Madras High Court
Rahumansait vs Bavujiya Begam on 12 April, 2022
A.S.(MD)No.18 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.04.2022
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
A.S.(MD)No.18 of 2017
and
C.M.P.(MD)No.1146 of 2017
1.Rahumansait
2.Mansoor Ali ... Appellants/Defendants
Vs.
1.Bavujiya Begam
2.Shakila Begam ... Respondents/Plaintiffs
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, against
the judgment and decree dated 17.09.2016 in O.S.No.37 of 2014 on the file of
the learned Principal District Judge, Karur.
For Appellants : Mr.K.Govindarajan
For Respondents : Mr.A.Arumugam,
For M/s.Ajmal Associates.
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A.S.(MD)No.18 of 2017
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and decree of the
learned Principal District Judge, Karur, dated 17.09.2016 made in O.S.No.37 of
2014.
2.The appellants are the defendants in the suit; the suit has been filed by the
plaintiffs for the relief of partition and mesne profits; the plaintiffs are the
sisters of the defendants; the suit properties belonged to their father namely,
Shahul Hameed; he purchased the said properties by virtue of four sale deeds
dated 23.09.1977, 18.10.2000, 21.09.2000 and 14.07.2000; the properties are
in possession and enjoyment of their father; Shahul Hameed was affected by
brain fever and he was bedridden for two years; thereafter he became
unconscious and died on 21.05.2012 and his wife also died on 09.08.2013;
hence, the plaintiff and the defendant, who are the children of late.Shahul
Hameed are his legal heirs and they are entitled to their share in the suit
properties; since the plaintiffs came to know that the defendants had created
some documents in respect of the suit properties, they made enquiries and came
to know that a settlement deed dated 12.07.2011 seem to have been executed in
their favour; the father was not sound disposing state of mind and the gift deed
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A.S.(MD)No.18 of 2017
did not come into force; hence, the plaintiffs are entitled to shares in the suit
properties and called upon the defendants to allot their lawful shares; since the
defendants refused, the suit has been filed; apart from the suit items 1 to 9, the
plaintiffs' mother had left 21 sovereigns and cash of Rs.50,000/-, which were
shown as items 10 and 11; the plaintiffs are entitled to their lawful share in
those items as well.
3.The defendants resisted the suit despite they admit their relationship with the
plaintiffs; it is submitted that the suit items 1 to 9 were settled in favour of the
defendants by their father/Sahul Hameed on 12.07.2011, when he was in sound
and disposing state of mind; the gift deed was accepted by the defendants and
the properties were also delivered to them; subsequent to the gift deed, the
defendants are in exclusive possession and enjoyment of the properties; it is
false to say that the mother had left 21 sovereigns of her jewels and cash of Rs.
50,000/-; the plaintiffs were never in joint possession and enjoyment of the
properties and hence, the suit should be dismissed.
4.Basing of the above pleadings, the learned trial Judge framed the following
issues:-
“1.Whether the plaintiffs are entitled for 1/6 share each in the suit
properties?
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A.S.(MD)No.18 of 2017
2.To what relief are the plaintiffs entitled?”
5.During the course of trial, on the side of the plaintiffs, one witness was
examined as P.W.1 and Exs.A1 to A10 were marked. On the side of the
defendants, two witnesses were examined as D.W.1 and D.W.2 and Exs.B1 to
B11 were marked.
6.At the conclusion of the trial and on considering the evidence available on
record, the learned trial Judge decreed the suit in respect of items 1 to 9 of the
suit properties and dismissed the suit as against items 10 and 11. Aggrieved
over that the defendants have filed this Appeal Suit.
7.Heard the learned counsel for the appellants and the learned counsel for the
respondents and went through the evidence on record.
8.The learned counsel for the appellants submitted that the learned trial Judge
had accepted the fact that Shahul Hameed was in fit state of mind while
executing the gift deed; however, the learned trial Judge had opted to decree the
suit on the basis that delivery in pursuance of the gift deed was effected; since
the father and the appellants were living together, they continued to be in
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A.S.(MD)No.18 of 2017
possession of the suit properties; it is impractical to expect that the appellants to
throw away their father from the properties just because he executed the gift
deed and thereby prove delivery was effected; the mutation of the revenue
records did not take place just for giving due regard to the father and that had
been mutated subsequent to his death; the trial Court had accepted that the gift
deed was executed by Shahul Hameed, when he was in sound state of mind;
hence, the suit ought to have been dismissed; the constructive possession can
also amount to delivery; in that aspect, the Honourable Supreme Court has held
in the case of Abdul Rahim and Others vs. Abdul Zabar and Others (reported
in MANU/SC/0379/2009); hence, the appeal should be allowed.
