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Beepathumma and ors. Vs. Mohamed Nakoor Meera Rowther and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 452 of 1972
Judge
Reported inAIR1977Ker54
ActsMuhamedan Law; Registration Act, 1908 - Sections 52, 58, 59, 60 and 68; Evidence Act, 1872 - Sections 67 and 114
AppellantBeepathumma and ors.
RespondentMohamed Nakoor Meera Rowther and ors.
Appellant Advocate T.L. Viswanatha Iyer and; E.R. Venkiteswaran, Advs.
Respondent Advocate M.A. Manhu,; B.R. Alva and; K. Sreedharan, Advs.
DispositionAppeal dismissed
Cases ReferredSumathy Amma v. Kunju
Excerpt:
.....on behalf of the contesting respondent-plaintiff that the saidclause though restricts muhammad ghanirawther's right of alienation during hislifetime, does not affect his right to possess and enjoy the respective property orproperties. it is, in that connection,pointed out by the learned counsel appearing for the 1st respondent that theexecutee could possess and enjoy theproperty covered by each of the said fourdocuments only after muhammad ghanirawther's death and that the executeewould get right of alienation in respectof the said property or properties onlyafter muhammad ghani rawther's death. the phrase used is 'kayvasom veche aadaayangal anufavich varumaanom' which normally should mean that the executant was entitled to be in possession of the property and enjoy the same by..........on behalf of the contesting respondent-plaintiff that the saidclause though restricts muhammad ghanirawther's right of alienation during hislifetime, does not affect his right to possess and enjoy the respective property orproperties. it is, in that connection,pointed out by the learned counsel appearing for the 1st respondent that theexecutee could possess and enjoy theproperty covered by each of the said fourdocuments only after muhammad ghanirawther's death and that the executeewould get right of alienation in respectof the said property or properties onlyafter muhammad ghani rawther's death.we are inclined to accept the contentionraised on behalf of the plaintiff-respondent as stated above. no doubt, clause (2) of each of the documents restricts right of alienation of the.....
Judgment:

George Vadakkel, J.

1. That the plaintiff is entitled to 3/8 share >in the properties left by his consanguine brother, Muhammad Ghani Rawther, is not disputed before us. The dispute is as to whether Muhammad Ghani Rawther left behind him any properties in which the plaintiff could claim 3/8 share. According to the plaintiff the four documents, Exts. B-1, B-4, B-6 and B-7, could not operate on the properties of Muhammad Ghani Rawther for two reasons, namely, that those documents evidence gifts in violation of the Muslim Law and that those documents, if at all executed, have been executed by Muhammad Ghani Rawther at a time when he was not mentally competent to execute the same. The lower court accepted the plaintiffs case and passed a preliminary decree for partition and defendants Nos. 2 to 4 have come up in appeal. The first defendant died while the suit was pending trial before the lower court.

2. The first defendant is the widow of deceased Muhammad Ghani Rawther who died on 18th December 1966; the 2nd defendant is the daughter of the first defendant and Muhammad Ghani Rawther; the 3rd defendant is the second defendant's husband; the 4th defendant is a distant cousin of Muhammad Ghani Rawther; the 5th defendant is the brother of the 1st defendant in whose favour the first defendant has assigned suit item Nos. 6 and 7 as per Ext. B-5. The 5th defendant died pending suit and defendants Nos. 6 to 12 are his legal representatives.

3. Exts. B-1, B-4, B-6 and B-7 are documents all dated 3rd October, 1966, a Couple of months prior to Muhammad Ghani Rawther's death. The 2nd defendant claimed item Nos. 1 to 5 under Ext. B-l document; the 1st defendant, the widow, claimed item Nos. 6 and 7 under Ext. B-4; these items are now claimed by defendants 6 to 12, the legal representatives of the 5th defendant under Ext. B-5; the 4th defendant claimed item 8 under Ext. B-6; and the 3rd defendant claimed item No. 9 as per Ext. B-7. While according to the contesting defendants these documents evidence valid gifts in favour of the respective executees. according to the plaintiff there was no gift in so far as no rights in respect of those properties got vested in the respective executees. At any rate, according to the plaintiff possession of the properties has not been handed over or delivered over to the respective executees.

