Thambiyappa @ Syed Ibrahim v. Roshan Bivi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.03.2008C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.939 of 19971. Thambiyappa @ Syed Ibrahim2. Rahima Bivi3. Kaliga Bivi... Appellants/Defendants Vs.Roshan Bivi... Respondent/PlaintiffThis Appeal has been filed as against the Judgement and Decreedated 01.09.1994 passed in O.S.No.184 of 1991 on the file of thelearned Subordinate Judge of Dharapuram.For Appellants: Mr.S.K.RaghunathanFor Respondent: No AppearanceJUDGEMENTThis appeal is directed against the judgement dated 01.09.1994and the even dated preliminary decree passed in O.S.No.184/1991 onthe file of Sub Court, Dharaapuram. The defendants in the suit arethe appellants before this Court. The plaintiff in the originalsuit is the respondent in this appeal. The first appellant/firstdefendant is the brother of appellants 2 and 3/defendants 2 and 3and respondent/plaintiff. The respondent herein had filed the abovesaid original suit on the file of learned Subordinate Judge,Dharapuram for the relief of partition and separate possessionclaiming 1/5th share in the suit properties. According to the Plaintaverments, all the three items of suit properties were that of hermother Joharammal, who died on 25.12.1981 without making anyarrangement for the succession to her estate. As such the partiesto the suit being the son and daughters of the deceased Joharammalhad succeeded to her estate. As per Mohamedan Law each one of thedaughters were entitled to 1/5th share and the first appellant beingthe son was entitled twice the share of a daughter and as such hewas entitled to 2/5th share. 2) The suit was resisted by the appellants/ respondents on thefollowing grounds:- https://hcservices.ecourts.gov.in/hcservices/ i) Since Aziammal and Bashirammal, both daughter ofHabibunnissa, the predeceased daughter of Joharammal werealive on the date of death of Joharammal, they were alsoentitled to a share in the properties left by Joharammal andthe suit filed without impleading them was bad for non-joinderof necessary parties;ii) Item 2 of the suit properties did not belong to thesaid Joharammal, as the same was the property purchased by thefather of the parties to the suit long back on 25.05.1927under a registered Sale Deed and hence the said property wasnot available for partition; ANDiii) The first appellant/first defendant incurred debtsfor the marriage of his sisters as well as the daughters ofhis deceased sister Habibunnisa and when the properties are tobe shared, the debts should also be shared in the same ratio.3) Based on the said pleadings the learned Subordinate Judge,framed the following six issues." 1) Whether the plaintiff is entitled to partition and separatepossession as prayed for?2) Is it true that the plaintiff is not in joint possession ofthe suit property?3) Whether the debts incurred by the first defendant arebinding on the parties to the suit?4) Whether the suit has not been properly valued?e) Whether the court fees paid is not correct? f) For what reliefs? "4) In the trial, except the party witnesses, no independentwitness was examined on either side. The respondent/plaintiff wasexamined as PW1 on the side of the Plaintiff, whereas the firstappellant/first defendant was examined as DW1 on the side ofdefendants. No document was produced on the side of the Plaintiff.The Sale Deed in the name of the father of the parties, namelyMd.Yousuf Rowther, dated 25.05.1927 has been produced as the onlydocument on the side of the appellants herein/defendants and markedas Ex.B1.5) At the conclusion of trial, the learned subordinate Judgeheard the arguments advanced on either side, considered theevidence, both oral and documentary, in the light of the saidarguments and came to the conclusion that the respondentherein/plaintiff was entitled to the relief of partition as prayedfor. The learned Subordinate Judge also held that the defence pleaput-forward by the appellants/defendants to the effect that the https://hcservices.ecourts.gov.in/hcservices/ suit was bad for jon-joinder of necessary parties could not besustained. The other plea that item 2 of the suit properties wasnot available for partition, as the same happened to be theproperty of Md.Yousuf Rowther (father of the parties to the suit),as the same had been purchased under Ex.B1 Sale Deed dated25.05.1927 was also turned down, holding that the