BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30/11/2006
CORAM:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
A.S.No.822 of 1993
Shahul Hamid Rowther ... Appellant
Plaintiff
Vs
1.Diwan Pakir Rowther
2.Minor Masooda Beevi
3.Minor Nagoor Ammal
4.Maideen Fathummal ... Respondents
Defendants
(Minor respondents 2 & 3 represented by their mother and guardian 4th
respondent.)
Prayer
Appeal filed under Section 96 of Civil Procedure Code, 1908, against the
judgment and decree of the learned Subordinate Judge, Tenkasi, in O.S.No.172 of
1988 dated 05.03.1993.
!For Appellant ... Mr.T.M.Hariharan
^For Respondents ... Mr.S.Meenakshisundaram
:JUDGMENT
The unsuccessful plaintiff appeals.
2. This appeal is directed as against the judgment and decree of the
learned Subordinate Judge, Tenkasi, in O.S.No.172 of 1988 dated 05.03.1993.
3. The facts giving rise to the filing of the suit as stood exposited from
the averments in the plaint would run thus:
(a) One Mohamed Ismail died leaving behind his children namely, Diwan
Fakir Rowther, the first defendant, Mohammed ammal, the second defendant (since
died), Late Abdul Kareem - husband of the fifth defendant and father of
defendants 3 and 4 and the plaintiff Sahul Hameed Rowther herein.
(b) The said Mohammed Ismail, the propositus of the plaintiff and the
defendants, had one brother by name Diwan Fakir Rowther who died leaving behind
him his two daughters as his wife predeceased him. Since those two daughters
had no heirs, they donated the first item of the suit properties in favour of
(i) the deceased Abdul Kareem Aleem, (ii) the first defendant and (iii) the
plaintiff, as per the donation deed dated 22.3.1970. As such in respect of the
first item of the suit properties, those three donees were entitled to one-third
share each. Since Abdul Kareem Aleem died his two daughters namely, the third
defendant and the fourth defendant and his wife, the fifth defendant including
the plaintiff, the first defendant and the second defendant, are all entitled to
his one-third share. As such the following formula emerges as set out in the
plaint relating to the first item of the properties.
In the first item of the suit properties Abdul Kareem Aleem is entitled to 1/3
share i.e, 120/360 shares, in that his wife is entitled 120 / 360 % 1/8
= 15 / 360;
daughter - 3rd defendant is entitled to r r -35/360 in 120/360 -15/360
105/360;
4th defendant is entitled to 35/360 in 120/360;
brother - plaintiff is entitled to 120/360 - 05/360 - 35/360 2/7 - 14/360;
As per the above division the first defendant is entitled to 14/360;
sister - 3rd defendant is entitled to 1/7 - 7/360.
Therefore, in the first item of the suit properties, the parties are entitled to
the shares as follows:
Own share
Share of Abdul Kareem Asim
Total share
Plaintiff
120/360
14/360
134/360
1st defendant
120/360
14/360
134/360
2nd defendant
7/360
7/360
3rd defendant
35/360
35/360
4th defendant
35/360
35/360
5th defendant
15/360
15/360
(c) In respect of the second item of the properties which originally
belonged to the said Mohammed Ismail Rowther who died 40 years ago, the parties
are entitled to it as under:
---------------------------------------------------------
Share of Share of Father Abdul
Kareem Total
---------------------------------------------------------
Plaintiff 160/560 + 28/560 = 188/560
1st defendant 160/560 + 28/560 = 188/560
2nd defendant 80/560 + 14/560 = 94/560
3rd defendant 35/360 = 35/560
4th defendant 35/560 = 35/560
5th defendant 20/560 = 20/560
---------------------------------------------------------
(d) Since the said Abdul Kareem Aleem died two years ago, his daughters -
defendants 3 and 4, his wife -5th defendant, his brother - plaintiff,
defendants 1 and 2, his sisters, are all entitled to the share of the deceased
Abdul Kareem Aleem in respect of the second item of the suit properties. In
respect of the said Abdul Kareem Aleem's share of 160/360, the following formula
emerges as per plaint at page 5 and as such, in respect of the second item of
the suit properties, the following are the shares of the parties:
---------------------------------------------------------
Share of Share of Father Abdul
Kareem Total
