This is an appeal by the first defendant S.A. Fatima Bivi Ammal against the judgement and decree dated 12th day of July, 1979 in O.S. No. 29 of 1976 on the file of the Court of the learned Subordinate Judge, Kumbakonam granting a preliminary decree declaring that the plaintiff S.A. Fatima Bivi is entitled to 1/8th panga in respect of the suit Items 1 and 2, half share in respect of suit Items 3 to 12 and for delivery of possession of suit Items 13 to 18, given in the plaint schedule. The division by metes and bounds and the ascertainment of future m6sne profits were relegated to the final decree proceedings. One month's time was granted for delivery of possession of Items 13 to 18 of the plaint schedule. In view of the relationship of the parties and in the special circumstances of the case, the parties were directed to bear their own costs in the suit.


2. The suit was laid by the plaintiff for partition for 1/8th pangu in respect of items 1 and 2. 1/2 share in items 3 to 12, for possession of items 13 to 18, for future profits and for costs of the suit.


3. The case of the plaintiff as put forward the plaint is as follows :- The suit properties originally belonged to one Hajee S.M. Abdul Kader Rowther, father of the plaintiff and the 1st defendant, and their mother Julaika Bivi Ammal, wife of the said Abdul Kader Rowther. Under a settlement deed dated 24-12-1968, the said properties have been settled on the plaintiff and the 1st defendant out of natural love and affection, and the said document was given to the plaintiff and possession also ceased to exist in the donors, and the donees accepted the gift, and the net income therefrom were shared by the plaintiff and 1st defendant. Since the house property shown as D. Schedule in the said settlement deed, is in possession of the plaintiff alone, she has not included the same in the suit. Due to misunderstandings between the plaintiff on the one hand, and the 1st defendant and their mother on the other, the plaintiff wanted partition and separate possession of her share in the suit properties. The first defendant was evading for such division. Without the consent of the plaintiff the first defendant sold lands in Vadakku Mangudi village to defendants 2 to 10 between Dec., 1974 and Mar. 1975. Since it is a collusive transaction, without the knowledge and consent of the plaintiff, the said sales are not binding on the plaintiff. The plaintiff is in joint possession of the suit properties with the first defendant. Items 1 and 2 are grama Samudayam lands, items 3 to 12 are common properties and items 15 to 18 belong to the plaintiff. The 1st defendant is bound to pay mesne profits from the date of plaint till delivery of possession. Hence the suit.


4. The first defendant/appellant herein filed her written statement containing the following contentions : The truth, validity and enforceability of the settlement deed dated 24-12-1968 is denied. It was not accepted as gift by the donees and they were not put in possession of the properties, nor the rights of the donors ceased thereafter. Abdul Khader settled the properties including the house on Julaika Bivi under a document dated 14-10-49. She has to enjoy the income till her life and after that, the plaintiff and the first defendant and their sons have to take the same. The settlement deed dated 24-12-1968 is not in terms with the prior settlement deed. A joint gift to two donees without division is invalid. Since this defendant did not accept the settlement of 1968, since the valuable house property has not been given to her, there was a panchayat by six persons in the middle of 1970 wherein it was decided that the house should go to the plaintiff and the entire lands in Vadakku Mangudi village should be taken by the 1st defendant, who has to pay off the loan incurred by her father for erecting filter point. The rest of the settlement properties were allowed to continue as before. This arrangement was accepted by the plaintiff as well as the 1st defendant and thereafter, patta was changed and portions of R.S. 191/2 were sold by the first defendant in her exclusive right. It seems by mistake, the said arrangement has been omitted to be mentioned in the sale deeds. The allegation that the plaintiff is in. joint possession of the suit properties, is not correct and no possession was delivered to the plaintiff. Samudayam properties are not particle and items 15 to 17 of the Plaint are not trust properties but only charged with a liability to feed the poor. No question of mesne profits can arise, since most of the properties, except Vadakku Mangudi village properties, are entitled to be enjoyed by Julaika Bivi. When the lawyer's notice was given to Julaika Bivi, she agreed to take care of the matter and hence, no reply was given. Only after Panchayat arrangement, plaintiff got 1968 settlement for effecting change of registry for the house. The valuation of the suit is not correct. The suit is bad for non-joinder of lessees and Julaika Bivi. The plaintiff is not entitled to any relief and hence. the suit has to be dismissed with costs.


5. The contentions raised in the written statement of defendant 2 Padma Bivi Ammal, defendant 6 Ojir Bivi Ammal, defendant 7 Jaibunnisa and defendant 10 T.N. Halima Bivi Ammal are as follows : The defendants 2, 6, 7 and 10 have purchased portions of R.S. 191/2 in Vadakku Mangudi vattam from the 1st defendant, relying upon the assurance of the plaintiff and her husband. The first defendant alone was the absolute owner of the same. Hence, they are bona fide purchasers for value and even if the Courts held that the plaintiff is entitled to a share in the said property, these defendants are entitled to equity. Hence, they prayed that the suit may be dismissed with their costs.


