Madras High Court
Sabira Begum vs Mohammed Ariff on 20 March, 2023
2023/MHC/1297
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S(MD)NO.8 OF 2009
and
C.M.P(MD)No.5035 of 2022 and M.P(MD)No.1 of 2009
1.Sabira Begum
2.Kuraisa Begum
3.Sahar Banu
4.Rabiyath Basiria
5.Saidani Begum
6.Syed Niyamathula :Appellants//Plaintiffs
.vs.
1.Mohammed Ariff
2.Zahir Hussain
3.Roja @Sireajunnissa Begum
4.Haseena Begum
5.Sahira Banu
6.Zunaida Begum
7.G.Manickam(died)
8.Radhakrishnan
9.Neelakandan :Respondents/Defendants 2 to 8
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2
(Respondents 8 and 9 are brought on record as Legal
representatives of the deceased 7th respondent as per order
made in M.P(MD)Nos.1 to 3 of 2010 in A.S(MD)No.8 of 2009,
dated20.08.2015)
PRAYER: Appeal suit filed under Section 96 of the Civil Procedure
Code against the disallowed portion of the decree and judgment in
O.S.No.111 of 2004, dated 31.10.2007, on the file of the Additional
District Judge(Fast Track Court No.I),Thanjavur.
For Appellants :Mr.N.Tamilmani
for M/s.G.Innisai.
For Respondents :No appearance
8 and 9
For Respondents :No appearance
3 and 4
For Respondent-7 :Died
JUDGMENT
*************
This appeal suit is filed against the disallowed portion of the
judgment made inO.S.No.111 of 2004, dated 31.10.2007, on the file
of the Additional District Judge(Fast Track Court No.I),Thanjavur
except allowed portion of A and D schedule of properties.
2.The brief facts leading to the filing of the appeal is as
follows:
The suit properties originally owned by one Mohammed
Usman Sahib and Raheema Beevi. They had two sons namely,Jaffar
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Moideen and Mohammed Ansari. The wife of Mohammed Ansari
and plaintiffs 2 to 6 are the sons and daughters.The first defendant
is the wife of Mohammed Ansari and defendants 2 to 7 are the
sons and daughters of the first defendant Fathima Beevi.
3.The case of the plaintiff is that Mohammed Usman Sahib is
allotted 2/3rd share in certain properties in O.S.No.34 of 1947.
Those properties have been included in the plaint. The suit is filed
in the year 1947 and the properties namely, items B,C,D,E,F and G
also belongs to the said Mohammed Usman Sahib and his wife.
According to the plaintiffs, the properties allotted in O.S.No.34 of
1947 are the Item A and D of suit schedule properties and the other
items belong to the family. The plaintiffs are claiming equal shares
in the two branches of the properties and filed the partition suit.
4.The averments in the written statement filed by the second
defendant and adopted by defendants 1 and 3 to 7 are as follows:
The defendants are admitting the relationship between
themselves. It is their contention that Jaffar Moideen, son of
Mohammed Usman Sahib partitioned the suit property orally
among themselves and they are enjoying the properties separately
and the said Mohammed Ansari has also mortgaged the properties
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measuring an extent of 1 acre and 50 cents on 1.6.1981 in favour
of the first defendant. The defendants 2 and 3 are the purchasers of
1.5 cents on 25.07.1985, Eversiince the date of purchase, they are
enjoying the properties, after partition. Hence they opposed the
filing of the suit and prayed for dismissal.
5.The 8th defendant filed a Written statement stating that
Jaffar Mohammed and Mohammed Ansari had only 14/120 share in
S.No.3999. An extent of 84 cents has already been sold to one
Kanakambujam and necessary parties have not been impleaded in
the suit. Further, an extent of 41 ½ cents has already been sold to
one Ismail.
6.On the basis of the above pleadings, the following issues
were framed for consideration:
1.Whether there is any partition entered into
between Jaffar Moideen and Mohammed Ansari?
2.Whether the suit properties are the properties
belonging to the family of both the plaintiffs and
defendants?
3.To what other reliefs, the plaintiffs are
entitled to?
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7.Before the trial Court, on the side of the plaintiffs, P.W.1 to
P.W.5 were examined and Ex.A1 to A15 were marked. On the side of
the defendants, one Manickam was examined as D.W.1 and Ex.B1
to Ex.B16 were marked.
8.The trial Court, on appreciation of evidence, in respect of
Issue No.1, has found that there is no partition entered into
between Moahmmed Ansari and Jaffar Mohideen and answered the
said issue accordingly as against the defendants and in favour of
the plaintiffs, however, granted a decree for partition in Issue No.2
in respect of Items 'A' and 'D' scehdule of properties and dismissed
the suit in respect of other items of properties. Challenging the
disallowed portion of the judgment, the present appeal suit came to
be filed.
