High Court · 2025

S.A.No.924 of 2002(MD).Nos.5104, 5106, 5108, 5110 and 5112 of 2021)PRAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the Judgment and Decree dated 24.08.2001 passed in A.S.No.79 of 1997 on the file of the II Additional District Judge,Tirunelveli, dated 24.08.2001 confirming the decree and Judgment dated 28.02.1997 passed in O.S.No.31 of 1993 on the file of the Principal Sub Judge, Tirunelveli. For Appellants : Mr.K.K.Udayakumar For Respondents : Mr.S.Kishore Kumar for R3 to R11 Mr.M.Sheik Abdullah for RR10, 12, 13, 15, 23 & 24JUDGMENTThis appeal has been filed against the Judgment and Decree dated 24.08.2001 passed in A.S.No.79 of 1997 on the file of the II Additional District Judge,Tirunelveli, dated 24.08.2001 confirming the decree and Judgment dated 28.02.1997 passed in O.S.No.31 of 1993 on the file of the Principal Sub Judge, Tirunelveli.2.The averments in the plaint:The suit properties originally belonged to one Hussain Khan. He 3/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002married three women. The first and second wife did not have any child. The plaintiff and the defendants are the children of third wife. At the time of death Hussain Khan left behind his mother, the second and third wives, three female children and one male child. On 10.09.1944, the mother and the second wife released their right in favour of third wife and her children. Ever since from that date the property are in possession and enjoyment of the plaintiff and defendant.3.It was learnt that on 13.04.1987 the first defendant appears to have obtained a settlement deed from the mother. The mother got right to execute settlement deed only in respect of her share. If any settlement is executed by including the share of the plaintiff, it is not valid under law. It was also learnt that the mother did not give due consent for the execution of the settlement deed. She was aged about 80 years suffering from various ailments. The settlement deed never came into effect and it was not accepted. So that settlement deed is not binding upon the share of the plaintiff.4.As per the Muslim Law, the plaintiff is entitled for 7/40 share, 4/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002first defendant 7/40 share and 4th defendant 5/40 share. The plaintiffs and defendants are in joint possession. He issued a notice on 09.12.1992, demanding partition of the suit properties, for which, the first defendant did not give any reply.5.The brief averments made in the written statement of the defendants 1 to 4:It is admitted that the suit property originally belongs to Hussain Khan. Hussain Khan is the husband of the 4th defendant. The settlement deed dated 10.09.1944 is valid under law. Around 1962, there was family arrangement, by which, the defendants executed a sale deed in respect of the house bearing No.100 in Tirunelveli Town to the plaintiff's husband. Even at that time, the plaintiff orally released her share in favour of the 4th defendant. The hiba was accepted by the 4th defendant and she was in possession and enjoyment. After 1962 the plaintiff is not having any right in the suit properties.6.On 13.04.1987, 15.04.1987, the 4th defendant executed the settlement deed in favour of the first defendant with the consent of the 5/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002plaintiff. In fact, the plaintiff took all steps to execute the settlement deed. Settlement was accepted and fourth defendant handed over the property to the first defendant. Ever since, he is in possession and enjoyment.7.With the consent of the plaintiff the first defendant made improvement and repair works in the building. The first defendant's daughter is married to the plaintiff's son. When demand was made by the plaintiff and his son over the retirement benefit of the first defendant, the suit is filed by colluding each other. All other defendants were given hiba. The fourth defendant accepted the hiba and handed over the possession.8.The brief averments made in the written statement of the second defendant:The suit property absolutely belonged to the first defendant and this defendant has no right or interest.6/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 20029.The brief averments made in the written statement of the third defendant:This defendant got 7/40 share in the property. She is entitled for the decree for 7/40 share and paid the court fee also.10.The brief averments made in the reply statement filed by the plaintiff on 27.06.1997:The family arrangement dated 01.09.1962 is denied as false. The sale deed executed in favour of the plaintiff's husband was for valid consideration. That property is not related to the suit property. The plaintiff by oral hiba gave the property to the plaintiff around 1962. It is denied as false. It is denied that the gift deed dated 13.04.1987 was executed with the due consent of the plaintiff without disclosing the contents of the document signature was obtained from him. On coming to know about the contents of the documents the plaintiff did not sign. The repair and development made by the first defendant is denied.11.On 06.02.1997 another reply statement was filed by the plaintiff, disputing the gift deed dated 15.04.1987. That gift deed never 7/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002came into effect. On that basis the first defendant cannot claim any right over the property. As mentioned in the plaint, the plaintiff was suffering from