IN THE HIGH COURT OF JUDICATURE AT MADRAS
The Honourable Mr. Justice T.V. MASILAMANI
S.A. No.1410 of 1993
Pathamuthu Joharan .. Appellant
1. Syed Ibrahim (died)
2. Habuta Nachiar
3. Mahaboola Nisa
6. Akber Ali .. Respondents
Second Appeal against the judgment and decree dated 10.2.1993 made in
A.S.No.213 of 1991 on the file of the District Judge, Nagapattinam confirming
the judgment and decree dated 9.5.1991 in O.S.No.56 of 198 8 on the file of
the Subordinate Judge, Nagapattinam.
!For Appellant : Mrs.G. Devi
^For Respondents : Mr.K.Chandramouli, S.C.
The defendant before the court below is the appellant.
2. The respondent filed the suit for recovery of possession of the
suit property from the appellant and for future mesne profits. The appellant
resisted the suit by filing written statement. The trial court having
analysed the evidence both oral and documentary adduced on either side and
upon hearing the arguments of both sides decreed the suit as prayed for and
directed a separate enquiry regarding future mesne profits under Order 20 Rule
3. Aggrieved by the judgment and decree passed by the trial court,
the appellant preferred the appeal before the District Judge, Nagapattinam in
A.S.No.213 of 1991. The learned District Judge after considering the recorded
evidence and the arguments of both sides confirmed the judgment and decree
passed by the trial court and dismissed the appeal. Hence, the above Second
4. The averments in the plaint filed by the respondent/plaintiff may
be briefly stated as follows:-
(a) The common ancestor of the plaintiff and the defendant is
Sikkandar Rowthar. The plaintiff is the grand son of the Sikkandar Rowthar.
The defendant is the grand daughter of the said Sikkandar Rowthar through his
another son Mohamed Hussain. Sikkandar Rowther executed a settlement deed
dated 8.6.1935 in respect of all his properties in favour of his sons and he
retained the right of enjoyment over the properties settled thereunder during
his life time. 'A' schedule property in the settlement deed had been given to
Mohamed Sultan to be taken and enjoyed by him absolutely and 'B' schedule
property had been given to Mohamed Hussain absolutely. 'C' and 'D' schedule
properties in the settlement deed had been given to his 3rd son Mohamed Kasim
and his wife Fathima Bibi.
(b) The suit property is a portion of the house given to
Mohamed Sultan under the said settlement deed and the remaining portion of the
house was given to Mohammed Hussain. After the death of Sikkandar Rowthar his
sons, namely, Mohamed Sultan and Mohamed Hussain became entitled to their
respective portions in the house as per the settlement deed. The property tax
was paid by both of them in respect of the house property.
(c) After the death of Mohamed Sultan, all his properties
including the suit property had devolved upon his 2 wives and 3 sons and a
daughter by his second wife in accordance with the Muslim law. After the
death of one of the widows, Raguman Bibi, her share also devolved upon her 3
sons and a daughter. The plaintiff obtained the release deed dated 23.3.1983
from his two brothers, Mohamed Arif and Mohamed Ismail and sister Noorjahan.
Under sale deed dated 31.1.1984 having purchased the undivided share of his
step mother Jamina Bibi also, the plaintiff has become the absolute owner of
the suit property.
(d) The defendant obtained release deed from her mother Ajitha Bibi
and sisters Urunnisa and Noorjahan by means of a registered deed dated
29.12.1983. The defendant who is the grand daughter of Sikkandar Rowthar has
no manner of right or title to any portion in the suit property. Her claim
that her father Mohamed Hussain has prescribed title by adverse possession has
no legal basis and therefore the plaintiff is entitled to recover possession
of the suit property and to receive future mesne profits.
5. The averments in the written statement filed by the appellant/
defendant are briefly as follows:-
The plaintiff is not the son of Mohamed Sultan who had married
only one wife and therefore it is false to contend that Mohamed Sultan married
the mother of the plaintiff also. Sikkandar Rowthar had 3 sons Mohamed
Sulthan, Mohamed Hussain and Mohamed Kasim. The plaintiff has suppressed the
existence of the son Mohamed Kasim. Similarly, Syed Ebrahim and Mohamed Arif
and Mohamed Ismail and Noorjahan are not sons and daughter of Mohamed Sultan.
Therefore the plaintiff is not the grand son of Sikkandar Rowthar as alleged.