---------------------------------------------------------
Plaintiff 160/560 + 28/560 = 188/560
1st defendant 160/560 + 28/560 = 188/560
2nd defendant 80/560 + 14/560 = 94/560
3rd defendant 35/360 = 35/560
4th defendant 35/560 = 35/560
5th defendant 20/560 = 20/560
---------------------------------------------------------
(e) The said second item of the suit properties is enjoyed jointly by the
parties to the suit. In the second schedule of properties on the southern side
to the north of vacant land of 42 feet, the house constructed by the said
deceased Propositus Mohammed Ismail, is situated. However, in the said vacant
plot of 42 feet on the extreme side of the second schedule property, the
plaintiff, 26 years anterior to the filing of the suit raised construction from
out of his own earning and its Door Number is 22. Actually, the house is
situated in an extent of 42 feet south to north and 11 feet east to west and it
is the exclusive property of the plaintiff. However, the plaintiff is also
entitled to the said house constructed by his father to the extent of 188/560
shares.
(f) Despite demands, the defendants have not come forward for amicable
partition of the properties concerned excluding the house constructed by him as
aforesaid. Hence the suit.
4. Denying and disputing, challenging and gainsaying the allegations in
the plaint, the defendants filed the written statement which would run thus:
(a) The averments in the plaint relating to the donation deed dated
22.3.1970 are correct. The plaintiff did not raise any construction on the
third item of the suit properties. On 2.2.1986 in the presence of
Panchayatdars, division was effected relating to all the properties including
the house allegedly constructed by the plaintiff and also the Nanja lands at
Pudhukulam Puravi, Vairvan village, which was not shown as one of the suit
items. In pursuance of the said division, the respective sharers are enjoying
them with effect from 2.2.1986. Accordingly, the suit is bad. As per the
partition dated 2.2.1986, it was so arranged that the first schedule property
was allotted to the share of the plaintif, the second item of the suit
properties was allotted to Abdul Kareem Rowther, the third item of the suit
properties was allotted to the share of Diwan Fakkir Rowther, the 1st defendant.
(b) The nanja lands described as the 4th item appended to the written
statement, was allotted to the second defendant and to Fathimuthu Bivi, the
daughter of the deceased Diwan Fakkir Rowther, for their lives, with the
condition that thereafter the property should be taken by Abdul Kareem Rowther.
The plaintiff and the first defendant were asked to pay a sum of Rs.5,000/- each
(owelty) by way of equalising the deficit share allotted to the share of Abdul
Kareem since at that relevant time, the plaintiff was in possession of the said
agricultural land. He was asked to share usufructs with his brothers after
deducting the expenses for such cultivation and after such harvest, he was bound
to hand over the property to the said Mohammed Ammal and Fathimuthu Bivi. It
was also stipulated that after the death of Abdul Kareem, his share should
devolve upon his two daughters, defendants 3 and 4 and his wife - 5th defendant.
The first defendant paid the said sum of Rs.5,000/- as agreed. However, the
plaintiff got extension of time for his contribution of Rs.5,000/-. Even though
the plaintiff agreed to pay lease amount to the second defendant - Mohammed
Ammal and to Fathimuthu Bivi, yet he failed to do so. The suit is bad for non-
joinder of the said Fathimuthu Bivi. Accordingly, the defendants prayed for
dismissal of the suit.
(c) In the written statement itself, the defendants furnished a schedule
of properties which according to them belonged to all the parties and which were
partitioned as set out supra in the written statement.
5. However, the plaintiff filed the reply with the averments inter alia,
as follows:
The agreement dated 2.2.1986 referred to in the written statement is false
and he did not agree to pay Rs.5,000/- to any one. The plaintiff's father
donated the said agricultural land by way of Hiba to the plaintiff. The
plaintiff reiterated his averments in the plaint.
