HASAN KHANI RAWTHER Vs. MUHAMMED RAWTHER

JUDGEMENT

(1.) THESE two appeals are filed against a common judgment and decrees passed in OS Nos. 171/1992 and 169/1994 on the file of the Subordinate Judge's Court, Thodupuzha. RFA No. 75/2004 arises from the judgment and decree passed in OS No. 171/1992 and RFA No. 491/2006 arises from the judgment and decree passed in OS No. 169/1994 (Originally filed as OS No. 126/1992 before the Munsiff Court, Thodupuzha which was subsequently transferred to Sub Court, Thodupuzha and renumbered as OS No. 169/1994). RFA No. 491/2006 was originally filed as AS No. 24/2004 before the District Court, Thodupuzha and subsequently the same was withdrawn to this Court and renumbered as RFA No. 491/2006 to be heard along with RFA No. 75/2004. This appeal is filed by the plaintiff in OS No. 171/1992. Suit was for declaration of title and possession and for a decree of permanent prohibitory injunction. The following are the material averments in the plaint. Plaintiff and defendants 1 to 5 are the children of late Shri Meeralava Rawther of Vaniyapurayil. 6th defendant is the son of the half sister of the Meeralava Rawther. Partition was effected in the family of Meeralava Rawther in the year 1953. Plaint A schedule properties having an extent of 3 acres and 21 cents were allotted to Meeralava Rawther. Those properties were comprised in Sy. Nos. 133/1A and 133/1B of Thodupuzha Village. From that property one acre and 26 cents was given to the mother of the 6th defendant; 25 cents of property was sold by Meeralava Rawther in the year 1981 and the balance orally gifted to the plaintiff by his father during January, 1982. The plaintiff was in absolute possession and enjoyment of A and B schedule properties from the date of oral gift. 1st defendant was the eldest son of Meeralava Rawther. He married in the year 1960. Meeralava Rawther gave 25 cents of property to 1st defendant Mohammed Rawther as per document No. 1163/1965. That was in addition to one acre of property given to him by the father at the time of marriage. One acre and 25 cents of property was given to the 1st defendant as the share in the family properties due to him. After receipt of the same 1st defendant executed document No. 1163/1965 relinquishing his rights over the remaining properties of Meeralava Rawther. The properties conveyed to him under document No. 1163/1965 was accepted subject to such a condition. He sold away the property given to him by his father and was residing elsewhere. 2nd defendant is the second son of Meeralava Rawther. He married 26 years prior to the date of filing of the suit. In the year 1971 Meeralava Rawther gave enough money to 2nd defendant and taking that amount as his share in the family properties 2nd defendant had shifted his residence to Neyyasseri. He had executed document No. 866/1971 in favour of Meeralava Rawther relinquishing his rights over the remaining properties. 3rd defendant is the second daughter of Meeralava Rawther. She is married and settled at Vannappuram. In the year 1971 she was also given funds which was sufficient to cover the legitimate share due to her from the family properties. After receiving the same she executed a document No. 1097/1971 in favour of her father relinquishing her rights over the remaining properties. 4th defendant is the youngest daughter of Meeralava Rawther. She is also married and settled elsewhere. She was also given necessary funds which will be normally due to her as her share in the properties of Meeralava Rawther and on receipt of the amount she released her rights over the remaining properties under release deed No. 648/1981. For settling the share of the 4th defendant Meeralava Rawther sold 25 cents of property to one Raman of Vaniyapurayil. 5th defendant is the eldest among the daughters of Meeralava Rawther. She was given away in marriage 42 years prior to the filing of the suit. She was also given enough funds which was be equivalent to her share in properties of father. She had executed document No. 1095/1971 in favour of Meeralava Rawther releasing her right over the remaining properties. Meeralava Rawther had given sufficient properties and amounts to his three daughters in accordance with the custom then prevailing and also as per his capacity. The amounts referred to in the above stated documents were the amounts given to them in addition to such payments. According to the plaintiff, all other children of Meeralava Rawther were given their due share by Meeralava Rawther during his life time itself and no such property was given to him. Plaintiffs marriage took place in the year 1971 and even before that date his brothers and sisters were residing separately after receiving their share from the family properties. From 1971 onwards the plaintiff and parents alone were residing in the family house and that was with the intention to give A and B schedule properties exclusively to the plaintiff. Because of the decision to give these properties exclusively to the plaintiff father gave necessary shares due to other children before the end of 1971. Meeralava Rawther had sold away his properties at Udumbannur to pay the necessary amounts to defendants 2, 3 and 5 and sold 25 cents of property which he intended to give to the plaintiff to pay off the amounts to the 4th defendant. From 1971 onwards the parents are being looked after by the plaintiff alone. 1st defendant sold away the entire properties given to him by his father. Thereafter father with the permission of the plaintiff permitted 1st defendant to put up a structure on the north western corner of the entire property and from the year 1974 onwards he is residing there. According to the plaintiff the area of property will come to

