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Thursday, June 28, 2012

O R D E R (1) The Appeal No.28/2012 filed by the wife challenging the decree of dissolution of marriage between the parties and divorce is dismissed. Instead, the said decree, passed by the Family Court at the instance of the respondent/husband, is upheld and maintained. (2) The Family Court Appeal No.29/2012 is allowed. The judgment and decree, passed in Petition No. C-136/2006 is quashed 17 of 18 fca28.12.sxw and set aside. Instead, the parties are relegated before the Principal Judge, Family Court, Mumbai for reconsideration of the said Petition afresh from the stage of oral arguments. All questions therein are left open. (3) The parties shall appear before the Principal Judge of the Family Court, Mumbai on 2nd July, 2012, who may take up the said Petition No.C-135/2006 himself or assign it to any other Judge of the Family Court at Mumbai for denovo reconsideration from the stage of arguments. The Concerned Judge shall dispose of the said Petition expeditiously. (4) No order as to costs. (5) In view of the above order, Civil Application stands disposed of. (A.R.JOSHI,J.) (A.M.KHANWILKAR,J.)


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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.28 OF 2012
Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401202. ... Appellant
(Ori.Respondent)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. .... Respondent
(Ori.Petitioner)
AND
FAMILY COURT APPEAL NO.29 OF 2012
WITH
CIVIL APPLICATION NO.41 OF 2012
IN
FAMILY COURT APPEAL NO.29 OF 2012
1. Bhavana N.Shah,
aged about 47 years, Hindu Indian Inhabitant,
Occ.Housewife/Beautician,
residing at c/o.Champaklal Hemchand Shah,
A-204, Shelter C.H.S. Ltd. Ambadi Road,
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), Dist.Thane-401 202.
2.Chi.Palak Nitin Shah,
aged about 19 years, Indian Inhabitant,
residing at C/o.Champaklal Hemchand Shah,
A-204 Shelter C.H.S. Ltd. Ambadi Road,
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SQP
fca28.12.sxw
Near Kalpana Hospital,
Opp.Kuldip Dewankar Garden,
Vasai Road (West), District Thane-401 202. ... Appellants
(Ori.Petitioners)
Versus
Nitin Chimanlal Shah,
aged about 46 years, Hindu Indian Inhabitant,
residing at 303, Darshan C.H.S.Ltd.
Love Lane, Opp.B.I.T. Chawl,
Mazgaon, Mumbai – 400 010. .... Respondent
…...
Mr.Ajit Karwande for the Appellants.
Respondent-husband present in-person.
…...
CORAM: A.M. KHANWILKAR &
A.R.JOSHI, JJ.
JUDGMENT RESERVED ON : 15TH JUNE, 2012
JUDGMENT PRONOUNCED ON : 21ST JUNE, 2012
JUDGMENT (Per Khanwilkar, J.) :
1. We propose to dispose of both these Appeals together by this
common Judgment.
2. Appeal No.28/2012 is directed against the Judgment and Decree
passed in Petition No.A-1082/2007 dated 1st December, 2011 passed by
Family Court No.VII, Mumbai, whereby, the Family Court allowed the
Petition filed by the respondent-husband for dissolution of marriage and
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divorce under Section 13(1)(ia) and (ib) of the Hindu Marriage Act,
1955.
3. The other Appeal being Appeal No.29/2012 is also filed by the
wife along with daughter challenging the common Judgment dated 1st
December, 2011 passed by the Family Court No.VII, Mumbai in Petition
No.C-136/06 praying for maintenance and separate residential
accommodation for herself and minor daughter Palak Nitin Shah under
Section 18(2)(a), (b), (g) and 20 of the Hindu Adoptions and Maintenance
Act, 1956.
4. The Family Court by the common Judgment has dismissed the
petition filed by the wife and minor daughter for maintenance and
residential accommodation but has allowed the Petition filed by the
husband for dissolution of marriage and decree of divorce. We would
first examine the challenge to the decree of divorce by the appellant wife.
5. The respondent husband in his Petition filed under Section 13(1)
(ia) and (ib) of the Hindu Marriage Act has stated that the marriage
between the parties took place on 5th February, 1990. They were blessed
with one daughter named Palak. After few years, discord between the
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spouses took place as a result of very rude behaviour of the wife. The
wife was uninterested in domestic work. She picked up quarrels on
unessential matters and created unhealthy atmosphere in the house. The
wife was in the habit of making false, frivolous and concocted allegations
against the husband and his family members. She went to the extent of
making false allegations against the husband having illicit relationship
with his two real sisters. That on 1st June, 2005, the wife left her
matrimonial home on her own and inspite of persuasion by the husband
and his relatives, she refused to join the company of the husband. On the
basis of these allegations, the husband prayed for dissolution of marriage
between the parties solemnized on 5th February, 1990 at Mumbai and the
decree of divorce.
6. The appellant wife filed written statement to oppose the said
Petition. The parties adduced evidence in support of their respective
claim. The Family Court adverting to the relevant evidence and placing
emphasis on the admissions given by the appellant wife in her crossexamination,
accepted the claim of the respondent husband. The Family
Court in the common Judgment has highlighted the admissions of
appellant in her cross-examination wherein she has admitted that she did
not lodge any complaint before police against respondents or his family
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members. Further, she does not have any evidence to show that she was
tortured mentally as well as physically. She admitted that she got her
daughter admitted in Nazareth School without consent of her husband and
she had never discussed with husband about the same. She has also
admitted that the husband and his family members approached her and
tried to convince her to come back to her matrimonial home on two
occasions. She has admitted in the cross-examination that she saw the
illicit relations between her husband and his real sisters. The Family
Court has then considered the admission of appellant's witness PW 2
i.e. daughter Palak. It has then noted that besides the oral admissions of
the appellant and her witness, even the documentary evidence goes
against the appellant. It took into account the pleadings and oral
evidence of the parties, more particularly, in respect of the allegation
about the illicit relations of husband with his sisters. The appellant had
made those allegations in her letters sent to the husband and reiterated the
same in the pleading and also in the oral evidence and justified the same
on the ground that that was her inner feeling. The Family Court,
therefore, opined that the allegations by the appellant wife about illicit
relation between husband and his sister were unsubstantiated and
frivolous. The Family Court has noticed the letters Exhibit 62 and
Exhibit 63, in addition to the stand taken in the written statement as well
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as oral evidence of the appellant. The Family Court on analysis of the
above material then proceeded to authoritatively hold that the wild
allegations made by the wife against the husband about illicit relations
between him and his sisters, coupled with the fact that inspite of attempt
made by the husband and his family members to persuade the appellant
wife to come back to her matrimonial home and resume
cohabitation/conjugal rights, she failed to do so, answered the issue
against the appellant wife and therefore, dissolved the marriage between
the parties on the ground of cruelty within the meaning of Section 13(1)
(ia) and Section 13(1)(ib) of the Hindu Marriage Act. This is the sum
and substance of the finding and the conclusion reached by the Family
Court to answer the matter in issue.
7. We have heard Mr.Karwande for the appellant wife and the
respondent husband who has appeared in-person. No doubt,
Mr.Karwande made strenuous effort to persuade us to take the view that
the common Judgment of the Family Court is completely unsustainable as
it fails to analyse the evidence properly and to record finding of fact in
the context of the separate issue that was required to be answered before
concluding that the petition filed by husband for dissolution of marriage
and divorce deserves to be allowed. The argument is attractive at the first
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blush. However, as aforesaid, the Family Court has adverted to the
substance of the pleading and oral and documentary evidence adduced by
the parties. The Family Court has deduced its conclusion on that basis.
After having perused the relevant pleadings and the evidence on record,
which this Court in appeal is expected to do, the conclusion reached by
the Family Court in dissolving the marriage between the parties and
passing decree of divorce is inevitable. We are inclined to uphold the
order of dissolution of marriage and the decree of divorce.
8. We would first deal with the ground ascribable to Section 13(1)
(ia) of the Hindu Marriage Act. The Family Court has adverted to
different allegations found in the petition filed by the husband. In our
opinion, the decree passed by the Family Court ought to be upheld on the
ground of cruelty considering the fact that the appellant wife in her
communication dated 11th May, 2006 in response to the letters sent by the
respondent husband dated 5th December, 2005 and 11th January, 2006 has
stated about the incidents she had personally noticed indicative of illicit
relations between the respondent husband and his sisters. We refrain
from reproducing those allegations in this Judgment. Suffice it to
mention that the same are serious and disparaging remarks. The
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respondent husband in his petition has pointedly referred to the said
communication, being one of the acts committed by the appellant wife
which had caused immense mental agony and cruelty to him. The
appellant wife in the written statement went on to reiterate those
allegations and gave justification that the letters sent by her on 11th May,
2006 was a privileged communication between the husband and wife.
She has further justified her stand on the ground that she had stated those
facts in the said letter on the basis of “her inner feelings”. This defence is
found in paragraph XIV of the written statement. The husband in his
evidence has reiterated the position that making of such malafide,
reckless and frivolous allegations by the wife constituted severe mental
cruelty to him. Nevertheless, the appellant wife in her oral evidence
(cross-examination) went on to assert that she personally saw the illicit
relations between the respondent husband and his real sisters and she had
written about the same in her communication dated 11th May, 2006 sent to
respondent husband on the basis of her inner feelings. Admittedly, no
contemporaneous evidence has been produced by the appellant wife to
corroborate her version. The facts stated by her in her communication
dated 11th May, 2006 on which she has placed reliance have not been
substantiated by the appellant at all, except her bare words. The making
of such false, frivolous and unsubstantiated allegations against the
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husband in the communication as well as reiterating the same in the
written statement and also in the oral evidence given by the wife before
the Court was bound to cause mental cruelty to the husband. It was
clearly an attempt to sully the reputation not only of the respondent
husband but also of the two sisters who were in the profession of
Medicine and Law respectively. That, by itself, is a good and germane
ground to dissolve the marriage between the parties and to grant decree
of divorce under Section 13(1)(ia) of the Hindu Marriage Act. We need
not deal with the other allegations concerning ground of cruelty. Even the
Family Court has not touched upon those allegations but in substance has
opined that this ground established from the record was sufficient to grant
decree of divorce. In other words, the decree of divorce under Section
13(1)(ia) deserves to be upheld in the fact situation of the present case.
9. The Family Court has also dissolved the marriage between the
parties and granted decree of divorce on the ground under Section 13(1)
(ib) i.e. desertion. As an appellate Court, having upheld the decree of
divorce on one count, which is formidable one and unassailable on any
count, it may not be necessary to dilate on other grounds to sustain the
decree. Be that as it may, we find that even though the Family Court has
not thoroughly analysed the pleadings and evidence on record in the
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context of Section 13(1)(ib), but has certainly referred to the substance of
the pleadings and the evidence. The Family Court has noted that
appellant wife left the matrimonial house on her own on 1st June, 2005
and that inspite of persuasion by the respondent husband and his family
members on two different occasions, she refused to resume
cohabitation/conjugal rights. The fact that she left her matrimonial home
on 1st June, 2005 is admitted by the wife. She has also admitted that after
leaving the matrimonial home, she stayed with her father. Further, she
took away her daughter along with her and got her admitted in Nazareth
School without consulting her husband or informing him about the same.
She has also admitted that the husband and his family members had come
to her on two occasions to convince her to resume cohabitation/conjugal