9.The learned counsel for the respondents submitted that since the parties are
covered under Mohammedan Law, they have to prove that the alleged gift deed
dated 12.07.2011 had met the three basic requirements contemplated under
Muslim Law for gifts; the learned trial Judge had rightly held that the
possession of the properties were not given to the appellants and one of the
ingredients of the gift was not proved; even from the evidence of P.W.1, the
executant of the gift deed namely, Shahul Hammed was also in joint possession
along with the appellants till his life time; it is not necessary to prove the
factum of delivery that sons should throw away their father from the properties;
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A.S.(MD)No.18 of 2017
but that could have been proved by mutation of revenue records or in any other
manner known to law; since the appellants failed to prove the compliance of the
essential ingredients of gift under Mohammedan Law, the judgment of the
learned trial Judge holds good and it does not require any inference.
10.Point for consideration:
“Whether the judgment and decree by passed the learned trial
Judge is fair and proper?”
11.The relationship between the parties is admitted. The fact that suit items 1 to
9 belonged to their father namely, Shahul Hameed is also not disputed. Even
though the suit was dismissed as against items 10 and 11, the plaintiffs have not
filed any appeal. The original owner of the suit items 1 to 9 namely, Shahul
Hameed died on 21.05.2012 and his wife also died on 09.08.2013. Hence, the
plaintiffs, who are the daughters and the defendants, who are the sons alone are
the legal heirs of late.Shahul Hameed. The respondent claimed partition by
alleging that as the legal heirs of their father, they are entitled to 1/3rd share in
the suit properties. The appellants had stated that even during the life time of
their father, he executed a gift deed dated 12.07.2011 in their favour and the
settlement deed had come into force and hence, the respondents do not have any
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A.S.(MD)No.18 of 2017
share in the suit properties. Though it is claimed by the respondents that their
father could not be in a sound disposing state of mind while executing the gift
deed, the said argument was not accepted by the learned trial Judge. The
learned trial Judge had rendered a finding that the father was in fit state of mind
at the time, when the gift deed/Ex.B1 was executed. But the learned trial Judge
had observed that under Section 149 of the Transfer of Property Act, the
validity of the gift deed should be proved by establishing the following three
ingredients:-
“(a) Declaration of gift by the donor.
(b) Acceptance of the gift.
(c) Delivery of possession.”
12.The learned counsel for the respondents submitted that since the parties are
Mohammedans even without the aid of Transfer of Property, they will be
governed by their personal law, which governs Hiba (gifts); even under Hiba,
the above ingredients have to be established. Apart from that, it should be
established that the donor was in sound disposing mind and he had executed the
gift deed by being aware of doing the said act. Though the learned trial Judge
had rendered a finding as to the sound disposing statement of mind about
Shahul Hameed while executing the gift deed, that was not objected by the
respondents also by way of filing any cross objection. However, the appellants
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A.S.(MD)No.18 of 2017
have to establish that the gift deed was accepted and it was acted upon. Even
the appellants would say that they accepted the gift deed executed by their
father. But the crux of the issue lies on the third ingredient namely, delivery of
possession. The executant being the father, he was living along with his sons
until his life time. The evidence of P.W.1 would show that the father was in
joint possession and enjoyment of the suit properties along with the sons till his
life time.
13.In order to prove possession, it would be convenient, if the appellants could
prove that by virtue of the gift deed, the revenue records were mutated in their
name. Admittedly, the revenue records continued to stand in the name of the
father till his death. In the absence of mutation of revenue records, the delivery
of possession could have been proved by any other means and established that
the gift deed had come into force and that the appellants were in possession of
the suit properties as its lawful owners. Neither the pleadings nor the evidence
of the appellants would show that whether the gift deed was handed over in the
presence of some one to the appellants immediately after the execution was
completed. The constructive possession like handing over the keys or any other
objects connected to possession seems to have been delivered to the appellants
subsequent to the gift deed.
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14.Though it has not been practical that the father should be thrown away from
the suit properties to prove the exclusive possession of the appellants, the other
constructive manner in which, the completion of handing over the possession
could have been proved. But the appellants failed to prove that effective
possession was given to them subsequent to the gift deed and thereby, the gift
deed was acted upon. Since one of the essential ingredients of gift is not
complied with, the learned trial Judge held that the gift deed has not been acted
upon.
15.In my considered view, the above finding of the learned trial Judge does not
suffer from any factual or legal infirmity. In consequence thereof, it is also
right on the part of the learned trial Judge to allot shares for the respondents.
As per Mohammedan Law, the daughters and sons are entitled to inherit the
properties of their father as residuaries. As per Muslim Law, the son would get
the double the share of the daughter. In view of the same, the learned trial Judge
had allotted 1/6th share to each of the respondents. Such apportionment of share
also is legally correct. Hence, the judgment and decree of the learned trial
Judge does not require any inference.
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A.S.(MD)No.18 of 2017
16.In the result, this Appeal Suit is dismissed and the judgment and decree of
the learned Principal District Judge, Karur, dated 17.09.2016 made in
O.S.No.37 of 2014 is confirmed. No costs. Consequently, connected
miscellaneous petition is closed.
12.04.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
The Principal District Court,
Karur.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.18 of 2017
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A.S.(MD)No.18 of 2017
R.N.MANJULA, J.
ias
A.S.(MD)No.18 of 2017
12.04.2022
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