APPELLANTS/RESPONDENTS 1,2,4,5 AND LEGAL REPRESENTATIVES OF DECEASED THIRD RESPONDENT/DEFENDANTS 1,2,5 AND LEGAL REPRESENTATIVES OF DECEASED THIRD DEFENDANT (LEGAL REPRESENTATIVES ARE APPELLANTS 1, 2 AND RESPONDENT NO.3)

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1 IBRAHIMKUTTY MOHAMMED ISMAIL RESIDING AT CHERAKKOTTU VEEDU, KOTTUKAL MURI, ITTIVA VILLAGE, KOTTARAKARA TALUK.

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2 IBRAHIMKUTTY JAMALUDEEN, RESIDING AT -DO- -DO- -DO-

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BY ADVS. SRI.P.R.VENKETESH

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RESPONDENTS/APPELLANTS 1 AND 2/RESPONDENTS 4 & 5/PLAINTIFFS 1 AND 2/DEFENDANTS 4 AND LEGAL REPRESENTATIVE OF THIRD DEFENDANT :

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1 S.PATHUMUTH

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RESIDING AT KUNNUVILA VEEDU, PERINGALLOOR MURI, EDAMULACKAL VILLAGE.(DIED) (LEGAL HEIRS IMPLEADED AS ADDL.R5 TO R11)

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2 S.SALIKHA UMMAL, RESIDING AT KUNNUMPURATHU VEEDU, VAYACKAL MURI, EDAMULACKAL VILLAGE.

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SA 75 & 418 of 1997

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SA.No. 418 of 1997(G)

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3 S.ASUMA BEEVI, CHERAKKOTTU VEEDU, KOTTUKAL MURI, ITTIVA VILLAGE, KOTTARAKKARA TALUK.

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4 NABEESATH BEEVI, CHARAKOTTU VEEDU. -DO- -DO- -DO-

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ADDL.RESPONDENTS :

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5 SAINULLABDEEN A

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KUZHIVILA VEEDU, THAZHAMEL, ANCHAL P.O, KOLLAM DISTRICT.

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6 ABDUL KAREEM A -DO- -DO-

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7 JAMEELA BEEVI A

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-DO- -DO-

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8 THAJA BEEVI C/O MAZOOD, HOUSE NO.12135-A1, PATTUPPOOCHI ROAD, POOLANKUDIYIRUPPU, PULIYARA P.O, CHENKOTTA, TAMILNADU.

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9 NABEEBATH BEEVI A C/O NIZAM CYCLE SHOP PERIYAPALAM, PERIYAR P.O, CHENKOTTA, TAMILNADU.

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10 AMEENA BEEVI A C/O DARAYAPPA, HASEENA 12/36-A-3, PATTUPPOOCHI ROAD, PALAMKUDIYIRUPPU, PULIYARA P.O, CHENKOTTA, TAMIL NADU.

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11 AREEFA BEEVI A C/O DURAYAPPA, HOUSE NO.12/36-A-D, PATTUPPOOCHI ROAD, PALAMKUDIYIRUPPU, PALIYARA P.O, CHENKOTTA, TAMILNADU. (LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 11 AS PER THE ORDER DATED 30/10/2018 IN IA.923/2003)

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ADV.SRI.B.S.SWATHI KUMAR (R4, R6, R8, R10 & R11)

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2018 ALONG WITH S.A.NO.75 OF 1997, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SA 75 & 418 of 1997

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P.B.SURESH KUMAR, J.

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Second Appeal Nos.75 & 418 of 1997

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Dated 30^th October, 2018.

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J U D G M E N T

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Among these appelals S.A.No.75 of 1996 arises from O.S.No.113 of 1982 on the files of the Munsiff Court, Punalur and S.A.No.418 of 1997 arises from O.S.No.146 of 1981 on the files of the same court. As the said suits were tried jointly treating O.S.No.146 of 1981 as the lead case, the parties are referred to in this judgment, as they appear in O.S.No.146 of 1981, for the sake of clarity.

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O.S.No.146 of 1981, as instituted initially, was one for a decree of permanent prohibitory injunction restraining the defendants from interfering with the possession of the plaintiffs over the plaint schedule property. The plaint schedule property then was an item measuring 2 acres and 14 cents. Later, the suit was amended as one for cancellation of Ext.B4 partition deed and for partition of the plaint schedule items 2 to 4 properties which is a portion of the original plaint schedule property. When the plaint was amended, the original plaint schedule was also amended as the plaint schedule item No. 1.

