BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21/01/2008
CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA
A.S.No.1315 of 1989
1.Mohammed Gani
2.Gulam Mohammed
3.Sherfuddin ... Appellants/Defendants
Vs
Parthamuthu Sowra ... Respondent/Plaintiff
Prayer
Appeal filed under Section 96 of the Code of Civil Procedure, against
the judgment and decree dated 20.06.1989 in O.S.No.76 of 1986 on the file of the
Subordinate Judge, Pudukkottai.
!For Appellants ... Mr.G.Sridharan
^For Respondent ... Mr.K.Srinivasan
:JUDGMENT
Challenging the judgment and decree dated 20.06.1989 in O.S.No.76 of 1986
on the file of the Subordinate Judge, Pudukkottai, this appeal has been filed by
the unsuccessful defendants.
2. The parties, for convenience sake, are referred to hereunder according
to their litigative status before the trial Court.
3. Broadly but briefly, precisely but narratively, the case of the
plaintiff as stood exposited from the plaint could be portrayed thus:
The properties described in the Schedule of the plaint and other
properties originally belonged to the deceased N.M.Abdul Rahiman Rowther, the
father of the plaintiff and the defendants 1 to 3. By a registered partition
deed dated 07.11.1963, the said original owner distributed his estate and
allotted shares for himself and his sons born through his first wife and
separately allotted a share nomenclatured as 'D' Schedule to the plaintiff and
the defendants jointly. The plaintiff and the defendants were minors at the
relevant time of emergence of the said partition deed and hence their mother
represented as guardian for the minors. The defendants after attaining majority
admitted the plaintiff's share in the suit properties as co-owner entitled to
equal share along with the defendants. The plaintiff decided not to continue in
joint possession and enjoyment of the suit properties and hence, the lawyer's
notice dated 29.10.1980 emerged at her instance calling upon the defendants to
agree for amicable partition and for allotment of her 1/4 th share in the suit
properties, but there was no positive response. Hence, the suit for partition
and for other incidental reliefs as well as for rendition of accounts.
4. Per contra, denying and disputing, refuting and challenging the
averments/allegations in the plaint, the defendants filed the written statement
with the averments which would run thus:
The plaintiff is not entitled to 1/4 th share in the suit properties. As
per Holy Kureon, a daughter could claim only one share whereas a son is entitled
to two shares. The wife is entitled to 1/8 the share alone in her husband's
property in the presence of children. The defendants have not admitted the
plaintiff's alleged 1/4 th share in any Court proceedings. A sum of Rupees One
lakh was spent relating to the marriage of the plaintiff and the defendants also
spent Rupees Two lakhs for protecting the suit properties. The mother of the
plaintiff and the defendants, Aayisa Beevi Ammal during the life time of the
deceased N.M.Abdul Rahiman Rowther obtained his rice mill in her favour and as
such, the plaintiff cannot claim partition in the rice mill. The suit is also
bad for non-joinder of Aayisa Beevi Ammal as a party to the suit. In fact, the
plaintiff during her marriage got by way of jewels and other articles worth more
than her share. The defendants also gave twenty bags of paddy every year to the
plaintiff ever since her marriage. Accordingly, they prayed for dismissal of
the suit.
5. The trial Court framed eight issues. During trial, the plaintiff
examined herself as P.W.1 and Exs.A.1 to A.9 were marked and the first defendant
examined himself as D.W.1 along with D.W.2 and Exs.B.1 to B.52 were marked.
6. Ultimately, the trial Court decreed the suit to the effect that the
plaintiff is entitled to 1/4th share and also ordered for rendition of
accounts.
7. Being aggrieved by and dissatisfied with, the judgment and decree of
the trial Court, this appeal has been filed on the following main grounds inter
alia thus:
The trial Court committed error in holding that the plaintiff despite she
being a Muslim lady, is entitled to 1/4 th share in the suit properties, even
though she is entitled to only 1/8th share in the presence of the defendants who
are the brothers of the plaintiff. The defendants are entitled to 7/8 th share
as per Muslim law. The trial Court failed to hold that according to Muslim law,
a daughter of the deceased is entitled to one share whereas the son of the
deceased is entitled to double shares. The trial Court failed to hold that the
suit is bad for non-joinder of Aayisa Beevi Ammal, the mother of the parties.
Accordingly, they prayed for setting aside the judgment and decree of the trial
Court or at the most, for decreeing the suit only to the extent of 1/8th share
in favour of the plaintiff.
