SHRI SHABBAR HAIDAR KHAN Vs. SMT. MUSARAT JEHAN BEGUM
HIGH COURT OF BOMBAY
Shri Shabbar Haidar Khan
Smt. Musarat Jehan Begum
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(1.) Heard Shri D. J. Pangam, learned Counsel appearing for the Appellants, Shri S. G. Desai, learned Senior Counsel alongwith Shri Pavithran A. C., learned Counsel appearing for the Respondents no. 1 and 2(a) and 2(b) Shri Ryan Menezes, learned Counsel appearing for Respondent no. 2(c) and 2(d).
(2.) The above appeal challenges the Judgment and Decree dated 27.07.2009 passed by the learned Civil Judge, Senior Division at Quepem in Special Civil Suit No. 1/1998/A whereby the suit was decreed and it was declared that the Partition Deed dated 12.01.1995 registered on 31.01.1995 with the Sub Registrar at Quepem is null and void and as such directed the cancellation of such registered Deed. The parties shall be referred to in the manner they shall appear in the cause title of the Impugned Judgment.
(3.) Briefly, it is the case of the Plaintiffs that the Plaintiff no. 1 and Defendant no. 1, 3 and 5 are brothers. The parents of the Plaintiff no. 1, namely, Hyder Kassim Khan and Smt. Hazira Khan alias Haziram Bi, Agirambi and Hajira Bi, died on 20.09.1989 and 05.10.1986 respectively leaving behind their heirs and estate. It is further contended that besides Plaintiff no. 1, the Defendant no. 1, 3, 5 and said Haidar Kassam Khan and his wife Smt. Hajira Khan left one daughter Smt. Farida Begum alias Farida Shaikh Fouzi Kadar married to Shaikh Fouzi, both residing at Panaji. It is further contended that by Notarial Deed of Relinquishment dated 24.10.1989 executed before the Ex-Officio Notary of Notarial Office of Ilhas, at Panaji said Farida Begum and her husband relinquished their right of inheritance of the parents of Smt. Farida Begum gratuitously in favour of all other co-heirs under Article 2029 of the Portuguese Civil Code and the Plaintiffs and the Defendants are thus entitled for equal shares of the estate left behind by the parents. It is further contended that the estate left by the parents is jointly held and enjoyed by the Plaintiffs and Defendants and there is no partition of the estate left behind by the parents and the residential house at Cacora bearing no. 369 is occupied by the Plaintiffs and Defendants. It is further contended that the Plaintiff no. 1 is employed at Kuwait since the year 1974 and used to come down to Goa atleast once in a year and whenever he used to come to Goa, he used to live in his parents' house at Cacora. However, due to the inconvenience and as the Plaintiff no. 1 had purchased a flat at Aquem, Margao in the year 1988, the Plaintiff no. 2 used to occupy the said flat in the absence of her husband, the Plaintiff no. 1. It is further contended that as the estate left behind by the parents included the mining concession and due to service in Kuwait, it was not possible for the Plaintiff no. 1 to look after the affairs personally and, as such, the Defendant no. 1 obtained Power of Attorneys from the Plaintiffs. It is further contended that the Power of Attorneys were drafted and brought ready by the Defendant no. 1 and the Plaintiffs were made to sign on such Power of Attorney. It is further the case of the Plaintiffs that the Defendant no. 1 executed the Deed of Partition dated 12.01.1995 whereby they sought to partition the properties left behind by the parents and the Defendant no. 1 pretended to be the attorney of the Plaintiff to execute the said Deed of Partition and the said Deed has been executed without the knowledge or consent of the Plaintiffs and that the Defendant never consulted about the partition of the properties and the Plaintiffs never authorised the Defendant no. 1 to partition the properties or the estate by the said Deed. It is further contended that the Power of Attorney dated 23.12.1989 does not authorise the Defendant no. 1 to sign or execute the said Deed on behalf of the Plaintiffs and the said Deed is fraudulent and is null and void. It is further contented that the Defendants have played forgery against the Plaintiffs by executing the said Deed with sole malafide intention to deprive the Plaintiffs their legitimate share in the estate left behind by the deceased parents. It is further contended that they came to know about the alleged Deed only on 16.06.1995 when the Plaintiff no. 2 as usual went to the house at Cacoda and she was prevented from entering the house as it was contended that she has no right to the house. It is further alleged that the Plaintiff no. 2 lodged a complaint before the Curchorem Police Station and it was brought to light that the Plaintiff no. 1 had surrendered the right to the house as per Agreement dated 10.08.1992 though no such Agreement was executed by the Plaintiff no. 1 or by the Plaintiffs. It is further contended that as the attitude of the Defendant no. 1 was suspicious the Plaintiffs started making inquiries about any such Agreement and on 16.06.1995 the Plaintiff no. 2 found the said Deed in the office of the Sub-Registrar at Quepem which was not disclosed by the Defendant no. 1 even before the police station. It was further contended that no notice of such Deed or allotment of properties was given to the Plaintiffs and immediately thereafter, obtained a certified copy of such documents and addressed a notice dated 29.06.1995 to the Defendants calling upon them to cancel the said Deed being a fraud. It was also contended that the Defendant replied to the said notice by reply dated 02.08.1995 allegedly signed by Defendants no. 1, 3 to 6 denying that the said Deed is a fraud. It was also contended that the said Deed cannot effect the properties left behind by the deceased parents as it is not legal. The Plaintiffs filed Inventory Proceedings in the Court of the Civil Judge, Senior Division at Quepem to ascertain the shares and assets left behind by deceased parents and for allotment as per their shares being Inventory Proceedings No. 50/1995 and in the said proceedings the Defendant no. 1 was appointed as the Administrator being the eldest son. It was contended that the Defendant no. 1 filed an application to drop the proceedings as the property was already partitioned and by order dated 15.04.1997 the Court disposed of the said application of the Defendant no. 1 being premature and fixed the date for the statement of the Administrator. It is further contented that on 06.11.1997 without hearing the Plaintiff and their Advocate, the Court passed an order dropping the Inventory proceedings and against the said order, a review petition was filed which is pending.;
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