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2004 DIGILAW 602 (KER)

Safia Usman v. Habeebah

2004-12-01

K.R.UDAYABHANU, R.BHASKARAN

body2004
Judgment :- Udayabhanu, J. The appellants are the defendants in O.S.No.321/1998 the suit for partition instituted by the legal heirs of the deceased Usman through his first wife against the second wife and her minor daughter seeking division of the assets allegedly owned by the deceased. The trial court decreed the suit, the findings of which according to the appellants are absolutely erroneous so far as appreciation of the facts are concerned and also with respect to the application of the correct propositions of law. A reappraisal of the evidence adduced and reconsideration of the decision is sought for. 2. The plaintiffs in the suit, 4 daughters and one son, the descendants of deceased Usman through his predeceased first wife Aysha have sought for partition of 9 items of property and B schedule movables as well as their share of the insurance amount of Rs.62,000/received by the 1st defendant as nominee. They have claimed 6/8 shares of the entire assets of Usman who died on 19-7-95. Item Nos.1 and 2 are in the name of Usman; Item No.3 is in the name of Usman and the 1st defendant i.e. the surviving spouse; item Nos. 4 to 6 also in the name of Usman. Item No.7 was purchased by the 1st defendant after the death of Usman in pursuance of the sale agreement entered into by Usman. 1st defendant purchased the property from the income derived from Item Nos.4 to 6, it is alleged. Item No.8 was obtained by Usman vide partition deed of 1976. Item No.9 was acquired by the deceased mother of the plaintiffs. I.e. Aysha, the 1st wife of Usman. As Aysha predeceased Usman, he derived ¼ right in the above property. It is also alleged that the 1st defendant was not sharing the profits from the properties with the plaintiffs. Attempts to settle the matters could not succeed due to the irreconcilably inimical attitude of the 1st defendant. Costs and mesne profits are also claimed. 3. The 1st defendant has filed a written statement on behalf of the minor 2nd defendant as well refuting the contentions of the plaintiffs and interspersed with a spate of allegations regarding the hostile attitude of the plaintiffs. It is alleged that the first 4 plaintiffs, the daughters of Usman in Aysha were well provided for by the deceased and give away in marriage with hundreds of sovereigns and fat dowry. It is alleged that the first 4 plaintiffs, the daughters of Usman in Aysha were well provided for by the deceased and give away in marriage with hundreds of sovereigns and fat dowry. On the other hand, with respect to her minor daughter, no provision was made so far for her education and future marital alliance. The house in Item No.3 was constructed by herself and therein she is residing. According to her, Items Nos.4 to 6 are not partible as the same were purchased by the deceased with the funds provided by her. The deceased had borrowed money from one Siddhappa amounting to Rs.2½ lakhs for the acquisition of item No.6. The same was repaid by the 1st defendant after the death of Usman in two installments. The plaintiffs are liable to adjust the above amount at the time of partition. She has also allege that a number of immovable items including ambassador cars, computer etc. owned by the deceased are in the custody of the plaintiffs and the same are also liable to be partitioned. Item No.7 was purchased by the 1st defendant with her own assets. It is also stated that all the Items (except Item No.7) from which substantial income is derived were in the possession of the plaintiffs. She has also mentioned that 4 acres situated in Tamil Nadu and 2.62 acres in Wayanad district are the assets of the deceased and are liable to be partitioned. The same are scheduled to the written statement. 4. The plaintiffs have filed a replication vehemently denying the version of the 1st defendant with respect to the fabulous marriages of the plaintiffs 1 to 4 said to have been conducted by the late Usman. The case set up of repayment of loan to one Siddhappa is mentioned as absolutely unfounded and false. They have also denied the custody of any moveables owned by Usman. It is stated that the property in Wayanad scheduled to the written statement has been assigned away by the plaintiffs and that they have no more claim over it. According to them, they are not aware of the details of the details of the Tamil Nadu property and agreed to get it partitioned if the details of the same are furnished. 5. According to them, they are not aware of the details of the details of the Tamil Nadu property and agreed to get it partitioned if the details of the same are furnished. 