High Court · 2025

1 A.S.(MD)No.90 OF 2013BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15.07.2025CORAMTHE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN ANDTHE HON'BLE MR.JUSTICE K.RAJASEKARA.S.(MD)Nos.90 of 2013 & 65 of 2021 &M.P.(MD)No.1 of 2013A.S.(MD)No.90 of 20131. Tajunnisa Begum2. Minor L.Osama3. Minor K.Abdul (Minor appellants 2 and 3 rep. by their mother 1st appellant) ... Appellants / PlaintiffsVs.1. S.Nagore Ghani2. Rashida Begum3. N.Fathima4. N.Muthu5. Minor N.Nisha6. Minor N.Shahul Hameed 7. Amir Ghani8. Mookkammal9. Life Insurance Corporation of India, Divisional Office, Jeevan Prakash, Gandhiji Road, Thanjavur. 10. Life Insurance Corporation of India, Unit II, Madurai Road, Tiruchirappalli – 620 001. 11. Indian Overseas Bank, Vayalur Road Branch, Tiruchirappalli. 1/11 https://www.mhc.tn.gov.in/judis 2 A.S.(MD)No.90 OF 201312. Indian Overseas Bank, Main Guard Branch, Tiruchirappalli. 13. Vijaya Bank, Salai Road Branch, Tiruchirappalli. 14. Bank of Maharashtra, Chinnakadai Street Branch, Tiruchirappalli. 15. John Moses16. Sumi Colour Galaxy, No.153, ARV Complex, Salai Road, Tiruchirappalli. 17. Reliable Gas Services, No.10E/3, Sastri Road, Tennur, Trichy-17, By its Partners ABK Moorthy and APK Ashok. 18. M/s.T.T.K.Prestige Limited, K.S.R.Building, Ramamoorthy Nagar, Chinthamani, Tiruchirappalli – 620 002. 19. Victor20. Masi21. Muthu22. Pitchaiammal23.Pattayadar24. Periyasamy25. Mayavan26. Alagesan27. Prakash ... Respondents/ Defendants 2/11 https://www.mhc.tn.gov.in/judis 3 A.S.(MD)No.90 OF 2013Prayer: Appeal suit filed under Order XVI and Section 96 CPC, to call for the records of the judgment and decree dated 20.12.2012 made in O.S.No.28 of 2008 on the file of the II Additional District and Sessions Judge, Tiruchirappalli and set aside the same and to allow the appeal and decree the suit as prayed for in the plaint with regard to all the properties claimed and in regard to the consequential claim of reliefs and also with cost throughout. For Appellants: Mr.J.Barathan, for Mr.N.Sudhagar Nagaraj. For R-1 to R-8: Mr.J.AnandkumarFor R-9 & R-10: Mr.C.GodwinFor R-12,R-13, R-15,R-16,R-17 &R-25: No appearance. * * * A.S.(MD)NO.65 of 20211. S.Nagoor Ghani2. Rasheetha Begam3. N.Fathima4. N.Muthu5. N.Nisha6. N.Shahul Hameed7. Amir Ghani8. Mookkammal ... Appellants /Defendants 1 to 8 Vs.1. Tajunnisa Begum2. Minor K.Osama3. Minor K.Abdul (Minor respondents 2 and 3 are rep. By their mother / first respondent Tajunnisa)... Respondents 1 to 3 / Plaintiffs3/11 https://www.mhc.tn.gov.in/judis 4 A.S.(MD)No.90 OF 20134. Life Insurance Corporation of India, Divisional Office, Thanjavur. 5. Life Insurance Corporation of India, Unit Branch, Tiruchirappalli. 6. Indian Overseas Bank, Vayalur Road Branch, Tiruchirappalli. 7. Indian Overseas Bank, Main Guard Branch, Tiruchirappalli. 8. Vijaya Bank, Salai Road Branch, Tiruchirappalli. 9. Bank of Maharashtra, Chinnakadai Street Branch, Tiruchirappalli. 10. John Moses11. Sumi Colour Galaxy, No.153, ARV Complex, Salai Road, Tiruchirappalli. 12. Reliable Gas Services, No.10E/3, Sastri Road, Tennur, Trichy, By its Partners ABK Moorthy and APK Ashok. 13. M/s.T.T.K.Prestige Limited, Chinthamani, Tiruchirappalli. 4/11 https://www.mhc.tn.gov.in/judis 5 A.S.(MD)No.90 OF 201314. Victor15. Masi16. Muthu17. Pitchaiammal18.Pattayathar19. Periyasamy20. Mayavan21. Alagesan22. Prakash ... Respondents 4 to 22/ Defendants 9 to 27Prayer: Appeal suit filed under Order XVI and Section 96 CPC, to set aside the 1st item of “A” schedule property of the judgment and decree dated 20.12.2012 made in O.S.No.28 of 2008 on the file of the II Additional District and Sessions Judge, Tiruchirappalli and consequently allow the present appeal suit. For Appellants: Mr.J.AnandkumarFor R-1 : Mr.J.Barathan, for Mr.N.Sudhagar Nagaraj.For R-4 & R-5: Mr.C.GodwinFor R-7,R-20, R-10 to R-14, R-16 & R-19: No appearance. *** C O M M O N J U D G M E N T(Order of the Court was delivered by G.R.SWAMINATHAN, J.)These appeals arise out of a suit for partition laid in O.S.No.28 of 2008 on the file of the II Additional District and Sessions Judge, Tiruchirappalli. 5/11 https://www.mhc.tn.gov.in/judis 6 A.S.(MD)No.90 OF 20132. The suit properties originally belonged to one K.S.Hameed @ K.Shahul Hameed. Through his wedlock with one Nisha Begum, two sons and two daughters were born. Genealogy is as follows:- 3. The second son Kader Ismail pre-deceased K.S.Hameed @ Shahul Hameed. K.S.Hameed was owning 47 cents of land. He executed Ex.A.22 dated 28.05.2004 in favour of Kader Ismail settling 6/11 https://www.mhc.tn.gov.in/judis 7 A.S.