Thajunissa v. Nazarudeen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **RSA.No.182 OF 2020** **AGAINST THE JUDGMENT AND DECREE DATED 27.09.2019 IN AS NO.205/2018 OF ADDITIONAL DISTRICT COURT-III, THIRUVANANTHAPURAM, WHICH WAS FILED AGAINST THE DECREE AND JUDGMENT DATED 31.08.2018 IN OS NO.971/2014 OF III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM** **-----** ## **APPELLANT/APPELLANT/PLAINTIFF:** **THAJUNISSA, AGED 53 YEARS, D/O. SYED MUHAMMED, REENA COTTAGE, T.C 55/954, SANKAR NAGAR, KARAMANA, THIRUVANANTHAPURAM-695002.** **BY ADV. SRI.K.VENUGOPALAN NAIR** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **NAZARUDEEN AGED 55 YEARS, S/O. SYED MOHAMMED,** **RESIDING AT BEEVI NIVAS, THETTIVILA, KALLIYOOR P O, THIRUVANANTHAPURAM-695042.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19.02.2020, ALONG WITH RSA.183/2020 & RSA.184/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **RSA.No.183 OF 2020** **AGAINST THE JUDGMENT AND DECREE DATED 27.09.2019 IN AS NO.206/2018 OF ADDITIONAL DISTRICT COURT-III, THIRUVANANTHAPURAM, WHICH WAS FILED AGAINST THE DECREE AND JUDGMENT DATED 31.08.2018 IN OS NO.197/2014 OF III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM** **-----** ## **APPELLANT/APPELLANT IN AS 206/18 AND DEFENDANT IN OS 197/2014:** **THAJUNISSA, AGED 53 YEARS, D/O.SYED MUHAMMED, REENA COTTAGE, T.C.55/954, SANKAR NAGAR, KARAMANA, THIRUVANANTHAPURAM-695 002.** **BY ADV. SRI.K.VENUGOPALAN NAIR** ## **RESPONDENT/RESPONDENT IN AS 206/18 AND PLAINTIFF IN OS 197/2014:** **NAZARUDEEN, AGED 55 YEARS, S/O.SYED MOHAMMED, RESIDING AT BEEVI NIVAS, THETTIVILA, KALLIYOOR (PO), THIRUVANANTHAPURAM-695 042.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19.02.2020, ALONG WITH RSA.182/2020 & RSA.184/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **RSA.No.184 OF 2020** **AGAINST THE JUDGMENT AND DECREE DATED 27.09.2019 IN AS NO.202/2018 OF ADDITIONAL DISTRICT COURT-III, THIRUVANANTHAPURAM, WHICH WAS FILED AGAINST THE DECREE AND JUDGMENT DATED 31.08.2018 IN OS NO.944/2005 OF III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM** **-----** ## **APPELLANTS/2ND AND 3RD ADDL. APPELLANT/L.R. OF DEFENDANT:** **1 THAJUNISSA, AGED 53 YEARS, D/O.SYED MUHAMMED, REENA COTTAGE, T.C.55/954, SANKAR NAGAR, KARAMANA, THIRUVANANTHAPURAM-695002. 2 SHEREEFA BEEVI, AGED 80 YEARS, W/O.SYED MUHAMMED, REENA COTTAGE, T.C 55/954, SANKAR NAGAR KARAMANA, THIRUVANANTHAPURAM-65002.** ## **BY ADV. SRI.K.VENUGOPALAN NAIR** ## **RESPONDENT/RESPONDENT IN AS 202/15/PLAINTIFF IN OS 944/05:** **NAZARUDEEN, AGED 55 YEARS, S/O.SYED MOHAMMED, RESIDING AT BEEVI NIVAS, THETTIVILA, KALLIYOOR.P.O, THIRUVANANTHAPURAM-695042** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19.02.2020, ALONG WITH RSA.182/2020 & RSA.183/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RSA Nos.182, 183 & 184 of 2020 = = = = = = = = = = = = = = = = = = Dated this the 19[th] day of February, 2020** ## **JUDGMENT** RSA 182/2020 arises from OS 971/2014 filed by the appellant herein as plaintiff, RSA 183/2020 arises from OS 197/14 wherein the appellant herein was the defendant, and RSA 184/2020 arises from OS 944/2005 wherein the appellant herein is the additional defendant. The subject matter involved in all the three suits is one and the same. 2. The appellant-Thajunissa and the respondentNazarudeen are siblings. Their father is, Syed Mohammed @ Amir Sahib, the original defendant in OS 944/2005. He owned 1 acre and 50 cents of property. He executed Ext.A1 (original of which is Ext.B1) Settlement Deed in the year 1980 in favour of the appellant-Thajunnisa and her brother, the respondent-Nazarudeen. Under Ext.A1 settlement deed Nazarudeen was given 51 cents of property as included in 'A' schedule therein and Thajunnisa was given 99 cents of property as included in the RSA Nos.182, 183 & 184 of 2020 :- 2 :- 'B' schedule therein. As per Ext.B2 Gift Deed of the year 1983, Thajunnisa gifted 49 cents from out of the 99 cents she obtained under Ext.A1 (Ext.B1), in favour of Nazarudeen. In the year 2004, the father executed Ext.B3 cancellation deed purporting to cancel Ext.A1 (Ext.B1) settlement deed. Thereafter he executed Ext.B4 settlement deed of the year 2012 in favour of Thajunnisa purporting to convey the property to her. 3. Nazarudeen, the respondent seeks for declaration of his title over the property conveyed to him under Ext.A1 (Ext.B1) and under B2, and for a declaration that Ext.B3 Cancellation Deed and Ext.B4 Settlement Deeds are of no legal consequence. He has also sought for fixation of boundary in respect of the said property with the remaining property of Thajunnisa. Thajunnisa has filed the suit for declaration of her title under Ext.B4 settlement deed of the year 2012. 