Madras High Court
Aysammal vs S.K.Amirunisha (Died) on 21 September, 2022
A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 12.06.2023
Judgement Delivered on: 17.08.2023
CORAM
THE HONOURABLE MRS.JUSTICE N.MALA
A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
and CMP.No.10130 of 2017 and
C.R.P.(MD).No.2022 of 2017
A.S.(MD)No.262 of 2009
S.K.Mohammed Kasim
S/o Late S.Khader Ibrahim Rowther
1. Aysammal
2. S.K.M.Zakir Hussain
3. S.K.M.Syed Kader Saleem
4. S.K.M.Sabeer Salik
(Appellants 1 to 4 are the Legal Representatives
of the deceased 1st defendant/appellant) … Appellants
Vs.
1. S.K.Amirunisha (died)
W/o M.M.Jalaludeen
2. S.K.Sherfudin
S/o Late S.Kadher Ibrahim Rowther
3. S.K.Shabharoon,
W/o Jabbarullah
4. Zahira Syed
W/o Syed Mohammed
5. J.M.Akbar Kalifullah
https://www.mhc.tn.gov.in/judis
1/32
A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
S/o Late Haji Jamal Mohammed
6. J.M.Jawahar Kalifullah
S/o Late Haji Jamal Mohammed
7. J.M.Raja Kalifullah
S/o Late Haji Jamal Mohammed
8. Jalaludeen,
S/o Dawood Batcha
9. Shathaj,
W/o Sulthan Ibrahim
10. Dilshad Begum
W/o Raj Mohammed
11.Kaleel Rahman,
S/o Jalaludeen
12. Bahar Jan,
W/o Mohammed Mukthar
13. Shameem,
W/o Shaukath Ali
Respondents 8 to 13 are brought on record
as LRs of the deceased 1st respondent vide
court order dated 21.09.2022 made in
CMP(MD)No.8507 of 2022 in
A.S.(MD)No.262 of 2009 … Respondents
First Appeal filed under Section 96 read with Order XLI Rule I of CPC
against the judgement and decree dated 10.09.2008 in O.S.No.4 of 2004 on the file
of Additional District Court (Fast Track Court-II) Tiruchirapalli.
For Appellants : Mr.K.Prabhakar
For Respondents : R-1 Died
https://www.mhc.tn.gov.in/judis
Mr.M.Palani for R-2
2/32
A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
RR 3 to 7 No appearance
Mr.J.Anand Kumar for RR 8 to 13
A.S.(MD)No.142 of 2009
1. S.K.Ameerunnissa (died)
W/o S.M.M.D.Jalaludeen
2. Jalaludeen
S/o Dawood Batcha
3. Shathaj,
W/o Sulthan Ibrahim
4. H.Dilshad Begum,
W/o Raj Mohammed
5. Kaleel Rahman,
S/o Jalaludeen
6. Bahar Jan,
W/o Mohammed Mukthar
7. Shameem
W/o Shaukath Ali
Appellants 2 to 7 are brought on record as
LRs of the deceased sole appellant vide Court
Order dated 21.09.2002 made in
CMP.(MD).No.8503 of 2022 in
A.S.(MD).No.142 of 2014 … Appellants
Vs.
S.K.Mohammed Kasim (died)
1. S.K.Sherfudin
S/o Late S.Kadher Irahim Rowther
S.K.Noorjahan @ Kannammal (died)
2. S.K.Shabiroon
https://www.mhc.tn.gov.in/judis
3/32
A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
S/o Jabbarullah
Haji P.K.Jamal Mohammed (died)
3. Zhira Syed
W/o Syed Mohammed
4. J.M.Akbar Kalifullah
S/o Late Haji Jamal Mohammed
5. M.J.Jawahar Kalifullah,
S/o Late Haji Jamal Mohammed
6. J.M.Raja Kalifullah,
S/o Late Haji Jamal Mohammed ...Respondents 1 to 6/
Defendants 2,4,
6 to 9
7. Aysammal,
W/o S.K.Mohammed Kasim
8. S.K.M.Zahir Hussain,
S/o S.K.Mohammed Kasim
9. S.K.M.Syed Kader Saleem,
S/o S.K.Mohammed Kasim
10. S.K.M.Sabeer Salia,
S/o S.K.Mohammed Kasim … Respondents/LRs of
1st defendant
First Appeal filed under Section 96 of C.P.C. to modify the judgment and
decree passed in O.S.No.4 of 2004 dated 10.09.2008 on the file of the Additional
District Court/ Fast Track court No.II, Tiruchirappalli.
For Appellants : Mr.J.S.Anand Kumar
For Respondents : Mr.M.Palani for R-1
RR 2 to 6 - No appearance
https://www.mhc.tn.gov.in/judis
R-7 died
4/32
A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
Mr.K.Prabhakar for RR 8 to 10
A.S.(MD)No.5 of 2011
S.K.Sharfudin … Appellant/2nd
Defendant
Vs.
