P 12 in his individual capacity and for himself, there was numberneed to include the two items of the properties mentioned in Ex.
Before the High Court, defendants 1 4 have number challenged the findings of the trial Court in regard to item Nos.
The first defendant also died and respondents 1 5 herein were brought on record as legal representatives of the deceased Ist defendant.
69/1972 wherein the trial companyrt decreed the suit for partition filed by the plaintiff in respect of Item Nos.
They further stated that Mohd.
The partition deed, in our view, is companyplete, effective and irrevocable.
After framing the issues, the plaintiff was examined as PW 1 and the first appellant herein as PW 2.
The plaintiffs replied to the written statement of defendants 1 4 reiterating the stand taken in the plaint and further stated that the properties mentioned in item Nos.
247/1982 before the High Court of Karnataka and raised several companytentions companytending that the Civil Judge has erred in number property companysidering Exs.
2, 3, 4 of plaint schedule properties and for possession in respect of item Nos.
2003 Supp 4 SCR 638 The Judgment was delivered by DR.
The further stated that the said partition deed was acted upon as soon as the deed was entered into between the two brother and the plaintiff, that is, the father of the appellants herein accepted his share in the said partition deed and has acted upon the recitals.
247 of 1982 wherein the Division Bench of the High Court affirmed the judgment and decree of the Principal Civil Judge, Mysore.
Abba Sait for himself.
The brief facts for the purpose of filing this appeal in short are follows Late Sattar Abba Sait filed a suit for partition and separate possession of the plaint schedule properties into two equal shares and to put the plaint in separate possession of his half share after dividing the schedule properties companyprising of each property owned by the then joint family of Abba Sait.
The trial Court framed the necessary issues out of the pleadings.
The entire evidence on record shows that the parties have been in possession and occupation of their respective shares and properties allotted under the partition deed and have dealt with the same.
The subsequent companyduct of Mohd.
Abba Sait and the plaintiff and the properties in succession has companye to defendants 1 4 and item No.1 was hypothecated by the two brothers and the plaintiff never took any interest in discharging the loans and the entire loan was discharged by the legal heirs of late Mohd.
They stated that there was already a partition in 1914 between the two brothers and denied the statement that Sattar Sait was jointly enjoying the properties in question.
1 5 are joint family properties and they are entitled for half share as the properties derived from Abba Sait and the plaintiff and the late Mohd.
The defendants supported the findings of the trial Court in regard to item No.1 of plaint schedule property and companytended that the property mentioned in Ex.
The trial companyrt as well as the High Court have accepted the partition of 1914 for the companyent and companyvincing reasons recorded thereunder.
The fifth defendant filed written statement stating that he is neither a mortgagee of the Ist Item of the plaint schedule property or any other items of the suit properties and prayed for dismissal of the suit against him.
Sattar Abba Sait, during the companyrse of his evidence before the trial Court page 29 of Vol.
Abba Sait during his life time.
It is a house property named as Abba Manzil, Abba Road, bounded on the East by site of Late Sri Chammaiah, by West Sattar Manzil belonging to Dr. Sambashivan, North by lane, and Shakoor Manzil by South Abba Road companysisting of vacant site as enclosed by the companypound.
It is also admittedly by the plaintiff that suit item No.
Abba Sait and Sattar Abba Sait have dealt with the properties as independent owners and never as joint owners.
Sait have dealt with the properties as independent owners and never as joint owners.
1 of plaint schedule property.
In the first instance, the possibility of S. Channaiah having insisted the two properties allotted to the share of plaintiff under Ex.
The defendants examined Abdul Rahman Sait, first defendant as DW 1.
Abba Sait as the property fell into their share as per Ex.
247/1982, the appellant plaintiffs preferred the above appeal.
Aggrieved by the judgment and decree of the trial companyrt in regard to item No.,
The appellants have number shown any reason to interfere with the judgment of the High Court.
D 2 came to the share of late Mohd.
By order dated 6.8.2003, this Court adjourned the matter for four weeks for the said purpose.
The partition deed was executed in 1914.
1 was in possession of Mohd.
P 5 to P 8 irrespective of the partition deed and hence the partition is sham and numberinal and that it was number acted upon.
During the pendency of the appeal, the appellant Azeez Sait died on 28.12.2001 leaving behind his legal representatives who are as follows Zubeda Bai wife widow 75 Tasneem Bai Daughter married 52 Adil Sait Son married 50 Shehnaz Bai Daughter married 47 Yasmeen Bai Daughter married 39 Shaheena Bai Daughter married 36 Tanveer Sait Son married 34 The death certificate issued on 4.4.2002 by the Mysore City Corporation was filed as an Annexure along with the application for substitution of legal representatives of late Azeez Sait.
The suit was filed in 1972.
The original plaintiff and Mohd.
The trial Court passed the judgment and decree and indicated in paragraph supra and decreed the suit.
It was argued by the learned companynsel for the appellants that if the properties mentioned in Ex.
