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2024 DIGILAW 1170 (KER)

Mohamood v. Adam (Died)

2024-09-10

JOHNSON JOHN, SATHISH NINAN

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JUDGMENT : Sathish Ninan, J. 1. The preliminary decree in a suit for partition is under challenge in these appeals by the plaintiff and the third defendant. RFA 777/2016 is by the plaintiff and RFA 35/2019 is by the third defendant. 2. The plaintiff and defendants 2 to 4 are the children of Adam (the first defendant) and late Ayisha. The additional 5th defendant is the second wife of Adam. The properties sought to be partitioned are described in 'B' schedule items 1 to 4. The issue in these appeals is confined to 'B' schedule item No. 1. 3. An extent of 72 cents of property, of which the plaint 'B' schedule item No. 1 property forms part, originally belonged to the father, Adam (first defendant) under Ext.B1 Kanam assignment deed. 4. According to the plaintiff, in the year 1963 Adam (first defendant) gifted the entire property to his wife Aiysha under an oral gift. Subsequently, Aiysha along with the first defendant executed Exts.A2 and A4 assignments, in favour of the third defendant regarding the remaining portion of the property, excluding plaint B schedule item 1. After the death of Ayisha, the first defendant Adam, describing himself as a legal heir of Ayisha and tracing title in such capacity, executed Exts.A5 and A6 Settlement Deeds in favour of defendants 2 to 4 with regard to his share. Thereafter the first defendant filed a suit as OS 560/2011, before the Sub Court, Kozhikode wherein a compromise decree was passed, setting aside Exts.A5 and A6. The plaintiff alleges that the suit and the compromise were fraudulent and collusive. The plaintiff seeks for partition and separate possession of his 30/100 shares as the legal heir of Ayisha. 5. The defendants denied the alleged oral gift by the first defendant in favour of his wife Ayisha. The defendants contended that Exts.A2 and A4 do not acknowledge any oral gift in favour of Ayisha but they refer to oral assignments. The value of the property being more than Rs. 100/- there could not have been any oral assignment. It is also contended that O.S. No. 560/2011 of the First Additional Sub Court, Kozhikode, was filed by the first defendant on realizing the mistake with regard to the contents of Exts.A5 and A6 documents. The value of the property being more than Rs. 100/- there could not have been any oral assignment. It is also contended that O.S. No. 560/2011 of the First Additional Sub Court, Kozhikode, was filed by the first defendant on realizing the mistake with regard to the contents of Exts.A5 and A6 documents. It was also contended that the plaint 'B' schedule item No. 1 property was gifted by the first defendant in favour of defendants 2 to 4 as per Ext.B7 Settlement Deed. Therefore the plaintiff does not have any right over the property. On such contentions the claim for partition of the property was challenged. 6. The trial court upheld the oral gift in favour of Ayisha. Finding that the first defendant and Ayisha had got their marriage registered under Section 15 of the Special Marriage Act, 1954 (herein after referred to as “the Act”) and referring to Section 21 of the Act, the trial court held that in terms of the Section, the law of succession applicable to the properties of Ayisha is, the Indian Succession Act, 1925 (herein after referred to as “the Succession Act”). Accordingly a preliminary decree was passed allotting shares as per the Succession Act. 7. Challenging the finding of the trial court that the law applicable is the Succession Act and the decree passed accordingly, the plaintiff is in appeal. Challenging the finding on the oral gift to Ayisha and the consequential decree for partition, the third defendant is in appeal. 8. We have heard the learned counsel on either side. 9. The points that arise for determination are: (i) Is the finding of the trial court upholding the oral gift in favour of Ayisha supported by the evidence on record? (ii) Will Ext.B7 conveyance affect the right of the plaintiff, if any, over the property? Can the plaintiff maintain the suit without seeking to set aside or obtaining appropriate declaration with regard to Ext.B7? (iii) With regard to succession to properties of Ayisha, is it the Indian Succession Act or the Mohammedan Law that is applicable? 10. According to the plaintiff, the first defendant father had orally gifted the larger extent of property including plaint 'B' schedule item No. 1 to his wife Ayisha in the year 1963. (iii) With regard to succession to properties of Ayisha, is it the Indian Succession Act or the Mohammedan Law that is applicable? 10. According to the plaintiff, the first defendant father had orally gifted the larger extent of property including plaint 'B' schedule item No. 1 to his wife Ayisha in the year 1963. To substantiate the same, the plaintiff relied on the recitals in Exts.A2 and A4 assignment deeds executed by Ayisha to the third defendant, and Exts.A5 and A6 settlement deeds executed by the first defendant in favour of defendants 2 to 4. 