Kerala High Court
A.M.Hussainar vs Aysha on 6 November, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
2024:KER:82366
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
RFA NO. 609 OF 2016
AGAINST THE JUDGMENT DATED 30.06.2016 IN OS NO.3 OF 2015 OF
SUB COURT, KASARAGOD
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APPELLANT/DEFENDANT:
A.M.HUSSAINAR, AGED 44 YEARS,
S/O.LATE A.M.ABOOBACKER HAJI,RESIDING AT
A.M.A.MANZIL,ADHUR(P.O), ADHUR VILLAGE,KASARAGOD TALUK
AND DISTRICT,PIN-671543.
BY ADVS.
SMT.CISSY MATHEWS
SRI.JAWAHAR JOSE
SRI.T.KRISHNANUNNI SR.
SRI.V.VINAY MENON
K.A.LALAN(K/000187/1982)
RESPONDENTS/PLAINTIFFS:
1 AYSHA, AGED 71 YEARS,
W/O.LATE A.M.ABOOBACKER HAJI,RESIDING AT
A.M.A.MANZIL,ADHUR(P.O),ADHUR VILLGE,KASARAGOD TALUK
AND DISTRICT,PIN-671543.
2 MOHAMMAD KUNHI, AGED 51 YEARS,
S/O.LATE A.M.ABOOBACKER HAJI,RESIDING AT
A.M.A.MANZIL,ADHUR(P.O),ADHUR VILLAGE,KASARAGOD TALUK
AND DISTRICT,PIN-671543.
2024:KER:82366
RFA NO. 609 OF 2016 -2-
3 HASSAINAR,AGED 44 YEARS,
S/O LATE A.M.ABOOBACKER HAJI,RESIDING AT
A.M.A.MANZIL,ADHUR(P.O),ADHUR VILLAGE,KASARAGOD TALUK
AND DISTRICT,PIN-671543.
BY ADVS.
K.RAJEEV
V.VISAL AJAYAN(K/1276/2012)
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
06.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
P.V.BALAKRISHNAN, JJ.
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R.F.A. No.609 of 2016
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Dated this the 6th day of November, 2024
J U D G M E N T
Sathish Ninan, J.
The preliminary decree in a suit for partition is
under challenge by the defendant.
2. The property sought to be partitioned belonged
to late A.M.Aboobacker Haji. The first plaintiff is his
widow. Plaintiffs 2 and 3, and the defendant, are their
children. The plaint schedule consists of seven items of
properties. The issue involved in this appeal is
confined to plaint 'B' schedule item No.1 which has an
extent of 51 cents with a building thereon.
3. The defendant claimed that the said property
belongs to him exclusively under Ext.B3 Gift Deed dated
25.03.2013 executed by the father.
4. The trial court held against Ext.B3 and passed a
preliminary decree for partition. The appeal was earlier
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disposed of by this Court as per judgment dated
12.02.2019 remanding the matter to the trial court
granting liberty to the parties to adduce further
evidence. The Apex Court as per order dated 19.02.2024
in Civil Appeal No. 2647 of 2024 set aside the remand
order and directed this Court to decide the appeal
afresh in accordance with law.
5. We have heard the learned counsel Sri.Jawahar
Jose on behalf of the appellant-defendant and
Sri.K.Rajeev on behalf of the respondents-plaintiffs.
6. The points that arise for determination are :-
(i) Is the finding of the trial court holding against Ext.B3
Gift Deed, based on the evidence on record ?
(ii) Does the decree and judgment of the trial court
warrant any interference?
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7. Issue No.2 raised for trial reads as follows: -
"2. Whether the settlement deed No.1816/2013 of S.R.O.
Badiadka is a true and genuine document and if so, whether
late A.M.Aboobacker Haji executed the same while he was in a
sound disposing state of mind ?
Ext.B3 Gift Deed is dated 25.03.2013. Exts.A17 to A19
are the medical records evidencing the health condition
of Aboobacker Haji during the said period. Ext.A17
relates to the period from 27.02.2013 to 02.03.2013.
Ext.A18 relates to the period from 16.03.2013 to
18.03.2013 and Ext.A19 relates to the period from
29.03.2013 to 02.04.2013. The records reveal that during
the said period Aboobacker Haji was undergoing treatment
in hospital as an inpatient. The records reveal that he
was suffering from chronic kidney disease, hypertension,
diabetes mellitus, central airway obstruction, left
ventricular dysfunction and Urosepsis. The records
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further reveal that he had suffered a stroke. It is also
in evidence that he was suffering from partial visual
impairment. It is in between the said period viz. on
25.03.2013, that Ext.B3 Gift Deed is claimed to have
been executed. In Ext.A19 it is indicated that,
Sri.Aboobacker Haji has been suffering from a fever for
the past four days. He was admitted on 29.03.2013.
