LAW FOR ALL

Thursday, June 28, 2012

a conditional gift is not maintainable under Muslim law "....The burden of proof is, therefore, on the person who sets up a gift to show that the rigid forms stipulated by the Muslim Law have been complied with. It is, hence, essential to the validity of a Muslim gift that the donor should divest himself or herself completely of all ownership and dominion over the subject of the gift before he or she can effect delivery of possession of the property gifted. Actionable claims and even incorporeal property can form the S.A.655/1996. 38 subject matter of the gift. If the gift is in respect of immovable property, it must effect an immediate transfer of the corpus of the property. Where a gift of the corpus is given and the donor does not reserve any dominion over the corpus but merely retains his right to take the produce or income or usufructus from the property, the gift is valid." 33. In this context it will also be useful to refer to the decision reported in Hafeeza Bibi v. SK. Farid ((2011) 5 SCC 654) wherein it was held as follows: "The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are: (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee; and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials makes the gift complete and irrevocable. However, the donor may record the transaction of gift in writing." S.A.655/1996. 39 34. From a reading of the relevant provisions of the Mohammedan Law and also the decisions referred to above, under the Muhammedan Law for validity of a gift four elements appears to be necessary. They are (i) Declaration of gift by donor. (ii) Relinquishment by donor over ownership and domain. (iii) Acceptance of gift by the donee. (iv) Delivery of possession of property by the donor. 35. It cannot be doubted that in order to complete the gift, the donor has to relinquish control and ownership over the property absolutely in favour of the donee. The donee should accept the gift. The acceptance signifies the intention of the donee to take the property. The gift is complete only on acceptance. It is also evident from the decisions on the point that the delivery of possession of the subject matter of gift is essential for a valid gift. It need not always be actual physical delivery. Such delivery as the S.A.655/1996. 40 subject matter would make it possible is sufficient.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 655 of 1996(C)

1. KADEEJAMMAL
... Petitioner

Vs

1. P.N.LAILA BEEVI
... Respondent

For Petitioner :SRI.PEEYUS A KOTTAM

For Respondent :SRI.T.P.MATHAI

The Hon'ble MR. Justice P.BHAVADASAN

Dated :07/07/2011

O R D E R
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - -
S.A. No. 655 of 1996
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 7th day of July, 2011.

JUDGMENT

Muhammed Hussain Rawther and Kadeeja

Ummal had seven children, namely, Saidu Muhammed

Basheer, Ameer Rawther, Aishamma @ Pathumma,

Kadir Beevi @ Hajira Beevi, Subaida Beevi, Laila and

Seenath. The couple executed Ext.A1 gift deed in favour

of four of their children excluding Subaida, Laila Beevi

and Seenath. Consequent on the death of Muhammed

Hussain Rawther, Laila Beevi and Seenath filed a suit for

partition of the assets left behind by Muhammed Hussain

Rawther. He died on 26.3.1988.

2. The suit was resisted by the defendants

pointing out that since the parents of the plaintiffs had

executed Ext. A1 gift deed, at the time of death of

Muhammed Hussain Rawther he retained no properties

to which the plaintiffs could succeed as heirs.

S.A.655/1996. 2

3. The main question that was posed before the

trial court for consideration was whether Ext.A1 gift deed

was valid or not. According to the plaintiffs, since the

ownership and domain over the property had not passed on

to the donees pursuant to Ext.A1 gift deed, the gift was

invalid. If that be so, according to them, so far as the

properties of Muhammed Hussain Rawther were concerned,

he died intestate. The defendants responded by pointing

out that the gift had taken effect and delivery of the

properties made mention of in the gift deed to each of the

respective donees has been effected. The trial court found

that Ext.A1 was a valid document and gifts had taken effect

and therefore no estate was left behind by Muhammed

Hussain Rawther to be inherited by the plaintiffs, their

siblings and their mother.

4. The plaintiffs carried the matter in appeal as

A.S.61 of 1992 before the Sub Court, Muvattupuzha. The

lower appellate court after referring to the various provisions

of the Muslim Law found that the gift was invalid and

S.A.655/1996. 3

accordingly passed a preliminary decree, which reads as

follows:

"In the result, appeal is allowed setting aside

the judgment and decree of trial court that (i) a

preliminary decree is passed for partition of the

plaint A schedule properties allowing the plaintiffs

to 6/72 each share of the plaint A schedule

properties

(ii) Defendants 3 and 6 are restrained from

committing waste in the plaint A and B schedule

properties.

(iii) The share of the income entitled by the

plaintiffs is left open to be considered in the final

decree proceedings. Plaintiffs are free to apply for

passing final decree within a period of 3 months

from today. Plaintiffs are allowing to get costs of

the proceedings from the estate."

5. Defendants 1, 3 and 6 in O.S. 36 of 1990

assailed the lower appellate court judgment and decree on

the ground that the lower appellate court was not justified in

holding that the gift was invalid.

S.A.655/1996. 4

6. Notice is seen issued on the following questions

of law:

"A) Whether Ext.A1 gift deed is a valid one.

B) Whether the stipulation in the gift deed that

donor reserving the right to recurring income

during his life time will made the gift invalid.

C) Whether a partition suit is maintainable with

regard to property which is not in ownership and

possession of the deceased at the time of his

death."

7. Learned counsel appearing for the appellants

pointed out that the lower appellate court had erred in law

and on facts in coming to the conclusion that the gift

evidenced by Ext.A1 is invalid. Evidence was clear to the

effect that in pursuance to Ext.A1 gift deed, the respective

donees had taken possession of the properties and were

enjoying it as if it belonged to them. Several assignments

have been effected after Ext.A1 and infact donors had

conceded that the gift has taken effect by joining in some of

the assignment deeds. Learned counsel pointed out that it

S.A.655/1996. 5

is true that the donors had reserved life estate over the

properties gifted as per Ext.A1, but since the corpus was

transferred, reservation of life interest over the suit property

and the right to take income therefrom does not derogate

from the gift or does not cut down the gift. Even assuming

that there are some provisions which derogate from the gift,

according to learned counsel, going by Section 164 of the

Mohammedan Law, the condition is invalid and gift takes

effect. According to learned counsel, the lower appellate

court was not justified in coming to the conclusion that the

corpus was retained by the donors and there was no delivery

of the property. The grounds relied on by the lower

appellate court to hold so, according to learned counsel, are

totally erroneous. In support of his contention, learned

counsel placed reliance on the decision reported in

Nawazish Ali Khan v. Ali Raza Khan (AIR 1948 Privy

Council 134), Kadija Beevi v. Maria Ummal (AIR 1958

Kerala 264), Ahemmed Kannu Rawther v. Mohammad

Kani (1965 K.L.T. 505), Madathil Thattantavita Khalid v.

S.A.655/1996. 6

Palott Moothammantakath Sainabi (ILR 1981(2) Kerala

721), M.T.Khalid v. P.M. Sainabi (AIR 1981 Kerala 230),

P.Kunheema Umma v. P. Ayissa Umma (AIR 1981 Kerala

176), Ibrahim Kunju v. Pakkeer Muhammed Kunju

(1984 K.L.J. 890), Pathu Muthummal v. Asuma Beevi

(1986 K.L.T. 1177), Kunhamina v. Katheessa (1989(2)

K.L.T. SN 61), (2006(2) K.L.T. 835), Kochu Ahmmed Pillai

v. Pathummal (2003(1) K.L.T. 826), and Kadeesabi v.

Mohammed Koya (2011(2) KHC 649). Accordingly, it is

contended that the findings of the lower appellate court are

unsustainable and have to be set aside.

8. Per contra, learned counsel appearing for the

contesting respondents pointed out that the lower appellate

court has correctly analysed the provisions in the gift deed

and has come to the conclusion that there was no transfer of

the corpus in pursuance to Ext.A1. On the terms of Ext.A1 it

was found, according to learned counsel that the donors had

retained control and possession over the corpus and the

property were to be taken by the respective donees only

S.A.655/1996. 7

after the lifetime of the donors. Learned counsel drew the

attention of this court to the recital in Ext.A1 and pointed out

that it is not as if the conditions are subsequent. It is clear

from a reading of the document that the gift is subject to

certain conditions. It can be clearly seen, according to

learned counsel, that the donors retained dominion and

ownership over the corpus and if that be so, the lower

appellate court was perfectly justified in holding that the gift

was invalid. Learned counsel went on to point out that the

subsequent assignments by the respective donees, even

assuming that the donors had joined the said assignments,

will not improve the situation. The validity of the gift,

according to learned counsel, will have to be determined by

referring to the recitals to the document and not by

subsequent conduct. Learned counsel went on to point out

that subsequent conduct may be a relevant fact when the

document is ambiguous or when it is difficult to gather the

true intention of the donor from the document. In the case

on hand, no such ambiguity exists and the terms of the

S.A.655/1996. 8

document are very clear and if that be so, there are no

grounds to interfere with the judgment and decree of the

lower appellate court. In support of his contention, learned

counsel relied on the decisions reported in Beepathumma

v. M.N.M. Rowther (AIR 1977 Kerala 54), Mahboob

Sahab v. Syed Ismail ((1995) 3 SCC 693), Laila Beevi v.

N.Sumina (2009(3) KHC 661) and Abdul Rahim v. Sk.

Abdul Zabar ((2009) 6 SCC 160).

9. The fate of this appeal should therefore depend

upon the construction of the terms of Ext.A1 document. If on

a construction of the terms of the deed, it is found that the

gift has taken effect, necessarily the judgment and decree of

the trial court will have to be restored. If on the other hand

it is found that the donors have retained ownership and

dominion over the property and the donees have not

obtained possession pursuant to Ext.A1, then of course no

interference is called for with the judgment and decree of

the lower appellate court.

S.A.655/1996. 9

10. It is trite that each case will have to be

considered with reference to the terms of the deed that

came up for consideration and precedents are of no help in

this regard. Precedents only laid down certain principles to

be followed and cannot be readily borrowed to construe the

terms of a document. The intention and the consequences

of the recitals will have to be ascertained by reading the

document as a whole.

11. Ext.A1 is the gift deed in question. The

relevant recitals read as follows:

"
, ,

."

(since the marriage of four of you have already been

conducted and Subaida, Laila and Seenath have been given

all rights which they had at the time of their marriage and it

is decided that they need not be given anything further.)

S.A.655/1996. 10

".......

,

,

."

(A schedule is set apart to executee No.1, B schedule and

the building therein with the foundation for a new building to

the second excutee, C schedule to the third executee, D

schedule to the fourth executee subject to the conditions

herein. It further recites that the donees may effect

mutation and pay property tax and make improvements

after the death of each of the donors and enjoy as if it

belonged to each of the donees.)

"...

S.A.655/1996. 11

-

-

."

(The donees have the right to enjoy and take the income

from A to D schedule properties now available and that may

be available in future and also the right of residence in

buildings contained in A and B schedules now available and

that may be put up in future consequent on the death of

one of the donors the surviving member will have the same

rights. In addition the donors have the right to encumber

the properties for any amount over any of the properties in

S.A.655/1996. 12

A to D schedules and also to create documents in respect of

any of the properties. This right may be exercised jointly or

any one of the surviving members and the rights so

reserved is absolute in nature. The recital also mentions

that if any charge is created over the property, that has to

be discharged by the respective donees who have been

allotted the properties under the gift deed.)

