S.G. Mahaboob Basha (Died) v. Tmt. Najumunnissa

5. M. Mohamed Zakir Hussain5th"Son2/166. Azathunnissa6th "Daughter1/167. Naseemunnissa 7th "Daughter1/168. Zeenathunnissa 8th"Daughter1/169. Najumunnissa9th "Daughter1/16---------------------------------------------------------------------7. Accordingly, the respondent/plaintiff is entitled to 1/16thundivided share in the estate of the deceased Ameena Bee. Therespondent/plaintiff is in joint possession of the suit property withthe appellants/defendants. The first appellant/first defendant usedto pay Rs.500/- every year towards share of a profit due to therespondent/plaintiff and she used to receive the same out of respectthough same is meager. The respondent/plaintiff is keeping some ofher household articles in Adam Street property. Therespondent/plaintiff wanted her share to be separated by metes andbounds. Since the appellants/defendants have not heeded to therequest of the respondent/plaintiff, a lawyer notice dated 9.9.99 hasbeen issued by her to all the appellants/defendants, calling uponthem to agree for the partitioning of the suit property. However,the appellant/defendant 1 to 5 has given a reply dated 18.9.99,whereby they allege that the respondent/plaintiff's mother has giftedthe properties in favour of the defendants 2 to 5. Though theyallege of an existence of 'HIBA', they have not furnished the fullparticulars of the same. The date of such gift and other particularshave not been given. The encumbrance certificate already obtained bythe respondent/plaintiff from the Sub-Registrar (North), Chennai doesnot refer the any Gift Deed at all. Moreover, the reply withoutspecifying the nature, date and particulars in regard to the gift hasmade the respondent/plaintiff to apprehend that theappellant/defendant 2 to 5 are trying to create or fabricate thedocuments to defect her claim. The respondent/plaintiff's mother hasnot made any 'HIBA' in regard to her properties at any time. If theappellants/Defendants 2 to 5 alleged any gift , then it is a case ofthe respondent/plaintiff that they have created or fabricated thesame and that the said document is not true or a genuine one. Therespondent has sent a rejoinder on 12.10.99 expressing herapprehension. Even thereafter, the appellants/defendants 2 to 5 havenot come forward to furnish the particulars nor they have sent a copyof the alleged gift deed. The respondent/plaintiff's mother has atno time gifted the properties. However the defendants 6 to 8 havenot issued any reply.8. The respondent/plaintiffs mother has no occasion to gift theproperties in favour of her sons. The respondent/plaintiff's motherbeing a richest lady, she has not taken a decision to part aware ofher properties and to leave as a pauper. In fact therespondent/plaintiff's mother wanted to have a hold upon her sons anddaughters-in-law by holding her properties for her future and she hasnot dreamt of gifting the properties to anyone. The first https://hcservices.ecourts.gov.in/hcservices/ appellant/deceased first defendant is the father of therespondent/plaintiff and is sick and bedridden and he cannot doanything independently. Hence, the respondent/plaintiff has filed asuit praying for passing of preliminary decree for partition ofseparate possession of her 1/16th share in the suit property etc.9. The written statement pleas of the appellants/D1 to D6 and D8are as follows:The appellants/defendants do not admit the items mentioned initem three of the plaint schedule. It is true that the building initem one of the suit schedule properties have been occupied by thetenants of defendants 2 to 5. It is not correct to state that therent derived from the tenants of the property described under firstitem of the suit schedule is at Rs.40,000 per month. It is true thatthe property mentioned in the second item of the suit schedule isunder the occupation of Defendants 2 to 5. Further, theappellants/defendants denying the allegations made in the plaint thatthe deceased Ameena Bee demolished the existing superstructure andput up new superstructure in the properties mentioned under firstitem of the suit schedule out of her own funds and therespondent/plaintiff is put to strict proof of the same. Moreover,it is denied that the deceased Ameena Bee has been enjoying the suitschedule properties as an absolute owner till her death. Theappellants/defendants do not admit the share mentioned in para 5 ofthe plaint.10.The appellants/defendants deny that the respondent/plaintiffis not joint possession of the schedule properties and the firstappellant/deceased first defendant used to pay Rs.500/- to therespondent/plaintiff every year towards her share. It is also deniedthat the respondent/plaintiff is keeping some of her householdarticles in the property described under the second item of the suitschedule. A reply dated 18.09.99 has been issued to therespondent/plaintiff for a notice dated 9.9.99. Theappellants/Defendants 2 to 5 are in absolute possession and enjoymentof the properties described in the suit property except the jewelsmentioned under the third item of the suit schedule. The propertymentioned under the first item has been a vacant land with asuperstructure namely, zinc sheet with small tiled building (Shed) ina demolishing condition. The deceased Ameena Bee has accepted a giftas per Mohammedan Law in respect of the property described under thefirst item of the suit schedule on 07.4.1995 in the presence of theelders, relatives and community people in favour of Defendants 2 to5, who being her sons and the same has been recorded in writing on21.4.1995. The appellants/Defendants 2 to 5 as donees have acceptedthe gift of the property by taking physical possession of the sameunder the first item of the suit schedule. The said gift has beencompleted as per law and the same is valid from the date of the giftexecuted by the deceased Ameena Bee. The appellants/defendants 2 to https://hcservices.ecourts.gov.in/hcservices/ 5 have been in absolute possession and enjoyment of the same tillthis date as rightful owners. The appellants/Defendants 2 to 5 haveobtained plan approval on 15.03.1996 from the competent authoritiesand they have constructed the present building in the propertydescribed under the first item of the suit schedule and they havealso obtained patta, tax and other assessment in their favour.11.The second item of the suit schedule is a tiled house of morethan 100 years old and the appellants/defendants 2 to 5 are residingjointly in the suit property. The appellants/defendants 2 to 5submits that the property described under the second item of the suitschedule has also been gifted by their mother Ameena Bee on 6.4.1998in the presence of elders, relatives and community people as perMohammedan Law.12. The respondent/plaintiff and the first appellant/firstdefendant and Defendants 6 to 8 are well aware of the gifting of theproperties made by the deceased Ameena Bee in favour of theappellants/Defendants 2 to 5 and till date none of them havechallenged the same.13. The jewellery mentioned in the third item of the suitschedule have been gifted by the deceased Ameena Bee to herdaughters, daughter-in-law and relatives. The black beeds necklaceof three sovereigns (not as five as mentioned in the plaint) has beentaken by the wife of the fifth defendant, after the death of AmeenaBee as per the desire of the deceased. One necklace with stone of 42grams (not as 7 sovereigns as mentioned in the plaint) has beengifted to daughter of the sixth defendant during her marriage. Twobangles of 21 grams (not as six and nine sovereigns as mentioned inthe plaint) and one set of ear stud has been gifted to the eighthdefendant. No such plain ear studs (each one and half sovereigns) hasbeen owned by deceased Ameena Bee. The only set of studs of 12grams has been gifted to the eighth defendant. One plain ring of halfsovereigns (not as two number of each eight grams) has been gifted tothe daughter of Sarahn Bee. One stone ring of half sovereigns (notas two numbers of each eight grams) has been gifted to the daughterof Mahamood. The jewelleries described in the third item of the suitschedule are not with them.14. No payment of Rs.500/- has been made by theappellant/defendant to the respondent/plaintiff towards her share atany point of time. The respondent/plaintiff is not at all entitledto any share in the properties mentioned in the first and seconditems of the suit schedule. The plaintiff's averments are contrary.Also the averments in the legal notices dated 9.9.99 and 12.10.99issued by the respondent/plaintiff are contrary in nature and theyare after thoughts. The second defendant has refused to take a girlof the plaintiff for the marriage of his son and due to the saidenmity, the respondent/plaintiff has filed the suit. https://hcservices.ecourts.gov.in/hcservices/

