Kerala High Court
Achambat Abdul Rahim vs Adv.Muhammed Haroon on 24 May, 2022
Author: V Shircy
Bench: V Shircy
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
TUESDAY, THE 24TH DAY OF MAY 2022 / 3RD JYAISHTA, 1944
AS NO. 584 OF 1997
AGAINST THE DECREE & JUDGMENT DTD. 30.01.1997 IN OS 85/1993 OF
SUBORDINATE JUDGE'S COURT, TIRUR
APPELLANT/5TH RESPONDENT:
ACHAMBAT ABDUL RAHIM
RESIDING AT NEDUVA AMSOM DESOM,TIRUR TALUK
BY ADV SRI.M.P.SREEKRISHNAN
RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 4 & 6, 7, 9 TO 11 AND LEGAL
HEIRS OF DECEASED 8TH DEFENDANT:
1 ACHAMBAT KUNHALIKUTTY HAJI'S SON MUHAMMED HAROON,
ADVOCATE, PARAPPANANGADI.
2 ACHAMBAT KUNJALIKUTTY HAJI'S CHILDREN KIZHAKKINIYAKATH
KUNHIKOYAMMUTTY NAHA
RESIDING AT NEDUVA AMSOM DESOM,TIRUR TALUK. (DIED)
3 ACHAMBAT KUNHALIKUTTY HAJI'S CHILDREN FATHIMA,
DO. DO.
4 ACHAMBAT JAMEELA
WIFE OF A.RAYINKUTTY,KARUVALATHIL HOUSE,
VALLIKKUNNU AMSOM DESOM,TIRUR TALUK
5 ACHAMBAT NAFEESA, W/O P.KOMUKUTTY, VETTOM,PALLIPRAM
AMSOM DESOM,(CHAMRAVATTOM)
6 ACHAMBAT DECEASED MUHAMMEDALI'S DAUGHTER FEBEENA(MINOR)
PARAPPANANGADI AMSOM DESOM (BEACH ROAD, KUNDOOR HOUSE)
7 ACHAMBAT DECEASED MUHAMMEDALI'S WIFE KULIPULAKKAL
AYISAKKUTTY, PARAPPANANGADI AMSOM DESOM(BEACH
A.S. Nos. 584, 219 & 507/1997
2
ROAD,KUNDOOR HOUSE)
8 CHAKKEERI THITHIMMA(DIED)
9 M.K ABDULLA, S/O MUHAMMED,
RESIDING AT NEDUVA AMSOM DESOM,TIRUR TALUK
10 A.V MOOSSA, S/O MOIDEEN KUTTY,
NEDUVA AMSOM DESOM, TIRUR TALUK
11 K.V HUSSAIN,
S/O KASMI,RESIDING AT NEDUVA AMSOM DESOM,TIRUR TALUK
12 KHADEEJA
W/O SHAMSUDDIN,DHIMNADU P.O.,
ALANALLOOR,PALAKKAD
13 RAMLA K.P.,
W/O IBRAHIM KUTTY,PATTATHIL HOUSE,
CHAMRAVATTOM P.O.,TIRUR
14 SUHARA K.P.,
W/O MOIDUTTY,PATTATHIL HOUSE,CHAMRAVATTOM,TIRUR
15 FASEENA K.P.,
W/O ABDUL RASHEED,VALLAPPUZHA PO,PATTAMBI
16 ABDUL JABBAR
EDATHOLA HOUSE,KOORIYAD P.O.,TIRUR ANGADI
17 FASSAL K.P.,
EDATHOLA HOUSE, KOORIYAD PO,TIRUR ANGADY
18 GAFOOR K.P.,
EDATHOLA HOUSE,KOORIYAD P.O.,TIRUR ANGADY.
19 MUNNAZ K.P.,
WIFE OF AHAMMED, AKKODU PO,VAZHAKKAD
SUPPL. R20 ACHAMPAT SABIRA
AGED 35,D/O A.MOHAMMED HAROON,SABIRA MANZIL,
COURT ROAD,P.O. PARAPPANANGADI.
A.S. Nos. 584, 219 & 507/1997
3
SUPPL. R21 ACHABAT SHAHINA (DIED)
AGED 33 YEARS,-DO-
SUPPL. R22 ACHAMPAT SHAHID BABU,
AGED 30 YEARS,S/O MOHAMMED HAROON, -DO-
SUPPL. R23 ACHAMPAT SHAHIDA
AGED 25 YEARS,D/O. MOHAMMED HAROON,-DO-
SUPPLEMENTAL RESPONDENTS 20 TO 23 ARE IMPLEADED VIDE
ORDER DT 16/2/2006 IN IA 24/2006
ADDL.R24 KUNHIPATHUMMA
W/O. LATE KIZHAKKINIYAKATH, KUNHIKOYAMMUTTY NAHA,
BANGLOW HOUSE,PUTHARIKKAL (P.O.),
PARAPPANANGADI,MALAPPURAM.
ADDL.R25 A.SUHARA
D/O LATE KIZHAKKINIYAKATHU KUNHIKOYAMMUTTY NAHA,BANGLOW
HOUSE,PUTHARIKKAL PO,PARAPPANANGADI, MALAPPURAM
ADDL.R26 SHERRIEF BABU
D/O LATE KIZHAKKINIYAKATHU KUNHIKOYAMMUTTY NAHA,
BANGLOW HOUSE,PUTHARIKKAL (P.O.),
PARAPPANANGADI,MALAPPURAM.
ADDL.R27 A.HASEENA
D/O LATE KIZHAKKINIYAKATHU KUNHIKOYAMMUTTY NAHA,
BANGLOW HOUSE,PUTHARIKKAL (P.O.),
PARAPPANANGADI,MALAPPURAM
ADDL R24 TO R27 ARE IMPLEADED AS AS THE LR'S OF THE
DECEASED 2ND RESPODENT AS PER ORDER DT 6/2/12 IN AS
584/1997.
ADDL.R28 ABDUL MAJEED
ALLIYATHIL HOUSE, NIRAMARATHUR (P.O.),
VALLIKANJIRAM,TIRUR,MALAPPURAM-676109
ADDL. R29 SHIBIL C/O ABDUL MAJEED
A.S. Nos. 584, 219 & 507/1997
4
ALLIYATHIL HOUSE, -DO- -DO-
ADDL. R30 SENIN(MINOR)
REPRESENTED BY FATHER AND NATURAL GUARDIAN
ABDUL MAJEED, ALLIYATHIL HOUSE, -DO- -DO-
ADDL.R31 SEHUL(MINOR)
REPRESENTED BY FATHER NATURAL GUARDIAN ABDUL MAJEED,
ALLIYATHIL HOUSE, -DO- -DO-
ADDL R28 TO R31 ARE IMPLEADED AS THE LR'S OF THE DECEASED
21ST RESPONDENT AS PER ORDER DT 25/8/17 IN IA 2470/15.
BY ADVS.
SRI.T.SETHUMADHAVAN (SR.),
ADV. MEENA A,
ADV. ROBIN U S
BY ADV. SRI.K.RAMACHANDRAN
BY ADV.SRI.K.P.DANDAPANI (SR.)
SRI.K.MOHANAKANNAN
SRI.P.RAMACHANDRAN
SRI.JAICE JACOB
SRI.P.VISWANATHAN (SR.)
SRI.SUNIL N.SHENOI
SRI.R.RAJESH KORMATH
SRI.MANU RAJ,
SMT. MINI M.R.
THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 23.03.2022,
ALONG WITH AS.219/1997, 507/1997, THE COURT ON 24.05.2022 DELIVERED
THE FOLLOWING:
A.S. Nos. 584, 219 & 507/1997
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
TUESDAY, THE 24TH DAY OF MAY 2022 / 3RD JYAISHTA, 1944
AS NO. 219 OF 1997
AGAINST THE DECREE & JUDGMENT DTD. 30.01.1997 JUDGMENT IN OS 85/1993
OF SUBORDINATE JUDGE'S COURT, TIRUR
APPELLANT/1ST DEFENDANT IN THE TRIAL COURT
1
KIZHAKKINIYAKATH KUNHIKOYAMUTTY NAHA (DIED)
S/O A.KUNHALIKUTTY HAJI, PUTHARIKKAL P.O.,
PARAPPANANGADI,
MALAPPURAM DISTRICT
ADDL.A2 A.SUHARA
D/O LATE KIZHAKKINIYAKATHU KUNJIKOYAMMUTTY NAHA,BANGLOW
HOUSE,PUTHARIKKAL PO,PARAPPANANGADI,MALAPPURAM DISTRICT
ADDL.A3 SHERRIEF BABU
S/O LATE KIZHAKKINIYAKATHU KUNJIKOYAMMUTTY NAHA,BANGLOW
HOUSE,PUTHARIKKAL PO,PARAPPANANGADI,MALAPPURAM DISTRICT
ADDL.A4 A.HASEENA
D/O LATE KIZHAKKINIYAKATHU KUNJIKOYAMMUTTY NAHA,BANGLOW
HOUSE,PUTHARIKKAL PO,PARAPPANANGADI,MALAPPURAM DISTRICT
ADDL.A5 KUNHIPATHUMMA
W/O LATE KIZHAKKINIYAKATHU KUNJIKOYAMMUTTY NAHA,BANGLOW
HOUSE,PUTHARIKKAL PO,PARAPPANANGADI,MALAPPURAM DISTRICT
LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED
AS ADDL APPELLANTS A2 TO A5 AS PER ORDER DT 6/2/12 IN IA
54/12
BY ADVS.
SRI.G.SREEKUMAR (CHELUR)
SMT.PREETHI KARUNAKARAN, ADV.SRI.C.RAMAN
A.S. Nos. 584, 219 & 507/1997
6
RESPONDENTS /(PLAINTIFF AND DEFENDANTS 2 TO 11 IN THE TRIAL COURT)
1 ACHAMBAT MOHAMMAD HAROON(DIED), S/O KUNHALIKKUTTY HAJI,
ADVOCATE,PARAPPANANGADI,MALAPPURAM DISTRICT
2 A.FATHIMA
D/O A.KUNHALIKUTTY HAJI AND W/O K.SALEEM NAHA,VAIKKAL
HOUSE PARAPPANANGADI,MALAPPURAM DISTRICT
3 A JAMEELA,D/O A.KUNJALIKUTTY HAJI,W/O A
RAYINKUTTY,KARUVALETHIL HOUSE,PO KADALUNDI,
(VIA),PARAPPANANGADI,MALAPPURAM DISTRICT
4 A.NAFEESA
D/O A KUNJALIKUTTY AND W/O P. KOMUKUTTY,VETTOM PALLIPRAM
AMSOM AND DESOM,PO CHAMRAVATTOM,PONNANI TALUK,MALAPPURAM
DISTRICT
5 A. ABDUL RAHIM
ADVOCATE,S/O A.KUNHALIKUTTY HAJI,,CHELLIYIL HOUSE,PO
PARAPPANANGADI,MALAPPURAM DISTRICT
6 FEBEENA(MINOR)
D/O ACHAMBAT MUHAMMADALI,KUNDOOR HOUSE,BEACH ROAD
PO,PARAPPANANGADI,MALAPPURAM DISTRICT.REP BY GUARDIAN
MOTHER 7TH RESPONDENT
7 KULIPPULAKKAL AYISSAKUTTY
W/O C.P. KOYAKUTTY,KUNDOOR HOUSE,BEACH
ROAD,PARAPPANANGADI,MALAPPURAM DISTRICT
8 CHAKKEERI THITHIMMA(DIED)
W/O EDATHOLA MUHAMMED HAJI,A.R NAGAR AMSOM,
NORTH KUTTOOR PO,VIA VENGARAI,MALAPPURAM DISTRICT
9 M.K ABDULLA
S/O MUHAMMED,MERCHANT,PUTHIRIKKAL
PO,PARAPPANANGADI,MALAPPURAM DISTRICT
10 A.V MOOSA
S/O MOIDEENKUTTY,MERCHANT,PUTHIRIKKAL
PO,PARAPPANANGADI,MALAPPURAM DISTRICT
A.S. Nos. 584, 219 & 507/1997
7
11 K.V HUSSAIN
S/O KASMI,HOTEL ANURAS,PUTHIRIKKAL
PO,PARAPPANANGADI,MALAPPURAM DISTRICT
ADDL.R12 K.P. KHADEEJA
W/O NALAKATH SARAFUDHEEN,P.O. BHEEMANAD
ALANELLOOR,PALAKKAD DISTRICT.
ADDL.R13 K.P. RAMLA
W/O IBRAHIMKUTTY,PATTATHIL HOUSE, P.O.CHAMRAVATTOM,
TIRUR-10, MALAPPURAM DISTRICT.
ADDL.R14 K.P.SUHARA, W/O MOIDUTTY,
PATTATHIL HOUSE,P.O. CHAMRAVATTOM,
TIRUR-10, MALAPPURAM DISTRICT.
ADDL.R15 K.P. FASEENA,
W/O ABDUL RASAHEED,
P.O. VALLAPPUZHA,
PATTAMBI,PALAKKAD DISTRICT.
ADDL.R16 K.P. MUMTHAZ, W/O AHAMMED,
P.O. AKKODE, VAZHAKKAD, MALAPPURAM DISTRICT.
ADDL.R17 K.P. ABDUL JABBAR
S/O K.P MOHAMMED HAJI, EDATHALA HOUSE,
P.O.KOORIYAD, VIA THIRURANGADI, MALAPPURAM DISTRICT.
ADDL.R18 K.P. FASSAL
S/O. MUHAMMED HAJI, EDATHALA HOUSE,
P.O. KOORIYAD,VIA THIRURANGADI - 676 306,
MALAPPURAM DISTRICT.
ADDL.R19 K.P GAFOOR, S/O K.P MUHAMMED HAJI,EDATHALA HOUSE,
P.O. KOORIYAD, VIA THIRURANGADI- 676 306,
MALAPPURAM DISTRICT.
ADDL R12 TO R19 ARE IMPLEADED AS THE LR'S OF THE DECEASED
R8 AS PER ORDER DATED 20/02/2001 IN CMP NO.3632/1997
SUPPL.R20 ACHAMPAT SABIRA
AGED 35,D/O. A.MOHAMMED HAROON, SABIRA MANZIL,
COURT ROAD. P.O.PARAPPANANGADI.
