Madras High Court
Gose Mohammed vs Kasim Abdul Razak on 6 October, 2021
1 A.S.(MD)NO.48 OF 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.10.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.48 of 2013
Gose Mohammed ... Appellant /1st Defendant
Vs.
1. Kasim Abdul Razak
Rep. By his Power Agent,
Viswanathan.
2. Abdul Malik
3. Najmunisa
4. Sareen ... Respondents / Plaintiffs
5. Subaitha Beevi
6. Sara Beevi
7. S.M.N.S.M.Abdul Jabbar
8. S.M.N.S.M.Abdul Sukkur
9. S.M.N.S.M. Basheer Ahamed
10.Farook
11.Kalifulla
12.Rahmathullah(Died)
(Exemption has been granted from bringing on record the
LRs. as per Order dated 31.08.2018 in C.M.P.(MD)No.293 of
2018)
13.Pathurnisa Begum
14.Abdul Kalam Azath
15.The Sub Registrar,
Sub Registrar Office,
Aranthangi Town and Taluk,
Pudukkottai District. ... Respondents /Defendants 2 to 12
https://www.mhc.tn.gov.in/judis/
1/13
2 A.S.(MD)NO.48 OF 2013
Prayer: Appeal suit filed under Section 96 of C.P.C., to
allow the first appeal, set aside the judgment and decree
dated 30.11.2012 made in O.S.No.4 of 2012 on the file of the
Additional District Court, Pudukkottai and decree the suit as
prayed for.
For Appellant : Mr.A.Arumugam
For R-1 to R-4 : Mr.Thirunavukkarasu
For R-6 : Mr.K.Baalasundharam
For R-8 : Mr.P.Ganapathy Subramanian,
for Mr.T.Palaninathan
For R-15 : Mr.R.Ragavendran,
Government Advocate.
For R-5,
R-13&R-14 : No appearance.
***
JUDGMENT
The first defendant in O.S.No.4 of 2012 on the file of the
Additional District Court, Pudukkottai, is the appellant in this
first appeal.
https://www.mhc.tn.gov.in/judis/
3 A.S.(MD)NO.48 OF 2013
2. Respondents 1 to 4 herein filed the said suit seeking
the relief of partition. Suit items are four in number. The case
of the plaintiffs was that suit items 1 to 3 belonged to their
maternal grandfather Mohammed Noorudeen and that the
fourth item belonged to their maternal grandmother Osir
Beevi. Both the grandparents have since passed away.
Mohammed Noorudeen and Osir Beevi were blessed with
three daughters and one son. The daughers are Subaitha
Beevi, Sara Beevi and Sabiya Beevi and one son is Gose
Mohammed. Subaitha Beevi and Sara Beevi were defendants 2
and 3 in the suit. Gose Mohammed, the appellant herein was
the first defendant in the suit. Sabiya Beevi passed away on
13.08.1992 leaving behind her husband/first plaintiff herein
and her children/plaintiffs 2 to 4 herein. The specific stand of
the plaintiffs is that Mohammed Noorudeen and Osir Beevi
died intestate. The stand of the plaintiffs is that the first
defendant, son of Mohammed Noorudeen and Osir Beevi will
be entitled to two shares, while the remaining two daughters
will be entitled to one share each. The plaintiffs being the
legal heirs of the deceased daughter will be entitled to the
remaining one share. They contended that the first defendant
https://www.mhc.tn.gov.in/judis/
4 A.S.(MD)NO.48 OF 2013
was managing the properties all these years and that he had
also been making alienations. According to the plaintiffs, such
alienations will not bind their share. Since the first defendant
did not come forward for partitioning their 1/5th share in the
suit items, the plaintiffs were constrained to file the said suit.