(2.) 1/2 cents and that is scheduled as B schedule property. In the year 1981 father decided to gift the suit properties to the plaintiff and accordingly he called other children to the family house in January, 1982 and in their presence he openly declared that A and B schedule properties were given to the plaintiff as gift and from January, 1982 onwards plaintiff is in enjoyment of the property as the property gifted to him by his father. Father died in the year 1986. 6th defendant who was in enimical terms towards the plaintiff instigated the other children of Meeralava Rawther and at his instigation 2nd defendant had executed a sale deed in favour of 6th defendant claiming that he is a coowner of the suit property. That document was not supported by any consideration and on the strength of that document 6th defendant tried to trespass into the property. That document is not binding on the plaintiff. Hence the suit for declaration of title and possession of plaintiff over A and B schedule properties and also for a decree of permanent prohibitory injunction. 2. Defendants 1 and 2 did not file any written statement. 3rd defendant filed a written statement contending that Meeralava Rawther died intestate leaving the plaint schedule properties for inheritance by defendants 1 to 5. The plaintiff and defendants 1 to 5 are coowners in joint possession of the properties. 6th defendant purchased the share of defendants 2 and 5 under two sale deeds. 1st defendant died pending suit leaving his widow and children and they are also in joint possession of the properties along with the defendants. Late Meeralava Rawther and his legal heirs are hanafi muslims governed by hanafi law of inheritance. The averment that Meeralava Rawther orally gifted the properties to plaintiff in the month of January, 1982 was denied. He was entitled to get only 2/9 share in the properties. It was also contended that the allegations in paragraph

(3.) SUBSEQUENT to the death of 1st defendant his heirs were impleaded as additional defendants 7 to 13. They filed a written statement raising the following contentions. The averments that deceased Meeralava Rawther orally gifted the plaint schedule properties to the plaintiff in January, 1982 and he became the absolute owner were denied. Plaintiff never got independent possession over the plaint schedule properties and till the death of Meeralava Rawther he was in absolute possession. He died intestate and plaintiff and defendants 1 to 5 inherited the properties. They became the coowners in joint possession of the properties. Later the 6th defendant purchased the share of defendants 2 and 5 and since the date of such purchases the 6th defendant became a coowner and is in joint possession of the properties along with others. The 3rd defendant had filed a suit for partition and the same was pending. The averments in paragraphs 3 to 10 are false and incorrect and hence denied. During the life time of Meeralava Rawther his children had no share or interest in his properties. The properties were held by him as absolute owner. The alleged release deeds have no legal effect or legal consequences. They would not affect their future right to succeed to the property left by their father on his death. Even if some properties were given to defendants 1 to 5 by their father during his life time that do not disqualify them from inheriting the properties left undispossed at the time of his death. The allegation in paragraph 10 of the plaint that Meeralava Rawther intended to give the plaint schedule properties to the plaintiff was false and denied. He never had such an intention. His intention was to leave the properties for inheritance by all his heirs. The plaintiff was a Government employee. Therefore, Meeralava Rawther gave some properties to his other children during his life time. The averment that the 1st defendant was residing on the north western portion of the plaint schedule properties was denied. The 1st defendant was in possession of 40 cents of property and he was taking yield from that property from 1972 onwards. The averment that Meeralava Rawther gave consent to the 1st defendant with the permission of the plaintiff was denied. It was contended that the consent or permission of the plaintiff was not at all necessary. Apprehending eviction 1st defendant filed OS No. 90/1992 before the Munsiff Court, Thodupuzha and in that case there was an order of injunction restraining the plaintiff or his men from trespassing into the 40 cents of property in the possession of the 1st defendant. The averment that there was a declaration by the father regarding the oral gift was denied. Other legal heirs of Meeralava Rawther did not attorn to the alleged gift. Possession of the property was not given to the plaintiff. The affairs of Meeralava Rawther were looked after by all his children. The averment that defendants 1 to 5 were induced by the 6th defendant to trespass upon the plaint schedule properties was denied. The alleged trespass was also denied.