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Zohara Khathum Bi Bi Vs. Mahaboob Bi by Her Son and Agent, P. Abdul Haq Sahib - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1943Mad677; (1943)2MLJ99
AppellantZohara Khathum Bi Bi
RespondentMahaboob Bi by Her Son and Agent, P. Abdul Haq Sahib
Cases ReferredIn Mohammad Baksh Khan v. Hosseini Bibi
Excerpt:
.....affecting the execution :if the conclusion is reached that the obtaining of independent advice would not really have made any difference in the result, then the deed ought to stand. the calcutta high court held that the execution of the deed was not binding on her estate because it was not satisfied that she had understood its contents or had been a free agent at the time; but bearing all these things in mind, and reviewing the whole evidence, they come to the conclusion that the lady knew perfectly well what she was doing, and that in every sense the act was her own act. the advice was communicated to her and she was satisfied with it. we fail to see any legitimate ground for questioning the validity of the transaction and accordingly we hold that the third defendant received..........(d.w. 2) and the younger, the fifth defendant. hakim abdul azeez died on the 10th march, 1929. the deed of gift was attested by the second and fifth defendants and by abdul wahab, ahmadulla batcha and haji mohideen batcha. the third defendant mother died in 1910 when the third defendant was two years of age. she was brought up by ameena bi with whom she lived until ameena bi's death on the 5th june, 1938. hakim abdul azeez was a man of property and his two daughters were married to men of substance. ameena bi had great affection for the third defendant who was an orphan without property. without a dowry her niece was not able to contract a suitable marriage. to place her in a position to do so ameena bi decided to give her the property in suit provided that it could be arranged that she.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The question here is whether a deed of gift of immovable property executed by one Ameena Bi on the 9th October, 1929, in favour of her niece, the third defendant in the suit, is valid according to Muhammadan law. The validity of the gift is challenged by the donor's sister, Mahaboob Bi, who claims to be entitled to a half share in the property covered by the deed. The appeal arises out of a suit filed on the original side of this Court by Mahaboob Bi for a declaration of her title and the possession of the share claimed by her in the property. The suit was tried by Somayya, J., who found the questions of fact in favour of the donee, but he granted the relief claimed by the plaintiff largely on the ground that Ameena Bi had not received independent advice before entering into the transaction. The third defendant has appealed. Before entering upon a discussion of the evidence it may be mentioned that the plaint contained an allegation of fraud, but the idea of fraud is negatived by the judgment under appeal and has not been suggested in this Court. The learned advocate for the plaintiff-respondent has been compelled to rest his case on the finding of the learned Judge that it was essential for Ameena Bi to receive independent legal advice before giving her property away, as she was a pardanashin lady. For the appellant it is said that the evidence establishes that Ameena Bi did receive legal advice before executing the deed, but in any event this was not necessary as she knew her own mind and in making the gift she was carrying out her deliberate intention.

2. There were eleven defendants and the relationship between the parties is to be gathered from the sub-joined tables. Ameena Bi was married twice, but had no issue. Her second husband was Hakim Abdul Azeez, who had been married twice before. By his first wife, Hakim Abdul Azeez had a son who is the first defendant, and a daughter, who married Ahmadulla Batcha. By his second wife he had a son (the second defendant) and two daughters, the elder of whom married Haji Mohideen Batcha (D.W. 2) and the younger, the fifth defendant. Hakim Abdul Azeez died on the 10th March, 1929. The deed of gift was attested by the second and fifth defendants and by Abdul Wahab, Ahmadulla Batcha and Haji Mohideen Batcha. The third defendant mother died in 1910 when the third defendant was two years of age. She was brought up by Ameena Bi with whom she lived until Ameena Bi's death on the 5th June, 1938. Hakim Abdul Azeez was a man of property and his two daughters were married to men of substance. Ameena Bi had great affection for the third defendant who was an orphan without property. Without a dowry her niece was not able to contract a suitable marriage. To place her in a position to do so Ameena Bi decided to give her the property in suit provided that it could be arranged that she herself should receive the rents during her lifetime. The property consists of a large house with frontages on two streets. The building was divided into tenements and the rents were substantial.