4. The courts below found Ext.B3 cancellation deed to be invalid and inoperative and consequently the subsequent settlement deed Ext.B4 was held to RSA Nos.182, 183 & 184 of 2020 :- 3 :- be null and void. Title of Nazarudeen over the property which he obtained under Ext.A1 (Ext.B1) and Ext.B2 were upheld. The appeals preferred against the said judgment and decree were dismissed. Pending the first appeal, the father Syed Mohammad @ Amir Sahib, who was the defendant in OS 944/2005 filed by the respondent herein as plaintiff expired, and Thajunnisa and the mother, Shereefa Beebi were impleaded as additional appellants. 5. Heard Sri.K.Venugopalan Nair, the learned counsel for the appellant, on admission. 6. The pivotal question for determination in these suits is regarding the validity of Ext.B3 cancellation deed. If Ext.B3 cancellation deed is held to be not valid then necessarily the respondent-Nazarudeen has obtained title over the property settled in his favour in Exts.A1(Ext.B1) and B2. Consequently Ext.B4 settlement deed is of no avail to the appellant. 7. The trial court noticed the legal requirements for a valid Mohammadan gift, which RSA Nos.182, 183 & 184 of 2020 :- 4 :- are- (i) declaration of gift by the donor; (ii) acceptance of the gift by the donee, which could either be express or implied; and (iii) delivery of possession of the donee, which could either be actual or constructive. 8. In Ext.B1, the donor had reserved his right to reside in the property. But for the same, the recitals in Ext.B1 indicates that the donor had divested himself of the property and had handed over possession to the donee on the very date of execution of Ext.B1. The trial court rightly relied on the decision of this Court in Parameswaran and Others v. Lekshman and Others [2013 (1) KHC 503] to hold that, the mere reservation of a right of residence does not operate against the parting of possession and divesting of title in favour of the donee. The trial court has referred to the judgment of the Apex Court in Rasheeda Khatoon v. Ashiq Ali [2014 (4) KLT SN 92] which had accepted the proposition laid down by the Privy Council in Mahomed Sadiq Ali Khan v. Fakhr Jahan Begum, 59, Ind. App 2: [AIR 1932 PC 13] to the effect that RSA Nos.182, 183 & 184 of 2020 :- 5 :- when the gift deed declares delivery of possession, even mutation of his names is not necessary. 9. Ext.A1(Ext.B1) is not an onerous gift. According to the respondent Nazarudeen, the original document was with him and it was handed over to the appellant. The trial court noticed that the said version of Nazurudeen has not been challenged. Both the donor and the donee were residing together at the time of the gift and therefore, no physical departure or formal entry is necessary to find handing over of possession. It is to be noticed that under Ext.A1 (Ext.B1), both the appellant and the respondent were given properties and the appellant, tracing title thereunder had executed Ext.B2 in favour of the respondent Nazarudeen. This operates against the plea that Ext.A1 (Ext.B1) is a sham document and also on the validity of the gift. That apart, as rightly noticed by the trial court, the executant of the gift deed did not mount the witness box to contend that it is a sham document, that it did not take effect and that the possession was not handed over RSA Nos.182, 183 & 184 of 2020 :- 6 :- thereunder. It is also to be noticed that the gift deed indicates the side measurements of the properties assigned to the appellant and the respondent respectively which indicates the intention to convey the land. Therefore, the courts below were right in holding against Ext.B3 cancellation. 10. The appellant-Thajunnisa has raised a challenge against Ext.B2, whereunder 49 cents of property out of the larger extent of 99 cents which she got under Ext.A1(Ext.B1) as included in 'B' schedule therein, was gifted by her to the respondent-Nazarudeen, on the ground that it was got executed by the respondent under coercion. As noticed by the courts below the challenge against Ext.B2 is raised by the appellant father after a lapse of 31 years and the right is ex facie barred by time. Though Ext.B2 is executed after the marriage, even her husband has not been examined as a witness to prove the allegation of coercion. No evidence in support of the allegation is available. The challenge against Ext.B2 was rightly repelled RSA Nos.182, 183 & 184 of 2020 :- 7 :- by the courts below. The findings of the courts below are based on materials. The appreciation of evidence cannot be held to be perverse. No question of law, much less any substantial question of law arises for consideration in these second appeals. The appeals fail and are accordingly dismissed. Sd/- **SATHISH NINAN** kns/- //True Copy// P.S. to Judge