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Syed Duriesh Mohideen Vs. Madras State, Represented by Collector of Salem and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberSpecial Tribunal Appeal No. 97 of 1954
Judge
Reported inAIR1957Mad577
ActsMuhammadan Law; Tenancy Law; Madras Estates Abolition and Conversion into Ryotwari Act, 1948 - Sections 42(2)
AppellantSyed Duriesh Mohideen
RespondentMadras State, Represented by Collector of Salem and ors.
Appellant AdvocateS. Ramachandra Iyer, Adv.
Respondent AdvocateGovt. Pleader and ;C.S. Swaminathan, Adv.
Cases ReferredIn Ahmad Uddin v. Ilahi Baksh
Excerpt:
mohammadan law--gift deed--gift of corpus to sons--direction to pay annually and in perpetuity out of income to daughters-- valid--doctrine of musha--nature and limit--doctrine not applicable to gift of usufruct--gifts of incorporeal rights--valid under mohammadan law-- principle of trust applicable ; a gift deed styled as hibbanama was executed by a muslim by which he gifted the corpus of the property (a mitta) to his sons; and he directed them to pay a certain sum annually and in perpetuity to his daughter and her heirs and successors, out of the income of the corpus gifted to them, which the donor described as a gift he had made to her under the document. the deed also recorded that the donees were put in possession of the items of properties gifted to them. the appellant, the son and.....1. this appeal arose out of the rejection of the claim preferred by the appellant as the petitioner in o. p. no. 17 of 1953, on the file of the estates abolition tribunal, vellore, for payment out to him of a portion of the amount deposited with the tribunal as advance compensation for the bevuhalli mitta estate in salem dt., taken over by the government under the provisions of madias act xxvi of 1948.2. bevuhalli mitta, which was an estate as defined by the madras estates land act, belonged to mir mohamed salia sahib. in 1906 he executed a deed of gift, a copy of which was marked in evidence as ex. a-1, in favour of his two sons azizullah and inayatutlah and his daughter amirunnisa. it is the scope and validity of the gifts made under this document that arise for determination in this.....
Judgment:
1. This appeal arose out of the rejection of the claim preferred by the appellant as the petitioner in O. P. No. 17 of 1953, on the file of the Estates Abolition Tribunal, Vellore, for payment out to him of a portion of the amount deposited with the Tribunal as advance compensation for the Bevuhalli Mitta estate in Salem Dt., taken over by the Government under the provisions of Madias Act XXVI of 1948.

2. Bevuhalli Mitta, which was an estate as defined by the Madras Estates Land Act, belonged to Mir Mohamed Salia Sahib. In 1906 he executed a deed of gift, a copy of which was marked in evidence as Ex. A-1, in favour of his two sons Azizullah and Inayatutlah and his daughter Amirunnisa. It is the scope and validity of the gifts made under this document that arise for determination in this appeal. For the present it should be sufficient to note that he gifted the corpus of the property, Bevuhalli Mitta, to his two sons Azizullah and Inayatullah. The donor directed them however to pay Rs. 500 a year to himself for his life.

He further directed them to pay Rs. 350 a year out of the income of the Bevuhalli Mitta to his daughter Amirunnissa, which he described as a gift he had made to her under that document. Exhibit A-1 recorded that the donees were put in possession of the items of properties gifted to them. It was common ground that the annual payments were made both to the donor and to Amirunnissa under the terms of Ex. A-1 from the date of that document.

3. The donor Salia Sahib died in 1909. It was common ground that all the interest of Inayatullah under Ex. A-1 devolved on Azizulla. Respondents 2 to 12 before us are the legal representatives of the deceased Azizulla. Amirunnissa died on 8-2-1950, and the appellant, petitioner in O. P. No. 17 of 1953, is her son and heir,

4. Bevuhalli Mitta was. taken over by the Government on 12-1-1951 and a sum of Rs. 11,877 was deposited as advance compensation. Out of that amount the appellant, claimed Rs. 1,050 which represented the total of the annual payments of Rs. 350 due for three faslis, 1359, 1360 and 1361, under the terms of Ex. A-1. He also claimed that he was entitled to payment of Rs. 350 a year in perpetuity from and after fasli 1362.