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SA 75 & 418 of 1997

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The plaintiffs, two in number, are the daughters of one Saraummal in her wedlock with one Vavakunju. Saraummal had three daughters in the said wedlock and the fourth defendant is the remaining daughter. On the of death of Vavakunju, Saraummal married his brother, the third defendant. Defendants 1, 2 and 5 are the children born to Saraummal in her wedlock with the third defendant. The plaint schedule item No.1 property belonged to Saraummal. It comprises of three different items measuring 69 cents, 73 cents and 72 cents, respectively. The plaint schedule item Nos.2 and 3 are the items measuring 69 cents and 73 cents included in the plaint schedule item No.1 and the plaint schedule item No. 4 property is 36 cents out of the remaining item measuring 72 cents. The case of the plaintiffs is that Saraummal settled 36 cents out of the item measuring 72 cents in their favour in terms of Ext.A1 document and the remaining properties devolved on the parties on the death of Saraummal. It is also the case of the plaintiffs that Ext.B4 partition deed executed between the parties for partition of the plaint schedule item No.1 property ignoring Ext.A1 settlement is vitiated by fraud and misrepresentation as their signatures were obtained in the said document by the first defendant without disclosing the nature of the document to them. According to the plaintiffs, in the circumstances, Ext.B4 partition deed is liable to be cancelled and plaint schedule items 2 to 4 properties have to be partitioned among the parties.

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Defendants 1 and 2 contested the suit. The stand taken by

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SA 75 & 418 of 1997

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defendants 1 and 2 in the written statement filed by them was that Ext.B4 partition deed is not vitiated for any reason and that the same would bind the plaintiffs. Alternatively, it was also contended by defendants 1 and 2 that the plaint schedule item No.3 property measuring 73 cents though belonged to Saraummal originally, she settled the said property in favour of the third defendant in terms of Ext.A11 gift deed and that therefore, the plaintiffs who are the children of Vavakunju are not entitled to claim partition in respect of the said property.

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O.S.No.113 of 1982 was a suit filed by defendants 1 and 2 and the wife of the second defendant for declaration of their rights over the suit properties in accordance with Ext.B4 partition deed and for consequential reliefs. The plaintiffs contested the said suit contending mainly that Ext.B4 is an invalid document.

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The trial court found that the plaintiffs have not established that Ext.B4 partition deed is vitiated. Consequently, it dismissed O.S.No.146 of 1981 and decreed O.S.No.113 of 1982. The plaintiffs challenged the decisions in the suits in appeals. The appellate court found that Ext.B4 is invalid. Consequently, it decreed O.S.No.146 of 1981 and dismissed O.S.No.113 of 1982, reversing the decision of the trial court. Defendants 1 and 2 and the second plaintiff in O.S.No.113 of 1982 are aggrieved by the decisions of the courts below. Hence these second appeals.

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SA 75 & 418 of 1997

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Heard the learned counsel on either side.

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The appellate court found that plaintiffs are illiterate rustic

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village women; that the first defendant being an educated person in the family and a teacher, the plaintiffs were depending solely on him for their affairs; that in terms of Ext.B4 partition deed, a substantial portion of the suit properties were allotted to the children of Saraummal in her wedlock with the third defendant; that even while the 36 cents of property settled by Saraummal to the plaintiffs during her lifetime in terms of Ext.A1 document was taken back and included in the said partition, the plaintiffs and the fourth defendant were given only 30 cents out of the total extent of 2 acres and 14 cents, and that Ext.B4 partition, in the circumstances, can only be a document vitiated by fraud, misrepresentation and undue influence, for there is no reason for the plaintiffs to put their signatures on such a document, if they are informed about the contents of the same. It is in the light of the said findings that the appellate court reversed the decision of the trial court and decreed O.S.No.146 of 1981 as prayed for by the plaintiffs and dismissed O.S.No.113 of 1982.

