HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A. No.122 of 2003 Date: 22.03.2011 Between: Mohd. Haneef Malik (died) G Nahid and 4 others. ….Appellants. And: Khatija Banu and Nasira Banu and another …..Respondents. HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A. No.122 of 2003 JUDGMENT: (per Hon’ble Sri Justice P. Durga Prasad) This is an appeal arising out of the judgment and decree passed in O.S.No.436 of 1998 by the VII Additional Chief Judge, City Civil Court, Hyderabad on 31.12.2002. The appellant herein is the plaintiff and he has filed the suit for declaration that the plaintiff’s brother Malik Yousuf Chowhan was the owner of the plaint schedule property and for partition of the said property by meets and bounds and for allotment of 6/12th share in his favour and also for decree of Rs.1,25,000/- against the 1st defendant towards the share in the rents recovered by her and also mesne profits during the pendency of the suit. The brief averments in the plaint are that the father of the plaintiff late Ghulam Mohiuddin Chowhan, son of Haji Nawab Ali Chowhan was the owner of the premises No.12-2-837 and total admeasuring 1211 sq. yards situated at Asifnagar, Hyderabad. The plaintiff’s father was in need of money he offered to sell a portion of the above house admeasuring 794.00 sq. yards and accordingly, the plaintiff’s brother Malik Yousuf Chowhan agreed to purchase the said portion for a total sale consideration of Rs.15,000/- and in pursuance of the agreement and out of the sale consideration of Rs.15,000/- he paid a sum of Rs.11,500/- and the balance sale consideration of Rs.3,500/- was paid by him to the plaintiff’s father on 6.12.1974 when the said sale deed was registered. The entire sale consideration was paid by the plaintiff’s brother as the defendant No.1 was a house wife and she has no source of income and after the purchase of the property by Malik Yousuf Chowhan the property remained in his possession and enjoyment, on the Southern side of the said building he constructed 2 rooms kitchen and toilet. Later the plaintiff’s brother was in need of money he sold a portion of the said house which was assigned Municipal No.12-2-837/11 admeasuring 250 sq. yards consisting of 2 rooms, toilet and kitchen to his brother Mohd. Younus Chowhan for a consideration of Rs.10,000/- accordingly on the instructions of her husband Malid Yousuf Chowhan, the 1st defendant executed a registered sale deed dated 14.4.1978 in favour of Mohd Younus Chowhan. The said premises was later purchased by the plaintiff from Mohd Younus Chowhan under registered sale deed dated 28.3.1988 and that after the sale an extent of 250 sq. yards by the plaintiff’s brother and the remaining property admeasuring 544 sq. yards of land with house thereon remained in possession and enjoyment of the plaintiff’s brother Malik Yousuf Chowhan and he was paying the Municipal property tax, water and electricity charges. The plaintiff’s brother also constructed five ‘Mulgies’ and was collecting the rents as absolute owner. The plaintiff’s brother Malik Yousuf Chowhan was in enjoyment and possession of the portion of the property bearing No.12-2-837 admeasuring 544 sq. yards situated at Asifnagar, Hyderabad as absolute owner till he died on 21.7.1996. The plaintiff’s brother died issueless. At the time of his demise, the deceased left behind him the plaintiff as his sole brother, defendant No.1 as his widow and defendant No.2 as his sister and the suit schedule property as his ‘Mathruka’ wherein the plaintiff and the defendants as per personal law are entitled to the following shares: a) Plaintiff as brother is for 6/12th share b) Defendant No.1 as widow for 3/12th share c) Defendant No.2 as sister for 3/12 the share. The plaintiff mostly reside at Bangalore and now and then visits Hyderabad and after demise of Malik Yousuf Chowhan the plaintiff asked the 1st defendant to partition the property left by deceased brother. The 1st defendant agreed for the same in presence of the relatives but after some time when the plaintiff asked to partition it according to the personal law the 1st defendant started giving evasive replies and ultimately on 25.9.1998 refused to partition the property on the ground that she is the absolute owner of the schedule property. The suit property was purchased by the deceased brother of the plaintiff from his money and he was in enjoyment and possession of the property as absolute owner. The property only stands ‘Benami’ in the name of the 1st defendant as such the suit for declaration and partition of the