A.S. Nos. 584, 219 & 507/1997
8
SUPPL.R21 ACHAMPAT SHAHINA (DIED)
AGED 33 YEARS, D/O. A.MOHAMMED HAROON, -DO-
SUPPL.R22 ACHAMPAT SHAHID BABU
AGED 30 YEARS, S/O. A .MOHAMMED HAROON, -DO-
SUPPL.R23 ACHAMPAT SHAHIDA
AGED 25 YEARS, D/O. A. MOHAMMED HAROON, -DO-
ADDL R20 TO R23 ARE IMPLEADED AS THE LEGAL HEIRS OF THE
DECEASED FIRST RESPONDENT AS PER ORDER DATED 16/02/06 IN
IA.25/06
ADDL.24 ACHAMBAT UMMATHAKUTTY
55 YEARS, W/O. ACHAMBAT MOHAMMED HAROON,
PARAPPANANGADI P.O., MALAPPURAM DISTRICT.
LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS
ADDL.R20 TO R23 IN I.A.NO.25/2006 AS PER ORDER DATED
16.2.2006 AND THE OTHER LEGAL HEIRS OF DECEASED 1ST
RESPONDENT ARE IMPLEADED AS ADDL.R24 AS PER ORDER DATED
6.6.2012 IN I.A. NO.3884 OF 2007.
ADDL.R25 ABDUL MAJEED, ALLIYATTIL HOUSE
NIRAMARUTHUR AMSOM DESOM, TIRUR TALUK,
MALAPPURAM (DT)-673001
ADDL.R26 MUHAMMED SHIBIL, S/O ABDUL MAJEED
ALLIYATTIL HOUSE
NIRAMARUTHUR, AMSOM DESOM,
TIRUR TALUK, MALAPPURAM (DT)-673001
ADDL.R27 SENIN, AGED 15 YEARS(MINOR)
S/O ABDUL MAJEED, ALLIYATTIL HOUSE ,
NIRAMARUTHUR AMSOM DESOM, TIRUR TALUK,
MALAPPURAM (DT)-673001
REPRESENTED THROUGH HIS FATHER ABDUL MAJEED, THE 25TH
RESPONDENT HEREIN
ADDL.R28 SEHAL, AGED 10 YEARS (MINOR), S/O ABDUL MAJEED
ALLIYATTIL HOUSE, NIRAMARUTHUR AMSOM DESOM,
TIRUR TALUK, MALAPPURAM (DT)
REPRESENTED THROUGH HIS FATHER ABDUL MAJEED,THE 25TH
RESPONDENT HEREIN.
A.S. Nos. 584, 219 & 507/1997
9
LEGAL HEIRS OF DECEASED 21ST RESPONDENT ARE IMPLEADED AS
ADDL.RESPONDENTS 25 TO 28 VIDE ORDER DATED 21.11.2016 IN
I.A.NO.2402/2015
BY ADVS.
SRI.B.KRISHNAN
SRI.T.H.ABDUL AZEEZ
K.P.DANDAPANI (SR.)
SRI.M.P.SREEKRISHNAN
SRI.K.MOHANAKANNAN
SRI.K.RAMACHANDRAN,
ADV. MANU RAJ
SRI.R.PARTHASARATHY
SRI.P.RAMACHANDRAN
SMT.MEENA
SRI.ROBIN U.S
THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 24.05.2022,
ALONG WITH AS.584/1997 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
A.S. Nos. 584, 219 & 507/1997
10
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SHIRCY V.
TUESDAY, THE 24TH DAY OF MAY 2022 / 3RD JYAISHTA, 1944
AS NO. 507 OF 1997
AGAINST THE DECREE AND JUDGMENT IN OS 85/1993 OF SUB COURT, TIRUR
APPELLANT/PLAINTIFF IN THE COURT BELOW
1 MUHAMMNED HAROON, S/O. KUNHALIKUTTY HAJI,
ADVOCATE,PARAPPANANGADI.
SUPPL.A2 ACHANPAT SABIRA
AGED 35, D/O A.MOHAMMED HAROON,
SABIRA MANZIL,COURT ROAD,P.O., PARAPPANANGADI
SUPPL.A3 ACHANPAT SHAHINA (DIED)
AGED 33 YEARS, -DO- -DO-
SUPPL.A4 ACHANPAT SHAHID BABU, AGED 30 YEARS,
S/O. MOHAMMED HAROON, -DO-
SUPPL.A5 ACHANPAT SHAHIDA, AGED 25 YEARS,
D/O. MOHAMMED HAROON, -DO-
SUPPL. APPELLANTS 2 TO 5 ARE IMPLEADED VIDE ORDER DT
16/2/2006 IN IA 22/2006
BY ADVS.
SRI.K.RAMACHANDRAN
RESPONDENTS/DEFENDANTS IN COURT BELOW
1 KUNHAKKANIYAKATH KUNHIKOYAMUTTY NAHA (DIED)
AGED 62 YEARS,S/O ACHAMBAT KUNHALIKUTTY HAJI, NEDUVA
AMSOM DESOM, P.O., PARAPPANANGADI,MALAPPURAM DISTRICT.
A.S. Nos. 584, 219 & 507/1997
11
2 FATHIMA, AGED 43, D/O ACHAMBAT KUNHALIKUTTY HAJI,
NEDUVA AMSOM DESOM, P.O. PARAPPANANGADI,
MALAPPURAM DISTRICT.
3 ACHAMBAT JAMEELA
AGED 41 YEARS, W/O K.RAYINKUTTY, KARUVALATHIL HOUSE,
VALLIKKUNNU AMSOM DESOM, MALAPPURAM DIST,
P.O. KADALUNDI NAGARAM.
4 ACHAMBAT NAFEESA
AGED 36, W/O. KOMUKUTTY,VETTOM PALLIPRAM,
CHAMVARAVATTOM P.O., MALAPPURAM DISTRICT.
5 ACHAMBAT ABDUL RAHIM
AGED 40,CHELLIYIL HOUSE,NEDUVA AMSOM
DESOM,PARAPPANANGADI,MALAPPURAM DIST
6 FABEENA(MINOR)
AGED 17 YEARS,D/O. MOHAMMADALI,KUNDOOR HOUSE,BEACH ROAD,
PARAPPANANGADI,MALAPPURAM DISTRICT,REP BY GUARDIAN 7TH
DEFENDANT
7 KULIPULAKKAL AYISSAKUTTY
AGED 42, W/O ACHAMBAT MOHAMMADALI,-DO-DO
8 CHAKKEERI THITHIMMA(DIED)
AGED 69,W/O. LATE EDATHOLA MUHAMMED HAJI,
AR NAGAR,MALAPPURAM DISTRICT
(DIED AFTER THE DECREE OF THE COURT BELOW ON 21.4.1997)
9 M.K ABDULLA
47 YEAR, S/O. MUHAMMED MERCHANT,P.O. PUTHIRIKKAL,
PARAPPANANGADI,MALAPPURAM DISTRICT.
10 A.V. MOOSA,
AGED 56, S/O. MOIDEENKUTTY, -DO- -DO-
11 K.V HUSSAIN
AGED 42, S/O. KASHIM, HOTEL ANURAS,
P.O. PUTHIRIKKAL,PARAPPANANGADI, MALAPPURAM DISTRICT
A.S. Nos. 584, 219 & 507/1997
12
12 KADEEJA, AGED 34, W/O. SHEFUDDIN,
BHIMANAD P.O., ALANALLUR, PALAKKAD DISTRIST
13 RAMLA K.P.,
W/O IBRAHIMKUTTY, AGED 32,PATTATHIL HOUSE,
CHAMRAVATTOM P.O., TIRUR, MALAPPURAM DISTRICT.
