IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 18TH OCTOBER 2007 / 26TH ASWINA 1929 RFA.No. 75 of 2004(B) --------------------- OS.171/1992 of SUB COURT,THODUPUZHA .................... APPELLANT/PLAINTIFF: ------------------------------------- HASAN KHANI RAWTHER, S/O. LATE MEERALAVA RAWTHER, AGED 52, VANIYAPURAYIL HOUSE, PETTANADU KARA, THODUPUZHA VILLAGE, THODUPUZHA TALUK, (REP. BY THE NEXT FRIEND SAIJO HASSAN, S/O. HASSAN KHANI RAWTHER, VANIYAPURAYIL, PETTANADU KARA, THODUPUZHA VILLAGE & TALUK.) BY ADV. S.V.BALAKRISHNA IYER (SR.) SRI.R.T.PRADEEP SRI.NAGARAJ NARAYANAN SRI.V.VIJULAL SRI.T.A.PRASANTH SRI.NAIR AJAY KRISHNAN SRI.C.V.BIMAL ROY SRI.K.JAYAKUMAR RESPONDENTS: DEFENDANTS 1 TO 6 AND ADDL.DEFENDANTS 7 TO 13: ----------------------------------------------------------- 1. MUHAMMED RAWTHER, S/O. MEERALAVA RAWTHER AGED 61 YEARS, VANIYAPURAYIL HOUSE, PETTANADU KARA, THODUPUZHA VILLAGE & TALUK (DIED). 2. SYED MUHAMMED RAWTHER, S/O. MEERALAVE RAWTHER, AGED 53 YEARS, PETTANADU KARA, NEYYASSERY VILLAGE, THODPUZHA TALUK. 3. SHEHAMMAL, AGED 59 YEARS, W/O. IBRAHIM HASSAN, NELLIKUNNEL, VANNAPPURAM VILLAGE, VANNAPURAM KARA, THODUPUZHA TALUK. 4. AMINA, W/O. PAREETH, AGED 47 YEARS THEKKEPURAYIDATHIL, KARIKODE KARA, KARIKODE VILLAGE, THODUPUZHA. RFA NO.75/2004 2 5. PATHUMMAL, W/O. SYED MUHAMMED, AGED 65 YEARS, ILAMTHURUTHIL HOUSE, PATHINARAMKANDOM KARA, VATHIKUDI VILLAGE, UDUMBANCHOLA TALUK. 6. HASSANKHAN, S/O. MEERANKHAN, AGED 56 YEARS, THOPPIL PUTHEN VEETTIL, PURAMPILLICHIRA KARA, KUMARAMANGALAM VILLAGE THODUPUZHA TALUK. 7. KHADEEJA, W/O MUHAMMED RAWTHER, VANIYAPURAYIL VEEDU, PETTANADU KARA, THODUPUZHA VILLAGE. 8. SHAHUL, S/O. MUHAMMED RAWTHER, DO. DO. 9. RASHEED, S/O. MUHAMMED RAWTHER, DO. DO. 10. ZAKKIR, S/O. MUHAMMED RAWTHER, DO. DO. 11. SHEKKEELA, D/O. MUHAMMED RAWTHER, DO. DO 12. SABU, D/O. MUHAMMED RAWTHER, DO. DO. 13. THAHIRA, D/O. MUHAMMED RAWTHER, DO. DO. R3 BY ADV. SRI.MATHEW JOHN (K) R6 BY ADV.SRI.GEORGE ABRAHAM SRI.SUJESH MENON V.B. SRI.SIRAJ KAROLY SRI.SUDHEESH.A. R7 & R9 TO R13 BY ADV. SHRI K.K.CHANDRAN PILLAI THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2007, ALONG WITH RFA NO. 491 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “C.R.” K. PADMANABHAN NAIR ,J. ------------------------------------------------- R.F.A.Nos.75 of 2004 & 491 of 2006 ------------------------------------------------- Dated, this the 18th day of October, 2007 JUDGMENT These two appeals are filed against a common judgment and decrees passed in O.S.Nos.171/1992 and 169/1994 on the file of the Subordinate Judge's Court, Thodupuzha. R.F.A.No.75/2004 arises from the judgment and decree passed in O.S.No.171/1992 and R.F.A.No.491/2006 arises from the judgment and decree passed in O.S.No.169/1994 (Originally filed as O.S.No.126/1992 before the Munsiff Court, Thodupuzha which was subsequently transferred to Sub Court, Thodupuzha and re-numbered as O.S.No.169/1994). R.F.A.No.491/2006 was originally filed as A.S.No.24/2004 before the District Court, Thodupuzha and subsequently the same was withdrawn to this Court and re-numbered as R.F.A.No.491/2006 to be heard along with R.F.A.No.75/2004. R.F.A.No.75/2004 This appeal is filed by the plaintiff in O.S.No.171/1992. Suit was for declaration of title and possession and for a decree of permanent prohibitory injunction. The following are the material averments in the plaint. Plaintiff and defendants 1 to 5 are the children of late Shri Meeralava Rawther of Vaniyapurayil. 6th defendant is the son of the half-sister of the Meeralava RFA Nos.75/2004 & 491/2006 -: 2 :- Rawther. Partition was effected in the family of Meeralava Rawther in the year 1953. Plaint A schedule properties having an extent of 3 acres and 21 cents were allotted to Meeralava Rawther. Those properties were comprised in Sy.Nos.133/1A and 133/1B of Thodupuzha Village. From that property one acre and 26 cents was given to the mother of the 6th defendant; 25 cents of property was sold by Meeralava Rawther in the year 1981 and the balance orally gifted to the plaintiff by his father during January, 1982. The plaintiff was in absolute possession and enjoyment of A and B schedule properties from the date of oral gift. 1st defendant was the eldest son of Meeralava Rawther. He married in the year 1960. Meeralava Rawther gave 25 cents of property to 1st defendant Mohammed Rawther as per document No.1163/1965. That was in addition to one acre of property given to him by the father at the time of marriage. One acre and 25 cents of property was given to the 1st defendant as the share in the family properties due to him. After receipt of the same 1st defendant executed document No.1163/1965 relinquishing his rights over the remaining properties of Meeralava Rawther. The properties conveyed to him under document No.1163/1965 was accepted subject to such a condition. He sold away the property given to him by his father and was residing elsewhere. 