Bangalore District Court
Sabera Begum vs Naseem Fathima on 20 August, 2025
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O.S.No.6276/2016
KABC010200622016
IN THE COURT OF THE XIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, AT BENGALURU (CCH-28)
Present : Smt. A.M. NALINI KUMARI, B.A.L, LL.M, PGD in IR & PM,
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 20th day of August, 2025
O.S.No. 6276/2016
Plaintiffs : 1. Sabera Begum,
W/o. Late Nizamuddin Patel,
Since dead by LRs
Plaintiffs No.2 to 8 already on record.
2. MD Naseemuddin Patel,
S/o. Late Nizamuddin Patel,
Aged 57 years,
R/o. House No.1/84/1 of village
Huchaknalli Taluk & District,
Bidar.
-Vs.
3. MD Wahajuddin Patel,
S/o. Late Nizamuddin Patel,
Aged 49 years,
R/o. House No.1/84/1 of village
Huchaknalli Taluk & District,
Bidar.
4. MD Mujeebuddin Patel,
S/o. Late Nizamuddin Patel,
Aged 45 years,
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R/o. House No.1/84/1 of village
Huchaknalli Taluk & District,
Bidar.
5. Parveen Begum,
W/o. Late Salauddin Patel,
Aged about 55 years,
R/o. Umpaur Taluk,
B'Kalyan District,
Bidar.
6. Nasreen Begum,
W/o. Wahaduddin Patel,
Aged 51 years,
R/o. Gadikeshwar Taluk,
Chincholi District,
Kalaburagi.
7. Tahseen Begum,
W/o. Md. Mannan Patel,
Aged 47 years,
Resident of village
Huchaknalli Taluk & District,
Bidar.
8. Shaheen Begum,
W/o. Late Maqood Ahmed,
Aged 53 years,
R/o. Housing Board Colony,
Humnabad Taluk,
Humnabad District,
Bidar.
(By Sri. I.P. Advocate)
Defendants: 1. Naseem Fathima,
W/o. Late Md. Merajuddin Patel,
Aged about 56 years,
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O.S.No.6276/2016
R/o. 86/85/130, Dolars Colony,
Ward No.188, Bilekahalli,
Bengaluru 560 076.
And also R/o. No.21/406,
Housing Colony,
Behind Bus Stand,
Humnabad,
Bidar District 565 330.
2. Taskeen Fthima,
W/o. Md. Ruman Alam,
Aged about 33 years.
3. Samren Fathima,
W/o. Syed Omer,
Aged about 32 years.
4. Amreen Fathima,
W/o. Syed Asif,
Aged about 29 years.
5. Sumayya Fathima,
W/o. Md. Shahbuddin,
Aged about 26 years.
6. Firdouse Fathima,
W/o. Md. Bilal Hussain,
Aged about 25 years.
7. Ayesha Fathima,
D/o. Late Md. Merajuddin Patel,
Aged about 23 years.
8. Mohammadi Fathima,
D/o. Md. Merajuddin Patel,
Aged about 21 years.
Defendants 2 to 8 are R/o.
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O.S.No.6276/2016
C/o. Naseem Fathima,
W/o. Mohammed Merajuddin N. Patel,
No.21/406, Housing Quarters,
Behind Bus stand,
Humnabad,
Bidar District 585 330.
9. Akshay,
S/o. Rajashekar Patil,
Aged about 28 years,
R/o. Humnabad Town,
Bidar District.
10. Prema Patil,
W/o. Rajashekar Patil,
Aged about 50 years,
R/o. Humnabad Town,
Bidar District.
(D1 to 8 : By Sri. S.S.L.
D9 & 10 : By Sri. S.K.M. Advocates)
Date of Institution of the suit 29.08.2016
Declaration and Partition &
Nature of the suit
Separate Possession.
Date of the commencement 15.06.2019
of recording of the Evidence.
Date on which the judgment
20.08.2025
is pronounced.
Year/s Month/s Days
Total duration 08 11 21
JUDGMENT
The Plaintiffs 1 to 8 have filed the present suit for
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declaration of plaintiffs 1 to 8’s share in the suit schedule
property to an extent of 5/24th share and for partition and
separate possession of their share in the suit schedule property
with consequential relief of mesne profits.
2. The brief facts of the case of the Plaintiffs is that, the suit
schedule properties are the self acquired properties of Late
Mohammad Mirajudheen Patel, who is said to have died
intestate on 07.10.2018, leaving behind the plaintiffs 1 to 8 and
the defendants 1 to 8 to succeed to his estate. And that Plaintiff
No.1 is the mother and plaintiff Nos. 2 to 4 are the real brothers
and plaintiff Nos. 5 to 8 are the true sisters of the propositus
Mohammad Mirajudheen Patel and the defendant No. 1 Smt.