rights, but she did not go back to her matrimonial house. On the basis of
these admitted facts, the Family Court has granted decree of divorce also
on the ground of desertion under Section 13(1)(ib).
10. As aforesaid, on reading the impugned Judgment, it may appear
that it has straightway jumped to conclusion against the appellant wife.
Notably, the Court has rightly noted the essential factors to constitute the
ground of “desertion”. Such as, factum of separation, intention to bring
cohabitation permanently to an end, the element of persuasion. In the
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communication sent by the wife to the husband and more so in her
pleading and oral evidence before the Court, the appellant wife has given
admission on the above aspects. The fact that the parties separated on 1st
June, 2005 is indisputable. The husband having approached appellant
wife as also his family members on two occasions to persuade the
appellant to resume cohabitation/conjugal rights has been admitted by the
appellant wife. However, she refused to go back. It necessarily follows
that the appellant wife had shown intention to bring cohabitation
permanently to an end. Even persuasion by respondent husband and his
family members did not work with the appellant. She steadfastly refused
to join the matrimonial home. In this backdrop, the finding as well as the
conclusion reached by the Family Court of dissolving the marriage
between the parties and granting decree of divorce under Section 13(1)
(ib) is also unexceptionable.
11. As aforesaid, no interference is warranted with the final order
passed by the Family Court in dissolving the marriage between the parties
and granting decree of divorce on the ground of cruelty and desertion
under Section 13(1)(ia) and 13(1)(ib) in favour of respondent husband
and against the appellant wife.
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12. That takes us to the other Appeal arising out of the dismissal of
Petition filed by the appellant wife, for maintenance and separate residential
accommodation, by the common judgment and decree. Indeed, this Petition
was filed by the appellant wife in earlier point of time. The Petition for
dissolution of marriage and divorce was filed by the husband, during the
pendency of the maintenance petition. The claim in the maintenance petition
was founded on the ground under Section 18(1) and 18(2) (a), (e) and (g). In
other words, appellant wife claimed separate residential accommodation from
her husband without forfeiting her claim of maintenance, on the ground of
desertion by the husband and of abandoning her without reasonable cause and
without her consent or against her wish, or willfully neglecting her. The second
ground was that she was treated with such cruelty as to cause reasonable
apprehension in her mind that it will be harmful or injurious to live with her
husband and, thirdly, that there are other causes justifying living separately. The
Trial Court has examined the subject issues while considering the question of
awarding maintenance amount to the wife and the daughter as well as of
separate residence to the wife, together. Indubitably, these issues were distinct
and were required to be analysed and decided separately. Further, the same
have been disposed of together by cryptic judgment, in the following words:
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“Issue Nos. 1 to 4 (in Petition No. C-136/2006)
22. The evidence is already discussed above. To avoid
repetitions and the issues involved in this case, it is sufficient to
mention that Bhavna(wife) left the matrimonial home on her own.
She took with her minor daughter, who has attained majority today.
She even failed to inform the husband. She admits that she has no
proof of physical or mental cruelty. She has not proved reasonable
cause to reside separately.
23. There is sufficient evidence on record to show that
Nitin(husband) was willing to continue matrimonial relations. He has
made request in writing (Exh 62 and Exh 63) Bhavana (wife) has not
bothered to reply it. Palak (P. W. No. 2) admits that sister of
respondent had come to convince her and mother to come to reside
with them. Bhavana(wife) also admits that on two occasions the
husband and his family members came to bring her back. Sec. 18(1)
of Hindu Adoption and Maintenance Act, 1956 provides wife shall
shall be entitled to be maintained by her husband during her life time.
Sub-clause (2) provides – a Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to
maintenance:-
a) If he is guilty of desertion,
b) If he has treated her with cruelty,
c) If he is suffering from a virulent from of leprosy,
d) If he has any other wife living,
e) If he keeps a concubine in the same house,
f) If he ceased to be a Hindu by conversion, if there is any other
cause justifying her living separately.
24. The rights and liabilities are co-relative. If any one want
rights, then he has to perform liability. No doubt, the wife is entitled
to live separately for any of the just grounds as provided under sec.
18(2) of The Hindu Adoptions and Maintenance Act, 1956. The
entire evidence on record shows that Bhavana(wife) is at fault. She
herself treated the husband with cruelty. She has deserted him
without reasonable cause. She has failed to prove her claim.
25. The argument (Exh. 86) advanced by wife is mainly
relating to properties or without any factual or legal support. Hence,
need no reply. Therefore, I answer point nos. 3 to 4 in the negative.”
13. In substance, the Family Court was influenced by the fact that, in the
accompanying Petition, it was already found that appellant wife had left the
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matrimonial home on her own, along with her minor daughter and was not
willing to return back, even though the respondent husband was willing to
continue with the matrimonial relation. Thus, the Family Court held that the
appellant wife is dis-entitled from claiming maintenance from her husband. As
regards the maintenance amount payable to daughter Palak, the Family Court
noted that she has attained majority. The fact that she was still unmarried, has
not been reckoned at all. Be that as it may, we are of the considered opinion
that the manner in which the Petition for maintenance and separate residence,
filed by the appellant, has been decided, is undesirable. The Family Court
ought to have analysed the pleadings and evidence in the context of the claim
of maintenance by wife and unmarried daughter, though attained adulthood.
14. The respondent has placed emphasis on the decision of the Rajasthan
High Court in Shimla Devi vs. Kuldeep Sharma AIR 1999 Rajasthan 181. In
that case, the Court proceeded on the finding that the wife was unwilling to
reconcile and resume cohabitation. Notably, the said judgment considered the
correctness of the decision of the Family Court by which the marriage between
the parties came to be dissolved and decree of divorce was passed. The
observations found in Paragraph 7 and 8 of the said decision, on which
emphasis has been placed, will be relevant in the context of the issue of
dissolution of marriage and passing of decree of divorce. Reliance was then
placed on the decision in the case of Deb Narayan Halder vs. Smt. Anushree
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Halder AIR 2003 SC 3174. The Court found that the reasons given by the
wife, about her ill treatment, were non existent and unsubstantiated. The Court
then proceeded to hold that the wife left the matrimonial home without any
justification. On that basis, the Court answered the issue of maintenance under
Section 125 of the Code of Criminal Procedure, which is attracted when the
person, having sufficient means, neglects or refuses to maintain his wife and
unmarried daughter, though they are not able to maintain themselves. Section
18(1) of the Hindu Adoption and Maintenance Act, 1956 bestows right in the
Hindu wife, being entitled to be maintained by her husband during her life
time. Indeed, the opening words of the said Section are of some significance,
which read - “subject to the provisions of this section”. Sub-Section (1) of
Section 18, distinctly deals with issue of maintenance of Hindu wife, by her
husband, during her lifetime. Whereas, Section 18(2) of the Act bestows right
in the Hindu wife to be entitled to live separately from her husband without
forfeiting her claim of maintenance. In the present case, besides the issue of
maintenance of wife, it was necessary to examine the independent claim of the
unmarried daughter – who at the time of institution of the petition was
admittedly minor.
15. As regards the claim of the appellant wife for providing separate
residential accommodation, even if we were to take the view that the Family
Court in substance has found that the appellant wife has not substantiated the
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requirements specified in Clause (a) and Clause (b) of Sub-Section (2), even
then, the Court was obliged to analyse the pleadings and evidence of the parties
in the context of the requirements of Clause (g) of Section 18(2), which entitles
the Hindu wife to live separately from her husband without forfeiting her claim
to maintainance on account of any other cause justifying living separately. That
was one of the ground pressed into service by the appellant for her claim of
separate residence, in her Petition, which is noted even in the opening part of
the Judgment. The Family Court ought to have considered the matter in that
context.
16. On a bare perusal of Section 18, it is amply clear that the sweep of
each requirement under Sub-Section (2) is markedly different. In other words,
each of these causes in clauses (a), (b) and (g), invoked by the appellant wife,
operate in different spheres. It was but appropriate that the Family Court ought
to have analysed the material on record to answer the same independently and
not to jump to a conclusion.
17. Considering the fact that the Family Court has not properly dealt with
the issues of maintenance and separate residence, we deem it appropriate to
quash and set aside the reasons and the conclusion on these two issues, which
have been considered in Petition No. C-136/2006, filed by the wife along with
the daughter. Instead, the parties will have to be relegated before the Family
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Court for reconsideration of the said matter afresh from the stage of oral
arguments, on its own merits, in accordance with law, uninfluenced by any
observation made in the impugned decision on the said issues.
18. We may place on record that we are not specifically touching upon
the arguments canvassed by the parties, in relation to these two issues of grant
of separate residence to wife and maintenance amount payable to the wife and
daughter, unmarrried though. Inasmuch as, any observation made in that
behalf would affect the parties one way or the other. In other words, all the
contentions available to the parties, in Petition No. C-136/2006, are kept open.
19. Accordingly, we proceed to pass the following order:
O R D E R
(1) The Appeal No.28/2012 filed by the wife challenging the
decree of dissolution of marriage between the parties and divorce is
dismissed. Instead, the said decree, passed by the Family Court at
the instance of the respondent/husband, is upheld and maintained.
(2) The Family Court Appeal No.29/2012 is allowed. The
judgment and decree, passed in Petition No. C-136/2006 is quashed
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and set aside. Instead, the parties are relegated before the Principal
Judge, Family Court, Mumbai for reconsideration of the said Petition
afresh from the stage of oral arguments. All questions therein are left
open.
(3) The parties shall appear before the Principal Judge of the
Family Court, Mumbai on 2nd July, 2012, who may take up the said
Petition No.C-135/2006 himself or assign it to any other Judge of the
Family Court at Mumbai for denovo reconsideration from the stage
of arguments. The Concerned Judge shall dispose of the said
Petition expeditiously.
(4) No order as to costs.
(5) In view of the above order, Civil Application stands
disposed of.
(A.R.JOSHI,J.) (A.M.KHANWILKAR,J.)
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The 'court' has been defined under Section 2(1)(e) of the Act to mean the principal Civil Court of original jurisdiction in a district. The principal court of civil jurisdiction in a district is the District Judge. Therefore, the mandate of an arbitrator has to be terminated not by the High Court but by the principal civil court i.e. the District Judge. Their Lordships of the Supreme Court held that irrespective of the fact that the arbitrator was appointed by the Supreme Court the objections would lie before the 'court' and the matter should go to the District Judge and for that purpose Supreme Court would not be a 'court'. In view of above discussion, the mandate of an arbitrator is terminable on an application to be moved before the court i.e. the principle civil court of original jurisdiction in a district and since High Court of Judicature at Allahabad is not a court within the meaning of Section 2(1)(e) of the Act, the application is not maintainable. It is accordingly rejected with� liberty to the petitioner to approach the appropriate court.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 10 

Case :- ARBITRATION AND CONCILI. APPL.U/S11 No. - 32 of 2012 

Petitioner :- M/S B.M.G. Construction 
Respondent :- National Small Industries Corporation Ltd. And Others 
Petitioner Counsel :- J.P. Pandey 

Hon'ble Pankaj Mithal,J. 

