MRS. MEHRUNNISSA BEE Vs. MAHBOOB BI (DIED),

JUDGEMENT

(1.) This appeal suit is directed against the Judgment and Decree dated 1.3.1979 rendered in O.S.No.1689 of 1973 by the First Assistant Judge, City Civil Court, Madras thereby passing a preliminary decree for partition and separate possession of the plaintiff's half share in the Items 1 to 3 of the plaint schedule properties by metes and bounds and for rendition of accounts by defendants 1 to 5 from the said properties and further declaring that the settlement deed dated 27.11.1970 is not a valid document and is not binding on the plaintiff in any event.

(2.) The suit was filed by the deceased first respondent in the above appeal suit on averments such as that she is the daughter of one Abdulla Sheriff, through his first wife Choti Bi @ Rahima Bi, for whom she was the only issue and as such she is entitled to a half share in the estate of her father according to Muhamedan law; that the other half share is inherited by defendants 6 to 8; that the defendants 1 to 5 not being the heirs of her father late Abdulla Sheriff, since they are the children of his second wife's sister named Mahboob Bi @ Choti Bi; that late Abdulla Sheriff passed away on 20.6.1971 at Madras leaving behind three properties viz. the House and ground bearing No.4, Kathbada Second lane, Old Washermenpet, Madras -21 (2) House and Ground bearing No.5, Kathivakkam High Road, Madras -21 and (3) the Premises in No.4, New Pensioner's lane, Madras -21; that the first two properties, the deceased Abdulla Sheriff held in his own name and the last one in the name of his second wife Khatoon Bi, benami for him; that he was in exclusive possession and enjoyment of all the three properties collecting rents there from and paying taxes by himself; that these properties are Items 1 to 3 of the plaint schedule property; that her deceased father also left behind moveable properties in the shape of Dekshas Almirahs and cots etc. for that the defendants 1 to 5 have secreted the same and that the plaintiff is not claiming any share in the said assets.

(3.) The further averments of the plaintiff are that the second wife of her father Abdullah Sheriff viz. Bannied Bee @ Kartoon Bi lived with him till her death on 7.11.1970 and that she died issueless; that the defendants 1 to 5 are the children of her sister Choti Bi @ Mehaboob Bi, started to exercise undue influence and control over the late Abdullah Sheriff, thereby preventing the plaintiff, his daughter, from asserting any right. The other heirs viz. defendants 6 to 8 were residing far away; that so long as the second wife Kartoon Bi was alive, she was kind and affectionate towards the plaintiff and did not allow the defendants 1 to 5 to control over her husband. But, immediately after her death, defendants 1 to 5 indulged in acts of fraud to grab the properties left behind by the deceased Abdullah Sheriff; that when Abdullah Sheriff was suffering from Paralysis and bed -ridden for a long time prior to his death and the at the time of Marzul - Mouth and not having a sound disposing state of mind, the defendants 1 to 5 having entered into a conspiracy about the settlement deed on 27.11.1970 purporting to show that the deceased Abdullah Sheriff conveyed the suit properties to these defendants 1 to 5 as his beneficiaries ignoring the plaintiff and defendants 6 to 8 which is nothing but a piece of fraud and not binding on the plaintiff; that the said settlement deed is not valid in law and the same cannot confer any interest in favour of defendants 1 to 5; that the deceased Abdullah Sheriff did not have any intention whatsoever to convey the plaint schedule properties in favour of defendants 1 to 5 ignoring the plaintiff nor did he deliver possession of the suit properties to these defendants; that the said document is violation of fundamental principles of Muhamadeen law relating to gifts besides be vitiated by Marzul -Mouth. Ignoring the same, the plaintiff has come forward to claim for partition of the suit properties. Hence, the suit for partition and separate possession and for rendition of accounts and for declaration that the settlement deed dated 27.11.1970 is void in law and unenforceable and is not binding on the plaintiff.