12. It is the above recitals that arise for

consideration in this case. As already noticed, the

contention of the learned counsel appearing for the

appellants are two fold. They are (i) there is a transfer of

ownership and dominion over the properties immediately

and the donors retained only the right of life estate and the

right to take usufructuous from the property, (ii) even

assuming that there is a condition limiting the estate, that

is void under Section 164 of the Muhammedan Law.

13. Learned counsel for the respondents on the

other hand pointed out that a reading of the recitals

extracted above will clearly show that there was no

S.A.655/1996. 13

divestiture of the rights over the property in favour of the

donees and if that be so, the gift is invalid.

14. Before going further into the matter, it will be

useful to refer to the relevant provisions of the

Muhammedan Law and the decisions relied on by counsel on

either side. This court is fortunate to note that the lower

appellate court has infact referred to Sections 138, 148, 149

and 150 of the Muhammedan Law by Mulla. Section 138

defines what a gift is. Section 148 mentions about the

ingredients necessary for a gift and Section 149 mentions

the three essential conditions for a gift and Section 150

speaks about the necessity for delivery of property to

complete the gift. In addition to the above provisions, one

may also note Section 164, which reads as follows:

"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.A.655/1996. 14

15. After referring to the various decisions, one

shall come back to ascertain the true purport and intent as

could be gathered from the deed.

16. In the decision reported in Nawazish Ali

Khan's case (supra) it was held as follows:

"What Muslim law does recognize and insist

upon, is the distinction between the corpus of the

property itself and the usufruct in the property.

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.

"If a person bequeath the services of his

slave, or the use of his house, either for a definite

or an indefinite period, such bequest is valid;

because as an endowment with usufruct, either

gratuitous or for an equivalent, is valid during life,

S.A.655/1996. 15

it is consequently so after death; and aos, because

men have occasion to make bequests of this

nature as well as bequests of actual property. So

likewise, if a person bequeath the wages of his

slave, or the rent of his house; for a definite or

indefinite term, it is valid , for the same reason. In

both cases, moreover, it is necessary to consign

over the house or the slave, to the leatee,

provided they do not exceed the third of the

property, in order that he may enjoy the wages or

service of the slave, or the rent or use of the

house during the term prescribed, and afterwards

restore it to the heirs."

This distinction runs all through the Muslim

law of gifts-gifts of the corpus (hiba) , gifts of the

usufruct and usufructuary bequests. No doubt

where the use of a house is given to a man for his

life he may, not inaptly, be terms 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 ownership.

S.A.655/1996. 16

English law recognizes 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."

"..... 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

the 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.

17. It needs to be noticed at once that the

document construed in the above case is a Will and the

recitals in the document have been extracted in paragraph

11 of the judgment. The principle laid down in the said

decision appears to be that it is possible to retain a life

S.A.655/1996. 17

estate after complete divestiture of the ownership and

dominion in favour of the donees. That does not militate

against the gift under the Mohammedan Law. It is also

discernible from the above decision that any condition

subsequent in derogation of the absolute right given to the

donees is invalid and void.

18. In the decision reported in Kadija Beevi v.

Maria Ummal (AIR 1958 Kerala 264) it was held as follows:

"According to the principles of Muhammadan

law a gift of immovable properties of which the

donor is in actual possession is not complete

unless the donee is given possession. The mere

fact that the donor reserves the right to take the

usufruct during his life time does not mean that

possession is not given to the donees. Such a

reservation is quite consistent with delivery of

possession of the properties to the donees."

19. In the decision reported in Ahemmed Kannu

Rawther v. Mohammed Kani (1965 K.L.T. 505) it was held

as follows:

S.A.655/1996. 18

"But the case presents another feature. The

parties are Mohammadans. According to the law

governing them, life interests and vested

remainders are not recognised. Learned counsel

reling on Nawazish Ali Khan v. Ali Raza Khan

contended for the position, that the grant in this

case under Ext.XXXI was not of the corpus of the

properties, but only of their usufruct. The Privy

Counsel held in the case cited, as follows:

"Their Lordships feel no doubt that in no

doubt that in dealing with a gift under Muslim law,

the first duty of the court is to construe the gift. It

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."

It follows that if the grant falls under the

former part of the above, the 3rd defendant takes

absolutely notwithstanding the restriction or

limitation, but if it falls under the latter part,

S.A.655/1996. 19

namely, a grant of the usufruct of the property as

distinguished from the corpus, the grant limited

though it be for the third defendant's lifetime, is

valid.

.....The stipulation that the grantee may enjoy the

property cannot lend itself to the interpretation

that she was merely to collect and enjoy the

usufruct of the property. She ws even permitted

to grant releases of mortgages concerning the

properties, though with the attestation of her

husband."

The recitals in the document construed are available in

paragraph 2 of the judgment. On the terms of the

document, it was held by this court that the third defendant

in the said suit had nothing more than a life interest

terminable on her death.

20. In the decision reported in Madathil

Thattantavita Khadid's case (supra) a distinction was

drawn between transfer of ownership and dominion over the

property and the right to take usufructuous. The relevant

S.A.655/1996. 20

recitals in the document construed in that case is available

in paragraph 6 of the judgment. After construing the

document it was held as follows:

"Mohammedan Law does not recognise a gift

as valid unless three essential elements are found

to co-exist. (1) manifestation of the donor's wish

to give; (2) acceptance of the gift by the donee

either expressly or impliedly; and (3) taking of

possession of the subject-matter of the gift by the

donee either actually or constructively. Delivery

of possession need not necessarily be physical or

actual, but it should be delivery of such

possession as the subject-matter of the gift is

susceptible of. In Mohammedan Law there is a

clear distinction between a gift of the corpus and

a gift of the usufruts. Over the fomer the Law

recognizes only absolute dominion and admits of

no condition which seeks to limit that dominion;

whereas in the case of the latter a limited interest

can be created in which even the dominion over

the corpus takes effect subject to that limited

interest. Mohammedan law knows of no

ownership which is limited in duration; but it

S.A.655/1996. 21

recognizes interests of limited duration in the use

of the property. The gift deeds were intended to

be, and did operate, as an immediate and

irrevocable disposition of the properties in

question in favour of the donees. The reservation

of the usufructs in favour of the donor during his

life with authority to collect rents and profits as

the agent of the donees did not make the gift void

under Mohammedan Law."

21. In the decision reported in M.T. Khalid's

case (supra) the distinction between a gift of the surplus

and gift of the usufructuous was drawn. It was held as

follows:

"In Mohammedan law there is a clear

distinction between a gift of the surplus and a gift

of the usufructs. Over the former the law

recognizes only absolute dominion and admits of

no condition which seeks to limit that dominion;

whereas in the case of the latter a limited interest

can be created in which event the dominion over

the corpus takes effect subject to that limited

interest. Mohammedan law known of no ownership

S.A.655/1996. 22

which is limited in duration but it recognizes

interests of limited duration in the use of the

property. In Nawazish Ali Khan v. Ali Raza Khan

the Privy Council observed:

"In General, Muslim law draws no distinction

between real and personal property....... What

Muslim law does recognize and insist upon, is the

distinction between the corpus of the property

itself and the usufruct in the property. 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."

We are of the view that Exts. B2 and B3 were

intended to be, and did operate, as an immediate

and irrevocable disposition of the properties in

question in favour of the donees. The reservation

of the usufructs in favour of the donor during his

life with authority to collect rents and profits as

the agent of the donees did not make the gifts

S.A.655/1996. 23

void under Mohammedan Law."

22. In the decision reported in P. Kunheema

Umma's case (supra) the requirements of a gift of

immovable property under Mohammedan Law was

highlighted. It was held as follows:

"If as a matter of fact, even prior to the

execution of the document, the 1st defendant was

in possession of the property as allowed by the

donor, it was only the nominal right that the donor

was retaining with him that was required to be

delivered to the donee. In other words, if the khas

possession was already with the donee, what was

required to be given by the donor was only the

remaining rights. That could be done by mere

declaration and by the execution of the document,

as no other overt act is necessary. "

23. The decision reported in Ibrahim Kunju's

case (supra) considered three aspects. They are (i) a

recital in the deed of gift that the property is delivered is

S.A.655/1996. 24

prima facie proof of delivery of possession, (ii) reservation

of life interest is not objectionable and (iii) condition that the

donor can encumber the property is bad in law. In

paragraph 12 of the above decision, the recital in the

document that came up for consideration is extracted. It

was held as follows:

"The Mohammedan Law relating to gifts has

been clearly put by Justice Din Mohammed in Nazir

Din v. Mohammed Shah in the following words:

"The courts in this country have given effect

rather to the spirit of the rule than to its letter and

have upheld gifts in all cases in which the intention

to give on the part of the donor had been

expressed in most unequivocal terms and had

further been attended by all honest efforts on his

part to complete the gift by divesting himself of

the control over the property in such a matter as

would clearly imply his divestiture in the eye of

the law of the land."

"The raison D"etre of of this rule was the

avoidance of gifts that were vague, indefinite or

incomplete and the only test that should be

S.A.655/1996. 25

applied in such cases is whether the gift in

question is open to any of these objections; or in

other words, whether the donor has still

reserved to himself a loop-hole of escape or not."

As has been pointed out in the Travancore-

Cochin case Maitheen Beevi Umma v. Varkey and

in the Kerala Case Muhammad Pathummal Kadija

Beevi v. Maria Ummal Mohammad Pathummal that

while it is true that according to principles of

Mohammedan Law a gift of immovable properties

of which the donor is in actual possession is not

complete unless the donee is given possession,

the mere fact that donor reserves the right to

take usufruct during his life time does not mean

that possession is not given to the donees. Such a

reservation is quite consistent with delivery of

possession of the properties to the donees. A

condition in a deed of gift that the whole of the

usufruct would be taken by the donor during his

life time would not make the gift invalid if

possession of the subject matter of the gift was

given to the donees."

S.A.655/1996. 26

24. In the decision reported in Pathu

Muthummal's case (supra) in paragraph 3 the relevant

recitals in the document are seen extracted. It was held as

follows:

"The three essentials to the validity of a gift

in Mohammedan Law are (1) a declaration of gift

by the donor, (2) an acceptance of the gift,

express or implied, by or on behalf of the donee,

and (3) delivery of possession of the subject of the

gift by the donor o the donee as the subject of gift

is susceptible of. No physical departure or formal

entry is necessary in the case of a gift of

immovable property in which the donor and the

donee are both residing at the time of the gift. In

such a case the gift may be completed by some

overt act by the donor indicating a clear intention

on his part to transfer possession and to divest

himself of all control over the subject of the gift.

this rule applies to gifts of immovable property by

a wife to the husband and by a husband to the

wife, whether the property is used by them for

their joint residence, or is let out to tenants. The

fact that the husband continues to live in the

house or to receive the rents after the date of the

S.A.655/1996. 27

gift will not invalidate the gift, the presumption in

such a case being that the rents are collected by

the husband on behalf of the wife and not on his

own account.