5. The Tribunal rejected the claims of the appellant. It held that the gift to Amirunnissa, the pre-decessor-in-interest of the appellant, was invalid under the Muslim Law by which the parties were governed. That conclusion was based on two grounds, (1) that the annual payment of RS. 350 represented a musha or undivided share in the properly that had been gifted, and (2) the income from the Mitta was property that was to come into existence in future, of which immediate possession could not have been given and was not given to the donee Amirunnissa, and a gift thereof was invalid. The Tribunal rested its decision on the principle laid down in Amtual Nissa v. Nuriddin, ILR 22 Bom 489 (A).

6. The contention of the learned counsel for the appellant was that on the terms of Ex. A-1 neither of these grounds was correct, and that the Tribunal overlooked the basic difference drawn by Muhammadan Law between the corpus (Ayn) and the usufruct (Manafi), each of which could be the subject-matter of stipulations in a deed of gift, even if that gift was styled by the donor as Hiba.

7. Before we examine these contentions it is desirable to set out the relevant terms of Ex. A-1 to verify what was it that was gifted and who were the donees.

8. The preamble in Ex. A-1 set out that it was a Hibbanamal and the donees enumerated were Azizulla, Inayatullah and Amirunnissa. Exhibit A-1 recorded that possession of the gifted properties had been delivered to the donees. The stipulation for the annual payment thereafter to the donor ran:

"But so long as I should be alive, for my expenses, etc., the first and second of you, namely, Mir Mohamed Azizulla Sahib and Mir Mohamed Inayatullah Sahib shall pay me Rs. 500 annually on or before the 20th of June and obtain from me the receipt therefor. In the event of your failure to pay this sum, all your properties (movable and immovable) shall be liable for the said sum."

9. Four specified items of lands were gifted to the daughter Amirunnissa, and the rest of the Mitta was gifted to the two sons Azizulla and Inayatullah. The further direction in Ex. A-1 in favour of the daughter Amirunnissa ran;

".....I have gifted out of the income of the Bevuhalli Mitta to the third of you, viz., Amirunnissa Begum Sahiba Rs. 350 which shall be paid every year. The first and second of you, namely, Mir Mohamed Azizulla Sahib and Mir Mohamed Inayatullah Sahib and after their lifetime, those of their heirs and successors who get the Mitta shall pay the above Rs. 350 to Amirunnissa Begum Sahiba the third of you and after her life to that lady's heirs and successors permanently, before the 30th of June each year and obtain receipts therefor. The said lady shall have and enjoy the rights of receiving Rs. 350 and the patta lands from generation to generation absolutely with full rights of gift, sale, usufructuary mortgage, etc., whatever alienations Nos. 1 & 2 of you make of the Mitta, it shall be subject to the rights of No. 3 to receive Rs. 350."

Leaving out of account the comparatively small extent of lands gifted to Amirunniss, the position under Ex. A-1 was that the Mitta, which constituted a corpus (Ayn) was gifted to the two sons, and out of the usufruct (Manafi) of that corpus a gift of an annual payment of Rs. 350 in perpetuity was made in favour of the daughter Amirunnissa.

10. The terms of Ex. A-1 made it quite clear that the donee was Amirunnissa, and that it was a heritable estate that she obtained as a gift under Ex. A-1. The learned counsel for the respondents urged that it was only a life estate that was conferred on Amirunnissa, and that if her son could claim anything at all under Ex. A-1, it was an independent donee, and such as a gift to take effect in future was invalid. The obligation to pay Rs. 350 a year was a perpetual one laid on the donees of the corpus, Azizulla and Inayatullah, and their successors-in-interest.

The right to receive the payment was conferred without any restriction on Amirunnissa. The reference to her heirs and successors in Ex. A-1 could at best be words of surplusage, and they did not curtail the right that Amirunnissa herself obtained under ExT A-1 which was made quite clear in more than one place in Ex. A-1 and by the concluding words the said lady shall have and enjoy the rights of receiving Rs.

