Madras High Court
M.A.Beer Mohaideen vs M.Aasial Beevi on 6 July, 2021
1 S.A.(MD)NO.938 OF 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.938 of 2007
M.A.Beer Mohaideen ... Appellant/Appellant/
1st Defendant
Vs.
1. M.Aasial Beevi
2. M.Pathumuthu
3. M.Sariba
4. M.Noorjahan ... Plaintiffs/
Respondents 1 to 4/
Respondents 1 to 4
5. Sheku Fathimal ... 2nd defendant/
5th Respondent/5th Respondent
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Judgment and Decree passed in
O.S.No.248 of 2002 dated 06.02.2006 on the file of the II
Additional Sub-Court, Tirunelveli which was confirmed by the
Judgment and Decree passed in A.S.No.34 of 2006 dated
28.09.2006 on the file of the Principal District Court,
Tirunelveli and dismiss the suit in O.S.No.248 of 2002 on the
file of the II Additional Sub-Court, Tirunelveli.
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For Appellant : Mr.V.Meenakshi Sundaram,
for Mr.D.Nallathambi.
For R-1 to R-4 : Mr.S.Balasubramanian
***
JUDGMENT
The contesting defendant in O.S.No.248 of 2002 on
the file of the II Additional Sub Court, Tirunelveli, is the
appellant in this second appeal.
2. O.S.No.248 of 2002 was filed by respondents 1 to 4
herein seeking partition and separate possession of their
7/12th share in the suit properties. They also prayed for mesne
profits. The case of the plaintiffs is that the suit properties
belonged to their father B.M.Abubakkar. The fifth respondent
herein Sheku Fathimal is the wife of Abubakkar. The plaintiffs
and the appellant were born to them. Abubakkar passed away
in the year 2001. The suit items are two in number. The first
item comprises a row of houses. The second item is a fixed
deposit. The stand of the appellant was that even during his
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3 S.A.(MD)NO.938 OF 2007
lifetime, Abubakkar had settled certain items of the properties
in favour of the plaintiffs and in view of the same, the plaintiffs
have released their future interest in the suit property. The
learned counsel for the appellant relied on the decision
reported in AIR 1973 SC 554 (Gulam Abbas Vs. Haji Kayyum
Ali & Ors.) for the proposition pertaining to estoppel by
conduct.
3. The husband of the first plaintiff examined himself
as P.W.1 and Ex.A.1 to Ex.A.5 were marked. The appellant
examined himself as D.W.1 and as many as seven other
witnesses. Ex.B.1 to Ex.B.15 were marked. The trial Court by
judgment and decree dated 06.02.2006 rejected the plea of
the contesting defendant and passed preliminary decree as
sought for. The plaintiffs were also given liberty to initiate
separate proceedings for mesne profits under Order 20 Rule
12 of C.P.C.. The decision of the trial Court was confirmed by
the first appellate Court in A.S.No.34 of 2006 on the file of the
Principal District Judge, Tirunelveli. Questioning the same,
this second appeal came to be filed.
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4 S.A.(MD)NO.938 OF 2007
4. Though the second appeal is of the year 2007, it
has not been admitted till date.
5. The learned counsel appearing for the appellant
reiterating all the contentions set out in the memorandum of
grounds and called upon this Court to frame substantial
questions of law and admit this second appeal and thereafter
take it up on merits.
6. Per contra, the learned counsel appearing for the
contesting respondents/plaintiffs submitted that no substantial
question of law arises for consideration.
7. I carefully considered the rival contentions and
went through the evidence on record.
8. There is no dispute that the suit properties
belonged to the father Late.B.M.Abubucker. There is no
dispute regarding the relationship between the parties. The
only ground on which the prayer for partition is opposed is
that the plaintiffs are estopped by conduct. This is purely a
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5 S.A.(MD)NO.938 OF 2007
factual issue. The Courts below have concurrently found that
the plaintiffs have not relinquished their share in the suit
property. No substantial question of law really arises for
consideration. I do not find any ground to interfere.
9. This second appeal is dismissed. No costs.
06.07.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The II Additional Sub Judge,
Tirunelveli.
2. The Principal District Judge,
Tirunelveli.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
G.R.SWAMINATHAN,J.
PMU
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6 S.A.(MD)NO.938 OF 2007
S.A.(MD)No.938 of 2007
06.07.2021
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