IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 CRP.No. 763 of 1997(C) --------------------------------- AGAINST THE ORDER DATED 21/08/1996 IN IA.422/92 IN OS.469/1990 of PRL.MUNSIFF COURT, PALAKKAD. .................... REVN. PETITIONER(S): SUPPELMENTAL 2ND PETITIONER -------------------------------- AMBSULUNNEESSA, W/O. MUBARAK BASHA, RESIDING AT VALIYAKALLIYAMPARA, VADAKARAPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADVS. MR.V.CHITAMBARESH MR.T.C.SURESH MENON RESPONDENT(S): RESPONDENT -------------------------- *1. AMARUNEES, W/O ABDUL SUBAHAN, RESIDING AT KONGAPATHUR, PALLIPALAYAM, SALEM DISTRICT, TAMIL NADU.(DIED) 2. THAJUNNEESA, W/O. AJAMALKHAN, RESIDING AT DYARATHERUVU, KOPPAM AMSOM, PALAKKAD TALUK. *3. SHAAKKIRUNNEESA, W/O. MUHAMMED MIYAN, RESIDING AT PALLIPALAYAM, SALEM DISTRICT, TAMIL NADU. (DELETED) *RESPONDENT 3 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS AS PER ORDER DTD. 20.12.05 IN IA. 3199/05. 4. JAAKKIRUNNEESA, W/O. ABDULKHADER, RESIDING AT VALAYAKKARA THERUVU, ERODE, PERIYAR DISTRICT, TAMIL NADU. C.R.P. NO.763/1997 SUPPL. RESPONDENT 5 TO 9 IMPLEADED. 5. AJMAL KHAN, HUSBAND OF LATE THAJUNNEESA. 6. FIROHOSE, S/O. LATE THAJUNNEESA. 7. HYDROSE, S/O. LATE THAJUNNEESA. 8. SHAHOROSE, D/O. LATE THAJUNNEESA. 9. SADHROSE, S/O. LATE THAJUNNEESA. IMPLEADED AS SUPPLEMENTAL RESPONDENTS 5 TO 9 BEING THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT AS PER ORDER DTD. 1.2.08 IN IA. 3457/05. R2 BY ADVS.MR.D.KRISHNA PRASAD MR.M.HARISHARMA MR.JOJI VARGHESE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CMP. NO.1605/1997 IN CRP. NO.763/1997 DISMISSED 03/02/2010 SD/- M.SASIDHARAN NAMBIAR, JUDGE TRUE COPY P.A. TO JUDGE tss M.SASIDHARAN NAMBIAR,J. ======================== C.R.P. No.763 OF 1997 ==================== Dated this the 3rd day of February, 2010. O R D E R A preliminary decree for partition was passed in O.S.No.469/1990, based on the compromise between the parties, on 14.11.1991. As per the preliminary decree the plaintiff mother was alloted 90/570 shares and her daughters, defendants 1 to 5 were alloted 96/570 shares each. On 30.1.1992, the mother filed I.A.No. 422/1992 an application for passing a final decree in accordance with the preliminary decree. When the final decree application was pending petitioner in the final decree petition, the mother, died. Fifth respondent in the final decree application filed an application to transpose herself as second petitioner, as the petitioner was no more. The learned Munsiff allowed the application and transposed fifth respondent as the second petitioner. The second petitioner thereafter claimed a direction to allot the share of the first petitioner mother to her contending that as per Ext.A1 settlement deed dated 10.6.1991, the mother gifted her rights in the property in her favour and therefore the other C.R.P. No.763 OF 1997 2 daughters are not entitled to any right in the share of the mother and hence mother's share is to be exclusively alloted to the second petitioner. The other respondents resist the claim contending that there was no gift and the mother continued to be the owner of her share of the property till her death and hence the second petitioner is not entitled to get the share of the mother allotted to her exclusively. The learned Munsiff as per the impugned order dated 21.8.1996 rejected the claim holding that even the compromise, was entered into subsequent to Ext.A1 and during the life time of the mother, second petitioner did not put forth any claim based on Ext.A1 and even the application for passing the final decree was filed by the mother subsequently and therefore under such circumstance second petitioner is not entitled to get the share of the mother exclusively to her. The revision petition is filed challenging the said order. When the revision was pending second respondent died and respondents 5 to 9 were impleaded, after setting aside the abatement and condoning the delay. 