1. This appeal is filed by Smt Kulsumun-nisa. She was the contesting defendant in the suit. The suit was instituted by Smt. Ahmadi Begum. During the pendency of the appeal she died, and her legal representatives are on record. They are Mohammad Farooq, her son, and Smt. Mahmooda and Smt. Zubaida, her dauthers. The appellant also is now dead, and certain persons have been substituted in her place as her legal representatives.
2. The suit was for partition of her l/10th share in the plaint properties. It was instituted in 1945. The plaint properties included zamindari. buildings and moveables.
3. We give a short pedigree for the purposes of the case. It is admitted by the parties.
Smt. Hamid-un-nissa Haji Kifayat Uliah= Smt. Najam-un-nissa
| | | Smt. Ajaib-un-nissa.
Smt. Abmadi Fazal Haq. Riazul Haq. |
Smt. Kulsumun-nisa (Appellant).
Smt. Ahmadi Begum was the half sister of Smt. Ajaib-un-nissa from her father; Fazal Haq and Reazul Haq were her half brothers from her father. They were arrayed as defendants in the suit. They have also claimed partition of their shares in the plaint properties. Smt. Kulsumunnissa is her daughter.
4. The plaint properties belonged to Smt. Aiaibun-nissa. She died on October 24, 1944. Smt. Ahmadi Begum claimed l/10th share in her properties as her half-sister. Smt. Kulsumun-nissa contested her claim. Her pleas were threefold. Firstly, she said that Smt. Ahmadi Begum was not an heir to Ajaibun-nissa, Secondly, Aiaibun-nissa had made an oral gift of her entire immoveable property in her favour on December 25. 1942 and that since then she has been in possession over all these properties. Thirdly. Aiaibun-nissa did not leave behind any moveable properties.
5. The trial court decreed the suit and passed a preliminary decree for partition of a 1/10th share in favour of the plaintiff and 1/5th share in favour of each of her two brothers. As the zamindari stood abolished at the time of the passing of the decree the trial court granted a declaration in their favour that they would be entitled to compensation.
6. On appeal before us, counsel for Smt. Kulsumun-nissa has canvassed only two points: (1) Ahmadi Begum was not an heir to Ajaibun-nissa. and (2) Aiaibun-nissa had made an oral gift of her all immoveable properties in her favour.
7. We have narrated only such pleas from the pleadings of the parties as are material for these arguments and have left out other pleas.
8. Re: Heirship. Ajaibun-niss was a Sunni Musalman. Her brother, Ahsanul Haq is dead. Ahsanul Haq left behind two sons. Subhanul Haq and Faiyazul Eaq. Both of them are alive.
9. Counsel for the appellant has contended that Subhanul Haq and Faiyazul Haq exclude from the inheritance the consanguine brothers. Fazal Haq and Riazul Haq and the consanguine sister, Ahmadi Begum, as Subhanul Haq and Faiyazul Haq are the owners of two propinquities while the consanguine brothers and sister are the owners of only one propinquity. In support of his argument he has relied on Muslim Law by K.P. Saksena (4th Edition) pages 997 and 998. It is said there that full brother's son should succeed in preference both to the consanguine brother and sister. But Mulla in his Principles of Mahomedan Law (16th edition) table 65-A has taken the contrary view. According to him, the consanguine brother and sister are to be preferred to the full brothers' son. Following Mulla, the court below has held that Ahmadi Begum is entitled to a share.
10. It may be noted that the consanguine brothers and sisters are residuaries while the daughter is a sharer. Consequently the appellant, who is a sharer, will get one half. Again. Ahmadi Begum, who is the consanguine sister, is a residuary by her brothers and not a residuary with the daughter, the appellant. The brother's sons are residuaries in themselves. So in this case the competition is between the brothers' sons, who are residuaries in themselves, on the one hand, and the consanguine brothers, who are residuaries in themselves and the consanguine sister, who is a residuary by her brothers, on the other hand.
11. The foot-note at page 102 of the Principles & Precedents of Mohhummudan Law by W.H. Macnaghten (1887 edition) states:--
'There is a distinction made between brethren by the same father only and brethren by the same mother only......... the latter being sharers and taking a portion at all events (unless there is children or son's children, how low soever, or a father or paternal grandfather, how high soever) and the former being only residuaries; but both classes exclude the children of brethren, even though they be by the same father and mother.'
This passage shows that the consanguine brothers are entitled to preference over full brother's son. Counsel for the appellant has relied on Wilson's Muhammadan Law (1895 Edition) page 190. paragraph 224. Paragraph 224 mentions four classes of residuaries. Class 3 mentions brothers and brother's sons and also sisters how low soever, full or consanguine, when not sharers. Paragraph 224 does not help the appellant. It does not say that a full brothers' son is entitled to preference over the consanguine brother and sister of the deceased.