6. The contentions of defendant Mohammed Iqbal Batcha and defendant A.D.A Noorjahan, Minor in their separate written statements are the same as the averments in the written statement filed by defendants 2, 6, 7 and 10. Besides, they adopted the written statement of the 1st defendant.


7. The defendants 4, 8 and 9 Abdul Latiff, Raj Mohammed and V.A. Abdul Kareem Rowther respectively remained ex parte in the trial Court.


8. The following issues were framed for trial :


1. Whether the settlement deed of Abdul Khader Rowther and Julaika Bivi dated 24- 12-68 is true and valid ?


2. Whether the same was accepted by the donees and possession passed to them ?


3. Whether the plaintiff is entitled to the shares claimed in the plaint ?


4. Whether the arrangement put forward by the defendants in respect of S. No. 191/2 is true ?


5. Whether Court fee paid is not correct ?


6. Whether the suit is bad for non-joinder of lessees and Julaika Bivi ?


7. To what relief is the plaintiff entitled ?


9. The plaintiff Fathima Bivi examined herself as P.W. 1 and filed Exs. A.1 to A.26, Ex.A.1 is the registered settlement deed dated 23-12-1968 by Abdul Khader and Julaika Bivi in favour of 1st defendant and the plaintiff. Ex.A.2 is copy of notice dated 4-8-75 issued by the. plaintiffs advocate to the 1st defendant. Ex.A.3 is the postal acknowledgment dated 5-8-75 signed by 1st defendant. Ex.A.4 to Ex.A.12 dated 5-12-74, 5-12-74, 7-12-74, 7-12-74, 20-12-74, 21-12-74, 21-12-74, 22-3-75 and 22-3-75 respectively are the registration copy of sale deed executed by first defendant in favour of A.D. A. Md. Iqbal Batcha, 5th defendant, P.N. Abdul Latiff Rowther, 2nd defendant, 6th defendant, 7th defendant, S.H. Raj Mohammed, V.A. Abdul Karim and 10th defendant respectively. Ex.A.13, is the kist receipt dated 5-2-1976 for Fasli 1385 and Exs.A.14 and A.16 are similar kist receipts dated 14-2-1976, 18-4-76 and 19-4-76 respectively. Exs.A.17 to A.24 are the postal acknowledgments signed by various, defendants. Ex.A.25 dated 19-8-1975 is the notice issued by the 1st defendant's advocate to plaintiff and 10th defendant. Ex.A.26 is the copy of notice dated 26-8-76 issued by the plaintiffs advocate to the first defendant's advocate. On behalf of the defendants, D.W. 1 Krishnamurthy Iyer, D.W. 2 Shahul Hameed, D.W. 3 Sha, D.W. 4 Kuzhanthai, attender in the Village Co-operative Agricultural Credit Society, Pandaravadai, D.W.5 Habeeh Mohammed, Clerk, Rajagiri Panchayat Board. D.W.6 Kalimoorthy and D.W.7 Nizamuddin were examined. Ex.B.1, letter dated 9-12-1966 written by S.M. Abdul Kader to K.K. Krishnamurthy Iyer, Ex.B.2 certified copy of adangal account of 103, Vadakku Mangudi village for Fasli 1385, Ex.B.6 and Ex.B.7 certified copy of adangal account of Ponmainda Nallur Village and Mela Semmangudi village for Fasli 1385, Ex.B.8, copy of order of sanction of loan to Abdul Kader, Ex.B.9, copy of security bond executed by Abdul Kader, Exs.B.10 and B.11 dated 16-2-1972 chalan receipts for remitting Rs. 177/- and Its. 420/- respectively by M.A. Sahul Hameed, Exs.B.12 to B.19 receipts for payment of loan for P.T. well, Ex.B.20 registered general power deed dated 4-9-56 executed by Julaika Bivi, 1st defendant and ! plaintiff to S.M. Abdul Rowther, Ex.B.21 registered sale deed dated 4-3-1933 by Packiri Md. Rowther, Power Agent of Amir Batcha in favour of Abdul Kader, Exs.B.22 and B.23 registered sale deed executed by Vaithilingam Pillai dated 29-9-30 and 24-7-30 respectively in favour of Abdul Kader, Ex.B.24 Levy notice issued to S.M. Hallima Bivi, Ex.B.25 registered sale deed dated 5-12-74 executed by 1st defendant to A.D.A. Mohammed Iqbal Batcha, Ex.B.26 similar registered sale deed in favour of 5th defendant, Exs.B.27 to B.33 similar registered sale deeds executed by the first defendant on various dates in favour of 2nd defendant, P.N. Abdul Latiff Rowther, 6th defendant, 7th defendant, S.H. Raj Mohammed, 10th defendant and 9th defendant respectively, Ex.B.34 and Ex.B.35 manure card issued to Shahul Hameed by Agaramangudi village Co-op. Agri. Credit Society, Ex.B.36 Entry No.81 in the name of Abdul Kader Rowther in the Property Tax Register of Rajagiri Panchayat and Ex.B.37 Entry 81 in the name of Fathima Bivi Ammal in the said Property Tax Demand Register were filed.


