1. This appeal is filed by the appellants-defendants No.6 and 8 aggrieved by the judgment and decree dated 15.06.2016 passed in O.S. No.19 of 2003 by the IX Additional Chief Judge, City Civil Court, Hyderabad.

2. The parties are hereinafter referred to as arrayed before the trial Court.

3. The plaintiff filed a suit for partition and separate possession as party-in-person submitting that his father late Dr.Mohd. Quasim Ali was a retired Civil Surgeon, he expired on 28.03.1989. His father was the owner and possessor of properties bearing MCH Nos.13-3-994/1, situated at Malakpet Hyderabad, described as schedule ‘A’ properties and properties bearing MCH No.3-2-739 to 3-2-744, situated at Chappal Bazar, Hyderabad, described as ‘B’ schedule properties in the plaint, leaving behind him, his wife Smt. Tayyaba Begum, the plaintiff and the defendants. Their mother Smt. Tayyaba Begum also passed away on 25.02.1994. During his lifetime, the father of the plaintiff permitted the 2nd defendant to collect the rents from the tenants in respect of ‘B’ schedule properties situated at Chappal Bazar and to hand over the said rents to him. Even after the demise of Dr. Mohd.Quasim Ali, the 2nd defendant was collecting the rents from the tenants in respect of ‘B’ schedule properties. His father deposited enormous amounts in various banks in his name. There were also jewellery, gold and silver ornaments of the mother of the plaintiff. The movable and immovable properties were the Matruka property of late Dr. Mohd. Quasim Ali and the same were in joint possession of all the co-owners or sharers. The plaintiff number of times requested the defendants to effect partition of the above properties and for his legal share in the said properties, but they postponed the matter on one pretext or the other and dragged for a long time, for which the plaintiff filed O.S. No.747 of 1994 which was allotted to IV Senior Judge, City Civil Court, Hyderabad. Later, the said suit was transferred to the I-Senior Civil Judge, City Civil Court, Hyderabad and from there to VII Senior Civil Judge, City Civil Court, Hyderabad. In between the said period, the plaintiff had undergone chest pain on 19.06.2000 and on 31.07.2000 and was admitted in Osmania General Hospital, Hyderabad. The plaintiff later received a notice dated 23.10.2000 from the VII Senior Civil Judge, City Civil Court, Hyderabad to appear in the said court. The plaintiff appeared in the said Court on 08.11.2000 and the matter was posted to 14.11.2000 and subsequently to 27.112000. The plaintiff could not stand or bear to stand in the said health condition. He filed a memo of withdrawal in the said suit and the said suit was withdrawn. Once again, on 21.08.2002, the plaintiff had undergone chest pain due to harassment caused by defendants No.1 to 9 in failing to partition the properties. Having no other source left, the plaintiff filed the suit for partition for his legal share by giving a notice in Newspaper on 31.10.2002. The plaintiff further submitted that they belonged to Hanafi sect and the shares should be divided as per Muslim Law. He along with defendants No.2, 4, 5, 6 and 8 were entitled to get 1/8th share in the suit schedule properties and defendants No.1, 3, 7 and 9 were entitled to get 1/16th share in the suit schedule properties.

4. The 1st defendant filed written statement admitting the relationship and that the properties were undivided. She stated that she was the eldest in the family, got married and was residing at Aurangabad, Maharastra State and was entitled for a share in the suit schedule properties. She further submitted that she executed a General Power of Attorney (GPA) in favour of the 6th defendant, but got the same cancelled. It was just and necessary to share the properties among the plaintiff and other defendants, who were legally entitled as per Muslim Personal Law in both A and B schedule properties and stated that all the male members were entitled to 1/8th share and the female members were entitled to half of the male share holders in both the properties and requested to effect the partition of all the shareholders.

5. Defendant No.6 filed written statement which was also adopted by defendant No.8. Defendant No.6 submitted that their parents before leaving for Macca for pilgrimage settled all the immovable properties to their children and executed a document dated 21.09.1978. According to that document, the property at Chappal Bazar i.e. property bearing No.3-2- 739 to 744 was given to Mumtaz Shahid Ali (D2); Mohd. Sadat Ali (D5) and Mohd. Murtuza Ali (plaintiff) and the property at Malakpet i.e. property bearing No.16-3-994/1 was given to Mohd. Iqbal Ali (D4), Mohd. Mujtaba Ali (D6) and Mohd. Shabbir Ali (D8). The plaintiff along with D2 and D5 was given house bearing No.3-2-739 to 744, as such, he had no share, right or title in property bearing No.16-3-994/1, situated at Malakpet. Their deceased parents took the signatures of defendant Nos.3, 4, 5, 6, 8 and 9 on the document dated 21.09.1978 in token of acceptance. The execution of the said document dated 21.09.1978 was admitted by Defendant Nos.1, 4, 5, 6, 8 and 9 in family settlement deed dated 04.12.1994, signed in the chambers of Mr.M.A. Qureshi, Advocate. The execution of the said document dated 21.09.1978 was also admitted by defendant No.9 Masroor Tayyaba in the GPA document dated 08.03.1994 executed by her in favour of defendant No.6. In view of the said settlement by their parents and admission by the parties as stated above, the plaintiff had no right in Malakpet property. In the earlier case i.e. O.S. No.747 of 1994 filed for partition by the plaintiff, the same properties were subject matter of decision. When the case was at the stage of final arguments, after the evidence of both the parties was adduced, having found that the case would be decided against the plaintiff, the plaintiff filed a memo withdrawing the suit as not pressed. As such, the suit was dismissed as not pressed. No permission was asked by the plaintiff nor given by the Court to withdraw the suit allowing the plaintiff to file a fresh suit on the same cause of action and for the same relief. The said decision would operate as res judicata and was a bar for the tenability of the present suit. The plaintiff and the other two defendants to whom the Kachiguda property was allotted, were collecting the rents. On closure of the earlier suit O.S. No.747 of 1994, the plaintiff filed a cheque petition in that case and withdrew all the amount of rents about Rs.1,00,000/- from the court pertaining to Kachiguda property collected from the tenants by the receiver and deposited in the court. It would act as an estoppel on the plaintiff that he considered himself as owner of Kachiguda house by taking the amount. As the plaintiff was taking a contrary plea, the plaintiff be directed to deposit back the amount in the court. It would operate as estoppel by deed. The plaintiff could not be permitted under law to blow hot and cold at the same time. The amount that was deposited by their late father was withdrawn by their deceased mother. There was no property left whether immovable or movable for partition. He denied that no court notice dated 23.10.2017 was issued and denied that the plaintiff was admitted in the hospital. He contended that the documents filed by the plaintiff from the hospital were managed and concocted. The plaintiff was hale and healthy and he was appearing in the case till the last date of hearing. The memo of withdrawal did not contain the words “leaving the matter of partition open”. The gift settlement was made by their deceased parents during their lifetime as such nothing was left for partition by the heirs. As the earlier suit filed for partition was dismissed, the present suit was not tenable and prayed to dismiss the suit.

