Naseem Kahnam Vs Zaheda Begum by LR
Naseem Kahnam Vs Zaheda Begum by LR
Naseem Kahnam Vs Zaheda Begum by LR
VERSUS
JUDGMENT
S.V.N. BHATTI, J.
I. FACTUAL MATRIX
1. Respondent Nos. 1 and 2 in Civil Appeal have filed O.S. No. 13/2000
for partition and possession of plaint schedule property. The prayer reads
thus:
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schedule on Eastern side to the 1st plaintiff and for delivery of the
same;”
6.18.7 in East Point Layout, Plot No.10, LIG, T.S. No. 379, Block Nos. 22
3. Late Ghouse Khan S/o late Assudula Khan entered into a lease-cum-
Sale Deed, after completing the agreed obligations, purchased the plaint
18.02.1988, leaving behind Plaintiff No. 1 - his sister and Defendant Nos. 1
property was entered into between the parties to the suit. Defendant No. 2
tenor and text, divides the Plaint Schedule into two half shares, and the
western half share agreed to be allotted to Plaintiff No. 2 and the eastern
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pray for working out allotment of the shares accepted in the agreement
4. The admitted relationship between the parties is set out, and for
Ghouse Khan, together with Plaintiff no.2, who happens to be the niece of
Plaintiff No. 2 and the remaining half share on the eastern side is partitioned
agreement, Plaintiff No. 2 was allowed to reside, and the other half on the
eastern side agreed to be partitioned among the brothers and lone surviving
sister of the late Ghouse Khan at a later point in time. Plaintiff No. 2 claims
to be in possession of the western side house together with the vacant site
on the western side. The plaint averred that the Defendants tried to alienate
the plaint schedule and to protect the share agreed to be given to plaintiffs
through Exhibit-A6 dated 07.02.1992, the plaintiffs issued legal notice dated
06.11.1999 to all the Defendants, and Defendant No. 3 alone sent the reply
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Eenadu Daily on 03.01.2000, asserting their share in the plaint schedule
the estate of the late Ghouse Khan. Plaintiff No. 2 is not in the same line of
succession as the brothers and the surviving sister of the late Ghouse
been executed by the late Ghouse Khan. The will, if is proved or established
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denies the allegation in the plaint that the parties, though governed by the
the execution of the agreement dated 07.02.1992, has set up the plea that
unlawfully gain from Defendant No. 2 who has got exclusive interest
through the will dated 25.02.1985. Plaintiff No. 2, it is alleged, was suffering
portion of the plaint schedule. The permission to occupy was subject to the
authorities. Defendant No. 2 contends the claim for partition in all fours.
The Trial Court, on the above pleadings, framed seven issues and, in the
present consideration, we are of the view that the first two issues are
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7. The Trial Court has considered issue nos. 1 and 2 independently and,
in the final analysis, held issue no.1 in favour of the plaintiffs and issue no.2
against the plaintiffs. The Trial Court, having regard to the views taken on
these two issues, decreed the suit, firstly, by denying any share to Plaintiff
schedule into seven shares and allotting 1/7th share to Plaintiff No. 1 and
2/7th share to each of the Defendants. The gist of consideration and findings
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held that all the five executants of the document resolved to give
the western half portion of the house to the second Plaintiff.
Exhibit A.6 further reserved or postponed the division to a
convenient date. Therefore, the gift cannot be considered
mushaa, and the gift is pure and simple.
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8. Hence, the Plaintiffs were in appeal in A.S. No. 22 of 2007. The High
Court, through the impugned judgment, allowed A.S. No. 22 of 2007 and
agreed between parties under Exhibit-A6. The High Court, inter alia, noted
that:
“(i) Section 24(2) of the Indian Stamps Act specifies that the
settlement, particularly within a family need not be restricted to
the members of the family up to a particular degree but includes
persons outside the purview of succession.
(ii) Any objection as to the admissibility of a document must be
raised before the court takes it on record. Relevancy can be
decided at a later stage, but not admissibility. If the trial takes
place on the assumption that the document is admissible and if,
at the end of the trial, the document is inadmissible, the whole
trial receives a serious setback. The present record does not
disclose that any objection was raised to the admissibility of Ex.
A.6. Therefore, negating that receipt of the settlement deed in
evidence does not amount to admission.
(iii) Second appellant did not have any pre-existing right de hors
Ex. A.6. She has specifically based her claim on that document.
Ex. A.6 did not only have the effect of creating a right in the
second appellant but also of re-defining shares or entitlement of
the first appellant and respondents 1 to 3 vis-a-vis the property
left by Ghouse Khan. A specific issue was framed as to the truth
and validity of the document. Even while denying the relief to the
appellants, the trial Court held the document to be true and valid.
Being a party to the document, the second respondent cannot
extricate himself from the consequences that flow out of it. In the
absence of Ex. A.6, there would not have been any occasion for
the appellants to claim rights, as they did, in relation to the
property. Ex. A.6 has created a legal right in the parties and, in
particular, the second appellant, and she is certainly entitled to
seek partition on the strength of it.”
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Hence, the Civil Appeal at the instance of legal representatives of
Defendant No. 2.