1. S.K.Ameerunnisa (died)
W/o S.M.M.Jalaludeen
2. S.K.Sabiroon
Wo Jafarulla
3. Shahira Syed
W/o Syed Mohammed
4. J.M.Akbar Kalifullah
S/o Late Hajee P.K.Jamal Mohamed
5. J.Jawahar Kalifullah
S/o Late Hajee P.K.Jamal Mohamed
6. J.Raja Kalifulla,
S/o Late Hajee P.K.Jamal Mohamed … Respondents/
Defendants 4 & 6 to 9
7. Aisma ammal
W/o Late Mohamed Kasim
8. Zakir Hussain
S/o Late Mohamed Kasim
9. Syed Kadar Saleem
S/o Late Mohamed Kasim
10. Sabir Salik,
S/o Late Mohamed Kasim … Respondents/ LRs of
https://www.mhc.tn.gov.in/judis
1st defendant
5/32
A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
11. Jalaludeen,
S/o Dawood Batcha
12. Shathaj,
W/o Sulthan Ibrahim
13. Dhilshad Begum
W/o Raj Mohammed
14. Kaleel Rahman
S/o Jalaludeen
15. Bahar Jan
W/o Mohammed Mukthar
16. Shameem,
W/o Shaukath Ali
Respondents 11 to 16 are brought on record
as LRs of the deceased 1st respondent vide
Court Order dated 10.10.2022 made in
CMP(MD).No.9388/2022 in
A.S.(MD)No.5 of 2011 … Respondents
First Appeal filed under Section 96 of C.P.C. against the Judgment and
decree passed in O.S.No.4 of 2004 dated 10.09.2008 on the file of the Additional
District Court/ Fast Track Court No.II, Tiruchirappalli.
For Appellants : Mr.M.Palani
For Respondents : Mr.K.Prabhakar for R8 to R10
Mr.J.Anandkumar for R11 to R16
R2 to R6 - No appearance
R1 Died
C.R.P.(MD)No.2022 of 2017
https://www.mhc.tn.gov.in/judis
6/32
A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
1. S.K.Sherfuddin
S/o Kadar Ibrahim Rawther
2. M.A.M. Service,
represented by its Partner,
S.K.Sherfuddin
S/o Kadar Ibrahim Rawther,
No.39, Sathyamurthy Road,
Trichirapalli.
3. S.K.Roadways,
represented by its Partner,
S.K.Sherfuddin,
S/o Kadar Ibrahim Rawther,
No.91, Heber Road,
Tiruchirappalli. … Petitioners
Vs.
1. Ayesha Amma,
W/o Late S.K.Mohamed Kasim
2. Zakir Hussain,
S/o Late S.K.Mohamed Kasim
3. Syed Kadar Saleem,
S/o Late.S.K.Mohamed Kasim
4. Sabir Salik,
S/o Late S.K.Mohamed Kasim
5. Hafiz motor Transports
No.39, Sathyamurthy road,
Tiruchirappalli.
6. Al Hafiz Motor Transports,
No.39, Sathyamurthy road,
Tiruchirappalli.
7. S.K.Ameerunisha(died),
W/o S.M.M.Jaladdin
https://www.mhc.tn.gov.in/judis
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A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
8. Jalaludeen,
S/o Dawood Batcha
9. Shathaj,
W/o Sulthan Ibrahim
10. Dhilshad Begum,
W/o Raj Mohammed
11. Kaleel Rahman
S/o Jalaludeen
12. Bahar Jan,
W/o Mohammed Mukthar
13. Shameem,
W/o Shaukath Ali
Respondents 8 to 13 are brought on record
as LRs of the deceased 7th respondent
vide court Order dated 10.10.2022
made in C.M.P(MD)No.9401 of 2022
in CRP(MD)No.2022 of 2017 … Respondents
Civil Revision Petition filed under Article 227 of the Constitution of India to set
aside the fair and decreetal order dated 13.07.2017 made in I.A.No.11 of 2017 in
O.S.No.116 of 2012 on the file of the Sessions Judge, Mahila Court, Tiruchirappali.
For Petitioners : Mr.A.Arumugam
for Ajmal Associates
For Respondents : Mr.K.Prabhakar for RR 1 to 4
RR 5 and 6 – No appearance R7- Died
Mr.J.AnandKumar for RR 8 to 13
****
COMMON JUDGMENT
https://www.mhc.tn.gov.in/judis 8/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 The plaintiff has filed the appeal in A.S.MD.No.142 of 2014, challenging the Judgment and Decree of the Trial Court declining the relief of partition, as regards some of the suit schedule properties.
