IBRAHIM SHAH MOHAMAD v. NOOR AHMED NOOR MOHAMED — 1983 DIGILAW 35 (GUJ)

V. V. BEDARKAR, J. ( 1 ) THIS appeal involves point about an oral gift made by a Mahomedan and also an oral will. Some of the donees and legatees are actual heirs under the Mahomedan law while the one i. e. the plaintiff who has filed the suit is not. ( 2 ) THE suit property belonged to one Shah Mohmed Noor Mohmed. He had four secs. (1) Ibrahim (appellant no. 1) (2) Usman (appellant no. 2) (3) Noor Mohmed (respondent no. 1s father who died during the life time of Shah Mohmed) and (4) Ismail. He had also one daughter named Kulsumbibi (appellant no. 3 ). ( 3 ) PLAINTIFF Noor Ahmed Noor Mohmed filed Civil Suit no. 3615 of 1973 on the ground that his grand father Shah Mohmed had made an oral gift for some properties which are mentioned in Schedule A to the plaint in favour of three appellants and respondent no. 1 (plaintiff ). This oral gift is alleged to have been made on 1-4-1953. It was also his case that before going on pilgrimage to Mecca his grandfather also made an oral will in favour of all the four pertaining to the remaining immoveable properties. The trial Court did not believe the case of the plaintiff about oral will pertaining to properties mentioned in Schedule B and hence for that much the plaintiff (respondent no. 1) has filed cross-objections. ( 4 ) DEFENDANTS nos. 1 and 3 by their written statement Ex. 95 firstly contended that the suit is time barred and also that deceased Shah Mohmed was in possession use occupation enjoyment and management of all the properties during his life time and that the alleged gift deed was not acted upon or given effect to. These defendants therefore denied the fact of the gift but contended in the alternative that if there was one the same was not legal and valid. Defendant no. 2 in his written statement Ex. 86 did not dispute the factum of gift and specifically stated that the deceased had made an oral gift of the properties as mentioned in the plaint. It was however stated that the gift was not legal and had no effect It was also contended that he got separate possession of some of the properties. 86 did not dispute the factum of gift and specifically stated that the deceased had made an oral gift of the properties as mentioned in the plaint. It was however stated that the gift was not legal and had no effect It was also contended that he got separate possession of some of the properties. Other defendants merely contested the suit by saying that they were the bona fide purchasers for value without notice. ( 5 ) AFTER hearing the parties the learned trial Judge negatived the case of the defendants that the suit was time barred and decreed the suit of the plaintiff so far as the properties allegedly gifted by deceased Shah Mohmed were concerned. The learned trial Judge did not believe the case of the plaintiff that deceased Shah Mohmed had made any will and also disallowed the claim of the plaintiff so far as Behrampura property was concerned. . . . . . . . . . . . . . . . . . . ( 6 ) MR. P. V. Nanavati learned Advocate for the appellants submitted that in fact the gift is not believeable. In the alternative he submitted that if at all the oral gift is considered to be a fact then the gift is not in accordance with the provisions of the Mahomedan Law and therefore the same is illegal. ( 7 ) SO far as the factum of gift is concerned the learned trial Judge has discussed that aspect very elaborately in his judgment from paragraphs 31 onwards. The first aspect considered is that defendant no. 2 in his written statement Ex. 86 admitted that it was true that deceased Shah Mohmed had made an oral gift of the properties stated in the plaint and also stated that the properties were transferred in the names of donees in the City Survey Records. Then on record there is application Ex. 319 dated 18-F1953 made by deceased Shah Mohmed to the City Survey Officer Ahmedabad. In that application he had Categorically stated that such a gift was made and requested that the names of the donees be entered on record. This clearly shows that the donor himself accepted the oral gift having been made by him. Further on 20 deceased Shah Mohmed also made a statement before the officer concerned regarding his having made such a gift. This clearly shows that the donor himself accepted the oral gift having been made by him. Further on 20 deceased Shah Mohmed also made a statement before the officer concerned regarding his having made such a gift. That statement was considered by the learned trial Judge to be a statement made by deceased Shah Mohmed against his own interest. Then there is also Ex. 409 which is a joint statement dated 20-4-1953 made by defendants nos. 1 2 3 and 24 (i. e. present appellants and