IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :30.12.2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.NO.580 of 2002 AND C.M.P.No.6655 of 2002 1. S.G.Mahaboob Basha (Died) 2. M. Ahmed Basha 3. M. Abdul Razak 4. M.Mohammed Raffi 5. M.Mohammed Jakir Hussain 6. Tmt. Asmathunissa 7. Zeenathunisa (Appellants 2 to 7 are recorded as legal representatives of the deceased first appellant vide order of Court, dated 29.07.2004 made in Cmp.No.19450 of 2003) ... Appellants/Defendants Vs Tmt. Najumunnissa (Sole respondent recorded as legal representative of the deceased first appellant and continued to be respondent vide order of Court, dated 29.07.2004 made in CMP.No.19450 of 2003) ... Respondent/Plaintiff This Appeal suit filed under Section 96 of the Civil Procedure Code, against the judgment and decree dated 20.09.2001 made in O.S.No.1935 of 2000 on the file of the VII Additional City Civil Court, Chennai. For appellants : Mr.K.P.Gopalakrishnan For respondent : Mr.N.S.M.Mohammed Jaffarullah J U D G M E N T The legal representatives of the deceased first appellant viz.,appellants 2 to 7 have preferred this appeal before this Court as against the judgment and decree dated 20.09.2001 made in O.S.No.935 of 2000 on the file of Learned VII Additional Judge City Civil Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. The necessary averments of the respondent/plaintiff case are set out hereunder: The respondent/plaintiff is the daughter of the deceased first appellant/first defendant and sister of the other appellants/ defendants. The respondent/plaintiff and appellants/defendants are co-owners of the properties mentioned in the items 1 to 3 of the plaint schedule. The respondent/plaintiff is entitled to 1/16th share in these properties. 3. The first item is a house property bearing Door No.203, Angappanaicken Street, Mannady, Chennai-600 001, the first item is also a house property at door No.2, Adam Street, Mannady, Chennai-1, the third item is the Gold Jewellery weighing 30 sovereigns. The first item is a big building comprising of three floors and it is occupied by several tenants and they occupy first to third floors. The appellants/defendants 1 to 5 are carrying on business in the ground floor of the said premises and the rent for the portion under the occupation of the tenants in the said property will come to Rs.40,000/- per month. The second item is a house property where the defendants are staying. 4. The properties mentioned supra, originally belongs to the respondent/plaintiff's mother Ameena Bee, who purchased the land in respect of the first item of suit property by means of a registered sale deed dated 25.2.65. She got the superstructure through a settlement deed dated 10.5.65. The said Ameena bee has demolished the existing superstructure and put up a new structure out her own funds and now the property is consisting of four floor buildings. The second item has been purchased by her through a sale deed dated 7.10.71. The gold jewellery described in item three of the plaint schedule has been owned and possessed by her during her life time. 5. The respondent/plaintiff's mother Ameena Bee has been enjoying the aforesaid properties as an absolute owner till her death. Being an illiterate, she has not known Tamil and English languages to read and understand. She expired on 12.9.88 leaving behind her the respondent/plaintiff as her legal representatives to succeed her estate under Muslim Law. 6. The details of the legal heirs, and their relationship with the deceased Ameena Bee is as follows; ---------------------------------------------------------------------- Sl. Name Rank in Relationship No. this suit with deceased Shares --------------------------------------------------------------------- 1. S.G.Mahaboob Basha 1st Deft. Husband 4/16th Share 2. M. Ahmed Basha 2nd " Son 2/16 " 3. M. Abdul Razak 3rd " Son 2/16 4. M. Mohamed Rafi 4th " Son 2/16 https://hcservices.ecourts.gov.in/hcservices/ 5. M. Mohamed Zakir Hussain 5th " Son 2/16 6. Azathunnissa 6th " Daughter 1/16 7. Naseemunnissa 7th " Daughter 1/16 8. Zeenathunnissa 8th " Daughter 1/16 9. Najumunnissa 9th " Daughter 1/16 --------------------------------------------------------------------- 7. Accordingly, the respondent/plaintiff is entitled to 1/16th undivided share in the estate of the deceased Ameena Bee. The respondent/plaintiff is in joint possession of the suit property with the appellants/defendants. The first appellant/first defendant used to pay Rs.500/- every year towards share of a profit due to the respondent/plaintiff and she used to receive the same out of respect though same is meager. The respondent/plaintiff is keeping some of her household articles in Adam Street