6. Based on the above pleadings, the trial Court framed as many as five
issues.
7. During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to
A.4 were marked on his side. The first defendant examined himself as D.W.1
along with D.W.2 and Exs.B.1 and 2 were marked. The trial Court ultimately
dismissed the suit.
8. Being aggrieved by it, the plaintiff has preferred the above appeal on
the following main grounds among others:-
(a) The trial Court should have held Ex.B.2 inadmissible in law.
(b) The trial Court ought to have disbelieved Ex.B.1 as it is without the
backing of the pleadings. The alleged mediation was introduced for the first
time during trial.
(c) The allegation that the original of Ex.B.2 is with the
appellant/plaintiff, was not pleaded in the written statement.
(d) The trial Court ought not to have dismissed the suit, but should have
accepted the case of the plaintiff and decreed the suit.
9. The points for consideration in this appeal are as follows:
(i) Whether Exs.B.1 and B.2 are genuine documents and admissible in law?
(ii) Whether partition was effected among the family members as alleged in
the written statement?
(iii) Whether the plaintiff's father gave agricultural lands in favour of
the plaintiff by way of Hiba?
(iv) Whether house bearing Door No.22 was constructed by the plaintiff
from out of his own income.
(v) Whether there is any infirmity in the judgment and decree of the trial
court?
10. The parties are referred to hereunder in the same way as they were
arrayed in the suit before the trial Court.
11. Point Nos.(i) to (iv) are taken together for discussion in view of the
fact that they are interwoven and inter-linked with each other.
Point Nos: (i) to (iv)
12. Tersely and briefly, quintessentially and succinctly, the case of the
plaintiff could be portrayed to the effect that the properties common to the
plaintiff and the defendants should be partitioned except the agricultural lands
which were given to the plaintiff by the plaintiff's father by way of Hiba and
the house bearing door No.22, which the plaintiff had constructed over item No.3
of the plaint schedule properties.
13. The gist and kernel of the case of the defendants is to the effect
that the schedule of properties appended to the plaint does not refer to the
agricultural lands; the plaintiff's plea of Hiba relating to those agricultural
lands; as though given by his father-in-law, the house bearing door No.22 was
not constructed by the plaintiff from out of his income; the family arrangement
was effected among the plaintiff and the defendants and accordingly, all the
properties found described in the schedule of the written statement including
the properties described in the plaint, were divided and allotted to the
respective family members according to their entitlements; the plaintiff
accepting such family arrangement, cannot now veer round and take pleas quite
antithetical to what he committed himself in black and white in the form of
Ex.B.2.
14. Right at the outset, I may state that the discussion could be on the
following three sub-heads:
(i) The controversy relating to alleged Hiba.
(ii) The claim of the plaintiff over the house bearing door No.22.
(iii) The genuineness and validity or otherwise of Ex.B.2.
(i) The controversy relating to alleged Hiba:
15. The learned Counsel for the defendants would convincingly and cogently
raise the point that there are no averments in the plaint relating to the
alleged Hiba and the reply statement filed by the plaintiff also is silent on
it, for which I could hear no befitting reply argument so as to torpedo such a
plea put forth on the side of the defendants. The plaint is silent as silence
could be relating to Hiba. On seeing the defendants ushering in the
agricultural property also as one among the common properties of the parties,
the plaintiff has come forward with a reply which also was vague as vagueness
could be relating to Hiba. There should be clear averments as on which date
Hiba was given, where it was given and in the presence of whom. Following such
averments, there should be proof. Absolutely, there is no iota or shred of
evidence to show that such Hiba was given.
16. At this juncture, it is worthwhile to refer to certain dates and the
relevant happenings. The evidence of P.W.1, the plaintiff himself, would show
that 40 years anterior to the date of filing of the suit, his father died. The
suit was filed during the year 1988. 40 years anterior to 1988, would be 1948.