4. According to the plaintiff these documents came into existence at a time when the person who appears to be the executant, Muhammad Ghani Rawther, was physically and mentally unwell, physically unwell because he was laid up with paralysis and mentally unwell because he was not possessed of an alert mind. These are the two aspects which have to be examined by us and we will do the same one by one.

5. Admittedly the four documents, Exts. B-1, B-4, B-6 and B-7, are couched in the same language. The document calls itself settlement document. In Clause (1) it is stated that the executant is weak in body on account of old age. The executant thereafter traces his title to the property stating that the property covered by each of the documents is not the property inherited by him but property acquired by him by his own exertions. We will rather read Clause (2) of Ext. B-l on which there is much dispute between the parties as regards its scope.

'Pattikayile vahakalle ente afaava-kalamvarre enikkevikriya swathandria-millathe kayivasom vache aadayangal-anufavicha varumaanam ente afaava sa-shom pattikayile vahakallum vcedumvallappum kuzhikkurakallum ningall ka-yivahom vache anufavich varumaanomningallude isttom poole vikkrapam mu-thalayathe nadathuvaanummjaam ethi-naal settil chayithirikkunnu.' That clause means that till the death ofthe executant he would have no right ofalienation of the property or propertiesmade mention of in each of the documents but he will have the right to possess the said property or properties andenjoy the same toy taking usufructs, andthat after his death the respective pro-perty or properties may be possessed andenjoyed by the executee as he likes withright of alienation etc., and in that manner the property is settled upon the executee. While according to the learnedcounsel for the appellants the said clausereserves in the executant, MuhammadGhani Rawther, a right to take usufructsalone, it is the case on behalf of the contesting respondent-plaintiff that the saidclause though restricts Muhammad GhaniRawther's right of alienation during hislifetime, does not affect his right to possess and enjoy the respective property orproperties. It is, in that connection,pointed out by the learned counsel appearing for the 1st respondent that theexecutee could possess and enjoy theproperty covered by each of the said fourdocuments only after Muhammad GhaniRawther's death and that the executeewould get right of alienation in respectof the said property or properties onlyafter Muhammad Ghani Rawther's death.We are inclined to accept the contentionraised on behalf of the plaintiff-respondent as stated above. No doubt, Clause (2) of each of the documents restricts right of alienation of the executant during his lifetime; during that time, it is common case, that the executee also could have no right of alienation; during the lifetime of the executant, admittedly he has right to take usufructs which in other words would mean that the executees would have no right to take usufructs. It therefore remains to be considered whether the reservation is only a right ' to take usufructs in the executant during his lifetime, or something more than that. The phrase used is 'kayvasom veche aadaayangal anufavich varumaanom' which normally should mean that the executant was entitled to be in possession of the property and enjoy the same by taking usufructs. That this is so is clear from the latter portion of Clause (2) which specifically authorise the executee to be in possession of the property and enjoy the same -- 'Ningal kayvasom-vache anulavicha varumaanom' though that right would enure to the executee only after the lifetime of the executant. That if the donor reserves to himself the right to be in possession of the corpus and the right to enjoy the same, there cannot be a valid gift under Muslim law, has been laid down by Sir John Beaumont on behalf of the Board in Nawazish Ali Khan v. Ali Raza Khan, AIR 1948 PC 34. It was said:-- '..... What Muslim law does recognise and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafi). Over the corpus of the property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with the absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests.'

