Mulla’s Mohammedan law Section 147 would recite writing not necessary:- Writing is not essential to the validity of a gift either of movable or of immovable property. A gift under the Mohammedan law is to be effected in the manner prescribed by the Mohammedan law. If the formalities prescribed by that law (s.150 below) are complied with, the gift is valid even though it is not effected by a registered instrument and though, where effected by an instrument, the instrument is not attested.-Section 67 of Evidence Act wherein for proof of signature and handwriting of person alleged to have signed or written document produced (S.67(5)) ‘it is not material whether the document is signed only at the first page or only the last page or whether it bears the signature of the executant on all the pages of a document. The insertion of the name in any part of the writing, in a manner to authenticate the instrument is sufficient, although the signature be in the beginning or middle of the instrument it is as binding as if at the foot of it.’-so far as the gift dated 2.2.1989 orally given by the deceased in favour of the respondent was concerned and the reducing into writing of the same the subsequent date, since it is a family arrangement and supported by these judgments and the dictum of law quoted from Mulla and the relavant provision of the Evidence Act all put together would only consolidate the decision of the lower Court and therefore in these circumstances this Court cannot arrive at a different conclusion than that of one arrived at by the lower Court and hence the following judgment: In result, (i) both the above appeals fail and they are dismissed; (ii) the common judgment and decree dated 3.12.1992 made in O.S.No.9216 of 1989 and O.S.No.10171 of 1989 by the Court of III Assistant Judge, City Civil Court, Madras are hereby confirmed; (iii) however, in the circumstances of the case, there shall be no order as to costs.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 25/10/2002

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

A.S.NO.997 OF 1993
AND
TRANSFERRED A.S.NO.243 OF 1997.

1. Mohideen Fathima,
2. Hayath Beeves.               .. Appellants in both appeals.

-Vs-

Mrs.A.M.Sharifunnisa.  .. Respondent in both appeals.

        These Appeal Suits are filed  against  the  Common  Judgment  in  O.S.
No.9216 of 1989 and 10171 of 1989, dated 3.12.1992 passed by the III Assistant
Judge, City Civil Court, Chennai, as stated therein.

!For Appellants in both appeals :  Mr.S.M.Amjad Nainar.

^For Respondent in both appeals :  Mr.K.Thiagarajan,
                                for Mr.M.A.Ghatala.

:COMMON JUDGMENT

        Both  the above two appeal suits A.S.No.997 of 1993 and Tr.A.S.No.24 3
of 1997 are directed against the common judgment and decree dated  3  .12.1992
rendered by the Court of III Assistant City Civil Judge, Madras in the suit in
O.S.No.9216  of 1989 which has been filed by the respondent herein against the
appellants praying for a permanent injunction and for  costs  and  the  second
suit  in  O.S.No.10171  of 1989 which has been filed by the appellants against
the respondent herein praying for partition and separate  possession  and  for
costs.
        2.   The first suit in O.S.No.9216 of 1989 filed by the respondent has
been decreed as prayed for with costs by the trial Court, but the second  suit
filed by the appellants herein in O.S.No.10171 of 1989 has been dismissed with
a direction  for  parties to bear their own costs.  Aggrieved against both the
verdict as per the common  judgment  and  decree,  the  appellants  have  come
forward  to  prefer  both  the  above  appeal  suits  on  certain  grounds  as
brought-forth in the grounds of appeal.  For the sake of convenience, the rank
of the parties in O.S.No.9216 of 1989 is followed in the  common  judgment  of
the lower Court.

        3.   Tracing the history of the coming into being of the Appeal Suits,
it comes to be known from the averments of the plaint in O.S.No.921 6 of  1989
that  the plaintiff therein has filed the said suit for a permanent injunction
restraining the defendants therein and their men, agents etc.    from  in  any
manner  interfering  with  their peaceful possession and enjoyment of the suit
property and for costs on grounds such  as  that  the  suit  property  bearing
Municipal  Door  No.17  (New) (Old Nos.5 and 28), Sharfuddin Garden II Street,
Royapettah, Madras-600  014  ,  originally  belonged  to  one  K.Mohamed  Ali,
father/in/law  of the plaintiff, A.M.sharifunnisa who died intestate; that the
property devolved on the husband  of  the  plaintiff,  Bismillah  Hussain  now
deceased  and  the  defendants;  that,  as per the Muslim Law, the plaintiff’s
husband got ½ share and the defendants got each ¼ share in the property;  that
from out of his own funds, the deceased also purchased the land site belonging
to  Hajee  S.M.Sharfuddin  Wakf  Estate, under Sale Deed dated 29.4.1965, thus
himself becoming the sole owner of the land site and part owner  of  the  said
superstructure;  that  subsequently,  he  obtained a release from his sisters,
defendants herein, for valuable  consideration  under  a  Release  Deed  dated
9.12.1965;   that   hence,   he   became  the  absolute  owner  for  both  the
superstructure and land site; that the deceased died issueless, after 26 years
of married life; that as per the Muslim Law, the plaintiff being the widow and
without any issue, is entitled to ¼ share in the estate of  the  deceased  and
the  sisters  get  each 1/3rd share and the residue is distributed amongst all
the three heirs.  The said deceased and the  plaintiff  adopted  the  paternal
grand-daughter  of the first defendant, by name Mumtaz Begum from her infancy;
that though adoption is not prohibited in Muslim Law, yet  the  adopted  child
has  no right of inheritance; that the deceased realised that his wife’s small
share  in  the  said  property  after  his  death  would  be  too  meagre  and
insufficient to maintain the plaintiff and the adopted daughter, Mumtaz Begum;
that  hence,  on 2nd February, 1989, while the deceased was in good health and
in a well disposing state of mind, made an Oral Gift, known as Hiba in  Muslim
Law  of  the  suit  property, in the presence of the competent witnesses; that
consequent to the Oral Gift, necessary mutation of names were made with regard
to the transfer of  ownership  of  the  said  property;  that  the  plaintiff,
therefore, filed O.S.No.9216 of 1989 for permanent injunction, restraining the
defendants  and  their  men  from interfering with the peaceful possession and
enjoyment of the suit property.

        4.  The case of the defendants as pleaded in their statement  is  that
there  is  no such oral gift alleged to have been made on 2.2.1989; that at no
point of time, the deceased made any oral gift;  that  the  plaintiff  at  the
instance  of  her brothers, has come with the false allegation, that oral gift
“Hiba” was made by the deceased in favour of the paternal grand-father of  the
first  defendant;  that  as  per  Mohammedan Law, the plaintiff is entitled to
10/36 shares in the assets of her husband and the defendants are  entitled  to
13/36  share  each,  viz., 26 /36 shares as per the “Doctrine of Return;” that
these defendants  filed  O.S.No.10171  of  1989  for  partition  and  separate
possession  of  their  26/36  shares in the suit property; that they have also
taken out an application  in  I.A.No.22103  of  1989  for  appointment  of  an
Advocate-Receiver to take charge of the suit property.

        5.   Besides the above contentions raised in the written statements in
O.S.No.9216 of 1989,  the  defendants  therein  would  file  another  suit  in
O.S.No.10171 of 1989 before the Court of City Civil Judge, Madras, wherein the
first defendant is the plaintiff in the other suit and the second defendant is
the  Tamil  Nadu  Electricity  Board  represented by its Chairman, and besides
those averments brought-forth in the written statements in the other suit,  it
would  further  be  alleged  in the plaint in this suit that Bismillah Hussain
being the sole male member of the family  purchased  the  land  on  which  the
superstructure  was  constructed  from Hajee S.M.Sharfuddin Wakf Estate as per
sale deed dated 29.4.1965; that subsequently the plaintiffs out  of  love  and
affection  for  their brother Bismillah Hussain executed the release deed on 4
.12.1967 in respect of their half share in the  superstructure,  thus  himself
becoming absolute owner of the ground and premises; that he was married to the
first  defendant in 1962; that he was also employed as Assistant in the Second
Defendant Board drawing a salary of Rs.2,00 0/-  per  month  and  he  died  in
harness on 27.2.1989 issueless, leaving behind, the first defendant his widow,
who  is  entitled  to  10/36  shares  and the plaintiffs shares and as per the
Doctrine of Return are entitled to the remaining  26/36  shares  i.e.    13/36
shares each.

        6.   The plaintiffs would further allege that the first defendant with
evil motives and at the instance of her brothers, set up title in herself  for
the  entire  assets left behind by the deceased claiming under an alleged oral
gift, said to have been executed by the deceased on 2.2.1989 and reduced  into
writing on  the next day i.e.  on 3.2.1989 alleging that no such oral gift was
made by the deceased.  The plaintiffs would also  allege  that  they  were  on
cordial  terms  with  their  deceased brother and he would not have gifted the
properties without their knowledge.

        7.  The plaintiffs would further allege that Bismillah Hussain died on
27.2.1989; that the first defendant’s brothers  informed  that  she  has  been
nominated  to  receive  the  gratuity  and  other  benefits  from  the  second
defendant, for which the plaintiffs and their husband consented to receive  as
their  agent and the nominee of the deceased; that they also allowed the first
defendant to collect the rents from the tenants on their behalf; that  at  the
instigation  of  her  brothers  who  took  hostile  attitude lodged the police
complaint besides issuing notice followed by the suit in O.S.No.9216  of  1989
filed  by  the  first  defendant; that they replied on 10.10.1989 pleading the
position of law as per Mohammedan Law, as had been recited supra  and  further
stating  that  the  plaintiffs  are in joint possession of the plaint schedule
property and that they have also paid the taxes and denying that  the  Revenue
Authorities  have  recognised the first defendant as the absolute owner of the
plaint schedule properties would ultimately pray for the reliefs of  partition
and  separate  possession of the plaintiffs 26/36 shares; for accounts and for
the past and future mesne profits ultimately undertaking to pay further  Court
Fee for the future mesne profits as and when determined.

