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1986 DIGILAW 258 (MAD)

Mohammed Abdulla v. Saharan Beevi

1986-07-02

S.SWAMIKKANNU

body1986
JUDGMENT 1. This is an appeal preferred by the defendants, Mohammed Abdulla and Mohammed Yusuf, both sons of Haji Y.S. Mohammed Sheriff Rowther, against the judgment and decree dated 24th day of August, 1979 in O.S.No.149 of 1978 on the file of the Court of the learned Subordinate Judge, Pudukkottai, decreeing the suit for declaring the title of the plaintiffs 1 and 2 and for possession and future mesne profits with pro-costs and also disallowing the plaintiffs’ claim for past mesne profits. The lower Court also directed the quantum of future mesne profits to be determined in a separate proceeding under Order 20, rule 12, C.P.C. 2. The suit was laid with the following allegations by Saharan Beevi, Minor Mumtaj Begum and Haji Y.S. Mohammed Sheriff Rowther, the next friend of minor second plaintiff herein: The third plaintiff Haji Y.S. Mohammed Sheriff Rowthar, who was the original owner of the suit property has validly gifted the suit property to the plaintiffs 1 and 2 by means of registered settlement deeds dated 22.5.1978. By virtue of the said settlements, the plaintiffs 1 and 2 have become the absolute owners of the suit property. Panchayat Registry has been transferred in the name of the plaintiffs 1 and 2 and they are paying taxes. The defendants 1 and 2 are the sons of the third plaintiff through his first wife, while the plaintiffs 1 and 2 are the daughters of the third plaintiff through his second wife. The defendants 1 and 2 have been living separately from the third plaintiff and were having separate earnings and acquisitions. The suit house was let out to one Mohammed Mohideen by the third plaintiff. He vacated the said house in 1975. Then the first defendant took possession of the suit house as a lessee agreeing to pay a monthly rent of Rs.100. It was agreed that the rent of the suit house was to be adjusted in the business dealings the third plaintiff had with the first defendant. It was also agreed that the Panchayat tax was also to be adjusted towards the rent. The third plaintiff had attorned the tenancy to the plaintiffs 1 and 2 and hence they are entitled to collect the rent from the defendants from June, 1978. It was also agreed that the Panchayat tax was also to be adjusted towards the rent. The third plaintiff had attorned the tenancy to the plaintiffs 1 and 2 and hence they are entitled to collect the rent from the defendants from June, 1978. A sum of Rs.400 was due from the defendants to the plaintiffs 1 and 2 from June, 1978 to September, 1978, as rent or damage for use and occupation. The defendants appear to have been upset by the gift of the suit house to the plaintiffs 1 and 2. They defaulted in payment of rent which necessitated the issue of notice to the first defendant for which he sent a reply with false and untenable contentions. In view of the hostile title set up by the defendants in the reply notice, it has become necessary to file this suit for declaration of title and possession with mesne profits. 3. It in inter alia contended by the first defendant in his written statement, which was adopted by the second defendant Mohammed Yusuf, as follows: The suit property is the ancestral property of the family. It is not the self-acquired property of the third plaintiff. It is fradulent to allege that the third plaintiff had gifted the suit property to the plaintiffs 1 and 2 by means of registered settlement deeds dated 22.5.1978 and by virtue of the said settlements, the plaintiffs 1 and 2 have become absolute owners of the suit property. On the contrary, the defendants 1 and 2 are the owners of the suit property and they are in possession of the same as absolute owners thereof. In January, 1975, the third plaintiff had gifted the suit property and another shop bearing No.7 in inner Bazar Street, Alangudi, by an oral gift in the presence of S.Sultan Mohammed, M.Mohammed Abdullah and others. The third plaintiff in pursuance of an oral gift put the defendants 1 and 2 in possession of the suit property. Therefore, the oral gift made by third plaintiff in January, 1975 coupled with the delivery of possession to the defendants 1 and 2 is a valid transaction, which cannot be set aside by a subsequent transaction alleged by the plaintiffs. Therefore, the alleged settlement deeds dated 22.5.1978 are null and void. Therefore, the oral gift made by third plaintiff in January, 1975 coupled with the delivery of possession to the defendants 1 and 2 is a valid transaction, which cannot be set aside by a subsequent transaction alleged by the plaintiffs. Therefore, the alleged settlement deeds dated 22.5.1978 are null and void. The alleged settlement deeds are sham and nominal documents because neither delivery of possession was given to the plaintiffs nor have the defendants attorned the tenancy to the plaintiffs. The Panchayat Registry which was effected behind the back of the defendants was neither valid nor binding on them. The description of the property is not correct. It is false to allege that the defendants have agreed to pay a monthly rent of Rs.100. This allegation is made to explain away the actual and physical possession of the suit property. The plaintiffs 1 and 2 have no right to collect any rent from the defendants nor the defendants are liable to pay rent to the plaintiffs. 