Noorjahan vs Sarvardeen
2021 Latest Caselaw 23174 Mad

       IN THE HIGH COURT OF JUDICATURE AT MADRAS

                            DATED :26.11.2021

                                  CORAM

       THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN

                           S.A.No.980 of 2021
                       and C.M.P.No.18435 of 2021
Noorjahan                                                     ...Appellant

                                     Vs.

1.Sarvardeen
Represented by his power agent
Muthukrishnan

2.Mathivanan

3.Muthezhilan
Represented by his power agent
Mathivanan                                                    ...Respondents

PRAYER: Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 04.03.2020 made in A.S.No.10 of 2016 on the file of the Additional District Court, Mayiladuturai confirming judgment and decree dated 23.03.2016 made in O.S.No.55 of 2013 on the file of the Principal Sub Court, Mayiladuturai.

                  For Appellant      :     Mr.S.Sounthar





                                 JUDGMENT

This Second Appeal is directed against the judgment of the

learned Additional District Judge, Mayiladuturai in A.S.No.10 of 2016

confirming the judgment of the learned Principal Sub Judge, Mayiladuturai in

O.S.No.55 of 2013.

2. The first respondent filed the suit for declaration that he is the

owner of the suit property and directing the defendants to surrender

possession of the suit property and for costs against the appellant and

respondents Mathivanan and Muthezhilan. The case of the first

respondent/plaintiff is that the suit property belongs to one Fathamuthu

Joharan. She gave the suit property to her grandson Mohamed Sarvardeen,

the first respondent by way of oral Hiba on 15.02.1997. It was followed by

execution of a confirmation deed dated 27.01.1998 by Fathamuthu Joharan.

The Hiba was given in the presence of Hidyathulla and Akbar Ali.

Fathamuthu Joharan gave documents regarding the suit property to the first

respondent at the time of giving Hiba. The first respondent accepted the Hiba,

took possession of the suit property. House tax was transferred to his name

and he paid the house tax. The door No.3/9 was changed as 3/11 by the local

panchayath. Sabir Mohamed, father of first respondent, not satisfied with his

mother Fathamuthu Joharan that she has given her property to the first

respondent, attempted to interfere with the property given to the first

respondent. Therefore, Fathamuthu Joharan filed a suit in O.S.No.142 of

1998 on the file of the Additional District Munsif Court, Mayiladuturai. That

suit was decreed as prayed for. Sabir Mohamed gave torture to first

respondent and his mother. Therefore, first respondent was forced to leave

the suit village. First respondent's father managed to lease the property to

Tamil Nadu Electricity Board. The second respondent Mathivanan issued

notice to the first respondent stating that he purchased the suit property from

Sabir Mohamed on 27.01.2005. It is said in that notice that Sabir Mohamed

was given Hiba by his mother and there was also a settlement in his favour.

Since, the property was already given to the first respondent by oral Hiba,

confirmed by written document dated 27.01.1998, any Hiba or settlement by

Fathamuthu Joharan to Sabir Mohamed or to anybody else is invalid. A

notice was given to Junior Engineer, TNEB, on 24.07.2010 followed by

notice dated 22.09.2012 for vacating the suit property. Thereafter, second

respondent as a power agent of the third respondent sold the suit property to

the fourth respondent on 14.02.2013. In such circumstances, the suit is filed

for the aforesaid relief.

3. The third defendant/fourth respondent filed written statement.

The case of third defendant in brief reads as follows:

Third defendant purchased the suit property through the power

agent of second defendant on 14.02.2013 for Rs.10,00,000/-. Second

defendant was enjoying the suit property as an owner by purchase on

13.10.2005 from first defendant. First defendant purchased the suit property

from Sabir Mohamed. Sabir Mohamed's mother Fathamuthu Joharan

executed a settlement deed dated 29.11.2004 to Sabir Mohamed.

Subsequently, house tax receipts had been changed in the name of the third

defendant and she is in possession and enjoyment of the suit property. The

alleged oral Hiba dated 15.02.1997 claimed by the first respondent/plaintiff is

false and not true. It was not given in accordance with muslim personal law.

The deed of confirmation dated 27.01.1998 is also not true. The house tax

receipts for the period of 1998 to 2003 had been created for the purpose of

the suit. The decree in O.S.No.142 of 1998 is not true and it will not bind the

defendant. Third defendant is in possession and enjoyment of suit property as

a matter of right and therefore suit has no merits.

4. On the basis of the above pleadings, the following issues had

been framed by the Trial Court:

i)Whether the plaintiff is entitled for the relief of declaration and

possession in respect of the suit property?

ii)Whether the suit is barred by limitation?

iii)Whether the suit is bad for non-joinder of necessary parties?

iv)to what relief if any, plaintiff is entitled?

5. During the trial, PW1 and PW2 were examined and Exhibits A1

to A18 were marked on the side of the plaintiff. DW1 to DW3 were examined

and Exhibits B1 to B16 were marked on the side of the defendants. On

considering the oral and documentary evidence, the learned Principal Sub

Judge, Mayiladuturai, found that oral Hiba in favor of the first respondent

was proved and acted upon and therefore, original owner Fathamuthu Joharan

has no right to execute settlement deed in favour of her son. Subsequent,

settlement deed will also not bind the first respondent/plaintiff. In this view

of the matter, decreed the suit.

6. The third defendant preferred an appeal in A.S.No.10 of 2016.

The learned Additional District Judge, Mayiladuturai has also found from the

evidence produced, submissions made by the counsel for the parties and the

judgment of the Trial Court, no reason to interfere with the judgment of the

Trial Court. Thus, confirmed the judgment decree of the Trial Court and

dismissed the appeal. Therefore, appellant/third defendant come up with this

Second Appeal before this Court.

