohd. Quasim Ali was a retired Civil Surgeon, he expired on 28.03.1989. His father was the owner and possessor of properties bearing MCH Nos.13-3-994/1, situated at Malakpet Hyderabad, described as schedule ‘A’ properties and properties bearing MCH No.3-2-739 to 3-2-744, situated at Chappal Bazar, Hyderabad, described as ‘B’ schedule properties in the plaint, leaving behind him, his wife Smt. Tayyaba Begum, the plaintiff and the defendants. Their mother Smt. Tayyaba Begum also passed away on 25.02.1994. During his lifetime, the father of the plaintiff permitted the 2nd defendant to collect the rents from the tenants in respect of ‘B’ schedule properties situated at Chappal Bazar and to hand over the said rents to him. Even after the demise of Dr. Mohd.Quasim Ali, the 2nd defendant was collecting the rents from the tenants in respect of ‘B’ schedule properties. His father deposited enormous amounts in various banks in his name. There were also jewellery, gold and silver ornaments of the mother of the plaintiff. The movable and immovable properties were the Matruka property of late Dr. Mohd. Quasim Ali and the same were in joint possession of all the co-owners or sharers. The plaintiff number of times requested the defendants to effect partition of the above properties and for his legal share in the said properties, but they postponed the matter on one pretext or the other and dragged for a long time, for which the plaintiff filed O.S. No.747 of 1994 which was allotted to IV Senior Judge, City Civil Court, Hyderabad. Later, the said suit was transferred to the I-Senior Civil Judge, City Civil Court, Hyderabad and from there to VII Senior Civil Judge, City Civil Court, Hyderabad. In between the said period, the plaintiff had undergone chest pain on 19.06.2000 and on 31.07.2000 and was admitted in Osmania General Hospital, Hyderabad. The plaintiff later received a notice dated 23.10.2000 from the VII Senior Civil Judge, City Civil Court, Hyderabad to appear in the said court. The plaintiff appeared in the said Court on 08.11.2000 and the matter was posted to 14.11.2000 and subsequently to 27.112000. The plaintiff could not stand or bear to stand in the said health condition. He filed a memo of withdrawal in the said suit and the said suit was withdrawn. Once again, on 21.08.2002, the plaintiff had undergone chest pain due to harassment caused by defendants No.1 to 9 in failing to partition the properties. Having no other source left, the plaintiff filed the suit for partition for his legal share by giving a notice in Newspaper on 31.10.2002. The plaintiff further submitted that they belonged to Hanafi sect and the shares should be divided as per Muslim Law. He along with defendants No.2, 4, 5, 6 and 8 were entitled to get 1/8th share in the suit schedule properties and defendants No.1, 3, 7 and 9 were entitled to get 1/16th share in the suit schedule properties.

4. The 1st defendant filed written statement admitting the relationship and that the properties were undivided. She stated that she was the eldest in the family, got married and was residing at Aurangabad, Maharastra State and was entitled for a share in the suit schedule properties. She further submitted that she executed a General Power of Attorney (GPA) in favour of the 6th defendant, but got the same cancelled. It was just and necessary to share the properties among the plaintiff and other defendants, who were legally entitled as per Muslim Personal Law in both A and B schedule properties and stated that all the male members were entitled to 1/8