Dismissed

K.P.Sainaba Umma v. P.K.Aseena

Kerala HC10 Mar 2016AS/361/1997

Case brief

AI extract

What is this about?

In this appeal against the dismissal of a suit for partition of immovable properties, the High Court of Kerala held that the plaintiff failed to prove an oral gift or that the property was partnership firm asset. The court affirmed the lower court's dismissal as the fundamental requisites for a valid gift were not met.

What did the court decide?

The appeal filed by the appellant-plaintiff against the dismissal of her suit for partition is dismissed with no order as to costs.

K.P.Sainaba Umma Vs P.K.Aseena — Partition | Kerala HC (2016)

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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 ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937

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AS.No. 361 of 1997 (E)

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AGAINST THE ORDER/JUDGMENT IN OS 71/1993 of ADDL. SUB COURT,THALASSERY DATED 30-09-1996

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APPELLANT(S)/PLAINTIFF:

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KALLUKETTIYA PEEDIKAYIL KURUKKAN PADINJAREPURAYIL SAINABA UMMA, D/O.MAMMED, RESIDING AT KIZHAKKEPURA, POOTHAPARA, AZHIKODE, KANNUR TALUK (DIED)

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R10 IN THE APPEAL IS TRANSPOSED AS SUPPL. APPELLANT NO.2

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(RESPONDENT NO.10 IN THE APPEAL IS TRNASPOSED AS SUPPLEMENTAL SECOND APPELLANT VIDE ORDER ON IA.1671/06 DT.14.8.06)

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BY ADVS.SRI.T.SETHUMADHAVAN

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SRI.K.MOHANAKANNAN

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RESPONDENT(S)/DEFENDANTS:

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P.K.ASEENA, D/O.B.ERAMULLAN RESIDING AT KOTTAKKAN HOUSE, OCCUPATION NIL, MILL ROAD, BALIAPATTAM P.O., KANNUR TALUK.

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K,P.UMMERKUNHI /O.P.K.ABDULLA HAJI, PAREKANDY, KANNUR P.O., KANNUR, KANNUR TALUK.

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- K.P.HAMZA, S/O.P.K.ABDULLA HAJI OCCUPATION NIL, KOTTAKKAN HOUSE, MILL ROAD, BALIAPATTOM KANNUR TALUK (DIED)

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K.P.MARIYUMMA. D/O.P.K.ABDULLA HAJI RESIDING AT KIZHAKKEPURA, KANNUR 9 KANNUR TALUK.

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K.P.RABI D/O.P.K.ABDULLA HAJI RABIYYAD, KODAPPURAM ROAD, P.O.AZHIKODE, KANNUR -9 KANNUR TALUK.

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K.P.KUNHAYISU, D/O.P.K.ABDULLA HAJI, OCCUPATION NIL, RESIDING AT KIZHAKKAPARA AZHIKODE, KANNUR -9, KANNUR TALUK.

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- K.P.KUNHAMINA, D/O. -DO- OCCUPATION NIL RESIDING AT BRICK HOUSE, PUTHIYAPARAMBA ROAD, KANNUR -9, KANNUR TALUK (DIED)

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AS.361/97

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K.P.ASEENA, D/O. -DO- OCCUPATION NIL RESIDING AT C.P.HOUSE, KADAPPURAM ROAD, KANNUR 9, KANNUR TALUK.

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K.P.IBRAHIMKUTTY, S/O. -DO- BUSINESS, KUNNITTA VEEDU, NEAR MEAT MARKET, KANNUR CITY, KANNUR -3. KANNUR TALUK.

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K.P.MOHAMMEDKUNHI, S/O.P.K.ABDULLA HAJI AGED 45, ENGINEER, PATHIMA VILLA, KANNUR -2. KANNUR TALUK (R10 IS TRANSPOSED AS SUPPL. APPELLANT NO.2)

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K.P.MOOSAKUNHI, S/O. -DO- BUSINESS, 'LITTLEGEM', NEAR MILITARY HOSPITAL, PAYAMBALAM, KANNUR, KANNUR TALUK.

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K.P.NAFEESU, S/O.P.K.ABDULLA HAJI OCCUPATION NIL, RESIDING AT KIZHAKKEPARA AZHIKODE, KANNUR -9, KANNUR TALUK.

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P.K.NIAZ AHAMMED, SON OF P.K.ASEENA, OVINTAKOTH HOUSE, NEAR RAILWAY MUTHAPPAN KAVU KANNUR 7.

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ADDL.14. P.K.ABDULLA, S/O.LATE K.P.HAMSA KADAPURAM ROAD, POOTHAPARA, KANNUR 670 009.

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ADDL.15. P.K.IRSHAD, S/O.LATE K.P.HAMSA KADAPURAM ROAD, POOTHAPARA, KANNUR 670 009.

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ADDL.16. P.K.FOUSIYA, D/O.LATE K.P.HAMSA KADAPURAM ROAD, POOTHAPARA, KANNUR 670 009.

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(LEGAL HEIRS OF DECEASED R3 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 14 TO 16 VIDE ORDER DT.8.6.15 IN IA.963.15)

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(IT IS RECORDED THAT 7TH RESPONDENT DIED AND RESPONDENTS 2 TO 6 AND 8 TO 12 ALREADY IN THE PARTY ARRAY ARE HER LEGAL HEIRS AS PER ORDER DTD.20.2.13 IN MEMO DTD.25.6.12 CF.NO.3815/12)

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R2, R10, R11 BY ADV.T.A.RAMADASAN R12 BY ADV

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R1 & 13,R14-R16 BY ADV. SRI.V.R.VENKATAKRISHNAN (SR.) R1 & 13,R14-R16 BY ADV. SRI.N.K.SUBRAMANIAN R1 & 13 ADDL 14-R16 BY ADV. SRI.S.ANANTHAKRISHNAN

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THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC & A. HARIPRASAD, JJ.