4. On the above pleadings, the following issues were framed for the trial of the suit: 1. Whether the plaintiffs 1 and 2 have got title to the suit property? 2. Whether the oral gift pleaded by defendants is true? 3. Whether the settlement deed dated 22.5.1978 in favour of plaintiffs 1 and 2 by the third defendant is null and void? 4. Whether the description of property is not correct? 5. Whether the plaintiffs 1 and 2 are entitled to the reliefs of declaration and possession? 6. Are the plaintiffs entitled to mesne profits past and future, if so, what is the quantum? 7. To what relief, if any, are the plaintiffs 1 and 2 entitled? 5. The third plaintiff Mohammed Sheriff Rowther had examined himself as P.W. 1 on behalf of the plaintiffs. 6. Are the plaintiffs entitled to mesne profits past and future, if so, what is the quantum? 7. To what relief, if any, are the plaintiffs 1 and 2 entitled? 5. The third plaintiff Mohammed Sheriff Rowther had examined himself as P.W. 1 on behalf of the plaintiffs. Ex.A-1 is the registered Inam Settlement deed dated 22.5.1978 executed by the third plaintiff to the first plaintiff, Ex.A-2 is a similar document dated 22.5.1978 executed by the third plaintiff to the second plaintiff, Ex.A-3 is the copy of notice dated 18.7.1978 issued by the plaintiffs’ advocate to the first defendant, Ex.A-4 is the reply notice dated 5.8.1978 sent by the first defendant to the plaintiffs’ counsel, Ex.A-5 is the proceedings of the Executive Officer, Alangudi Town Panchayat dated 20.7.1978 in No.632/78 sent to the ‘third plaintiff and Ex.A-6 is the House-tax receipt dated 17.3.1979 issued to the plaintiffs 1 and 2 for the period ending 31.3.1979. The above documents were filed on behalf of the plaintiffs. The first defendant Mohammed Abdulla examined himself as D.W.I. D.W.2 Sultan Mohammed, D.W.3 Mohammed Abdulla and D.W.4 Abdul Rahuman were examined on behalf of the defendants. On behalf of the defendants, Ex.B-1 house-tax receipt dated 27.12.1975 issued to third plaintiff for the period ending 30.9.1975, Ex.B-2 similar document dated 10.2.1976 for the period ending 31.3.1976, Ex.B-3 house-tax receipt dated 30.8.1976 issued for the period ending 30.9.1976 for the tax paid by defendants I and 2, Ex.P-4 similar document dated 11.1.1977 for the period ending 31.3.1977 and Ex.B-5 similar document dated 14.12.1977 for the period ending with 31.3.1978 were filed on behalf of the defendants. 6. 6. After discussing both the oral and documentary evidence available on record, the lower court held under Issue No.1 that the plaintiffs 1 and 2 have got title to the suit property; on Issue No.2 that the oral gift pleaded by the defendants is not true; under Issue No.3 that the settlement deeds dated 22.5.1978 in favour of the plaintiffs 1 and 2 by the third plaintiff are true and valid; under Issue Nos.5 and 6 the lower court held that though plaintiffs 1 and 2 are not entitled to claim Rs.400 as past profits, they are entitled to the future mesne profits which will be decided later in a separate proceeding under Order 20 , rule 12, C.P.C Under Issue No.4 the lower court observed that no evidence was let in by the defendants to establish that the description of the suit property given in the plaint is not correct, and hence, this issue was found in the negative by the lower court and against the defendants. Under Issue No.7, the lower court decreed the suit declaring the title of plaintiffs 1 and 2 and for possession with pro-costs and future mesne profits. The plaintiffs’ claim for past profits was disallowed. The quantum of future mesne profits was directed to be determined in separate proceedings under Order 20, rule 12, C.P.C. 7. Aggrieved by the above decision of the lower Court, the defendants 1 and 2, viz., Mohammed Abdullah and Mohammed Yusuff, have come forward with this appeal inter alia contending that the learned Subordinate Judge erred in rejecting the evidence of D.W.2 and D.W.4 merely on the ground that they are close relations of the appellants herein. According to the learned Counsel for the appellants herein, the lower court failed to see that the appellants have proved the oral gift of the suit property in their favour by sufficient and acceptable evidence. According to the learned Counsel for the appellants, the learned Subordinate Judge erred in granting a decree for future mesne profits. It is contended on behalf of the appellants by the learned Counsel for the appellants that the lower court had given reasons in support of its decision which are incorrect and untenable. 8. According to the learned Counsel for the appellants, the learned Subordinate Judge erred in granting a decree for future mesne profits. It is contended on behalf of the appellants by the learned Counsel for the appellants that the lower court had given reasons in support of its decision which are incorrect and untenable. 