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Thursday, June 28, 2012

Mulla’s Mohammedan law Section 147 would recite writing not necessary:- Writing is not essential to the validity of a gift either of movable or of immovable property. A gift under the Mohammedan law is to be effected in the manner prescribed by the Mohammedan law. If the formalities prescribed by that law (s.150 below) are complied with, the gift is valid even though it is not effected by a registered instrument and though, where effected by an instrument, the instrument is not attested.-Section 67 of Evidence Act wherein for proof of signature and handwriting of person alleged to have signed or written document produced (S.67(5)) ‘it is not material whether the document is signed only at the first page or only the last page or whether it bears the signature of the executant on all the pages of a document. The insertion of the name in any part of the writing, in a manner to authenticate the instrument is sufficient, although the signature be in the beginning or middle of the instrument it is as binding as if at the foot of it.’-so far as the gift dated 2.2.1989 orally given by the deceased in favour of the respondent was concerned and the reducing into writing of the same the subsequent date, since it is a family arrangement and supported by these judgments and the dictum of law quoted from Mulla and the relavant provision of the Evidence Act all put together would only consolidate the decision of the lower Court and therefore in these circumstances this Court cannot arrive at a different conclusion than that of one arrived at by the lower Court and hence the following judgment: In result, (i) both the above appeals fail and they are dismissed; (ii) the common judgment and decree dated 3.12.1992 made in O.S.No.9216 of 1989 and O.S.No.10171 of 1989 by the Court of III Assistant Judge, City Civil Court, Madras are hereby confirmed; (iii) however, in the circumstances of the case, there shall be no order as to costs.


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 25/10/2002

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

A.S.NO.997 OF 1993
AND
TRANSFERRED A.S.NO.243 OF 1997.

1. Mohideen Fathima,
2. Hayath Beeves.               .. Appellants in both appeals.

-Vs-

Mrs.A.M.Sharifunnisa.  .. Respondent in both appeals.

        These Appeal Suits are filed  against  the  Common  Judgment  in  O.S.
No.9216 of 1989 and 10171 of 1989, dated 3.12.1992 passed by the III Assistant
Judge, City Civil Court, Chennai, as stated therein.

!For Appellants in both appeals :  Mr.S.M.Amjad Nainar.

^For Respondent in both appeals :  Mr.K.Thiagarajan,
                                for Mr.M.A.Ghatala.

:COMMON JUDGMENT

        Both  the above two appeal suits A.S.No.997 of 1993 and Tr.A.S.No.24 3
of 1997 are directed against the common judgment and decree dated  3  .12.1992
rendered by the Court of III Assistant City Civil Judge, Madras in the suit in
O.S.No.9216  of 1989 which has been filed by the respondent herein against the
appellants praying for a permanent injunction and for  costs  and  the  second
suit  in  O.S.No.10171  of 1989 which has been filed by the appellants against
the respondent herein praying for partition and separate  possession  and  for
costs.
        2.   The first suit in O.S.No.9216 of 1989 filed by the respondent has
been decreed as prayed for with costs by the trial Court, but the second  suit
filed by the appellants herein in O.S.No.10171 of 1989 has been dismissed with
a direction  for  parties to bear their own costs.  Aggrieved against both the
verdict as per the common  judgment  and  decree,  the  appellants  have  come
forward  to  prefer  both  the  above  appeal  suits  on  certain  grounds  as
brought-forth in the grounds of appeal.  For the sake of convenience, the rank
of the parties in O.S.No.9216 of 1989 is followed in the  common  judgment  of
the lower Court.