On the date of the settlement deed executed by Sikkandar Rowthar (i.e.,)
8.6.1935, Mohamed Sultan was living in Rangoon and therefore he did not accept
the settlement and obtained possession of the properties thereunder. Mohamed
Sultan had never enjoyed any of the properties covered by the settlement deed.
In fact, the defendant, daughter of Mohamed Hussain has been in possession and
enjoyment of the suit property. Further she has also perfected title to the
suit property by adverse possession. The suit is not valued properly for the
purpose of court-fee.
6. On the above pleadings, the following issues were framed by the
trial court for trial:-
(1) Whether the plaintiff is entitled to the relief of recovery of
possession of the suit property?
(2) To what relief, the plaintiff is entitled to?
7. In the appeal, the learned District Judge had also framed the
following issues for consideration:-
(1) Whether Mohamed Sultan had married two wives as claimed in the
(2) If so, whether the plaintiff is the son of Mohamed Sultan through
his second wife?
(3) Whether the defendant has perfected title to the suit property by
8. Having perused the recorded evidence and upon hearing both sides,
the courts below have rendered concurrent judgments holding that the
respondent is entitled to the suit property, that he is the son of Mohamed
Sultan born through his second wife, that the appellant has not perfected
title to the suit property by adverse possession and that therefore the
respondent is entitled to the reliefs as prayed for.
9. Heard Mrs.G.Devi, learned counsel for the appellant and Mr.K.
Chandramouli, learned senior counsel for the respondents.
10. The learned counsel for the appellant/defendant has argued that
the courts below failed to consider the document under Ex.A-2 whereby the
house was divided into two portions, one settled in favour of Mohamed Sultan
and another in favour of Mohamed Kasim and Mohamed Sultan had not accepted the
settlement and taken possession of the property. Therefore the settlement in
favour of Mohamed Sultan was not acted upon and hence became invalid under
law. The courts below failed to see that Mohamed Sultan had only one wife
Jamina Bibi and he did not marry Raguman Bibi as his second wife. Therefore,
the courts below ought to have held that the marriage of the second wife to
Mohamed Sultan has not been proved in accordance with law. Similarly, courts
below failed to appreciate the evidence to prove the defendant's title to the
suit property by adverse possession.
11. In the above circumstances, the following substantial questions
of law were formulated by this court on 3.11.1993 for consideration:-
(1) Whether the courts below have correctly and properly interpreted
Exs.A-3, A-4 and A-5?
(2) Whether the courts below are justified in rejecting the plea of
adverse possession by the defendant and her predecessors-in-title?
(3) Whether the courts below are justified in finding that the
settlement deed Ex.A-2 executed by the grand father of the defendant is valid?
12. The parties to this appeal may be referred to hereunder as they
were arrayed before the trial court. Since rendering a finding with reference
to one question is likely to overlap the other one, all the substantial
questions are discussed together.
13. The facts which are not in controversy may be set out as under so
as to analyse the recorded evidence and the arguments advanced on either side
in this appeal. The suit property is a building which originally belonged to
Sikkandar Rowthar. He executed the registered Hiba deed dated 8.6.1935 Ex.A-2
in favour of his wife Fathima Bibi and 3 sons, Mohamed Sultan, Mohamed Hussain
and Mohamed Kasim and the portion described in 'A' schedule in Ex.A-2 was
given to Mohamed Sultan, the portion 'B' schedule to Mohamed Hussain, the
portion 'C' schedule to Mohamed Kasim and the portion in 'D' schedule to
Fathima Bibi. After the death of Sikkandar Rowthar and Fathima Bibi, their
heirs became entitled to the said properties. Mohamed Sultan married Jamina
Bibi and they had no issues. Mohamed Hussain married Ajitha Bibi and they had
begotten 3 daughters, namely Pathamuthu Joharan, Urunnisa and Noorjahan. The
appellant/defendant is the said Pathamuthu Joharan.
14. The learned counsel for the appellant has argued at the outset
that the Hiba deed under Ex.A-2 executed by Sikkandar Rowthar was not accepted
by Mohamed Sultan, who was residing in Rangoon at that time and that since
Mohamed Hussain, father of the defendant alone was in India residing in the
suit property, the plain tiff claiming under Mohamed Sultan could not have had
any title to the suit property. Similarly, she would contend that Mohamed
Sultan never got into the possession of the suit property either under the
settlement deed Ex.A-2 or by any other process known to law.