In such circumstances, it would amount to the plaintiff contending that such
alleged Hiba was given during the year 1948 or anterior to it.
17. The core question arises as to how at least from 1948, the said
agricultural lands which are allegedly the subject matter of Hiba were dealt
with by P.W.1 who categorically expatiates and narrates, details and delineates
that he was in Singapore for a term of 20 years and that he returned from
Singapore during the year 1980. In such circumstances, it has become all the
more important for the plaintiff to show as to how he enjoyed all the
agricultural lands.
18. The learned Counsel for the plaintiff would advance the argument to
the effect that the defendants themselves admitted in the written statement that
the plaintiff was in possession and enjoyment of the suit properties and that
itself would amount to the alleged Hiba having been acted upon. Such an
argument is neither here nor there, for the reason that simply because one co-
sharer or co-owner is in possession of the property, it cannot be presumed that
there was Hiba and that only in pursuance of such Hiba, he was in enjoyment. If
such a vague and sweeping statement is believed by the Court, then the valuable
right of the other sharers would be jeopardised and the genuine right of the
shares would be set at naught. The plaintiff's contention that he acquired
prescriptive title over the agricultural land is farfetched plea. The maxim
"Nec vi, nec clam, nec precario" should be in mind, while examining the plea of
prescription.
19. I need not dilate on the plea of prescription as it was not even worth
the paper on which it was written so far, this case is concerned and such a
half hearted plea was not backed by any averment or evidence. Ouster should be
pleaded and proved as against other co-sharers in order to succeed in proving
prescriptive title by a co-sharer and it is missing conspicuously. Here, the
plea of prescription was put forth by the plaintiff only for being rejected by
this Court 'a fortiori'. It has to be seen what is the definition of Hiba and
what the term Hiba means and in this connection, the following could be
extracted hereunder from Ameer Ali's Commentaries on Mahommedan Law [Fifth
Edition - 2004]:
"Definition of Hiba - In the Durr-ul-Mukhtar, a Hiba is defined as the
transfer of the right of property in the substance (tam-lik-ul-'ain) by one
person to another without consideration ('ewaz) but the absence of consideration
is not a condition in it. In other words a Hiba is a voluntary gift without
consideration of property or the substance of a thing by one person to another
so as to constitute the donee, the proprietor of the subject-matter of the gift.
It requires for its validity three conditions: (a) a manifestation of the wish
to give on the part of the donor; (b) the acceptance of the donee, either
impliedly or expressly; and (c) the taking possession of the subject-matter of
the gift by the donee either actually or constructively.
The Hanafi lawyers define Hiba as an act of bounty by which a right of
property is conferred in something specific without an exchange. In order to
distinguish a Hiba or gift, from a wasiat or bequest, Ibni Kamal (the author of
the Fath-ul-kadir) defines it as an immediate (fi'l hal) conferment of the right
of property. Similarly Sidi Khalil (the Maliki lawyer) defines it as an act of
liberality by which the proprietor bestows a thing without the intention of
receiving anything in exchange.
The Shiah lawyers, on the other hand, declare it to be an obligation (akd)
by which the property in a specific object is transferred immediately and
unconditionally without any exchange and free from any pious or religious
purpose on the part of the donor.
A verbal gift - A gift may be made verbally or by writing. The Transfer
of Property Act (IV of 1882) leaves this provision of the Mahommedan Law
untouched. And the Privy Council in the case of kamar-un-nissa Bibi v. Hussaini
Bibi, upheld a verbal gift when it appeared to be supported by all the
circumstances.
Sadakah or pious gift - There is another species of donation in vogue
among the Mussulmans, which is pious in its character and made in view of the
future life. This is called Sadakah. It takes its origin from the directions
contained in the Koran, notably in Sura II, verse 211, "the goods that you give
shall be known to God." This species of gift is irrevocable according to all
the schools, but we shall deal with it in the order in which it occurs.
Technically the donor or grantor is called Wahib, the donee Mouhoob-leh
and the subject-matter of the gift Mouhoob."