        3.   Tracing the history of the coming into being of the Appeal Suits,
it comes to be known from the averments of the plaint in O.S.No.921 6 of  1989
that  the plaintiff therein has filed the said suit for a permanent injunction
restraining the defendants therein and their men, agents etc.    from  in  any
manner  interfering  with  their peaceful possession and enjoyment of the suit
property and for costs on grounds such  as  that  the  suit  property  bearing
Municipal  Door  No.17  (New) (Old Nos.5 and 28), Sharfuddin Garden II Street,
Royapettah, Madras-600  014  ,  originally  belonged  to  one  K.Mohamed  Ali,
father/in/law  of the plaintiff, A.M.sharifunnisa who died intestate; that the
property devolved on the husband  of  the  plaintiff,  Bismillah  Hussain  now
deceased  and  the  defendants;  that,  as per the Muslim Law, the plaintiff’s
husband got ½ share and the defendants got each ¼ share in the property;  that
from out of his own funds, the deceased also purchased the land site belonging
to  Hajee  S.M.Sharfuddin  Wakf  Estate, under Sale Deed dated 29.4.1965, thus
himself becoming the sole owner of the land site and part owner  of  the  said
superstructure;  that  subsequently,  he  obtained a release from his sisters,
defendants herein, for valuable  consideration  under  a  Release  Deed  dated
9.12.1965;   that   hence,   he   became  the  absolute  owner  for  both  the
superstructure and land site; that the deceased died issueless, after 26 years
of married life; that as per the Muslim Law, the plaintiff being the widow and
without any issue, is entitled to ¼ share in the estate of  the  deceased  and
the  sisters  get  each 1/3rd share and the residue is distributed amongst all
the three heirs.  The said deceased and the  plaintiff  adopted  the  paternal
grand-daughter  of the first defendant, by name Mumtaz Begum from her infancy;
that though adoption is not prohibited in Muslim Law, yet  the  adopted  child
has  no right of inheritance; that the deceased realised that his wife’s small
share  in  the  said  property  after  his  death  would  be  too  meagre  and
insufficient to maintain the plaintiff and the adopted daughter, Mumtaz Begum;
that  hence,  on 2nd February, 1989, while the deceased was in good health and
in a well disposing state of mind, made an Oral Gift, known as Hiba in  Muslim
Law  of  the  suit  property, in the presence of the competent witnesses; that
consequent to the Oral Gift, necessary mutation of names were made with regard
to the transfer of  ownership  of  the  said  property;  that  the  plaintiff,
therefore, filed O.S.No.9216 of 1989 for permanent injunction, restraining the
defendants  and  their  men  from interfering with the peaceful possession and
enjoyment of the suit property.

        4.  The case of the defendants as pleaded in their statement  is  that
there  is  no such oral gift alleged to have been made on 2.2.1989; that at no
point of time, the deceased made any oral gift;  that  the  plaintiff  at  the
instance  of  her brothers, has come with the false allegation, that oral gift
“Hiba” was made by the deceased in favour of the paternal grand-father of  the
first  defendant;  that  as  per  Mohammedan Law, the plaintiff is entitled to
10/36 shares in the assets of her husband and the defendants are  entitled  to
13/36  share  each,  viz., 26 /36 shares as per the “Doctrine of Return;” that
these defendants  filed  O.S.No.10171  of  1989  for  partition  and  separate
possession  of  their  26/36  shares in the suit property; that they have also
taken out an application  in  I.A.No.22103  of  1989  for  appointment  of  an
Advocate-Receiver to take charge of the suit property.

        5.   Besides the above contentions raised in the written statements in
O.S.No.9216 of 1989,  the  defendants  therein  would  file  another  suit  in
O.S.No.10171 of 1989 before the Court of City Civil Judge, Madras, wherein the
first defendant is the plaintiff in the other suit and the second defendant is
the  Tamil  Nadu  Electricity  Board  represented by its Chairman, and besides
those averments brought-forth in the written statements in the other suit,  it
would  further  be  alleged  in the plaint in this suit that Bismillah Hussain
being the sole male member of the family  purchased  the  land  on  which  the
superstructure  was  constructed  from Hajee S.M.Sharfuddin Wakf Estate as per
sale deed dated 29.4.1965; that subsequently the plaintiffs out  of  love  and
affection  for  their brother Bismillah Hussain executed the release deed on 4
.12.1967 in respect of their half share in the  superstructure,  thus  himself
becoming absolute owner of the ground and premises; that he was married to the
first  defendant in 1962; that he was also employed as Assistant in the Second
Defendant Board drawing a salary of Rs.2,00 0/-  per  month  and  he  died  in
harness on 27.2.1989 issueless, leaving behind, the first defendant his widow,
who  is  entitled  to  10/36  shares  and the plaintiffs shares and as per the
Doctrine of Return are entitled to the remaining  26/36  shares  i.e.    13/36
shares each.