......... The document says that the entire

rights are given in presente. The donee was

authorised immediately to effect mutation in her

name and get patta. She was also authorised to

pay tax for all the properties immediately. That

she complied with these provisions is not in

dispute. She was authorised to effect

improvements also. There is a provision which

says that she has to take possession of item No.1

after the death of the donor. Provision for

effecting improvements is commonly made even

though there is scope for a contention that

regarding item No,1 that provision is also

intended to take effect only after the death of the

donor. But in the immediate succeeding sentence

he made his intention clear. He clearly stated that

what he reserved with him was only the

enjoyment of the usufructs of item No.1 and the

freedom to reside in the building in item No.1 and

nothing else. That means he did not even retain

possession or right to effect improvements in item

S.A.655/1996. 28

No.1 and subject to his right of residence in the

building and the right to enjoy the usufructs of

that property the entire rights including

possession were handed over to the donee. In

such circumstances the provision that the donee

can possess and enjoy the property after his death

could only mean that till his death the wife is not

given the right to take usufructs of the property.

No other restriction could be inferred from the

circumstances. he has further clarified this

position by saying that subject to the right to take

usufructs and reside in the building as stated

above he has relinquished all other rights

immediately in favour of the donee. That is

further indication that except the two rights he

has relinquished all other rights including

possession also. The donee was already residing

along with donor and that residence is not

disturbed. In such a situation the declaration in

the gift without any physical departure or formal

entry was sufficient to put the donee who was

already in the premises into possession. Along

with these facts the explicit intention of the donor

to gift the properties and the reasons therefor

mentioned in the gift deed are also relevant."

S.A.655/1996. 29

25. In the decision in Kunhamina's case (supra)

it was held as follows:

"In a case where a gift deed has been

executed by a Muslim and if it satisfies the

essential ingredients of gift under the

Mohammedan Law mere recitals in the deed that

the donor is at liberty to enjoy the income during

his life time cannot render the gift bad. In a case

where 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. Mohammedan

Law makes a distinction between the corpus of

the gift and the usufruct. Any reservation of right

in manafi, so long as the ayn is transferred, does

not render the gift bad. Thus in a case where

there is declaration of the gift by the donor,

acceptance of the same, express or implied, by or

on behalf of the donee and delivery of possession

to the donee a mere recital that usufructs will be

enjoyed by the donor will not render the gift bad

on the ground that possession of the properties

have not been given to the donees. In a case

S.A.655/1996. 30

where a donor did not divest himself with the

corpus of the gift is bad. It will not be so if the

donor reserved right in himself to take the income

from the properties during his life time."

26. In the decision in Kochu Ahmmed Pillai's

case (supra) the recitals in the document that came up for

consideration are seen mentioned in paragraph 3 of the

judgment. It was held as follows:

"The unequivocal statement in the gift deed

gave absolute right to the first defendant and the

further condition that after the death of 1st

defendant, the plaintiff will get the property

cannot be enforced under the Mohammedan Law.

There is no life interest under Mohammedan Law,

for the corpus, though it is possible to provide for

a provision reserving the right to take usufructs

while giving the absolute right in the corpus to the

donee."

27. In the decision in Kadeesabi v. Mohammed

Koya (2011(2) KHC 649) it was held as follows:

S.A.655/1996. 31

"Now examining the decisive question

whether Ext. A2 gift deed had come into effect or

not, on which both the Courts below have

concluded that it has not, accepting the

contentions of the defendants, the significance of

Ext.A4 consent deed obtained by the donor from

the donees under Ext.A2 had been ignored as if

that deed was of no consequence. To consider

whether there was delivery of possession in favour

of the donees after execution of Ext.A2 gift deed,

the execution of Ext.A4 consent deed and what

are all stated thereunder is of great value, and, in

fact, the controversy arising for adjudication in the

suit for its resolution irrespective of other

materials produced and circumstances presented

has to be appreciated in the backdrop of Ext.A4

consent deed. The donor Cheriyakoya Haji, after

execution of Ext.A2 gift deed, nearly four months

later, got a consent deed (Ext.A4) from the donees

to enable him to have enjoyment of the property

till his life. Going through Ext.A4 gift deed, it is

seen, the donees gave their consent to the donor

to enjoy the properties covered by Ext.A3 till his

life time. The defendants have no case nor even

any challenge over the execution and also

S.A.655/1996. 32

acceptance of Ext.A4 by Cheiyakoya Haji, the

executant of Ext.A2, and thus, his obtaining of

consent from the donees for enjoyment of the

properties under Ext.A1 gift deed. If Ext.A2 deed

had not taken effect with delivery of possession to

the donees, there was absolutely no need for the

donor to obtain any sent as under Ext.A4 deed

from the donees for his enjoyment of the

property. What has been granted by the donees

under Ext.A4, it could be seen, is only a consent or

permission to the donor to enjoy the property till

his life time and not even of handing over the

possession of the property, which from the above

circumstances itself amply demonstrate that on

execution of Ext.A2 gift deed, the possession of

the property was delivered over to the donees.

Ext.A2 gift deed does not specifically contain a

statement as to delivery of possession, is not

material as such possession could be proved and

established by other circumstances surrounding

the execution of the gift and also what transpired

after the execution of the deed. In Ext.A2 gift

deed, it is specifically stated, after describing the

particulars of the properties covered, that it had

been given away as a gift to the donees and none

S.A.655/1996. 33

other would have any right over that property. No

reservation has been made in favour of the donor

even in respect of the enjoyment over that

property, which was, however, obtained by him

later, after Ext.A2 gift deed, under Ext.A4 consent

deed from the donee, is a telltale circumstance

that by making a declaration that none other

would have any right over the property and

handing over of possession to the donees on

execution of Ext.A2 gift deed."

28. A reading of the above decision shows that

there was an absolute gift in favour of the donees by the

document executed by the donor. Thereafter donor gets a

document executed by the donees entitling the donor to

take usufructuous during his lifetime. Later it seems that

the donor had cancelled the gift deed. The decision was

rendered in that context.

29. One may now refer to the decisions referred

to by the learned counsel for the respondents.

S.A.655/1996. 34

30. In the decision in Beepathumma's case

(supra) the recitals of the document which came up for

consideration are extracted in paragraph 5. It was held as

follows:

"......The phrase used is "kayvasom veche

aadaayangal anufavich varumaanom" which

normally should mean that the executant was

entitled to be in possession of the property and

enjoy the same by taking usufructs. That this is

so is clear form the latter portion of clause (2)

which specifically authorise the executee to be in

possession of the property and enjoy the same --

"Ningal kayvasom vache anulavicha

varumaanom" though that right would enure to

the executee only after the lifetime of the

executant. That if the donor reserves to himself

the right to be in possession of the corpus and

the right to enjoy the same, there cannot be a

valid gift under Muslim law, has been laid down by

Sir John Beaumont on behalf of the Board in

Nawazish Ali Khan v. Ali Raza Khan. It was said:-

"What Muslim law does recognize and insist

upon, is the distinction between the corpus of the

property itself and the usufruct in the property.

S.A.655/1996. 35

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."

The passage above quoted would mean that

Muslim law requires the gift of corpus itself and if

there is anything repugnant to such a gift, such a

repugnant condition would be invalid, but it is

necessary that the gift should be of the corpus.

We have earlier found, construing clause 92) in

each of the four documents that there was no gift

of the corpus, the executant having reserved to

himself all rights in respect of the corpus

including the right to take usufructs. To the same

effect is the decision of the Privy Council in

Mohamed Aslan Khan v. Khalilyl Rehman Khan,

AIR 1947 PC 97. Therein it was held that if

possession of the property was reserved with the

donor the gift is not complete. The afore said

decision was followed by this court in Hajee Kunju

S.A.655/1996. 36

Mamathu v. Asikutty, 1959 Ker LT 624 and

Pichakannu v. Aliyarkunju Lebba, 1963 Ker L.T

226. In the later decision Velu Pillai, J stated that

it was a fundamental rule of Muhammedan Law as

regards gifts that the donor should divest himself

completely of all ownership and dominion over the

subject of the gift and that a gift with a

reservation of possession by the donor during his

lifetime was void as held in Mohamed Aslan Khan

v. Khalilul Rehaman Khan, AIR 1947 PC 97. In

view of the decisions mentioned above we are at

one with the lower court in holding that the gifts

Exts.B1, B4, B6 and B7 are bad under the Muslim

law and that the same could not confer on the

respective executee any right in respect of the

property stated to have been gifted thereunder."

31. In the decision reported in Mahboob

Sahab's case (supra) it was held as follows:

"....It would thus be clear that though gift by

a Mohammedan is not required to be in writing

and consequently need not be registered under

the Registration Act; for a gift to be complete,

S.A.655/1996. 37

there should be a declaration of the gift by the

donor; acceptance of the gift, express or implied,

by or on behalf of the donee, and delivery of

possession of the property, the subject matter of

the gift by the donor to the donee. The donee

should take delivery of the possession of that

property either actually or constructively. On

proof of immovable property in the possession of

the donor, he should completely divest himself

physically of the subject of the gift."

32. In the decision reported in Laila Beevi's

case (supra) it was held as follows:

"....The burden of proof is, therefore, on the

person who sets up a gift to show that the rigid

forms stipulated by the Muslim Law have been

complied with. It is, hence, essential to the

validity of a Muslim gift that the donor should

divest himself or herself completely of all

ownership and dominion over the subject of the

gift before he or she can effect delivery of

possession of the property gifted. Actionable

claims and even incorporeal property can form the

S.A.655/1996. 38

subject matter of the gift. If the gift is in respect

of immovable property, it must effect an

immediate transfer of the corpus of the property.

Where a gift of the corpus is given and the donor

does not reserve any dominion over the corpus

but merely retains his right to take the produce or

income or usufructus from the property, the gift is

valid."

33. In this context it will also be useful to refer to

the decision reported in Hafeeza Bibi v. SK. Farid ((2011)

5 SCC 654) wherein it was held as follows:

"The position is well settled, which has been

stated and restated time and again, that the three

essentials of a gift under Mohammadan Law are:

(1) declaration of the gift by the donor; (2)

acceptance of the gift by the donee; and (3)

delivery of possession. Though, the rules of

Mohammadan Law do not make writing essential

to the validity of a gift; an oral gift fulfilling all the

three essentials makes the gift complete and

irrevocable. However, the donor may record the

transaction of gift in writing."

S.A.655/1996. 39

34. From a reading of the relevant provisions of

the Mohammedan Law and also the decisions referred to

above, under the Muhammedan Law for validity of a gift four

elements appears to be necessary. They are

(i) Declaration of gift by donor.

(ii) Relinquishment by donor over ownership and

domain.

(iii) Acceptance of gift by the donee.

(iv) Delivery of possession of property by the donor.

35. It cannot be doubted that in order to complete

the gift, the donor has to relinquish control and ownership

over the property absolutely in favour of the donee. The

donee should accept the gift. The acceptance signifies the

intention of the donee to take the property. The gift is

complete only on acceptance. It is also evident from the

decisions on the point that the delivery of possession of the

subject matter of gift is essential for a valid gift. It need

not always be actual physical delivery. Such delivery as the

S.A.655/1996. 40

subject matter would make it possible is sufficient.

However, it is very evident from a reading of the decisions

on the point that each case depended upon the facts and

circumstances of that case and the recitals in the deed

which came up for consideration.

36. Keeping the above principles in mind, an

attempt shall now be made to ascertain the true purport of

the recitals in Ext.A1 which had already been extracted.

The question that arises for consideration is whether on the

terms of the recitals extracted in the earlier portion of the

judgment, it could be said that soon after the execution of

the document there is a transfer of the properties dealt with

under the document in favour of the donees. The next

question is whether the donees have accepted the gift and

there has been a delivery of possession.

