Under Mohammedan law, heirs inherit property as tenants in common, and sales executed without the consent of all co-owners are invalid.

CAV JUDGMENT

This appeal is filed by the appellants/plaintiffs under Section 100 of CPC for setting aside the judgment and decree passed by the II Addl. District and Session Judge Chikkaballapur sitting at Chintamani., Herein after referred as first appellate court in R.A.No.12/2010 for having allowing the appeal and also to dismissing the suit filed by the plaintiffs in O.S.No.73/2017 on the file of Civil Judge Senior Division and JMFC, Chintamani dated 25.10.2010.

2. The appellants are plaintiffs and the respondents were the defendants before the Trial court. The ranks of the parties before the trial court is retained for the sake of convenience.

3. Heard the arguments of learned counsel for the parties.

4. The case of the plaintiff before the trial court is that the plaintiff had filed the suit for partition and separate possession of the plaintiff legitimate share and for declaration that the sale deed dated 24.02.1995 is void and not binding on the share of the plaintiffs.

5. It is alleged that the plaintiffs and defendant No.2 and 3 are the children of late Abdul sathar. The said Abdul sathar died in the year 1973 and he was a K.S.R.T.C driver working in Kolar division. The defendant No.1 is his wife. The said Abdul sathar died intestate. The plaintiffs and defendant Nos.1 to 3 are the nearest legal heirs of deceased Abdul sathar, who have succeeded to the estate of deceased Abdul sathar. During his lifetime, he had not transferred the suit schedule property by way of sale, gift etc., to anybody.

The suit schedule property was purchased by the Abdul sathar in the year 1954. The said family did not own any other property except the suit schedule property. All the family members were depend upon the small income from the said suit schedule property. After the death of the Abdul sathar the plaintiffs and defendant Nos.1 to 3 were succeeded and they are in joint possession of suit schedule property. Due to the lack of rains no agricultural operation was done and defendant Nos.1 to 3 have become hostile towards the plaintiffs. Hence, the plaintiffs thought for seeking partition of their respective shares. The plaintiffs have approached the defendant Nos.1 to 3 for partition, but they postponed the same and they also threatened the plaintiffs that they will not give the share of the plaintiffs. The Plaintiffs obtained the RTC extract, after that they came to know that the said property was sold in favour of the defendant No.4, vide sale deed dated 24.02.1995 by the defendant No.3. The said defendant No.3 had no right to sell the suit schedule property. Inspite of alleged sale, the plaintiffs and defendant Nos.1 to 3 are the continuous possession of the suit schedule property. The defendant No.4 taking advantage of the absence of the plaintiffs and defendant No.1 in the village has misused his possession and got changed the katha illegally in his name. Hence, the plaintiffs constrained to file the suit.

6. Upon service of summons, The defendant Nos.1 to 3 did not appear and placed exparte. The defendant No.4 has appeared through his counsel and filed written statement and denied all the plaint averments further contended that he is a bonafide purchaser of the suit schedule property from the defendant No.3 under the registered sale deed dated 24.02.1995, for valuable consideration of Rs.1,23,000/-. He is in actual possession and enjoyment of the suit schedule property. The defendant Nos.1 and 2 have put their signature in the sale deed as consenting witness along with the other members of the family. The