SYED ABDUL RAHMAN MARAKAYAR Vs. SAHUL HAMEED

JUDGEMENT

(1.) THE first plaintiff is the appellant in the second appeal which arises out of O. S. No. 124 of 1977 on the file of the Court of the District Munsif, Tenkasi. He along with the second plaintiff filed the said suit for a declaration of his possession and for a permanent injunction restraining the defendants from interfering with his possession and enjoyment.

(2.) THE plaint averments are as under: THE plaint property along with some other properties originally belonged to the Vavasimithi Pillai alias Mohideen Mithi Pillai Rowther. THEy were gifted on 1st September, 1943, by Vavasimithi Pillai alias Mohideen Mithi Pillai Rowther in favour of the second plaintiff, who is none other than his daughter (Exhibit A-1). THE second plaintiff accepted the gift. In fact, the patta was also transferred in her name. THE first plaintiff is the husband of the second plaintiff. THE second plaintiff executed a deed of gift in favour of the first plaintiff on 8th December, 1976 (Exhibit A-4). On and from the date of the gift deed, the first plaintiff was in possession and enjoyment of the properties. THE defendants 1 and 2 are the sons of the plaintiffs. THEy sent a notice to the first plaintiff questioning the validity of Exhibit A-4 and stating that the alleged deed of gift in favour of the second plaintiff by Vavasimithi Pillai alias Mohideen Mithi Pillai Rowther was not an absolute gift, that on the contrary, it is a wakf under which they had been made the Huqdars and that, therefore, no title or interest could pass under Exhibit A-4. To this, a reply was issued by the first plaintiff on 19thApril, 1977, denying these allegations. THE plaintiffs contended that in as much as a cloud was sought to be cast over the title of the first plaintiff, it had become necessary for him to prefer the suit, and since there was also a threat from the defendants to destroy the standing crops the prayer for injunction is asked for,

(3.) AN additional written statement was also filed stating that after the death of the second plaintiff on 21st August, 1978, the first plaintiff has no right to proceed with the suit. Hence, the suit abates. The right of succession did not subsist. The mode of devolution has been delineated in the deed of wakf, namely, Exhibit A-1.