Heard Sri J.P. Pandey, learned counsel for the petitioner. 
Certain disputes arose between the parties in relation to the agreement dated 13.1.2006 which contained an arbitration clause. Accordingly, on 7.7.2010 respondent No.3 was appointed as the sole arbitrator to resolve the aforesaid disputes as per the mechanism provided under the agreement itself. 
Now the petitioner has come up by means of this� petition seeking� termination of the mandate of the aforesaid arbitrator respondent No.3 on various grounds. 
The mandate of the arbitrator already appointed is terminable under Section 14/15 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act). 
Section 14 of the Act provides that the mandate of an arbitrator shall terminate, if he becomes de jure or de facto unable to perform his functions or�fails to act for any other reason and withdraws from his office or the parties agree to terminate his mandate. 
Sub-Section (2) of Section 14 of the Act provides that where any controversy regarding termination of the mandate of the arbitrator aforesaid arises the party may unless otherwise agreed by the parties apply to the court to decide on the termination of the mandate.
Thus, from the above it is sufficiently clear that the mandate of an arbitrator is to be terminable on an application to the court by one of the parties. 
The 'court' has been defined under Section 2(1)(e) of the Act to mean the principal Civil Court of original jurisdiction in a district. The principal court of civil jurisdiction in a district is the District Judge. Therefore, the mandate of an arbitrator has to be terminated not by the High Court but by the principal civil court i.e. the District Judge. 
Sri J.P. Pandey, learned counsel for the petitioner submitted that the definition of the court under Section 2(1)(e) of the Act includes High Court. 
It is true that under Section 2(1)(e) of the Act 'court' means the principle civil court of original jurisdiction in a district and includes the High Court but such inclusion of the High Court is qualified which is evident from the plain reading of the definition of the 'court' contained in Section 2(1)(e) of the Act itself. It reads as under:- 
"Court" means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes; 
Thus on the plain reading of the above definition of the 'court', High Court is included within the principle civil court of original jurisdiction only if it exercises original civil jurisdiction and in such exercise has the power to determine the subject matter of arbitration had it been brought before it by way of a suit. Therefore, for including the High Court within the principle civil court of original jurisdiction two conditions are necessary namely; 
(i) High Court must exercise original civil jurisdiction; and 
(ii) in such exercise of original jurisdiction it must also have the jurisdiction to decide the subject matter of the arbitration as a regular suit. 
It is not disputed before me that the High Court of Judicature at Allahabad does not exercise original civil jurisdiction. Therefore, apparently the first of the above two conditions is not fulfilled by this High Court so as to include it within the meaning of the civil court of original jurisdiction. Accordingly, the High Court of Allahabad is not a 'court' under Section 2(1)(e) of the Act before whom an application for seeking termination of the mandate of the arbitrator can be maintained. 
This High Court is not even vested with the original jurisdiction to decide the subject matter of the arbitration had it been subjected to the suit.� 
In M/s Pandey & Company Builders Pvt. Ltd. Vs. State of Bihar and another AIR 2007 S.C. 465 their Lordships of the Supreme Court held that if a High Court does not exercise of a original jurisdiction it would not be a 'court' within the meaning of Section 2(1)(e) of the Act. 
His Lordship of this court in M/s I.T.I. Ltd. Vs. District Judge Allahabad and others AIR 1998 All. 313 held that the court of District Judge alone is the principle civil court of original jurisdiction in a district and an application under Section 34 of the Act for setting aside arbitral award which lies in a 'court' cannot be entertained even by an Additional District Judge. 
In Garhwal Mandal Vikas Nigam Ltd. Vs. Krishna Travel Agency (2008) 6 SCC 741 the arbitrator was appointed by the Supreme Court and as such the controversy arose as to before whom the objections against the award can be filed. Their Lordships of the Supreme Court held that irrespective of the fact that the arbitrator was appointed by the Supreme Court the objections would lie before the 'court' and the matter should go to the District Judge and for that purpose Supreme Court would not be a 'court'. 
In view of above discussion, the mandate of an arbitrator is terminable on an application to be moved before the court i.e. the principle civil court of original jurisdiction in a district and since High Court of Judicature at Allahabad is not a court within the meaning of Section 2(1)(e) of the Act, the application is not maintainable. It is accordingly rejected with� liberty to the petitioner to approach the appropriate court. 
Order Date :- 31.5.2012 
piyush 

The profession of lawyer and that of a doctor stand on equal footing as both are professionals and so is the lawyer's office and that of doctor's clinic/dispensary or even a pathology lab. The building in question is recognized by the respondents themselves partial as residential in nature, therefore the portion of the doctor's clinic/dispensary or lab situate therein would be a part of the residential premises. The area has also been notified by the Jhansi Development Authority as residential in nature. In short, the clinic/dispensary or laboratory is being run from a residential area and the portion would not be covered by commercial establishment or shop within the meaning of Sub-section (4) and 16 of Section 2 of the Adhiniyam and its market value is not determinable as a commercial building as provided under Rule 2 (d) of the Rules. In view of the aforesaid facts and circumstances, I hold that the authorities below have erred in treating the ground floor portion of the building in question to be commercial in nature for the reason that at one point of time a doctor's clinic or a pathology lab was being run from there. It is a part of a residential building.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

A F R

Writ Petition No. 16843 of 2011

Satya Prakash Singh and another Petitioners

Vs.
State of U.P., and Others Respondents

Hon'ble Pankaj Mithal,J.

Petitioners are purchasers of two storied building vide registered sale deed dated 16.2.2009 for a sale consideration of Rs. 40 lacs, but for the purposes of payment of stamp duty petitioners disclosed its market value as Rs. 75lacs and paid stamp duty accordingly.
The authorities under the Indian Stamp Act, 1899 (hereinafter referred to as an 'Act'), on the report of the Sub-Registrar dated 19.2.2009 drew proceedings under Section 47-A of the Act for determination of deficiency in stamp duty, if any.
The Additional District Magistrate (for short ADM) inspected the property on 25.8.2009. On the basis of the above inspection and the report of the Sub-Registrar the authorities held that the property is partly in commercial use and partly is of residential nature. Accordingly, the market value of the ground floor portion of the building was assessed by treating it to be commercial for the reason it happened to be a clinic of a doctor and that of the first floor to be residential in nature. Thus, deficiency in stamp duty was determined and an equal amount of penalty was imposed. Both the amounts were directed to be recovered with interest @ 12.5% per mensum.
It is against the aforesaid two orders determining the deficiency in stamp duty and imposing penalty that the petitioners have invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India.
I have heard Sri S.K. Chaturvedi, learned counsel for the petitioners and Sri Nimai Das, learned Standing counsel for the respondents and with their consent proceeds to decide the petition finally on the basis of the pleadings exchanged.
There is no dispute that the property was inspected by the ADM himself on 25.8.2009 in the presence of petitioner no. 1 and the Lekhpal of the area. A sketch map of the location of the property was prepared and placed on record showing shops in vicinity to the ground floor of the building in question. The said inspection was made at the insistence of the petitioners and in their presence. Therefore, the map prepared on the inspection can not be discarded simply for the reason that it is not accompanied by any narrative or a report when the inspection was made by the authorized officer himself in accordance with Rule 7 of the Uttar Pradesh (Stamp Valuation of Property) Rules, 1997. However, the said inspection map is not conclusive of the fact that the ground floor portion happened to be a commercial establishment or that it existed in a commercial area.
It has been stated in the writ petition that under the master plan of the Jhansi Development Authority the area where the building is located has been notified as residential area and therefore no part of the building can be treated as commercial. The averments to this effect made in the writ petition have not been denied by the respondent in the counter affidavit. Therefore, the Court is left with no option but to treat the area as residential in nature.
In the above facts and circumstances the solitary question which arises for consideration is whether the ground floor portion of the building situated in a residential locality and which at one time was being used as a clinic or a pathology laboratory by the Doctor son of the erstwhile owner would be assessable to market value as a commercial property for the purposes of realizing stamp duty on the aforesaid sale deed.
Commercial property has not been defined under the Act but the Rules in Section 2 (d) explains "commercial building" as a commercial establishment or a shop as defined under Section 2 (4) and (16) respectively of the U.P. Dukan and Vanijya Adhisthan Adhiniyam, 1962 (hereinafter for short 'Adhiniyam').
In view of the above definition of the commercial building, property which is covered by the definition of commercial establishment or shop as contained in Section 2(4) and (16) respectively of the Adhiniyam alone shall be assessable to market value as commercial building. Section 2 (4) of the Adhiniyam defines commercial establishment to mean any premises, not being the premises of a factory, or a shop, wherein any trade, business, manufacture, or any work in connection with, or incidental or ancillary thereto, is carried on for profit and includes a premises wherein journalistic or printing work, or business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on, or which is used as theater, cinema, or for any other public amusement or entertainment or where the clerical and other establishment of a factory, to whom the provisions of the Factories Act, 1948, do not apply.
The above definition of the 'commercial establishment' can be put in a simplified manner to mean:-
i) Any premises or a shop wherein any trade, business, manufacture is carried on or any work in connection with, or incidental or ancillary thereto is carried on for profit;
ii) Such premises includes a premises wherein journalistic or printing work, or business of banking, insurance, stocks and shares, brokerage or produce exchange is carried on;
iii) Premises which is used as theater, cinema or for any other public amusement or entertainment.
iv) Any premises where clerical or other establishment of a factory to whom the provisions of Factories Act, 1948 do not apply. It excludes premises of a factory.