        8.   In  the written statement filed by the first defendant, she would
only lay emphasis on what she has stated in the plaint of her suit O.S.No.9216
of 1989 and in the written statement filed by the second defendant it would be
stated that the deceased Bismillah Hussain joined the services of the Board on
18.4.1957 and while working as Assistant, he expired on 27.2.1989; that  while
in service he nominated his wife Smt.A.M.Sherifunnissa, the first defendant as
his nominee; that after his death, she produced the legal heirship certificate
dated  16.3.1989  from  Tahsildar,  Mylapore-Triplicane Taluk; that as per the
rules relating to the payment of the family pension and  other  benefits  only
the  widow  or  the  widower  is  entitled  to  receive  the pension and other
benefits; that in their absence, the benefits would go to the  minor  sons  or
daughters  of  the  deceased; that in the present case, the only legal heir of
the deceased being  the  first  defendant,  the  pension  and  other  benefits
admissible  as  per  law  have  been  given to the first defendant and on such
grounds would state that the suit filed against the second  defendant  is  not
maintainable and would ultimately pray to dismiss the above suit with costs.

        9.   Based  on  the  above pleadings by parties, the trial Court would
frame the following issues in both the above suits and the  issues  framed  in
O.S.No.9216 of 1989 are:
        1.  Whether the defendants are trying to interfere in the plaintiff’ s
peaceful possession?
        2.   Whether  the  plaintiff  was  in  possession on the date when the
plaintiff filed the suit?
        3.  Whether the plaintiff is  entitled  to  permanent  injunction,  as
prayed for?
        Likewise, in O.S.No.10171 of 1989, the following issues were framed:
        1.   Whether  the  plaintiffs  are  entitled to partition and separate
possession of 26/36 share in the suit property?
        2.  Whether the plaintiffs are entitled to claim rendering of accounts
from the second defendant?
        3.  To what other reliefs, the plaintiffs are entitled to?
        Additional Issue:
        Whether the court fee paid is correct?

        10.  Having framed the above issues, the trial Court would  allow  the
parties  to  record  evidence,  on trial when, on the part of the plaintiff in
O.S.No.9216 of 1989, she would not only examine herself  as  P.W.1,  but  also
would examine  two  other witnesses as P.Ws.2 and 3 for oral evidence.  On the
part of the defendants therein, one Abdul Kuthoos would be examined  as  their
sole witness for oral evidence.

        11.   For  documentary  evidence,  on  the  part  of  the plaintiff 11
documents would be marked as Exs.A1 to A11, Ex.A1 dated 3.2.89 being the sworn
affidavit of Bismillah Hussain, Ex.A2 dated 28.9.89 being the complaint  given
to  the  police,  Ex.A3 being the receipt for Ex.A2, Ex.A4 dated 26.9.89 being
the lawyer’s notice, Ex.A5 dated 30.5.89 being the xerox copy of the letter by
the Corporation of Madras, in favour of the  plaintiff,  Ex.A6  dated  29.4.65
being  the xerox copy of the sale deed, Ex.A7 being the details of expenditure
towards the construction of the house, Ex.A8 being  the  account  book,  Ex.A9
dated  19.10.89 being the water tax demand notice, Ex.A10 being the xerox copy
of the letter from the Tamil Nadu  Electricity  Board  to  the  plaintiff  and
Ex.A11 being the property tax demand notice for the year 1990-91.

        12.   Likewise,  on the part of the defendants also 10 documents would
be marked as Exs.B1 to B10,  Ex.B1  being  the  xerox  copy  of  the  marriage
registration  certificate  of Bismillah Hussain, Ex.B2 dated 4.12.65 being the
release deed executed by the defendants in favour of Bismillah Hussain,  Ex.B3
dated  22.1.82 and Ex.B4 dated 19.10.83 being the land mortgage deeds executed
by Bismillah Hussain in favour of George Town Co-operative Bank,  Ex.B5  dated
10.10.89  being  the  reply  sent by the defendants’ lawyer to the plaintiff’s
lawyer, Exs.B6 and B7 are the acknowledgments, Ex.B8 being the tax  assessment
by Corporation of Madras, Ex.B9 dated 18.10.89 being the tax receipt in favour
of  Bismillah Hussain and Ex.B10 being the encumbrance certificate of the suit
property.

        13.  The trial Court having traced the facts of both cases as  pleaded
by  parties  and  appreciating  the  evidence placed on record, having its own
discussions on various aspects involved in the case particularly  sticking  to
the issues framed, would ultimately pass the decree in favour of the plaintiff
in  O.S.No.9216  of 1989 as prayed for with costs dismissing the other suit in
O.S.No.10171 of 1989, further directing the parties to bear their own costs in
this suit as per its judgment dated 3.12.1992.  Aggrieved, the  defendants  in
O.S.No.9216 of 198 9 and the plaintiffs in O.S.No.10171 of 1989 have preferred
both the above appeal suits on certain grounds such as :
        (i)that  the  Court  below ought to have seen that Ex.P1 is a spurious
document and the respondent cannot claim title to the property on the basis of
this document;
        (ii)that the Court below has erred in believing the  oral  gift  dated
2.2.1983 reduced in to writing as per Ex.P1 dated 3.2.1989;
        (iii)the Court below has failed to see that P.W.2 is the brother’s son
of respondent and an interested party to the respondent;
        (iv)the Court below has failed to see that the non examination of Syed
Rahmathullah Sahib is fatal to the oral gift set up by the respondent;
        (v)the Court below has further failed to see that in the first page of
Ex.P1  the  signature  of  Bismillah  Hussain has not been found and this goes
without proper explanation offered either by the respondent or by P.W.3  whose
evidence is highly artificial;
        (vi)the  Court  below  has  failed  to see that Bismillah Hussain died
within three months of the execution of Ex.P1 which is invalid  in  Mohammedan
Law and hence the Court below ought to have disbelieved the gift or Ex.P1;
        (vii)the Court below has further failed to see that the respondent has
not taken out proceeding for declaration of her title, but has prayed only for
bare  injunction,  but  the  lower  Court  has  treated  the  suit  as one for
declaration and has decreed O.S.No.9216 of 1989 further refusing the claim  of
partition by the appellants in their suit in O.S.No.10171 of 1989;

        14.   On  such  grounds  the appellants in both the above Appeal Suits
would pray to allow the Appeal Suits and dismiss the suit in O.S.No.921  6  of
1989 and decree the suit in O.S.No.10171 of 1989.

        15.  During arguments, the learned counsel appearing on behalf of  the
appellants  would submit that both the above appeals are directed respectively
against the common judgment and decree dated 3.12.1992 rendered in O.S.No.9216
of 1989 and 10171 of 1989 by the Court of  III  Assistant  Judge,  City  Civil
Court,  Madras;  that  while O.S.No.10171 of 19 89 was filed by the appellants
for partition and separate possession claiming their 26/36 shares in the  suit
properties,  the  other  suit  O.S.No.9216 of 1989 was filed by the respondent
herein for a  bare  injunction;  that  the  appellants  filed  their  suit  on
averments  such  as  originally  the  suit  property  belonged to one Mohammed
Hussain, father of the appellants and late Bismillah Hussain; that the  father
died  in  19  62  leaving  behind  Bismillah  Hussain and the appellants; that
regarding the shares Bismillah Hussain was entitled  to  half  share  and  the
appellants  each  entitled  to  1/4 share; that on 29.4.1965 Bismillah Hussain
purchased the land in his name and on 4.12.1967 the appellants released  their
half share in favour of their brother Bismillah Hussain and thus be became the
absolute  owner  of  the  suit properties; that on 27.2.1989 Bismillah Hussain
passed away leaving behind him his wife and his sisters  as  heirs;  that  the
respondent  is entitled to 1/4 share and the remaining goes to the appellants;
that the defence is that on 2.2.1989 there was a oral gift in  favour  of  the
respondent  and the same was reduced into writting on 3.2.1989; that the sworn
affidavit is marked as Ex.A1; that whether the  alleged  oral  gift  has  been
properly proved  or  not?    is  the  point  for consideration; that under the
Mohammedan law oral gift is accepted; that  the  appellants’  contentions  are
that  after  the  death of Bismillah Hussain the gift deed has been brought to
light by manipulation; that on 25.2.1989 Bismillah Hussain complained of chest
pain and on 27.2.1989 he died; that the deed is alleged to have  been  written
on  3.2.1989 pertaining to which suspicious circumstances prevail; that on the
40th day ceremony in April 1989, in the presence of every one no one  demanded
that there was a gift given by the deceased.
        16.   The  learned  counsel  would  further  submit  that the suit for
partition by the appellants was  dismissed  whereas  the  suit  for  permanent
injunction  restraining  the  appellants  from  interfering  with the peaceful
possession and enjoyment of the suit property by the respondent  was  decreed;
that though the gift was oral made on 2.2.1989 had got reduced into writing on
3.2.1989  is  the  case  of the respondent, citing instances from the relevant
paragraphs  of  the  plaint  and  the  judgment,  the  learned  counsel  would
ultimately  point  out  that at page 1 of Ex.A1 does not bear the signature of
the executant; that regarding Ex.A1 , P.W.1 the wife  says  that  her  husband
personally drafted the affidavit; that the language does not appear to be his;
that  he  says  that an agreement announcing the Mehar was entered into but it
was not marked; P.W.1 says that he himself was there present but  the  version
of  P.W.2  is  different,  thus the learned counsel would end up his arguments
citing from a judgment of the Hon’ble Apex court reported in AIR 19 76 SC  807
(KALE AND  OTHERS  v.  DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS) wherein it
is held that the family settlement must be a bona fide one so  as  to  resolve
family disputes and rival claims by a fair and equitable division or allotment
of properties  between  the  various  members  of  the  family.....   the said
settlement must be voluntary and should not be induced by fraud,  coercion  or
undue influence.

        17.  On the contrary, the learned counsel appearing on behalf  of  the
respondent  would  cite  two  judgments,  the  first one rendered by a learned
single Judge of the Panjab and Haryana High Court reported in 200 0(3) CCC 227
(P&H) (NIRMAL SINGH & ANR.  v.  BHAGWANT SINGH  &  ORS.)  following  the  Apex
Court Judgments delivered  in  MATURI PULLAIAH & ANR.  v.  MATURI NARASIMHAN &
ORS.(AIR 1966 S.C.1836) and yet another judgment in KALE & ORS.   v.    DEPUTY
DIRECTOR OF  CONSOLIDATION  &  ORS.  (supra) wherein in the first judgment the
Hon’ble Apex Court has held that:
The  family  arrangement  will  need  the  registration only if it creates any
interest in immovable property in presenti in favour of the parties  mentioned
therein.   In case, however, no such interest is created, the document will be
valid despite its non-registration and will not be hit by Section  17  of  the
Registration Act.