20. It is therefore clear that even though the father can give Hiba to one
of his sons in preference to others, it should be proved. It is a trait
proposition of law that witnesses might lie, but the circumstances would not
lie. Here, absolutely there is nothing to show under what circumstances, the
said propositus of the plaintiff and the defendants in this case, was actuated,
accentuated and geared to give such Hiba in favour of the plaintiff in
preference to his other children.
21. No doubt, there need not be any consideration for Hiba, but when such
factum of alleged Hiba is impugned as to its very existence, it is the bounden
duty of the plaintiff, who tried to press into service the Hiba, to prove the
circumstances.
22. To the risk of repetition, I would say that absolutely there is no
iota or shred of evidence to prove the Hiba and this point is decided
accordingly.
(ii) The claim of the plaintiff over the house bearing door No.22:
23. The onus of proof, trite as it is, on the plaintiff who pleads that it
was he who spent his own earnings in constructing the building on the property
belonged to all the co-sharers/co-owners. Incontrovertibly and indubitably, the
plot No.3 over which the plaintiff claims to have constructed the house bearing
door No.22 from out of his own money, belonged to all the co-sharers/co-owners
and in such a case, the normal presumption is that the structure belonged to all
the co-owners. There is no evidence to show on whose permission or concurrence,
connivance or assurance, such construction was raised. It is not the duty of
the defendants to prove that the plaintiff did not make such construction or as
to when such construction was raised. The version of P.W.1 remains only his
ipse dixit. It is therefore, clear that the said house bearing door No.22
should be treated only as the house belonging to all the co-sharers, namely the
plaintiff and the defendants as per Muslim Law.
(iii) The genuineness, validity or otherwise of Ex.B.2:
24. Ex.B.2 is the inauthentic photo copy of the document nomenclatured as
partition agreement dated 2nd February 1986, alleged to have been signed by the
three persons namely, Shakul Hameed(the plaintiff), the deceased Abdul Karim
(the husband of D.5 and father of D.3 and D.4), and also Diwan Pakir (D.1).
There is no plausible or probable explanation forthcoming from the defendants'
side about the original of Ex.B.2, even though, they would simply state that the
original is with the plaintiff. But, the plaintiff would gainsay it vehemently.
The plaintiff disowned his purported signature in Ex.B.2. On the defendants'
side, no plausible argument was forthcoming by way of buttressing and fortifying
Ex.B.2 which is an unregistered document.
25. Before probing into the fact whether Ex.B.2 could be taken as a legal
document at all, it should be seen whether ex-facie, it satisfies the least
requirement of a document. In three sheets of paper, the alleged signatures are
found, that too not decipherable. All the co-sharers have not purportedly
signed it even. The defendants would request and implore the Court to simply
dismiss the suit by relying on Ex.B.2 and such an expectation on the side of the
defendants is quite against law and justice.
26. The logic and ratiocination applied for rejecting P.W.1's theory of
Hiba, is equally to be applied for rejecting Ex.B.2 also. The valuable rights
of the co-sharers cannot be jeopardised by this inauthentic photo copy which is
not worthy of producing before the Court of law. The trial Court unmindful of
the legal provisions simply referring to Ex.B.2 and also by taking support from
Ex.B.1, simply dismissed the suit, which in my opinion is far from satisfactory.
27. D.W.1 would simply reiterate his stand in the written statement.
D.W.2, Ismail Rowther would try to corroborate unconvincingly the evidence of
P.W.1. D.W.2 is none but, the close relative of D.W.1, as D.5 is the daughter
of D.W.2. Hence, in such a case, his interested testimony cannot be taken as
sufficient to take away the valuable right of the plaintiff in seeking for
partition. The plaintiff cannot pin down to Ex.B.2 as though he voluntarily
signed it. D.W.2 would state that one Ali was the scribe of the original of
Ex.B.2, but he was not examined before the Court. Some persons in it also
purportedly signed as witnesses / mediators and none were examined before the
trial Court. Suffice to say, when one party seeks partition as against others,
this sort of document like Ex.B.2 and oral evidence of D.W.2 would by no stretch
of imagination be taken as sufficient or adequate.