9.The learned counsel for the appellants mainly contended
that the trial Court has rejected the partition in respect of other
items of suit properties mainly on the ground that those properties
have not been allotted in O.S.No.34 of 1947. It is the contention of
the learned counsel for the appellants that the trial Court has
failed to consider the pleadings, wherein, it is clearly pleaded that
apart from the properties allotted in the earlier partition suit in
O.S.No.34 of 1947, the other items are family properties. Such
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being the position, trial Court has simply rejected the plaintiffs'
case comparing Ex.A1 and Ex.A2 with that of the suit schedule
properties. It is the further contention of the appellants that the
defendants 1 to 6 never appeared before the trial Court and not
came to the witness-box to substantiate the pleadings to show
that there is oral partition or they sold the subject matter
properties except item No.3 of the D schedule properties which has
been sold in favour of the 8th defendant and prayed that the
plaintiffs are entitled to half share in the other properties also.
10.There is no reprsentation for the respondents for the last
so many hearings.
11.In the light of the above facts, the point for consideration
that arose for consideration in this appeal suit is:
1.Whether the plaintiffs are entitled to partition in all the suit
properties, except item 3 in 'D' schedule of properties?
2.Whether the trial Court is right in dismissing the suit by
comparing Ex.A1 and Ex.A2 with that of the suit properties, despite
the defendants have not chosen to examine themselves?
12.I had perused the entire material papers including the
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judgment of the Court below.
13.The suit has been filed for partition of the suit properties.
It is the contention of the plaintiffs that certain properties were
allotted to Mohammed Usman Sahib in the said suit. According to
the plaintiffs, apart from those properties, other properties are
also includied in the plaint namely, Items B,C,D,E,F,G and H and
they are also family properties. Therefore they have included the
same in the suit and has claimed half share in the respective
properties. Though the plea of oral partition in respect of other
properties pleaded in the written statement, the defendants 2 to 7,
who are the family members from one branch of the family, has not
entered into the witness-box to substantiate their plea of oral
partition.The trial Court has rightly negatived such plea in Issue
No.1. However, the trial Court has granted a decree only in
respect of A and D schedule of properties in Issue NO.2 and
dismissed the suit for parition in respect of other items of
properties. On the basis of mere assumption that the plaintiffs have
not pleaded as to how the other properties came to the enjoyment
of Mohammed Ansari and Jaffar Moideen and rejected the plea of
the plaintiffs. It is relevant to note that the plaintiffs have clearly
pleaded that the other properties are also included in the partition
suit, other than the properties already allotted to the Mohammed
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Usman Sahib, when the same has not been disputed and denied by
the defendants and their plea for oral partition is also negatived by
the trial Court. The trial Court ought to have held that those
properties are also family properties. Unless the properties are
family properties, questioning the pleading of oral partition by the
defendants would not have arisen and thus the said fact is not
taken note of by the trial Court.Further none of the defendants 1 to
7, who are the legal heirs of one of the son of Mohammed Usman
Sahib never entered into the witness box to prove the said plea,
and hence, the same has to be taken as an admission that the
pleadings of evidence of P.W.1 is not disputed and in fact, it is
proved.
14.In such view of the matter, this Court is of the view that
the plaintiffs are certainly entitled to partition in other properties
particularly when the defendants have not disputed the oral
partition except third item of D schedule of properties which has
already been sold in favour of the eighth defendant.
15.The learned counsel for the appellants submit that since
item No.3 of D Schedule is already sold, they are not claiming
equal share in the property, even though the oral partition has not
been established.
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16.In such view of the matter, the decree and judgment of
the trial Court dismissing the partition suit in respect of items
BCDEFG and H except Item NO.3 of 'D' schedule of properties is
set aside. Accordingly, the appeal suit is allowed and a preliminary
decree is passed dividing the above said properties into two equal
shares, allotting 50% of the above said properties to the plaintiffs.
No costs. In view of the endorsement made by the learned counsel
for the plaintiffs, C.M.P(MD)No.5035 of 2022 is dismissed as
withdrawn and M.P(MD)No.1 of 2009 is closed.
20.03.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Additional District Judge,
Fast Track Court No.I,
Thanjavur.
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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N.SATHISH KUMAR, J.
vsn
JUDGMENT MADE IN
A.S(MD)NO.8 OF 2009
and
C.M.P(MD)No.5035 of 2022 and
M.P(MD)No.1 of 2009
20.03.2023
https://www.mhc.tn.gov.in/judis