respondent no. 2 Bai Fatma as a guardian of the plaintiff) before the Officer concerned regarding the said gift. In this statement clear reference is made regarding the oral gift dated 1-4-1953. Then it was stated that this oral gift was made according to Muslim Law regarding the properties stated therein in their favour and so their names be entered as owners in place of the deceased regarding the said properties. That statement has been reproduced by the learned trial Judge in paragraph 33 of his judgment. Therein there is mentioned in Gujarati. On the strength of this Mr. Nanavati has advanced a ground about the invalidity of the gift to which we shall immediately refer. ( 8 ) THE first ground advanced by Mr. Nanavati is that this gift is not valid according to Mahomedan Law. According to him formalities required under the Mahomedan Law for a valid gift are that the transfer of the property should be made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. It was his contention that because the plaintiff was a minor the gift should be accepted on his behalf by somebody and it seems that respondent No. 2 Bai Fatma accepted the gift. Therefore it is submitted that as per sec. 156 of the Mahomedan Law by Mulla gift to a minor by a person other than his father or guardian may be completed by delivery of possession to the father or guardian. According to Mahomedan Law it is an accepted position which has not been denied by Mr. G. P. Vyas learned Advocate for respondent No. 1 plaintiff also that mother is not a guardian if grandfather is there. Therefore according to Mr. According to Mahomedan Law it is an accepted position which has not been denied by Mr. G. P. Vyas learned Advocate for respondent No. 1 plaintiff also that mother is not a guardian if grandfather is there. Therefore according to Mr. Nanavati if the mother has accepted the gift on behalf of the minor then that is not proper acceptance and therefore the gift is invalid. It is the submission of Mr. Nanavati that mother is not a legal guardian and therefore possession given to her when one of the said guardian is alive is ineffective. ( 9 ) THIS ground of attack of Mr. Nanavati in regard to the gift is not valid to our view even according to law. It is a fact that deceased Shah Mohmed was the guardian of the plaintiff when he was a minor. Now he himself was making a gift and Muslim Law does not say that any person who is entitled to be a guardian (mother here) cannot be a guardian in presence of a donor who is legal guardian and cannot take the gift. To the argument advanced by Mr. Nanavati there is a clear answer in VALIA PEEDIKAKKANDI KATHEESSA UMMA V. PATHAKKALAN NARAYANATH KUNHAMU AIR 1964 SUPREME COURT 275 rendered by Hidayatullah J. (as he then was ). In order to appreciate the principles of law propounded it will be worthwhile to consider some salient features of that case. One Mammotty was married to Seinaba and he made a gift of his properties including immoveable property to Seinaba. This Mammotty who was the husband of Seinaba died issueless. At the time of the gift Seinaba was 15 years and 9 months old. Therefore she was a minor. Mammotty was in for a long time and was in hospital and he was discharged uncured a month before the execution of the gift deed and remained in his mother-in-laws house afterwards. A contention was raised whether gift was valid because the donor was the husband who was her legal guardian and mother of Seinaba had accepted the gift. The Supreme Court in paragraph 7 of the judgment specifically observed that possession was not delivered to Seinaba but to her mother and she accepted the gift on behalf of Seinaba. A contention was raised whether gift was valid because the donor was the husband who was her legal guardian and mother of Seinaba had accepted the gift. The Supreme Court in paragraph 7 of the judgment specifically observed that possession was not delivered to Seinaba but to her mother and she accepted the gift on behalf of Seinaba. The Supreme Court further observed that Mammotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living. It was also observed that Seinabas mother was also not a guardian of the property of Seinaba. Mahomedan Law makes a distinction between guardian on the person guardian of the property and guardian for the purpose of marriage in case of minor females. Considering these facts the Supreme Court observed:" Where a husband a Hanafi makes a gift of properties including immoveable property by a registered deed to his minor wife who had attained puberty and discretion and the gift is accepted on her behalf by her mother in whose house the husband and wife were residing When the minors father and fathers are not alive and three is no executor of the one or the other such