15.The suit is not properly valued and is not properly stamped.The suit will not come under Section 37 (1) of the Tamil Nadu CourtFees and Suits valuation Act 1955 as the plaintiff is out ofpossession. The suit has not been properly framed and the reliefsought for are unaffordable and they are not maintainable in law.The suit is hit by the reason of the failure in seeking furtherrelief which are substantial in the facts and circumstances of thecase. The declaratory relief of the respondent/plaintiff inrespect of the suit schedule property and the relief of recovery ofpossession have not sought for. The suit is therefore, devoid ofmerits, lack of bonafides, and the same is unsustainable in law.16. Before the trial Court, on the side of therespondent/plaintiff witness P.W.1 has been examined and Ex.A1 to A10have been marked. On the side of appellants/defendants D.W.1 to 5have been examined and Ex.B1 to B14 have been marked.17. On an appreciation of oral and documentary evidence thetrial Court, while decreeing the suit in part without costs haspassed a preliminary decree in favour of the respondent/plaintiff inrespect of the suit 1 and 2 items and in respect of the suit 3rd itemit has dismissed the claim of the respondent/plaintiff and alsoordered that steps be taken for appointment of an AdvocateCommissioner for passing of a final decree pursuant to the passing ofthe preliminary decree and also for mesne profits.18 . The points that arise for consideration in this appeal are:-1. Whether the suit items 1 and 2 have been givento the D2 to D5 by the deceased Ameena Bee on7.4.95, 6.4.98 through the Gift Deeds Ex.B1 dated21.4.95 and Ex.B2 dated 5.5.98 ?2. Whether the Respondent/plaintiff has valuedthe suit properly and has paid the correct Courtfee as per under Tamil Nadu Court Fees and SuitsValuation Act 1955 ?3. Whether the Respondent/plaintiff is entitledto the relief of partition and separatepossession of her 1/16th share in the suitproperties ?19.Contentions, Discussions and Findinfs on Point Nos.1 to 3:The learned counsel for the appellants urges before this Court thatthe judgment and decree passed by the trial Court in O.S.No.935 of2000 is contrary to Law, weight and probabilities of the case and asa matter of fact the trial Court has committed an error in holding https://hcservices.ecourts.gov.in/hcservices/ that the respondent/plaintiff is in joint possession of the suitproperty without even taking into consideration of the fact that therespondent/plaintiff has given a different address in the plaint thanthat of the suit property and also that the observation of the trialCourt that fixed Court fee paid by the respondent/plaintiff is notcorrect and indeed, the respondent/plaintiff ought to have paid Courtfees in the plaint under Section 37(4) of the Tamil Nadu Court FeesAnd Suits Valuation Act 1955 and the admissions of therespondent/plaintiff have not been properly appreciated by the trialCourt and moreover, the trial Court after holding that Hibia to bevalid should have three conditions, (1) It should be either be oralor in writing (2) The donee should accept it (3) Possession shouldhave been given and also having held that under Ex.B1 'HIBA' has beenreduced in writing and that Donee has accepted the same and thatpossession has been given, committed an error in coming to theconclusion that there is no mention in the 'HIBA' deed that it hasbeen given orally on an earlier date which is not required under theMohammedian Law.20. It is the further contention of the learned counsel for theappellants that the trial Court has committed a mistake in holdingthat Exs.B1 and B2 do not contain signature of the deceased AmeenaBee without any basis and it has also further held in not holdingthat the gifts have been completed, since the defendants have beenpaying taxes and having patta in Exs.B6 to B14 and added further, inMuslim Law ''HIBA'' is not compulsorily registrable under theRegistration Act, but these aspects of the matter have not beenadverted to by the trial Court in a proper and real perspective whichhas caused miscarriage of justice and therefore prays for allowingthe appeal to prevent an aberration of justice.21. It is the case of the respondent/plaintiff that her motherhas not informed anybody during her life time that she has gifted theproperties and also that the Defendants 2 to 5 have not informedanyone during the life time of their mother that she has gifted theproperties and D2 to D5 have fabricated the documents and therefore,the Gift Deeds are not valid in the eye of Law.22. The pleas of the Appellants/Defendants are to the effectthat D2 to D5 have been in an absolute possession and enjoyment ofthe properties described in the suit schedules except the jewelsdescribed in third item and in fact, the deceased Ameena Bee hasexecuted the gift as per Muslim Law in respect of the propertymentioned in the first item of the suit schedule on 07.04.1995 in thepresence of the elders, relatives and community members etc., infavour of D2 to D5 who being her sons and the same has been put intowriting on 21.4.1995 and D2 to D5 have accepted the said gift bymeans of taking physical possession of the property mentioned in thefirst item of the schedule and the gift has become complete andtherefore, the same is valid in Law and likewise, the second item of https://hcservices.ecourts.gov.in/hcservices/ the suit schedule property has been gifted by Ameena Bee on06.04.1998 in the presence of elders, relatives and community membersetc., as per Muslim Law and indeed D2 to D5 have accepted the giftand taken possession of the second item of the schedule mentionedproperty and the said gift has been executed by the deceased AmeenaBee on 06.04.1998 in favour of D2 to D5 have been recorded intowriting on 05.05.1998 and the said gift has become complete and thesame is valid in Law and really speaking the patta and other revenuerecords in respect of the first and second item of the suit scheduleproperties are in the name of D2 to D5 and the respondent/plaintiffand the deceased first defendant and D6 to D8 have been well aware ofthe gift of the properties and as such the respondent/plaintiff isnot entitled to claim any relief in respect of the suit item 1 and 2of the properties.23. The respondent/plaintiff in her evidence as P.W.1 hasdeposed that the first item of the suit property namely, shop bearingDoor No.203, Angappa Naicken Street, Madras – 600 001 street has beenpurchased by her mother in the year 1965 through Ex.A1 document andas per Ex.A1 document her mother has purchased the land andsuperstructure has been given to her mother in the year 1965 by herfather through the gift deed as per Ex.A2 and the second item of thesuit property namely house bearing door No.203, Angappa NaickenStreet, Madras – 600 001 has been purchased by her mother in the year1971 through Ex.A3 and that their item of property is the jewellerywhich belongs to her mother and that her mother has expired in theyear 1998 and she has issued a lawyers notice, Ex.A6 on 9.09.99demanding partition for which D2 to D5 have given a reply Ex.A7 andin Ex.A7 it is wrongly stated that her mother has given theproperties to her brothers through gift and therefore, she has giventhe Ex.A8 rejoinder and inspite of the same, since her share of theproperties have not been given to her she has filed the suit.24. P.W.1 in her cross-examination has categorically stated thatshe is not aware of the gift during the life time of her mother andeven after her mothers death she has not known the same and herfather has informed that her mother has given the properties througha gift deed to D2 to D5 and hence informed her to file a suit beforethe Court and to seek the relief of partition and it is incorrect tostate that she has no right in the suit properties.25. It is the further evidence of P.W.1 (plaintiff) that evenafter marriage she has been leaving with her mother and some articlesbelonging to her was still in the second item of the house andpresently she is leaving in a different house with some articles inher possession and that her father has given a sum of Rs.500/- peryear and she has informed her father that she does not require thesaid amount and only requires a share in the properties andtherefore, has filed the present suit and she has not received thesum of Rs.500/- per year after the death of her mother. https://hcservices.ecourts.gov.in/hcservices/

