' IRFAN SAADAT KHAN, J.---- Instant revision application as well as second appeal have been filed against the consolidated order passed by the VIth Additional District Judge, Hyderabad, dated 21- 8-2003.
2. Briefly stated the facts as they appear are that the applicant and the Shaukat Hussain were the real sons of late Ameer Ali, who expired in the year 1979. Both these sons were having equal share in the properties left by late Ameer Ali. However, subsequently Shaukat Hussain expired on 3-10-1988 (hereinafter referred as to deceased), leaving behind his legal heirs namely his widow Mst. Farida, daughter Famtima and son Ali Hassan (hereinafter referred as to legal heirs). Late Ameer Ali left behind a double storeyed house bearing Survey No,362 Saddar Hyderabad, measuring 3838 sq. Ft.
After the expiry of the deceased relations between the applicant and the legal heirs got strained and the legal heirs thereafter filed a Suit hearing No,131 of 1993 for declaration, partition, accounts and injunction on 30-3-1993.Against the applicant before the Senior Civil Judge, Hyderabad. It was prayed in the said suit that as the deceased was the only real brother of the applicant hence he was entitled to have equal share in the properties left by his late father as that of applicant. It was also prayed that not only 1/2 share in the property but also 1/2 share in the shop under the name and style "Maqbool Brothers" be also given to them. This case was heard by the said Judge, who vide his order dated 28-4-1998 decreed the suit in favour of the legal heirs in so far as share in the property is concerned, however, so far as the issue of share in business was concerned, the learned Court disallowed the same.
3. Being aggrieved with the order dated 28-4-1998, both the parties i,e, the present applicant as well as the legal heirs filed appeals before the VIth Additional District Judge, Hyderabad, who vide his consolidated order dated 21.8.2003 dismissed both the appeals against which, both the parties have filed the present appeal as well as the revision application.
4. Mr. Kishanchand, Advocate appeared on behalf of the applicant and at the very outset admitted the claim of the legal heirs in respect of Property bearing No,362/1 only, however, the learned counsel vehemently denied any share of the legal heirs in respect of Property bearing No,362/2 and in ,the business "Maqbool Brothers". While elaborating his view point the learned counsel submitted that the claim of the respondents so far as share in Property bearing No,362/2 is concerned, the same is misconceived as this portion of the property had already been gifted by the applicant and the deceased to Mst. Rukhsana, the wife of Maqbool Hussain, hence question of claiming any share in respect of this portion of the property was not justified and the two courts below have erred in allowing the legal heirs' share in respect of this property which according to the learned counsel, had been gifted jointly by the applicant as well as the deceased to the wife of the applicant. As per the learned counsel Mst. Rukhsana had subsequently sold the said property to the interveners through registered documents, hence no share from this portion of property could be given to the legal heirs. According to the learned counsel,. Mst. Farida, wife of the deceased and respondent No,1 in the present revision had herself in the deposition claimed share in Property No,362/1 only, hence she and other legal heirs were legally entitled to have their share as per the Sharia in respect of this portion of property only and the applicant has no objection for the grant of same.
5. Mr, Jhamat Jethanand, appeared on behalf of the respondents Nos.1 to 3 in R.A. No,152 of 2003 and submitted that the Property hearing 362 was owned by the two brothers, which was left by their late father and was transferred in their names on 27-7-1981. Learned counsel further submitted that in the written statement the applicant had admitted that the said respondents are entitled to have share in the entire property hence the stance now taken by the applicant that the legal heirs were entitled for 1/2 share in Property No,362/1 is uncalled for. The learned counsel further submitted that no alleged gift has ever been made by the deceased in favour of Mst.
Rukhsana wife of Maqbool Hussain, which according to him is a false, fabricated and concocted story. The learned counsel further submitted that no gift deed was ever produced before the two authorities below or before this Court to substantiate the claim that the said property was jointly gifted by the two brothers in favour of Mst. Rukhsana. The learned counsel further submitted that onus of proof lies on the person who asserts it. He also submitted that the documents showing entry in the Revenue Record also are fake and bogus, as the same are the result of misrepresentation made by the applicant. The learned counsel further submitted that the judgment passed by the two Courts below are in his favour and it is a well-settled proposition of law that concurrent findings of the authorities below are not to be disturbed until and unless these are found to be perverse. He therefore, prayed that the appeal filed by the applicant may be dismissed.
6. Mr. Jhamat while arguing the appeal, filed by him, bearing IInd Appeal No,12 of 2003, submitted that late father of the two brothers opened a shop under the name and style "Magbool Brothers" and as the name suggests it was for both the brothers and the legal heirs are not only entitled to have 1/2 share in this shop but accounts also. Learned counsel keeps on to argue that if it is admitted for the arguments sake that the partnership between the two brothers dissolved way back in 1972, no such document showing dissolution of the said partnership had ever been produced by the applicant. He therefore, prayed that the order passed by the two Courts below is the result of misreading and non-reading of the pleadings and evidence on record, which may be set aside.
7. Mr. Kishanchand in his reply on the other hand submitted that though the shop initially was handed over to both the brothers for doing the business of hardware but as the deceased was a disabled person and was incapable to run the business their partnership came to an end in 1972 and thereafter the said business had been run exclusively by the applicant. In support of his contention, the learned counsel drew my attention to various income tax documents showing that the business was being carried out as a sole proprietor. He submitted that the two authorities below have given elaborate and exhaustive findings in this regard and the legal heirs have miserably failed to prove with cogent material that the deceased was partner in the said business, he submitted that the appeal filed in this regard may be dismissed.