12. Tyabji on Muslim Law (4th Edition) deals with the question in paragraph 712 at page 831. Paragraph 712 contains a table of residuaries. The consanguine brothers and consanguine sister are mentioned in serial number 8 while full brothers' son is mentioned in serial number 9. So according to Tyabji the consanguine brothers and consanguine sister are to be preferred to the full brother's son.
13. Sircar in his Tagore's Law Lectures deals with the matter at pages 135 and 136. At page 135 he says:--
'When there are several residuaries of different kinds, one a residuary in himself, one a residuary rendered to another, and a third a residuary with another (as in this case), preference is given to propinquity to the deceased; so that a residuary with another, when nearer to the deceased than the residuary in himself, is the first.'
K.P. Saksena has relied on this passage in support of his view. But we are not sure whether this passage supports his view. It seems to us that a consanguine brother is nearer in blood to the deceased than the latter's brother's son. At page 128, Tagore Law Lectures, Sircar says this:--
'Then the brother by the same father and mother, then the brother by the same father only. then the whole brother's sons, then the sons of the half brother by the same father only, then their sons according to this order.'
This also shows that the consanguine brother is to be preferred to the brother's son of the deceased.
14. Ameer All on Mahommedan Law (3rd Edition. Vol. II. page 74) does not appear to us to take a different view,
15. Baillie on Moohummudan Law (1875 Edition Part I. page 701) says this:
'The residuary by himself or in his own right is defined to be every male into whose line of relation to the deceased no female enters; and such residuaries are of four sorts -- the offspring of the deceased, and his root; the offspring of his father, and the offspring of his grandfather. Hence the nearest of the residuaries is the son; then the son's son. how low soever; then the father; then the grandfather, or father's father, how high soever; then the full brother, then the half brother by the father, then the son of the full brother, then the son of the half brothers by the father. .........'
At page 704 Baillie says:--'When there are several residuaries of different kinds, one a residuary in himself, another a residuary by another, and the third a residuary with another, preference is given to propinquity to the deceased; so that the residuary with another, when nearer to the deceased than the residuary in himself, is the first Thus, when a man has died, leaving a daughter, a full sister, and the son of a half brother by the father, a half of the inheritance is to the daughter, a half to the sister, and nothing to the brothers son. because the sister becomes a residuary with the daughter, and she is nearer to the deceased than his brother's son.' Counsel for the appellant relies on that passage in support of his contention. We do not think that this passage supports his contention. In this case the consanguine brothers are residuaries in themselves. So are the brother's sons. The consanguine brothers will exclude the brother's sons for they are nearer to the deceased Aiaibun-nissa. The consanguine sister, Ahmadi Begum takes by her brothers. As the brother's sons are already excluded by the consanguine brothers, Ahmadi Begum will get a share with her consanguine brothers in the residue left after allotting the half share to the daughter as a sharer.
16. On a survey of the foregoing authorities, we agree with the Civil Judge that Ahmadi Begum is entitled to a share in the properties left by Aiaibun-nissa.
17. Re: Oral gift. The gift set up by the appellant is alleged to be oral Accordingly it is necessary to scan the evidence with care and caution. The evidence is both documentary as well as oral. The documentary evidence is of three kinds:-- (a) documents executed by Ajaibun-nisa admitting the making of the oral gift; (b) mutation records regarding zamindari property; and (c) mutation records regarding house property.
18. We shall first deal with the documents executed by Ajaibun-nisa herself wherein she has admitted the making of an oral gift by her. The first document is Safinama (Ext. A-43). It was executed by Ajaibun-nisa on December 25, 1942. It is a long document. A part of the document deals with the settlement of accounts between her and the appellant as they were joint owners of certain properties. In another part we find mention of the oral gift. She says in the document:--
'I. the executant, do not have any Issue, other than Mst. Kulsumunnissa. aforesaid. My daughter, aforesaid, has been rendering services of all sorts to me ever since the death of my husband. She tries and thinks to give me comforts of all sorts. So, I, the executant, too have great affection for my daughter, Mst. Kulsummunnisa I. the executant, too have grown old and not stability can be placed on life in this unstable world. Accordingly. I have made a verbal gift in respect of my entire property owned and possessed by me in favour of my daughter aforesaid and made her the proprietor thereof. I have withdrawn my possession from the said property and given the same in the exclusive possession and ownership of my daughter aforesaid.'
There are references to the oral gift at two subsequent places in the document. The execution of the document is proved by the appellant as well as by Fahimuddin (D.W. 2). who has attested it. It supports the version of the appellant that her mother Ajaibun-nisa had made an oral gift of all her immoveable properties.
19. This document is not mentioned in the written statement of the appellant. It was not filed on the date of the settlement of issues on May 14, 1946. Nor was it mentioned in the appellant's application of the same date for permission to file fresh papers. It was filed on May 26, 1950, Counsel for the plaintiff says that these circumstances cast doubt on the document.
