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.