5. The Principle sub Judge, North Paravur framed issues with respect to partibility of the properties and liability of the 1st defendant to account for the amount collected by her with respect to the L.I.C. policy of the deceased as well as with respect to the availability for partition of the properties scheduled to the written statement. After considering the evidence adduced in the matter that consisted of the testimony of PW-1 the uncle of the plaintiffs and DW-1 the 1st defendant and Exts.A1 to A8 title deeds and Exts. B1 to B6 the title deed and agreement of purchase with respect to Item No.7 in the name of the 1st defendant, the receipts and bank pass books, decreed the suit except with respect to item, No.7 which was held to be the absolute property of the 1st defendant. The trial court turned down the plea of the 1st defendant regarding the repayment of the loan as her evidence in this regard carried little conviction, credibility or certainty. In the absence of evidence, the case for partition of moveable by either side were not allowed. 6. The points to be decided are: (i) Whether the finding of the court below regarding the partibility of the properties and share of L.I.C. amount collected by 1st defendant are liable to be set aside? (ii) Whether the dismissal of the claim or repayment of loan to Siddhappa is liable to be sustained? 7. Point No.1: We find that the appellants did not dispute the eligibility of the plaintiffs with respect to 6/8 shares of the assets of the deceased Usman, as the son takes two portions a per the Muhammedan Law. The plaintiffs have produced the title deeds with respect to all the items of properties except item No.7 scheduled to the plaint vide Exts.A1 to A8. As item No.3 is in the name of Usman and 1st defendant, the plaintiffs claimed the share due of half extent of the above property. Item No.7 the title deed of which in the name of the 1st defendant is Ext.B1 was produced by the 1st defendant. Item No.8 was acquired by Usman as per partition deed. Ext.A6. As item No.3 is in the name of Usman and 1st defendant, the plaintiffs claimed the share due of half extent of the above property. Item No.7 the title deed of which in the name of the 1st defendant is Ext.B1 was produced by the 1st defendant. Item No.8 was acquired by Usman as per partition deed. Ext.A6. Item No.9 is in the name of Aysha, the mother of the plaintiffs and on her death, Usman succeeded to the ¼ share in the above property as per the law of inheritance governing the community. The same is also partible. The trial court rightly upheld the claim of the plaintiffs to get the above properties partitioned except Item No.7. 8. With respect to the contention of the 1st defendant, that it was she who constructed the house in Item No.3 with her own funds was not the subject of serious consideration in the absence of any documentary evidence as the plaintiffs have stoutly denied the case set up by the 1st defendant in this regard. 9. The plaintiffs have pleaded ignorance as to the existence of Item No.1 scheduled to the written statement, the description of which is just “4 acres of land in Tamil Nadu”. The description appears absolutely absurd as no identity is provided. So far as Item No.2 scheduled to the written statement is concerned, the plaintiffs have specified in the replication that they have assigned the same and that they have no subsisting right in the above property. It appears that the proper course for the 1st defendant is to move the court afresh for partition of the above items if she is in a position to establish her right in the above item of property. We find that the entitlement of the plaintiffs in the plain schedule properties except Item No.7 therein is seen absolutely established. The finding of the trail court in this regard is not liable to be disturbed at all. 10. The fact that the 1st defendant received Rs.62,000/- as nominee of the deceased Usman was not disputed. The claim of the plaintiffs for 6/8 shares from the above amount was allowed by the trial court. Which would work out to a sum of Rs.46,500/-. 10. The fact that the 1st defendant received Rs.62,000/- as nominee of the deceased Usman was not disputed. The claim of the plaintiffs for 6/8 shares from the above amount was allowed by the trial court. Which would work out to a sum of Rs.46,500/-. We find that there is no scope for disputing the proposition that the nomination does not confer any vested proprietary right to the amount in the hands of the nominee and would not after the course of succession under law. The Full Bench of the High Court of Kerala in Sarojini Amma v. Neelakanta Pillai (1960 KLT 1319) had upheld the above premise, which was later declared by the Supreme Court in Sarbati Devi v. Usha Devi (A.I.R. 1984 S.C. 346). The Supreme Court in Sarbati Devi’s case has set at rest the divergence of opinions in this regard of various High courts and affirmed the position of law that the nominee is nothing more than an agent to