10. On the consideration of the above evidence available on record both oral and documentary, the trial Court held under issue Nos. 1, 2 and 4 that Ex.A.1 is true and valid and it was acted upon and it was also accepted by the donees and possession also was transferred to the donees. The trial Court further held that the family arrangement pleaded by the 1st defendant is not true. Hence, these issues were answered in favour of the plaintiff. Under issue No. 3 the trial Court held that the purchasers, defendants 2 to 10 are not bona fide purchasers and so they were not entitled to any equity and the plaintiff is entitled to the share as prayed for in the suit. Hence this issue was answered in favour of the plaintiff. Under issue No. 5, the trial Court held that the court-fee paid is correct and the said issue was answered in favour of the plaintiff. Under issue No. 6, the trial Court held that the suit, as framed, is not bad for non-joinder of necessary parties and hence the said issue was answered in favour of the plaintiff. Under issue No. 7, the trial Court granted a preliminary decree declaring that the plaintiff is entitled to 1/8th pangu in respect of the suit items 1 and 2, half share in respect of suit items 3 to 12 and for delivery of possession of suit items 13 to 18, given in the plaint schedule. The division by metes and bounds and the ascertainment of future mense profits were relegated to the final decree proceedings. One month's time was granted for delivery of possession of items 13 to 18 of the plaint schedule as mentioned above. The parties were directed to bear their own costs in the suit. Aggrieved by the above decision of the trial Court, the first defendant has come forward with this appeal inter alia contending that the court below overlooked that the undivided share gifted to the two donees under Ex.A.1 is not valid in law. Mr. T. Srinivasan, the learned counsel appearing for the appellant inter alia contended that the decision in Kairum Bi v. Mariam Bi, 1960 AIR(Mad) 447 had not been properly appreciated by the trial Court. He also contended that the judgement of the trial Court is vitiated by its failure to frame the issue whether the registered settlement deed dated 14-10-1949 (Ex.B.1) executed by Abdul Khader Rowther in favour of Julaika Bivi Ammal is'true and valid'. He also pointed out that the evidence available both oral and documentary was not properly appreciated in the light of the contentions raised on behalf of the appellant herein.


11. The point for consideration is whether the plaintiff has established that she is entitled for a share as claimed by her in the property concerned, i.e. 1/8th pangu in respect of the suit items 1 and 2, half share in respect of suit items 3 to 12, for delivery of possession of suit items 13 to 18 and for future profits as against the claim put forward by the first defendant/appellant herein in particular ?


12. There is no distinction in the Mohamedan law of inheritance between movable and immovable property or between ancestral and self-acquired property. There is no such thing as a joint Mohamedan family nor does the law recognize a tenancy in common in a Mohamedan family. In a Mahomedan family there is a presumption that the cash and household furniture belong to the husband. The decisions in Abdul Rashid v. Sirajuddin, (1933) 145 Ind Cas 461 : 1933 AIR(All) 206) and Ma Khatun v. Ma Bibi, 1933 AIR(Rang) 393 : 149 Ind Cas 654 and the decisions in Abdul Wahid v. Nuran Bibi, 1885 (11) ILR(Cal) 597 : 12 Ind App 91, Humeeda v. Budhim, (1872) 17 Suth WR 525, Hasan Ali v. Nazo. (1889) ILR 11 All 456and Abdool v. Goolam, 1905 (30) ILR(Bom) 304 lay down the principle that the right of an heir apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor.


13. The Koran declares that the male child is entitled to the share of two females. Therefore when a man dies leaving a single child or several children, male or female, no other person is entitled to inherit, and the children take in accordance with the rule that the male takes the double share. For instance, if there are two sons and a daughter, the estate shall be divided into five equal shares, the sons shall take two shares each, and the daughter, one share, i.e. 2/5, 2/5 and 1/5, respectively (vide : page 97, Chapter V, Inheritance in Compendium of Fatimid Law by Asaf A.A. Fyzee, 1969 Edition - Indian Institution of Advanced Study, Simla). Under topic'the law relating to gifts' in Chapter I, Vol. I of Mohammedan Law by Syed Ameer Ali, IV Edition, reprinted 1985, the following passage occurs relating to the concept of property under Mahommedan Law :



"Under the Mahommedan Law, there is no distinction between ancestral and self-acquired property. The owner for the time being. has absolute dominion over all property in his possession, whether he has acquired it himself or whether it has devolved upon him by inheritance. He can sell or dispose of it in any way, he likes, provided operation is given to the transaction in his lifetime. It is only with regard to dispositions intended to take effect after the owner's death or made when he is suffering from a malady which creates in his mind the fear of death that his power of disposition is limited by the right of his heirs and restricted to a third.