        18.  In the second case cited above, the Hon’ble Apex Court reiterated
the above principle with approval but enlarged the scope of an oral settlement
which is acted upon between the parties in the following observations:

The family arrangement may be even oral  in  which  case  no  registration  is
necessary.   The  registration  would  be  necessary  only if the terms of the
family arrangement are reduced into writing.  Here also a  distinction  should
be  made  between  a  document  containing  the terms and recitals of a family
arrangement made under the document and a mere memorandum prepared  after  the
family  arrangement had already been made either for the purpose of the record
or for information of the Court or making necessary mutation.  In such a  case
the  memorandum  itself  does not create or extinguish any rights in immovable
properties and is, therefore, not compulsorily registrable
        19.  Mulla’s Mohammedan law  Section  147  would  recite  writing  not
necessary:-  Writing  is  not  essential  to  the validity of a gift either of
movable or of immovable property.  A gift under the Mohammedan law  is  to  be
effected in  the  manner prescribed by the Mohammedan law.  If the formalities
prescribed by that law (s.150 below) are complied with, the gift is valid even
though it is not  effected  by  a  registered  instrument  and  though,  where
effected by an instrument, the instrument is not attested.

        20.   The  learned  counsel would also cite Section 67 of Evidence Act
wherein for proof of signature and  handwriting  of  person  alleged  to  have
signed  or written document produced (S.67(5)) ‘it is not material whether the
document is signed only at the first page or only the last page or whether  it
bears the  signature  of  the  executant  on all the pages of a document.  The
insertion of the name in any part of the writing, in a manner to  authenticate
the  instrument  is  sufficient, although the signature be in the beginning or
middle of the instrument it is as binding as if at the foot of it.’
On such arguments, the learned counsel would pray to dismiss  both  the  above
appeals with costs.

        21.   Based on the pleadings of the parties, the points determined for
consideration in the appeal suits are:

        i) Whether the Trial Court is right in decreeing the suit filed by the
respondent herein in O.S.No.9216 of 1989?

        ii) Whether the Trial Court is right in dismissing the suit  filed  by
the appellants herein in O.S.No.10171 of 1989?
        iii) What relief the parties are entitled to?

        22.   In  consideration  of  the  facts  pleaded, having regard to the
materials placed on record and upon hearing the learned counsel for both,  the
facts involved  in the appeal suits are simple.  The appellants claim title in
accordance with law on the death of their brother and hence the suit filed  by
them  was  for  partition and separate possession of their 26/36 shares of the
suit properties.  On the contrary, the respondent would file the suit for bare
injunction restraining the appellants from in any manner interfering with  her
peaceful  possession  and  enjoyment of the suit properties on ground that she
was entitled for such relief since the appellants have released  their  rights
in  the  suit  properties  in  favour of their deceased brother and that their
deceased brother who is none other than the husband of the respondent by  oral
gift  dated  2.2.1989  bequeathed  the entire properties in her favour and the
said gift also got reduced into writing on the subsequent  date  that  was  on
3.2.1989.

        23.  The trial Court having traced the facts as pleaded by parties  in
both the suits would frame three issues in O.S.No.9216 of 1989 as extracted in
para 9  supra.    Likewise it would frame three main issues and one additional
issue in O.S.No.10171 of 1989 which have also  been  extracted  in  para  No.9
supra and based on those issues would allow the parties to record evidence and
on  the  part  of the respondent, she would not only examine herself as P.W.1,
but also would examine two other witnesses as P.Ws.2 and 3 for  oral  evidence
and  would  adduce  clinching evidence pertaining to the oral gift made in her
favour by her husband on 2.2.1989 besides proving the  reducing  of  the  same
into writing  the  subsequent  date  that  was  on 3.2.1989.  Besides the oral
evidence on the part of the respondent, 11 documents would also be  marked  as
Exs.A1  to A11 which have been described in para 11 supra of which Ex.A1 dated
3.2.l989 is the sworn affidavit of Bismillah Hussain and crucial to  the  case
and  whether  this  document has been proved to the requirements of law and to
the satisfaction of the Court is still more important.  In her evidence, P.W.1
has categorically stated that her husband gave oral gift on 2.2.1989  and  the
same  had  been done by him in a sound disposing state of mind and at the time
of such gift, witnesses Fasiul Huq and Rahmathullah Sahib were present and the
said gift had been reduced into writing in the presence of the  Notary  Public
on 3.2.1989  and  would  mark  the said document as Ex.A1.  This witness would
further depose to the effect that in  the  gifted  property  there  are  three
tenants and under the gift he had also the right to collect rent and to change
all  the  records  in her favour and that her husband died on 27.2.1989 due to
heart attack.  She  would  also  mark  the  other  do  cuments  for  being  in
possession and  enjoyment  of  the suit property.  In the crossexamination she
would withstand and would confirm what she deposed in the  chief  examination.
One of the key witnesses to Ex.A1 would be examined as P.W.2 and he would also
confirm  the version of P.W.1 so far as the coming into being of Ex.A1 and the
gift given on the day prior to the same.  P.W.3 is one who attested Ex.A1  and
his  attestation  and  evidence  adduced  would help to declare genuineness of
Ex.A1 in not small measure, this witness  would  also  answer  minute  details
raised  in  the  cross-examination  and  therefore,  the lower Court has every
reason to believe that the  evidence  of  this  witness,  and  once  Ex.A1  is
trusted,  the  claim  of  the  appellants  automatically  goes  and hence easy
conclusions could be arrived at granting the relief  as  sought  for  in  O.S.
No.9216  of 1989 and dismissing the other suit in O.S.No.10171 of 1989 and the
same has been done by the trial Court rightly in appreciation of the  evidence
in the  proper  manner.    On  the other hand on the part of the appellants no
proper evidence would be adduced so as to demolish the case
of the other side encircling Ex.A1 and to establish their own case and even on
appeal  the judgment cited on the part of the respondent would go well in tune
with the case of the respondent so far as the gift dated 2.2.1989 orally given
by the deceased in favour of the respondent was  concerned  and  the  reducing
into writing of the same the subsequent date, since it is a family arrangement
and  supported  by these judgments and the dictum of law quoted from Mulla and
the relavant provision of  the  Evidence  Act  all  put  together  would  only
consolidate   the   decision  of  the  lower  Court  and  therefore  in  these
circumstances this Court cannot arrive at a different conclusion than that  of
one arrived at by the lower Court and hence the following judgment:
        In result,
        (i) both the above appeals fail and they are dismissed;
        (ii)   the   common  judgment  and  decree  dated  3.12.1992  made  in
O.S.No.9216 of 1989 and O.S.No.10171 of 1989 by the  Court  of  III  Assistant
Judge, City Civil Court, Madras are hereby confirmed;
        (iii)  however,  in  the  circumstances of the case, there shall be no
order as to costs.

Index:Yes
Internet:Yes

"160. Gift of mushaa where property divisible.- A gift of an undivided share (mushaa)in property which is capable of division is irregular (fasid), but not void (batil). The gift being irregular, and not void, it may be preferred and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated. Exceptions._ A gift of an undivided share (mushaa), though it be a share in property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee, in the following cases:_ (1) where the gift is made by one co-heir to another; Kanij Fatima v. Jai Narin (1944) 23 Pat. 216, ('44) A.P.334 (a case of gift by mother to daughter of two anna share in lands, the daughter having taken joint possession). (2) where the gift is of a share in a zemindari or taluka; (3) where the gift of a share in freehold property in a large commercial town; (4) where the gift is of shares in a land company. 161. Gift to two or more donees._ A gift of property which is capable of division to two or more persons without specifying their shares or without dividing it is invalid, but it may be rendered valid if separate possession is taken by each donee of the portion of the property given to him or if there is a subsequent arrangement between all the donees with regard to the possession of the property gifted. This rule does not apply to the case mentioned in the third Exception to sec. 160 (h), nor, it is conceived, to the cases mentioned in the other Exceptions."

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 21/01/2008

CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA

A.S.No.1315 of 1989

1.Mohammed Gani
2.Gulam Mohammed
3.Sherfuddin ... Appellants/Defendants

Vs


Parthamuthu Sowra ... Respondent/Plaintiff


Prayer


Appeal filed under Section 96 of the  Code of Civil Procedure, against
the judgment and decree dated 20.06.1989 in O.S.No.76 of 1986 on the file of the
Subordinate Judge, Pudukkottai.

!For Appellants ... Mr.G.Sridharan

^For Respondent ... Mr.K.Srinivasan



:JUDGMENT

Challenging the judgment and decree dated 20.06.1989 in O.S.No.76 of 1986
on the file of the Subordinate Judge, Pudukkottai, this appeal has been filed by
the unsuccessful defendants.

2. The parties, for convenience sake, are referred to hereunder according
to their litigative status before the trial Court.

3. Broadly but briefly, precisely but narratively, the case of the
plaintiff as stood exposited from the plaint could be portrayed thus:

The properties described in the Schedule of the plaint and other
properties originally belonged to the deceased N.M.Abdul Rahiman Rowther, the
father of the plaintiff and the defendants 1 to 3.  By a registered partition
deed dated 07.11.1963, the said original owner distributed his estate and
allotted shares for himself and his sons born through his first wife and
separately allotted a share nomenclatured as 'D' Schedule to the plaintiff and
the defendants jointly.  The plaintiff and the defendants were minors at the
relevant time of emergence of the said partition deed and hence their mother
represented as guardian for the minors.  The defendants after attaining majority
admitted the plaintiff's share in the suit properties as co-owner entitled to
equal share along with the defendants.  The plaintiff decided not to continue in
joint possession and enjoyment of the suit properties and hence, the lawyer's
notice dated 29.10.1980 emerged at her instance calling upon the defendants to
agree for amicable partition and for allotment of her 1/4 th share in the suit
properties, but there was no positive response.  Hence, the suit for partition
and for other incidental reliefs as well as for rendition of accounts.

