Madras High Court
Saliha Beevi vs M.N.Kamalutheen on 27 November, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R.P.(PD)(MD).No.717 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 07.03.2025
DELIVERED ON: 25.03.2025
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(PD)(MD).No.717 of 2025
and CMP(MD).No.3822 of 2025
Saliha Beevi ....Petitioner/Petitioner/Plaintiff
Vs
1.M.N.Kamalutheen
2.M.N.Abdul Rahim
3.M.N.Mohammed Ali
4.M.N.Basheer@Salamath ....Respondents/Respondents
/Defendants
PRAYE: Civil Revision Case is filed under Article 227 of the Constitution
of India, to set aside the fair and decreetal order passed in I.A.No.4 of
2023 in O.S.No.283 of 2019 on the file of the Additional District Judge
(Fast Track Court), Palani dated 27.11.2024.
For Petitioners : Mr.J.Barathan
for Mr.M.Rajarajan
For Respondents : Mr.H.Lakshmi Shankar
for R2 to R4
1/14
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm )
C.R.P.(PD)(MD).No.717 of 2025
ORDER
The plaintiff in O.S.No.283 of 2019 on the file of the Additional District Court/Fast Track Court, Palani has filed the present revision petition challenging the order passed by the trial Court allowing the application under Section 12(2) of Tamil Nadu Court Fees and Suits Valuation Act, 1995.
2.The revision petitioner herein has filed the above said suit for the relief of partition and separate possession. The plaintiff has also prayed for a declaration that the registered gift deed dated 18.01.1966, 11.01.1974 and 09.12.1981 are null and void. The plaintiff has also prayed for a declaration that the registered partition deed dated 03.06.1991 and 16.10.1992 are null and void.
3.A perusal of the plaint reveals that the suit schedule properties are self-acquired properties of one M.K.Mohammed Nainar @ Abban Rowther. The plaintiff and the defendants are siblings. One of the brothers namely Jamal Mohammed had died on 16.03.2018 leaving behind three daughters and five sons. It is further contended in the plaint that during his life time, the father of the plaintiff and the defendants are said to have executed a registered gift deed in the year 1966, 1974, 1981 and 1986. All 2/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025 those gift deeds are conditional gifts. They were gifted while the donees were minors by appointing their mother as guardian. However, the possession was not granted in favour of the donees. Though the mother is said to have been appointed as a guardian of the minor sons, under Mohammedan Law, mother cannot be appointed as a guardian. Therefore, the gift was not accepted either by the minor or by the guardian. Hence, the gift deeds are not valid in the eye of law and they are void under Mohammedan Law.
4.Based upon the four gift deeds, the brothers have effected partition under Document dated 03.06.1991 and 09.03.1992. Since the gift deeds are not valid, consequently the partition deeds are also void.
5.It is the further contention of the plaintiff that their father had died intestate and therefore, the plaintiff and the defendants are tenants in common. The plaintiff and the defendants are in constructive joint possession in the schedule of properties. Since the defendants have disputed the right to claim partition, the present suit for partition has been filed.
6.A perusal of the plaint further reveals that the plaintiff has paid the Court Fee under Section 37(2) of the Tamil Nadu Court Fees and Suits 3/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025 Valuation Act.
7.The defendants had filed a written statement admitting that the suit schedule properties are self-acquired properties of their father. However, they contended that all the four gift deeds were executed and accepted and the possession was granted to the donees. Based upon the said gift deeds, the partition deeds have been executed among the beneficiaries of the gift deed. Since the properties have been alienated during the life time of their father by way of various gift deeds, the plaintiffs are not in constructive joint possession of the suit schedule properties. Therefore, the Court Fee under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act is not correct and they have to pay ad-valorem Court fee on the basis of the market value.
8.The defendants have further contended that the claim of the plaintiff is also ousted by long, continuous and absolute possession and enjoyment of the suit schedule properties by the defendants 1 to 4 to the exclusion by the plaintiff. The defendants have further contended that the registration of the document amounts to knowledge of the execution of the same to the entire world. Therefore, the plaintiff is presumed to have knowledge about those registered documents. In such circumstances, the 4/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025 present suit filed in November 2022 is clearly barred by limitation.