schedule property. The defendant No.1 is collecting a rent of Rs.10,000/- per month from the suit schedule property from 1.9.1996 and the rent collected by the defendant form 1.9.1996 to 30.9.1998 amounting to Rs.2,50,000/- wherein the plaintiff has 6/12 share which comes to Rs.1,25,000/- and the plaintiff is entitled to recover the same. The 1st defendant has filed written statement and subsequently got amended the said written statement. The brief averments of the amended written statement are that the 1st defendant has purchased the property bearing No.12-2- 837/10 for a total extent of 794 sq. yards from her late father-in-law Ghulam Mohiuddin. But she denied that her late husband Malik Yousuf Chauhan agreed to purchase the said portion of the property for a consideration of Rs.15,000/- and according to her with her own earnings she has purchased the said property. According to her, the 1st defendant has sold the house which was given to her by her father at the time of marriage situated at Razadar Khanpet, Hyderabad and also she sold her gold ornaments and out of the sale proceeds, the 1st defendant purchased the suit house. Her husband has not paid even single pie and she herself has developed the said property with her own funds. As her husband was suffering from chronic disease, the 1st defendant sold the property to the extent of 250 sq. yards and remaining 544 sq. yards is in the custody of the 1st defendant and she is enjoying the said property as lawful owner and possessor and no one have any right to interfere in her property as the property in question is purchased by her with her own funds. According to her, the 1st defendant’s late husband did not have substantial income. The 1st defendant’s late husband’s father was having 11 children, one of them settled in Pakistan while others remained in India, including daughters and sons. Some of the brothers and sisters of 1st defendant’s late husband have died leaving behind them their sons and daughters as their legal heirs who are surviving. But the plaintiff has wantonly has suppressed this fact and has not made them as parties to the suit. Hence, the suit is liable to be dismissed for non-joinder of necessary parties. According to her, the plaintiff used to reside in Bangalore and he never used to visit the 1st defendant’s house at any time during the life time of late Malik Yousuf Chauhan who was suffering from chronic diseases and was totally bed-ridden for 7 years and then died. The plaintiff had never asked for partition nor he had any right to do so more specifically on 25.9.1998. According to her, the plaintiff is not in talking terms with the family of the 1st defendant’s late husband since about more 20 years because he never used to visit the house of the 1st defendant. The 1st defendant is the absolute owner and possessor of the suit schedule property from the date of its purchase without any interruption and the plaintiff has no manner of right whatsoever and the suit is liable to be dismissed. The written statement was field on behalf of the 2nd defendant in support of the claim of the plaintiff claiming 3/12th share in the suit schedule property. Basing on the above pleadings, the lower court has framed the following issues: 1. Whether the plaintiff is entitled for declaration that the plaintiff’s brother Malik Yousuf Chauhan was the owner of the house bearing No.12-2-837/10 as prayed for? 2. Whether the property was purchased in the name of 1st defendant as ‘Benami’ as claimed by the plaintiff? 3. Whether the plaint schedule property is liable for partition and the plaintiff is entitled for 6/12 share as prayed for? 4. Whether the plaintiff is entitled for a decree for sum of Rs.1,25,000/- as prayed for? 5. Whether the plaintiff is entitled for mesne profits as prayed for? 6. Whether the suit schedule property is the exclusive property of 1st defendant? 7. Whether the suit is bad for non-joiner of necessary parties? 8. Whether the suit schedule property is not ‘Mathruka’ property as pleaded in the written statement of defendant No.2? 9. Whether the suit is maintainable under law? 10. To what reliefs? The plaintiff himself was examined as P.W.1 and got marked Exs.A.1 and A.2. 