Naseem Fathima is the wife and defendants Nos. 2 to 8 are the
daughters of late Mohammad Mirajudheen Patel. And that both
the plaintiffs 1 to 8 and the defendants 1 to 8 are governed
under the Mohammedan Law of inheritance. And that the
plaintiff No. 1 being the mother of Mohammad Mirajudheen Patel
inherits her fixed share of 1/6th in all the suit schedule property
and defendant No. 1 being the wife of late Mirajudheen Patel is
entitled forher fixed 1/8th share in the suit schedule property and
since there are no sons born out of the wedlock between
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O.S.No.6276/2016
Mirajudheen Patel and Naseem Fathima, and that defendants 2
to 8 being the surviving daughters of the said Mirajudheen Patel,
they are jointly entitled to 2/3rd share of their legitimate share in
the suit schedule property. And that the after satisfying the
sharers of their shares as above, the plaintiffs 2 to 8 would jointly
inherit the remaining 1/24th of their legitimate share in the suit
schedule property as residuaries.
3. It is further case of the Plaintiffs that, though the plaintiff
Nos. 1 to 8 and defendants Nos. 1 to 8 have inherited their
undivided right title interest in the suit schedule property as
tenants in common, defendant No.1 behind the back of plaintiffs
has got the khata transferred in her name on the demise of
Mohammad Mirajudheen Patel, is said to have demised on
07.10.2008. And further contended that the suit schedule
properties are all the self acquired properties of Mohammad
Mirajudheen Patel. And that the defendant No. 1 instead of
effecting the partition has got the katha transferred in her name.
Hence, based upon the cause of action that is said to have
arisen on 25.07.2009 and also subsequently on 06.06.2013,
when the defendant No.1 got the katha mutated in her name, the
plaintiffs have approached this court for the relief of declaration
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to declare that the plaintiffs 1 to 8 are together entitled for 5/24th
share and thereby for the relief of partition and separate
possession.
4. Defendants have filed their written statement and admitted
that the suit schedule properties are the self acquired property of
late Mohamed Mirajudheen Patel. But however denied that said
late Mohammad Mirajudheen Patel died intestate on 07.10.2008
leaving behind the plaintiffs 1 to 8 to succeed to his estate and
also denied the plaint claim as raised by the plaintiffs. And
further contended that the plaintiffs have no manner of right, title
or interest in respect of the suit schedule property. Denying the
entire averments contended that the defendant No. 1 is the sole
successor of suit schedule property and therefore she has got
the khata mutated in her name. And that the 5 daughters of
Meerajudheen Patel by name Takseena Fathima, Samreen
Fathima, Amreen Fathima, Sumayya Fathima and Firdos
Fathima have joined together. And that the plaintiff No.2 with an
intention to knock away the factory property belonging to 1 st
defendant’s husband, therefore a suit is also filed in O.S.No.
21/2015. And also contended that there is no bonafides in the
present suit and therefore on these and other grounds the
defendant No. 1 has sought for dismissal of the above suit.
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5. Defendant Nos. 9 and 10 have filed their written statement
admitting that the plaintiffs have filed a suit for partition &
separate possession and also admitted that the suit schedule
properties are the self acquired property of Late Muhammad
Mirajudheen Patel, who is said to have demised on 07.08.2008
and that he has left behind plaintiffs 1 to 8 and that the
defendants 1 to 8 have succeeded to the estate is partly true.
And also contended that, only the defendants are entitled to
succeed in the suit properties and that the plaintiffs have no
manner of right, title, interest in the suit property and that plaintiff
No.1 is the mother and plaintiff Nos. 2 to 4 are the real brothers
and plaintiff Nos. 5 to 8 are being the real sisters are not entitled
for any share in the said property.
6. And further denying the entire averments of the plaint, the
defendants No.9 and 10 have contended that there is no cause
of action to the suit and the property bearing Sy. No. 88/2
measuring 14 acres 28 guntas and property bearing Survey No.
84/2 measuring 7 acres 16 guntas and property bearing Survey
No.88/3 measuring 2 acres 8 guntas and 84/3 measuring 39
guntas are purchased by these defendants and that the khatas
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are mutated in the names of the said defendants 9 and 10
herein and that they are in exclusive possession in respect of
the said property ever since its purchase. Therefore, on these
and other grounds, the defendants Nos. 9 and 10 have sought
for dismissal of the said suit.