This restriction on the disposing powers of a Mohammedan is referred to (in) the following terms by the Privy Council in the case of Rani Khujoor-Unnissa v. Mussamut Roushan Jehan, (1876) 3 Ind App 291 : ILR 2 Cal 184.


'The policy of the Mahommedan law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger. But it also appears that a holder of property may, to a certain extent, defeat the policy of the law by giving in his lifetime the whole or any part of his property to one of his sons, provided he complies with certain forms.'


This restriction, which is not without analogy in certain European systems (see Peterson's English and Scotch Law (1860) pp. 223-224) is surrounded with conditions which require great attention in the study of the Mussulman Law.


Dispositions of property divide themselves under two heads, viz., :-


(1) Dispositions inter vivos.


(2) Dispositions which are in their nature testamentary and which are not intended to operate until after the death of the person disposing. A disposition, however, made at a time when the disposer was suffering from a disease, which is technically called "death-illness"(marz-ul-mout) is treated as a testamentary disposition." *


14. The 1st respondent S.A. Fatima Bivi and the appellant are the daughters of one Abdul Khader, Julaika Bivi is their mother. It is the case of the 1st respondent that Abdul Khadar and Julaika Bivi, executed a settlement deed on 24-12-1968 settling the suit properties in favour of the 1st respondent and the appellant, that both the 1st respondent and the appellant accepted the said settlement deed, that possession also was transferred to them, that the appellant through her son, is in enjoyment of the entire suit properties on her behalf and on behalf of the plaintiff, that the income from the suit properties and the joint properties is being divided between the 1st respondent and the appellant that certain items, which are given to the 1st respondent under the settlement deed, are also in the enjoyment of the appellant through her son on behalf of the 1st respondent, that misunderstanding arose between the 1st respondent and the appellant and thereafter, she is not delivering the income that, therefore, the 1st respondent wanted division of the properties but the appellant is not amenable for such division and that, therefore, she has filed the suit.


15. On the other hand, the appellant would contend that the said settlement deed is not true and valid. According to her during the lifetime of Abdul Khader, there was a panchayat and in that panchayat, it was decided that the plaintiff 1st respondent should take the house at Rajagiri, in its entirety and in lieu of the same, the lands situate at Vadakku Mangudi must be given to the appellant and accordingly in pursuance of the said arrangement, the 1st respondent was in enjoyment of the Rajagiri house absolutely and the appellant was in enjoyment of the entire lands at Vadakku Mangudi village. It is her case that the said settlement deed was not acted upon and she also never accepted the said settlement deed, since under the said deed, the entire house was given to the 1st respondent. Thus, the appellant would attack the truth and validity of the settlement deed.


16. In the year, 1949, Abdul Khader executed a settlement creating life interest in favour of his wife, Julaika Bivi and absolute right in favour of the 1st respondent and the appellant and even the said properties were also included in the 1968 settlement deed. It is contended by the appellant that since the terms which found a place in the subsequent settlement deed the subsequent settlement deed is not valid in law.


17. It is relevant in this connection to note that the circumstances of the case would clearly prove that the earlier settlement was not acted upon and that therefore, the subsequent settlement deed, which came into existence in the year 1968, is valid in levy. Subsequent to the said settlement deed, Abdul Khader, his wife, plaintiff and the 1st defendant, have jointly sold away some portions in R.S. No. 191/2 under the original of Ex.B. 2 sale deed dated 6-4-68 in favour of one Abdul Rahman Rowther. The said property is also one of the properties covered by the settlement deed, Ex.B. 1 which is the registered settlement deed dated I4-10-49. If this Ex.B. 1 was acted upon, there was no necessity for selling the said property by all the four persons jointly. This factor itself would clearly prove that the said settlement deed Ex.B. 1 was not acted upon.