property. The respondent/plaintiff wanted her share to be separated by metes and bounds. Since the appellants/defendants have not heeded to the request of the respondent/plaintiff, a lawyer notice dated 9.9.99 has been issued by her to all the appellants/defendants, calling upon them to agree for the partitioning of the suit property. However, the appellant/defendant 1 to 5 has given a reply dated 18.9.99, whereby they allege that the respondent/plaintiff's mother has gifted the properties in favour of the defendants 2 to 5. Though they allege of an existence of 'HIBA', they have not furnished the full particulars of the same. The date of such gift and other particulars have not been given. The encumbrance certificate already obtained by the respondent/plaintiff from the Sub-Registrar (North), Chennai does not refer the any Gift Deed at all. Moreover, the reply without specifying the nature, date and particulars in regard to the gift has made the respondent/plaintiff to apprehend that the appellant/defendant 2 to 5 are trying to create or fabricate the documents to defect her claim. The respondent/plaintiff's mother has not made any 'HIBA' in regard to her properties at any time. If the appellants/Defendants 2 to 5 alleged any gift , then it is a case of the respondent/plaintiff that they have created or fabricated the same and that the said document is not true or a genuine one. The respondent has sent a rejoinder on 12.10.99 expressing her apprehension. Even thereafter, the appellants/defendants 2 to 5 have not come forward to furnish the particulars nor they have sent a copy of the alleged gift deed. The respondent/plaintiff's mother has at no time gifted the properties. However the defendants 6 to 8 have not issued any reply. 8. The respondent/plaintiffs mother has no occasion to gift the properties in favour of her sons. The respondent/plaintiff's mother being a richest lady, she has not taken a decision to part aware of her properties and to leave as a pauper. In fact the respondent/plaintiff's mother wanted to have a hold upon her sons and daughters-in-law by holding her properties for her future and she has not dreamt of gifting the properties to anyone. The first https://hcservices.ecourts.gov.in/hcservices/ appellant/deceased first defendant is the father of the respondent/plaintiff and is sick and bedridden and he cannot do anything independently. Hence, the respondent/plaintiff has filed a suit praying for passing of preliminary decree for partition of separate possession of her 1/16th share in the suit property etc. 9. The written statement pleas of the appellants/D1 to D6 and D8 are as follows: The appellants/defendants do not admit the items mentioned in item three of the plaint schedule. It is true that the building in item one of the suit schedule properties have been occupied by the tenants of defendants 2 to 5. It is not correct to state that the rent derived from the tenants of the property described under first item of the suit schedule is at Rs.40,000 per month. It is true that the property mentioned in the second item of the suit schedule is under the occupation of Defendants 2 to 5. Further, the appellants/defendants denying the allegations made in the plaint that the deceased Ameena Bee demolished the existing superstructure and put up new superstructure in the properties mentioned under first item of the suit schedule out of her own funds and the respondent/plaintiff is put to strict proof of the same. Moreover, it is denied that the deceased Ameena Bee has been enjoying the suit schedule properties as an absolute owner till her death. The appellants/defendants do not admit the share mentioned in para 5 of the plaint. 10.The appellants/defendants deny that the respondent/plaintiff is not joint possession of the schedule properties and the first appellant/deceased first defendant used to pay Rs.500/- to the respondent/plaintiff every year towards her share. It is also denied that the respondent/plaintiff is keeping some of her household articles in the property described under the second item of the suit schedule. A reply dated 18.09.99 has been issued to the respondent/plaintiff for a notice dated 9.9.99. The appellants/Defendants 2 to 5 are in absolute possession and enjoyment of the properties described in the suit property except the jewels mentioned under the third item of the suit schedule. The property mentioned under the first item has been a vacant land with a superstructure namely, zinc sheet with small tiled building (Shed) in a demolishing condition. The deceased Ameena Bee has accepted a gift as per Mohammedan Law in respect of the property described under the first item of the suit schedule on 07.4.1995 in the