IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 20-4-2006 Coram: The Honourable Mr. Justice T.V. MASILAMANI A.S. No.35 of 1992 1. H.Abdul Aleem 2. H.Basheerunnizamma .. Appellants/Defendants 1 and 2 vs. 1. H.Rehima Bi 2. H.Halima Bi 3. H.Rahamath Bi 4. H.Ayisha Bi 5. H.Mahaboob Bi 6. H.Kathiza Bi 7. H.Abdul Rahim .. Respondents/Plaintiffs 2 to 8 Appeal Suit against the judgment and decree dated 20.12.1991 made in O.S. No.520 of 1989 on the file of the Principal Subordinate Judge, Salem. For Appellants : Mr.R.Subramanian For Respondents : Mr.R.Mohan ... JUDGMENT The appellants are the defendants who have preferred this appeal challenging the judgment and decree dated 20.12.1991 in O.S.No.520 of 1989 on the file of the Principal Subordinate Judge, Salem. 2. The first plaintiff (since deceased) and the respondents 1 to 7 herein/plaintiffs 2 to 8 filed the suit for declaration of title and recovery of possession of the suit property from the appellants and also for damages at the rate of Rs.250/- per month for illegal occupation from 1.7.1988. The appellants, who are none else than the other sons of the first plaintiff, resisted the suit on various grounds. The learned Subordinate Judge https://hcservices.ecourts.gov.in/hcservices/ having analysed the evidence of both sides and upon hearing the submissions made on behalf of them decreed the suit as prayed for with costs. Hence, the appellants have filed this appeal challenging the legality of the judgment and decree passed by the trial court. 3. The contentions of the respondents/plaintiffs in the plaint are briefly as follows:- (a) The first plaintiff was the absolute owner of the suit property and he was in possession and enjoyment of the same in his own right. He has gifted the suit property to the plaintiffs 2 to 8 by means of registered gift deeds dated 16.6.1986 and 17.6.1986 and necessary changes have been made in the municipal register and in revenue records in favour of donees who have been paying the taxes thereafter. (b) The defendants, who are the sons of the first plaintiff and brothers of plaintiffs 2 to 8, have no manner of right or interest over the suit property. The plaintiffs and the defendants are governed by the personal law, namely, Muslim law. The first plaintiff, who retired from Judicial Department in the year 1965, purchased the suit property with two tiled buildings and a thatched shed in the year 1942. Even after retirement, he was working as a job typist and earned considerable income so as to maintain the family and also to perform the marriages of his sons and daughters. He has also improved the property by putting up tiled house. The defendants 1 and 2 have not contributed anything towards such improvement. (c) The first plaintiff allowed the defendants to reside in a portion of the suit property and therefore their possession is purely permissive in nature. On 7.3.1986, the first plaintiff revoked the leave and licence and called upon them to vacate the premises the premises bearing Door Nos.88 and 89 Jalal Khan Street, Fort, Salem-1. The possession of the property by the defendants thereafter was that of trespassers and they are liable to pay damages for wrongful use and occupation. (d) The defendants 1 and 2 out of jealousy and ill-will filed a suit in O.S.No.309 of 1986 on the file of the District Munsif, Salem. After considerable delay, interim applications filed by them in the said suit were dismissed on merits and the matter went up to the High Court with reference to the orders in the said applications. Again the defendants amended the plaint and moved the Subordinate Court wherein the suit was registered as O.S.No.112 of 1988 on the file of the Additional Subordinate Judge, Salem and ultimately, they allowed the suit to be dismissed on 25.7.1989. Therefore the defendants are in unlawful possession without paying any amount and hence the plaintiffs are https://hcservices.ecourts.gov.in/hcservices/ constrained to file the suit. The first plaintiff died on 27.6.1990 leaving behind the plaintiffs 2 to 8 and the defendants as his legal heirs. Hence the suit. 4. The averments in the written statement filed by the second defendant and adopted by the first defendant are briefly as follows:- (a) It is false to allege that the first defendant is the absolute owner of the suit property and that he has gifted the same to the plaintiffs 2 to 8 under the gift deeds dated 16.6.1986 and 17.6.1986. But, on the other hand, the suit properties are the absolute properties of the defendants and the first plaintiff had no interest or title over the same on the alleged date of gift deeds. The gift deeds are hit by the principle of lis pendens. Further the gift deeds are not valid as the first plaintiff had no title to the same. (b) The other allegations in the plaint are denied as false. The suit properties were partitioned and the defendants put up the buildings in the suit properties in their own right in the year 1960. (c) The plaintiffs 2 to 8 obtained the documents by undue influence and misrepresentation made to the first plaintiff as he was aged about 80 years at that time. Therefore he was not having a sound and disposing state of mind on the date of the gift deeds. Hence, there is no cause of action and the one alleged is false. In these circumstances, the suit may be dismissed with costs. 