Therefore, even as on the date of Ext.B3, he was
suffering from fever.
8. It is claimed that, Sri.Aboobacker Haji had
visited the scribe twice in connection with the
execution of the gift deed viz. on 24.03.2013 and
25.03.2013. DW2 is one of the attestors to Ext.B3.
According to him, he had accompanied Aboobacker Haji on
both the days. At one portion of his evidence he deposed
that he was informed about the nature of the document on
the date when the document was prepared and that it was
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on the previous day of its execution. However, at
another portion of his deposition he would say that the
document was prepared and read out only on 25.03.2013
i.e. the date of its execution. The relevant portion of
the deposition reads thus:-
"It was a gift deed. It was so told to me on the date when the
document was prepared. It was on the day prior to the execution of
Ext.B3, he told to me as to it."
"On 25.03.2013, when we reached the office of DW1, Haji
enquired whether the document was ready. DW1 read out the
document to Haji. Then, that contents were prepared in stamp paper
and thereafter DW1 again read out the contents to Haji."
DW2 denied the fact that Aboobacker Haji has been
suffering from various illnesses since the year 2012.
However, the medical records prove otherwise. The trial
court found that the evidence of DW2 is not reliable.
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9. DW1, the scribe, admitted that his office is
near to the Sub Registry office. In spite of the same,
Ext.B3 document which was executed on 25.03.2013 was not
registered on that day. Ext.B3 was registered only on
11.04.2013. So also, the document was presented for
registration not by the executant Aboobacker Haji but by
the wife of the defendant. Such presentation was on the
strength of a power of attorney dated 26.03.2013. The
power of attorney is executed on the very next day of
execution of Ext.B3. There is no explanation as to why
the document was not registered either on the date of
its execution viz. 25.03.2013 or on the next day viz.
26.03.2013 even though it is claimed that Aboobacker
Haji had executed a power of attorney on 26.03.2013 for
the purpose of registration. The power of attorney is
not produced. The power of attorney holder, viz., the
wife of the defendant, is not examined. Not even the
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defendant has mounted the witness box to explain the
circumstances leading to the above.
10. The defendant was residing along with
Aboobacker Haji. The property in question contains a
building having 41 shop rooms. The building tax extracts
marked as Exts.A7 to A13 indicate that the ownership of
the said building was changed to the name of the
defendant only on 18.09.2014, ie. much after the death
of Aboobacker Haji. There are no materials to prove that
the donee took possession of the property during the
lifetime of the donor. Necessarily there must have been
rent receipts after the gift evidencing attornment by
the tenants. So also, there must be materials evidencing
payment of tax in respect of the property and the
building by the defendant based on the gift. However, no
such materials are forthcoming.
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11. The best person to depose about all these facts
is the donee, the defendant. However, surprisingly, he
has abstained from the witness box.
12. There are three essentials for a valid Muslim
gift: viz. declaration, acceptance and delivery of
possession. It was for the defendant to prove the gift,
in which he miserably failed. While holding against
Ext.B3 gift the trial court has analysed and taken into
consideration all the relevant evidence on record. The
finding warrants no interference.
13. The suit for partition is laid alleging
intestate succession. In defence, the defendants set up
Ext.B3 gift. As was noticed earlier, issue No.2 raised
for trial was with regard to the genuineness of Ext.B3.
After the defendant had filed a written statement
setting up Ext.B3 Gift Deed, the plaintiff had filed a
replication raising challenge against the document. To
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the replication, the defendant had filed a reply
statement. It was thereafter that the issues were
raised, and the parties went to trial. Hence there is no
substance in the contention of the defendant that there
was no formal order by the Court accepting the
replication or that there is no challenge against
Ext.B3.
The decree and judgment of the trial court warrant
no interference.
The appeal fails and is dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P.V.BALAKRISHNAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
PETITIONER ANNEXURES
Annexure -A1 TRUE REGISTRATION COPY OF THE DOCUMENT DATED
BEARING NUMBER 1910/2000 OF S.R.O
BEDIYADUKKA.
Annexure -A2 TRUE COPY OF THE SALE DEEDS DATED 13-10-1998
BEARING REGISTRATION NUMBERS 2533/1998 OF
S.R.O BEDIYADUKKA.
Annexure -A3 TRUE COPY OF THE SALE DEEDS DATED 13-10-1998
BEARING REGISTRATION NUMBERS 2534/1998 OF
S.R.O BEDIYADUKKA.
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