presence of the elders, relatives and community people in favour of Defendants 2 to 5, who being her sons and the same has been recorded in writing on 21.4.1995. The appellants/Defendants 2 to 5 as donees have accepted the gift of the property by taking physical possession of the same under the first item of the suit schedule. The said gift has been completed as per law and the same is valid from the date of the gift executed by the deceased Ameena Bee. The appellants/defendants 2 to https://hcservices.ecourts.gov.in/hcservices/ 5 have been in absolute possession and enjoyment of the same till this date as rightful owners. The appellants/Defendants 2 to 5 have obtained plan approval on 15.03.1996 from the competent authorities and they have constructed the present building in the property described under the first item of the suit schedule and they have also obtained patta, tax and other assessment in their favour. 11.The second item of the suit schedule is a tiled house of more than 100 years old and the appellants/defendants 2 to 5 are residing jointly in the suit property. The appellants/defendants 2 to 5 submits that the property described under the second item of the suit schedule has also been gifted by their mother Ameena Bee on 6.4.1998 in the presence of elders, relatives and community people as per Mohammedan Law. 12. The respondent/plaintiff and the first appellant/first defendant and Defendants 6 to 8 are well aware of the gifting of the properties made by the deceased Ameena Bee in favour of the appellants/Defendants 2 to 5 and till date none of them have challenged the same. 13. The jewellery mentioned in the third item of the suit schedule have been gifted by the deceased Ameena Bee to her daughters, daughter-in-law and relatives. The black beeds necklace of three sovereigns (not as five as mentioned in the plaint) has been taken by the wife of the fifth defendant, after the death of Ameena Bee as per the desire of the deceased. One necklace with stone of 42 grams (not as 7 sovereigns as mentioned in the plaint) has been gifted to daughter of the sixth defendant during her marriage. Two bangles of 21 grams (not as six and nine sovereigns as mentioned in the plaint) and one set of ear stud has been gifted to the eighth defendant. No such plain ear studs (each one and half sovereigns) has been owned by deceased Ameena Bee. The only set of studs of 12 grams has been gifted to the eighth defendant. One plain ring of half sovereigns (not as two number of each eight grams) has been gifted to the daughter of Sarahn Bee. One stone ring of half sovereigns (not as two numbers of each eight grams) has been gifted to the daughter of Mahamood. The jewelleries described in the third item of the suit schedule are not with them. 14. No payment of Rs.500/- has been made by the appellant/defendant to the respondent/plaintiff towards her share at any point of time. The respondent/plaintiff is not at all entitled to any share in the properties mentioned in the first and second items of the suit schedule. The plaintiff's averments are contrary. Also the averments in the legal notices dated 9.9.99 and 12.10.99 issued by the respondent/plaintiff are contrary in nature and they are after thoughts. The second defendant has refused to take a girl of the plaintiff for the marriage of his son and due to the said enmity, the respondent/plaintiff has filed the suit. https://hcservices.ecourts.gov.in/hcservices/ 15.The suit is not properly valued and is not properly stamped. The suit will not come under Section 37 (1) of the Tamil Nadu Court Fees and Suits valuation Act 1955 as the plaintiff is out of possession. The suit has not been properly framed and the relief sought for are unaffordable and they are not maintainable in law. The suit is hit by the reason of the failure in seeking further relief which are substantial in the facts and circumstances of the case. The declaratory relief of the respondent/plaintiff in respect of the suit schedule property and the relief of recovery of possession have not sought for. The suit is therefore, devoid of merits, lack of bonafides, and the same is unsustainable in law. 16. Before the trial Court, on the side of the respondent/plaintiff witness P.W.1 has been examined and Ex.A1 to A10 have been marked. On the side of appellants/defendants D.W.1 to 5 have been examined and Ex.B1 to B14 have been marked. 17. On an appreciation of oral and documentary evidence the trial Court, while decreeing the suit in part without costs has passed a preliminary decree in favour of the respondent/plaintiff in respect of the suit 1 and 2 items and in respect of the suit 3rd item it has dismissed the claim of the respondent/plaintiff and also ordered that steps be taken for appointment of an Advocate Commissioner for passing of a final decree pursuant to the passing of the preliminary decree and also for mesne profits. 