The civil revision petition is directed against the fair and decreetal orders, dated 20.12.2006, passed in I.A.No.207 of 2001 in O.S.No.276 of 1992, on the file of the I Additional Sub Court, Tirunelveli.
2. The petitioner / plaintiff has laid the suit against the respondents / defendants for declaration that the second schedule property belongs to her absolutely and for the consequential direction to the respondents / defendants to deliver the possession of the same to her or in the alternative, for partition and separate possession of 1/6th share in the second schedule property to her by metes and bounds and also sought for the direction to the respondents / respondents / defendants to pay mesne profits from the date of the plaint till the date of delivery of possession and for other reliefs.
3. For the sake of convenience, the parties are referred to as per the nomenclature in the suit.
4. The case of the plaintiff, in brief, is that the suit schedule properties originally belonged to her grandmother Fathima Beevi and that she had sold the second schedule of the suit properties to the plaintiff, under a registered sale deed, dated 14.11.1990. The plaintiff is the granddaughter of Fathima Beevi and the first defendant is the daughter-in-law of Fathima Beevi and the defendants 2 to 6 are the children of the first defendant. The first defendant's husband and the father of the defendants 2 to 6, namely, the deceased Kaja Mohideen had, taking advantage of staying of the said Fathima Beevi with him and by exercising undue influence and coercion, obtained a gift deed from her on 24.04.1982 without disclosing the nature of the transaction to her and further the said gift deed had not been acted upon and the possession of the property comprised therein had not been delivered to the deceased Kaja Mohideen and Fathima beevi retained the possession of the property with her during her lifetime and the gift deed is not a valid one and hence, according to the plaintiff, inasmuch as Fathima Beevi had sold the second schedule property to her by way of the sale deed, dated 14.11.1990, she is entitled to the said property and hence, sought for the declaration as regards the said property. Further, according to the plaintiff, if the Court, for any reason, comes to the conclusion that the gift deed, dated 24.04.1982, said to have been executed in favour of the deceased Kaja Mohideen, is valid, Fathima Beevi, who is the mother of the deceased Kaja Mohideen, is entitled to 1/6th share in the property concerned and the plaintiff as the purchaser of the property concerned is entitled to 1/6th share and hence, alternatively, sought for the relief of partition and separate possession of 1/6th share in the property concerned.
5. The case of the plaintiff was resisted by the defendants contending that Fathima Beevi and her son had been living under the same roof and out of the love and affection, Fathima Beevi had executed the gift deed, dated 24.04.1982 in favour of Kaja Mohideen and living with Kaja Mohideen all along and accordingly, she had reserved the possession of the property during her lifetime and hence, there is no occasion for the delivery of the property to Kaja Mohideen and the gift deed, dated 24.04.1982, is true and valid and it is false to state that Fathima Beevi had sold the property in question to the plaintiff by way of the sale deed, dated 14.11.1990 and when Fathima Beevi had already gifted the property to the deceased Kaja Mohideen, the sale deed, dated 14.11.1990, is not true, valid and binding on the defendants. The defendants being the legal heirs of the deceased Kaja Mohideen are entitled to the property by way of the gift deed, dated 24.04.1982, and hence, the plaintiff is not entitled to obtain any of the reliefs sought for in the plaint.
6. With the above said pleadings, the parties went for trial and it is found that the following issues were framed by the Court below for determination: i. Whether the plaintiff is entitled to seek the reliefs of declaration and possession and mesne profits as regards the second schedule property as against the defendants or in the alternative entitled to obtain the reliefs of partition and separate possession of 1/6th share in the second schedule property?
ii. Whether the gift deed, dated 24.04.1982, had been obtained from Fathima Beevi fraudulently and the same had not been acted upon? iii. Whether the second schedule property had been conveyed by the deceased Fathima Beevi in favour of the plaintiff under the sale deed, dated 14.11.1990 and the said sale deed is valid one?
iv. Whether the suit schedule properties belonged to Fathima Beevi by way of hiba executed by her father?
7. In support of the plaintiff's case, P.W.1 was examined and Exs.A1 to A4 were marked and on the side of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to 23 were marked.
8. The Court below, on a consideration of the rival contentions put forth by the respective parties and the materials placed, under Issue No.II, held that the gift deed, dated 24.04.1982, marked as Ex.A4 is not valid; under Issue No.III held that the sale deed, dated 14.11.1990, marked as Ex.A1, executed in favour of the plaintiff by Fathima Beevi, is valid and under Issue No.I holding that the defendants have failed to establish the validity of the gift deed, dated 24.04.1982 and also holding that the defendants have failed to establish that the sale deed, dated 14.11.1990, is invalid and accordingly holding that Fathima Beevi is entitled to alienate her 1/6th share in the second schedule property to the plaintiff, accordingly, answered all the issues framed for determination in favour of the plaintiff and resultantly, granted the alternative relief sought for by the plaintiff and passed a preliminary decree in favour of the plaintiff accordingly.
9. It is found that the plaintiff finding that the Court below having upheld her sale deed and declaring the gift deed projected by the defendants as an invalid document contending that the Court below on the basis of the above said findings should have granted the main relief sought for by her in the plaint i.e., declaratory relief that she is entitled to the second schedule property absolutely and to the possession thereof and inasmuch as the Court below had only granted the alternative relief of partition and the said determination of the Court below being a mistake or error apparent on the face of the record, moved for the review of the Judgment and Decree by way of an application in I.A.No.207 of 2001. The above application was resisted by the defendants contending that the Court below had erred in holding that the sale deed is valid and had granted the relief of partition based upon the materials placed before the Court and the defendants are also contemplating to prefer an appeal and on account of the pendency of the review application, they are reserving their right and hence, the Judgment and Decree of the Court below do not call for any interference or review and hence, the application is liable to be dismissed.