a gift must be accepted as valid and complete although the deed is handed over to the minors mother and possession of the properly is not given to a guardian specifically appointed for the purpose by the Civil Court. "specific on observations made by the Supreme Court further would clearly show that the intention of law is to make a gift valid and legal as far as possible so as to give full justice to the desire of the donor. The Supreme Court observed that there call be no question that the was a complete intention to divest ownership on the part of the husband the donor and to transfer the property to the donee. In the instant case also on facts it can be very clearly said that deceased Shah Mohmed had a complete intention to divest ownership and to transfer the property to all the four donees. In the instant case also on facts it can be very clearly said that deceased Shah Mohmed had a complete intention to divest ownership and to transfer the property to all the four donees. In that case the Supreme Court further observed that if the husband had handed over the deed (it was a written gift deed) to his wife the gift would have been complete under the Mahomedan Law and it is impossible to hold that by handing over the deed to his mother-in-law in whose charge his wife was the husband did not complete the gift. In paragraph 15 after considering various judgments the Supreme Court considered that those cases are distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the card either of the mother or of other near relative or even a stranger and in such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration. Same principle would be applicable in the instant case. Donor Shah Mohmed was the only guardian. There was no other guardian of the property or person of the minor and mother was only other person who could look after the interest of the minor and therefore acceptance of gift by the mother of the minor would not be illegal or invalid in view of the principles propounded by the Supreme Court in the aforesaid case. Therefore this ground has no basis. ( 10 ) THEN it is submitted that this transfer should be of a property on which there is no encumbrance. It is submitted that when a gift is made actual possession should be available to the donee and if the property cannot be directly handed over then it would not be a proper gift. It should be noted that these grounds are advanced by three of the donees because if the gift is considered to be invalid only plaintiff respondent no. 1 would be losing his rights while all the three appellants under the Mahomedan Law would be entitled to retain the property as heirs to the exclusion of the plaintiff and therefore streneous attempts are made on behalf of the appellants to show that the gift is invalid. ( 11 ) SEC. 1 would be losing his rights while all the three appellants under the Mahomedan Law would be entitled to retain the property as heirs to the exclusion of the plaintiff and therefore streneous attempts are made on behalf of the appellants to show that the gift is invalid. ( 11 ) SEC. 145 of Mahomedan Law by Mulla 18 Edition mentions that a gift may be made by a mortgagor of his equity of redemption. However there is a conflict of opinion whether a gift of an equity of redemption. where the mortgagee is in possession of the mortgaged property at the date of the gift is valid and the Bombay High Court has held that such a gift is not valid. Some other High Court have held that such a gift is valid. But that judgment of the Bombay High Court in ISMAIL V. RAMJI (1899) 23 BOMBAY 682 is binding to this Court. ( 12 ) THEN we wanted to know from Mr. Nanavati as to whether there is any evidence to show that there is any encumbrance or equity of redemption and the mortgagee was in possession of the mortgaged property on the date of the gift. He first relied on Ex. 409 to which we have made reference earlier wherein it is mentioned and submitted that this statement shows existence of encumbrances. It should be noted that most of the properties were tenanted and it is not disputed that under Mahomedan Law gift of tenanted properties is valid as under Mahomedan Law there should be delivery of such possession as the nature of the property is susceptible (sec. 150 of Mullas Book) and constructive possession is permissible. Except tenants there is no other aspect to connectin Ex. 409. But in order to support his argument Mr. Nanavati submitted Civil Application no. 602 of 1983 to permit to produce rent note dated 25-9-1942 executed in favour of Amratlal Mohanlal Jagubhai Bhogilal and Sumanchandra Bhogilal by deceased Shah Mohmed Noor Mohmed and others and requested this Court to order that the same may be received in evidence and exhibited. By this it is