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Judgment
N. Kumar, J.—This appeal is by the defendants challenging the judgment and decree of the trial Court only in respect of item No. 3 of the A schedule and B schedule properties.
For the sake of convenience the parties are referred to as they are referred to in the original suit.
One Mohammed Khaleel Sab s/o.Yaqub Sab is the husband of plaintiff No. 1 and father of plaintiffs 2 and 3. The defendants are the children of the said Mohammed Khaleel through his first wife Smt.Saffoora Bi. The case of the plaintiffs is that the said Mohammed Khaleel was doing Beedi manufacturing and sales business in B schedule properties under the name and style of Amrut Beedi Works. His business extended to Hindupur, Madakasira and Daramkunta. Out of the income of the said business, he acquired the suit A schedule immovable properties. He died about 10 years back leaving behind his wife, who is the first plaintiff, daughters-plaintiffs 2, 3 and defendants 3, 4 and sons defendants 1 and 2 to succeed to the suit A and B schedule properties as his heirs. After the death of Mohammed Khaleel the first plaintiff alone was managing the suit B schedule Beedi business till defendants 1 and 2 came to age and the first plaintiff is managing the business along with defendants 1 and 2. The motor van shown in item No. 2 of B schedule property has been purchased by plaintiff No. 1 and defendants 1 and 2 for use of Beedi business. The suit A and B schedule properties are in joint possession and enjoyment of the plaintiffs and defendants as co-owners by way of succession to the estate of the deceased.
Defendants 1 and 2 had fallen to bad habits and are causing waste to the suit A and B schedule properties and attempting to exclude the first plaintiff from B schedule business. Hence, the first plaintiff demanded for partition and separate possession of their share. Defendants failed to comply with the said demand. Therefore, the suit for partition and separate possession of their share. In the plaint A schedule properties, four items of house property has been mentioned and in B schedule the beedi business and Bajaj Company motor van ''trax'' are set out.
After service of summons, defendants entered appearance and filed detailed written statement. They disputed the relationship between the first plaintiff and Mohammed Khaleel. They denied that Mohammed Khaleel took the first plaintiff as his second wife. They denied Mohammed Khaleel was carrying on business in the name of Amut Beedi Works. Amrut Beedi Works is owned by Mohammed Saifulla, the younger brother of Mohammed Khaleel. Mohammed Khaleel used to assist Mohammed Saifulla and was acting as Manager only. All the other allegations in the plaint are specifically denied. On the aforesaid pleadings the trial court framed three issues :-
Whether the plaintiffs prove that the 1st plaintiff was the wife and plaintiffs 2 and 3 were the daughters of late Mohammed Khaleel?
If the plaintiffs prove issue No. 1, do they further prove that they are the co-owners of the plaint schedule properties and they are entitled for partition and separate possession of their share in the Suit Schedule Properties? If so to what share?
To what decree or order?
The plaintiff in order to prove her claim, examined herself as PW1 and she examined three witnesses Yasim Khan, Abdul Latif and Mohammed Sanaulla as PWs 2, 3 and 4 produced 14 documents which, are marked as exhibits P1 to P14.
On behalf of the defendants, the first defendant was examined as DW1 and he produced four documents which are marked as exhibits Dl to D4.
The trial Court on appreciation of the oral and documentary evidence on record held that the plaintiffs have proved that the first plaintiff is the wife and plaintiffs 2 and 3 art the daughters of late Mohammed Khaleel. Unfortunately, by a cryptic order saying, on a keen scrutiny of the evidence of PWs 1 to 3 and exhibits P4 to P11 & P13 coupled with labels and photos printed on the beedi labels marked at Ex.P13(a), (b), (e) and (d) and Ex. 14(a) and on the basis of cogent, consistent and corroborative evidence of PWs 1 to 3 and by virtue of the admissions made by the first defendant made during the course of cross examination, there is no difficulty to come to the conclusion that items A and B schedule properties were originally owned by Mohammed Khaleel Sab. That is not the way the trial Court is expected to appreciate the evidence on record. The court below has not set out the oral and documentary evidence in proper perspective and has not described how it shows title in respect of Mohammed Khaleel On the other hand, it decreed the suit of the plaintiff as prayed for.
Aggrieved by the judgment and decree of the trial Court the defendants have preferred this appeal.
