Madras High Court
Valarmathi Mariyan vs Palkees Ummal
Author: N.Sathish Kumar
Bench: N. Sathish Kumar
RESERVED ON : 10..03..2017
DELIVERED ON : 03..4..2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
A.S.No.960 of 2010
and MP.No.1 of 2010
Valarmathi Mariyan ... Appellant
Vs.
1.Palkees Ummal
2.Janabh Anvardhim@ Thamma
3.Janabh Mohamed Ali @ Sheik
4.Janabh Mohamed Rafeek
5.Janabh Mohamed Thameemul Ansari
6.Janabh Mohamed Saleem
7.Janabh Mohamed Adamalik
8.Janabh Mohamed Ashraf ... Respondents
Prayer:- This Appeal suit has been filed under Section 41 Rule 1 of C.P.C. Read with Section 96 of CPC, against the judgment and decree of the Additional District Judge, Puducherry dated 22.09.2010 and made in O.S.No.12 of 2009.
For Appellant : Mr.A.Tamilvanan
For R1 to R7 : Mr.D.Bharatha Chakravarthy
for M/s. Sai, Bharath & Ilan
For R8 : No Appearance
J U D G M E N T
The unsuccessful plaintiff, in O.S.No.12 of 2009, on the file of the Additional District Judge, Puducherry, is the appellant herein.
2. For the sake of convenience, the parties are referred to, as per their ranking before the trial Court.
3. The plaintiff filed a suit in O.S.No.12 of 2009, before the learned Additional District Judge, Puducherry, for partition of 1/8th share in the suit properties and for mesne profits with cots.
4. After contest, the suit was dismissed.
5. The brief facts of the case of the plaintiff are as follows:
The plaintiff is the second wife of the deceased Hameed Sulthan. She married the said Hameed Sulthan on 01.01.1981 at Nagore as per the Muslim law. After marriage, the plaintiff was living with the said Hameed Sulthan till 1997. Thereafter, she was deserted and as a result, she filed maintenance case in M.C.No.34 of 1997. In the said maintenance case, compromise was reached between the plaintiff and the said Hameed Sulthan and the plaintiff received Rs.20,000/- as maintenance. The said Hameed Sulthan, the husband of the plaintiff died on 20.3.2008 leaving behind the plaintiff and the defendants as his legal heirs. Since the suit property was purchased by the husband of the plaintiff, according to her, she is entitled for 1/8 share. Therefore, the plaintiff issued a legal notice 29.09.2008 for which defendants sent a reply making false allegations and also prepared false documents in order to defeat the right of the plaintiff. Hence, the suit for partition.
6. The brief averments of the written statement filed by the defendants are as follows:
The defendants disputed the relationship of the plaintiff with the said Hameed Sulthan. It is the case of the defendants that there was no marriage between the plaintiff and the said Hameed Sulthan. The plaintiff was living as a concubine with the said Hameed Sulthan. It is the further case of the defendants that they are not aware of the maintenance proceedings. It is stated by the defendants that the said Hameed Sulthan never left movable or immovable properties to be inherited by the defendants, as per mohammedan law. It is also stated that said Hameed Sulthan registered settlement deed in favour of Minor Nilobar Nisha in respect of schedule "A" "B" and "C" schedule properties. "D" schedule property did not belong to the said Hameed Sulthan on the date of his death and the same belongs to Hameed Sulthan Rafeek, the 4th defendant herein. The above property was settled in favour of 4th defendant by the said Hameed Sulthan on 19.01.2004. Hence, the defendants prayed for dismissal of the suit.
7. Based on the above pleadings, the trial Court formulated as many as four issues for consideration. They are:
1.Whether the plaintiff is entitled for the relief of partition as prayed for?
2.Whether the plaintiff is not the legally wedded wife of Hameed Sulthan?
3.Whether the fourth defendant is the absolute owner of the B schedule property?
4.To what relief the plaintiff is entitled?
8. On the side of the plaintiff, the plaintiff herself was examined as PW1 and one another witness as P.W.2 and Exs. A1 to A22 were marked. On the side of the defendants, the second defendant himself was examined as DW1 and Exs. B1 to B6 were marked.
