AIYESHAGANI Vs. ABU HANIFA

JUDGEMENT

(1.) THE above Appeal Suit is directed against the judgment and decree dated 2-2-1988 made in O.S.No. 14 of 1985 on the file of the Additional District Judge, Pondicherry at Karaikal, thereby, dismissing the suit filed by the plaintiff praying for declaration that the plaintiff is the absolute owner of the suit property and the defendants have no interest, right or title to the suit property, for a further declaration that the plaintiff is entitled to possession of the suit property; to direct the defendants to hand over possession of the suit property to the plaintiff and further praying to hold an enquiry under Order 20 Rule 12 for ascertaining the future mesne profit and for costs of the suit.

(2.) TRACING the history of the Appeal coming to be preferred it comes to be known that it is the appellant who filed the suit on plaint averments such as that she is the elder sister of the defendants 1 and 2 and their mother is Balkisummal @ Balkis Nachial, who died on 2.3.1985; that her father Khader Sahib Maricar died in 1974; that the parents and the defendants 1 and 2 were residing in the suit property till their death; that the suit property is a tiled house; that she is the absolute owner of the same which was gifted to her during her marriage as per a "Kalyanakaditham"; that the suit property is a part of the larger extent of the house situate at No.23, Kailasanathar Koil Street, Karaikal; that one Ahamedu Maricar who was the original owner of the house donated it to his two daughters namely, Kathija Nachial and Mohamed Thayar in equal shares; that the plaintiff is the grand-daughter of Mohamed Thayar and daughter of Balkisummal; that the owner of the other half share Kathija Nachial died during 1918 and her share devolved on her father, husband, daughter and son; that their father and husband conveyed their share in favour of their son and daughter namely, Fathima Joharan and Mohamed Hussain and the said Mohamed Hussain also died in 1921 leaving his father Ahamed Maricar as legal heir who became the owner of the share of his son which he donated to his daughter Fathima Joharan in 1933, then Fathima Joharan becoming the sole owner of the share of her mother Kathija Nachial and the said Fathima Joharan donated her moist in favour of four brothers, namely, Syed Abdul Kader Maricar, Mohamed Sali Maricar, Ahamadu Maricar and Dawood maricar, thus they becoming the owner of the share of Kathija Nachial during 1951, in which the descendants of Mohamed Thayar had half share.

(3.) THE trial Court would first deal with issues No. 1,2 and 4 and would examine the oral evidence adduced by P.W.1 the husband of the plaintiff and Ex.A.1, the "Kalyanakaditham" and would trace the history of the suit property and Ex.A.2, Exchange Deed and their recitals, further taking stock of the situation that the plaintiff permitting her parents to reside in the house and after the death of the parents the defendants 1 and 2 coming to light and claiming the property subsequently, inducting the defendants 3 to 5 as their tenants. THE Court below would then go into dissecting the validity of the gift made under Ex.A.1, the "Kalyanakaditham" and analysing the three ingredients, namely; (i)declaration of donation; (ii)acceptance by the donee; and (iii)delivery of possession and having its own discussions would remark that there is no evidence to show that the plaintiff received any income nor there is any evidence to prove that she carried down any repair. THE Court below would not admit the plea of the plaintiff that she has permitted her parents to reside there till their death and therefore the possession and enjoyment by her parents must be deemed to be permissive possession. THE Court below would further remark that the electricity service connection, water connection were also stand in the name of her father and the electricity charges were paid by her father only and the tax receipts bearing the name of the plaintiff's mother and that it was the parents who, were, for all practical purposes, in possession of the suit house and therefore, in the absence of such evidence to prove the delivery of possession to the donee, the lower Court would arrive at the conclusion that the claim of the plaintiff becomes invalid.