K.M.Mothi Kadhar vs J.Jannath
2022 Latest Caselaw 5626 Mad

                                                                          A.S.(MD)No.172 of 2019

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 21.03.2022

                                                        CORAM:

                                  THE HONOURABLE MS.JUSTICE R.N.MANJULA

                                           A.S.(MD)No.172 of 2019 and
                                           CMP(MD) No.8713 of 2019

                K.M.Mothi Kadhar                                   Appellant/1st Defendant

                                                         Vs.

                1.J.Jannath                                        Respondent 1/Plaintiff
                2.A.Janul Faritha
                3.M.Sithi Ayusha                                   Respondents/Defendants
                                                                                    2&3
                PRAYER: Appeal Suit is filed under Section 96 of the Civil Procedure Code,
                to set aside the judgment and decree dated 11.10.2018 allowing the suit made in
                O.S.No.17 of 2015, on the file of the II Additional District Court, Tuticorin.
                                       For Appellants      : Mr.V.Malaiyendran
                                       For R1              : Mr.H.Arumugam
                                       For R2              : Mr.B.N.Rajamohammed
                                       For R3              : Mr.N.Prahalathan

                                               JUDGMENT

This Appeal Suit has been filed challenging the judgment of the learned

Additional II Additional District Judge, Tuticorin, dated 11.10.2018, made in

O.S.No.17 of 2015

https://www.mhc.tn.gov.in/judis A.S.(MD)No.172 of 2019

2.The appellant is the first defendant in the suit. The first respondent is the

plaintiff and the second and third respondents are the defendants in the suit.

The suit has been filed by the first respondent/plaintiff for the relief of partition.

3.The facts of the case runs as under:-

The plaintiff and the defendants are the children of late Kasali Marakkayar; the

suit property was purchased by the father Kasali Marakkayar of the respective

parties, by virtue of a registered sale deed, dated 03.12.1971; Kasali

Marakkayar died on 05.01.2002 and his wife also died on 04.10.2014; the

plaintiff and the defendants are entitled to inherit the suit property of their

father as his legal heirs; since the defendants denied their entitlement and

attempted to alienate the same; the plaintiff has filed the suit for partition and

for separate possession of his 1/5 share in the suit property.

4.The first defendant alone has contested the suit by stating that during the life

time of his father, Kasali Marakkayar, he had gifted the suit property in his

favour by way of oral Hiba and he had accepted the gift; from then onwards, he

is in possession and enjoyment of the same; he has made improvements in the

suit property also by spending huge money; since he is the absolute owner of

the suit property, the plaintiff is not entitled to the relief of partition; in fact, the

https://www.mhc.tn.gov.in/judis A.S.(MD)No.172 of 2019

first defendant performed his sister's marriage by spending huge money; they

are also aware of Hiba made by their father in his favour and hence the suit has

to be dismissed.

5.On the basis of the rival submissions, the learned trial judge has framed the

following issues:-

1. 2k; gpujpthjp ghfg;gpuptpidf;F tpUg;gk; ny;iyah?

2.,nju gupfhuk; vd;d?

The learned trial judge has also framed the following additional issues:-

1.jgrpy; brhj;jpy; thjpf;F 1/5 ghfg;gpuptpidf;fhd Kjy;epiy :jPu;g;ghiz fpilf;fj;jf;fjh?

2.tUA;fhy nHg;gpid (Future mesne profit) epu;zak; bra;a BfhUk; gupfhuk; thjpf;F fpilf;fj;jf;fjh?

6.During the course of the trial, on the side of the plaintiff, the plaintiff himself

was examined as PW 1 and three documents have been marked as Ex.A1 to

Ex.A3. On the side of the defendants, three witnesses have been examined as

DW 1 to DW 3 and three documents have been marked as Ex.B1 to Ex.B3.

https://www.mhc.tn.gov.in/judis A.S.(MD)No.172 of 2019

7.At the conclusion of the trial and on considering the evidence on record, the

learned trial judge has passed a preliminary decree for partition and separate

possession of 1/5 share of the plaintiff. Aggrieved over the same, the first

defendant has preferred this Appeal Suit.

8.The learned counsel for the appellant/first defendant submitted that the father

of the appellant has gifted the suit property in his favour by virtue of oral Hiba

in the year 2001 itself and from then onwards, he has been enjoying the

property as its absolute owner and the plaintiff and the defendants 2 & 3 have

got no right over the said property; the evidence of DW 2 and DW 3, who stood

as witness for oral Hiba would prove that the father had gifted the suit property

to the appellant; but the learned trial judge has not framed any specific issue on

the aspect of oral Hiba and there was also no discussion on this issue; the

appellant /first defendant has proved that the oral gift made in his favour, by

examining DW 2 and DW 3 and hence, the appeal suit should be allowed, by

setting aside the judgment of the learned trial judge.

