Merely because portion was sold for meeting marriage expenses, she cannot be prevented from claiming share - Brother invested his own funds and by borrowing loan, constructed new building, it would not become his absolute property nor it would prevent sister from claiming share over same.

Citation

AIROnline 2021 Kar 2590

Karnataka High Court

B. VEERAPPA , J. and RAJENDRA BADAMIKAR , J.

RFA - 220 of 2014 D/- 23 - 4 - 2021

MOHAMMED YOUSUFF AND ANR. v. SARAMBI MOHAMMED GHOUSE

A) Muslim Law - Suit filed by sister claiming partition and separate possession - Plea of brother

that her share was sold to meet expenses of her marriage - Merely because portion was sold

for meeting marriage expenses, she cannot be prevented from claiming share over remaining

property - As sale was not only for her marriage expenses, but other family requirements are

also shown as grounds for alienation - When property was sold for purpose of family necessities,

Sister cannot be prevented from claiming share in remaining properties.

 (Para 15) 

(B) Muslim Law - Partition and separate possession - Suit filed by sister - Property was owned by

their father and there was old building in suit Item - Merely because he invested his own funds

and by borrowing loan, constructed new building, it would not become his absolute property

nor it would prevent plaintiff from claiming share over same - No mention that construction

was started by consent of sister - As well as brother had no independent income to make

construction - As he was getting rent of property by letting it on rent, mere development of

same, inconsequential.

 (Para 19) 

(C) Muslim Law - Partition and separate possession - Suit filed by sister - Plea that his late

brother executed Will in his favour by excluding sister - Though Will is registered document, it

was prepared and drafted by brother himself - Late brother intended to bequeath his share for

Nobel cause - Constructing building and letting it on rent castes shadow on genuineness of Will -

Complying with mandatory technical compliances regarding proof of Will alone is not sufficient

to prove execution and legality of Will - Testator proposed to bequeath his entire undivided

share though permitted upto 1/3rd of share - Plea not tenable.

 (Paras 21 , 22 , 23 , 24) 

(D) Muslim Law - Partition and separate possession - Suit filed by sister - Plea that she executed

Release Deed to relinquish her share in favour of brother - Release was neither in respect of

entire suit item not in favour of her brothers but was in favour of purchaser of property and it

was restricted to share of plaintiff in respect of alienated property only - Plea not tenable.

 (Para 25) 

(E) Muslim Law - Partition and separate possession - Suit filed by plaintiff sisters - Suit property

originally owned by father of parties who died without testamentary succession - Hence plaintiff

and defendant being children of original owner are entitled to inherit suit properties as tenants