IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 31.03.2022

Delivered on : 20.04.2022

CORAM

THE HONOURABLE MR. JUSTICE S.S.SUNDAR

S.A.No.230/2017 & CMP.No.5520/2017

Sukriya Mustafa

...Appellant/Appellant/Plaintiff

Versus

1.Hajira Kabir

2.Sulaiman Kabir

3.Shabnam Jameel

...Respondents/Respondents/Defendants

Prayer:-

Second Appeal filed under Section 100 of CPC

against the judgment and decree in AS.No.25/2015 on the file of

the learned XVIII Additional Judge, City Civil Court, Chennai

dated 11.08.2016 in confirming the judgment and decree in

OS.No.12890/2009 on the file of the learned II Assistant Judge,

City Civil Court, Chennai dated 25.09.2014.

For Appellant

:Mrs.V.Srimathi for

Mr.V.Raghavachari

For Respondents :Mr.T.Murugamanickam

Senior Counsel for

Mr.D.Abdulla

JUDGMENT

(1)

The appellant is the plaintiff in the suit in

OS.No.12890/2009 on the file of the learned II Assistant

Judge, City Civil Court, Chennai.

(2)

The

parties

are

close

relatives

and

the

appellant/plaintiff

is

the

daughter

of

late

Thiru.S.M.Sulaiman. The 1^st respondent in the Second

Appeal is the wife of one Thiru. Humayun Kabir, who is the

brother of the plaintiff. Respondents 2 and 3 are the son

and daughter of the 1^st respondent who are born through the

brother of the plaintiff, Humayun Kabir.

(3)

The appellant filed the suit in OS.No.12890/2009 for

partition of the plaintiff's / appellant's 1/6^th share in

https://hcservices.ecourts.gov.in/hcservices/

the suit properties and for consequential injunction

restraining the defendants from in any manner alienating

or encumbering the suit property.

(4)

The suit property is described as a house and building in

Plot No.1200 in 'Z' Block, 6^th Avenue, 14^th Street, Anna

Nagar, comprised in S.No.127 in Villivakkam Village. The

extent of the plot is 5475 sq.ft.

(5)

The case of the plaintiff in the plaint is that the suit

property originally belonged to her father late

Sri.S.M.Sulaiman, who had purchased the same under the

Registered Sale Deed vide Document No.366/1985. It is

admitted by the plaintiff that her father had settled the

suit property in favour of her brother by name S.Humayun

Kabir under a registered Settlement Deed dated 22.01.1992.

It is also admitted by the plaintiff in the plaint that

her brother Humayun Kabir was physically handicapped and

hence, her father had settled the property in favour of

her brother. However, it is stated that the settlement

was on condition that Humayun Kabir should take care of

his mother, the 4^th defendant in the suit. It is admitted

by both parties that the brother of the plaintiff, Humayun

Kabir died on 28.01.2001, leaving behind defendants 1 to 4

as his legal heirs. It is the further case of the

plaintiff that the 4^th defendant, namely, the mother of the

plaintiff, was entitled to 1/6^th share in the suit property

as a heir of plaintiff's brother and that the 4^th defendant

had executed a Settlement Deed in favour of the plaintiff

on 23.03.2007 in respect of her 1/6^th undivided share.

Stating that the defendants are trying to alienate the

suit properties suppressing the right of the plaintiff

under the Settlement Deed executed by the 4^th defendant,

the

suit

was

filed

for

partition

of

appellant's/plaintiff's 1/6^th share in the suit property

and for consequential reliefs.

(6)

The suit was contested by the defendants by filing a

written statement, specifically denying the Settlement

Deed stated to have been executed by the mother/4^th

defendant in favour of the plaintiff. It is the case of

the respondents that the suit property was settled in

favour of Humayun Kabir by his father absolutely and the

gift was unconditional. The case of the plaintiff that a

specific condition was made or expected at the time of

settlement, was specifically denied in the written