37. One is left with no doubt regarding the fact

that if an absolute estate is created initially and then a

condition is included derogating from the absolute estate so

created, the subsequent condition is void. It needs to be

S.A.655/1996. 41

noticed that in the cases relied on by the learned counsel

for the appellants, those were all cases an absolute estate

was created and thereafter clause violating the absolute

estate was incorporated in favour of the donor. Of course in

one of the cases, there was a subsequent clause which

enabled the donor to encumber the property to certain limit.

Still it was held that the gift was valid.

38. In the case on hand, the recitals extracted

above indicate the following:

(i) the donors can encumber any property to any

extent.

(ii) can create documents in respect of any of the

properties.

(iii) the right of the donees to take the property

absolutely arises on the death of the donors.

(iv) the deed does not mention that possession has

infact been given.

S.A.655/1996. 42

39. Apart from the above factors, the donors have

reserved the right to reside in the buildings in A and B

schedule properties and to take income that is available and

that will be available in future from all the properties.

40. Much was argued regarding the above

aspects by the learned counsel for the appellants. It was

pointed out that subsequent conduct is a relevant factor

and reference was made to Exts.A2 to A5, which are

assignment deeds executed by the donees along with the

donors in respect of the properties which are the subject

matter of Ext.A1. The contention is that the fact that the

donors have joined in some of those assignments will clearly

reveal that the intention of executing Ext.A1 was to transfer

the possession of the property and the property was taken

delivery of by the respective donees.

41. It is true that subsequently documents have

been executed in respect of the properties covered by

Ext.A1 and it is also true that the donors have joined in

some of them. D.W.1, who is one of donors under Ext.A1

S.A.655/1996. 43

has stated that pursuant to Ext.A1, the donees had taken

possession of the property and they were in enjoyment of

the same. She has also stated in her evidence that the

intention of the donors was to give the properties forthwith

to the respective donees. Reference was also made to the

evidence of P.W.1, who says that the respective donees are

in possession of the properties.

42. P.W.1 in her cross-examination of course

stated that whatever stated in Ext.A1 is correct and that as

per Exts.A2 to A5 the respective properties are in the

possession of the respective persons.

43. Reference has already been made to the

evidence of D.W.1, who as already noticed, is one of the

donors under Ext.A1. She would also say that the property

set apart to Ayishamma and Subaida had been alienated

after the properties were given to them as per Ext.A1. In

some of the documents, she says that, she and her

husband also joined. But her cross examination would

reveal that she had little knowledge about the contents of

S.A.655/1996. 44

Ext.A1. She had absolutely no idea as to who had given

instructions to prepare the written statement in the suit and

she is ignorant about the contents in the plaint as well as in

the written statement.

44. D.W.2 is the sixth defendant. He claims to

have put up a house in the property allotted to him. He also

speaks about Exts.A2 to A5 assignment deeds. According to

him even though it is recited in Ext.A1 that the donors could

encumber and alienate the property, they have no right to

do so. He has also stated that Ext.B2 was executed in his

name by his parents. In cross examination he would admit

that Ext.A1 recital is to the effect that the properties are to

be enjoyed by the donees after the death of the donors. He

would also concede that as per the recital in the document,

the properties are to devolve on the donees subject to

certain conditions. He would not dispute the recitals in

Ext.A1.

45. The core question that arises for

consideration is whether one has to go by the terms in

S.A.655/1996. 45

Ext.A1 or by the subsequent conduct. Primarily the law

seems to be that the document has to be construed and the

intention has to be ascertained. If only the terms of the

document are ambiguous and the intention is not discernible

from the recitals, then one can look into the subsequent

conduct. The trial court took the view that since the donees

are in possession of the property as per Ext.A1 document,

the gift has came into effect. The court was of the view

that the right to take usufructuous does not derogate from

the absolute grant by Ext.A1 document and that is the well

recognised mode of gift.

46. However, the lower appellate court took a

different view and on the terms of the document came to

the conclusion that since the donors during their lifetime

had retained the right to take usufructuous, encumber the

property and also alienate the property, it could not be said

that delivery has been given immediately and possession

has been taken by the donees in pursuance to Ext.A1

document. The lower appellate court also took aid of

S.A.655/1996. 46

Exts.A2 to A5 to come to the conclusion that since donors

had joined the documents, it is clear that they have retained

rights over the properties which are the subject matter of

Ext.A1. According to the lower appellate court if as a matter

of fact the donors had completely relinquished their rights,

it is unnecessary for them to join Exts.A2 to A5.

47. There can be no dispute regarding the fact

that going by the terms of Ext.A1 donors have the right to

take usufructuous, encumber the property to any extent and

also to alienate the property. The recital indicate that

during the lifetime of the donors, donees are not to enjoy

the property. It is not a case where there is an absolute gift

followed by the reservation of taking usufrctuous only from

the property or in other words it is not a case where the

corpus is transferred and the right to take usufructuous is

retained. It is not possible to accept the contentions raised

by the appellants that since there have been subsequent

assignment deeds and the respective donees have dealt

with the properties, it should be presumed that possession

S.A.655/1996. 47

has been given and delivery has been effected.

48. True, the subsequent conduct may be a

relevant factor. But one cannot ignore the terms of Ext.A1.

The nature of right reserved by the donors, the mode of

enjoyment, and also the extent of rights retained for

themselves clearly show that there is no divestiture of

ownership and dominion completely over the property in

favour of the donees. If on a reading of Ext.A1 one

concludes that there is no deliverty of possession and that

the donors have retained control over the properties, then it

is doubtful how far subsequent conduct can help the

defendants. It is significant to notice that there is nothing

to indicate that donees have effected mutation or paid

property tax in respect of the property in pursuance to

Ext.A1. Ext.A1 is dated 8.8.1979 and Exts.A2 to A5 are

from 1985 to 1989. Ext.B1 building tax paid by the sixth

defendant is in the year 1986. At the risk of repetition, one

may notice that the donors reserved the right to enjoy the

property, they reserved the right of residence, they retained

S.A.655/1996. 48

the right to encumber the property to any extent and also to

alienate the same. The essential ingredients to constitute

ownership and possession therefore are retained by the

donors. It is not a case where an absolute grant is made

and thereafter conditions in derogation of the absolute grant

is included in Ext.A1. As already noticed, the deed begins

by saying that it is subject to certain conditions. That

means, the transaction effected as per Ext.A1 document is

subject to the conditions which are to follow. The condition

is not a subsequent one which is to be treated invalid or

void. Of course in one of the decisions relied on by the

learned counsel for the appellants, it was held that the

mere fact that the donors retained the right to encumber

the property to some extent by itself is not a ground to hold

that there is no delivery of possession and acceptance of the

gift. But that was on the basis of the recital in the document

that had come up for consideration in that case. In the case

on hand, it does not appear that the donors have completely

given up all their rights over the property covered by Ext.A1

S.A.655/1996. 49

and infact it would appear that they have retained their

rights and it was intended that the settlement should take

effect in favour of the donees after the death of the donors.

49. The trial court does not appear to have taken

note of the relevant recitals in Ext.A1 and was carried away

by the fact that the right is only to take the usufructuous

which is not objectionable in a deed of gift. However the

lower appellate court has considered the document and its

recitals and has come to the conclusion that the gift is

objectionable.

50. A very feeble contention was raised by the

learned counsel for the appellants that the gift is of the year

1979 and the suit was brought only in 1990. Meanwhile the

transactions have been challenged by the plaintiffs.

Without seeking recovery of possession, the suit was not

maintainable.

51. The contention is only to be rejected.

Plaintiffs have stated that they were unaware of the gift.

The mere fact that certain transactions have been effected

S.A.655/1996. 50

by the donees does not destroy the right of the plaintiffs and

the contention raised in this behalf is only to be rejected.

52. It cannot be said that the lower appellate

court had erred in any manner in coming to the conclusion

that the gift had not taken effect. The findings were

essentially based on the contents of the document and it

could not be said that the interpretation given by the lower

appellate court was quite unwarranted or unjustified by the

recitals in Ext.A1.

The result is that this appeal is without any merits

and it is liable to be dismissed. I do so confirming the

judgment and decree of the lower appellate court. There

will be no order as to costs.

P. BHAVADASAN,
JUDGE

sb.

Presence of certain aspects / phraseology / conditions may be indicative of a family arrangement reduced to writing with the purpose of using that as a proof of that they had arranged. (a) Document setting out all the terms and conditions of the family settlement in extenso. (b) Document mentioning that till then (execution of the said document) parties have been members of the joint Hindu family. (c) Where the document was written immediately after the understanding between the parties with regard to the arrangement. (d) Document containing Clause to the effect that parties are under the document release their rights under the document. (e) The settled position is that a document must be read as a whole and as to the nature of transaction under the document, it cannot be decided by merely seeing the nomenclature. (f) mere usage of past tense in the document should not be taken as indicative of a prior arrangement. (AIR 1998 SC 881)" "42. To sum up the legal position (I) A family arrangement can be made orally. (II) If made orally, there being no document, no question of registration arises. (III) If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act. (IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written. (V) However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered. (VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. (VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes. (VIII) Whether the purpose is a collateral purpose, is a question of fact depends upon facts and circumstances of each case. A person cannot claim a right or title to a property under the said document, which is being looked into only for collateral purposes. (IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in Section-35 of the Indian Stamp Act." 34. Here, the analysis of Ex.B.2, in the light of the above mandates would show that the said Ex.B.2 bears all the details that would contain in a partition deed. There is nothing to show that Panchayat was held on one day and the minutes alone were recorded subsequently. No doubt, there need not be any time gap between the oral partition / family arrangement and the recording of the minutes. But, if the document shows that that itself has been relied on as evidence of the partition as envisaged in the aforesaid decision, then such a document should be registered after it was duly stamped. Ex.B.2 is only an inauthentic photo copy.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 30/11/2006

CORAM:
THE HONOURABLE MR.JUSTICE G.RAJASURIA

A.S.No.822 of 1993

Shahul Hamid Rowther ... Appellant
Plaintiff

Vs

1.Diwan Pakir Rowther
2.Minor Masooda Beevi
3.Minor Nagoor Ammal
4.Maideen Fathummal ... Respondents
Defendants

(Minor respondents 2 & 3 represented by their mother and guardian 4th
respondent.)

Prayer

Appeal filed under Section 96 of Civil Procedure Code, 1908, against the
judgment and decree of the learned Subordinate Judge, Tenkasi, in O.S.No.172 of
1988 dated 05.03.1993.

!For Appellant ... Mr.T.M.Hariharan

^For Respondents ... Mr.S.Meenakshisundaram

:JUDGMENT

The unsuccessful plaintiff appeals.

2. This appeal is directed as against the judgment and decree of the
learned Subordinate Judge, Tenkasi, in O.S.No.172 of 1988 dated 05.03.1993.

3. The facts giving rise to the filing of the suit as stood exposited from
the averments in the plaint would run thus:

(a) One Mohamed Ismail died leaving behind his children namely, Diwan
Fakir Rowther, the first defendant, Mohammed ammal, the second defendant (since
died), Late Abdul Kareem - husband of the fifth defendant and father of
defendants 3 and 4 and the plaintiff Sahul Hameed Rowther herein.