20. The document is written on a stamp paper of Rs. 15/8/-. On its back there is an endorsement of the stamp vendor that the stamp was sold to Ajaibun-nissa on December 25. 1942. It bears the thumb impression of Ajaibun-nissa. There was no challenge to the thumb-impression. Having regard to the endorsement of the stamp vendor and the absence of a challenge to the thumb-impression of Ajaibun-nissa, we think that the suspicion is unjustified. The document to our mind, is genuine. Again, the appellant examined herself. She was cross-examined for the plaintiff at great length. But we are surprised that she was never asked to explain why she did not mention the document in her written statement or in her application of May 14, 1946 for permission to file fresh papers or file it on the said date when issues were settled. She was not asked to explain why she did not file it earlier than May 26, 1950. She might have had given satisfactory explanation for her omission to mention it in the written statement and her application for filing fresh papers and for not filing it earlier than May 26. 1950. For instance, the document might have been misplaced and she might have found it near about May 26, 1950. So we are of opinion that the document is an important piece of evidence of the alleged oral gift.
21. The document does not give the date on which Ajaibun-nissa made the oral gift. But it is not such a serious flaw as to ignore the document. The factum of gift, which is more important is mentioned in the document. The omission of the date seems to be a casual slip. It will not show that the document is forged.
22. It may be recalled that the Safinama also settles the accounts between Ajaibun-nissa and the appellant. They were joint owners of the properties. The appellant was managing the properties and collecting income thereof. One criticism on behalf of the respondent Ahmadi Begum is that as the appellant has admitted in her statement that she had no written accounts at the time of the execution of the Safinama, the statement of accounts in the document is false and destroys the evidentiary value of it. We do not agree. It is clear from the evidence of the appellant that the Safinama was executed to corroborate the oral gift already made. The gift was made orally to escape from the payment of heavy registration fee. The desire to escape from heavy registration fee probably induced the appellant's pairokar to include a statement of accounts in the Safinama. They might have apprehended that if the Safinama were regarded as an instrument of gift full fee would be payable thereon. By introducing the statement of accounts in the document, the appellant and her well-wishers purported to change the nature of the document to escape from the payment of heavy registration fee. Indeed. Ahmadi Begum raised such a challenge in the trial court. It was urged on her behalf that the document being an instrument of gift, was inadmissible in evidence as it was not registered. The argument was not accepted. But it does not show that the apprehension of the appellant and her well-wishers was not wholly unfounded. Accordingly we are of opinion that the introduction of the statement of accounts in the body of the document does not destroy its evidentiary value. It appears to us that the trial court has wrongly said that the accounts were made upto December 28, 1942 even though a gift had already been made on December 15, 1942. The document shows that the accounts were taken upto the date of the gift, that is. only upto December 15, 1942.
23. Aiaibun-nissa, the donor, was a pardahnashin woman. She was illiterate and old. Counsel for Ahmadi Begum has urged that the Safinama should receive no evidentiary weight as it was not proved to have been executed after an independent advice and on understanding its nature and effect In support of his argument he has relied on Qamar Ara Begum v. Sultan Begum. AIR 1930 Oudh 131. Mt Izhar Fatma Bibi v. Mt. Ansar Fatma Bibi. : AIR1939All348 : Mt. Abbasunnisa v. Mt. Nisar Fatma. : AIR1946All121 and Ahmad Khan v. Mt. Zamroot Jan, AIR 1950 Pesh 11. In all these cases it has been observed that an illiterate and old pardahnashin woman is entitled to special protection in our country and that a person, who takes any benefit from such a woman, bears the burden of showing that she has conferred benefit on independent advice and after fully understanding the nature of the act which she has performed. However, we think that this observation is to be read in the background of the facts of those cases.
In Qamar Ara Begum a pardahnashin old and illiterate woman has conferred some benefit on persons who were neither her heirs nor her blood relations. In Mt Izhar Fatma a deed of relinquishment executed by a pardahnashin illiterate woman was challenged by herself. There were some suspicious circumstances in which the deed was executed. She is said to have relinquished her interest in some properties to a woman who was the daughter of her sister-in-laws' Mukhtaram's father's father's sister. In other words, the relinquishment was made in favour of a person, who was neither an heir nor a blood-relation. In Mt. Abbasunnisa. the gift was challenged by the executants themselves. The gift was executed by a sister and the mother of the donee. They alleged that they did not know that they were executing the gift deed and that their signatures were obtained on representation that the documents were needed merely for the purposes of facility of management. Summarising the case law on the point. Sri Justice Malik said:--
'Whenever a document executed by a pardahnashin woman is relied upon is a Court of law, it is necessary for the plaintiff to prove not only its execution by her but that the document was executed by her after having fully understood its contents. The simpler and more straightforward a transaction and the language of the deed, the lighter is the burden on the person relying on the same ............ In the case of document executed by a pardahnashin woman it is not enough to prove mere execution by her but it is further necessary to prove that she understood what she was doing. In the oft-quoted words of the Privy Council it should be not only her physical act but her mental act as well. The quantum of proof required would vary from case to case according to the nature of the document relied upon, the language in which it was couched and the proof of the capacity of the woman to understand its contents ............'
