THAKKADI SYED MOHAMED Vs. AHMED FATHUMML

JUDGEMENT

(1.) THE first defendant is the appellant. The suit was filed by the first respondent herein for partition, separate possession and for accounts. The first schedule and second schedule to the plaint are immovable properties and the third and the fourth schedules are moveable properties. The plaintiff claimed 38/240th share in the first and fourth schedules, 53/1440th share in the second schedule and one-fifth share in the third schedule properties. The plaintiff is the sister of the first and second defendants. They are the children of one Thakkadi Ahmad Mohideen. According to the plaint, the first and fourth schedule properties belonged to thakkadi Ahmed Mohideen. After his death, the plaintiff and first and second defendants inherited the same and were in joint and constructive possession. The deceased Thakkadi Ahmed Mohideen left also one Thakkadi Mohammed Abubacker and Asini Beevi as his heirs, along with the plaintiff and the second defendant. Thakkadi Mohameed Abubacker died leaving his only son, the third defendant who succeeded to his share. Though the fourth defendant is the son of another brother of the plaintiff, since the brother pre-deceased the father, the fourth defendant was not entitled to any share. Pending the suit the fourth defendant died and defendant 5 and 6 are his heirs. Thus, on the admitted facts, the plaintiff, the first defendant and the third defendant would have been entitled to a share in the properties of Thakkadi Ahmed Mohideen. As already stated, the first and fourth schedule properties are the properties left by the said Thakkadi Ahmed Mohideen. The plaintiff's mother inherited the second schedule properties that belonged to her father and she was in possession with the other co-owners. The third schedule is said to be the moveable property inherited by the plaintiff's mother. Since Asial beevi is dead, the plaintiff is entitled to 53-1440th share in the second schedule in the properties and one-fifth share in the third schedule properties. These facts in the third schedule properties. These facts are admitted. While so on 14-6-1961 the plaintiff executed a document which is styled as gift settlement deed of her share in the immovable properties set out in schedules 1 and 2 to the plaint. It was the case of the plaintiff that this deed was obtained from her under undue influence and coercion and that in any case it was not a valid gift, as the requirements of a valid gift are not satisfied. She also pleaded that by way of abundant caution she had also executed a cancellation of that document; but such a cancellation document has not been produced in this case.

(2.) THE trial Court on a consideration of the oral and documentary evidence came to the conclusion that Ex. B-3 was a gift deed executed by the plaintiff, that it was true, valid and binding on her and that it was not executed under undue influence and coercion. The trial Court also found that the plaintiff has not proved the existence of the movables mentioned in the third and fourth schedules to the plaint. In view of the finding that the gift deed is valid, the suit was dismissed.

(3.) ON appeal by the plaintiff, the learned Subordinate Judge of Tirunelveli, accepted the finding of the trial court that the plaintiff has not proved the existence of the third and fourth schedule movables, but different from the finding of the trial court held that Ex. B-3 was not a valid document, that it must have been obtained under undue influence and coercion and that in any case the conditions for a valid gift are not satisfied and that, therefore, there was no valid gift of the share of the plaintiff in favor of defendants 1 to 3. The first defendant has preferred this second appeal.