Madras High Court
K.M.Kuthubu Meeran Hussain vs Nabasa Beevi on 9 April, 2021
A.S.No.330 of 1994
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.04.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.No.330 of 1994
and
C.M.P.No.6154 of 1994
and
M.P.(MD)No.1 of 2013
and
C.M.P.(MD)No.3932 of 2018
K.M.Kuthubu Meeran Hussain ... Appellant
Vs.
1.Nabasa Beevi
2.Ayesha Beevi (Died)
3.Firdavusi (Died)
4.K.M.Shariba Beevi (Died)
5.K.M.Basheera Beevi
6.K.K.Jamal Fathima
7.K.M.Ismail Beevi
8.K.M.Dowlath Fathima
9.K.M.Khadar Fathima
10.K.M.Ali Fathima
11.K.M.Masood Ali
12.Hajal Beevi (Died)
13.Fazilath Beevi
14.Saira Banu
15.Kurshith Begum
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A.S.No.330 of 1994
(R13 to R15 impleaded as LRs of deceased
2nd respondent vide order dated 12.04.2016
in M.P.(MD)Nos.1 to 3 of 2014 in A.S.No.330
of 1994 by RMDJ)
16.Mohamed Nawaz
17.M.Rafiath Begum
(R16 and R17 impleaded as LRs of deceased
3rd respondent vide order dated 12.04.2016
in M.P.(MD)No.1 of 2015 in A.S.No.330 of
1994 by RMDJ)
18.Mohamed Ismail
19.Shameetha Begum
20.Abdul Khader Jailani (died)
21.Ali Fathima ... Respondents
(R18 to R21 impleaded as LRs of deceased
4th respondent vide order dated 12.04.2016
in M.P.(MD)Nos.2 to 4 of 2015 in A.S.No.330
of 1994 by RMDJ)
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, to
set aside the judgment and decree of the learned Additional
Subordinate Judge, Tirunelveli, dated 31.07.1990 made in O.S.No.30
of 1986.
For Appellant : Mr.A.Arumugam,
for M/s.Ajmal Associates.
For Respondents : Mr.S.Vellaichamy
for R1, R5 & R13 to R17
No appearance for R7, 9, 10, 11, 18, 19 & 21
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A.S.No.330 of 1994
JUDGEMENT
The ninth defendant in O.S.No.30 of 1986 on the file of the
Additional Sub Court, Tirunelveli, is the appellant in this first appeal.
The said suit was instituted by Nabasa Beevi, Ayesha Beevi and
Firdavusi shown as respondents 1 to 3 in this appeal. The suit was
for partition, separate possession and mense profits in respect of their
21/112th share. The plaintiffs and the first and second defendants
were daughters of Late.Mohamed Hussain born through his first wife.
The tenth defendant/Hajal Beevi was the second wife of Mohamed
Hussain. The defendants 3 to 9 were born to Mohamed Hussain
through his second wife. Mohamed Hussain passed away on
03.11.1985 leaving behind the plaintiffs and the ten defendants as his
surviving legal heirs. There is no dispute regarding the relationship
between the parties. The plaintiffs claimed partition in respect of the
items set out in three suit schedules. The first schedule contains five
items of immovable properties. The second schedule contains a list of
movable properties. The third schedule contains eight items of
immovable properties. The contesting defendants took the stand that
on the date when Mohamed Hussain passed away, he did not leave
behind any movable or immovable property. According to them,
during his life time, all the properties were alienated through one
mode or the other.
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A.S.No.330 of 1994
2.On the side of the plaintiffs, no document was marked. The
first plaintiff/Nabasa Beevi examined herself as P.W.1. On the side of
the defendants, Exs.B1 to B96 were marked and D.W.1 to D.W.4 were
examined. The appellant herein examined himself as D.W.1.
3.After considering the rival contentions and the evidence on
record, the learned Trial Judge granted relief only in respect of second
item in the third schedule and dismissed the suit in all other respects.
Questioning the judgment and decree dated 31.07.1990 passed by the
learned Trial Judge, the ninth defendant filed this appeal.
4.The plaintiffs filed cross appeal but there was delay in filing it.