        6.   The plaintiffs would further allege that the first defendant with
evil motives and at the instance of her brothers, set up title in herself  for
the  entire  assets left behind by the deceased claiming under an alleged oral
gift, said to have been executed by the deceased on 2.2.1989 and reduced  into
writing on  the next day i.e.  on 3.2.1989 alleging that no such oral gift was
made by the deceased.  The plaintiffs would also  allege  that  they  were  on
cordial  terms  with  their  deceased brother and he would not have gifted the
properties without their knowledge.

        7.  The plaintiffs would further allege that Bismillah Hussain died on
27.2.1989; that the first defendant’s brothers  informed  that  she  has  been
nominated  to  receive  the  gratuity  and  other  benefits  from  the  second
defendant, for which the plaintiffs and their husband consented to receive  as
their  agent and the nominee of the deceased; that they also allowed the first
defendant to collect the rents from the tenants on their behalf; that  at  the
instigation  of  her  brothers  who  took  hostile  attitude lodged the police
complaint besides issuing notice followed by the suit in O.S.No.9216  of  1989
filed  by  the  first  defendant; that they replied on 10.10.1989 pleading the
position of law as per Mohammedan Law, as had been recited supra  and  further
stating  that  the  plaintiffs  are in joint possession of the plaint schedule
property and that they have also paid the taxes and denying that  the  Revenue
Authorities  have  recognised the first defendant as the absolute owner of the
plaint schedule properties would ultimately pray for the reliefs of  partition
and  separate  possession of the plaintiffs 26/36 shares; for accounts and for
the past and future mesne profits ultimately undertaking to pay further  Court
Fee for the future mesne profits as and when determined.

        8.   In  the written statement filed by the first defendant, she would
only lay emphasis on what she has stated in the plaint of her suit O.S.No.9216
of 1989 and in the written statement filed by the second defendant it would be
stated that the deceased Bismillah Hussain joined the services of the Board on
18.4.1957 and while working as Assistant, he expired on 27.2.1989; that  while
in service he nominated his wife Smt.A.M.Sherifunnissa, the first defendant as
his nominee; that after his death, she produced the legal heirship certificate
dated  16.3.1989  from  Tahsildar,  Mylapore-Triplicane Taluk; that as per the
rules relating to the payment of the family pension and  other  benefits  only
the  widow  or  the  widower  is  entitled  to  receive  the pension and other
benefits; that in their absence, the benefits would go to the  minor  sons  or
daughters  of  the  deceased; that in the present case, the only legal heir of
the deceased being  the  first  defendant,  the  pension  and  other  benefits
admissible  as  per  law  have  been  given to the first defendant and on such
grounds would state that the suit filed against the second  defendant  is  not
maintainable and would ultimately pray to dismiss the above suit with costs.

        9.   Based  on  the  above pleadings by parties, the trial Court would
frame the following issues in both the above suits and the  issues  framed  in
O.S.No.9216 of 1989 are:
        1.  Whether the defendants are trying to interfere in the plaintiff’ s
peaceful possession?
        2.   Whether  the  plaintiff  was  in  possession on the date when the
plaintiff filed the suit?
        3.  Whether the plaintiff is  entitled  to  permanent  injunction,  as
prayed for?
        Likewise, in O.S.No.10171 of 1989, the following issues were framed:
        1.   Whether  the  plaintiffs  are  entitled to partition and separate
possession of 26/36 share in the suit property?
        2.  Whether the plaintiffs are entitled to claim rendering of accounts
from the second defendant?
        3.  To what other reliefs, the plaintiffs are entitled to?
        Additional Issue:
        Whether the court fee paid is correct?