2nd defendant is the second son of Meeralava Rawther. He married 26 years prior to the date of filing of the suit. In the year 1971 Meeralava Rawther gave enough money to 2nd defendant and taking that amount as his share in the family properties 2nd defendant had shifted his RFA Nos.75/2004 & 491/2006 -: 3 :- residence to Neyyasseri. He had executed document No.866/1971 in favour of Meeralava Rawther relinquishing his rights over the remaining properties. 3rd defendant is the second daughter of Meeralava Rawther. She is married and settled at Vannappuram. In the year 1971 she was also given funds which was sufficient to cover the legitimate share due to her from the family properties. After receiving the same she executed a document No.1097/1971 in favour of her father relinquishing her rights over the remaining properties. 4th defendant is the youngest daughter of Meeralava Rawther. She is also married and settled elsewhere. She was also given necessary funds which will be normally due to her as her share in the properties of Meeralava Rawther and on receipt of the amount she released her rights over the remaining properties under release deed No.648/1981. For settling the share of the 4th defendant Meeralava Rawther sold 25 cents of property to one Raman of Vaniyapurayil. 5th defendant is the eldest among the daughters of Meeralava Rawther. She was given away in marriage 42 years prior to the filing of the suit. She was also given enough funds which was be equivalent to her share in properties of father. She had executed document No.1095/1971 in favour of Meeralava Rawther releasing her right over the remaining properties. Meeralava Rawther had given sufficient properties and amounts to his three daughters in accordance with the custom then prevailing and also as per his capacity. The amounts referred to in the above stated documents were the amounts given to them in addition to such payments. According to the RFA Nos.75/2004 & 491/2006 -: 4 :- plaintiff, all other children of Meeralava Rawther were given their due share by Meeralava Rawther during his life time itself and no such property was given to him. Plaintiff's marriage took place in the year 1971 and even before that date his brothers and sisters were residing separately after receiving their share from the family properties. From 1971 onwards the plaintiff and parents alone were residing in the family house and that was with the intention to give A and B schedule properties exclusively to the plaintiff. Because of the decision to give these properties exclusively to the plaintiff father gave necessary shares due to other children before the end of 1971. Meeralava Rawther had sold away his properties at Udumbannur to pay the necessary amounts to defendants 2, 3 and 5 and sold 25 cents of property which he intended to give to the plaintiff to pay off the amounts to the 4th defendant. From 1971 onwards the parents are being looked after by the plaintiff alone. 1st defendant sold away the entire properties given to him by his father. Thereafter father with the permission of the plaintiff permitted 1st defendant to put up a structure on the north-western corner of the entire property and from the year 1974 onwards he is residing there. According to the plaintiff the area of property will come to 2 ½ cents and that is scheduled as B schedule property. In the year 1981 father decided to gift the suit properties to the plaintiff and accordingly he called other children to the family house in January, 1982 and in their presence he openly declared that A and B schedule properties were given to the plaintiff as gift and from January, 1982 onwards RFA Nos.75/2004 & 491/2006 -: 5 :- plaintiff is in enjoyment of the property as the property gifted to him by his father. Father died in the year 1986. 6th defendant who was in enimical terms towards the plaintiff instigated the other children of Meeralava Rawther and at his instigation 2nd defendant had executed a sale deed in favour of 6th defendant claiming that he is a co-owner of the suit property. That document was not supported by any consideration and on the strength of that document 6th defendant tried to trespass into the property. That document is not binding on the plaintiff. Hence the suit for declaration of title and possession of plaintiff over A and B schedule properties and also for a decree of permanent prohibitory injunction. 2. Defendants 1 and 2 did not file any written statement. 3rd defendant filed a written statement contending that Meeralava Rawther died intestate leaving the plaint schedule properties for inheritance by defendants 1 to 5. The plaintiff and defendants 1 to 5 are co-owners in joint possession of the properties. 6th defendant purchased the share of defendants 2 and 5 under two sale deeds. 