Allowed

Sheik Beer, v. Sheik Mydeen

Madras HC18 Mar 2013CRP(MD)/235/2013

Case brief

AI extract

What is this about?

This revision petition challenged the dismissal of an application to file an additional written statement claiming title via a Will discovered after the original statement. The High Court held that the new pleading was based on fresh evidence not available earlier and set aside the lower order.

What did the court decide?

The order rejecting the additional written statement application is set aside. The lower court is directed to permit the reply and dispose of the suit within specific timelines.

Sheik Beer, Vs Sheik Mydeen — Succession and Inheritance | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 18.03.2013 CORAM: THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN

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C.R.P.(PD)(MD)No.235 of 2013 & M.P(MD)No.1 of 2013

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Sheik Beer

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:Petitioner/Petitioner/ Defendant

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-Vs-

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1.Sheik Mydeen 2.Majeeth

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:Respondents/Respondents/ Plaintiffs

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Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India to set aside the order passed in I.A.No.834 of 2012 in O.S.No.15 of 2007 dated 12.10.2012 on the file of the Principal District Munsif Court, Ambasamudram.

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For Petitioner :Mr.H.Arumugam

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For Respondents :Mr.V.Meenakshi Sundaram for M/s.D.Nallathambi

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O R D E R

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Aggrieved by the dismissal of the application to receive the additional written statement, this revision is filed by the defendant in O.S.No.15 of 2007 on the file of the learned Principal District Munsif, Ambasamudram.

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2.The respondents/plaintiffs filed a suit for declaration that the suit property exclusively belonged to them. The case of the respondents/ plaintiffs is that the suit property was owned by K.P.S.Nagoor Meera Maideen and he died without leaving the issues on 19.12.1982 and at the time of his death, his wife Nagoor Meeral Beevi was alive and she also died on 15.07.1997. The original owner, namely, Nagoor Meeran Mohideen had two brothers, namely, Mohidden Abdul Kadar and Mohamed Mohideen and the plaintiffs are the children of Mohideen Abdul Kadar and Mohamed Mohideen and the other brother of K.P.S. Nagoor Meera Maideen left India and his whereabouts were not known and therefore, as per the Mohammedan Law, the plaintiffs became the legal heirs of K.P.S. Nagoor Meeran Maideen and the defendant/revision petitioner herein is the sister's son of Nagoor Meeral Beevi, the widow of K.P.S. Nagoor Meera Maideen and he has no right over the property and as the defendant, claiming title, the suit was filed for the relief prayed for.

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https://hcservices.ecourts.gov.in/hcservices/ 3.In that suit, the revision petitioner filed a written statement stating that as per the Mohammedan Law, on the death of K.P.S. Nagoor Meeral Maideen, his wife became entitled to 1/4th share and the defendant/revision petitioner is the son of the sister of Nagoor Meeral Mohideen and therefore, he is the one of the legal heirs of the Nagoor

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Meeral Mohideen and therefore, she has got share of the property. Thereafter, the revision petitioner filed I.A.No.834 of 2012 seeking permission to file an additional written statement stating that he came to know about the Will dated 11.07.1997, executed by Nagoor Meeral Beevi, widow of K.P.S. Nagoor Meeral Maideen, wherein it was stated that the original Nagoor Meeran Mohideen, orally gifted his property in favour of his wife and therefore, she became the absolute owner of the property and she left the Will dated 11.07.1997, in favour of the defendant's mother, giving absolute right to the defendant and therefore as per the Will of Nagoor Meeral Beevi, the defendant became the absolute owner of the property and the plaintiff has no title over the property and that application was dismissed by the Court below holding that in the additional written statement, the revision petitioner/ defendant is taking a mutually destructive plea from the plea taken in the original statement and admitted to take a new case by filing the additional written statement and that cannot be allowed. Aggrieved by the same, this Civil Revision Petition is filed.

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It is submitted by the learned Counsel for the petitioner that the Court below without properly appreciating the fact that the additional written statement was filed after the revision petitioner unearthed the Will executed by Nagoor Meeral Beevi and from the recitals in the Will, the revision petitioner came to know that he became the absolute owner of the property and therefore, the additional written statement was filed only on the basis of the Will which was not known to the revision petitioner while filing the original written statement and therefore, there is no question of taking mutual destructive plea or introducing a new case.

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5.Mr.V.Meenakshisundaram, learned Counsel for the respondents submitted that in the original written statement, the revision petitioner has taken a plea that Nagoor Meeral Beevi, widow of K.P.S. Nagoor Meera Maideen was entitled to 1/4 th share and after her death, her 1/4th share devolved upon the property and the revision petitioner also admitted 3/4th share of the plaintiffs and in the written statement, the revision petitioner claimed exclusive right over the property and therefore, the plea taken in the additional written statement is mutually destructive plea and that cannot be permitted.

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6.I am unable to accept the contention of the learned Counsel for the respondents. The Court below without properly appreciating the reasons stated in the affidavit filed in support of the application to receive the additional statement and also the contents of the additional statement, erred in dismissing the application. While filing the original written statement, the Will dated 11.07.1997, alleged to have been executed by the Nagoor Meeral Beevi was not available with the revision petitioner and therefore, in the absence of the Will, he admitted that the plaintiffs are entitled to 3/4th share and 1/4th share of the widow of Nagoor Meeran Mohideen had fallen on the defendant. In the absence of Will the allegations made in the written statement are correct and in the written statement the law of succession as per Mohammedan Law has been stated. Later, according to the revision petitioner, he came to know about the https://hcservices.ecourts.gov.in/hcservices/ Will alleged to have been executed by Nagoor Meeral Beevi wherein, it has been stated that during the life time of Nagoor Meeran Mohideen, he orally gifted to his property to his wife Nagoor Meeral Beevi and therefore, she became the absolute owner of the property and she executed the Will bequeathing the said properties in favour of the revision petitioner.

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Therefore, the additional written statement was filed consequent to the unearthing of the Will dated 11.07.1997 and therefore, as per the Will, the revision petitioner claimed absolute right over the property. In the original written statement, he claimed right as per the law of succession and in the additional written statement, he claimed right as per the Will. Hence, there is no question of introducing a new case or taking mutually destructive plea. If the revision petitioner is able to prove the oral gift and the Will in the manner known to law, the Court has to accept the case of the defendant, otherwise the suit has to be decreed.

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7.Hence, the order of the Court below in rejecting the application to receive the additional written statement is not in accordance with the law and the same is set aside and the revision is allowed . The respondents/plaintiffs are permitted to file the reply statement having regard to the stand taken in the additional written statement within a period of four weeks from the date of receipt of a copy of this order and the Court below is also further directed to dispose of the suit within a period of 12 weeks thereafter. No costs. Consequently, the connected Miscellaneous petition is closed.

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Sd/-

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Assistant Registrar(AS)

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/True Copy/

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Sub Assistant Registrar

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The Principal District Munsif Court, Ambasamudram.

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+1cc to Mr.H.Arumugam Advocate, Sr.No.14597 +1cc to Mr.D.Nallathambi Advocate, Sr.No.14577 gsr TS/28.03.2013/3P-4C

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C.R.P.(PD)(MD).No.235 of 2013

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18.03.2013

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https://hcservices.ecourts.gov.in/hcservices/

Sheik Beer, v. Sheik Mydeen

Case brief

What is this about?

What did the court decide?

Sheik Beer, v. Sheik Mydeen

Case brief

What is this about?

What did the court decide?

What the court decided

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