        10.  Having framed the above issues, the trial Court would  allow  the
parties  to  record  evidence,  on trial when, on the part of the plaintiff in
O.S.No.9216 of 1989, she would not only examine herself  as  P.W.1,  but  also
would examine  two  other witnesses as P.Ws.2 and 3 for oral evidence.  On the
part of the defendants therein, one Abdul Kuthoos would be examined  as  their
sole witness for oral evidence.

        11.   For  documentary  evidence,  on  the  part  of  the plaintiff 11
documents would be marked as Exs.A1 to A11, Ex.A1 dated 3.2.89 being the sworn
affidavit of Bismillah Hussain, Ex.A2 dated 28.9.89 being the complaint  given
to  the  police,  Ex.A3 being the receipt for Ex.A2, Ex.A4 dated 26.9.89 being
the lawyer’s notice, Ex.A5 dated 30.5.89 being the xerox copy of the letter by
the Corporation of Madras, in favour of the  plaintiff,  Ex.A6  dated  29.4.65
being  the xerox copy of the sale deed, Ex.A7 being the details of expenditure
towards the construction of the house, Ex.A8 being  the  account  book,  Ex.A9
dated  19.10.89 being the water tax demand notice, Ex.A10 being the xerox copy
of the letter from the Tamil Nadu  Electricity  Board  to  the  plaintiff  and
Ex.A11 being the property tax demand notice for the year 1990-91.

        12.   Likewise,  on the part of the defendants also 10 documents would
be marked as Exs.B1 to B10,  Ex.B1  being  the  xerox  copy  of  the  marriage
registration  certificate  of Bismillah Hussain, Ex.B2 dated 4.12.65 being the
release deed executed by the defendants in favour of Bismillah Hussain,  Ex.B3
dated  22.1.82 and Ex.B4 dated 19.10.83 being the land mortgage deeds executed
by Bismillah Hussain in favour of George Town Co-operative Bank,  Ex.B5  dated
10.10.89  being  the  reply  sent by the defendants’ lawyer to the plaintiff’s
lawyer, Exs.B6 and B7 are the acknowledgments, Ex.B8 being the tax  assessment
by Corporation of Madras, Ex.B9 dated 18.10.89 being the tax receipt in favour
of  Bismillah Hussain and Ex.B10 being the encumbrance certificate of the suit
property.

        13.  The trial Court having traced the facts of both cases as  pleaded
by  parties  and  appreciating  the  evidence placed on record, having its own
discussions on various aspects involved in the case particularly  sticking  to
the issues framed, would ultimately pass the decree in favour of the plaintiff
in  O.S.No.9216  of 1989 as prayed for with costs dismissing the other suit in
O.S.No.10171 of 1989, further directing the parties to bear their own costs in
this suit as per its judgment dated 3.12.1992.  Aggrieved, the  defendants  in
O.S.No.9216 of 198 9 and the plaintiffs in O.S.No.10171 of 1989 have preferred
both the above appeal suits on certain grounds such as :
        (i)that  the  Court  below ought to have seen that Ex.P1 is a spurious
document and the respondent cannot claim title to the property on the basis of
this document;
        (ii)that the Court below has erred in believing the  oral  gift  dated
2.2.1983 reduced in to writing as per Ex.P1 dated 3.2.1989;
        (iii)the Court below has failed to see that P.W.2 is the brother’s son
of respondent and an interested party to the respondent;
        (iv)the Court below has failed to see that the non examination of Syed
Rahmathullah Sahib is fatal to the oral gift set up by the respondent;
        (v)the Court below has further failed to see that in the first page of
Ex.P1  the  signature  of  Bismillah  Hussain has not been found and this goes
without proper explanation offered either by the respondent or by P.W.3  whose
evidence is highly artificial;
        (vi)the  Court  below  has  failed  to see that Bismillah Hussain died
within three months of the execution of Ex.P1 which is invalid  in  Mohammedan
Law and hence the Court below ought to have disbelieved the gift or Ex.P1;
        (vii)the Court below has further failed to see that the respondent has
not taken out proceeding for declaration of her title, but has prayed only for
bare  injunction,  but  the  lower  Court  has  treated  the  suit  as one for
declaration and has decreed O.S.No.9216 of 1989 further refusing the claim  of
partition by the appellants in their suit in O.S.No.10171 of 1989;