1st defendant died pending suit leaving his widow and children and they are also in joint possession of the properties along with the defendants. Late Meeralava Rawther and his legal heirs are hanafi muslims governed by hanafi law of inheritance. The averment that Meeralava Rawther orally gifted the properties to plaintiff in the month of January, 1982 was denied. He was entitled to get only 2/9 share in the properties . It was also contended that the allegations in paragraph 3 to 10 in the plaint were not true and correct. Defendants 1 to 5 were not sharers of RFA Nos.75/2004 & 491/2006 -: 6 :- the immovable properties owned by the deceased during his life time and the release deeds were of no use or effect. The properties given to them during the life time of Meeralava Rawther became their absolute properties and those transfers did not disqualify them from inheriting the properties on the death of their father. The deceased was the absolute owner and the person in possession of the plaint schedule properties till his death. The oral gift alleged by the plaintiff was denied. There was no such oral gift and it never took effect. During the life time of deceased he allowed the 1st defendant to put up a building in the properties having an area of 1.70 acres and his heirs are residing permanently in the house. Plaintiff and heirs of 1st defendant are taking the income for and on behalf of other legal heirs of the deceased. Till the death of 1st defendant he was taking income along with plaintiff. They were bound to account income received by them and to pay the respective share due to the other sharers. The averment that the 1st defendant put up building with the consent of plaintiff was denied. The deceased alone was the title holder of the properties and therefore, consent of the plaintiff was not required. The averment that Meeralava Rawther made a declaration in the presence of other children was denied. The affairs of Meeralava Rawther were attended by all of his sons and daughters. Plaintiff had no special role in the matter. If Meeralava Rawther had any intention to gift his properties to the plaintiff he would have executed a gift deed for which he had ample time. The 6th defendant had purchased 2/9 share of the 2nd defendant and 1/9 share of the 5th RFA Nos.75/2004 & 491/2006 -: 7 :- defendant in the properties for valid consideration. The allegations levelled against 6th defendant were denied. The averment that the 6th defendant induced the other defendants to commit trespass upon the plaint schedule properties was untrue and hence denied. It was contended that the 3rd defendant had filed O.S.No.126/1992 before the Munsiff Court, Thodupuzha for partition of her 1/9 share of the suit properties. 3. 6th defendant filed separate written statement raising contentions which are identical to those raised by the 3rd defendant in his written statement. The averments that Meeralava Rawther orally gifted the suit properties to the plaintiff and the independent possession claimed by the plaintiff were denied. Till the death of Meeralava Rawther he was the absolute owner of the properties and it was in his absolute possession and enjoyment. It was contended that Meeralava Rawther died intestate leaving his properties for inheritance by his legal heirs. When Meeralava Rawther died plaintiff and defendants 1 to 5 inherited the properties and they became the co-owners in joint possession of it. On 7.3.1992 6th defendant purchased 2/9 share of the 2nd defendant as per sale deed No.687/1992 and on 6.5.1992 he purchased the 1/9 share of the 5th defendant as per sale deed No.1294/1992. By virtue of the above sale deeds the 6th defendant stepped into their shoes. 1st defendant died pending suit leaving his widow and children to inherit his share in the plaint schedule properties. Plaintiff and defendants 1 to 5 are muslims governed by hanafi law of inheritance. 6th RFA Nos.75/2004 & 491/2006 -: 8 :- defendant was entitled to get 3/9 share in the plaint schedule properties whereas the plaintiff was entitled to get 2/9 share only. There was no gift as alleged in the plaint. The allegations contained in paragraphs 3 to 10 in the plaint were false and incorrect. During the life time of Meeralava Rawther none of the defendants had share or interest in his properties and the properties were held by him as absolute owner and, therefore, the alleged release deeds have no legal effect or legal consequences. Those documents will not affect their future right to succeed to the property left by their father. If Meeralava Rawther had given any properties to defendants 1 to 5 during his life time such acts do not disqualify them from inheriting the properties on his death. The allegation that Meeralava Rawther intended to give the plaint schedule properties to the plaintiff was false and incorrect. Meeralava Rawther never intended to give the