1st defendant examined herself as D.W.1 and got marked Exs.B.1 to B.48. No evidence was adduced on behalf of the 2nd defendant. The learned Additional Chief Judge by taking into consideration of both oral and documentary evidence held the Issue Nos.1 to 9 against the plaintiff and thereby dismissed the suit. Aggrieved by the said dismissal of the suit, the plaintiff therein has filed the present appeal. Now the points that arises for consideration are: 1. Whether the appellant/plaintiff is entitled for declaration that his brother Malik Yousuf Chowhan is the owner of the suit schedule property as prayed for? 2. Whether the suit schedule property is liable for partition and allotment of 6/12th share to the plaintiff as prayed for? 3. Whether the appellant/plaintiff is entitled for decree for a sum of Rs.1,25,000/- as prayed for? 4. Whether the appellant/plaintiff is entitled for mesne profits as prayed for? Point Nos.1 to 4: The learned counsel for the appellant has pleaded that the husband of the 1st defendant who is Malik Yousuf Chowhan has no source of income and the suit schedule property was originally belongs to his father late Ghulam Mohiuddin Chowhan and he has sold the said property admeasuring 794 sq. yards to his brother Malik Yousuf Chowhan as he was in need of money for a consideration of Rs.15,000/- and his brother has paid the sale consideration of Rs.11,500/- as an advance and paid the balance of sale consideration of Rs.3,500/- at the time of registering the sale deed, but the sale deed was obtained in the name of the 1st defendant’s wife as a ‘Benami’ and as his brother Malik Yousuf Chowhan has paid the entire sale consideration he has been enjoying the property as an absolute owner by paying the municipal tax, water tax etc., and he has also developed the said property by constructing 2 rooms i.e., kitchen and toilet and subsequently he sold the same in favour of his another brother Mohd Younus Chowhan for a consideration of Rs.10,000/- and as the property stands in the name of the 1st defendant, she has executed a registered sale deed in his favour on 14.4.1978 and subsequently he has purchased the said property from his brother Mohd. Younus Chowhan under a registered sale deed dated 28.3.1988 and he was in possession of the said property as his brother Malik Yosuf Chowhan has purchased the said property with his own income, it is his ‘Mathruka’ property and he has died issueless leaving behind him his wife D.1 and sister D.2 and they are alone entitled for partition of the said property as per the Muslim law. The learned counsel for the appellant has pleaded that even though his late brother Malik Yousuf Chowhan was having other brothers and sisters, they have pre-deceased him and even though their legal heirs are surviving they are not entitled for a share in the suit schedule property as per Muslim law. Therefore, the suit is not bad for non-joinder of parties and the learned counsel for the appellant has further pleaded that as the 1st defendant is claiming that she is the absolute owner of the said property and purchased the property with her own funds, the burden is on her to establish the same and she has failed to establish the same and the plaintiff is entitled for declaration and partition as prayed for. On behalf of the 1st defendant, it is argued that the suit schedule property was purchased by her by selling away the house property which was given by her father at the time of her marriage and also by selling the gold ornaments which were given by her father at the time of marriage and she is the absolute owner of the suit schedule property and she has been living in the said property along with her late husband Malik Yousuf Chowhan and subsequently sold the part of the property in favour of Mohd Younus Chowhan who is the brother of late husband of the first defendant and she was paying the tax for the said property. As such she is the absolute owner of the said property and the plaintiff is not entitled for declaration or partition as prayed for. There is no dispute between the parties that originally Ghulam Mohiuddin Chowhan is the owner of the premises bearing No.12-2- 837 admeasuring 1211 sq. yards in Asifnagar, Hyderabad and there is no dispute that the plaintiff’s father has executed a sale deed in favour of D.1 for an extent of 794 sq. yards out of the said property under a registered sale deed dated 6.12.1974 and it is also not in dispute that subsequently under the sale deed dated 14.4.1978 D.1 has sold an extent of 250 sq. yards in favour of Mohd Younus Chowhan and subsequently, the plaintiff herein has purchased the said property from Mohd Yousuf Chowhan under the registered sale deed dated 28.3.1988. The contention of the appellant/plaintiff is that the sale consideration for the suit schedule property was paid by his brother late Malik Yousuf Chowhan, husband of D.1 to his father and during his life time he has been enjoying