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2016 DIGILAW 85 (KAR)

Sridhara v. Sheik Mazar

2016-01-25

A.V.CHANDRASHEKARA

body2016
JUDGMENT : The present appeal filed under Section 100, C.P.C. is directed against the divergent judgment and decree passed by the first appellate court, i.e. Civil Judge (Senior Divn.) and Addl. CJM at Arsikere, in R.A.76/03. Appellants herein were defendants 3 and 4 in an original suit in O.S.187/94 filed by the 3rd respondent herein as plaintiff for the reliefs of declaration and possession. 2. Sheik Majar was the 1st defendant in O.S.187/94 and he died during the pendency of the suit. Hence his legal representatives were brought on record. The 2nd respondent herein was the 3rd defendant in the said suit and the 3rd respondent herein was the sole plaintiff represented by his paternal grandmother-Rukiyabi as he was a minor. 3. Parties will be referred to as plaintiff and defendants as per their ranking before the trial court. The facts leading to the filing of the present appeal are as follows: a) A person by name Dharvesh Mohiddin was a Sunni Muslim and a resident of Banavara town. He had 4 sons namely, Syed Mohiddin, Sheik Majar (deceased 1st defendant), Jaleel Ahmed and Fida Hussain, and four daughters namely, Ashabi, Meerabi, Ameenabi, Rafeerjan. He was in possession of a total extent of 19.09 acres and two houses in Banawara Town. His second son-Sheik Majar was a vagabond and did not have good habits, though he was married. b) Dharvesh Mohiddin bequeathed 2.38 acres of land in Survey No.2/2 of Banavara town and a house bearing Municipal No.390 of Banavara town in favour of his first son-Syed Mohiddin, an extent of 1.38 acres of Survey No.209 and 1.38 acres in Survey No.151 of Banavara Town and a house bearing Municipal No.55 in Banavara Town in favour of Jaleel Ahmed (3rd son), an extent of 2.36 acres in Survey No.211 and 1.19 acres in Survey No.242 of Banavara Town to Fida Hussain (4th son). The remaining extent of 3.24 acres was earmarked for his first daughter-Ashabi and her husband to be equally divided amongst the daughters. c) No property was bequeathed in favour of his second son-Sheik Majar (deceased 1st defendant). On the other hand, property bearing No.179 along with backyard, land measuring 2.07 acres in Survey No.209 of Surveykoppalu village and land measuring 2.08 acres in Survey No.85/1 of Agrahara village were bequeathed in favour of Ashraff Hussain @ Ilyas Ahmed who was the son of Sheik Majar. On the other hand, property bearing No.179 along with backyard, land measuring 2.07 acres in Survey No.209 of Surveykoppalu village and land measuring 2.08 acres in Survey No.85/1 of Agrahara village were bequeathed in favour of Ashraff Hussain @ Ilyas Ahmed who was the son of Sheik Majar. d) The above bequests were made through a registered will dated 12.5.1958. A suit was filed by Syed Tousif, son of Ashraff-legatee represented by Rukiyabi, w/o Sheik Majar for the reliefs of declaration to the effect that the 1st defendant-Sheik Majar had no right to alienate the properties in favour of defendants 2 to 4 and that the alienation so made does not bind the plaintiff, and for possession of the same. e) Only defendants 3 and 4 chose to file written statement denying all material averments. The plaintiff was called upon to prove execution of the will dated 27.5.1958 and the same being acted upon and legatee being in possession of the schedule property. According to them, the property in question fell to the share of Sheik Majar in the year 1975 and he was in lawful possession of the same as the absolute owner and sold the same in favour of the 2nd defendant and they have purchased the same from defendant No.2 through a registered sale deed. According to them, the will dated 27.5.1958 is a got-up document. f) Ashraf Hussain died on 1.7.1997. According to the defendants, Dharavesh Mohiddin was a Sunni Muslim and he had no right to execute the will excluding his son-Sheik Majar and grandson is not an heir as per Muslim Law. Therefore, the will has no legal entity. The other sons and daughters of Dharavesh Mohiddin are necessary parties, is the averment. It is further averred that they have purchased the schedule property from Siddappa (2nd defendant) who in turn purchased the same from Sheikh Majar through a sale deed. It is averred that the suit is not maintainable either on facts or in law and therefore, they had requested the court to dismiss the suit. 4. On the basis of the above pleadings, the following issues were framed by the trial court for consideration: “1. Whether the plaintiff proves that he is the absolute owner of the Suit schedule property? 