14 SUHARA K.P., W/O MOIDUTTY, AGED 30,
PATTATHIL HOUSE, CHAMRAVATTOM P.O.,
TIRUR,MALAPPURAM DISTRICT.
15 FASEENA K.P,
W/O. ABDUL RASHEED, AGED 28,VALLAPPUZHA P.O. , PATTAMBI,
16 ABDUL JABBAR
EDATHOLA HOUSE, AGED 26, KOORIYAD PO, THIRURANGADI.
17 FAZAL K.P.,
EDATHOLA HOUSE,AGED 24, KOORIYAD P.O.,THIRURANGADI.
18 GAFOOR K.P.,
EDATHOLA HOUSE, AGED 22, KOORIYAD P.O.,THIRURANGADI
19 MUMTHAS K.P., W/O AHAMMED, AGED 20, AAKKOD P.O.,
VAZHAKKAD.
ADDL.R20 KUNHIPATHUMMA
W/O. LATE KIZHAKKINIYAKATHU KUNJIKOYAMMUTTY NAHA,
BANGALOW HOUSE,PUTHARIKKAL (P.O.), PARAPPANANGADI,
MALAPPURAM, PIN-676303
ADDL.R21 A.SUHARA
D/O. LATE KIZHAKKINIYAKATHU KUNJIKOYAMMUTTY NAHA,BANGALOW
HOUSE,PUTHARIKKAL PO,PARAPPANANGADI,MALAPPURAM,PIN-676303
ADDL.R22 SHERRIEF BABU
S/O. LATE KIZHAKKINIYAKATHU KUNJIKOYAMMUTTY NAHA,
BANGALOW HOUSE,PUTHARIKKAL(P.O.), PARAPPANANGADI,
MALAPPURAM,PIN-676303
A.S. Nos. 584, 219 & 507/1997
13
ADDL.R23 A.HASEENA,
D/O. LATE KIZHAKKINIYAKATHU KUNJIKOYAMMUTTY NAHA,
BANGALOW HOUSE, PUTHARIKKAL ((P.O.), PARAPPANANGADI,
MALAPPURAM, PIN-676303
LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE
IMPLEADED AS ADDITIONAL RESPONDENTS 20 TO 23 AS PER ORDER
DT 6/2/12 IN IA 322/12.
ADDL.R24 ACHAMPAT UMMATHAKUTTY, AGED 60 YRS,
W/O. MUHAMMED HAROON, SABIRA MANZIL, COURT ROAD,
PARAPPANANGADI (P.O.), THIRURANGADI TALUK, MALAPPURAM(DT)
ADDL.R25 P.P ABDUL MAJEED, AGED 48 YEARS,
S/O. MOHAMMED HAJEE, ALATIL HOUSE,
NIRAMARUTHOOR (P.O.),
VALLIKANJEERAM, TIRUR, MALAPPURAM DISTRICT.
ADDL.R26 P.P MOHAMMED SHIBIN, AGED 20 YEARS,
S/O P.P. ABDUL MAJEED,
-DO- -DO-
ADDL.R27 P.P. MOHAMMERD SHAHUL (MINOR),
REPRESENTED BY GUARDIAN AND FATHER ABDUL MAJEED (25TH
RESPONDENT)
ADDL.R28 MOHAMMED SHENIN (MINOR),
AGED 5 YEARS,-DO- -DO-
LEGAL HEIRS OF THE DECEASED 3RD APPELLANT ARE IMPLEADED
AS ADDITIONAL 24 TO 28 AS PER ORDER DATED 2/4/13 IN I.A.
753/13
BY ADVS.SRI.T.SETHUMADHAVAN (SR.)
SRI.P.RAMACHANDRAN
SRI.T.H.ABDUL AZEEZ
SRI.K.P.DANDAPANI (SR.)
SRI.K.MOHANAKANNAN
SRI.P.VISWANATHAN (SR.)
SRI.SUNIL N.SHENOI
SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
SRI.R.RAJESH KORMATH
SMT. MINI M.R.
A.S. Nos. 584, 219 & 507/1997
14
THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 24.05.2022,
ALONG WITH AS.584/1997 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
A.S. Nos. 584, 219 & 507/1997
15
C.R.
JUDGMENT
[AS Nos.584/1997, 219/1997, 507/1997] Dated this the 24th day of May, 2022 O.S. No.85 of 1993 was a suit filed before the Sub Court, Tirur for partition and separate possession of the properties scheduled in the plaint. A preliminary decree for partition was passed by the learned Subordinate Judge on 30 th January, 1997. Assailing the said judgment and decree, the plaintiff had preferred A.S No.507/1997. The 1 st defendant had filed A.S. No. 219 of 1997 and the 5th defendant had filed A.S. No. 584 of 1997.
2. For the sake of convenience, the parties are referred to as per their status before the trial court.
3. It is the case of the plaintiff that the plaint schedule item Nos. 1 to 7 originally belonged to Achambat Kunhalikutty Haji, the father of the plaintiff and the defendants 1 to 5. Kunhalikutty Haji had married thrice. His first wife was Kunhipathi Umma. The 1st defendant was born to them in the A.S. Nos. 584, 219 & 507/1997 16 said wedlock. Later he divorced her and married another lady viz Thithi Umma (defendant No.8) and one son was born to them by name Muhammed Ali. Kunhalikutty Haji then divorced her and married one Pathukutty Umma. The plaintiff and the defendants 2 to 5 are the children born to them in the said wed lock. Kunhalikutty Haji expired on 25.01.1985. His wife Pathukutty Umma expired on 07.01.1993. Before her death, i.e., on 20.04.1986 Muhammed Ali, the son of Kunhalikutty Haji and Thithi Umma expired. Defendant No.6 is the daughter of Muhammed Ali and the 7th defendant. The 7th defendant, his wife, remarried after five years of his death. The plaintiff had claimed partition of the plaint schedule item Nos. 1 to 7 among the legal heirs of Kunhalikutty Haji. It is contended by the plaintiff that the claim raised by the 5 th defendant over item No. 1 property placing reliance on a will deed is not correct as the will deed is against Islamic law and therefore invalid. So item No.1 is also liable to be divided among the legal heirs. The buildings A.S. Nos. 584, 219 & 507/1997 17 in Item Nos. 2 and 3 constructed by the father and rented out to the tenants including the State Bank of India, Parappanangadi Branch are also partible among the parties along with the other properties.
4. The 1st defendant averred that item No.2 property was gifted to him by his father in the year 1959 by executing a registered gift deed and hence the said property is not partible. Item No. 1 property is in the possession of the 5 th defendant and he is residing in the house situated therein. Another property with shop room Nos. 12/435 to 438 and 339 to 346 (upstair portion) are also liable to be partitioned but, those rooms and the property are not scheduled in the plaint.
5. The 5th defendant had claimed exclusive right over item No. 1 property (2 acre 10 cents in which tharavad house is situated) as per the will deed executed by Kunhalikutty Haji in his favour. That property is less than 1/3 of his entire property. Item No.2 was gifted to the 1st defendant and hence not A.S. Nos. 584, 219 & 507/1997 18 partiable. Item No. 3 property is also claimed by the 5 th defendant as per a gift deed No. 663/1959.
6. The 3rd defendant admitted the claim raised by the 5 th defendant over item No.1 property on the basis of the will deed.
