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S.M. Dawood Bibi (Died) and ors. Vs. Abu Bakker Pulavar (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal No. 710 of 1963
Judge
Reported inAIR1972Mad228
ActsEvidence Act - Sections 32, 32(1), 50 and 178
AppellantS.M. Dawood Bibi (Died) and ors.
RespondentAbu Bakker Pulavar (Died) and ors.
Cases ReferredIn Azimunnissa Begum v. Ali Khan
Excerpt:
.....on the said admission and it clearly supports the evidence of the plaintiff and his witnesses that hanifa rowther is the son's son's son of magadum batcha rowther. it is clear from the said entry that the ceremony of fateha consists in the recital of prayers for the welfare of the souls of deceased persons, accompanied with distribution of alms to the poor. the performance of fatiha (in the sense of distribution of alms to the poor, accompanied with prayer for the welfare of the souls of deceased persons) which so far as it involves the expenditure of money, consists in feeding the poor. ganapati iyer shows that a wakf created for the object of conducting fateha ceremonies could be considered to be a charitable purpose and could not be condemned merely as superstitious. according to the..........also died during the pendency of this appeal, for the administration of the estate of the deceased hanifa rowther, the husband of the first defendant dawood bibi. the first defendant as the widow of hanifa rowther, who had no descendants, was admittedly entitled to one fourth share in the estate of remaining three fourths share under the mohammed an law doctrine of return, if hanifa rowther had no other heir. respondents 16 to 20 are the legal representatives of the fifth defendant ibrahimsa pulavar, the junior paternal uncle's son of the plaintiff. the case of the plaintiff and the fifth defendant is that their paternal grandfather umarpulavar was the brother of hanifa rowther's paternal great grandfather magadum batcha rowther and that they are entitled to succeed as residuaries to the.....
Judgment:

Sadasivam, J.

1. Appellants are the legal representatives of the first defendant, Dawood Bibi, who dies subsequent to her filing this appeal. This suit was filed by the first respondent. Abubakker Pulavar, Who also died during the pendency of this appeal, for the administration of the estate of the deceased Hanifa Rowther, the husband of the first defendant Dawood Bibi. The first defendant as the widow of Hanifa Rowther, who had no descendants, was admittedly entitled to one fourth share in the estate of remaining three fourths share under the Mohammed an Law doctrine of return, if Hanifa Rowther had no other heir. Respondents 16 to 20 are the legal representatives of the fifth defendant Ibrahimsa Pulavar, the junior paternal uncle's son of the plaintiff. The case of the plaintiff and the fifth defendant is that their paternal grandfather Umarpulavar was the brother of Hanifa Rowther's paternal great grandfather Magadum Batcha Rowther and that they are entitled to succeed as residuaries to the three-fourths share in the estate of Hanifa Rowther's paternal great grandfather Magadum Batcha Rowther and that they are entitled to succeed as residuaries to the three-fourths share in the estate of Hanifa Rowther in the absence of any sharer other than the first defendant as there were no nearer residuary of Hanifa Rowther at the time of his death on 2-6-1960. The learned Second Additional Subordinate Judge accepted the case of the plaintiff and passed a decree as prayed for except as regards item 28 which on his finding did not belong to the estate of Hanifa Rowther. Aggrieved with this decision, the first defendant has preferred this appeal and on her death the other appellants have been impleaded as her legal representatives.

2. The only question that arises for determination in this appeal is whether the plaintiff and the fifth defendant are the grandsons of Hanifa Rowther's paternal great grandfather's brother as claimed by them, and whether they are entitled to three-fourths share in the estate of Hanifa Rowther as his nearest residuaries. Ex. A-1 is the genealogical table attached to the plaint and it is appended as a part of the judgment. Ex. B-1 is a certified copy of the genealogical tree filed by the fifth defendant Ibrahimsa Pulavar along with his counter in the succession certificate original petition 7 of 1961 filed by the first defendant in District Munsif Court, Melur. The only difference between the two genealogical tables relates to the order of the brothers and sisters according to their age. The genealogical tables correctly represent the claim of the plaintiff and the fifth defendant as the grandsons of Hanifa Rowther's paternal great grand uncle. It is clear from the evidence of the plaintiff and the fifth defendant and their prior statements that the genealogical tables are not based on any record or information gathered from others who had special means of knowledge and who could not come as witnesses for the reasons mentioned in S. 32(1) of the Evidence Act. Hence the genealogical tables are not by themselves of any evidentiary value and they are useful only for understanding the evidence of the witnesses.