11. Exts.A5 and A6 settlement deeds were executed by the first defendant after the death of Ayisha, conveying the share obtained by him as a legal heir of Ayisha. Therein he acknowledged the oral gift made by him in favour of Ayisha. However, there was a suit as O.S. 560/2011 of the Sub Court, Kozhikode, between the first defendant and the donees under Exts.A5 and A6 seeking to set aside the said documents. In the suit, a compromise decree was passed setting aside the documents. The plaintiff alleges the suit and the decree to be fraudulently and collusive. Though the documents were cancelled, the fact remains that Exts.A5 and A6 settlement deeds were executed by the first defendant in favour of defendants 2 to 4 acknowledging the oral gift to Ayisha. The documents were executed in the year 2009 and 2010, respectively. The suit O.S. 560/2011, was filed in the year 2011 and it ended in a compromise decree and was followed by Ext.B7 settlement deed by the first defendant again in favour of defendants 2 to 4 in the year 2012. The explanation offered in the written statement, with regard to the suit and the compromise is that, the first defendant had executed the documents without realising its contents and that his rights were mistakenly mentioned in the said documents. We are not on the issue whether the assignment deeds could have been cancelled and also on the validity of the cancellation. The documents having been cancelled, they cannot be relied on for the truth of the statements made therein. But, the documents could be relied on to find that there were two such documents wherein recitals acknowledging the oral gifts were made by the first defendant. 12. The defendants have not produced any documents regarding the suit, not even the decree. The documents having been cancelled, they cannot be relied on for the truth of the statements made therein. But, the documents could be relied on to find that there were two such documents wherein recitals acknowledging the oral gifts were made by the first defendant. 12. The defendants have not produced any documents regarding the suit, not even the decree. Neither the plaintiff nor the defendants have mounted the witness box. 13. Exts.A2 and A4 are assignment deeds executed by Ayisha in favour of the third defendant in respect of a portion of the larger extent of 72 cents. The remaining extent is the plaint 'B' schedule item No. 1. As was noticed, the property originally belonged to the first defendant. It is only by virtue of the oral gift by the first defendant to his wife Ayisha that she got title over the property. If there was no oral gift, Ayisha could not have executed Exts.A2 and A4 assignment deeds. In Exts.A2 and A4, along with Ayisha, the first defendant had also joined as an executant. Therein the oral assignment in favour of Ayisha has been acknowledged. That he joined in the documents for the purpose of acknowledging the oral assignment, has been asserted through the recitals therein. 14. The contention of the defendants is that, Exts.A2 and A4 mentions the title of Ayisha as which means an oral sale, which is not permissible or valid under Section 54 of the Transfer of Property Act. Therefore, Ayisha did not get any title over the property, it is contended. 15. That the first defendant had in the year 1963 assigned the property to his wife Ayisha by way of oral assignment, is categorically admitted in Exts.A2 and A4. As contended by the defendants, there could not be an oral sale of the property. According to the plaintiff it was an oral gift, which is permitted and recognized under the Mohammedan Law. Chapter VII of the Transfer of Property Act deals with Gifts. Section 129 of the same exempts rule of Mohammedan Law from the applicability of the chapter. The transfer is by the husband to the wife. There is no contention that title had not passed to the third defendant under Exts.A2 and A4. The subsequent documents Exts.A5 and A6 executed by the first defendant in favour of defendants 2 to 4 made specific mention of the oral gift. The transfer is by the husband to the wife. There is no contention that title had not passed to the third defendant under Exts.A2 and A4. The subsequent documents Exts.A5 and A6 executed by the first defendant in favour of defendants 2 to 4 made specific mention of the oral gift. Merely because Exts.A2 and A4 mentioned the transaction as need not lead to a conclusion that the transaction was an oral sale. Of course the term denotes an oral sale. However, the nomenclature given by the parties by itself, is not decisive or conclusive. In the Malayalam dictionary by Herman Gundert, the term “Xocp” is stated as (either from , ” We have only noticed that, though the term generally connotes an oral sale, the terminology used by the parties is not conclusive; and on the particular facts of this case the oral transaction is found to be a gift, and such an understanding does not violate the meaning of the term. As noticed supra, in Exts. A5 and A6, the first defendant himself has affirmed that the conveyance in favour of his wife was by way of oral gift. On the entirety of the circumstances of this case, the transaction is, as claimed by the plaintiff, to be understood as an assignment by way of gift. The trial court has also, on the materials, construed it so. We do not find sufficient material to upset the finding. 