IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 781 of 2007()
1. SIRAJUNEESA, W/O. LATE AMEER,
... Petitioner
2. YASMIN, D/O. SIRAJUNEESA,
3. ABU THAHIR, S/O. SIRAJUNEESA,
4. PYROOSA, D/O. SIRAJUNEESA,
5. PARITHA, D/O. SIRAJUNEESA,
6. MIRSATHU, D/O. SIRAJUNEESA,
7. P.S. AHAMMED KABEER RAWTHER,
8. P.S. SULAIKHA UMMA,
9. P.S. ABDUL HAMEED ROWTHER,
Vs
1. ABDUL JABBAR, S/O. SYED MUHAMMED ROWTHER
... Respondent
2. P.S. AJIMA UMMA,
For Petitioner :SRI.P.R.VENKETESH
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/11/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 781 OF 2007
............................................
DATED THIS THE 28th DAY OF NOVEMBER, 2007
JUDGMENT
Plaintiffs in O.S.328 of 1992 on the file of Sub Court,
Palakkad are the appellants. Defendants are the respondents.
Appellants instituted the suit seeking a decree for declaration of
title and injunction. The case of appellants was that plaint
schedule property and adjoining property were purchased by
deceased Syed Mohammed Rowther, in the name of first
respondent as per sale deed 258 of 1960 of S.R.O, Kollam and
Syed Mohammed Rowther along with the children were doing
timber business and Rowther assigned a house at Chittadi and
received a consideration of Rs.4000/- and this amount and the
profits from the timber business were utilised for constructing a
house in the plaint schedule property during 1968-69 and in that
house Syed Mohammed Rowther and first appellant, his wife,
Ameer and first respondent were residing and Ameer married
second appellant in 1973 and appellants 3 to 7 were born in that
wedlock and while so Syed Mohammed Rowther disclosed his
intention to first respondent to divide the property and on
1.3.1975, he orally gifted the plaint schedule property to
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appellants in the presence of mediators and the donees accepted
the gift in accordance and in terms of the gift Ameer put up walls
on the north, south and west of the house and to evidence oral
gift, Ameer and first respondent executed Ext.A1 on 27.3.1975
and respondents are causing trouble to appellants and therefore
appellants are entitled to a declaration of their title and
permanent prohibitory injunction.
2. Respondents in their written statement admitted the
relationship but disputed the allegation that property was
purchased with the funds of the business of the father. It was
contended that some property was taken on lease in 1957 by first
respondent and he has been conducting timber trade therein and
plaint schedule property was purchased by him in 1960 using the
profits of his business as well as utilising the amount due to the
wife and he put up the house and in 1968 and Syed Mohammed
Rowther sold a house at Chittadi and cleared his debts and Syed
Mohammed Rowther approached first respondent and requested
to provide residence to him and his wife and first respondent
agreed for it and permitted to occupy the building and in 1973
first respondent conducted the marriage of Ameer and
subsequently ill-feeling started with respondents and Ameer
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shifted his residence and there was no oral gift as canvassed. It
was contended that due to pressure of mediators and local
people and against the wishes of first respondent, Ameer and
Sankaranarayanan prepared Ext.A1 and Ext.A1 does not
indicate oral gift and appellants did not have any title to the
plaint schedule property and therefore suit is to be dismissed.
3. Learned Munsiff, on the evidence of PWs 1 & 2, Dw1
and 2 and Exts.A1 to A10 and B1 to B13 dismissed the suit
holding that appellants did not establish the oral gift and under
Ext.A1 they did not derive any title to the plaint schedule
property. Appellants challenged the judgment before District
Court, Palakkad in A.S.271 of 2003. Learned Additional District
Judge, on reappreciation of evidence, confirmed the findings of
learned Munsiff and dismissed the appeal. It is challenged in the
second appeal.
4. Learned counsel appearing for appellants was heard.
The argument of the learned counsel is that courts below did not
properly appreciate the evidence. It was argued that all the
three essentialities of a valid gift under Mohammedam law were
established by the evidence and though it is an oral gift evidence
establish that Syed Mohammed Rowther orally gifted the plaint
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schedule property and delivered possession of the property to
the donee and gift has taken effect and therefore courts below
should have granted the decree sought for. It was also argued
that Ext.A1, though not in exact terms, throws sufficient light to
establish existence of an oral gift and in such circumstances,
findings of courts below is not correct.
5. On hearing the learned counsel, I do not find any
substantial question of law involved in the appeal. The title set
up by appellants is under an oral gift allegedly granted by Syed
Mohammed Rowther. Though it was argued that Ext.A1 throws
light into the existence of an oral gift, on going through Ext.A1 a
copy of which was made available by learned counsel, I do not
find that it throws any light about an oral gift. If in fact there
was an oral gift, in the ordinary course, Ext.A1 would have
specifically recited about the oral gift. The question whether
there was an oral gift or not is a question of fact. Trial court
which had occasion to note and appreciate the demeanour of
witnesses appreciating the evidence found that there was no oral
gift. First appellate court on reappreciating the evidence
confirmed that finding. That finding of fact by first appellate
court is final. It is not for this court to reappreciate the evidence
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and substitute the finding of courts below especially when the
appreciation of evidence was not at all perverse. In such
circumstances, appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-