9.The defendants 1 to 4 had filed I.A.No.89 of 2020 to reject the plaint on the ground that the suit is barred by limitation. The said application was dismissed by the trial Court on 09.09.2022. This order was challenged by the defendants before this Court in CRP(MD).No.351 of 2023. This Court by an order dated 31.07.2023 had dismissed the revision petition and directed the trial Court to dispose of the suit within a period of 12 months from the date of receipt of a copy of the order.
10.Thereafter, the defendants have filed I.A.No.4 of 2023 under Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act to frame a preliminary issue whether the Court fee paid under Section 37(2) Tamil Nadu Court Fees and Suits Valuation Act and Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act is correct. The proper Court fee in the suit has been paid or not.
11.The plaintiffs have filed a counter contending that the question relating to determination of correct Court fee is a mixed question of law and facts and therefore, the said issue cannot be decided or tried as a preliminary issue.
5/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025
12.The said application was dismissed on 02.02.2024. Challenging the same, the defendants have filed CRP(MD).No.1242 of 2024 before this Court. This Court by an order dated 27.08.2024, had allowed the revision petition and remitted the matter back to the trial Court to conduct an enquiry and pass orders afresh. The trial Court was directed to arrive at a prima facie finding whether the suit is in joint possession.
13.After remand, the trial Court has passed the present impugned order on 27.11.2024 allowing the application filed under Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act directing the plaintiff to pay Court fee under Section 37(1) of the said Act. This order is under challenge in the present civil revision petition.
14.According to the learned counsel appearing for the revision petitioner, the gift deeds are said to have been executed by the father during his life time in favour of his sons. The plaintiff has taken a definite stand that the gift deeds are not valid and those documents are challenged in the suit. When the gift deeds are set aside, automatically the partition deeds which are based upon the gift deeds will become null and void. The partition deeds that were entered into between the brothers is not binding upon the sisters who are not parties to the said document. 6/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025
15.It is further contended that the trial Court has already arrived at a finding that the gift deed which are under challenge in the suit have been accepted and acted upon even before the trial could be concluded. Only based upon the said findings, the trial Court has held that the plaintiff cannot be in joint possession of the suit schedule properties.
16.The learned counsel for the petitioner had further contended that relying upon an encumbrance certificate, the trial Court has arrived at a finding that one of the brothers namely Jamal Mohammed has executed a sale deed in favour of the third party in the year 1993 and the purchaser had put up pucca construction. In such circumstances, the plaintiff cannot be considered to be in joint possession. However, the partition deed is specifically under challenge and neither Jamal Mohammed nor his legal heirs are parties to the present suit.
17.The learned counsel for the petitioner had further contended that the validity of the gift deeds and partition deed are the subject matter of the trial Court and therefore, relying upon these two documents, the trial Court cannot arrive at a finding that the plaintiff is not in possession of the suit schedule properties.
7/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025
18.Per contra, the learned counsel for the respondents had contended that no documents have been filed on the side of the plaintiff to establish that she is in joint possession of the suit schedule properties. The gift deed executed by the father and the partition deed executed between the brothers is admitted in the plaint. Those documents are more than 30 years old. In such circumstances, the plaintiff cannot claim that she is in joint possession of the suit schedule property.
19.The learned counsel for the respondents had further contended that the defendants have taken a specific stand in the written statement with regard to the gift deed, partition deed and alienation made in favour of the third parties. It was further pointed out that the plaintiff is not joint possession of the suit schedule properties. In such circumstances, the trial Court has rightly arrived at a finding that the plaintiff is entitled to pay Court fee under Section 37(1) Tamil Nadu Court Fees and Suits Valuation Act. Hence, he prayed for sustaining the order passed by the trial Court.
20.Heard both sides and perused the material records.