said document didnot relate to any one of the suit properties, but pertained to someother property. So far as the plea of the defendants for sharing ofthe debts incurred by the first appellant/first defendant isconcerned, the lower court accepted the said contention, fixed theshare of the respondent/plaintiff in the liability towards thedischarge of the said debts at Rs.10,000/-. Accordingly, thelearned Subordinate Judge passed a preliminary decree declaringthat the respondent/plaintiff was entitled to 1/5th share in all thethree items of the suit properties and directing division of thesuit properties into five equal shares and allotment of one suchshare to the respondent/plaintiff. The preliminary decree alsoincorporates a clause directing the respondent/plaintiff to pay asum of Rs.10,000/- to the first appellant/defendant towards hershare in the liability for discharging the debts incurred by himfor the marriage of his sisters and daughters of the deceasedsister.6) Aggrieved by the said judgement and preliminary decree ofthe Trial Court dated 01.09.1994, the defendants have approachedthis court by way of the present appeal attacking the correctnessof the judgement and decree on various grounds set out in thegrounds of appeal.7)The point that arise for determination in the appeal are:1) Whether the court below has committed an error inrejecting the plea of the appellant/defendant that thesuit was bad for non-joinder of necessary parties.2) Whether the court below is wrong in holding thatEx.B1 does not relate to any one of the suit properties.3) Whether the court below is not right in fixingthe share of the respondent/plaintiff in the debtincurred by the first appellant/first defendant atRs.10,000/- alone?4) Whether the preliminary decree has got to beeither set aside or modified?8) In spite of the fact that notice was served on therespondent/plaintiff, she has not chosen to enter appearance eitherin person or through counsel. Hence this court has to decide thecase after hearing only the arguments advanced on the side of theappellants. The arguments advanced on behalf of the appellants havebeen heard and the materials available on record have also beenperused. https://hcservices.ecourts.gov.in/hcservices/ 9) Mr.S.K.Raghunathan, learned counsel for the appellants,advancing arguments on behalf of the appellants, contended that thecourt below committed an error in rejecting the contention of theappellants/defendants on the ground that the suit was bad for non-joinder of necessary parties; that, though the first daughter ofJoharammal, predeceased her, she was very much alive on the date ofdeath of her father and that hence her daughters in turn, could notbe excluded from becoming sharers of the estate left behindJoharammal. The learned counsel for the Appellant contended furtherthat the finding of the court below that Ex.B1 relates to someother property and not the second item of suit properties could notbe sustained based on the evidence on record.10) This court gave its anxious consideration to the saidcontention raised by the learned counsel for the Appellants.Point No.211) The appellants and the respondents are son and daughtersof one Joharammal. Her husband Md.Yousuf Rowther, died in the year1944. They had yet another daughter by name Habibunnisa whopredeceased Joharammal. The said Habibunnisa had two daughters byname Aziammal and Bashirammal who were alive as on 25.12.1981 thedate of death of Joharammal. Therefore, the properties left behindher by Joharammal, have to be apportioned among the sharers and theresiduaries, if any. Since the appellants/defendants have contendedthat the second item of the suit properties did not belong to thesaid Joharammal and hence not available for partition in thepresent suit, the correctness of the finding of the Court belowregarding the said contention has got to be tested at the firstinstance before considering the other aspects of the case. Insupport of their contention that the second item of suit propertiesdid not belong to Joharammal, the appellants/defendants have reliedon Ex.B1 - Sale Deed dated 25.05.1924. After going through thedescription of property found therein and considering the paroleevidence adduced on the side of the defendants through DW1, thelearned Subordinate Judge has come to a correct conclusion that thesubject matter of Ex.B1 was not the second item of the suitproperties. There