In Ahmad Khan the gift was executed by a person in favour of his grandsons from his deceased son. He did not confer any benefit on the widow of his another son. This case is. therefore entirely distinguishable on facts. It was held that a gift intended to disinherit an heir would be a sham transaction. Before us the case of Ahmadi Begum is not that the gift was intended to disinherit any heir. The case is that the gift, not having been executed intelligently and on independent advice, should not be given effect.
24. In Kali Bakhsh Singh v. Ram Gopal Singh, (1914) ILR 36 All 81 (PC) the Privy Council took the view that it was not essential in all cases that independent advice should be proved to have been given to the executant of a document. We respectfully agree with Sri Justice Malik that the quantum of evidence would vary from case to case according to the nature and the language of the document relied on and the capacity of the woman to understand its contents. We do not think that the rule of special protection of a pardahnashin. old and illiterate woman should be applied inflexibly in each and every case. The rule should be applied in the light of the facts of each case.
25. In the present case the oral gift is in favour of the executant's own daughter who had been living with her for the last 15 or 16 years. The executant had 18 issues including the daughter. All her other issues except the daughter did not survive her. Naturally she must have the greatest possible affection for the daughter. Again, she is likely to show greater interest in the prosperity of the daughter than in the prosperity of her consanguine brothers and sister. The Safinama speaks about the gift deed in such simple and clear language as can be understood by any man of common sense. It should also be noted that the executant of the Safinama had already been the recepient of some property by gift from one Mst. Sahebunnissa. There is a reference to that gift deed in Ext. A-43. So she knew the nature and effect of a gift. Raiazul Haq. a consanguine brother of Ajaibun-nissa and a claimant in this case, had admitted in his statement that Ajaibun-nissa was capable of Understanding every matter.
26. In the light of the foregoing discussion we are of opinion that the Safinama was her mental act and proves the factum of the oral gift alleged to have been made on December 15, 1942.
27. Ext. A-38 is the next document executed by Ajaibun-nissa which proves the oral gift. It is a sale deed, dated February 12, 1944. It is a registered document. She joined with the appellant to execute this document. The document transfers a house, one half of which belonged to the appellant and the other half to her before the oral gift. Although the sale deed is executed after the oral gift when the appellant had become the owner of the whole house. Ajaibun-nissa also joined with the appellant. It seems she was made to join for the satisfaction of the vendee by way of abundant caution. In the very first sentence of the document there is reference to the 'verbal gift.'
28. The document was executed in the house of Ahmadi Begum. The two attesting witnesses are Riazul Haq. a consanguine brother of Ajaibun-nissa and a claimant in the suit and Mohd. Farooq, son of Ahmadi Begum. The document bears an endorsement of the Sub-Registrar dated February 12. 1944. The endorsement recites that the appellant and Ajaibun-nissa 'after hearing and understanding the nature and contents of the deed in my presence with their own lips from behind the pardah,' admitted the execution of the document. It is further said in the endorsement that the two women were identified by inspection from behind the pardah by Riazul Haq and Mohd. Farooq, Riazul Haq and Mohd. Farooq now profess ignorance of the contents of the document. They have stated that the document was not read over to them. It is difficult to believe that they were ignorant of the contents of the document. Assuming that they were ignorant, it does not detract from the weight of the document. Significantly, it shows that the appellant was not trying to conceal the factum of gift from Ajaibun-nissa and her consanguine brothers and sister.
She could apprehend that Raizul Haq and Mohd Farooq might come to know of the oral gift by reading the document which they were asked to attest; and yet she decided to get the document executed in the house of Ahmadi Begum and attested by them. This shows that the oral gift was an above-board affair. Again, the endorsement of the Sub-Registrar shows that Ajaibun-nissa had executed the document after it was read over to her and she had understood its contents. The endorsement of the Sub-Registrar will be admissible in evidence under Section 60, Registration Act (See Misri Lal v. Bhagwati Prasad : AIR1955All573 .