26. At this stage, it is useful to refer to the evidence ofD.W.1 (deceased first appellant/first defendant and father of therespondent/plaintiff) to the effect that in the year 1971, the shophas been purchased in the name of his wife and the Angappa NaickenStreet, shop has been purchased on loan from Kayalpattinam SamuFathima Nachi and at the time of purchase of the said shop it has tinroofing and in that his sons have constructed a building and thehouse has also been purchased on loan and only his sons havedischarged the loan and the shop has been given by his wife to hissons through gift in the year 1995, and at the time when the gift hasbeen made, one religious priest, an advocate, Abdul Kadar and GajaMohidin have been present and in their presence she has made the saidgifts and his wife have made the said gift through a writtenstatement and that written statement has been given some time laterand likewise, his wife has given the Adam Sahib Street house to hersons through 'HIBA' (Gift) in the year 1998 and he does not know thedate and month and at the time of 'HIBA' the religious priest, anadvocate, Abdul Kadar and Gaja Mohidin have been present, and thisgift has also been made in writing by his wife after few days laterand when his wife has given the 'HIBA' in respects of the twoproperties at that time he has been present and he has also signed asa witness and his sons are receiving the income from the shop andthey have not given him any share from the said income and it isutter false to state that every year a sum of Rs.500/- has been givento the respondent/plaintiff from and out of the income received fromthe shop and that in the suit properties, himself or his threedaughters have no right at all and that the suit properties areabsolutely belonging to his sons and for the past 10 yearsP.W.1/plaintiff is not in the habit of visiting his house.27. D.W.1 in his evidence has further deposed that Ex.B1 is thedocument dated 21.04.1995 in and by which his wife has given theAngappa Naicken Street shop as 'HIBA', and in Ex.B1 document at thefourth page his wife has signed over the place of Donor and in Ex.B1his four sons have signed as Donees and Ex.B2 'HIBA' document givenby his wife is of the year 1998 and in Ex.B2 in page three, his wifehas signed at the place of Donor and in Ex.B2 document his four sonsand he himself has also signed as a witness therein and also that hiswife has signed in all the pages of Ex.B1 document.28. Ex.B1 is the memorandum of declaration of 'HIBA' dated21.04.1995 made by Mrs. Ameena Bee to and infavour of D2 to D5 inrespect of the house, ground and premises bearing municipal doorNo.203, Angappa Naicken Street, Madras – 01 which reads as follows;"AND WHEREAS the Donees are the sons of the Donor and whereasthe Donor being desirous of giving the entire propertyabsolutely to the Donees, made a declaration on 07.04.1995 toher intention to give her entire property being house, ground https://hcservices.ecourts.gov.in/hcservices/ and premises bearing municipal door No.203, Angappa NaickenStreet, Madras – 600 001, of an extent of 1479 square feet,which is morefully described in the schedule hereunder equallyto all the Donees and whereas in the presence of the elders,relatives and community people the said declaration of 'HIBA'was made on 07.04.1995 by the Donor in favour of the Donees,that is, the Donees shall take the Schedule mentioned propertyabsolutely and in equal shares and whereas the Donees acceptedthe said Gift in the presence of the said elders, relatives andcommunity people.WHEREAS the DONOR (IJAB) wanted to make a record of 'HIBA'(GIFT) to evidence the nature of acquisition by the DONEES(QABULS).THE RECORDING OF 'HIBA' WITNESSETH that the DONOR (IJAB)has made a declaration of "'HIBA'" (GIFT) of the schedulementioned property on 07.04.1995 before the witnesses and in thepresence of elders, relatives and community people as mentionedabove in favour of the DONEES (QABULS) and the DONOR (IJAB) alsohad delivered the possession (QABDA) and the DONEES (QABULA) hadalso taken the possession of the schedule mentioned property onthe same day, the DONOR (IJAB) also delivered the title deeds ofthe Schedule mentioned property to the DONEES (QABULS) and theDONEES (QABULS) had received the same on the same day."29. A perusal of Ex.B1 memorandum of declaration of 'HIBA' dated21.04.1995 shows that it has been executed before a notary throughK.Balagopal, Advocate, Madras-21 and on the left hand side of theEx.B1 document D2 to D5 has signed and before the signature and sealof the notary, Ameena Bee (Donor) is said to have signed the same.30. Ex.B2 is the memorandum of declaration dated 05.05.1998,recording of the 'HIBA' made by Mrs.Ameena Bee in favour of D2 to D5in respect of house, ground and premises bearing municipal door No.2old door No.28, Adam Street, Muthialpet, Chennai-01 of an extent of2068 sq.ft. and the same among other things reads thus;"AND WHEREAS the Donor, her husband S.G.Mahboob Basha Sahib arewell maintained by their four sons, the Donees herein and theyhave four daughters all of them are married and settled in theirlife. Their first daughter Mrs.M.Azmathunissa Begum lost herhusband recently and however she has been staying with herchildren in her husband's place.AND WHEREAS the Donees are doing immense help to the Donorand therefore the Donor out of love and affection being desirousof giving her entire property being all that piece and parcel ofhouse, ground and premises bearing municipal door No.2, old doorNo.28, Adam Street, Muthialpet, Chennai-600 001, of an extent of https://hcservices.ecourts.gov.in/hcservices/ 2068 square feet, which is morefully described in the Schedulehereunder absolutely to the Donees, made a declaration on06.04.1998 of her intention to give the Schedule mentionedproperty to the Donees and whereas in the presence of elders,relatives and community people the said declaration of 'HIBA'was made on 06.04.1998 by the donor in favour of the Donees,that is the Donees shall take the Schedule mentioned propertyjointly, equally and absolutely and whereas the Donees acceptedthe Gift in the presence of the said elders, relatives andcommunity people.WHERAS the Donor (IJAB) wanted to make a record of 'HIBA'(GIFT) to evidence the nature of acquisition by the DONEES(QABUL).THE RECORDING OF 'HIBA' WITHNESSETH THAT the DONOR (IJAB)has made a declaration of 'HIBA' (GIFT) of the schedulementioned property on 06.04.1998 before the witnesses and in thepresence of elders, relatives and community people as mentionedabove in favour of the DONEES (QABUL) and the DONOR (IJAB) alsohad delivered the possession (QABDA) to the DONEES (QABUL) andthey had also taken the possession of the schedule mentionedproperty on the same day, the DONOR (IJAB) also delivered thetitle deeds of the Schedule mentioned property to the DONEES(QABUL) and the DONEES (QABUL) had received the same on the sameday."31. The learned counsel for the appellants/defendants submitsthat the deceased first appellant/first defendant namely D.W.1 in hisevidence has clearly spoken about the Ex.B1 and B2, memorandum ofdeclaration of 'HIBA' dated 21.04.1995 and 05.05.1998 and he beingthe father of the respondent/plaintiff and D2 to D5 has given acogent and clear cut evidence about the 'HIBA' made by his wifeAmeena Bee and that his wife Ameena Bee has signed in these documentsand that the gift given by the mother has been accepted by D2 to D5and they have been acted upon and therefore, in law, the two giftshas been a complete and a valid one and that the Donor Mrs. AmeenaBee has parted with the possession of the properties and that theDonees have accepted the gift and have been in possession andenjoyment of the said properties and have been paying water and othertaxes and consequently, revenue records are in their favour andtherefore the respondent/plaintiff is not entitled to claim anyrelief in the suit and therefore, the suit has to be dismissed inright earnest.32. In support of the contention that gift by a Mohammedan isnot required to be writing and need not be registered under theRegistration Act, the learned counsel for the appellants relies onthe decision Mahboob Sahab v. Syed Ismail and others AIR 1995 SUPREMECOURT 1205 wherein the Hon'ble Supreme Court is held as follows; https://hcservices.ecourts.gov.in/hcservices/ "Though gift by a Mohammadan is not required tobe in writing and consequently, need not beregistered under the Registration Act; a gift tobe complete, there should be a declaration of thegift by the donor; acceptance of the gift,expressed or implied, by or on behalf of thedonee, and delivery of possession of the property,the subject matter of the gift by the donor to thedonee. The donee should