3. The learned II Additional Subordinate Judge has referred to several decisions to show that the onus is upon the plaintiff to strictly prove that he and the fifth defendant are entitled to succeed as the residuary heirs of Hanifa Rowther, that it is for the plaintiff to establish that Knanjiya Pulvar is the common ancestor of himself and Hanifa Rowther as put forward by him in his evidence and shown in the genealogical table and that every link in the chain of relationship should be proved as the chain of relationship will be weakened by the weakness of any link. He has also referred to the said proof of the relationship by evidence falling under Section 32 Clause 5 and Section 50 of the Evidence Act. Thus the learned Subordinate Judge had the correct principles of law in his mind in approaching the facts of this case.

4. There can be no doubt in this case that the fifth defendant P.W. 4 Ibrahimsa Pulavar is the junior paternal uncle's son of the plaintiff. P.W. 1 Abubakkar Pulavar and they are the grandsons of Umar Pulavar. The plaintiff has mentioned this in paragraph 4 of the plaint. In paragraph 9 of the written statement the first defendant has denied the claim of the plaintiff that he and the fifth defendant are related to Hanifa Rowther as put forward in the genealogical table. There is no specific denial that the plaintiff and the first defendant are first cousins and that they are grandsons of Umar Pulavar. PW. 1 Abubakkar stated in cross-examination that his father died when he was two years old. But he stated that when he was 16 years old his paternal uncle Thanga Pulavar told him that his paternal grandfather was Umar Pulavar. This is clearly admissible under Section 32, Clause 5 of the Evidence Act as a statement about the existence of relationship made by a person having special means of knowledge before the question in dispute was raised. P.W. 4 Ibrahimsa Pulavar, the fifth defendant in the suit, stated that the plaintiff is the son of his senior paternal uncle and nothing was elicited in cross-examination to doubt that statement. There is also the evidence of P.W. 2 Kasi Mohammed Batcha Sahib and P.W. 3 Adam about the said relationship and it could not be disputed that they had special means of knowledge.

5. The fact that the deceased Hanifa Rowther is the great grandson of Magadum Batcha Rowther cannot also admit of any doubt in this case. P.Ws. I to 4 have spoken to the said relationship and we shall consider the same in greater detail when dealing with the more important question, whether the plaintiff's paternal grandfather Umar Pulavar and Hanifa Rowther's paternal great grandfather Magadum Batcha Rowther were brothers,. The first defendant is the only witness examined on the side of the defendants to speak to the relationship and she were to the extent of denying the several facts, which she had admitted in her evidence in the succession certificate original petition filed by her. The evidence in the said proceeding has been marked as Ex. A-10 in this case. She has clearly admitted in Ex. A-10 that her father-in-law was Syed Batcha Rowther, his father was Mohammed Ismail Rowther and his father was Magadum Batcha Rowther. It is true that it is open to the first defendant to explain away the admission, or show that it is either untrue or was made by mistake. But when she was cross-examined about it she pleaded her inability to recollect whether she had stated the names of the ancestors of her husband in the prior O.P. proceedings. We are entitled to act on the said admission and it clearly supports the evidence of the plaintiff and his witnesses that Hanifa Rowther is the son's son's son of Magadum Batcha Rowther.

6. The main and important question for consideration in this appeal is whether the plaintiff's paternal grant father Umar Pulavar and Hanifa Rowther's paternal great grandfather magadum Batcha Rowther were brothers. The plaintiff as P.W. 1 admitted that there is no document to prove the relationship. He also admitted that there was no correspondence between him and Hanifa Rowther. But there is nothing in the evidence to show that Hanifa Rowther was literate person and he had correspondence with anyone. He stated in cross-examination that his ancestors told him their names.

7. In Sitaji v. Bijendra Narain : AIR1954SC601 , it has been held that a member of the family can speak in the witness box of what he has been told and what he has learned about his own ancestors, provided what he says is an expression of his own independent opinion (even though it is based on hearsay derived from deceased, not living persons) and is not merely repetition of the hearsay opinion of others and provided the opinion is expressed by conduct. In fact P.W. 1 deposed that he had heard the names of the ancestors of himself and Hanifa Rowther being mentioned at the time of fateha. The offering of fateha is certainly a conduct which taken along with the mentioning of the names of the ancestors would certainly be admissible as proof of the claim of the plaintiff.