Habibulla Haji Mohamad Abdul Subhan Ameena Bi

| |

| _______________________________________________________________

| | | | | | |

Hasina Bi Md. Habibur Zulaka Bi Zora Khatum Md. Hifzur Md. Mohi Md. Obai-

Rahiman married (Deft. 3) Rahiman bur Rahiman dur Rahiman

(Deft. 4) Abdul Wahab (Deft. 5) (Deft. 6) (Deft. 7)

Haji Ahamad Hussain Mahabub Bi

| plaintiff

____________________________________________

| | | |

Haji Khadir Haji Md. A. Abdul A. Abdul

Mohideen Sackeria Rahim Karim

(Deft. 8) (Deft. 9) (Deft. 10) (Deft. 11)

Hakim Abdul Azeez

First wife Second wife Third wife,

| | Ameena Bi

___________________ ____________________________________

| | | | |

Abdul Wahid Daughter Abdul Khadir Daughter married Daughter married

(Deft. 1) married (Deft. 2) Haji Mohideen Hifzar Rahiman

Ahmadullah Batcha (Deft. 5)

Batcha

3. In order to ascertain whether Ameena Bi's wishes could be lawfully carried into effect the first defendant, who held a power of attorney from her, consulted Mr. N.R. Sesha Aiyar, a well-known advocate of this Court. Mr. Sesha Aiyar advised that this could be done by Ameena Biaexecuting a deed of gift in favour of the third defendant and by the latter granting a power of attorney to the first defendant to enable him to collect the rents on her behalf and pay them over to her aunt. Having given this advice Mr. Sesha Aiyar was instructed to prepare the necessary documents, which he did. They Were handed to the first defendant, who took them to Ameena Bi. We will refer to the evidence in detail later, but in passing it may be mentioned that it is to the effect that the drafts were explained to Ameena Bi, who approved of them. Fair copies were made in the office of Mr. Sesha Aiyar on the 5th August, 1929. On the 9th October, 1929, Ameena Bi executed the deed of gift which was duly registered. The power of attorney was not executed until the 2nd February, 1930. There can be no doubt that the reason for the execution of the power of attorney later than the deed of gift was abundance of caution on the part of the first defendant. He wished to avoid any question arising with regard to the delivery of possession of the property to the donee.

4. The deed of gift contains these recitals:

Whereas the donor is the sole and absolute owner of premises No. 51, Guruvappa Street and 9, Bhadrian Street, George Town, Madras, more particularly and fully described in the schedule below and hereinafter also deferred to as the properties and the donor has, according to her own free will and desire, decided to convey the properties by way of absolute gift to the donee who, besides being the daughter of the donor's brother now deceased, has been brought up by the donor from her infancy.

5. Then follows the operative portion of the deed, after which there are these statements:

Whereas the properties are now in the occupation of tenants under the donor acting through her agent Haji Hakim Muhammad Abdul Wahib Sahib, the said agent has been made to attorn to the donee in respect of the properties and the donee has also been given the title deeds of the properties. The donee shall herself apply forthwith for mutation of names in the Revenue records and the donor hereby gives her free consent to the same. In this manner the donor has placed the donee in full and proprietary possession of the properties. Whereas the donee has accepted the gift the, donor hereby declares that as and from this date the donee and the donee alone is the sole and absolute owner of the properties.

6. The power of attorney recites the acceptance of the property by the third defendant and confers on the first defendant the following powers : (a) to apply to the Tahsildar of Madras to get the third defendant's name entered in the revenue records as the owner of the property; (b) to let out the property to one tenant or to as many tenants and on such rent and such terms and stipulations as he may think fit and to take rental agreements in his own name and to terminate the tenancy of and to eject all or any of the tenants as and when he may think fit whether through Court or otherwise and to issue receipts for rent; (c) to pay all taxes, quit rents, electric and other charges and dues payable or becoming payable in respect of the property and to effect necessary repairs according to his discretion; (d) to pay over every month or as soon as the rents are realized such money or monies as are in his hands, less any amount required for expenses as aforesaid during that month, to the third defendant's paternal aunt, Ameena Bi, widow of the late Khan Bahadur Haji Hakim Muhammad Abdul Azeez Sahib, residing at No. 424, High Road, Triplicane, Madras; (e) to keep full account of his management; (f) otherwise to do all such and other necessary things which would have to be or would be done by him were he the owner of the properties.