6. Defendant No.5 filed written statement submitting that their late father Dr. Mohd. Quasim Ali was the absolute owner of three properties i.e. (1) House bearing MCH No.16.3-994/1, admeasuring 800 sq.yds., situated at Malakpet, Hyderabad; (2) House bearing MCH No.3-2-739 to 744 admeasuring approximately 700 sq. yds., situated at Kachiguda Hyderabad and (3) Plot of land bearing No.16-3-994/1 admeasuring 173 sq. yds., situated at Malakpet, Hyderabad. Their parents died intestate leaving behind them no Will. His father had not conveyed or transferred the said properties by way of oral/written gift in favour of any person during his lifetime nor executed any document transferring the said properties in favour of the plaintiff/defendants or anyone except the property bearing MCH No.16-3-994/1 admeasuring 173 sq.yds., situated at Malakpet, Hyderabad which was gifted to him through a registered gift deed. Except the property which was gifted to him, the other properties situated at Malakpet and Kachiguda remained as Matruka properties and the same were still undivided and liable to be partitioned between the parties to the suit. He was entitled to claim a share in respect of the said properties as one of the legal heirs. He denied that A schedule property was transferred in favour of the defendant Nos.6 and 8 by way of Settlement Deed or through any instrument and denied that document dated 21.09.1978 bore his signature in token of acceptance. He denied that the validity, legality and execution of the document dated 21.09.1978 was admitted by defendant Nos.1, 4, 5, 6, 8 and 9 in family settlement deed, dated 04.12.1994, which was alleged to be drafted and signed in the chambers of Sri M.A. Qureshi, Advocate. He contended that no such family settlement took place at any point of time. Such a plea was taken by the defendant Nos.6 and 8 with a malafide intention with an oblique motive to usurp the properties of their parents and to deprive the legal heirs of their legitimate shares. He contended that under the provisions of Transfer of Property Act, every transfer of immovable property worth more than Rs.100/- should be transferred only through a registered instrument and in the absence of a registered instrument, if any, such transfer was effected, it was absolutely illegal and the same could not be legalized by any party by admission. He contended that the defendant Nos.6 and 8 colluded with each other and setup a false story of settlement deed in their favour alleging that such deed was executed by their parents while leaving India to perform Haj pilgrimage. The properties of their father were not at all divided till date and prayed to decree the suit.

7. Defendant No.9 filed written statement in a similar manner as that of defendant No.1. She also contended that A and B schedule properties were Matruka properties left by their father and that the suit properties were not yet partitioned till date and the same were liable to be partitioned among the parties to the suit. She stated that to defend the suit in O.S. No.747 of 1994 filed by the plaintiff on the file of IV Additional Judge, City Civil Court, Hyderabad, she executed a GPA in favour of defendant No.6 in good faith that he would safeguard her rights and interest in the plaint schedule properties. But, the defendant No.6 acted against her interest and filed a collusive written statement and played fraud upon her. Having come to know about the fraud played by defendant No.6, she got cancelled the GPA. She also deposed in the said suit. Thereafter, the suit was transferred to VII Senior Civil Judge. Her counsel never informed about the developments of the said suit. Later she was informed that O.S. No.747 of 1994 was withdrawn by the plaintiff, but the fact remained that the plaint schedule properties were Matruka properties and the same were liable to be partitioned among all the legal heirs and she was entitled for 1/16th share in the plaint schedule properties and prayed to decree the suit by allotting 1/16th share to her.

8. Basing on the said pleadings, the trial Court framed the following issues:

"1. Whether the parents of the plaintiff and the defendants settled all the immovable properties of their children under a document dated 21.09.1978 and it was acted upon

2. Whether the suit is barred under Order II Rule 2 CPC in view of the withdrawal of O.S.No.747 of 1994 filed by the plaintiff without leave to file a fresh suit

3. Whether the plaintiff is entitled for 1/8th share in the plaint ‘A’ and ‘B’ schedule properties

4. To what relief"

9. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A39. The defendant No.5 was examined as DW.1 and defendant No.6 was examined as DW.2 and a third party to the suit, by name, Syed Habeebuddin was examined as DW.3 to prove the execution of the document Hiba/Gift dated 21.09.1978. Exs.B1 to B21 were marked on behalf of the defendants.

10. On considering the oral and documentary evidence on record, the learned IX Additional Chief Judge, City Civil Court, Hyderabad, answered all the issues in favour of the plaintiff as against the defendants No.6 and 8 and passed a preliminary decree granting 1/8th share each to the plaintiff, D2, D4, D5, D6 and D8 and 1/16th share each to D1, D3, D7 and D9 in ‘A’ and ‘B’ schedule properties.