2. Whether the plaintiff proves that 1st defendant has no right to execute a sale deed in favour of the 2nd defendant? 4. On the basis of the above pleadings, the following issues were framed by the trial court for consideration: “1. Whether the plaintiff proves that he is the absolute owner of the Suit schedule property? 2. Whether the plaintiff proves that 1st defendant has no right to execute a sale deed in favour of the 2nd defendant? 3. Whether the plaintiff is entitled for the relief of cancellation of sale deed as alleged in the plaint? 4. Whether the plaintiff is entitled for the possession of the suit schedule property? 5. Whether the 4th defendant proves that, the allegation made in para 6(a) and 6(b) of the written statement? 6. Whether the 4th defendant proves that, the will dated 27.06.1958 is void and concocted document? 7. Whether the suit is bad for non-joinder of necessary parties? 8. Whether the defendant No.3 and defendant No.4 proves that they perfected their title over the Suit schedule property by way of adverse possession? 9. Whether the suit is barred by law of limitation? 10. What order or decree?” 5. T.L. Basavaraju who is the power of attorney holder, is examined as PW-1. Fida Hussain-son of Dharavesh Mohiddin is examined as PW-2. Two exhibits are got marked. Ex.P1 is the special power of attorney stated to have been executed by the guardian of the plaintiff in favour of T.L. Basavaraju, and Ex.P2 is the book containing registration of the will said to have been executed by Dharavesh Mohiddin in the year 1958. On behalf of the defendants, 5 witnesses have been examined and 4 exhibits have been got marked. Ultimately the learned trial judge chose to dismiss the suit on 27.6.2003 by answering issue nos.1 to 4 and 7 to 9 in the negative. 6. This judgment was called in question before the first appellate court by filing an appeal in terms of Section 96, C.P.C. The said appeal, R.A.76/03 is allowed after contest by framing the following points for consideration as found in paragraph 11 of the judgment: 1. Whether appellant / plaintiff has title to the suit property? 2. Whether the appellant / plaintiff is not bound by sale deed executed by defendant No.1 to defendant No.2 and defendant No.2 in favour of defendant Nos.3 and 4? 3. Whether appellant / plaintiff is entitled for possession of suit property? 4. Whether appellant / plaintiff has title to the suit property? 2. Whether the appellant / plaintiff is not bound by sale deed executed by defendant No.1 to defendant No.2 and defendant No.2 in favour of defendant Nos.3 and 4? 3. Whether appellant / plaintiff is entitled for possession of suit property? 4. Whether the defendants have acquired a titled by adverse possession over suit property? 5. Whether the judgment and decree of the trial Court is illegal and not based upon material on record? It is this divergent judgment dated 2.6.2007 which is called in question in this appeal on various grounds as set out in the appeal memo. 7. The present appeal had been admitted to consider the following substantial questions of law on 8.11.2011: “1. Whether the lower Appellate Court is justified in reversing the judgment and decree passed by the Court below without taking into consideration Section 68 of Evidence Act? 2. Whether the testator being the Muslim was competent under his personal law to bequeath all his properties under the will, when there is a prohibition under the Act?” 8. After hearing the arguments partially, this court felt that those substantial questions of law would not really arise for consideration and in its place, the following substantial questions of law were re-framed on 21.1.2016: “1. Whether PW-1 was competent to depose on behalf of the plaintiff without there being any personal knowledge of the transaction as power of attorney holder? 2. Whether the first appellate court has committed a serious illegality and perversity in upturning the well considered judgment of the trial court by ignoring the material evidence placed on record, and also ignoring the fact that a grandson would not be an heir under the Mohammedan law in whose favour bequeath could be made?” After re-framing the above substantial questions of law, learned counsel on both sides have addressed arguments at length. REASONS 9. Substantial question of law no.