Madras High Court
Mumtaz vs Bulkis Bi on 28 November, 2023
S.A.No.814 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 28.11.2023
CORAM :
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
S.A.No.814 of 2007
and M.P.No.1 of 2007
Mumtaz ...Appellant
Vs.
1.Bulkis Bi,
2.Syed Abdyl Kalam,
3.Syed Pervas (died),
4.Syed Sallem,
5.Syed Affath,
6.Nazreem,
7.Syed Abdul Afzal. ...Respondents
(RR 1, 2, 4 to 7 brought on record as Legal Heirs of the deceased third
respondent viz.Syed Pervas vide Court order dated 30.07.2021 made in
M.P.No.1 of 2007).
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the Judgment and Decree, dated 12.04.2007, made in
A.S.No.74 of 2006, on the file of the Principal Subordinate Judge,
Tiruvannamalai, reversing the Judgment and Decree, dated 19.06.2006,
in O.S.No.172 of 2004, on the file of the Additional District Munsif,
Tiruvannamalai.
1/10
https://www.mhc.tn.gov.in/judis
S.A.No.814 of 2007
For Appellant : Mr.K.Krishnan
for Mr.T.R.Rajaraman.
For Respondents 1, 2 & 4 to 7 : Mr.Sriram
for M/s.K.Govi Ganesan
****
JUDGMENT
The instant Second Appeal has been filed at the instance of the
plaintiff. The respondents are the defendants before the Trial Court.
2. For the sake of convenience, the parties will be referred to
according to their litigative status as before the Trial Court.
The brief facts which give rise to the Second Appeal are as
follows:
3. According to the plaintiff, she is the legally wedded wife of
one Syed Shadullah. The plaintiff states that the marriage between herself
and her husband Syed Shadullah was solemnized according to the
Muslim rites and customs on 30.04.1990. It is the further submission of
the plaintiff that she was originally a Hindu by birth, but converted
herself to Muslim religion and changed her name as Mumtaz. It is the
https://www.mhc.tn.gov.in/judis
submission of the plaintiff that after getting married with her husband,
her husband orally gifted the suit property by way of “HIBA” to her in
January 2001. The oral gift was duly accepted by the plaintiff and she
took possession of the suit property on the date of the gift itself. In
pursuance of the gift, she mortgaged the suit property to one Syed Gaffer
Shaib and subsequently, discharged the same in the year 2002. While so,
after the demise of Syed Shadullah on 07.10.2003, the first defendant,
being the first wife of the deceased Syed Shadullah, interfered with the
possession of the suit property. Hence, the plaintiff came forward with
the suit for permanent injunction.
4. The said suit was resisted by the defendants by contending
that the plaintiff was not at all the wife of Syed Shadullah and that the
first defendant's husband Syed Shadullah did not gift any property to the
plaintiff. It is the further submission of the defendants that with the help
of one Zahir Hussain, the plaintiff has created certain documents and that
the plaintiff has no right or title over the suit property. Hence, they
prayed to dismiss the suit.
Evidence and documents:
https://www.mhc.tn.gov.in/judis
5. Before the Trial Court, on behalf of the plaintiff, the plaintiff
examined herself as P.W.1 and two more witnesses viz., Mr.Zahir Hussain
and Mr.Krishnan were examined as P.W.2 and P.W.3, respectively, and
five documents were marked as Exs.A1 to A5. On behalf of the
defendants, the first defendant examined herself as D.W.1 and no
documents were marked.
Finding of the Courts below:
6. After considering the evidence on either side and materials
on record, the Trial Court decreed the suit. Aggrieved by the same, the
defendants approached the First Appellate Court by way of a first appeal.
The First Appellate Court, while re-appreciating the evidence, arrived at
a conclusion that the plaintiff has not established the oral gift and thereby
allowed the first appeal. Aggrieved by the same, the plaintiff is now
before this Court by way of this Second Appeal.
Substantial questions of law:
7. At the time of admission of this Second Appeal, this Court
formulated the following substantial questions of law:
https://www.mhc.tn.gov.in/judis
“1.The plaintiff’s possession is admitted even by
the defendant coupled with the fact the Revenue records
support the same. Still, is the Subordinate Judge right in
dismissing the suit?