4. Per contra, denying and disputing, refuting and challenging the
averments/allegations in the plaint, the defendants filed the written statement
with the averments which would run thus:

The plaintiff is not entitled to 1/4 th share in the suit properties.  As
per Holy Kureon, a daughter could claim only one share whereas a son is entitled
to two shares.  The wife is entitled to 1/8 the share alone in her husband's
property in the presence of children.  The defendants have not admitted the
plaintiff's alleged 1/4 th share in any Court proceedings.  A sum of Rupees One
lakh was spent relating to the marriage of the plaintiff and the defendants also
spent Rupees Two lakhs for protecting the suit properties.  The mother of the
plaintiff and the defendants, Aayisa Beevi Ammal during the life time of the
deceased N.M.Abdul Rahiman Rowther obtained his rice mill in her favour and as
such, the plaintiff cannot claim partition in the rice mill.  The suit is also
bad for non-joinder of Aayisa Beevi Ammal as a party to the suit.   In fact, the
plaintiff during her marriage got by way of jewels and other articles worth more
than her share.  The defendants also gave twenty bags of paddy every year to the
plaintiff ever since her marriage.  Accordingly, they prayed for dismissal of
the suit.

5. The trial Court framed eight issues.  During trial, the plaintiff
examined herself as P.W.1 and Exs.A.1 to A.9 were marked and the first defendant
examined himself as D.W.1 along with D.W.2 and Exs.B.1 to B.52 were marked.

6. Ultimately, the trial Court decreed the suit to the effect that the
plaintiff is entitled to    1/4th share and also ordered for rendition of
accounts.

7. Being aggrieved by and dissatisfied with, the judgment and decree of
the trial Court, this appeal has been filed on the following main grounds inter
alia thus:

The trial Court committed error in holding that the plaintiff despite she
being a Muslim lady, is entitled to 1/4 th share in the suit properties, even
though she is entitled to only 1/8th share in the presence of the defendants who
are the brothers of the plaintiff.  The defendants are entitled to 7/8 th share
as per Muslim law.  The trial Court failed to hold that according to Muslim law,
a daughter of the deceased is entitled to one share whereas the son of the
deceased is entitled to double shares.  The trial Court failed to hold that the
suit is bad for non-joinder of Aayisa Beevi Ammal, the mother of the parties.
Accordingly, they prayed for setting aside the judgment and decree of the trial
Court or at the most, for decreeing the suit only to the extent of 1/8th share
in favour of the plaintiff.

8. The point for consideration are:
(i) Whether the respondent/plaintiff is entitled to 1/4 th or 1/8 th share
in the suit properties as per the Muslim law and more particularly,  in the wake
of the recitals in Ex.A.1, the partition deed dated 04.11.1963?
(ii) Whether the suit is bad for non-joinder of the mother of the
plaintiff and the defendants as a party to the suit?
(iii) Whether there is any infirmity in the judgment and decree of the
trial Court?

9. All the points are taken together for discussion as they are
interlinked with one another.


Point Nos:(i) to (iii)

10. The learned Counsel for the defendants placing reliance on Ex.A.1, the
partition deed would develop his argument to the effect that the deceased
N.M.Abdul Rahiman Rowther allotted the suit properties which were described as
'D' Schedule in Ex.A.1 in favour of the plaintiff and the defendants jointly by
appointing their mother as guardian; the recitals in Ex.A.1 would demonstrate
that the plaintiff and the defendants were expected to enjoy jointly the suit
properties and nowhere it is found specified therein that the plaintiff and the
defendants should share equally the suit properties.  Whereas the trial Court
erroneously in the judgment understood as though the deceased N.M.Abdul Rahiman
Rowther had given the properties to the plaintiff and the defendants, for being
shared equally among them; as per Muslim law, the plaintiff being the daughter
and the defendants 1 to 3 being the sons of the deceased N.M.Abdul Rahiman
Rowther, should take one share by the plaintiff and double shares by the
defendants and accordingly, the plaintiff is entitled to only 1/8th share.
Accordingly, they prayed for modifying the judgment and decree of the trial
Court by allotting only 1/8th share in favour of the plaintiff.

11. The learned Counsel for the plaintiff would interpret  Ex.A.1 to the
effect that as per the recitals in Ex.A.1, the plaintiff and the defendants were
given with 'D' Schedule properties to be enjoyed equally and in such a case,
each of them is entitled to 1/4 th share and that the Muslim law relating to the
allotment of shares should not be pressed into service.

12. The cardinal point which required to be decided in this case is as to
whether the deceased N.M.Abdul Rahiman Rowther intended that the plaintiff, his
daughter and the defendants, his sons should take equally 1/4th share in the
suit properties.  Ex facie and prima facie, the trial Court fell into error in
giving a finding that as per the recitals in Ex.A.1, the said N.M.Abdul Rahiman
Rowther intended that the plaintiff and the defendants should share equally the
suit property.  Nowhere in Ex.A.1, it is found stated like that.  It is just and
necessary to extract certain portions in Ex.A.1 thus:
"4tJ ghh;l;o ikdh;fs; ehy;tUk; ndp 1yf;f jhuUf;Fk; 4tJ ghh;l;ofspd;
fhh;oad; Map&h gPtpf;Fk; re;jjp Vw;gl;lhy; mth;fSk; Brh;e;J xU ghfkhf mDgtpj;Jf;
bfhs;sBtz;oaJ  Map&h gPtpf;F Vw;fdBt xJf;fg;gl;oUf;fpwgo mth;fs; mile;J bfhs;s
Btz;oaJ ndp xUtUf;bfhUth; jpBuf rk;ke;jBk jtpu mh;j;j rk;ke;jKk; gpd; ghj;jpaKk;
Jlh;r;rpa[k; ny;iy."

13. A mere perusal of it, would pave no way for ambiguity as the recitals
would demonstrate that he intended the plaintiff and the defendants should
jointly enjoy the property.  He also set out therein that for his wife so to
say, the mother of the plaintiff and the defendants, he had given separate
properties during his life time.  It is therefore crystal clear that the father
of the plaintiff and the defendants intended that the plaintiff and the
defendants should enjoy the property jointly, but he never contemplated and
mandated therein as to how the inter se partition should take place among them.
So long as, they have to enjoy jointly, the question of share would not arise.
But, once the property which they got it from their father should be
partitioned, automatically Muslim law of inheritance will come into vogue.

14. The main point to be taken into consideration here is that the
plaintiff and the defendants constitute one group under Ex.A.1 and they are the
legal heirs of the deceased N.M.Abdul Rahiman  Rowther and it is not as though
N.M.Abdul Rahiman Rowther gave the property to some third parties.  During his
life time itself, the said N.M.Abdul Rahiman Rowther in order to avoid disputes
among the children born through his several wives, executed the partition deed
Ex.A.1.  As such, he intended that the suit property, that is 'D' Schedule in
Ex.A.1, should go to the children born through his wife Aayisa Beevi Ammal, so
that his other children born through his other wives would not be able to make
any claim.

15. It is not a mere Hiba given by the said N.M.Abdul Rahiman Rowther to
strangers comprised of males and females.  But, he gave it to his own children
born through one of his wives so as to make them to enjoy jointly leaving open
the application of Muslim law in the event of they opting for partition.  As
such, Ex.A.1, the partition deed is not having the effect of ousting the
application of Muslim law of inheritance when the question of inter se partition
among the heirs born through his wife Aayisa Beevi Ammal, arises.  Hence, the
argument advanced on the side of the plaintiff that once the plaintiff and the
defendants jointly got the suit properties under Ex.A.1, the question of
applying the Muslim law of inheritance does not arise, fails to carry conviction
with this Court in view of the reasons set out supra.

16. The paramount intention of the said N.M.Abdul Rahiman Rowther was to
protect the children born through his wife Aayisa Beevi Ammal from the
interference of other children born through his other wives and it was not his
intention that the plaintiff, his daughter should take equal share with his
sons, the defendants 1 to 3 ousting the Muslim law of inheritance.  The trial
Court's finding that the non-joinder of the said mother who was given with the
properties separately, was not a necessary party to the proceedings, requires no
interference.  It is therefore clear that the judgment and decree of the trial
Court is liable to be modified declaring that the plaintiff is entitled to 1/8th
share and the defendants are entitled to the remaining 7/8 share.

17. There is one other alternative plausible legal view available in this
case.  It is worthwhile to refer to the principles of Mohammedan Law.  I suo
motu referred to the principles of Hiba and mushaa and called upon the learned
Advocates on either side to argue on it as those are all pure questions of law
which could be raised at any stage including the appellate stage as it is the
case herein.  The learned Advocates on either side also concentrated on those
principles and argued in entirety.

18. It is a trite proposition of Muslim Law, there is no distinction
between ancestral property and self-acquired property.  A Muslim can transfer
inter vivos his properties by Hiba (gift).  By birth, a descendant  is having no
right over his ascendant's properties during the life time of the latter.  In
this factual matrix, what the said Abdul Rahim Rowther as per Ex.A.1, intended
was to donate his properties by hiba, in favour of his sons born through his
other wives and the 'D' Schedule properties as one lot in Ex.A.1 (i.e, the suit
properties herein) in favour of his children who were born through his third
wife and also to the children yet to be born to him through his same third wife.

19. At this juncture, I would like to reproduce the relevant excerpts from
the famous Treatise "Mulla's Principles of Mahomedan Law" [19th Edition - by
M.Hidayathullah and Arshad Hidayatullah] thus:

"160. Gift of mushaa where property divisible.-
   A gift of an undivided share (mushaa)in property which is capable of division
is irregular (fasid), but not void (batil).  The gift being irregular, and not
void, it may be preferred and rendered valid by subsequent partition and
delivery to the donee of the share given to him.  If possession is once taken
the gift is validated.
Exceptions._ A gift of an undivided share (mushaa), though it be a share
in property capable of division, is valid from the moment of the gift, even if
the share is not divided off and delivered to the donee, in the following
cases:_
(1) where the gift is made by one co-heir to another;
Kanij Fatima v. Jai Narin (1944) 23 Pat. 216, ('44) A.P.334 (a case of gift by
mother to daughter of two anna share in lands, the daughter having taken joint
possession).
(2) where the gift is of a share in a zemindari or taluka;
(3) where the gift of a share in freehold property in a large commercial
town;

(4) where the gift is of shares in a land company.
161. Gift to two or more donees._ A gift of property which is capable of
division to two or more persons without specifying their shares or without
dividing it is invalid, but it may be rendered valid if separate possession is
taken by each donee of the portion of the property given to him or if there is a
subsequent arrangement between all the donees with regard to the possession of
the property gifted. This rule does not apply to the case mentioned in the third
Exception to sec. 160 (h), nor, it is conceived, to the cases mentioned in the
other Exceptions."