15. In answer to such contention, Mr.Chandramouli, learned senior
counsel appearing for the respondents 2 to 7, legal heirs of the deceased
first respondent/sole plaintiff would draw the attention of this court to
Exs.B-16 to B-44 documents to show that the gift under Ex.A-2 was not only
accepted by Mohamed Sultan, but he was also in possession and enjoyment of his
portion in the suit property pursuant to the gift deed under Ex.A-2. A
careful scrutiny of Ex.B-16 to B-44 would indicate clearly that the house tax
was paid by Mohamed Sultan for himself and on behalf of other donees under
Ex.A-2. Therefore this Court is of the considered view that since the house
tax was assessed in the name of Mohamed Sulthan (vide) Ex.B-16 to B-44 from
1963 to 198 3, it is too late in a day to contend that Mohamed Sultan had not
accepted the gift in his favour as per Ex.A-2. In this context, both the
courts below have analysed the evidence on this aspect of the matter and came
to the right conclusion that all the 3 sons of the deceased Sikkandar Rowthar
accepted the gift and acted upon the settlement deed under Ex.A-2 and that
they were in possession and enjoyment of the respective shares in the suit
property as per the gift deed. Hence, this court is unable to accept the
first contention put forth by the learned counsel for the appellant.
16. The next contention urged in the argument of the learned counsel
for the appellant is that the plaintiff (since deceased) was not born to
Mohamed Sultan through his second wife as alleged and that therefore he would
not have succeeded to any portion in the suit property as a heir of the
deceased Mohamed Sultan. According to the plaintiff, Mohamed Sultan married
Jamina Bibi as his first wife and since they had no issues, he married Raguman
Bibi as his second wife and out of their wedlock, the plaintiff, 3 other
children namely Mohamed Arif, Mohamed Ismail and Noorjahan were born to them.
In support of such contention Exs.A-2 to A-4, A-5, A-8, A-15 and A-16 have
been pressed into service in the evidence of P.W.1, the plaintiff.
17. Ex.A-4 is the registered sale deed dated 31.1.1984 executed by
Jamila Bibi, first wife of Mohamed Sultan in favour of the plaintiff in
respect of her undivided 1/16th share in the suit property and other
properties and the relevant recitals relied on by the learned counsel for the
plaintiff in the said document are as follows:-
",jdoapy; fz;l tpgug;goa[s;s brhj;J fhyk; brd;w vdJ fztUk; vdJ je; ija[khd
A.S.Kfk;kJ Ry;j;jhd; mtu;fSf;F mtuJ je;ijahu; rpf;fe;ju; uht[j;juhy; brd;w
8.6.1935 njjpapy; vGjpitf;fg;gl;Ls;s brl;oy;bkz;Lg;goa[k; A.S.Kfk;kJ Ry;j;jhd;
mtu;fshy; brd;w 20.8.1956 njjp mg;Jy; cwkPJ uht[jjuplkpUe;J thq;fpa fpua
rhrdg;goa[k; fpilj;J vd;DlDk; mtu; ,uz;lhk; jhu kidtp ucwpkhd; gptpa[lDk;
ru;tRje;jpu ghj;jpaq;fSld; Mz;L mDgtpj;Jte;J \ A.S.Kfk;kJ Ry;j;jhd; 24.1.78
18. The above recitals in the sale deed executed by the first wife of
Mohamed Sultan have proved categorically that Mohamed Sultan married two
wives, namely, Jamina Bibi and Raguman Bibi and that the plaintiff is the son
of Mohamed Sultan born through his second wife. Similarly, Ex.A-16 marriage
invitation dated 14.2.1956 discloses that Mohamed Sultan being the father of
the plaintiff celebrated the plaintiff's marriage and therefore it is evident
that the acknowledgement of both Mohamed Sultan and his wife Jamina Bibi that
the plaintiff is the son of the former through his second wife would
vouch-safe the paternity of the plaintiff now under question.
19. In this context, learned senior counsel appearing for respondents
2 to 6 has drawn the attention of this court to the provisions of law under
Sections 226 and 227 of the Muslim Law by THABJI (4th Edition at page 208)
with reference to proof of paternity and presumption of acknowledgement of
parentage respectively in support of his further argument that the documents
ante litum mortem referred to above would establish the paternity of the
plaintiff as well as the presumption of acknowledgement arising therefrom.
20. The above principles of law under Sections 226 and 227 read as
"226. Proof of paternity: Statements by a member of the family
touching the sonship or heirship of a person are good evidence of the family
report concerning him.
