A ISMAIL KHAN Vs. LALITHA DEVI

JUDGEMENT

(1.) THE defendants are the appellants. THEre are two appeals arising out of two suits. THE plaintiff in O.S.No.34 of 1985 (A.S.No.161 of 1991) is the wife of the plaintiff in O.S.No.36 of 1985 (A.S No.162 of 1991). THEy are the first respondent in each of the appeals. THE facts are almost identical. THE averments in the plaint are as follows:THE suit property belonged to one Mehaboob Hunnissa, who was in possession and enjoyment of the same till 11.11.1972. She had five sons and one daughter. THE defendants 1 to 8 were the legal heirs of her son Abdullah Khan. (THEy are the appellants 1 to 8 and the LRs of the deceased appellant 1 and 6/defendants 1 and 6 have been brought on record). THE defendants 9 to 13 and 2 other daughters were the legal heirs of another son Saukhatali Khan. (THE appellants 9 to 12 are defendants 9 to 12 and the 13th defendant is the third respondent since she has not chosen to join in the appeal, she has been shown as a respondent). Another son Jaffar Khan died married and issueless prior to 1972. Mehaboob Hunnissa divided the said property into five shares on 11.11.1972. At that time, another son Gaffar Khan had also expired. So Mehaboob Hunnissa divided her property into five shares. She allotted two shares to Abdullah Khan directing him to look after the heirs of Gaffar Khan also one share to Basheed Khan one share to Fathima Kathoon her daughter and one share to Shaukatali Khan. All were parties to and jointly executed Exhibit B-1. Since that date they have been in enjoyment and absolute possession of their shares. THE property subject matter of No. 34 of 1985 was allotted to Bashed Khan. THE property subject matter of O.S. No.34 of 1985 was allotted to Fathima Kathoon. According to the plaintiff, Basheed Khan and Fathima Kathoon rented out to Abdullah Khan their properties on a rental income of Rs.100/-, which he paid until his death. Since the defendants who are his legal representatives failed to pay the rent they made repeated demands. Since there were no document to evidence the tenancy they have started denying the tenancy itself. Since they were separate door numbers for the five portions, tax receipts were issued in the name of Mehaboob Hunnissa. This was also taken advantage of by the defendants. When Basheed Khan and Fathima Kathoon made an attempt to sell the property to the defendants 1 to 8, they were offered a very low and inadequate price. THEreafter, Basheed Khan sold his share to the plaintiff in O.S.No.34 of 1985 and Fathima Kathoon sold her share to the plaintiff in O.S.No.36 of 1985 and the purchasers were given possession of the property. THE defendants denied the plaintiff's title and refused to pay the rent. THErefore, the suit was filed for declaration of title and for possession.

(2.) THE written statement of the defendants is identical in both the suits. According to them, the plaintiff has purchased litigation. It was admitted that the property belonged to Mehaboob Hunnissa. But the husband of Fathima Kathoon procured the settlement deed from her by which the entire property was ostensibly conveyed to Fathima Kathoon. But no possession was given. Mehaboob Hunnissa came to know of this fraud later and revoked the settlement deed on 10.11.1972 by Exhibit B-2 and entered into an arrangement Exhibit B-1 dated 11.11.1972. According to the defendants, Fathima Kathoon had received a sum of Rs. 10,000/- and had given up her right in the property, and Abdullah Khan had been in exclusive possession of the property since 11.11.1972 and any right that Fathima Kathoon had, she had lost. THE case of tenancy it as denied. THE offer of Rs. 10,000/- is consideration for the property was also denied. According to the defendants, it was curious that a person of another religious faith as the plaintiff has come forward to purchase this property, which was occupied by a Muslim family. In spite of the right of the defendants, the plaintiffs had purchased litigation. Most importantly, it was stated that Exhibit B-1 prohibits the sale of the property allotted to the re-spective sharers to any outsider. A right of pre-emption was created and the sale could be effected only between the sharers not to a stranger. THE parties had agreed to these terms which gave a pre-emptive right when all of them signed Exhibit B-1 dated 11.11.1972.

(3.) THE learned senior counsel appearing for the appellants submitted that a proper construction of Exhibit B-1 would clearly show that there was an agreement amongst the parties to sell the property only amongst the fam-ily members and read out the relevant recitals in the documents. THE learned senior counsel submitted that it is relevant to note that the Hiba in favour of Fathima Kathoon was revoked on 10.11.1972 under Exhibit B-2 and the very next day Exhibit B-1 was executed to which Fathima Kathoon was a party. It cannot be denied that she who had obtained a Hiba in her favour would have objected to the revoca-tion of Hiba and therefore, the mother Mehaboob Hunnissa to ensure that there was no friction amongst the family members had taken care to have Exhibit B-1 executed which is in the nature of a family arrangement and all the parties had agreed to the condition viz., that they should not sell the property to anyone than the said sharers. THE learned senior counsel submitted that it is not necessary that parties to a family arrangement should have an ex-isting title and there are judgments to the effect that such family arrangement should be con-sidered widely. THE learned senior counsel submitted that the Trial Court had proceeded on the basis that Exhibit B-1 is a gift deed and for this there is no basis. Neither in the plead-ings nor in their evidence had the parties re-ferred to this document as a gift deed. THE only occasion where there is a reference to it as a gift deed is in the reply statement where the words used are "if it is taken as a gift deed also". But in the evidence and in all other relevant materi-als this parties have referred to this document only as a partition deed and this is how that they have understood it. It is also submitted that the agreement which gives a preemptive right of sale of the shares in the house where the family members are residing, cannot be construed as an absolute restraint on alienation hit by Section 10 of the Transfer of Property Act. THE learned senior counsel referred to the following judgments:(a) Atika Regain v. A.A.M Abdulla (2002) 2 MLJ 4(b) Mohammad Raza v. Mt. Abbas Bandi Bibi AIR 1932 PC 158,(c) P.L.N Paramasivam v. P.K Rarnaswami Gounder (1970) 1 MLJ 592,(d) Govt. of A.P. v. M. Krishnaveni (2006) 7 SCC 365(e) Zoroastrian Co-operative Housing So-ciety Ltd. v. District Registrar, Co-operative Societies (Urban) AIR 2005 SC 2306 : (2005) 5 SCC 632.