Madras High Court
Abdul Majeeth vs Kaithoon Bibi(Died) on 9 April, 2021
1 S.A.(MD)NO.1076 OF 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.1076 of 2001
1. Abdul Majeeth
2. Abdul Rahman
3. Jalaludin
4. A.Mubarack Basha
5. Anwar Begum ... Appellants
Vs.
1. Kaithoon Bibi(Died)
2. Jaibunnissa
3. Mahrunnissa
(R-1 died and R-2 & R-3 are already brought on record
and recorded as legal heirs of the deceased R-1 vide
Order dated 16.03.2020 made in C.M.P.(MD)No.8648 of 2019)
4. Umasalma (Died)
5. Jaithoon Bibi
6. Bathrunnissa(Died)
7. Abdul Razack
8. Mohammadali
9. P.K.Anwar Batcha
10.Abdul Hameed
11.Alaudin
12. Baseer Ahamed
13. Jahir Hussain
14.Rafeek
(R-12 to R-14 are brought on record as LRs of the deceased
R-4 vide Order dated 19.08.2020 in C.M.P.(MD) No.3244 to
3246 of 2020)
15. Syed Mohammed
16. Faridha Begam
17. Dilsath Begam
18. Shakila
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1/15
2 S.A.(MD)NO.1076 OF 2001
19. Habibunnissa
20. Rahamathunissa
21. Samsath Begam
(R-15 to R-21 are brought on record as LRs. of the
deceased R-6 vide Order dated 19.08.2020 in
C.M.P.(MD) No.3247 to 3249 of 2020)
... Respondents
Prayer: Second appeal was filed under Section 100 of C.P.C.,
against the Judgment and Decree dated 02.08.2000 in A.S.No.
205 of 1983 before the Second Additional District Court(PCR),
Trichy, confirming the Judgment and Decree dated 18.04.1983
in O.S.No.521 of 1981 on the file of the I Additional Sub Court,
Trichy.
For Appellants : Mr.M.Saravanan
For R-2 & R-3 : Mr.R.Sundar
For R-12 to R-21 : Mr.A.Sirajudeen, Senior Counsel,
for M/s.R.Gandhi
For R-1,R-4 &R-6: Died
For R-5 : No appearance.
***
JUDGMENT
Defendants 1, 5 to 8 in O.S.No.521 of 1981 on the file of
the Sub Court, Thiruchirappalli, are the appellants in this
second appeal. The said suit was instituted by one Kaithoon Bibi
and her two daughters seeking the relief of partition, separate
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3 S.A.(MD)NO.1076 OF 2001
possession and mesne profits. Kaithoon Bibi is the first wife of
one Rahmathullah. The second wife was also called as Kaithoon
Bibi. Through the second wife, Rahmathullah had a son, namely,
Abdul Majeeth and three daughters, namely, Uma Salma,
Jaithoon Bibi and Bathrunnissa. Abdul Majeeth got married in
the year 1968 and he had as many as four children.
Rahmathullah passed away on 29.05.1981. He died leaving
behind three suit schedule items. Claiming that they are having
share in the suit properties, O.S.No.521 of 1981 was filed by the
first wife and her two daughters before the Sub Court,
Thiruchirappalli.
2.The first defendant Abdul Majeeth and defendants 5
to 8 opposed the suit prayer and filed a detailed written
statement. On the other hand, Uma Salma, Jaibunnissa and
Mahrunnissa, defendants 2 to 4, supported the case of the
plaintiffs in respect of suit items 1 and 2. The first plaintiff
examined herself as P.W.1. Few other witnesses were also
examined on her side. Ex.A.1 to Ex.A.16 were marked. On the
side of the defendants, Abdul Majeeth examined himself as D.W.
1. Four other witnesses were also examined on the side of the
defendants and Ex.B.1 to Ex.B.19 were marked.
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4 S.A.(MD)NO.1076 OF 2001
3.The learned trial Judge after considering the evidence
on record by Judgment dated 18.04.1983 decreed the suit and
granted preliminary decree in favour of the plaintiffs as per
Islamic Law in respect of all the three items. Aggrieved by the
same, defendants 1 and 5 to 8 filed A.S.No.205 of 1983 before
the II Additional District and Sessions Judge(PCR),
Thiruchirappalli. The first appellate Court by Judgment dated
02.08.2000 sustained the Preliminary Decree passed by the trial
Court and dismissed the appeal. Challenging the same, this
second appeal came to be filed.
4.This second appeal was admitted on the following
substantial questions of law:-
“1)Whether in law the Courts below are
right in deciding that the deceased was afflicted
with marz-ul-maut(Fear of death) at the time of
executing the settlement deeds, overlooking the
fact that Rahmathullah continued to lead a
normal life, carrying on his business till he died
seven months after that?