11. Aggrieved by the same, defendant Nos.6 and 8 (appellants herein) preferred this appeal contending that the learned Judge had not properly considered the documents marked by them as exhibits to prove their case resulting in miscarriage of justice. The learned Judge erred by relying on the written document (marked as Ex.B6) dated 21.09.1978 instead of relying on the oral Hiba made on 19.09.1978. The learned Judge should have recognized that the rights of parties were governed by oral Hiba and not by written document dated 21.09.1978 and failed to apply the binding precedent of the Hon’ble Apex Court in Hafeeza Bibi and Ors. v. Shaikh Farid (dead) per LRs and Ors.AIR 2011 SC 1695 [LQ/SC/2011/669] , which is considered as an authority on this area of law. The learned Judge placed too much emphasis on minor irregularities in the document dated 21.09.1978 such as absence of property numbers and boundaries in that document. As long as the three requirements of a valid Hiba i.e. declaration, acceptance and delivery were satisfied, the minor irregularities had no effect on the validity of oral Hiba. Since the donor did not possess any other properties in the said localities of Malakpet and Chappal Bazar in Hyderabad except the suit schedule properties, there could be no doubt that the properties given under the oral Hiba and subsequently referred to in the written document were schedule A and B of the suit properties. The learned Judge failed to recognize that the oral Hiba which was recorded in writing need not be registered. Declaring the oral Hiba as invalid on account of its non- registration was contrary to the law laid down by the Hon’ble Apex Court in Hafeeza Bibi’s case (1 supra). The learned Judge misdirected himself by placing too much emphasis on the nomenclature adopted by the parties in referring to the oral Hiba. Admittedly, the parties referred the Hiba by different terms including will, settlement and Hiba. Legally, the validity of Hiba was determined by the intention of parties, in particular, the intention of the donor. The donor’s intention clearly was to give by way of oral Hiba, the schedule A and B properties to his six sons. The donees’ inconsistent interpretation or their use of different terminology did not negate the basic intention. The learned Judge placed heavy reliance on the fact that the donor had, on a separate occasion, executed another registered gift deed. The same was irrelevant to the validity of the oral Hiba. The validity or otherwise of the Hiba must be on its own terms. It was open to the donor to make a gift in any legally permissible form. The fact that he chose to register a deed on one occasion surely did not fetter his discretion to make an unregistered oral Hiba on another.

11.1 The appellants further contended that the oral Hiba was acted upon and the parties were residing in their respective schedule properties. The respondent No.6 and the appellant No.1 swapped their properties. Upon the request and insistence of the respondent No.6, the registered gift deed was executed by their father in favour of respondent No.6 as the latter had assured that it was merely intended to be clarificatory in nature. All the donees assented to the swap between appellant No.1 and respondent No.6. Such understanding was later fructified in the family settlement deed dated 04.12.1994 which was signed by six siblings. The existence of the registered gift deed, therefore, did not negate the validity of the oral Hiba. The learned Judge erred in correctly applying the ‘abuse of process’ doctrine. Although, admittedly, the principle of res judicata was inapplicable in relation to the present claim, the common law principle of ‘abuse of process’ would preclude parties from re-litigating the same cause of action repeatedly unless there had been a radical change in circumstances. The present matter had been litigated on three prior occasions, vide O.S. No.1763 of 1990, which was latter re-numbered as O.S. No.810 of 1996, O.S. No.747 of 1994 (both these suits were clubbed together) and in O.S No.19 of 2003. The two earlier suits were withdrawn as dismissed. There were, however, extensive arguments and leading of evidence in the said two suits before they were withdrawn. Challenge to the Hiba was not effectively adjudicated upon. Finally, in O.S. No.19 of 2003, there was adjudication on the contentions made therein.

11.2 The appellants further contended that the learned Judge erred in reaching the conclusion that Hiba was not acted upon. In fact, the oral Hiba was indeed fully acted upon. All the daughters were given all the movable assets including gold jewellery etc., of the parents while the immovable properties were given to the sons. In confirmation of the oral Hiba, the sons and daughters signed on the written document at different stages. The daughters received movable assets including gold jewellery etc., under the oral Hiba, while the sons occupied their respective portions of immovable properties. The court below ought to have considered that the appellant No.2 had constructed first floor in schedule A property situated in Malakpet in the year 1986 to the knowledge of all the siblings and during the lifetime of their father. It was a clear evidence that oral Hiba was acted upon. These facts though pleaded and supportive documents were filed, they were not taken into consideration by the learned trial Court.

11.3 The learned Judge placed undue reliance on the Fatwa issued by Darrul Ifta Jamia Nizamia, dated 30.05.1998. It was well settled proposition in Indian jurisprudence that Fatwa was merely an opinion of an expert. It was not binding on anyone including the person who had asked for it. Further, such an adjudication of Fatwa did not have the force of law. In 2014, the Hon’ble Apex Court, particularly prohibited three institutions i.e. Dar-ul-Qaza, Dar-ul-Iftaa and Nizam-e-Qaza from enforcing their Fatwa orders using coercion against any person. The appellants further contended that the learned Judge, therefore, should have been particularly circumspect in relying on a Fatwa issued by the Darul Ifta organization and prayed to allow the appeal.

12. The respondent No.2 died during the pendency of appeal and her Legal Representatives were impleaded as respondent Nos.9 to 15.

13. Heard Sri Mir Wajid Ali Kamil, learned counsel for the appellants, Sri Mohammed Murtaza Ali – respondent No.1 party-in-person and Sri Mohammed Adnan, learned counsel for respondent Nos.6, 10 to 13 and Sri J. Ch. Y. Narsimham, learned counsel for respondent No.5. There is no representation for respondent Nos.3, 4, 7, 8, 9, 14 and 15.

14. Now, the points for determination in this appeal are:

"1) Whether there is any oral Hiba as contended by the appellants on 19.09.1978 and whether the same was acted upon

2) Whether a second suit for partition is maintainable in view of the withdrawal of the earlier suit for the same relief without seeking any leave from the Court

3) Whether the judgment of the trial Court in decreeing the suit awarding a preliminary decree in respect of plaint A and B schedule properties is in accordance with law or liable to be set aside"

15. POINT No.1:

As seen from the pleadings, the relationship between the parties is not in dispute. The ownership of Dr. Mohd. Quasim Ali over the plaint A and B schedule properties was also not in dispute. It was also not disputed that Dr. Mohd. Quasim Ali died on 28.03.1989 leaving behind him his wife Mrs.Tayabba Begum, six sons and four daughters and Mrs. Tayyaba Begum also died on 25.02.1994. The plaintiff, defendant Nos.2, 4 to 6 and 8 were his sons and the defendant Nos.1, 3, 7 and 9 are his daughters. The only dispute between the parties was that plaint A and B schedule properties are Matruka properties as per the plaintiff and the defendant Nos.1 to 5, 7 and 9, and these properties were gifted by their parents before they left to Macca pilgrimage in the month of September, 1978 as per defendant Nos.6 and 8. Thus, defendant Nos.1 to 5, 7 and 9 are also sailing with the plaintiff. Hence, the dispute is only between the plaintiff, defendant Nos.1 to 5, 7 and 9 on one side and defendant Nos.6 and 8 on the other side.

