R. Mala, J.@mdashThis Second Appeal has been preferred against the Judgment and decree made in A.S. No. 52 of 1998, dated 19.9.2008, on the file of the Principal District Judge, Dindigul, confirming the decree and judgment made in O.S. No. 89 of 1991, dated 19.1.1998, on the file of the Subordinate Judge, Dindigul.
2. The gist and essence of the averments in the plaint is as follows:
The suit properties and other properties originally belong to Late. Syed Mohammed Rowther and his brother Late. Mohammed Ebrahim. While so, Mohammed Ebrahim died intestate when he was a bachelor, leaving behind his mother Ummusalma Beevi, his brother Syed Mohammed Rowther and sister the first defendant herein. Tmt. Hajira Beevi on 09.04.1954. The plaintiff''s father Syed Mohammed Rowther died intestate on 14.09.1954 leaving behind his wife Mimoon Beevi, the plaintiff herein and his mother Ummusalma Beevi as his heir. So, they are succeeding the property and enjoying the same. Since the plaintiff is a minor at the time of death of the plaintiff''s father, his mother and grand mother are being female genders, they sought for the help of the first defendant, who is looking after the suit properties. Since the first defendant has acted against the interest of the plaintiff, his mother and grand-mother, they constrained to file a suit in O.S. No. 1331 of 1968, for declaration of title and for recovery of possession. It was ended in a compromise on 09.06.1971. Ummasalma Beevi died in the year 1974, leaving behind the plaintiff and the first defendant as her heirs. The plaintiff and his mother executed a sale deed in respect of their share in S.No. 115/1, 5 acres 50 cents out of 7 acres and 33 cents. The remaining property has been in possession and enjoyment of the same. The first defendant has executed a sale deed in respect of his close relation, the second defendant herein in respect of the suit property in S.No. 149/1, 152/2 and 151/5 and more than the share what he is entitled to and with the help of the revenue authorities he obtained a patta in his name. So, he is claiming his share in the property through his Advocate Notice, dated 08.01.1991 and that has been not received by the first defendant. But the second defendant has received the notice, but, not sent any reply. So the plaintiff is entitled to 163/216 share in the suit properties. He prayed for a preliminary decree.
3. The gist and essence of the written statement filed by the first defendant is as follows:
The suit in O.S. No. 1331 of 1968 ended in a compromise on 09.06.1971 as per the compromise decree, the plaintiff is entitled to 1/4th share, his mother is entitled to 1/4 share, the first defendant is entitled to 1/4 share, and her mother is entitled to 1/4 share, and that Ummusalma Beevi has executed a will, dated 10.12.1973 in respect of her share in the property in favour of first defendant. So he is entitled to half share in the suit property. she died after six months. After the death of her mother, the defendant is entitled to half share. The Will is true and genuine. It was executed in the presence of testator in a sound and disposable state of mind. The defendant has executed the sale deed in favour of the second defendant on 26.10.1979 in respect of item No. 1 and 2 of the suit properties. The share claim by the plaintiff is not correct. Hence, he has no objection to grant a preliminary decree for the half share in the third item of the suit properties.
4. The gist and essence of the written statement filed by the second defendant is as follows:
S.No. 149/1 is 2 acre 10 cents, S.No. 152/2, 41 cents, total 2 acre and 59 cents, eastern portion has been owned by Mohammed Hussain Rowther. He executed a gift deed in favour of the second defendant. He is in possession and enjoyment of the same. As per the decree passed in O.S. No. 1331 of 1968, the plaintiff and his mother each entitled to 1/4 share and the first defendant and her mother each entitled to 1/4 share. The first defendant''s mother executed a settlement deed, dated 10.12.1973, The said settlement deed is duly executed, validly attested, accepted and acted upon and she is in possession and enjoyment of the half share. The second defendant purchased the same on 26.10.1976. The plaintiff, his mother and the second defendant orally partitioned the suit properties. The second defendant, after he purchased the property, the property has been subdivided and patta has been given and the patta No. is 156 and he is in possession and enjoyment of the same. In S.No. 151/5, the second defendant is entitled to 3/4 share and the plaintiff is entitled to only 1/4 share. The share has been not correctly mentioned. Hence, he prayed for the dismissal of the suit.