18 . The points that arise for consideration in this appeal are:- 1. Whether the suit items 1 and 2 have been given to the D2 to D5 by the deceased Ameena Bee on 7.4.95, 6.4.98 through the Gift Deeds Ex.B1 dated 21.4.95 and Ex.B2 dated 5.5.98 ? 2. Whether the Respondent/plaintiff has valued the suit properly and has paid the correct Court fee as per under Tamil Nadu Court Fees and Suits Valuation Act 1955 ? 3. Whether the Respondent/plaintiff is entitled to the relief of partition and separate possession of her 1/16th share in the suit properties ? 19.Contentions, Discussions and Findinfs on Point Nos.1 to 3: The learned counsel for the appellants urges before this Court that the judgment and decree passed by the trial Court in O.S.No.935 of 2000 is contrary to Law, weight and probabilities of the case and as a matter of fact the trial Court has committed an error in holding https://hcservices.ecourts.gov.in/hcservices/ that the respondent/plaintiff is in joint possession of the suit property without even taking into consideration of the fact that the respondent/plaintiff has given a different address in the plaint than that of the suit property and also that the observation of the trial Court that fixed Court fee paid by the respondent/plaintiff is not correct and indeed, the respondent/plaintiff ought to have paid Court fees in the plaint under Section 37(4) of the Tamil Nadu Court Fees And Suits Valuation Act 1955 and the admissions of the respondent/plaintiff have not been properly appreciated by the trial Court and moreover, the trial Court after holding that Hibia to be valid should have three conditions, (1) It should be either be oral or in writing (2) The donee should accept it (3) Possession should have been given and also having held that under Ex.B1 'HIBA' has been reduced in writing and that Donee has accepted the same and that possession has been given, committed an error in coming to the conclusion that there is no mention in the 'HIBA' deed that it has been given orally on an earlier date which is not required under the Mohammedian Law. 20. It is the further contention of the learned counsel for the appellants that the trial Court has committed a mistake in holding that Exs.B1 and B2 do not contain signature of the deceased Ameena Bee without any basis and it has also further held in not holding that the gifts have been completed, since the defendants have been paying taxes and having patta in Exs.B6 to B14 and added further, in Muslim Law ''HIBA'' is not compulsorily registrable under the Registration Act, but these aspects of the matter have not been adverted to by the trial Court in a proper and real perspective which has caused miscarriage of justice and therefore prays for allowing the appeal to prevent an aberration of justice. 21. It is the case of the respondent/plaintiff that her mother has not informed anybody during her life time that she has gifted the properties and also that the Defendants 2 to 5 have not informed anyone during the life time of their mother that she has gifted the properties and D2 to D5 have fabricated the documents and therefore, the Gift Deeds are not valid in the eye of Law. 22. The pleas of the Appellants/Defendants are to the effect that D2 to D5 have been in an absolute possession and enjoyment of the properties described in the suit schedules except the jewels described in third item and in fact, the deceased Ameena Bee has executed the gift as per Muslim Law in respect of the property mentioned in the first item of the suit schedule on 07.04.1995 in the presence of the elders, relatives and community members etc., in favour of D2 to D5 who being her sons and the same has been put into writing on 21.4.1995 and D2 to D5 have accepted the said gift by means of taking physical possession of the property mentioned in the first item of the schedule and the gift has become complete and therefore, the same is valid in Law and likewise, the second item of https://hcservices.ecourts.gov.in/hcservices/ the suit schedule property has been gifted by Ameena Bee on 06.04.1998 in the presence of elders, relatives and community members etc., as per Muslim Law and indeed D2 to D5 have accepted the gift and taken possession of the second item of the schedule mentioned property and the said gift has been executed by the deceased Ameena Bee on 06.04.1998 in favour of D2 to D5 have been recorded into writing on 05.05.1998 and the said gift has become complete and the same is valid in Law and really speaking the patta and other revenue records in respect of the first and second item of the suit schedule properties are in the name of D2 to D5 and the respondent/plaintiff and the deceased first defendant and D6 to D8 have been well aware of the gift of the properties and as such the respondent/plaintiff is not entitled to claim any relief in respect of the suit item 1 and 2 of the properties. 