attempted by Mr. Nanavati to show that there was some property which was mortgaged with possessionand the mortgagors continued to remain in possession of that property as tenants and therefore it can be said that the mortgagee was in possession. By this it is attempted by Mr. Nanavati to show that there was some property which was mortgaged with possessionand the mortgagors continued to remain in possession of that property as tenants and therefore it can be said that the mortgagee was in possession. Now in the civil application it has been stated that this document was produced in the trial Court by Kantilal Gordhandas Patel Ex. 302. Evidence of this Kantilal was recorded on 24-2-1977. He merely produced some four documents by list Ex. 303 and they are already exhibited at Exs. 448 to 451. This rent note does not figure in that list i. e. it was not produced during the deposition of this witness who was examined on behalf of defendants nos. 1 and 3. At the time of arguments as we are told at the Bar with an affidavit this rent note was produced on 9-8-1977. As this was produced after the evidence was over and arguments were going on probably the learned trial Judge did not consider it. It however seems as argued by Mr. Vyas that this rent note is of year 1942 and the transaction of gift is said to have taken place on 1-4-1953. It could not be shown whether at the time when the gift was made deceased Shah Mohmed had already redeemed the mortgage. At any rate we are not inclined to grant this civil application because it is for the production of a document at a very late stage and creating scope for the second round of evidence on the strength of this civil application. Therefore the reliance of Mr. Nanavati on the law laid down by the Bombay High Court about gift of equity of redemption where the mortgagee is in possession of the mortgaged property at the date of the gift if is invalid would not be of any avail to him. ( 13 ) THEN the last ground of attack of Mr. Nanavati is that the suit is time barred. Now the learned trial Judge has discussed this aspect in paragraph 97 of his judgment that the plaintiff was born or 10 about which there is no dispute and the plaintiff became major on 10-9-69. The application to sue in forma pauperis was filed by the plaintiff on 13-9-72. Nanavati is that the suit is time barred. Now the learned trial Judge has discussed this aspect in paragraph 97 of his judgment that the plaintiff was born or 10 about which there is no dispute and the plaintiff became major on 10-9-69. The application to sue in forma pauperis was filed by the plaintiff on 13-9-72. It has been specifically observed by the learned trial Judge that 10-9-72 was a Sunday and 11-9-72 and 12 were holidays and therefore this suit was filed within the period of limitation. No exception can be taken to this finding. Therefore this ground also would not be available to Mr. Nanavati. ( 14 ) ONE argument was advanced by Mr. Nanavati that suppose the gift is considered to be valid then after the gift a partnership was formed and hence the suit should have been filed for dissolution of partnership and accounts. Because the suit is filed for partition and accounts and not for dissolution of partnership if partnership is formed it would not lie. Now merely because some reference has been made to M/s. Shah Mohmed Noor Mohmed a ground has been advanced that that was a partnership firm doing business. Now it is clear that so far as that firm is concerned it was merely collecting rent and not doing any business. In fact no such contention was raised in the written statement of any of the contesting defendants nor this point was raised so as to make out a triable issue. Still however in repeated paragraphs 82 and 83 of the judgment the learned trial Judge has considered that formation of so called partnership of Shah Mohmed Noor Mohmed cannot be said to be a partnership firm so as to attract the provisions of the Indian Partnership Act because there was no business being carried out by the firm so as to make it a partnership firm and therefore there was no agreement to share profits of the business carried on by all or any of them acting for all. It was merely collecting rent of properties were gifted away. Then it is observed that the relationship constituted between the parties is that of co-owners only and not of partners. We fully concur with this finding of the learned trial Judge and therefore we do not find any substance in this appeal and the same deserves to be dismissed. It was merely collecting rent of properties were gifted away. Then it is observed that the relationship constituted between the parties is that of co-owners only and not of partners. We fully concur with this finding of the learned trial