5. The learned Subordinate Judge, Dindigul, after considering the averments both in the plaint and written statements, framed five issues and after considering the oral evidence of P.W. 1, D.W. 1 to D.W. 3 and Ex.A1 to Ex.A3, and Ex.B1 to Ex.B11, granted a preliminary decree for partition in respect of 163/216 share in the suit properties. Against that, the second defendant has preferred an appeal in A.S. No. 52 of 1998, on the file of the Principal District Judge, Dindigul. Considering the arguments of both sides, four points for consideration has been framed and confirmed the decree and judgment of the trial court. Aggrieved by the same, the present second appeal has been preferred by the second defendant
6. This Court after considering the entire material records, admitted the second appeal on the following substantial questions of law:
1. Whether the courts below have erred in granting a 163/216 share in the suit properties to the plaintiff ?
2. Whether the Courts below ought to have held that the sister of the plaintiff, the first defendant had a 1/2 share in the suit properties which she sold to the second defendant under Ex.B2, dated 26.10.1979?
3. Whether the Courts below have not followed the principles of mohammedan law in rejecting the Settlement Deed Ex.B10 executed in favour of the first defendant by her mother?
4. Whether the learned District Judge has erred in referring to Section 114 of the Evidence Act in rejecting the second defendant''s case?
5. Whether in view of the clear admission of the plaintiff as P.W.1 the Courts below ought to have held that the Electric Motor and Pumpset in the suit well exclusively belonged to the second defendant? and
6. Whether the Courts below ought to have held that the Second defendant is a cultivating tenant of the suit properties?
7. The respondent as a plaintiff filed a suit for partition of his 163/216 share in the suit properties stating that it is owned by his father Syed Mohammed Rowther and his brother Mohammed Ebrahim, Mohammed Ebrahim died when he was a bachelor. The suit properties have been succeeded by his father, grand-mother and aunt/first defendant. His father also died and grand-mother died subsequently and hence he is entitled to 163/216 share in the suit properties. Since the first defendant has executed a sale deed in favour of the second defendant for more than her share, hence, he filed the suit.
8. The respondent/first defendant raised a contention that a compromise decree has been passed in O.S. No. 1331 of 1968 and in that plaintiff, his mother, first defendant and her mother each entitled to 1/4 share in the suit properties. Her mother executed the will in respect of her 1/4 share in the suit property. So, she is entitled to 1/2 share in the suit properties. Hence he prayed for the dismissal of the suit. The trial court after considering both oral and documentary evidence granted a preliminary decree of partition of 163/216 share. Against that an appeal has been preferred and the first appellate court has confirmed the Judgment and decree of the trial court. Aggrieved by same, the present Second Appeal has been filed.
9. The learned Counsel for the appellant would contend that the suit properties owned by the Mohammed Syed Rowther and Mohammed Ebrahim, Mohammed Ebrahim died without issue. Even though the plaintiff claiming 163/216 share, in the Panchayat, the plaintiff is allotted half share and first defendant is allotted half share. The first defendant sold the half share to the second defendant. But the trial court not accepted the oral partition pleaded even though in para 6 of the plaint, the plaintiff has pleaded oral partition. He further contended that from that date, appellant is in possession and enjoyment of the same, hence he has prescribed title by adverse possession. P.W. 1 has clearly admitted in his evidence that electric motor and pumpset exclusively belong to the second defendant. Hence the trial court and the first appellate court has committed an error in decreeing the suit in respect of 163/216 share and the respondent is entitled to only 1/2 share in the suit properties and he prayed for allowing of the appeal.
10. The learned Counsel for the respondent would contend that death certificate has been filed as Ex.A1 and Ex.A2. Both brothers are entitled to each half share in the above said suit properties and he further contended that a compromise decree has been passed as per Ex.A4, the suit properties has not been divided and he further contended that the plaintiff''s mother executed a settlement deed as per Ex.A6, his grand mother died intestate, so, he is entitled to 163/216 share. He would further submit that the first appellate court has considered all the aspects, come to a correct conclusion. There is no infirmity or irregularity in the judgment and decree passed by the trial court and the first appellate court and hence he prayed for the dismissal of this appeal.