The passage above quoted would mean that Muslim law requires the gift of corpus itself and if there is anything repugnant to such a gift, such a repugnant condition would be invalid, but it is necessary that the gift should be of the corpus. We have earlier found, construing Clause (2) in each of the four documents, that there was no gift of the corpus, the executant having reserved to himself all rights in respect of the corpus including the right to take usufructs. To the same effect is the decision of the Privy Council in Mohamed Asian Khan v. Khalilul Re-haman Khan, AIR 1947 PC 97, Therein it was held that if possession of the property was reserved with the donor the gift is not complete. The aforesaid decision was followed by this Court in Hajee Kunju Mamathu v. Asikutty, 1959 Ker LT 624 and Pichakannu- v. Aliyarkunju Lebba, 1963 Ker LT 226. In the later decision Velu Pillai, J. stated that 'it was a fundamental rule of Muhammedan Law as regards gifts that the donor should divest himself completely of all ownership and dominion over the subject of the gift and that a gift with a reservation of possession by the donor during his lifetime was void as held in Mohamed Asian Khan v. Khalilul Rehaman Khan, AIR 1947 PC 97. In view of the decisions mentioned above we are at one with the lower court in holding that the gifts Exts. B-2, B-4, B-6 and B-7 are bad under the Muslim law and that the same could not confer on the respective executee any right in respect of the property stated to have been gifted thereunder.

6. In view of our finding on the first point it is not really necessary to go into the other question. However, since the point was elaborately argued by the learned counsel on both sides, we will advert to the same also.

7. We were taken through the evidence of P. Ws. 1 to 5 as also of D. Ws. 2 and 3. D.W. 1 is a clerk from the Irrigation Office who only produced Exts. B-11 to B-13. P.W. 1 is the plaintiff himself. He speaks to his case. P.W. 2 is a Vydiar who treated Muhammad Ghani Rawther during his illness. D.W. 2 the 3rd defendant admitted that P. W. 2 treated Muhammad Ghani Rawther. According to P.W. 2 the physician, Muhammad Ghani Rawther was laid up with paralysis, he could not move about, he was lying like a log and he died of that disease. He also swears that he treated Mohammad Ghani Rawther for eight or nine months, that during his illness Muhammad Ghani Rawther could not talk and that he had no understanding power. He has not been effectively cross-examined on these points. P.W. 2 also said that Muhammad Ghani Rawther was short of hearing after the attack of paralysis. Here again P.W. 2 has not been effectively cross-examined. P.Ws. 3 to 5 are witnesses who knew Muhammad Ghani Rawther and who had visited him during his illness. All the three of them belonged to the locality to which Muhammad Ghani Rawther belonged. P. Ws. 3 and 5 were residing only two houses away from the residence of Muhammad Ghani Rawther and P.W. 4 about 3 furlongs away. Nothing has been brought out to discredit the evidence tendered by these witnesses. The lower court has believed them and we see no reason to disbelieve these witnesses. It is not contended before us that if their evidence is accepted the same would not corroborate the evidence of P.W. 2 the physician. We believe P. Ws. 2 to 5, and the result thereof would be that despite the fact that the four documents have been registered the burden to prove that the same have been executed by Muhammad Ghani Rawther understanding the same and the transaction about which those documents speak, shifts to the respective executees. That this is so is clear from the decision of the Supreme Court in Purnima Devi v. Khagendra Narayan, AIR 1962 SC 567 and Lakshmi Amma v. T. Narayana, AIR 1970 SC 1367. The first of the aforementioned cases was a case of a registered will. It was pointed out by the Supreme Court that-

'...... the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be much of value.'

In the subsequent case the Supreme Court said:

'We are satisfied that Narasimha Bhatta who was of advanced age and was in a state of senility and who was suffering from diabetes and other ailments was taken by respondent No. 1 who had gone to reside in the house at Sodhan-kur village a little earlier in a taxi along with Lakshmiamma to the Nursing Home in Mangalore where he was got admitted as a patient. No draft was prepared with the approval or under the directions of Narasimha Bhatta nor were any instructions given by him to the scribe in the matter of drawing up of the document Ext. B-3..... All these facts and circumstances raised a grave suspicion as to the genuineness of the execution of the document Ext. B-3 and it was for respondent No. 1 to dispel the same.'