29. We now come to Exts. A-9. A-13, A-17 and A-22. These are the documents executed by Ajaibun-nissa. These documents were executed on April 7. 1944. By these documents she appointed Mohd. Ismail Khan as the special attorney for the purpose of filing an affidavit, getting her name expunged in the khewats of certain villages in the district of Fatehpur and getting the name of the appellant entered in those khewats and for taking all proceedings connected with the mutation cases. We may here point out that after the oral gift of December 15, 1942. the appellant applied for mutation of her name in respect of the property situate in villages Salawan. Nasenan, and Nandapur in the District of Fatehpur. Ajaibun-nissa had zamindari property in these villages. These applications are Exts. A-10. A-14. A-18 and A-23. In these applications the oral gift, dated December 15. 1942 is shown as the foundation for her title to the properties which once belonged to Ajaibun-nissa. Mutation was ordered on May 22, 1944. The documents Exts. A-9. A-13, A-17 and A-22 specifically mention the oral gift. The documents were verified by her before a Magistrate, The Magistrate's verifications are Exts. A-12, A-16, A-21 and A-25. These verifications show that the documents were read over to and accepted by Ajaibun-nissa before the Magistrate. The trial court did not presume these documents to be true and accordingly attached no evidentiary value to them. But there it was wrong. Power of attorney along with verifications are to be presumed to be true under Section 85, Evidence Act (See Wall Mohammad v. Jamal Uddin Chaudhari : AIR1950All524 . No evidence has been led on behalf of Ahmadi Begum to rebut the presumption,
30. Lastly, we come to Exts. A-3I and A-34. These are two applications made by Ajaibun-nissa in the Municipal Board. Kanpur for getting the name of the appellant mutated in the Municipal records in respect of house property. Both of them were made on February 6, 1943.
It is stated in these applications that she had made a 'verbal gift in respect of my entire Haqiat in city and zamindari property in favour of my own daughter Mst. Kulsumun-nissa ............ and made her the owner in possession and enjoyment thereof.'
31. These documents were executed by Ajaibun-nissa. Therein she has admitted the factum of the oral gift. We nave already held that although she was a pardanashin old and illiterate woman, she had full capacity to understand the nature and effect of a gift. Even if she may have received no independent advice while making the gift and executing the documents. We are not inclined to hold that these documents should have no evidentiary value. In our opinion, the documents adequately proved the factum of oral gift.
32. Now we shall take up the documents, dealing with mutation. We have already mentioned that the appellant had applied for mutation of her name over the zamindari property in the district of Fatehpur. The name of Ajaibun-nissa was expunged and her name was substituted in place thereof, on May 22, 1944. Similarly in respect of the house property in Kanpur. her name was mutated on June 27. 1943. Ext. A-32 is an application made on behalf of the appellant for mutation of her name over her house property belonging to Ajaibun-nissa in Agra. The application is dated February 6. 1943. It was made to the Municipal Board, Agra. Exts. A-27 and A-28 are assessment lists of the Agra Municipal Board from 1944 onwards. The name of the appellant is entered in place of Ajaibun-nissa as the sole owner of the property. These documents are certified copies and are admissible under Section 313 of the U.P Municipalities Act. Ext. A-35 is the Income-tax assessment order dated November 23, 1943. It shows that the appellant was assessed to income-tax on house property. It was stated before the Income-tax Officer that she got the property in gift from her mother.
33. We will now deal with three general criticisms made on behalf of Ahmadi Begum. Firstly, it is said that Aiaibun-nissa was not examined in the mutation cases. Secondly. Asharfi Lal, who is admitted to have prepared the draft of the Safinama, was not examined in the trial court. Thirdly, the appellant has been making a deliberate attempt to create documentary evidence in support of the oral gift. It is true that Aiaibun-nissa and Asharfi Lal were not examined in the mutation proceedings and in the trial court respectively. But it should be appreciated that Ajaibun-nissa was a pardanashin old woman. She was a woman of status. She was possessed of property worth lacs of rupees. So she might have felt disinclined to appear in Court. Asharfi Lal. who had prepared the draft of the Safinama, was. no doubt, an important witness but the mere fact that he has not been examined would not destroy the weight of voluminous documentary evidence. The charge that the appellant has been making a deliberate attempt to create documentary evidence in respect of the oral gift does not help Ahmadi Begum. The gift was oral, and naturally there would be a desire on the part of the donee to obtain reliable evidence in proof of the oral gift. So she has acted in the manner an ordinary man would have acted.
34. We now pass on to the oral evidence on behalf of the appellant. Besides examining herself, she has also examined two other witnesses. Fahimuddin and Anwarul Haq. All the three have deposed that Ajaibun-nisa made an oral gift of all her immoveable properties in favour of the appellant and delivered possession over the properties to her. and the appellant accepted the gift and entered into possession over the properties. No doubt. Fahimuddin is an employee and Anwarul Haq a nephew of the appellant, but this circumstance does not detract from the weight of their evidence. They were persons who would in the ordinary course of events be present on the occasion of the making of the oral gift.
