MOHIDEEN FATHIMA Vs. A M SHARIFUNNISA

JUDGEMENT

(1.) Both the above two appeal suits A.S.No.997 of 1993 and Tr.A.S.No.243 of 1997 are directed against the common judgment and decree dated 3.12.1992 rendered by the Court of III Assistant City Civil Judge, Madras in the suit in O.S.No.9216 of 1989 which has been filed by the respondent herein against the appellants praying for a permanent injunction and for costs and the second suit in O.S.No.10171 of 1989 which has been filed by the appellants against the respondent herein praying for partition and separate possession and for costs.

(2.) The first suit in O.S.No.9216 of 1989 filed by the respondent has been decreed as prayed for with costs by the trial Court, but the second suit filed by the appellants herein in O.S.No.10171 of 1989 has been dismissed with a direction for parties to bear their own costs. Aggrieved against both the verdict as per the common judgment and decree, the appellants have come forward to prefer both the above appeal suits on certain grounds as brought-forth in the grounds of appeal. For the sake of convenience, the rank of the parties in O.S.No.9216 of 1989 is followed in the common judgment of the lower Court.

(3.) Tracing the history of the coming into being of the Appeal Suits, it comes to be known from the averments of the plaint in O.S.No.9216 of 1989 that the plaintiff therein has filed the said suit for a permanent injunction restraining the defendants therein and their men, agents etc. from in any manner interfering with their peaceful possession and enjoyment of the suit property and for costs on grounds such as that the suit property bearing Municipal Door No.17 (New) (Old Nos.5 and 28), Sharfuddin Garden II Street, Royapettah, Madras-600 014, originally belonged to one K.Mohamed Ali, father/in/law of the plaintiff, A.M.sharifunnisa who died intestate; that the property devolved on the husband of the plaintiff, Bismillah Hussain now deceased and the defendants; that, as per the Muslim Law, the plaintiff’s husband got ˝ share and the defendants got each Ľ share in the property; that from out of his own funds, the deceased also purchased the land site belonging to Hajee S.M.Sharfuddin Wakf Estate, under Sale Deed dated 29.4.1965, thus himself becoming the sole owner of the land site and part owner of the said superstructure; that subsequently, he obtained a release from his sisters, defendants herein, for valuable consideration under a Release Deed dated 9.12.1965; that hence, he became the absolute owner for both the superstructure and land site; that the deceased died issueless, after 26 years of married life; that as per the Muslim Law, the plaintiff being the widow and without any issue, is entitled to Ľ share in the estate of the deceased and the sisters get each 1/3rd share and the residue is distributed amongst all the three heirs. The said deceased and the plaintiff adopted the paternal grand-daughter of the first defendant, by name Mumtaz Begum from her infancy; that though adoption is not prohibited in Muslim Law, yet the adopted child has no right of inheritance; that the deceased realised that his wife’s small share in the said property after his death would be too meagre and insufficient to maintain the plaintiff and the adopted daughter, Mumtaz Begum; that hence, on 2nd February, 1989, while the deceased was in good health and in a well disposing state of mind, made an Oral Gift, known as Hiba in Muslim Law of the suit property, in the presence of the competent witnesses; that consequent to the Oral Gift, necessary mutation of names were made with regard to the transfer of ownership of the said property; that the plaintiff, therefore, filed O.S.No.9216 of 1989 for permanent injunction, restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the suit property.