ash 1 sa-423.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION SECOND APPEAL NO. 423 OF 2010 Shri Hasan Abdul Rahiman Khalpe. .. Appellant Vs Shri Rafique Bala Khalpe & Others. .. Respondents ­­ Shri K.K. Jadhav i/by Shri J.K. Jadhav for the Appellant. Shri S.M. Raikar for Respondent Nos.1 to 3. ­­ CORAM : A.S. OKA, J DATED : 1ST DECEMBER, 2011 P.C. . This Second Appeal is by the original second Defendant. The first to third Respondents are the original Plaintiff Nos.1(A), 1(B) and 1(C). On a suit filed by the Plaintiffs, the Trial Court passed a decree holding that the Plaintiff Nos.1(A) to 1(C) are entitled to 1/5th share each and the Defendant Nos.1(a) to 1(c) are entitled to 11.33/48 share each in the suit property. The Trial Court granted declaration that as the deceased first Defendant Julekha had 1/8th share in the suit property and as she has purported to sell the suit property to the Appellant­second Defendant, the Appellant­second Defendant will be entitled to 1/8th share of Julekha at the time of partition. The Trial Court also directed that while effecting partition of the suit property, the share of Julekha shall be allotted to the second Defendant. ash 2 sa-423.10 2. The case made out in the Plaint is that one Ismail Bala Khalpe, the son of the Plaintiff purchased the suit property from one Khatija. The said Ismail died in the year 1983. Ismail had three wives. He had already divorced first two wives and at the time of his death, his third wife ( Julekha – Original Defendant No.1) was alive. During the pendency of the suit, the said Julekha died. One Riyaz, the son of Julekha as well as Aziz and Imtiyaz, sons of the first wife of Ismail were brought on record as the legal representatives of Julekha. By the Sale Deed dated 22nd June, 1995, the said Julekha sold the suit property to the second Defendant ( Appellant). According to the case of the original Plaintiff, she was entitled to 1/5th share and Julekha was entitled to 1/8th share. The Plaintiffs claimed that the legal representatives of Julekha who were brought on record were having 1/4th share in the suit property. 3. The suit for partition was contested by the Appellant by filing a Written Statement. Various contentions have been raised including the contention that the Court of the Civil Judge (Junior Division) had no pecuniary jurisdiction to entertain and try the suit. It was contended that after purchasing the suit house, he has carried out repairs by spending a sum of Rs.15,000/­. It was contended that the suit property was given by Ismail to the first Defendant Julekha in lieu ash 3 sa-423.10 of and for her Meher with the consent of the sons of Ismail. A contention was raised in the alternative that the Appellant/second Defendant was ready to pay the amount representing the shares of the Plaintiff and others as per the market value. After the Defendant Nos. 1(A) to 1(C) were brought on record, additional Written Statement was filed by the Appellant/Second Defendant contending that the said Defendants have no share in the suit property. The Trial Court held that the original Plaintiff was entitled to 1/6th share in the suit property. The operative part of the decree reads thus:­ “1. Suit is decreed as follows. 2. Plaintiff No.1A to 1C are together entitled for partition and separate possession of their 1/6 share means 8/48 share in the suit property. 3. Similarly Defendant No.1A to 1C are entitled for partition and separate possession of their 11.33/48 each share in the suit property on payment of necessary court fees. 4. It is declared that Plaintiffs are having 1/6 share in suit property. 5. It is declared that deft. No.1A to 1C are having 11.33/48 each share in the suit property. 6. It is declared that Deft. No.1 Julekha had 1/8 share in suit property. But she sold it to defendant No.2 Therefore Deft. No.2 is entitled for 1/8 share of Julekha at the time of partition. 7. While effecting partition of suit property share of Defendant No.1 Julekha should be allotted to the Defendant No.2.” ash 4 sa-423.10 4. An Appeal was preferred by the second Defendant (the present Appellant). The Appeal has been dismissed by the Appellate Court. 