20. Admittedly, the parties are covered by the Sunni Law as they are
residents of Tamil Nadu.  The recitals in Ex.A.1, obvious as they are, do not
demonstrate that the said Abdul Rahim Rowther intended the suit properties,
referred to in the 'D' Schedule of Ex.A.1, should be divided equally among his
sons and daughters and the children to be born to his third wife.  In fact, he
went a step further and set out therein that he wanted that 'D' Schedule
properties as one lot should be enjoyed jointly by his children namely the
parties to this suit and his children to be born through his third wife quite
antithetical to the principles of Muslim law relating  to Hiba and mushaa.

21. The learned Counsel for the plaintiff placing reliance on the said
recitals in Ex.A.1, would develop his arguments that had the donor intended that
his sons and daughters should take equal specific shares, he might not have set
out  therein that his male or female children to be born also should enjoy those
properties.  As such, it is obvious that there is no certainty or specificity of
shares to be taken by his children under Ex.A.1, which is ex facie and prima
facie against the Muslim law which precisely prohibits confusion leading to
litigative partition among the donees.
22. The concept 'mushaa' which as per Muslim Law, prohibits donation to
several donees without specifying as to what are the specific shares of the
donees by metes and bounds.  No doubt, the learned Counsel for the defendants
would argue that at the time of the said hiba arrangement, the defendants were
minors and hence, on behalf of them, their mother accepted the gift of
properties.   No doubt, as per the Muslim Law, there might be acceptance by the
mother on behalf of the minors.  But, there should have been specification of
shares of the donees.

23. It is an incontrovertible proposition of Muslim law that the father
has got the right to make gifts of unequal shares to his children quite contrary
to the shares and arrangement contemplated in the Muslim law of inheritance.

24. However, had the donor specified the exact shares, then the matter
would have been different, but it had not been done so under Ex.A.1.  Adding
fuel to fire, he even mandated that his children to be born also would be
entitled to enjoyment and that clearly evidences that at the time of executing
Ex.A.1, the shares were uncertain relating to the donees and the number of
donees also were uncertain.  the unassailable Muslim Law proposition is that
donation can be given to a child in the womb "en ventre sa mere", but not to a
child not yet conceived in the mother's womb.  As such, I am of the considered
opinion that to that much portion of Ex.A.1 falls foul of Muslim Law and as
such, the suit properties should be treated as the properties inherited by the
plaintiff and the defendants from their father.

25. A doubt might arise as to whether the other wives and children born
through other wives would  lay claim over the suit properties herein.  The fact
remains that the donor during his life time settled various properties in favour
of his other children born through his other wives and he also gave properties
to his third wife and as per the recitals in Ex.A.1 itself, such donees
virtually accepted their snapping of their interest over the 'D' Schedule
properties.

26. The learned Counsel for the defendants also would submit that in the
previous litigation before the Court, the plaintiff and the defendants jointly
as one group got a finding from the Court itself that Ex.A.1 is a valid
document.  Ex.A.9, is the certified copy of the judgment dated 15.03.1972, in
O.S.No.2 of 1967 passed by the Sub Judge, Pudukkottai, which was filed by one of
the widows of the said Abdul Rahim Rowther, against the sons born through his
third and fourth wives and also against his fourth wife and others for
partition.

27. No doubt, in that case, the document Ex.A.1 herein, was also marked as
Ex.B.10 and ultimately, the Court did not disturb the validity of even a portion
of Ex.A.1 herein.  In my opinion, such judgment emerged on a different footing
and this legal point was not raised therein and obviously there was no
adjudication on that.

28. This judgment is one passed 'in personam' and not 'in rem'.  So far,
the rights of others are concerned, the parties to those proceedings are bound
by it and the arguments of the learned Counsel for the defendants herein would
be a good answer for those other heirs of the donor if they try to lay claim
over the 'D' Schedule property in Ex.A.1, but among the plaintiff and the
defendants herein, the suit properties should be divided among them by applying
the Muslim law of inheritance.  Simply because, in the previous proceedings, the
other heirs of Abdul Rahim Rowther did not raise such plea that it does not mean
that in the inter se dispute between the plaintiff and the defendants, the
embargo contemplated as against Ex.A.1 under Muslim law should not be invoked or
considered.

29. Be that as it may, without being tautologous, I would reiterate that
the judgment to be passed herein, is only a judgment 'in personam' and not a
judgment 'in rem'.  Accordingly, if viewed, it is clear that as per the Muslim
law, the plaintiff is entitled to 1/8th share in the suit property and the
remaining shares belong to the defendants.  As such, Ex.A.1 settlement relating
to the D Schedule property, even if taken as valid in toto, yet the plaintiff is
entitled to 1/8th share and alternatively as per the second view expressed
supra, that much portion of Ex.A.1 fails as it falls foul of the principles of
hiba and in such an event once again, the plaintiff would be entitled to 1/8th
share and the defendants would be entitled to the remaining shares.

30. In fact, the division should be as follows:
The entire suit properties should be divided to 7 shares.  1/7th share
shall be allotted to the plaintiff and each of the defendants is entitled to 2/7
th share.

31. In the result, this appeal is disposed of accordingly, modifying the
judgment and decree of the trial Court.  No costs.


rsb

To

The Subordinate Judge, Pudukkottai.

Hiba - Amongst the Ismaili school of the Shia sect a gift made during death-bed illness by a person is not valid to any extent, when it is made to one of more of several heirs to the exclusion of other legal heirs. On this point, the Shia school of law lays down, the same rule as that of the Hanafi law. 29. In the decision Saira bai w/oAsgar Hussain vs. S.S.Joshi and another reported in AIR 1960 Madhya Pradesh 260 it has been held that under Mohammedan Law, merely because a gift deed has been registered, the same cannot dispense with delivery of possession, which is one of the essential requirements of a valid gift under Mohammedan Law. 30. It is not in dispute that under Mohammedan Law, a gift made during death-bed illness (Marzur muth) is not valid, when it is made to one of several heirs to the exclusion of other heirs. Even in AIR 1936 Mds. 432 (cited supra), the same has been made clear. Even if the gift is given, by way of a registered document, under Mohammedan Law, for a valid gift, delivery of possession is mandatory, which cannot be dispensed with. 31. Therefore, in the light of the decisions referred above, I am of the view that Ex.B2, Settlement Deed had been executed while Abdul Raheem was in his death-bed, counting his days. There is no implied or expressed acceptance of Ex.B2 by the first respondent and the extend of possession and enjoyment of the first item of property by the appellant and the first respondent, would also show that the settlement deed, Ex.B2, has not been acted upon, prior to the death of late Abdul Raheem or subsequently

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :  05.03.2008
CORAM :
THE HON BLE MR. JUSTICE S.TAMILVANAN
A.S.No.618 of 1996



A.R. Abdul Latheef ...  Appellant/Plaintiff

vs.
1.A.R.Mohammed Iliyas
2.Fathima Bibi
3.Mumtaz Begum
4.Karur Vysya Bank,
rep. by its Manager, Peria Kadai Street,
Anamalai,
Pollachi Taluk. ... Respondents/D-1 to 4


Appeal is filed against the Judgment and Decree dated 30.09.1994 made in O.S.No.198 of 1990 on the file of the Subordinate Judge, Udumalpet.


For Appellant : Mr.C.R.Prasanna
For RR 1 to 3 : Mr.A.S.Vijaya Raghavan
For R4 : Mr.Udayakumar

- - - - -






JUDGMENT


This appeal is directed against the judgment and decree dated 30.09.1994 made in O.S.No.198 of 1990 on the file of Sub Court, Udumalpet.

2. The appellant herein was the plaintiff in the suit before the Trial Court and the suit was filed for partition of the schedule mentioned properties of the plaint.

3. It is an admitted fact that the appellant/plaintiff and the first respondent/first defendant are brothers and also sons of one Abdul Raheem. The second respondent is the wife and the third respondent is daughter of the said Abdul Raheem, who died on 07.04.1990.

4. According to the appellant/plaintiff, the said Abdul Raheem died intestate leaving the schedule of properties, described in the plaint. Though the respondents 1 to 3 have admitted their relationship and the relationship of the appellant with the deceased Abdul Raheem, they have alleged in the written statement that late Abdul Raheem had executed two settlement deeds marked as Exs.B.1 and B.2 in favour of the first respondent. They have also disputed the existence of the properties described as item Nos.3 to 6 in the schedule of property. It is seen that item No.3 is stated as a vacant site of 9 cents in Anamalai Village, without furnishing any survey number, four boundaries and other details.  Similarly, item No.4 is stated as Jewels and Cash at Karur Vysya Bank, belong to the family, without furnishing  details and valuation of the same.  Item No.5 is stated as household articles to the value of Rs.20,000/- without any description or details. Item No.6 is stated as Cattle, Bullocks, Carts to the value of Rs.30,000/- for which also there is no details available in the schedule of properties. According to the respondents 1 to 3,  properties stated as item Nos.3 to 6 are not in existence. The Trial Court has also held on the basis of the evidence available on record that the aforesaid properties are not in existence for partition.

5. In this appeal, it is clear that item No.1 is a land measuring 3.25 acres in S.F.No.659, Anamalai Village, Pollachi Taluk, Item No.2 is a house bearing Door No.11/34, Sahib Rowther Street, Anamalai Village, Pollachi Taluk. As per the impugned judgment, the Trial Court held that in the first item of property measuring about 3.25 acres of land,  the first appellant is entitled to partition and separate possession of 14/40 shares only in 2.25 acres of land.  The trial court granted preliminary decree for partition, for 14/40 shares in 2.25 acres of land and with regard to the other item of properties described in the schedule, the suit was dismissed. Aggrieved by the judgment and decree, the plaintiff therein has preferred this appeal.


6. According to the learned counsel for the appellant, the settlement deeds Exs.B.1 and B.2 are not legally sustainable on the ground that the settlement deeds were executed by late Abdul Raheem, during Marz-ul-Maut, while he was in the death-bed. He has further contended that as per Mohammedan Law, when a person is in the death-bed, executing gift settlement deed (Hiba), it will bind only 1/3 of properties, after discharging liabilities.