8. The point for consideration in this appeal is whether the plaintiffs have proved the case that they had put forward in the plaint and let in both oral and documentary evidence so as to sustantiate their case for the declaration that they are entitled for possession the suit property with pro-costs and mesne profits. 9. Among Mahommedans, the law relating to the subject of ‘hiba’ possesses special importance. The principle of exclusion which prevails in all the schools and the absence of the right of representation, cause much hardship. For example, if a man has three sons, one or whom dies in the lifetime of his father leaving children, these children are excluded from the inheritance of their grandfather by their uncles. Females under the Mahommedan Law take smaller shares than sons. Under the Sunni Law especially, owing to the principle of agnacy (t’asib), considerable injustice is frequently occasioned which it is often the endeavour of owners of property to avert in their lifetime. The children of a daughter are excluded from inheritance in favour of brother's sons. To remedy these evils, it has become frequent among Mussalman families in India, as elsewhere, to have recourse to hibas, whereby it is not only endeavoured to correct any such injustice as I have indicated, but oftentimes to give a larger share to one heir than the other. The lawfulness of giving a larger share to one heir by a disposition inter vivos is specially recognised. 10. In the Durr-ul-Mukhtar, a hiba is defined as the transfer of the right of property in the substance (tamilk-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 properitor of the subject-matter of the gift. 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 properitor 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. 11. 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 Kama) (the author of the Fath-ul-Kadir) defines it as an immediate (fi ahal) 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. 12. 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. 13. 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-ssa Bibi v. Hussaini Bibi Kamar-un-ssa Bibi v. Hussaini Bibi (1880) I.L.R.3 Allahabad 266 (P.C.) upheld a verbal gift when it appeared to be supported by all the circumstances. 14. There is another species of donation in vogue among the Mussalmans, which is pious in its character and made in view of the future life. This is called Sadakah. It takes it origin from the directions contained in 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. 15. Technically the donor or grantor is called sahib, the donee Mouhoob-leh and the subject-matter of the gift: Mouhoob. 16. In the instant case before us, the defendants/appellants are the sons and the plaintiffs 1 and 2 are the daughters of the third plaintiff through his first and second wives respectively. 15. Technically the donor or grantor is called sahib, the donee Mouhoob-leh and the subject-matter of the gift: Mouhoob. 16. In the instant case before us, the defendants/appellants are the sons and the plaintiffs 1 and 2 are the daughters of the third plaintiff through his first and second wives respectively. It is common ground that the parties to the suit are Muslims and they are governed by Mahommedar Law in the matter of inheritance. Therefore, the contention raised on behalf of the appellants herein that the suit house was the ancestral house of the family cannot be upheld. It is fairly conceded on behalf of the appellants that the third plaintiff was the absolute owner of the suit house and they are not entitled to claim any share therein during the lifetime of their father. 17. The plaintiffs 1 and 2 claim title to the suit house on the strength of Ex.A-1 and Ex.A-2 settlement deeds executed by the third plaintiff in their favour on 22.5.1978. It is the case of the plaintiffs 1 and 2 that they are entitled to the western and eastern halves in the suit house respectively by virtue of registered settlement deeds executed by the third plaintiff in their favour on 22.5.1978. On the other hand, the defendants/appellants herein would contend that besides the suit house, another shop bearing door number 7, Were orally gifted to them in 1975 and hence, the settlement deeds executed in favour of the plaintiffs 1 and 2 in the year 1978 are not valid and binding on them. The third plaintiff examined himself as P.W.1 and deposed to the execution of Ex.A-1 and Ex.A-2 settlement deeds in respect of the suit house in favour of his daughters, plaintiffs 1 and 2. He further states that Ex.A-1 settlement deed was handed over to the first plaintiff and the gift was accepted by her and since the second plaintiff is a minor, he is retaining Ex.A-2 settlement deed on her behalf. The relevant portion of Ex.A-1 reads as follows: 18. The relevant portion of Ex./-2 reads as follows: 19. To prove their case, the first defendant examined himself as D.W.1 and three more witnesses were examined on the side of the defendants. According to D.W.1, D.W.2 and D.W.4, the third plaintiff orally gifted the suit house and another shop in the year 1975. The relevant portion of Ex./-2 reads as follows: 19. To prove their case, the first defendant