15.1. It was also an admitted fact that the plaintiff filed a suit for partition, vide O.S. No.747 of 1994 earlier and withdrew the same and filed the present suit. He also filed O.S. No.1763 of 1990 seeking the relief of permanent injunction restraining his siblings from interfering and dispossessing him from Schedule A Malakpet property and a temporary injunction was granted in his favour vide I.A. No.417 of 1990 and the said suit was re-numbered as O.S. No.810 of 1996 on its transfer to the IV Additional Judge, City Civil Court, Hyderabad. Both the suits i.e. O.S. No.747 of 1994 and O.S No.810 of 1996 were clubbed together. Written statements were filed by the parties and evidence was also adduced in O.S. No.747 of 1994. Both the suits were dismissed as withdrawn by the court of VII Senior Civil Judge, City Civil Court, Hyderabad as per the application filed by the plaintiff on 27.11.2000.

16. As per the written statement filed by defendant No.6, their parents executed a document dated 21.09.1978 and settled the property at Chappal Bazar i.e. house bearing No.3-2-739 to 744 to defendant Nos.2, 5 and the plaintiff, and settled the property at Malakpet bearing No.16-3- 994/1 to defendant Nos.4, 6 and 8. He had not given any nomenclature to the said document as a ‘will’ or ‘Hiba’, but contended at one place in paragraph-10 of his written statement, the said document as a ‘gift settlement’. The defendant No.6 was examined as DW.2. He stated in his evidence that the document was a Hiba.

16.1. It was the contention of the plaintiff that defendant No.6 referred the document dated 21.09.1978 (marked as Ex.B6 in O.S. No.19 of 2003) as a ‘will’ in O.S. No.747 of 1994. The defendant No.6 also filed the GPA dated 08.03.1994 executed by defendant No.1 in his favour, marked as Ex.B3 and the GPA dated 14.06.1994 executed by the defendant No.9 in his favour, marked as Ex.B4. Both these documents are similar in verbatim and it was mentioned therein that their father left a ‘will’ in respect of the said properties and the will of their father was to be acted upon. These GPAs were revoked by defendant Nos.1 and 9 subsequently stating that a fraud was played upon them by defendant No.6. Thus, the defendants referred the document dated 21.09.1978 as a ‘will’ in some places and as a ‘Hiba’ in some other places. The appellants also admitted in the grounds of appeal that the said document is referred as will, settlement and Hiba by the parties at various places.

16.2. The written statements filed by the defendants would not disclose about any oral Hiba on 19.09.1978 as contended by the appellants – defendant Nos.6 and 8 in the appeal. It was for the first time stated by them while explaining the facts of the case in their appeal, that there was an oral Hiba made by their parents on 19.09.1978, which was reduced into writing on the request of Dr. Mohd. Iqbal Ali (respondent No.5 - D4). They contended for the first time in the appeal that:

“an oral Hiba was made on 19.09.1978 by Dr. Mohd. Quasim Ali in the presence of all the siblings and the Schedule ‘A’ property situated at Malakpet, Hyderabad was given to three of his sons i.e. appellants 1, 2 and respondent No.5 herein while the Schedule B property situated at Kachiguda was given to his other three sons being respondents No.1, 3 and 6 herein to be shared/divided by the respective group of donees equally. It was further submitted that Dr. Mohd. Qausim Ali and his wife Mrs. Tayabba Begum gave to their daughters – respondent Nos.2, 4 7 and 8 herein all the gold, silver and other valuable movable assets possessed by them by way of oral Hiba, and they readily accepted. The six sons were given possession physically and / or constructive of the house properties given to them and they readily accepted. The respondent No.5 requested their father Dr. Mohd. Quasim Ali to put into writing the oral Hiba so as to avoid any confusion and conflict in future. Yielding to the said request, Dr. Mohd. Quasim Ali wrote the oral Hiba on paper on 21.09.1978. The contents of the written document espoused the same intention as the oral Hiba and also contained a request from the father to the gift- holders, to allocate rents from the schedule B property to the parents until they were alive so as to facilitate some means of income for them in their old age.”

16.3. The document dated 21.09.1978 was marked as Ex.B6. The original of the said document is written in Urdu and its English translation was also filed. The said document reads as under:

“We both Mrs. and Mr. Qasim Ali are proceeding to Haj Pilgrimage on 23.09.1978. Before we go on voyage, it is expedient that I should write the names of my heirs so that after me these persons should act on this decision accepted by all.

Names of the Heirs:-

Dr. Mohd. Mumtaz Shahid Ali Dr. Mohd. Iqbal Ali

Mohd. Sadath Ali Mohd. Mujtaba Ali Mohd. Shabbir Ali Mohd. Murtuza Ali

I have houses at two places, one at Chappal Bazar and the other in the locality of printing press. Hence the following arrangement is made.

For Houses at Chappal Bazar:-

Dr. Mohd. Mumtaz Sahid Ali Saheb Mohd. Sadath Ali Saheb

Mohd. Murtuza Ali Saheb

Division of these houses should be among these three. For houses at Printing Press:-

Dr. Mohd. Iqbal Ali Mohd. Mujtaba Ali Mohd. Shabbir Ali

These houses are divided among these three children."

Hereafter this is to be considered an act decided. If we happen to come back safely, we will utilize the rent of these properties till the end of our life. All should sign on this decision in token of acceptance.”

16.4. The said document was signed by Mohd. Qasim Ali and Mrs. Dr. Mohd. Qasim Ali on 21.09.1978. Both of them signed in Urdu. The said document was also signed by Dr. Iqbal Ali, Sadath Ali, Mujtaba Ali and Shabbir Ali on 21.09.1978. It was also signed by T. Talath (defendant No.3) and Masroor Tayaba (defendant No.9) as witnesses on the same date. The said document was not signed by the plaintiff and defendant Nos.1, 2 and 7. This document also would not disclose about any oral Hiba made on 19.09.1978 as contended by the appellants.

16.5. The contention of the learned counsel for the appellants- defendant Nos.6 and 8 was that the nomenclature of the document was not important but it was the intention of the executant of the document which was material to consider whether it was Hiba or a Will (Wasiyyat). A bare perusal of the contents of Ex.B6 would disclose that it was executed by both the parents Dr. Mohd. Qasim Ali and his wife, though admittedly, only Dr. Mohd. Qasim Ali was the owner of the ‘A’ and ‘B’ Schedule properties. The wording of the document that “after me, my heirs should act on this decision” would show that the executant wanted to execute it as a ‘Will’ and that the document should come into effect after his lifetime.

