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2003 DIGILAW 58 (KER)

Parampat Muhammad Ali v. Kadeeja Umma

2003-01-24

A.LEKSHMIKUTTY

body2003
JUDGMENT :- These two appeals arise from the common judgment passed in O. S. No. 56/1988 and O. S. No. 67/1988 on the file of the Sub-Court, Manjeri. The appellants in A. S. No. 177/1992 are the plaintiffs in O. S. No. 67/1988 and appellants in A. S. No. 43/1993 are the plaintiffs in O. S. No. 56/88 on the file of the Sub-Court, Manjeri. Both the suits are filed by the respective parties for partition of the properties scheduled in the respective plaint. 2. For the sake of convenience the plaintiffs in O. S. No. 56/1988 can be referred as the plaintiffs and the plaintiffs in O. S. No. 67/1988 can be referred as the defendants. The case of the plaintiffs in O. S. No. 56/1988 is that the property scheduled in the plaint was set apart to the share of Alavi, the father of the plaintiffs 1 to 4 and defendants 1 to 4 and husband of the 5th plaintiff as per partition deed No. 1684/1977. He was in possession and enjoyment till his death on 12-8-1984. The plaintiffs and defendants are the legal heirs of deceased Alavi. The defendants are residing in the property and taking income on behalf of the other co-owners. After the death of Alavi, the plaintiffs demanded for partition and separate possession of their share from the property but the defendants did not heed their demand. The property will fetch an annual income of Rs. 2256/-. The plaintiffs are entitled to get partition and separate possession of the share in the property. 3. Defendants 1 and 3 filed a joint written statement contending that the plaint schedule property was orally gifted to them by their father Alavi in the year 1978 and while they were in joint possession, they partitioned the plaint schedule property on 28-11-1984 as per Ext. B 1 registered partition deed. In pursuance of the partition deed, the parties are in separate possession and enjoyment of their respective shares. After the gift, Alavi had no right in the property and as such it is not liable to be partitioned. They filed O. S. No. 67/1988 for partition of joint property in the possession of the plaintiffs and 4th defendant. If it is found that the property is liable to be partitioned, they are entitled to get the improvements in the said property. 4. They filed O. S. No. 67/1988 for partition of joint property in the possession of the plaintiffs and 4th defendant. If it is found that the property is liable to be partitioned, they are entitled to get the improvements in the said property. 4. On the basis of the pleadings the Court below raised six issues. 5. O. S. No. 67/1988 is filed by defendants 1 and 2 for partition of the property scheduled therein. Their case is that the property originally belonged to Alavi and Alavi died in the year 1984. The plaintiffs and defendants are the legal heirs of deceased Alavi. After the death of Alavi, the plaint schedule property is managed by the plaintiffs. The defendants demanded partition and separate possession of their respective shares, but the request was not heeded. The annual profit of the property would come to Rs. 20,000/-. The defendants are entitled to their shares with mesne profits. The plaint was amended raising a contention that the gift deed alleged to have been executed by deceased Alavi in favour of plaintiffs and 4th defendant on 30-8-1978 is a sham document and has not come into force. It was executed without the knowledge and consent of Alavi. Alavi was seriously injured in a bus accident in the year 1973 and was not in sound disposing capacity. The gift deed is executed by exerting undue influence, fraud and without knowing the contents. In pursuance of the gift deed, the plaintiffs and 4th defendant have not obtained any right over the property. The property is to be partitioned and 28/96 is to be allotted to them. 6. The plaintiffs filed written statement contending that the property scheduled in the plaint is originally belonged to Alavi and as per the gift deed executed by Alavi on 30-8-1978, the plaintiffs and 4th defendant are in possession and enjoyment of the same. They have subsequently partitioned the property and they are in separate possession of the same. The defendants are aware of the gift deed executed by Alavi in favour of the plaintiffs and 4th defendant. At the time of death of Alavi, he has no right over the property and the suit is filed as a counter-blast to O. S. No. 56/1988. On the above pleadings, the Court below raised six issues. 7. These two suits were jointly tried and a common judgment was passed. At the time of death of Alavi, he has no right over the property and the suit is filed as a counter-blast to O. S. No. 56/1988. On the above pleadings, the Court below raised six issues. 7. These two suits were jointly tried and a common judgment was passed. Evidence was recorded in O. S. No. 56/1988. On the side of the plaintiffs, PWs. 1 and 2 were examined and Exts. A1 to A17 were marked. On the side of the defendants, DW-1 was examined and Ext. B-1 was marked. The Court below after appreciation of the evidence dismissed both the suits against which the respective parties have come up in appeal. 