Madras High Court
Tajunisha Begum vs Nagore Ghani on 27 October, 2022
AS(MD)No.90/2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.10.2022
CORAM
THE HON'BLE MRS JUSTICE J. NISHA BANU
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
AS (MD)No.90 of 2013
and MP(MD) No.1 of 2013
1.Tajunisha Begum
2.Minor L.Osama
3.Minor K.Abdul
Minor petitioners 2 and 3 represented
by their mother 1st petitioner
.. Appellants/
Plaintiffs
Vs.
1.Nagore Ghani
2.Rashida Begum
3.N.Fathima
4.N.Muthu
5.Minor N.Nisha
6.Minor N.Shahul Hameed
7.Amir Ghani
Page 1 of 14
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
8.Mookammal
9.Life Insurance Corporation of India
Divisional Office,
Jeevan Prakash
Gandhiji Road
Thanjavur
10.Life Insurance Corporation of India
Unit II, Madurai Road
Tiruchirappalli 620 001.
11.Indian Overseas Bank
Vayalur Road Branch
Tiruchirappalli
12.Indian Overseas Bank
Main Guard Branch
Tiruchirappalli
13.Vijaya Bank
Salai Road Branch
Tiruchirappalli
14.Bank of Maharashtra
Chinnakadai Street Branch
Tiruchirappalli
15.John Moses
16.Sumi Colour Galaxy
17.Reliable Gas Services
No.10E/3 Sastri Road
Tennur, Trichy 17
By its partners, APK Moorthy and APK Ashok
Page 2 of 14
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
18.M/s.TTK Prestige Limited,
KSR Building, Ramamoorthy Nagar
Chinthamani
Tiruchirappalli.
19.Victor
20.Masi
21.Muthu
22.Pitchaiammal
23.Pattayadar
24.Periyasamy
25.Mayavan
26.Alagesan
27.Prakash : Respondents/
defendants
(Respondents 11,14,20,21,23,24,26,27 exparte in lower Court)
Prayer: Appeal Suit is filed under Section 96 of the Code of Civil Procedure
against the judgment and decree dated 20.12.2012 made in O.S.No.28/2008
on the file of the II Additional District and Sessions Judge, Tiruchirappalli.
For appellants : Mr.K.K.Senthil
For respondents : Mr.C.Godwin for R9 & R10
For RR1 to 6, 7, 12,13,15 to
17 & 25 – No appearance
Page 3 of 14
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
JUDGMENT
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
This appeal has been filed by the plaintiffs challenging the judgment
and decree passed in O.S.No.28/2008 by the II Additional District and
Sessions Judge, Tiruchirappalli, dated 20.12.2012, whereby the plaintiffs
were granted a preliminary decree only for 5/6th share in the first item of the
'A' schedule property and insofar as the other items of suit property, the suit
came to be dismissed.
2.The case of the plaintiffs is that the suit properties described in
schedule 'A and C' originally belonged to one K.S.Hameed @ Shahul
Hameed. He had two sons and two daughters. One of the son Kadhar
Ismail predeceased on 03.01.2007 leaving behind the plaintiffs as his legal
heirs. The said K.S.Hameed @ Shahul Hameed died on 26.07.2007. His
wife Nisha Begum died in the year 1993 itself. Thus, according to the
plaintiffs, the plaintiffs 2 and 3 and defendants 1,7 and 8 are the legal heirs
of K.S.Hameed @ Shahul Hameed.
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
3.The further case of the plaintiffs is that K.S.Hameed @ Shahul
Hameed through a Hibba gifted the properties described in 'A' schedule in
favour of Kadhar Ismail. On the demise of Kadhar Ismail, the properties had
devolved upon the plaintiffs. Accordingly, the plaintiff claimed 5/6th share
in the 'A' schedule property. The 'B' schedule property is the insurance
policies taken during the lifetime of Kadhar Ismail and the plaintiffs are
entitled for 5/6th share in the 'B' schedule property also.