receive the money and cannot be treated as equivalent to an heir or legatee and the amount can be claimed by the heirs or the assured in accordance with the law of succession governing them and that on the death of the policy holder the amount payable under the policy becomes part of the estate of the deceased. The Supreme Court has specified in particular that there is no warrant for the position that the provision of the statute concerned therein operated as a third kind of succession, which is styled as ‘statutory testament’. The Division Bench of the High Court of Kerala in Bhaskaran v. Kalliani (1990 (2) KLT 749) has followed the decision of the Supreme Court noted above in this regard. The Supreme Court in Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani (2000) 6 SCC 724) has also reiterated the above position. The apex court in the above cited decision has reaffirmed and restated the above proposition despite the impugned provision therein contained the non obstante clause the notwithstanding anything contained in any law for the time being in force, or in any disposition, testamentary or otherwise the nomination conferred the right to receive the payment of the sum and the nominee would be entitled for the same unless the nomination is varied or canceled, considering the scheme of the statute. The court in Vishin N. Khanchandani’s case (op. The court in Vishin N. Khanchandani’s case (op. cit.) has traced the difference of views in this regard of the various High Courts and the decision of the supreme Court in Sarbvati Devi’s case (supra) that settled the point of law on the above aspect. We find that the decision of the lower court in this regard is accurate and absolutely correct. The point is held against the appellants. 11. Point No.2: The case of the appellant that she had paid Rs.2.5 lakhs in two instaments to one Siddhappa from whom the deceased had borrowed the amount for the purchase of item No.6 extending 4.5 acres was also found against by the trial court. It is mentioned in para 9 of the written statement that she has repaid the loan amount of Rs.2.5 lakhs. It is further stated that she has spend Rs.5,19,830/- for the purchase of the above property and that the same has to be the first charge on the properties that would be allotted to the plaintiffs. In her testimony he has stated that Exts. B3 and B4 receipts evidenced the payment of Rs.1.5 lakhs and Rs.1,19,840/- by her at two instances to Siddhappa. According to her, it can be seen from Exs.B5 and B6 Saving Bank pass books of herself and deceased Usman that on 19th April, 1995, she has paid a sum of Rs.2,38,685/-, to Usman. Ext.A5 title deed of item No.6 is dated 26-4-1995. Of course, there is an entry of deposit of Rs.2,37,369 in Ext.B5 pass book in her name. The same would not indicate that the amount was paid to Usman. There is no corresponding entry in Ext.B5 pass book in the name of Usman. The above pass book is only up to 18th January, 1993. There is absolutely no evidence also as to the existence of any independent source of income of the 1st defendant. On the other hand, it is not disputed that the deceased was an Engineer as well as an Industrialist. 12. The case of the appellant that she has repaid the loan taken by the deceased from Siddhappa is sought to be established relying on Ext.B3 and B4 documents styled as agreements executed by the 1st defendant and Siddhappa. The above documents mention the name as K.M. Biddhappa, the estate manager of Thalimala estate. 12. The case of the appellant that she has repaid the loan taken by the deceased from Siddhappa is sought to be established relying on Ext.B3 and B4 documents styled as agreements executed by the 1st defendant and Siddhappa. The above documents mention the name as K.M. Biddhappa, the estate manager of Thalimala estate. The recitals in Ext.B4 is to the effect that the 1st defendant has paid a sum of Rs.1,19,840/- to the above person 25-6-97 and as per Ext.B3, again a sum of Rs.1,50,000/- was paid on 4-11-95. It is mentioned therein that the payments are towards the loan availed by the deceased Usman on 23-4-95 to purchase an estate. (Usman died on 19-7-95). Two witnesses each have signed in Exts.B3 and B4. Neither the witnesses nor the creditor was examined to prove Exts.B3 and B4. There is no evidence apart from the interested testimony of DW-1 either to prove the debt of Usman or to establish the repayment of the same. In the circumstances and in the light of the above evidence, we find that the appellant has failed to discharge the burden of proof in this regard. The conclusion of the trial court in this regard is not liable to be disturbed. The point is held accordingly. In the light of our findings on the above points, the appeal is liable to be dismissed and the decision of the trial court confirmed, and we do so, with costs of the respondents.