(1): Plaintiff is Syed Tousif and he was 5 years in the year 1994. He was the son of Ashraf Hussain who was the legatee as per the will- Ex.P2. He was represented by his paternal grand mother-Rukiyabi in the suit. The guardian had subscribed her signature in Hindi on 18.7.1994. Ultimately, she chose to attorn her power in favour of PW-1 to conduct the case. 10. He was the son of Ashraf Hussain who was the legatee as per the will- Ex.P2. He was represented by his paternal grand mother-Rukiyabi in the suit. The guardian had subscribed her signature in Hindi on 18.7.1994. Ultimately, she chose to attorn her power in favour of PW-1 to conduct the case. 10. The special power of attorney executed on 3.7.1999 by Rukiyabi in favour of Basavaraju (examined as PW-1) contains the purpose for which it was executed. It is stated that she does not know Kannada very well and that she was sufficiently aged and was unable to move about because of pain in the legs. Whether PW-1 is competent to speak on behalf of the plaintiff or her family members, is the question. 11. PW-1 is a resident of Banavara town of Arsikere Taluk. He was aged 65 years when he was examined before the trial court. The schedule property measuring 2.07 acres in Survey No.85/1 is also situated at Agrahara village of Banavara Hobli. Ex.P2 is a copy of the book in which the will was entered by the Sub Registrar, Arsikere Taluk. Since the original book No.3 (Vol.17) was returned to the Sub Registrar, a copy of the same is retained. It does not contain the entire will. Therefore, learned counsel, Mr. A.V. Gangadharappa has furnished a certified copy of the will for perusal by this court. 12. A person speaking on behalf of somebody must have personal knowledge of the facts of the case. Otherwise, he will not be competent to speak on his behalf. What is deposed to by PW-1 is that he had been called by Dharvesh Mohiddin to Hassan for the purpose of execution of the will and he had accompanied the testator. According to him, the land in question was bequeathed in favour of Ashraff Hussain, grandson of Dharvesh Mohiddin and the legatee was in possession of the same till his death. It is his case that he was present at the time of execution of the will. But the will does not bear his signature. According to him, the will was drafted by Hirannayya, advocate of Hassan and it was registered in Arsikere. He has specifically admitted in his cross-examination that he did not subscribe his signature to the will in spite of being asked to do so. But the will does not bear his signature. According to him, the will was drafted by Hirannayya, advocate of Hassan and it was registered in Arsikere. He has specifically admitted in his cross-examination that he did not subscribe his signature to the will in spite of being asked to do so. It is ununderstandable as to why he refused to subscribe his signature though he was requested by the testator. He has feigned ignorance about the schedule property being mortgaged and then sold to the 2nd defendant-Siddappa by Sheik Majar. He has feigned ignorance about the sale deed executed by Sheik Majar in the year 1990. He does not know whether there was any division of the properties between father and children. He does not know whether Sheik Majar and his son were living together and doing business jointly. 13. He has admitted in his cross-examination that the father of defendants 3 and 4 has obtained a decree against him and he is making payment as per the said decree. He has further admitted that the decree holder has sought for attachment of movables to recover the decretal amount from him. Therefore, the possibility of grinding axe against defendants 3 and 4, in view of the decree, cannot be ruled out. 14. Any suit in respect of agricultural land must necessarily be accompanied by a certified copy of the mutation or revenue records as per Section 132 of Karnataka Land Revenue Act. Nothing is placed on record in this case. On the other hand, defendants have produced a copy of the patta in respect of property measuring 2.08 acres in Survey No.85/1 which stood in the name of Sheik Majar. His name came to be incorporated on the basis of ICR.6/1981-82 and this is evident from Ex.D2-copy of patta. Ex.D3 is the RTC of land in Survey No.85/1 for the period 1990-91 to 1992-93 issued by the Tahsildar, Arsikere Taluk, and the name of Sheik Majar, son of Dharvesh Mohiddin is incorporated as khatedar on the basis of ICR.6/1981-82. Subsequently, the name of Siddappa came to be entered during and later on the names of defendants 3 and 4 came to be incorporated as khatedars. 15. The property in question had even been mortgaged to Vyavasaya Seva Sahakara Sangha to avail a loan of Rs.3,000/- and this entry is forthcoming in 9/84-85. Subsequently, the name of Siddappa came to be entered during and later on the names of defendants 3 and 4 came to be incorporated as khatedars. 