35. The trial court has not given due weight to the evidence on record, oral and documentary, primarily for the reason that the written statement of the appellant did not exactly describe the words by which the gift was made. It seems to us that the trial court has been too technical. The factum of gift and the date on which it was made have been pleaded in the written statement. The written statement also states that Aiaibun-nissa gifed her entire immoveable properties like shops, houses and zamindari property. So the subject-matter of the gift is also described in the written statement This description of her gift is, in our view, sufficient pleading in the circumstances of this case. We have already stated earlier that the Safinama was executed seven days after the oral gift and that it speaks of the oral gift. Then we have mentioned other pieces of documentary evidence of the oral gift. So in these circumstances we are unable to give any weight to the circumstance that the written statement does not quote the exact words used by Ajaibun-nissa when making the gift.
36. The decisions relied upon by the lower court are not applicable to the facts of this case. Unlike the appellant, the respondent who set up an oral will in Babu Beer Pertab v. Maharajah Mahendra Pertab. (1867-69) 12 Moo Ind App 1 at p. 28 (PC) had been shifting his stand from time to time. In Venkat Rao v. Namdeo the oral will was sought to be proved only by oral evidence. But in the present case there is documentary evidence to prove the oral gift. In Ganesh Prasad v. Hazari Lal, 1942 All WR (HC) 133 at p. 152 : (AIR 1942 All 201) (FB) also the oral will was sought to be proved only by oral evidence.
37. The appellant has said in her statement that Ajaibun-nissa made gift of her ornaments also in her favour. But this is not pleaded. Accordingly her statement as regards ornaments cannot be believed. But it does not necessarily follow therefrom that her statement in regard to the gift of immoveable property should also be disbelieved for that reason.
38. She has stated that the gift was made in the presence of Anwarul Haq, Fahimuddin, Walji, Karam Ilahi and Asharfi Lal. Out of them, Karam Ilahi and Walji died shortly after the institution of the suit. Asharfi Lal also died sometime during the pendency of the suit. The remaining two witnesses Anwarul Haq and Fahimuddin have been examined by the appellant. The trial court has commented that the appellant did not summon Anwarul Haq and Fahimuddin for examination when the suit was fixed for hearing on May 25 and 26. 1950. We are not inclined to give over-importance to this circumstance. In the written statement the appellant has said that the gift was made in the presence of 'bihikhwahan', that is to say. relations and well-wishers: Anwarul Haq is a relation. Fahimuddin is an employee. They would be present on the occasion in the natural course. Counsel for Ahmadi Begum has submitted that on July 19. 1950 the appellant made an application to the court for examining as many as six persons on commission by serving interrogatories. Among those persons is Anwarul Haq. The other persons are Asharfi Lal, Mohd. Shamim Uddin. Mohd. Ismail Khan, Mohd. Sher Khan, and Mohd. Manzuruzaman. The court directed the interrogatories to be filed by the plaintiff within a week. The interrogatories were filed with respect to Mohd. Shamim Khan, Mohd Sher Khan, Mohd. Manzuruzaman and Mohd. Ismail Khan. But thereafter the appellant took no steps to serve them,
39. It is said that these persons have not been examined. But it was for the appellant to decide whom to examine and whom not to examine. No adverse inference can be drawn against her from the circumstance that she has not examined all the witnesses mentioned to the application of July. 19.
40. It is then submitted that ft looks rather strange that on the occasion of the making of the oral gift Ahmadi Begum and her two brothers were not called by Ajaibun-nisa although they were closely related to her. Ajaibun-nissa was making oral gift of all her immoveable in favour of her daughter. As a result of the gift Ahmadi Begum and her two brothers would get no share in her immoveable properties. Naturally they would be highly displeased with and indignant at her. It seems to us that she wanted to conceal the factum of the oral gift from these persons so that her relations with them might remain cordial in the evening of her life. It is. therefore, not at all strange that they were not invited to witness the making of the oral gift.
41. Ahmadi Begum examined herself. Riazul Haq and Mohd. Farruq to show that no oral gift could have been made on December 15, 1942. Riazul Haq is her brother and Mohd. Farruq, her son. The witnesses are, therefore, highly interested in her. That apart, we have carefully read their statements but we are not satisfied that their evidence offsets the documentary and oral evidence of the appellant. They have stated that they were present in the house of Ajaibun-nissa on the date the oral gift is alleged to have been made by her. They further said that on that date Anaibun-nissa was celebrating the Urs of Shahjl Mian. It appears that Urs used to take place on the 5th of Zil Hij (last month of the Hijri year). The calendar of 1942 would show that 5th of Zil Hij corresponds to December 14. 1942 and not to December 15, 1942, when the oral gift was made. Again, although according to them Ahmadi Begum and Riazul Haq both inherited an interest in the properties of Ajiabun-nissa. it is strange that they did not apply for mutation of their names over her immoveable properties situate in district of Fatehpur. Kanpur, Agra and Pilibhit. On the whole, we are not prepared to believe their statements.