The first defendant filed written statement controverting the
plaint averments. Based on the rival pleadings, the trial Court
framed the following issues:-
“ i) Whether the plaintiffs are entitled for
partition and separate possession as claimed in
the plaint?
ii) Whether it is true that Sabiya Begum
had given a hiba of her share in items 1 to 3 of
the suit properties to D-1?
iii) Whether it is correct to say that
settlement deed dated 07.02.2001 is not a
genuine one?
iv) Whether the plaintiffs are estopped
from claiming that item 4 of the suit property is
not partitioned?
https://www.mhc.tn.gov.in/judis/
5 A.S.(MD)NO.48 OF 2013
v) Whether it is true that D-4 to D-6 have
purchased item 3 of the suit property for
valuable consideration and are in possession
thereof?
vi) To what reliefs, the plaintiffs are
entitled to? ”
3. The Power Agent of the plaintiffs was examined as P.W.
1. The first plaintiff examined himself as P.W.2. Ex.A.1 to Ex.A.
11 were marked. On the side of the defendants, as many as
three witnesses were examined. On the side of the first
defendant, Ex.B.1 to Ex.B.3 were marked. After a
consideration of the evidence on record, the trial Court passed
preliminary decree dated 30.11.2012 as prayed for. The suit as
against the 12th defendant was dismissed. Aggrieved by the
same, the first defendant filed this appeal.
4. The learned counsel appearing for the appellant
submitted that while the fourth item belonged to Osir Beevi,
the other three items actually belonged to the first wife of
Sheik Ismail Rawther. Mohammed Noorudeen, father of the
https://www.mhc.tn.gov.in/judis/
6 A.S.(MD)NO.48 OF 2013
appellant and maternal grandfather of the plaintiffs was born
to Sheik Ismail Rawther through his first wife. It is the specific
stand of the appellant that Mohammed Noorudeen
predeceased Sheik Ismail Rawther. As per Mohammedan Law,
children born to predeceased son or daughter will not be
entitled to any share in the property. In this case, the son born
to the second wife of Sheik Ismail Rawther filed a partition
suit in O.S.No.265 of 1968 on the file of the District Munsif,
Pudukkottai against Sheik Ismail Rawther and others. In the
said suit, the appellant was figuring as the third defendant.
During the pendency of the said suit, Sheik Ismail Rawther
passed away and defendants 2 and 3 as well as the plaintiffs'
mother were impleaded as defendants 9 to 11. Though the suit
properties herein were not set out in the suit schedule, the
matter was eventually compromised. As per the compromise
memo, along with the other items suit items 1 to 3 were
allotted to the share of the appellant herein. The specific stand
of the learned counsel appearing for the appellant herein is
that the appellant is enjoying suit item 1 to 3 on the said
compromise decree. A suit for partition would be
maintainable, only if it can be shown that the plaintiff has
https://www.mhc.tn.gov.in/judis/
7 A.S.(MD)NO.48 OF 2013
common interest with the defendant. Since no common
interest has been shown by the plaintiffs and since they did
not have any right or share in the properties, the suit for
partition was clearly not maintainable. Therefore, the learned
counsel appearing for the appellant called upon this Court to
set aside the impugned judgment and decree and dismiss the
suit by allowing this appeal.
5. Per contra, the learned counsel appearing for the
plaintiffs submitted that the impugned judgment do not call
for any interference. The other learned counsel submitted that
they adopted all the arguments of the learned counsel for the
appellants.
6. The points for consideration arising in this appeal are
as follows:-
1. Whether the partition suit filed by
respondents 1 to 4 is maintainable?
2. Whether the plaintiffs have been
enjoying suit items 1 to 3 under Ex.B.1
compromise decree?
https://www.mhc.tn.gov.in/judis/
8 A.S.(MD)NO.48 OF 2013
3. Whether the appellant had established
his defence under the suit item 4 had already
been gifted to him by way of hiba by his sisters?
7. I carefully considered the rival contentions and went
through the evidence on record.
8. As already pointed out, the suit items are four in
number. The fourth suit item was admittedly purchased by
Osir Beevi under sale deed dated 28.09.1961. It was marked
as Ex.A.1. The appellant would claim that the said suit item
was gifted to him by way of hiba. To establish hiba, the
following three ingredients will have to be proved:-
(i) declaration of gift by the donor,
(ii) acceptance of the gift by the donee and
(iii) delivery of possession.
In this case, none of the three ingredients have been
established as regards suit item No.4. Therefore, the trial
Court was justified in coming to the conclusion that in as
much as it has not been shown that suit item No.4 was earlier
partitioned, the plaintiffs will be entitled to 1/5th share in suit
https://www.mhc.tn.gov.in/judis/
9 A.S.(MD)NO.48 OF 2013
fourth item. I therefore sustain the judgment as well as the
decree passed by the Court below in this regard.