2.The first defendant in the suit has filed the above A.S.M.D.No.262 of 2009 against the Judgment and decree of the trial Court decreeing the suit in favour of the plaintiff in respect of some of the suit schedule properties and accounting by the first defendant for the properties in his possession. The second defendant has filed the appeal in A.S.M.D.No.5 of 2011 challenging the Judgment and Decree as regards some items of suit schedule properties standing in the name of the first defendant which were held to be his self acquisitions.
3.All the three appeals arise out of one and the same Judgment in O.S.No.4 of 2004 dated 10.09.2008, hence the same are disposed of by this common Judgment.
4.This Court vide order dated 30.07.2022 tagged the CRP along with the above appeals, hence the CRP is taken up along with the appeals.
5.The facts in brief giving rise to the above appeals are as follows:
The plaintiff in the suit and the defendants 1 to 4 and one Avabi are the children of one Kadher Ibrahim Rowther and Salia Bibi. https://www.mhc.tn.gov.in/judis The said Kadher 9/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 Ibrahim Rowther was a renowned business man in Trichy, who earned immense wealth and acquired various properties scheduled to the plaint. The said Kadher Ibrahim Rowther died intestate on 10.03.1967 and his wife Saliba Bibi also died intestate on 06.05.1968. One of the sisters of the plaintiff by name Avabi filed a suit in O.S.No.777 of 1971 on the file of the Sub Court, Tiruchirappalli for partition of her 1/8th share in the suit properties against the plaintiff and the defendants 1 to 4.
6.It is stated by the plaintiff that on the intervention of the mediators and the well-wishers of the family a compromise was arrived at and the properties described in Schedule L to this plaint were allotted to Avabi. The said Avabi executed a release deed dated 10.12.1974 in favour of the plaintiff and the defendants 1 to 4 in respect of the remaining properties. It is further stated that the Schedule L properties were allotted to Avabi only in recognition of her distinct right in the properties of their father Kadher Ibrahim Rowther.
7.The plaintiff in view of the release executed by Avabi filed the suit for partition of her 1/7th share in the suit schedule properties as her requests to the first defendant to divide the suit properties did not bear fruit. Though initially the suit was filed containing Schedules A to L, after the written statement was filed by the third and fourth defendants, the other properties (i.e.) Schedules M to https://www.mhc.tn.gov.in/judis 10/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 X were added vide IA.No.511 of 1991 dated 13.08.2002. The third defendant died on 17.07.1999 and the defendants 5 to 9 were impleaded as her legal heirs vide order in I.A.No.799 of 1999 dated 11.07.2003.
8.The gist of the first defendant and the second defendant's case on the other hand was that the property in Item 1 of A schedule consisting of 44 shops were the absolute properties of their mother Salia Bibi, she having received the same under a settlement from her husband Khader Ibrahim Rowther in 1958. It was stated that Salia Bibi in turn orally gifted the properties to the defendants 1 and 2 as early in 1965. The properties were delivered to the defendants and they were in possession and enjoyment of the same ever since the oral gift in their favour. It was further stated that the item No.3 of A schedule was also gifted by their father to their mother who in turn orally gifted the same to the defendants 1 and 2. As regards the other properties, the first defendant claimed exclusive right on a plea of ouster and self acquisition. The second defendant claimed exclusive right to certain items of properties (i.e.) schedules M to Q. M schedule was claimed to be exclusive property of the second defendant with third parties as partners. N schedule was claimed to be the property of the partnership firm of his wife with third parties. O schedule property was stated to be the separate property of his wife, P schedule was claimed to belong equally to himself and his wife and Q schedule property was stated to belong exclusively to his wife. https://www.mhc.tn.gov.in/judis 11/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
9.The defendants 3 to 4 sailed with the plaintiff and stated that they were entitled to 1/7th share in the entire suit schedule properties.
10.Before the Trial Court, the plaintiff examined herself as PW1, defendants 1 and 2 examined themselves as DW1 and DW2. The plaintiff marked Ex.A1 to Ex.A16 and the defendants marked Ex.B1 to Ex.B76.
11.The Trial Court on the basis of the pleadings and on the evidence placed on record framed the following issues:
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rhfpg;g[f;F ghj;jpag;gl;ljh> 2/1.2 gpujpthjpfs; vjphpil mDgtj;jpdhy;
tiuaWf;fg;gl;l chpik bgw;Ws;shh;fsh> 3/thjpf;F U:/40.000-mtuJ nfhhpf;ifiag; bghWj;J brl;oy;bkd;l; go brYj;j ntz;Lkh> 4/1Mk; gpujpthjp fzf;F fhl;l flikg;gl;ltuh> 5/thjp bgwf; Toa ghfk; VnjDk; cz;lh> 6/ntW vd;d ghpfhuk;>
12.The trial Court on an assessment of the oral and documentary evidence on record and on the basis of Ex.A6 and the confirmation deed, decreed the plaintiff's 1/7th share in respect of 1st and 3rd items in A Schedule, 1st and 3rd items https://www.mhc.tn.gov.in/judis in B schedule, 2nd and 3rd items in C schedule, G schedule, 2nd item in J schedule, 12/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 1st to 6th items in R schedule and 4th Item in V Schedule. The Trial Court further directed the second defendant to render accounts from 10.03.1967 with respect to 2nd and 3rd items of B schedule properties and 6th item of R schedule properties and also directed the first defendant to render accounts for the remaining properties from 10.03.1967. The mesne profits were left to be determined as per Order 20 Rule 12 of C.P.C. Aggrieved by the judgment and decree of the trial Court, the plaintiff and the defendants 1 and 2 have preferred the above appeals.