        14.   On  such  grounds  the appellants in both the above Appeal Suits
would pray to allow the Appeal Suits and dismiss the suit in O.S.No.921  6  of
1989 and decree the suit in O.S.No.10171 of 1989.

        15.  During arguments, the learned counsel appearing on behalf of  the
appellants  would submit that both the above appeals are directed respectively
against the common judgment and decree dated 3.12.1992 rendered in O.S.No.9216
of 1989 and 10171 of 1989 by the Court of  III  Assistant  Judge,  City  Civil
Court,  Madras;  that  while O.S.No.10171 of 19 89 was filed by the appellants
for partition and separate possession claiming their 26/36 shares in the  suit
properties,  the  other  suit  O.S.No.9216 of 1989 was filed by the respondent
herein for a  bare  injunction;  that  the  appellants  filed  their  suit  on
averments  such  as  originally  the  suit  property  belonged to one Mohammed
Hussain, father of the appellants and late Bismillah Hussain; that the  father
died  in  19  62  leaving  behind  Bismillah  Hussain and the appellants; that
regarding the shares Bismillah Hussain was entitled  to  half  share  and  the
appellants  each  entitled  to  1/4 share; that on 29.4.1965 Bismillah Hussain
purchased the land in his name and on 4.12.1967 the appellants released  their
half share in favour of their brother Bismillah Hussain and thus be became the
absolute  owner  of  the  suit properties; that on 27.2.1989 Bismillah Hussain
passed away leaving behind him his wife and his sisters  as  heirs;  that  the
respondent  is entitled to 1/4 share and the remaining goes to the appellants;
that the defence is that on 2.2.1989 there was a oral gift in  favour  of  the
respondent  and the same was reduced into writting on 3.2.1989; that the sworn
affidavit is marked as Ex.A1; that whether the  alleged  oral  gift  has  been
properly proved  or  not?    is  the  point  for consideration; that under the
Mohammedan law oral gift is accepted; that  the  appellants’  contentions  are
that  after  the  death of Bismillah Hussain the gift deed has been brought to
light by manipulation; that on 25.2.1989 Bismillah Hussain complained of chest
pain and on 27.2.1989 he died; that the deed is alleged to have  been  written
on  3.2.1989 pertaining to which suspicious circumstances prevail; that on the
40th day ceremony in April 1989, in the presence of every one no one  demanded
that there was a gift given by the deceased.
        16.   The  learned  counsel  would  further  submit  that the suit for
partition by the appellants was  dismissed  whereas  the  suit  for  permanent
injunction  restraining  the  appellants  from  interfering  with the peaceful
possession and enjoyment of the suit property by the respondent  was  decreed;
that though the gift was oral made on 2.2.1989 had got reduced into writing on
3.2.1989  is  the  case  of the respondent, citing instances from the relevant
paragraphs  of  the  plaint  and  the  judgment,  the  learned  counsel  would
ultimately  point  out  that at page 1 of Ex.A1 does not bear the signature of
the executant; that regarding Ex.A1 , P.W.1 the wife  says  that  her  husband
personally drafted the affidavit; that the language does not appear to be his;
that  he  says  that an agreement announcing the Mehar was entered into but it
was not marked; P.W.1 says that he himself was there present but  the  version
of  P.W.2  is  different,  thus the learned counsel would end up his arguments
citing from a judgment of the Hon’ble Apex court reported in AIR 19 76 SC  807
(KALE AND  OTHERS  v.  DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS) wherein it
is held that the family settlement must be a bona fide one so  as  to  resolve
family disputes and rival claims by a fair and equitable division or allotment
of properties  between  the  various  members  of  the  family.....   the said
settlement must be voluntary and should not be induced by fraud,  coercion  or
undue influence.