9. Suit items 1 to 3 belonged to the first wife of Sheik
Ismail Rawther. Mohammed Noorudeen was born to her. It is
seen from Ex.B.1 that the son born to the second wife of Sheik
Ismail Rawther filed O.S.No.265 of 1968 on the file of the
District Munsif, Pudukkottai, seeking the relief of declaration
that he is entitled to suit ' A ' schedule properties and for
directing the defendants to put him in possession of ' B '
schedule properties. It is the admitted case of the appellant
that suit item Nos.1 to 3 did not originally form part of the suit
schedule in O.S.No.265 of 1968. During the pendency of the
proceedings, Sheik Ismail Rawther passed away and that is
how, his grand daughters Suabaitha Beevi, Sara Beevi and
Sabiya Beevi were impleaded as defendans 9 to 11. It is
admitted by the appellant in his deposition that all the three
grand daughters of Sheik Ismail Rawther remained ex-parte.
In the compromise decree along with other items, the present
suit items 1 to 3 were also included and allotted to the
appellant. There can be no dispute that the said compromise
https://www.mhc.tn.gov.in/judis/
10 A.S.(MD)NO.48 OF 2013
decree cannot be binding on any of the grand daughters. The
grand daughters remained ex-parte only because the present
suit items 1 to 3 were not part of the suit schedule originally.
In any event, from a reading of the appellant's deposition
given in the present proceedings, one can notice that Sabiya
Beevi, mother of the plaintiffs 2 to 4 was a minor during the
relevant time and that it was the appellant who had
represented her as guardian. Mohammed Noorudeen, father
of the appellant had already passed away. If that be so, Order
32, Rule 7 C.P.C., would come into play. Of course, Ex.B.1 has
been produced before the Court does not indicate Sabiya
Beevi was minor during the relevant time or that the appellant
had represented her as her guardian. But his admission before
the Court below was that he has represented as her guardian.
If that be so, no compromise could have been entered into
without the leave of the Court. It is nobody's case that such a
leave was obtained. The appellant Gose Mohammed had claim
over suit items 1 to 3 only in his capacity as the son of
Mohammed Noorudheen and not in any other capacity. The
appellant was on the same footing as that of the grand
daughter, namely, Sabiya Beevi. While Subaitha Beevi and
https://www.mhc.tn.gov.in/judis/
11 A.S.(MD)NO.48 OF 2013
Sara Beevi had got married by then, the mother of plaintiffs 2
to 4 herein was very much a minor and it was the appellant
who had represented her as a guardian. Therefore, the
appellant could not have acted to the prejudice of his sisters
and definitely not to the prejudice of the mother of plaintiffs 2
to 4 herein.
10. I therefore, come to the conclusion that allotment of
suit items 1 to 3 herein to the share of the appellant shall not
bind the sisters. That is why, the Court below had come to the
conclusion that the compromise decree under Ex.B.1 cannot
confer ownership on the first defendant in respect of suit
items 1 to 3.
11. In fact, the defence put forth by the appellant in the
written statement was that his sisters including the mother of
plaintiffs 2 to 4 herein had gifted their share in suit items 1 to
3 and only in confirmation of the same, Ex.B.1 compromise
was entered into. This theory of gift had not at all been
established by the appellant and the finding of the Court
below is clear. I am satisfied that the said finding of the Court
https://www.mhc.tn.gov.in/judis/
12 A.S.(MD)NO.48 OF 2013
below does not warrant any interference. However, taking
note of the sheer lapse of time the alienation made under
Ex.A.2 is sustained and the plaintiffs would be entitled to 1/5th
share only in the remaining properties.
12. The impugned judgment and decree is modified and
this appeal suit is partly allowed. No costs.
06.10.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: 1. 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.
2. Web copy of this order shall be
uploaded on 21.10.2021.
To:
1. The Additional District Judge,
Pudukkottai.
2. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/
13 A.S.(MD)NO.48 OF 2013
Note : Web copy of this order
shall be uploaded on
21.10.2021
G.R.SWAMINATHAN,J.
PMU
A.S.(MD)No.48 of 2013
06.10.2021
https://www.mhc.tn.gov.in/judis/
14 A.S.(MD)NO.48 OF 2013
https://www.mhc.tn.gov.in/judis/
