Madras High Court

Md.Basheeruddin Ahamed vs Dr.Shenaz Akther on 3 April, 2025

Author: N. Sathish Kumar

Bench: N. Sathish Kumar

                                                                                           A.S..No.531 of 2025

                                   THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        Date : 03.04.2025

                                                              CORAM:

                                  THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

                                        A.S.No.531 of 2025 & CMP.No.8140 of 2025



                  1. Md.Basheeruddin Ahamed
                  2. K.Shaneena Begum                                                     ... Appellants

                                                         Versus

                  1. Dr.Shenaz Akther
                     Saleem Begum
                  2. Dr.Md.Riazuddin Ahamed
                  3. Md.Ziauddin Ahamed                                                   ... Respondents



                  PRAYER : Appeal Suit filed under section 96 of Code of Civil Procedure to
                  set aside the decree and judgment dated 27.08.2024 passed in O.S.No.989 of
                  2013 on the file of the XXII Additional Judge, Allikulam, Chennai and allow
                  this appeal.

                                    For Appellants       : Mr.E.Sivanandan




                  Page 1 / 9




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                                                                                         A.S..No.531 of 2025

                                                          JUDGMENT

Challenge has been made to the decree and judgment of the trial Court

decreeing the suit for a preliminary decree declaring the rights of first and third

plaintiffs to an extent of 1/7 and 2/7 shares respectively, in the present appeal by

the second defendant.

2. The parties are arrayed as per their own ranking before the trial Court.

3. The suit has been filed by the plaintiffs for partition and separate

possession. The suit property was originally owned by one Md Azizuddin, the

father of the plaintiffs 1 and 3 and husband of the second plaintiff. The first and

second defendants are sons of the said Azizuddin. The said Azizuddin died on

02.08.2006 leaving behind the plaintiffs and the first and second defendants as

his legal heirs. After his demise, the plaintiffs and the defendants are in joint

enjoyment of the property as co-owners. Due to difference of opinion between

the plaintiffs and the defendants, they are not able to enjoy the property jointly.

The plaintiffs suggested to sell the property and to share the sale proceeds

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amongst themselves. However, the defendants refused to co-operate with the

plaintiffs. Hence, the suit. After filing of the suit, the second plaintiff died and

hence, the first plaintiff is entitled to 8/56 share and the third plaintiff is entitled

16/56 share.

4. The case of the first defendant is that he never objected to sell the

plaint schedule property. The suit property is not properly calculated and

wrongly mentioned. After deducting her 1/8th share, the remaining 49 shares

have to be divided among the children of the second plaintiff as per law. The

first plaintiff is entitled to 7/49 share and not 7/56 share. It is his further case

that his father has not executed any Will as stated by the second defendant.

Hence, according to the first defendant he is having 14/49 share in the plaint

schedule property.

5. The second defendant filed a written statement stating that the suit

property has been developed by his parents and the second defendant has given

financial support to his father. The first defendant and the first plaintiff were

students and the third plaintiff was out of station and he has not turned up for a

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long time either to assist his father nor help him by way of monetary means and

not provided even square meals to the second plaintiff. The first defendant with

illegal custody of his mother had obtained the settlement in his favour. It is his

further case that the second defendant's father had written a Will called as Hiba

in his favour and his minor children on 27.06.2006. Hence, opposed the suit.

6. On the basis of the above pleadings, the following issues have been

framed by the trial Court :

1. Whether the plaintiffs are entitled for any share over the

suit property and if are, what is their share?

2. Whether the alleged Will dated 27.06.2006 is valid?

3. Whether the plaintiffs are entitled to a preliminary

decree for partition?

4. To what other reliefs the plaintiffs are entitled to?

7. On the side of the plaintiffs, the first plaintiff examined herself as

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P.W.1 and Ex.A.1 to Ex.A.5 have been marked. On the side of the defendants,

second defendant examined himself as D.W.1 and Ex.B.1 to E.B.8 have been

marked.

8. The trial Court, considering the entire evidence, both oral and

documentary, has come to the conclusion that the Will and the Hiba have not

been established and granted preliminary decree to the plaintiffs. Challenging

the same, the present appeal came to be filed.

9. The learned counsel appearing for the appellant would submit that

Ex.B.1 dated 27.06.2006 is a Hiba wherein the property has been given to the

second defendant and pursuant to the same, the properties have been settled in

favour of the third defendant on 04.12.2009. Therefore, it is his contention that

the trial Court has not considered the documents property.

10. This Court is inclined to dispose of the appeal by invoking Order 41

Rule 11 Code of Civil Procedure and hence, no notice is sent to the respondents.

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11. In the light of the above submissions, now the point that arise for

consideration in this appeal are :

1. Whether the second defendant has proved the Will

dated 27.06.2006?

2. Whether the Will can be construed as Hiba?

12. Points 1 and 2 :

The relationship between the parties are not in dispute. The first and third

plaintiffs and the defendants 1 and 2 are children of one Md.Azizuddin. The

property originally owned by Md.Azizuddin, which is not in dispute. The only

defense raised by the second defendant is that his father has executed a Will,

which is otherwise known as Hiba on 27.06.2006 in his favour Therefore, he is

entitled to the property. The very pleading of the second defendant clearly

indicate that he was not in a position to come up with a stand whether Ex.B.1 is

a Will or Hiba. Even the contention of the appellant is assumed to be true that

Ex.B.1 is a Will, it is relevant to note that the Will in the eye of law, cannot be

given any validity. As far as disposition of the Will in Mohamaddian law, the

bequeath shall not exceed 1/3. Further consent of other legal heirs has also not

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been obtained. Therefore, Ex.B.1 cannot be given any importance.