227. Adoption not known to Muslim law: If a man has openly treated
another as his child, it may be presumed that the former has acknowledged the
parentage of the latter."
21. In view of the above provisions of law in the light of the
documentary evidence under Exs.A-4, A-15 and A-16, the paternity of the
plaintiff that he was born to Mohamed Sultan through his second wife Raguman
Bibi has been amply established. Similarly, the acknowledgement of both
Mohamed Sultan and his first wife Jamina Bibi as per Exs.A-4, A-15 and A-16
also lend support to the proof of paternity. As has been rightly argued by
the learned senior counsel for the respondents, in view of the ratio laid down
in the decision HOHAMMAD SADIQ v. MOHAMMAD HASSAN (AIR (30) 1943 LAHORE 225),
the acknowledgement of Mohamed Sultan that the plaintiff is his son born
through the second wife has to be held as proved until the contrary is
established by the defendant adducing rebuttal evidence and the ratio laid
down therein reads as follows:
"The same subject has been dealt with in para 85 of Wilson's Ango
Mahomedan Law where it is laid down that if a man has acknowledged another as
his legitimate child, the presumption of paternity arising therefrom can only
be rebutted by (a) disclaimer on the part of the person acknowledged; (b) such
proximity of age, or seniority of the acknowledgee, as would render the
alleged relationship physically impossible; (c) proof that the acknowledgee
could not possibly have been the lawful wife of the acknowledger at any time
when the acknowledgee could have been begotten. None of these four
impediments has either been alleged or established in the present case."
22. In this case also, as per the ratio referred supra, the defendant
has not alleged or established any of the impediments narrated by the said
decision. Therefore this Court is of the considered view that the contention
put forth on the side of the appellant in this respect has to be rejected as
not sustainable. It follows necessarily that the finding of fact rendered by
both the courts below on this aspect of the matter has to be affirmed.
23. The last contention of the learned counsel for the appellant is
that by adverse possession, the defendant has perfected her title to the suit
property. In this regard, as has been rightly argued by the learned senior
counsel for the plaintiff, on her own showing as per Exs.B-16 to B-44,
receipts for payment of house tax issued in favour of Mohamed Sultan and
others from 1963 to 1983, such contention of the defendant cannot stand even a
moment's scrutiny for the simple reason that Mohamed Sultan was in possession
of the property within 12 years prior to suit and that the suit was laid
within 5 years from the date of last receipt under Ex.B-44 issued on 30.8.1983
in favour of him.
24. Hence, the learned senior counsel for the plaintiff placed
reliance on the decision rendered by this Court NAGARAJAN v. RAJAMANI IYER
(1999 (I) C.T.C. 428) wherein the statement of law on this subject has been
reiterated as under. The learned Single Judge having considered catena of
decisions rendered by this Court, other High Courts and the Apex Court and
quoted the principle of adverse possession as laid down by the Apex Court in
DR.MAHESH CHAND SHARMA v. RAJKUMARI SHARMA (AIR 1996 S.C. 569) which reads
"A person pleading adverse possession has no equities in his favour. Since he
is trying to defeat the rights of the true owner, it is for him to clearly
plead and establish all the facts necessary to establish his adverse
25. If the evidence let in by the defendant is analysed in the light
of the above principle of law cited above, there is no doubt that she has
neither pleaded specifically in her written statement all the necessary
averments to constitute the plea of adverse possession nor let in any evidence
worth mentioning to establish such plea.
26. But, on the contrary, the documentary evidence Exs.B-16 to B-44
as referred to above are not only against the defendant on this aspect but
would also establish that the plaintiff's predecessor-intitle was in effective
possession and enjoyment of his share in the suit property for more than 13
years till his death. Similarly, the other evidence let in by the plaintiff
has categorically established his possession and enjoyment of the suit
property along with other heirs till he acquired absolute right and title to
the same by virtue of registered documents under Exs.A-3 and A-4, registered
release deed dated 23.3.1983 and sale deed dated 31.1.1984 respectively
executed by the other heirs of Sikkandar Rowthar in respect of their undivided
share in the suit property.
27. For the aforesaid reasons, this Court finds no illegality in the
judgments and decrees rendered by both the courts below and therefore the
Second Appeal deserves no merit and is accordingly dismissed. However, there
shall be no order as to costs.
1. The District Judge, Nagapattinam.
2. The Subordinate Judge, Nagapattinam.
3. The Section Officer, V.R.Section, High Court, Madras.