5. The averments in the additional written statement filed by the second defendant are as follows:- The first plaintiff had no right or interest over the buildings bearing Door Nos.88 and 89 described in the plaint schedule. Even if the defendants had any defect in their title, they have prescribed title by adverse possession, as they were in continuous, uninterrupted and open possession and enjoyment of the properties to the knowledge of the first plaintiff and other plaintiffs from 1960. They have put up fresh construction in the suit properties in their own right. Hence, the suit may be dismissed with costs. 6. On the above pleadings, the trial court framed the following issues:- https://hcservices.ecourts.gov.in/hcservices/ (1) Whether the gift deeds dated 16.6.1986 and 17.6.1986 are true, valid and binding on the defendants? (2) Whether the defendants have prescribed title to the suit property by adverse possession? (3) Whether the plaintiffs are entitled to the relief as prayed for? (4) To what relief, the plaintiffs are entitled? 7. The respondents as plaintiffs in the suit examined the 8th plaintiff as P.W.1 and two other witnesses as P.Ws.2 and 3 and produced the documents under Exs.A-1 to A-30. The appellants as defendants examined the second appellant as D.W.1 and another witness as D.W.2 and also produced the documents under Exs.B-1 to B-31 in support of their respective contentions in the pleadings. Learned Principal Subordinate Judge, Salem having analysed the evidence both oral and documentary adduced on either side and upon hearing the arguments of both sides held on issue Nos.1 and 2 that the gift deeds dated 16.6.1986 and 17.6.1986 are true, valid and binding on the defendants and that the defendants have not acquired title to the suit property by prescription on account of their adverse possession. Further he held on issue Nos.3 and 4 that since the plaintiffs have proved their title to the suit property, they are entitled to the reliefs of declaration and recovery of possession as prayed for. Similarly, learned Subordinate Judge held that the plaintiffs are also entitled to recover damages for use and occupation of the property by the defendants as prayed for. Therefore he held on issue No.4 that the plaintiffs are entitled to a decree as prayed for with costs. 8. Heard Mr.R.Subramanian, learned counsel for the appellants and Mr.R.Mohan, learned counsel for the respondents. 9. Learned counsel appearing for the appellants submitted the following contentions in support of the appellants herein:- (a) The court below erred in holding that the gift deeds, Exs.A-1 and A-19 are true, valid and binding on the defendants. Similarly, he failed to appreciate the evidence on record to show that the first plaintiff could not have sound and disposing state of mind on the date of the alleged execution of Exs.A-1 and A-19, gift deeds in favour of the plaintiffs 2 to 8 and therefore the said documents have been obtained by undue influence. Therefore, Exs.A-1 and A-19 are not valid and not binding on the defendants. In the circumstances, learned Subordinate Judge should have rejected the evidence of P.W.3 especially in view of the fact that another attestor and scribe of the document have not been examined. https://hcservices.ecourts.gov.in/hcservices/ (b) Further the court overlooked the fact that it is essential condition of the gift that there should be actual delivery of possession of the property to the donee and therefore since the possession of the property continued to be with the defendants, the plaintiffs could not have taken delivery of the property as per the gift deeds Exs.A-1 and A-19 and therefore the same are invalid under law. (c) Even otherwise the gifts in favour of two or more persons without specifying their specific share and without dividing the property are invalid. Therefore the said documents should have been brought about to defeat the claim of the appellants in the suit in O.S.No.112 of 1988 on the file of the Subordinate Judge, Salem (O.S.No.309 of 1986 on the file of the District Munsif Court, Salem). (d) On the contrary, learned Subordinate Judge on the basis of the evidence of the defendants' side should have held that their case in the written statement is true and they have proved conclusively that they are in possession of the suit properties in their own right. The defendants were put in possession of the suit properties even in the year 1960 and thereafter they made improvements to the same. Hence, they have prescribed title by adverse possession of the suit property over 25 years. (e) Similarly, learned Subordinate Judge overlooked the fact that since Exs.A-1 and A-19 are executed during the pendency of the suit filed by the defendants in O.S.No.309 of 1996 referred to above and therefore since the gift deeds were hit by the doctrine of lis pendens, the court below is not justified in passing the decree. Similarly, the amount of damages at the rate of Rs.250/- per month without any evidence cannot be sustained herein. 10. In the above circumstances, the following points arise for determination:- (1) Whether the finding rendered by the trial court that the gift deeds dated 16.6.1986 and 17.6.1986 are true, valid and binding on the appellants is not supported by any evidence? (2) Whether the gift deeds dated 16.6.1986 and 17.6.1986 executed by the deceased first plaintiff, the father of the appellants and the respondents are hit by the doctrine of lis pendens? (3) Is the court below not correct in holding that the appellants have not acquired title to the suit properties by adverse possession? https://hcservices.ecourts.gov.in/hcservices/ (4) Whether the decision rendered by the court below with reference to damages for use and occupation is not sustainable? (5) To what relief the parties are entitled to? 11. Since all the above issues are with reference to the same set of facts and evidence, they are considered together and answered as under. For the sake of convenience, the parties to this appeal may be referred to hereunder as they were arrayed in the suit before the trial court. 12. The relationship among the members of the family of the deceased first plaintiff and his sons and daughters, who are the appellants and respondents herein, is not under dispute. Admittedly, the deceased first plaintiff, father of the appellants/defendants and the plaintiffs 2 to 8 worked in the Judicial Department till his retirement in the year 1965 and he purchased the suit properties comprising of two tiled buildings and a thatched shed under Ex.A-4 registered sale deed dated 11.2.1942. Therefore, under Muslim law, the father of the plaintiffs 2 to 8 and the defendants, namely, the deceased first plaintiff should be held to have acquired the suit properties as his separate properties and that he had absolute dominion over the same to deal with as he liked during his life time. 13. According to the plaintiffs, even after retirement, their father, was doing job work as typist and out of his own income and pension, improved the properties by putting up a tiled structure in the place of thatched portion and also performed the marriage of his sons and daughters. Exs.A-1 and A-19 are the gift deeds executed by the first plaintiff in respect of the suit properties in favour of the plaintiffs 2 to 8 and Exs.A-21 and A- 22 are the drafts of the said gift deeds written by the first plaintiff himself. Similarly, on account of the mistake in quoting the assessment number of the suit properties in the gift deeds referred supra, the first plaintiff executed the rectification deeds dated 3.7.1986 copies of which form part and parcel of the said documents under Exs.A-1 and A-19. It is no doubt true that during the pendency of the suit and before ever the evidence was adduced, the first plaintiff died on 27.6.1990, leaving behind the other plaintiffs and the defendants as his heirs. 14. In the above circumstances, the first contention of the learned counsel for the appellants that the gift deeds under Exs.A-1 and A-19 are not true, valid and binding on the defendants has to be considered. It is not in controversy that the defendants filed the suit in O.S.No.306 of 1986 on the file https://hcservices.ecourts.gov.in/hcservices/ of the District Munsif Court, Salem which was subsequently transferred to the Additional Subordinate Court, Salem and renumbered as O.S.No.112 of 1988 and the defendants have questioned the validity of the gift deeds executed by the first plaintiff in the said suit itself on the ground that the same were created by disobeying the the order of injunction in their favour. As has been rightly argued by the learned counsel for the respondents, the defendants however allowed the said suit to be dismissed for non-prosecution ultimately and therefore he has contended that the defendants are estopped from setting forth the same plea again in this suit with reference to the validity and binding nature of the gift deeds Exs.A-1 and A-19. 