7. Based upon the above pleadings of the parties, the
following issues have been framed:
ISSUES
1. Whether the Plaintiffs proves that the schedule
properties are self acquired properties of Mohamed
Merajuddin Patel?
2. Whether the Plaintiffs prove that they and
Defendant No.1 to 8 are surviving heirs of propositus
Mohamed Merajuddin Patel?
3. Whether the Plaintiffs are entitled to the mesne
profits from the date of the suit till the delivery of
possession?
4. Whether the Plaintiffs are entitled to 5/24 th share
together in the Suit Schedule Property?
5. What order or decree?
Additional issues :
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1. Whether the Plaintiffs prove that the Plaintiff No.1
is the widow and the Plaintiff No.2 to 8 are the children
of late Md. Merajuddin Patel?
2. Whether the Defendants No.9 and 10 prove that
they are the bonafide purchasers of the Property
described in para-23 of their written statement?
3. Whether the Plaintiff is entitled for mesne profits?
If yes, what is the amount and from whom?
8. Based upon the issues casted upon the plaintiffs, the
plaintiff No.2 has examined himself as PW1 and has got married
Ex.P1 to P35 documents. Per contra, Defendant No.8 one
Mohammadi Fathima has examined herself as DW 1 and got
married Ex.D1 to D5 documents. Further, the Defendant No. 9
has examined himself as DW 2, but however did not produce
any documents. And later on got marked Ex.D6 and D7
documents.
9. Heard the learned counsel for plaintiff and the learned
counsel for defendant. Both the counsels have filed their
written arguments.
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10. The counsel for plaintiff has filed written arguments and
has relied upon few citations in support of his claim.
Defendant Nos. 1 and 8 have also filed their written
arguments. Likewise the defendants Nos. 9 and 10 have also
filed their written arguments. Perused the same.
11. My findings to the above Issues are as under:
Issue No.1 .. In the Affirmative
Issue No.2 .. In the Affirmative
Issue No.3 .. In the Negative
Issue No.4 .. Yes, entitled
Addl. Issue No.1 .. In the Affirmative
Addl. Issue No.2 .. In the Negative
Addl. Issue No.3 .. In the Negative
Issue No.5 .. As per final order for the following:
REASONS
12. Issue No.1 & 2 & Additional Issue No.1:- Issue No.1 is
upon the Plaintiff to prove that the suit schedule properties are
the self acquired property of Mohammad Mirajudheen Patel.
Issue No.2 is also casted upon the plaintiff to prove that they and
the defendants 1 to 8 are surviving legal heirs of Propositus
Mohammad Mirajudheen Patel. In the case in hand, the
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plaintiffs, one Sabeera Begum, along with Naseemuddin Patel
and 7 others, has maintained the present suit as against
Naseem Fathima and 9 others for the relief of declaration that
the plaintiffs 1 to 8 are together entitled for 5/24th legitimate
share in the suit schedule property and for the relief of partition
and separate possession.
13. It is the contention of the present plaintiffs that the suit
schedule properties are the self acquired properties of late
Mohammad Mirajudheen Patel, who is said to have died
intestate on 7.10.2008 leaving behind the Plaintiffs 1 to 8 and
the Defendants 1 to 8 to succeed to his estate. And it is also
contended that Plaintiff No.1 is the mother of Plaintiffs 2 to 4 and
the deceased Mirajudheen Patel. And that the plaintiffs Nos.2 to
4 are the real brothers and sisters (siblings) of deceased
Mirajudheen Patel and that Naseem Fathima i.e. defendant No.
1 is the wife and defendants No. 2 to 8 are the daughters of Late
Mohammad Mirajudheen Patel. And in this regard one of the
plaintiffs i.e. plaintiff No. 2 has examined himself as PW1 and
has reiterated the plaint averments and got marked Ex.P1 to
P35 documents.
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14. Ex.P1 is the Special Power of Attorney executed by
Shabeera Begum i.e. the Plaintiff No.1 and other plaintiffs in
favour of the plaintiff No. 2. Ex.P2 is the notarized affidavit in lieu
of Family G-tree, wherein Mohammad Mirajudheen Patel is
reflected to have been demised and his father Nazimudheen
Patel is also demised and that Shabeera Begum being the
mother and Naseem Fathima being the wife is reflected and that
the present plaintiffs No.2 to 8 are reflected as brothers and
sisters of said Meerajudheen Patel and Nasima Fathima the wife
is shown to have 7 daughters through Meerajudheen Patel. This
G-tree is not disputed by the defendants, but for denial of share
the defendants have not denied the said genealogy of said
Mohammad Mirajudheen Patel or Ex.P2 produced by the plaintiff
herein.