13.At the time of arguments it was conceded by all the learned counsels appearing for the parties in the appeals that the main challenge in the appeals was to the interpretation of Ex.A6, a registered release deed executed by Avabi in favour of the plaintiff and the defendants 1 to 4 and the unregistered confirmation deed. All the appellants have questioned Ex.A6 in one manner or the other and therefore the consensus is that the interpretation of Ex.A6 will settle the rights of the parties in the appeal. But as the appellant's referred to certain other matters also in the written arguments they are also considered.
14.I have heard the learned counsels and I have perused the records. The point for determination in the appeal is as follows:
1.Whether the trial Court was right in relying solely on Ex.A6 for partially decreeing the suit in favour of the plaintiff.
https://www.mhc.tn.gov.in/judis 13/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
2.Whether the HIBA set up by the defendants 1 and 2 is proved or not?
3.Whether the exclusive title to the suit properties claimed by the first defendant on the plea of ouster is sustainable?
4.Whether oral partition set up by the second defendant is proved or not?
15.The plaintiff and the defendants 1 to 4 and one Avabi are the children of S.Khader Ibrahim Rowther and Salia Bibi. Khader Ibrahim Rowther was a reknowned business man at Tiruchirappalli. He was doing several businesses and earned a lot of wealth. According to the plaintiff the suit schedule properties were acquired by Khader Ibrahim Rowther from his own earnings. Khader Ibrahim Rowther died intestate on 10.03.1967 and his wife Salia Bibi died intestate on 06.05.1968. The first defendant as the eldest male member of the family was in management of all the properties of Khader Ibrahim Rowther. While so one of the sisters of the plaintiff viz., Avabi filed a suit in O.S.No.777 of 1971 for partition of her 1/8th share in the properties of her parents viz., Khader Ibrahim Rowther and Salia Bibi against the plaintiff and the defendants in this suit.
16.According to the plaintiff, a compromise was arrived at on the intervention of mediators and well-wishers of the family and the suit L Schedule https://www.mhc.tn.gov.in/judis 14/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 property was allotted to Avabi, who in turn executed the release deed dated 10.12.1974, releasing her rights in respect of the other items of properties in favour of the other co-sharers viz., the plaintiff and the defendants 1 to 4. It is the plaintiff's case that the L Schedule properties were allotted to Avabi only in recognition of her distinct right in the properties of Khader Ibrahim Rowther.
17.It is the case of the defendants 1 and 2 that the 1 st item of A schedule properties consisting of 44 shops were the absolute properties of their mother Salia Bibi under the settlement deed of Khader Ibrahim Rowther. According to the defendants 1 and 2 their mother Salia Bibi orally gifted item No.1 of A schedule to them and ever since the gift they were in absolute possession and enjoyment of the same in exclusion of the other co-sharers. The defendants 1 and 2 further stated that item No.2 of the A schedule was gifted by their father to their mother Salia Bibi and she in turn orally gifted the same to the defendants and ever since the said oral gift they had been in absolute possession and enjoyment of the same. As regards the other items of the properties, the first defendant pleaded that he had purchased some of the suit properties out of his own earning and for the remaining properties he claimed exclusive title by ouster.
18.The second defendant claimed that suit schedules M, N, O to Q were the exclusive properties of himself and his wife. As regards properties standing in https://www.mhc.tn.gov.in/judis 15/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 the name of the first defendant the second defendant claimed a share stating that they belonged to the family as they were purchased in the name of the first defendant who was managing the family properties. The defendants 3 & 4 sailed with the plaintiff and they also claimed their 1/7th share in the entire suit properties.
POINT NO.1:
19.The Trial Court solely relied on Ex.A6 to decree the plaintiff's suit for partition with respect to some of the suit scheduled properties. The appellants therefore now question Ex.A6 in their own way. In the suit the plaintiff relied on Ex.A6 to support her case that Ex.A6 was executed recognising the distinct rights of one of the daughters to the suit properties and therefore the defendants 1 and 2 could not deny the plaintiff her 1/7th share in the suit properties. In other words the plaintiff relied on Ex.A6 to establish that the plaintiff as well as the defendants 3 and 4 were entitled to a share in the suit properties.