is a clear admission made by DW1 in his testimonyduring cross-examination to the effect that the property purchasedunder Ex.B1 has not been shown as a suit property. The relevantportion in vernacular language is reproduced hereyunder for thepurpose of proper appreciation."Ex.B1-brhj;Jf;fs; vd; jfg;gdhh; brhj;Jf;fs; vd;Wk; mjdhy; jhd; ,ij jhthtpy; fhl;ltpy;iybad;why; rhp?"12) In view of the candid admission made by DW1 in histestimony, the challenge made to the said finding made by thelearned Subordinate Judge cannot be countenanced. Accordingly thesaid finding is hereby confirmed. https://hcservices.ecourts.gov.in/hcservices/ Point No.113) So far as the question of maintainability of the suit onthe plea of non-joinder of necessary parties is concerned, aspointed out supra, under Mohamedan Law, the shares are not allowedin stripes. In the presence of sons and daughters, daughter’sdaughters will not become sharers along with the sons anddaughters. Though a son’s daughter or a son’s son's daughter maybecome a sharer, in no circumstance, a daughter’s daughter willbecome a sharer. Admittedly, the daughters of the deceasedHabibunnisa were not even residuaries. Therefore, the finding ofthe court that they were not entitled to any share in theproperties left by Joharammal and that hence the suit was not badfor non-joinder of necessary parties, cannot be held either infirmor defective. The said findings deserve approval of this Court, asthere is no scope for interference with the same. Accordingly, thesaid finding is also confirmed.Point No.314) So far as the debts allegedly incurred by the firstappellant/first defendant towards the expenses for the marriage ofhis sister and daughters of his deceased sister is concerned, heclaimed to have spent a sum of Rs.60,000/-. The learnedSubordinate Judge held that there was no reliable evidence to provethat he incurred a debt to the tune of Rs.60,000/- towards themarriage expenses of the appellants 2 & 3 and respondent/plaintiffand for the marriage of the daughters of their deceased sister.The court has also opined that the said debt has not been proved toexist. The admission made by DW1 that none of the creditors filedany suit for the recovery of the alleged debt and no decree hadbeen obtained against him for the recovery of the said debt hasbeen cited by the learned Subordinate Judge in supportt of hisconclusion that the defence plea to the effect that the firstappellant had incurred a debt to the tune of Rs.60,000/- was notsubstantiated. However, relying on some of the admissionss made byPW1 in her evidence, though not unequivocal, the learnedSubordinate Judge seems to have come to a conclusion that the debtsincurred by the first appellant/first defendant could be assessedat Rs.50,000/- and the share of the respondent in the liability todischarge the said debt could be fixed at Rs.10,000/-. As againstthe said direction incorporated in the preliminary decree, therespondent / plaintiff has not chosen to file any appeal or crossobjection. So far as the fixation of the share of therespondent/plaintiff towards the discharge of the debt isconcerned, the appellants herein do not have any serious dispute.Therefore, the same also deserves to be confirmed.Point No.215. For all the reasons stated above, this court comes to theconclusion that the trial court has marshaled the evidence inproper manner and arrived at the correct conclusion in decreeing https://hcservices.ecourts.gov.in/hcservices/ the suit for partition and passing a preliminary decree directingthe division of suit properties into five equal shares andallotting one such share to the plaintiff and also directing therespondent/plaintiff to pay a sum of Rs.10,000/- to the firstappellant/first defendant towards her share of the debts incurredby him. There is no scope, whatsoever, for interfering with thesaid judgement and preliminary decree, which have got to beconfirmed. There is no merit in the appeal and the same deserves tobe dismissed.16) In the result, this appeal is dismissed and the judgmentand preliminary decree of the trial court dated 01.09.1994 shallstand confirmed. However, there shall be no order as to costs.Sd/-Assistant Registrar./true copy/Sub. Assistant Registrar.asrTo1.The Sub Judge, Dharmapuram.2.The Section Officer, V R Section High Court Madras.+ 1 cc to Mr.S.K.Rakhunathan Advocate SR No.16951 A.S.No.939 of 1997CMP(CO)JJM(13.06.08)