Dismissed

Domkage Biddaruge Hassan v. Kudege Bavage Kaddha

Kerala HC18 Jan 2010AS/1052/1998

Case brief

AI extract

What is this about?

In an appeal against the dismissal of a suit for cancellation of a gift document and recovery of possession, the High Court of Kerala affirmed the trial court's finding. The Court held that the plaintiffs lacked title as their father predeceased the deceased sister, and the executed gift document by the surviving sister and defendant was valid.

What did the court decide?

The appeal was dismissed. The judgment and decree of the court below were confirmed.

Domkage Biddaruge Hassan Vs Kudege Bavage Kaddha — Succession and Inheritance | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID

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MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931

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AS.No. 1052 of 1998(C) ---------------------OS.10/1997 of DISTRICT COURT, LAKSHADWEEP ....................

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APPELLANT(S):

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--------------

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1. DOMKAGE BIDDARUGE HASSAN, S/O.HUSSAIN MEERAKAJIGE, MINICOY (UNSOUND MIND), REPRESENTED BY NEXT FRIENT APPELLANT NO.2 DARUGE ATHIRIGE DHELEKA).

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2. DARUGE ATHIRIGE DHELEKA, W/O.HUSSAIN MEERAKAJIGE, MINICOY. PLAINTIFF NO.1 IN THE SUIT BECAME OF UNSOUND MIND PENDING SUIT AND PLAINTIFF NO.2 WAS PERMITTED TO SUE AS NEXT FRIENT ON HIS BEHALF AS CAN BE SEEN IN THE ENDORSEMENT IN THE DECREE OF THE TRIAL COURT.

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BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SMT.M.M.TEENA

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RESPONDENT(S):

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---------------

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1. KUDEGE BAVAGE KADDHE, D/O.KUDEGE BAVAGE ALI, MINICOY.

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2. KUDAGE BAVAGE AMINA, D/O.HUSSAIN ESSA KUNNAGE, MINICOY. (DEFENDANT NO.1 DIED PENDING SUIT WITHOUT LEAVING ANY LEGAL HEIRS).

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/01/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING.

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HARUN-UL-RASHID, J.

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A.S. No. 1052 OF 1998

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Dated this the 18^th day of January, 2010

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The plaintiffs in O.S.No.10/97 on the file of the District Judge, Lakshadweep, Kawaratti Island are the appellants. The suit was filed for declaration, cancellation of document, recovery of possession and consequential injunction. The Court below held that the plaintiffs have failed to prove the title or possession over the plaint schedule property, that the document No.32/87 cannot be held illegal, invalid and also held that the plaintiffs are not entitled to any reliefs sought for in the plaint. Against the dismissal of the suit plaintiffs are preferred this appeal. The parties hereinafter referred to as plaintiffs and defendants.

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It is the common case of the parties that the plaint schedule property belonged to Meerahajige Amina. She died issueless. Amina had one brother and two sisters. Her brother Hussain is the father of the plaintiffs. It has come out in evidence that Hussain predeceased Amina. At the time of the death of Amina her two sisters are alive. They are the first defendant and one Havva.

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According to the plaintiffs the property left behind by

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A.S.No.1052 of 1998

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: 2 :

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Amina was inherited by her father Hussain, the first defendant and Havva. On the death of Hussain his right in the property devolved on the plaintiffs and they are in possession and enjoyment of the property along with the first defendant. The other sister of Amina by name Havva also died.

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The plaintiffs' case is that the second defendant influenced the first defendant and on misrepresentation, managed to get document No.32/87 executed in favour of 3^rd defendant, the daughter of second defendant. According to the plaintiffs' the first defendant alone or jointly with the second defendant has no right to execute such document, that document is void and therefore liable to be set aside. The plaintiffs' prayed for a declaration that document No. 32/87 is illegal, invalid and ab initio void. Alternatively it is prayed for cancellation of the said document and for recovery in case it is found that the defendants 2 and 3 are in possession of the property.