take delivery of thepossession of that property either actually orconstructively. On proof of these essentialconditions, the gift becomes complete and valid.In case of immovable property in the possession ofthe donor he should completely divest himselfphysically of the subject of the gift."33. He also cites the decision of Tek Bahadur Bhujil v. DebiSingh Bhujil and others AIR 1966 Supreme Court 292 at page 293wherein the Hon'ble Supreme Court has among other things observedthus;"Family arrangement as such can be arrived atorally. Its terms may be recorded in writing as amemorandum of what had been agreed upon. Thememorandum need not be prepared for the purpose ofbeing used as a document on which future title ofthe parties is to be founded. It is generallyprepared as a record of what had been agreed upon,in order that there are no hazy notions about itin future. It is only when the family arrangementis reduced in writing with the purpose of usingthat writing as proof of what they had arrangedwhere the arrangement is brought about by thedocument as such, that the document requiresregistration, because it is then that it wouldamount to a document of title declaring for futurewhat rights and in what properties the partiespossess. But a document which is no more than amemorandum of what had been agreed to between theparties does not require compulsory registrationunder S.17 of the Registration Act."34. Continuing further, the learned counsel for the appellantsseeks in aid of the decision A.C. Lakshmipathy and another v.A.M.Chakrapani Reddiar and others (2001) 1 M.L.J.1 wherein it isamong other things held that;"The family arrangement can even be made orallyand in which obviously the question ofregistration does not arise. What is required to https://hcservices.ecourts.gov.in/hcservices/ be seen is whether the family settlement is abonafide one so as to resolve family dispute andrival claims at a fair and equitable decision orallotment of properties between the variousmembers of the family. Similarly, the familyarrangement should not be result of any fraud orundue influence etc., played on the member/membersof the family. In other words, such a familyarrangement must be voluntary and entered into bythe parties on their own accord and free Will. Itis only when the family arrangement is reducedinto writing with the purpose of using thatwriting as proof of what they had arranged andwhere the arrangement is brought about by thedocument as such, that the document requiresregistration, then it would amount to a documentof title declaring for future what rights and whatproperties the parties to possess.But, however after family arrangement if amere memorandum is prepared for the purpose ofrecord or for information of the Court makingnecessary mutation, such memorandum itself doesnot create or extinguish any rights in immovableproperties and therefore, does not fall within themischief of Section 17 of the Indian RegistrationAct and therefore, not compulsorily registrable.Similarly, a mere list prepared by the parties,not setting out the entire terms of the familyarrangement need not registered."35. However, the learned counsel for the appellant brings it tothe notice of this Court to the decision R.Deivanai Ammal (Died) andanother v. G.Meenakshi Ammal and others (2004) 3 MLJ 507 wherein itis held hereunder;"It is a well-established principle of law thatwhere a party claims that any particular item ofproperty is joint family property, the burden ofproving that it is so rests on the party assertingit. Where it is established or admitted that thefamily possessed some joint property which fromits nature and relative value may have formed thenucleus from which the property in question mayhave been acquired, the presumption arises that itwas joint property and the burden shifts to theparty alleging self-acquisition to establishaffirmatively that the property was acquiredwithout the aid of the joint family. But no suchpresumption would arise if the nucleus is such https://hcservices.ecourts.gov.in/hcservices/ that with its help the property claimed to bejoint could not have been acquired. In order togive rise to the presumption, the nucleus shouldbe such that with its help the property claimed tobe joint could have been acquired. A family housein the occupation of the members and yielding noincome could not be nucleus out of whichacquisitions could be made even though it might beof considerable value."36. Moreover, on the side of the appellants a reliance is placedon, to the decision Veronica Thomas Rajkumar v. Joseph John PeterSandy and another (2004) 1 MLJ 301, wherein at page 310 at para 44 itis held as follows;"Ex.A3 is not a mere declaration of the pre-existing right but creation and declaration of newright of the plaintiff in door No.23 andextinguishing the right of the defendant in doorNo.23. The admissibility of a document being apoint of law could be urged at any stagenotwithstanding that such document was admitted inthe trial stage. Under Sec.49 of the registrationAct no document required by Sec.17 or by anyprovision of the Transfer of Property Act, to beregistered shall be received as evidence of anytransaction affecting an immovable property Ex.A3more in the nature of creating and extinguishingright. Registration is compulsory. For want ofregistration Ex.A3 is inadmissible."37. Per contra, the learned counsel for the respondent/plaintiffsubmits that the appellants/defendants in their Ex.A7 lawyer's replynotice dated 18.09.99 have stated that the immovable properties(1) Door no.2, Adam Street, Mannady, Chennai-1 (2) Door no.203,Angappanaicken Street, Chennai-600 001 have been given as 'HIBA'(Gift) under Mohammedan Law by Mrs. Ameena Bee to her four sonsjointly and equally and that they have been properly recorded by Mrs.Ameena Bee during her life time itself etc., and in fact nothingprevented the appellants in the reply notice to mention the date ofgift said to have been given by Ameena Bee and therespondent/plaintiff has searched in the Sub-Registrars Office forobtaining necessary details in this regard but she has not beensuccessful in this regard and the appellants/defendants have nottaken the plea of oral 'HIBA' and no where in Ex.B1 and Ex.B2Memorandum Of Declaration dated 21.04.1995, 05.05.1998 oral gift ismentioned and only when they have entered into the witness box in thetrial Court and they have stated about the oral gift and in Exs.B1and B2 Memorandum of Declaration, Ameena Bee has declared herintention only and in reality the same is not a gift and a reading of https://hcservices.ecourts.gov.in/hcservices/ the recitals in Exs.B1 to B2 clearly point out that it is not a giftin strict sense of the term and moreover, it is for theappellants/defendants to prove that the signature of Ameena Bee inExs.B1 to B2, since the Ameena Bee's admitted signature Ex.B3 is verymuch available on record and as a matter of fact the trial Court hasrightly disbelieved the plea of oral gift and therefore, prays fordismissing of the appeal.38. Expatiating his submissions the learned counsel for therespondent/plaintiff submits that when a plea has not been raised inthe pleadings then no amount of proof can substitute the same and insupport of the said contention he cites the decision of AbubakarAbdul Inamdar (dead) by Lrs. And others v. Harun Abdul Inamdar andothers AIR 1996 Supreme Court 112 at page 113 wherein the Hon'bleSupreme Court has held that 'no amount of proof can substitutepleading which are foundation of claim of a litigating party.39. He further relies on the decision of Hon'ble Supreme CourtSubhra Mukherjee and another v. Bharat Coking Coal Ltd. and othersAIR 2000 Supreme Court 1203 wherein it is held as follows;"There can be no dispute that a person whoattacks a transaction as sham, bogus and fictiousmust prove the same. But where the issue raiseddiscloses that it is in two parts, the first partsays, 'whether the transaction in question, isbonafide and genuine one' and the second partsays 'or is a sham, bogus and fictious'transaction, it is only when the first part hasbeen proved that the party alleging to be shamhas to dislodge it by proving that it is a shamand victious transaction. When circumstances ofthe case and the intrinsic evidence on recordclearly point out that the transaction is notbonafide and genuine, it is unnecessary for theCourt to find out whether the respondent has ledany evidence to show that the transaction issham, bogus or fictitious."40. Added further, the learned counsel for therespondent/plaintiff submits that if a gift by a Mohammedan pertainsto an immovable property more than Rs.100/- and if the same is