350.....from generation to generation absolutely with full rights of gift, sale, usufructuary mortgage, etc.' There was no independent gift in Ex. A-1 with reference to this sum of Rs. 350 to any one to take effect after the death of Amirunnissa. Whatever right the appellant could claim, it is only as a person on whom the rights conferred on Amirunnissa as donee devolved by inheritance. There was no independent gift to any son of Amirunnissa.

11. Another feature of this right to receive the annual payment of Rs. 350 with the corresponding obligation to pay, which has now devolved upon the legal representatives of Azizulla, is that, since the donor specifically directed that the payment should be out of the income of the Mitta, a charge was created over the Mitta -- See the observations of their Lordships of the Privy Council in Khajeh Soleman Quadir v. Salimullah Bahadur, ILR 49 Cal 820 at p. 836: (AIR 1922 PC" 107 at p. 111) (B), 'The direction to pay the allowance 'out of income' of the settled properties......showns an intention to create a charge....." There is another factor to be taken into account in upholding the claim of the appellant that it was an absolute and heritable estate that was conferred on Amirunnissa by Ex. A-1.

12. The question is whether the right to receive the annual payment and the corresponding obligation to pay it are enforceable in law.

13. We are not concerned now with the validity of the direction, that Azizulla and Inayatullah should pay the donor during his lifetime a sum of Rs. 500 every year. It should be noticed that this direction was not correlated to the income of the Mitta that was gifted to them. The direction in the case of Amirunnissa was that the annual payment was Rs. 350 should be out of the income of the Mitta. The validity of the gift of the Mitta to the two sons was never in dispute either.

The contention of the learned counsel for the respondents was that the condition Imposed by the donor on the donees of the Mitta, Azizulla and Inaya tullah, that they should pay thereafter a portion of the income of their sister was inoperative, and that it was an absolute right to the property that was gifted that passed to the donees, Azizulla and Inaya-tullah. That contention ignores the distinction be-tween the corpus, which was the subject of the gift to the sons, and the usufruct, to which the condition to make an annual payment of Rs. 350 related,

14. That distinction was pointed out in clean terms by their Lordships of the Privy Council in Na-wab Umjad Ally Khan v. Mst. Mohamdee Begum, 11 Moo Ind App 517 at p. 547 (C),

"It remains to be considered whether a real transfer of property by a donor in his lifetime under Muhammadan Law, reserving not the dominion over the corpus of the property, nor any share of the dominion over the Corpus, but simply stipulating for and obtaining a right to the recurring produce during his lifetime, is an incomplete gift by the Muhamma-dan Law. The test of the Hedaya seems to include the very proposition and to negative it.

The thing to be returned is not identical, but something different. See Hedaya, title 'Gifts', Vol. III, Book XXX p. 294, where the objection being raised that a participation of property in the thing given invalidates a gift, the answer is 'The donor is subjected to a participation in a thing which is not the subject of his grant, namely, the use (of the whole indivisible article) for his gift related to the substance of the article, not to the use of it."

In Tyabji's Muhammadan Law, 3rd Edn., at p. 380, the learned author recorded as a well-settled proposition of law.

"366-A. A leading distinction in Muhammadan Law is that between (a) ayn, or mal, or the substance of a thing, or its corpus, or the thing itself, (viz., a determinate physical object such as a plot of land or a camel or house or horse) and (b) the manafi of such a thing, or its produce, or fruits, or usufruct, or use, or the right to take its benefits, or its services, or what it produces. Gifts of these two forms of property fall under different categories."

The learned author proceeded to observe:

"One point of distinction between (i) corpus or ayn or mal, and (ii) manafi or usufruct is, that with the latter, the notion of duration is connected. For manafi refers to recurring rights that are to accrue in future from day to day. Hence when the benefit or usufruct of some object is transferred, the period of the usufruct has to be terminated. On the other hand, the ownership of the object itself (of the corpus) cannot be transferred merely for a limited period. As soon as the ownership of the object is transferred, it becomes -- this is merely re-stating the same proposition -- the property of the transferee. The transferor accordingly ceased to be the owner. He cannot on the ground of having been its former owner any more exercise any rights over the property (which now belongs to the transferee.)"