15. Defendant No. 8 by name Mohammadi Fathima, the
daughter of Mohammad Mirajudheen Patel has examined
herself as DW 1. In her cross examination she has admitted as
under :-
” ಮಿರಾಜುದ್ದ ೀನ್ ಪಟೇಲ್ ದಿ. 7.10.2008 ರಂದು ವಾದಿ 1
ರಿಂದ 8 ಹಾಗೂ ಪ್ರ ತಿವಾದಿ 1 ರಿಂದ 8 ರವರನ್ನು ತಮ್ಮ ಸ್ವ ತ್ತಿ ಗೆ
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O.S.No.6276/2016ವಾರಸುದಾರರು ಇರುತ್ತಾ ರೆ ಎಂದು ನಮೂದಿಸಿದ್ದೆ ೕನೆ ಎಂದರೆ
ಸರಿ ಹಾಗೂ 1 ನೇ ವಾದಿ ನನ್ನ ತಂದೆಯ ತಾಯಿ ಎಂದು
ಬರೆಸಿದ್ದೆ ೕನೆ ಎಂದರೆ ಸರಿ. 2 ರಿಂದ 4 ನೇ ಮೂಲ ವಾದಿಯರು
ಖಾಸಾ ಸಹೋದರರು ಎಂದರೆ ಸರಿ. ಅದೇ ರೀತಿ ಮೂಲ
ವಾದಿಯರು 5 ರಿಂದ 8 ರವರು ಖಾಸಾ ಸಹೋದರಿಯರು
ಎಂದರೆ ಸರಿ. ವಾದಿ 2 ರಿಂದ 8 ನಮ್ಮ ತಂದೆಯ ಸಹೋದರ
ಸಹೋದರಿಯರು ಎಂದರೆ ಸರಿ.”
16. Further it is also admitted as under :-
” ಮೂಲ 1 ನೇ ವಾದಿ ಮೃತ ಮಿರಾಜುದ್ದ ೀನ್ ಪಟೇಲ್ ರವರ
ತಾಯಿ ಇರುತ್ತಾ ರೆ ಹಾಗೂ ಅವರಿಗೆ ಮೊಹಮದೀಯ
ಕಾನೂನು ಅಡಿಯಲ್ಲಿ ಮೃತ ಮಿರಾಜುದ್ದ ೀನ್ ಪಟೇಲ್ ರವರ
ಸ್ವ ತ್ತು ಗಳಿಗೆ ವಾರಸುದಾರರಿರುತ್ತಾ ರೆ ಎಂದು ನನ್ನ ಮುಖ್ಯ
ವಿಚಾರಣೆಯ ಪ್ರ ಮಾಣ ಪತ್ರ ದ 5 ನೇ ಪ್ಯಾ ರಾದಲ್ಲಿ ಹೇಳಿ
ಬರೆಸಿದ್ದೆ ೕನೆ ಎಂದರೆ ಹೌದು.”
17. So this admission and the averments of the defendant in
her examination-in-chief is being confronted to the witness in her
cross examination. And in the said cross examination the said
witness has admitted of the said fact that Mirajudheen Patel was
succeeded by plaintiffs 1 to 8 and defendants 1 to 8 herein. And
further the G-Tree of the said Mirajudheen Patel is also
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categorically admitted. So far as the property of Mirajudheen
Patel being self-acquired property is concerned, it is also elicited
in the cross examination.
18. The Plaintiff has further produced Ex.P3, which is the sale
deed dated 12.07.2005 executed by one Eerappa in favour of
Mohammad Mirajudheen son of Nizamudheen Patel, which is in
respect of property bearing Survey No.83/a, 84/a, 88/a, which
are the suit Item Nos. A, B and C schedule properties. Ex.P4 is
another sale deed dated 23.06.2021 in favour of Mirajudheen N.
Patel by BDA. It is in respect of property bearing Site No.130
measuring East to West 15.24 meters North to South 24.38
meters, situated at B.T.M. Layout, Bilekahalli Dollars Colony,
Bangalore, which is in respect of E-schedule property. Further
Ex.P7 & 8 are the Mutation documents, which is standing in the
name of Mirajudheen Patel in respect of Item Nos. 1 to A, B and
C. which is also standing in the name of Mirajudheen Patel.
Ex.P9 is the Khatha Certificate standing in the name of Naseem
Fatima, wife of Mirajudheen Patel in respect of E-schedule
property. Ex.P10 is the Property Demand Register Extract for the
year 2016-17 standing in the name of Mirajudheen Patel being
rounded off, the name of Nasim Fathima is entered into. It is in
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respect of E-schedule property. Ex.P11 is the RTC in respect of
property bearing Survey No. 83 standing in the name of Naseem
Fatima, wife of Mirajudheen, on the basis of IHR i.e. MR H
552/2012-13. Ex.P12 is the RTC in respect of Survey No. 84
reflecting the same entry. Ex.P13 is another RTC in respect of
Survey No. 88 ie., in respect of C-schedule property reflecting
the same title. Ex.P14 is the RTC in respect of Survey No. 84
measuring an extent of 6 acres 2 guntas reflecting the same
transaction being the name of defendant No.1 is mutated in
respect of the said property and in the name of Defendant No.1.