(b) The said Mohammed Ismail, the propositus of the plaintiff and the
defendants, had one brother by name Diwan Fakir Rowther who died leaving behind
him his two daughters as his wife predeceased him. Since those two daughters
had no heirs, they donated the first item of the suit properties in favour of
(i) the deceased Abdul Kareem Aleem, (ii) the first defendant and (iii) the
plaintiff, as per the donation deed dated 22.3.1970. As such in respect of the
first item of the suit properties, those three donees were entitled to one-third
share each. Since Abdul Kareem Aleem died his two daughters namely, the third
defendant and the fourth defendant and his wife, the fifth defendant including
the plaintiff, the first defendant and the second defendant, are all entitled to
his one-third share. As such the following formula emerges as set out in the
plaint relating to the first item of the properties.
In the first item of the suit properties Abdul Kareem Aleem is entitled to 1/3
share i.e, 120/360 shares, in that his wife is entitled 120 / 360 % 1/8
= 15 / 360;
daughter - 3rd defendant is entitled to r r -35/360 in 120/360 -15/360
105/360;
4th defendant is entitled to 35/360 in 120/360;
brother - plaintiff is entitled to 120/360 - 05/360 - 35/360 2/7 - 14/360;

As per the above division the first defendant is entitled to 14/360;
sister - 3rd defendant is entitled to 1/7 - 7/360.

Therefore, in the first item of the suit properties, the parties are entitled to
the shares as follows:

Own share
Share of Abdul Kareem Asim
Total share
Plaintiff
120/360
14/360
134/360
1st defendant
120/360
14/360
134/360
2nd defendant

7/360
7/360
3rd defendant

35/360
35/360
4th defendant

35/360
35/360
5th defendant

15/360
15/360

(c) In respect of the second item of the properties which originally
belonged to the said Mohammed Ismail Rowther who died 40 years ago, the parties
are entitled to it as under:
---------------------------------------------------------
Share of Share of Father Abdul
Kareem Total
---------------------------------------------------------
Plaintiff 160/560 + 28/560 = 188/560
1st defendant 160/560 + 28/560 = 188/560
2nd defendant 80/560 + 14/560 = 94/560
3rd defendant 35/360 = 35/560
4th defendant 35/560 = 35/560
5th defendant 20/560 = 20/560
---------------------------------------------------------
(d) Since the said Abdul Kareem Aleem died two years ago, his daughters -
defendants 3 and 4, his wife -5th defendant, his brother - plaintiff,
defendants 1 and 2, his sisters, are all entitled to the share of the deceased
Abdul Kareem Aleem in respect of the second item of the suit properties. In
respect of the said Abdul Kareem Aleem's share of 160/360, the following formula
emerges as per plaint at page 5 and as such, in respect of the second item of
the suit properties, the following are the shares of the parties:
---------------------------------------------------------
Share of Share of Father Abdul
Kareem Total
---------------------------------------------------------
Plaintiff 160/560 + 28/560 = 188/560
1st defendant 160/560 + 28/560 = 188/560
2nd defendant 80/560 + 14/560 = 94/560
3rd defendant 35/360 = 35/560
4th defendant 35/560 = 35/560
5th defendant 20/560 = 20/560
---------------------------------------------------------
(e) The said second item of the suit properties is enjoyed jointly by the
parties to the suit. In the second schedule of properties on the southern side
to the north of vacant land of 42 feet, the house constructed by the said
deceased Propositus Mohammed Ismail, is situated. However, in the said vacant
plot of 42 feet on the extreme side of the second schedule property, the
plaintiff, 26 years anterior to the filing of the suit raised construction from
out of his own earning and its Door Number is 22. Actually, the house is
situated in an extent of 42 feet south to north and 11 feet east to west and it
is the exclusive property of the plaintiff. However, the plaintiff is also
entitled to the said house constructed by his father to the extent of 188/560
shares.

(f) Despite demands, the defendants have not come forward for amicable
partition of the properties concerned excluding the house constructed by him as
aforesaid. Hence the suit.

4. Denying and disputing, challenging and gainsaying the allegations in
the plaint, the defendants filed the written statement which would run thus:

(a) The averments in the plaint relating to the donation deed dated
22.3.1970 are correct. The plaintiff did not raise any construction on the
third item of the suit properties. On 2.2.1986 in the presence of
Panchayatdars, division was effected relating to all the properties including
the house allegedly constructed by the plaintiff and also the Nanja lands at
Pudhukulam Puravi, Vairvan village, which was not shown as one of the suit
items. In pursuance of the said division, the respective sharers are enjoying
them with effect from 2.2.1986. Accordingly, the suit is bad. As per the
partition dated 2.2.1986, it was so arranged that the first schedule property
was allotted to the share of the plaintif, the second item of the suit
properties was allotted to Abdul Kareem Rowther, the third item of the suit
properties was allotted to the share of Diwan Fakkir Rowther, the 1st defendant.

(b) The nanja lands described as the 4th item appended to the written
statement, was allotted to the second defendant and to Fathimuthu Bivi, the
daughter of the deceased Diwan Fakkir Rowther, for their lives, with the
condition that thereafter the property should be taken by Abdul Kareem Rowther.
The plaintiff and the first defendant were asked to pay a sum of Rs.5,000/- each
(owelty) by way of equalising the deficit share allotted to the share of Abdul
Kareem since at that relevant time, the plaintiff was in possession of the said
agricultural land. He was asked to share usufructs with his brothers after
deducting the expenses for such cultivation and after such harvest, he was bound
to hand over the property to the said Mohammed Ammal and Fathimuthu Bivi. It
was also stipulated that after the death of Abdul Kareem, his share should
devolve upon his two daughters, defendants 3 and 4 and his wife - 5th defendant.
The first defendant paid the said sum of Rs.5,000/- as agreed. However, the
plaintiff got extension of time for his contribution of Rs.5,000/-. Even though
the plaintiff agreed to pay lease amount to the second defendant - Mohammed
Ammal and to Fathimuthu Bivi, yet he failed to do so. The suit is bad for non-
joinder of the said Fathimuthu Bivi. Accordingly, the defendants prayed for
dismissal of the suit.
(c) In the written statement itself, the defendants furnished a schedule
of properties which according to them belonged to all the parties and which were
partitioned as set out supra in the written statement.

5. However, the plaintiff filed the reply with the averments inter alia,
as follows:

The agreement dated 2.2.1986 referred to in the written statement is false
and he did not agree to pay Rs.5,000/- to any one. The plaintiff's father
donated the said agricultural land by way of Hiba to the plaintiff. The
plaintiff reiterated his averments in the plaint.

6. Based on the above pleadings, the trial Court framed as many as five
issues.

7. During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to
A.4 were marked on his side. The first defendant examined himself as D.W.1
along with D.W.2 and Exs.B.1 and 2 were marked. The trial Court ultimately
dismissed the suit.

8. Being aggrieved by it, the plaintiff has preferred the above appeal on
the following main grounds among others:-

(a) The trial Court should have held Ex.B.2 inadmissible in law.

(b) The trial Court ought to have disbelieved Ex.B.1 as it is without the
backing of the pleadings. The alleged mediation was introduced for the first
time during trial.

(c) The allegation that the original of Ex.B.2 is with the
appellant/plaintiff, was not pleaded in the written statement.

(d) The trial Court ought not to have dismissed the suit, but should have
accepted the case of the plaintiff and decreed the suit.

9. The points for consideration in this appeal are as follows:
(i) Whether Exs.B.1 and B.2 are genuine documents and admissible in law?
(ii) Whether partition was effected among the family members as alleged in
the written statement?
(iii) Whether the plaintiff's father gave agricultural lands in favour of
the plaintiff by way of Hiba?
(iv) Whether house bearing Door No.22 was constructed by the plaintiff
from out of his own income.
(v) Whether there is any infirmity in the judgment and decree of the trial
court?

10. The parties are referred to hereunder in the same way as they were
arrayed in the suit before the trial Court.

11. Point Nos.(i) to (iv) are taken together for discussion in view of the
fact that they are interwoven and inter-linked with each other.

Point Nos: (i) to (iv)

12. Tersely and briefly, quintessentially and succinctly, the case of the
plaintiff could be portrayed to the effect that the properties common to the
plaintiff and the defendants should be partitioned except the agricultural lands
which were given to the plaintiff by the plaintiff's father by way of Hiba and
the house bearing door No.22, which the plaintiff had constructed over item No.3
of the plaint schedule properties.

13. The gist and kernel of the case of the defendants is to the effect
that the schedule of properties appended to the plaint does not refer to the
agricultural lands; the plaintiff's plea of Hiba relating to those agricultural
lands; as though given by his father-in-law, the house bearing door No.22 was
not constructed by the plaintiff from out of his income; the family arrangement
was effected among the plaintiff and the defendants and accordingly, all the
properties found described in the schedule of the written statement including
the properties described in the plaint, were divided and allotted to the
respective family members according to their entitlements; the plaintiff
accepting such family arrangement, cannot now veer round and take pleas quite
antithetical to what he committed himself in black and white in the form of
Ex.B.2.

14. Right at the outset, I may state that the discussion could be on the
following three sub-heads:
(i) The controversy relating to alleged Hiba.
(ii) The claim of the plaintiff over the house bearing door No.22.
(iii) The genuineness and validity or otherwise of Ex.B.2.

(i) The controversy relating to alleged Hiba:

15. The learned Counsel for the defendants would convincingly and cogently
raise the point that there are no averments in the plaint relating to the
alleged Hiba and the reply statement filed by the plaintiff also is silent on
it, for which I could hear no befitting reply argument so as to torpedo such a
plea put forth on the side of the defendants. The plaint is silent as silence
could be relating to Hiba. On seeing the defendants ushering in the
agricultural property also as one among the common properties of the parties,
the plaintiff has come forward with a reply which also was vague as vagueness
could be relating to Hiba. There should be clear averments as on which date
Hiba was given, where it was given and in the presence of whom. Following such
averments, there should be proof. Absolutely, there is no iota or shred of
evidence to show that such Hiba was given.

16. At this juncture, it is worthwhile to refer to certain dates and the
relevant happenings. The evidence of P.W.1, the plaintiff himself, would show
that 40 years anterior to the date of filing of the suit, his father died. The
suit was filed during the year 1988. 40 years anterior to 1988, would be 1948.
In such circumstances, it would amount to the plaintiff contending that such
alleged Hiba was given during the year 1948 or anterior to it.

17. The core question arises as to how at least from 1948, the said
agricultural lands which are allegedly the subject matter of Hiba were dealt
with by P.W.1 who categorically expatiates and narrates, details and delineates
that he was in Singapore for a term of 20 years and that he returned from
Singapore during the year 1980. In such circumstances, it has become all the
more important for the plaintiff to show as to how he enjoyed all the
agricultural lands.

18. The learned Counsel for the plaintiff would advance the argument to
the effect that the defendants themselves admitted in the written statement that
the plaintiff was in possession and enjoyment of the suit properties and that
itself would amount to the alleged Hiba having been acted upon. Such an
argument is neither here nor there, for the reason that simply because one co-
sharer or co-owner is in possession of the property, it cannot be presumed that
there was Hiba and that only in pursuance of such Hiba, he was in enjoyment. If
such a vague and sweeping statement is believed by the Court, then the valuable
right of the other sharers would be jeopardised and the genuine right of the
shares would be set at naught. The plaintiff's contention that he acquired
prescriptive title over the agricultural land is farfetched plea. The maxim
"Nec vi, nec clam, nec precario" should be in mind, while examining the plea of
prescription.