The ground floor portion of the building in question is certainly not covered by clause (ii) (iii) and (iv) above of the definition of the commercial establishment as referred to above.
Section 2(16) of the Adhiniyam defines 'shop' to mean any premises where any wholesale or retail trade or any business is carried on, or where services are rendered to customers and includes all offices, godowns or warehouse, which are used in connection with such trade or business.
The ground floor portion of the building is not a godown or a warehouse and to that extent would not be covered by the definition of the shop.
Now the issue is whether the ground floor portion of a building in a residential locality which at one time was used as a clinic/dispensary/pathology laboratory by a doctor would be a premises, shop or office where any trade either retail or wholesale or business is said to be carried or services are being rendered to customers.
The work of a Doctor, Chartered Accountant or a Lawyer or as a matter of fact any consultant is a profession which is distinct from any trade or business. Generally, profession is an activity which is carried by an individual by his personal skill, intelligence depending upon his character. It is not in the nature of any trade or business. It is a vocation or occupation requiring special, advance education, knowledge and skill predominantly of an intellectual nature rather than physical or manual.
The Supreme Court had an occasion to consider the nature of the activity of a private dispensary run by a a doctor vis-a-vis the definition of 'commercial establishment' contained in Section 2 (4) of the Bombay Shops and Establishment Act, 1948 which is para-materia to the definition of commercial establishment contained in Section 2 (4) of the Adhiniyam. Their Lordship's of the Supreme Court after in depth consideration of the matter held that the activity of a doctor is a profession and is not a commercial activity and therefore a private dispensary of a doctor is not a 'commercial establishment'.
A similar controversy arose before the Supreme Court in connection with lawyers office. The Supreme Court in considering the definition of commercial establishment as appearing in Section 2(4) of the Kerela Shops and Establishments Act went on to hold that office of lawyers or a firm of lawyers is not a commercial establishment within the meaning of the Act, as lawyers do not carry a trade or business nor do they render services to the customers.
In another case before the Supreme Court, the M.P. Electricity Board charged the Advocate with electricity tariff applicable to non domestic users by treating his office as a commercial activity. The Madhya Pradesh High Court held that the legal profession does not involve any commercial activity and therefore the rate applicable to commercial consumers can not be applied to a lawyer's office. The matter was taken up before the Supreme Court and the Supreme Court disagreeing with certain observations made in an earlier decision in the case of New Delhi Municipal Counsel Vs. Sohan Lal Sachdeva dead (2000) 2 SCC 494 referred the matter to a larger Bench.
The larger Bench of the Supreme Court vide judgment and order dated 27.10.2005 held that advocate running his office from his residence can not be charged additional tariff on commercial basis. However, in case office is run by him from an independent and commercial place, then he can not be exempted from the commercial tariff. Thus, a distinction was made between the office of a lawyer situate in a residential area or in a residence and the office situate in a commercial place.
The profession of lawyer and that of a doctor stand on equal footing as both are professionals and so is the lawyer's office and that of doctor's clinic/dispensary or even a pathology lab. The building in question is recognized by the respondents themselves partial as residential in nature, therefore the portion of the doctor's clinic/dispensary or lab situate therein would be a part of the residential premises. The area has also been notified by the Jhansi Development Authority as residential in nature. In short, the clinic/dispensary or laboratory is being run from a residential area and the portion would not be covered by commercial establishment or shop within the meaning of Sub-section (4) and 16 of Section 2 of the Adhiniyam and its market value is not determinable as a commercial building as provided under Rule 2 (d) of the Rules.
In view of the aforesaid facts and circumstances, I hold that the authorities below have erred in treating the ground floor portion of the building in question to be commercial in nature for the reason that at one point of time a doctor's clinic or a pathology lab was being run from there. It is a part of a residential building.
Accordingly, a writ of certiorari is issued quashing the impugned orders dated 10.3.2011 and 29.5.2010 passed by the Commissioner, Jhansi Division, Jhansi and Additional Collector respectively.
The writ petition is allowed. No costs.

Dated: 29.5.2012
SKS 


a conditional Hiba is valid - while gifting two other house properties to each of his two sons, the suit schedule property was gifted by Sharfuddin to his wife Mahboob Bee for her life time maintenance and for her protection as well as to his two sons together.The Privy Council in Nawazish Ali Khan Vs. Raza Khan (1st supra) succinctly stated that gifts of the usufruct (ariyat) is recognized under Muslim law and such gift is not a gift of corpus. Further there was no necessity for the donor to write the names of his two sons also while making the gift to his wife Mahboob Bee if really corpus was gifted to late Mahboob Bee. The trial Court has completely missed the aforesaid aspect and proceeded on the footing as if it is a gift of corpus to Mahboob Bee. It is no doubt true that if any condition is attached to a gift of corpus, which runs inconsistent with or in derogation of gift, such condition is held to be void as per Section 164 of the Mulla's Principles of Mahomedan Law. To my mind, a fair reading of the document Ex.B1 with the help of translations on record, shows that the gift deed-Ex.B1 in respect of suit schedule property was in two parts, while usufruct was gifted to Mahboob Bee, the corpus was gifted to both of his sons. When once we reached to the conclusion that the gift to Mahboob Bee was only of usufruct and not corpus, Section 164 of the Mulla's Principles of Mahomedan Law by itself will have no application to the facts of the present case. Consequently after the death of Mahboob Bee on 20.6.1988, the suit schedule house stands gifted to both the sons, each having an equal share. The conclusion of the trial Court that there was no Matruka property left by Mahboob Bee is, therefore, unsustainable. Equally inconsequential the further contention of the defendants that Mahboob Bee exercised her right and sold the property to D.W.2 under Ex.B3. Once it is found that Mahboob Bee had only life interest and was entitled to the usufruct only for her life sustenance, it cannot be said that she had a right to alienate the property. As noticed above, Mahboob Bee died on 20.6.1988 and the present suit for partition was filed on 11.2.1993 within about five years of her death. Once the plaintiff is held to be entitled to seek a decree for partition, any unauthorized alienation made by Mahboob Bee has to yield to the said partition. It is not necessary for the plaintiff to separately question the alienation made by Mahboob Bee under Ex.B3 in favour of D.W.2. In my view, therefore, the points 1 and 2 deserve to be answered in favour of the plaintiffs/appellants and consequently the judgment of the trial Court is liable to be reversed. 16. Accordingly the appeal is allowed, the judgment and decree passed by the trial Court are set aside and the suit filed by the plaintiffs/appellants shall stand decreed as prayed for. No costs.


THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR        
C.C.C.A.NO. 69 of 2001

31-05-2010

Abdul Khader (died) and others

Muzaffaruddin (died) and others

Counsel for appellants: Mr. K. Prathap Reddy

Counsel for Respondents: Mr. Basith Ali Yavar

:JUDGMENT:

1.      Plaintiffs in OS.No. 147 of 1993 on the file of the VI-Addl. Senior Civil
Judge, City Civil Court, Hyderabad are the appellants. They filed the said suit
seeking to pass a preliminary decree for partition and separate possession in
respect of Matruka property bearing H.No. 17-1-238 to 241, admeasuring 1640 sq.
yards situated at Hat Mama Bhaktawar, near Santhoshnagar colony, Hyderabad. The
suit was dismissed under the impugned judgment and decree dated 30.11.2000. The
parties are referred to as they are arrayed in the suit.
2.      The facts, which are borne out by the record, are as follows,
        The original plaintiff and the defendants 1 to 4 are brothers being the
sons of late Sharfuddin and late Mahboob Bee. Late Sharfuddin was the owner of
the suit house bearing No. 17-1-238 to 241 as well as other two houses, with
which we are not concerned in this suit. It is alleged in the plaint that late
Sharfuddin executed a gift deed dated 3.9.1953 whereby the suit schedule house
was gifted to his wife Mahboob Bee, out of love and affection and for the
services rendered by her, and towards her life maintenance. The other two houses
were exclusively gifted to the first plaintiff and the first defendant.
Sharfuddin died on 11.1.1966, whereas his wife Mahboob Bee died on 20.6.1988.
The plaintiff, therefore, alleges that after the death of Mahboob Bee, the life
interest created for Mahboob Bee with respect to the suit schedule house came to
an end and thereby the first plaintiff and the first defendant are entitled to
equally share the Matruka property. The plaintiff alleges that on 1.2.1993 he
demanded the defendants to make partition of the suit schedule house and for
separate possession and as the same having been denied, the present suit was
filed for partition and separate possession, on 11.2.1993.
3.      The defendants 1 to 4 resisted the suit by filing their written statement
claiming that under the registered gift deed dated 3.9.1953 Mahboob Bee became
exclusive owner of the suit schedule house and under the same document the first
defendant was exclusively gifted another house bearing H.No. 17-1-385 to 387.
It is further alleged that Mahboob Bee during her life time executed a
registered sale deed dated 27.8.1970 in favour of wife of first defendant and as
such there is no Matruka property left by her, when she died on 20.6.1988.  It
is alleged that the plaintiff being aware of the sale made by Mahboob Bee in
favour of wife of first defendant, did not challenge the same and only in the
year 1993 he filed the present suit for partition suppressing the said sale.
4.      The original plaintiff and the first defendant died pending the suit and
the plaintiffs 1 to 6 are the legal heirs of original plaintiff, whereas the
defendants 9 to 29 were impleaded as legal heirs of first defendant.
5.      The plaintiff No.3 examined himself as P.W.1 and a close relative of the
plaintiff as P.W.2. Similarly the defendant No.24 was examined as D.W.1 and the
defendant No.9 as D.W.2 who is the wife of first defendant. On behalf of the
plaintiff, Exs.A1 to 7 were marked and crucial document among them is Ex.A6-
copy of registered gift deed executed by late Sharfuddin dated 3.9.1953 which is
in Urdu and the English thereof was marked as Ex.A7. The defendants also filed
and marked original gift deed as Ex.B1 which is in Urdu and its English
translation as Ex.B2. The registered sale deed dated 27.8.1970 under which D.W.2
purchased the suit house is marked as Ex.B3 and English translation thereof is
marked as Ex.B4. The trial Court framed the following issues,
(1) Whether the plaintiff is entitled for preliminary decree for partition and
separate possession of the suit property?
(2) Whether the suit property is not Matruka property of late Mahboob Bee and
not liable for partition as contended by the defendants 1 and 2?
(3) To what relief?