7. We will now proceed to examine the evidence of the important witnesses called on behalf of the donee. The first witness is Abdul Azeez Batcha Sahib, who was the Turkish consul in Madras and is a director of the Buckingham and Garnatic Mills and the holder of the title of Khan Bahadur. His brother was the first husband of Ameena Bi. He says that Ameena Bi told him of her intention to execute a deed of gift in favour of the third defendant and later that she had executed the deed. He was unable to say exactly when it was that Ameena Bi told him of her intention and for this reason it has been suggested by the learned advocate for the plaintiff-respondent that his evidence should not be accepted. We consider that this is no reason whatsoever for rejecting his testimony. He is a man of position and character and has no interest in the property. Moreover his evidence fits in with the testimony of other important witnesses.

8. The next witness is Haji Mohideen Batcha Sahib, an Honorary Presidency Magistrate and the holder of the title of Khan Sahib. He is the second son-in-law of Hakim Abdul Azeez. He states that he was told by Ameena Bi of her intention to convey the property to the third defendant. He was present at the execution of the deed by Ameena Bi, and before she signed he translated the document to her line by line and explained it to her. She fully understood its contents. The witness also states that the execution of the document was known to all the members of the family at the time. In cross-examination he was asked why the power of attorney granted by the third defendant to the first defendant came into existence and his answer was this:

The lady Ameena Bi wanted to give the property to the girl, but at the same time she wanted that the income should be enjoyed by her till her lifetime. When the lawyer was consulted, the lawyer advised that it would give rise to complications. So, it was suggested that the gift may be made separately and a document authorising Abdul Wahib Sahib to draw the rents on behalf of Zohara Kathum and give it to Ameena Bi may be drafted.

9. The first defendant was examined as the third witness for the third defendant. He is also the holder of the title of Khan Sahib. He states that Ameena Bi was a capable person and managed the household. She instructed him to have the deed prepared, provided that she received the rents during her lifetime. He consulted Mr. Sesha Aiyar on her behalf. When the drafts had been prepared by Mr. Sesha Aiyar he explained them to Ameena Bi and then handed them over to her. She retained them for a month or a month and a half before giving him instructions to arrange for their execution.

10. Important evidence is also given by the second defendant, a half brother of the first defendant. Before the execution of the deed of gift the second defendant collected the rents of the house on behalf of the first defendant, Ameena Bi's agent. After the execution of the deed of gift, the second defendant continued to collect the rents on behalf of the first defendant, who was then the third defendant's agent. The first and second defendants carried on business together and kept books of account. Before the execution of the deed the rental collections were entered in an account standing in the name of Ameena Bi. When the deed was executed the second defendant opened in the firm's books an account in the name of the third defendant and thereafter the rent receipts were entered in this account. When they were paid over to Ameena Bi, the third defendant's account was debited and Ameena Bi's account credited with the amounts. The second defendant corroborates the statement of Haji Mohideen Batcha Sahib that he explained the deed of gift to Ameena Bi before she signed it.

11. Mr. Sesha Aiyar was examined as the sixth witness for the third defendant. He is the legal adviser to the family of Hakim Abdul Azeez. He deposes to the fact that the first defendant consulted him about this matter and tells of the advice which he gave him. He also speaks to the preparation of the drafts of the deed of gift and the power of attorney and the making of the fair copies after the drafts had been returned to him for that purpose.

12. The only evidence on behalf of the plaintiff-respondent is her own testimony. She pretends that she did not know of the deed of gift until shortly before she filed the suit, but we do not believe this. We accept the statement of Haji Mohideen Batcha Sahib that the execution of the document was known to all the members of the familv at the time. Even if the fact of the execution had been concealed from the plaintiff-respondent it would make no difference in the position as it was the intention of Ameena Bi to give the property to the third defendant, and the steps taken were sufficient to confer upon her a legal title.