20.In the appeal the plaintiff assails Ex.A6. According to the plaintiff the recitals in Ex.A6 do not bind the other co-sharers as they were not signatories to Ex.A6. The plaintiff's further contention is that the recitals in the release deed would bind only the releasor and therefore the trial Court ought not to have made Ex.A6, the basis for declining relief to the plaintiff with respect to some of the https://www.mhc.tn.gov.in/judis 16/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 items of the suit properties. The plaintiff's further case is that the confirmation document attached to Ex.A6 is a mere acknowledgment of giving the 'L' Schedule property and the amount referred to therein to the sister viz. Avabi.
21.The first defendant in his written statement stated that Ex.A6 was not executed in recognition of the distinct right of the daughters. Now the first defendant states that Ex.A6 coupled with the confirmation deed is binding on all the parties. The recitals in Ex.A6 along with the Confirmation Deed, according to the first defendant are binding on all the parties to the Release Deed and Confirmation Deed. The first defendant further states that the recitals in Ex.A6 support his contention that items 1 and 3 of 'A' schedule were orally gifted to the defendants 1 and 2 by their mother, Salia Bibi. The first defendant further relies on Ex.A6 to contend that it was admitted by all parties that the properties standing in the name of the individuals belonged to them. In substance, first defendant relies on Ex.A6 and the Confirmation Deed and states that the other co- sharers are bound by it and are estopped from assailing it.
22.The second defendant assails Ex.A6 stating that the parties did not derive title to the property under Ex.A6 and that the trial Court erred in relying on Ex.A6 to decree the suit. The second defendant in the written arguments confined the challenge to the trial Court judgment and decree to the properties decreed in https://www.mhc.tn.gov.in/judis 17/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 favour of the first defendant as his self acquisitions on the basis of Ex.A6.
23.The above being the stand of the appellants, it is to be seen if the trial Court erred in making Ex.A6, the basis of the judgment. Before dealing with Ex.A6 and the Confirmation Deed, the relevant portions of the Release Deed are extracted hereunder for better appreciation.
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vdf;Fz;lhd rl;lhPjpahd ghf chpikapy; mnef
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vy;yh brhj;Jf;fspd; epiyikiaa[k; ghpghtpf;Fk;
trjpfis ftdpj;Jk; jPtpu Mnyhridapd; gpd; bra;j kj;jpa!;jpd; go......
ehk; vy;nyhUk; kndhuhrpahft[k; rkhjhdkhft[k;
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e";ir rh;nt epyKk;. brhj;jhft[k; ,itfs; md;dpapy;
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vy;nyhUf;Fk; ,e;j tpLjiy rhrd K:yk; vdf;Fs;s
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tpLjy; ,y;iy vd;whYk; ntW VnjDk; ,jpy; fhz
tpl;Lg; ngha; gpd;dh; bjhpa te;jhy; mitfSk; 1 Kjy;
5 byf;fkpl;l j';fs; ahtUf;Fk; ghpg{uz ghj;jpabkd;Wk;
mtw;wpy; vdf;Fk;. Vd; thhpRfSf;Fk; vt;tpj ghj;jpa';fs; ,y;iybad;Wk; cWjp TWfpnwd;/ ...... nkYk; c';fspy; jdpg;gl;lth; bgahpYk; Tl;Lg;
bgahpYk; j!;jhnt$%fs; K:yk; Vw;gl;Ls;s
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chpikahsh;fns rfy ghj;aija[ilath;fbsd;Wk;.
nkw;go brhj;Jf;fspy; vdf;Fk;. Vd; thhpRfSf;Fk;
vt;tpj ghj;jpaKk;. Kd;bjhlh;r;rpa[kpy;iy vd;Wk; ,e;j rhrdk; K:yk; cWjp TWfpnwd;/ https://www.mhc.tn.gov.in/judis ...... jw;fhy NH;epiyia mDrhpj;J ,jd; moapy;
19/32
A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
gp bc&oa{ypy; tpthpf;fg;gl;l KjyhtJ mapl;l
brhj;jhfpa ngl;il fl;ll';fs; g[uhjhdkhft[k;. kpfg;
giHik tha;e;jitfshft[k; ,Ug;gjDy;
mitfis ,oj;J kWgo g[K khjphpahf;fp fl;lt[k;.
gGJ ghh;ff
; t[k;. mjpf rpythFk;/ jtpu efu
thrj;jpy; ,Uf;Fk; FoapUg;ghsh;fspd;
mDgtj;jpy; ,Ug;gjhYk; mth;fis fhyp bra;a
KoahjjhYk; kWgoa[k; kuhkj;J bra;J ey;y
Kd;ddpapy; fl;ll trjpfs; bra;jyy;yhJ mjpy;
thlif fpilf;fhjhifahYk; ,we;jtUk; mtUila
brhj;Jf;fis mtUila Mz; gps;isfs;
mDgtpg;gij bgz; thhpRfs; jLf;fhky; ,Uf;f
ntz;Lbkd;w mtht[ld; ,Ue;jikahYkk; jw;fhy
rl;l';fs; thp tNy;fs; epge;jidf;s aht[k;
brhj;Jf;fSf;F yhgk; bfhLf;ff;Toajhf ,y;yhjjhYk; brhj;Jf;fisg;.....