8. The circumstances in the case on hand are not in any way different. As pointed out earlier, the evidence of P. Ws. 2 to 5 have raised in our minds grave suspicion about the genuineness of the documents, Exts. B-1, B-4, B-6, and B-7. We have anxiously looked into the evidence of D. Ws. 2 and 3 to see whether that evidence was anyway helpful to dispel the suspicion raised in our minds. But we see that the evidence of D. Ws. 2 and 3 contradicts each other in all material particulars. While it is the case of D.W. 2 that the documents were registered the next day, D.W. 3 says that the documents were registered 3 or 4 days after the date of execution. On his own admission D.W. 3 was not present at the time of registration though he prepared the documents. According to D.W. 3 he was asked to go to Muhammad Ghani Rawther by the 8th defendant while, according to D.W. 2, the 8th defendant for the first time came to know of the documents only after execution. It is also noteworthy that D,W. 3 says that no draft was prepared before any of the documents were drawn up on the stamp paper. D.W. 3 says that he was instructed by Muhammad Ghani Rawther as regards the execution of the four documents; according to him the instruction was that the same was to take effect only after the death of Muhammad Ghani Rawther. This is what D.W. 3 says in the box: 'Ayaalude marannassashom suthuk-kall layikkathakkavithathil aadarangall ezhuthaanaanne aavasyappettathe'. No doubt, he also says that what he was asked to prepare was not a will. But it is clear that according to him what he was instructed to do was to prepare documents so that the property may vest in the respective executees after the death of the executant. In the background of the evidence of P.Ws. 2 to 5 it is clear that the evidence of D.Ws. 2 and 3 is in no way helpful to dispel the suspicion raised in our minds as regards the genuineness of the documents in question. The result is the contesting defendants have failed to establish that the said documents have been properly executed by Muhammad Ghani Rawther while he was possessed of an alert mind.

9. An attempt was made by the learned counsel for the appellant to persuade us to hold that the defendants have discharged their onus to prove animus et factum (combination of intention with the act) on the part of Muhammad Ghani Rawther to gift the properties to the respective executees under the various impugned documents by the endorsements made on these documents by the Registrar, and in that connection reliance was placed by him on Sections 52 and 58 - 60 of the Registration Act, 1908 as also on the decision of Raman Nayar, J. (as he then was) in Sumathy Amma v. Kunju-lakshmi Amma, 1964 Ker LT 945 besides Ext. B-14, the certified copy of the deposition stated to have been given by Muhammad Ghani Rawther before the Registrar. Even in the matter of documents that could be proved under Section 67 of the Evidence Act, 1872 alone without the proof required under Section 68 of that Act, the court is only enabled to accept the certificate of registration endorsed by the Registrar under Section 60 of the Registration Act, 1908, as sufficient proof of the facts mentioned in the endorsements referred to in Section 59, that is to say, matters made mention of in Sections 52 and 58 of that Act; the court is not bound to accept the same as sufficient proof, but can insist upon better evidence (as was done by the lower court in the case on hand--that court was of the view that in the absence of evidence of the Register neither the certificates of registration nor Ext. B-14 could be accepted as sufficient proof). May be in such a case, with the aid of illustration (e) of Section 114 of the Evidence Act, 1872 the court could also presume that the official act of registration has been regularly performed and that the facts mentioned in the endorsements have occurred as mentioned therein. However, even in such a case, the certificate of registration would not enable the court to presume animus et factum on the part of the executant of the document. The instant case is one to which Section 68 of the Evidence Act, 1872 is attracted. This is so in view of Section 123 of the Transfer of Property Act, 1882. We do not, therefore, think that the decision in Sumathy Amma's case 1964 Ker LT 945 is of any assistance to the appellant; nor do we think that the certificates of registration or Ext. B-14 could advance the appellant's case any further. The authorities discussed by Raman Nayar, J. in opening portion of paragraph 2 in Sumathy Amma's case 1964 Ker LT 945 are sufficient to repel the argument, for this is a case, as already pointed out, where the impugned documents have to be proved as required by Section 68 of the Evidence Act, 1872.

In the result, we confirm the preliminary judgment and decree under appeal and dismiss this appeal. However, in the circumstances of the case, there will be no order as to costs.

Transmit the records immediately to the lower court.


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