Judge and therefore we do not find any substance in this appeal and the same deserves to be dismissed. ( 15 ) THEN comes the question of cross-objections pertaining to will. In order to support that argument Mr. G. P. Vyas relied on plaint Exhibit 327 which is original plaint of Civil Suit No. 1594 of 1969 filed by all the appellants as well as respondent No. 1 (plaintiff) who at that time is shown as major. That suit pertained to property bearing City Survey no. 3085 and Municipal Census no. 1626/1/2 situated in Chudi Ole Pankore Naka Kalupur Ward no. 3 Ahmedabad. That property is not the subject matter of gift. But therein it has been mentioned that the said property was of ownership of deceased Shah Mohmed Noor Mohmed and all the four plaintiffs (of that suit) are the heirs of deceased Shah Mohmed. Now it is the contention of Mr. Vyas that if according to Mahomedan Law the plaintiffs (present respondent no. 1) could not be the heir how would he be an heir to the property which was the subject matter of that suit unless there was a will. It probably seems that there was some mistake in drafting of the plaint which might have been done without considering the provisions of law or at that time parties must not have been minded to fight tooth and nail as they are doing now. But merely because a mistake has been made it would not take out the legal position that the plaintiff is not an heir under the Mahomedan Law. The endeavour of Mr. Vyas is to show that the said property might have come by will and therefore name of present plaintiff has been mentioned as all heir in that suit. This is too much to guess from such an averment. It is an admitted position under Mahomedan Law that an oral will is permissible (Sec. 116 of Mullas hook) and hence reliance is on an alleged oral will. ( 16 ) IN order to support his argument further Mr. This is too much to guess from such an averment. It is an admitted position under Mahomedan Law that an oral will is permissible (Sec. 116 of Mullas hook) and hence reliance is on an alleged oral will. ( 16 ) IN order to support his argument further Mr. Vyas submitted that in the deposition pointed attention of Ibrahimbhai Shall Mohmed (appellant No. 1) Ex. 292. was drawn in para 151 pertaining to survey no. 3085 which was the subject matter of Civil Suit no. 1594 of 1969 and he specifically stated that he was not knowing when the suit was filed that present plaintiff (respondent no. 1) being a son of deceased had no right in the properties of his (witness) father. In para 152 of his deposition it is his case that in that plaint plaintiffs are shown as theirs of Shah Mohmed but denied that it was so stated because present respondent no. 1 (plaintiff) was an heir pursuant to the will and stated that the Advocate of the plaintiffs in the said suit had stated through oversight about all plaintiffs there being heirs ). This can be said to be a proper explanation. ( 17 ) THEN Mr. Vyas relied on partition agreement Ex. 305 dated 12 It should be noted that the suit to which we have referred earlier was filed on 25-7-1969 and this Ex. 305 is prior to that. That refers to various properties about which claim has been made by the plaintiff as properties bequeathed to all the four donees. It also refers to properties bearing survey nos. 3083 3084 and 3085. These properties are not mentioned in the gift deed. Averment is made in paragraph 1 of the agreement that these properties belonged to deceased Shah Mohmed and that he had gifted those properties by oral gift now as considered earlier these properties are not the subject matter of oral gift because only the properties for which oral gift was made are in Schedule A. As those three properties are included in the agreement Ex. 305 it is agrued that it should be considered that the appellants committed a mistake by combining all properties as properties gifted away; but should be considered that these properties formed the subject matter of the bequest. ( 18 ) THEN reliance is placed on sale-deed Ex. 312 dated 1-9-1967. which is even earlier than Ex. 305 it is agrued that it should be considered that the appellants committed a mistake by combining all properties as properties gifted away; but should be considered that these properties formed the subject matter of the bequest. ( 18 ) THEN reliance is placed on sale-deed Ex. 312 dated 1-9-1967. which is even earlier than Ex. 305 (partition agreement ). In paragraph 5 of Ex. 312 clear mention is made that Noor Mohmed Shah Mohmed had a son named Noor Ahmed and his mother Bai Fatma is also alive but according to law; this Noor Mohmed died during the life time of his father (i. e. Shah Mohmed) and therefore he has no share in the property and as such his son or widow also has no share in the