18. It is also relevant in this connection to note that the 1st respondent has given notice to the appellant and other defendants before institution of the suit, who are the subsequent purchasers of properties situate at Vadakku Mangudi under the original of Ex.A. 2 dated 4-8-75. After the receipt of the said notice, the appellant has not given any reply. Under Ex.A. 2, the 1st respondent has claimed right and title over the suit properties only under Ex.A. 1, the latter settlement deed executed by Abdul Khader and his wife dated 24-12-68 and she has also stated that the said settlement was handed over to her. Even then, the appellant has not chosen to give any reply attacking the validity or otherwise of Ex.A.1. This factor also would probabilise the fact that the earlier settlement deed was not acted upon. It is the contention of the appellant that after the receipt of notice, she informed about the receipt of the notice to her mother, Julaika Bivi, who is living with her and her mother Julaika Bivi told her that she would take action and that, therefore, she did not give any reply. The further case of the appellant is that her mother herself has given notice to both the 1st respondent and the appellant under Ex.A. 25, stating that the settlement deed dated 25-2-1968 is invalid and no possession was given to the donees as per the same. Under Ex.A. 25, even though the execution of Ex.A. 1 settlement deed by Julaika Bivi and her husband is admitted, the previous settlement deed Ex.B. 1 is not at all mentioned. If actually the said settlement deed Ex.B. 1 was acted upon, definitely, the mother would have stated so in Ex.A. 25. But she has not done so. Thus, Ex.A. 25 even if it is taken for granted that her mother has given this notice, would go to show that the earlier settlement deed Ex.B. 1 was not at all acted upon. The appellant's son, who was examined as D.W.2 also never stated that Ex.B. 1 settlement deed was acted upon. Even Julaika Bivi was also not examined as a witness to speak about the fact that the earlier settlement deed was acted upon. Even the appellant has not chosen to come to the witness box to speak about the fact that Ex.B. 1 was acted upon. The appellant filed a petition for examination of herself and her mother on commission and the said petition was allowed as far as her mother was concerned and an advocate-commissioner was appointed for the examination of Julaika Bivi and it was dismissed in respect of the appellant, since the: Court wanted to see the demeanour of the appellant. But subsequently, it was represented that the appellant did not want herself to be examined and her mother also was not chosen to be examined on Commission. If actually the earlier settlement deed was acted upon, both the appellant and her mother would have come to the witness box. The very fact that they have avoided the witness box would clearly prove that the earlier settlement deed was not acted upon and that is why they were not examined as witnesses. Therefore, it cannot be contended that in view of the settlement deed of the year 1949, the subsequent settlement deed of the year 1968 is not valid. Ex.A. 1 is the registered settlement deed dated 24-12-1968 by Abdul Khader and Julaika Bivi in favour of the appellant and the 1st respondent, the relevant portion of which runs as follows :-


(Matter in vernacular omitted - Ed.)


19. Regarding Ex.A.1 it is also contended on behalf of the appellant that since the undivided shares are gifted to two donees, it is not valid in law. The further contention of the appellant is that in any event, possession was not transferred to the donees and Abdul Khader and after his death, Julaika Bivi was and is in enjoyment of the suit properties, excepting the house and Vadakku Mangudi village lands which are alleged to have been given to the plaintiff and the appellant respectively under some arrangement, and that, therefore, the settlement deed Ex.A. 1 will not confer any right upon the 1st respondent. But these contentions in the light of the evidence available on record, cannot be upheld. Of course, the undivided shares in Samudhayam Pangus are gifted away in favour of the donees. Samudhayam Pangus cannot be divided. Only constructive possession can be taken. It is not the case of the defendants that the settlers are retaining some undivided portions and that some undivided indefinite portions are gifted away to the donees. Under Ex.A. 1, the entire pangus are gifted away to the donees and the settlers are not retaining any portions. Therefore, the mere fact that the undivided shares in Samudhayam Pangu are gifted away, will not invalidate the settlement deed. The contention that undivided shares are given away to two donees, and that, therefore, the settlement deed is not valid in law, also cannot be accepted. The specific properties are mentioned as northern share, southern share etc. In some properties, the entire survey numbers are gifted away to the donees.


20. It is well settled principle of law that a gift to two or more donees jointly is valid notwithstanding that the donor has not divided the shares of the donees nor given separate possession. The above principle has been laid down also in the decision in Ebrahim Alibhai Akuji v. Baiasi, 1934 AIR(Bom) 21. In the decision in Kairam Bi v. Mariam Bi, 1960 AIR(Mad) 447 it was held that where the donor gives away by way of gift the entirety of her undivided share in an estate of two persons jointly, the gift is not bad. It was also held in the decision, Mohammed Sadiq Ali Khan v. Fakrjahan Begam, 1932 AIR(PC) 13 as follows :-



"The declaration in the deed was binding on the heirs of donor and that actual vacation by the husband and actual taking of separate possession by the wife, was not necessary. A declaration made by the husband followed by the handing over of the deed was amply sufficient to establish a transfer of possession." *


21. In the instant case before us, subsequent to Ex.A.1 the 1st respondent and the appellant have been in possession and enjoyment of the suit properties. In the notice itself, the 1st respondent has specifically mentioned that the settlement deed was given to her and the donees accepted the settlement deed and it was acted upon. To this notice, the appellant has not chosen to give any reply. Therefore, it is clear that Ex.A. 1 was acted upon and delivery was transferred to the donees. Therefore, the decisions referred to above are applicable to the facts of the present case before us.