the property as absolute owner of the said property and as such it is his ‘Mathruka’ property. The 1st defendant, on the other hand, has pleaded that she has paid the entire sale consideration for purchase of the said property to her father-in-law by selling the house property given to her at the time of her marriage by his father and also by selling away the gold ornaments. Therefore, now it has to be considered whether the consideration for purchase of the property from Ghulam Mohiuddin Chowhan was paid by the husband of the D.1 or by D.1 herself? The plaintiff examined himself as P.W.1 and he has narrated the same facts as mentioned in the plaint and he got marked Exs.A.1 and A.2. Ex.A.1 is the registration extract of the sale deed. Ex.A.2 is its English translation. In the cross-examination, he admitted that he know what were the things given to D.1 by her father i.e., some gold ornaments and some utensils at the time of her marriage. He admitted that he know the brother of D.1 is residing in U.S.A as he had gone very recently. He denied that D.1 being only the female member in the entire family, the entire property was given to her at the time of marriage. He also denied that his brother has no source of income and according to him his brother got paralysis stroke in the year 1995 and he died on 21.7.1996. The 1st defendant as D.W.1 has narrated the facts as mentioned in her chief-affidavit and got marked Exs.B.1 to B.43 and in the cross-examination, she admitted that her marriage with Dr.Malik Yousuf Chowhan was performed in the year 1963 and she studied up to 10th Class and she had no other avocation except household duties. At the time of her marriage, she was aged about 17 years. After marriage also she continued as housewife and had no job. About 5 or 6 years after her marriage her father by name Mallik Sher Mohd Khan retired from service as Tahsildar. She does not know the municipal Door Nos. of the two houses situated at Razdarkhanpet locality, Hyderabad left by her father. According to her, her father gave her one of the two houses at the time of her marriage. The said house was sold away by her elder brother by name Khursheed Ali Khan in the year 1976. But she did not know to whom it was sold. According to her she has not gone to the Sub Registrar office for registration and to put her signature as the house was not transferred in her name. In the further cross-examination, she stated that her elder brother also sold away the other house in the same year but she do not know to whom it was sold. She has not gone for registration 2nd time also. Both the said houses were sold away by her elder brother during the lifetime of their father in the year 1997. Therefore, D.W.1 is not aware of the house property which was given to her at the time of her marriage by her father. The said property was not transferred in her name by her father and admittedly the said house property was sold by her father during the life time of her brother in the year 1976. Whereas the property was purchased from Ghulam Mohiuddin Chowhan on 6.12.1974 in favour of D.1. Therefore, in the year 1974 she has no source of income as she is only house wife at that time. More over apart from the oral evidence, there is no other evidence to show that her father has gifted the said property to her or her brother after selling the said property has given the sale proceeds to her. Therefore, as on the date of purchase of the property in the name of D.1 in the year 1974, D.1 has no source of income of her own. The contention of D.1 is that her husband was suffering with paralysis and he has no source of income to purchase the property from his father. In that regard, as suggestion was put to P.W.1 in the cross-examination that her husband was suffering with paralysis from 1987 but he has stated that the husband of the 1st defendant suffered with paralysis from 1995 and died on 21.7.1996. Defendant No.1 as D.W.1 has stated in his chief-examination that her husband has under gone kidney operation in the year 1994 and suffering with illness since long time prior to his death and she has further stated that due to illness, her husband even though a registered medical practitioner, was not able to practice seriously and earn sufficiently. In the cross-examination, she has admitted that her deceased husband, his brothers and their father are all sex specialists and they were practicing. She also admitted that while they were practicing as sex specialists they were also giving publicities in daily news paper like Urdu Siasat and other Urdu