IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 23.08.2013

CORAM

THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN

A.S.No.500 of 1998

Sarbunnisha .. Appellant / Plaintiff

Vs.

1. Rasool Beevi

2. Usman Ali

3. Sirajunnissa

4. Abdul Wahab

5. Foujia Begum

6. Abuthalip

7. Sheik Alaudeen

8. Mohamed Ali .. Respondents / Defendants

Prayer:- Appeal Suit filed under Section 96 of Code of Civil Procedure against the Judgment and

Decree dated 21.08.1998 and made in O.S.No.110 of 1996 on the file of the Additional District

Judge, Pondicherry.

For appellant : Mr.T. Susindran

J U D G E M E N T

The plaintiff in O.S.No.110 of 1996 on the file of the Additional District Court, Pondicherry at

Karaikal, is the appellant. The plaintiff/ appellant filed the suit for partition. The suit was dismissed

and aggrieved by the same, the present appeal is filed.

2. The case of the plaintiff/ appellant as per the plaint is as follows: The suit property belonged to

one Mohamed Sulthan, the father of the plaintiff/ appellant. Mohamed Sulthan had two wives and

the plaintiff/ appellant is the daughter of Mohamed Sulthan through his 2nd wife. The 1st defendant

is the widow of Mohamed Sulthan and she is the 2nd wife and the 2nd defendant is the son of the 1st

defendant through Mohamed Sulthan. Mohamed Sulthan died on 7.2.1989 and during his life time

he executed two registered settlement deeds dated 2.7.1975 bequeathing the 'A' schedule properties

and 'B' schedule properties under those two settlement deeds. According to the plaintiff, the

settlement deeds are not valid as per Mahomedan Law and Mohamed Sulthan retained the right of

enjoyment of property settled under those settlement deeds with himself and he also sold certain

items of properties covered under the settlement deeds to the defendants 3 to 8 and therefore the

settlement deeds are not valid and the plaintiff is entitled to 7/24 share in the suit properties.

3. The 1st defendant and 2nd defendant filed the statement stating that the settlement deeds are

valid and under the settlement deeds the 1st defendant became the absolute owner of the properties

and neither the plaintiff nor the 2nd defendant is entitled to claim any share in those properties. It is

also stated that the 1st defendant was put in possession of the properties under the settlement deeds

and the rents and profits from the properties were received by Mohamed Sulthan only on behalf of

the 1st defendant and not on his own account and in all those sale deeds the 1st defendant also

joined her husband Mohamed Sulthan and that would also prove that the gift was valid and the 1st

defendant also accepted the gift and she was also put in possession of the properties and the

plaintiff therefore cannot claim any right over the same.

4. The 3rd defendant who purchased Item- I of 'B' schedule properties contended that the settlement

deeds in respect of 'B' schedule properties is valid and Mohamed Sulthan and his wife the 1st

defendant were in possession of the properties and they also handed over possession and she has

also put up construction in Item-I of 'B' schedule properties and therefore the suit is liable to be

dismissed insofar as the Item-I of 'B' schedule properties is concerned.

5. On the basis of the above pleadings the trial Court framed the following issues:

(1)Whether the Court fee paid for the suit property

is not correct ?

(2)Whether two settlement deeds dated 2.7.1975 executed by Mohamed Sulthan is not valid and

acted upon?

(3)Whether the plaintiff is entitled to partition of the property. If so what would be her share ?

(4)To what other relief the parties are entitled to ?

6. The plaintiff examined as PW1 and marked five exhibits on her side and on the side of defendants

no witnesses were examined and no documents were marked.

7. The trial Court answered Issue No.1 holding that the plaintiff paid advolorum Court fee under

Section 37(1) of the Pondicherry Court Fees and Suits Valuation Act as per the earlier decision

rendered in that su