Madras High Court
Sabi Ammal vs Julaiha .. 1St on 10 March, 2022
A.S(MD).No.212 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 10.03.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S(MD).No.212 of 2018
Sabi Ammal .. Appellant/2nd defendant
Vs.
1.Julaiha .. 1st respondent/Plaintiff
2.Meharunnisa .. 2nd Respondent/1st Defendant
Prayer : This Appeal Suit is filed under Order 41 Rule 1 of the Civil
Procedure Code, against the judgment and decree passed in O.S.No.84 of
2013 dated 30.10.2015 on the file of the 2nd Additional District and
Sessions Judge, Thanjavur.
For Appellant : Mr.K.Vaithilingam
For Respondents : Mr.G.Karnan
1/12
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and decree
in O.S.No.84 of 2013 dated 30.10.2015 passed by the learned II
Additional District and Sessions Judge, Thanjavur.
2. The appellant is the second defendant. The first respondent/plaintiff
has filed the suit for the relief of declaration in respect of the ½ share in
the suit property and also for partition and separate possession of ½ share
of the suit property. According to the case of the plaintiff, the suit and
other properties situated in Eduthupattarai Theru, Ammapettai belonged
to her father late. Mahamed Salih; the plaintiff and the defendants 1 and 2
are the children of late Mahamed Salih; the father of the plaintiff gifted
the property situated in Eduthupattarai Theru in favour of the first
defendant and he gifted the suit property in favour of the defendants 1
and 2 by way of Hibas; the gift was executed in a form of written
document; apart from that, the father of the plaintiff had deposited a sum
of Rs.6,00,000/- (Rupees Six Lakhs only) in Indian Bank; the plaintiff
demanded partition of her ½ share from the second defendant by sending
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
legal notice on 27.04.2013; the second defendant sent a reply notice
stating that the father of the plaintiff had given the entire suit property
and the bank deposit to herself; since the second defendant refused to
come forward to partition the suit property. The plaintiff filed the suit for
the above reliefs.
3. The first defendant admitted the case of the plaintiff. The second
defendant contested the suit by stating that the suit property originally
belonged to the father of her father, namely, Kader Badsha; he died
leaving his only son Mohamed Salih who is the father of the parties in the
suit and one sister, by name, Habbibunnisa; the said Habbibunnisa did
not have any issues; after the death of her grandfather, her father and his
sister Habbibunnisa inherited the house properties as legal heirs; the
second defendant only took care of her father and her paternal aunt -
Habibunnisa; during the last days her paternal aunt - Habibunnisa
pronounced a declaration of Hiba by declaring that the second defendant
is entitled to get her half share in the suit property; since the second
defendant is having half share by way of above said declaration of Hiba
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
and another 1/3rd share as a legal heir of her father, the plaintiff cannot
claim title for ½ share in the suit property; though it is alleged that the
father had executed another Hiba, the property involved in the said Hiba
was not included in the suit property; hence, the suit is hit by partial
partition; the entire properties are in the possession and enjoyment of the
second defendant; even during the marriage of the plaintiff and the first
defendant, they were given with sufficient jewels and ‘seer varisai’ by her
father; when the second defendant was given in marriage, she was not
presented with sufficient jewels or any other articles; the father of the
plaintiff had given money in his bank deposit to his son for his education
and marriage expenses; hence, the plaintiff is not entitled for the relief
prayed for.
4. On the basis of the above pleadings, the learned trial Judge had framed
the following issues:-
''(i) Whether the plaintiff is entitled to a partition of ½
share in the suit properties as prayed for?
(ii) Whether the allegation that the plaintiff is not in
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
possession of suit property and Court fee paid is not correct
is true?
(iii)To what relief the plaintiff is entitled to?''
5. During the course of trial, on the side of the plaintiff, two witnesses
were examined as P.W.1 and P.W.2 and four documents were marked as
Exs.A1 to A4. On the side of the defendant, four witnesses were
examined as D.W.1 to D.W.4 and four documents were marked as
Exs.B1 to B4.
6. The learned trial Judge, after examining the evidence available on
record, decreed the suit as prayed for in respect of ½ share in respect of
the suit immovable property and to that effect a preliminary decree was
passed. In respect of 2nd item of the suit property, which is a fixed
deposit, the suit was dismissed. Aggrieved over that, the second
defendant has preferred this appeal.