13. The learned Judge accepted the evidence adduced by the third defendant and we accept it. In fact we can see no reason at all for questioning it. A half hearted attempt has been made to challenge the finding of the learned Judge that the third defendant was actually placed in possession, because the title deeds remained with the first defendant. This is certainly no ground for holding that possession was not given. Before the deed was executed the first defendant held the title deeds of Ameena Bi and after it was executed he held them on behalf of the third defendant. It has also been suggested that there is ground for suspicion in that the first defendant did not take steps to effect a transmutation of names in the revenue registers and because the third defendant's name was not entered in the Municipal registers until 1932 and then only in respect of half of the property, the change with regard to the other half not being effected until 1936. As the house has frontages on two streets it is entered as two houses in the Municipal registers. Here again we fail to see what difference this makes. All it means is that the first defendant as the agent of the third defendant did not carry out his duties properly in this respect. The neglect to give to the revenue and Municipal authorities notice of the transfer can have no bearing on the question of possession if the transfer was carried through, as was the case, Ameena Bi executed a formal deed of transfer in favour of her niece, this was duly, registered, the tenants of the building paid their rents to her agent and the sums were credited in an account which was opened in her name in the firm's books.

14. The fact that the gift was conditional on the third defendant paying over the rents to Ameena Bi during her lifetime does not render the gift invalid. In Nawab Umjad Ally Khan v. Mst. Mohundee Begum (1867) 11 M.I.A. 517 the Privy Council held that a gift inter vivos of Government promissory notes by a father to his son, accompanied by delivery of possession of the securities and a transfer in the son's name was valid according to Muhammadan law, notwithstanding that the donor stipulated that during his lifetime he should receive the interest, to be applied by him' to, certain religious and charitable purposes. The present case falls within that decision.

15. The reasons given by the learned Judge for holding in favour of the plaintiff are to be gathered from this passage in his judgment:

The omission to bring the Sub-Registrar to the house to have the document registered, absence of legal advice or for the matter of that any independent advice at any stage, the nondelivery of the title deeds and the omission to apply for mutation of names in the revenue registers, continuance of the same agency to collect the rental all seem to show a deliberate attempt to make Ameena Bi believe that she was not parting with any right in praesenti

16. The fact that the Sub-Registrar was not summoned to the house for registration of the deed of gift does not matter if the evidence shows that in executing it Ameena Bi fully understood the position, and the same remark would apply if it were a fact that she had not beforehand received independent advice. We have already referred to the question of the delivery of the title deeds and the failure to apply for mutation of names in the revenue registers. The continuance of the same agency for the collection of rents is also besides the question if the agency collected them on behalf of the donee, as we hold was the case.

17. In a number of cases the Privy Council has pointed out the advisability of a pardanashin lady receiving independent advice before parting with her property. The learned Judge has apparently regarded this as essential in all cases, but this is not so. In Faridunnissa v. Mukhtar Ahmed (1925) 49 M.L.J. 758 : L.R. 52 IndAp 342 : I.L.R. 47 All. 703 (P.C.) the Privy Council observed:

It must be a question whether having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not.

18. In that case a Muhammadan lady who was illiterate and pardanashin executed a deed by which she gave her whole property in wakf reserving only a small sum for herself and her invalid husband and the right of residence in a house. The situation here is very different.

19. The learned Judge has not had sufficient regard to the circumstances in which independent advice should be insisted on. If the evidence establishes that in transferring the property the act is the free and independent act of the settlor the transaction will stand, whether there has been advice or not. A pardanashin lady has just as much right as any other person to give her property away if she wishes to do so. All that the Court is concerned with is whether she fully understands what she is doing and whether she does it of her own free will. In Hem Chandra Ray Chaudhuri v. Suradhani Debya Chaudhurani the Judicial Committee pointed out that a pardanashin lady is not required to understand every technical detail in a bargain, and in Kati Baksh Singh v. Ram Gopal Singh (1913) 26 M.L.J. 121 : L.R.41 IndAp 23 : I.L.R. 36 All. 81 (P.C.) they observed:

As stated, their Lordships incline to think that the judgment of the Subordinate Judge would have been affirmed by the Judicial Commissioners but for the view thus expressed : ' It is needless to cite authorities to show that such a gift cannot stand unless it is proved that the lady had independent advice.' In their Lordships' opinion there is no rule of law of the absolute kind here indicated. The possession of independent advice, or the absence of it, is a fact to be taken into consideration and well weighed on a review of the whole circumstances relevant to the issue of whether the grantor thoroughly comprehended, and deliberately and of her own free will carried out, the transaction. If she did, the issue is solved and the transaction is upheld; but if upon a review of the facts--which include the nature of the thing done and the training and habit of mind of the grantor, as well as the proximate circumstances affecting the execution : if the conclusion is reached that the obtaining of independent advice would not really have made any difference in the result, then the deed ought to stand. The present, in their Lordships' judgment, appears to be a case of that kind.

20. In Mohammad Baksh Khan v. Hosseini Bibi (1867) 11 M.I.A. 517 a Muhammadan widow, who was pardanashin, instituted a suit to set aside a deed of hibanama. She denied execution and pleaded in the alternative coercion and undue influence. The plaintiff died during the pendency of the suit which was continued by her heirs. The plaintiff had made a deed of gift of property in favour of her daughter. The daughter died and the donor became entitled to the property as her heir. Shortly after the death of the daughter the executant conveyed the property to her daughter's children. The Calcutta High Court held that the execution of the deed was not binding on her estate because it was not satisfied that she had understood its contents or had been a free agent at the time; The Judicial Committee considered that on the evidence this finding was not justified. In reversing the decision of the High Court the Board said:

Then comes the question, was the deed executed under such circumstances that it ought not to be allowed to stand? Duress and coercion may be left out of consideration. The witnesses who spoke to anything of that kind were discredited by both Courts. But there remains the more subtle form of undue influence. Their Lordships desire not to say a word which could interfere with the settled principles on which the Court acts in considering the deeds of pardanashin ladies, or could tend to lessen the protection which it is the duty of the Court to throw around those who are unable to protect themselves. They do not forget that this lady was a pardanashin lady. They do not forget that at the time of the execution of the deed she was living in more than ordinary seclusion; that she was in very deep distress; and that she was surrounded by the members of that branch of the family to which the objects of her bounty more immediately belonged. But bearing all these things in mind, and reviewing the whole evidence, they come to the conclusion that the lady knew perfectly well what she was doing, and that in every sense the act was her own act.

Where undue influence is alleged it is necessary to examine very closely all the circumstances of the case. The principles are always the same, though the circumstances differ; and, as a general rule, the same questions arise. The first and practically perhaps the most important question is, was the transaction a righteous transaction--that is, was it a thing which a right-minded person might be expected to do? Can there be any doubt about the answer to that question? Shahzadi made a settlement on Omda. Omda was her favourite daughter, and had a large family. By an untoward and unlooked-for event a share of Omda's fortune which was principally derived from that settlement devolves on Shahzadi. To her the acquisition of property by her daughter's untimely death seems to have been an odious and repulsive thing, and she determines as soon as possible to give it back to her daughter's orphan children. Was there anything unnatural in that? It appears to their Lordships to have been a most natural act, and one which a right-minded person would be disposed to do.

21. With these judgments of the Privy Council before us we will sum up the position in this case and state our conclusions. Ameena Bi wished to make a provision for her niece whom she had brought up as her own daughter. She decided to give her the property in suit provided it could be arranged that she continued to receive the rents during her lifetime. She instructed her eldest step-son who was managing her affairs to take legal advice and find out whether this could be done. He took advice on her behalf and found that it could be done. The advice was communicated to her and she was satisfied with it. The deed of gift was read over and explained to her line by line, and she executed it knowing that steps were going to be taken to ensure that her niece paid over to her the rents during her lifetime. After the third defendant had been given possession of the property those steps were taken and Ameena Bi received the rents. Was not her apt in bestowing this property on her orphan niece to advance her in life a righteous act? Surely it was. We fail to see any legitimate ground for questioning the validity of the transaction and accordingly we hold that the third defendant received a good title to the property.

22. The appeal will be allowed with costs throughout. The memorandum of objections filed by the plaintiff-respondent will be dismissed with costs.


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