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2003 DIGILAW 146 (MAD)

Jannathkani v. S. Abdul Kareem and others

2003-01-31

M.CHOCKALINGAM

body2003
JUDGMENT: A memo is filed stating that the first respondent is no more and all the legal representatives were already recorded and no more legal representatives are required to be added. Hence, no question of legal representatives would arise. The said memo is recorded. 2. This second appeal has arisen from the judgment of the learned District Judge made in A.S. No.215 of 1991 affirming the judgment of the trial Court in a suit for partition filed by the appellant herein. 3. The appellant filed a suit for partition claiming 1/4th share in the suit property came with a specific case that the suit property/ house situated in R.S. No.217/38 measuring to an extent of 06.5 aces belonged to her mother Kathijia Bibi, wife of the first defendant; that the plaintiff and her father first defendant, her sister second defendant were residing in the suit property, which is in joint possession; that on the death of her mother, the first defendant was entitled to share in the suit property, while herself and her sister, second defendant were entitled - share each; that despite demands there was no possibility of amicable partition, which led to file a suit; that it was further pleaded that the first defendant agreed over the demand for partition was bout to alienate the property in favour of the third party. Hence, she has filed the suit. 4. The 3rd defendant was added as a party to the suit by way of application filed at his instance; that he was he who contested the suit vehemently alleging that the suit properly actually belonged to the first defendant; that the vacant site where the construction was made was purchased by the first defendant out of his money in the name of his wife Katheeja Beevi; that he is the son of the first defendant and Katheeja Beevi; that the plaintiff and the 2nd defendant are his sisters; that he has also contributed to the construction of the superstructure; that his father first defendant made a oral gift of the entire property on 1.5.1987; that subsequently the oral gift was confirmed by a confirm deed under Ex.B-19 and thus he became entitled to hold the property exclusively. Hence, the suit for partition has to be dismissed. 5. Necessary issues were framed by the trial Court. After trying the suit, the same has been dismissed. Hence, the suit for partition has to be dismissed. 5. Necessary issues were framed by the trial Court. After trying the suit, the same has been dismissed. Aggrieved plaintiff took it on appeal before the District Court, which was also dismissed and thus the second appeal has arisen at the instance of the plaintiff. 6. At the time of admission, the following questions of law were framed for consideration: "(i) Whether the Courts below are right in holding that the Hibba made by the first defendant in favour of the 3rd defendant in respect of the entire property is valid, when the first defendant has no title to the entire property? (ii) Whether the Courts below are right in holding that the first defendant is the real owner of the property when it has been purchased by him in the name of his wife?‘ 7. After hearing the submissions made by the learned counsel for the appellant and the scrutiny of the available materials, the Court has to set aside the judgments of both the Courts below. The specific case of the plaintiff is that the suit property situated in R.S. No.217 of 38 originally belonged to her mother Katheeja Beevi. It is not in dispute that the plaintiff and the 2nd defendant are daughters of Katheeja Beevi and her husband, the first defendant While the 3rd defendant filed an application to implead himself as a party, the same was allowed and he was added ass 3rd defendant in the suit. Arguing for the third respondent, it is contended by the learned counsel that both the Courts have rightly held that the plaintiff is not entitled for partition and, hence, correctly found on the evidence available that the property was purchased in th name of Katheeja Beevi by the first defendant and in turn, as full-fledged owner, he has gifted the property in favour of the third defendant and it has also been confirmed under Ex.B-19 and in view of the available evidence, the lower Courts have received a concurrent finding, which has got to be sustained and the second appeal has to be dismissed. The first contention that was put forth by the 3rd defendant was that he was the son of the first defendant and his wife, deceased Katheeja Beevi, and the same was in controversy between the parties. The first contention that was put forth by the 3rd defendant was that he was the son of the first defendant and his wife, deceased Katheeja Beevi, and the same was in controversy between the parties. The first defendant was examined as P.W.2 on the plaintiff’s side has deposed that the third defendant was not his son. The plaintiff has relied on certain documents, where the defendant has been described as the foster son of the first defendant but both the Courts have discussed the question elaborately and have concurrently found that the third defendant was the son born to the first defendant and his wife Katheeja Beevi. This Court is of the considered view that it does not require any interference. 8. Insofar as the 2nd contention is concerned, the property was purchased by the first defendant in the name of his wife Katheeja Beevi and constructions were also made by first and third defendant in which Katheeja Beevi had not made any contribution and hence the property solely belonged to the first defendant was accepted by both the Courts below. From the evidence it would be abundantly clear that at the time when the vacant site was purchased, Katheeja Beevi had no independent source of income and there are no materials to show that she had any independent source of income and hence, it could be easily inferred that both the purchase of vacant site and the construction made therein, should have been made by the first defendant. The first appellate Court rightly rejected the contentions that the third defendant has made contributions for the construction of the house in the vacant site, in view of the fact that he was only seven years old when the constructions were made. Both the Courts have found that the vacant site was purchased and constructions were made by the first defendant. Though the property stood in the name of Katheeja Beevi, it should be later only as the property purchased by the first defendant as benami in the name of his wife. At this juncture, both the Courts have thoroughly failed to consider the actual intention with which the first defendant had acted at the time of purchase. Even the 3rd defendant has well admitted in his evidence that the father, the first defendant purchased the properties in order to protect the interest his mother Katheeja Beevi. At this juncture, both the Courts have thoroughly failed to consider the actual intention with which the first defendant had acted at the time of purchase. Even the 3rd defendant has well admitted in his evidence that the father, the first defendant purchased the properties in order to protect the interest his mother Katheeja Beevi. The decisions relied on by the appellants before the Courts below and equally here also in Kistappa Naicker v. Elumalai Naicker, (1976)2 M.L.J. 470 , where it has been held that when a husband purchased property in the name of his wife by paying his own money, from that alone no influence could be drawn that the wife was only a benamidar. Having regard to the nature of the relationship between the parties and the normal tendency of the husband to benefit the wife either by payment of money or by purchase of property in her name, the allegation of benami could be established only by proving the motive for such benami purchase. 9. In the instant case, the third defendant has not proved the motive for such a benami purchase or otherwise, but from the available evidence, it is clear that the properties were purchased in the name of Katheeja Beevi by the first defendant for her benefit. There is no difficulty in holding that the mere transfer of patta or transfer of assessment of tax to the name of the first defendant would hold good the finding that the properly belonged to the first defendant. Further, the case of the 3rd defendant is that the suit property was gifted to him by way of HIBA and was subsequently confirmed under Ex.B-19 do not require any consideration in view of the fact that the first defendant was not the exclusive owner of the property on the day when the gift has made, but he ws entitled to half of the share of the property. Under this stated circumstances, there is no factual legal impediment for granting the relief of partition as asked for by the plaintiff in the suit. 10. Hence, the judgment of both the Courts below are set aside, granting preliminary decree for partition of both share to the plaintiff as asked for in the suit. 11. In the result, the second appeal is allowed. No costs.