bymeans of a document then the same has to be compulsorily registeredin the eye of lay and in the present case on hand Ex.B1 and B2Memorandum of Declaration of 'HIBA', the properties are in fact worthmore than Rs.100/- and they are not registered as required under theRegistration Act and therefore, the same are inadmissible in evidencein law. To lent support to his contention he brings it to the noticeof this Court to the decision Shaik Khadaru Masthan v. Smt. SayyedFathimun Bee AIR 2008 Andhra Pradesh 1 wherein it is observed as https://hcservices.ecourts.gov.in/hcservices/ follows;"Gift by a Mohammedan is not required to be inwriting and consequently need not be registeredunder Registration Act. What is required isdelivery of possession to complete the gift. Butonce the gift of immovable property worth morethan Rs.100/- is evidenced by a document, itattracts section 17 of Act. The document is acompulsorily registrable one and since the sameis not registered it is inadmissible inevidence".41. The learned counsel for the respondent/plaintiff cites thedecision of this Court A.C.Lakshmipathy and another v. A.M.ChakrapaniReddiar and others (2001) 1 MLJ 1 wherein this Court has held thus;"To effect a family settlement all that isnecessary is that the parties must be related toone another in some way and have a claim or apossible claim to the property or even asemblance of a claim or spes succession is oreven on some other ground as say, affection orignorance of the parties of their right and withthe purpose or object of maintaining peace andharmony in the family.The family arrangement can even be madeorally and in which obviously the question ofregistration does not arise. What is required tobe seen is whether the family settlement is abonafide one so as to resolve family dispute andrival claims at a fair and equitable decision orallotment of properties between the variousmembers of the family. Similarly, the familyarrangement should not be result of any fraud orundue influence etc., played on themember/members of the family. In other words,such a family arrangement must be voluntary andentered into by the parties on their own accordand free Will. It is only when the familyarrangement is reduced into writing with thepurpose of using that writing as proof of whatthey had arranged and where the arrangement isbrought about by the document as such, that thedocument requires registration, then it wouldamount to a document of title declaring forfuture what rights and what properties theparties to possess. https://hcservices.ecourts.gov.in/hcservices/

42. Moreover, on the side of respondent/plaintiff the decisionInspector General of Registration and Stamps Govt. of Hyderabad v.Smt. Tayyaba Begum AIR 1962 Andhra Pradesh 199 is relied on to theeffect that if an oral gift is made by a Muslim lady and if thesubsequent document evidencing transaction executed as ekararnamathen the document has been held to be a gift deed liable to stampduty and registration.43. Further, the learned counsel for the respondent/plaintiffrelies on the decision Ramdeo v. Smt. Dulari Devi AIR 1996 Allahabad253 at page 256 wherein at para 17 to 19 it is held as follows;"It is an established principles of law that whenan illiterate person executes some document thenthe person in whose favour the document isexecuted has burden to prove that the document hasbeen executed by the said executant. VideParasnath Rai v. Tilesara Kaur 1965 ALJ 1080;'Obviously it is not by reason of the pardahitself that the law throws its protection round apardahnashin lady but the reason of thosedisabilities which a life of seclusion lived by aPardahshin lady rise to, and which areconsequently presumed to exist in the case of sucha lady. But the disabilities which make theprotection necessary may arise from other causesas well. Old age, infirmity, ignorance,illiteracy, mental deficiency, inexperience,dependance upon others, may by themselves createdisabilities that may render the protectionequally necessary. If, therefore, it is provedthat a woman although she is not a pardahnashinlady suffers from the disabilities to which apardahnashin lady is presumed to be subject, thevalidity and the binding nature of a deed executedby her have to be judged in the light of thosevery principles which are applied to a deed by aparadahnashin lady.'Under the above circumstances, the burden toprove by independent evidence that Jhabbar Yasdavsince deceased had executed the alleged agreementwas on the plaintiff.On the basis of the analysis of the entireevidence the lower appellate Court has recorded afinding that the plaintiff has failed toestablish that Jhabbar Yadav had executed theagreement in favour of plaintiff." https://hcservices.ecourts.gov.in/hcservices/

44. Countering the submissions of the learned counsel for theplaintiff, the learned counsel of the appellants/defendants contendsthat Ex.B1 and B2 Memorandum of Declaration dated 21.4.1995, 5.5.1998do not create a new interest or right and only when the documentscreate rights in presenti the same will have to be registered andconsequently the Exs.B1 to B2 Memorandum of Declaration do notrequire registration in the eye of law.45. It is to be borne in mind that the term 'HIBA' and Gift aremore often employed, but the term ''HIBA'' is only of the kind oftransactions which are covered by the general term 'Gift'. 'HIBA' isconfined only to transfer of rights of full ownership or corpus ofany property. Such a transfer by means of 'HIBA' must be immediateand not contingent. It must be unconditional. Any conditionsimposed in respect of corpus would be void.46. As a matter of fact the burden of proving with theformalities of law have been complied with lies on the personclaiming to be the Donee. The burden of proof is then shifted onthose who challenge the validity of gift in the considered opinion ofthis Court. Really speaking, the burden of establishing thatpossession has been delivered is on the Donee of those who claimunder him.47. Whether the Donee holds a fiduciary position or is in aposition to dominate the will of Donor the presumption of undueinfluence arises and it is incumbent on the Donee to satisfy theCourt that the Donor had competent and independent advice.48. It is necessary for the Donee to prove that the gift hasbeen the result of free exercise of independent will. The mostobvious way to prove this is by establishing that the gift has beenmade at the nature and effect of transaction has been fully explainedto the Donor by some independent and qualified person so completelyas to satisfy the Court that the Donor has been acting independantlyof any influence from the Donee and with full appreciation o what hehas been doing and in case where there are no other circumstances,this may be the only means by which the Donee can rebut thepresumption.49. Section 129 of the Transfer of Property Act lays down thatno rule of Mohammedan Law shall be affected by chapter 7 of theTransfer of Property Act pertaining to Gifts.50. In the decision Fatima Bibi v. Khairum Bibi and others 1923Madras 52 it is held as follows;"A deed executed by a Mohammedan lady purported totransfer certain property to her daughter in https://hcservices.ecourts.gov.in/hcservices/ consideration of her promise to maintain themother during her lifetime and pay her funeralexpenses after her death. The possession of theproperties was in fact handed over to thedaughter. The rents payable by the tenants werecollected by the daughter from the date of thedocument and all the ground rent and taxes inrespect of the property were paid by her. Held:the deed of gift in presenti, as the daughter wasgiven the immediate possession of the property.That being the condition in one of the two kindsof gifts under Mohammedan Law, namely, 'HIBA' and'HIBA' bil iwas."51. In Syed Mustan and another v. Syed Mubarak 1997 (Vol.1) MLJ92 it is held as follows;"Normally, the question as to whether possessionhas been delivered to make the gift complete isconsidered relevant only when such an issue israised between the donor or those claiming underhim on the one side and the donee or thoseclaiming under him on the other. Once the doneeaccepts the gift as shown in this case and wasalso specifically found to have been, even on thedate of the gift deed, in possessing of theproperty, it is not given to persons other thanthe donor who was alive to challenge the validityof the gift on the ground of want of delivery ofpossession."52. In the decision Commissioner of Income Tax, Jaipur v.Sirehmal Nawalakha 2001 (3) CTC 694 the Hon'ble High Court hasobserved that; "Section 4 of Gift Tax Act creates legal fictionand treats