8. Mr. Raja Naurang has filed an application with the request that he may be allowed to join as intervener in the present suits, as the persons namely Hassan Ali son of Abbas Bhai and Haider Ali son of Abbas Bhai had purchased the Property bearing No,362/2 from Mst. Rukhsana wife of Maqbool Hussain through proper registered documents and are presently occupying the same.
Notice of the said application has been waived by both the counsel representing applicant as well as respondents.
9. Mr. Kishanchand, Advocate has given his no objection for allowing them to join as a party in these proceedings; however, Mr. Jhamat Jethanand has vociferously opposed the said application by stating that firstly no gift deed is available secondly the Revenue Record produced showing Mst.
Rukhsana as owner of the property is fake. Mr. Jhamat further submitted that the interveners filed an application under section 12(2), C.P.C. Before the lower Court which Wes dismissed and no appeal against such order has been filed and lastly that if the interveners have any claim they should take appropriate action against the applicant as no part of the property vested in the deceased could be granted to them. Mr. Jhamat further submitted that the present application filed by the said interveners is mala fide and has been preferred in connivance with the applicant and the same is liable to be dismissed.
10. I have heard all the learned counsel at considerable length and have also perused the record and my findings are as under:-
11. From the pleadings, of the parties the following three questions arise:-
(1) Whether legal heirs of late Shaukat Hussain are entitled to inherit share of their late father? If yes, to what extent?
(2) Whether the legal heirs of the deceased are entitled to inherit share of their late father in the business "Maqbool Brothers"?
(3) Whether the claim lodged by the interveners is maintainable or not?
12. It is an admitted position that the legal heirs of the deceased are entitled to inherit share in the property which has not been denied by the learned counsel for the applicant, but the only question which is to be decided is whether the legal heirs are entitled for their share in respect of whole of the property or to the extent of their share in the Property bearing No,362/1. It would not be out of place to mention that the applicant has admitted that the dispute between him and the legal heirs was with regard to the entire Property bearing No,362 and not in respect of portion of the property 362/1. Perusal of the record also reveals that the applicant has admitted the share of the legal' heirs in the entire property except business. The two authorities below have reached to a joint consensus that the legal heirs are entitled to their share in the entire building. In the present case the alleged gift deed, which was the primary document, has not been produced by the applicant to show that portion of the property had been gifted by the two brothers to Mst. Rukhsana, even before me also this document was not produced. The deposition of the applicant shows contradiction, as at one place he had stated that the legal heirs are entitled to inherit share in respect of the entire building, whereas at another place submitted that they are entitled to have share in property No,362/1 only. It is a trite propositionof law that onus of burden lies on the one who asserts it. In my view through the pleadings and the record the counsel of the applicant has miserably failed to adduce cogent material to show that legal heirs are not entitled to the share in respect of the entire building. Hence in view of the observations made above and in view of the explicit findings recorded by the two Courts below I do not find any merit in the present appeal and the same is hereby dismissed with the observation that the legal heirs are entitled to have 1/2 share in the entire building/property.
13. Apropos the appeal filed by legal heirs is concerned, here also I find myself to be in agreement with the findings of the two authorities below that the record amply proves that business was run exclusively by the applicant and the documents submitted in this regard also fully supports his view. The learned counsel appearing for the legal heirs has failed to produce any document showing the involvement of the deceased in the said business. It is also an admitted position that the deceased was a disabled person and was being benefited from the rent of another shop. The two Courts below have threadbare the issue and no illegality has been pointed out by the learned counsel in the impugned order. Whereas, on the other hand the learned counsel for the applicant has produced enough material to substantiate his claim that the said business was being run exclusively by him and the deceased had no role to play in the said business. From the deposition of the sister of the deceased, whose name also is Farida, it is evident that the business was run exclusively by her brother Maqbool Hussain as a sole proprietor, which remains uncontroverted.
Hence in view of the findings made above and the fact that the learned counsel has failed to adduce a single evidence to prove that the deceased was having any share in the said business, the findings and the decision given by the two Courts below are not found to be suffering from any legal infirmity and this appeal being bereft of any merit is hereby dismissed.
14. Now coming to the last aspect of the case that whether the interveners have any lien over the property, which they claim. The interveners have also claimed that they are in possession of the entire property and are paying taxes of the same and the sale-deed was registered on 10-1-1985.
Suffice to observe that if the basic structure is illegal the whole edifice erected upon it is also illegal, when the learned counsel representing the applicant and interveners have failed to produce either before the lower Courts or before me the gift deed, which in my view, is the primary document, hence the interveners have no locus standi to participate in the present proceedings though they claimed to have purchased the same through valid documents. It is also noted that when the alleged gift was made in the year 1981, how the property was transferred as late as in the year 1989 i,e, after the death of the deceased, also raises serious doubts about the factum of the said gift/transfer. It is also seen that Mst. Rukhsana was never examined to prove the genuineness of the said gift. If the interveners have any claim over the property they should take necessary steps against the applicant, if so advised. If is also seen that when the application of the interveners c was dismissed by the Court below vide order dated 22-3-2010; no appeal was preferred against the said order. Thus the interveners in my view, have failed to substantiate their claim with cadent material to claim their lien over the Property No,362/2, as apparently this seems to be an affair conducted by the interveners with the connivance of the applicant depriving firstly the deceased and thereafter his legal heirs of their due share.
15. For the foregoing reasons, the instant revision application as well as the IInd appeal is dismissed along with the listed applications.
Appeal and . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.