21.Both parties admit that the suit schedule properties are the self-acquired properties of one M.K.Mohammed Nainar @ Abban Rowthar 8/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025 who is the father of the plaintiff and the defendants. The said M.K.Mohammed Nainar @ Abban Rowthar, during his life time, has executed four registered gifts deed on 18.01.1966, 11.01.1974, 09.12.1981 and 03.06.1991 in favour of his sons. Based upon these gift deeds, the brothers have entered into registered partition deeds under two documents dated 03.06.1991 and 16.10.1992.
22.It is the contention of the plaintiff that these gift deeds have been executed in favour of her brothers when they were minors. They were represented through their mother as natural guardian in the gift deed. It is the further contention of the plaintiff that the acceptance of the gift and delivery of possession are the two main ingredients to decide the legal validity of a Mohammedan gift.
23.It is the further contention that the mother cannot be appointed as a guardian of minor under Mohammedan Law. Therefore, there was no acceptance by any one for the gift deeds executed by the father. It is the further contention of the plaintiff that the possession was not handed over at the time of gift deeds to the minors and till his death on 21.03.1988, M.K.Mohammed Nainar @ Abban Rowthar was retaining his possession over the suit schedule properties. Therefore, there was only a 9/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025 declaration of gift, but there was no acceptance or delivery of possession pursuant to the said declaration of gift.
24.It is the further contention of the plaintiff that the partition deeds have been entered into between the brothers only based upon the gift deed. In case, if the gift deeds are declared to be void for want of acceptance and delivery of possession, the partition deed will automatically fall to the ground. The defendants have pleaded that they are in exclusive possession of the property only based upon these gift deeds and partition deed.
25.It is to be noted that these gift deeds and partition deeds are challenged in the suit and declarations have been sought for to declare them as null and void. In case, if the trial Court ultimately arrives at a finding that the gift deeds and partition deeds are invalid, then the plaintiffs should only construed to be in joint possession. Therefore, until the trial Court arrives at such a finding, the plaintiff should be construed only to be in joint possession of the said suit schedule properties.
26.It is the further contention of the defendants that one of the brothers namely Jamal Mohammed had alienated the property in favour of the third parties, 30 years back and therefore, the possession of the 10/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025 plaintiff cannot be considered to be joint possession.
27.A perusal of the plaint reveals that the suit for partition has been levied for three items of properties. In the affidavit filed in support of the application under Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, it is not pointed out which of the suit schedule properties was sold by Jamal Mohammed to the third party. Therefore, the said claim remains vague. The plaintiff being not a party to the gift deed and partition deed, had rightly paid the Court fee under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act.
28.In view of the above said deliberations, it is clear that whether the plaintiff is in joint possession of the suit schedule properties or not, could only be found out after full-fledged trial. In case, if the trial Court arrives at a finding that the gift deeds and the partition deeds are invalid, then the plaintiff would be construed to be in joint possession and the Court fee under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act is sustainable.
29.On the other hand, if the trial Court arrives at a finding that the gift deeds and partition deed are valid and the plaintiff has been excluded from the possession by the third parties, the Court is always 11/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025 entitled to recover the deficit Court fee from the plaintiff. Hence, the trial Court has erroneously arrived at a finding that the plaintiff has been excluded from the possession of the property relying upon the recitals in the gift deeds and the partition deeds which are challenged in the suit. Unless the validity of these documents are decided, a finding cannot be arrived at whether the plaintiff has been excluded from the possession or not.
30.In view of the above said deliberations, the order impugned in the revision petition is hereby set aside and the trial Court is directed to dispose of the suit in accordance with law. Accordingly, this civil revision petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed.
25.03.2025 Index : Yes/No Internet : Yes/No NCC : Yes/No msa 12/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025 To
1.The Additional District and Sessions Judge Palani, Dindigul
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
13/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm ) C.R.P.(PD)(MD).No.717 of 2025 R.VIJAYAKUMAR, J msa Pre-delivery order made in C.R.P.(PD)(MD).No.717 of 2025 and CMP(MD).No.3822 of 2025 25.03.2025 14/14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/03/2025 02:20:08 pm )