G ABDUL RAHIM SAHIB Vs. ZEENATH BI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the Second Assistant judge, City Civil Court, Madras in O. S. No. 224 of 1956, a suit for partition and possession of the plaintiff's share in the plaint schedule properties. The parties arrayed in the suit on either side were related in the following manner. The plaintiff, Abdul Rahm, the second defendant, Abdul Rahman and the fourth defendant, Ibrahim (who died after the suit and whose legal representatives have been subsequently added as defendants 6 and 7) were brothers. The third defendant is their sister. The fifth defendant is a purchaser from the fourth defendant. The first defendant Zalnath Bi is the daughter of the deceased Abdul azeez. Out of the several items of property which constituted the schedule to the suit, we are concerned for the purpose of this appeal, with the proper shares to be allotted out of one item of immoveable property, namely, the house No. 9 Adam st. Madras and certain questions regarding the cash left behind by Abdul Azeez and the adjustment to be made in regard to expenses incurred for the marriage of the first defendant including jewellery supplied to her by the plaintiff.

(2.) IN regard to the house, the plaintiff alleged that it was purchased from his funds, and those of his mother in his name, under Ex. A. 1 dated 24-6-1931, and that he has been in possession ever since. The late Abdul Azeez seems to have been a prosperous tailor. He brought up the plaintiff, and they were very much attached to each other. Abdul Azeez suggested to the plaintiff to make a gift of the property to himself and his daughter, the first defendant, and made a promise, at the same time, that he would purchase for the plaintiff another house of similar value. On the above understanding, the plaintiff executed a gift deed, Ex. A. 2 on 14-3-1944, conveying the property to Abdul Azeez and his daughter, the first defendant. But no possession was delivered to the donees, because Abdul Azeez did not purchase another house as promised by him. The gift was also not valid under the Mahomedan law for another reason. At the time of the gift, the first defendant's father was alive, but in the gift, the first defendant who was a minor was represented not by her father but by one Mahomed Shereef Sahib, a relative of hers. Such a gift in which possession has not been taken on behalf of the minor by the father or other legal guardian was invalid under Mahomedan law. Plaintiff, however, was prepared to concede the right of the late Abdul Azeez in half share in house No. 9 Adam Street, and claimed the other half share for himself. There was a subsequent partition effected by mediators on 10-1-1951. But that partition was declared void and not binding in a prior suit O. S. No. 1007 of 1954. Hence, he has filed the present suit for partition. The plaintiff alleged that he was entitled to be reimbursed for Rs. 6050 which he had spent for the marriage expenses of the first defendant. He also represented that though a sum of Rs. 9000 was left behind by Abdul Azeez as cash assets, he (the plaintiff) had incurred several items of expenditure binding on the co-sharers and only a balance of Rs. 4700 now remained available for division. The plaintiff claimed 8/14 share in the house, No. 9 Adam St, that is, his half share, supplemented by his 1/7 share in the half share of the late Abdul Azeez.

(3.) THE plea of the first defendant was that the house No. 9 in Adam Street was purchased by her father with his own funds in 1931. It was improved by him. The plaintiff had no money, and at the time of the purchase, he was a minor, but as a matter of sentiment "expecting good luck", late Abdul Azeez purchased the property in the name of the plaintiff benami for himself. Just prior to the plain, tiff getting married, the plaintiff executed the gift deed Ex. A. 2 dated 13-2-1944, which was in effect a deed of release relinquishing his title in favour of the late abdul Azeez, and the first defendant. By virtue of the above re-linquishment, the first defendant is entitled to a half share in the house. She disputed the plaintiff's claim in regard to cash and in regard to the claim for marriage expenses. She also alleged that the plaintiff was barred by res judicata from putting forth any title to the suit property. The other defendants adopted the main contentions of the first defendant.