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----------------------------------A.S.No.361 of 1997

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----------------------------------Dated this the 10^th day of March, 2016

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JUDGMENT

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Hariprasad, J.

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Appellant is the plaintiff in O.S.71/93 before the I Additional Sub Court, Thalasseri. The suit is one for partition of immovable properties described in the plaint schedule.

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2.We heard learned counsel for the plaintiff and the senior counsel appearing for defendants 1, 3 and 13. Briefly stated, the averments in the pleadings are as follows: The properties described in the plaint schedule originally belonged to one Eramullan. He purchased the property as per an assignment deed dated 16.9.1940. According to the plaint averments, the property was having an extent of 1 Acre and 1 Cent. There was a shed in the property. The plaintiff would contend that Eramullan made an oral gift of the property in the name of six persons, viz., K.P.Aamu, K.P.Moidu, both sons in law of Eramullan, P.K.Hamza, the son of Eramullan, P.K.Aysumma, wife of Eramullan and P.K.Abdulla Haji

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and P.K.Ibrahimkutty both brothers in law of Eramullan. They started a business in the name and style “Deshi Commercial Textiles” as a partnership firm. It is also mentioned in the plaint that P.K.Moidu released his 1/6^th share in the property in the year 1952 in favour of P.K.Abdulla. On the death of Abdulla, his 2 shares in the property devolved on his wife and children, viz., the plaintiff and defendants 2 to 12. In 1960, Ibrahimkutty released his full right in favour of Aysumma. P.K.Hamza also released his half right to Aysumma and the remaining half right was given to K.P.Hamza and he, in turn, gave it to Sainaba, the plaintiff. According to the plaint averments, the plaintiff is entitled to one half share exclusively and 2 shares along with defendants 2 to 12 as legal representatives of deceased Abdulla. Other assignments were also made in between the parties. Ultimately, the plaintiff claims 48 shares out of 384. It is the case of the plaintiff that the defendants, who are co-owners, refused to share profits for six years before institution of the suit. Hence the suit for

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partition is filed.

3.Defendants 1 and 3 jointly filed a written statement. According to the averments in the written statement, the suit for partition is totally mischievous and misconceived. The extent of property shown in the plaint is incorrect. According to the defendants, it is indicative of the fact that the plaintiff has no idea about the identity of the property. The contention of the plaintiff that Eramullan orally gifted the property in the name of six persons named in the plaint is false. An industry was functioning in a portion of the property is an admitted fact. But the property scheduled to the plaint never become the property of a partnership firm. The plaintiff and the contesting defendants were never co-owners. The contesting defendants contended that after the death of Eramullan, legal representatives partitioned the property in the plaint schedule and alloted the same in the name of first defendant as item No.5 in I schedule of Ext.P13 partition deed. The plaintiff is not entitled to get any share of profit. Therefore,

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the defendants canvassed for dismissal of the suit. At the time of trial, Exts.A1 to A10 were marked on the side of the plaintiff and Exts.B1 to B91 on the side of the contesting defendants. PW1 and DWs.1 and 2 were also examined.

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4.Learned counsel for the appellant-plaintiff vehemently contended that the court below failed in properly considering the contentions. According to the learned counsel, the court below should have found that the property was orally gifted in favour of six persons named in the plaint by the then owner, Eramullan and thereafter, a partnership firm was formed by them for starting an industry. Learned senior counsel for the contesting respondents contended that the oral gift is not proved and therefore, the court below is legally justified in dismissing the suit.

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5.We have carefully gone through the evidence on record. Eramullan acquired the property as early as on 16.9.1940. He died in the year 1950 is an

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undisputed fact. When the oral gift in favour of the six persons named in the plaint was made is not specifically pleaded. PW1, going by his age, is incompetent to prove the oral gift. At the time of the alleged oral gift, at the most he must have been a one year old boy. Therefore, whatever that he has spoken to in respect of the oral gift is only hearsay. There is no documentary evidence probabilising the oral gift. Learned counsel for the appellant relied on Exts.A1 to A3 to contend that those documents clearly spell out an oral gift. Per contra, learned counsel for the contesting respondents would contend that what was released as per Exts.A1 to A3 was only rights in respect of the assets of the partnership firm. It is the contention of the contesting respondents that there is no material on record to hold that the plaint schedule property was ever treated as the asset of the firm. It is pertinent to note that no document is produced to show that the plaint schedule property was ever made as the asset of the firm. Even though there is a case that a partnership was formed by creating a

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document, non production of the same is also fatal to the case of the plaintiff.

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6.It is essential for proving an oral gift by a Mohammedan that there must be a declaration to make a gift, acceptance of the gift by the donee and delivery of possession. Without these three ingredients, no Mohammedan gift can be upheld. In this case, there is no reliable evidence to hold that there was a completed oral gift of the plaint schedule item in favour of the six persons named in the suit. In the absence of proof of this fundamental aspect, none of the other questions assume relevance. To crown all these things, the properties owned by the partnership has also not been established. These are the major flaws in the case of the plaintiff highlighted by the court below in its judgment.

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7.After hearing learned counsel on both sides and on perusal of the materials on record, we do not find any reason to find that the court below committed

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either factual or legal mistake in dismissing the suit. In the result, this appeal is dismissed.

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Sd/ANTONY DOMINIC, Judge.

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Sd/-

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A. HARIPRASAD, Judge.

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kkb.

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/True copy/

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PS to Judge

K.P.Sainaba Umma v. P.K.Aseena

Case brief

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K.P.Sainaba Umma v. P.K.Aseena

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