7. The 2nd and 4th defendants had averred that they were not aware of the will deed alleged to have been executed by their father in favour of the 5th defendant.
8. Defendants 6, 7 and 8 the legal heirs of Muhammed Ali, the deceased son of Kunhalikutty Haji, have contended that the properties were managed by the 1st and 5th defendants and along with them they are also entitled to get their shares.
9. Before the court below PW1 was examined and Ext.A1 to 18 were marked on the side of the plaintiff. For the defendants DWs. 1 to 7 were examined and B1 to B48 were marked. Later as per the order dated 20.10.2020 in I.A No. 1 of 2019 DW8 was examined and Ext B 49 was also marked. A.S. Nos. 584, 219 & 507/1997 19
10. The learned trial Judge as per the judgment under challenge passed a preliminary decree for partition directing to divide all the properties scheduled as well the property mentioned in the written statement of the 1 st defendant. Feeling aggrieved and dissatisfied with the impugned judgment, the plaintiff, the 1st defendant and the 5th defendant have preferred the above three appeals.
11. Heard the rival submissions of the learned counsel appearing for all the parties in detail and perused the records.
12. Though seven items are scheduled in the plaint, there is no dispute with respect to items 4 to7. So the dispute is confined to items 1 to 3. The parties are Muslims. Item No.1 is 2 acre 10 cents wherein the tharawad house is situated. By Ext. B 48 will deed the 5th defendant is claiming right over item No.1 property. The will deed produced and marked as Ext. B 48 is not the original document. At the outset, it is required to be noted that the execution of the will deed dated 11.04.1984 was not A.S. Nos. 584, 219 & 507/1997 20 challenged by the contesting parties, i.e., the plaintiff and the defendant Nos. 2, 4, 6 and 7 with definite and clear terms. But a reading of the plaint itself would reveal that the plaintiff's case is that, the will is not valid as consent, of all the legal heirs of Kuhalikutty Haji was not obtained and that is against Mahomedan law. So also there is no case for the contesting parties that the will is surrounded by suspicious circumstances. The 1st defendant and the 3rd defendant in fact admitted the execution of the will deed. The 2nd and 4th defendants have a case that they were not aware of the execution of the will deed but, have no case that it was a falsely created one or a fabricated document. Defendants 6 to 8, the legal heirs of Muhamedali have also taken a similar stand. In short, there is no allegation of fraud, undue influence or misrepresentation regarding the execution of the will deed. The plaintiff is challenging the will deed in the absence of consent by all the heirs after the death of the testator on 25.01.1985. There is no pleading which could be A.S. Nos. 584, 219 & 507/1997 21 termed as specific denial of execution of the crucial document. The contention raised by the contesting defendants that, they were not aware of the execution of will deed also would not amount to specific denial of execution.
13. To appreciate the matter in dispute it is appropriate to have glance to Paragraph 117 of Principles of Mahomedan Law by Mulla which reads as hereunder :
''Bequests to heirs - A bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share. A bequest to an heir, either in whole or in part is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. Neither inaction nor silence can be the basis of implied consent. Explanation :- In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the testor's death.''
14. Every Mahomedan of sound mind and not a minor can dispose of his property by will. But, bequest to an heir by a Mahomedan is not valid unless the other heirs consent to the bequest after his death. It is the case of the plaintiff that A.S. Nos. 584, 219 & 507/1997 22 consent was not obtained from the all heirs of the testator and because of that the will deed can not be treated as a genuine or valid one. It is worth noting that consent need not be express, it can be inferred from the circumstances and conduct of the parties. So consent of the heirs can be express or implied. Whether consent, of the legal heirs of Kunhalikutty Haji, was there or not, could be gathered from the evidence on record and it is a crucial matter for decision in the appeals. Here, the death of Kunhalikutty Haji, the father, was on 25.01.1985. After his death, on 20.04.1986 his son Muhammed Ali expired. The mother of the plaintiff and the defendants 2 to 5 expired on 07.01.1993. The suit was filed after the death of their mother, on 20.05.1993. Since the execution of the will deed (Ext.B48) claimed to be the last will and testament of deceased Kunhalikutty Haji, has not been challenged, the validity of the will based on consent, will have to be considered first. Whether express or implied, consent of all the legal heirs were there to A.S. Nos. 584, 219 & 507/1997 23 make it as a valid and genuine document as contended by the 5th defendant, has to be analysed on the basis of the evidence adduced by the parties and the other circumstances available in the case. If sufficient facts and circumstances are there to constitute consent, the will has to be construed as a valid one. As DW2, the 5th defendant deposed in clear terms that till the death of their father the custodian of deed was the father himself and on the 40th day of his death the deed was handed over to him by the 1st defendant in the presence of all and the will deed was read over to them by Abubaker Shahib, their uncle and all the legal heirs of his father consented to it. On behalf of the 5 th defendant, it was emphasised by the learned counsel that the plaintiff has not specifically pleaded that suspicious circumstances exist in the execution of the document. So also, there is no allegation of fraud, undue influence or misrepresentation regarding the execution of the will deed. The 2nd and the 4th defendants contended that they came to know A.S. Nos. 584, 219 & 507/1997 24 about the will deed only after filing of the suit. But it is significant to note that they too have no contention that the will deed is a fabricated one or is not a valid one binding on the parties. So there is no specific denial of the execution of the will deed. It is equally well settled that fraud, misrepresentation or undue influence can not be proved by adducing any amount of evidence in the absence of specific pleadings. It is the burden of the party to ensure that the particulars are clearly and precisely set out in the pleadings challenging the genuineness of the document.
15. A Division Bench of this court in United India Insurance Co. Ltd. v. Andrew Vivera (1989 (2) KLT 348) has held as follows:-
"6. O.6 R.4 C.P.C. provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. The position admits no doubt that allegation of fraud, undue influence and coercion must be set forth A.S. Nos. 584, 219 & 507/1997 25 in full particulars and not vaguely. The allegation must be fully stated so that the case can be decided on the particulars pleaded. There cannot be any departure from what has been ordained under O.6 R.4. Any allegation in a sweeping manner will hardly suffice for the Court to act. In Bishundeo v. Seogeni Rai (AIR 1951 S.C. 280) it is held as follows:
"In cases of fraud, undue influence and coercion the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion."
It is trite law that where allegations are made in a vague and sweeping manner the Court cannot act on it for lack of specific pleadings even if the allegations are worded in a very assertive language. As O.6 R.4 makes it incumbent upon a party to highlight all particulars necessary to substantiate the contentions regarding misrepresentation, fraud, breach of trust, wilful default or undue influence, a party cannot shirk that responsibility and shelve it to be adduced in evidence at a later stage. If the pleadings are vague and not specific no amount of evidence can salvage the position." Also see Kadiya Umma v. Mayankutty (1992 KHC 87)
16. Though there was no specific pleading to doubt the genuineness of the will deed, much stress has been given by the A.S. Nos. 584, 219 & 507/1997 26 Court below unnecessarily regarding the same. Therefore, the first point relied on by the 5th defendant to substantiate his case that the allegation raised by the plaintiff that the will deed is un- Islamic and not a valid one, is not true, is mainly on the basis of Ext. B45, an assignment deed executed by him for a portion of the land bequeathed to him by Ext.B.48 in favour of one Abdul Khader as early as on 14.03.1995 wherein the plaintiff stood as a witness to the transaction. There is specific and clear recitals in Ext. B45, that the 5th defendant had obtained title over the property as per Ext B.48 will deed and the property was in his possession and enjoyment without any liabilities pursuant to the said will deed. The contention raised by the plaintiff that he had affixed his signature in the document that too in favour of a person, not a member of the family or friend, in fact to a stranger, only as a witness without knowing the contents of the document cannot be accepted as a true statement especially when he was quite aware of the legal consequences of affixing A.S. Nos. 584, 219 & 507/1997 27 signature in a registered document. He was a practising Advocate at the relevant time. The 5th defendant is also a lawyer. Ext. B45, executed by the 5th defendant alienating a portion of the property that too during the pendency of the suit is not under challenge. In Ext. B45 specific recitals have been made by the 5th defendant, that he was holding right and title over the property on the basis of the bequest made by his father by Ext. B48. Therefore, the argument of the learned counsel for the 5 th defendant that the evidence of the plaintiff as PW1 does not inspire confidence, has much force.