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
7. During the course of arguments, the learned counsel for the appellant
submitted that the father of the parties to the suit, namely, Mohamed
Salih has executed two gift deeds (Hiba) on 26.11.2009. Mohamed Salih
is said to have gifted certain properties to the plaintiff and the second
defendant by way of gift deeds; in Ex. B1 signature is affixed but in
Ex.B2 thumb impression is affixed and this itself would create doubts in
the execution of the gift deeds as stated by the plaintiff; The the Notary
Public who had attested the gift deeds was examined as P.W.2; in his
evidence, he has deposed that he obtained signatures in both the deeds at
one and the same time; he has further stated that the signatures in Ex.B1
is not clear and hence he obtained his thumb impression in the other
document; Ex.B1 would show that the signatures are very clear and there
is no confusion to read his signatures; and hence alleged circumstances
which needed to get thumb impression in the other deed is unbelievable;
further, the documents were not sent for the examination of finger print
experts and hand writing experts in order to prove the genuineness of the
execution of the gift deeds; the learned trial Court had overlooked all
these material facts and arrived at a finding that gift deeds are genuine
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
and decreed the suit partially in favour of the plaintiff and hence, it has to
be set aside.
8. The learned counsel for the respondent stated that the Notary Public
himself has explained as to the circumstances under which the thumb
impression was obtained from Mohammed Salih in Ex.A1 and that has
been properly appreciated by the trial judge. The appellant/second
defendant was examined as D.W.2, and she herself had admitted about
the execution of Ex.A1 and hence, he is estopped from challenging the
same now; the evidence available on record has been properly
appreciated by the learned trial Judge and it warrants no interference.
9. On the basis of the rival submissions made by the parties, I feel that the
following points for consideration are relevant for the disposal of this
Appeal:
i) Whether the finding of the trial Court that the gift deeds
Exs.A1 and B1 are genuine and valid, is correct?
ii) Whether the judgment and decree of the trial Court in
decreeing the suit in respect of the half share in respect of
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
the first schedule property and passing preliminary decree
to that effect, is fair and proper?
10. The relationship between the appellant/defendant No.2, first
respondent/plaintiff and second respondent/defendant No.1 is not
disputed. Though it is stated by the appellant/second defendant that the
suit properties belonged to grandfather, namely, Kadar Badsha, during his
cross-examination, he has given a proper admission that properties have
been purchased by his father all his three sisters got married during the
life time of his father and all are living with their respective family
members. The appellant/second defendant claimed that her paternal aunt
namely, Habibunnisha is also entitled to a share in the suit property and
in respect of which she had declared Hiba in favour of appellant/second
defendant. The fact remains that the suit properties are the self acquired
properties of her father. Under such circumstances, the paternal aunt -
Habibunnisha would not have any right in the suit properties. The
appellant/second defendant herself admitted in her cross- examination
that the copy of Ex.B1 has been given to her by the son of the first
defendant during the life time of her father; despite she claims that Ex.B1
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
is not genuine, she did not object about the same when his father when he
was alive. Neither she had taken any legal action to challenge the same.
11. Being a daughter of a Muslim, the appellant/second defendant would
know about the impact of gift deeds. The second defendant did not
challenge the same on the ground that Ex.B1 causes doubt. The
appellant/2nd defendant had stated in her evidence that she has studied
upto 8th standard and she is able to read the Tamil letters in the copy of
the gift deed handed over to her.
12. In respect of the second item of the property which is a bank deposit,
she has stated that the same was given to her by her father himself. Her
evidence would show that he was alive at the time when the Hiba is
executed. With regard to the obtaining thumb impression in Ex.B1, the
Notary Public who had attested Ex.B1, has stated in his evidence about
the circumstances under which thumb impression was obtained in Ex.A1
and signature was obtained in Ex.B1 from the executant - Muhammad
Salih. He would clarify in his evidence that Muhammad Salih affixed
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
his signature in Ex.B1 and it was not clear and once because of that he
obtained thumb impression in the other deed.
13. A perusal of the signature found in Ex.B1 would show that it is
similar to the signature put by aged persons affected by senility. Even in
the records maintained by the Notary Public, it is seen that Mohammed
Salih has fixed his thumb impression Ex.X1 and X2; so the evidence on
record and a harmonious reading of these records would show that Ex.A1
and Ex.B1 are not tainted with any suspicion.
14. The learned Trial Judge has properly appreciated the evidence
available on record and arrived at a correct conclusion that the gift
documents executed by the father of the respective parties are true and
genuine and in consequences thereof, he granted the relief in respect of
item No.1. In my considered view, the judgment and decree of the trial
Court does not suffer from any factual or legal infirmity and it does not
warrant any interference. Thus, the points are answered against the
appellants.
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
In the result, this Appeal Suit is dismissed and the judgment and decree
passed in O.S.No.84 of 2013 dated 30.10.2015 on the file of the learned
2nd Additional District and Sessions Judge, Thanjavur is confirmed. No
Costs.
10.03.2022
Index : Yes/No
Internet : Yes/No
tta
To
1. learned Additional District and Sessions Judge, Theni.
2.The Section Office,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
A.S(MD).No.212 of 2018
R.N.MANJULA, J.
tta
A.S(MD).No.212 of 2018
10.03.2022
https://www.mhc.tn.gov.in/judis
