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Kochu Ahmmed Pillai Vs. Pathummal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberS.A. No. 756 of 1991
Judge
Reported inAIR2003Ker217; 2003(1)KLT826
ActsMohammedan Law
AppellantKochu Ahmmed Pillai
RespondentPathummal
Appellant Advocate M. Rajasekharan Nayar, Adv.
Respondent Advocate B. Radhakrishnan, Adv.
DispositionAppeal dismissed
Cases ReferredAhemmed Kannu Rowther v. Mohamed Kani
Excerpt:
- - a1, the father of the 1st defendant has stated that put of love and affection towards the daughter, he has given all his rights in the property as gift to the 1st defendant and from that day onwards the 1st defendant is to enjoy the property, effect mutation in the revenue records and obtain patta. the prayer for injunction was disallowed since the 1st defendant was entitled to enjoy the property during his lifetime......suit was decreed by the trial court, it was reversed in appeal by the 1st appellate court.2. the plaint schedule property belonged to kochu bappu kader pillay. the plaintiff is the son of kader pillay and the 1st defendant is his daughter. kader pillay executed ext. a1 gift deed on 28.7.1967 in respect of the plaint schedule property. the dispute in this litigation is with respect to the scope and content of ext. a1. while the plaintiff states that the gift is in favour of the plaintiff subject to life interest in favour of the 1st defendant, the 1st defendant contended that the gift was in favour of her and the plaintiff did not get any right under the gift deed. the 1st defendant executed ext. a2 lease deed in favour of the third defendant, her son-in-law in respect of plaint.....
Judgment:

R. Bhaskaran, J.

1. This second appeal is filed by the plaintiff in a suit for declaration of title and possession and for cancellation of documents executed by the 1st defendant. Though the suit was decreed by the trial court, it was reversed in appeal by the 1st appellate court.

2. The plaint schedule property belonged to Kochu Bappu Kader Pillay. The plaintiff is the son of Kader Pillay and the 1st defendant is his daughter. Kader Pillay executed Ext. A1 gift deed on 28.7.1967 in respect of the plaint schedule property. The dispute in this litigation is with respect to the scope and content of Ext. A1. While the plaintiff states that the gift is in favour of the plaintiff subject to life interest in favour of the 1st defendant, the 1st defendant contended that the gift was in favour of her and the plaintiff did not get any right under the gift deed. The 1st defendant executed Ext. A2 lease deed in favour of the third defendant, her son-in-law in respect of plaint schedule item 1 and Ext. A3 gift deed in favour of her daughter, the 2nd defendant in respect of plaint schedule item No. 2. The contention of the plaintiff is that these documents are not valid and binding on him.

3. The question therefore is whether Ext. A1 gives absolute right to the 1st defendant or not. In the first portion of Ext. A1, the father of the 1st defendant has stated that put of love and affection towards the daughter, he has given all his rights in the property as gift to the 1st defendant and from that day onwards the 1st defendant is to enjoy the property, effect mutation in the revenue records and obtain patta.: In the latter portion of the document, it is stated that after the death of 1st defendant the property will devolve on the plaintiff. It is also stated that the plaintiff has to look after the affairs of the 1st defendant and in case of any default, the 1st defendant will be entitled to encumber the property. The trial court found that in view of the subsequent clause, it was clear that the father did not intend to create any absolute right in favour of the 1st defendant. It was therefore held that the 1st defendant got only a life interest and the absolute right vested in the plaintiff. In that view of the matter, the trial court declared the title of the plaintiff in respect of the plaint schedule properties and declared that the subsequent documents executed by the 1st defendant in favour of defendants 2 and 3 are invalid and those documents were set aside. The prayer for injunction was disallowed since the 1st defendant was entitled to enjoy the property during his lifetime.

4. In appeal, the 1st appellate court has found that under Ext. A1 an absolute right has been created in favour of the 1st defendant and subsequent clauses have only to be ignored. The judgment and decree of the trial court were reversed and the suit was dismissed.

5. In this second appeal, the learned counsel for the appellant submitted that a reading of Ext. A1 would show that the gift was only in favour of the plaintiff and the 1st defendant got only a life interest. It was also contended that it was clear from Ext. A5 that under Ext. A1 gift the plaintiff got absolute right. After hearing the counsel on both sides, I do not think that the judgment of the lower appellate court requires interference in second appeal. As held by the lower appellate court, Kader Pillay gave absolute right to the 1st defendant by executing Ext. A1. After giving such absolute right, subsequent clauses which would show that plaintiff has to get right after the death of 1st defendant have only to be ignored. In Nawazish Ali Khan v. Ali Raza Khan (AIR 1948 PC 134) the Privy Council has stated as follows:

'What Muslim Law does recognize 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 property, the law recognises only absolute dominion, where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition as 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. This distinction runs through the Muslim Law of gifts - gifts of the corpus (hiba), gifts of the usufruct (Anyat) and usufructuary bequests.'

This Court in Ahemmed Kannu Rowther v. Mohamed Kani (1965 KLT 505) followed the Privy Council decision and held that if the gift is of the corups, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant. It was also found that every grant relating to the corpus of the property is not to be construed as a grant relating to its usufruct in order to give effect to a life-interest. As already noted, the unequivocal statement in the gift deed gave absolute right to the first defendant and the further condition that after the death of 1st defendant, the plaintiff will get the property cannot be enforced under the Mohammedan Law. There is no life interest under Mohammadan Law, for the corpus, though it is possible to provide for a provision reserving the right to take usufructs while giving the absolute right in the corpus to the donee. In view of the above, I have no hesitation to hold that Ext.A1 gave absolute right to the 1st defendant with respect to the plaint schedule properties.

6. The learned counsel for the appellant then submitted that a reading of Ext. A5 which is a partition deed in which the plaintiff and the 1st defendant were parties will show that the 1st defendant himself recognised that Ext. A1 gave only a life-interest to him. A reading of the schedule in Ext. A5 will show that the recital was excluding the gift as per Ext. A1 and Ext. A5 will not be of any help to the plaintiff. In view of the above discussion, the second appeal is devoid of any merit and it is dismissed with costs.


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