22. Admittedly, the appellant has sold away various portions in the lands situate in Vadakku Mangudi village to defendants 2 to 10 and her son who was examined as D.W. 2 has also signed the sale deeds, the registration copies of which are marked as Exs. B. 25 to B. 33. The 1st respondent has also produced the registration copy of these sale deeds which are marked as Exs. A.4 to A.12. Under these sale deeds the appellant has specifically mentioned that she got the properties under the settlement deed Ex.A. 1. If she got the said property under some arrangement between herself and the plaintiff 1st respondent and if she never got the same under the settlement deed under Ex.A. 1, it is beyond comprehension as to why she has specifically stated under these sale deeds that she got the same under the settlement deed. According to D.W. 2, in the draft sale deeds, the facts of family arrangement is mentioned but however while writing the sale deeds, it is not mentioned. According to him, the said draft is available with the Karnam, who is the scribe of the said sale deeds. But he was not examined nor the appellant was examined. Even if it is taken for granted that in the draft sale deed, the fact of mediation is mentioned and the same is omitted to be stated in the original sale deed, we are unable to understand as to why it is mentioned in the sale deeds that the properties were got by her under Ex.A.1. Thus, this, factor would clearly prove that the settlement deed Ex.A.1 was acted upon and the appellant also has accepted the said settlement deed. Having accepted the said settlement deed, it is not open to her to urge now that it is not valid in law.


23. Even if it is taken for granted that Abdul Khader was in enjoyment of the suit properties that itself will not go to show that no transfer of property took place in accordance with Ex.A.1 because it is an admitted fact that Abdul Khader was appointed as the general power of attorney agent, even in the year 1956 itself to manage the properties of the plaintiff 1st respondent herein and the appellant. This fact is seen under Ex.B.20, registered general power of attorney deed dated 4-9-1956. Therefore, as power agent, he might have been in possession of the suit properties. Therefore, even if it is taken for granted that he was in enjoyment of the suit properties, it will not go to show that no possession of property took place and therefore, the settlement deed is valid. It is an admitted fact that at least after 1970, the respondent is in enjoyment of the house situate at Rajagiri, which has been exclusively given to the respondent under Ex.A 1. The fact that the respondent has produced Ex.A. 1 original settlement deed, also would show that it was acted upon. In these circumstances; it is evident that Ex.A. 1 was acted upon.


24. Exs.B.8 and B.9 copy of the order of sanction of loan and the security bond executed by Abdul Khader were produced before the trial Court by the appellant in order to show that Abdul Khader was in enjoyment of the suit properties and that he also raised loans in respect of the properties. Exs.B.12 and B.19 are the receipts for repayment of loan for filter point. Under these, some of the receipts have been issued in the name of Abdul Khader and some of them are issued in the name of the appellant. Under Exs.B.10 and B.11, D.W.2 has paid certain amounts. Exs.B.13 to B. 15 and Ex.B. 19 are before suit and the remaining receipts are subsequent to the suit. The 1st respondent who was examined as P.W. 1 also admitted that her father raised filter point loans. As already stated her father was acting as general power agent of the 1st respondent and the appellant from 1956 onwards. Therefore, it is quite possible that he might have raised loan in his capacity as power agent of 1st respondent and the appellant. Therefore, the said raising of loan, will not go to show that he never parted with possession of the suit properties and that the settlement deed was never acted upon.


25. We find that under Ex.A.25 lawyer's notice sent by Julaika Bivi to the 1st respondent and the appellant, in order to show that possession never passed on to the 1st respondent and the appellant, has relied upon Ex.A.25.


26. It is relevant to note that in Exhibit A.25 notice it is specifically mentioned that Ex.A-1 was not acted upon and Julaika Bivi is in enjoyment of the entire suit properties.