9. The learned trial Judge, after analysing the entire evidence and documents, though found that the plaintiff is the legally wedded wife, dismissed the suit for partition on the ground that the said Hameed Sulthan had executed settlement deed during his life time and that, there was no property left for partition. Aggrieved over the same, the present appeal came to be filed by the plaintiff. However, the defendants have not chosen to challenge the finding of the trial Court that the plaintiff is the legally wedded wife of the said Hameed Sulthan. No cross Appeal whatsoever filed by the defendants.
10. It is the contention of the learned counsel for the appellant/ plaintiff that since the finding of the trial Court with regard to relationship of the plaintiff with the said Hameed Sulthan is not challenged by way of cross appeal, the said finding reached finality. It is submitted by the learned counsel for the appellant/plaintiff that the contention of the defendants that no property was available for partition, as Hameed Sulthan had already executed settlement during his life time in favour of 4th defendant and one minor daughter of the 2nd defendant, by name, Nelobar Nisha, cannot be sustained, as the alleged settlement Deeds have not been proved in the manner known to law. It is submitted by the learned counsel that no attesting witnesses were examined. It is also the contention of the learned counsel for the appellant/plaintiff that once the settlement has not been proved in the manner known to law, the plaintiff, being the legal heirs of the said Hameed Sulthan, is entitled for 1/8th share in the suit property. Thus, the learned counsel for the appellant/plaintiff prayed for allowing the appeal. The learned counsel for the appellant/plaintiff has placed reliance on the unreported judgment of this Court in M.E.Mohamed Haneefa v. Sheik Adul Khader (SA.No.1749 of 1997 dated 29.10.2011) to substantiate his contention.
11. Whereas it is the contention of the learned counsel for the respondents/defendants that item Nos.2 and 3 of the suit properties were not available for partition and that the above property was given in exchange for the 1st item of the property. Only item No.1 and 4 alone available. Similarly, under Exs.B1 and B3, Settlement Deeds, the properties were allotted and settled in favour of grand daughter of the said Hameed Sulthan, by name, Nelobar Nisha, the minor daughter of the 2nd defendant and also the 4th defendant herein. As there was no properties available for partition, the suit filed by the appellant/plaintiff is not maintainable. It is further contention of learned counsel for the respondents/defendants that late Hameed Sulthan had executed Settlement Deed during his life time and the same has not even been denied by the plaintiff in her pleadings and also in the evidence. Once the execution of the settlement deed is not even denied, there is no necessity for examining the attesting witness. Hence, the learned counsel for the respondents/defendants submitted that the judgment cited by the learned counsel for the appellant/plaintiff on the above aspect is not applicable to the facts of the case. Thus, the learned counsel for the respondents/defendants prayed for dismissal of the suit.
12. In the light of the above submission, the following points arise for consideration in this appeal.
(1) Whether the suit property is available for partition?
(2) Whether the Settlement Deeds Ex.B1 and B3 were executed by late Hameed Sulthan and the same have been proved in the manner known to law?
Point Nos.1 and 2:
13. It is the case of the plaintiff that she is the legally wedded wife of late Hameed Sulthan and she was living with him from 1981 to 1997 and that, she has filed maintenance case and the same was ended in compromise and she has also received maintenance. The above aspect has been proved by documents filed by the plaintiff. That apart, in issue No.2, the trial Court has clearly held about the relationship between the plaintiff and the said Hameed Sulthan. Similarly, the defendants have not filed any Cross Appeal and hence, now they cannot attack the specific finding given by the trial Court with regard to the marital status of the plaintiff.
14. The crux of the issue involved is as to whether the plaintiff is entitled to any share in the suit property. When the entire plaint pleading is perused, it is seen that the plaintiff is well aware of the Settlement Deeds executed by her late husband Hameed Sulthan. In fact, she was made to know the settlement by the defendants by sending reply. In paragraph 5 of the plaint, it is stated by the plaintiff that she has sent a legal notice dated 25.09.2008 which was replied to by the defendants under Ex.A21 dated 06.10.2008.
15. It is worthy to point out that in Ex.A12, the plaintiff has claimed 1/8th share in the suit properties, which has been replied to by the defendants in Ex.A21 stating that their father had executed Gift Settlement Deed in respect of item Nos. 1 to 3 in favour of minor Nelobar Nisha, which was registered on 24.10.2002 under Document No.1989 of 2004. Similarly, fourth item of suit property was also settled in favour of 4th defendant on 19.01.2004 under document No.102 of 2004. Inspite of knowing the above fact that the said Hameed Sulthan had executed Settlement Deeds in respect of the suit properties, the plaintiff, in the entire plaint pleadings, has not even denied the same. In paragraph 5, the allegation contained in reply notice alone is denied by the plaintiff. The only allegation made by the plaintiff in the plaint is that the defendants 1 to 8 were colluded together and created false documents. Except the above allegation, there is no whisper whatsoever, made with regard to the denial of execution of settlement deeds said to have been executed by late Hameed Sultan.
