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2024 Supreme(Online)(MAD) 37642
HIGH COURT OF MADRAS
P.VELMURUGAN, K.K.RAMAKRISHNAN, JJ
H.Abdul Gani (died) – Appellant
Versus
Venmathi Aachi – Respondent
A.S(MD)No.111 of 2013|M.P.(MD)No.1 of 2013
For the Appellants/Petitioners: Mr.V.George Raja
For the Respondents: Mr.T.Lajapathi Roy, Senior Counsel, for Mr.S.Rajasekar
The court confirmed the validity of an oral Hiba under Mahomedan Law, requiring a declaration, acceptance, and delivery of possession, and upheld the subsequent sale deed as binding.
Headnote:(A) Civil Procedure Code - Section 96 - Partition Suit - The appeal arises from the dismissal of a partition suit where the trial court found the oral Hiba (gift) valid under Mahomedan Law, allowing the defendants to retain possession of the property. The court confirmed the validity of a sale deed executed in favor of a third party. (Paras 2, 16, 24, 25)
(B) Mahomedan Law - Oral Hiba - The court affirmed that for a gift to be valid, there must be a declaration of the gift, acceptance by the donee, and delivery of possession. (Paras 22, 23)
(C) Legal Heirs - The court ruled that the plaintiff, as a legal heir, lost his claim due to the prior valid gift made by his mother to the other heirs. (Paras 25, 26)
Facts of the case:
The suit property belonged to the plaintiff's maternal grandfather and was subject to a partition suit initiated by the plaintiff's mother. The mother had made an oral gift to two heirs, which was disputed by the plaintiff.
Findings of Court:
The court upheld the trial court's dismissal of the plaintiff's suit, confirming the validity of the oral Hiba and subsequent sale deed.
Issues: The main issues included the validity of the oral Hiba and the binding nature of the sale deed on the plaintiff's share.
Ratio Decidendi: The court concluded that the oral Hiba was valid as it met the necessary legal conditions, and the sale deed executed thereafter was also valid.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. factual background of property ownership and legal claims. (Para 1 , 2) |
| 2. arguments regarding the validity of oral hiba and property claims. (Para 3 , 8 , 9 , 10 , 11 , 12 , 13) |
| 3. court's analysis on the proof of oral hiba and property transactions. (Para 5 , 6 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23) |
| 4. determination of validity of gifts and property rights under mahomedan law. (Para 24 , 25) |
| 5. final dismissal of the appeal confirming the trial court's judgment. (Para 26) |
JUDGMENT
(Judgment of the Court was delivered by P.VELMURUGAN, J.)
This Appeal Suit is filed against the decree and judgment dated 28.03.2013 made in O.S.No.155 of 2010 on the file of II Additional District and Sessions Court, Tiruchirappalli.
2.The brief case of the plaintiff reads as follows:-
(i)The suit property originally belonged to the father of the plaintiff's mother, namely, B.Kader Moideen, who died in the month of May, 1961 and his wife Ameer Bi died on 23.09.1963 and his son, namely, Jainulabudeen died on 16.01.1991. After their death, the suit property devolved upon his daughter Jamila Bi / mother of the plaintiff and his son's wife Salima Bibi, who is arrayed as 5th defendant in this suit in 2/3:1/3 ratio according to Islamic Law of Succession. The mother of the plaintiff Jamila Bi filed a suit in O.S.No.778 of 1991 for partition against the 5th defendant on the file of the learned II Additional Sub Judge, Tiruchirappalli. During the pendency of the suit, the 5th defendant sold and alienated the entire suit property, including 2/3rd share of the said Jamila Bi to the 1st defendant, by way of sale deed dated 12.02.1992. Therefore, the mother of the plaintiff impleaded the 1st defendant in the suit in O.S.No.778 of 1991 as the 2nd defendant.
(ii)The trial Court rejected the sale deed dated 12.02.1992 as a sham and ignominious document and decreed the suit in O.S.No.778 of 1991 in favour of the mother of the plaintiff. Aggrieved by the same, the 1st defendant filed an appeal in A.S.No.221 of 1997 and the same was dismissed by the learned Principal District Judge, Tiruchirappalli. Thereafter, the mother of the plaintiff applied for final decree in I.A.No.103 of 2001 on 23.11.1999 and the suit was transferred to the learned Principal District Munsif, Tiruchirappalli on 29.05.2006 to draw up final decree. Therefore, the original suit in O.S.No.778 of 1991 was renumbered as O.S.No.1905 of 2006 on the file of the learned Principal District Munsif, Tiruchirappalli and the same is pending for final decree.
(iii)In the meantime, the mother of the plaintiff Jamila Bi died on 10.11.2002 and the 5th defendant Salima Bibi also died without leaving any legal heirs behind her to inherit her 1/3rd share of the suit property. Subsequent to the death of the mother of the plaintiff, her 2/3rd share devolves on her legal heirs and 1/3rd share of Salima Bibi is in reversion to them. They inherit their shares in definite fraction and they are all entitled to claim for partition as co-owners and separate possession of their respective shares.
(iv)According to the Islamic Law, a right of preemption is created and any sale transaction could be effected only between the co-sharers of the suit property and not with any strangers. Therefore, the suit property is divisible only among the legal heirs of Jamila Bi and Salima Bibi. Therefore, since the plaintiff is the eldest son to his mother Jamila Bi, he filed an impleading petition and other her two legal heirs were also impleaded. The 6th defendant Shamina Begum impleaded herself deceitfully as the 3rd respondent in the said final decree proceedings, claiming 1/3rd share of the 5th defendant Salima Bibi.
(v)The 1st defendant colluded with other two legal heirs of Jamila Bi and the 4th defendant and by way of fabric and false hiba statement and affidavits, resold the total extension of the suit property to a stranger, namely, Madhina Begum / 4th defendant by virtue of a registered sale deed on 25.02.2010