(MD)No.90 OF 20136500 sq.ft. of the land together with constructed building thereon. In the very same year, he executed Ex.B.1 dated 28.07.2004 settling 6500 sq.ft in favour of Nagoor Gani, elder son/D1. The daughters Ameer Gani and Mookammal executed release deed Ex.B.8 in favour of Nagoor Gani relinquishing their shares in the remaining extent of land. Thereby, Nagoor Kani came to have title over 13,922.08 sq.ft. of land. Nisha Begum passed away in 1993 itself. K.S.Hameed had passed away on 26.02.2007. Kader Ismail, pre-deceased his father on 03.01.2007. Kadher Ismail's wife and sons are the plaintiffs in the partition suit. The suit property contained 4 schedules. Schedule “B” comprises insurance policies. Schedule “C” comprised two insurance policies, movable items and also 13,922.08 sq.ft extent of land which was included as item 17. There is no issue regarding the insurance policies as it has been already settled in Suc.O.P.No.7 of 2007. As regards, movable properties, there is no dispute. The real contest revolves only around the landed property in T.S No.2102, Block No.39, Ward No.2, Trichy Corporation measuring an extent of 20492.8 sq.ft. On the side of the plaintiffs, four witnesses were examined. On the side of the defendants, three witnesses were examined. The trial Court passed preliminary decree granting 5/6th share in favour of the 7/11 https://www.mhc.tn.gov.in/judis 8 A.S.(MD)No.90 OF 2013plaintiffs in respect of the first item in schedule “A” based on Ex.A.22 settlement deed. The suit was dismissed other respects. In respect of disallowed portion, the plaintiffs filed A.S.(MD)No.90 of 2013. The contesting defendants question this preliminary decree passed in favour of the plaintiffs by filing A.S.(MD)No.65 of 2021. 4. The point for determination is whether the trial Court was justified in granting 5/6th share in favour of the plaintiffs in respect of the first item schedule “A”. 5. Before we go into the factual aspects, we have to bear in mind the basic principle of Mohammedan Law which states that the grand children of a pre-deceased Mohammedan born through the pre-deceased son will not be entitled to any share in the grandfather's property. It is not in dispute that item No.2 and “A” schedule and items 18, 19, 20 and other landed properties which admittedly stood in the name of K.S.Hameed cannot be claimed by the grand children, namely plaintiffs 2 and 3. To this extent we have to necessarily uphold the judgment and decree of the trial Court. While the trial Court had granted relief in favour of the plaintiffs 8/11 https://www.mhc.tn.gov.in/judis 9 A.S.(MD)No.90 OF 2013based on Ex.A.22 settlement deed which was executed by K.S.Hameed in favour of Kadar Ismail, a bare reading and look at the document would show that what was settled in favour of Kader Ismail was only 6500 sq.ft of land together with the constructed building thereon. However, while describing item No.1, some confusion had crept in. The entire extent of 20,492.8 sq.ft of land had been included. This in our view, was clearly a wrong committed by the plaintiffs while drafting the plaint. This mistake naturally crept in while drafting the decree. This has to be necessarily corrected. Item No.1 of “A” schedule can only be the property covered under Ex.A.22. Therefore, the judgment and decree passed by the trial Court has to be accordingly modified. The first plaintiff is the wife of Kader Ismail. She is therefore entitled to 1/8th share. Kader Ismail passed away, When K.S.Hameed was alive and therefore, 1/6th share in item No.1 schedule “A” devolved on K.S.Hameed. Plaintiffs 2 and 3 are entitled to 17/48th share each. In substance, the plaintiffs will be entitled to 5/6th share in item No.1 in “A” schedule i.e. 6500 sq.ft as covered by Ex.A.22 dated 28.05.2024. In all other respects, the judgment and decree stands confirmed. A.S.(MD)No.90 of 2013 is dismissed and A.S.(MD)No.65 of 2021 is partly allowed. 9/11 https://www.mhc.tn.gov.in/judis 10 A.S.(MD)No.90 OF 20136. While drafting decree, Registry to substitute the description set out in the Ex.A.22 settlement deed in the place of item No.1 in the suit schedule “A”.No costs. Consequently, connected miscellaneous petition is closed. (G.R.SWAMINATHAN, J.) & (K.RAJASEKAR, J.) 15th July 2025NCC : Yes / NoIndex : Yes / NoInternet : Yes/ NoPMUTo: The II Additional District and Sessions Judge, Tiruchirappalli 10/11 https://www.mhc.tn.gov.in/judis 11 A.S.(MD)No.90 OF 2013G.R.SWAMINATHAN,J.AND K.RAJASEKAR, J.PMUA.S.(MD)Nos.90 of 2013 & 65 of 202115.07.202511/11