Hajee E.A.A. Jalaludeen and Others vs E.A.A. Mohameed Siddiq

R.S. Ramanathan, J.—The Defendants 1, 2, 4 to 8 in O.S. No. 7 of 2006 in I.A. No. 111 of 2011 on the file of the Additional District Court/Fast Track Court, Periyakulam, are the revision petitioners. The first respondent/plaintiff filed a suit for partition in O.S. No. 7 of 2006 and in that suit the revision petitioners filed a statement stating that the properties were gifted by the father in favour of the defendants 1 and 2. Thereafter, PW. 1 was examined and during the examination of PW. 1, the defendants 1 and 2 attempted to mark the gift deeds executed by the father and those documents were objected and the trial Court rejected those documents and on the basis that the documents are not duly stamped and not registered. Thereafter, the revision petitioners filed a C.R.P.(PD)(MD) No. 242 of 2011 before this Court and the revision was dismissed on 09.02.2011. Thereafter, the revision petitioners filed I.A. No. 112 of 2011 to receive the additional statement and also filed I.A. No. 111 of 2011 to reopen the case to enable the petitioners to cross-examine PW. 1 by eliciting answers with respect to the gift deeds and those applications were dismissed and aggrieved by the same, these Civil Revision Petitions are filed.

The learned Counsel for the revision petitioners submitted that in the additional statement the revision petitioners have not taken a new stand and in the original statement they have mentioned about the gift deeds and in the additional statement they have only explained the various deeds with dates and items of property which were gifted by the father to the revision petitioners. He further submitted that the plaintiff/first respondent also did not include the other properties which were sold by him for various purpose and those properties were also available to the partition and those particulars were stated in the additional statement and without considering the same, the Court below dismissed the same. He further submitted that though the C.R.P.(PD)(MD) No. 242 of 2011 was dismissed, the revision petitioners filed a review application with a delay and the application to condone the delay was numbered and as per the judgment of the Honourable Supreme Court even though the gift deed is not registered, as per the Mohammadan Law there is no need to register the gift deed and therefore as per the judgment of the Honourable Supreme Court in the matter of Hafeeza Bibi and Others Vs. Shaikh Farid (dead) by L.Rs. and Others, , the gift deeds are admissible in evidence and hence the Court below ought to have reopened the case to enable the revision petitioners to put questions to the PW. 1 regarding the gift deeds.

I am unable to accept the contention of the learned Counsel for the revision petitioners. As stated supra, in the original statement it was stated about the execution of the gift deed and delivery of possession was effected as per the law in favour of the donees and also stated that the plaintiff cannot raise any objection regarding marking the documents on the ground of the Registration Act, at that stage. Though in the original plaint no details of the gifts were mentioned, when DW. 1 was examined in chief the revision petitioners wanted to mark the unregistered gift deeds and that were objected to and the gifts deeds were not marked. That was challenged in C.R.P.(PD)(MD) No. 242 of 2011 and this Court upheld the order of the Court below and held that the gift deeds which were sought to be marked are unregistered documents and cannot be marked. That order was dated 09.02.2011. Thereafter an application was filed to receive the additional statement stating that oral gift was given by the father in favour of the revision petitioners and that was followed by a written document. It is submitted by the learned Counsel for the revision petitioners that as the defendants the revision petitioners are entitled to take the inconsistent plea and therefore even assuming that they have taken the earlier stand that the gift deeds were executed, in the additional statement they have only stated that there was a oral gift followed by a written document and therefore there is no inconsistently in the plea taken in the additional statement and that was not properly appreciated by the Court below. According to me, the defendants are entitled to take inconsistent plea. But a defendants cannot be permitted to introduce a new case or withdraw the admission made in the written statement earlier. In this case, the stand of the revision petitioners was there was a written gift deed and on that basis they were entitled to the suit properties. They have also attempted to mark the gift deeds and failed in their another attempt and after the order passed in C.R.P.(PD)(MD) No. 242 of 2011 dated 09.02.2011, they have taken a new stand that the gift deeds are oral and subsequently reduced to writing. According to me, the stand now taken in the additional statement after they attempted to mark the gift deeds failed, would expose the defendants and by these additional written statement they tried to introduce a new case which was not pleaded and they also wanted to withdraw the admissions made earlier. Therefore, the revision petitioners are not entitled to introduce a new case in the additional statement or to withdraw any admission made in the earlier and in this case an attempt to withdraw the stand taken by them that under the gift deed they got title and having realized that the document was not admitted they tried to introduce a new case that there was an oral gift followed by a written document. Hence, the Court below has rightly rejected the additional statement. Further, the application to reopen the case was filed only on the basis of the plea taken in the additional statement and once the additional statement was not allowed to be received there was no need for reopen the case and hence I do not find any infirmity in the order of the Court below. Accordingly, these Civil Revision Petitions are dismissed. No costs. Consequently, the connected Miscellaneous petitions are also dismissed.