8. The point for consideration are:
(i) Whether the respondent/plaintiff is entitled to 1/4 th or 1/8 th share
in the suit properties as per the Muslim law and more particularly, in the wake
of the recitals in Ex.A.1, the partition deed dated 04.11.1963?
(ii) Whether the suit is bad for non-joinder of the mother of the
plaintiff and the defendants as a party to the suit?
(iii) Whether there is any infirmity in the judgment and decree of the
trial Court?
9. All the points are taken together for discussion as they are
interlinked with one another.
Point Nos:(i) to (iii)
10. The learned Counsel for the defendants placing reliance on Ex.A.1, the
partition deed would develop his argument to the effect that the deceased
N.M.Abdul Rahiman Rowther allotted the suit properties which were described as
'D' Schedule in Ex.A.1 in favour of the plaintiff and the defendants jointly by
appointing their mother as guardian; the recitals in Ex.A.1 would demonstrate
that the plaintiff and the defendants were expected to enjoy jointly the suit
properties and nowhere it is found specified therein that the plaintiff and the
defendants should share equally the suit properties. Whereas the trial Court
erroneously in the judgment understood as though the deceased N.M.Abdul Rahiman
Rowther had given the properties to the plaintiff and the defendants, for being
shared equally among them; as per Muslim law, the plaintiff being the daughter
and the defendants 1 to 3 being the sons of the deceased N.M.Abdul Rahiman
Rowther, should take one share by the plaintiff and double shares by the
defendants and accordingly, the plaintiff is entitled to only 1/8th share.
Accordingly, they prayed for modifying the judgment and decree of the trial
Court by allotting only 1/8th share in favour of the plaintiff.
11. The learned Counsel for the plaintiff would interpret Ex.A.1 to the
effect that as per the recitals in Ex.A.1, the plaintiff and the defendants were
given with 'D' Schedule properties to be enjoyed equally and in such a case,
each of them is entitled to 1/4 th share and that the Muslim law relating to the
allotment of shares should not be pressed into service.
12. The cardinal point which required to be decided in this case is as to
whether the deceased N.M.Abdul Rahiman Rowther intended that the plaintiff, his
daughter and the defendants, his sons should take equally 1/4th share in the
suit properties. Ex facie and prima facie, the trial Court fell into error in
giving a finding that as per the recitals in Ex.A.1, the said N.M.Abdul Rahiman
Rowther intended that the plaintiff and the defendants should share equally the
suit property. Nowhere in Ex.A.1, it is found stated like that. It is just and
necessary to extract certain portions in Ex.A.1 thus:
"4tJ ghh;l;o ikdh;fs; ehy;tUk; ndp 1yf;f jhuUf;Fk; 4tJ ghh;l;ofspd;
fhh;oad; Map&h gPtpf;Fk; re;jjp Vw;gl;lhy; mth;fSk; Brh;e;J xU ghfkhf mDgtpj;Jf;
bfhs;sBtz;oaJ Map&h gPtpf;F Vw;fdBt xJf;fg;gl;oUf;fpwgo mth;fs; mile;J bfhs;s
Btz;oaJ ndp xUtUf;bfhUth; jpBuf rk;ke;jBk jtpu mh;j;j rk;ke;jKk; gpd; ghj;jpaKk;
Jlh;r;rpa[k; ny;iy."
13. A mere perusal of it, would pave no way for ambiguity as the recitals
would demonstrate that he intended the plaintiff and the defendants should
jointly enjoy the property. He also set out therein that for his wife so to
say, the mother of the plaintiff and the defendants, he had given separate
properties during his life time. It is therefore crystal clear that the father
of the plaintiff and the defendants intended that the plaintiff and the
defendants should enjoy the property jointly, but he never contemplated and
mandated therein as to how the inter se partition should take place among them.
So long as, they have to enjoy jointly, the question of share would not arise.
But, once the property which they got it from their father should be
partitioned, automatically Muslim law of inheritance will come into vogue.
14. The main point to be taken into consideration here is that the
plaintiff and the defendants constitute one group under Ex.A.1 and they are the
legal heirs of the deceased N.M.Abdul Rahiman Rowther and it is not as though
N.M.Abdul Rahiman Rowther gave the property to some third parties. During his
life time itself, the said N.M.Abdul Rahiman Rowther in order to avoid disputes
among the children born through his several wives, executed the partition deed
Ex.A.1. As such, he intended that the suit property, that is 'D' Schedule in
Ex.A.1, should go to the children born through his wife Aayisa Beevi Ammal, so
that his other children born through his other wives would not be able to make
any claim.