16.6. The Will is a legal declaration of the person intending to distribute his property. The Will should be signed by the attestor with the date and the details of the beneficiaries. A Will under Muslim Law is called a Wasiyyat and there is a strict rule imposed on making a Will. A person is prohibited from making a Will for his entire property and a Muslim can make a Will for only 1/3rd of his total property. The said rule was imposed to honour the word of Prophet Mohammed. But, this document would disclose that the entire property which was in the name of Dr. Mohd. Quasim Ali was settled to his sons by way of the said document. It would not disclose that it was made only for 2/3rd of his property leaving 1/3rd of his property. The signatures of the beneficiaries need not be obtained. But, however, some of the beneficiaries signed on it. The absence of signatures of some children would give rise to a suspicion whether it was prepared in the presence of all the children as contended by the appellants. No explanation was given for the absence of signatures of plaintiff and D2 on it. Though the appellants contended that all the gold, silver and other valuable movable assets were given to the daughters by Dr. Mohd. Quasim Ali and his wife at that time, the document marked as Ex.B6 would not disclose giving of any movable assets gold and silver to their daughters.

16.7. The document marked as Ex.B6 also would disclose that two of the daughters signed as witnesses to the said document. But none of these daughters were examined as a witness in the above case. The daughters-defendant Nos.1 and 9 in their written statement had not admitted the genuinity of the said document nor that they had signed as witnesses. If the document marked under Ex.B6 is considered as a ‘will’, it is necessary to examine atleast one of the attestors signed as a witness to prove its execution as per Section 68 of the Indian Evidence Act.

16.8. The defendant Nos.6 and 8 got examined a witness as DW.3. But, he had not signed on the above document nor the said document was confronted to him. Hence, his evidence is no way useful to prove its genuinity.

16.9. When the said document marked as Ex.B6 was contended as a forged and fabricated document by the plaintiff as well as defendant No.5 examined as DW.1, who denied his signature on it as against the contention of the appellants herein, the appellants failed to send the said document to the Forensic Science Laboratory to prove the signatures of defendants who denied the same. As it was the defendants 6 and 8 who produced the said document and asking the Court to place reliance on it to prove that the property was divided as per the said document, marked under Ex.B6 and its validity was challenged by others, the burden lies upon them to prove its genuinity and they failed to prove the same.

16.10. The said document had not been brought to light for a number of years and it came into focus only when the plaintiff demanded for partition. No explanation was given whether the plaintiff, D2 and D7 were present at the time of the execution of the said document and why they had not signed on it. The signatures of the plaintiff and defendant Nos.2 and 7 being absent on the said document, and the daughters alleged to have signed on the said document denied its genuinity and one of the defendants i.e. defendant No.5, examined as DW.1, also denied its genuinity and the said document was not even confronted to him, would raise a suspicion about its authenticity.

17. The essentials of a valid Hiba for an immovable property are: declaration by the donor, acceptance by the donee and transfer of possession from the donor to the donee. As stated by the Hon’ble Apex Court in P. Kunheema Umma v. P. Ayissa Umma AIR 1981 Ker 176, [LQ/KerHC/1981/46] the transfer of property by way of gift is immediate and it should be an unconditional transfer. The donor can make his declaration in clear terms either orally or in writing. In Ilahi Samsuddin v Jaitunbi Maqbul 1994 SCC (5) 476 the Hon’ble Apex Court held that under Muslim Law a declaration made by the donor can be oral irrespective of the nature of the property. The Hiba nama need not be on the stamp paper and was not compulsory to be registered. But for the valid gift, it must be accepted by the donee and if there are more than one or two donees, then it must be accepted by all the donees separately. It was a bilateral transaction i.e. the donor makes the transfer and it must be accepted by the donee. The requisites of a gift mentioned under Section 123 of the Transfer of Property Act, 1882 are not applicable in case of Hiba. In Hiba, the transfer would be complete only when the possession is transferred from donor to the donee.

17.1. The learned counsel for the appellants relied upon the judgement of the Hon’ble Apex Court in Hafeeza Bibi’s case (1 supra), wherein it was held that:

“28. Mulla, Principles of Mohammedan Law (19th Edition), Page 120, states the legal position in the following words:

"Under the Mohammedan law the three essential requisites to make a gift valid :

(1) declaration of the gift by the donor: (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mohammedan law from the purview of Section 123 of T.P. Act, which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mohammedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."

29. In our opinion, merely because the gift is reduced to writing by a Mohammedan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammedan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammedan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammedan Law.

31. Section 129 of T.P. Act preserves the rule of Mohammedan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammedan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mohammedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.”

17.2. Thus, if the document is considered as a gift, there must be acceptance of the gift by the donee and delivery of possession also, which are the other major essentials of a valid gift. But, in the present case, the document was not signed by the plaintiff and defendant Nos. 1, 2 and 7 to show that they had accepted the gift gifted by the donor (their father). Even if it is considered as an oral gift, it should be valid by delivery of possession. The delivery of possession can be either actual or constructive. When the appellants-defendant Nos.6 and 8 were contending that the gift was acted upon and all the donees were in possession of their respective shares of the properties, they failed to show that mutation was effected in the names of all the respective shareholders and the tenants who were residing in Chappal Bazar, Kachiguda property were handing over the rents only to defendant Nos.2, 5 and the plaintiff in exclusion to the other shareholders.

17.3. Learned counsel for respondent Nos.6, 10 to 13 relied upon the judgment of the Hon’ble Apex Court in Jamila Begum (dead) per L.Rs. v. Shami Mohd. (dead) Thr. L.Rs. and another4 with regard to the contention of oral gift. The Hon’ble Apex Court held that:

“21. Under the Mohammedan law, no doubt, making oral gift is permissible. The conditions for making valid oral gift under the Mohammedan law are:- (i) there should be wish or intention on the part of the donor to gift; (ii) acceptance by the donee; and (iii) taking possession of the subject matter of the gift by the donee. The essentials of a valid and complete gift under Mohammedan law have been succinctly laid down in Abdul Rahim and Others v. Sk. Abdul Zabar and Others (2009) 6 SCC 160 [LQ/SC/2009/548] as under:-

“13. The conditions to make a valid and complete gift under the Mohammadan law are as under:

(a) The donor should be sane and major and must be the owner of the property which he is gifting.

(b) The thing gifted should be in existence at the time of hiba.

(c) If the thing gifted is divisible, it should be separated and made distinct.

(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.

(e) The thing gifted should not be accompanied by things not gifted i.e. should be free from things which have not been gifted.

4 Civil Appeal No.1007 of 2013 decided on 14.12.2018

(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.