The trial Court came to the conclusion that the translations of Ex.A7 and Ex.B2
do not tally with each other and as per Ex.B2-the translation, there is no life
interest created in late Mahboob Bee. The trial Court also held that even if any
conditions or restrictions are placed on Mahboob Bee, as a donee under Ex.B1,
based upon Section 164 of the Mulla's Principles of Mahomedan Law, the said
condition is void and thereby Mahboob Bee acquired an absolute interest in the
said gifted property i.e., the suit schedule property. The trial Court also held
that since late Mahboob Bee sold the said house to D.W.2 under Ex.B3, the
plaintiff is not entitled to claim that there is any Matruka property left by
late Mahboob Bee and consequently the suit was dismissed.
6.      In this appeal Sri K. Prathap Reddy, learned senior counsel appearing for
the plaintiffs/appellants contended that the trial court's findings are perverse
and contrary to the record and suffer from misreading of Ex.B1. He also
submitted that under Mohammedan Law there is no prohibition for gifting of the
usufructs while making a gift.  He submits that Mohammedan Law recognizes the
principle that a property can be gifted to a donee by reserving the usufructs
either in the donor or gifting the usufructs alone to a donee. The learned
senior counsel submits that Section 164 of the Mulla's Principles of Mahomedan
Law, relied upon by the trial Court, is misapplied to the present case by
thinking as if there is a gift of corpus and he fairly submits that even if
Ex.B1 is treated as a gift of corpus so far as Mahboob Bee is concerned, and if
there is any condition for restriction on it's enjoyment by the donee, to that
extent, the condition would become void, however that is not the case at present
and a fair reading of Ex.B1-gift deed clearly shows that Sharfuddin intended to
gift life interest only to Mahboob Bee and as such the gift is clearly valid.
He relied upon a decision of the Privy Council reported in Nawazish Ali Khan Vs.
Raza Khan 1 as well as on the decision of a Division Bench of this Court
reported in Shaik Mastan Be and others Vs. Shaik Bikari Saheb and others 2.
7.      Sri Basith Ali Yavar, learned counsel appearing for the respondents
submits that Ex.B1-gift deed is clear and unambiguous, inasmuch as the intention
of the donor was clear from the fact that out of three houses referred to in
Ex.B1, he gifted one house to his wife Mahboob Bee and one house each to his
both sons i.e., the first plaintiff and the first defendant. The learned counsel
also states that there is nothing in Ex.B1 to indicate that only life interest
was gifted to late Mahboob Bee. He, therefore, submits that any recital in the
gift deed putting restriction on the enjoyment of the property by Mahboob Bee
would be rendered void to the extent of such restriction. The learned counsel
submits that the trial Court has rightly appreciated the said fact that during
her life time itself Mahboob Bee sold the suit schedule house to D.W.2 and the
plaintiff never objected nor instituted any proceedings questioning the same.
The learned counsel, therefore, supported the trial Court's judgment and
contended that the suit is not maintainable as the sale deed-Ex.B3 in favour of
D.W.2 is not challenged in the suit.
8.      While hearing of this appeal, I found that there are two translations of
Ex.B1. While Ex.B1 is original document in Urdu, Ex.A6 is a copy of Ex.B1. Ex.A7
is English translation of Ex.B1 filed by the plaintiff along with Ex.A6, whereas
Ex.B2 is the English translation of Ex.B1 filed by the defendants along with the
original document-Ex.B1. Since there is a variation in the said two English
translations, the trial Court has chosen to follow Ex.B2-English translation,
while interpreting Ex.B1-gift deed. During the hearing of this appeal, when I
was confronted with these two contradictory translations, I requested both the
learned counsel to prepare an agreed translation of Ex.B1. The learned counsel
for the respondents has filed an English translation of Ex.B1, which was not
accepted by the learned counsel for the appellants. Thereupon, I directed the
Registry to get Ex.B1 translated through Translation and Printing Department of
the High Court and it was accordingly prepared and examined by both the learned
counsel who have made detailed submissions in the appeal, as briefly mentioned
above. Thus the problem relating to true translation mentioned above is required
to be resolved. As mentioned above, though there was oral evidence led by both
the parties, but controversy centers around the true and correct interpretation
of Ex.B1, dated 3.9.1953 and both the learned counsel rightly did not place any
reliance on the said oral evidence and have concentrated primarily on Ex.B1 and
the meaning it conveys.
9.      The questions, therefore, that fall for consideration are (1) the effect
of purport of Section 164 of Mulla's Principles of Mahomedan Law? and (2)
whether Ex.B1-gift deed falls within the provisions of the said Section 164?
10.     Section 164 of Mulla's Principles of Mahomedan Law reads as under,
        "164. Gift with a condition,- When a gift is made subject to a condition
which derogates from the completeness of the grant, the condition is void, and
the gift will take effect as if no conditions were attached to it (s)."
     
The Muslim personal law relating to gifts was very elaborately considered by the
Privy Council in Nawazish Ali Khan Vs. Raza Khan (1st supra) and it will be
useful to extract the paragraphs 19 and 21 of the said judgment for the purpose
of appreciating the issued involved,
"19......... In their Lordships opinion this view of the matter introduces into
Muslim law legal terms and conceptions of ownership familiar enough in English
law, but wholly alien to Muslim law. In general, Muslim law draws no distinction
between real and personal property, and their Lordships know of no authoritative
work on Muslim law, whether the Hedaya or Baillie or more modern works, and no
decision of this Board which affirms that Muslim law recognises the splitting up
of ownership of land into estates, distinguished in point of quality like legal
and equitable estates, or in point of duration like estates in fee simple, in
tail, for life, or in remainder. What Muslim law does recognise and insist upon,
is the distinction between the corpus of the property itself (ayn) and the
usufruct in the property (manafi). Over the corpus of property the law
recognises only absolute dominion, heritable and unrestricted in point of time;
and where a gift of the corpus seeks to impose a condition inconsistent with
such absolute dominion the condition is rejected as repugnant; but interests
limited in point of time can be created in the usufruct of the property and the
dominion over the corpus takes effect subject to any such limited interests.
...........
This distinction runs all through the Muslim law of gifts - gifts of the corpus
(hiba), gifts of the usufruct (ariyat) and usufructuary bequests. No doubt where
the use of a house is given to a man for his life he may, not inaptly, be termed
a tenant for life, and the owner of the house, waiting to enjoy it until the
termination of the limited interest, may be said, not inaccurately, to possess a
vested remainder. But though the same terms may be used in English and Muslim
law, to describe much the same things, the two systems of law are based on
quite" different conceptions of ownerships. English law recognises ownership of
land limited in duration; Muslim law admits only ownership unlimited in
duration, but recognises interests of limited duration in the use of property.
................
Their Lordships think that there is no difference between the several Schools of
Muslim law in their fundamental conception of property and ownership. A limited
interest takes effect out of the usufruct under any of the schools. Their
Lordships feel no doubt that in dealing with a gift under Muslim law, the first
duty of the Court is to construe the gift. If it is a gift of the corpus, then
any condition which derogates from absolute dominion over the subject of the
gift will be rejected as repugnant; but if upon construction the gift is held to
be one of a limited interest the gift can take effect out of the usufruct,,
leaving the ownership of the corpus unaffected except to the extent to which its
enjoyment is postponed for the duration of the limited interest."

11.     In a decision of this Court reported in Shaik Mastan Be and others Vs.
Shaik Bikari Saheb and others (2nd supra) a similar question was considered and
it was held that the intention of the donor has to be ascertained from the
document as to whether he intended to gift only life time interest in the
property to the donee and for that purpose a reading of the entire document is
essential. This Court further held as follows,
"After considering all these cases it is clear that a Sunni under Hanafi
Mohammedan Law cannot without consideration convey ownership of the property
with limitations for the life of the donee. But where the ownership is vested in
somebody and only the enjoyment of the property is conveyed or received, the
rules does not apply. Therefore limitation on the enjoyment of property is
permissible though it is not allowed on ownership. This separate enjoyment is
known as ariat and therefore if the reservations in favour of the donor under
Exhibits B1 and B2 be of this kind, they would be valid.
The passages in Exhibits B1 and B2, which persuade us to hold their having
conveyed immediate rights in the donees can be shortly stated. The relevant part
of Exhibit B1 reads as follows:-
"I have ...........conveyed to you under dakhal the hereunder schedule mentioned
immovable property...............belonging to me and created rights to your in
the property now itself".
Similarly, the relevant passage in Exhibit B2 reads thus:-
"I have......conveyed to you under dakhal the hereunder schedule mentioned
immovable property.........belonging to me and created rights to you in the
property now itself".
In our opinion, the intention indicated by these parts in the two documents is
that the donees were being then vested with the rights, which the owner had.
Therefore, what the donor preserved for herself was the retention of the
properties which, according to the later passages in the documents were for
enjoying the produce till her life-time. Mastan Bi, in her cross-examination as
P.W.1, admits that the 1st defendant and farm servants plough the lands and that
the 3rd defendant was paying the kist. She further admits that she herself had
not leased the lands to other persons. Also Madhav Rao, D.W.1 states that the
1st defendant was cultivating the lands. D.W.2 who is the 3rd defendant swears
that the 1st and the 2nd defendants were in possession of 8 1/2 acres. Exhibits
B9 and B10 are certified copies of the application for transfer of pattas in
favour of the donees. Exhibits B5 to B8 are abstracts of cultivation accounts
for Faslis 1358, 1359, 1360 and 1361 respectively showing that defendants Nos. 1
to 3 were in possession of Survey No. 110.  In addition, Exhibit B11 shows the
1st defendant as having raised tobacco on acre 1-50 cents in 1950-51. In these
circumstances, we have no doubt that Mastan Bi conveyed ownership of the
properties, which she got from her brother to her nephew and niece on the dates
of Exhibits B1 and Exhibit B2 and also delivered possession to the donees. It is
equally clear that she reserved only rights in the usufructs for herself during
her life, because she had in both the documents stipulated that she shall not
effect any alienation and create any right and interest in respect of the
property in any manner during her life. Then Mastan Bi in her cross-examination
as PW.1 admits that if the 1st and 2nd defendants maintain her, they should
enjoy the property. That was the arrangement. It follows that the donor reserved
to herself enjoyment of the produce of the properties and vested ownership in
the donees. That beding the nature of the arrangement. It follows that the donor
reserved to herself enjoyment of the produce of the properties and vested
ownership in the donees. That being the nature of the arrangement, the
limitation on the produce being enjoyed for life-time, would not be void".

12.     In the light of the above legal position, if we consider Ex.B1 with the
help of its translations on record, the following position emerges. As per Ex.A7
the relevant recitals are as follows,
"............Since I have reached the age of my normal life, and there is no
guarantee of life, as such I wish to gift with possession these houses, out of
natural love and affection and in lieu of obedience and for purposes of welfare
and life-time maintenance of my wife, Smt. Mahboob Bi, in favour of my own two
sons Sri Abdul Qadar, age (35) years and Muzaffaruddin, age (24) years,
excepting them there is no other lawful heir to me. That I have the full right
and authority to gift the above said property. Accordingly the house bearing No.
IIS-9-238 to IIS-9-241 situated at Hat Mama Bakathwar valued O.S. Rs. 150/-
(Rupees One hundred fifty only) is gifted by way of Gift Settlement, in favour
of my wife Smt. Mahboob Bi till her life time and the house No. IIS-9-251 to
IIS-9-253 situated at Hat Mama Bakthawar valued O.S. Rs.150/- (Rupees One
hundred fifty only) is gifted in favour of my son Abdul Qadar and the house No.
I-4-385 to 387 situated at Imliban valued O.S. Rs.200/- (Rupees two hundred
only) is gifted in favour of my son Muzaffaruddin............"