2. The learned counsel appearing for the petitioner and the learned counsel appearing for the contesting respondents were heard. C.R.P. No.763 OF 1997 3 3. The argument of the learned counsel appearing for the petitioner is that as per Ext.A1 settlement deed, proved by the evidence of PWs. 2 to 4, the rights of the first petitioner mother was transfered to the petitioner herein and on the date of the compromise entered into and when the preliminary decree was passed, the mother did not have any subsisting right and on her death the other legal heirs did not derive any right and petitioner being legal representative of the mother under Ext.A1 is entitled to get her share allotted and therefore the learned Munsiff was not justified in dismissing the petition. The learned counsel relied on the decisions of this Court in Narayani Bhanumathi V. Lelitha Bhai (1973 KLT 961) and Alavi & Others V. Aminakutty Umma & Others (1985 KLJ 22 ) and argued that when the gift deed recites that the donor gave possession of property gifted to the donee, that recital is binding on the legal heirs of the doner and when Ext.A1 proves that the mother had gifted the property to the petitioner and also delivered possession of the property, learned Munsiff should have allotted the share of mother exclusively to the petitioner. 4. Learned counsel appearing for the respondents submitted that learned Munsiff has considered the entire relevant facts in the C.R.P. No.763 OF 1997 4 proper prospective and there is no reason to interfere with the impugned order. It was pointed out that even though Ext.A1 is seen executed on 10.6.1991, the settlement between the mother and children was on 12.10.1991 and the preliminary decree was passed accepting the settlement and the share of the mother was also declared on 14.11.1991 and if there was a gift by the mother to the petitioner there would not have been an agreement by the petitioner to allot the share to the mother instead she would have sought the share of the mother. It was also pointed out that it is even thereafter the final decree application was filed by the mother asserting her rights establishing she had not divested her right or interest in the plaint schedule property and therefore learned Munsiff was justified in rejecting the claim put forth by the petitioner based on Ext.A1. 5. Ext.A1 is seen executed on 10.6.1991. As per Ext.A1, petitioner being the daughter living along with the mother, out of the love and affection, the settlement deed was executed in her favour by the mother during the pendency of suit. Ext.A1 also shows that the petitioner was authorised by the deed to get the share of the mother in consultation with the other daughters. As rightly found by C.R.P. No.763 OF 1997 5 the learned Munsiff, if there was a divesting of the rights of the mother, by executing of Ext.A1 and thereby the rights of the mother was vested on the petitioner, when there was a compromise between all the sharers, based on which a preliminary decree was passed on 14.11.1991 and if second petitioner had obtained the rights of the mother, she would not have agreed for a settlement allotting the share to the mother herself and instead she would have insisted for allotment of the share to the petitioner. Added to this, it is five months after the date of Ext.A1, the mother herself filed an application for passing a final decree. If by Ext.A1 the mother had divested her rights in the property, she would not have filed an application for passing a final decree. Even if she had filed an application petitioner would have resisted the final decree application contending that since the mother had divested her rights in the property she is not entitled to get a share allotted. If, in fact, there was a valid gift, as claimed by the petitioner, she would have raised a claim based on Ext.A1 when the mother was alive. The right under Ext.A1 gift deed was pressed in to service for the first time only after the death of the mother indicating that there was no transfer of the rights of the mother under Ext.A1, as rightly found by C.R.P. No.763 OF 1997 6 the learned Munsiff. The learned counsel appearing for the petitioner relying on Rule 10 of Order XXII of Code of Civil Procedure argued that petitioner is a legal representative under Ext.A1, and therefore on the death of the mother other children have no right. But that right could be pressed in to service, only if there was a valid gift under Ext.A1. When it is found that during the life time of the mother, she did not divest her rights in the property, petitioner is not entitled to contend that the share of the mother is to be exclusively allotted to the petitioner. Hence there is no illegality or irregularity in the impugned order warranting interference in exercise of the revisional powers of this Court. If petitioner or any other sharer had got released the shares of any of the other sharers and consequential allotment that is to be decided at the time of passing the final decree. Learned Munsiff to pass final decree in accordance with law. Petition is dismissed. M.SASIDHARAN NAMBIAR,JUDGE. mns