17. It is also pertinent to note that in the suit the plaintiff had filed a statement on 04.11.1996 admitting the will deed and thus giving up his claim for share over item No.1. Subsequently, on 08.11.l1996 he filed an affidavit withdrawing the statement that the will is not valid because of the absence of consent of heirs of the testator. An admission cannot be withdrawn, at the most it can be said that the statement is not A.S. Nos. 584, 219 & 507/1997 28 correct. It also reflects that he has no consistent case. The explanation of the plaintiff that he was induced by the 5 th defendant promising to give share in item No.3, can not be taken as a satisfactory explanation for filing the earlier statement admitting the will deed and consent of the heirs and then withdrawing it by filing a subsequent statement.
18. Another glaring circumstance which supports the case of the 5th defendant is regarding the filing of a suit by the plaintiff for partition of the properties against the legal heirs of Muhammed Ali before the Munsiff Court, Parappanangadi as O.S. No. 123 of 1993 (Ext. B15). In that suit, item No. 1 property was excluded by him. The defendants therein also have not questioned the exclusion of item No.1 property and that could only be because of the existence of the will deed. Otherwise, Muhammed Ali was also entitled for a share in item No1 as the son of Kunhalikutty Haji. Therefore, exclusion of item No.1 in the suit filed by the plaintiff himself loomed large that all the legal A.S. Nos. 584, 219 & 507/1997 29 heirs of Kunhalikutty Haji were aware of the execution of the will deed and their consent were also there to make the deed, a valid one. Defendant No.7, the wife of Muhammed Ali, who expired on 20.04.1986 had remarried and at the time of the death of Kunhalikutty Haji, Muhammed Ali was alive. So there is no merits in the contention raised by the 7th defendant that Muhammed Ali's consent for Ext. B48 will deed was not there. The 3rd defendant had admitted the will deed in favour of the 5 th defendant, but as mentioned above the 2 nd and 4th defendants' case was that they were not aware of the execution of the will deed in favour of the 5th defendant. It is pertinent to note that they have no case that it was not executed. Till the death of the mother on 07.01.1993 there was absolutely no dispute between the parties. The conduct of the parties reflected on record, and other circumstances narrated above are quite sufficient to infer that an implied consent of the heirs was there, which is an essential ingredient under the Mahomedan Law to A.S. Nos. 584, 219 & 507/1997 30 make the will deed, a valid and genuine one. As referred above, the plaintiff had only contended that the document is an un-Islamic one as consent was not obtained from all the legal heirs of the testator.
19. In Abdulkader v. Pathumma Mohammedan (1993 KHC 468) it was observed by this court as follows:-
"5. The question that arises for consideration is whether the consent should be express or implied. The consent need not be express. It may be signified by the conduct of the heirs showing their tacit approval of the will. The heirs whose rights are affected by the will can definitely consent to the same either expressly or impliedly. By passive acquiescence they can consent to the will executed by the testator. In a case where heirs did not challenge the will for a long time, the court can certainly infer that they have really consented to it. In other words, where a Mohamedan by his will bequeaths more than one third of his whole property, consent of his heirs after his death can be gathered from the long course of conduct. It cannot be said that in every case express consent by the heirs has to be obtained and only in such a case the will is valid. It is useful to refer to Ma Khatoon v. Ma Mya (AIR 1936 Rangoon 448) where the Rangoon High Court held:
"When a Mohamedan, by his will, bequeaths more than one third of his property, the consent of the heirs to such A.S. Nos. 584, 219 & 507/1997 31 bequest, required by the Mohamedan law, need not be express; it may be signified by conduct showing a fixed and unequivocal intention. It must however be given after testator's death."
20. For the reasons stated above, I find that the evidence on record will establish that consent of all the legal heirs of Kunhalikutty Haji after his death was there and as such, item No.1 must be deemed to have been bequeathed to the 5 th defendant by the will deed executed by Kuhalikutty Haji.
21. Normally, though, no specific pleading was raised to suspect the genuineness of a will deed, proof and validity of the will has to be examined on the settled propositions of law. But at the outset, it is to be noted that the will deed was one executed by a Mahomedan. Under the Mahomedan law a Mahomedan having sound mind and not a minor can make a valid will. A Mahomedan will need not be in writing .It can even be verbal. No writing is required to make a valid will by a Mahomedan. But the intention to make a will must be there. Even when it is a written one, the propounder need not prove that it will satisfy the requirements of Section 63 of the Indian A.S. Nos. 584, 219 & 507/1997 32 Succession Act as in the case of a will executed by others .
22. Part VI of the Indian Succession Act deals with testamentary succession. As mentioned above, the will deed in dispute is alleged to have been executed by a Mohomedan. Therefore, it is appropriate to reiterate Section 57 of the Indian Succession Act.
"57. Application of certain provisions of Part to a class of Wills made by Hindus, etc .- The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-
(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-
Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature of Madras and Bombay; and
(b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and
(c) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b) Provided that marriage shall not revoke any such Will or A.S. Nos. 584, 219 & 507/1997 33 codicil."
Section 58 reads as follows:
"58. General application of Part.- (1) The provisions of this Part shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any Will made before the first day of January, 1866.
(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of India applicable to all cases of testamentary succession."
23. Section 63 is coming under part VI and per Section 58 will of a Mahomedan is excluded. Even if the will is in writing it does not require to be signed. Even if signed it does not require attestation. As execution of the will is not disputed strict proof as mandated under 68 of the Evidence Act is also not required. In Abdulkader v Hameedamma (1988(2) KLT 643, this court held as follows:
"5. Whether the heirs consented to the bequest after the death of the testator is a question of fact in which an acid test or hard and fast guidelines cannot be provided. Each case will depend A.S. Nos. 584, 219 & 507/1997 34 upon its facts. Consent need not be express. It can be inferred from circumstances and conduct also. Even though the consent required is after the death of the testator, when alone the will takes effect, the conduct of the heirs during the life time of the testator with the knowledge of the disposition under the will could also be taken as a relevant factor in appreciating the state of affairs after his death to consider whether the bequest was consented to. Consent during the life time of the testator with knowledge of the bequest coupled with long silence after the death of the testator without claiming as heir must lead to the presumption of consent. Consent proved to have been given before death of the testator may hold good even after death if it is not revoked expressly or by necessary implication by conduct or otherwise. Passive acquiescence with knowledge of the disposition also can give rise to a presumption of consent. Such acquiescence can be inferred from long silence by heirs who could have otherwise claimed as heirs. (See Anarali Tarafdar's case-AIR (38) 1951 Calcutta 7). But Izzul Jabbar Khan Asisul Jabbar and others v. Chairman, District Council Kuchery Ward Seeni District Chhindwara and others (AIR 1957 Nagpur 84) has laid down a conservative test in this respect. That decision said that it would be impossible to imply consent of the heirs unless it is shown that they knew of the will and its contents and deliberately stood by and allowed the will to take effect. Something more than inaction, say by permission with knowledge was insisted n the said decision. In substance what is held by both decisions is the same. It is the satisfaction of the court regarding consent from the circumstances that is relevant. Judicial wisdom A.S. Nos. 584, 219 & 507/1997 35 and experience could guide the court."