transactions as gift even if they donot fall within the ambit of Transfer of PropertyAct and transfer of immovable property can beeffected only by due compliance of requirementsimposed by Indian Stamp Act etc."53. In the decision Jaitunbi Fatrubhai v. FatrubhaiKasambhai andothers( AIR (35) 1948 Bombay 114) it is held thus;"When at the time of the marriage, a land isassigned by the bridegroom to the bribe in lieu ofmahr, the assignment is a simple gift ('HIBA'),and neither a sale nor a 'HIBA'-bil-iwas. Nowriting is necessary for the validity of such a https://hcservices.ecourts.gov.in/hcservices/ gift, since Section 129, T.P.Act, exempts a giftby a Mahimedan from the provisions of that Act,but such a gift is subject to the doctrine ofMushaa, and the gift would not be complete andvalid without delivery of such possession as thesubject of the gift is susceptible of"54. In the decision Imbichimoideenkutty v. Pathumunni Umma andothers AIR 1989 Kerala 148 it is held thus;"'HIBA' or gift under Mohammedan Law is a transferof property made immediately and without anyexchange by one person to another and accepted byor on behalf of the latter. By virtue of Section129 I.P.Act the chapter does not affect any ruleof Mohammedan Law and therefore ''HIBA'' ofsubject matter of whatever value need not beregistered as required by Section 123. If,however, it is reduced into writing and relates toimmovable property worth Rs.100/- or more thedocument is compulsorily registrable underSection17 of the Registration Act which applies.On the other hand, 'HIBA'-bil-iwaz in India beinga gift for an exchange is in the nature of a saleand if the subject matter is immovable propertyworth Rs.100/- or more, then, it can only be by aregistered instrument as provided under Section54,T.P.Act. Oral gift in discharge of money owed tothe donee being one for consideration amounts to asale. It is not pure and simple ''HIBA'' but a'HIBA'-bil-iwaz and if the property of value ofRs.100/- or more is involved it can only be by aregistered document."55. In the decision Maimuna Bibi and another v. Rasool Mian andothers AIR 1991 Patna 203 wherein it is held as follows;"Under the Muslim Law, an oral 'HIBA' or gift ispermissible. However, in order to constitute avalid gift, the donor should divest himselfcompletely of all ownership and dominion over thesubject of the gift. In order to constitute avalid gift, the three essential ingredients are;(i) a declaration of gift by the donor; (ii) anacceptance of the gift, express or implied, by oron behalf of the donee; and (iii) delivery ofpossession of the subject of the gift by thedonor to the donee.Where at the time of gift the donee was https://hcservices.ecourts.gov.in/hcservices/ major it was essential for him not only to provethat the donor had made an oral gift in hisfavour but it was also essential for him to provethat he accepted the said gift and delivery ofpossession in relation to the property inquestion which was the subject matter of thegift, had also been effected. However, it wasfound that even after the alleged gift, the donorclaimed title in respect of the property inquestion in a sale deed executed by him alongwith his grandson the alleged donee, who isclaiming title on basis of the gift, as againstthe heirs of the said donor i.e. his daughters.In the said sale deed, the donee has claimedMourasi (heritable) right in the property afterthe death of his father. Thus, the plea of oralgift had been set up by way of afterthought andthe daughters of the said donor having acquiredheritable interest in the property could executesale deeds in respect of the same. And thepurchasers could sue for partition of theproperty."56. In Sunkesula Chinna Budde Saheb v. Raja Subbamma 1954 2 MLJ113it is observed as follows;"It is true that in order to create a valid giftof moveable or immoveable property writing is notessential under Muhammadan Law. The provisionsof section 123 of the Transfer of Property Act donot apply to Muhammadan gifts vide section 129.The three essentials of a gift under MuhammadanLaw are (1) a declaration of gift by the donor,(2) acceptance, express or implied by or onbehalf of the donee and (3) delivery ofpossession of the subject of the gift by thedonor to the donee. The registration of a deedof gift does not cure want of delivery ofpossession. But if a gift is reduced to writing,it requires to be registered under section 17 (i)(a) of the Registration Act. Even if by virtueof the terms of section 129 of the Transfer ofProperty Act, a deed of gift executed by aMuhammadandoes not require to comply withthe provision of section 123 of the Transfer ofProperty Act, still it requires to be registeredunder section 17 (i)(a) of the Registration Actwhen the gift relates to immovable property.The document (the unregistered suit document https://hcservices.ecourts.gov.in/hcservices/ styled as a gift deed) really effected immediatetransfer of ownership and was not a record of apast gift according to the rules of MuhammadanLaw. The document therefore directly falls underthe terms of section 17(i)(a) of the RegistrationAct and is inadmissible in evidence under section49 of the Registration Act.Oral evidence as to the gift under theunregistered document would be inadmissible underthe terms of section 91 of the Evidence Act."57. In the decision Ratan Lal Bora and others v. Mohd. Nabiuddin(AIR 1984 A.P. 344) wherein it is held as follows;"Under the Mahomedan Law, gift of immoveableproperty can be made orally provided threeingredients are satisfied, namely (i) adeclaration of gift by the donor (ii) acceptanceof the gift by the donee and (iii) delivery ofpossession of subject-matter of gift to thedonee. Even if actual possession is not given,possession which the property is capable of beinggiven would satisfy the requirement. Unless thethree valid requirements of declaration,acceptance and delivery of possession aresatisfied oral gift under Mahomedan Law is notvalid. In order to establish a declaration ofgift it must be shown that the donor either inthe presence of the witnesses or otherwise made apublic statement that he gifted the property infavour of the donee and that he divested himselfof the ownership of the property by deliveringsuch possession as the property is capable of tothe donee who accepted the gift. A declarationcannot be made unilaterally without making apublic statement of the gift. Where thePlaintiff in the suit filed by him claimed to beowner of the house in suit under an oral giftmade in his favour by his father, the statementof the father in Court that he had made an oralgift of his house to his son the plaintiff andthat at the time of making the gift nobody waspresent is not sufficient to establish the oralgift because it is destructive of validrequirement of declaration."58. It is not out of place for this Court to point out that themain test to be applied is whether the parties regarded instrumentEx.B1 and B2 dated 21.4.1995 and 5.5.1998 documents in the present https://hcservices.ecourts.gov.in/hcservices/ case on hand put a receptacle and adequate of the transactions. Isit intended to constitute the gift or has it been the one to serve asa record of a past evidence ?59. In Ex.B1 Memorandum of Declaration 'HIBA' dated 21.4.1995 atpage 2 it is mentioned that Donor (IJAB) has made a declaration of'HIBA' (Gift) of the schedule mentioned property on 7.4.1995 beforethe witness and in the presence of elders, relatives and communitypeople etc. Earlier also in Ex.B1 referred to supra at page 2 it isaverred that "the Donees are the sons of Donor and whereas the Donorbeing desirous of giving the entire property absolutely to theDonees, made a declaration on 07.04.1995 to her intention to give herentire property being house, ground and premises bearing municipaldoor No.203, Angappa Naicken Street, Madras – 600 001, of an extentof 1479 square feet etc.60 . It is relevant to point out that the ingredients of section17 of the Indian Registration Act requires among other things allnon-testamentary instrument which purported to, or operate to createany right title or interest in immoveable property to be compulsorilyregistered. Therefore, this Court is constrained to examine theEx.B1 and B2 documents in the light of the ingredients of section17of Indian Registration Act. As a matter of fact in Ex.B1 and B2Memorandum of Declaration there are recitals which relate to the pasttransactions. In fact, the Donor Mrs.Ameena Bee has not treated themas a Memorandum of complete 'HIBA' which is quite evident from thesentence like, 'this Memorandum of recording of 'HIBA' (Gift) underMuslim Law made at Madras on 21.4.1995' in Ex.B1 and