various ailments. Taking advantage of his ailment, signature was obtained.12.On the basis of the pleadings, the trial Court formulated the following issues.1.Whether the plaintiff is entitled for 7/40th share in the suit property?2.Whether the plaintiff has given her share, in favour of the fourth defendant by way of oral gift?3.Whether the fourth defendant, has executed the gift deeds dated 13.04.1987 and 15.04.1987 in favour of the first defendant, with the consent of the plaintiff?4.Whether the first defendant has taken over possession, in pursuance of the gift deeds?5.Whether the first defendant had spent a sum of Rs.70,000/- towards the improvements of the suit building?6.Whether the plaintiff is estopped from seeking partition?8/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 20027.Whether the plaintiff is in collusion with her son in filing the suit?8.To what relief?Additional Issue was also framed by the trial Court on 28.02.1997.1.Whether the 3rd defendant is entitled to 7/40th share in the suit properties?13.On the basis of the plaintiff two witnesses were examined and two documents were marked. On the side of the defendants three witnesses were examined and 15 documents were marked.14.At the conclusion of the trial process the trial Court dismissed the suit. Against which A.S.No.79 of 1997 was preferred by the plaintiff and cross objection was also made. The appellate Court after elaborate discussion, dismissed the appeal, so also the cross objection. Against the concurrent finding, this second appeal is preferred. 15.At the time of admission, the following substantial question of law were framed.1.Whether the Courts below is right in holding that the appellant is 9/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002estopped from disputing Exs.B4 and B5 by the virtue of the attestation, especially in the absence of any evidence on the side of the respondents regarding the due execution of Exs.B4 and B5 executed by an illiterate woman?2.Whether the Courts below is right in upholding Exs.B4 and B5 executed by 4th respondent after having found that the oral gift pleaded by the respondent has not been established?3.Whether the Courts below is right in holding that the 1st respondent is entitled to the suit property by virtue of gift deed Exs.B4 and B5 by the 4th respondent who has no right to execute a gift deed beyond her share in the suit property under Mohammedan Law?4.Whether the Courts below is right in holding the claim of the 1st respondent under Exs.B4 and B5 as the same is contrary to the principles of Mohammedan law that a gift in favour of heir is invalid?16.Before we go into the substantial questions of law framed, let us keep in mind the background facts. So that we can have a clear 10/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002understanding of the issue involved.17.Reading of the plaint as well as the statement filed by the defendants give some sort of confusing affairs with regard to the legal heirs of the original owner namely Hussain Khan. From the records it is now clarified that Hussain Khan married thrice. Through the first and second wives he did not have any children. Through his third wife, who is the fourth defendant herein, the plaintiff, the defendants 1 to 3 were born. So with this clarity in mind now let us go further.18.According to the plaintiff by way of inheritance as per the Mohammedan Law, she got 7/40 share in the property. The second defendant supports the case of the first defendant filed written statement stating that the entire suit property belongs to the first defendant namely Mytheen Khan. She had no right or interest. The third defendant Fathima Begam filed written statement stating that she got 7/40 share in the properties, for which, she must be granted a preliminary decree for partition and for which, she has paid the stamp duty also. The fourth defendant the mother of the parties would say that in and around 1962 11/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002there was oral family arrangement, by which, this plaintiff released, relinquished or gifted her share in her favour. So she executed settlement deed in favour of the first defendant under Exs.B4 and B5, in which, this plaintiff signed as attesting witness. So the entire property now belongs to the first defendant herein.19.So two things are involved. The first one is that the share of the parties namely the plaintiff and defendants is not denied. So the defendants set up for oral family arrangement in and around 1962. They are bound to prove the same by convincing, acceptable and cogent evidence. The second thing is that in the family arrangement, the plaintiff released the share in favour of the fourth defendant. The fourth defendant in turn executed settlement deed Exs.B5 and B6 in favour of the first defendant. So all these things must be clearly established or proved by the respective parties.20.Now let us go to whether the family arrangement that allegedly took place around 1962 was established by the defendants 1 and 4. As mentioned above, the second defendant Mytheen Beevi supports the case 12/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002of the defendants 1 and 4. The third defendant disputes the same, so also the plaintiff.21.To show that there was family arrangement around 1962, absolutely, there is no direct evidence. Only circumstantial evidence is projected by the defendants 1 and 4. The circumstances according to the