24.The recitals in Ex.A6 bring out that after elaborate discussions and deliberations in the presence of mediators all the parties agreed voluntarily to the release. Therefore, the release deed was executed in recognition of the rights of the parties as heirs of Khader Ibrahim Rowther. The plaintiff relies on Ex.A6 to support her plea that the brothers in recognition of the distinct right of the daughters got the Release Deed from Avabi. The plaintiff states that though the release deed is valid, the recitals therein do not bind her. The plaintiff further states that as Avabi was the executor of the document, the recitals bind her only https://www.mhc.tn.gov.in/judis 20/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 and not the plaintiff. The plaintiff by filing the suit for partition for 1/7th share leaving Avabi has acted upon the Release Deed and the Confirmation Deed. Once the Release Deed is accepted for determining the share's, the plaintiff cannot be heard to say that the recitals therein are not binding on her. As a beneficiary under the Release Deed and having acted upon the same, the plaintiff is estopped from stating that the recitals are not binding on her. The plaintiff can either accept the whole document or reject the same totally but she cannot be permitted to pick and choose those aspects of the document that suit her and reject the others. In my view the plaintiff cannot approbate and reprobate.
25.Useful reference is made to the Judgments of the Hon'ble Supreme Court in the case of the Rajasthan State Industrial Development and Investment Corporation and Another Vs. Diamond and Gem Development Corporation Ltd., and another reported in AIR 2013 SC 1241. The Hon'ble Supreme Court in the said Judgment held that “a party cannot be permitted to “blow hot and cold”, “fast and loose” or “approbate and reprobate”. Where one party knowingly accepts the benefits of a contract or conveyance or an order, it is estopped to deny the validity or binding effect on him of such contract or conveyance or order”. The Hon'ble Supreme Court in the case of Bhagwat Sharan Vs. Purushottam and others reported in 2020 (6) SCC 387, held that “the doctrine of election is a facet of law of estoppel. A party cannot blow hot and blow cold at the same time. Any https://www.mhc.tn.gov.in/judis 21/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 party which takes advantage of any instrument must accept all that is mentioned in the said document”. Therefore, in my view, the document cannot be dissected as per the whims and fancy of the plaintiff.
26.In this regard the evidence of the plaintiff on Ex.A6 is pertinent. The plaintiff in her cross-examination states as follows:
@mt;thW tpLjiyg; gj;jpuk; vGjpf; bfhLj;jth;-
mt;thcwp/ me;j tpLjiyg; gj;jpuj;ij Fwpj;J
vdf;F Xust[ neuoahfj; bjhpa[k;/ mJ Flk;g
Vw;ghlhf bra;ag;gl;l Mtzk; vd;gjhy; mjid
rnfhju. Rnfhjhpfs; midtUk; Vw;Wf; bfhz;nlhk;/
me;jg; gj;jpuj;jpd; efy; jhd; th/rh/M/6/ th/rh/M/6y;
Vw;gl;l cld;ghLfspd; tpgu';fs; vdf;Fj; bjhpahJ/
th/rh/M/6 gj;jpuk; Vw;gl;l nghJ vd; fzth; vd;Dld;
jhd; ,Ue;jhh;/ th/rh/M/6y; brhy;yg;gl;l tpgu';fs; rhpjhd;/@
27.The plaintiff admits that all the brothers and sisters accepted the Release as a family arrangement and that the recitals are also correct. The plaintiff as a beneficiary of the document cannot be heard to say that the recitals are not binding on her. The plaintiff in my view is therefore estopped from contending that the recitals are not binding on her.
https://www.mhc.tn.gov.in/judis 22/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
28.The further contention of the plaintiff that the Confirmation Deed dated 07.04.1975 is only an acknowledgment of giving the property and the amount mentioned therein is also untenable. The Confirmation Deed is as follows:
@nkw;go gj;jpu c&uhg;go rk;kjpj;Jr; bfhz;nlhk;/ nkw;go ghfchpik tpLjiy rhrdg; gj;jpukhdJ ehsJ 07/04/1976?k; njjpapy; jpUr;rp rg;hp$p!;ouhh; 3?y; be: 923 Mg; 1975 j!;jhnt$hf gjpthfpa[s;sija[k; ehk;
vy;yhUk; Vfkdjhf xg;g[f;bfhz;nlhk;/@
29.The document acknowledges the payment of Rs.52,000/- as also the allotment of 'A' Schedule property to Avabi. But the further recital @nkw;go gj;jpu c&ug;go rk;kjpj;Jf; bfhz;nlhk;@ shows that there is an acknowledgement of the recitals also and not just the payment and allotment.
