IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.03.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.939 of 1997 1. Thambiyappa @ Syed Ibrahim 2. Rahima Bivi 3. Kaliga Bivi ... Appellants/Defendants Vs. Roshan Bivi ... Respondent/Plaintiff This Appeal has been filed as against the Judgement and Decree dated 01.09.1994 passed in O.S.No.184 of 1991 on the file of the learned Subordinate Judge of Dharapuram. For Appellants : Mr.S.K.Raghunathan For Respondent : No Appearance JUDGEMENT
This appeal is directed against the judgement dated 01.09.1994 and the even dated preliminary decree passed in O.S.No.184/1991 on the file of Sub Court, Dharaapuram. The defendants in the suit are the appellants before this Court. The plaintiff in the original suit is the respondent in this appeal. The first appellant / first defendant is the brother of appellants 2 and 3/defendants 2 and 3 and respondent/plaintiff. The respondent herein had filed the above said original suit on the file of learned Subordinate Judge, Dharapuram for the relief of partition and separate possession claiming 1/5th share in the suit properties. According to the Plaint averments, all the three items of suit properties were that of her mother Joharammal, who died on 25.12.1981 without making any arrangement for the succession to her estate. As such the parties to the suit being the son and daughters of the deceased Joharammal had succeeded to her estate. As per Mohamedan Law each one of the daughters were entitled to 1/5th share and the first appellant being the son was entitled twice the share of a daughter and as such he was entitled to 2/5th share.
2) The suit was resisted by the appellants/ respondents on the following grounds:-
i) Since Aziammal and Bashirammal, both daughter of Habibunnissa, the predeceased daughter of Joharammal were alive on the date of death of Joharammal, they were also entitled to a share in the properties left by Joharammal and the suit filed without impleading them was bad for non-joinder of necessary parties;
ii) Item 2 of the suit properties did not belong to the said Joharammal, as the same was the property purchased by the father of the parties to the suit long back on 25.05.1927 under a registered Sale Deed and hence the said property was not available for partition; AND
iii) The first appellant/first defendant incurred debts for the marriage of his sisters as well as the daughters of his deceased sister Habibunnisa and when the properties are to be shared, the debts should also be shared in the same ratio.
3) Based on the said pleadings the learned Subordinate Judge, framed the following six issues.
” 1) Whether the plaintiff is entitled to partition and separate possession as prayed for?
2) Is it true that the plaintiff is not in joint possession of the suit property?
3) Whether the debts incurred by the first defendant are binding on the parties to the suit?
4) Whether the suit has not been properly valued?
e) Whether the court fees paid is not correct?
f) For what reliefs? ”
4) In the trial, except the party witnesses, no independent witness was examined on either side. The respondent/plaintiff was examined as PW1 on the side of the Plaintiff, whereas the first appellant/first defendant was examined as DW1 on the side of defendants. No document was produced on the side of the Plaintiff. The Sale Deed in the name of the father of the parties, namely Md.Yousuf Rowther, dated 25.05.1927 has been produced as the only document on the side of the appellants herein/defendants and marked as Ex.B1.
5) At the conclusion of trial, the learned subordinate Judge heard the arguments advanced on either side, considered the evidence, both oral and documentary, in the light of the said arguments and came to the conclusion that the respondent herein/plaintiff was entitled to the relief of partition as prayed for. The learned Subordinate Judge also held that the defence plea put-forward by the appellants/defendants to the effect that the suit was bad for jon-joinder of necessary parties could not be sustained. The other plea that item 2 of the suit properties was not available for partition, as the same happened to be the property of Md.Yousuf Rowther (father of the parties to the suit), as the same had been purchased under Ex.B1 Sale Deed dated 25.05.1927 was also turned down, holding that the said document did not relate to any one of the suit properties, but pertained to some other property. So far as the plea of the defendants for sharing of the debts incurred by the first appellant/first defendant is concerned, the lower court accepted the said contention, fixed the share of the respondent/plaintiff in the liability towards the discharge of the said debts at Rs.10,000/-. Accordingly, the learned Subordinate Judge passed a preliminary decree declaring that the respondent/plaintiff was entitled to 1/5th share in all the three items of the suit properties and directing division of the suit properties into five equal shares and allotment of one such share to the respondent/plaintiff. The preliminary decree also incorporates a clause directing the respondent/plaintiff to pay a sum of Rs.10,000/- to the first appellant/defendant towards her share in the liability for discharging the debts incurred by him for the marriage of his sisters and daughters of the deceased sister.
6) Aggrieved by the said judgement and preliminary decree of the Trial Court dated 01.09.1994, the defendants have approached this court by way of the present appeal attacking the correctness of the judgement and decree on various grounds set out in the grounds of appeal.
7)The point that arise for determination in the appeal are:
1) Whether the court below has committed an error in rejecting the plea of the appellant/defendant that the suit was bad for non-joinder of necessary parties.
2) Whether the court below is wrong in holding that Ex.B1 does not relate to any one of the suit properties.
3) Whether the court below is not right in fixing the share of the respondent/plaintiff in the debt incurred by the first appellant/first defendant at Rs.10,000/- alone?
4) Whether the preliminary decree has got to be either set aside or modified?
8) In spite of the fact that notice was served on the respondent/plaintiff, she has not chosen to enter appearance either in person or through counsel. Hence this court has to decide the case after hearing only the arguments advanced on the side of the appellants. The arguments advanced on behalf of the appellants have been heard and the materials available on record have also been perused.