42. It is said that Ajaibun-nissa always used to tell them that her properties would devolve after her death on her legal heirs. If Ajaibun-nissa had told them so, it does not militate with her making an oral gift. We have already explained earlier that she might have had a desire to keep the fact of oral gift secret from her legal heirs so that their relations might not be strained in the. evening of her life. This desire would explain her telling them that her legal heirs would get the properties after her death.
43. It is also complained that admittedly Asharfi Lal would have been one of the best witnesses but he was not examined by the appellant. Now the appellant made an effort to examine Asharfi Lal on commission. When the commissioner went to the house of Asharfi Lal, Asharfi Lal was absent and accordingly he could not be examined. No blame may. therefore, be fastened on the appellant on this score. But Ahmadi Begum has examined one Habib Khan to show that Asharfi Lal was present inside his house when the commissioner went there to examine him. But Asharfi Lal asked Habib Khan to inform the commissioner that he was out of station. We are not prepared to place any reliance on the statement of Habib Khan. His story is that Asharfi Lal had a mistress named Shamshi Bai and that Shamshi Bai kept him as her son. He was living in the house of Shamshi Bai. According to him, when the commissioner came to the house of Shamshi Bai where Asharfi Lal was living. Asharfi Lal asked him to tell the commissioner that Asharfi Lal had gone to Mathura. Firstly, he does not appear to us to be a natural witness. His explanation for being present on the occasion is that Shamshi Bai was keeping him as her son. It does not satisfy us. Again, Habib Khan said that he never informed anybody as to what evidence he would give in this case. He has further added that he had no talk with Ahmadi Begum 'or her men'. In the circumstances it is not understandable how he was discovered by Ahmadi Begum and her pairokars. His statement, read as a whole, does not show that he is a truthful witness. Thirdly, the order-sheet shows that the commission was returned to the court as Asharfi Lal could not be found,
44. It is also pointed out on behalf of Ahmadi Begum that the appellant took no steps to get her name mutated over the immoveable properties in Pilibhit and belonging to Ajaibun-nissa. That is true. But the reason may be that the appellant might have been asked by Ajaibun-nissa not to take that step so that the oral gift could remain secret during her life and her relations with Ahmadi Begum and others might not get strained in the evening of her life. We find nothing in this circumstance to ignore the oral gift.
45. The trial court has commented on three aspects adversely to the appellant. Suit No. 2 of 1941 was filed by Ajaibun-nissa for partition against Mst. Mamoona Khatoon. the widow of Habibul Haq and the appellant. In that case there was a compromise on September 23, 1941. Under the compromise, the share of Mst. Mamuna Khatoon was partitioned and the shares of Ajaibun-nissa and the appellant remained joint. A decree was passed in terms of the compromise on the 11th of April, 1942. As the decree could not be prepared earlier, the suit clerk made a report to the court on December 8, 1943. The court passed this order: 'Let the decree be prepared at once.' (See Ext. 5). Thereafter the decree was prepared and the court signed the decree on December 13, 1943. The final decree shows the shares of Ajaibun-nissa and the appellant. In the judgment under appeal before us. the trial court says: 'It is difficult to understand why the factum of gift was not mentioned before the court before the final decree in this case was prepared. This is a very important document and is a definite circumstance against the making of the gift by Ajaibun-nissa in favour of (the appellant) as this decree was prepared more than a year after the making of the gift.
46. We have already mentioned that the decree was passed on April 11, 1942. The decree was prepared late in December, 1943. and it would naturally show the shares of the parties as they were on April 11, 1942 and not as they should have been on December 13, 1943. The decree is to tally with the judgment. At the time of the signing of the final decree by the trial court on December 13. 1943, the decree could not show the appellant as the sole owner of the properties on account of the oral gift for in that case it would not tally with the judgment given on April 11, 1942. So this criticism of the trial court does not appear to us to be justified.
47. Case No. 99 of 1942 was for rectification of khewat relating to village Salawan in District Fatehpur. The appellant and Ajaibun-nissa were the applicants, and Riazul Haq was the respondent. It appears from Ext. 19 that it was instituted on March 9, 1942. that is, before the making of the oral gift. Ext. 19 also shows that it was decided on January 21, 1943. It further shows that on April 1, 1943, the appellant and Ajaibun-nissa made an application in that case through one Mohd. Maqsood. It is said in the application that it had been ordered that the names of the appellant and Ajaibun-nissa should be entered after expunging the name of Riazul Haq. It is further said that each of the applicants had a half share in the property. The application ends with the prayer that their names should be entered 'to the extent of half and half, that is to say, in equal shares.' This application was moved apparently after the oral gift had been made on December 15, 1942 Commenting on this application, the trial court says: 'This application too amounts to the admission on behalf of the (appellant) that no gift was made in her favour.' We do not agree with this comment.