24. The statutory requirements and special formalities for making a will under Section 63 of the Succession Act need not be complied with as far this will is concerned being executed by a Mohomedan, and strict proof of will is not required as mandated under Section 68 of the Evidence Act, but as there is dispute regarding the will deed, proof is required to rely on the same as in case of any other document. DW3 is the attesting witness examined to prove the execution of the document. DW3's evidence is that he has no specific interest towards any children of Kunhalikutty Haji and that his father was having close acquaintance with Kunhalikutty Haji and thus he happened to be an attestor and affixed his signature in the document. DW3 one among the attesting witnesses was examined for the purpose of proving its' execution. According to him Kunhalikutty Haji executed the will deed and affixed his signature in his presence and he too signed as an attestor in his presence. The other attesting witness to the document was not alive to be A.S. Nos. 584, 219 & 507/1997 36 examined to corroborate the evidence adduced by DW3. DW3 had also spoken about the affixture of the signature in the will deed by the testator, of sound and disposing state of mind, in his presence. There was absolutely no cross-examination or even a suggestion that Ext. B48 is a false document. No suspicious circumstance had been created so as to doubt whether the testator was in sound and disposing state of mind at the time of making of the testament. No doubt is created with regard to the condition of mind of the testator and the disposition of the property by him. In fact it appears to be quite natural. His death was after 8 months of the execution of the will. The intention of the testator to make the testament is also clear from the recitals of the deed. He wanted to make an arrangement or a settlement during his life time and it was also specifically mentioned that his daughters could come and stay in the residential house in the property. His desire to execute the will was very clear as reflected in the deed. It is also significant to A.S. Nos. 584, 219 & 507/1997 37 note that none of the parties to the suit have a case that the will deed is a fabricated one. It has been clearly proved that the testator with his free will affixed his signature in the presence of DW3 and the other attestor who is no more. Attestation though not strictly required to be proved, it would only enhance the authenticity of the deed.
25. Like that it is to be noted that the will deed is not a document which requires compulsory registration, but here the same was registered before SRO, Kozhikode. Of course, the original will deed has not been produced before the court. Ext. B48, is the certified copy of the will deed. The 5 th defendant as DW1 deposed that the original will deed was misplaced and he realized the same only during the pendency of the case. However, to prove the registration of the will deed at instance of the testator the Sub Registrar was examined as a witness (DW7) and Ext. X1 to X3 series were also summoned and proved through him. The learned trial Judge without assigning valid A.S. Nos. 584, 219 & 507/1997 38 reasons observed that the registration is perfunctory. But the evidence of DW7 would reveal that as the registering officer, he had exercised his discretion and complied with the formalities and registered the document.
26. It is also discernible from the evidence that the 5 th defendant, the younger son of Kunhalikutty Haji, was residing in the tharwad house in item No. 1 property and except the 5th defendant, all others have their own separate residence. None of the parties could establish that the testator was of unsound mind or not having the disposing state of mind or unable to understand the nature and effect of disposition. The capacity of the testator and his competence at the time when it was executed were not challenged by the disputing parties. The documents produced by the Sub Registrar as well as the oral evidence adduced by the 5th defendant would satisfactorily establish that the will was duly executed by the testator and was duly registered.
A.S. Nos. 584, 219 & 507/1997 39
27. In short, the plaintiff could not point out any suspicious circumstance surrounding the will, so as to reject the same or even to suspect its' genuineness. The minor difference regarding the name of the testator in the thumb impression register and filing sheet could not be taken as valid grounds to presume that such a document was not executed in the presence of the attesting witnesses and registered before the Sub Registrar, Kozhikode. So, the absence of the original document before court as it was misplaced and production of the certified copy, is of no consequence. Proper explanation was given for the absence of the original before the court. Existence and execution of the original was proved by the 5th defendant. Therefore, the certified copy can only be considered as the correct copy and so as per the provisions of Section 65 of the Evidence Act the certified copy of the will deed is admissible in evidence. (See J.Yashoda v K.Shobha Rani [(2007) 5 SCC 730). Therefore, absence of the original document before the court is not a A.S. Nos. 584, 219 & 507/1997 40 ground to presume that such a will deed was not executed by Kunhalikutty Haji and item No.1 property was not bequeathed to the 5th defendant as claimed by him. All the more, it will not show that it was a document created by the 5 th defendant with the intention to grab the properties excluding the other children of Kunhalikutty Haji. The evidence are sufficient to satisfy that the will was duly executed by the testator. The petitioner was a lawyer practicing at Kozhikode. Undisputedly Kunjalikutty Haji was an educated person. Neither the plaintiff nor the contesting defendants have a case that the 5 th defendant was in a position to dominate the will of his father or exert undue influence over him. The evidence on record indicate that Kunjalikutty Haji had bequeathed item No.1 property voluntarily out of his free will in favour of his youngest son. Like that the registration of the will deed before the SRO, Kozhikode does not appears to be unnatural or improbable in the light of the relevant circumstances referred above.
A.S. Nos. 584, 219 & 507/1997 41
28. The building in item No.1 property has been assessed in the name of the 5th defendant and the building tax receipts (B16 series) are in the name of the 5 th defendant. He was taking the usufructs and income from the property and no claim was raised by the other legal heirs of the father. The disposition of item No.1 was on testator's free will and mind and there exists no suspicious circumstances. So, the finding of the court below that Ext. B48 is a fabricated document is only to be rejected on the basis of the evidence adduced by the parties.
29. DW2 had also deposed that the property bequeathed was less than 1/3rd of the total extent owned by the testator. That part of his evidence also remains unchallenged. As per the Muhammedan Law a member of a Muslim community can not bequeath more than one third of his property. Kunhalikutty Haji was a person having so much land as revealed from the records. So, the contention raised by the plaintiff that more than one third of his property was bequeathed to the 5 th defendant is without A.S. Nos. 584, 219 & 507/1997 42 any basis and no evidence was adduced in that line.
30. At the fag end of the arguments, an I.A. was filed by the additional appellant in A.S. No. 219 of 1997, that is one of the legal heirs of the 1st defendant who expired during the pendency of the appeals, seeking acceptance of Annexure I, a document alleged to have been executed by Kunhalikutty Haji on 16.07.1984. In that application he contended that the plaintiff was looked after by him till his death and after his death he got certain papers kept by him under his bed and one paper thus obtained was identified as a cancellation deed executed by Kunhalikutty Haji revoking the will deed executed by him, pertaining to item No. 1 property. As the 5 th defendant contended that it is a fabricated document, additional evidence was adduced to verify whether the document could be admitted in evidence. But from the evidence recorded before the court below, it is revealed that the said document is not a genuine document so as to conclude that the will deed was A.S. Nos. 584, 219 & 507/1997 43 cancelled/revoked by Kunhalikutty Haji. But, on the other hand, it only bolster up the case of the 5th defendant that such a will was executed by Kunhalikutty Haji bequeathing item No. 1 property in his favour. Therefore,it could correctly be concluded that item No.1 was bequeathed to the 5 th defendant by his father and bequest is valid as consent could also be inferred from the conduct of the parties.