11. Now, the question that has to be decided is whether the respondent is entitled to 163/216 share in the suit properties is correct?.
12. Substantial question No. 1 to 3:
It is pertinent to note that originally the suit property is owned by Syed Mohammed Rowther and Mohammed Ebrahim. Mohammed Ebrahim died intestate on 09.04.1954 leaving behind his mother Ummusalma Beevi, brother Syed Mohammed Rowther and his sister Hajira beevi that has been evidenced by Ex.A1. Syed Mohammed Rowther died on 14.09.1954 that has been evidenced by Ex.A2, genealogy which has been marked as Ex.B3. On the death of Mohammed Ebrahim, Ummusalma Beevi is entitled to 1/6 share in the entire property, his brother and sister is coming under the residuary clause. The brother is entitled to two share and sister is entitled to one share. So Ummusalma Beevi is entitled to 18/216 share, brother Syed Mohammed is entitled to 60/216 share and sister, the first defendant herein is entitled to 30/216 share.
13. Syed mohammed died on 14.09.1954 leaving behind his wife Mymoon Beevi, mother Ummusalma Beevi and son Sheik Mohammed, the plaintiff/first respondent herein as his legal heirs. His wife is entitled to 21/26 share, mother Ummusalma Beevi is entitled to 28/216 share and the remaining to his son, the plaintiff herein as a residuary is entitled to 119/216 share.
14. They filed a suit in O.S. No. 1331 of 1968 on the file of the District Munsif Court, Dindigul for declaration of title and for recovery of possession and that has been ended in compromise is evidenced by Ex.A4. The decree portion in O.S. No. 1331 of 1968 reads as follows:
1. that the plaintiffs be and hereby are declared entitled to items 1 and 4 mentioned hereunder.
2. that the plaintiffs be and hereby declared entitled to 9 1/2 cents out of 2-10 acres in S.No. 149/1 bounded on the east by the land of Mohammed Sheriff Rowther on the west and north the land to be allotted to the first defendant and on the south of the land of the plaintiff.
3. that the plaintiffs be and hereby are further declared entitled to 1/6th share in the well in S.No. 151/5 in addition to his rights of 2/6th share.
4. that the plaintiffs are at liberty to bale ad take water through the Kamalai vari and Vaikal situate on the eastern side of the well.
5. that the plaintiffs are further entitled to the eastern 19 1/2 cents in S.No. 151/5 in item No. 3.
6. It is further ordered and decreed:
1. that the plaintiffs and defendants do bear their respective costs towards this suit.
7. the mortgage deed dated 12.8.1968 will not bind the properties allotted to the plaintiff in this decree and the properties allotted to the first defendant can be proceeded with for the above debt.
So, the property has not been divided in O.S.No 1331 of 1968.
15. Even though the appellant/first defendant has raised a defence that the suit properties has been divided into four equal shares and each has been allotted 1/4 share. A perusal of Ex.A4 does not state so. In the above said circumstances, without division, the property has been sold by the first defendant/second respondent in favour of the appellant on 26.10.1979 will not confer any right. Since the first defendant is party to Ex.B2,but, She has not get into the box and deposed about the partition. So there is no partition effected. In the above circumstances, the second respondent/first defendant has no right to be transferred half share to the appellant herein under Ex.B2.
16. It is pertinent to note that the case of the first defendant/second respondent is that his mother has executed a will and bequeathed her 1/4 share in the suit properties under Ex.A10.
17. But while perusing Ex.A10, it is only a will. It is not a registered will. It is not a settlement deed. As per mohammedan law without the consent of the other sharers, no one is entitled to execute the will. Hence, even though the attestor of the will was examined, no right to be devolved upon the first defendant herein. That argument has been considered by the trial court and the first appellate court. Moreover, in the written statement filed by the first defendant, she herself has stated that her mother has executed a will. But the second defendant/appellant herein has stated in para 6 of the Written Statement that she executed a settlement deed and it was executed and handed over. So, the defence taken by the first defendant is entirely contra to the defense taken by the second defendant/appellant herein. The appellant stepped into the shoes of the second respondent herein, the second respondent is a competent person to speak about Ex.A10, she was not examined before the trial court.
