ISMAIL GANI Vs. MAIM PONN PATTU BEEVI

JUDGEMENT

(1.) THE first defendant is the appellant. THE first respondent herein filed suit O.S.No. 140 of 1984 before the District Munsif's Court, Melur, against the appellant and the second respondent for declaration and permanent injunction on the following averments: THE suit property of an extent of 60 cents cents in R.S.No.293/2 out of total extent of 3 acres, 22 cents in Nadumandalam Village, Natham Vattam, originally belonged to her father Kattuvan Rowther and on his death there was a partition under a registered deed Ex.A-1 on 12th April, 1956. Under the partition, the suit property was allotted to the first respondent's mother Ayesha Beevi Ammal. Since the first respondent was not allotted any share in the properties of her father, the mother Ayesha Beevi executed a gift deed Ex.A-2, dated 7. 5.1964 in favour of the first respondent in respect of the property allotted to Ayesha Beevi. THE first respondent in her turn, executed a registered deed of maintenance under Ex.A-3 dated 7. 5.1984 in favour of her mother Ayesha Beevi, under which Ayesha Beevi was given a right to enjoy the income from the properties without powers of alienation during her life time and thereafter the property was to be taken by the first respondent. Ayesha Beevi was in enjoyment till she died on 11.11.1982 and since her death the first respondent to be disturbed by the appellant on or about 20.4.1984,.the suit came to be filed.

(2.) THE appellant resisted the suit contending inter alia as follows: THE suit property was purchased by the appellant under Ex.B-1, dated 25.8.1950 and under Ex.B-2, dated 14.5.1951 and the patta for the suit property also stood in his name. He had been possession and enjoyment of the suit property as would be evident from the various kist receipts Exs.B-5 to B-23. THE gift deed Ex.A-2 in favour of the first respondent was not true and valid. THE mother Ayesha Beevi had made a hiba, as early as 1.7. 1963 and therefore the first respondent could not claim title to possession. THE suit was therefore liable to be dismissed. THE second respondent did not contest the suit and remained ex parte.

(3.) IN support of his various submissions the learned counsel relied on several passages from Mullah on Mohamedan Law, V.R.Verma on Islamic Law and the following decisions: (1) Maqbool Alam Khan v. Mst.Khodaija and another, A.I.R. 1966 S.C. 1194: (1966)3 S.C.R. 479, (2) Valia Peedikakkandi Katheessa Umma v. Pathkukalan Narayananath Kunhamu, A.I.R. 1964 S.C. 275: (1963)3 S.C.W.R. 315, (3) K.S.Mohammed Aslam Khan v. Khalilal Rehman Khan and others, A.I.R. 1947 P.C. 97, (4) Nasib Ali v. Wajed Ali, A.I.R. 1927 Cal. 197, (5) Nagoor Ammal (died) and another v. M.K.M. Meeram and others, (1954)1 M.L.J. 11, (6) Mir Taher Ali Khan v. Chairman, A.P. Housing Board, through Competent Authority Hyderabad and others, (1996)2 A.L.T. 674, (7) Mahboob Sahab v. Syed Ismail and others, (1995)2 L.W.153 (S.C). (8) S.V.S. Muhammed Yusuf Rowther and another v. Mohammed Yusuf Rowther and others, (1958)1 M.L.J. 14, (9) Jhaumanan v. Hussain and others, A.I.R. 1931 Oudh. 7 and M/s. Mahendra Apex Corporation Ltd., Manipal by its General Power of Attorney holder K.M.Padmasali v. Jafrulla, (1997)2 A.L.T. 259. The learned counsel particularly stressed the point that mutation took place in the name of the first respondent only after the life time of the mother and that the first respondent as P.W.I had admitted that possession was taken by her only after the death of the donor.