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MOHIDEEN FATHIMA versus MRS.A.M.SHARIFUNNISA

High Court of Madras

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Mohideen Fathima v. Mrs.A.M.Sharifunnisa - A.S.NO.997 OF 1993 [2002] RD-TN 834 (25 October 2002)



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




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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