16. It is to be noted that the person, seeking to assail the document on the ground of fraud undue influence, coercion etc., has to state the material particulars in the plaint, as per Order 6 Rule 4 of CPC. In the entire plaint, there are no particulars with regard to the nature of fraudulent act connected with the execution of the settlement deed by her husband Hameed Sulthan. It is further to be noted that the defendants also filed written statement wherein they made specific plea about the execution of the settlement deeds by late Hameed Sulthan on 2002 in document No.1989 of 2002. Similarly, under document No.102 of 2004 dated 19.01.2004, settlement was executed in favour of 4th defendant in respect of the suit properties. Inspite of the specific plea about the execution of the document by late Hameed Sulthan, the execution of the said documents is not even denied by the plaintiff by filing any reply statement.
17. It is further to be noted that P.W.1 in the chief examination also has denied only the reply notice. She has not even denied the execution of the settlement deed by her husband during his life time. D.W.1, 2nd defendant, in his evidence has stated about the two Settlement Deeds executed by late father in favour of his daughter minor Nilobar Nisha and the 4th defendant. The entire evidence with regard to the execution of the Settlement Deed is not even denied by the defendants in their cross examination by the plaintiff. Except putting suggestion that Exs. P1 to P6 were created one, there is no denial of the execution of documents by husband of the plaintiff, i.e. late Hameed Sultan. Exs.B1 and B2 would clearly indicate that items 2 and 3 were already exchanged between Hameed Sultan and one Anverdeen and only 964 sq.ft was settled in favour of Nilobar Nisha minor daughter of the 2nd defendant. Ex.B3 Settlement was also executed in favour of 7th defendant. When the execution of aforesaid settlement has not been denied and the subsequent settlee is also not made as a party to the suit, the plaintiff cannot assail those documents without impleading the beneficiary Nilobar Nisha, in respect of item 1 of the suit property.
18. More so, the entire evidence of D.W.1 with regard to the execution of the settlement by Hameed Sulthan is not denied by the plaintiff. When the execution of the document is not specifically denied, there is no need for examining the attesting witnesses, particularly, with regard to registered settlement, as per proviso to Section 68 of the Indian Evidence Act. The plaintiff, in this case, neither in the plaint nor in his evidence has denied execution of the document by late Hameed Sulthan. Therefore, judgment relied on by the learned counsel for the appellant/ plaintiff is not applicable. In the said judgment, execution and validity of the settlement deeds are denied by the defendants and in such circumstances, this Court has rightly held that proving the documents by examining one of the attesting witnesses is necessary. In this case, as discussed above, the execution of Settlement Deeds has not been denied by the plaintiff/appellant at any point of time. When the execution of the document by the executor is not specifically denied, the person relying upon the document need not resort to the provision of Section 68 of the Indian Evidence Act for proving the documents which have been registered in accordance with the provisions of Indian Registration Act.
19. That apart, the beneficiary under the settlement is not made as a party. Further the description of the properties has also not been properly identified and stated in the plaint. There has been no plea with regard to the undue influence and coercion or fraud etc., in the entire plaint. In the absence of material towards the above act, the documents which were duly registered, but were not denied specifically, cannot be assailed in the mere partition suit. The plaintiff has also not sought for any declaration to declare that these documents are null and void. Therefore, in the absence of any pleadings as to the denial of the document executed by the late Hameed Sulthan, the plaintiff cannot succeed in claiming partition. Accordingly, these points are answered.
20. In the result, the finding of the learned trial Judge, does not require any interference. Accordingly, the appeal is dismissed. However, there shall be no order as to costs. Consequently, connected Miscellaneous petition is closed.
Ga 03..04..2017
Index: Yes
To
The Additional District Judge,
Puducherry
N.SATHISH KUMAR, J.
ga
Pre-delivery judgment in
A.S.No.960 of 2010
03..04.2017
http://www.judis.nic.in