property to the plaintiff alone. Plaintiff was a Government employee and hence Meeralava Rawther gave additional help to other children. The averments in paragraph 11 of the plaint are false and incorrect. The deceased allowed the 1st defendant to put up a house in the north-western portion of the properties. He also allowed the 1st defendant to use about 40 cents property surrounding the house for his own purpose. He was in possession of said portion till his death and after his death his wife and children are in occupation of the same. The averment that Meeralava Rawther permitted the 1st defendant to put up a building with the consent of the plaintiff was denied. Plaintiff's consent was never asked for. Plaintiff did not get right over the property RFA Nos.75/2004 & 491/2006 -: 9 :- till the death of his father. The averments in paragraph 12 of the plaint were denied. Meeralava Rawther never intended to gift his properties to the plaintiff and there was no declaration of gift by him. There was no acceptance of gift by the plaintiff and the other heirs of the deceased never consented to it. The Plaintiff never became the absolute owner of the properties. The affairs of Meeralava Rawther were looked after by all his children and the plaintiff had no special role. Till his death he was healthy and capable to execute a gift deed. 6th defendant had no enmity towards the plaintiff. The averment that the the 6th defendant induced the other defendants to trespass upon the plaint schedule properties was not true and hence denied. Plaintiff was having only 2/9 share in the properties. The 6th defendant had purchased 2/9 share of the 2nd defendant by paying Rs.15,000/-. On 20.3.1992 the 6th defendant demanded partition of the plaint schedule properties and separate possession of his share by sending lawyer notice. The said notice was served on the plaintiff on 25.3.1992. On 6.5.1992 6th defendant purchased 1/9 share of the 5th defendant as per sale deed No.1294/1992 for a consideration of Rs.8,000/-. He is in joint possession of the properties along with plaintiff and defendants 1 to 5 from the date of sale deeds. It was contended that the 3rd defendant had filed a suit as O.S.No.126/1992 before the Munsiff Court, Thodupuzha and the 6th defendant had filed a statement claiming partition and separate possession of 3/9 share. 4. Subsequent to the death of 1st defendant his heirs were impleaded as RFA Nos.75/2004 & 491/2006 -: 10 :- additional defendants 7 to 13. They filed a written statement raising the following contentions. The averments that deceased Meeralava Rawther orally gifted the plaint schedule properties to the plaintiff in January, 1982 and he became the absolute owner were denied. Plaintiff never got independent possession over the plaint schedule properties and till the death of Meeralava Rawther he was in absolute possession. He died intestate and plaintiff and defendants 1 to 5 inherited the properties. They became the co-owners in joint possession of the properties. Later the 6th defendant purchased the share of defendants 2 and 5 and since the date of such purchases the 6th defendant became a co-owner and is in joint possession of the properties along with others. The 3rd defendant had filed a suit for partition and the same was pending. The averments in paragraphs 3 to 10 are false and incorrect and hence denied. During the life time of Meeralava Rawther his children had no share or interest in his properties. The properties were held by him as absolute owner. The alleged release deeds have no legal effect or legal consequences. They would not affect their future right to succeed to the property left by their father on his death. Even if some properties were given to defendants 1 to 5 by their father during his life time that do not disqualify them from inheriting the properties left un-dispossed at the time of his death. The allegation in paragraph 10 of the plaint that Meeralava Rawther intended to give the plaint schedule properties to the plaintiff was false and denied. He never had such an intention. His intention was to leave the properties for inheritance by all RFA Nos.75/2004 & 491/2006 -: 11 :- his heirs. The plaintiff was a Government employee. Therefore, Meeralava Rawther gave some properties to his other children during his life time. The averment that the 1st defendant was residing on the north-western portion of the plaint schedule properties was denied. The 1st defendant was in possession of 40 cents of property and he was taking yield from that property from 1972 onwards. The averment that Meeralava Rawther gave consent to the 1st defendant with the permission of the plaintiff was denied. It was contended that the consent or permission of the plaintiff was not at all necessary. Apprehending eviction 1st defendant filed O.S.No.90/1992 before the Munsiff Court, Thodupuzha and in that case there was an order of injunction restraining the plaintiff or his men from trespassing into the 40 cents of property in the possession of the 1st defendant. The averment that there was a declaration by the father regarding the oral gift was denied. Other legal heirs of Meeralava Rawther did not attorn to the alleged gift . Possession of the property was not given to the plaintiff. The affairs of Meeralava Rawther were looked after by all his children. The averment that defendants 1 to 5 were induced by the 6th defendant to trespass upon the plaint schedule properties was denied. The alleged trespass was also denied. 