At p. 384, the learned author summed up.

"..... it follows that the transfer of the immediate full ownership of a determinate object must be governed by totally different consideration from those applicable to the transfer of the series of rights called usufruct."

The further observation of the learned author at p. 384 was:

"The grant of the usufruct is distinguished from the transfer of the full ownership in that when the usufruct is alone transferred, the original owner retains the Original residual rights."

That, adapted to cover the facts of the present case, would result in this. The grant of the usufruct is distinguished from the transfer of the full ownership in that a portion of the usufruct alone is transferred. The donees retained the residual rights.

15. What was gifted to the dances Azizulla and Inayatuilah was the corpus of Bevuhalli Mitta. The donor himself retained no interest in the thing gifted, the corpus itself. Nor did the donor reserve any interest in the corpus that had been gifted, in favour of Amirunnissa. What was gifted to Amirunnissa was only a part of the usufruct, no doubt a recurring payment, and equally no doubt, in perpetuity, Rs. 350 a year, out of the usufruct of the Mitta, the income from the Mitta.

16. The doctrine of musha cannot be extended to a gift of the usufruct. In his treatise on Muham-madan Law, Tyabji pointed out at p. 405:

"382. The doctrine relating to the invalidity of gifts of musha is unadaptcd to a progressive state of society, and will be confined within the strictest limits. Devices to avoid its operation are not looked upon with disfavour."

That statement was based on the authority of the decision of the Privy Council in Muhammad Mumtaz v. Zubeida Jan, ILR 11 All 460: 16 Ind App 205 at p. 215 (D). The learned author summed the result of the decisions thus:

".....though the Courts have not expressly said so, the true result of the authorities applicable in India is, that the validity 6f a gift of musha must be tested in the same way as of any other gift. There must be a complete transfer of the possession of the subject of gift as the circumstances permit; and the donee is not entitled to claim anything to be done in his favour than the donor has not done.

The Courts are inclined to uphold a gift of musha, i.e., of an undivided part of the property, except where the omission to separate the portion of the property which is the subject of gift from the rest of it, is taken as an indication that there had been, in effect, an incomplete transfer, which the donor would have completed by partition, had he Intended to complete the gift."

17. If that test is applied there was nothing incomplete about the gift of the corpus, of the property to Azizulla and Inayatuilah under the terms of Ex. A-1. There was nothing further the donor had to do when he laid the obligation on these two donees to pay out of the usufruct or income of the Mitta a sum of Rs. 350 a year to Amirunnissa. That gift did not come within the ban of musha, which the Courts have strictly limited in its scope. After pointing out at p. 388 'Gifts may be made of rights in property not amounting to its full ownership' Tyabji instanced as a valid gift at p. 590 'an annuity or other recurring payment charged on immovable property'. Nor is the validity of the gift in favour of Amirunnissa out of the usufruct affected by the ban which applies to the gift of the corpus, that the property gifted must be in existence at the time of the gift. Muslim Law recognises gifts of incorporeal rights as also actionable claims. All that is needed in such cases to complete the gift by delivery oj possession to the donee is, that the donor showed a clear intention on his part to divest himself in presenti of the property and to confer it upon the doneer -- see the observations of Mulla in Principles of Mahomedan Law, 13th Edn., at p. 144.

18. In Ameer Ali's treatise on Mahomedan Law, Vol. I, at p. 139, the learned author observed:

"..... if a donor were to make a condition that the donee should give a part of the income or pay an annuity to his heirs in perpetuity, and give effect to the donation by transferring the subject thereof to the dominion of the donee, as the condition in no wise interferes with the completeness of the gift, both the gift and the condition would become operative in law. In this view the decision of their Lordships in the Privy Council seems to be in absolute accordance with the Hanafi Law.''