2.When the possession of the suit property by the
plaintiff and also showing the plaintiff as one of the heirs
of the deceased is admitted by the defendants, is the
Subordinate Judge right in dismissing the suit,
especially, when there is impediment in executing oral
gift in Mohameddan Law?”
Submissions on both sides:
8. The learned counsel for the appellant would contend that in
spite of the fact that the marriage of the plaintiff has categorically spoken
by P.W.2/Zahir Hussain and P.W.3/Krishnan, the First Appellate Court
wrongly found that the marriage of the plaintiff with Syed Shadullah was
not proved. The learned counsel for the appellant would further contend
that though there is evidence to show that the plaintiff and her husband
Syed Shadullah lived in one house, the First Appellate Court, without
considering any materials on record, has wrongly found that the plaintiff
has not proved the oral gift. It was further contended by the learned
counsel for the appellant that the First Appellate Court did not take into
https://www.mhc.tn.gov.in/judis
consideration of the house tax receipt and other materials on record, to
prove the plaintiff's possession. It is the further submission of the learned
counsel for the appellant that when the plaintiff has established the
possession over the property, naturally, the case of the plaintiff in respect
of the oral gift is bound to be accepted. Hence, she prayed to allow this
Second Appeal.
9. Per contra, the learned counsel for the respondents would
object the said contention and would invite the attention of this Court,
about the discrepancy about the date of oral gift between the pleadings
and evidence. Hence, prayed to dismiss this Second Appeal.
10. I have given my anxious consideration to the submissions
made on both sides.
Analysis of the submissions made by both sides:
11. The points for consideration in the instant Second Appeal
are as follows:
(i) Whether there is any oral gift as pleaded by the plaintiff?
https://www.mhc.tn.gov.in/judis
(ii) Whether only after such oral gift has been proved, the
plaintiff can get the relief of injunction?
12. In this regard, the learned counsel for the respondents would
invite the attention of this Court, in respect of the finding of fact
recorded by the First Appellate Court. Wherein, the First Appellate Court
has found the discrepancy in respect of 'HIBA' between the plaintiff's
pleadings as well as the admission during her cross-examination. The
First Appellate Court found that in the pleadings, the plaintiff has
contended that Syed Shadullah has orally gifted the property in the year
2001. However, during her cross-examination, she stated that such oral
gift was given immediately on the next day of her marriage. In this
regard, the First Appellate Court found that according to the plaintiff, the
marriage took place on 30.04.1990. If that being so, the gift would have
been on 01.05.1990, thereby the case set out by the plaintiff in the plaint
is contrary to the oral evidence. As a consequence, the First Appellate
Court disbelieved the case of the plaintiff in respect of oral gift.
https://www.mhc.tn.gov.in/judis
13. Apart from that, the First Appellate Court has gone into
another aspect viz., house tax receipt and found that though according to
the plaintiff, the gift was in the year 1990, the house tax receipt and other
documents came into existence only after 2003. Therefore, as rightly
found by the First Appellate Court, the case put forth by the plaintiff in
respect of the gift is to be disbelieved. Thus, the very finding recorded by
the First Appellate Court is based on material and cogent evidence.
14. Therefore, this Court cannot find any ground to deviate from
the said finding. Accodingly, this Court could not find any merit in this
Second Appeal. Thus, the substantial questions of law are answered in
favour of the respondents.
15. In the result, this Second Appeal stands dismissed by
confirming the judgment and decree dated 12.04.2007 made in
A.S.No.74 of 2006, on the file of the Principal Subordinate Court,
Tiruvannamalai. Consequently, connected miscellaneous petition is
closed. There shall be no order as to costs.
28.11.2023
https://www.mhc.tn.gov.in/judis
Internet : Yes/No
Index: Yes/No
Speaking order/Non-speaking order
apd
To
1.The Principal Subordinate Judge, Tiruvannamalai,
2.The Additional District Munsif, Tiruvannamlai,
3.The Section Officer, V.R.Section, High Court, Madras.
C.KUMARAPPAN,J.
apd
https://www.mhc.tn.gov.in/judis
28.11.2023
https://www.mhc.tn.gov.in/judis