28. The learned counsel for the respondents would cite the decision of the
Honourable Apex Court in Shivalingappa, K.G. v. Eswarappa, G.S reported in
2004(4) CTC 143 to the effect that when there is evidence that partition had
already been effected among the parties concerned, the High Court should not set
aside the concurrent finding of the Courts below in support of such earlier
partition. This judgment has been cited out of context in this case for the
simple reason that absolutely there is no evidence on record to show that there
was any oral partition before Panchayatars or in any other manner and that it
was acted upon. In fact, in the written statement itself, the grievance of the
defendants was that a sum of Rs.5,000/- which D.2 agreed to pay towards his
share of contribution, was getting postponed. The pertinent question arises as
to whether consequent upon the alleged execution of Ex.B.2 or as a sequelae of
Ex.B.2, there was any mutation of entries in the Government / Muncipal /
Panchayat / Revenue records.
29. In fact, the learned Counsel for the defendants himself with reference
to the evidence would state that the parties who are in enjoyment of the
respective properties are paying tax. But, there is no plausible answer from
the defendants' side as to why there is no mutation of entries as expected
supra. Relating to the aforesaid important test, the defendants failed. The
same logic is also applied to the agricultural properties as well as to the
house bearing door No.22, because in the revenue records / property tax register
as the case may be, there should have been mutation of entries by way of
incorporating the name of the plaintiff as the owner of the properties, if his
theory is true, as such, there cannot be one yardstick for the plaintiff and
another for the defendants.
30. It is therefore crystal clear that the pleas of both sides failed to
carry conviction with this Court.
31. However, for the purpose of comprehensively dealing with this matter,
the other decisions cited on both the sides are dealt with infra.
32. The learned Counsel for the defendants cited the decision of the
Honourable Apex Court in Marwari Kumbar v. Bhagwanpuri Guru Ganeshpuri reported
in 2000 (3) MLJ 184 (S.C) to the effect that if the original document is lost,
the secondary evidence of the contents could be given. Again, this decision is
cited out of context for the reason that Section 65(c) of the Evidence Act,
contemplates secondary evidence which is admissible as per the Indian Evidence
Act and not all inauthentic and illegible copies could be taken as secondary
evidence and it is quite obvious. I need not dilate further for the reason
adverted to supra.
33. The learned Counsel for the appellant cited the decision of this Court
in Lakshmipathy, A.C v. A.M.Chakrapani Reddiar reported in 2001 (1) CTC 112. An
excerpt from the above said judgment would run thus:
"32. Presence of certain aspects / phraseology / conditions may be
indicative of a family arrangement reduced to writing with the purpose of using
that as a proof of that they had arranged.
(a) Document setting out all the terms and conditions of the family
settlement in extenso.
(b) Document mentioning that till then (execution of the said document)
parties have been members of the joint Hindu family.
(c) Where the document was written immediately after the understanding
between the parties with regard to the arrangement.
(d) Document containing Clause to the effect that parties are under the
document release their rights under the document.
(e) The settled position is that a document must be read as a whole and as
to the nature of transaction under the document, it cannot be decided by merely
seeing the nomenclature.
(f) mere usage of past tense in the document should not be taken as
indicative of a prior arrangement. (AIR 1998 SC 881)"
"42. To sum up the legal position
(I) A family arrangement can be made orally.
(II) If made orally, there being no document, no question of registration
arises.
(III) If the family arrangement is reduced to writing and it purports to
create, declare, assign, limit or extinguish any right, title or interest of any
immovable property, it must be properly stamped and duly registered as per the
Indian Stamp Act and Indian Registration Act.
(IV) Whether the terms have been reduced to the form of a document is a
question of fact in each case to be determined upon a consideration of the
nature of phraseology of the writing and the circumstances in which and the
purpose with which it was written.