13.     Similarly, as per Ex.B2-translation the relevant portion is as follows,

"..........As I have become old aged and I reached to an age where there is no
hope of my life and death position, therefore, in view of natural love and
faithful services rendered by my wife Smt. Mahboob Bee and my two sons namely
Abdul Quader, aged 35 years, and Muzaffaruddin, aged 24 years, for looking after
me and maintaining me with love and affection and except them nobody is there as
my legal heirs and successors. As such I have full, sole and absolute right to
gift them with possession during my life time, my below mentioned owned and
possessed property, in the manner hereunder, The house bearing Nos. IIS-9-238 to
IIS-9-241 situated at Mama Baqtawar Haat, valued O.S. Rs.150/- in favour of my
wife Smt. Mahboob Bee; the house bearing Nos. IIS-9-251 to IIS-9-253 situated at
Mama Baqtawar Haat, valued O.S. Rs.150/- in favour of my son Abdul Quader; and
the house bearing Nos. I-4-385 to 387 situated at Imlibun valued O.S. Rs.200/-
to and in favour of my another son Muzaffaruddin........"

14.     As per the translation supplied by the Registry of this Court, the
relevant portion is as follows,
".........Since I have become aged, and there is no hope of life, therefore I am
intending to gift with possession of my houses, in view of natural love and
affection and faithful services for purpose of maintenance in favour of my wife
Smt. Mahboob Bee to the extent of this document and two own sons of this
Executant namely Abdul Khader, aged 35 years, and Muzaffaruddin, aged 24 years,
except themselves nobody can be legal heir, in my life time, of which I have
complete rights. Therefore, duly obtaining legal opinion having gifted away with
possession the house bearing Nos. IIS-9-238 to IIS-9-241, situated at locality
Hatt Mama Bakhtawar, value Rs.150/- O.S. (Osmania Sikka), to the extent of this
document in favour of this executant's wife Smt. Mahaboob Bee, house bearing No.
IIS-9-251 to IIS-9-253 situated at locality Hatt Mama Bakhtwar, valued Rs.150/-
O.S. in favour of this executant's son Abdul Khader, house bearing No. I-4-385
to 387, situated at locality Imli Ban, valued Rs.200/- O.S. in favour of this
Executant's son Muzafaruddin......."

15.     A conjoint reading of all the translations of Ex.B1 shows that Sharfuddin
had recorded natural love and affection as well as services rendered by his wife
and gifted the house property to her for making provision for her life time
maintenance. The translations of Exs.A7 and B2 are similar to that extent,
except the word 'life time maintenance' is missing in Ex.B2-translation. The
translation supplied by the Registry specifically states that apart from the
natural love and affection, faithful services, 'for the purpose of maintenance'
the gift was made in favour of Mahboob Bee. The Urdu text used the word
'parvarish' and 'Tajist'. While parvarish means nourishment, sustenance,
protection, patronage, rearing, fostering, upbringing etc., Tajist means, for
the purpose. The said two words, therefore, unmistakably point out that
Sharfuddin wanted to make provision for life time maintenance of his wife and
for her sustenance and in recognition of services rendered by her and out of
natural love and affection, the said gift deed was made. It is also very
striking to note that in all the three translations it is mentioned that the
donor had gifted the suit schedule house to Mahboob Bee as well as to his both
sons viz., Abdul Khader and Muzaffaruddin.  Exs.A7 and Ex.B2-translations show
that the gift was made by Sharfuddin in favour of Mahboob Bee as well as to his
sons. The translation supplied by the Registry also confirms to the same. A
reading of the entire text of Ex.B1-gift deed would unmistakably point out that
while gifting two other house properties to each of his two sons, the suit
schedule property was gifted by Sharfuddin to his wife Mahboob Bee for her life
time maintenance and for her protection as well as to his two sons together. The
Privy Council in Nawazish Ali Khan Vs. Raza Khan (1st supra) succinctly stated
that gifts of the usufruct (ariyat) is recognized under Muslim law and such gift
is not a gift of corpus. Further there was no necessity for the donor to write
the names of his two sons also while making the gift to his wife Mahboob Bee if
really corpus was gifted to late Mahboob Bee. The trial Court has completely
missed the aforesaid aspect and proceeded on the footing as if it is a gift of
corpus to Mahboob Bee.  It is no doubt true that if any condition is attached to
a gift of corpus, which runs inconsistent with or in derogation of gift, such
condition is held to be void as per Section 164 of the Mulla's Principles of
Mahomedan Law.  To my mind, a fair reading of the document Ex.B1 with the help
of translations on record, shows that the gift deed-Ex.B1 in respect of suit
schedule property was in two parts, while usufruct was gifted to Mahboob Bee,
the corpus was gifted to both of his sons.  When once we reached to the
conclusion that the gift to Mahboob Bee was only of usufruct and not corpus,
Section 164 of the Mulla's Principles of Mahomedan Law by itself will have no
application to the facts of the present case. Consequently after the death of
Mahboob Bee on 20.6.1988, the suit schedule house stands gifted to both the
sons, each having an equal share. The conclusion of the trial Court that there
was no Matruka property left by Mahboob Bee is, therefore, unsustainable.
Equally inconsequential the further contention of the defendants that Mahboob
Bee exercised her right and sold the property to D.W.2 under Ex.B3. Once it is
found that Mahboob Bee had only life interest and was entitled to the usufruct
only for her life sustenance, it cannot be said that she had a right to alienate
the property.  As noticed above, Mahboob Bee died on 20.6.1988 and the present
suit for partition was filed on 11.2.1993 within about five years of her death.
Once the plaintiff is held to be entitled to seek a decree for partition, any
unauthorized alienation made by Mahboob Bee has to yield to the said partition.
It is not necessary for the plaintiff to separately question the alienation made
by Mahboob Bee under Ex.B3 in favour of D.W.2. In my view, therefore, the points
1 and 2 deserve to be answered in favour of the plaintiffs/appellants and
consequently the judgment of the trial Court is liable to be reversed.
16.     Accordingly the appeal is allowed, the judgment and decree passed by the
trial Court are set aside and the suit filed by the plaintiffs/appellants shall
stand decreed as prayed for. No costs.

?1  AIR (35) 1948 PRIVY COUNCIL 134
2  1958 II An. W.R. 473

a conditional Hiba reserving life enjoyment is valid - .In general, Muslim Law draws no distinction between real and personal property, and their Lordships know of no authoritative work on Muslim law, whether the Hedaya or Baillie or more modern works, and no decision of this Board which affirms that Muslim law recognizes the splitting up of ownership of land into estates, distinguished in point of quality like legal and equitable estates, or in point of duration like estates in fee simple, in tail, for life, or in remainder. What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafi). Over the corpus of property the law recognizes only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests." Reliance also was placed on the decision of the Privy Council on the decision referred to (2) supra in this regard. In the decision referred to (4) supra, it was held that where property is transferred by way of a gift and the donor does not reserve dominion over the corpus of the property, nor any share of dominion over the corpus but stipulates simply for and obtains a right to the recurring income during his life, the gift and the stipulation are both valid and the reservation of usufruct does not by itself make the gift of the property in question void under Muhammadan law and that applies not only to Shias but also to Sunnis. In fact, the Division Bench of the Madras High Court in this decision had followed the decision of the Privy Council referred (2) supra and also NAWAB UMJAD ALLY KHAN Vs. Mt.MOHUMDEE BEGUM 14. The construction of a gift creating life interest in income of certain land under Muhammadan law had been dealt with in the decision referred (5) supra. In the decision referred to (8) supra, it was held that in the case of a gift to A for life and thereafter to B where there is no compelling language to the contrary, Courts might reasonably construe the gift as a gift of the corpus absolutely to B and of the usufruct to A for life so as to conform to the Muslim Law governing Hiba. In the decision referred to (3) supra where the intention indicated by the documents was that the donees were being then vested with the right which the donor had and thereafter the donor reserved for herself the retention of the properties which according to the later passages in the documents were for enjoying the produce till the donor's life time, by mere use of the word 'life-time' in the documents it cannot be said that the donee intended to convey only vested remainders in favour of the donees and that had that been her intention she would not have applied for transfer of patta in favour of one of the donees nor the gift deeds would have been accompanied with the possession of the property and in view of the language of the gift deeds the gifts in question were held to be valid. Further, reliance also was placed on the decision referred (6) supra. It is no doubt true that certain of the decisions cited are distinguishable on facts. But the question is when absolute rights had been transferred under a gift by a Mohammadan, whether such document will be invalid for the mere reason that the right to enjoy the property is postponed inasmuch as such rights are retained by the donor herself for life ? From the recitals of Ex.A-1, the intention of the donor is clear and categorical to convey absolute rights in favour of the appellant/plaintiff. In fact, while retaining the right to enjoy the income for maintenance, a restriction not to have the right of alienation, also is imposed and this is also suggestive of the fact that what had been conveyed by the donor to the donee under Ex.A-1 are absolute rights in the plaint schedule property and hence the mere fact that there was no delivery of possession in presenti on the date of the document cannot by itself invalidate Ex.A-1. In fact this is the view expressed even by the Privy Council in the decision referred (2) supra. On a careful reading of the decisions referred to supra, it can be seen that no contrary opinion had been expressed in this regard. In the case of passing of absolute rights under a gift by a Muhammadan, the postponment of enjoyment will definitely fall under an exception and on that ground it cannot be said that Ex.A-1 is invalid and this view expressed by me also is in accordance with the view expressed by our High Court in the decision referred to (3) supra and also a Division Bench of the Madras High Court referred (7) supra. It is needless to point out that in the light of the view expressed by me relating to the validity of Ex.A-1, the appellant/plaintiff is entitled to the relief prayed for since the validity of Ex.A-2 and Ex.A-3 will depend upon Ex.A-1 only. Except this Point, no other Points had been urged though relating to the conduct of the parties certain documents like Ex.A-23 and Ex.A-24 had been referred to. Hence, in view of the findings recorded by me relating to the interpretation of Ex.A-1, I am of the considered opinion that the appellant/plaintiff is bound to succeed in this Second Appeal.Accordingly, the Second Appeal is allowed. No order as to costs.