2) Whether in law the lower appellate
Court was not wrong in finding that under
Mahomedan law, a person could not dispose of his
entire property by way of settlement ? and
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5 S.A.(MD)NO.1076 OF 2001
3) Whether in law, the Courts below are
right in ignoring that Exs.B.5 and B.9 irrevocable
registered settlements, having been accepted and
acted upon, were valid and binding on the parties,
especially since Ex.A.4 cancellation deed was
propounded by the plaintiffs in effect admitting
the validity of the settlement?”
5. Heard the learned counsel on either side.
6.The learned counsel appearing for the appellants
submitted that when there is no dispute that the suit items
belonged to Thiru.Rahmathullah, there cannot be any doubt that
Rahmathullah was entitled to deal with the property as he
deemed fit. On 03.10.1980, Rahmathullah executed Ex.B.5
settling first item of the suit schedule property in favour of Abdul
Majeeth(D1) and defendants 5 to 8 and on 07.10.1980,
Rahmathullah executed Ex.B.9 settling second item of the suit
schedule property in favour of the first defendant alone. The
learned counsel appearing for the appellants pointed out though
on 24.04.1981, these two documents were cancelled by
Rahmathullah, such unilateral cancellation was clearly void. In
this regard, the learned counsel appearing for the appellants
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6 S.A.(MD)NO.1076 OF 2001
relied on the Full Bench decision of the Madras High Court
reported in (2011) 2 MLJ 569 (M/S.LATIF ESTATE LINE INDIA
LTD., V. HADEEJA AMMAL AND OTHERS). This is all the more
so because it was already acted upon as evident from the
mutation in the relevant revenue records (Ex.B.13 to Ex.B.16).
He submitted that the Courts below have completely misdirected
themselves while appreciating the evidence on record. He
therefore wanted this Court to answer the substantial questions
of law in favour of the appellants and reverse the Judgments and
Decrees passed by the Courts below.
7.Per contra, the learned Senior counsel appearing for
respondents 12 to 21 and the learned counsel appearing for
respondents 2 and 3 submitted that the impugned Judgments
do not call for any interference.
8.I carefully considered the rival contentions and went
through the evidence on record. The first question to be
considered is whether the settlement deeds (Ex.B5 and Ex.B9)
were executed when Rahmathullah was in expectation of death
(marz-ul-maut). As rightly pointed out by the learned Senior
Counsel appearing for the respondents, the courts below have
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7 S.A.(MD)NO.1076 OF 2001
rendered a clear finding that the settlor was terminally ill since
August 1980. Ex.A.1 discharge summary of Rahmathullah
shows that Rahmathullah was admitted on 07.08.1980 in
Government Stanley Hospital, Madras and that he was
discharged only on 26.09.1980. He was treated by D.W.5
Dr.Viswanathan. The Courts below have exhaustively analysed
the testimony of D.W.5 Dr.Viswanathan, in the light of the
medical records, namely, Ex.A.1. Rahmathullah was suffering
from blood cancer which is a terminal illness. In fact
Dr.Viswanathan had deposed that some times by giving good
treatment, lives of such patients can be stretched by five years.
But it is basically incurable. The psychological condition of
Rahmathullah has also been considered by the Courts below.
Rahmathullah was in Government Stanley Hospital for fifty days.
The fact that in a Government hospital a patient had been given
treatment for fifty days indicates that his condition was really
serious. It has also been brought on record that the brother-in-
law of Abdul Majeeth was a then Postgraduate student studying
in Government Stanley Medical College. Ex.B.5 and Ex.B.9 were
executed on 03.10.1980 and 07.10.1980. In other words, within
ten days after discharge from the Government Stanley Hospital,
these two documents had been executed. It is also seen that
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8 S.A.(MD)NO.1076 OF 2001
Rahmathullah ultimately passed away on 29.05.1981. Therefore,
the Courts below rightly held that Rahmathullah was in
anticipation of death, when he executed these two documents.