9) Mr.S.K.Raghunathan, learned counsel for the appellants, advancing arguments on behalf of the appellants, contended that the court below committed an error in rejecting the contention of the appellants/defendants on the ground that the suit was bad for non-joinder of necessary parties; that, though the first daughter of Joharammal, predeceased her, she was very much alive on the date of death of her father and that hence her daughters in turn, could not be excluded from becoming sharers of the estate left behind Joharammal. The learned counsel for the Appellant contended further that the finding of the court below that Ex.B1 relates to some other property and not the second item of suit properties could not be sustained based on the evidence on record.
10) This court gave its anxious consideration to the said contention raised by the learned counsel for the Appellants.
Point No.2
11) The appellants and the respondents are son and daughters of one Joharammal. Her husband Md.Yousuf Rowther, died in the year 1944. They had yet another daughter by name Habibunnisa who predeceased Joharammal. The said Habibunnisa had two daughters by name Aziammal and Bashirammal who were alive as on 25.12.1981 the date of death of Joharammal. Therefore, the properties left behind her by Joharammal, have to be apportioned among the sharers and the residuaries, if any. Since the appellants/defendants have contended that the second item of the suit properties did not belong to the said Joharammal and hence not available for partition in the present suit, the correctness of the finding of the Court below regarding the said contention has got to be tested at the first instance before considering the other aspects of the case. In support of their contention that the second item of suit properties did not belong to Joharammal, the appellants/defendants have relied on Ex.B1 – Sale Deed dated 25.05.1924. After going through the description of property found therein and considering the parole evidence adduced on the side of the defendants through DW1, the learned Subordinate Judge has come to a correct conclusion that the subject matter of Ex.B1 was not the second item of the suit properties. There is a clear admission made by DW1 in his testimony during cross-examination to the effect that the property purchased under Ex.B1 has not been shown as a suit property. The relevant portion in vernacular language is reproduced hereyunder for the purpose of proper appreciation.
“Ex.B1-brhj;Jf;fs; vd; jfg;gdhh; brhj;Jf;fs; vd;Wk; mjdhy; jhd; ,ij jhthtpy; fhl;ltpy;iybad;why; rhp?”
12) In view of the candid admission made by DW1 in his testimony, the challenge made to the said finding made by the learned Subordinate Judge cannot be countenanced. Accordingly the said finding is hereby confirmed.
Point No.1
13) So far as the question of maintainability of the suit on the plea of non-joinder of necessary parties is concerned, as pointed out supra, under Mohamedan Law, the shares are not allowed in stripes. In the presence of sons and daughters, daughters daughters will not become sharers along with the sons and daughters. Though a sons daughter or a sons son’s daughter may become a sharer, in no circumstance, a daughters daughter will become a sharer. Admittedly, the daughters of the deceased Habibunnisa were not even residuaries. Therefore, the finding of the court that they were not entitled to any share in the properties left by Joharammal and that hence the suit was not bad for non-joinder of necessary parties, cannot be held either infirm or defective. The said findings deserve approval of this Court, as there is no scope for interference with the same. Accordingly, the said finding is also confirmed.
Point No.3
14) So far as the debts allegedly incurred by the first appellant/first defendant towards the expenses for the marriage of his sister and daughters of his deceased sister is concerned, he claimed to have spent a sum of Rs.60,000/-. The learned Subordinate Judge held that there was no reliable evidence to prove that he incurred a debt to the tune of Rs.60,000/- towards the marriage expenses of the appellants 2 & 3 and respondent/plaintiff and for the marriage of the daughters of their deceased sister. The court has also opined that the said debt has not been proved to exist. The admission made by DW1 that none of the creditors filed any suit for the recovery of the alleged debt and no decree had been obtained against him for the recovery of the said debt has been cited by the learned Subordinate Judge in supportt of his conclusion that the defence plea to the effect that the first appellant had incurred a debt to the tune of Rs.60,000/- was not substantiated. However, relying on some of the admissionss made by PW1 in her evidence, though not unequivocal, the learned Subordinate Judge seems to have come to a conclusion that the debts incurred by the first appellant/first defendant could be assessed at Rs.50,000/- and the share of the respondent in the liability to discharge the said debt could be fixed at Rs.10,000/-. As against the said direction incorporated in the preliminary decree, the respondent / plaintiff has not chosen to file any appeal or cross objection. So far as the fixation of the share of the respondent/plaintiff towards the discharge of the debt is concerned, the appellants herein do not have any serious dispute. Therefore, the same also deserves to be confirmed.
Point No.2
15. For all the reasons stated above, this court comes to the conclusion that the trial court has marshaled the evidence in proper manner and arrived at the correct conclusion in decreeing the suit for partition and passing a preliminary decree directing the division of suit properties into five equal shares and allotting one such share to the plaintiff and also directing the respondent/plaintiff to pay a sum of Rs.10,000/- to the first appellant/first defendant towards her share of the debts incurred by him. There is no scope, whatsoever, for interfering with the said judgement and preliminary decree, which have got to be confirmed. There is no merit in the appeal and the same deserves to be dismissed.
16) In the result, this appeal is dismissed and the judgment and preliminary decree of the trial court dated 01.09.1994 shall stand confirmed. However, there shall be no order as to costs.
asr