The condone delay petition was dismissed and the cross appeal was
not even numbered. Now the only question that arises for my
consideration is whether the decree for partition in respect of a
solitary item in the third schedule deserves to be interfered with. The
point for determination can be formulated as follows:-
(a) Whether the subject matter of this appeal was
alienated by Mohamed Hussain during his life time or
whether it is available for partition ?
5.The learned counsel appearing for the appellant reiterated all
the contentions set out in the memorandum of grounds. He pointed
out that the parties are muslims and therefore, it was open to
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A.S.No.330 of 1994
Late.Mohamed Hussain to deal with the property in any manner he
deemed fit during his life time. Vide Ex.B1 dated 29.09.1969,
Mohamed Hussain had gifted the second item in third schedule in
favour of the appellant. The gift deed was registered as Document No.
2385 of 1969. That the property was gifted in favour of the appellant
is amply borne out by the recitals found in Ex.B16 (wakf deed)
executed on 18.11.1975. By the said document, a wakf was created
by Late.Mohamed Hussain in respect of the very same property. Since
the appellant was a minor then, Mohamed Hussain executed the said
wakf deed on the behalf of the appellant. In the written statement in
paragraph 16, it was specifically pleaded that the said property was
the subject matter of wakf for performing certain charities for a
Pallivasal. Under the said deed, Late.Mohamed Hussain appointed
himself as Mutawalli. He was to be the Mutawalli till the appellant
attained majority. It was also pleaded that the said property is the
absolute property of the appellant by virtue of Ex.B1/gift deed dated
03.10.1969 and that it is not available for partition.
6.The stand of learned counsel for the appellant is that if wakf
deed is construed as invalid, then the earlier gift made in favour of the
appellant will hold good. If this Court accepts the wakf deed as valid,
then the appellant will have to be treated as Mutawalli of the property
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A.S.No.330 of 1994
in question. Either way, the plaintiffs or the daughters born through
the first wife or the other legal heirs cannot have any claim on this
item. The learned counsel also pointed out that the said gift
deed/Ex.B1 dealt with two items of the property. The learned Trial
Judge sustained the gift as far as the third item in the third schedule
but chose to hold that the gift had failed as far as the second item in
the third schedule. According to the learned counsel, it is
incomprehensible as to how the gift can be said to have failed as far as
the second item. According the learned counsel, the eventual finding
of the learned Trial Judge runs counter to the finding given in
paragraph 22 of the impugned judgment. He would also point out
that all the ingredients of “hiba” stand fulfilled in the instant case. He
therefore submitted that the impugned judgment and decree passed
by the Trial Court deserves to be reversed insofar as the subject
matter of the appeal is concerned.
7.Per contra, the learned counsel appearing for the contesting
respondents would submit that the impugned judgement and decree
does not call for any interference and that the appeal may be
dismissed.
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A.S.No.330 of 1994
8.I carefully considered the rival contentions and went through
the evidence on record. As already observed, there is no dispute as
regards the relationship between the parties. The three plaintiffs and
the defendants 1 and 2 are the daughters born to Mohamed Hussain
through his first wife. The tenth defendant is his second wife. The
defendants 3 to 9 are the children born to Mohamed Hussain through
the tenth defendant/second wife. A mere look at the suit schedules
would indicate that there are a large number of items spread over
three schedules but all the items had been given in favour of one or
the other heir born through the second wife. The plaintiffs have not
been given any share in any of the suit schedule items. The Court
below rejected the claim of the plaintiffs in respect of all the items
except in the case of second item in the third schedule. The plaintiffs
will get 21/112th share in it along with appellant and other legal heirs
in the said item, as per the impugned decree. The only question that
arises for my consideration is whether this limited relief granted to the
plaintiffs/daughters born through the first wife has to be interfered
with.
9.The first defendant who was born through the first wife is no
more. Two of her children are said to be mentally unsound. Last
seven years were spent in seeking to appoint Court-guardian for them.
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A.S.No.330 of 1994
They could not be produced before the medical board. Instead of
pursuing the issue further, I took up the appeal for hearing. If there is
prima facie merit in the appeal, then the task of appointing Court-
guardian can be resumed. If there is no merit in the appeal, it can be
dismissed and there would be no prejudice to the un-
represented respondents.