16. The learned counsel for the third defendant would argue that, being a Mohammedan gift the donee has to prove the three essential elements viz. declaration, acceptance and delivery of possession. In the absence of evidence regarding the same, it cannot be held that there was a valid gift, it is contended. In Exts.A2, A4, A5 and A6, the donor and donee have jointly asserted the gift and vesting of rights thereunder. The documents assert possession of property with the donee based on the gifts. There could not be any better evidence than the ex post facto joint statement made jointly by the donor and the donee regarding the earlier gift. The trial court has rightly held so. The finding warrants no interference. 17. On the above discussions we find that the finding of the trial court upholding the plea of oral gift is based on materials and is only to be sustained. Point (i) is answered accordingly. 18. The trial court has rightly held so. The finding warrants no interference. 17. On the above discussions we find that the finding of the trial court upholding the plea of oral gift is based on materials and is only to be sustained. Point (i) is answered accordingly. 18. Now coming to Ext.B7 assignment deed executed by the first defendant in favour of defendants 2 to 4; thereunder, the first defendant purported to convey the entire property. However, at the time of execution of the said document, he did not have right over the entire property. By virtue of the oral gift, the entire property belonged to his wife Ayisha. On her death, only a share over the property devolved on him. It is only the share so inherited by him as a legal heir of Ayisha that could be conveyed by him. Ext.B7 assignment is valid only in respect of such share of the first defendant. He could not convey anything more than what he had. 19. As regards the contention that the plaintiff ought to have challenged Ext.B7 assignment deed, as held by us above, Ext.B7 can have effect only with regard to the rights held by first defendant as on the said date. Since the plaintiff is not challenging assignment of such right of the first defendant, there is no necessity to challenge Ext.B7. Point (ii) is answered as above. 20. Now coming to the law that is applicable with regard to succession to the properties of Ayisha, it is not in dispute that the marriage between the first defendant and Ayisha was celebrated as per their religious and customary rites. As evidenced by Ext.B6 dated 02.11.2002, they got their marriage registered under the Special Marriage Act. Section 15 of the Act enables registration of marriages already celebrated under other forms. The Section reads thus: “15. Registration of marriages celebrated in other forms.--Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (III of 1872) or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely: (a) a ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since. (b) neither party has at the time of registration more than one spouse living. (c) neither party is an idiot or a lunatic at the time of registration. (d) the parties have completed the age of twenty-one years at the time of registration. (e) the parties are not within the degrees of prohibited relationship: Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two. (f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.” 21. Section 18 of the Act is a deeming provision which provides that, on registration under Section 15 and on entering the certificate of marriage in the Marriage Certificate Book maintained under the Chapter, it shall be deemed that the marriage has been solemnized under the Act from the date of such entry in the Marriage Certificate Book. The Section reads thus: “18. Effect of registration of marriage under this Chapter - Subject to the provisions contained in sub-section (2) of Section 24, where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnized under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents: Provided that nothing contained in this Section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents.” Section 21 of the Act provides that, with regard to succession to the property of a person whose marriage is solemnized under the Special Marriage Act, the Indian Succession Act, 1925 shall apply. The said Section reads thus: “21. Succession to property of parties marred under Act - Notwithstanding any restrictions contained in the Indian Succession Act, 1925 (39 of 1925), with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under this Act and to the property of the issue of such marriage shall be regulated by the provisions of the said Act and for the purposes of this section that Act shall have effect as if Chapter III of Part V (Special Rules for Parsi Intestates) had been omitted therefrom.” Taking note of the above, the trial court held that the marriage between the first defendant and Ayisha having been registered under Section 15 of the Special Marriage Act, there is a deemed