(The principles governing gifts of usufruct as distinct from the gift of the corpus was re-affirmed by the Privy Council in Nawazish Ali Khan v. Ali Raza Khan, 1948-2 Mad LJ 303 at p. 307; (AIR 1948 PC 135 at p. 138) (E).

19. In our opinion, the gift of Rs. 350 a year to be paid in perpetuity out of the income of the Bevuhalli Mitta in favour of Amirunnissa, effected under the terms of Ex. A-1, was valid. The validity of the obligation imposed on the donees of the corpus, the Mitta, Azizulla and Inayatuilah, to pay annually a sum of Rs. 350 out of the income from the Mitta can also be rested on the principle of trust.

20. In Mullah's Principles of Mahomedan Law, 13th Edn., at p. 152, the learned author records:

"Where property is transferred by way of gift, and the donor does not reserve dominion over the corpus of the property nor any share of dominion over the corpus but stipulates simply for and obtains a right to the recurring income during his life, the gift and the stipulation are both valid. Such a stipulation is not void, as it does not provide for a return of any part of the corpus.....The stipulation may also be enforced as an agreement raising a trust and constituting a valid obligation to make a return of the proceeds during the time stipulated. It was so held by the Privy Council in 11 Moo Ind App 517 (C), which was a Shia case and in Mahomed Abdul Ghasi v. Fakhr Jahan Begum, 49 Ind App 195: ILR 44 All 301: (AIR 1922 PC 281) (F), which was a Sunni case."

21. We have already referred to the passage in 11 Moo Ind App 517 (PC) (C), where their Lordships stressed the distinction between the corpus and the usufruct. The validity of the gift of the corpus was upheld. Commenting upon the stipulation to pay the income -- the usufruct, to the donor, their Lordships observed at p. 548,

"But as this arrangement between the father and the son is founded on a valid consideration, the son's undertaking is valid, and could be enforced against him in the Courts of India as an agreement raising a trust, and constituting a valid obligation to make a return of the proceeds during the time stipulated."

That principle, despite adverse comment upon it by text-book writers including Wilson at one time, has been consistently followed by Courts in India. That was the basis of the principle enunciated by Mulla in his book, Principles of Mohamedan Law, in the passage we have extracted above. Explaining what lay behind the principle formulated by the Privy Council in 11 Moo Ind App 517 (G), Tyabji stated in his treatise on Muhammadan Law, 3rd Edn., at pp. 420-21:

The conception of a trust apart from a gift was introduced in India" said Syed Sahib. Ameer Ali, "with the establishment of Muslim rule. But the Muham-madan Law relating to trusts differs fundamentally from the English Law.'' The word trust is used sometimes to refer to the obligation that is annexed to the ownership of property (as in the Indian Trusts Act, Section 3) and sometimes to the deed containing trusts, and in particular to deeds containing family settlement in England. The family trusts of Hanafi Law took most often the shape of waqf.....But in the sense of annexing obligation to the ownership of property, trusts abound in Muslim Law. Trusts are recognised not only in the case of the mutawalli of a waqf, the guardian of the property of a lunatic or minor, and the executor; there is in addition a specific recognition of "ownership with responsibility" to another person in such texts as the Fatawa 'Alam-giri, the Sharaj'ul-Islam and the Hidaya."

22. The basic duty of true Muslims to honour the obligations they have undertaken was pointed out by the Holy Prophet himself. In Tavakalbhai v. Imtiyaj Bcgum, ILR 41 Bom 372: (AIR 1916 Bom 104) (G), the learned Judges extracted the passage from the Koran:

"It is of no avail that ye turn your faces (in prayer) towards the East and the West, but righteousness is in.....those who perform their engagements in which they have engaged.....these are the true and these are the pious."

That command, to the faithful would appear to underlie the evolution of the principle, consistently applied by the Courts in India, that while a donee takes absolutely the corpus of the property gifted to him, he is nonetheless bound to discharge the obligation to pay out of the usufruct a specified sum, if such an obligation was imposed by the donor himself and accepted by his donee as part of the transaction which resulted in the transfer of the property the corpus, from the donor to the donee.