Ex.P15 is the RTC in respect of Survey No.88, again it is in
respect of C-schedule property to an extent of 14 acre 28 guntas
the name of defendant No. 1 is reflected. Ex.P16 is the RTC in
respect of Survey No. 84. i.e. B-schedule property reflecting the
name of Naseem Fatima the defendant No.1 herein based upon
the mutation register on the basis of inheritance on the demise
of Mohammad Mirajudheen Patel. Ex.P17 to P20 are the
certified copies of transfer certificates pertaining to one Rehamat
Parveen, Nasreen, Tahseen Begum and Farah Shahina. The
defendant Nos. 5, 6, 7 and 8, who are reflected to be the
children of Nizamuddin, who is again the father of late
Mirajudheen Patel. This document is produced in order to show
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the genealogy of said Mirajudheen Patel with that of the plaintiffs
herein. Ex.P21 is the notarized Ahadar card of Sabeera Begum,
C/o.Mohammad Nizamudheen Patel. Ex.P23 is the Aadhar ID
card in respect of Mohammad Wahajudheen Patel, the plaintiff
No.3. Ex.P24 is the Notarized Aadhar card of M. Mujabudheen
Patel, S/o.Nijamudheen, who is the plaintiff No.4.
19. These documents goes to show that the plaintiff No.1
being the wife of Late Nizamudheen Patel and plaintiff No.2 to 8
being the siblings of said Late Mirajudheen Patel and that they
are also the children of Late Nizamudheen Patel, who is also the
father of Late Mirajudheen Patel. And further the RTCs and
other relevant documents are pertaining to the property standing
in the name of defendant No. 1 as well as the property being
acquired by said Late Mirajudheen Patel and further the
defendants 1 to 8 have not denied of the fact that the said
properties are the self acquired property of Late Mirajudheen
Patel in their pleadings. Therefore, on the above aspects of
documentary evidence as well as ocular evidence, there is an
admitted fact that the suit schedule properties are the self
acquired property of late Mirajudheen Patel and that the plaintiff
and defendants 1 to 8 are the successors of the said
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Mirajudheen Patel. Therefore, Issue Nos. 1 and 2 & Additional
Issue No.1 stands answered in the affirmative.
20. Additional Issue No.2 : This issue is upon the defendants
No. 9 and 10 to prove that they are the bonafide purchasers of
the property described at Para 23 of their written statement. This
issue is casted upon the defendants to prove that they are the
bonafide purchasers of the suit schedule property. In this regard,
The Defendant No.9 has examined himself as DW.2. He has
contended that agricultural land bearing No. 83, 84, 88 and other
portions of properties at A, B, C, D are admitted only with regard
to identity of the said property and that he has also emphasized
in para-3 of his examination-in-chief that the suit schedule
properties are the self-acquired assets of deceased Mr.
Mohammad Mirajudheen Patel. And the fact that he was
demised on 07.08.2008 is also admitted. And further he has
categorically admitted that said Plaintiffs Nos. 1 to 8 and
defendants No. 1 to 8 have succeeded to the estate and that the
estate of deceased Mohammad Mirajudheen Patel is devolved
upon the plaintiffs 1 to 8 and defendant Nos. 1 to 8 categorically
admitted. And what is denied by the defendant is that the plaintiff
No.1 is entitled to 1/6th share and defendant No. 1 is entitled to
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1/8th share and the defendants 2 to 8 are entitled for 2/3rd share
is been denied. Whereas in cross examination he has admitted
as under :
“It is true to suggest that defendant No.1 is the wife and
defendant Nos. 2 to 8 are the daughters of Mirajudheen
Patel. It is true to suggest that plaintiff No.1 is the mother
of Mirajudheen Patel and it is true to suggest that plaintiff
Nos. 2 to 8 are the brothers and sisters of Mirajudheen
Patel.”
21. Apart from the said oral assersion, the Defendant i.e.
defendant No. 1 has produced Ex.D1 to D7 documents, which is
in respect of other suit in OS 10/2016 and a criminal case also
being pending before the learned JMFC II.Court Bidar.
