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.
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