10. The Court below, on a consideration of the rival contentions put forth by the respective parties, finding that as per the Judgment and Decree, the Court had upheld the sale deed executed in favour of the plaintiff only to the extent of 1/6th share, accordingly, granted the preliminary decree as sought for by the plaintiff alternatively and thus, holding that the above determination is not a mistake or error apparent on the face of the record, discountenanced the review application preferred by the plaintiff. Aggrieved over the same, the present civil revision petition has been laid.
11. As adverted to above, the specific finding of the Court below is that the gift deed, dated 24.04.1982, on the basis of which, the defendants claim title to the property concerned is invalid. It is, therefore, found that the Court below has negatived the right of the defendants to the property in question by way of the gift deed projected by them holding that the same is an invalid document. The plaintiff has claimed right to the property in question by way of the sale deed executed in her favour by Fathima Beevi on 14.11.1990. The Court below had held that the above said sale deed is valid and that the defendants have failed to establish that the above said sale deed is an invalid one, accordingly, answered the relevant issues in favour of the plaintiff.
12. The plaintiff has sought for the relief of declaration as regards the property in question and consequently, recovery of possession of the same from the defendants as the main reliefs on the basis of the sale deed, dated 14.11.1990 and impugning the gift deed, dated 24.04.1982. She has sought for the alternative relief of partition, in case the Court comes to the conclusion that the gift deed, dated 24.04.1982, is valid. When it has been found by the Court below that the gift deed, dated 24.04.1982, is not valid as per law and when further the Court below has clearly held that the sale deed executed in favour of the plaintiff, dated 14.11.1990, is valid and binding on the defendants and that the defendants have not established that the above said sale deed is invalid on any account, as rightly contended by the learned counsel for the plaintiff, the Court below in the normal course of events, as per the answers given by it to the issues framed in the suit, should have only granted the main relief of declaration and possession sought for by the plaintiff and on the other hand, it is found that the Court below, after declaring that the gift deed, dated 24.04.1982, is invalid and declaring the sale deed, dated 14.11.1990, is valid, erroneously seems to have held that the deceased Fathima Beevi being entitled to alienate 1/6th share in the property concerned, finally culminated the suit by granting the alternative relief of partition sought for by the plaintiff. When it is not in dispute amongst the parties that Fathima Beevi is the original owner of the property in question and when the plaintiff claims title to the property in question by way of her sale deed and when the defendants claims title to the property by way of the gift deed, dated 24.04.1982 and when the gift deed had been declared to be an invalid document and the sale deed had been declared to be a valid document, as rightly argued by the learned counsel for the plaintiff, the Court below had committed a mistake that the deceased Fathima Beevi had conveyed only 1/6th share in the property in question under the sale deed, dated 14.11.1990. The above said mistake or error being apparent on the face of the record vis-a-vis the answers given by the Court to the issues framed in the suit, it is found that the plaintiff is entitled to seek for the review of the Judgment and Decree accordingly and in such view of the matter, it is found that the plaintiff has been necessitated to move for the review of the same.
13. In support of his contentions, the learned counsel for the petitioner / plaintiff has placed reliance upon the decision reported in 2016-2-L.W.740 [Sukumaran vs. Madhava Shastri (Died) and others]. The principles of law outlined in the above cited decision are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
14. In the light of the above discussions, the Court below, while disposing of the review application, again in an erroneous manner holding that Fathima Beevi had conveyed only 1/6th share in the property concerned to the plaintiff, dismissed the review application and the same had been necessitated the plaintiff to prefer the present civil revision petition.
15. In view of the above discussions, considering the nature of the pleadings set out by the respective parties and the answers given by the Court below to the issues framed in the suit and all the issues having been answered in favour of the plaintiff and the plaintiff having sought for the relief of partition only in the alternative in the event of the Court coming to the conclusion that the gift deed, dated 24.04.1982, is true and valid and the said point also being determined against the defendants, it is found that the Court below should have granted the main reliefs of declaration and possession as sought for by the plaintiff and therefore, it is very apparent that the Court below by mistake instead of granting the main relief had granted only the alternative relief sought for by the plaintiff. In such view of the matter, the review application preferred by the plaintiff does merit acceptance.
16. In conclusion, the fair and decreetal orders, dated 20.12.2006, passed in I.A.No.207 of 2001 in O.S.No.276 of 1992, on the file of the I Additional Sub Court, Tirunelveli, are set aside and the application in I.A.No.207 of 2001 is allowed and consequently, the Judgment and Decree, dated 21.11.1996, passed in O.S.No.276 of 1992, on the file of the I Additional Sub Court, Tirunelveli, are modified to the effect that the plaintiff is entitled for declaration that the second schedule property belongs to her absolutely and consequently, she is entitled to recover the possession of the same from the defendants. Time for handing over the possession of the property concerned is three months. Further, the plaintiff is entitled to recover the mesne profits from the defendants as claimed and the enquiry as regards the mesne profits is ordered to be relegated and determined vide separate proceedings under Order XX Rule 12 of the Code of Civil Procedure. Resultantly, the civil revision is allowed with costs.
To:
The I Additional Sub Judge, Tirunelveli.