22. In the light of the above principles, let us consider whether the oral gift pleaded by the respondent-plaintiff satisfies the essential conditions of oral gift and in particular, whether possession has been established by respondent No.1-plaintiff. The respondent No.1- plaintiff claims through oral gift followed by the Will dated 30.09.1970. As discussed earlier, tenants were in occupation of the suit house. Respondent-plaintiff has not proved as to how at the time of oral gift, the possession was delivered to him. Nothing is brought on record to show that respondent No.1-Shami Mohd. has taken any steps to get the property mutated in his name. Likewise, nothing is brought on record to show that pursuant to the oral gift, the respondent-plaintiff collected rent from the tenants or paid house tax, water tax, etc. The essential conditions to make a valid gift under the Mohammedan law have not been established by the respondent-plaintiff to prove the oral gift in his favour. In the absence of any proof to show that the possession of the suit property was delivered to him, the oral gift relied upon by the respondent-plaintiff ought not to have been accepted by the courts below.”

17.4. Likewise, in the present case also, the donor had not made it clear that the two properties which were gifted to each of his three sons were divisible or not. He had not separated or made any distinction to show which part of the property was gifted to whom of his sons. The appellants-defendant Nos.6 and 8 also failed to show that the properties gifted were mutated in the names of donees and that they were paying the property tax, water and electricity bills on their names to prove that possession was delivered to the donees and the tenants were paying rents exclusively to the donees pertaining to their respective shares. In the absence of any proof to show that the possession of the said property was delivered to the donees, the oral gift contended by appellants-defendant Nos.6 and 8 cannot be believed.

17.5. The defendant No.6 contended that the plaintiff had withdrawn all the amount of rents on closure of the earlier suit i.e. O.S. No.747 of 1994 by filing a cheque petition in that case and it was an admission that he was the owner of the Kachiguda property and accepted the allotment of Kachiguda property in his name. The plaintiff filed an application in O.S. No.747 of 1994 for deposit of rents and sought for appointment of an Advocate Commissioner as he was having a right in the said rents as a co- sharer of the joint properties held by all of them. But, filing the cheque petition and withdrawing the amount cannot be considered as he accepted that he was allotted Kachiguda house in his name.

17.6. The burden would lie upon the appellants-defendant Nos.6 and 8 to prove that there was an earlier settlement either by way of Hiba or Will and the same was acted upon, as it was they who contended about the existence of the same. The appellants-defendants No.6 and 8 failed to prove the said requirement. The contention of the learned counsel for the appellants was that the appellant No.2 i.e. defendant No.8 constructed a first floor on schedule A property at Malakpet in the year 1986 to the knowledge of all his siblings during the lifetime of their father and it was evidence that the oral Hiba was acted upon and the daughters received movable assets including gold jewellery etc., while the sons occupied their respective portions of the immovable properties.

17.7. The plaintiff filed O.S. No.1763 of 1990 which was later re- numbered as O.S. No.810 of 1996 seeking relief of permanent injunction as he was objected by the appellants herein for his stay in the Malakpet property. The plaintiff proved his possession and obtained an interim injunction order in his favour. Thus, the appellants-defendant Nos.6 and 8 failed to prove that they were in exclusive possession of the Malakpet property. The appellants also failed to examine their sisters, the other defendants to prove that they received movable assets including gold jewellery etc., under the oral Hiba. The said document, marked as Ex.B6, also would not disclose that any gold jewellery etc., was given to the daughters as contended by the appellants herein. Thus, the appellants failed to prove that there was an oral Hiba on 19.09.1978 and the same was acted upon by the parties.

17.8.. The defendant No.6 contended that there was a family settlement deed dated 04.12.1994 drafted and signed in the chambers of Mr. M.A. Qureshi, Advocate. But, the said settlement deed was not marked as an exhibit before the trial court. No witnesses were examined in proof of it. In the absence of any oral or documentary evidence, no reliance can be placed upon it.

17.9. The appellants further contended that the appellant No.1 and the respondent No.6 swapped their properties and at the instance of respondent No.6 a registered gift deed was executed by their father in favour of respondent No.6. The said registered gift deed was marked as Ex.B17. The said document also would not disclose about the earlier settlement made in favour of the other children by Dr. Mohd. Quasim Ali and swapping of properties as contended by the appellant No.1.

17.10. Hence, the appellants failed to prove their contentions about the existence of the oral Hiba or a written Hiba.

17.11. The document marked as Ex.B6 also contained a recital that the donors would utilize rents of the properties till the end of their life. Thus, it would reflect the intention of the donor that they would like to transfer the corpus of the immovable property to the donees, but were retaining the usufruct therein. The parameters for gifts under Mohammadan Law were clear. The gifts pertaining to the corpus of the property were absolute. The learned counsel for the appellants relied upon the judgment of the Hon’ble Apex Court in Sreeramachandra Avadhani (dead) by L.Rs. v. Shaik Abdul Rahim and another2014 AIR SCW 4693, wherein it was held that:

“14....that the parameters for gifts (under Mohammedan Law) are clear and well defined. Gifts pertaining to the corpus of the property are absolute. Where a gift of corpus seeks to impose a limit, in point of time (as a life interest), the condition is void. Likewise, all other conditions, in a gift of the corpus are impermissible. In other words, the gift of the corpus has to be unconditional. Conditions are however permissible, if the gift is merely of a usufruct. Therefore, the gift of a usufruct can validly impose a limit, in point of time (as an interest, restricted to the life of the donee).

15. Having given our thoughtful consideration to the treatises on Muhammedan Law brought to our notice, as also, the judgment rendered by the Privy Council in Nawazish Ali Khan v. Ali Raza Khan [(1948) 75 IA62], we are of the considered view, that in a gift which contemplates the transfer of the corpus, there is no question of such transfer being conditional. The transfer is absolute. Conditions imposed in a gift of the corpus, are void ”

17.12. The learned counsel contended that the gift would be valid but the condition would be void. But, as the gift of the properties in this case is surrounded by suspicious circumstances and any conditions imposed in the corpus are impermissible, the gift cannot be considered as valid.

17.13. The appellants-defendant Nos.6 and 8 also changed the nomenclature of the document as per their convenience. In the earlier case, in O.S No.747 of 1994 filed by the petitioner, they termed it as a ‘will’ and the GPAs executed by the daughters-defendant Nos.1 and 9 also termed the said document as a ‘will’ but in the present suit, it was termed as a gift (Hiba) and only in this appeal, they brought an oral Hiba into picture. Thus, they were changing their contentions as per their convenience which would give rise to a suspicion about the genuinity of the said document.

