This is an appeal preferred by the unsuccessful appellant in A.S.No.32 of 2005 on the file of the learned Principal District Judge, Dindigul confirming the judgment and decree of the Additional Sub Court, Dindigul dated 09.08.2005 in O.S.No.260 of 2002.
2. The appellant is the son of the first respondent in her first marriage and the second respondent is also the son born to the first respondent in her second marriage with one Sheik Dawood.
3. The appellant laid a suit before the trial Court for a judgment and decree of partition of the suit property into 16 shares and for separate allotment of his 7 shares and also for a permanent injunction restraining the respondents 1 and 2 from alienating or mortgaging the suit property.
4. According to the appellant, the subject matter of the property was purchased by the first respondent by using the money paid by the father of the appellant at the time of Talaq and since the first respondent has no independent source of income, it has to be considered that the property was purchased out of the said sum of Rs.4,000/- paid at the time of divorce and as such, the appellant has got 7 shares in the property, which is liable to be partitioned. The appellant further contended that a house was constructed in the said property and the loan taken for construction of the house was, in fact, paid by the appellant and he was also staying in the suit property and it was he who performed the marriage of the second respondent on 09.12.1998. It is his further case that after the marriage of the second respondent, the whole problem began, which ultimately culminated in filing the present suit for partition.
5. The first respondent resisted the suit on the ground that the property was purchased with the mahar given by her second husband at the time of her second marriage and the details leading to the purchase of the property is found mentioned in paragraphs-3 and 4 of the written statement. It is the further case of the first respondent that she mortgaged the property in favour of the Dindigul Town Co-operative Society and obtained a loan and the construction was also made with the funds so borrowed and as such, according to the first respondent, the appellant has no right, title or interest in respect of the suit property. It is further contended that the first respondent has gifted the property to the second respondent and as such, there is nothing to be partitioned and accordingly, prayed for dismissal of the suit.
6. The trial Court framed issues in accordance with the pleadings and answered the issues against the appellant and dismissed the suit as per judgment and decree dated 09.08.2005 in O.S.No.260 of 2002.
7. The appellant challenged the judgment and decree of the trial Court before the Principal District Court, Dindigul and the learned Principal District Judge considered the appeal in accordance with the pleadings and evidence on record and ultimately dismissed the appeal by confirming the judgment and decree of the Court below as per judgment and decree dated 28.09.2006 in A.S.No.32 of 2005.
8. Aggrieved by the concurrent findings of the Courts below, this second appeal has been preferred by the appellant.
9. The following substantial question of law is framed in the second appeal:
"Whether the findings of the Court below with respect to the acquisition of property by the first respondent by using her self-acquired funds could be termed as perverse based on no evidence?"
10. In the above factual matrix, I have heard Mr.Venkatasamy, learned counsel appearing for the appellant and Mr.V.Sundararajan, learned counsel appearing for the respondents.
11. The appellant claims right over the property on the ground that the schedule property was purchased by the first respondent with the money paid by the father of the appellant during the time of Talaq, which according to him, was to the tune of Rs.4,000/- in the year 1961. The appellant tries to justify his claim also on the ground that he stayed in the property and the residential house in the property was constructed with the funds provided by him and he had also discharged the loan taken by the first respondent for constructing the house.
12. Per contra, it is the case of the first respondent that during the time of her second marriage, her second husband paid her mahar and the said amount was used for purchasing the suit property and she narrated the course of events leading to her purchase of the plaint schedule property in paragraphs 3 and 4 of the written statement. The first respondent also produced document to show that she took a loan of Rs.10,000/- from the Dindigul Town Co-operative Society as per Ex.B.10 and according to her, the said loan was taken for the purpose of construction of the house. It is also the case of the first respondent that prior to Ex.B.10, she also took a loan by mortgaging the property as per Ex.B.6 and the same was redeemed subsequently as per Ex.B.7 dated 11.11.1978. While she was in possession and enjoyment of the property, she made a gift of the property to the second respondent, who is the son born in her second marriage.
13. The learned counsel for the appellant contended that during her evidence before the trial Court, the first respondent did not say in so many words with respect to the source of her funds for purchasing the suit property and as such, it is to be held that the property was purchased with the funds given by the first husband at the time of Talaq, inasmuch as the first respondent has no other independent source of income.
14. The Court below considered the entire aspect of the matter by framing necessary issues and answering the same on the basis of the available evidence on record and arrived at a correct conclusion that the suit property was purchased by the first respondent with her funds and that the appellant failed to prove that the same was purchased by using the amount paid by the father of the appellant at the time of Talaq.
15. The Court below also found that the gift of the schedule property made by the first respondent in favour of the second respondent is valid, as the gift satisfies the ingredients for a valid Hiba as per the Mohammedan Law.
16. The findings of the Court below are based on admissible evidence on record and since the trial Court as well as the first appellate Court considered and answered the issues on the basis of the pleadings and evidence adduced, the said finding cannot be said to be perverse warranting interference in an appeal under Section 100 of the Code of Civil Procedure.
17. It is trite law that in a given circumstances, two inferences are possible and the first appellate Court has taken a particular view, the same is not liable to be interfered in an appeal under Section 100 of the Code of Civil Procedure, since the first appellate Court is the final Court of facts exercising jurisdiction under Section 96 of the Code of Civil Procedure. Therefore, unless the finding is proved to be perverse or on the basis of misconstruction of documents, the appellate Court is not justified in interfering with such factual findings.
18. So far as the present appeal is concerned, the appellant has not discharged his burden with respect to the acquisition of property by the first respondent using the funds provided by the father of the appellant at the time of Talaq. Similarly, the appellant has not produced any acceptable evidence to show that the gift of the property by the first respondent in favour of the second respondent is invalid. In the absence of discharge of the initial burden by the appellant, it cannot be said that the findings of the trial Court as well as the first appellate Court, on appreciation of facts, are wrong justifying interference by this Court.
19. Therefore, I do not find any merit in the second appeal and accordingly the appeal is dismissed. But, however, in the facts and circumstances of the case, there will be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.
SML To
1.The Principal District Court, Dindigul.
2.The Additional Sub Court, Dindigul.