It is relevant also to note that it is not specifically clear as to whether this notice was given by Julaika Bivi herself, because one Sha, examined as D.W. 3 has stated in his evidence that he gave instructions to the Advocate to send the notice under the original of Ex.A-25. It is common ground that Julaika Bivi and the appellant are living in the same house and Julaika Bivi is under the care and protection of the appellant. According to D.W. 2, after receipt of the notice sent by the first respondent herein it was given to Julaika Bivi and she represented that she would take action and subsequently she gave the notice under the original of Ex.A-25. When the appellant and her mother are living jointly in the same house, it does not stand to reason as to how Julaika Bivi would have given instructions to D.W. 3 to give notice to both the first respondent and the appellant. According to the appellant, it was under some arrangement she is enjoying the Vadakku Mangudi village lands. It is not known as to how the mother stated that she is in enjoyment of the entire suit properties. It is in support of this version D.W. 1, Krishnamurthy Iyer and D.W. 3, She were examined. They deposed about the alleged mediation. D.W. 1 also deposed about the alleged mediation. They all deposed in unison that the said arrangement was accepted by the first respondent, the appellant, Abdul Kader and Julaika Bivi. All of them would state that D.Ws. 1 and 3 were also mediators for the said arrangement. If that was so, it is a myth as to how Julaika Bivi has not mentioned about the said arrangement in her notice under Ex.A.25. When D.W. 3 states in his evidence that he was one of the mediators and in the said mediation the entire house at Rajagiri was given to the first respondent and the entire lands at Vadakkumangudi were given to the appellant and from the date of such mediation they are in enjoyment of their respective properties, it is surprising as to how he has not mentioned that fact in Ex.A 25 notice, for which he is said to have given instructions on behalf of Julaika Bivi. The absence of a recital regarding this aspect in Exhibit A-5 goes a long way in the appreciation of the evidence on record regarding the important issues in this case. As already stated, after the receipt of the notice from the first respondent, the appellant has not given any reply. Even to the notice sent by Julaika Bivi the appellant has not given any reply. Thus, we find that the case not forward relating to the mediation is a figment of imagination trotted out only for the purpose of this case. That apart, in the sale deeds, Exhibits B-25 to B-33, this fact of mediation is significantly not mentioned. It is the case of the appellant that only as per the mediation she got the properties at Vadakkumangudi, but in the sale deeds she has not stated this fact. On the other hand, she has stated that only as per Exhibit A-1 she got the said properties. In these circumstances, the irresistible conclusion that can be arrived at is that the allegation that there was mediation is false. P.W. 1 would stoutly deny any such arrangement. According to her, from the date of the settlement deed, she is in possession and enjoyment of the house in Rajagiri and herself and the appellant are in enjoyment of the other suit properties through the appellant's son who was examined as D.W. 2.


27. It is also relevant to note that in order to show that subsequent to the family arrangement, patta has been changed in the name of the appellant and D.W. 2 has also raised fertiliser loan, the appellant has produced through D.W. 4 Kulanthai, Exhibits B-34 and B-35, manure cards. It is seen that the appellant has borrowed some fertiliser loan in respect of the lands in Vadakkumangudi. It is not the case of the appellant or D.W. 2 that the land is being cultivated by them as lessees. It is the contention of the first respondent that herself and the appellant are in enjoyment of the properties through D.W. 2. The fact that D.W. 2 has raised some fertiliser loan would probabilise that he might have been in enjoyment of the suit properties on behalf of the first respondent and the appellant. Thus we find that Exs. B-34 and B-35 will not help the case of the appellant, but on the other hand, would probabilise the contentions of the first respondent. Exhibits B-5 to B-7, adangal extracts, were produced by the appellant. Under Exhibit B-5, we find that certain survey numbers in Vadakkumangudi are standing in the name of the appellant and the said change has been made on 30-6-1975. According to D.Ws. 1 to 3, the alleged mediation took place in July, 1970. It is not mentioned in the written statement that in July, 1970 the mediation took place. The evidence of D.W. 2 disclosed that on behalf of the appellant he gave instructions for the preparation of the written statement and at that time, he knew the date, month and the year of the said mediation. If it is so, there is absolutely no reason as to why the date and month were not specifically mentioned in the written statement. It is only vaguely stated therein that the mediation took place in the middle of 1970. Ex.B-5 shows that only in 1975 the name of the appellant has been included in the adangal. Under Exs. B-6 and B-7, we find that certain items at Pon Meindha Nallur and Mela Eachangudi are standing in the name of Julaika Bivi and the appellant. It is the evidence of D.Ws. 1 to 3 that except the house at Rajagiri and the lands at Vadakkumangudi, there was no mediation in respect of any property belonging to the family of the first respondent and the appellant. If that was so, it is not explained as to how the appellant's name is mentioned in the adangal in respect of some properties in Pon Meindha Nallur as seen under Exhibit B-6. The fact that some properties are still standing in the name of Julaika Bivi will not go to show that she is in possession and enjoyment of the same. Since patta has not been transferred, naturally her name must continue in the Government records. Therefore, the adangal will not, in any way, advance the case of the appellant. That apart, there is no evidence to show as to how the name of the appellant was recorded in respect of the lands at Vadakkumangudi. There is nothing to show that the appellant has sent any application for transfer of patta in her name. Therefore, much reliance cannot be placed on these documents.


28. The case of P.W. 1 is that she paid the kist amount for the portion of her land to the appellant and D.W. 2 and they paid the same. The learned trial Judge who had the benefit of seeing P.W. 1 in the box, has described in paragraph 27 of his judgement, her evidence to be very satisfactory and has observed that he had no reason to disbelieve her testimony. In order to show that the said family arrangement is true, D.W. 2 has produced a letter, in which the signature of Abdul Khader is marked as Exhibit B-3. This letter is alleged to have been written by D.W. 2 at the instance of Abdul Khader. P.W. 1 would admit that the signature (Exhibit B-3) is that of her father. D.W. 2 admits that the body of the letter was written by him. He has further deposed that after the mediation was over, he wanted him to effect the mutation in regard to the house at Rajagiri in the name of the first respondent and therefore, Abdul Khader gave the instructions to write a letter to the Panchayat Board and accordingly, he wrote the letter. His evidence shows that the original of that letter was taken by Abdul Khader to hand over the same to the Panchayat Board Office. But the said original is not produced before Court. Exhibit B-3 reads as follows :-


[Matter in vernacular omitted - Ed.]