The teamed counsel for the appellants fairly submitted that in view of the categorical admissions of DW1 in his cross examination, the fact that the first plaintiff is the second wife and plaintiffs 2 and 3 are children of the first plaintiff born to Mohammed Khaleel is established and therefore, we have to proceed on the basis that Mohammed Khaleel had two wives, defendants are the children of Mohammed Khaleel through first wife, first plaintiff is the second wife and plaintiffs 2 and 3 are the children through the second wife. Further, the learned counsel pointed out during the pendency of this appeal, an application is filed u/o.41 Rule 27 CPC for production of additional documents viz. the certified copy of the sale deed dated 2.12.1976 which shows that item No. 3 of the A schedule property was purchased by the first wife in her name. By yet another application they have also produced income tax returns in the name of the younger brother of Mohammed Khaleel which shows that the beedi business belongs to him and therefore, he submits in the facts and circumstances of this case, the additional evidence requires to be allowed in order to do complete justice between the parties and in view of the same the plaintiffs are not entitled to any share in item No. 3 of ''A'' schedule and ''B'' schedule properties.
Per contra, the learned counsel for the plaintiffs respondents submits that the sale deed was not produced before the trial Court and for the first time it is produced here and it cannot be allowed. At any rate the IT returns of the younger brother of Mohammed Khaleel is of no assistance and that cannot be allowed. He submits that the evidence of DW1 establishes that the beedi business belonged to Mohammed Khaleel and they are carrying on business in item A schedule property and therefore as it is a family business, plaintiffs are entitled to their legitimate share in the family business and therefore, he submits that no case for interference is made out.
In the light of the aforesaid pleadings the points that arises for our consideration are :-
i) Whether a case is made out for allowing the application for additional evidence ?
ii) Whether item No. 3 of the A schedule property belongs to Mohammed Khaleel and as such the plaintiffs are entitled to share ?
iii) Whether the suit A and B schedule properties belongs to Mohammed Khaleel and the plaintiffs are entitled to a share thereon?
Re. Point No. 1 :
The plaintiff has set out in the plaint the description of four items in the A schedule property. In the defence, the plaintiff has not produced any document to show that item No. 3 of the A schedule property belongs to Mohammed Khaleel. As already pointed out, the oral evidence and the admissions made in the cross examination of DW1 establishes that he is the owner of the entire suit property. The said fact is not based on any oral evidence on record. In that context if we look into the certified copy of the sale deed it clearly shows that the property is purchased by the first wife of Mohammed Khaleel. If the said property belongs to her as per the document, certainly no injustice would be done to the children of the first plaintiff. In that view of the matter, the application for production of the sale deed is allowed.
Insofar as the other application for production of IT returns is concerned, it is totally unwarranted in the facts and circumstances of the case. The question is whether the Amrut Beedi works belongs to Mohammed Khaleel in this proceedings and not whether it belongs to his younger brother. Therefore, the said application is rejected.
Insofar as item No. 3 of the A schedule is concerned, it is a house property which is purchased by Safoora Bi under a sale deed dated 2.12.1977 for valuable consideration. Execution of the said document is not disputed. The plaintiff on her part has not produced any document to show that the suit property belonged to Mohammed Khaleel. In these circumstances, item No. 3 also belongs to Mohammed Khaleel is without any basis and therefore, the said findings requires to be set aside and accordingly, it is hereby set aside
Re- Point No. 2 :-
Insofar as Amrut Beedi works is concerned, the case of the plaintiff is that her husband was carrying on the said business and after his death, she is carrying on the business until defendants came to majority, and that after they became majors she was carrying on business along with them and that now, she has been kept out from the said business. But, no documents are produced to show the ownership of the said business with that of Mohammed Kaleem. The defendants have categorically stated that: it is the business of the younger brother of Mohammed Khaleel and Mohammed Kaleem was working as a Manager with his younger brother. Under these circumstances, the burden of proving that Mohammed Khaleel was the proprietor of the said business exclusively was on the plaintiff and she has not proved the same. In view of her stand that after the death of Mohammed Khaleel, she was carrying on the business as defendants were minors, she has to produce documents to show any proprietorship over the said business. Inspite of that, the trial Court has granted decree without looking to the material evidence on record and therefore, the said finding also requires to be set aside.
Insofar as Tempo Trax is concerned, Ex.P1 shows that it was purchased in the name of Saffoora Bee. Therefore, that is not the property belonging to Mohammed Khaleel If the business is not of Mohammed Khaleel, the said Tempo Trax is also not a business asset. At any rate as the plaintiff has failed to prove that the said vehicle belongs to Mohammed Khaleel, she is not entitled to any share. Here again the Trial Court committed a serious error in granting the decree in respect of the said vehicle also.
For the aforesaid reasons, Item No. 3 of the A schedule and B schedule property having not been supported by any documentary evidence, it cannot be held to be the property of Mohammed Khaleel.
To that extent, the appeal succeeds. The appeal is partly allowed. The judgment and decree of the trial court in respect of items 1,2 and 4 of the suit schedule property stand confirmed.
In respect of item 3 of the A schedule property and B schedule property is concerned, it is hereby set aside. Parties to bear their own cost.