The objection of the plaintiff that the Confirmation Deed is unstamped and unregistered hence not admissible in evidence is liable to be rejected on the short ground that the said Deed by itself does not create any right, title or interest in the property as it is only an acknowledgement of the Release executed on 01.04.1975 and registered later on 07.04.1975. It is settled law that a document which itself does not create or extinguish rights to immovable property above Rs.100/- need not be stamped and registered. Reference in this regard is made to the Judgments in the case of Kale Vs. Deputy Director of Consolidation reported in AIR 1976 SC 807; A.C.Lakshmipathy & Others Vs. A.M. Chakrapani Reddiar and Others https://www.mhc.tn.gov.in/judis 23/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 reported in AIR 2001 Madras 135 and Korukonda Chalapathi Rao & Another Vs. Korukonda Annapurna Sampath Kumar in Civil Appeal No(s).6141 of 2021.
30.The second defendant's contention that trial Court ought not to have relied on Ex.A6 is answered by my finding against the plaintiff on the same issue. It is relevant to note here that the second defendant admitted the release deed in his written statement filed on 20.10.1989 and also prayed for passing of preliminary decree declaring the rights of the parties. Further DW2 in his cross examination by the first defenant stated as follows:
@vd;Dila rnfhjhp cwthgP 1. 4. 75y; V6 vd;w ghf tpLjiy rhrdk; vGjp bghLj;j tptuk; vdf;F bjhpa[k;/ V6 rhrdj;jpy; fz;Ls;s tptu';fs;
rhpahditah vd;W KGikahf bjhpahJ/
X/v!;/2667-04y; vd;id tprhhpj;jhh;fs;/ me;j
ePjpkd;wj;jpy; vd;Dila rhl;rpaj;jpy; 1975y; vd;
rnfhjhp cwthgP vGjp bfhLj;j tpLjiy gj;jpuj;jpy;
brhd;d r';fjpfs; rhpjhd; vd;W TwpapUf;fpnwd;/ V6y; vd; jfg;gdhh; vd;d vz;zj;Jld; ,Ue;jhh; vd;w tptuj;ij vd; rnfhjhp brhy;ypa[s;shh; vd;w tptuk;
vdf;F bjhpahJ/ V6 K:yk; vdf;Fk; mjpy;
ghj;jpaij cz;L/@
@th/rh/M/6
https://www.mhc.tn.gov.in/judis K:Yk; TLjyhf brhj;Jf;fs;
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A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
bfhLg;gjw;F ,t;tHf;fpd; jug;gpdh;fshfpa eh';fs;
xg;g[f;bfhz;nlhk;/ th/rh/M.6 cUthd fhyj;jpy;
kj;jpa!;jh; bra;j ghpe;Jiuia vy;nyhUk;
Vw;Wf;bfhz;nlhk;/@
31.In the light of the said discussion the contention of the plaintiff that recitals in Ex.A6 are not binding on the plaintiff and therefore the trial Court erred in relying on the same to non-suit the plaintiff for some items of suit properties is rejected. So also in the light of the categorical admission of the second defendant that all the sharers accepted the release, the contentions now raised contra to the above cannot be sustained. Point No.1 is answered against the plaintiff and the second defendant.
POINT NO.2:
32.The first defendant's contention that the recitals in Ex.A6 support his case that his father was desirous of giving the properties to the male heirs and it further fortifies his plea of oral gift in his and second defendant's favour, in my view, is misconceived. The relevant recitals are as follows:
@,we;jtUk; mtUila brhj;Jf;fis mtUila Mz;
gps;isfs; mDgtpg;gij bgz; thhpRfs;
jLf;fhky; ,Uf;f ntz;Lbkd;w
https://www.mhc.tn.gov.in/judis
25/32
A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
mtht[ld; ,Ue;jikahYk;@
33.The above recitals convey only a desire of the father to give the properties to the sons. In the absence of any particulars in the pleadings regarding the date, time, witnesses and the place etc., of the hiba the aforesaid recitals per se cannot amount to proof of Hiba. It is trite that in Mohammedan Law, the gift can be oral. But oral Hiba has to be pleaded and proved in a manner known to law. The pleadings are absolutely bereft of particulars regarding the three essentials of a valid Hiba like declaration, acceptance and delivery of possession. Useful reference can be made to the Judgments of the Hon'ble Supreme Court in the case of Rasheeda Khatoon Vs. Ashiq Ali reported in 2014 (10) SCC 459, wherein it was held as follows:
“17.From the aforesaid discussion of the propositions of law it is discernible that a gift under the Muhammadan Law can be oral gift and nee not be registered; that a written instrument does not, under all circumstances acquire registration; that to be a valid gift under the Muhammadan law three essential features, namely (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift https://www.mhc.tn.gov.in/judis 26/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 deed, it does not warrant registration under Section 17 of the Registration Act.” It is not necessary to elaborately deal with this issue as I am of the opinion that in the absence of basic pleadings, necessary for sustaining the plea of Hiba, the same deserves to be rejected. It is further pertinent to note that the second defendant sailed with the first defendant on suit items 1, 2 and 3 of A Schedule properties. He supported Hiba set up by the first defendant . As I have rejected the plea of Hiba set up by the first defendant, for the same reasons, the Hiba set up by the second defendant is also rejected. Hence, point No.2 is decided against the defendant Nos.1 and 2.
