AMINA BIBI DIED Vs. UMMU SALMA BIBI DIED

JUDGEMENT

(1.) THE plaintiff who filed the suit for partition has filed this appeal. THE facts of the matter are as follows: One Naina Mohammad Sahib had three wives. Through his first wife, he had a son and a daughter Habeeb Sahib and Amina Bibi. THE plaintiff is Amina Bibi and the first and the contesting defendant is the wife of Habeeb Sahib who is no more. After the death of their mother, Naina Mohammad Sahib took a second wife. She also died. And then, he married one Fathima Bibi. Naina Mohammad Sahib died on 05-01-1949 and at that time, his heirs as per Muslim Law were his wife Fathima Bibi and his children Habeeb Sahib and Amina Bibi. THE wife took one eighth share and the son and daughter took fourteen upon twenty four share and seven upon twenty four share respectively in the estate of Naina Mohammad Sahib. THE aforesaid Fathima Bibi and Amina Bibi filed O.S. No. 28 of 1942 which was subsequently transferred and renumbered as O.S. No. 41 of 1956 for partition of their shares. THE suit was decreed, an appeal was filed, which was also dismissed. Pending the appeal, Habeeb Sahib was appointed as a receiver in respect of shares of his sister and step-mother. THEreafter, the parties arrived at a compromise. A final decree was passed on 29-03-1963 in terms of the compromise, allotting specific properties to the parties and the parties also took possession by filing execution petitions. On 17-09-1959, Habeeb Sahib executed a gift deed in favour of his wife, the first defendant, giving his undivided 14/24 share in all the items of properties. Habeeb Sahib had no children. THE plaintiff, who is the appellant herein claimed that the gift was void and that until the final decree, her brother was not entitled to specific properties and therefore, possession could not have been given pursuant to the gift deed and the legal proceedings were conducted by Habeeb Sahib in his own name, which would go to show that the deed of gift never came into effect and therefore, according to the plaintiff, she and the first defendant being Habeeb Sahib's only heirs, the wife would take 1/4th share, the sister would be entitled to half share and in the absence of other heirs, the other quarter share would also go to them. THErefore, the suit was filed claiming 3/4th share. THE first defendant resisted the suit stating that her husband was in "khass" possession of the property, the deed of gift came into effect and that possession was given by her husband and she had also accepted it and that during his life time he never denied the settlement deed on the contrary he confirmed it by his conduct. THErefore, the first defendant prayed that the suit should be dismissed. THE Trial Court framed several issues and came to the conclusion that the gift was valid and that the documentary evidence would show that the first defendant had been in possession and enjoyment of the said properties and that all her acts of ownership had been confirmed by her husband, the settlor and dismissed the suit.

(2.) THE learned counsel for the appellants raised the following questions:

(3.) IN the present case, Habeeb Sahib had given his entire 14/24th share in his father's estate under Ex-A1, and possession of such nature as he was capable of giving at this stage had also been delivered. The fact that subsequent to Ex-A1, the allotment of shares was made and delivery was taken by the husband by filing execution petitions will not make a difference to the right under the settlement. The possession which he had over the undivided share got crystallized into the specific shares after the compromise decree and the subsequent proceedings. The fact that Habeeb Sahib is named in the Court cases also does not in any way nullify the legal effect of the settlement deeds since the preliminary decree was prior to the settlement deed. Further under the Power of Attorney, Ummu Salma Bibi had given her husband the right to act on her behalf in all the court proceedings, Tamil