23. The respondent/plaintiff in her evidence as P.W.1 has deposed that the first item of the suit property namely, shop bearing Door No.203, Angappa Naicken Street, Madras – 600 001 street has been purchased by her mother in the year 1965 through Ex.A1 document and as per Ex.A1 document her mother has purchased the land and superstructure has been given to her mother in the year 1965 by her father through the gift deed as per Ex.A2 and the second item of the suit property namely house bearing door No.203, Angappa Naicken Street, Madras – 600 001 has been purchased by her mother in the year 1971 through Ex.A3 and that their item of property is the jewellery which belongs to her mother and that her mother has expired in the year 1998 and she has issued a lawyers notice, Ex.A6 on 9.09.99 demanding partition for which D2 to D5 have given a reply Ex.A7 and in Ex.A7 it is wrongly stated that her mother has given the properties to her brothers through gift and therefore, she has given the Ex.A8 rejoinder and inspite of the same, since her share of the properties have not been given to her she has filed the suit. 24. P.W.1 in her cross-examination has categorically stated that she is not aware of the gift during the life time of her mother and even after her mothers death she has not known the same and her father has informed that her mother has given the properties through a gift deed to D2 to D5 and hence informed her to file a suit before the Court and to seek the relief of partition and it is incorrect to state that she has no right in the suit properties. 25. It is the further evidence of P.W.1 (plaintiff) that even after marriage she has been leaving with her mother and some articles belonging to her was still in the second item of the house and presently she is leaving in a different house with some articles in her possession and that her father has given a sum of Rs.500/- per year and she has informed her father that she does not require the said amount and only requires a share in the properties and therefore, has filed the present suit and she has not received the sum of Rs.500/- per year after the death of her mother. https://hcservices.ecourts.gov.in/hcservices/ 26. At this stage, it is useful to refer to the evidence of D.W.1 (deceased first appellant/first defendant and father of the respondent/plaintiff) to the effect that in the year 1971, the shop has been purchased in the name of his wife and the Angappa Naicken Street, shop has been purchased on loan from Kayalpattinam Samu Fathima Nachi and at the time of purchase of the said shop it has tin roofing and in that his sons have constructed a building and the house has also been purchased on loan and only his sons have discharged the loan and the shop has been given by his wife to his sons through gift in the year 1995, and at the time when the gift has been made, one religious priest, an advocate, Abdul Kadar and Gaja Mohidin have been present and in their presence she has made the said gifts and his wife have made the said gift through a written statement and that written statement has been given some time later and likewise, his wife has given the Adam Sahib Street house to her sons through 'HIBA' (Gift) in the year 1998 and he does not know the date and month and at the time of 'HIBA' the religious priest, an advocate, Abdul Kadar and Gaja Mohidin have been present, and this gift has also been made in writing by his wife after few days later and when his wife has given the 'HIBA' in respects of the two properties at that time he has been present and he has also signed as a witness and his sons are receiving the income from the shop and they have not given him any share from the said income and it is utter false to state that every year a sum of Rs.500/- has been given to the respondent/plaintiff from and out of the income received from the shop and that in the suit properties, himself or his three daughters have no right at all and that the suit properties are absolutely belonging to his sons and for the past 10 years P.W.1/plaintiff is not in the habit of visiting his house. 27. D.W.1 in his evidence has further deposed that Ex.B1 is the document dated 21.04.1995 in and by which his wife has given the Angappa Naicken Street shop as 'HIBA', and in Ex.B1 document at the fourth page his wife has signed over the place of Donor and in Ex.B1 his four