7. Mr.C.R.Prasanna, learned counsel appearing for the appellant has further submitted that under the Islamic Law, for a valid gift settlement, three essential factors are required to complete a gift, namely declaration, acceptance and delivery of possession of the gifted property.  In the instant case, according to him, there is no evidence to make the gift complete and there is no evidence for the acceptance and delivery of possession of the gifted property, since the first respondent was admittedly not present, while the deceased Abdul Raheem was executing the settlement deeds Exs.B.1 and B.2 and that there is no averments available in the settlement deeds for the acceptance of the gift and that delivery of possession was also not given during the life time of late Abdul Raheem. Therefore, according to the learned counsel for the appellant, the settlement deeds Exs.B.1 and b.2 were not acted upon.

8. The appellant has raised the plea that the possession of the gifted properties were only in the possession of the donor till the date of his death, on 07.04.1990.  Ex.X.1  is the carbon copy of the House Tax Receipt available in the receipt book and Ex.X.2 is the House Tax Demand Register the said documents were received from the Municipal Authorities. According to the learned counsel for the appellant, the respondent had failed  to establish the alleged expenses incurred by him for the treatment of late Abdul Raheem and Exs.B11 to B14 are only created documents for the purpose of the suit.

9. The appellant as P.W.1 has deposed in his evidence that he was with his father Abdul Raheem till he died on 07.04.1990 and that he was in possession and enjoyment of 2.25 acres of land belonged to his father and the other properties were in the joined possession and enjoyment of the appellant and the respondents 1 to 3  and therefore, he is entitled to 14/40 shares in said properties.

10. It is seen that the following issues were framed by the Trial Court.

(1)  Whether the gift settlement deeds(Heba) dated 24.07.1997 and 02.11.1989 were obtained by the first respondent/D1 under threat and coarsen?

(2) Whether   the   settlement   deeds dated 24.07.1997 and 02.11.1989 were acted upon;
(3) Whether the appellant was entitled to permanent injunction as prayed for?
(4) What relief the plaintiff/appellant is entitled to?

In the schedule of properties the appellant / plaintiff has stated six items of properties and for the third item of the suit property, a vacant site measuring 9 cents, at Anamalai Village, Pollachi Taluk no survey number, four boundaries and other descriptions have been given.  Similarly for the alleged fourth item, jewels and cash at Karur Vysya Bank, Anamalai Branch, account number of the Bank and  other details were not given.  Item number five has been stated as house hold articles worth about Rs.20,000/- without any details. Item number six of the schedule of properties, is Carts, Bullocks, Cattle etc., to the value of Rs.30,000/-. As found by the Trial Court, there is no evidence available to establish the existence of the aforesaid properties.

11. In the written statement filed by the defendants 1 to 3 the existence of item No.3 to 6 in the schedule of properties has been denied. As there is no positive evidence for the availability of the aforesaid properties, this Court is of the view that the Trial Court has rightly rejected the claim of the appellant with regard to items 3 to 6 of schedule of properties. Both the learned counsel, during the course of arguments also placed their reliance only with reference to items Nos.1 and 2 of the schedule of properties, in this appeal. As per the finding of the Trial Court, the appellant/plaintiff is entitled to 14/40 share only in 2.25 acres of land in S.No.659 in Anamalai Village, Pollachi Taluk instead of 14/40 share in the total extend of 3.25 acres in the said survey number. The second item of property, is a residential house bearing D.No.11/34, Sahib Rowther Street, Anamalai Village of Pollachi Taluk.  Taking into consideration of the gift settlement deeds,  Exs.B1 and B2 executed by late Abdul Raheem, in favour of the first respondent the claim of 14/40 share by the appellant was negatived by the Trial Court, except the share in 2.25 acres of land in S.No.659.    Aggrieved by which this appeal has been preferred by the appellant.

12. Mr.C.R.Prasanna, learned counsel appearing for the appellant submits that Exs.B1 and B2 gift deeds alleged to have been executed by Abdul Raheem on different dates in favour of the first respondent are not valid documents as per Mohammedan law and  therefore, the first respondent cannot claim any right over and above his 14/40 share in the first and second items of the suit properties.

13. Per contra, Mr.A.S.Vijaya Raghavan, learned counsel appearing for the respondents 1 to 3 submitted that Exs.B1 and B2 are valid gift settlement deeds  under the Mohammedan law and hence, the appellant is not entitled to any share in the property, gifted to the first respondent by way of Exs.B1 & B2.

14. The points for determination in this appeal are:
1)Whether the appellant/plaintiff is entitled to 14/40 shares in the first item of land, measuring 3.25 acres in S.F.No.659, Anamalai Village and in the second item, house bearing D.No.11/34, Sahib Rowther Street, Anamalai Village, Pollachi Taluk as claimed by him.
2) Whether the appeal has to be allowed?
Points 1 & 2:
It is an admitted fact that late E.Abdul Raheem owned 1 & 2 items of property, land measuring 3.25 acres in S.F.No.659  and the house bearing D.No.11/34 Rawther Street, Anamalai Village, Pollachi Taluk.  Similarly it is not in dispute that the appellant and the first respondent are the sons of late E.Abdul Raheem, the second and third respondent are respectively, wife and daughter of late Abdul Raheem.

15.Mr.A.S.Vijaya Raghavan, learned counsel appearing for the respondents 1 to 3 submitted that though the appellant is the elder son of late E.Abdul Raheem, he was leading a wayward life and also left the family and lived with his uncle separately for about 13 years and that is why is father Abdul Raheem, by Ex.B1,Gift Settlement Deed dated 24.06.1987, executed his residential house, second item of the property in favour of  the first respondent herein and as per Ex.B2, Gift Settlement Deed (Hiba), out of 3.25 acres of land in S.F.No.659,  Anamalai Village,  the first item of property, one acre was gifted to the first respondent and therefore the appellant is entitled to get only 14/40 share in the remaining 2.25 acres of land in S.F.No.659.  Learned counsel appearing for the respondents 1 to 3 further submitted that late E.Abdul Raheem had been a heart patient and for his treatment the respondents 1 to 3 had spent nearly Rs.50,000/-.

16. According to the learned counsel for the appellant, the appellant was also living with his father Abdul Raheem and shared the medical expenses of his father.  However, the first respondent taking advantage of his father's ill health has got Exs.B1 and B2, Settlement Deeds executed with the help of D.W.2, his close relative.  According to him, under Mohammedan law, the aforesaid Gift Settlement Deeds are not legally valid documents. Further arguments advanced by the learned counsel for the appellant is that there was no delivery of possession of the property in favour of the first respondent, pursuant to the execution of the settlement deeds, Exs.B1 and B2.  Hence, the aforesaid documents were not acted upon and it is admitted by the first respondent that he was not present while Exs.B1 and B2 were being executed by late Abdul Raheem.  Therefore, there is no acceptance of Exs.B1 and B2 by the first respondent and the Gift Settlement Deeds have not come into existence.   On the above grounds, the learned counsel for the appellant pleaded that the first respondent cannot claim exclusive right for one acre of land in the first item of property and also the second item of property, namely the residential houses by virtue of Exs.B1 and B2. In support of his contention he relied on the following decisions:

1.Noorunissa alias Pichamma vs. Rahaman Bi and  others(2001(3)MLJ 141)

2.Inum Beevi vs. K.S.Syed Ahamed Kabir(died) and  others (2001(1)MLJ 307)

3.N.A.Abdul Rahim and another vs. A.M.K.mARIAM  Bibi and others (2002(1)MLJ 836)

4.Saira Bai vs. S.S.Joshi and another
 (AIR 1960 MP 260)

5.Said Hassan vs. Shah Hussain (AIR 34  1947(Lahore) 272)

6.Sharof Ali Abdul Ali Shat vs. Safiaboo and  others (AIR 1936 Madras 432)


17.The Division Bench of this Court in the decision reported in 2002(1) MLJ 839 has held that as per Mohammedan Law, even though gift(Hiba) can be made orally, there should be  declaration of the gift by the donor; acceptance of the gift, expressly or impliedly, by or on behalf of the donee; and  must be followed by delivery of possession of the gifted property by the donor to the donee.

18. This Court in the decision in Inum Beevi vs. K.S.Syed Ahamed Kabir(died) and others reported in 2001(1) MLJ 307 has clearly held as follows:

"Muslim Law requires three essential factors to complete a gift, declaration, acceptance and delivery.  If there is no deliver, the defect cannot be cured even by valid registration.  The declaration can be ascertained from the deed itself and the acceptance can also be seen from the deed itself, where the appellant has signed to signify the acceptance can also be seen from the deed itself, where the appellant has signed to signify the acceptance of her gift.  It is also her evidence that she was informed that to sustain the gift she had to accept it and therefore, she affixed her signature but all this would come to naught if there is no delivery.  The recital of the decision regarding delivery of possession raises an initial presumption.  But this presumption is rebuttable as held in various decisions of the Supreme Court and this Court."

19. The Division Bench of this Court in the decision in Noorunissa alias Pichamma vs. Rahaman Bi and others reported in 2001(3) MLJ 141 has held that:

"The principle laid down with regard to bequeathing of property of a Mohammedan would clearly go to show that a Mohammedan cannot bequeath more than one third of his property and even with regard to that one third he cannot bequeath it to his heirs.  If the bequest is to an heir it can be validated by the consent of all the heirs after the death of the testator.  It is also clear that bequest in excess of one third estate cannot take effect unless such bequest is consented by heirs after the death of the testator."

20. According to the appellant, he is cultivating 2.25 acres of land directly out of 3.25 acres of land specified as first item and other properties are also in his joint possession and enjoyment.  It is an admitted fact that Abdul Raheem  died on 07.04.1990 only on 02.11.1989 and nearly six months prior to the date of his death the Gift Settlement Deed, Ex.B2(Heba) was executed by E.Abdul Raheem.  The first respondent, as D.W.1 has admitted in his evidence that he did not inform anything about the suit settlement deeds Exs.B1 & B2, to his brother, the appellant herein and he did not know whether the appellant had knowledge about the settlement deeds, Exs.B1 and B2 or not.

21. It is seen that as per Ex.B1, Abdul Raheem had executed settlement deed dated 24.06.1987, whereby, gifted his residential house at D.No.11/34, Sahib Rawther Street, Anamalai Village, Pollachi Taluk.  As per the averments of Ex.B1, Abdul Raheem had handed over the possession of the property to the first respondent on the date of the document. The house tax receipts dated 11.09.1991, paid in the name of the first respondent Mohammed Iliyas has been marked as Ex.B3 and as per Ex.X1, it is seen that property  tax was paid for the same in the year 1989-90, only in the name of Abdul Raheem.
 