examined himself as D.W.1 and three more witnesses were examined on the side of the defendants. According to D.W.1, D.W.2 and D.W.4, the third plaintiff orally gifted the suit house and another shop in the year 1975. But, they are not able to state the month and date of the alleged oral gift. D.W.3 has not supported the case of the defendants and he would state that the third plaintiff merely permitted his sons to reside in the suit house and there was no oral gift. D.W.2 Sultan Mohammed is none other than the maternal uncle of the defendants. D.W.4 Abdul Rahman is also a close relation of the defendants i.e. he is the husband of defendants’ mother's brother. Except D.W.2 and D.W.4 who are the close relations of the defendants through their mother, no other independent witnesses, were examined to prove the “alleged oral gift. Admittedly the house-tax demand registry now stands in the name of the plaintiffs 1 and 2. If really the oral gift pleaded by the defendants is true, in all probability they would have applied for change of house-tax demand registry in their names with the consent of the third plaintiff. On the other hand, it is in evidence that the third plaintiff refused to give consent for the change of house-tax demand registry in their names. The first defendant further admits that the third plaintiff was paying the house-tax for the suit house and thereafter, the plaintiffs 1 and 2 are paying the house-tax. In the above circumstances, we are left with no other option except to hold that the oral gift pleaded by the defendants is not true. The evidence of P.W.1 coupled with Ex.A-1 and Ex.A-2 would amply prove that Ex.A-1 and Ex.A-2 settlement deeds are true and valid. It follows that by virtue of Exs.A-1 and A-2 settlement deeds, the plaintiffs have become the absolute owners of the suit property. In view of the foregoing discussions, we find that the plaintiffs 1 and 2 have got title to the suit property, that the oral gift pleaded by the defendants is not true and the settlement deeds Ex.A-1 and Ex.A-2 dated 22.5.1978 in favour of the plaintiffs 1 and 2 by the third plaintiff are true and valid. 20. In view of the foregoing discussions, we find that the plaintiffs 1 and 2 have got title to the suit property, that the oral gift pleaded by the defendants is not true and the settlement deeds Ex.A-1 and Ex.A-2 dated 22.5.1978 in favour of the plaintiffs 1 and 2 by the third plaintiff are true and valid. 20. We have already found that the plaintiffs 1 and 2 have got title to the suit property. Admittedly, the defendants are in actual possession and enjoyment of the suit property. Except the oral testimony of the third plaintiff, as P.W.I there is no acceptable evidence to prove that the defendants took on lease the suit property agreeing to pay a monthly rent of Rs.100. Though the defendants 1 and 2 are doing business and living separately with separate mess, they are after all the sons of the third plaintiff. In these circumstances, we are unable to accept the contention of the plaintiffs that the defendants took possession of the suit property in December, 1975 agreeing to pay a monthly rent of Rs.100. However, the suit is laid after exchange of notice between the parties. For Ex.A-3 notice issued by the third plaintiff, the first defendant has sent Ex.A-4 reply denying the title of the plaintiffs 1 and 2 and he declined to deliver possession, which resulted in filing of the suit. Therefore, the plaintiffs are entitled to the reliefs of declaration and possession prayed for and further, the finding of the lower court that though the plaintiffs 1 and 2 are not entitled to claim Rs.400 as past profits, they are entitled to the future mesne profits which would be decided later in separate proceedings under Order 20 . rule 12, C.P.C. is correct. 21. No evidence was let in by the defendants to establish that the description of the property given in the plaint is not correct. Hence, the lower Court is correct in having found the fourth issue in the negative and against the defendants. 22. In the result, we confirm the finding of the lower court that the suit has necessarily to be decreed declaring the title of plaintiffs 1 and 2 and for possession and pro-costs and future mesne profits. The plaintiffs’ claim for past profits was rightly disallowed by the lower court. 22. In the result, we confirm the finding of the lower court that the suit has necessarily to be decreed declaring the title of plaintiffs 1 and 2 and for possession and pro-costs and future mesne profits. The plaintiffs’ claim for past profits was rightly disallowed by the lower court. The lower court is correct in having held that the question of future mesne profits will be determined in a separate proceedings under Order 20 , rule 12, C.P.C. 23. Thus, on a careful and anxious scrutiny of the entire evidence available on record, both oral and documentary, we find that the lower court came to the correct conclusion and decreed the suit declaring the title of the plaintiffs 1 and 2 and for possession with pro-costs and future mesne profits. There is no merit in the appeal. Hence, the appeal is dismissed with costs. Appeal dismissed.