KHAMARUNNISSA Vs. FAZAL HUSSAIN

JUDGEMENT

(1.) These two appeals arise out of a common judgment by the learned Additional Chief Judge-cum-II Additional Metropolitan Sessions Judge, Hyderabad in O.S.No. 833 of 1978 and O.S.No. 53 of 1981 dated 29-9-1982. C.C.C.A.No. 28 of 1983 arises out of O.S.No. 833 of 1978 whereas C.C.C.A. No. 40 of 1983 arises out of O.S.No. 53 of 1981. In both the cases, the appellant is common. The two suits are between the close relatives and almost between the same parties. It may be necessary to note the admitted relationship between them. One Safdar Hussain, Meharunnisa Begum @ Bismilla Bai and Badrunnisa Begum @ Badar Bai and Khamarunnisa are the uterine brother and sisters of one Bibijohn. Khamarunnisa and Badrunnisa, the two sisters died issueless without leaving any surviving husband behind them. Meharunnisa died in the year 1967 at Ujjain whereas Badrunnisa Begum died on 30-8-1978 in the Osmania General Hospital Hyderabad. Nayyar Bai and Fazal Hussain @ Afsar Hussain are the children of Meherunnisa. Ghouse Mohiuddin is the son of Khammar Bai. The reference to the parties by name instead of their status in the trial Court would be more convenient having due regard to the fact that the suits are between the same parties practically. The record of other admitted facts also would be useful, which are as under.

(2.) The three sisters belong to the profession of dancing and singing. They were carrying on the profession like others in the area called as Mehboob ka Mehandi, Hyderabad since a long time. Even Naiyer Bai was and has been carrying on the same profession. The deceased person and the contesting parties lived in the same area stated above in different houses. Khamarunnisa and her son lived in House No. 21-6-82 whereas Badar Bai Naiyer Bai and Afsar Hussain lived in House No. 21-6-104. The house of Khamarunnisa is opposite to the house of Naiyer Bai and Afsar Hussain. Badar Bai lived with Naiyer Bai and Afsar Hussain till she was admitted to the Hospital before the death in House No. 21-6-104. Naiyer Bai and Afsar Hussain continued to live in the same house even after the death of Badar Bai. As already pointed out, Badar Bai died in the Osmania General Hospital, Hyderabad on 30-8-1978. It is also relevant to note that Khamarunnisa lived in her own house separate from Badar Bai till she died. Each of them were carrying on their profession of dancing and singing independently.

(3.) The plaint schedule properties are 16 in number. Out of them Item No.1 is the immovable property of house bearing No. 21-6-104 which belonged to Badar Bai whereas Items 2 to 16 are the movable properties comprising gold, silver and diamonds etc., including a pass-book. There were criminal proceedings between the parties wherein Khamarunnisa had filed a complaint to the Police upon which FIR 156/78 in Charminar Police Station was filed and the matter was before the II Metropolitan Magistrate's Court, Hyderabad and in that item Nos. 2 to 16 were seized and kept in the Court custody. An inventory of the movables said to have been belonging to Badar Bai was also conducted in I.A.No. 872 of 1988 through a Commissioner on 21-10-1978. It was conceded that most of them bore the name of Naiyer Bai and in the lower Court Mr. M.N.Ganu, the learned Advocate for Khamarunnisa conceded that his party was not laying any claim over such properties as having belonged to late Badar Bai. In this Court also, the learned advocate of Naiyer Bai and Afsar Hussain do not seriously contest this aspect of the record made by the trial Court. Therefore, the suit properties are meant to be the items 1 to 16 as detailed supra (described in the plaint schedule).