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IN THE MADRAS HIGH COURT AT MADURAI BENCH
S.S. Sundar, J.
S. Ajija Begum - Appellant
Versus
S. Aisha Bevi (Died) & Ors. - Respondents
Appeal Suit (MD) No. 38 of 2010 and M.P. (MD) Nos. 2 and 3 of 2010
Decided On : 03-03-2017
Civil Law – Civil Suit – Suit for partition - Permanent injunction - Release deed and Gift deed – Execution of - Legal heirs – Dismissal of Suit - Whether plaintiff is daughter of first defendant or not categorically held that document release deed contains false recitals as to relationship of plaintiff and first defendant - Plaintiff is daughter of first defendant and sister of defendants 2 and 3 - Fourth defendant is widow of plaintiffs yet another brother - Since said brother is no more, his legal heirs namely his wife, 4th defendant and children defendants 5 and 6 are impleaded in suit - 7th defendants is impleaded as he intended to purchase one item of suit property from other defendants - Father of plaintiff is S.V.M. Shaeed Saibu - Suit property originally belonged to father of plaintiff’s - First item was gifted to him by his father - Whether release deed alleged to have been executed by plaintiff in respect of some of items shown in suit second schedule is true, valid and binding on plaintiff and proved in accordance with law and whether document is a sham and nominal transaction which was never acted upon - Whether property shown in third item is separate property of first defendant - Whether first defendant has got right to execute settlement deed in respect of third item - Whether gift is a death bed gift - Held, One could prove real nature of transaction and real intention of parties which may not be evident from document as such but only by other evidence - There is no plea in plaint about sham and nominal nature of transaction - Absolutely, there is no evidence to suggest any motive for such sham and nominal transaction under Ex.B1 - Hence, case of appellant that document Ex.B1 is a sham and nominal document is liable to be rejected - Essence of a benami is intention of party or parties concerned; and not un-often such intention is shrouded in a thick veil which cannot be easily pierced through - But such difficulties do not relieve person asserting transaction to be benami of any part of serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute of proof - Absence of any foundation in pleadings of gift being made during marz-ul-mant and in absence of any unequivocal admission from defendant in witness box, trial Court ought not to have either permitted plaintiff to raise the plea in question or accepted it, when the evidence on record hardly justified its acceptance - Court hold that appellant has failed to prove her case - No legal infirmity in judgment and decree of trial Court hence uphold same - Appeal is dismissed.
S.S. Sundar, J.
The above appeal has been filed by the plaintiff in the suit in O.S. No. 48 of 2007 on the file of the Principal District Court, Theni. The plaintiff filed a suit in O.S. No. 48 of 2007 for partition of her 3/20 share in all the suit properties and to grant a decree for permanent injunction and consequently restraining the defendants 2, 3, 5 and 6 from alienating the third item of suit property to the seventh defendant in the suit. The suit property consists of three items. The first item is a house property. The second item consists of two parts - described as 2nd Item (a) and 2nd Item (b). The 2nd Item (a) part consists of 14 items and (b) part consists four items. The third item is a house site measuring an extent of 2796 square feet.
2. The case of the plaintiff in the plaint are as follows:
2.1. The plaintiff is the daughter of first defendant and sister of defendants 2 and 3. The fourth defendant is the widow of plaintiff's yet another brother by name S. Ahmad Mohideen. Since the said brother is no more, his legal heirs namely his wife, 4th defendant and children-defendants 5 and 6 are impleaded in the suit. The 7th defendants is impleaded as he intended to purchase one item of suit property from other defendants. The father of plaintiff is S.V.M. Shaeed Saibu. The suit property originally belonged to S.V.M. Shaeed Saibu. The first item was gifted to him by his father one S. Velliah Rauthar on 11.08.1955. The second item of suit properties were purchased by plaintiff's father out of his own funds. Though the plaintiff's father died on 29.11.1968, the third item of suit property was purchased in the year 1972 by the savings of the plaintiff's father. The plaintiff's father and the first defendant have four children - the plaintiff, defendants 2 and 3 and the husband of fourth defendant.
2.2. After the demise of plaintiff's father in the year 1968, the plaintiff's husband was managing the entire properties upto 1978 and the third item of properties was purchased in the year 1972 by two documents in the name of first defendant utilising the savings of plaintiff's father.
2.3. The first defendant mother is not doing well for the past three years. On 14.12.2006 by coercion and undue influence, the defendants 2 to 6 obtained a gift deed from the first defendant in respect of the entire third item of suit properties in their favour. Though the plaintiff questioned the gift obtained by the defendants and demanded partition, the defendants refused to give the plaintiff's share. There was also a panchayat at the instance of the plaintiff, by the member of Jamath in Periyakulam Thenkarai mosque. However, it failed due to various reasons. During the Panchayat, the defendants admitted the factual position that the third item of property was purchased in the name of plaintiff's mother namely the first defendant out of the savings left by the plaintiff's father. As the daughter of first defendant, the plaintiff is entitled to 3/20 share in all the suit properties.
3. The defendants contested the suit mainly on two grounds. Though the plaintiff's claim was admitted in respect of some of the suit properties, the defendants specifically denied the plaintiff's contention that she is the daughter of first defendant. It is the specific case of the defendants that the plaintiff is the daughter of father of defendants 2 and 3 through his first wife. The defendants specifically raised a plea that the plaintiff executed a lease deed on 24.07.1972 after receiving a sum of Rs.15,000/- from the defendants and that the plaintiff is therefore, not entitled to any share in the properties for which she had executed a lease deed. It was the contention of the defendants that the suit third item was purchased by first defendant and that the suit is not maintainable during her life time. It was further contended that the first defendant executed a gift deed in respect of third item in favour of the defendants 2, 3, 4 and 5 without any c
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