17.14. Hence, point No.1 is answered in favour of the respondent No.1-plaintiff as against the appellants-defendant Nos.6 and 8.

18. POINT No.2:

The contention of the learned counsel for the appellants was that the suit was barred under Order-II Rule 2 CPC and also under Order XXIII Rule 1 CPC in view of the withdrawal of the earlier suit filed for partition by the plaintiff in O.S No.747 of 1994 and no leave was granted to the plaintiff to file a fresh suit for partition.

Hence, it is considered necessary to extract the said provisions.

Order-II Rule 2 CPC reads as follows:

“2. Suit to include the whole claim.

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

18.1. Order-II Rule-2(1) CPC requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order-II Rule 2 contemplates a situation where a plaintiff omits to sue and intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, order II Rule 2 of CPC makes it clear that he shall not, afterwards, sue for the part of portion of the claim that has been omitted or relinquished.

18.2. The learned counsel for the appellants relied upon the judgment of the Hon’ble Apex Court in Virgo Industries (Eng.) P. Ltd. v. Venturetech Solutions P. Ltd. 2013 (96) ALR 248 wherein it was held that:

“9. Order II Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order II Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order II Rule 2 of CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order II Rule 2 (2) does not contemplate omission or relinquishment of any portion of the plaintiff’s claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the Court is contemplated by Order II Rule 2(3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the Court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order II Rule 2 (2) and (3) of the CPC that the aforesaid two sub-rules of Order II Rule 2 contemplate two different situations, namely, where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the Court in the first suit.

10. The object behind enactment of Order II Rule 2 (2) and (3) of the CPC is not far to seek. The Rule engrafts a laudable principle that discourages/prohibits vexing the defendant again and again by multiple suits except in a situation where one of the several reliefs, though available to a plaintiff, may not have been claimed for a good reason. A later suit for such relief is contemplated only with the leave of the Court which leave, naturally, will be granted upon due satisfaction and for good and sufficient reasons."

18.3. The principles laid down in the judgment of the Constitution Bench of the Hon’ble Apex Court in Gurbux Singh v. Bhooralal [1964 AIR 1810] were extracted in the same judgment, which are as follows:

“The principles laid down in the judgment of the Constitution Bench of this Court may be usefully recalled below:

“In order that a plea of a bar under O. 2. R. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.”

18.4. He also relied upon the judgment of the High of Court of Delhi in Deepa Dua v. Tejinder Kumar Muteneja 2013 (137) DRJ 653 wherein by referring to the judgment of the Bombay High Court in the case of Mohammad Khalil Khan v. Mahbub Ali Mian [MANU/MH/0072/1948], it was held that:

"61. The Principles laid down in the cases so far discussed may be thus summarised:

(1) The correct test in cases falling under Order II Rule 2, is "whether the claim in the new suit is in fact founded upon a cause of action from that which was the foundation for the former suit." (Moonshee Buzloor Ruheem v. Shumsunnisssa Begum, supra.)

(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (Read v. Brown, Supra.)

(3) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey, supra.)

(4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (Brunsden vs. Humphrey, supra.)

(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. (Musst. Chandkour vs. Partab Singh, supra). This observation was made by Lord Watson in a case under Section 43 of theof 1882 (corresponding to Order II Rule 2), where the plaintiff made various claims in the same suit.”

18.5. But, this is a case of not relinquishment of part of the claim as contemplated under Order II Rule 2 CPC, but withdrawal of the earlier suit without seeking permission to file a fresh suit. Hence, it is considered necessary to extract Order-XXIII Rules-1 to 4 CPC also.

"1. Withdrawal of suit or abandonment of part of claim.

(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

(2) An application for leave under the proviso to sub-rule

(1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons.

(3) Where the Court is satisfied,-

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject- matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

(4) Where the plaintiff –

(a) abandons any suit or part of claim under sub- rule (1), or

(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject- matter or such part of the claim."

18.6. A plaintiff has an uncnonditional right to withdraw the suit.

The withdrawal is complete as soon as the plaintiff communicates his intention to the court to withdraw the suit. The suit can be withdrawn at any time. No leave or order of the Court is necessary nor the plaintiff need to assign any reason. If a plaintiff withdraws his suit in toto, he has no right to bring a fresh suit on the same subject matter. Where the plaintiff wants to withdraw the suit to file a fresh suit on a different cause of action, leave of the court is not required. The permission of the court is necessary only when the plaintiff wants to file a fresh suit in respect of the abandoned claim. The contention of the learned counsel for the appellants was that the cause of action in the earlier suit and that of the present suit are identical and hence, the present suit was not maintainable. He further contended that there was no fresh cause of action for the plaintiff to file the present suit and relied upon the judgment of the High Court of Delhi in Kanak Jain and others v. Chakresh Kumar Jain 2019 (175) DRJ 568 [LQ/DelHC/2019/1980] , on the aspect that:

“A cause of action for a suit for partition would accrue only when partition is claimed and is denied or when the plaintiff is ousted from the property and the defendant starts claiming adversely to the plaintiff.”

18.7. He also relied upon the judgment of the Hon’ble Apex Court in Y.A. Ajit v. Sofana Ajit AIR 2007 SC 3151 [LQ/SC/2007/1082] , wherein it was held that:

“It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.”

18.8. Learned counsel for respondent Nos.6, 10 to 13, who is also supporting the case of plaintiff-respondent No.1 (party-in-person) on the other hand, relied upon the judgment of the High Court of Delhi in Jai Devi v. Jodhi Ram1970 CJ (DEL) 95, wherein it was held that:

“13. Coming to the merits of the appeal the only Issue which require determination is whether the suit out of which the present appeal has arisen was barred by Order 23, rule 1 of the Code of Civil Procedure. The learned Subordinate Judge came to the conclusion that where a party withdraws a suit without seeking permission to bring a fresh suit on the same cause of action or abandons a part of the claim, he is precluded from claiming the abandoned relief or from bringing a fresh suit on the same cause of action. This proposition, as a general proposition, is correct but it does not apply to suits for partition. In 1967 (1) MLJ 175 in re : Bajah V. Maheswara Rao V. Bajah V. Bajeswara Rao it has been held that :-

"So far as a suit for partition or a suit for redemption is concerned, it is exiomatic that, when the plaintiff withdraws his suit, he will be entitled to file a fresh suit as the cause of action is recurring cause of action. Even if the plaintiff is not granted permission, under Order 23, rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases.”