19. I need not dilate on the plea of prescription as it was not even worth
the paper on which it was written so far, this case is concerned and such a
half hearted plea was not backed by any averment or evidence. Ouster should be
pleaded and proved as against other co-sharers in order to succeed in proving
prescriptive title by a co-sharer and it is missing conspicuously. Here, the
plea of prescription was put forth by the plaintiff only for being rejected by
this Court 'a fortiori'. It has to be seen what is the definition of Hiba and
what the term Hiba means and in this connection, the following could be
extracted hereunder from Ameer Ali's Commentaries on Mahommedan Law [Fifth
Edition - 2004]:

"Definition of Hiba - In the Durr-ul-Mukhtar, a Hiba is defined as the
transfer of the right of property in the substance (tam-lik-ul-'ain) by one
person to another without consideration ('ewaz) but the absence of consideration
is not a condition in it. In other words a Hiba is a voluntary gift without
consideration of property or the substance of a thing by one person to another
so as to constitute the donee, the proprietor of the subject-matter of the gift.
It requires for its validity three conditions: (a) a manifestation of the wish
to give on the part of the donor; (b) the acceptance of the donee, either
impliedly or expressly; and (c) the taking possession of the subject-matter of
the gift by the donee either actually or constructively.

The Hanafi lawyers define Hiba as an act of bounty by which a right of
property is conferred in something specific without an exchange. In order to
distinguish a Hiba or gift, from a wasiat or bequest, Ibni Kamal (the author of
the Fath-ul-kadir) defines it as an immediate (fi'l hal) conferment of the right
of property. Similarly Sidi Khalil (the Maliki lawyer) defines it as an act of
liberality by which the proprietor bestows a thing without the intention of
receiving anything in exchange.

The Shiah lawyers, on the other hand, declare it to be an obligation (akd)
by which the property in a specific object is transferred immediately and
unconditionally without any exchange and free from any pious or religious
purpose on the part of the donor.

A verbal gift - A gift may be made verbally or by writing. The Transfer
of Property Act (IV of 1882) leaves this provision of the Mahommedan Law
untouched. And the Privy Council in the case of kamar-un-nissa Bibi v. Hussaini
Bibi, upheld a verbal gift when it appeared to be supported by all the
circumstances.

Sadakah or pious gift - There is another species of donation in vogue
among the Mussulmans, which is pious in its character and made in view of the
future life. This is called Sadakah. It takes its origin from the directions
contained in the Koran, notably in Sura II, verse 211, "the goods that you give
shall be known to God." This species of gift is irrevocable according to all
the schools, but we shall deal with it in the order in which it occurs.

Technically the donor or grantor is called Wahib, the donee Mouhoob-leh
and the subject-matter of the gift Mouhoob."

20. It is therefore clear that even though the father can give Hiba to one
of his sons in preference to others, it should be proved. It is a trait
proposition of law that witnesses might lie, but the circumstances would not
lie. Here, absolutely there is nothing to show under what circumstances, the
said propositus of the plaintiff and the defendants in this case, was actuated,
accentuated and geared to give such Hiba in favour of the plaintiff in
preference to his other children.

21. No doubt, there need not be any consideration for Hiba, but when such
factum of alleged Hiba is impugned as to its very existence, it is the bounden
duty of the plaintiff, who tried to press into service the Hiba, to prove the
circumstances.

22. To the risk of repetition, I would say that absolutely there is no
iota or shred of evidence to prove the Hiba and this point is decided
accordingly.

(ii) The claim of the plaintiff over the house bearing door No.22:

23. The onus of proof, trite as it is, on the plaintiff who pleads that it
was he who spent his own earnings in constructing the building on the property
belonged to all the co-sharers/co-owners. Incontrovertibly and indubitably, the
plot No.3 over which the plaintiff claims to have constructed the house bearing
door No.22 from out of his own money, belonged to all the co-sharers/co-owners
and in such a case, the normal presumption is that the structure belonged to all
the co-owners. There is no evidence to show on whose permission or concurrence,
connivance or assurance, such construction was raised. It is not the duty of
the defendants to prove that the plaintiff did not make such construction or as
to when such construction was raised. The version of P.W.1 remains only his
ipse dixit. It is therefore, clear that the said house bearing door No.22
should be treated only as the house belonging to all the co-sharers, namely the
plaintiff and the defendants as per Muslim Law.

(iii) The genuineness, validity or otherwise of Ex.B.2:

24. Ex.B.2 is the inauthentic photo copy of the document nomenclatured as
partition agreement dated 2nd February 1986, alleged to have been signed by the
three persons namely, Shakul Hameed(the plaintiff), the deceased Abdul Karim
(the husband of D.5 and father of D.3 and D.4), and also Diwan Pakir (D.1).
There is no plausible or probable explanation forthcoming from the defendants'
side about the original of Ex.B.2, even though, they would simply state that the
original is with the plaintiff. But, the plaintiff would gainsay it vehemently.
The plaintiff disowned his purported signature in Ex.B.2. On the defendants'
side, no plausible argument was forthcoming by way of buttressing and fortifying
Ex.B.2 which is an unregistered document.

25. Before probing into the fact whether Ex.B.2 could be taken as a legal
document at all, it should be seen whether ex-facie, it satisfies the least
requirement of a document. In three sheets of paper, the alleged signatures are
found, that too not decipherable. All the co-sharers have not purportedly
signed it even. The defendants would request and implore the Court to simply
dismiss the suit by relying on Ex.B.2 and such an expectation on the side of the
defendants is quite against law and justice.

26. The logic and ratiocination applied for rejecting P.W.1's theory of
Hiba, is equally to be applied for rejecting Ex.B.2 also. The valuable rights
of the co-sharers cannot be jeopardised by this inauthentic photo copy which is
not worthy of producing before the Court of law. The trial Court unmindful of
the legal provisions simply referring to Ex.B.2 and also by taking support from
Ex.B.1, simply dismissed the suit, which in my opinion is far from satisfactory.

27. D.W.1 would simply reiterate his stand in the written statement.
D.W.2, Ismail Rowther would try to corroborate unconvincingly the evidence of
P.W.1. D.W.2 is none but, the close relative of D.W.1, as D.5 is the daughter
of D.W.2. Hence, in such a case, his interested testimony cannot be taken as
sufficient to take away the valuable right of the plaintiff in seeking for
partition. The plaintiff cannot pin down to Ex.B.2 as though he voluntarily
signed it. D.W.2 would state that one Ali was the scribe of the original of
Ex.B.2, but he was not examined before the Court. Some persons in it also
purportedly signed as witnesses / mediators and none were examined before the
trial Court. Suffice to say, when one party seeks partition as against others,
this sort of document like Ex.B.2 and oral evidence of D.W.2 would by no stretch
of imagination be taken as sufficient or adequate.

28. The learned counsel for the respondents would cite the decision of the
Honourable Apex Court in Shivalingappa, K.G. v. Eswarappa, G.S reported in
2004(4) CTC 143 to the effect that when there is evidence that partition had
already been effected among the parties concerned, the High Court should not set
aside the concurrent finding of the Courts below in support of such earlier
partition. This judgment has been cited out of context in this case for the
simple reason that absolutely there is no evidence on record to show that there
was any oral partition before Panchayatars or in any other manner and that it
was acted upon. In fact, in the written statement itself, the grievance of the
defendants was that a sum of Rs.5,000/- which D.2 agreed to pay towards his
share of contribution, was getting postponed. The pertinent question arises as
to whether consequent upon the alleged execution of Ex.B.2 or as a sequelae of
Ex.B.2, there was any mutation of entries in the Government / Muncipal /
Panchayat / Revenue records.
29. In fact, the learned Counsel for the defendants himself with reference
to the evidence would state that the parties who are in enjoyment of the
respective properties are paying tax. But, there is no plausible answer from
the defendants' side as to why there is no mutation of entries as expected
supra. Relating to the aforesaid important test, the defendants failed. The
same logic is also applied to the agricultural properties as well as to the
house bearing door No.22, because in the revenue records / property tax register
as the case may be, there should have been mutation of entries by way of
incorporating the name of the plaintiff as the owner of the properties, if his
theory is true, as such, there cannot be one yardstick for the plaintiff and
another for the defendants.

30. It is therefore crystal clear that the pleas of both sides failed to
carry conviction with this Court.

31. However, for the purpose of comprehensively dealing with this matter,
the other decisions cited on both the sides are dealt with infra.

32. The learned Counsel for the defendants cited the decision of the
Honourable Apex Court in Marwari Kumbar v. Bhagwanpuri Guru Ganeshpuri reported
in 2000 (3) MLJ 184 (S.C) to the effect that if the original document is lost,
the secondary evidence of the contents could be given. Again, this decision is
cited out of context for the reason that Section 65(c) of the Evidence Act,
contemplates secondary evidence which is admissible as per the Indian Evidence
Act and not all inauthentic and illegible copies could be taken as secondary
evidence and it is quite obvious. I need not dilate further for the reason
adverted to supra.

33. The learned Counsel for the appellant cited the decision of this Court
in Lakshmipathy, A.C v. A.M.Chakrapani Reddiar reported in 2001 (1) CTC 112. An
excerpt from the above said judgment would run thus:

"32. Presence of certain aspects / phraseology / conditions may be
indicative of a family arrangement reduced to writing with the purpose of using
that as a proof of that they had arranged.
(a) Document setting out all the terms and conditions of the family
settlement in extenso.

(b) Document mentioning that till then (execution of the said document)
parties have been members of the joint Hindu family.
(c) Where the document was written immediately after the understanding
between the parties with regard to the arrangement.
(d) Document containing Clause to the effect that parties are under the
document release their rights under the document.
(e) The settled position is that a document must be read as a whole and as
to the nature of transaction under the document, it cannot be decided by merely
seeing the nomenclature.
(f) mere usage of past tense in the document should not be taken as
indicative of a prior arrangement. (AIR 1998 SC 881)"
"42. To sum up the legal position
(I) A family arrangement can be made orally.
(II) If made orally, there being no document, no question of registration
arises.
(III) If the family arrangement is reduced to writing and it purports to
create, declare, assign, limit or extinguish any right, title or interest of any
immovable property, it must be properly stamped and duly registered as per the
Indian Stamp Act and Indian Registration Act.

(IV) Whether the terms have been reduced to the form of a document is a
question of fact in each case to be determined upon a consideration of the
nature of phraseology of the writing and the circumstances in which and the
purpose with which it was written.

(V) However, a document in the nature of a Memorandum, evidencing a family
arrangement already entered into and had been prepared as a record of what had
been agreed upon, in order that there are no hazy notions in future, it need not
be stamped or registered.

(VI) Only when the parties reduce the family arrangement in writing with
the purpose of using that writing as proof of what they had arranged and, where
the arrangement is brought about by the document as such, that the document
would require registration as it is then that it would be a document of title
declaring for future what rights in what properties the parties possess.

(VII) If the family arrangement is stamped but not registered, it can be
looked into for collateral purposes.

(VIII) Whether the purpose is a collateral purpose, is a question of fact
depends upon facts and circumstances of each case. A person cannot claim a
right or title to a property under the said document, which is being looked into
only for collateral purposes.

