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Madhya Pradesh High Court · body

2011 DIGILAW 1321 (MP)

Akbar Khan (deleted) through LRs v. Faridabi

2011-11-22

A.K.SHRIVASTAVA

body2011
JUDGMENT 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. 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 them that said Nabi Noor Khan had died somewhere in the year 1983 and after his death, his four sons and widow namely Phoolibai became joint owner of the entire holdings left by said Nabi Noor Khan and if that would be the position, Shabir Khan who was one of the sons of Nabi Noor Khan was not having any right to sell the undivided share to his own wife on 7.6.1986. It has also been put-forth by learned counsel that the consideration was never passed by present plaintiff to her husband and therefore the sale-deed (Ex.P-1) is a sham transaction. It has also been propounded by them that possession of the suit property was never delivered to the plaintiff and therefore the impugned judgment passed by learned first appellate Court is illegal and it be set aside.Further it has also been submitted by them that nowhere the plaintiff has pleaded in her plaint that any partition was effected among the brothers and their mother and the suit property fell in the share of Shabir Khan and eventually he sold it to plaintiff. It has also not been pleaded by her that Shabir Khan ever sold the suit property to her and therefore by allowing this appeal, the impugned judgment and decree passed by learned first appellate Court be set aside and the judgment and decree passed by learned trial Court be restored. 10. On the other hand Shri Vaibhav Jain, learned counsel appearing for respondent-plaintiff argued in support of the impugned judgment and submitted that learned counsel for appellants could not point-out that under which provision of Mohammedan Law an undivided share cannot be sold by a co-owner. Since there is no such prohibition in the Mohammedan Law, if the suit property is sold by her husband to plaintiff, under law it would be deemed that a valid conveyance has been made in her favour. 11. By inviting my attention to Article 231 of the Mulla’s Principles of Mohammedan Law 19th Edition at page 206 it has been submitted that right of pre-emption although does not remain in existence in view of Article 19(1)(f) of the Constitution of India but pre-emption as between co-sharers (shafi-i-sharik) or owners of dominant and servient tenements (shafi-i-Khalit) is saved by Article 19 of the Constitution of India. Learned counsel submits that in the present case the family property has been retained in the family because husband of plaintiff has sold the suit property to his own wife and therefore the transaction is not in derogation to the principles of Mohammedan Law. 12. Learned counsel submits that in the present case the family property has been retained in the family because husband of plaintiff has sold the suit property to his own wife and therefore the transaction is not in derogation to the principles of Mohammedan Law. 12. Learned counsel for respondents further submits that plain and simple case of the plaintiff is that she is the owner of the suit property and in order to substantiate her case she was not required to plead that any partition ever took place in the family in which the suit property fell in the share of her husband and thereafter it was sold to the plaintiff. On these premised submissions, it has been put-forth by learned counsel for respondent that cogent reasons have been assigned by learned first appellate Court decreeing the suit and therefore this appeal be dismissed. 13. Having heard learned counsel for the parties, I am of the view that this appeal as well as connected second appeal (S.A. No.42/1999) deserves to be dismissed. Regarding substantial question of law No.(1) : 14. Indeed the substantial question of law of this appeal and the substantial question of law No.1 of connected second appeal (S.A. No.42/1999) are akin to each other and eventually they are being decided together. 15. Learned counsel for appellants could not point out any particular provision under the Mohammedan Law that a c-owner of the joint property cannot convey a valid title of specific parcel of land forming part of joint property without partition between the co-owners and without consent of all the co-owners. 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. 16. 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. 16. 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. 17. 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. 18. I do not find any merit in the contention of learned counsel for appellants that because plaintiff has not come-forward on the basis of her sale-deed dated 7.6.1986 (Ex.D-1) executed by her husband to her after partition in the family and she has further failed to plead the factum of partition took place in her plaint, therefore, her suit should be dismissed. According to me, the parties are residents of Village Malhargarh, which comes in Tahsil Narayangarh of District Mandsaur. The suit was filed in the trial Court at Tahsil Narayangarh. Bearing this proposition on many occasions some latitude should be given in the case of mufasil pleadings and they should not be construed strictly. In this regard, decision of Supreme Court Badat and Co., Bombay v. East India Trading Co. [ AIR 1964 SC 538 at page 545], may be seen. This principle has already been laid down and was taken note of by the Division Bench of this Court long back (more than seven decades ago) in Arjunsa Raghusa v. Mohanlal Harakchand [AIR 1937 Nag. 345 at page 350]. 