22. According to the learned counsel for the appellant, only subsequent to the date of death of Abdul Raheem the house tax was transferred in the name of the first respondent and therefore, Ex.B1 was not acted upon on the date of a death of Abdul Raheem.

23. The house tax receipt dated 25.02.1994 relating to the second item of property issued subsequently in the name of the first respondent has been marked as Ex.B4. The settlement deed, Ex.B1 relating to the residential house was executed by late Abdul Raheem on 24.07.1987.  As found by the Court below the execution of the document has been proved by way of examining the attester to the document as D.W.2.  Abdul Raheem died only on 07.04.1990 nearly two years and ten months after the execution of the Settlement Deed, Ex.B1. The respondents 2 & 3 respectively wife and daughter of Abdul Raheem having interest in the property and also direct knowledge about the possession and enjoyment of the house property have not disputed Exs.B1, Settlement Deed.  According to P.W.2, Bill Collector, Anamalaui Village, till July 1990, the house tax was paid in the name of Abdul Raheem and copy of the demand register relating to the suit residential house was marked as Ex.X2 through him. It is seen that the house property was in the name of Abdul Raheem till his death and subsequently, the property was transferred in the name of the first respondent.  After the death of Abdul Raheem, the first respondent is paying the property tax in his name which has been established by way of marking the tax receipts.

24. Under such circumstances, this Court is of the view that there is an implied acceptance of the gift under Ex.B1, by the first respondent and the same was acted upon. It cannot be construed that the Gift Deed Ex.B1 was executed by Abdul Raheem, while he was at his death-bed, since he died nearly two years and 10 months after executing Ex.B.1.  Therefore,this Court is of the view that Ex.B1, Settlement Deed relating to the residential house, item No.2 in the plaint schedule, is perfectly valid and as such the appellant cannot claim any right in the said property.

25. The first item of property is an agriculture land of an extent of 3.25 acres in S.F.No.659, Analamai Village as per Ex.B2, dated 02.11.1989 out of the aforesaid extent, one acre of land is alleged to have been gifted in favour of the first respondent.  The first respondent, who was examined as D.W.1 has admitted  that late Abdul Raheem was suffering from heart ailment and he was also aware of his imminent death. Admittedly, Ex.B2, Settlement Deed was not executed along with Ex.B1, but only on 27.07.1987 nearly five months prior to his death, Abdul Raheem had executed the settlement deed, while he was suffering from heart ailment and also having faced his second heart attack. As per the evidence of the appellant, who was examined as D.W.1, in the first item of property, an agriculture land, he is cultivating 2.25 acres of land and his brother, the first respondent is cultivating only one acre.  During the cross-examination, while he was questioned, it was suggested that after filling of the suit, he had encroached 1.25 acres of land and was cultivating the same, which was denied by the appellant.

26. As contended by the learned counsel for the respondent, the above suggestion by the respondent would make it clear that the first respondent is not cultivating the land by virtue of the settlement deed, Ex.B2.  The first respondent who was examined as D.W.1, had also admitted that the appellant is in possession and enjoyment of 1 1/4acre of land by way of encroachment from the date of filing of the suit.  Even as per his evidence, during the life time of his father the kist receipt for the aforesaid land was issued in the name of late Abdul Raheem.  In the cross examination, the first respondent had categorically admitted that his father late Abdul Raheem had heart attack twice and he had the feeling that at any time he would be collapsed. Therefore, so far as the first item of property of 3.25 acre of land is concerned, it is clear that late Abdul Raheem had executed the settlement deed, while he was expecting his death due to the second time of his heart attack.  There is no evidence to show that the possession of the said gifted land was entrusted to the first respondent by virtue of the settlement deed, Ex.B2, while Abdul Rahim was alive.


27. Under such circumstances, it cannot be construed that there was valid implied acceptance of the gift under Ex.B2 by the respondent, since ambition is different from acceptance. Though the first respondent had stated that he had spent nearly Rs.50,000/- for the medical expenses of his father late Abdul Raheem, there is no sufficient evidence to establish the same. Ex.B11 is only a hand written note book and as such a self-serving document, written by pall point pen, without any signature and the other documents marked as Ex.B14 series would also show that only a lesser amount has been spent towards the medical expenses of Abdul Raheem.  During the cross-examination, it was suggested that the value of the property under Exs.B1 and B2 would be around Rs.6,00,000/- however, the same has been denied by the first respondent. Even considering the equity, after executing the residential house in favour of the first respondent, there could be no necessity for Abdul Raheem to execute one acre of land in the first item of property, in favour of the first respondent, so as to affect the right of his another son, the appellant herein.


28. As per the decision in Sharof Ali Abdul Ali Shat vs. Safiaboo and others  reported in AIR 1936 Mds. 432, it has been held that Amongst the Ismaili school of the Shia sect a gift made during death-bed illness by a person is not valid to any extent, when it is made to one of more of several heirs to the exclusion of other legal heirs.  On this point, the Shia school of law lays down, the same rule as that of the Hanafi law.

29. In the decision Saira bai w/oAsgar Hussain vs. S.S.Joshi and another reported in AIR 1960 Madhya Pradesh 260 it has been held that under Mohammedan Law, merely because a gift deed has been registered, the same cannot  dispense with delivery of possession, which is one of the essential requirements of a valid gift under Mohammedan Law.

30. It is not in dispute that under Mohammedan Law, a gift made during death-bed illness (Marzur muth) is not valid, when it is made to one of several heirs to the exclusion of other heirs. Even in AIR 1936 Mds. 432 (cited supra), the same has been made clear. Even if the gift is given, by way of a registered document, under Mohammedan Law, for a valid gift, delivery of possession is mandatory, which cannot be dispensed with.

31. Therefore, in the light of the decisions referred above, I am of the view that Ex.B2, Settlement Deed had been executed while Abdul Raheem was in his death-bed, counting his days. There is no implied or expressed acceptance of Ex.B2 by the first respondent and the extend of possession and enjoyment of the first item of property by the appellant and the first respondent, would also show that the settlement deed, Ex.B2, has not been acted upon, prior to the death of late Abdul Raheem or subsequently. Therefore, in the first item of property, an extent of 3.25 acres of land, the appellant is entitled to claim 14/40 share, since Ex.B2, Settlement deed was not acted upon. Therefore, this Court is of the view that Ex.B2, is not a valid document under Mohammedan law.

31.In the result, the appeal is partly allowed. So far as the first item of property is concerned, the judgment and decree passed by the Court below is set aside and out of 3.25 acres of land in S.F.No.659, stated as first item of the suit property, the appellant/plaintiff is entitled to 14/40 share, for which preliminary decree for partition is passed. The impugned judgment and decree with reference to the second item of property namely the residential houses is concerned, the judgment and decree passed by the Court below is confirmed. However, both the parties are directed to bear their own costs.

05.03.2008  
Index    : Yes/
Internet : Yes/
Smi


To

1.The Subordinate Judge, Udumalpet
2.The Record Keeper, V.R.Section, High Court, Madras

















S.TAMILVANAN, J.

Smi
















Judgment in
A.S.No.618 of 1996
     













05.03.2008

the nature of the suit properties as properties given by the husband of the first defendant for the proper maintenance of the first defendant, the plaintiff and the second defendant who are then minor daughters. As both the daughters were married, it could not be held that the suit properties were given to them for their maintenance. Hence, the First Appellate Court concluded that the first defendant alone is entitled to the suit properties at present for her maintenance. The appellate Court has also gone through the agreement dated 20.9.97 marked as Ex.A3 and found that the plaintiff has not proved execution of agreement dated 20.9.97 as contended by her. Though the First Appellate Court held that the execution of Settlement Deed (Ex.B13) by defendant No.1 in favour of the second defendant and her daughter regarding item No.1 of the suit property is not legally valid, since properties were given by the husband of the first defendant in lieu of maintenance, neither the plaintiff nor the defendants No.1 and 2 can claim any right of share in the suit properties during the life time of the husband of the first defendant. Therefore, the First Appellate Court concluded that as the properties were given in lieu of maintenance and since the defendant No.2 and the plaintiff were married already, the first defendant alone is entitled to the suit property for her maintenance and only after the death of the husband of the first defendant, defendant No.1 and the plaintiff and defendant No.2 would stake any claim in the suit property.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 27/01/2009

CORAM
THE HONOURABLE MR. JUSTICE S. RAJESWARAN

S.A. No. 1017 OF 2008

S. Murshia Begum
                  .. Appellant

vs.

1. Meharban Beevi

2. Shyla Begum
  .. Respondents

Second Appeal is filed under Section 100 of the Code of Civil Procedure
against the judgement and decree dated 8.4.2008 made in A.S.No. 6 of 2008 on the
file of the learned Principal District Judge, Sivagangai, confirming the
judgement and decree, dated 9.2.2007 made in O.S.No. 23 of 2006 on the file of
the learned Principal District Munsif, Manamadurai.

!For Appellant   ...   Mr. S. Parthasarathy
^For Respondents ...   M/s S. Subbiah and
        N. Subamaniam

:JUDGMENT

The plaintiff  in O.S. No. 23 of 2006  is the appellant before this Court.
The suit in O.S.No. 23 of
2006 was filed by the plaintiff for granting a decree for partition and separate
possession of her 1/3rd share in the suit properties with costs.

2.  The case of the plaintiff is as follows:-
The suit properties and other properties belonged to   the  plaintiff's father
Mohammed Ibrahim. The 1st defendant is her mother and the 2nd defendant is her
sister.  Since the plaintiff's father neglected to maintain them  namely the 1st
defendant,  plaintiff and the 2nd defendant, the 1st defendant as guardian
filed a suit for maintenance against the father of the plaintiff before the
District Munsif Court, Manamadurai in O.S.No. 489 of 1981 and the suit was
decreed.  Against which, the plaintiff's father preferred an appeal in
A.S.No.150 of 1982.  During the pendency of that appeal, the matter was settled
out of Court with an agreement that the item Nos. 4 and 5 of properties
mentioned in the trial court Judgement were given to the plaintiff and
defendants 1 and 2 for their  maintenance .  On that basis, the above first
appeal was allowed to be  dismissed by reporting "no instructions" on
13.12.1983.  The plaintiff's father got married with another woman and he is
living with her. The plaintiff and the defendants 1 and 2 got the suit
properties for their maintenance and they are in joint possession and enjoyment
of the same.  The plaintiff is living along with her husband and children in
suit item No.1 and the defendant No.2 is also residing in the suit village.
Regarding Item No.1, house tax was assessed in the name of the plaintiff.  On
20.9.1997, in the presence of Panchayatars written agreement was entered into
between the parties with regard to the suit properties.  Despite the request
made by the plaintiff, the defendants are not willing to partition the
plaintiff's share in the suit properties as per the agreement.  The defendants
are trying to create documents relating to the suit properties denying the
plaintiff's share in the suit properties and they are trying to vacate the
plaintiff from item No.1 of the suit properties.  Hence, the suit was filed for
the aforesaid reliefs by the plaintiff.

