THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.2252 OF 2001 JUDGMENT: The defendant Nos.6 to 10 in O.S.No.92 of 1994 on the file of the court of Principal Senior Civil Judge, Kurnool are the appellants herein. The suit was filed for partition of the suit schedule properties. According to the case of the plaintiffs, one late Mohammed Saheb was the owner of the suit schedule properties and during his lifetime he gifted items 1 to 3 of the plaint schedule properties to his three (3) sons viz., 1) Abdul Gafoor 2) Shali Miah and 3) Abdul Kareem, under a registered gift deed dated 16-12-1957. Thereafter, all of them are entitled to 1/3rd share. Defendant Nos.6 to 9 are the children of Abdul Kareem who died in or about 1979; 10th defendant is his wife, defendant Nos.6 to 8 are the sons and defendant No.9 is the daughter. Shali Miah died in the year 1983 and he left behind him his only daughter Shamshunnisa Begum and 1/6th share of Shali Miah devolved on her and the other 1/6th share devolved upon his brother Abdul Gaffoor and two sisters. Abdul Gaffoor became entitled 5/12th share in items 1 to 3 of the plaint schedule properties. Thereafter, Abdul Gaffoor died in the year 1987 leaving behind his wife-4th defendant, son-first defendant and daughters-defendant Nos.2 and 3 who are entitled to 5/12th share. Subsequently, Shamshunnisa Begu died in 1990 leaving behind her husband-first plaintiff and son-2nd plaintiff and daughters- defendant Nos.3 to 5 who are entitled to succeed to her 1/6th share. Thereafter, Ahamed Bee the sister of Shali Miah died in 1993 leaving behind her daughter-defendant No.11 and the first plaintiff her son who are entitled to succeed to her 1/24th share. During lifetime of Shali Miah, he purchased item 4 from one late Anantha Subramanyam under a registered sale deed dated 10-02- 1972 and it was succeeded by his heirs. Defendant No.11 relinquished her share in items 1 to 4 in favour of the plaintiffs by way of relinquishment deed dated 23-08-1989 for a consideration of Rs.30,000/-, as such the first plaintiff is entitled to 1/24th share in items 1 to 3 and 1/8th share in item 4. Defendant Nos.12 and 13 are tenants of item 3. Defendant Nos.1, 3, 8 and 10 are residing in item 2 and they have to pay the profits. Defendant Nos.1,3 to 8 and 10 are also liable to pay the profits. Hence the suit for partition of the properties and rendition of accounts and mesne profits, future and past for the following shares: SHARES IN ITEM NOS.1 TO 3: 1. Plaintiff Nos.1 to 5 together are entitled to : 1/6th = 4/24 2. Plaintiff No.1 individually is entitled to another share : 1/24th = 1/24 3. Defendant Nos.1 to 3 jointly entitled to : 5/12 = 10/24 4. Defendant No.5 is entitled to : 1/24 = 1/24 5. Defendant Nos.6 to 10 together entitled to : 1/3 = 8/24 SHARES IN ITEM NO.4: 1. 1st plaintiff individually entitled to another share : 1/8 = 1/8 2. Plaintiff Nos.1 to 5 entitled to : 1/2 = 4/8 3. Defendant Nos.1 to 4 together entitled to : 1/4 = 2/8 4. Defendant No.5 entitled to : 1/8 = 1/8 Defendant Nos.1 and 4 filed a written statement, which was adopted by defendant Nos.2 and 3. According to the defendants, the plaintiff and defendant Nos.1 to 11 are jointly collecting the rent of item 3 and sharing the same. The defendant Nos.1 to 4 are entitled to 5/12th share in items 1 to 3 of the plaint schedule properties. The defendants are also entitled for the share and profits from item 4. The plaintiffs being in enjoyment of item 1 are also liable to pay the mesne profits and therefore a counter-claim was made for the mesne profits @ Rs.6000/- towards the share of the defendant Nos.1 to 4 in item 1. Defendant Nos.6 to 10 filed a written statement. According to them, the relationship is almost admitted and item 4 of the plaint schedule property was purchased by all the three brothers and not by Shali Miah alone and therefore it devolves upon all the heirs and not on the heirs of Shali Miah as pleaded by the plaintiffs. It was averred in paras.9 and 10 of the counter-affidavit as under:- 9) The true facts of the case are that all the plaintiffs and the defendants 1 to 10 are living in the same house, even till today. Defendant No.6, was running the common mess for the plaintiffs and the defendants 1 to 10 and also used to make purchasers of all essential for them. Defendant No.6 was acting as the Head of the family of plaintiffs and defendants 1 to 10 providing all necessities of day to day life to them. From time to time plaintiffs and defendants 1 to 5 used to borrow money from the defendant No.6. The relationship between the plaintiffs and the defendant No.1 to 10 was cordial. On 23-08-1989 plaintiff No.1 borrowed Rs.30,000/- from the defendant No.6 in order to pay his sister that is defendant No.11 and defendant No.11 executed Relinquishment deed. During the life-time of Shali Miah, plaintiff No.1 was harassing his wife Shamshunnisa Begum to bring money from her father Shall Miah. Shali Miah paid