(V) However, a document in the nature of a Memorandum, evidencing a family
arrangement already entered into and had been prepared as a record of what had
been agreed upon, in order that there are no hazy notions in future, it need not
be stamped or registered.
(VI) Only when the parties reduce the family arrangement in writing with
the purpose of using that writing as proof of what they had arranged and, where
the arrangement is brought about by the document as such, that the document
would require registration as it is then that it would be a document of title
declaring for future what rights in what properties the parties possess.
(VII) If the family arrangement is stamped but not registered, it can be
looked into for collateral purposes.
(VIII) Whether the purpose is a collateral purpose, is a question of fact
depends upon facts and circumstances of each case. A person cannot claim a
right or title to a property under the said document, which is being looked into
only for collateral purposes.
(IX) A family arrangement which is not stamped and not registered cannot
be looked into for any purpose in view of the specific bar in Section-35 of the
Indian Stamp Act."
34. Here, the analysis of Ex.B.2, in the light of the above mandates would
show that the said Ex.B.2 bears all the details that would contain in a
partition deed. There is nothing to show that Panchayat was held on one day and
the minutes alone were recorded subsequently. No doubt, there need not be any
time gap between the oral partition / family arrangement and the recording of
the minutes. But, if the document shows that that itself has been relied on as
evidence of the partition as envisaged in the aforesaid decision, then such a
document should be registered after it was duly stamped. Ex.B.2 is only an
inauthentic photo copy.
35. It is quite obvious that the trial Court's discussions are in no way
connected with the ratiocination set out supra. What should be done with the
suit when the plaintiff has not come forward with full facts disclosing the
agricultural properties also in the schedule of the plaint.
36. The defendants supplied in their written statements what is missing in
the plaint, by setting out four schedules which include the properties of the
plaint schedule also. However, in the 4th schedule attached to the written
statement, there is no detailed description relating to agricultural lands and
the parties are expected to furnish during final decree proceedings.
37. This Court, therefore finds that the plaintiff is entitled to seek for
partition and for that matter both the defendants are deemed to be plaintiffs in
a partition suit and they are entitled to get all the four schedules of
properties partitioned among themselves as per Muslim Law. Accordingly, this
point is decided.
38. Exs.A.3, A.4, would not in any way be beneficial to the plaintiff in
support of his case. Ex.A.4 is only a house tax receipt relating to door No.22
which emerged on 14.11.1987 just prior to the date of filing of the suit.
39. Ex.B.1 is the letter allegedly written by the President of one Jamath
and it has no authenticity and the author of it, was also not examined. It is
more or less in the form of request for compromise.
40. The point Nos.(i) to (iv) are decided accordingly.
Point No:(v)
41. In view of the ratiocination adopted in deciding the aforesaid points,
the judgment and decree of the trial Court are liable to be set aside. Point
No.(v) is decided accordingly.
42. In the result, the appeal is allowed and the preliminary decree is
passed in O.S.No.178 of 1988 on the file of the Sub Court, Tenkasi, as follows:
(a) Relating to the properties described in the first schedule of the
plaint, the shares as claimed and set out in paragraph No.9 of the plaint, are
decreed.
(b) In respect of the properties described in the second and third
schedules of the plaint and in respect of the agricultural lands described in
the fourth schedule in the written statement, the methodology adopted in
dividing the shares and claimed at paragraph No.14 of the plaint, shall be
applicable and accordingly, decreed. The share of the second defendant in all
the properties shall be divided equally between the plaintiff and the first
defendant. The parties are expected to furnish the details of agricultural lands
to the trial Court at the time of passing final decree for effecting partition.
Accordingly, the preliminary decree is passed as above.
(c) The parties concerned adhering to the laws relating to partition
could apply for final decree and also get a Commissioner appointed for effecting
partition by metes and bounds and in the facts and circumstances of this case,
they have to bear their respective costs throughout.
To
The Subordinate Judge,
Tenkasi.