(IX) A family arrangement which is not stamped and not registered cannot
be looked into for any purpose in view of the specific bar in Section-35 of the
Indian Stamp Act."

34. Here, the analysis of Ex.B.2, in the light of the above mandates would
show that the said Ex.B.2 bears all the details that would contain in a
partition deed. There is nothing to show that Panchayat was held on one day and
the minutes alone were recorded subsequently. No doubt, there need not be any
time gap between the oral partition / family arrangement and the recording of
the minutes. But, if the document shows that that itself has been relied on as
evidence of the partition as envisaged in the aforesaid decision, then such a
document should be registered after it was duly stamped. Ex.B.2 is only an
inauthentic photo copy.

35. It is quite obvious that the trial Court's discussions are in no way
connected with the ratiocination set out supra. What should be done with the
suit when the plaintiff has not come forward with full facts disclosing the
agricultural properties also in the schedule of the plaint.

36. The defendants supplied in their written statements what is missing in
the plaint, by setting out four schedules which include the properties of the
plaint schedule also. However, in the 4th schedule attached to the written
statement, there is no detailed description relating to agricultural lands and
the parties are expected to furnish during final decree proceedings.

37. This Court, therefore finds that the plaintiff is entitled to seek for
partition and for that matter both the defendants are deemed to be plaintiffs in
a partition suit and they are entitled to get all the four schedules of
properties partitioned among themselves as per Muslim Law. Accordingly, this
point is decided.

38. Exs.A.3, A.4, would not in any way be beneficial to the plaintiff in
support of his case. Ex.A.4 is only a house tax receipt relating to door No.22
which emerged on 14.11.1987 just prior to the date of filing of the suit.

39. Ex.B.1 is the letter allegedly written by the President of one Jamath
and it has no authenticity and the author of it, was also not examined. It is
more or less in the form of request for compromise.

40. The point Nos.(i) to (iv) are decided accordingly.

Point No:(v)

41. In view of the ratiocination adopted in deciding the aforesaid points,
the judgment and decree of the trial Court are liable to be set aside. Point
No.(v) is decided accordingly.

42. In the result, the appeal is allowed and the preliminary decree is
passed in O.S.No.178 of 1988 on the file of the Sub Court, Tenkasi, as follows:

(a) Relating to the properties described in the first schedule of the
plaint, the shares as claimed and set out in paragraph No.9 of the plaint, are
decreed.

(b) In respect of the properties described in the second and third
schedules of the plaint and in respect of the agricultural lands described in
the fourth schedule in the written statement, the methodology adopted in
dividing the shares and claimed at paragraph No.14 of the plaint, shall be
applicable and accordingly, decreed. The share of the second defendant in all
the properties shall be divided equally between the plaintiff and the first
defendant. The parties are expected to furnish the details of agricultural lands
to the trial Court at the time of passing final decree for effecting partition.
Accordingly, the preliminary decree is passed as above.

(c) The parties concerned adhering to the laws relating to partition
could apply for final decree and also get a Commissioner appointed for effecting
partition by metes and bounds and in the facts and circumstances of this case,
they have to bear their respective costs throughout.

To

The Subordinate Judge,
Tenkasi.

Proof of paternity- Sections 226 and 227 of the Muslim Law by THABJI (4th Edition at page 208) with reference to proof of paternity and presumption of acknowledgement of parentage respectively in support of his further argument that the documents ante litum mortem referred to above would establish the paternity of the plaintiff as well as the presumption of acknowledgement arising therefrom. 20. The above principles of law under Sections 226 and 227 read as follows:- "226. Proof of paternity: Statements by a member of the family touching the sonship or heirship of a person are good evidence of the family report concerning him. 227. Adoption not known to Muslim law: If a man has openly treated another as his child, it may be presumed that the former has acknowledged the parentage of the latter." 21. In view of the above provisions of law in the light of the documentary evidence under Exs.A-4, A-15 and A-16, the paternity of the plaintiff that he was born to Mohamed Sultan through his second wife Raguman Bibi has been amply established. Similarly, the acknowledgement of both Mohamed Sultan and his first wife Jamina Bibi as per Exs.A-4, A-15 and A-16 also lend support to the proof of paternity. As has been rightly argued by the learned senior counsel for the respondents, in view of the ratio laid down in the decision HOHAMMAD SADIQ v. MOHAMMAD HASSAN (AIR (30) 1943 LAHORE 225), the acknowledgement of Mohamed Sultan that the plaintiff is his son born through the second wife has to be held as proved until the contrary is established by the defendant adducing rebuttal evidence and the ratio laid down therein reads as follows: "The same subject has been dealt with in para 85 of Wilson's Ango Mahomedan Law where it is laid down that if a man has acknowledged another as his legitimate child, the presumption of paternity arising therefrom can only be rebutted by (a) disclaimer on the part of the person acknowledged; (b) such proximity of age, or seniority of the acknowledgee, as would render the alleged relationship physically impossible; (c) proof that the acknowledgee could not possibly have been the lawful wife of the acknowledger at any time when the acknowledgee could have been begotten. None of these four impediments has either been alleged or established in the present case."

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 20/06/2005

Coram

The Honourable Mr. Justice T.V. MASILAMANI

S.A. No.1410 of 1993

Pathamuthu Joharan .. Appellant

-Vs-

1. Syed Ibrahim (died)
2. Habuta Nachiar
3. Mahaboola Nisa
4. Kamarunnisa
5. Bokaruddin
6. Akber Ali .. Respondents

Second Appeal against the judgment and decree dated 10.2.1993 made in
A.S.No.213 of 1991 on the file of the District Judge, Nagapattinam confirming
the judgment and decree dated 9.5.1991 in O.S.No.56 of 198 8 on the file of
the Subordinate Judge, Nagapattinam.

!For Appellant : Mrs.G. Devi

^For Respondents : Mr.K.Chandramouli, S.C.
For Mr.A.Muthukumar.

:JUDGMENT

The defendant before the court below is the appellant.

2. The respondent filed the suit for recovery of possession of the
suit property from the appellant and for future mesne profits. The appellant
resisted the suit by filing written statement. The trial court having
analysed the evidence both oral and documentary adduced on either side and
upon hearing the arguments of both sides decreed the suit as prayed for and
directed a separate enquiry regarding future mesne profits under Order 20 Rule
12 C.P.C.

3. Aggrieved by the judgment and decree passed by the trial court,
the appellant preferred the appeal before the District Judge, Nagapattinam in
A.S.No.213 of 1991. The learned District Judge after considering the recorded
evidence and the arguments of both sides confirmed the judgment and decree
passed by the trial court and dismissed the appeal. Hence, the above Second
Appeal.

4. The averments in the plaint filed by the respondent/plaintiff may
be briefly stated as follows:-

(a) The common ancestor of the plaintiff and the defendant is
Sikkandar Rowthar. The plaintiff is the grand son of the Sikkandar Rowthar.
The defendant is the grand daughter of the said Sikkandar Rowthar through his
another son Mohamed Hussain. Sikkandar Rowther executed a settlement deed
dated 8.6.1935 in respect of all his properties in favour of his sons and he
retained the right of enjoyment over the properties settled thereunder during
his life time. 'A' schedule property in the settlement deed had been given to
Mohamed Sultan to be taken and enjoyed by him absolutely and 'B' schedule

property had been given to Mohamed Hussain absolutely. 'C' and 'D' schedule
properties in the settlement deed had been given to his 3rd son Mohamed Kasim
and his wife Fathima Bibi.

(b) The suit property is a portion of the house given to
Mohamed Sultan under the said settlement deed and the remaining portion of the
house was given to Mohammed Hussain. After the death of Sikkandar Rowthar his
sons, namely, Mohamed Sultan and Mohamed Hussain became entitled to their
respective portions in the house as per the settlement deed. The property tax
was paid by both of them in respect of the house property.

(c) After the death of Mohamed Sultan, all his properties
including the suit property had devolved upon his 2 wives and 3 sons and a
daughter by his second wife in accordance with the Muslim law. After the
death of one of the widows, Raguman Bibi, her share also devolved upon her 3
sons and a daughter. The plaintiff obtained the release deed dated 23.3.1983
from his two brothers, Mohamed Arif and Mohamed Ismail and sister Noorjahan.
Under sale deed dated 31.1.1984 having purchased the undivided share of his
step mother Jamina Bibi also, the plaintiff has become the absolute owner of
the suit property.

(d) The defendant obtained release deed from her mother Ajitha Bibi
and sisters Urunnisa and Noorjahan by means of a registered deed dated
29.12.1983. The defendant who is the grand daughter of Sikkandar Rowthar has
no manner of right or title to any portion in the suit property. Her claim
that her father Mohamed Hussain has prescribed title by adverse possession has
no legal basis and therefore the plaintiff is entitled to recover possession
of the suit property and to receive future mesne profits.

5. The averments in the written statement filed by the appellant/
defendant are briefly as follows:-

The plaintiff is not the son of Mohamed Sultan who had married
only one wife and therefore it is false to contend that Mohamed Sultan married
the mother of the plaintiff also. Sikkandar Rowthar had 3 sons Mohamed
Sulthan, Mohamed Hussain and Mohamed Kasim. The plaintiff has suppressed the
existence of the son Mohamed Kasim. Similarly, Syed Ebrahim and Mohamed Arif
and Mohamed Ismail and Noorjahan are not sons and daughter of Mohamed Sultan.
Therefore the plaintiff is not the grand son of Sikkandar Rowthar as alleged.
On the date of the settlement deed executed by Sikkandar Rowthar (i.e.,)
8.6.1935, Mohamed Sultan was living in Rangoon and therefore he did not accept
the settlement and obtained possession of the properties thereunder. Mohamed
Sultan had never enjoyed any of the properties covered by the settlement deed.
In fact, the defendant, daughter of Mohamed Hussain has been in possession and
enjoyment of the suit property. Further she has also perfected title to the
suit property by adverse possession. The suit is not valued properly for the
purpose of court-fee.

6. On the above pleadings, the following issues were framed by the
trial court for trial:-

(1) Whether the plaintiff is entitled to the relief of recovery of
possession of the suit property?
(2) To what relief, the plaintiff is entitled to?

7. In the appeal, the learned District Judge had also framed the
following issues for consideration:-

(1) Whether Mohamed Sultan had married two wives as claimed in the
plaint?
(2) If so, whether the plaintiff is the son of Mohamed Sultan through
his second wife?
(3) Whether the defendant has perfected title to the suit property by
adverse possession?

8. Having perused the recorded evidence and upon hearing both sides,
the courts below have rendered concurrent judgments holding that the
respondent is entitled to the suit property, that he is the son of Mohamed
Sultan born through his second wife, that the appellant has not perfected
title to the suit property by adverse possession and that therefore the
respondent is entitled to the reliefs as prayed for.

9. Heard Mrs.G.Devi, learned counsel for the appellant and Mr.K.
Chandramouli, learned senior counsel for the respondents.

10. The learned counsel for the appellant/defendant has argued that
the courts below failed to consider the document under Ex.A-2 whereby the
house was divided into two portions, one settled in favour of Mohamed Sultan
and another in favour of Mohamed Kasim and Mohamed Sultan had not accepted the
settlement and taken possession of the property. Therefore the settlement in
favour of Mohamed Sultan was not acted upon and hence became invalid under
law. The courts below failed to see that Mohamed Sultan had only one wife
Jamina Bibi and he did not marry Raguman Bibi as his second wife. Therefore,
the courts below ought to have held that the marriage of the second wife to
Mohamed Sultan has not been proved in accordance with law. Similarly, courts
below failed to appreciate the evidence to prove the defendant's title to the
suit property by adverse possession.