22. The plaintiff has produced Ex.P30 to P34 documents
which are the RTCs in respect of suit Item Nos. A, B, C and D,
wherein Property measuring 2 acres 8 guntas, property
measuring 39 guntas, Property measuring 14 acres 28 guntas
and property measuring 7 acres 16 guntas and property
measuring 12 acres 19 guntas are standing in the name of
defendant Nos. 9, 10 and 11 i.e. Prema, wife of Rajasekhar Patil.
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Abhishek, S. Rajshekhar Patil and Akshay, S/o. Rajshekhar
Patil, by virtue of Sale Deeds dated 28.09.2020, 28.9.2020 and
4.8.2020 respectively in respect of A, B, C & D schedule
property.
23. The plaintiffs have also produced a Deed of absolute sale
executed by Nasim Fatima in favour of Akshay as on 23.06.2020
in respect of land bearing Survey No. 84/3 measuring 39 guntas
and Ex.P27 a sale deed executed at Humnabad on 28.09.2020
executed by defendants Taksheena Fathima, Sameera Fathima
and Amreen Fathima, all daughters of Late Mohammad
Mirajudheen Patel, in favour of Akshay Rajasekhar, son of
Rajsekhar Patil in respect of property bearing Survey No. 88/2
measuring 14 acre 28 gundas and Ex.P28 is the deed of
absolute sale executed by Smt. Firdusi Fathima and Ayisha
Fatima daughters of Mohammad Mirajudheen Patel in favour of
Prema wife of Rajshekhar Patel in respect of Survey No. 84/2.
The said Sale Deeds have taken place in the year 2020, that is
after the plaintiffs have filed the present suit. When the said suit
filed by the plaintiff was in subsistence, the said sale deeds have
taken place. Therefore, the said transactions are hit by the
principles of lis-pendency Section 52 of Transfer of Property Act.
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Therefore, The contention of the defendants 9, 10 and 11 that
the said defendants are bonafide purchasers cannot be
considered since any prudent purchaser would enquire with
regard to the title or existence or non existence of any litigation
before purchasing the property. And that this suit was filed in the
year 2016 for the relief of partition and separate possession as
against the present defendants. It is also crucial to note that the
defendants themselves have admitted that there was a suit
pending before the learned Senior Civil Judge in OS No.16/2019
as well. Therefore, the defendants cannot be considered as
bonafide purchasers. Accordingly above Additional Issue No.2
stands answered in negative.
24. Issue No.3 & Additional Issue No.3 : With regard to issue
No.3 is concerned, the Plaintiffs have sought for the relief of
mesne profits from the date of the suit till the delivery of
possession and under additional issue No.3 also the plaintiffs
are to establish that they are entitled for mesne profits. But as of
now the plaintiffs have not led any enquiry with regard to the
mesne profits as required under Order XX Rule 12 of CPC.
Accordingly, Issue No.3 and Additional Issue No.3 are answered
in Negative.
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25. Issue No.4 : This issue is with regard to entitlement of
plaintiffs share to an extent of 5/24th share together in the Suit
Schedule Property. The plaintiffs and the defendants 1 to 8 are
governed under the Mohammedan law as admitted by the
plaintiffs and the defendants herein. This fact is not disputed
either of the defendants herein. Both the plaintiff and the
defendants 1 to 8 have filed their written arguments. So far as
the shares of the plaintiffs and the defendants are concerned,
the case of the plaintiffs is that, they are also the successors to
the estate of Late Mirajudheen Patel. And that the plaintiffs 2 to 8
being the siblings of Late Mirajudheen Patel are claimed to be
the residuaries of Late Mirajudheen Patel so far as it relates to
the estate of Late Mirajudheen Patel. Admittedly the plaintiff
No.1 being the mother of Late Mirajudheen Patel, it is contended
that she would take 1/6th share, which is the fixed share under
the Mohammedan Law and which would be added up to 4/24th
and the wife i.e. defendant No.1 is entitled for 1/8th share which
would added up to 3/24th and daughters jointly i.e. defendant
Nos. 2 to 8 are entitled for 2/3rd share and in the present case
16/24 and the brothers and sisters jointly being plaintiffs No.2 to
8 are entitled for 1/24th share and therefore they are entitled for
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24/24th share, which is the mathematical calculation which is
provided by the plaintiff at Para 8. This mathematical
calculations are not disputed by the defendants. Further there is
a categorical admission of plaintiff also being the legal heirs of
said Virajudheen Patel.