Rs.18,000/- to the plaintiff No.1 withdrawing the same from the income of common business. Once again after the death of Shali Miah in 1983, plaintiff No.1 started harassing his wife Shamshunnisa Begum for partition of the schedule items 1 to 4 and in angry mood took his wife and children to his own house but defendant No.6 pursuaded plaintiff No.1 to come back to the common house bearing Door No.15/198 and 15/199. Plaintiff No.1 did not agreed to come back then defendant No.6 paid Rs.40,000/- to the plaintiff No.1 and after running the said amount, plaintiff No.1 once again joined the common house. Plaintiff No.1 again demanded money from the defendant No.6 to make construct of a house in his plot in the Doctor’s Colony in 1994. Defendant No.6 once again paid Rs.36,000/- to the plaintiff No.1. Plaintiff No.1 has received in total Rs.30,000/- + 18,000/- +40,000/- + 36,000/- = Rs.1,25,000/- from the defendant No.6. On number of occasions also plaintiff No.1 borrowed from defendant No.6. 10) Defendant No.6 is giving paddy of 1 acre of land from item No.3, to the plaintiff No.1, till 1995. Even after filing of this suit for partition, plaintiff No.1 is taking fire-wood for fuel from the shop of the defendant No.6. Defendant No.6 is also paying electricity consumption charges for the houses bearing Door Nos.15/198 and 15/199, which is common house for all the plaintiffs and the defendants 1 to 10. Item No.4 exclusively belongs to defendants 6 to 8 as it was gifted to them and these defendants are in possession and enjoyment of the same in their absolute rights as owners. Plaintiffs has filed the suit in collusion and understanding with the defendants 1 to 4. Plaintiffs with male fide intention did not include the shop bearing Door No.18/137 situated on Nehru Road, Kurnool and also 0.09 cents of land situated in Atmakur village, Kurnool District, which is also joint property of all the plaintiffs and the defendants, fully described in the schedule below as item A and B. Item No.A is in possession of defendant No.1 that has to be partitioned. Most of the properties from item No.1 to 4 is already partition but with the intention of wrongful gain, plaintiffs without disclosing material facts of the case has filed this suit. Plaintiffs did not come to the Court with clean hands. The property is not properly valued and the Court Fee paid is not paid properly.” The plaintiffs are residing in part of item 1 and let out part of it and getting a rent of Rs.1000/-. Therefore, the suit is liable to be dismissed. The fifth defendant filed a memo adopting the written statement of defendant Nos.6 to 8 and defendant Nos.14 to 16 also filed a memo adopting the written statement of defendant Nos.1 and 4 . On the basis of the above pleadings, the following issues were framed for trial:- 1. Whether plaintiff No.1 is entitled to 1/24th share in items 1 to 3 of plaint schedule property? 2. Whether plaintiffs 1 to 5 jointly entitled to 4/24th share in items 1 to 3 of plaint schedule properties? 3. Whether item No.4 of plaint schedule property is the absolute property of late Shali Miah? 4. Whether shop bearing Door No.18/137, Nehru road Kurnool and land in Ac.0.09 cents in Sy.No.466-B of Atmakur Village are also liable to be partitioned? 5. Whether plaintiff has suppressed other properties which are liable to be partitioned? 6. Whether plaintiff is entitled to mesne profits as claimed for? 7. Whether D-1 to D-4 are entitled to 5/12th share of mesne profits relating to item No.1 of plaint schedule property? 8. Whether partition as pleaded by D-6 to D-10 is true valid and binding on plaintiffs and defendants? 9. To what relief? Later, the following additional issues have been framed. 1. Whether plaintiffs are entitled to mesne profits in respect of item No.2 of plaint schedule properties as prayed for? 2. Whether oral gift set up by D-6 to D-8 in respect of item No.4 of plaint schedule property is true and valid? On behalf of the plaintiffs PW.1 was examined and marked Exs.A- 1 to A-19. On behalf of the defendants Dws.1 to 5 were examined and marked EXs.B-1 to B-37. After considering the evidence on record, the learned Senior Civil Judge passed a preliminary decree rejecting the contentions of the defendant Nos.6 to 8. Hence the appeal. Now the points that arise for consideration are:- 1. Whether item 4 of the suit schedule properties is the joint property of Shali Miah and his brothers? 2. Whether the gift pleaded by D-6 to D-8 in their favour is true? 3. Whether there was an earlier partition as pleaded by the defendants? 