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MADRAS HIGH COURT (Madurai Bench)
V.M. Velumani, J.
Hawva Nachiyar & Ors. - Appellants
Versus
Balkish Beevi Ammal & Ors. - Respondents
S.A.(MD) No. 770 of 2006 and M.P.(MD) Nos. 1 of 2006 and 1 of 2014
Decided On : 29-10-2015
Tamil Nadu Court Fees and Suit Valuation Act - Section 37(2) - Evidence Act, 1872 - Section 90 - Section 68 and 69 - Sections 101 to 103 - Succession Act, 1925 - Section 63(c) - Limitation Act, 1963 - Article 65 - Article 65(b) - Husband Wife – Property – Will - Suit properties belonged to M.K. Mohaideen Abdul Khader, of first defendant - He sent a letter to father of first respondent, when he was taking treatment in hospital - In said letter, he specifically, stated that after he comes from hospital, marriage between first respondent and first defendant can be conducted and promised to give all his properties to first respondent and stated that said letter has to be treated as his Will, i.e., "VASIYYAT" – He died in hospital - In fulfilment of his wish, marriage of first defendant and first respondent was conducted - Marriage was conducted in a simple way as 40 days had not expired from date of death of father of first defendant - Step mother of first defendant also gave her consent for said marriage - After marriage, Will came into force and first respondent became owner of suit properties - First respondents father was managing properties on her behalf - First defendant did not like same and hence, management was given to him - On the ill advise of his step mother, first defendant started acting against interest of first respondent - They filed petition for succession certificate stating that they are only legal heirs of M.K. Mohaideen Abdul Khader – Held, Direct way of proving marriage is by producing extract of Nikkah register from concerned Jammath register or by examining persons, who witnessed said marriage - Indirect way of proving marriage is cohabitation for a long period and begetting children - Alleged marriage between first defendant and first respondent was not registered in Nikkah register and therefore, no marriage took place in year 1967, is untenable - First defendant has not produced any document to show that marriage between him and first appellant was registered in Nikkah register even though, he claims that said marriage was registered - Trial Judge disbelieved evidence of P.W.2 as he is an unbelievable witness and his evidence is artificial in nature - First Appellate Court has appreciated all evidence on record and also nature of Muslim marriage in proper perspective and came to a conclusion that first respondent has proved her marriage with first defendant - It has to be taken note of that first respondent is an illiterate lady living in a village and would not have come out with a false case that she got married to first defendant - She had politely and patiently waited with fond hope that first defendant would change his attitude and live with her as husband and wife - This reason given by her for delay in filing suit for partition is acceptable one in social circumstances which first respondent hails - For reasons, stated above, this substantial question of law No.4 is answered that first respondent has proved her marriage with first defendant – Appeal Dismissed.
Based on the provided legal document, the case involves a dispute over the validity of a marriage, the execution of a will, and the ownership and rights to certain properties. The key points are as follows:
Marriage Proof and Validity: The first respondent claims to have married the first defendant in 1964, supported by direct evidence such as witnesses present at the marriage and the conduct of the marriage itself. The court has appreciated the nature of Muslim marriages, which can be proved through direct evidence like Nikkah register extracts or witness testimony, or indirectly through cohabitation and bearing children (!) (!) (!) (!) .
Will and Property Rights: The first respondent alleges that the father of the first defendant, M.K. Mohaideen Abdul Khader, intended to bequeath his properties to her through a letter written during his illness, which he treated as his Will ("VASIYYAT"). This letter explicitly stated that she would become the owner of the properties upon marriage, and the court has found this document to be sufficiently proved, especially considering the presumption under the law for documents over 30 years old produced from proper custody (!) (!) (!) (!) .
Execution of the Will: The execution of the alleged Will was contested. The first defendant and his supporters argued that the document was forged, fabricated, or not properly proved. However, the court noted that the first defendant admitted the signature as that of his father and that the document was produced from proper custody, which justifies a presumption of its validity (!) (!) (!) .
Delay in Filing Suit: The first respondent delayed filing the suit for a significant period, but the court accepted her explanation that her delay was due to her hope that the first defendant would change his attitude and live with her as husband and wife. The court considered her social circumstances and found her delay justified (!) (!) .
Possession and Sale of Properties: The first defendant and his stepmother managed and alienated the properties openly and in possession as owners for a long period, which the court considered as adverse possession, thereby extinguishing any claim of the first respondent under the Will or her rights over the properties (!) .
Legal Principles Applied:
The doctrine of adverse possession applies when the owner openly and continuously deals with the property as an owner for a statutory period (!) .
Outcome: The appellate court upheld the findings of the lower court, confirming that the first respondent proved her marriage and the execution of the Will. The court dismissed the appeal, emphasizing that the evidence supported her claim and that her delay in filing was justifiable under social circumstances (!) (!) .
In summary, the document underscores the importance of direct evidence for marriage, the validity of long-standing documents under presumption laws, and the effect of adverse possession on property rights. The courts have favored the first respondent's claims based on the evidence of her marriage and the execution of the Will, leading to her being recognized as the owner of the properties in question.
V.M. Velumani, J.
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 fulfilment 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
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