defendants 1 and 4 is that the defendants executed a sale deed in pursuance of the family property that was situated in Tirunelveli Town, Courtallam Road in favour of the plaintiff's husband. Now according to the plaintiff, that sale deed is for valid consideration and has no connection with the present dispute now. It is settled and basic law that a family arrangement can be made orally. The defendants 1 and 4 wants the Court to believe by circumstantial evidence that around 1962 there was a family arrangement, by subsequent events.22.For answering this point we have to necessarily go into the validity of Exs.B4 and B5 settlement deeds executed by the 4th defendant in favour of the first defendant on 13.04.1987.13/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 200223.Now, the plaintiff says that even though she was attesting witness to this documents, taking advantage of her physical health condition, her signature was obtained. She signed the same without knowing the contents of the documents. So it cannot binding upon her and it cannot be taken as act of consent for executing the gift deed by the fourth defendant in favour of the first defendant for the entire property. If at all that gift deeds are valid only in respect of the share of the 4th defendant and nothing more.24.Now we will go to the evidence of DW1 on this aspect of family arrangements. He would say that in the property his sisters are not having any right, since the mother provided all the seervarisai to them. So they gave hiba in favour of the fourth defendant. So the plaintiff and other sisters are not having any right over the property. During the chief examination, he is silent with regard to the year of family arrangement. Now during the course of cross examination, he would say that his father died around 1938. He was aged about 6 years at that time. Around 1965, the plaintiff relinquished or released his share in his favour. But, he is not remembering the date and month. Just before the filing of the suit the 14/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002second and third defendants relinquished or released their share in his favour. So there is little bit of confusion regarding the family arrangement. At one point of time, he would say that the plaintiffs and defendants 1 and 2 relinquished or released their share in the suit property. In another point of time, he would say that the plaintiff gave hiba. Which one is correct is not clear on record and it appears that both the parties did not concentrate much upon that issue of the family arrangement.25.Now in this background, now let us go to the evidence of PW1. She never released or relinquished her share in favour of any one. After redemption of property around 1987 they were in joint possession. She was cross examined by the first defendant, mostly, concentrating upon Exs.B4 and B5 and the family issue. It was suggested to her that after othi, she gave hiba in respect of her share to her mother namely the 4th defendant herein. Based upon that hiba only 4th defendant executed Registered hiba deed in favour of the first defendant.26.Now as stated above, the father died around 1938. The family 15/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002arrangement according to the first defendant took place around 1962. But, it was not his case during the course of trial. Now according to him around 1965, the plaintiff relinquished or released his share. 27.Whatever, it may be now the problem arose in this way.28.After every long time after the death of the father, as mentioned above the first defendant's daughter is married to the plaintiff. It is not disputed. According to the first defendant the case is registered or filed owing to some family issue between the plaintiff and the first defendant. After retirement the benefits was demanded by the plaintiff's son. That was refused and because of that only, the present case has been registered. Now for and to prove the above said issue, the defendants relies upon a number of letters written by the plaintiff and her son to the first defendant.29.Now PW2, the daughter of the first defendant supports the case of the plaintiff. The letters are marked as Exs.B6 to B10. Reading of these letters give a clear picture regarding the issue. We will straight 16/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002away go to the letter written by the plaintiff's son to the first defendant under Ex.B10, was written around November 1992.30.Reading of this letter does indicate that some sort of issue arose between the plaintiff's son and the first defendant over the property issue. The property under dispute namely the present suit property was mortgaged to plaintiff's son, which is admitted fact. The letter under Ex.B10 is extracted hereunder.@“/////////kw;Wk; fhyk; brd;w cnrd;fhd; Fiurpg; mth;fSf;F fpiuag;ghj;jpag;gl;l brhj;J vd;W ,g;bghGJjhd; v';fSf;F bjhpa[k;/ tPl;od; ek;gh; 101. 102 a /2. 103 a /2 ,e;j tPl;oy; vd; mk;kht[f;Fk; g';F cz;L ,jdhy; ehd; 1956 Fu';Fj;jp 1957 buhf;fahgPtP mlkhdk; 1965 mg[gf;fh; nkah; mlkhdk;. 1987 vk; mg[gf;fh; gzg;gw;W urPJ. 1987 kfg;g{gPtP 101f;F kl;Lk; 41.500 ed;bfhil. 