15. Be that as it may, since the question has been raised and answered on the basis of the evidence adduced by both sides in this suit, this Court is of the considered view that the defendants are not precluded from raising the dispute in this suit, as the earlier suit was not disposed of on merits. However, the fact remains that the first plaintiff executed Exs.A-1 and A-19 gift deeds during the pendency of the earlier suit filed by the defendants against the plaintiffs and the first plaintiff herein, father has also filed the written statement in the said suit along with the other sons and daughters setting forth all the necessary averments so as to prove his exclusive title to the suit properties and that he had executed the gift deeds Ex.A-1 and A-19 in favour of the other plaintiffs in this suit and delivered possession of the same, complying with the requirements under Muslim law. A careful perusal of the records of the case would disclose the above facts. Apart from the production of the said documents in support of the claim in the suit, evidence has been let in by the plaintiffs to prove the execution of the gift deeds, Exs.A-1 and A-19 and the validity as well as the binding nature of the documents. 16. In this context, learned counsel for the respondents has referred me to the evidence of P.Ws.1 and 3 to show that besides the admission made by the deceased first plaintiff who executed the said gift deeds when he was in a sound and disposing state of mind, the evidence of P.W.1, the 8th plaintiff as son of the deceased first plaintiff who executed the gift deeds is to the effect that till the date of death on 27.6.1990, his father was hale and healthy, that he had not only executed the gift deeds in favour of him and his sisters, but also delivered the constructive possession of the same as the mutation in the records had been carried out in the names of the donees, that his father permitted the defendants to occupy portion of the house by way of permissive occupation, that he was occupying the house in Door No.89 and that therefore the defendants are not in possession of any portion of the suit properties in their own https://hcservices.ecourts.gov.in/hcservices/ right. It is in his evidence that right from the date of execution of Exs.A-1 and A-19 in 1986 till the date of his death on 26.7.1990, his father was in a sound and disposing state of mind living along with his sister in house bearing Door No.91 and in the year 1987 his father left his sister and began to reside in a rental house till his death. 17. The evidence of P.W.1 is corroborated by P.W.2, who is his sister and 7th plaintiff in the suit, in all respects and therefore the learned counsel for the respondents would urge that the contentions put forth by the appellants that due to old age and debility of mind, the plaintiffs influenced the deceased first plaintiff and got the gift deeds under Exs.A-1 and A-19 is not supported by any independent evidence. Admittedly, the first defendant being the elder brother of the second defendant has not gone into box in support of the claim put forth in the written statement. The evidence of D.W.1, the second defendant though relied on by the learned counsel for the appellants to prove the claim made in the written statement that the plaintiffs 2 to 8 obtained the gift deeds Exs.A-1 and A-19 from their father by undue influence when the executant of the documents was not in a sound and disposing state of mind, his self serving testimony is not supported by any independent evidence. 18. Though D.W.2 has been examined on the side of the defendants to prove the plea of partition set forth in the written statement, he has candidly admitted in his cross- examination that he is not aware whether the first plaintiff divided the properties and put the defendants in possession by way of oral arrangements or by means of any document such as gift deed or sale deed in their favour. Therefore it has been rightly argued by the learned counsel for the respondents that the evidence of D.W.2 is not helpful in any way to advance the case of the defendants and that therefore the self serving testimony of the second defendant as D.W.1 is the only evidence available on record in support of the contentions put forth in the pleadings. 