likewise foundin sentence in Ex.B2 to the effect that 'this memorandum of recordingof 'HIBA' (Gift) under Muslim Law given at Chennai on 5.5.1998 etc.61. Therefore, the entire writing of recitals of Ex.B1 and B2documents shows Mrs.Ameena Bee's intention in regard to the executionof the two documents in issue and the two documents have beenattested by five witness in Ex.B1 and four witnesses in Ex.B2 andconsequently, these two documents have been duly attested by minimumnumber of two witnesses as required under section 123 of the transferof Property Act. As such, the prime aim and desire of the executantMr.Ameena Bee in regard to execute Ex.B1 and B2 Memorandum ofDeclaration is to serve as evidence of the Gift and not as amemorandum of past transaction and in that view of the matter thisCourt comes to the inescapable conclusion that Ex.B1 and B2Memorandum of Declaration comes within the purview of section 17 ofthe Indian Registration Act, and therefore they are chargeable toduty as gift deed and they are required to be compulsorilyregistrable under Section 17 of the Indian Registration Act inasmuchas the two immovable properties worth admittedly more than Rs.100/-.Further, in view of the fact Ex.B1 and B2 documents are to beregistered compulsorily and in reality since they have not been dulyregistered they are inadmissible in evidence in the considered https://hcservices.ecourts.gov.in/hcservices/ opinion of this Court and the point is answered accordingly.62. Coming to the issue of the mother of the plaintiff's familyviz., P.W.1 has executed Ex B1 Gift deed dated 21.4.1995,it is thespecific evidence of P.W.1 that it is not correct to state that hermother Ameena Bee has given first item of the property through Giftin the presence of witnesses on 21.4.1995 and further it is notcorrect to state that her mother Ameena Bee has executed Gift deed inrespect of second item of property on 6.4.1998 to defendants 2 to 5in the presence of witnesses and more over it is not correct to statethat her mother has given affidavits duly recording the gifts givenby her.63. P.W.1(first appellant(deceased husband of Ameena Bee) in hisevidence has stated that his wife has given first and second items ofproperties through 'HIBA' and the necessary documents are Exs B1 andB2 and in Ex B1 and Ex B2 his wife has signed and in both thedocuments his four sons have signed and further he has signed as awitness in Ex B1 and Ex B2 and in suit items his sons alone have theright. In Exs B1 and B2, Ameena Bee has not signed in Tamil or inEnglish language and her purported signature is seen in Urdu. Ex B3is the simple mortgage deed dated 14.5.1965 for Rs.12,000/- executedby Ameena Bee in favour of the Mortgagor G.Khaja Mohideen and inthat also the signature of Ameena Bee is seen in Urdu.64. At this stage, it is significant for this Court to point outthe recitals of Exs B1 and B2 memorandum of declaration of ''HIBA''are in English. Ex B3 simple mortgage for Rs.12,000/- with interestat 12%pa., has been discharged through Ex B4. In Ex B1 and Ex B2documents the notary K.Balagopal, Advocate, Madras-21 has signed andthe notary's red rubber stamp are seen. After the signature of AmeenaBee in Urdu in the Notary Public K.Balagopal advocate has singedaffixing his red rubber stamp. Significantly,the notary PublicK.Balagopal, Advocate has not been examined before the trial Court tospeak about the execution of two documents Ex B1 and ExB2 by AmeenaBee in front of him. In the instant case on hand, Ameena Bee(motherof Plaintiff and Defendants 2 to 5 ) is a Pardanashin woman.Therefore, a very heavy burden is cast on the defendants 2 to 5 wholay a claim on Exs B1 and B2 documents. It is for them to establishaffirmatively and conclusively that Exs B1 and B2 have not only beenexecuted but also the recitals of the said documents have beenexplained to her and she has understood the tenor of the documents.It is not known,in this case, whether the donor Mrs. Ameena Bee, hasknown English Language and has understood the contents of Ex B1 andEx B2 documents which are admittedly in English. More over, it is forthe donees to prove that Exs B1 and B2 memorandum of declaration of'HIBA' have been the result of free, exercise of independent well.The clear cut way to establish the same is by proving that gifts havebeen made at the nature and effect of all transactions which has beenfully explained to Mrs. Ameena Bee(Donor) by some independent and https://hcservices.ecourts.gov.in/hcservices/ qualified person so complete then to satisfy the Court that the donorAmeena Bee has acted independently of any influence from the doneesand with full appreciation of what she has been doing and in case,whether they are no other circumstance, this may only amount bywhich the donees can rebut the presumption in the considered opinionof this Court.65. In the written statement filed by defendants 1 to 6 and 8,it is specifically stated that Ameena Bee has executed the gift deedsExs B1 and B2 in respect of Item Nos.1 and 2 properties to her sonsdefendants 2 to 5 as per Mohammedan Law in the presence of elders,relatives and community people. But the oral gift has not beenmentioned specifically in the written statement as well as in thelawyer's notice. Significantly D.W.1/deceased first appellant(fatherof plaintiff) in his chief examination (before the Court) on6.2.2001 has not whispered anything about the oral gift. Only duringhis chief examination on 27.2.2001, he has mentioned about the''HIBA''. The other defendants' side witnesses have also speak aboutthe oral gift of properties given by Mrs. Ameena Bee. Only theexchange of legal notices also, the oral gift has not beenmentioned. 66. Apart from the above, though in Exs B1 and B2, Mrs.AmeenaBee has reportedly affixed her signature but it is not mentionedspecifically that Mrs. Ameena Bee has signed before the NotaryPublic. The non examination of the Notary Public as to the executionof Exs B1 and B2 documents is not a circumstance which is in favourof defendants 2 to 5 in the considered opinion of this Court.Therefore, this Court comes to the inevitable conclusion that theappellants/defendants have not proved the satisfaction of thejudicial conscience of this Court that Mrs. Ameena Bee has affixedher signature in Exs B1 and B2 affirmatively and conclusively afterappreciation of the contents and recitals of the said documents whichare in English, have been explained to her in the language known toher.67.The learned counsel for the appellants submits that the trialCourt is not an expert to compare the signature of Mrs.Ameena Bee butit has committed an error in comparing the admitted signature ofMrs. Ameena Bee with that of the disputed ones and certainly thecomparison by a Court in regard to the signature of a person is ahazardous one and generally the Court should be hesitant inventuring on comparison and since the trial Court has compared theadmitted signature of Mrs.Ameena Bee with that of Exs B1 and B2documents wherein her signatures are found, the said Act is clearlyunsustainable in the eye of law.68. However, the learned counsel for the respondent/plaintiffsubmits that there is no bar for a Court of Law to compare theadmitted signature with that of the disputed signature and to lend https://hcservices.ecourts.gov.in/hcservices/ to support his contention, he relies on the decision S.Murugesan-v-V.Vijay Sai(2006(5) CTC 560) wherein it is held as follows:"Section 73 of the Indian Evidence Actcontemplates that the Court may compare thedisputed signature, writing or seal of a personwith the signature, writings or seals which havebeen admitted or proved to the satisfaction ofthe Court to have been written or made by thatperson. The Court may rely upon its owncomparison of signatures, writing or seal.There is no legal bar to the Court for using itsown eyes to compare the disputed signature,writing or seal with the admitted signature,writing or seal under Section 73 of the said Act.Thus, the Trial Court after careful comparison ofEx A3 to A6 with Ex A1, came to the conclusionthat the signatures found in Ex A1 and Exs A3 toA6 are not one and the same and they are nottallying with the admitted signature of the 1stdefendant."69. He also relies on the decision of this Court Arul Jothi &Co., rep. by its Partner M.Chinnasamy-v- Sri Shanmugha Trading Co.,rep by its Partner M.Thangavelu(1998 (1) CTC 432)wherein this Court has held that' lower Courts compared disputedsignatures with admitted signatures to hold that acknowledgmentletter was signed by one partner and such comparison by Court isvalid and correct.'70. Added further, he brings it to the notice of this Court tothe decision reported in D.Pandi-v- The Dhanalakshmi Bank Limited byits Manager(2001 (2) CTC 12)wherein this Court has held that' Section73 of Evidence Act enables Court to compare disputed and admittedsignature and the Court can also call upon party disputing hissignature to writ any words or figures in Court for comparisonpurposes and that the trial Court did not commit any error incomparing signature and on comparison by High Court signature provedto be identical.'71. On the side of the respondent/plaintiff, reliance is placedon to the decision reported in Central Bank of India-v- AntonyHardware Mart(2006(3) CTC 39) wherein it is held that 'whether or notexpert opinion is available, the Court is empowered to comparedisputed signature with admitted signature and come to independentconclusion and in cases, especially where, defendant denies allsignatures and attempts to defeat plaintiff claim, Court can comparesignatures and give its finding and it is not necessary thatplaintiff should take steps to get signatures compared by an expert.' https://hcservices.ecourts.gov.in/hcservices/