solemnization under the Act and that succession to the property of Ayisha is governed by the Succession Act. 22. The learned counsel for the plaintiff would argue that, solemnization of marriages under the Special Marriage Act is provided for under Chapter II of the Act, and registration of an already celebrated marriage under any other form is provided for under Chapter III of the Act. Section 21 which provides for applicability of the Indian Succession Act applies only to marriages solemnized under the Act and not to cases where a pre- existing marriage was registered under the Act. The deeming provision under Section 18 of the Act is only to legitimise children born in a marriage that was not recognized under law, it is contended. In support of the said contention the learned counsel relies on the judgment of the Calcutta High Court in Sm. Lagna Bhattacharjee v. Shyamal Bhattacharjee, AIR 1975 Cal. 6 . Therein it was held thus: “...As has already been indicated Section 18 provides that “a marriage celebrated in other form and registered under the Special Marriage Act will be deemed to be a marriage solemnized under the said Act and all children born after the date of the ceremony of marriage (whose names shall also be entered in the marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents”. It is thus seen that it is only for the purpose of sanctioning legitimacy to certain class of children that a marriage celebrated in other form and registered under the Special marriage Act shall be deemed to be a marriage solemnized under the said Act and for no other purpose.” 23. For the reasons stated hereunder, we are unable to agree with the view adopted in Bhattacharjee’s case (supra). Section 18 of the Act provides for “deemed solemnization” of marriages held under other forms as one solemnized under the Special Marriage Act on such marriages being registered under Section 15. Therefore, even a pre-existing marriage is, on registration under the Act, treated as one having been solemnized under the Act. All the rights and consequences provided for under the Act follows. It would be appropriate to refer to the Statement of Objects and Reasons of the Special Marriage Act: “Statement of Objects and Reasons - This Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any person in India and all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnization of their marriage, but certain formalities are prescribed before the marriage can be registered by the Marriage Officers. For the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnizing and registering marriages between citizens of India in a foreign country. 2. Provision is also sought to be made for permitting persons who are already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of these provisions. 3. The bill is drafted generally on the lines of the existing Special Marriage Act of 1872 and the notes on clauses attached thereto explain some of the changes made in the Bill in greater detail.” As stated therein, one of the objects behind the Act is to confer the rights under the Act, to the parties who get their marriage registered under the Act. In terms of the deeming provision Section 15, there is no reason to view such marriages differently for the purpose of the Act, unless it is provided otherwise. In terms of the deeming provision Section 15, there is no reason to view such marriages differently for the purpose of the Act, unless it is provided otherwise. As could be noticed from the statement of objects and reasons, any other understanding would defeat the purpose of the Act. So also, a reading of the Act in its entirety indicates that, such deemed marriages under Section 15 are treated exceptionally only under Section 24 of the Act which specifically excludes its applicability to deemed marriages under Section 15. None of the other sections exclude its applicability to the deemed marriages under Section 15. Providing of such specific exclusion in one Section of the Act alone would necessarily imply that the other provisions of the Act apply to deemed marriages. While it could be correct that legitimization of children born of marriages not recognized under law would have been a reason for the deeming provision, it cannot be said that the consequence of the deeming provision is confined to that. 24. On the above discussions, we hold that Section 21 of the Act applies to the deemed marriages under Section 15 of the Act. Succession to the property of the parties to such marriage will be governed by the Indian Succession Act, 1925. The trial court was right in having held so. Point (iii) is answered as above. 25. The trial court noticed that the rights of the first defendant who passed away pending the suit, was conveyed by him in favour of defendants 2 to 4 under Ext.B7 settlement deed. The shares of the parties were calculated accordingly. There is no contention that there is any error in the calculation of the shares of the parties on applying the Indian Succession Act. No other contentions are urged. 26. The decree and judgment warrant no interference. 27. The appeals and cross objection fail and are dismissed. No costs.