26. The counsel for the defendants have relied upon the
following citations, ie., on the ground that the case of the plaintiff
is barred by limitation. In this regard, they have relied upon the
judgment in AIR 1985, Punjab and Haryana 215 in the case of
Mohinder Singh versus Kashmira Singh . Wherein their
Lordships have held that,
“Article 65 – Suit for possession on the basis of
inheritance. No period of limitation is prescribed under the
law of limitation.”
27. And further another citation reported in 2023 (2) AKR 93 in
the case of S. Rudrappa and another v/s. B. K. Ramachandra .
Suit not barred by limitation.
28. Another citation reported in ILR 2022 Karnataka 2057 in
the case of Anjanappa vs Krishnappa and others. Wherein their
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Lordships have held that,
“In a suit for partition and separate possession of a share
of a joint family property, if the title of the plaintiff to such a
joint family property is denied, or if the plaintiff has been
excluded from possession of such property, Court fee is
liable to be paid on the market value of the property.”
29. But in the case in hand, the plaintiffs are hereby governed
under the Mohammedan law and the plaintiffs are held as
tenants in common. And further they are claiming the property
as tenants in common and further they have sought for the relief
of declaration. However the defendants have not raised the
contention of limitation and court fee in their written statement.
30. Further another citation reported in AIR 2005 SCC 2209,
2209 in case of Amit Kumar Shah and another Vs. Firada
Khatton and another, wherein their Lordships have held,
“Transferee pendente lite can be added as proper party, if
his interest in the subject matter of the suit is substantial
and not peripheral.”
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31. However, the learned counsel for defendants have failed
to address their arguments as to the said relevancy of the said
verdict. On the other hand, it is also crucial to note that the
present defendants are already on record. Therefore, the
question of deciding that they are necessary party or not at this
stage does not arise.
32. Before having noted the above aspects and the plaintiffs
have approached this court seeking the relief of declaration that
the plaintiffs 1 to 8 are together entitled for a 5/24th share in the
suit property and also for partition and separate possession and
for mesne profits. Therefore, in the light of the contentions
raised by the defendants and also on the grounds of materials
placed on record by the plaintiff and the defendants, plaintiffs are
entitled for the relief of declaration as prayed for. Accordingly, I
answer the above issue as yes entitled.
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33. Issue No.5 : The well settled law and principle is that,
there is no presumption of jointness like Hindus among the
Mohammadans. Therefore, when the members of a
Mohammadan family live in commensality, they do not
necessarily from a ‘Joint Family’. Further, the mere fact of the
members of a Mohammadan Family living in commensality and
holding their Properties jointly is not sufficient to raise the
presumption which under the Hindu Law arise from jointness.
34. In the case in hand, the deceased Mirajudeen Patel is
succeeded initially by mother, widow, 7 daughters and 7 siblings,
among whom 3 are brothers and 4 are sisters. As per the
Mohammedan Law, the sharers are the wife, mother, spouse,
son, daughter, brothers and sisters and it is also settled position
of law that all Mohammedans in India are governed under the
Mohammed laws pertaining to Shias. The sharers are according
to the Mohammedan Law are 12 in numbers namely husband,
wife, father, mother, daughter, full brother, full sister, half brother,
half sister, true grandfather, true grandmother and son’s
daughter. In the case in hand, both the plaintiffs and the
defendants come under the category of sharers. Therefore, and
also admittedly both the plaintiffs and the defendants 1 to 7,
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even the defendants Nos.9 and 10 have admitted of the fact that
the Suit Schedule Properties are the self-acquired properties of
late Mirajudeen Patel.
35. Be it as it may. Both the plaintiff and the defendants have
contended that there is a lis in relation to the sugar factory
concerned. If at all there are any liabilities upon the property and
estate of Late Mirajudheen Patel are concerned, after the
liabilities are fully discharged by both the plaintiffs and the
defendants 1 to 8 jointly, the shares in respect of the suit
schedule properties are concerned will have to be divided as
under.
36. The share of the widow i.e. the spouse of the deceased is
fixed as 1/8th share in presence of daughters, brothers etc.
Therefore each daughter would get 2/3rd, share which would
amount to 7, since there are 7 daughters i.e. defendants No.2 to
8 are concerned, each would be entitled to 2/3rd share. Further
the plaintiff No.2, 3 and 4 are the true brothers of the deceased.
Further plaintiff Nos. 5 to 8 are the true sisters, who will take half
of the shares fallen to their brothers. Therefore, the calculation is
calculated as under :-
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A Widow : 1/8th share
Daughters each get : 2/3rd share (7 daughers)
Brothers (3) + 4 sisters : 7/24th share
Each brother gets : 7/7 x 7/24 = 49/168.