10.What struck me at the very outset was the inconsistent stand
of the appellant. The first defence is that it is a wakf property. In the
alternative, it is also pleaded that this property was already gifted to
him by virtue of Ex.B1 dated 29.09.1969. I concur with the
submission of the appellant's counsel that when the donee happens to
be the son of the donor, physical possession need not be formally
handed over to the donee. It was held in the decision reported in
1875 SCC Online Cal 11 (Ameeroonmissa Khatton and Others V.
Abadoonnissa Khatoon and Others) by the Privy Council that where
there is on the part of a father or other guardian, a real and bonafide
intention to make a gift, the law will be satisfied without change of
possession and will presume the subsequent holding of the property to
be on behalf of the minor. So, what has to be seen is whether the
donor had the intention to gift the property in question in favour of the
appellant. What matters is only the intention of the donor. In the
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A.S.No.330 of 1994
case on hand, after executing Ex.B1 in favour of the appellant gifting
items 2 and 3 in the third schedule, the donor/Mohamed Hussain
chose to execute Ex.B16 creating a wakf in respect of item No.2. That
is why, the Court below rightly held that Ex.B16 cannot be valid. It
was for two reasons. The author of the wakf deed created a wakf
which according to the terms of the deed was not his property. If it
was considered as the property of the minor, then, it was illegal.
Property of a minor can be the subject matter of a trust, if it is entirely
for his welfare. It cannot be dedicated to charity even partly. After
Ex.B16/wakf deed was thus nullified, the Court below rightly pointed
out that this showed the conduct of the donor. There was no real or
bonafide intention to gift the property to the appellant. If really the
gift was complete and Mohamed Hussain had the intention to effect a
complete gift in favour of his son, namely, the appellant herein, the
donor would not have executed one other document, namely, Ex.B16
creating a trust in respect of the very same property. It is for this
reason, the Court below chose to hold that the gift had failed in
respect of the second item in the third schedule.
11.There is yet another reason to sustain the impugned decree.
The Supreme Court of Pakistan in Mst.SAADIA VS Mst. GUL BIBI
(2016 S C M R 662) held as follows:-
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A.S.No.330 of 1994
“....the other important thing is the proof of fulfillment of
three conditions of a valid gift "offer", "acceptance" and
"delivery of possession". Reverting to the facts of the
present case, we find that neither PW-1 Hakeem
Alauddin, who was the only witness of first gift
document Ex-PW1/1, had said anything about the
fulfillment of these three conditions of gift between the
parties in his presence, nor the other two witnesses,
PW-2 Muhammad Younas and PW-3 Muhammad Sherin
of second gift document Ex-PW1/2 have deposed,
whether the performance of these ingredients of gift, oral
or otherwise, had taken place in their presence. Even the
evidence of PW-4 Mst. Gul Bibi in this context is hearsay
as regards the first document of gift and shaky to the
extent that in her deposition, she has admitted that
atleast three other brothers of Mst. Fehmida Begum,
Mirza Mushtaq, Mirza Abdul Latif and Mirza Nazir
Ahmed, continued to live in the said house till their
death. To sum up, virtually not a single witness from the
side of respondent validly proved the performance of
these three prerequisites for a valid transaction of gift in
respect of the suit house.”
Ex.B1 was not an ancient document when the suit was filed.
Therefore, it must be proved through witnesses. In the appeal
memorandum also, it has not been set out as to how through
witnesses these three ingredients of hiba have been proved. Mere
marking of Ex.B1 cannot be sufficient. If the appellant had filed a suit
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A.S.No.330 of 1994
challenging Ex.B16 wakf deed after attaining majority, on the ground
that the property had already been given to him, there would be
substance in the contention of the appellant's counsel. No such suit
was filed. On the other hand, the wakf deed was projected as a shield
in the written statement. The court below ought to have held that
since Ex.B1 as such had not been established, the third item of the
third schedule is also available for partition. However, in view of the
dismissal of the cross appeal, it would not be proper on my part to
modify the impugned decree. I confirm it as such. This First Appeal
is dismissed. No costs. Consequently, connected miscellaneous
petitions are closed.
09.04.2021
Index : Yes / No
Internet : Yes/ No
skm
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.
To:
1.The Additional Subordinate Court, Tirunelveli.
Copy to :
The Record Keeper,
V.R. Section, Madurai Bench of Madras High Court, Madurai.
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A.S.No.330 of 1994
G.R.SWAMINATHAN, J.
skm
A.S.No.330 of 1994
09.04.2021
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