We have already said that the order for the recording of the names of the appellant and Ajaibun-nissa was made on January 21. 1943 on the basis of the mutation proceedings started on March 9, 1942, In the mutation proceedings it must have been said that they had a half share. In that proceeding the subsequent fact of the oral gift could not be introduced. For that purpose a separate mutation proceeding would be necessary. Riazul Haq was not a party to the oral gift. The mutation proceeding was started on the basis of the sale deed executed by Riazul Haq in favour of Ajaibun-nissa and the appellant. The oral gift was a distinct and independent cause of action from the cause of action based on the sale deed executed by Riazul Haq. Again, Riazul Haq is a consanguine brother of Ajaibun-nissa. We have already mentioned that perhaps Ajaibun-nissa wanted to conceal the factum of the oral gift from her consanguine brothers and sister and other relatives so that her relations with them might not become strained at about the end of her life. It is not improbable that on account of this desire of hers, the appellant and Ajaibun-nissa did not seek mutation of the name; of the appellant over the entire properties in the mutation proceedings started on the basis of the sale deed of Riazul Haq, for in that proceeding Riazul Haq must have been attending the mutation court.
48. The last adverse comment by the trial court is with respect to the rent receipt (Ext. 36). The rent receipt apparently purports to have been executed on December 16, 1942. But the trial court has found that '6' has been interpolated for '5' by some one on behalf of the appellant. Assuming that that is so, it does not go against the appellant. The rent receipt was issued by Fahim Uddin on December 15 1942. It is in respect of a house situate in Hing Mandi, Agra. A sum of Rs. 10/- was realised by Fahimuddin on December 15, 1945 as rent for the month of August. 1942. It may be recalled that Fahimuddin has appeared as a witness for the appellant. He has stated that the oral gift was made by Ajaibunnissa on December 15, 1942 at Pilibhit in his presence. The trial court has disbelieved him on account of the receipt Ext. 36. The trial court says that when the receipt was issued at Agra on December 15, 1942. the witness could not be present at Pilibhit on the same date.
49. It is Interesting to notice that although the receipt is issued to Aladin, he has not been examined by Ahmadi Begum. Instead one Mohd. Ramzan has been examined. He says that he was the tenant of two shops and that one was let in the name of Aladin and the other in his own name. As the shop was let to Aladin, we fail to understand how he came in possession of the receipt issued to Aladin. His explanation that he was the real tenant of the shop which was let to Aladin, does not satisfy us. That apart, this document cannot be relied on against the appellant for another very substantial reason. As already stated, Fahimuddin had appeared as a witness for the appellant. He was never cross-examined with respect to this receipt It may be said that at that stage Ahmadi Begum was not aware of the existence of the receipt. But she became aware of the existence of the receipt when Mohd. Ramzan filed it in court on November 13, 1956 during the course of his examination. Thereafter it was the duty of Ahmadi Begum to recall Fahimuddin for the purpose of cross-examination with respect to the receipt. He should have been confronted with the receipt and asked to explain how he could be present at Agra as well as at Pilibhit on December 15. 1942. That was not done. The receipt was, therefore, not admissible in evidence in view of the provisions of Section 145 Evidence Act. (See Naba Kumar Das v. Rudra Karayan Jana, AIR 1923 PC 95 and Awadh Behari Sharma v. State of Madhya Pradesh. : 1956CriLJ1372 . Fahimuddin should have been recalled for cross-examination with respect to the receipt under Order 18, Rule 17, Code of Civil Procedure. (Madhubhai Amthalal v. Amthalal Nanalal, AIR 1947 Bom 156).
50. In view of the foregoing discussion, we are of opinion that the appellant has succeeded in proving the oral gift. So she has become the full owner of the entire immoveable properties which are situate in districts Fatehpur, Agra, Kanpur and Pilibhit and which belonged to Ajaibun-nissa before December 15, 1942.
51. In her plaint. Ahmadi Begum had asked for partition of her share in certain properties (Schedules A and B of the plaint). Except the properties mentioned in Item 7 of Schedule A. all are immoveable properties. Item 7 of Schedule A mentions 'articles and ornaments etc., present in the residential house in the city of Agra, Mohalla Nai Basti Gall Chhamchham, valued at about Rs. 5,000/-. This item dealt with moveable properties. The articles and ornaments are not specified either in the plaint or in the evidence of Ahmadi Begum. As the oral gift entitled the appellant only to immoveable properties. Ahmadi Begum and her consanguine brothers Riazul Haq and Fazal Haq will be entitled to their respective shares in the moveable properties in Item 7 of Schedule A.
52. In the result, we allow the appeal partly. The preliminary decree of the trial court in regard to the properties mentioned in Item 7 of Schedule A to the plaint will stand. The rest of the preliminary decree is set aside. Parties shall get costs according to their success and failure.