9.The learned Senior counsel appearing for the
respondents pointed out that the Hon'ble Supreme Court in the
decision reported in (1991) 3 SCC 520 (Commissioner of Gift
Tax, Ernakulam vs. Abdul Karim Mohd. (Dead) by L.Rs.) had
exhaustively dealt with the execution of gift deed, when the
donor is in contemplation of death. The Supreme Court in the
aforesaid decision held as under:-
16....Under Mohammedan Law gift made
during marz-ul-maut (death-bed illness) is subject to
very strict scrutiny for its validity. Marz-ul-maut is a
malady which induces an apprehension of death in
the person suffering from it and which eventually
results in his death. There are three tests laid down
to determine whether illness is to be regarded as
marz-ul-maut. They are: (1) Proximate danger of
death so that there is a preponderance of Khauf or
apprehension that at the given time death must be
more probable than life. (2) There must be some
degree of subjective apprehension of death in the
mind of the sick person. (3) There must be external
indicia chief among which would be the inability to
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9 S.A.(MD)NO.1076 OF 2001
attend to ordinary avocations. (See: Rashid Karmalli
and Anr. v. Sherbanoo : [1907] 31 ILR Bom 264. The
gift made during marz-ul-maut is subject to all other
conditions necessary for the validity of a hiba or gift,
including delivery of possession by the donor to the
donee. (See: Mulla's Mohammedan Law pp. 109, 111
Sections 135 & 136). Syed Ameer Ali in his book on
"Mohammedan Law" throws some more light on the
principles of 'gift of the sick'. It is stated: "In the
chapter in the "Fatawai Alamgiri" dealing with "the
gift of the sick" the principles are set forth at some
length. In the first place it is stated from the Asal
that neither a gift nor a sadakah by a mariz a person
suffering from marz-ul-maut of which the definition
is given later on is effective without possession: and if
possession is taken, it is valid in respect of a third. If
the donor were to die before delivery (taslim) the
whole disposition would be invalid. It is, therefore,
necessary to understand that a gift by a mariz is a
contract and not a wasiat, and the right of disposition
is restricted to a third on account of the right of the
heirs which attaches to the property of the mariz.
And as it is an act of bounty it is effective so far only
as the law allows and that is a third. And being a
contractual disposition it is subject to the conditions
relating to gifts, among them the taking of possession
by the donee before the death of the donor."
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10 S.A.(MD)NO.1076 OF 2001
10.In the case on hand, the donor had settled his entire
estate. He died within seven months from the date of
settlements. The other heirs, particularly, those born through
the first wife not only did not give their consent but also
challenged the settlement deeds executed by Rahmathullah. As
rightly contended by the learned Senior counsel, the real
question for determination is not whether the donor was entitled
to unilaterally cancel the gift deeds executed by him. On the
other hand, it is whether while executing the gift deeds,
Rahmathullah was in anticipation of death(marz-ul-maut) and
whether the usual conditions of gift have been fulfilled. The
Courts below have concurrently found that during the relevant
time, the donor was in anticipation of death. He was also under
the custody of his son, the first defendant/the first appellant.
He was also not in a proper or fit frame of mind. That is the
concurrent finding rendered by the courts below.
11.Though the first defendant would claim that the
relationship between him and his father was very cordial, it has
been brought out that the first defendant had filed two suits
against his father, namely, O.S.No.731 of 1981 and O.S.No.496
of 1981 in respect of the properties that are the subject matter of
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11 S.A.(MD)NO.1076 OF 2001
Ex.B.5 and Ex.B.9. Of course, these suits should have been filed
some time in the first half of 1980 and got numbered much later.
The first defendant did not prosecute the suits because he had
already obtained settlement deeds in his favour. The Courts
below have also given a finding that there was no cordial
relationship between the parties. Rahmathullah was suffering
from blood cancer and was in-patient for 50 days and
immediately after discharge from hospital, when he was in the
custody of the first appellant, Ex.B.5 and Ex.B.9 were executed.
Since Rahmathullah died within seven months thereafter, the
Courts below rightly held that he was in anticipation of death,
when he executed the deeds. Hence, I answer the first
substantial question of law against the appellants. A gift
executed when in anticipation of death cannot take effect beyond
1/3rd of the estate unless the other legal heirs consent. In this
case, such consent was not given. Therefore, the second
substantial question of law is also answered against the
appellants. Since it has also been found that the settlor was not
in a proper frame of mind when he executed the settlement
deeds, the subsequent cancellation by itself will not indicate that
the original execution of settlement deeds was valid. The
settlees who are propounding the gift must independently
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12 S.A.(MD)NO.1076 OF 2001
demonstrate that all the ingredients of hiba stood fulfilled. They
cannot call upon the court to infer the validity of the original
execution of the document by its subsequent cancellation. I
therefore, answer the third substantial question of law also
against the appellants.
12.The impugned Judgments and Decrees passed by
the Courts below are confirmed. This second appeal stands
dismissed. No costs.
13.The suit was filed in the year 1981. It has taken
four decades for the preliminary decree to be confirmed by this
Court. As and when application for passing final decree is filed,
the jurisdictional court will endeavour to give a speedy disposal.
09.04.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing
to COVID-19 pandemic, a web copy of the
order may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate/litigant
concerned.
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13 S.A.(MD)NO.1076 OF 2001
Note : Registry to return the records to the
trial court at the earliest.
To:
1. The Second Additional District Judge(PCR),
Trichy.
2. The I Additional Sub Judge,
Trichy.
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14 S.A.(MD)NO.1076 OF 2001
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.1076 of 2001
09.04.2021
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