8. The question to be considered is whether there is any reason to set aside the judgment passed by the lower Court. There is no dispute with regard to the fact that the property originally belonged to Alavi, the predecessor of plaintiffs and defendants. The property scheduled in O. S. No. 56/1988 is having an extent of 13 cents whereas the property scheduled in O. S. No. 67/1988 is having an extent of 2 acres 32 cents. As per the plaintiffs, the subject-matter of O. S. No. 67/1988 has been gifted to them by Alavi, their father during his lifetime on 30-8-1978 as per Ext. A1 gift deed. Eversince the gift deed they are in possession of the same. They have effected mutation and paying tax also. Exts. A4 to A10 are the property tax receipts. The defendants claim oral gift in respect of 13 cents of property scheduled in O. S. No. 56/1988. The important question to be considered is whether gift deed relied on by the plaintiffs is a valid document and the oral gift claimed by the defendants is true. As per the evidence of PW-1 the gift deed was executed by Alavi voluntarily and at the time of execution of Ext. A1. Alavi having sound disposing capacity. On the date of gift deed possession was also given. The oral gift alleged by the defendants is false and Alavi was in possession of the property till his death. 9. To prove Ext. A1 gift deed, the plaintiffs have cited and examined as PW-2. He deposed that Ext. A1 was executed by Alavi and at the time of execution of the document, the donor was having full disposing capacity. So the execution of Ext. 9. To prove Ext. A1 gift deed, the plaintiffs have cited and examined as PW-2. He deposed that Ext. A1 was executed by Alavi and at the time of execution of the document, the donor was having full disposing capacity. So the execution of Ext. A1 is proved through the evidence of P.Ws. 1 and 2. The documentary evidence produced by the plaintiffs would show that during the lifetime of their father, they have effected mutation and paying tax. Ext. A16 is the assignment deed in favour of Alavi and Ext. A. 17 is the partition deed executed between Alavi and others. Exts. A11 to A15 would show that the building tax was being paid by the 5th plaintiff, the 2nd wife of Alavi. The defendants are the first wife and children of deceased Alavi. The defendants by an amendment of their plaint averred that the gift deed relied on by the plaintiffs is a sham document and during the relevant time, their father Alavi was not having any disposing capacity. The document was fabricated using undue influence, fraud and without his consent. Even though such an allegation has been raised by the defendants, no evidence was adduced to substantiate the same. The execution of Ext. A1 is proved through the evidence of PW-2. He has categorically deposed that the gift deed has been executed voluntarily by Alavi and the donor was having full disposing capacity. It is further clear from the documentary evidence that plaintiffs and 4th defendant were dealing with the property during the lifetime of Alavi and they were giving property tax and building tax also. Their case is that the defendants filed the suit as a counterblast to the suit filed by them. DW-1 admitted that the plaintiffs are in possession of the property scheduled in O. S. No. 67/88. So the Court below has rightly found that Ext. A1 is a valid document.In respect of the 13 cents of the property scheduled in O. S. No. 56/1988, the defendants claim possession as per an oral gift by Alavi. It is disputed by the plaintiffs. Their specific case is that the property was never gifted to the defendants. On the side of the defendants, DW-1 was examined. Since the defendants claim oral gift in respect of 13 cents, they must prove that there was delivery of possession by the donor to the donees. It is disputed by the plaintiffs. Their specific case is that the property was never gifted to the defendants. On the side of the defendants, DW-1 was examined. Since the defendants claim oral gift in respect of 13 cents, they must prove that there was delivery of possession by the donor to the donees. At the time of examination, DW-1 stated that in pursuance of the oral gift they have partitioned their property as per Ext. B1. Admittedly the partition deed was executed after the death of Alavi. At the time of cross-examination DW-1 deposed that : (Vernacular matter omitted - Ed.) This version of DW-1 would clearly show that possession was not delivered to the defendants as claimed by them. On the other hand, it would show that the property was in the possession of Alavi till his death and he was paying tax also. It is further sworn to by DW-1 that : (Vernacular matter omitted - Ed.) It also shows that Alavi was having sound disposing capacity. From the deposition it is clear that the defendants were aware of the gift of 2 acres 32 cents in favour of plaintiffs and 4th defendant. It is also clear from his evidence that the dispute arose when the plaintiffs asked for partition of 13 cents of property. The defendants are residing in the building in 13 cents of property. Ext. A1 gift deed was in favour of the 2nd wife and children and one of the sons through his first wife also. In such circumstances, it is to be found that the oral gift pleaded by the defendants is not correct. 10. In such circumstances, the Court below was not justified in dismissing both the suits. Thus O. S. No. 56/88 is decreed and O. S. No. 67/1988 is dismissed. Hence A. S. No. 177/1992 is dismissed and A. S. No. 43/1993 is allowed. No costs. If the defendants have effected any improvements, they are entitled to get the same and it shall be assessed at the time of passing final decree. Appeal allowed.