papers. In support of her contention that her husband suffering with illness, she has got marked Exs.B.22 to B.41 the medical record. But the said documents do not disclose during the year 1974 he was suffering with illness. Admittedly the husband of D.1 was a registered medical practitioner and working as a sex specialists and apart from D.1 his father and other brothers also medical practitioners. As already stated above, the suggestion was put to P.W.1 that her husband was suffering with paralysis from 1984 and the same was denied by P.W.1 and according to him, her husband suffered with paralysis in the year 1995 and died in the year 1996. Therefore, even if his illness is established, it cannot be said that he is not having any source of income as on the date of purchase of the property from his father Ghulam Mohiuddin Chowhan in the name of D.1 on 25.7.1974. As observed above, D.1 has no source of income of her own and she has failed to establish that she has got the sale consideration for purchase of the said property by selling away the house property which was given by her father. Therefore, it cannot be said that the sale consideration for the purchase of the suit schedule property was paid by D.1 herself. As rightly contended by the plaintiff’s counsel that the husband of the D.1 being the medical practitioner as on the date, he has paid the entire consideration for purchasing of the property to his father and got registered the same in favour of D.1. The respondent No.1’s counsel has pleaded that D.1 in possession and enjoyment of the property and paying the municipal tax and water tax and in support of his contention, he got marked Exs.B.4 to B.7 tax receipts, Ex.B.8 demand notice from the Municipality and Exs.B.9 to B.15 demand notices and receipts issued by Metropolitan Water Supply and Sewerage Board, Exs.B.16 to B.23 are the electricity bills and receipts. Admittedly as property was in the name of D.1, the property tax and water charges are to be paid in the name of D.1 only. Since the defendant No.1 has failed to establish the source of her income to pay the sale consideration under the said document, it has to be presumed that the said amounts were paid by D.1’s husband in her name. Thus, the 1st defendant has failed to establish that the suit schedule property was purchased with her own income and it is her absolute property. The next contention of the 1st respondent’s counsel is that the father of the plaintiff is having 11 issues both males and females and the 1st defendant’s husband is 5th issue to his father and except the plaintiff and D.2 other brothers and sisters have expired but their legal heirs are surviving and as such they are proper and necessary parties to the suit. As per Muslim law, only the surviving legal heirs of D.1’s are alone entitled to share the property left by him and legal heirs of the deceased brothers and sisters are not entitled for any share in the property of the deceased. As the plaintiff being brother of the deceased Mohd Younus Chowhan and D.1 being his widow and D.2 being living sister, they alone are entitled for the partition of the said property. Since the plaintiff is being the male member, he is entitled half of the suit property and D.1 and D.2 being female members they are entitled for half share in the remaining half of the property. Thus, the plaintiff is entitled for 6/12th share and D.1 and D.2 are entitled for 3/12 share each as prayed for. The plaintiff has claimed for Rs.1,25,000/- towards the rent collected by D.1 subsequent to the death of her brother till filing of the suit. The 1st defendant has not denied about the same and she admitted that she is collecting rents and enjoying the property after the death of her husband. Since the quantum of rent claimed by the plaintiff is not disputed by the defendants, the plaintiff also entitled for Rs.1,25,000/- towards his share of rent received by D.1. Hence, the plaintiff is entitled for declaration and partition of his 6/12th share and recovery of Rs.1,25,000/- from D.1 and mesne profits as prayed for. Accordingly, all the points are held. In the result, the appeal is allowed. In the circumstances, without costs. Consequently, the suit filed by the plaintiff O.S.No.436 of 1998 on the file of the VII Additional Chief Judge, City Civil Court, Hyderabad is decreed as prayed for. ______________________ B. PRAKASH RAO,J. _____________________ P.DURGA PRASAD,J. Date: 22.03.2011. Gk. HON’BLE SRI JUSTICE B. PRAKASH RAO & HON’BLE SRI JUSTICE P. DURGA PRASAD C.C.C.A. No.122 of 2003 Date: 22.03.2011 Gk.