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The first defendant filed written statement supporting the claim of the plaintiffs. She died during the pendancy of the suit. The second defendant contested the suit. She denied the allegations in the plaint and inter alia contented that the male members have no right in the property, that late Hussain, who is the brother of Amina was residing in his wife's house, that the plaintiffs' father Hussain predeceased late Amina and therefore the plaintiffs cannot claim any right over the property scheduled

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A.S.No.1052 of 1998

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: 3 :

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to the plaint. It is also pleaded that the first defendant and the deceased Havva were residing along with the second defendant under her care and protection. At the time when they were living together, first defendant and Havva gifted item No.1 and 2 in favour of the second defendant. Subsequently by the impugned document, the first defendant and the second defendant gifted the property to the 3^rd defendant who is the daughter of the second defendant. The sister Havva died on 21.1.1982. The first defendant continued her stay with defendants 2 and 3 under their care. It is also contended that item No.1 property is originally settled in the name of Amina, that after her death, her sisters Fathima and Havva filed application and rough patta was finalised in the name of Havva and Fathima. The item No. 1 property was in the possession and enjoyment of the two sisters. With regard to the item No.2 property, it is stated that the property was settled in the name of Havva, that rough patta was settled and finalised in the name of Havva on 22.7.1979. Before the finalisation of the proceedings Havva expired.

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It is the second defendant's case that in consideration of love and affection to the second defendant, the said Havva had gifted her rights in the property to the second defendant and thus she acquires title in respect of Havva's share in item No.1. Havva being the owner of item 2 and holder of ½ share in item No.1 and the first defendant who is the title holder of the other ½ share

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A.S.No.1052 of 1998

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: 4 :

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jointly executed document No.32/87 in favour of the 3^rd defendant and thus 3^rd defendant is in possession and enjoyment of the suit property as absolute owner. It is also pleaded that since the male members are not entitled to inherit the share of a female member, neither the plaintiffs nor their father can claim any right over the property. The second defendant also pleaded that the impugned document has executed with full knowledge and consent of the first defendant on her free will.

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The 3^rd defendant has also filed statement supporting the contentions of the second defendant.

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The parties adduced evidence in support of their respective contentions. PW1 and DW1 were examined, Exts.A1 to A3 and D1 to D5 were produced. The court below framed necessary issues. In the preceding paragraph, I have narrated in detail the contentions of the parties. The court below examined the oral and documentary evidence. Second plaintiff as PW1 admitted her father predeceased Amina and admitted that the 3^rd defendant is in possession of the property under document executed by defendants 1 and 2.

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In the plaint it is pleaded that plaintiffs' father Hussain is one of the legal heirs of the deceased Amina and that Plaintiffs' father and 2 sisters inherited the property. The second defendant testified before the court that her father predeceased Amina. The plaintiff sued the defendants on the basis that they

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A.S.No.1052 of 1998

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: 5 :

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being the children of Hussain are entitled to inherit the property of their father. It has come out in evidence that late Hussain died before the death of Amina and therefore the plaintiffs are not entitled to inherit the property of late Amina.

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The learned counsel on behalf of the appellants contented that the court below failed to consider the fact that the suit properties were the absolute properties of late Amina, that under the personal law of the parties the two sisters and plaintiffs' father are entitled to succeed to the estate of deceased Amina, that “Marumakkathayam” law is not applicable to the personal properties. The learned counsel for the appellants also contended that under the personal law, the children of the deceased brother is also entitled to succeed to the estate of the deceased sister along with the sisters of the deceased. The parties are entitled to the shares in accordance with the personal law of the parties. The case set up in the plaint is that the plaintiffs' father inherited the property of late Amina and he died subsequently. The court below also had taken note of the fact that the sisters of Amina by name Havva died in the house of the second defendant and that Fathima and Havva lived together under the care and protection of the second defendant at her house. Therefore the case set up by the second defendant that Havva during her lifetime gifted her share to the second defendant is true. The subsequent execution of the impugned document by the second defendant and the first

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A.S.No.1052 of 1998

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: 6 :

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defendant in favour of the 3^rd defendant is acceptable. The two sisters lived under the same roof and are under the care and protection of the second and third defendant. Ext.A1 gift executed in favour of the 3^rd defendant by defendants 1 and 2 therefore cannot be assailed for the reasons stated in the plaint for want of proof.

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There is no proof to arrive at a different conclusion that the document executed by them is void for the reason of misrepresentation or fraud. Ext.A1 is a registered document. The registration was taken up before the Sub Registrar, Minicoy.

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The court below examined all the contentions raised by the plaintiffs, appreciated the evidence and arrived at the above conclusion. I do not find any reason to take a view different from the view taken by the court below. The judgment and decree passed by the court below suffers from no legal infirmity.

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In the result, the appeal fails. Judgment and decree passed by the court below are confirmed. The appeal is dismissed. There is no order as to costs.

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(HARUN-UL-RASHID, JUDGE)

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jma

Domkage Biddaruge Hassan v. Kudege Bavage Kaddha

Case brief

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Domkage Biddaruge Hassan v. Kudege Bavage Kaddha

Case brief

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