9.The learned counsel for the respondent submitted that there is no oral Hiba as

stated by the defendant and he has not proved the same before the court; the

learned trial judge has rightly observed that the revenue records continued to

https://www.mhc.tn.gov.in/judis A.S.(MD)No.172 of 2019

stand in the name of father of the parties Kasali Marakkayar and hence it is the

right for the trial Court to pass a preliminary decree for partition in respect of

1/5 share of the plaintiff.

10.Based on the rival submissions, I feel that the following points for

consideration are relevant for the disposal of this Appeal suit.

i. Whether the appellant /first defendant has proved the oral gift made in

his favour as alleged by him?

ii. Whether the judgment and decree of the trial Court in passing the

preliminary decree for partition of 1/5 share in favour of the first

respondent/plaintiff is fair and proper?

11.The relationship between the parties are not disputed. The fact that the suit

property was originally belonged to their father Kasali Marakkayar by virtue of

a sale deed, dated 03.12.1971 is also accepted. The contention of the

respondent/plaintiff was that until the death of their father, he was in enjoyment

of the suit property and as his legal heir and as per Muslim Law on partition,

she is entitled to a share along with the defendants. But, the appellant/defendant

would contend that during the life time of his father, he had gifted the suit

property by way of oral Hiba in the presence of a witness/DW 2 and in

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pursuance of that he was put into possession of the property, by way of handing

over the title deed to him. According to the appellant/first defendant, the

alleged oral Hiba was made in the year 2001. The father /Kasali Marakkayar

died in the year 2002. In the evidence of DW 1, he has not specified about the

date of oral gift. However he has stated that the father had gifted the property to

him in the month of December 2001.

12.DW 2 is said to be the distant relative for both the plaintiff and the

defendant. He has stated in his evidence that the father Kasali Marakkayar was

bed ridden and he had been to his house to visit him and enquire about his

health. He further stated that the said Kasali Marakkayar had given the title

deed of the suit property to the first defendant and told that he can enjoy the

property because he had convened the marriage of his daughters. But, his cross

examination would reveal that the father of the plaintiff was keeping good

health until his death and he died suddenly. His evidence is very specific on this

score. The relevant portion from the evidence of DW 2 is extracted as under:-

“thjpapd; je;ij ey;;y ciHg;ghsp vd;Wk; filrp fhyk; tiu ciHj;J bfhz;L jhd; nUe;jhu; vd;why; rupjhd;. mtu; “jpObud nwe;J tpl;lhu; vd;why; xU ehs; cly;epiy rupapy;yhky; nUe;J nwe;J tpl;lhu;. thjpapd; je;ij nwe;j BghJ ehd; cld; ny;iy. 20

https://www.mhc.tn.gov.in/judis A.S.(MD)No.172 of 2019

ehl;fs; fHpj;J Jf;fk; tprhupf;f brd;Bwd;. thjpapd; mk;khtpd;

bgau; bjupahJ.”

13.The above evidence of DW 2 speaks that the father of the plaintiff was not

ill or bedridden and he passed away suddenly. DW 1 had stated that he had

come to Tuticorin to enquire about the death of the father of the plaintiff after

20 days. His evidence would reveal that he is a resident of Coimbatore, but

Tuticorin is his native place. He has stated in his evidence that he has his

avocation in Coimbatore, but used to visit Tuticorin once in a month. It is

difficult to believe that the father of the first defendant had chosen a person,

who normally residing at Coimbatore to be a witness for oral Hiba.

14.In normal circumstances, if a person had stood as witness for oral Hiba, he

would immediately rush on hearing the death of the donor, in order to declare

about the oral gift made by him during his life time and he stood as a witness.

But, DW 2 has stated that he had come to the native place after 20 days on

hearing the death of Kasali Marakkayar. Atleast at that time, he had not

declared about the alleged oral Hiba made by Kasali Marakkayar in favour of

the first defendant by excluding his other legal heirs. It is true that an exclusive

sanctity is given to oral Hiba. But the facts about the oral Hiba should be

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natural and acceptable. In the given case, it is stated by DW 2 that possession of

the property has been given to the first defendant by handing over the title deed.

DW 1 was residing with his father in the same house until his death. Even his

evidence would reveal that only in the year 2004, he had purchased another

house at Muthamma Colony and from 2006, he started to live there. He has not

stated how the suit house was maintained. The fact about oral Hiba was not

revealed to any one and no steps have been taken by the first defendant to

transfer the legal records in his favour.

15.DW 1 would state that after the demise of his father, his mother let a portion

of the first floor to a Tailor for storing his clothes. The electricity card and

water tax continued to be levied in the name of father. DW 2 would state in his

evidence that the marriages of the daughters of Kasali Marakkayar were

performed by their father in a decent manner. In fact, the cross examination of

DW 2 would show that he was not even aware how he was related to the first

defendant. When the property is gifted orally, both the donor and the donee

would know about the practical inconvenience that would cause after the

demise of donor, if the oral Hiba is not made in a manner acceptable to all. It is

difficult to believe that a distant relative who did not even know about how he

was related to the donor had stood as a witness for oral Hiba. Since the mother

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was alive after the life time of the father, the natural conduct of the son would

be to get the Hiba confirmed by way of changing the revenue documents atleast

when the mother was alive and with her consent, the first defendant did not take

any such steps. He only claims that the father had handed over the title deed, in

the presence of a some strange witness.