        17.  On the contrary, the learned counsel appearing on behalf  of  the
respondent  would  cite  two  judgments,  the  first one rendered by a learned
single Judge of the Panjab and Haryana High Court reported in 200 0(3) CCC 227
(P&H) (NIRMAL SINGH & ANR.  v.  BHAGWANT SINGH  &  ORS.)  following  the  Apex
Court Judgments delivered  in  MATURI PULLAIAH & ANR.  v.  MATURI NARASIMHAN &
ORS.(AIR 1966 S.C.1836) and yet another judgment in KALE & ORS.   v.    DEPUTY
DIRECTOR OF  CONSOLIDATION  &  ORS.  (supra) wherein in the first judgment the
Hon’ble Apex Court has held that:
The  family  arrangement  will  need  the  registration only if it creates any
interest in immovable property in presenti in favour of the parties  mentioned
therein.   In case, however, no such interest is created, the document will be
valid despite its non-registration and will not be hit by Section  17  of  the
Registration Act.

        18.  In the second case cited above, the Hon’ble Apex Court reiterated
the above principle with approval but enlarged the scope of an oral settlement
which is acted upon between the parties in the following observations:

The family arrangement may be even oral  in  which  case  no  registration  is
necessary.   The  registration  would  be  necessary  only if the terms of the
family arrangement are reduced into writing.  Here also a  distinction  should
be  made  between  a  document  containing  the terms and recitals of a family
arrangement made under the document and a mere memorandum prepared  after  the
family  arrangement had already been made either for the purpose of the record
or for information of the Court or making necessary mutation.  In such a  case
the  memorandum  itself  does not create or extinguish any rights in immovable
properties and is, therefore, not compulsorily registrable
        19.  Mulla’s Mohammedan law  Section  147  would  recite  writing  not
necessary:-  Writing  is  not  essential  to  the validity of a gift either of
movable or of immovable property.  A gift under the Mohammedan law  is  to  be
effected in  the  manner prescribed by the Mohammedan law.  If the formalities
prescribed by that law (s.150 below) are complied with, the gift is valid even
though it is not  effected  by  a  registered  instrument  and  though,  where
effected by an instrument, the instrument is not attested.

        20.   The  learned  counsel would also cite Section 67 of Evidence Act
wherein for proof of signature and  handwriting  of  person  alleged  to  have
signed  or written document produced (S.67(5)) ‘it is not material whether the
document is signed only at the first page or only the last page or whether  it
bears the  signature  of  the  executant  on all the pages of a document.  The
insertion of the name in any part of the writing, in a manner to  authenticate
the  instrument  is  sufficient, although the signature be in the beginning or
middle of the instrument it is as binding as if at the foot of it.’
On such arguments, the learned counsel would pray to dismiss  both  the  above
appeals with costs.

        21.   Based on the pleadings of the parties, the points determined for
consideration in the appeal suits are:

        i) Whether the Trial Court is right in decreeing the suit filed by the
respondent herein in O.S.No.9216 of 1989?

        ii) Whether the Trial Court is right in dismissing the suit  filed  by
the appellants herein in O.S.No.10171 of 1989?
        iii) What relief the parties are entitled to?

        22.   In  consideration  of  the  facts  pleaded, having regard to the
materials placed on record and upon hearing the learned counsel for both,  the
facts involved  in the appeal suits are simple.  The appellants claim title in
accordance with law on the death of their brother and hence the suit filed  by
them  was  for  partition and separate possession of their 26/36 shares of the
suit properties.  On the contrary, the respondent would file the suit for bare
injunction restraining the appellants from in any manner interfering with  her
peaceful  possession  and  enjoyment of the suit properties on ground that she
was entitled for such relief since the appellants have released  their  rights
in  the  suit  properties  in  favour of their deceased brother and that their
deceased brother who is none other than the husband of the respondent by  oral
gift  dated  2.2.1989  bequeathed  the entire properties in her favour and the
said gift also got reduced into writing on the subsequent  date  that  was  on
3.2.1989.