19. It follows necessarily that the defendants have miserably failed to prove their contention that the properties had been allotted to their share in the partition in the year 1960 as alleged and therefore this Court is of the opinion that their plea of adverse possession also falls to the ground, as the same is not only contrary to their earlier contentions that they became entitled to the suit property by virtue of the partition in the family, but also not supported by any evidence worth mentioning on their side. https://hcservices.ecourts.gov.in/hcservices/ 20. Per contra, the evidence of P.W.3, an attestor who had witnessed the execution of the gift deeds, Exs.A-1 and A-19 by the deceased first plaintiff is relied on by the learned counsel for the respondents in support of his contention that such evidence when considered in the circumstances of the case as narrated above would go to show and prove the execution of the gift deeds by the first plaintiff in a sound and disposing state of mind. 21. Though the learned counsel for the appellants has strenuously contended that the non-examination of the other witness and the scribe of the gift deeds, Exs.A-1 and A-19 is a valid ground in support of his contention that the evidence of P.W.3 itself would not ipso facto prove the factum of the execution of the said documents, I am unable to give credence to such contention for the simple reason that the execution of the gift deeds was not only admitted by the defendants in the prior suit filed by them against their father, but also proceeded to take contempt action against him therein and failed in their attempt as seen from the records of the case. Therefore, the evidence of P.W.3 in my opinion would be sufficient to prove the execution of Exs.A-1 and A-19 by the deceased first plaintiff. Having regard to the above factual aspects of the case, this Court is of the considered opinion that the findings rendered by the learned Subordinate Judge that the gift deeds were duly executed by the father of the other plaintiffs and the defendants cannot be interfered with. It is therefore sustained. 22. The next question for consideration is whether the gift deeds are not valid for the reason of non delivery of possession of the property to the donees. It is no doubt true that delivery of possession of the property gifted is the sine qua non under Muslim law. According to the evidence of P.W.1, immediately after the execution of Ex.A-1 in his favour, mutation in the records had been carried out and that he paid house taxes (vide) Exs.A-2 and A-3. Similarly, the evidence of P.W.2, 7th defendant is that her father executed the gift deed Ex.A-19 in favour of her as well as to the other sisters, namely plaintiffs 2 to 6 in respect of Door No.91 and that since the defendants were residing in the same house claiming right over their portion of the house, her father joined them in filing the suit against the defendants. She has categorically stated that the said property had not been allotted to the defendants by any partition arrangement as alleged by them. https://hcservices.ecourts.gov.in/hcservices/ 23. Learned counsel for the appellants has placed reliance on the decisions M.BABU v. MRS.KHAMIRUNNIASA BEGUM (1990 T.L.N.J. 298) and MAHBOOB SAHAB v. SYED ISMAIL (AIR 1995 S.C. 1205) in support of his argument that the essentials of a valid gift under Mohammedan law have not been fulfilled in this case and that therefore there could not have been a valid gift made by the deceased first plaintiff by executing Exs.A-1 and A-19 in favour of the plaintiffs 2 to 8. He has submitted that there was no delivery of possession of the property in favour of the donees in this case and that therefore the important requirement under Mohammedan law for a valid gift had not been complied with. As has been rightly contended by the learned counsel for the respondents in the case in 1990 T.L.N.J. 298, the settlor reserved her right to live in a portion of the suit properties, to appropriate the entire income derived from the properties, to lease out the properties and to determine the rent during her life time and therefore on account of such reservation made by the donor inconsistent to the requirement of absolute dominion conferred on the donees, the gift in that case was held as invalid. A careful reading of the said decision would disclose the above said facts and therefore the ratio laid down therein is not applicable to the facts of this case. 24. In the case reported in AIR 1995 S.C. 1205, the question whether the mother of a minor can act as a guardian under Muslim law came up for consideration and in that context, while deciding several other questions, the Honourable Supreme Court held in paragraph (5) as follows:- "It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not