1987 kfg;g{g;gPtP 102 a /2 ed;bfhil filfspd; Mfpatw;wpd; efy;fs; ehd; ,g;bghGJ vLj;j mjd; fhg;gpfis itf;fPy;fsplk; rkh;g;gpj;J 17/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002cs;nsd;/ ,d;!h my;yh ,d;Dk; xU thuj;jpy; nfhhl;L rkd; tUk;/ ,d;Dk; my;yhehodhy; kfg;g{gPtP g';F ed;bfhilia uj;J bra;ayhk; vd;gij mwpat[k;/ fztd; brhj;ij kidtp ed;bfhil bfhLg;gija[k; uj;J bra;ayhk; vd;gij mwpat[k;/ mijg;nghy; vd;Dila tPL ek;gh; 96 vd; mk;kh epidj;jhy; uj;J bra;a Koa[k; R.hp$p!;lh; gz;zpdJ Kjy; uj;J MFk; vd;gij mwpat[k;/ mjdhy; rkd; fpilg;gjw;Fs; vd; mk;khtpd; g';if bfhLf;ft[k;/ my;yhtpd; nky; ek;gpf;if. gak;. ,Ue;jhy; vd; mk;kht[f;F nru ntz;oa g';if bfhL/ my;yhtpd; cjtpahy; vd; mk;kh jhd; ehd;F tUlk; rk;ghjpj;J nrhW nghl;lij ed;wp kwf;fhnj/ eP vg;nghJ ntiyf;F brd;wJk; gj;jpuj;jpy; cs;sJ/ ,g;nghJ ,e;j ,lj;jpd; khh;fl; nul; brhj;jpd; kjpg;g[ 5 yl;rk;/ ,jpy; vd; mk;kht[f;F 5 g';fpy; xU g';if bfhLf;ft[k;/ m!;!yhk;/ 31.As mentioned above letter was written around November 1992. Suit was filed around 1993. So this shows that the plaintiff's son was also 18/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002aware of Exs.B4 and B5, wherein, as mentioned above, the plaintiff herself has made attestation.32.Much argument was advanced by the appellant during the course of arguments by placing reliance upon a number of judgments as to the binding nature of a attesting witness to the contents of a particular document.33.It is the basic and fundamental law that an attesting witness to a document may not know the nature and the contents of the document. What he or she attest is only evidencing the signature and due execution made by the executant. But here, the attestation made by the plaintiff is important. The appellant would rely upon the following judgments.1.The Judgment of this Court made in the case of Annadurai and others Vs. Mayazaghu, 2001 (1) MLJ 641 and2.The Judgment of this Court made in the case of Sirajudeen Vs. Sadurudeen (died) and Others, 2017 (2) LW 966.19/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 200234. That Rule of Estoppel may not arise in such circumstances. No doubt that estoppel, operates under Section 115 of the Indian Evidence Act (old), will not create title in favour of any one. But it will only estop the particular person from disputing attestation or knowledge about the execution of document. Now elaborate discussion was made not only by the trial Court, but, also by the appellate Court as to the conduct of the plaintiff. 35.The plaintiff is not an ordinary illiterate rustic woman. But, she was working as a Teacher in a Government School during the relevant time. Now, she says that when she was not in a position of fit physical and mental state those documents were created by obtaining her signature without informing about the contents. But as mentioned above, elaborate discussion were made by both the Courts regarding the believability of such a stand. As mentioned in Ex.B10, it appears that the execution of Exs.B4 and B5 was well known to not only to the plaintiff, but also the son of the plaintiff. Her son engineered the suit as indicated by him in Ex.B10 itself. So the argument advanced on the side of the appellant that no knowledge can be imported regarding the contents is 20/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002completely out of place and cannot be accepted at all. Cogent convincing and acceptable reasons are mentioned in the judgment of the trial Court as well as the appellate Court. So, I find absolutely, there is no perversity in such a finding. There is no misreading or non reading of evidence. So the very fact that the appellant herein attested Ex.B4 and B5 will indicate that some sort of family arrangement took place. But, as mentioned above, the exact time, date and year is not properly brought on record. But an inference can be drawn to the effect that the plaintiff was a consenting or willing party to Exs.B4 and B5. So she is totally estopped from disputing the contents of the documents.36.The appellant rely upon the judgment of this Court regarding the principles to be kept in mind and the points to be proved in case of hiba. The judgment is reported in the case of Asruffunisa Begum son of Syed Basha and Others Vs. M.S.Nasimudeen, 2021 (2) MLJ 498. The Judgment of the Honourable Supreme Court regarding this issue is extracted by the Court in extensive manner.“A gift under the Muhammadan law can be an oral gift and need not be registered; a written instrument does not, under all circumstances require 21/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002registration; to be a valid gift under the Muhammadan law three essential features, namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act. Actual physical possession may not be always necessary if there is constructive possession of the donee. In Mulla' Principles of Muhammadan Law [Section 152(3)] it is stated: "No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. The possession can be shown not only by enjoyment of the land or premises in question but also by asserting who has the actual control over the property. Someone may be in apparent occupation of the premises, but the other would have control and gaining advantage of possession.The real thrust of the matter is whether the 22/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002essential ingredients of the gift as is understood in the Muhammadan law have been satisfied. A deed of gift solely because it is a written instrument does not require registration. It can always be treated as a piece of evidence evidencing the gift itseft, but, only provided if, the gift fulfils the three essential conditions of a gift by a muslim so that it may be termed as a valid gift under the Muhammadan law.A deed