7. The learned counsel for the appellant submitted that the oral

Hiba alleged by the first respondent was not proved in accordance with law.

Though oral Hiba was said to have been given in the presence of two

witnesses, only one witness was examined and his evidence was not

discussed by the Courts below. House tax receipts will not show that oral

Hiba was acted upon for the reason that first respondent was the grand son of

Fathamuthu Joharan and he was living with her. Subsequent to the execution

of settlement deed by Fathamuthu Joharan in favour of her son, there was

mutation of revenue records and patta stands in the name of the appellant.

Appellant is in possession and enjoyment of the suit property. These factors

had not been considered by the Courts below. Without considering these

facts, the Courts below have wrongly appreciated the evidence and came to

the conclusion that oral Hiba in favour of the first respondent was acted upon

and subsequent settlement deed executed by Fathamuthu Joharan in favour of

her son and the subsequent transactions are not valid. Therefore, learned

counsel for the appellant prayed for setting aside the judgments of the Courts

below and for allowing this Second Appeal.

8. Considered the submission of the learned counsel for the

appellant and perused the records.

9. As seen from the facts narrated above, it is the case of the first

respondent that the original owner of the suit property Fathamuthu Joharan is

the grand mother of the first respondent and mother of his father Sabir

Mohamed. She had given the suit property to him by way of oral Hiba on

15.02.1997. It is also claimed that there is a deed of confirmation executed on

27.01.1998 confirming the oral Hiba. The deed of confirmation has been

marked as Exhibit A1. There is no dispute with regard to the fact that the suit

property belong to Fathamuthu Joharan and she is entitled to gift away the

suit property to the person of her choice by oral Hiba. What is to be

considered is whether there was really an oral Hiba in favour of the first

respondent on 15.02.1997.

Hiba or gift: A Hiba or gift is “a transfer of property, made immediately, and without any exchange,” by one person to another, and accepted by or on behalf of the latter.

Thus, gift is the transfer of movable or immovable property with immediate effect and without consideration by one person called the donor to another person called the donee and the acceptance of the same by one himself or by some one authorized on his behalf, provided that making the gift must totally renounce all his title and rights in the property gifted away of his independent free will.

The basis of the principle or gift is the Prophet's saying, “Exchange gifts among yourselves so that love may increase.” The three essentials of a gift: It is essential to the validity of a gift that i) there should be a declaration of gift by the donor, ii) an acceptance of the gift, express or implied, by or on behalf of the donee, and iii) delivery of

possession of the subject of the gift by the donor to the donee . If these conditions are complied with, the gift is complete.

10. Though oral Hiba alleged by the first respondent is denied and

disputed by the appellant, there is one clinching evidence available in the

form of a suit filed by Fathamuthu Joharan against her own son Sabir

Mohamed in O.S.No.142 of 1998. In this suit, it is observed in the judgment,

that Fathamuthu Joharan has clearly admitted gifting the suit property to her

grand son Mohamed Sarvardeen through oral Hiba and executing a

confirmation deed on 27.01.1998. As already stated, this confirmation deed

has been marked as Exhibit A1. It is observed in the judgment of the

Appellate Court that the signature of Fathamuthu Joharan in Exhibit A1 is

not denied by the respondent. There is a positive evidence available through

the mouth of Fathamuthu Joharan in the form of pleadings in O.S.No.142 of

1998 that she confirmed giving the suit property to her grand son Mohamed

Sarvardeen through oral Hiba. It was also reiterated by confirmation deed

dated 27.01.1998. It is claimed by the first respondent that he had accepted

the oral Hiba and took possession of the suit property. It is also his specific

case that there had been change of house tax in his name and he paid house

tax for the suit property. Exhibit A3 house tax receipts had been filed

evidencing the name change in the name of the first respondent and payment

of house tax receipts to the suit property by the first respondent. It again

confirms that the oral Hiba was true, accepted and acted upon, possession

was taken. There had been necessary changes in the revenue records and it

was enjoyed by the first respondent, until he was dispossessed. Therefore, he

has come up with the suit for declaration of title and recovery of possession.

Once, the oral Hiba is accepted, acted upon, possession taken, enjoyed any

subsequent alienation in the form of settlement or whatever document by

Fathamuthu Joharan to her son or anybody claiming through him, no doubt,

will not bind the first respondent.

11. Thus, the Courts below have rightly appreciated the evidence

and came to the conclusion that the first respondent is entitled for the

declaration and possession as prayed. Merely because PW2's evidence was

not discussed in the judgment, we cannot come to the conclusion that his

evidence was not considered at all. Even, in the absence of PW2's evidence

there are other evidences, as indicated above, available to conclude that the

oral Hiba was true and acted upon. This Court finds no reason to interfere

with the judgment of the learned Additional District Judge, Mayiladuturai in

A.S.No.10 of 2016 confirming the judgment of the learned Principal Sub

Judge, Mayiladuturai in O.S.No.55 of 2013 and the judgment of the Court

below is confirmed. There is no substantial question(s) of law involved for

consideration in this Second Appeal.

12. Accordingly, this Second Appeal is dismissed. No costs.

Consequently, connected miscellaneous petition stands closed.

26.11.2021

ep Index:Yes/No Internet:Yes/No Speaking Order: Yes/No

To The Section Officer, VR Section, High Court of Madras.

G.CHANDRASEKHARAN.J,

ep

S.A.No.980 of 2021 and C.M.P.No.18435 of 2021

26.11.2021