11. In the above circumstances, the following substantial questions
of law were formulated by this court on 3.11.1993 for consideration:-

(1) Whether the courts below have correctly and properly interpreted
Exs.A-3, A-4 and A-5?
(2) Whether the courts below are justified in rejecting the plea of
adverse possession by the defendant and her predecessors-in-title?
(3) Whether the courts below are justified in finding that the
settlement deed Ex.A-2 executed by the grand father of the defendant is valid?

12. The parties to this appeal may be referred to hereunder as they
were arrayed before the trial court. Since rendering a finding with reference
to one question is likely to overlap the other one, all the substantial
questions are discussed together.

13. The facts which are not in controversy may be set out as under so
as to analyse the recorded evidence and the arguments advanced on either side
in this appeal. The suit property is a building which originally belonged to
Sikkandar Rowthar. He executed the registered Hiba deed dated 8.6.1935 Ex.A-2
in favour of his wife Fathima Bibi and 3 sons, Mohamed Sultan, Mohamed Hussain
and Mohamed Kasim and the portion described in 'A' schedule in Ex.A-2 was
given to Mohamed Sultan, the portion 'B' schedule to Mohamed Hussain, the
portion 'C' schedule to Mohamed Kasim and the portion in 'D' schedule to
Fathima Bibi. After the death of Sikkandar Rowthar and Fathima Bibi, their
heirs became entitled to the said properties. Mohamed Sultan married Jamina
Bibi and they had no issues. Mohamed Hussain married Ajitha Bibi and they had
begotten 3 daughters, namely Pathamuthu Joharan, Urunnisa and Noorjahan. The
appellant/defendant is the said Pathamuthu Joharan.

14. The learned counsel for the appellant has argued at the outset
that the Hiba deed under Ex.A-2 executed by Sikkandar Rowthar was not accepted
by Mohamed Sultan, who was residing in Rangoon at that time and that since
Mohamed Hussain, father of the defendant alone was in India residing in the
suit property, the plain tiff claiming under Mohamed Sultan could not have had
any title to the suit property. Similarly, she would contend that Mohamed
Sultan never got into the possession of the suit property either under the
settlement deed Ex.A-2 or by any other process known to law.

15. In answer to such contention, Mr.Chandramouli, learned senior
counsel appearing for the respondents 2 to 7, legal heirs of the deceased
first respondent/sole plaintiff would draw the attention of this court to
Exs.B-16 to B-44 documents to show that the gift under Ex.A-2 was not only
accepted by Mohamed Sultan, but he was also in possession and enjoyment of his
portion in the suit property pursuant to the gift deed under Ex.A-2. A
careful scrutiny of Ex.B-16 to B-44 would indicate clearly that the house tax
was paid by Mohamed Sultan for himself and on behalf of other donees under
Ex.A-2. Therefore this Court is of the considered view that since the house
tax was assessed in the name of Mohamed Sulthan (vide) Ex.B-16 to B-44 from
1963 to 198 3, it is too late in a day to contend that Mohamed Sultan had not
accepted the gift in his favour as per Ex.A-2. In this context, both the
courts below have analysed the evidence on this aspect of the matter and came
to the right conclusion that all the 3 sons of the deceased Sikkandar Rowthar
accepted the gift and acted upon the settlement deed under Ex.A-2 and that
they were in possession and enjoyment of the respective shares in the suit
property as per the gift deed. Hence, this court is unable to accept the
first contention put forth by the learned counsel for the appellant.

16. The next contention urged in the argument of the learned counsel
for the appellant is that the plaintiff (since deceased) was not born to
Mohamed Sultan through his second wife as alleged and that therefore he would
not have succeeded to any portion in the suit property as a heir of the
deceased Mohamed Sultan. According to the plaintiff, Mohamed Sultan married
Jamina Bibi as his first wife and since they had no issues, he married Raguman
Bibi as his second wife and out of their wedlock, the plaintiff, 3 other
children namely Mohamed Arif, Mohamed Ismail and Noorjahan were born to them.
In support of such contention Exs.A-2 to A-4, A-5, A-8, A-15 and A-16 have
been pressed into service in the evidence of P.W.1, the plaintiff.

17. Ex.A-4 is the registered sale deed dated 31.1.1984 executed by
Jamila Bibi, first wife of Mohamed Sultan in favour of the plaintiff in
respect of her undivided 1/16th share in the suit property and other
properties and the relevant recitals relied on by the learned counsel for the
plaintiff in the said document are as follows:-

",jdoapy; fz;l tpgug;goa[s;s brhj;J fhyk; brd;w vdJ fztUk; vdJ je; ija[khd
A.S.Kfk;kJ Ry;j;jhd; mtu;fSf;F mtuJ je;ijahu; rpf;fe;ju; uht[j;juhy; brd;w
8.6.1935 njjpapy; vGjpitf;fg;gl;Ls;s brl;oy;bkz;Lg;goa[k; A.S.Kfk;kJ Ry;j;jhd;
mtu;fshy; brd;w 20.8.1956 njjp mg;Jy; cwkPJ uht[jjuplkpUe;J thq;fpa fpua
rhrdg;goa[k; fpilj;J vd;DlDk; mtu; ,uz;lhk; jhu kidtp ucwpkhd; gptpa[lDk;
ru;tRje;jpu ghj;jpaq;fSld; Mz;L mDgtpj;Jte;J \ A.S.Kfk;kJ Ry;j;jhd; 24.1.78
njjpapy; fhykhfptpl;lhu;."

18. The above recitals in the sale deed executed by the first wife of
Mohamed Sultan have proved categorically that Mohamed Sultan married two
wives, namely, Jamina Bibi and Raguman Bibi and that the plaintiff is the son
of Mohamed Sultan born through his second wife. Similarly, Ex.A-16 marriage
invitation dated 14.2.1956 discloses that Mohamed Sultan being the father of
the plaintiff celebrated the plaintiff's marriage and therefore it is evident
that the acknowledgement of both Mohamed Sultan and his wife Jamina Bibi that
the plaintiff is the son of the former through his second wife would
vouch-safe the paternity of the plaintiff now under question.

19. In this context, learned senior counsel appearing for respondents
2 to 6 has drawn the attention of this court to the provisions of law under
Sections 226 and 227 of the Muslim Law by THABJI (4th Edition at page 208)
with reference to proof of paternity and presumption of acknowledgement of
parentage respectively in support of his further argument that the documents
ante litum mortem referred to above would establish the paternity of the
plaintiff as well as the presumption of acknowledgement arising therefrom.

20. The above principles of law under Sections 226 and 227 read as
follows:-

"226. Proof of paternity: Statements by a member of the family
touching the sonship or heirship of a person are good evidence of the family
report concerning him.
227. Adoption not known to Muslim law: If a man has openly treated
another as his child, it may be presumed that the former has acknowledged the
parentage of the latter."

21. In view of the above provisions of law in the light of the
documentary evidence under Exs.A-4, A-15 and A-16, the paternity of the
plaintiff that he was born to Mohamed Sultan through his second wife Raguman
Bibi has been amply established. Similarly, the acknowledgement of both
Mohamed Sultan and his first wife Jamina Bibi as per Exs.A-4, A-15 and A-16
also lend support to the proof of paternity. As has been rightly argued by
the learned senior counsel for the respondents, in view of the ratio laid down
in the decision HOHAMMAD SADIQ v. MOHAMMAD HASSAN (AIR (30) 1943 LAHORE 225),
the acknowledgement of Mohamed Sultan that the plaintiff is his son born
through the second wife has to be held as proved until the contrary is
established by the defendant adducing rebuttal evidence and the ratio laid
down therein reads as follows:

"The same subject has been dealt with in para 85 of Wilson's Ango
Mahomedan Law where it is laid down that if a man has acknowledged another as
his legitimate child, the presumption of paternity arising therefrom can only
be rebutted by (a) disclaimer on the part of the person acknowledged; (b) such
proximity of age, or seniority of the acknowledgee, as would render the
alleged relationship physically impossible; (c) proof that the acknowledgee
could not possibly have been the lawful wife of the acknowledger at any time
when the acknowledgee could have been begotten. None of these four
impediments has either been alleged or established in the present case."

22. In this case also, as per the ratio referred supra, the defendant
has not alleged or established any of the impediments narrated by the said
decision. Therefore this Court is of the considered view that the contention
put forth on the side of the appellant in this respect has to be rejected as
not sustainable. It follows necessarily that the finding of fact rendered by
both the courts below on this aspect of the matter has to be affirmed.

23. The last contention of the learned counsel for the appellant is
that by adverse possession, the defendant has perfected her title to the suit
property. In this regard, as has been rightly argued by the learned senior
counsel for the plaintiff, on her own showing as per Exs.B-16 to B-44,
receipts for payment of house tax issued in favour of Mohamed Sultan and
others from 1963 to 1983, such contention of the defendant cannot stand even a
moment's scrutiny for the simple reason that Mohamed Sultan was in possession
of the property within 12 years prior to suit and that the suit was laid
within 5 years from the date of last receipt under Ex.B-44 issued on 30.8.1983
in favour of him.

24. Hence, the learned senior counsel for the plaintiff placed
reliance on the decision rendered by this Court NAGARAJAN v. RAJAMANI IYER
(1999 (I) C.T.C. 428) wherein the statement of law on this subject has been
reiterated as under. The learned Single Judge having considered catena of
decisions rendered by this Court, other High Courts and the Apex Court and
quoted the principle of adverse possession as laid down by the Apex Court in
DR.MAHESH CHAND SHARMA v. RAJKUMARI SHARMA (AIR 1996 S.C. 569) which reads
as follows:-
"A person pleading adverse possession has no equities in his favour. Since he
is trying to defeat the rights of the true owner, it is for him to clearly
plead and establish all the facts necessary to establish his adverse
possession."

25. If the evidence let in by the defendant is analysed in the light
of the above principle of law cited above, there is no doubt that she has
neither pleaded specifically in her written statement all the necessary
averments to constitute the plea of adverse possession nor let in any evidence
worth mentioning to establish such plea.

26. But, on the contrary, the documentary evidence Exs.B-16 to B-44
as referred to above are not only against the defendant on this aspect but
would also establish that the plaintiff's predecessor-intitle was in effective
possession and enjoyment of his share in the suit property for more than 13
years till his death. Similarly, the other evidence let in by the plaintiff
has categorically established his possession and enjoyment of the suit
property along with other heirs till he acquired absolute right and title to
the same by virtue of registered documents under Exs.A-3 and A-4, registered
release deed dated 23.3.1983 and sale deed dated 31.1.1984 respectively
executed by the other heirs of Sikkandar Rowthar in respect of their undivided
share in the suit property.

27. For the aforesaid reasons, this Court finds no illegality in the
judgments and decrees rendered by both the courts below and therefore the
Second Appeal deserves no merit and is accordingly dismissed. However, there
shall be no order as to costs.

Index: Yes
Website: Yes
dpp

To

1. The District Judge, Nagapattinam.
2. The Subordinate Judge, Nagapattinam.
3. The Section Officer, V.R.Section, High Court, Madras.

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Thursday, June 28, 2012