5. Trial court raised the following issues: 1. Is the suit maintainable? 2. Whether the alleged oral gift of the plaint schedule property by Meeralava Rawther to the plaintiff is true? RFA Nos.75/2004 & 491/2006 -: 12 :- 3. Whether the declaration of title over the plaint schedule property prayed for is allowable? 4. Whether the injunction prayed for is allowable? 5. Whether the sale deed in favour of sixth defendant is liable to be set aside? 6. Whether the plaintiff is suffering from any mental infirmity and is incapable of protecting his interests? 7. Reliefs and costs. R.F.A.No.491/2006 6. This appeal is filed by the 1st defendant in O.S.No.169/1994 which was a suit filed by the first respondent in this appeal. Plaintiff in O.S.No.169/1994 was the 3rd defendant in O.S.No.171/1992. The suit was for partition of the suit properties. The averments in the suit are as follows: Suit properties originally belonged to late Meeralava Rawther who died in the year 1986 leaving behind him the plaintiff and defendants 1 to 5 as his only legal heirs. Suit properties were obtained by Meeralava Rawther under partition deed No.4124/1953. Plaintiff and defendants 1 to 5 are muslims governed by hanafi law of inheritance. Plaintiff and 4th and 5th defendants are the daughters. Defendants 1 to 3 are the sons of deceased. Daughters inherited 1/9 share and sons inherited 2/9 share each. RFA Nos.75/2004 & 491/2006 -: 13 :- Plaintiff and defendants 1 to 5 are co-owners and in joint possession of the suit properties. Defendants 1 and 2 are residing in the suit properties and they are taking yield from the properties for and on behalf of all the legal heirs of the deceased. 6th defendant purchased the share of 3rd defendant in the plaint schedule property as per sale deed No.657/1992 for valid consideration. Hence 6th defendant is also a co-owner of the plaint schedule properties along with the plaintiff and defendants 1 to 5. Plaintiff is entitled to partition and separate possession of her 1/9 share in the plaint schedule property and to realise her due share in profits. The annual mesne profits from the entire properties will come to Rs.4,500/-. She claims Rs.500/- towards her 1/9 share. Hence the suit for partition of 1/9 share of plaint schedule properties. 7. 1st defendant who was the plaintiff in O.S.No.171/1992 filed a written statement reiterating the averments he made in the plaint filed by him. It was contended that when Meeralava Rawther died in the year 1986 he had no properties of his own. The properties described in the plaint were given to the 1st defendant under an oral gift during January, 1982. This fact was known to the plaintiff and other defendants. They had attorned to the gift. 1st defendant accepted the gift in the year 1982and considered the property as his own property. 2nd defendant was given enough properties. In addition to that he was given 25 cents of property under document No.1163/1965. Likewise deceased Meeralava Rawther gave enough property or amounts which were equivalent to their share in RFA Nos.75/2004 & 491/2006 -: 14 :- the properties to the plaintiff and other defendants and after receiving those benefits they had executed release deed Nos.1097/1991, 866/1971, 648/1981 and 1095/1971 in favour of their father. Some properties intended to be given to 4th defendant were given to the 2nd defendant as additional asset and, therefore, there was delay in giving properties to 4th defendant. Deceased Meeralava Rawther gave due shares from the family properties to all his children except 1st defendant and for that purpose deceased had sold his properties at Udumbanoor and also 25 cents from the plaint schedule properties. Meeralava Rawther had three acres and 21 cents and from that one acre and 26 cents was given to the mother of 6th defendant and 25 cents was sold to give the share due to the 4th defendant, the balance one acre and 70 cents was set apart to the share of 1st defendant. The averment that on the death of Meeralava Rawther plaintiff and other defendants inherited suit properties was denied. Properties given to the 2nd defendant were sold away by him and he had no house to stay then the father with the permission of the 1st defendant