15. The property in question had even been mortgaged to Vyavasaya Seva Sahakara Sangha to avail a loan of Rs.3,000/- and this entry is forthcoming in 9/84-85. Subsequently also, the property was mortgaged to avail further loan from the same financial institution in No.1/99. This is evident from column no.1 of Ex.D3-RTC. PW-1 has feigned ignorance about these alienations made by Sheik Majar to avail loan on the basis of this property long prior to the filing the suit. 16. In the light of the evidence tendered by PW-1, this court will have to see as to whether he was competent to speak about the facts of the case without having personal knowledge. In the case of JANAKI VASHDEO BHOJWANI AND ANOTHER .v. INDUSIND BANK LTD., AND OTHERS reported in [2005] 2 SCC 217, the Hon’ble Apex court has reiterated that ‘the power to depose in place of principal, held, extends only to depositions in respect of “acts” done by power-of-attorney holder in exercise of power granted by the instrument – Term “acts” would not include deposing in place of and instead of the principal for acts done by principal and not by power-of-attorney-holder. Similarly, power-of-attorney holder cannot depose for principal in respect of matters of which only principal can have personal knowledge and in respect of which principal is liable to be cross-examined.’ 17. In the present case, no such attempt is made to take out a commission to examine Rubiyabi because of her alleged old age and ill-health. Nothing is placed on record to show that she is virtually incapacitated to come to court and depose. What happened to the other properties stated to have been bequeathed by Dharavesh Mohiddin in favour of Ashraff Ahmed is not forthcoming. Whether the property measuring 2.07 acres in Survey No.209 of Surveykoppalu is still in their possession or has been alienated, is also not forthcoming. Vital details as to when Sheik Majar died and whether the legatee-Ashraf Ahmed lived with his father is also not forthcoming. Whether the property measuring 2.07 acres in Survey No.209 of Surveykoppalu is still in their possession or has been alienated, is also not forthcoming. Vital details as to when Sheik Majar died and whether the legatee-Ashraf Ahmed lived with his father is also not forthcoming. The documents produced by defendants 3 and 4 would disclose that Sheik Majar had alienated land measuring 2.08 acres in Survey No.85/1 in favour of Vyavasaya Seva Sahakara Sangha, Banavara Hobli to avail loan on two occasions and had become khatedar in the year 1980-81 itself. In the light of non-examination of the guardian of the plaintiff, an adverse inference will have to be drawn under Section 114(g) of the Evidence Act. Apart from this, the possibility of grinding the axe by PW-1 against defendants 3 and 4 in the light of the father of defendants 3 and 4 obtaining a decree against him and seeking attachment of his movables to recover the decretal amount, cannot be ruled out. 18. On the basis of the evidence placed on record, and in the light of the decision rendered by the Hon’ble Apex Court in the case of JANKI VASHDEO BHOJWANI AND ANOTHER (supra), this court is of the considered opinion that PW-1 was not competent to speak about the plaintiff as power of attorney holder. Hence substantial question of law no.(1) is answered in the negative. 19. Substantial question of law no.(2): The trial court has answered issue nos.1 to 4 and 7 to 9 in the negative. Of course it is held that the 4th defendant has failed to prove the will dated 27.5.1958 and also to prove that it is a void and concocted document. The rigor of Sections 68 and 63 of the Evidence Act in regard to proof of will is not applicable in all its force regarding proof of will executed by a Muslim. In fact, a will (Wasiyat) may be made either verbally or in writing as per Section 116 of the Mohammedan Law. No writing is absolutely required to make a will valid, and no property form is prescribed. Even a verbal declaration is sufficient so long as the intention of the testator is sufficiently ascertained. The burden of establishing an oral will is always heavy and it must be proved with utmost precision. 20. No writing is absolutely required to make a will valid, and no property form is prescribed. Even a verbal declaration is sufficient so long as the intention of the testator is sufficiently ascertained. The burden of establishing an oral will is always heavy and it must be proved with utmost precision. 