COMMON JUDGMENT

The petitioners/appellants herein who are the defendants in the suit have filed the Civil Revision Petition and the Second Appeal against the order of dismissal of C.M.P.No.30 of 2014 and the dismissal of A.S.No.106/2014 by the learned XIX Additional Judge, City Civil Court at Chennai, dated 25.01.2016.

2. The brief facts of the case are as follows:

The Second Appeal and the Civil Revision Petition arise from O.S.No.2371 of 2010, in which, a judgment was passed on 20.12.2013 by the learned XIII Assistant Judge, City Civil Court, Chennai. The said suit was filed for partition and separate possession of 7/16th undivided share in the suit schedule property and also for rendition of accounts. The suit was filed by a daughter with respect to a property of her father and the defendants, against whom, she claimed partition and separate possession, are her mother and another sister. She claims as aforesaid an undivided 7/16th share, her sister was said to be entitled to an undivided 7/16th share and the mother was said to be entitled to an undivided 2/16th share. Apart from the plaintiff and the sister/defendant, there were two other sisters for the plaintiff who have not been impleaded in the suit and the reason was that one of them had predeceased the father and the other had been settled with a property of the father and therefore, the plaintiff had deemed it sufficient to implead only the mother and the remaining sister as defendants. The primary contention of the defendants was that the father had executed an oral Hibba in respect of the suit property in favour of his wife. During the course of trial, Ex.B.3 and Ex.B.7 were marked which are xerox copies and original affidavit respectively of the father confirming the oral Hibba. There were also witnesses to the said affidavit. It was also contended that the Hibba had been acted upon and the proof thereof, Ex.B.4 and Ex.B.5 were relied upon by the defendants which are settlement deeds executed by the mother with respect to the same property, which is the subject matter of the suit and it was contended that such settlement had been executed only on the strength of the hibba. The suit was however, decreed with respect to partition and separate possession and dismissed with respect to rendition of accounts. First appeal was filed by the defendants in A.S.No.106 of 2014 and the same was dismissed by the learned XIX Additional Judge, City Civil Court, Chennai on 25.01.2016. During the pendency of the first appeal, the appellants/defendants filed C.M.P.No.30 of 2014 under Order 41, Rule 27 and Rule 28 of the Civil Procedure Code, seeking permission to adduce further oral evidence namely the witnesses to the affidavit Exs. B.3 and B.7. Both the said petition and the first appeal were dismissed by the first appellate court, necessitating the defendants to file a revision petition in C.R.P.No.2043 of 2018 questioning the dismissal of C.M.P.No. 30 of 2014 and S.A.No.442 of 2018 challenging the dismissal of A.S.No.106 of 2014.

3. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration.

(i) Whether an oral Hiba should be independently proved in the manner known to law or whether an affidavit confirming oral Hiba is sufficient and whether such affidavit should also be proved by examining the witnesses to the said affidavit.

(ii) Whether in a suit for partition under Mohammedan Law a predeceased daughter and a daughter on whom property had been settled are necessary parties to the suit.

4. For the sake of convenience, the parties are referred to as appellants and respondents.

5. Learned counsel for the appellants would submit that the suit property absolutely belonged to Mr.P.E.Abdul Ahad and he died leaving behind his wife Mrs.Najmunnissa, Fathima Bee, Basheerunissa Bi and Khairunnissa as his surviving legal heirs and as such, the respondent will be legally eligible only for 7/24th share in the suit property. But the lo