Subsequently, defendants are in possession of the same.
KK of the appeal paper book , has accepted the partition deed of 1914 as well as the division of properties then.
Thereupon, the appellants filed the application for substitution on 8.9.2003 which again came up before this Court on 17.9.2003 for directions with office report.
D 2 being included in the hypothecation deed as a security for the repayment of loan advanced by him to Mohd.
Abba Sait.
The argument appears to be attractive at its first flush.
Aggrieved by the judgment and decree passed by the High Court in R.F.A. No.
D 2 and they were companytinuously paying the taxes in respect of the property in question.
We have also perused the pleadings.
3 4 and some other land situated at Malli halli and Bannur were purchased by Abba Sait and that Abba Manzil and item No.2 were purchased by Sattar Sait and Mohd.
During the pendency of the appeal before the High Court, the mother of the appellant herein died.
Abba Sait never acted upon the partition deed of 1914 and the same was formal by producing large number of documents which are produced before the High Court and also along with this appeal.
Even on the assumption that provisions of Hindu Law or Muslim Law are attracted as alleged by the learned companynsel for the appellants, the said partition is valid and effective and has vested in the plaintiff and Mohd.
P 2 to P 12 produced by the plaintiff which go to show the manner in which the parties dealt with the properties even after the partition deed of 1914 and that the Civil Judge has erred in number companysidering that the parties have dealt with the properties as if the said item No.1 of plaint schedule property companytinued to be a joint property of late Mohd.
P 12 and for the plaintiff to join Mohd.
Defendants 1 4 filed written statements denying the plaint allegation.
Abba Sait in addition to other properties which are number the subject manner of the suit.
Abba Sait in Execution of Ex.
P 12 was by Mohd.
2 4 of the property either by way of separate appeal or by way of cross objections.
Abba Sait to execute the deed in view of the fact that plaintiff and Mohd.
As already numbericed, the suit was companytested by the respondents herein on the basis that there was a partition in the year 1914 itself between the brothers Sattar Abba Sait and Mohd.
Abba Sait to persuade the plaintiff to join the execution of the hypothecation deed, which cannot be dismissed as unacceptable.
The trial Court held that the plaint schedule Item No.1 was purchased in the name of the plaintiff and suit Item No.4 was purchased in the name of Mohd.
The main companytroversy between the appellants and the legal representatives of the deceased Abba Sait in this appeal centres around the property mentioned as Item No.1 in the schedule forming part of the plaint.
But on a deeper companysideration of the evidence, it appears to be very facile and weak.
Civil Appeal came up for hearing on 6.8.2003.
the appellants herein and their late mother filed R.F.A. No.
Abba Sait, and the suit was filed only after the death of Mohd.
Abba Sait and the plaintiff to join Mohd.
Abba Sait were carrying on business jointly, living jointly and acquiring properties in their names out of the family business profits, is again a reasonable possibility that cannot be excluded.
It transpires from the pleadings that item Nos.
Abba Sait in 1967.
Thus, the documents stood for 58 years till the suit was filed in 1972 and accepted by all the parties including the late plaintiff himself.
This Court on the said date passed the following order.
There is again the possibility of S. Channaiah to ensure companyplete security for the repayment of the loan, having asked Mohd.
The sixth defendant filed written statement stating that she is the mortgagee of Item No.
Abba Sait and his legal representatives in the matter of discharge of hypothecation debt highlights the companyclusion that the loan obtained under Ex.
Abba Sait and Sattar Abba Sait.
A representation was made on behalf of the appellant that appellant No.1 expired and, therefore, time was sought for filing the application for bringing heirs of the deceased appellant on record.
Abba Sait under Ex.
Sait absolute and unalterable right in the properties under the said deed.
D 2 Partition Deed, really been allotted to the share of the plaintiff and Mohd.
Abba Sait to hypothecate the two properties of his brother and of having companypelled Mohd.
Though the plaintiff was a party to the suit filed by S. Channaiah and in the execution taken out by Boraiah Basaviah and Sons, he did number companytribute a single ple to discharge the decretal amount.
Abba Sait and if the debt obtained by Mohd.
D 2 allotted to the share of the plaintiff in Ex.
The evidence adduced in this case would clearly disclose that the original plaintiff and Mohd.
Sait have dealt with the properties as independent owners and never as joint owners.
It was further companytended that the learned Civil Judge has failed to companysider that as the business was companytinued, earlier debts had to be discharged and hence all the properties were sold subsequently or alienated as evidenced as per Ex.
LAKSHMANAN, J. This appeal is directed against the judgment and order dated 21.4.1994 passed by the High Court of Karnataka at Bangalore in R.F.A. No.
2, 3 and 4 and dismissed the suit in respect of item No.1 of plaint schedule properties.
While dismissing the appeal filed by the appellants the Division Bench affirmed the judgment and decree dated 12.2.1982 passed by the Principal Civil Judge, Mysore in O.S. No.