20. In the present case, plaintiff has relied on Ex.P2-copy of the book in which the will was registered by the Sub Registrar of Arsikere Taluk. In fact one of the legatees, Fida Hussain is examined as PW-2. The question is, whether the will-Ex.P2 was acted upon. 21. Plaintiff’s father who was the legatee under the will, died a few years prior to the filing of the suit. The best person who could have challenged the alienation was none other than the legatee. He did not choose to raise his little finger against the same. PW-2 is the younger brother of Sheik Majar. He has admitted in his evidence recorded on 9.1.2001 that after the death of his father, they got divided their family properties partitioned which took place 25 years ago. The relevant admission elicited from the mouth of PW-2 is extracted below: ‘Apart from the suit schedule property, my father had other properties also. After the death of my father, we have got divided out family properties and partition took place 25 years ago.’ This cannot be considered as a stray admission. But this is a material admission going to the very root of the case coupled with non-examination of Rukiyabi-wife of deceased 1st defendant who had filed the suit on behalf of the plaintiff as guardian of the minor. 22. In paragraph 6(b), defendants 3 and 4 have specifically averred that the suit property was sold to the 2nd defendant who in turn sold the same to them. This averment found in paragraph 6(b) is probablised by the material admission elicited from the mouth of PW-2 who is none other than the last son of Dharavesh Mohiddintestator. This is a material admission under Section 17 of the Evidence Act and cannot be lightly ignored. This will have to be viewed in the light of the documentary evidence placed on record. 23. Ex.D2 is the copy of the patta in respect of Survey No.85/1 issued by the village accountant. This is a material admission under Section 17 of the Evidence Act and cannot be lightly ignored. This will have to be viewed in the light of the documentary evidence placed on record. 23. Ex.D2 is the copy of the patta in respect of Survey No.85/1 issued by the village accountant. It discloses that Sheik Majar was the khatedar of land in Survey No.85/1 measuring 2.08 acres on the basis of ICR.6/1981-82. This would further show that long prior to the filing of the suit, Sheik Majar had become the khatedar. As per ex.D3, the name of Sheik Majar is incorporated on the basis of ICR.6/1999-92. As already discussed, in column no.11, alienation made in favour of Vyavasaya Seva Sahakara Sangha is also reflected. Had he not been in possession of the property, he could not have exercised his right at an undisputed point of time. Being khatedar and owner of the land in question, he chose to sell the same in favour of the 2nd defendant-Siddappa on 11.9.1991 for a consideration of Rs.12,000/- and handed over possession to the purchaser. The attestors to the sale deed were M. Nanjundappa and V.C. Shankarappa of Chagalagutta village, Banawara Hobli. 24. Apart from this, PW-2 Fida Hussain has admitted that Sheik Majar had got khatha changed to his name and the property had been leased to the 2nd defendant-Siddappa for a period of 5 years. Of course, he has feigned ignorance as to the year in which the schedule property was leased and when it was sold to him (2nd defendant) and then to defendants 3 and 4. He has further admitted that defendants 3 and 4 are in possession of the suit schedule property. The evidence of PW-2 would also go to show that before executing the sale deed in favour of the 2nd defendant-Siddappa, the property in question was leased to him. Of course the document dated 24.12.1987 is produced by defendants 3 and 4 and the same is not got marked. It reflects that the property in question had been mortgaged for 2 years to Siddappa for Rs.3,000/-. Though this document is not got marked, the contents are in a way admitted by PW-2 in his evidence about the property being handed over to the 2nd defendant prior to the sale deed. 25. It reflects that the property in question had been mortgaged for 2 years to Siddappa for Rs.3,000/-. Though this document is not got marked, the contents are in a way admitted by PW-2 in his evidence about the property being handed over to the 2nd defendant prior to the sale deed. 25. The learned judge of the first appellate court has taken up all the five points formulated for consideration together by clubbing them. Necessary discussion is found in paragraphs 16 and 17 of the judgment relating to the validity of the will. As already stated, nothing is placed on record to show that Ex.P2 was really acted upon by all the legatees. If it was so, the names of all the legatees would have found place in the revenue records at an undisputed point of time, but their names were not incorporated at any point of time. On the other hand, the evidence placed on record would go to show that Sheik Majar was exercising his right over the schedule property at an undisputed point of time and even he executed the sale deed in favour of 2nd defendant-Siddappa, who in turn sold it to defendants 3 and 4. What is mentioned in ExP2 is that if Sheik Majar were to object to the will, the testator had an unlimited right to bequeath 1/3rd of the property and the legatee would get his right to an extant of 1/3. 