4. Whether the judgment and decree passed by the learned Senior Civil Judge is legal and sustainable? POINTS:- There is no dispute about the fact that three brothers Abdul Gaffoor, Shali Miah and Abdul Kareem have got the properties equally from their father under a registered gift deed dated 16-12-1957 and that they have got equal rights in the property. Sofar as the relationship between the parties is concerned, there is also no dispute. Evidently, by the time the properties were gifted and by the date of suit all the members were living separately and they have got their own residence and mess. Item 4 of the suit schedule property was said to have been purchased by Shali Miah long after the alleged gift in 1957 and the date of purchase is 10-02-1972 under Ex.B-1 sale deed. Therefore, evidently when Shali Miah has got his own share in the property and has got his own occupation, there can be no presumption that the property was purchased from the income of all the brothers. It is not even the case of defendant Nos.6 to 10 that the property was purchased by all the three brothers and there is no proof of contribution from the other brothers. The parties being Mohammadans governed by Muslim Law, there cannot be presumption of acquisition jointly from the joint family funds. The burden is on the defendants to prove that the other brothers have also contributed for the acquisition of the property. In the absence of such evidence, naturally the presumption is that the person in whose name the property stands shall be presumed to be the owner of the property exclusively. The lower court on consideration of the evidence came to a conclusion that the property was purchased by Shali Miah with his own funds. The very plea of the defendants with regard to joint rights of the three brothers is falsified by the inconsistent plea set up by the defendants that Shali Miah gifted the property to defendant Nos.6 to 8 orally. If really he is not the owner of the property, there is no question of gifting the property in favour of defendant Nos.6 to 8. Therefore, the plea of the defendants is falsified. Further more, if it is the joint property of all the three brothers, then not only defendant Nos.6 to 8 and the heirs of Shali Miah and the other brothers’ heirs also will be entitled to a share, but, however, one of the brothers seems to have died prior to the death of Shali Miah. Sofar as the alleged gift is concerned, no doubt the lower court found that the written statement did not disclose the plea of gift but there was only a vague reference to the alleged gift. But however the lower court rightly found that the names of the persons in whose presence the gift was made and the declaration of the gift by the deceased and the acceptance of the same by the beneficiaries is also not mentioned. The particulars of the date and the place of the alleged oral gift is also not mentioned. Even after the death of Shali Miah and even in spite of the alleged gift, the defendants have not applied for mutation and the property stood in the name of the Shali Miah. The evidence of witnesses examined on behalf of the defendants to prove the gift is also not satisfactory. The alleged gift deed is said to be on 11-01-1979 from the evidence of the defendants which date was not pleaded. In fact there is no reason as to why the property should be gifted to defendant Nos.6 to 8 excluding the other heirs. The evidence of DWs.2 to 4 touching on this aspect was also analysed by the lower court and their presence at the time of gift was not accepted since their presence was not at all mentioned in the written statement. Their evidence also does not disclose that all the persons i.e., defendant Nos.6 to 8, who are beneficiaries were present and that they have accepted the gift. Therefore, in view of the above circumstances none of the contentions raised by the appellants with regard to alleged gift or with regard to the jointness of item 4 of the property with the other brothers of Shali Miah can be accepted. In fact defendant Nos.1 to 4 are not supporting the claim of defendant Nos.6 to 8 about the contentions raised by them. DW.1 who is the first defendant denied the contentions of the other defendants. Evidently, even from the evidence of DW.2, who is the 6th defendant, prior to the filing of the suit legal notices were given and no reply was given, though a plea of partition was pleaded, his evidence does not disclose that there was partition by meets and bounds and the allotment of the shares as pleaded. The lower court after considering relinquishment deed with regard to item A of the written statement schedule excluded the property from partition. The lower court also did not accept the plea of the plaintiffs about the relinquishment of rights by defendant No.11. Infact the lower court has also considered the evidence of first plaintiff as PW.1 that he has no objection in giving mesne profits in item 1 of the suit schedule property and also granted the same relief. Therefore, taking into consideration the above facts and circumstances and also the evidence on record I do not find any infirmity in the judgment of the lower court and it does not call for any interference. Accordingly the points are answered. In the result the Appeal Suit is dismissed. Each party do bear their own costs. _______________________ N.R.L.NAGESWARA RAO,J 13-04-2011 TSNR