THE HONOURABLE SRI JUSTICE P.S.NARAYANA          
S. A NO.442 OF 1991

 10/07/2001


BEPARI SHAIK PEERAN    

petitioner

KAMALAPURAM MAHABOOB BI        
AND OTHERS  

respondent


COUNSEL FOR THE APPELLANT:  MR. K. SUBRAHMANYAM REDDY                

COUNSEL FOR THE RESPONDENTS: MR. NARASIMHA REDDY              



:JUDGMENT:-  
The unsuccessful plaintiff in the Courts below is the appellant.  The
appellant/plaintiff instituted the suit O.S.No.4/85 on the file of Principal
District Munsif, Proddatur for declaration of title relating to the plaint
schedule property and for recovery of possession and also for future mesne
profits and for costs of the suit.  Since the 2nd defendant died, her legal
representatives were brought on record as defendants 3 to 10 by an order in
I.A.No.233/85, dated 16-8-1985.
On the strength of the respective pleadings of the parties, Issues were settled
and the evidence of PW-1 to PW-6 and DW-1 to DW-4 had been recorded and Exs.A-1    
to A-26 and Ex.B-1 were marked and the Court of first instance after recording
evidence had arrived at a conclusion that the gift deed Ex.A-1 does not satisfy
the third ingredient of delivery of possession under the Muslim law and hence
the said document is not valid and after recording certain other findings also
apart from this finding, dismissed the suit and aggrieved by the same the
unsuccessful plaintiff had preferred A.S.No.1/87 on the file of Subordinate
Judge, Proddatur and the said Appeal also was dismissed and aggrieved by the
same the present Second Appeal is filed.
The real controversy in the present Appeal revolves around   Ex.A-1 - a gift
deed, executed by one Jahara Bi in favour of the appellant/plaintiff relating to
the plaint schedule property.  The principal question which had been argued
elaborately by both the counsel is relating to the validity of Ex.A-1.  Though
in the Grounds of Appeal several questions had been raised and also shown as
substantial questions of law, the only substantial question of law that arises
for consideration in this Second Appeal is as follows:
Whether the gift deed Ex.A-1 executed by a Muslim is invalid merely because the
third ingredient of delivery of possession is not satisfied though she had not
retained any other rights over the domain ?
Sri K.Subrahmanyam Reddy, the learned Senior Counsel appearing on behalf of the
appellant/plaintiff had mainly contended that the findings recorded by both the
Courts below that Ex.A-1 is invalid merely on the ground that the third
ingredient in the case of a gift by a Muslim i.e., delivery of possession is not
satisfied and hence the said gift is invalid, cannot be sustained since except
the right to enjoy the property during lifetime even without right of alienation
nothing more had been retained by the said Jahara Bi and hence the findings
recorded by both the Courts below that the document Ex.A-1 is invalid on the
said ground are totally illegal and unsustainable.  The learned Counsel no doubt
had pointed out to certain other relevant facts also but had mainly concentrated
only on this question and the learned Counsel further while elaborating his
submissions had maintained that if this question is decided, automatically the
appellant/plaintiff is entitled to succeed in the suit, especially in the light
of the peculiar findings recorded by both the Courts below.  The learned Counsel
pointed out to the relevant findings recorded by the Court of first instance and
also the appellate Court.  The learned Counsel further contended that as per the
recitals in Ex.A-1 it is clear that on the date of Ex.A-1 itself absolute rights
had been given away to the appellant/plaintiff, and what had been retained is
the right to enjoy limiting it to only maintenance without even right of
alienation and in the light of these recitals since all the rights had been
transferred except retaining the right of enjoyment, the gift cannot be said to
be invalid.  The learned Counsel also further maintained that when absolute
rights had been given under a gift, necessarily always the ingredient of
delivery of possession need not be satisfied and it is one of the exceptions.
The learned Counsel also had drawn my attention to the finding recorded by the
trial Court that absolute interest had passed in favour of the
appellant/plaintiff under Ex.A-1.  The learned Counsel further pointed out that
it was held to be invalid only on the ground that possession was not delivered
and the third condition relating to the validity of a gift by a Muslim had not
been satisfied.The learned Counsel also commented that the gift was questioned
only on the ground of fraud or coercion, but however the Courts below had gone a
step further and had arrived at the conclusion that Ex.A-1 is invalid for want
of satisfaction of the third condition for the validity of a gift by a Muslim
i.e., delivery of possession.  The learned Counsel incidentally had referred to
certain other documents like Ex.A-2 - registration copy of the gift deed,
executed by Jahara Bi in favour of the 1st defendant and    Ex.A-3 -
registration copy of the sale deed executed by the 1st defendant in favour of
the 2nd defendant and also the other documents, Exs.A-4 to A-22 and also Exs.A-
23, A-24, A-25 and a-26.  The learned Counsel also had placed reliance on
NAWAZISH ALI KHAN Vs. ALI RAZA KHAN 1, MD.ABDUL GHANI Vs. Mt.FAKHR JAHAN 2,              
MASTAN BI Vs. BIKARI SAHEB 3, K.VEERANKUTTY Vs. P. UMMA 4, MOHAMED Vs. KAIRUM 5,                
DURIESH MOHIDEEN Vs. MADRAS STATE 6, JAMEELA BEEVI Vs. SHEIK ISMAIL 7, SHAIK              
KHATUM BIBI Vs. MAHAMAD ZAHINA BI 8.      
Sri Narasimha Reddy, the learned Counsel representing the contesting
respondents, on the contrary had contended that both the Courts below had
recorded concurrent findings to the effect that Ex.A-1 is invalid since it does
not satisfy the most essential ingredient of delivery of possession in the case
of a gift by a Mohammadan.  The learned Counsel also had drawn my attention to
the essential ingredients of a gift under Mohammadan law and had commented that
the recitals of the document Ex.A-1 are clear and no absolute rights or absolute
domain as such had been created, but in fact, possession was not delivered and
it is not a case of retaining only enjoyment, but it is a case of non-delivery
of possession on the date of Ex.A-1 and hence unless the third essential
ingredient also is satisfied, such a gift by a Muslim is definitely invalid and
there cannot be any doubt as far as this aspect is concerned.  The learned
Counsel also with all emphasis had contended that under     Ex.A-2, not only the
gift was accepted, even possession was delivered and hence Ex.A-2 is definitely
a valid document, whereas Ex.A-1 is an invalid document.  Relating to the
absence of plea on the aspect of delivery of possession, the learned Counsel
commented that it is a matter relating to interpretation of a document and when
the validity of Ex.A-1 was specifically raised, all these questions are only
incidental questions and hence the Courts below are well justified in recording
such findings.  The learned Counsel also had drawn my attention to Ex.A-23 and
Ex.A-24 and had commented that these documents - G.P.A. dated    8-12-1983 and  
also the registered will dated 20-12-1983, clearly go to show that the
appellant/plaintiff also was conscious of the fact that this Ex.A-1 is an
invalid document and if that is not the reason there is no necessity of having
Ex.A-23 or Ex.A-24.  The learned Counsel also had meticulously taken me through
the findings recorded by both the Courts below and had ultimately concluded
stating that at any rate there is no substantial question of law involved in the
matter and hence in the light of the concurrent findings, the Second Appeal is
bound to fail in view of the limitations imposed on this Court under Section 100
of the Code of Civil Procedure.
Heard both the counsel at length.
The only substantial question of law which arises for consideration in this
Second Appeal had been already specified supra.  The plaint schedule property is
an extent of Acs.2-42 cents in Maduru Village.  It is not in dispute that
originally this property belonged to one Jahara Bi w/o.Fakruddin and she is the
mother's sister of the appellant/plaintiff.  The said Jahara Bi had only one son
and he died long ago and therefore she developed love and affection towards the
appellant/plaintiff and he was brought up as her foster son and out of love and
affection she had gifted the plaint schedule property on    7-5-1973 in favour
of the appellant/plaintiff and executed a registered gift deed - Ex.A-1. This is
the crucial document around which the whole controversy revolves.  As per the
terms of this Ex.A-1, the donor had to enjoy the income from the property during
her life but however she had no right of alienation and the other absolute
rights had been given to the appellant/plaintiff.  The said gift deed was
voluntarily executed and the same was accepted by the appellant/plaintiff and no
doubt subsequent thereto there were certain ill-feelings and hence the donor
left the house of the appellant/plaintiff and executed another gift deed dated
28-9-1979 - Ex.A-2, in favour of the 1st defendant in respect of the plaint
schedule property.  The 1st defendant had executed a sale deed in favour of the
2nd defendant and as already referred to supra, the legal representatives had
been brought on record.  The said sale deed dated 26-6-1980 is marked as Ex.B-1
and the registration copy of the said sale deed is marked as Ex.A-3.  Inasmuch
as the said Jahara Bi died on 14-12-1984 and in view of the fact that the cause
of action arose only subsequent to her death, the suit was instituted.  No
doubt, it is recorded that the 2nd defendant died even prior to the institution
of the suit but however defendants 3 to 10 were brought on record and defendants
5 to 10 remained ex parte.  Defendants 1 and 4 filed separate written statements
and the 3rd defendant filed adoption memo.  The stand taken by them is to the
effect that Jahara Bi was the absolute owner of the property and the
appellant/plaintiff had exercised undue influence and by playing fraud, obtained
the gift deed - Ex.A-1, and no doubt several other allegations had been made
relating to the aspect of undue influence and fraud.  It was also further
pleaded that Jahara Bi had learnt that fraud was played on her and hence she
executed another gift deed in favour of the 1st defendant with full rights and
thus she became absolute owner of the plaint schedule property by virtue of the
gift deed defendant    28-9-1979, marked as Ex.A-2.  The 4th defendant had taken
a stand that the 1st defendant is the owner of the plaint schedule property and
she had executed a registered sale deed in favour of the 2nd defendant - Ex.B-1,
and since then the 2nd defendant was in possession till her death and subsequent
thereto defendants 3 and 4 are in possession of the property.  A specific stand
was taken that the appellant/plaintiff will not get any title to the plaint
schedule property under the invalid gift deed - Ex.A-1.
As can be seen from the material available on record, the appellant/plaintiff is
the donee under Ex.A-1 and the 1st defendant/1st respondent is the donee under
the original of Ex.A-2 and the 1st defendant is the vendor and the 2nd defendant
who is no more is the vendee under Ex.B-1.  Several of the facts are not in
dispute and hence those facts need not be discussed in detail.  The Courts
below, apart from Ex.A-1 to Ex.A-3, had also discussed Ex.A-4 to Ex.A-22 and
also   Ex.A-23 to Ex.A-26. The plaintiff had examined himself as PW-1 and apart
from his evidence there is evidence of PW-2 to PW-6.  No doubt, PW-1 had deposed
about Ex.A-1 to Ex.A-26 and he had also taken specific stand that Jahara Bi in
fact was living with him only in the same house.PW-2 is a licenced document
writer at Proddatur and the scribe of Ex.A-1.  PW-3 is the attestor of the will
Ex.A-24.  PW-5 is one of the attestors of Ex.A-1 gift deed. These witnesses no
doubt had deposed about the voluntary execution of the gift deed Ex.A-1 by
Jahara Bi in favour of the appellant/plaintiff.PW-6 is the attestor of Ex.A-22 -
Mahazarnama.The 1st defendant was examined as DW-1 and DW-2 is the husband of    
DW-1. DW-3 is a resident of Chenchupalle village who stated that he cultivated
the suit land on lease for 35 years and he was giving 14 bags of paddy to Jahara
Bi towards lease and he gave grains for 2 years to DW-1 and thereafter stopped
cultivation. The 4th defendant was examined as DW-4.
Though several documents had been marked, Ex.A-1 to Ex.A-3 alone are crucial for
the present purpose.  As far as fraud and undue influence are concerned, the
Courts below had recorded finding that Jahara Bi executed Ex.A-1 voluntarily.
However the main ground on which Ex.A-1 was held to be invalid and consequently
Ex.A-2 and Ex.A-3 were held to be valid, was that there was no delivery of
possession under Ex.A-1 gift deed.  The essential ingredients of a gift under
Mohammadan law are as follows:
A declaration of gift by the donor; An acceptance of gift, express or implied by
or on behalf of the donee; delivery of possession of the subject matter of the
gift by the donor to the donee either physically or constructively.

