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2017 Supreme(Mad) 3857
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. Sathish Kumar, J.
Shahida Begum – Appellant
Vs.
Ramiza Bi – Respondent
C.S. No. 228 of 2013
Decided On : 16-03-2017
For the Appellant :Mr. S. Subramanian, Advocate
For the Respondent:Mr. S. Parthasarathy Senior Counsel and A. Govindasamy, Advocate
Headnote:
Mohammadden Law of Succession – Indian Succession Act – Section 70 – Decree for partition – Separate possession – Suit is filed for preliminary decree for partition and separate possession of the plaintiffs 7/72 share in the suit properties – Held, There is no dispute with regard to the proposition laid down by the Honble Supreme Court. – The Honble Supreme Court, taking into consideration the age of the executant, who was aged more than 100 years at the relevant time, and the fact that he was paralytic and his mental and physical conditions were not in order and also the fact that there was no evidence to show that he has put thump impression, has held that the document is unconscionable. – Since, in this case, as stated above, there is no evidence to show that at the time of executing the document, the settlor was not in good health and he lost his mental capacity. – Therefore, the said judgment is also not applicable to the facts of the present case. – Court is of the view that the plaintiff has miserably failed to establish the plea of undue influence. – In Ex.D4, Settlement Deed, item 1 of the suit schedule property stood in favour of defendants 2 to 5. – Insofar as Item 2 of the suit property is concerned, the settlor has settled ? share in the suit properties and he retained remaining ? share. – Since Settlement Deed is found to be true, genuine and valid in law, as discussed above, the plaintiff, at the most, is entitled to 4/16 share retained by her father in respect of item 2 of the suit schedule property. – The plaintiff, being daughter of the settlor, as per Muslim law, is entitled to 7/72 share in the aforesaid ? share retained by her father under Ex.D4. – Preliminary decree is passed dividing item 2 of suit properties and to allot 7/72 share, out of ? share retained by her father under Ex.D4. – Suit Dismissed.
N. Sathish Kumar, J.
1. The suit is filed for preliminary decree for partition and separate possession of the plaintiffs 7/72 share in the suit properties.
2. The brief facts of the case of the plaintiff are as follows:
Originally, the suit properties were purchased by Late M.A. Sheriff under registered Sale Deeds dated 06.2.1974 and 18.8.1978 and he died intestate leaving the plaintiff and the defendants as his legal heirs. According to the plaintiff, since she is a co-owner of the suit properties along with the defendants 1 to 5, as per Mohammadden Law of Succession, she is entitled to 7/72 share in the suit properties. Similarly, the 1st defendant is entitled to 9/72 share in the suit properties and the defendants 2 to 5 are entitled to 56/72 share in the suit properties. It is stated that the defendants 2 to 5 were keeping M.A. Sheriff with them in their residence in Maharashtra. The deceased was not keeping good health both physically and mentally because of his old age and several other ailments. Taking advantage of such a position of M.A. Sheriff, the defendants 2 to 5 were interfering in all the decisions of M.A. Sheriff. Thus, the defendants 2 to 5 were in a fiduciary capacity with regard to M.A. Sheriff. Since the defendants have unduly influenced the mind of M.A. Sheriff and brought about a Deed of family Settlement dated 18.5.2005, the same is void and not binding on the plaintiff. Hence, the plaintiff filed the present suit.
3. Brief contentions of the written statement filed by the defendant:
Denying the entire allegations in the plaint, it is the contention of the defendants that the suit filed by the plaintiff is not maintainable either in law or in facts and is liable to be dismissed. According to the defendants, the deceased M.A. Sheriff, was the absolute owner of the suit properties. The deceased M.A. Sheriff, executed a Will dated 31.8.1988, bequeathing the suit properties to defendants 2 to 5, while he was in sound state of mind. In order to avoid further litigation, the deceased also executed a Settlement Deed dated 18.5.2005 settling the properties in favour of his wife and four sons, the defendants 2 to 5 herein. Subsequently, the defendant No.l executed Settlement Deed dated 03.9.2013, in favour of defendants 2 to 5 in respect of her ? share of her property. Since the deceased M.A. Sheriff executed Settlement Deed in respect of his self acquired properties in favour of the defendants, the question of succession does not arise and the plaintiff is not entitled to any share in the suit property as prayed, excepting her share in ? share of item II of the suit properties. It is stated that the deceased M.A. Sheriff was maintaining good health during his life time and he had to face health problems during last 7 months prior to his demise. Hence, the defendants prayed for dismissal of the suit.
4. On the above pleadings, the following issues were framed by this Court, vide order dated 15.12.2014:
1. Whether the plaintiff is entitled to 7/72 share in the suit properties?
2. Whether the will dated 31.08.1988 is valid and binding on the plaintiff?
3.Whether Settlement Deed date 18.05.2005 in Doc. No.1854 of 2005 in favour of the defendants is valid and binding on the plaintiff?
4.Whether Settlement Deed dated 03.09.2013 executed by the first defendant in favour of the defendants 2 to 5 is hit by doctrine of lis pendens?
5. Whether the plaintiff is entitled to the relief of permanent injunction?
6.To what other reliefs the parties are entitled to?
5. On the side of the plaintiff, the plaintiff herself was examined as P.W.1 and Exs.P.1 to P.4 were marked. On the side of the defendants, D.W.1 was examined and Exs.Dl to D7 were marked. The details of the document are hereunder:
Exhibits produced on the side of the plaintiff:
S.No.
Exhibits
Description of Documents
Date
1