16.The learned counsel for the respondent drew the attention of this Court to

the decision of the Honourable Supreme Court made in Jamila Begum(D)

through Lrs Vs.Shami Mohd (D) through LRs and another, reported in 2019

(3) MWN (Civil) 194, in support of his contention that the oral Hiba claimed by

the first defendant does not meet out the essential requirement for Hiba and the

ingredients of the Hiba were not proved by him. In the said judgment, the

conditions for making valid oral gift has been explained in detail, and it is

extracted as under:-

“21. Under the Mohammedan law, no doubt, making oral gift is permissible. The conditions for making valid oral gift under the Mohammedan law are:- (i) there should be wish or intention on the part of the donor to gift; (ii) acceptance by the donee; and (iii) taking possession of the subject matter of the gift by the donee. The essentials of a valid and complete gift under Mohammedan law have

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been succinctly laid down in Abdul Rahim and Others v. Sk. Abdul Zabar and Others (2009) 6 SCC 160 as under:- “13. The conditions to make a valid and complete gift under the Mohammadan law are as under:

(a) The donor should be sane and major and must be the owner of the property which he is gifting.

(b) The thing gifted should be in existence at the time of hiba.

(c) If the thing gifted is divisible, it should be separated and made distinct.

(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.

(e) The thing gifted should not be accompanied by things not gifted i.e. should be free from things which have not been gifted.

(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.

14. It is also well settled that if by reason of a valid gift the thing gifted has gone out of the donee’s ownership, the same cannot be revoked. The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor

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either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.

22. In the light of the above principles, let us consider whether the oral gift pleaded by the respondent-plaintiff satisfies the essential conditions of oral gift and in particular, whether possession has been established by respondent No.1-plaintiff. The respondent No.1- plaintiff claims through oral gift followed by the Will dated 30.09.1970. As discussed earlier, tenants were in occupation of the suit house. Respondent-plaintiff has not proved as to how at the time of oral gift, the possession was delivered to him. Nothing is brought on record to show that respondent No.1-Shami Mohd. has taken any steps to get the property mutated in his name. Likewise, nothing is brought on record to show that pursuant to the oral gift, the respondent-plaintiff collected rent from the tenants or paid house tax, water tax, etc. The essential conditions to make a valid gift under the Mohammedan law have not been established by the respondent-plaintiff to prove the oral gift in his favour. In the absence of any proof to show that the possession of the suit property was delivered to him, the oral gift relied upon by the respondent-plaintiff ought not to have been accepted by the courts below”

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17.The learned trial judge has not framed any specific issue on the aspect of the

validity of the oral Hiba. However, the learned trial judge had appreciated the

continual assessment made in the name of the father and non-mutation of

revenue records, in the name of the appellant/first defendant. Being a son, who

lived with his father in the same house, it is always possible for the

appellant/first defendant to get possession of 6the title deed of his father.

Hence, the production of the title deed by the defendant alone will not

strengthen his claim for oral Hiba. He cannot set up oral Hiba by producing

some unrelated person as a witnesses. Since it is proved before the Court that

the said Kasali Marakkayar died intestate leaving the plaintiff and the

defendants as his legal heirs, they are entitled to their respective shares as per

the term of the Mohamedan Law on partition. The learned trial judge has rightly

appreciated the facts and law and allotted 1/5 share to the plaintiff. It is rightly

observed as per the Mohamedan Law, if the father dies intestate, the son would

get two share and the daughter would get one share in the properties. By

applying the above terms of the division, the learned trial judge has allotted 1/5

share in favour of the plaintiff, who is a daughter and passed a preliminary

decree for partition and separate possession. In my considered view, the above

judgment and decree passed by the learned trial judge does not suffer from any

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illegality or infirmity except the fact that specific issue has not been framed on

the contention of oral Hiba, though there was discussion to that effect. Thus,

the points are answered against the appellants.

18. In the result, the appeal suit is dismissed and the judgment of the learned II

Additional District Court, Tuticorin, made in O.S.No.17 of 2015, dated

11.10.2018 is hereby confirmed. No costs. Consequently, connected

Miscellaneous Petition is closed.

21.03.2022

Index : Yes / No Internet : Yes / No vrn

To

1.The II Additional District Court, Tuticorin

2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis A.S.(MD)No.172 of 2019

R.N.MANJULA, J.,

vrn

JUDGMENT MADE IN A.S.(MD)No.172 of 2019 and CMP(MD) No.8713 of 2019

21.03.2022

https://www.mhc.tn.gov.in/judis