72. In Ex B3 below, the signature of Ameena Bee and there isone dot is seen. But no such dots are seen after the signature of thedonor in Ex B1 and Ex B2 documents. Significantly, the trial Courthas come to the definite conclusion that in the admitted signaturethe signature is seen as "Ameena Bee" but in the disputed signatureit is seen as "Amana Bee" and therefore, it is held that thesignature found in Exs B1 and B2 documents are not that of Ameena Bee.73. It is true that the Court of Law cannot be an expert andbase its conclusion merely of comparison of signature by itself. Butin the instant case on hand, the trial Court had definitely comparedthe signatures in the light of other admitted evidence on record andtherefore, the said action of the trial Court cannot be found faultwith since by Section 73 of the Evidence Act. A Court of Law is wellwithin its power to compare the disputed writings of the person withother writings which are admitted or proved to be the writings.Though, generally, a Court of Law will be hesitant to use its owneyes and merely on the basis of comparison decide an issue betweenthe parties centering round in writing or signature of a person.74. Coming to the contention of the appellants that therespondent/plaintiff has not properly valued the suit for the purposeof Court Fee and Jurisdiction, it is to be pointed out that theplaintiff as P.W.1 in her evidence has stated that she has somearticles in the second item of the suit property and that she hasresided in her husband's house and in her mother's house, aftermarriage and that she has not mentioned the details of the articlesin the plaint. Ex A1 series are the telephone bills in the name ofthe respondent/plaintiff wherein the address of the second items ofthe suit property is found. The telephone is in the name of P.W.1(respondent/plaintiff). 75.However, the appellants/defendants deny the version of therespondent/plaintiff that she has been in joint possession of thesuit properties. According to the appellants/defendants, theirmother Ameena Bee has given 1 and 2 items of suit properties throughEx B1 and Ex B2 memorandum of declaration of 'HIBA' ' and they haveaccepted the gift and delivery of possession has been completed andsince then, the appellants/defendants 2 to 5 have been in exclusivepossession and enjoyment of the same till date as rightful owners andpatta, water and sewerage and other revenue records in Item Nos.1 and2 have been changed and it stands in the name of defendants 2 to 5and therefore, the respondent/plaintiff is out of possession of ItemNos. 1 and 2 of the suit properties and therefore, the suit must beproperly valued and proper court fee has to be affixed by therespondent/plaintiff.76. In support of the contention that the Court Fee of Rs.200/-paid by the respondent/plaintiff under Section 37(2) of Tamil NaduCourt Fees and Suit Valuation Act 1955 is correct, the learned https://hcservices.ecourts.gov.in/hcservices/ counsel for the respondent/plaintiff relies on the decision of Lakshmi Ammal -v- K.M.Madhavakrishnan (AIR 1978 Supreme Court 1607)wherein it is held that 'plaintiff alleging that she is in jointpossession and seeking partition and separate possession of her halfshare in the suit properties as heir of deceased, the Court Fee ispayable under Section 37(2) of the Tamil Nadu Court Fees and SuitValuation Act 1955' and also learned counsel for therespondent/plaintiff cites the decision reported in Neelavathi-vs-N.Natarajan(AIR 1980 Supreme Court 691)wherein it is held that 'allmaterial allegations in plaint should be construed and taken as awhole'. In this connection, this Court points out in the decisionreported in ' Nori Srirama Sastri-v Nori Lakshmidevamma (AIR 1955Andhra 200)wherein it is held as follows:"For ascertaining the court fee payable on aplaint the terminology used in the plaint is notof much relevance but it is the substance thatmatters. A plaintiff by a clear device andcamouflage cannot evade court fee if in substancethe relief he asks for falls under one or otherof the provisions of the Court Fees Act.'Also, it is well settled that in a suit for partition, the plaintallegations are deciding factors as regards the payment of court feeand indeed, the plaint should be carefully examined to see whetherthe substance of the plaint allegation amounts to ouster of theplaintiff from all any of the joint properties. In a case of jointfamily properties, the rule seems to be that Ad valorem fee ispayable only whether the plaintiff has no possession of any part ofthe family properties and his right as a co-parcener has been deniedby the Manager or other members in possession. There cannot beexclusion in respect of particular items by reason of other membersclaiming them as their exclusive and separate properties.77. As far as the present case is concerned, theappellants/defendants 2 to 5 in respect of item Nos.1 and 2 havepaid water and sewerage taxes and patta and revenue records stands intheir name and they have claimed exclusive possession and enjoymentof the said properties , by virtue of Exs B1 and B2 memorandum ofdeclaration of 'HIBA'. Therefore, it is quite candidly clear thatthe respondent/plaintiff is clearly out of possession of suitproperties Item Nos.1 and 2 and therefore, the payment of fixedCourt fee of Rs.200/- to be paid by her before the trial Court in theplaint is not proper and instead she has to value the plaint as perSection 37(1) of the Tamil Nadu Court Fees and Suit Valuation Act1955 and to pay necessary court fee. The Registry is directed tocollect the deficit Court fee to be paid by the respondent/plaintiffunder Section 37(1) of the Tamil Nadu Court Fees and SuitValuation Act 1955 after deducting the amount already paid. Likewise,the appellants are also directed to value the plaint in this appeal https://hcservices.ecourts.gov.in/hcservices/ accordingly and the Registry is directed to collect the payment ofdeficit Court fee in this regard as per Section 37(1) of Tamil NaduCourt Fees and Suit Valuation Act 1955 .78. Since the gift through Exs B1 and B2 have not been proved tothe satisfaction of this Court in regard to Item Nos.1 and 2 of thesuit schedule properties, this Court comes to the resultantconclusion that the respondent/plaintiff is entitled to her 1/6thshare in respect of the suit Item Nos.1 and 2 of the properties andinasmuch as , Ameena Bee, during her life time has gifted the jewelsto the defendants and to others and since these jewels are not withthem as specifically pleaded in their written statement and also asspoken to by the witness examined on the side of the defendants, thisCourt comes to the resultant conclusion that the respondent/plaintiffis not entitled to the relief of her 1/6th share in respect of itemNo.3 and these points are answered accordingly.79. In the result, the appeal is dismissed . The appellants aredirected to pay the proper Court fee under Section 37(1) of the TamilNadu Court Fees and Suits Valuation Act 1955 and also therespondent/plaintiff is also directed to pay the proper Court Feeunder Section 37(1) of the Tamil Nadu Court Fees and SuitsValuation Act 1955.( after deducting the amount already paid in theplaint). The Registry shall take appropriate steps in this regard andto draft the decree. Considering the facts and circumstances of thecase, there shall be no order as to costs. C.M.P.No.6655 of 2002 isclosed.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarsgTo The Registrar, City Civil Court, Chennai JUDGMENTin A.S.NO.580 of 2002 and CMP NO.6655 of 2002KA {CO}TP/12.3.2010.