5. The first submission of the learned counsel appearing for the Appellant is that the property was given to the deceased Julekha by way of Meher by late Ismail and, therefore, she became the owner of the property. He submitted that on demise of the Respondent, name of only the said Julekha was entered in the record of rights and none of the heirs of Ismail took any objection to that. He submitted that even according to the case of the Plaintiff, the name of Julekha was entered in the revenue record as the senior most member of the family and, therefore, being a senior most member of the family, she had a right to alienate the entire property. He submitted that the Appellant carried out repairs to the house in the suit property and not by any of the heirs of Ismail. He submitted that as the Appellant had purchased the undivided share of Julekha, even the share allotted to her legal representatives must come to the Appellant. He submitted that in any event the Appellant is ready to purchase the share of others. 6. I have considered the submissions. It is not in dispute that the suit property was owned by Ismail. The Courts below have held ash 5 sa-423.10 that there was no documentary evidence to show that the property was given by way of Meher to the first Defendant Julekha. The Appellant adduced oral evidence by examining himself and two other witnesses. The Courts below and especially the Appellate Court have extensively referred to the evidence of both the witnesses. It has been observed that in the Sale Deed executed by Julekha in favour of the Appellant, there was no recital that she had received the suit premises by way of Meher. The Appellate Court has minutely considered the evidence of the two witnesses Ibrahim Khalpe and Umar Babasaheb Walele Khot examined by the Appellant and for the reasons recorded, their evidence has been discarded. As far as the first contention regarding grant of propety to Julekha by way of Meher is concerned, there are concurrent findings of fact recorded on the basis of appreciation of the oral and documentary evidence on record. 7. Even assuming that the name of Julekha was entered in the Revenue Records and no one objected to the entry of her name, that will not divest the other sharers of their respective shares in the suit property. Even assuming that Julekha was the head of the family, under the Mohammedan Law, she has no right to alienate the entire property. 8. As far as the shares are concerned, in Paragraph 27, the Appellate Court has considered the relevant Rules under the ash 6 sa-423.10 Mohammedan Law. In Paragraph 29, the Appellate Court has held thus:­ “Therefore under such circumstances, in this case after the death of Ismail the suit property would vest among his heirs i.e. His mother Fatima (deceased plaintiff) and his wife Julekha (deceased defendant No.10 and three sons by name Riyaz, Aziz and Imtiyaz (defendant Nos.1A to 1C). As per Mohammedan Law wife is entitled to 1/8th share and mother is entitled to 1/6th share in the suit property. Therefore in present case share of Fatima who was mother of Ismail comes to 1/6th, and share of deceased defendant No.1 i.e. Julekha comes to 1/8th share. Remaining share will go to defendants 1A to 1C. Therefore, in the light of aforesaid discussion point Nos.1 to 3 are answered accordingly.” 9. The shares allotted to the Defendant Nos.1(A) to 1(C) are the shares to which they were entitled to on demise of Ismail. On demise of Ismail, Julekha acquired 1/8th share in respect of which she has executed the Sale Deed. Therefore, the Appellant cannot claim the shares of the Defendant Nos.1(A) to 1(C). The learned counsel appearing for the Appellant tried to submit that there is no prayer for setting aside the Sale Deed. The Plaintiffs claimed undivided share in the property and, therefore, it was not necessary for them to pray for setting aside the Sale Deed as the Sale Deed has the effect of transferring an undivided share to the Appellant. 10. As far as the purchase of shares of the other co­sharers by the Appellant is concerned, this aspect will have to be agitated by the ash 7 sa-423.10 Appellant before the concerned Court at the time of deciding the proceedings for actual physical and partition by metes and bounds. If it is permissible in law, the concerned Court shall consider the same. 11. Subject to what is observed above, no case is made out for interference in the Second Appeal. The Second Appeal is dismissed. 12. Civil Application No.990 of 2010 does not survive and the same is disposed of. ( A.S. OKA, J )