MOHAMED ABDULLAH Vs. K.A.M. ANWAR ALI

JUDGEMENT

(1.) Plaintiffs in Original Suit No. 162 of 1986, on the file of Additional Subordinate Judge's Court, Tirunelveli, are the appellants. Suit filed by them was, to declare their title to the plaint schedule property and to direct defendants 1 to 3 and 5 to handover possession of the same with mesne profits at the rate of Rs. 600/ - per mensem, and for costs. Late Abdullah Tharaganar was a big businessman, and he acquired various items of properties. He had two wives. First wife was Uma Fathima, and second wife is the third defendant. In this case, we are not concerned about the first wife. Fourth defendant is the son of Abdullah Tharaganar by the second wife. While the fourth defendant was a minor, (it is seen that he was born on 1 -5 -1943), his father executed Ex.A -1 gift deed on 11 -5 -1951. As per the said gift deed, he settled the plaint schedule properties along with other properties. They are, Door Nos. 69, 26, 43 and 44, and 41 cents of nanja land. The subject matter of this suit is Door Nos. 43 and 44 which is also known as the 'western house'. Door No. 69 is known as 'big house', and Door No. 26 is known as 'small house'. Items 43 and 44 were really a car shed, which was subsequently converted into a residential building. Plaintiffs are the sons of the fourth defendant. It is the case of the plaintiffs that their father continued in possession of the plaint schedule properties and on 1 -5 -1984, the same was orally gifted to them. It is their case that the first defendant is now the second husband of the third defendant. Fourth defendant and his mother third defendant were for some time in strained relationship, and, taking advantage of that, defendants 1 and 2 interfered with their possession, and also inducted the fifth defendant in to the suit property. It is under the above circumstances, the suit was filed for the above relief's. It is their further case that from 1951, the fourth defendant continued to be in possession of the property as absolute owner, and pursuant to the oral gift, they became the owners.

(2.) Defendants 1 to 3 filed a joint written statement. In the written statement, they admitted that the property originally belonged to Abdullah Tharaganar, and they also admitted that as per Ex.A -1, Tharaganar executed a gift in favour of the fourth defendant. It is their further case that as per Ex.B -6 dated 1 -4 -1970, the fourth defendant executed a gift deed in favour of his mother (third defendant) due to love and affection. Thereafter, third defendant became the absolute owner. After the gift, third defendant has also alienated various items in the gift deed by exercising ownership. They further contended that even the fourth defendant subsequently has taken documents from third defendant admitting that she is the owner. They have further said that in so far as the plaint item is concerned, the third defendant has executed Exx.B -8 and B -9 gift deeds on 2 -5 -1985. Under Ex.B -8, third defendant has executed a gift deed in favour of first defendant (her husband). That was in relation to Door No. 44, and on the very same day, she has executed another gift deed Ex.B -9 in favour of second defendant in relation to Door No. 43. Since there was some mistake in the door number in Ex.B -8, the same was also corrected by executing a rectification deed on 28 -5 -1985, as evidenced by Ex.B -10. They also said that long before the institution of the suit, mutation has been effected in the name of the donees. It is also contended by them that under Ex.B -14 dated 1 -6 -1986, third defendant executed a gift deed in favour of her son born through the first defendant by name Siyavudeen Ahmed, who is not a party to the suit. The property so conveyed under Ex.B -14 is Door No. 26 mentioned in Ex.A -1. Later, Siyavudeen Ahmed executed a sale deed in respect of that Item in favour of the fourth defendant under Ex.B -4. After the execution of Ex.B -4, the fourth defendant also applied to effect mutation in his name and he himself applied as per Application dated 6 -3 -1986, evidenced by Ex.B -1. It is also contended that Item No. 1 in Ex.A -1, i.e., Door No. 69, which belonged to the third defendant as per Ex.B -6, was again gifted to the fourth defendant under Exx.B -2 and B -3 dated 14 -1 -1986 and 17 -1 -1986 respectively. From the above documents, according to them, it is too much to contend that the fourth defendant continued to be the owner till 1984. There cannot be any oral gift of any property which had already been gifted to the third defendant, who in turn has executed other documents. It was further contended plaintiffs are basing their claim on the oral gift. There cannot be an oral gift in respect of the property over which the fourth defendant did not have any right, and the claim is not sustainable. They prayed for dismissal of the suit.

(3.) It is seen that pending suit, relationship between the first defendant and third defendant got strained, since the first defendant married another woman by name Ayisha, in the year 1987. She (third defendant) came back to her son -fourth defendant.