4.The grievance of the plaintiffs is that immediately after the death of
Kadhar Ismail, due to the instigation of the first and second defendants, the
first plaintiff was driven out of the matrimonial home, thereby an attempt
was made to deprive the plaintiffs of any share in the suit properties. Later,
the plaintiffs came to know that K.S.Hameed @ Shahul Hameed had
executed a Will dated 17.03.2005 and as per the Will, the second and third
plaintiffs are entitled for ½ share of the properties left behind by
K.S.Hameed @ Shahul Hameed.
5. In view of the above, the plaintiffs were claiming for 1/5th share in
'A and B' schedule properties and ½ share in the 'C and D' schedule
properties.
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
6. The defendants contested the suit mainly on the ground that the
plaintiffs are not entitled to get any share in the suit properties, more
particularly, after the demise of Kadhar Ismail. They also denied the Hibba
and the Will sought to be introduced by the plaintiffs after the suit was filed.
Accordingly, they sought for the dismissal of the suit.
7. Based on the pleadings, the trial Court framed the following issues:
1.Whether the plaintiffs are entitled to 5/6th share in suit
B schedule property?
2.Whether the plaintiffs are entitled to half share in the
suit B and C schedule properties?.
3.Whether the defendants have to give true accounts for
the properties derived from the suit properties?
4.Whether the plaintiffs are entitled to the mandatory
injunction in respect of B schedule property?
5.To what relief?”
8. The following additional issues were also framed:
1.Whether the unregister Will dated 17.03.2005 is true,
genuine and valid?
2.Whether the plaintiffs can claim right, title under the
Will?
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
9. The plaintiffs examined P.W.1 to P.W.4 and marked Ex.A1 to
Ex.A22. The defendants examined D.W.1 to D.W.3 and marked Ex.B1 to
Ex.B25. The trial Court, on appreciation of the evidence available on
record, came to a conclusion that the plaintiffs are entitled only for 5/6 share
in the first item of 'A' schedule property and with respect to the share
claimed for all the other properties, the suit was dismissed. Aggrieved by
the same, the plaintiffs have filed this appeal.
10. Heard the learned counsel for the appellants and the learned
counsel appearing on behalf of the respondents 9 and 10.
11. The following points for consideration arises in this appeal:
“(a) Whether the plaintiffs have established the Hibba
said to have been given by K.S.Hameed @ Shahul Hameed in
favour of Kadhar Ismail, who is the husband of the first
plaintiff.
(b)Whether the Will dated 17.03.2005 has been proved
by the plaintiffs?
(c)Whether the plaintiffs are entitled for any share in
the suit schedule properties apart from the share allotted to
them in the first item of the A schedule property? and
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
(d) Whether the judgment and decree passed by the
Court below requires the interference of this Court.”
12. The plaintiffs are the wife and two sons of Kadhar Ismail. The
said Kadhar Ismail died on 13.01.2007. According to the plaintiffs, a Hibba
was given in favour of Kadhar Ismail on 21.03.2004 in the presence of three
named persons. The defendants had categorically denied the Hibba. Since
the plaintiffs were relying upon the Hibba, the burden of proof is upon the
plaintiffs to prove the same. It is true that Hibba can be oral and it need not
be in writing or through a registered document. In view of the fact that the
defendants had denied the very existence of the Hibba, the plaintiffs ought
to have atleast examined one witness in whose presence the Hibba was
given in favour of Kadhar Ismail. However, nobody was examined. P.W.4
was examined on the side of the plaintiffs on the ground that he prepared
the draft of Ex.A21, which is the Hibba settlement deed said to have been
executed by K.S.Hameed @ Shahul Hameed. This witness has clearly
deposed that he was not aware about anything regarding Ex.A21. P.W.3, in
his evidence, has clearly stated that the possession of the property was not
handed over. Hence, neither the Hibba has been proved nor the handing
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
over of possession has been proved and on carefully going through Ex.A21,
this Court also finds that the word, “Will” has also been mentioned in the
document. In view of the same, there is also a suspicion about the
document.