The recitals in this letter show that they are very artificial and hence no reliance can be placed on the same. If really Abdul Khader wanted to effect mutation in the name of P.W.1, he would have written a letter to the concerned Panchayat Board to that effect, but there was no necessity for him to have mentioned about the mediation, settlement and other things. Under this, it is stated that the settlement deed dated 24-12-1968 was not acted upon and it was not accepted by the appellant and therefore, it was not acted upon and thereafter, through a panchayat her grievance was redressed and a mutation was effected, in respect of the house at Rajagiri in the name of the first respondent. According to D.W. 2 after the mediation on the third day a letter was written by him. It is relevant to note that this letter could have been as well written by one of the alleged panchayatdars if really there was any mediation and that the same was reduced into writing in the said mediation. Under the circumstances, the lower Court is correct in having held that the letter alleged to have been written under the signature, Exhibit

B 3, is not true and it is concocted and created for the purpose of this case. The lower Court has given cogent and convincing reasons for rejecting the evidence of D.Ws. 1 to 3 with reference to mediation as unsatisfactory and unacceptable. 29. In order to show that only subsequent to the said family arrangement mutation in respect of the house at Rajagiri was changed to the name of the first respondent, the appellant sent for the house-tax demand register of Rajagiri Panchayat Board and the entries therein are marked as Exhibits B-36 and B-37. It is relevant to note that D.W. 5, a clerk of the Rajagiri Panchayat Board, has only spoken about the entries under Exhibits B-36 and B-37, but he is not able to say as to why the name of Abdul Khader is struck off and the name of the first respondent has been included in the year 1970-71. He would admit that the name of the first respondent under Ex.B-37 is in a different ink and is not able to say who has made this correction and why and under what circumstances. According to him, in 1970-71 he was not a clerk in the Panchayat Board and therefore he could not speak anything about the entries, and therefore, his evidence is not also helpful to the appellant. In these circumstances, the lower Court is correct in having held that the entries under Exhibits B-36 and B-37 and the evidence of D.W. 5 will not help the case of the appellant. We have to concur with the finding of the trial Court that Ex.A-1 is true and valid and it was acted upon and was also accepted by the donees and possession was also transferred to the donees. It is clear that the family arrangement pleaded by the appellant is not true. 30. The first respondent claims one-eighth pangu in the Samudayam share and a half share in items 3 to 12 and recovery of possession of items 13 to 18. The first respondent is entitled to a decree as prayed for. 31. It is common ground that the appellant has sold away various portions of properties situate in Vadakkumangudi village under the originals of Exhibits B-25 to B-33 to defendants 2 to 10 in the suit, who are respondents 2 to 10 in this appeal. Defendants-respondents 4, 8 and 9 remained ex parte and other purchasers of the appellant would contend that they are bona fide purchasers for value and therefore, equity has to be worked out in the case, if it is to be found that the first respondent has got some share in the properties. It is relevant to note that no purchaser has chosen to come and depose so as to substantiate his claim regarding equity and to say that they are bona fide purchasers for value. The brother of the 10th respondent (10th defendant), who was examined as D.W. 7, has stated on behalf of his sister, the 10th respondent, that he approached the first respondent and the latter represented that the appellant has got title over the same, but he does not know the sale deed under which his sister purchased the property. P.W. 1 denies that any purchaser of D.W. 7 approached her or her husband regarding the purchase. According to her, one day she went to Vadakkumangudi and at that time she saw some persons constructing buildings in the property belonging to her and the appellant, and thereafter, after obtaining the encumbrance certificate she came to know about the sale by the first respondent in favour of defendants 2 to 10. The lower Court had accepted the evidence of P.W. 1 as already stated. There is also no satisfactory evidence to prove that any of the purchasers approached the first respondent before they purchased the same. Thus, we find that respondents 2 to 10 never approached the first respondent even though they are well aware of the fact that the first respondent has got some share in the said properties and, therefore, they are not bona fide purchasers for value. The trial Court is correct in having held that the purchasers, namely respondents 2 to 10, are not bona fide purchasers and they are not entitled to the share as prayed for in the suit. It is clear from the evidence on record that the first respondent was in joint possession with the appellant. Hence the lower Court is correct in its finding that the Court-fee paid on the plaint is proper. The lower Court is correct in having held that the suit as framed is not bad for non-joinder of necessary parties. There is no merit in the appeal and hence the judgement and decree of the trial Court are hereby confirmed and the appeal is dismissed, but in the circumstances without costs.