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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
V.M.VELUMANI, J.
Hawva Nachiyar – Appellant
Vs.
Balkish Beevi Ammal – Respondent
S.A.(MD)No.770 of 2006 & M.P.(MD) Nos.1 of 2006 and 1 of 2014
Decided on : 29.10.2015
SUCCESSION - WILL - PROOF - PRESUMPTION - GENUINENESS - EXECUTION - ATTESTATION - MARRIAGE - MUSLIM LAW - VALIDITY - PROOF - POSSESSION - ADVERSE POSSESSION - LIMITATION ACT, 1963 - ARTICLE 65 - SECOND APPEAL - SUBSTANTIAL QUESTIONS OF LAW.
Fact of the Case:
The first respondent filed a suit for partition against the first defendant claiming 1/3 share in the suit properties. According to the first respondent, M.K.Mohaideen Abdul Khader, father of first defendant is her maternal uncle being brother of her mother. First defendant's father and her father are close friends. In the circumstances, the first defendant's father, M.K. Mohideen Abdul Khader from the early age of first defendant and first respondent was intending to get them married to each other. M.K. Mohideen Abdul Khader was admitted in Sengipatti hospital and was taking treatment. While in hospital, he wrote a letter dated 11.5.1964 marked as Ex.A.1. In the said letter, he had stated that after he is discharged from hospital, he would conduct marriage between first defendant and first respondent. In the said letter, he had also stated that he would give all his properties to first respondent after marriage between first defendant and first respondent. He died on 13.6.1964 in the hospital. According to the first respondent, the marriage between her and first defendant was conducted on 19.7.1964. From that day onwards, she became owner of all the properties of M.K. Mohaideen Abdul Khader as per Ex.A.1 as M.K. Mohaideen Abdul Khader has categorically stated that in case of his death, the said letter has to be treated as Will.
Finding of the Court:
The first respondent has proved Ex.A.1 including contents. The lower Appellate Judge has given valid reasons for holding that the first respondent has proved Ex.A.1. There is no infirmity in the said finding. The first respondent has proved her marriage with the first defendant. In the criminal case filed against the first respondent's father, P.W.2 and others they were acquitted. Therefore the case of the first defendant that he was forced and tortured by first respondent's father, was rejected. A marriage between a Muslim male and Muslim female can be proved by direct or indirect way. The first respondent has proved her marriage with first defendant by direct evidence, i.e. certified copies of evidence of her father recorded in O.P.No.36 of 1966 and C.C.No.277 of 1964, her evidence in the suit as P.W.1 and evidence of P.W.2, Abdul Hussain, who attended the marriage of first defendant and first respondent.
Issues: None
Ratio Decidendi: The first respondent has proved Ex.A.1 including contents. The lower Appellate Judge has given valid reasons for holding that the first respondent has proved Ex.A.1. There is no infirmity in the said finding. The first respondent has proved her marriage with the first defendant. In the criminal case filed against the first respondent's father, P.W.2 and others they were acquitted. Therefore the case of the first defendant that he was forced and tortured by first respondent's father, was rejected. A marriage between a Muslim male and Muslim female can be proved by direct or indirect way. The first respondent has proved her marriage with first defendant by direct evidence, i.e. certified copies of evidence of her father recorded in O.P.No.36 of 1966 and C.C.No.277 of 1964, her evidence in the suit as P.W.1 and evidence of P.W.2, Abdul Hussain, who attended the marriage of first defendant and first respondent.
Final Decision: The second appeal is dismissed. The Judgment and Decree of the First Appellate Court are confirmed. No costs.
The appellants are the respondents 16 and 17 in A.S.No.119/98 and they are the wife and son of Abdul Samath, respectively, the first defendant in O.S.No.57/96 and the first respondent in A.S.No.119/98, who died pending A.S.No.119/98. The first respondent is the plaintiff in O.S.No.57/96 and the appellant in A.S.No.119/98. The respondents 2 to 15 are purchasers of suit properties from Abdul Samath, the first defendant and his step mother. The suit in O.S.No.57/96 was dismissed after trial and A.S.No.119/98 filed by first respondent/plaintiff was allowed. Against the Judgment and decree, dated 31.3.2006, made in A.S.No.119/98, passed by the learned Principal District Judge, Thanjavur, the present second appeal has been filed.
2. The appellants herein, who have filed this second appeal are the legal representatives of first defendant, Abdul Samath, who were impleaded as respondents 16 and 17 in A.S.No.119 of 1998.
3. For the sake of convenience, the first defendant in the suit, namely, Abdul Samath since deceased is referred to as the first defendant.
4. The case of the first respondent/plaintiff:
(i) She is the wife of Abdul Samath, the first defendant in the suit (since deceased). M.K.Mohaideen Abdul Khader, father of first defendant is brother of first respondent's mother and close friend of first respondent's father. His wife, mother of first defendant died. He married again. M.K.Mohaideen Abdul Khader wanted first defendant to marry the first respondent.
(ii) The suit properties belonged to M.K. Mohaideen Abdul Khader, father of first defendant. On 11.5.1964, he sent a letter to father of first respondent, when he was taking treatment in the hospital at Sengipatti. In the said letter, he specifically, stated that after he comes from hospital, the marriage between the first respondent and first defendant can be conducted and promised to give all his properties to the first respondent and stated that the said letter has to be treated as his Will, i.e., “VASIYYAT”. On 13.6.1964, he died in the hospital. In fulfillment of his wish, the marriage of first defendant and first respondent was conducted on 19.7.1964. The marriage was conducted in a simple way as 40 days had not expired from the date of death of M.K.Mohaideen Abdul Khader, father of first defendant. The step mother of first defendant also gave her consent for the said marriage. After the marriage, Will came into force and first respondent became owner of suit properties. The first respondent's father was managing properties on her behalf. The first defendant did not like the same and hence, the management was given to him. On the ill advise of his step mother, the first defendant started acting against the interest of first respondent. They filed petition for succession certificate stating that they are the only legal heirs of M.K.Mohaideen Abdul Khader. The first respondent filed her objections in the OP for succession certificate on the ground that she is the owner of the properties of M.K.Mohaideen Abdul Khader, as per Will. The Court granted Succession Certificate to the first defendant and his step mother observing that the first respondent can establish her right under the Will in a Civil Court. The first defendant is not living with first respondent and he has alleged that first respondent is not his wife. He and his step mother sold certain properties to respondents 2 to 15. The first defendant denied the Will. Therefore, as per Muslim law, the first respondent is entitled to claim only 1/3rd of the properties belonging to M.K.Mohaideen Abdul Khader under the Will.
(iii) The step mother of first defendant died on 22.11.1994. The first defendant as the sole legal heir of M.K.Mohaideen Abdul Khader is entitled to 2/3rd share. The sale in favour of respondents 2 to 15 will not bind the 1/3rd share of first respondent. The first defendant was managing the suit properties on behalf of first respondent also. She sought for partition as she did not want to en
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