15. It is not a mere Hiba given by the said N.M.Abdul Rahiman Rowther to
strangers comprised of males and females. But, he gave it to his own children
born through one of his wives so as to make them to enjoy jointly leaving open
the application of Muslim law in the event of they opting for partition. As
such, Ex.A.1, the partition deed is not having the effect of ousting the
application of Muslim law of inheritance when the question of inter se partition
among the heirs born through his wife Aayisa Beevi Ammal, arises. Hence, the
argument advanced on the side of the plaintiff that once the plaintiff and the
defendants jointly got the suit properties under Ex.A.1, the question of
applying the Muslim law of inheritance does not arise, fails to carry conviction
with this Court in view of the reasons set out supra.
16. The paramount intention of the said N.M.Abdul Rahiman Rowther was to
protect the children born through his wife Aayisa Beevi Ammal from the
interference of other children born through his other wives and it was not his
intention that the plaintiff, his daughter should take equal share with his
sons, the defendants 1 to 3 ousting the Muslim law of inheritance. The trial
Court's finding that the non-joinder of the said mother who was given with the
properties separately, was not a necessary party to the proceedings, requires no
interference. It is therefore clear that the judgment and decree of the trial
Court is liable to be modified declaring that the plaintiff is entitled to 1/8th
share and the defendants are entitled to the remaining 7/8 share.
17. There is one other alternative plausible legal view available in this
case. It is worthwhile to refer to the principles of Mohammedan Law. I suo
motu referred to the principles of Hiba and mushaa and called upon the learned
Advocates on either side to argue on it as those are all pure questions of law
which could be raised at any stage including the appellate stage as it is the
case herein. The learned Advocates on either side also concentrated on those
principles and argued in entirety.
18. It is a trite proposition of Muslim Law, there is no distinction
between ancestral property and self-acquired property. A Muslim can transfer
inter vivos his properties by Hiba (gift). By birth, a descendant is having no
right over his ascendant's properties during the life time of the latter. In
this factual matrix, what the said Abdul Rahim Rowther as per Ex.A.1, intended
was to donate his properties by hiba, in favour of his sons born through his
other wives and the 'D' Schedule properties as one lot in Ex.A.1 (i.e, the suit
properties herein) in favour of his children who were born through his third
wife and also to the children yet to be born to him through his same third wife.
19. At this juncture, I would like to reproduce the relevant excerpts from
the famous Treatise "Mulla's Principles of Mahomedan Law" [19th Edition - by
M.Hidayathullah and Arshad Hidayatullah] thus:
"160. Gift of mushaa where property divisible.-
A gift of an undivided share (mushaa)in property which is capable of division
is irregular (fasid), but not void (batil). The gift being irregular, and not
void, it may be preferred and rendered valid by subsequent partition and
delivery to the donee of the share given to him. If possession is once taken
the gift is validated.
Exceptions._ A gift of an undivided share (mushaa), though it be a share
in property capable of division, is valid from the moment of the gift, even if
the share is not divided off and delivered to the donee, in the following
cases:_
(1) where the gift is made by one co-heir to another;
Kanij Fatima v. Jai Narin (1944) 23 Pat. 216, ('44) A.P.334 (a case of gift by
mother to daughter of two anna share in lands, the daughter having taken joint
possession).
(2) where the gift is of a share in a zemindari or taluka;
(3) where the gift of a share in freehold property in a large commercial
town;
(4) where the gift is of shares in a land company.
161. Gift to two or more donees._ A gift of property which is capable of
division to two or more persons without specifying their shares or without
dividing it is invalid, but it may be rendered valid if separate possession is
taken by each donee of the portion of the property given to him or if there is a
subsequent arrangement between all the donees with regard to the possession of
the property gifted. This rule does not apply to the case mentioned in the third
Exception to sec. 160 (h), nor, it is conceived, to the cases mentioned in the
other Exceptions."
20. Admittedly, the parties are covered by the Sunni Law as they are
residents of Tamil Nadu. The recitals in Ex.A.1, obvious as they are, do not
demonstrate that the said Abdul Rahim Rowther intended the suit properties,
referred to in the 'D' Schedule of Ex.A.1, should be divided equally among his
sons and daughters and the children to be born to his third wife. In fact, he
went a step further and set out therein that he wanted that 'D' Schedule
properties as one lot should be enjoyed jointly by his children namely the
parties to this suit and his children to be born through his third wife quite
antithetical to the principles of Muslim law relating to Hiba and mushaa.