3. A written statement was filed by the defendant No.1 and the same was
adopted by the defendant No.2 .  The gist of the written statement is as
follows:-   While denying the averments made in the plaint as false, the
defendants stated that the plaintiff is bound to prove the agreement dated
20.9.1997 and according to the defendants, the said document is not legally
valid.  The plaintiff and defendant No.2 are the daughters  of the defendant
No.1  and her husband Mohamed Ibrahim.  Since he neglected to maintain them, a
suit in O.S.No.489 of 1981 was filed seeking maintenance for the defendant No.1,
the plaintiff and the defendant No.2.  The said suit was decreed.  Against which
an appeal in A.S.No. 150 of 1982 was filed and the same was also dismissed.  In
the year 1982, Mohamed Ibrahim agreed to give the suit properties and other
properties  to the defendant No.1 as a gift in lieu of their maintenance  in the
presence of village elders.  It was also stated that the defendant No.1 arranged
for the marriage of the plaintiff and defendant No.2.  It is contended that in
the year 1982, Mohammed Ibrahim gave the suit properties and other properties in
Survey No. 208/2006 as Hiba to the defendant No.1.  She took possession of the
suit properties  and was in enjoyment of the same. Patta was changed in the name
of the defendant No.1 for the properties given as Hiba to her.  With the income
derived from the suit properties, the defendant No.1 solemnised the marriages of
the plaintiff and defendant No.2. She also gave 30 cents each to the plaintiff
and defendant No.2 in suit item No.2. She also divided another property and give
it to them.  Regarding item No.1 of the suit property, the defendant No.1 is in
separate possession by paying house tax.  The plaintiff with the instigation of
her husband filed the suit.  Since the defendant No.2 and her daughter is
looking after the defendant No.1, she executed a settlement deed dated 31.8.2005
regarding the suit item No.1 in favour of the defendant No.2 and her daughter
Noor Nisha and they are in possession and enjoyment of the same.  According to
the defendants, the plaintiff has no legal right in the suit properties and she
is not entitled to any share in the suit properties.  Therefore, the suit is
also liable to be dismissed for non-joinder of necessary parties.

4. On the above said pleadings, the trial Court framed the following
issues:-
(1) Whether the plaintiff is entitled to 1/3rd share in the suit
properties ?
(2) Whether the plaintiff is entitled to the relief of preliminary decree
?
(3) To what other reliefs ?


5. After analysing the evidence on record and after hearing both sides,
the Principal District Munsif, Manamadurai dismissed the suit without costs.

6. The first appeal filed by the plaintiff in A.S.No. 6 of 2008 before the
Principal District Judge, Sivagangai was also dismissed, concurring with the
Judgement of the trial Court.  The findings of both the Courts below are that
the plaintiff has not established  her case for claiming 1/3rd share in the suit
properties.  As against the concurrent judgements, the second appeal has been
filed by the plaintiff before this Court.

7.  The second appeal has been filed raising the following substantial
questions of law :-

(1) Whether the Courts below applied the correct principles of law with
regard to proof of a document, while considering Ex.A3 ?

(2) Whether the lower appellate court having dislodged the reasoning of
the trial court erred in its construction of Ex.A3 ?

(3) Whether the conclusion of the Courts below with regard to the
maintainability of the partition suit is unjustified having regard to the terms
of Ex.A3 and the evidentiary material on record ?

(4) Whether the Courts below are justified in not applying the theory of
estoppal as against the respondents/defendants with particular reference Ex.
B12, wherein it has been categorically admitted that the suit properties were
given to the parties to this suit under a permanent arrangement ?

8.  This court has ordered notice on 29.10.2008 and the respondents have
entered appearance through counsel.  I have heard the learned counsel for the
appellant and the learned counsel for the respondents. I have also gone through
the entire documents filed in support of this appeal, including the judgements
of both the courts below.

9.  The learned counsel for the appellant submitted that the defendant
No.1 filed a suit in O.S.No.489 of 1981 on her behalf and also on behalf of
defendant No.2 and plaintiff claiming maintenance from her husband.  The said
suit was decreed and the appeal filed by the plaintiff's father Mohammed Ibrahim
was also dismissed as settled out of court.  The judgement and decree in O.S.No.
489 of 1981 was marked as Exs. A1 and A2 respectively.  It was further submitted
that in lieu of maintenance amount the suit properties were given to the
plaintiff and the defendants 1 and 2. and since then they are joint possession
of the suit properties.  To show that they are in joint possession of the suit
properties Ex. A4 house tax receipt for the suit item No.1 and Ex.A5 house tax
receipt and Ex.A6 joint patta were marked.  Thus the learned counsel for the
appellant submitted that the plaintiff is entitled to 1/3rd share in the suit
properties.

10.  Per contra, the learned counsel for the respondents would submit that
the properties were given to defendant No.1 as gift (Hiba) in lieu of
maintenance permanently and to the plaintiff and to the 2nd defendant
temporarily till they get married.  As both of them got married already, the
first defendant alone is the owner of the property and the daughters have no
share in it.

11.  I have considered the rival submissions carefully.

12.  Admittedly, the plaintiff and the defendant No.2 who are the
daughters of the defendant No.1 and Mohammed Ibrahim.  They were minors at the
time of filing of the suit in O.S.No.489 of 1981 claiming maintenance against
Mohammed Ibrahim. The defendant No.1 filed the suit for herself and as a
guardian of the plaintiff and defendant No.2.  Now the plaintiff and defendant
No.2 are married daughters.  The case put forth by the plaintiff is that since
the suit properties were given to the defendants No.1 and 2 and the plaintiff in
lieu of maintenance, all of them are entitled to 1/3rd share. Admittedly, the
suit properties were given by Mohammed Ibrahim in lieu of maintenance after
decreeing of the suit in O.S.No.489 of 1981. Therefore, the nature of the suit
properties is to be held only as properties given by Mohammed Ibrahim for the
purpose of maintenance to the defendant No.1, his wife, the plaintiff and
defendant No.2 his then minor daughters. The daughters are to be maintained till
their marriage only. It is also admitted that the plaintiff and defendant No.2
are married now. In view of the fact that the plaintiff and the defendant No.2
are married, the defendant No.1 alone is entitled for the suit properties
towards her maintenance.


13.  A perusal of the judgement of the trial court will show that the
trial court has come to the conclusion that only the first defendant in the suit
who is the mother of the plaintiff and the second defendant is entitled to the
suit schedule property absolutely and the rights of the plaintiff and the second
defendant was restricted to the  period when they remained as unmarried persons.
That means, once they got married they have no right over the property.  The
trial court has also found on the basis of the evidence adduced before it that
the first defendant married of both the plaintiff and the second defendant using
the income derived from the suit schedule property.  Therefore, the trial court
held that the plaintiff is not entitled to any share.  It also adverted to the
fact that Item No.1 of the suit schedule property was settled by the first
defendant in favour of the second defendant and her daughter.  While considering
the agreement dated 20.9.97, which was marked as Ex.A3 and on which much
reliance was placed on by the plaintiff, the trial court on the basis of the
evidence adduced concluded that it was not a valid document and the same could
not be relied upon by the plaintiff.  Consequently, the suit was dismissed by
the trial court.

14.  The First Appellate Court after re-evaluating the evidence came to
the conclusion that it is the first defendant who is in possession and enjoyment
of item No.1 of the schedule property and the plaintiff is not in joint
possession and enjoyment as contended by her.  It also held that the nature of
the suit properties as properties given by the husband of the first defendant
for the proper maintenance of the first defendant, the plaintiff and the second
defendant who are then minor daughters. As both the daughters were married, it
could not be held that the suit properties were given to them for their
maintenance. Hence, the First Appellate Court concluded that the first defendant
alone is entitled to the suit properties at present for her maintenance.  The
appellate Court has also gone through the agreement dated 20.9.97 marked as
Ex.A3 and found that the plaintiff has not proved execution of agreement dated
20.9.97 as contended by her.  Though the First Appellate Court held that the
execution of Settlement Deed (Ex.B13) by defendant No.1 in favour of the second
defendant and her daughter regarding item No.1 of the suit property is not
legally valid, since properties were given by the husband of the first defendant
in lieu of maintenance, neither the plaintiff nor the defendants No.1
and 2 can claim any right of share in the suit properties during the life time
of the husband of the first defendant.  Therefore, the First Appellate Court
concluded that as the properties were given in lieu of maintenance and since the
defendant No.2 and the plaintiff were married already, the first defendant alone
is entitled to the suit property for her maintenance and only after the death of
the husband of the first defendant, defendant No.1 and the plaintiff and
defendant No.2 would stake any claim in the suit property. Thus, the First
Appellate Court though did not accept the reasons given by the trial court for
dismissing the suit, still concluded that the plaintiff has not made out a case
for partition.

15.  In such circumstances, I am of the considered view that the First
Appellate Court has rightly decided the issue both on facts and on law and the
plaintiff has not made out a case for partitioning the suit schedule property
and allotting her 1/3rd share .  I do not find any question of law much less
substantial questions of law that arises for consideration in this appeal. Even
though a number of questions of law were raised in the memorandum under the
guise of substantial question of law, I am of the considered view that they are
nothing but grounds that could be raised in the first appeal.

16.  Hence, I do not find any merits in the above appeal and the same is
dismissed. No costs.  Consequently, M.P. No. 1 of 2008 is also dismissed.

kr.

To:

1.The Principal District Judge,
  Sivagangai, Sivagangai District.

2.The Principal District Munsif,
  Manamadurai, Sivagangai District.