18. Provision 117 of the mohammedan law is as follows:
A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator (1) Any single heir may consent so as to bind his own share. A bequest to an heir, either in whole or in part, is invalid, unless consented toby other heir or heirs and whatsoever consents, the bequest is valid to that extent only and binds other share. Neither inaction nor silence can be the basis of implied consent.
19. Ex.B10 is a will executed by the mother of the second respondent. But as per the provision as already stated without the consent of the other sharer, the will is not valid under law. So Ex.B10 is not a settlement. So the trial court and the first appellate court are correct in rejecting Ex.B10. As per Ex.A2, compromise decree passed and decree of title has been granted, but no sharer is mentioned and the properties have not been divided. In the above circumstances, Ex.B10 is not a valid document. So the second respondent has no right to sell the half share in the suit properties to the second defendant under Ex.B2. So Ex.B2 is not binding this first respondent/plaintiff in the trial court. The Substantial question No. 1 to 3 are answered accordingly
20. Substantial question No. 4:
There was a substantial question of law that before filing the suit the respondent/plaintiff herein has issued a notice under Ex.A11. But the first defendant/second respondent has refused to receive the same. But the second appellant has received the same as per Ex.A13. In the above circumstances, the first appellate court has come to the conclusion that having known about the contents of the notice, he refused to receive the same. Hence, adverse inference can be drawn as per Section 114 of the Indian Evidence Act. It is also pertinent to note that even though she has filed his written statement, she has failed to get into the box. In the above circumstances, the first appellate court has considered the same, so the first appellate court has not committed any error while considering the case. Substantial question No. 4 is answered accordingly.
21. Substantial question 5:
While considering the evidence of P.W.1, he has deposed that he has paid amount of Rs. 3000/- to put up electrical motor and pumpset in the suit well. So the trial court and the first appellate court has considered the oral evidence of P.W.1 and D.W.1 and come to the correct conclusion that the electric motor and pumpset are belonging to both the appellant and first respondent herein. The substantial question No. 5 is answered accordingly.
22. Substantial question No. 6:
Admittedly, the suit properties originally owned by Syed Mohammed Rowther and Mohammed Ebrahim. Mohammed Ebrahim died intestate leaving behind his mother, brother and sister, the first defendant herein. On his death, half share of Mohammed Ebrahim goes to his mother Ummusalma beevi 3/18 share i.e., 18/216, his brother is entitled to 10/18 ie., 60/216 share and his sister Hajira Beevi is entitled to 5/18 i.e., 30/216 share (since brother will get double the share of sister, since they are residuaries.
23. Syed Mohammed father of the plaintiff/first respondent died on 14.09.1954 and that is evidence by Ex.A2 leaving behind his wife Mymoon Beevi, mother Ummusalma Beevi and his son, the plaintiff/first respondent herein. So his properties have been devolved to his wife 1/8 � 168/216 = 21/216 share, mother Ummusalma Beevi is entitled to 1/6 � 168/216 = 28/216 share and the remaining to son plaintiff as residuary 119/216 share. Ummusalma Beevi died in the year 1974. This Court has rejected Ex.B10 will and the testator is not entitled to execute the will without the consent of other heirs. So as per Ex.A10,the first defendant/second respondent is not entitled to any property and Ummusalma Beevi''s share has been devolved upon her daughter/first defendant/second respondent and plaintiff/first respondent The first respondent will get 23/216 share. The plaintiff''s mother executed a will Ex.A6. So he is entitled to totally 163/216 share on succession, from the date of death of his grand-mother. Hence the plaintiff/first respondent is entitled to 163/216 share. Hence the trial court and the first appellate court has considered the same in proper prospective and come to a correct conclusion. Hence the plaintiff/respondent is entitled to a preliminary decree to the share of 163/216 share in the suit property.
24. For the foregoing reasons, I am of the opinion that the judgment and decree of the trial court and the first appellate court is liable to be confirmed and Second appeal is liable to be dismissed.
25. In fine, the Second Appeal is dismissed and the decree and judgment passed by the trial court and the first appellate court are hereby confirmed. No costs.