IV. SUBMISSIONS
the demise of late Ghouse Khan, as per the Rules of Succession under
Mohammedan Law, was inherited by three brothers and one sister. During
the deceased, a distant heir, does not have interest, much less an interest
agreement, even in the face of findings by both the Courts viz., Exhibit-A6
entered into among the individuals having a share or right in the plaint
schedule. It is contended that Plaintiff No. 2 cannot and could not claim a
share under an oral gift/Hiba in the plaint schedule as well. The oral
favour of Plaintiff No. 2 and the valuation of the plaint schedule is more than
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payment of stamp duty under the Indian Stamp Act, 1899 would render
that Defendant No. 2 or his heirs allowed the finding on issue no. 1 to
Exhibit-A6.
10. Mr. Tapesh Kumar Singh, Learned Senior Counsel appearing for
Defendant No. 2 averred that Exhibit-A6 is fabricated and had been brought
Khan. Both the objections have been overruled or disbelieved. Once the
Will is not proved, and Exhibit-A6 is believed by both the Trial Court and the
High Court, the arguments now canvassed are unavailable under Article
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18.02.1988, Ghouse Khan died. Assuming that by the Principle of
who is a member of the larger family, going by the common intention and
wisdom of the parties, Exhibit-A6 was brought into existence and western
Exhibit-A6 was enforced by filing the suit, and any objection, as a matter of
decide the correctness of the findings recorded by the High Court. Exhibit
Therefore, the requirement that the executants of the document must have
a subsisting interest is completely beside the point. The brothers and sister,
being the elders of the family, can agree and settle the property in such a
way that would otherwise take place as per Mohammedan law. The
brothers and sister, by the time of execution of Exhibit-A6, are the sharers,
and they can deal with the property the way the sharers agree. The
underlying idea in the execution of Exhibit A6 was to deal with the plant
schedule and have peace in the larger definition of family members. The
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Courts lean in favor of giving effect to arrangements made by the members
of a family, and the impugned judgment spoke the view of the majority
V. ANALYSIS
11. We have perused the record and taken note of the rival contentions.
by pleading and findings of the Courts below. The suit for partition is based
on Exhibit A6. The frame of suit is to enforce the obligations agreed upon
Law, only the brothers and surviving sister would come under the category
of first entitled sharers to the estate of the late Ghouse Khan for he died
sharers or siblings of the late Ghouse Khan have not settled the property
the niece of brothers and sister by blood relation, is one of the parties and
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Executed this 7th day of February 1992 by:
12. The operative portion of the agreement refers to the property being
left behind by the late Ghouse Khan. All the executants treat themselves as
legal heirs of the deceased Ghouse Khan. The next important recital in
the western half portion of the house with the western adjoining vacant site
to the fifth executant, i.e., Ms. Gousia Jasmine D/o late Mallika Khan. The
agreement recites that Plaintiff No. 1 with absolute rights and, for the
present, enjoys the eastern portion of the house along with the adjoining
site surrounding it jointly retained by the first four parties and to divide it,
of a deed, the question is not what the parties to the deed may have
intended to do by entering into that deed, but what is the meaning of the
words used in the deed. The Court can understand the true intent of the
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deed only by the words used in the deed. It does not matter what the parties,
in their most state of mind, thought what the terms meant. They may have
meant different things, but still the terms or the language used in the deed
should bind them. It is for the court to interpret such terms or language used
in the deed.
document, the fundamental rule is to ascertain the intention from the words
only for the purposes of finding out the meaning of the words which have
following para: -
convenience of the parties. We hasten to add that in the peculiar facts and
is entered into to give a right to Plaintiff No. 2 and avoid what would
No. 2 for the reasons noticed by the courts below, viz., that Plaintiff No. 2
Plaintiff No. 2 was in the care of Plaintiff No. 1 for whatever reason and to
approval that the Learned Judge in the impugned judgment has rightly
found the just ground to carry forward the agreement arrived at in Exhibit-
A6 into execution and to give effect to the peace desired by the family
agreed upon by the parties. A few objections available in law and fact, i.e.,
frame of suit, payment of court fee, etc., are not taken by Defendant No. 2.
The contentions, which are bereft of pleadings, are not entertained at this
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sharer, can be a party to an alleged family settlement or not. The question
is how the parties have settled the dispute or shares vis-a-vis the property
left behind by the late Ghouse Khan and have peace in the family. It is not
the case of Defendant No. 2 that the personal law prohibits sharing by
agreement with a distant heir. For the above reasons and discussion, the
circumstances of the case and are distinguishable in more than one sense.
impugned judgment.
viewed from the prospect of Hiba, or a Sale Deed is entirely out of context.
The averments in the plaint are clear that the plaintiffs seek enforcement of
law, would center around whether the agreement is proved and established
between the parties. Defendant No. 2 failed to prove the existence of Will
appeal are peculiar and the decision is confined to the established and
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agreement among the parties is given effect. Precisely, the judgment
impugned has done so. In our jurisdiction, particularly, bearing in mind the
circumstances of the case, we are convinced that no case is made out for
interference.
17. Hence, the Civil Appeal fails and is dismissed. No order as to costs.
.……………………..J.
[ C. T. RAVIKUMAR ]
…..…………………J.
[ S.V.N. BHATTI ]
New Delhi;
July 9, 2024.
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