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ismail Beari Vs. Abdul Kadar Beari - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1883)ILR6Mad319
Appellantismail Beari
RespondentAbdul Kadar Beari
Excerpt:
.....from the said mulgaini person, and by cultivating and planting plantain and other plants in the said land, ground, and garden, inclusive of house, ridge, field, mines, built house, tank, well, etc. and a second appeal has been made on behalf of the plaintiff, on which it has been argued that the deed of gift created a trust in the defendant for the benefit of plaintiff's daughter and her issue, which trust having failed, the defendant was bound to restore the property to the plaintiff. but, for the future, the wife and her descendants were to enjoy the land from generation to generation......free consent.'4. the gift is described as kasi alias badi both at the head and at the foot of the deed. badi appears to be the tulu word for a gift not subject to reversion at the termination of the marriage. the defendant denied that the gift was such that the property would revert to the plaintiff on the death of his daughter. the district munsif decreed for the plaintiff. but that decree was reversed by the district judge on appeal; and a second appeal has been made on behalf of the plaintiff, on which it has been argued that the deed of gift created a trust in the defendant for the benefit of plaintiff's daughter and her issue, which trust having failed, the defendant was bound to restore the property to the plaintiff. it was also contended that the gift was of the nature of kasi,.....
Judgment:

1. The plaintiff, a Canarese Mapilla, gave his daughter in marriage to the defendant in 1871, and, on the 20th June of that year, she being a girl of 13 years of age, he executed, in favour of her husband, on her account, a deed of gift which is described as Kasi or Badi, conveying certain. property to be enjoyed by her and her descendants from generation to generation.

2. The District Judge has defined Kasi as money or land, given by the relations, of a Mapilla female to the man whom she is about to marry, to be enjoyed by the latter during the continuance of the marriage, but returnable to the woman's family on dissolution of the marriage, either by divorce or by the death of either party. This definition has not been objected to. In the present case, the plaintiff's daughter died in May 1877; and the plaintiff has brought this suit on the ground that he had given the property as Kasi, and that, on the death of his daughter, he became entitled to recover it. He therefore sued for the-recovery of the land, with the value of a house, which he said that the defendant had pulled down, and mesne profits from May 1877.

3. The material parts of the deed of gift which the plaintiff executed on the 20th June 1871, in the defendant's favour, on account of plaintiff's daughter, are translated in the following terms: 'While marrying my daughter, Bibi Amma, aged about 13 years, to you, the following was given as Kasi or Badi on account of the said Bibi Amma, as fixed in accordance with the custom and rule prevailing in our race.' (Here follows a description of the property). The whole of such land proportionately assessed at Rs. 16-7-2, and other things, I have delivered over to you on account of the said woman, and I have also given into your possession the said registered sale-deed, and the stamped rent-chit relating thereto. In future the said Bibi Amma, and the issue born to her, shall, from generation to generation, be free to enjoy happily the said land, etc., without alienating the same in any manner, by getting the Kudtala and Varg written in your name, by yourself paying to the Government henceforward the above said proportionate assessment of Rs. 16-7-2, on account of the said woman, by collecting the one rupee due annually under the terms of the rent-chit from the said mulgaini person, and by cultivating and planting plantain and other plants in the said land, ground, and garden, inclusive of house, ridge, field, mines, built house, tank, well, etc. In this land, none but the said Bibi Amma and her issue, not even myself, shall possess any rights. Thus is Kasi alias Badi executed with my free consent.'

4. The gift is described as Kasi alias Badi both at the head and at the foot of the deed. Badi appears to be the Tulu word for a gift not subject to reversion at the termination of the marriage. The defendant denied that the gift was such that the property would revert to the plaintiff on the death of his daughter. The District Munsif decreed for the plaintiff. But that decree was reversed by the District Judge on appeal; and a second appeal has been made on behalf of the plaintiff, on which it has been argued that the deed of gift created a trust in the defendant for the benefit of plaintiff's daughter and her issue, which trust having failed, the defendant was bound to restore the property to the plaintiff. It was also contended that the gift was of the nature of Kasi, and there fore the property would revert to the plaintiff.

5. The use of the words 'Kasi alias Badi' in the deed of gift is ambiguous, because the two words do not mean the same thing. In Kasi, the donor reserves a reversionary right on the termination of the marriage. In Badi, there is no such reversion. But we do not propose to base our decision on a particular word used by a man who was not a lawyer. We must endeavour to gather the intention of the parties from the deed taken as a whole, having regard to the circumstances in which it was executed.

6. The deed, as pointed out by the District Munsif, appears to have been executed a few days after the marriage, and to reduce to writing the gift already agreed upon. It appears to be made out in the name of the defendant, because his wife was only 13 years of age. For that reason, possession was given to the husband in trust for his wife. But, for the future, the wife and her descendants were to enjoy the land from generation to generation. It was in substance a gift to the defendant's wife and her' issue; and when she died leaving a daughter, the property vested in that daughter, and the defendant took it as the heir of his daughter. There is nothing in the deed to indicate an intention that the property should revert to the donor in any contingency.

7. We must, therefore, affirm the decree of the Lower Appellate Court, and dismiss this second appeal with costs.


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