23. The stipulation, that Azizulla and Inayatullah and their successors-in-interest should pay a sum of Rs. 350 a year to Amirunnissa and her successors-in-Interest in perpetuity, could be enforced by the appellant in this case as an agreement raising a trust, constituting a valid obligation imposed oh the donees Azizulla and Inayatullah. We are unable to see any real basis for the contention of the learned counsel for the respondents, that the only exception to the general rule, that any condition that derogates from the full rights of ownership in property, the corpus gifted by a Muslim is a reservation of the usufruct or a portion thereof in favour of the donor. We have referred to passages from text-books where a direction to pay a portion of the usufruct to some one other than the donor and a direction to pay it in perpetuity are considered valid and enforceable obligations.

24. The Tribunal, as we recorded earlier, negatived the claim of the appellant on the basis of ILR 22 Bom, 489 (A). In that case Nawab Kamaluddin executed a deed of gift in favour of his wife Amtul Nissa by which he agreed to give her in perpetuity Rs. 4,000 a year out of the income of his share of certain jaghir villages and other property, which he along with his co-heirs had inherited from his father. The payment was made for about 18 years till death of Kanialuddin. After his death Amtul Nissa sought to enforce the payment of this annuity. The claim was rejected by the trial Court on the ground that It was the gift of musha.

On appeal the learned Judges of the High Court referred to ILR 11 All 460; 16 Ind App 205 (D), and observed that they should hesitate to base their Judgment on the doctrine of musha. The validity of the gift, however, was negatived on the ground that a gift cannot be made of anything to be produced in future although the means of its production may be in the possession of the donor. The subject of the gift must he actually in existence at the time of the donation.'

25. In Ameer Ali's Mahomedan Law, Vol. I, p. 75, the learned author observed:

"Where, however, a person has a subsisting recurring right in something which is neither variable nor uncertain, there is no reason in principle why its gift should not be valid. Thus an assignment of the ascertained rents and issues of any particular property movable or immovable may validly be effected. The Bombay High Court in the case of ILR 22 Bom 489(A) seems to have missed, it is submitted, the real principle under which a gift of something not in existence at the time is invalid, viz., the uncertainty relating to the subject-matter of the gift, not merely the inability to give possession".

In Tyabji's Treatise on Muhammadan. Law, 3rd Edn., at p. 378, it is recorded:

"When it is intended to transfer with or without consideration, the right to take some benefit that will accrue or something that will be produced in future, the appropriate form of transfer is to give to the donee the manafi or produce or the usufruct of the thing whose benefit it is intended that the donee should take;"

In the notes, the learned author's comment on ILR 22 Bom 489 (A), was:

"submitted with great respect (it was) decided erroneously. Annuities are recognised subjects of gifts; as to bequests they are clearly stated; Bail. I. 658 (659). There is no reason why bequests should be allowed and not gifts during life; but special mention has to be made of bequests for explaining in regard to recurring payments like annuities, operation of the rule of bequeathable third;"

25. In Ahmad Uddin v. Ilahi Baksh, ILR 34 All 465 (H), a gift of a right to receive a certain share of the offerings which may be made at a particular shrine was upheld as a valid gift. The learned Judges held:

' "We think that the thing gifted must be regarded as being the right of the donor to receive a fixed share in the offerings after they have been made and this is an enforceable right in the sense that it is enforceable in law as against other co-sharers in the same."

The learned Judges observed that the case of ILR 22 Bom 489 (A) was clearly distinguishable from the one they had to consider.