26. A Division Bench of this court in the case of NARUNNISA v. SHEIK ABDUL HAMID – AIR 1987 KAR 222 has held that a Muslim belonging to Hanafi school can make a bequest to one of his heirs with the consent of other heirs. The necessary discussion is made in paragraph 12, which is reproduced below: “ The well established position, in our opinion, is that a bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. That it is so is clear from the following enunciation in Mahaboobi v. Kempaiah (Second Appeal No.99/150-51) : AIR 1955 Mys NUC 705.” The above decision is upheld by a single judge of this court in the case of MOHAMMAD ASHRAF .v. SMT. TABBASUM ( 2015(1) KCCR 966 ). That it is so is clear from the following enunciation in Mahaboobi v. Kempaiah (Second Appeal No.99/150-51) : AIR 1955 Mys NUC 705.” The above decision is upheld by a single judge of this court in the case of MOHAMMAD ASHRAF .v. SMT. TABBASUM ( 2015(1) KCCR 966 ). The decision in the case of NARUNNISA (supra) is also followed by the Indore bench of Madhya Pradesh high court reported in AIR 2009 NOC 2166 (MP). As could be seen from the records, nothing is placed on record to show that Sheik Majar was one of the heirs of Dharavesh Mohiddin had consented to the will, more particularly in regard to the bequest made in favour of his son-Ashraf Ahmed, who is a non-heir amongst Muslims. If really the will had been acted upon by the legatees the question of incorporation of the name of Sheik Majar as khatedar at an undisputed point of time and his assertion over the property would not have arisen. 27. The first appellate court is the final court of facts and it is expected to reassess the evidence in right perspective. Principles to this effect have been succinctly reiterated Hon’ble apex court in the case of SANTHOSH HAZARI .v. PURUSHOTTHAM TIWARI ( AIR 2001 SC 965 ). While upturning a well considered judgment of the trial court, the first appellate court must come to close quarters and assign its own reason as to where the trial court has gone wrong and what should be the right approach. 28. In the present case, the learned judge has not discussed material documentary evidence placed on record in the form of ExD1 to D4 and has also not reassessed the material admissions elicited from the mouths of PW-1 and PW-2. The entire judgment of the first appellate court is based on the fact that quantum of property bequeathed by Dharavesh Mohiddin in favour of his grandson Ashraf Ahmed was less than 1/3rd and therefore, the will cannot be rejected, but the learned judge has not at all focused on the material evidence placed on record in the light of the pleadings of the parties. The learned judge has also not looked into the material fact of guardian being not examined. In the light of non-examination of the guardian, adverse inference should have been drawn under section 114(g) of the Evidence Act. The learned judge has also not looked into the material fact of guardian being not examined. In the light of non-examination of the guardian, adverse inference should have been drawn under section 114(g) of the Evidence Act. In this view of the matter, the approach adopted by the first appellate court is not correct and proper. It has adopted a wrong approach to the real state of affairs while re-assessing the entire oral and documentary evidence placed on record. Hence, judgment of the first appellate court suffers from patent illegality and perversity. Accordingly, substantial question of law No.2 is answered in the affirmative. 29. In view of the findings on substantial questions of laws Nos.1 and 2, the appeal will have to be allowed and the judgment of the first appellate court will have to be set aside, and thereby the judgment of the trial court will have to be restored. Accordingly the following order is passed: ORDER The appeal is allowed. The judgment of the first appellate court in R.A.76/03 dated 2.6.2007 is set aside. Consequently, the judgment of the trial court in O.S.187/94 on the file of Additional C.J (Jr.Dn.) & JMFC, Arsikere is restored. In the light of the relationship between the parties, there is no order as to costs.