POINT No.3:
34.The contention of the first defendant that he has derived exclusive title to the properties by ouster is concerned, here again, I am of the view that there is neither any pleading nor any evidence to support the same. It is settled law that ouster has to be pleaded and proved. Assuming that the defendant has been in long and uninterrupted possession ouster cannot be inferred in the absence of proof of animus to hold hostile title.
35.Reference in this regard is made to the Judgments in the case of Karbali Begum Vs. Mohd. Sayeed (AIR 1981 SC 77). It was held that “a co-sharer in https://www.mhc.tn.gov.in/judis 27/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 possession of the property would be a constructive trustee on behalf of other co-
sharer who is not in possession and the right of such co-sharer would be deemed to be protected by the trustee co-sharer”. The Hon'ble Supreme Court in the case of Mohd. Zain-ul-Abdin Vs. Syed Ahmad Mohiudding (AIR 1990 SC 507), held that “'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner”. In the case of Vidya Devi @ Vidya Vati Vs. Prem Prakash and others reported in 1995 SCC (4) 496, the Hon'ble Supreme Court held that “what, however, emerges from a perusal of the pleadings contained in the written statement filed on behalf of the respondent is that the plea of adverse possession had not been specifically raised by setting out all the requisite ingredients which had necessarily to be pleaded in order to constitute the case of acquisition of title by adverse possession. Unless, the pleadings are complete and all the necessary ingredients to constitute ouster by adverse possession are set out in the written statement, the plea relating to the title of the property in question cannot be said to have been raised”. Absolutely there is no evidence in this regard. Therefore the plea of ouster set up by the first defendant https://www.mhc.tn.gov.in/judis 28/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 is without merit. Point No.3 is answered against the first defendant. POINT No.4:
36.It is noteworthy that till the plaint was amended and schedules M to V were added, the second defendant did not seriously object to the plaintiff's suit for partition, rather he also prayed for a preliminary decree to declare the parties rights. It was only after schedules M to V were added that the second defendant hotly contested the suit praying for dismissal of the suit in his additional written statement. It is also to be noted that even in the appeal in the written arguments of the second defendant he has categorically stated that the appeal is targeted against the decree declaring the first defendant's exclusive right to certain items of properties as his self acquisition. It is surprising that in his written statement the second defendant did not whisper about the oral partition, it was only in the additional written statement that the oral partition was pleaded.
37.The oral partition set up by the second defendant in his additional written statement has not been proved by evidence and hence the same is rejected. It is pertinent to note that in O.S.No.2637 of 2004 the very said contention was rejected and confirmed by the Hon'ble Supreme Court in SLP.No. 6211 – 6214 / 2012. The trial Court was therefore right in its conclusion that the https://www.mhc.tn.gov.in/judis 29/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 businesses in schedules D, E, M, N did not belong to Khader Ibrahim Rowther and hence they were matters to be settled interse between D1 and D2.
38.CRP was filed challenging the interim order rejecting the I.A.No.11 of 2017 for stay of the proceedings in O.S.No.116 of 2012 till the disposal of the appeals. The CRP is dismissed as infructuous as the appeal is itself now disposed of.
39.It is seen that the trial Court has given cogent reasons and meticulously considered all the issues and therefore I see no reason to interfere with the trial Court's Judgment and decree dated 10.09.2008 in O.S.No.4 of 2004 on the file of Additional District Court (Fast Track Court-II) Tiruchirapalli, and hence the same is confirmed. The appeals are hence dismissed. There shall be no order as to costs. Consequently the connected miscellaneous petition is closed.
17.08.2023 Index: Yes / No Internet : Yes / No ah To
1.The Additional District Court (Fast Track Court-II), Tiruchirapalli.
https://www.mhc.tn.gov.in/judis 30/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011
2.The Sessions Judge, Mahila Court, Tiruchirappali.
3.The Section Officer, V.R. Section, High Court, Madras.
N.MALA, J.
ah A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 and C.R.P.(MD).No.2022 of 2017 https://www.mhc.tn.gov.in/judis 31/32 A.S.(MD).Nos.262 of 2009, 142 of 2014 & 5 of 2011 17.08.2023 https://www.mhc.tn.gov.in/judis 32/32