        23.  The trial Court having traced the facts as pleaded by parties  in
both the suits would frame three issues in O.S.No.9216 of 1989 as extracted in
para 9  supra.    Likewise it would frame three main issues and one additional
issue in O.S.No.10171 of 1989 which have also  been  extracted  in  para  No.9
supra and based on those issues would allow the parties to record evidence and
on  the  part  of the respondent, she would not only examine herself as P.W.1,
but also would examine two other witnesses as P.Ws.2 and 3 for  oral  evidence
and  would  adduce  clinching evidence pertaining to the oral gift made in her
favour by her husband on 2.2.1989 besides proving the  reducing  of  the  same
into writing  the  subsequent  date  that  was  on 3.2.1989.  Besides the oral
evidence on the part of the respondent, 11 documents would also be  marked  as
Exs.A1  to A11 which have been described in para 11 supra of which Ex.A1 dated
3.2.l989 is the sworn affidavit of Bismillah Hussain and crucial to  the  case
and  whether  this  document has been proved to the requirements of law and to
the satisfaction of the Court is still more important.  In her evidence, P.W.1
has categorically stated that her husband gave oral gift on 2.2.1989  and  the
same  had  been done by him in a sound disposing state of mind and at the time
of such gift, witnesses Fasiul Huq and Rahmathullah Sahib were present and the
said gift had been reduced into writing in the presence of the  Notary  Public
on 3.2.1989  and  would  mark  the said document as Ex.A1.  This witness would
further depose to the effect that in  the  gifted  property  there  are  three
tenants and under the gift he had also the right to collect rent and to change
all  the  records  in her favour and that her husband died on 27.2.1989 due to
heart attack.  She  would  also  mark  the  other  do  cuments  for  being  in
possession and  enjoyment  of  the suit property.  In the crossexamination she
would withstand and would confirm what she deposed in the  chief  examination.
One of the key witnesses to Ex.A1 would be examined as P.W.2 and he would also
confirm  the version of P.W.1 so far as the coming into being of Ex.A1 and the
gift given on the day prior to the same.  P.W.3 is one who attested Ex.A1  and
his  attestation  and  evidence  adduced  would help to declare genuineness of
Ex.A1 in not small measure, this witness  would  also  answer  minute  details
raised  in  the  cross-examination  and  therefore,  the lower Court has every
reason to believe that the  evidence  of  this  witness,  and  once  Ex.A1  is
trusted,  the  claim  of  the  appellants  automatically  goes  and hence easy
conclusions could be arrived at granting the relief  as  sought  for  in  O.S.
No.9216  of 1989 and dismissing the other suit in O.S.No.10171 of 1989 and the
same has been done by the trial Court rightly in appreciation of the  evidence
in the  proper  manner.    On  the other hand on the part of the appellants no
proper evidence would be adduced so as to demolish the case
of the other side encircling Ex.A1 and to establish their own case and even on
appeal  the judgment cited on the part of the respondent would go well in tune
with the case of the respondent so far as the gift dated 2.2.1989 orally given
by the deceased in favour of the respondent was  concerned  and  the  reducing
into writing of the same the subsequent date, since it is a family arrangement
and  supported  by these judgments and the dictum of law quoted from Mulla and
the relavant provision of  the  Evidence  Act  all  put  together  would  only
consolidate   the   decision  of  the  lower  Court  and  therefore  in  these
circumstances this Court cannot arrive at a different conclusion than that  of
one arrived at by the lower Court and hence the following judgment:
        In result,
        (i) both the above appeals fail and they are dismissed;
        (ii)   the   common  judgment  and  decree  dated  3.12.1992  made  in
O.S.No.9216 of 1989 and O.S.No.10171 of 1989 by the  Court  of  III  Assistant
Judge, City Civil Court, Madras are hereby confirmed;
        (iii)  however,  in  the  circumstances of the case, there shall be no
order as to costs.

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