Each sister gets : 3/7 x 7/24 = 21/168
These calculations are taken from the Book of “HIND’s
Ameer Ali’s Commentaries on Mohammadan Law”
complied from futharilies in the original Arabic in single
Volume containing two parts. Revised, Enlarged and
updated by Hon’ble Justice S.H.A. Raza, 5th Edition
(Pg 1060-1061)
37. Heard the learned counsel for the plaintiff. The counsel
for the Plaintiff on further clarification contends that the
succession under Mohammedan Law opens on the death of the
deceased person in respect of whom the partition is filed.
Therefore, the contention of the plaintiff is that, the succession in
case of Mohammedan Law opens on the demise of Mirajudheen
Patel. And therefore, as on the date of demise of Mirajudheen
Patel, Sabera Begum, the mother of the deceased was alive.
Therefore, the counsel for the plaintiff would rely upon A IR 1933
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O.S.No.6276/2016OUDH 142 and AIR ONLINE 1993 OUDH 222 in the case of
“Mohammedan Law – Inheritance – Death of son before
opening of succession leaving children – Such children
are excluded by their uncles and aunts.”
Further held :
“If any of the children of a man die before the opening of
the succession to his estate, leaving children behind, the
grandchildren ae entirely excluded from the inheritance by
their uncles and their aunts.”
38. Therefore, the plaintiff contends that plaintiff No.1 demised
on 27.08.2023. Therefore, the share would be calculated as on
the date of death of said Sabeera Begum, the Plaintiff No.1
herein. Therefore, as per the said calculation, the share of the
mother, ie., Plaintiff No.1 is fixed as 1/6th share = 4/24. Wife ie.,
Defendant No.1 as 1/8th share = 3/24. Daughters jointly ie.,
Defendant No.2 to 8 as 2/3rd share. Therefore, their calculation
would arrive at 16/24. Brothers and sisters jointly i.e. plaintiffs 2
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to 8 would take 1/24 and totally 24 shares. In terms of the said
calculation, the suit of the Plaintiffs is hereby decreed as prayed
for. Accordingly the plaintiffs are entitled for the shares as
contended by them.
39. In furtherance of my findings to above issues, I proceed to
pass the following :
ORDER
The suit of the plaintiffs seeking the relief of
declaration to declare that the Plaintiffs 1 to 8
together are entitled to 5/24th share in the Suit
Schedule Property is hereby decreed.
Office is directed to draw a decree
accordingly.
(Dictated using Dictaphone, converted audio into text by
using Adalath A.I. by the Stenographer G1, corrected and then
pronounced by me in the Open Court, on this the 20 th day of August,
2025)(A.M. NALINI KUMARI)
XIV Addl. City Civil & Sessions Judge,
Bengaluru.
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ANNEXURE
List of witnesses examined for the Plaintiff’s side:
PW.1 : Md. Naseemuddin Patel
List of exhibits marked for the Plaintiff’s side:
Ex.P.1 Release deed dated 2.11.2018 Ex.P.2 G.tree Ex.P.3 Sale Deed dated 12.7.2005 Ex.P,4 Sale Deed dated 23.6.2001 Ex.P.5 Sale Deed dated 20.10.2008 Ex.P.6 Objection letter dated 6.6.2013 Ex.P.7 M.R. Order (2012-13) Ex.P.8 M.R. Order dated 27.4.2016 Ex.P.9 BBMP Certificate Ex.P.10 BBMP Khata extract Ex.P.11 to 16 RTC extracts of Sy.No. No.83 Ex.P.17 to 20 Transfer certificates Ex.P.21 to 24 Aadhar cards Ex.P.21 to 25 Plaint in O.S.No. 21/2015 Ex.P.26 to 29 Digital copy of Sale Deeds dated 20.6.2020,
28.9.2020 & 17.8.2020 and Certificate Under
Section 65B of Evidence Act.
Ex.P.30 to 35 RTC extracts and certificate Under Section
65B of Evidence Act.
List of witnesses examined on behalf of Defendants’ side:
DW.1 : Mohammadi Fathima
DW.2 : Akshay
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List of exhibits marked on behalf of the Defendants’ side:
Ex.D.1 Order sheet in CC No.3111/2021
Ex.D.2 Order sheet in PCR No.10/2017
Ex.D.3 Charge sheet in Crime No.7/2017
Ex.D.4 FIR in Crime No.7/2017
Ex.D.5 Letter along with PCR
Ex.D.6 Written Statement in O.S.No. 10/2016
Ex.D.7 Plaint, Valuation slip and Judgment in O.S.No.
16/2019
(A.M. NALINI KUMARI)
XIV Addl. City Civil & Sessions Judge,
Bengaluru.