26. In ILR 41 Bom 372: (AIR 1916 Bom 104} (G), what was gifted to Imtiyaj Begum was Rs. 40 to be paid put of the residue-of the income of the property that had been gifted. The validity of that gift was upheld. The learned Judges referred to ILR 22 Bom 489 (A), and observed that it is a case distinguishable. from the one they had to consider. The learned Judges pointed out at p. 375 (of ILR 41 Bom): (at p. 105 of AIR):

"In the present case Miraza Vazir Beg accepted the lands, the subject of the gift from Umarao Bibi, and took the benefit of one moiety of the residue of the income on the condition that he would pay a specified annual sum to the present plaintiff, and a moiety of the residue of the income to Chaggan Bibi. That was the condition upon which he took the property, and that was the obligation attaching to the property in his hands of in the hands of. those claiming under him with notice. The decision of the Privy Council in 11 Moo Ind App 517 (C), shows that the Courts should enforce obligations in the nature of trust against person in possession of property, even though they be Mahomedans......."

With all respect to the learned Judges, we are unable to extend the principle laid down in ILR 22 Bom 489 (A) to invalidate the gift of the annuity to Amirunnissa under the terms of Ex. A-1. Apart from that, as we have already pointed out, the obligation imposed by the donor on the donees Azizulla and Inaya-tullah was an enforceable one. Such a question did not arise for consideration in ILR 22 Bom 489. (A).

27. We reverse the finding of the Tribunal, which held that the gift to Amirunnissa, under Ex. A-1 was not valid. The next question is to how much of the amount in deposit was the appellant entitled.

28. The Tribunal recorded that, if the gift had been valid, the appellant would be entitled to the arrears which had accrued due in fasli 1358 and 3559 and during the first half of fasli 1360, that is till the estate vested in the Government under Act XXVI of 1948. The amount due as arrears was Rs. 875. This sum the appellant will be entitled to get as a creditor.

29. The further question is, whether with reference to the payment of the annuity that would have to be continued in future, had not the estate vested in the Government, the appellant is entitled to any payment. That he could claim only as a sharer. The learned counsel for the respondents urged that the appellant should be treated as a person entitled to maintenance out of the estate, and that his claim should be determined with reference to the principle that underlay Section 45 (2) (b) of Act XXVI of 1948, which has been extended by the rules framed under the Act to estates other than impartible estates. Wo are unable to accept this contention. Salia did not provide for the maintenance of his daughter Amirunnissa under Ex. A-1.

What was gifted to her was not in lieu of any maintenance. There was no obligation upon Salia, legal or even moral, to provide for the maintenance of Amirunnissa from out of the Bevuhalli estate. It should be remembered it was an absolute heritable right to receive that annuity of Rs. 350 that the donor conferred upon the donee, Amirunnissa. With reference to the amounts that would have been payable in future, the real position of the appellant was that of a creditor with a claim against the estate, a claim to a recurring annual payment of Rs. 350 out of the income of the estate with a charge on that estate for that amount. The Tribunal recorded:

"The petitioner will be entitled to the income that would be derived from the proportionate amount or amount of the advance compensation that Rs. 350 bears to the total net income of the village."

The Tribunal held that the net income should be taken as Rs. 4,150 and on that basis the appellant would be entitled to 350/4150 of Rs. 11,877, that is, Rs. 1,001-10-9.

30. In paras. 5 and 6 of the counter-affidavit filed by respondent 12 the plea was, that the annual income from the Mitta was never less than Rs. 6,900, and on that basis the appellant would be entitled only to Rs. 1,205 from out of the amount in deposit.

31. Neither line of approach is, in our opinion, correct. It is not the net income at any intermediate point of time between 1906, when the gift was made, and 1951, when the estate vested in the Government, that can furnish a real basis for working out the rights of the appellant vis-a-vis respondents 2 to 12, who are entitled to the residuary rights in what had been the Bevuhalli Mitta estate.

In our opinion, the proportion Rs. 350 bore to the net income of the estate in 1906, when the gift was made and the obligation was imposed upon the donees, should furnish the true basis for arriving at the share the appellant would be entitled to in the amount now in deposit. No evidence was taken on this basis. We therefore direct that the order of the Tribunal be set aside and the proceedings in O. P. No. 17 of 1953 be remanded to the Tribunal for disposal afresh. The Tribunal will give an opportunity to both parties to adduce further evidence and determine the quantum the appellant is entitled to out of the amount in deposjt. The "respondents 2 to 12 should pay the appellant his costs in this appeal.


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