21. The learned Counsel for the plaintiff placing reliance on the said
recitals in Ex.A.1, would develop his arguments that had the donor intended that
his sons and daughters should take equal specific shares, he might not have set
out therein that his male or female children to be born also should enjoy those
properties. As such, it is obvious that there is no certainty or specificity of
shares to be taken by his children under Ex.A.1, which is ex facie and prima
facie against the Muslim law which precisely prohibits confusion leading to
litigative partition among the donees.
22. The concept 'mushaa' which as per Muslim Law, prohibits donation to
several donees without specifying as to what are the specific shares of the
donees by metes and bounds. No doubt, the learned Counsel for the defendants
would argue that at the time of the said hiba arrangement, the defendants were
minors and hence, on behalf of them, their mother accepted the gift of
properties. No doubt, as per the Muslim Law, there might be acceptance by the
mother on behalf of the minors. But, there should have been specification of
shares of the donees.
23. It is an incontrovertible proposition of Muslim law that the father
has got the right to make gifts of unequal shares to his children quite contrary
to the shares and arrangement contemplated in the Muslim law of inheritance.
24. However, had the donor specified the exact shares, then the matter
would have been different, but it had not been done so under Ex.A.1. Adding
fuel to fire, he even mandated that his children to be born also would be
entitled to enjoyment and that clearly evidences that at the time of executing
Ex.A.1, the shares were uncertain relating to the donees and the number of
donees also were uncertain. the unassailable Muslim Law proposition is that
donation can be given to a child in the womb "en ventre sa mere", but not to a
child not yet conceived in the mother's womb. As such, I am of the considered
opinion that to that much portion of Ex.A.1 falls foul of Muslim Law and as
such, the suit properties should be treated as the properties inherited by the
plaintiff and the defendants from their father.
25. A doubt might arise as to whether the other wives and children born
through other wives would lay claim over the suit properties herein. The fact
remains that the donor during his life time settled various properties in favour
of his other children born through his other wives and he also gave properties
to his third wife and as per the recitals in Ex.A.1 itself, such donees
virtually accepted their snapping of their interest over the 'D' Schedule
properties.
26. The learned Counsel for the defendants also would submit that in the
previous litigation before the Court, the plaintiff and the defendants jointly
as one group got a finding from the Court itself that Ex.A.1 is a valid
document. Ex.A.9, is the certified copy of the judgment dated 15.03.1972, in
O.S.No.2 of 1967 passed by the Sub Judge, Pudukkottai, which was filed by one of
the widows of the said Abdul Rahim Rowther, against the sons born through his
third and fourth wives and also against his fourth wife and others for
partition.
27. No doubt, in that case, the document Ex.A.1 herein, was also marked as
Ex.B.10 and ultimately, the Court did not disturb the validity of even a portion
of Ex.A.1 herein. In my opinion, such judgment emerged on a different footing
and this legal point was not raised therein and obviously there was no
adjudication on that.
28. This judgment is one passed 'in personam' and not 'in rem'. So far,
the rights of others are concerned, the parties to those proceedings are bound
by it and the arguments of the learned Counsel for the defendants herein would
be a good answer for those other heirs of the donor if they try to lay claim
over the 'D' Schedule property in Ex.A.1, but among the plaintiff and the
defendants herein, the suit properties should be divided among them by applying
the Muslim law of inheritance. Simply because, in the previous proceedings, the
other heirs of Abdul Rahim Rowther did not raise such plea that it does not mean
that in the inter se dispute between the plaintiff and the defendants, the
embargo contemplated as against Ex.A.1 under Muslim law should not be invoked or
considered.
29. Be that as it may, without being tautologous, I would reiterate that
the judgment to be passed herein, is only a judgment 'in personam' and not a
judgment 'in rem'. Accordingly, if viewed, it is clear that as per the Muslim
law, the plaintiff is entitled to 1/8th share in the suit property and the
remaining shares belong to the defendants. As such, Ex.A.1 settlement relating
to the D Schedule property, even if taken as valid in toto, yet the plaintiff is
entitled to 1/8th share and alternatively as per the second view expressed
supra, that much portion of Ex.A.1 fails as it falls foul of the principles of
hiba and in such an event once again, the plaintiff would be entitled to 1/8th
share and the defendants would be entitled to the remaining shares.
30. In fact, the division should be as follows:
The entire suit properties should be divided to 7 shares. 1/7th share
shall be allotted to the plaintiff and each of the defendants is entitled to 2/7
th share.
31. In the result, this appeal is disposed of accordingly, modifying the
judgment and decree of the trial Court. No costs.
rsb
To
The Subordinate Judge, Pudukkottai.