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The finding rendered by the appellate court that Ext.B4 partition deed is invalid cannot be said to be illegal in the light of the findings rendered by the appellate court. No argument sufficient enough to interfere with the said findings was also advanced by the learned counsel for the appellants. The focus of the learned counsel for the appellants, however, was on two other points. It was contended by the

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SA 75 & 418 of 1997

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learned counsel that even if it is found that Ext.B4 is vitiated, the plaintiffs are not entitled to the decree granted to them by the appellate court in O.S.No.146 of 1981. Placing reliance on Ext.B20 purchase certificate in the name of the third defendant, the learned counsel elaborated this contention pointing out that 61 cents out of the plaint schedule item No.2 property belonged to him and the plaintiffs, therefore, are not entitled to claim a share in the said item of property. Likewise, it was also contended by the learned counsel that though plaint schedule item No.3 property measuring 73 cents originally belonged to Saraummal, she executed Ext.A11 settlement deed in respect of the property in favour of the third defendant during his lifetime itself and as such, the plaintiffs are not entitled to claim a share in the said item of property as well.

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A perusal of the written statement as also the additional written statement filed by defendants 1 and 2 in the suit indicates that defendants 1 and 2 have not taken any contention that 61 cents out of the 69 cents of property included in the plaint schedule item No.2 belongs to the third defendant or that the said property is not partible. Even the third defendant had not claimed in the written statement filed by him that the said 61 cents of property belongs to him. On the other hand, the only contention raised by the third defendant in the written statement filed by him is that 8 cents out of the said 69 cents of property belongs to him. It is seen that even the said contention was not pursued

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SA 75 & 418 of 1997 10

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further by the third defendant. It is curious also to note in this connection that defendants 1 and 2 have not even raised a ground in the second appeal nor did they formulate any substantial question of law in the second appeal concerning the partibility of the said 61 cents of property. In the absence of any contention for defendants 1 and 2 as regards the partibility of the said 61 cents of property covered by Ext.B20 purchase certificate, they are not entitled to raise such a contention for the first time in the second appeal. It is all the more so since, the third defendant has not refuted the case of the plaintiffs that the said property belonged to Saraummal. The said contention, according to me, is one which has been waived by defendants 1 and 2 for reasons best known to them and such contentions cannot be raised out of the blue in a second appeal. The contention advanced by the learned counsel on the basis of Ext.B20 purchase certificate is, therefore, rejected.

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As noted, there is no dispute to the fact that the plaint schedule item No.3 property measuring 73 cents originally belonged to Saraummal. The case of the plaintiffs is that Saraummal died intestate and consequently, the said property devolved on the parties to the suit. The case of defendants 1 and 2, on the other hand, is that Saraummal executed Ext.A11 settlement deed in respect of the said property in favour of the third defendant during her life time and that therefore, the plaintiffs are not entitled to claim any share in the said property. Ext.A11 cannot be construed as a document settling absolute interest in the

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SA 75 & 418 of 1997 11

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property in favour of the third defendant. It is stated by Saraummal in the document that the same is executed as she wants the property to be possessed by the third defendant also along with her for his livelihood. It was, however, made clear by Saraummal in the document that the third defendant shall not alienate the rights conferred in terms of the document without her junction. It was also made clear by Saraummal in the document that if she dies earlier, the third defendant will be entitled only to possess and enjoy the property during his lifetime and he will not be entitled to have any other rights in the property. Of course, it is stated by Saraummal in the document that the property is one to be inherited by their children after their death. A close reading of the document as a whole reveals to me that the said recital is not a disposition in favour of their children including unborn, but only an explanation for limiting the estate granted in favour of the third defendant. In other words, according to me, what Saraummal meant in terms of the said recital is only that the third defendant shall not alienate the property in favour of strangers. Insofar as the necessary ingredients of a gift under the Mohammedan law, namely (i) declaration of gift by the donor; (ii) acceptance of the gift, express or implied, by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee are not satisfied, Ext.A11 cannot be construed as a gift in favour of the children of the third defendant born to Saraummal. The same cannot also be construed as a will, as under the Mohammedan l aw, there cannot be any

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SA 75 & 418 of 1997 12

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will in favour of a heir without the consent of other heirs. The recital aforesaid, that the property is one to be inherited by their children including unborn after the death of Saraummal and the third defendant can, therefore, be construed only as a desire expressed by Saraummal. Merely for the reason that such a desire was expressed by Saraummal in the document, defendants 1 and 2 cannot claim absolute right in the said property. The argument advanced by the learned counsel based on the said document also, therefore, fails. The second appeals, in the circumstances, are devoid of merits and the same are, accordingly, dismissed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

Ibrahimkutty Mohammed Ismail v. S. Pathmuth

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Ibrahimkutty Mohammed Ismail v. S. Pathmuth

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