18.9. He further relied on the judgment of the High Court of Karnataka in Seenappa and others v. Subbaiah and others 1998 CJ (Kar) 626, wherein it was held that:

“7. .... as rightly pointed out by the Trial Court, the cause of action for a partition suit being a recurring cause of action, withdrawal of an earlier suit for partition of joint family properties though without permission of the Court, is not a bar to file a second suit for partition of the same properties against the same defendants. For this reason also though the plaintiffs have not obtained permission of the City Civil Court for filing a fresh suit by withdrawing the earlier suit, they are entitled to file a fresh suit for partition and the bar under Order 23, Rule 1(4) of the CPC does not apply to such a suit. ”

18.10. He further relied upon the judgment of the High Court of Chattisgarh (Bilaspur Bench) in Devdutt S/o. Late Chaitram Verma v. Smt. Shashi Verma W/o. Shri Ramadhar Verma and othersCivil Revision No.157 of 2017 decided on 14.12.2020, wherein it was held that:

“11. It is true that the earlier suit was withdrawn on 20.06.2012 without obtaining permission from the Court for filing a fresh suit, but the cause of action in a suit for partition is a recurring one, therefore, it was not necessary for the Plaintiff to obtain a permission of the concerned Court before the withdrawal of her earlier claim and in view of that, the bar as provided under Order 23 Rule 1(4) of CPC for filing a fresh suit of a similar nature would not be attracted. It is to be noted at this juncture that principles have been laid down by the Karnataka High Court in the matter of Seenappa & Ors. vs. Subbaiah & Ors. reported in ILR 1999 KAR 1543, wherein, the Plaintiff's suit for partition and separate possession was returned with a direction for its presentation before a Court having its jurisdiction to entertain the same. However, the Plaintiff, instead of acting on such a direction, instituted a fresh suit for the same relief. In that factual scenario, it was observed therein at paragraph 7 that the bar embodied in sub-rule (4) of Rule 1 of Order 23 of CPC would not be attracted as a cause of action for a suit for partition and separate possession being a recurring cause of action and, therefore, the withdrawal of earlier suit without seeking leave of the court would not debar the Plaintiff for filing a fresh suit of a similar nature. The relevant portion of the said para 7 reads as under:-

7. ...........Apart from this fact, as rightly pointed out by the trial Court, the cause of action for a partition suit being a recurring cause of action, withdrawal of an earlier suit for partition of joint family properties though without permission of the court, is not a bar to file a second suit for partition of the same properties against the same defendants. For this reason also though the plaintiffs have not obtained permission of the City Civil Court for filing a fresh suit by withdrawing the earlier suit, they are entitled to file a fresh suit for partition and the bar under Order 23 Rule 1(4) CPC does not apply to such a suit...........

12. Similar is the observation made by the Nagpur High Court while entertaining the suit for partition in the matter of Abdul Majid Kha s/o Mahebubkha vs. Mahmudabi w/o Bahadurkha reported in AIR 1949 Nagpur 366 at para 7 as under:-

7. .......The right to demand partition and separate possession is a recurring right. If the plaintiff, for any reason, decided on 2nd April 1946 not to enforce the right immediately, she should be deemed to have chosen to continue the tendency in common for some time more till she would find it necessary again to seek its termination. A suit which is barred by withdrawal of the claim under O. 23, R.1(3) is one which is based on the same cause of action but a suit for partition and separate possession of the share which may now be brought will be on a cause of action arising upon a demand now made and refused: Radhe Lal v. Mulchand, 46 ALL. 820 : (A. I. R. (11) 1924 ALL. 905)...

13. It is, thus, clear in the light of principles laid down in the aforesaid matters that in a suit for partition, the cause of action, being a recurring cause of action and, the withdrawal of an earlier suit of a similar nature without obtaining the permission from the Court would not debar the Plaintiff for the institution of a fresh suit for partition. In view of the said background, the institution of the instant suit cannot be held to be hit by virtue of the provision prescribed under Order 23 Rule 1(4) of CPC.”

18.11. As seen from the above judgments, in a suit for partition, the cause of action would be recurring as there is no division of the properties by metes and bounds and the defendants were refusing for division of properties. It is only after division of properties, the joint family or co- parcenery properties would get divided by metes and bounds. Till such time, the rights of the parties are intact. If the suit for partition is withdrawn, there is no need to seek permission to file fresh suit on the same cause of action. Once the suit is withdrawn, the property continues to be joint. If the properties are to be divided, the parties can file one more suit. The withdrawal of the earlier suit would no way affect the rights of the parties. A fresh suit can be filed whenever the parties want a share in the property. Hence, the second suit for partition is maintainable even though the earlier suit for the same relief was withdrawn by the parties even without seeking any leave of the Court.

18.12. Hence, the point No.2 is answered in favour of the respondent No.1-plaintiff as against the appellants-defendant Nos.6 and 8.

19. POINT No.3:

The other contention raised by the learned counsel for the appellants was that the shares were allotted as per the Fatwa issued by Darul-Ifta- Jamia-Nizamia and the Hon’ble Apex Court, particularly, prohibited the enforcing of Fatwas issued by the institution Darul Ifta Organization and the reliance placed by the trial Court in this regard is not valid.

19.1. The Hon’ble Apex Court in Viswa Lochan Madan v. Union of India AIR 2014 SC 2947 held that:

“A Fatwa is an opinion, only an expert is expected to give. It is not a decree, not binding on the court or the State or the individual. It is not sanctioned under our constitutional scheme. But this does not mean that existence of Dar-ul-Qaza or for that matter practice of issuing Fatwas are themselves illegal. It is within the discretion of the persons concerned either to accept, ignore or reject it.”

19.2. Hence, considering the Fatwa as a opinion given by an expert determining the shares in accordance with the Mohammedan Law and the Fatwa is relied only to the said extent, we find no error in the judgment of the trial Court in granting shares to the heirs accordingly. Therefore, we find no reason to set aside the judgment of the trial Court.

20. Hence, the CCCA is dismissed, upholding the judgment and decree dated 15.06.2016 passed in O.S. No.19 of 2003 by the IX Additional Chief Judge, City Civil Court, Hyderabad. No order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.