Both the Courts below had recorded a finding that inasmuch as it is not the case
of the appellant/plaintiff that he had taken possession of the plaint schedule
property under Ex.A-1 and there is no recital also to that effect, the gift is
invalid. This is the exact question which had been elaborately argued by both
the counsel.
In THIMMAIAH Vs. NINGAMMA 9 it was held that unless the High Court in Second  
Appeal expressly arrives at a conclusion contrary to the concurrent findings of
the courts below, it must be taken that such findings are accepted and necessary
inferences from such findings must be necessarily made.  In VEERAYEE AMMAL Vs.    
SEENI AMMAL10 it was observed that it is distressing that despite amendment, the
provisions of Section 100 of the Code have been liberally construed and
generously applied by some Judges of the High Court with the result that the
objective intended to be achieved by amending Section 100 appears to have been
frustrated.  It is also true that no doubt the High Court while deciding a
Second Appeal arising out of concurrent findings should be more careful and
cautious while deciding the matter (V.PECHIMUTHU Vs. GOWRAMMAL 11, PADIKAL        
MADAPPA Vs. C.B. KARIAPA AND OTHERS 12).  In HAFAZAT HUSSAIN Vs. ABDUL MAJEED 13                
it was held that the rule of non-interference in the case of concurrent findings
is not an absolute rule of universal application. In the present case on hand,
the main question is interpretation of the recitals of Ex.A-1 and the legal
effect thereof.  No doubt, certain other documents had been marked and some oral
evidence also had been let-in by the parties.  On appreciation of facts, the
concurrent recorded by both the Courts below is that Ex.A-1 is invalid since it
does not satisfy the third ingredient of delivery of possession since it is a
gift made by a Muslim.  Since it is only the interpretation of a document, the
same being a pure question of law, can be definitely gone into in a Second
Appeal, since that by itself will be a substantial question of law.
The recitals of Ex.A-1 already had been dealt with supra.  The validity of Ex.A-
2 and Ex.A-3 will depend upon the validity or otherwise of Ex.A-1.  Further,
when Ex.A-1 is held to be valid, the subsequent documents Ex.A-2 and Ex.A-3 will
automatically fall to the ground. It is no doubt true that to constitute a valid
gift made by a Mohammadan, three ingredients are to be satisfied and the third
ingredient is delivery of possession.  Here is a case where as can be seen from
the recitals of Ex.A-1 absolute rights had been given to the appellant/plaintiff
and what had been retained was the limited right of maintenance to enjoy the
income out of the property and that too even without the right of alienation.
Thus, the intention of the donor Jahara Bi while executing Ex.A-1 is very clear
that she intended to deliver the entire domain of this property with absolute
rights in favour of the appellant/plaintiff, but however only retaining the
right to enjoy the income without the right of alienation during her lifetime.
This recital of postponement of the right to enjoy income from out of the plaint
schedule property by the appellant/plaintiff is construed to be non-delivery of
possession under Ex.A-1 and consequently it was contended by the learned Counsel
for the respondents that the document is an invalid document.  It is pertinent
to note that when absolute domain or absolute rights had been created in favour
of the appellant/plaintiff under Ex.A-1, the mere fact that the right to enjoy
the property under the said document had been postponed and that right of
enjoyment had been retained by Jahara Bi, by itself cannot invalidate Ex.A-1.
In the decision referred (7) supra, it was held that it is well established that
in order to constitute a valid gift under Mohammadan Law, three necessary
elements which constitute such a gift are, a declaration of gift by the donor,
acceptance of the gift by the donee, which acceptance may be express or may be
inferred by necessary implication and lastly delivery of possession of the
subject matter of the gift by the donor to the donee.  But, in the course of
time, certain exceptions have been engrafted in the matter of upholding of a
gift notwithstanding immediate delivery of possession of the subject matter of
the gift and one such exception is a case where the donor without reserving a
dominion over the corpus of the property or any share therein stipulates only
for a right to enjoy the income from the property during his lifetime or makes a
gift subject to a condition that the donee shall pay the whole of the income
from the property or a part thereof to a person of his choice during the
lifetime of such a person.  In the decision referred to (1) supra, the Privy
Council held as follows:
".....In general, Muslim Law draws no distinction between real and personal
property, and their Lordships know of no authoritative work on Muslim law,
whether the Hedaya or Baillie or more modern works, and no decision of this
Board which affirms that Muslim law recognizes the splitting up of ownership of
land into estates, distinguished in point of quality like legal and equitable
estates, or in point of duration like estates in fee simple, in tail, for life,
or in remainder.  What Muslim law does recognize and insist upon, is the
distinction between the corpus of the property itself (ayn) and the usufruct in
the property (manafi).  Over the corpus of property the law recognizes only
absolute dominion, heritable and unrestricted in point of time; and where a gift
of the corpus seeks to impose a condition inconsistent with such absolute
dominion the condition is rejected as repugnant; but interests limited in point
of time can be created in the usufruct of the property and the dominion over the
corpus takes effect subject to any such limited interests."

Reliance also was placed on the decision of the Privy Council on the decision
referred to (2) supra in this regard.  In the decision referred to (4) supra, it
was held that where property is transferred by way of a gift and the donor does
not reserve dominion over the corpus of the property, nor any share of dominion
over the corpus but stipulates simply for and obtains a right to the recurring
income during his life, the gift and the stipulation are both valid and the
reservation of usufruct does not by itself make the gift of the property in
question void under Muhammadan law and that applies not only to Shias but also
to Sunnis. In fact, the Division Bench of the Madras High Court in this decision
had followed the decision of the Privy Council referred (2) supra and also NAWAB
UMJAD ALLY KHAN Vs. Mt.MOHUMDEE BEGUM 14.  The construction of a gift creating      
life interest in income of certain land under Muhammadan law had been dealt with
in the decision referred (5) supra.  In the decision referred to (8) supra, it
was held that in the case of a gift to A for life and thereafter to B where
there is no compelling language to the contrary, Courts might reasonably
construe the gift as a gift of the corpus absolutely to B and of the usufruct to
A for life so as to conform to the Muslim Law governing Hiba.  In the decision
referred to (3) supra where the intention indicated by the documents was that
the donees were being then vested with the right which the donor had and
thereafter the donor reserved for herself the retention of the properties which
according to the later passages in the documents were for enjoying the produce
till the donor's life time, by mere use of the word 'life-time' in the documents
it cannot be said that the donee intended to convey only vested remainders in
favour of the donees and that had that been her intention she would not have
applied for transfer of patta in favour of one of the donees nor the gift deeds
would have been accompanied with the possession of the property and in view of
the language of the gift deeds the gifts in question were held to be valid.
Further, reliance also was placed on the decision referred (6) supra.
It is no doubt true that certain of the decisions cited are distinguishable on
facts.  But the question is when absolute rights had been transferred under a
gift by a Mohammadan, whether such document will be invalid for the mere reason
that the right to enjoy the property is postponed inasmuch as such rights are
retained by the donor herself for life ?  From the recitals of Ex.A-1, the
intention of the donor is clear and categorical to convey absolute rights in
favour of the appellant/plaintiff.  In fact, while retaining the right to enjoy
the income for maintenance, a restriction not to have the right of alienation,
also is imposed and this is also suggestive of the fact that what had been
conveyed by the donor to the donee under Ex.A-1 are absolute rights in the
plaint schedule property and hence the mere fact that there was no delivery of
possession in presenti on the date of the document cannot by itself invalidate
Ex.A-1.  In fact this is the view expressed even by the Privy Council in the
decision referred (2) supra. On a careful reading of the decisions referred to
supra, it can be seen that no contrary opinion had been expressed in this
regard.  In the case of passing of absolute rights under a gift by a Muhammadan,
the postponment of enjoyment will definitely fall under an exception and on that
ground it cannot be said that Ex.A-1 is invalid and this view expressed by me
also is in accordance with the view expressed by our High Court in the decision
referred to (3) supra and also a Division Bench of the Madras High Court
referred (7) supra.  It is needless to point out that in the light of the view
expressed by me relating to the validity of Ex.A-1, the appellant/plaintiff is
entitled to the relief prayed for since the validity of Ex.A-2 and Ex.A-3 will
depend upon Ex.A-1 only.  Except this Point, no other Points had been urged
though relating to the conduct of the parties certain documents like Ex.A-23 and
Ex.A-24 had been referred to.
Hence, in view of the findings recorded by me relating to the interpretation of
Ex.A-1, I am of the considered opinion that the appellant/plaintiff is bound to
succeed in this Second Appeal.Accordingly, the Second Appeal is allowed.  No
order as to costs.

?1 AIR 1948 P.C. 134
2 AIR 1922 P.C. 281
3 1958(2) An.W.R. 473
4 AIR 1956 MADRAS 514  
5 AIR 1954 MADRAS 769  
6 AIR 1957 MADRAS 577  
7 AIR 1979 MADRAS 193  
8 1956 An.W.R. 771
9 (2000) 7 SCC 409
10 (2002) 1 SCC 134
11 AIR 2001 S.C. 2446
12 AIR 2001 S.C. 2695
13 (2001) 7 S.C.C. 189
14 (1867) 11 M.I.A. 517