property meaning thereby by heirship. It is therefore submitted that if on 1 parties knew that the plaintiff had no share and still in the subsequent two documents if they mention that the plaintiff has some share in the property which would not be the subject matter of the gift then the Court should consider that the plaintiff got right in this property on the strength of the will. It is too much to accept the argument of Mr. Vyas merely on this stray circumstance. In order to prove a will or at least show semblance of a will parties must lead evidence before the Court in such a way that the circumstances would establish that will has been proved satisfactorily. Now as we find a specific statement before the Mutation Officer so far as the properties gifted are concerned there is no specific statement so far as the will is concerned. Except these stray statements there is no documentary evidence specifically mentioning about any oral will. The trial Court rightly appreciated that no witness in this case except the plaintiff and his mother deposed that deceased Shah Mohmed had made any will. The trial Court rightly observed that the evidence of the plaintiff and his mother does not inspire confidence because that is interested evidence. In there would have been an oral will then after the death of Shah Mohmed some attempts would have been made to get mutation entries made so far as those properties are concerned. The trial Court rightly observed that the evidence of the plaintiff and his mother does not inspire confidence because that is interested evidence. In there would have been an oral will then after the death of Shah Mohmed some attempts would have been made to get mutation entries made so far as those properties are concerned. As nothing is done in that behalf the trial Court rightly negatived the case of the plaintiff so far as the oral will is concerned. In view of this the cross-objections filed by the plaintiff deserve to be dismissed with costs. ( 19 ) THEN remains Civil Application no. 3780 of 1982 for injunction against respondent Laxmandas Chanchaldas. It has been contended by Mr. P. V. Nanavati for the appellants and Mr. P. G. Desai for respondent Laxmandas that the request of plaintiff respondent no. 1 to get injunction against him is not justified because whatever transaction have taken place earlier and that would take place in future would be subject to right title and interest of plaintiff respondent no. 1. and therefore this Court should not grant injunction. A very serious argument about the valuable right of a party to dispose of his undivided share in the property in any way he chooses was advanced and it was stated that a right of a person to deal with his undivided share would remain uncontrolled and whatever transaction would be made by a co-owner visa-vis his undivided share would be subject to right of a person who has also a share in the property. So far as principle of law about the undivided share of Co-owner is concerned no objection can be raised about it. The Court is however seized of the matter pertaining to the property. Pending the litigation the property was transferred and therefore this respondent Laxmandas had to come on record. The matter is still to go back to the trial Court for final decree. If during that period property would change hands with any other persons would it not be necessary either for the plaintiff or somebody else to bring all parties on record meaning thereby delaying further proceedings for bringing them on record having their say etc. and thus delaying the passing of final decree? If during that period property would change hands with any other persons would it not be necessary either for the plaintiff or somebody else to bring all parties on record meaning thereby delaying further proceedings for bringing them on record having their say etc. and thus delaying the passing of final decree? The Court should always lean towards seeing that there is no multiplicity of proceedings and also that the proceedings should go on as far as possible so smooth that the decision can be arrived at between the parties who are on record as early as possible If injunction is not granted then probably the result would be as mentioned by us above and therefore it is in fitness of things that Civil Application no. 3780 of 1982 should be allowed and the relief prayed for therein is granted. ( 20 ) IN the result the appeal is dismissed with costs. Cross-objections are also dismissed with costs. Civil Application no. 632 of 1983 is dismissed with no order as to costs. Civil Application no. 3780 of 1982 is allowed but there shall be no order as to costs. Interim stay for drawing up the final decree granted in Civil Application no. 2852 of 1978 is vacated. .