19. [ AIR 1964 SC 538 at page 545], may be seen. This principle has already been laid down and was taken note of by the Division Bench of this Court long back (more than seven decades ago) in Arjunsa Raghusa v. Mohanlal Harakchand [AIR 1937 Nag. 345 at page 350]. 19. Even otherwise, no substantial question of law has been framed in respect of above said submissions which are raised by learned counsel for appellants. The question which has been framed is whether a co-owner can convey the valid title of a specific piece of land forming a part of joint property without partition, which I have already decided hereinabove that there is no prohibition under the Mohammedan Law in that regard. 20. Looking to the testimony of plaintiff and her husband Shabir Khan this Court finds that there was a partition in the family in which the suit property fell in the share of Shabir Khan who later on sold it to plaintiff. On bare perusal of the cross-examination of defendant Akbar Khan (para 3) this Court finds that he has categorically admitted that all the brothers are cultivating separate land and further admitted that he is not cultivating the suit land but by changing his version of his own, has later on stated that all the brothers are cultivating the same. On the material point going to the root of the matter, first defendant Akbar Khan was cross-examined by plaintiff in respect of partition which took place between him and his brothers including Shabir Khan but he did not give any answer to the question and remained silent on this point in cross-examination and this demeanour was noted by learned trial Court in the deposition-sheet of defendant Akbar Khan (DW1). 21. Section 114, Illustration (h) of the Evidence Act speaks that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given would be unfavourable to him. Thus, if the answer to the question put to Akbar Khan (DW1) whether partition has taken place would have been given by him, it would have been unfavourable to him and therefore, he kept silent on this point and did not give any answer to this question. Thus, if the answer to the question put to Akbar Khan (DW1) whether partition has taken place would have been given by him, it would have been unfavourable to him and therefore, he kept silent on this point and did not give any answer to this question. Hence, it can be inferred that the partition took place between the brothers and by not answering the material question in this regard defendant Akbar Khan is suppressing the reality that partition has already taken place. If his silence in answering the question is read in context to para 3 of his cross-examination, where he has admitted that all the brothers are cultivating the separate land in juxtaposition to each other, no other inference can be drawn except that partition had taken place between the brothers earlier. 22. Learned first appellate Court by taking note of the demeanour of defendant Akbar Khan has categorically held that deliberately the defendant did not answer the material question pin pointing and going to the root of the matter and thus had come to the conclusion that there was a partition in the family in which the suit property fell in the share of Shabir Khan who sold lateron vide sale-deed dated 7.6.1986 (Ex.P-1) to the plaintiff and therefore learned first appellate Court has rightly arrived at a pure finding of fact that there was a partition in the family of plaintiff in which the suit property fell in the share of plaintiff’s husband Shabir Khan. 23. The substantial question of law No.1 of this appeal and the substantial question of law No.1 of connected S.A. No.42/1999 are thus answered that since there is no prohibition under the Mohammedan Law it cannot be said that a co-owner cannot alienate specific undivided share. Regarding substantial question of law No.2 of S.A. No.42/1999 : 24. In view of above, the substantial question of law No.2 is thus answered that learned first appellate Court was within the jurisdiction in disturbing the findings recorded by the trial Court on the reasons given by it in its judgment. Regarding substantial question of law No.3 of S.A. No.42/1999 : 25. After giving my anxious and bestowed consideration, I could not find the impugned judgment and decree of learned first appellate Court to be illegal or perverse. The substantial question of law is thus answered against the appellants. 26. Regarding substantial question of law No.3 of S.A. No.42/1999 : 25. After giving my anxious and bestowed consideration, I could not find the impugned judgment and decree of learned first appellate Court to be illegal or perverse. The substantial question of law is thus answered against the appellants. 26. Resultantly, this appeal and connected second appeal (S.A. No.42/1999) fails and are hereby dismissed with costs. Counsel fee Rs.1,000/- in each appeal if pre-certified. Let a copy of this judgment be kept in the record of S.A. No.42/1999. .............