31. Ext. B1 is a gift deed executed by Kunhalikutty Haji. As per Ext.B1, 1 acre 10 cents of land was gifted to the plaintiff as A schedule. Muhammed Ali (deceased son) was given 93 cents of land as B schedule by Ext. B1 gift deed. So also, the 2 nd defendant, the 3rd defendant as well as the 4th defendant were given C schedule, D schedule and F schedule of properties respectively. Item No.3 in the suit is the E schedule property gifted to the 5th defendant. It is significant to note that no property was allotted to the 1st defendant as per Ext. B1 gift deed. It is also to be noted that the plaintiff had admitted the A.S. Nos. 584, 219 & 507/1997 44 execution of Ext. B1 gift deed and claimed right over property as far as his share is concerned. However, he contended that item No.3 allotted to the 5th defendant is liable to be partitioned. Since he is admitting the transfer of property by Ext. B1 gift deed and acceptance of the same by mother on behalf of the minor children, he could not now turn round and contend that the plaint item No. 3 property which was gifted to the 5 th defendant by his father as E schedule is liable to be partitioned.
32. Moreover, Ext. B2 deed was executed by the father on 08.06.1959 in favour of the 1 st defendant . Ext.B1 was executed immediately thereafter, i.e., on 11.06.1985 and no share was allotted to the 1st defendant as he was given separate property as per Ext.B2 gift deed. So the evidence would reveal that Kunhalikutty Haji, who expired on 25.01.1985 had given shares to all his children and his 3 rd wife, the mother of his children, had accepted the gift on behalf of all the minor children, and it indicates that delivery had also been effected. A.S. Nos. 584, 219 & 507/1997 45
33. Paragraph 138 of Mahomedan Law by Mulla reads as :-
"138. Hiba or gift A hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter."
Every Mahomedan of sound mind not a minor can transfer a property to another and if it is accepted by or on behalf of the latter it is a valid gift. Here, the transfer of the property was by the father and acceptance was by the mother on half of the minor children and so it amounts to a valid gift and therefore, Ext. B1 by which item No. 3 was allotted to the 5 th defendant, is a valid document. Moreover,the plaintiff alienated the share gifted to him before the death of Kunhalikutty Haji and admittedly the properties allotted to all the other parties to the gift deed, were also alienated by the respective sharers on attaining majority and what is left back is only item No.3 which was allotted to the 5th defendant. PW1 had also admitted that their father had no right over the properties scheduled after A.S. Nos. 584, 219 & 507/1997 46 execution of Ext.B1.
34. Ext. B14 is a mortgage deed executed by the 5 th defendant in favour of State Bank of India, Parappanangadi Branch on 24.11.1986. By this document, the 5 th defendant had mortgaged the property obtained by him as per Ext. B1 gift deed and availed loan from the bank. Ext .B21 is the loan repayment receipt issued to him. For construction of the building consent was given by the 5th defendant that would also indicate that the gift deed was acted upon. Therefore, execution of Ext A 4 lease deed by Kunhalikutty Haji pertaining to the building occupied by SBI will not confer any right on him. So, item No. 3 is not at all a partible property as claimed by the plaintiff.
35. Item No.2 was claimed by the 1st defendant on the basis of Ext.B2 gift deed executed by his father on 08.06.1959. The 1st defendant, was a major at that time itself and he accepted the gift. The assessment of the buildings in the name of his father was changed to his name after the death of his A.S. Nos. 584, 219 & 507/1997 47 father. There is no serious dispute or challenge with respect to this gift deed. By Ext. B2 gift deed, the father had gifted the property which was accepted by DW1 who was major at the time of the gift, is an admitted fact . So item No. 2 is also not liable to be partitioned among the children of Kunhalikutty Haji.
36. In Katheesa Umma and Others v. Kunhamu and Others (1964 KHC 309) the Apex Court had observed as follows:
"6. A gift (Hiba) is the conferring of a right of property in something specific without an exchange (ewaz). The word (Hiba) literally means the donation of a thing from which the donee may derive a benefit. The transfer must be immediate and complete (tamlik-ul-'ain) for the most essential ingredient of Hiba is the declaration I "have given". Since Muhammadan Law views the law of gifts as a part of the law of contract there must be a tender (ijab) and an acceptance (qabul) and delivery of possession (qabza). There is, however, no consideration and this fact coupled with the necessity to transfer possession immediately distinguishes gifts from sales."
37. It is also relevant to note that Ext. B1 which was executed by the father on 11.06.1959 would reveal that no share A.S. Nos. 584, 219 & 507/1997 48 was allotted to the 1st defendant as he had already gifted item No. 2 property to him. Though item No.3 is 1 acre 10 cents of land, only 8 cents and the building was scheduled in the plaint. Later, it was amended still the entire extent as scheduled in the gift deed was not included.
38. The bona fide intention of the donor to give the properties to his then minor children is explicitly clear from the recitals in Ext.B1 deed. Like that possession of the gifted properties were also handed over as revealed from document. Exts. B1 gift by the father was accepted by the mother on behalf of the minors and after acceptance on behalf of the donees, their father/the donor had no right over the property and hence the claim raised by the plaintiff over item No. 3 property is not acceptable. It is also pertinent to note that the plaintiff himself had aliened his property by Ext. B13 document dated 10.12.1994. So that is also a ground to conclude that the gift was acted upon by the parties to the document and there is A.S. Nos. 584, 219 & 507/1997 49 nothing to doubt regarding the validity of the gift deeds.
39. So in short, item Nos. 1, 2 and 3 properties are not liable to be partitioned among the share holders. The fact that Kunhalikutty Haj had executed rent deed or collected rent or paid tax for the property are not relevant matters to conclude that the will is not a genuine document and the gift deeds had not taken effect as contended by the plaintiff.
40. Succinctly, the finding of the court below that all the properties are liable to be partitioned among the parties is liable to be set aside. Item Nos. 1 to 3 are found as not partiable among the share holders along with item Nos. 4 to 7. So the judgment under challenge is modified to that extent. Properties excluding item Nos. 1 to 3 alone are available for partition. On appraisal of evidence, it is found that the judgment of the trial court suffers the above referred material irregularities and so it is liable to be interfered. Therefore, the preliminary decree is modified to that extent and partition of item Nos. 4 to 7, among A.S. Nos. 584, 219 & 507/1997 50 the share holders alone could be granted. Plaint schedule item Nos. 4 to 7 will have to be divided among the plaintiff and the defendants 1 to 5 and 6 to 8 and shares have to be allotted (excluding item Nos. 1 to 3) as ordered in the preliminary decree by the court below.
In result, A.S . No.507 of 1997 stands dismissed. A.S. No. 219 of 1997 is allowed. A.S. No. 584 of 1997 also stands allowed. Having regard to the relationship between the parties, they shall bear their respective costs.
Interlocutory application(s), if any, stand disposed of.
Sd/-
SHIRCY V. JUDGE sb