Madras High Court
D.Peer Mohamed vs Baby @ Mulukur Beevi on 6 July, 2021
1 S.A.(MD)NO.707 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.707 of 2007
D.Peer Mohamed ... Appellant/Appellant/
1st Defendant
Vs.
1. Baby @ Mulukur Beevi ... Respondents/Respondent/
Plaintiff
2. K.E.Nagoor Meeran
3. Ahamed Meeral Beevi @
Kaniammal
4. Mohammathammal @
Chinna Pillai
5. Mohammed Malkkar
6. Sahul Hameed
7. Duwan Beevi Janitha
(R-2 to R-7 were ex-parte before
the lower Court.
Notice need not be sent)
... Respondents/Respondents/
Defendant Nos.3, 4,5,7,8 &9
Prayer: Second appeal filed under Section 100 of
C.P.C., against the Judgment and Decree of the learned
Principal District Judge, Tirunelveli, in A.S.No.178 of 2001
dated 29.11.2002 confirming the Judgment and Decree of the
learned Principal Sub Judge, Tenkasi, dated 17.09.1999 made
in O.S.No.23 of 1990.
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2 S.A.(MD)NO.707 OF 2007
For Appellant : Mr.J.Ashok
For R-1 : Mr.V.Meenakshisundaram,
for Mr.D.Nallathambi.
For R-2 to R-7 : Ex-parte
***
JUDGMENT
The contesting defendant in O.S.No.23 of 1990 on the
file of the Principal Sub Court, Tenkasi, is the appellant in this
second appeal.
2. The first respondent herein, namely, Baby @
Mulukur Beevi filed the said suit seeking the relief of partition
and separate possession in respect of her 41/240th share in the
suit properties. The suit items are five in number. The case of
the plaintiff was that the property belonged to her father
Diwan Mohamed Pannaiyar who had passed away 19 years
prior to the filing of the suit. Diwan Mohamed Pannaiyar's
wife Aminal Beevi had a son(appellant herein) and four
daughters(plaintiff, fourth defendant Ahamed Meeral Beevi,
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3 S.A.(MD)NO.707 OF 2007
fifth defendant Mahamedammal @ Chinnapillai and the sixth
defendant Kachiyammal). Aminal Beevi, mother of the parties
was shown as the second defendant. The third item had been
purchased by one Nagoor Meeran and he was shown as the
third defendant. The defence taken by the appellant herein
was that the suit properties were orally gifted by the father
Diwan Mohamed Pannaiyar six months prior to his demise.
Based on the divergent pleadings, the trial Court framed the
necessary issues. The plaintiff examined herself as P.W.1 and
marked Ex.A.1 and Ex.A.2. The contesting defendant
examined himself as D.W.1. No document was marked on his
behalf. The learned trial Judge by judgment and decree dated
17.09.1999 granted preliminary decree in favour of the
plaintiff in respect of her 41/240th share as regards items 1, 4,
5 and 6. The suit was dismissed as regards items 2 and 3.
Regarding the relief of mesne profits, the plaintiff was given
liberty to initiate separate proceedings under Order 20 Rule
12 of C.P.C.
3. Aggrieved by the same, the contesting the
defendant/appellant herein filed A.S.No.178 of 2001 before
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4 S.A.(MD)NO.707 OF 2007
the Principal District Judge, Tirunelveli. By judgment and
decree dated 29.11.2002, the judgment and decree passed by
the trial Court was substantially confirmed. Interference was
made only in respect of the relief granted under Order 20 Rule
12 of C.P.C. Questioning the same, the contesting defendant
had filed this second appeal.
4. The plaintiff however did not file any cross
objection as regards the denial of mesne profits. This second
appeal was admitted on the following substantial questions of
law:-
“Whether the Courts below were
correct in disbelieving the oral gift executed in
favour of the appellant by holding that there was
no plea in the written statement and evidence
that the appellant, a minor then was not
represented by natural guardian?”
5. Heard the learned counsel on either side.
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5 S.A.(MD)NO.707 OF 2007
6. The learned counsel appearing for the appellant
submitted that the parties are Muslims and that therefore, the
provisions of Transfer of Property Act relating to gifts will not
apply to them. It is well settled that the Muslims can gift
property orally also. According to him, the Courts below failed
to take note of this legal position. He reiterated all the
contentions set out in the memorandum of grounds and called
upon this Court to answer the substantial question of law in
favour of the appellant and set aside the impugned judgments
and decrees passed by the Courts below.
7. Per contra, the learned counsel appearing for the
first respondent/plaintiff submitted that the impugned
judgment and decree do not call for any interference.
8. I carefully considered the rival contentions and
went through the evidence on record.
9. There is no dispute that the suit properties
originally belonged to Diwan Mohamed Pannaiyar. There is
also no dispute that he died intestate some 19 years prior to
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6 S.A.(MD)NO.707 OF 2007
the filing of the suit. The appellant was a minor when the
father Diwan Mohamed Pannaiyar passed away. Of course
Diwan Mohamed Pannaiyar was entitled to orally gift the
properties in question in favour of the appellant. The moot
question is whether he did so. The legal position canvassed by
the learned counsel appearing for the appellant is well
founded. But the point for consideration is whether Diwan
Mohamed Pannaiyar actually gifted the properties in question
orally in favour of the appellant herein.
10. Hiba comprises three elements; a) Intention to
gift, b) acceptance of the gift and c) delivery of possession. In
the case on hand, the appellant was a minor when the alleged
gift is said to have taken place. The appellant has not given
any specific detail. Since he was a minor at the time when
Hiba is said to have taken place, the gift must have been
accepted on his behalf either by his mother or some other
competent person. In the suit, the plaintiff had arrayed the
mother as the second defendant and the mother did not file
any written statement. She passed away during the pendency
of the trial. If the mother had stepped into the witness box or
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7 S.A.(MD)NO.707 OF 2007
given evidence stating that Diwan Mohamed Pannaiyar orally
gifted the properties in question and that on behalf of the
appellant, she accepted the gift, there would have been some
prima facie case for the appellant to project. However, the
plea of Hiba is without any supporting evidence. Therefore,
the Courts below rightly rejected the said defence. Whether
there was a oral gift in favour of the appellant is a pure
question of fact. When the Courts below have concurrently
found the same against the appellant, the question of
interfering with such a factual finding in exercise of my
jurisdiction under Section 100 of C.P.C. does not arise.
11. I answer the substantial question of law against
the appellant. 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.
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8 S.A.(MD)NO.707 OF 2007
G.R.SWAMINATHAN,J.
PMU
To:
1. The Principal District Judge,
Tirunelveli.
2. The Principal Sub Judge,
Tenkasi.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.707 of 2007
06.07.2021
https://www.mhc.tn.gov.in/judis/