of gift by a Muslim solely because it is a written instrument does not require registration. If the essential features are met with no registration is necessary. It can always be treated as a piece of evidence evidencing the gift itself. Solely because the writing in respect of a gift by a Muslim is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act.”37.So this Judgment will give a clear idea as to the ingredients of gift under the Mohammedan Law. As per the above said settled principles of law there must be clear declaration by the donar 2) acceptance of the gift by the donee either by the express or by implied manner and there by delivery of the possession either actually or 23/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002constructively to the donee. Here as mentioned above, the case of the first defendant is not consistent with regard to the release, relinquishment or hiba in respect of the suit property by the plaintiff. As mentioned above only based upon the inference that has been drawn, the case went on before the trial Court and as well as the appellate Court. This Court cannot, sitting in second appellate stage go into that point which was not properly raised or discussed either before the trial Court or before the appellate Court.38.Now the family arrangement can also be inferred from the very fact that the suit property was mortgaged to the plaintiff's son. It is admitted by the plaintiff herself. Touching upon that point only Ex.B10 letter was written by the plaintiff's son to the defendant. So it is clear on record that this is nothing but a motivated suit engineered by the plaintiff's son to set the score on the family issue between himself and PW2.39.At the time of hearing the second appeal noting that because of the issue PW2 and the plaintiff's son separated, I advised the parties to 24/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002resolve the issue by settlement. The matter was referred to Mediation. But, later it was informed to the court that no settlement could be arrived between the parties, since because Talak was pronounced by the plaintiff's son. So the last minute attempt made by this Court to resolve the issue could not succeed because of the above said failure.40.As mentioned above, the father died around 1938. The plaintiff remained silent till filing of the suit Ex.B4 and Ex.B5 were executed around 1987. The suit is filed in 1993. So as mentioned above the cause of action for the suit is also not genuine one.41.All the substantial questions of law were framed as if the validity of the Exs.B4 and B5 are the centre point of the issue. But, actually, Exs.B4 and B5 is admitted by the plaintiff herself with regard to the due execution. The case of the first defendant that plaintiff released, relinquished or gave hiba in respect of her share, even though there are some contradiction, an inference was drawn as to the probability of a family arrangement before Exs.B4 and B5. It is the case of the plaintiff that Exs.B4 and B5 can be valid only to the extent of fourth defendant's 25/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002share and not binding upon share of the plaintiff and defendants 2 and 3. As mentioned above second defendant supports the case of the first defendant. So does not claim any right over the property. So indirectly she supports the case of the first defendant that by virtue of the family arrangement the entire property was given to fourth defendant. The fourth defendant in turn made hiba to the first defendant under Exs.B4 and B5.42.Even though the third defendant filed written statement claiming partition of her 7/40 share it was negatived by the trial Court. She filed cross objection before the appellate Court. Appellate Court also dismissed the cross objection. But, there was no further appeal by the third defendant. By pointing out these development, it is contended by the first defendant that the probability of the family arrangement and inference that has been drawn by the trial Court as well as the appellate Court and finding of facts, need not be interfered at the second appellate stage.26/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 200243.The fourth substantial question of law is wrongly framed, since there is no such principle that a gift in favour of her is invalid under Muslim law.44.The third substantial question of law is answered that by virtue of the family arrangement fourth defendant was given entire right and so the gift executed by her under Exs.B4 and B5 in favour of the first defendant is valid under law.45.The second substantial question of law is also a consequential question and answered that Exs.B4 and B5 are valid under law.46.The first substantial question of law is answered that the plaintiff is estopped from disputing Exs.B4 and B5.47.The findings recorded by the trial Court and the appellate Court are accordingly confirmed.27/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 200248.The second appeal fails. Accordingly, dismissed with costs. The judgment and decree of the trial court as well as the appellate court are hereby confirmed.13.05.2025Index :Yes / NoInternet :Yes / NoTMTo1.The Principal Sub Judge, Tirunelveli.2.The II Additional District Judge, Tirunelveli.3.The Section Officer, E.R.Section/V.R.Section, Madurai Bench of Madras High Court, Madurai.28/29 https://www.mhc.tn.gov.in/judis S.A.No.924 of 2002G.ILANGOVAN ,J. TMS.A.No.924 of 2002 13.05.202529/29