13. The Court below has properly appreciated the evidence in this
regard and has held that the Hibba has not been proved by the plaintiffs and
this Court does not find any ground to interfere with the said finding. The
first point for consideration is answered accordingly.
14. Insofar as the Will dated 17.03.2005, this was not even relied
upon by the plaintiffs and it was introduced much later during the pendency
of the suit, at the time of trial. P.W.1 and P.W.2 were examined to prove the
Will. P.W.1 had admitted that at the time when the Will was executed, he
was actually confined at Central Prison, Tiruchirappalli. Hence, he could
not have attested the Will. This Will was brought in after nearly five years
and it is clear from the evidence that it was manufactured only for the
purpose of the case and in any event, the plaintiffs did not even plead about
this Will.
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
15. The Court below rightly rejected the Will and found it to be a
suspicious one and this Court does not find any ground to interfere with the
said finding. The second point for consideration is answered accordingly.
16. Since this Court has found that neither the Hibba nor the Will has
been proved, the only other avenue that is open to the plaintiffs is to see
whether they are entitled to any share as per the law of inheritance under the
Muslim Law. It is an admitted case that Kadhar Ismail predeceased his
father. Under Mohammedan Law, the heirs of the predeceased son are not
entitled to any share in the property. Hence, the plaintiffs cannot claim any
share as a matter of right. Insofar as the A schedule property is concerned,
Ex.A22 settlement deed has been filed and it is seen that K.S.Hameed @
Shahul Hameed had settled an extent of 6500 sq. ft. in favour of Kadhar
Ismail and this property is the first item in the 'A' schedule property. The
Court below, on considering the same, has come to the conclusion that the
plaintiffs are entitled for 5/6th share in the first item of the 'A' schedule
property and the Court below found that the plaintiffs are not entitled for
any share in the other properties.
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
17. This Court finds that the finding rendered by the Court below
does not suffer from any infirmity except regarding the 'B' schedule
property. The 'B' schedule property is the insurance policy that was taken in
the name of Kadhar Ismail. The 9th defendant in his written statement has
stated that Kadhar Ismail has taken two life insurance policies and a total
sum of Rs.6,10,000/- was assured and that the defendants are ready to
deposit the amount in the Court, if any orders are passed. Obviously on the
demise of Kadhar Ismail, the plaintiffs will be entitled for 5/6th share in the
'B' schedule properties. The Court below has failed to take note of this
crucial fact. In the considered view of this Court, the plaintiffs will be
entitled for 5/6th share in the 'B' schedule property. The third point for
consideration is answered accordingly.
18. This Court finds that the interference with the judgment and
decree passed by the Court below is required only insofar as the 'B' schedule
property is concerned. That apart, there is absolutely no ground to interfere
with the findings of the Court below in other aspects and the same has been
arrived at after proper appreciation of the oral and documentary evidence.
The fourth point for consideration is answered accordingly.
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
19. In view of the above discussion, the judgment and decree passed
by the Court below in O.S.No.28 of 2008 dated 20.12.2012 is modified in
the following manner:
(a) the plaintiffs are entitled for 5/6th share in the first item of the 'A'
schedule property;
(b) the plaintiffs are entitled for 5/6th share in the 'B' schedule
property; and
(c) the other claims made by the plaintiffs stand rejected and to that
extent, the judgment and decree passed by the Court below stands
confirmed.
20. In the result, this appeal is allowed in part to the extent indicated
hereinabove. However, there shall be no order as to costs. consequently
connected Miscellaneous Petition is closed.
(J.N.B.,J.) (N.A.V.,J.)
27.10.2022
Index : Yes/No
Internet : Yes
RR
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
To
1.The II Additional District and Sessions Judge
Tiruchirappalli.
2.The VR Section
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
AS(MD)No.90/2013
J. NISHA BANU,J.
and
N. ANAND VENKATESH,J.
RR
AS (MD)No.90 /2013
27.10.2022
https://www.mhc.tn.gov.in/judis