8. But the important question to be considered in this context is whether there is a practice of mentioning the names of ancestors and collaterals at the time of the fateha ceremonies as put forward by the plaintiff P.Ws 1 to 4 have given evidence in this case about the practice of mentioning the names of ancestors at the time of offering fateha. P.W. 2 Kazi Mohammed Batcha Sahib claims to be the 'Madha Guru' for Muslims in Melur and he speaks to his having offered fateha in the house of Hanifa Rowther. The first defendant admitted in her evidence that P.W. 2 had recited fateha at the time of the death of her husband. She admitted that at the time of reciting fateha with incense powder, it is usual to think of the deceased person. But she denied the practice of mentioning the names of ancestors upto some generations. She has examined D.W. 2 Hajee Lalbahuthi Sahib, who claims to have officiated in such ceremonies. he stated that there was no such practice as put forward by the plaintiff. D.W. 2 deposed that the name of the deceased alone would be mentioned at the time of the fateha and not the names of the ancestors of the deceased. But the learned Second Additional Subordinate Judge has not relied on the evidence of the first defendant and her witness. The first defendant appears to have no regard for truth as she denied several important facts admitted by her in her prior statement Ex. A-10. She went to the extent of pleading ignorance whether her mother-in-law's mothers name was Viyathammal and whether she brought up her husband, though she admitted that fact in Ex. A-10, D.W. 2 Hajee Lalbathuthu Sahib cannot say in which chapter of the Koran, fateha is written. he was unable to read the Koran shown to him as he knew only to read and write Tamil and not Arabic language. The evidence of D.W. 2 as to the practice prevailing at the time of offering fateha is of no value.

9. The incidents of fateha have been considered in several decisions in dealing with the validity of wakfs created for the performance of the ceremony of fateha. In Section 178, at page 172 Mullag's Principles of Mohammed an Law, 16th Edn. the performance of annual fateha of the settlor and of the members of his family is mentioned as the 12th object of a valid wakf. It is clear from the said entry that the ceremony of fateha consists in the recital of prayers for the welfare of the souls of deceased persons, accompanied with distribution of alms to the poor. In Tyabji's Muslim law, 4th Edn, at page 545, several valid objects of the present case is (q) which is as follows:

'The performance of fatiha (in the sense of distribution of alms to the poor, accompanied with prayer for the welfare of the souls of deceased persons) which so far as it involves the expenditure of money, consists in feeding the poor.'

Thus in both these passages the reference to the deceased persons in plural is significant.

10. The following passage at pages 197-198 of the Law relating to Hindu and Mohammedan Endowments by P.R. Ganapati Iyer shows that a wakf created for the object of conducting fateha ceremonies could be considered to be a charitable purpose and could not be condemned merely as superstitious.

'According to the Mohamedan religion and the general practice prevalent among Mohammadans in India the ceremony of fateha (to a dead person) consists in distribution of alms to the poor, accompanied with prayers for the welfare of the souls of deceased persons, either the Prophet or other saintly personages in Islamic history or the donor's own ancestors. Rites like these cannot be condemned by the Mohammadan religion as superstitious and gifts for the performance of such rites will be charitable. In Kaleloola Sahib v. Nuseerudeen Sahib. ILR (1895) Mad 201, the Madras High Court held that a gift of property 'for the daily, monthly and annual expenses' of the tomb of the donor's husband 'such as lighting, or frankincense, flowers and the salaries of Hafizes (repeaters of the Koran) and Darroodies (readers of Benediction etc) as well as for the annual fateha ceremonies of the deceased (may he be in paradise)' and after the donor's death for her 'annual fateha ceremony' to be performed at the tomb of the donor's husband was held void as superstitious. But no line of distinction can be drawn on grounds of Mohammedan religion between endowments in connection with tombs of saints and endowments in connection with tombs of persons other than saints and correctness of the decision has therefore, been doubted by the same High Court in a later case. The earlier decision if upheld will be a death blow to most Mohammedan private religious endowments. It is said to be opposed to the usage of Mohammedan private religious endowments. It is said to be opposed to the usage of Mohammedan private religious endowments. It is said to be opposed to the usage of Mohammadans. It is certainly opposed to several cases which have recognised gifts for the support of the tomb of private persons.'

It is clear from page 381 of the same book that but for the feeding of the poor, which forms the necessary part of every fateha ceremony, the mere offering of prayers for the repose of the souls of dead persons may be purely a private religious purpose but as there is the feeding of the poor as a part of the ceremony a provision for the expenses of the fateha ceremony will be a public purpose.

11. In Mazhar Hussain Khan v. Abdul Hadi Khan, ILR (1911) All 400, reference has been made to the dictum of karmat Hussain J. in Fakiruddin Shar v. Kifavatullah, (1910) 7 All LJ 1095, that a wakf for the performance of fateha ceremonies is invalid, not because it is so under the strict rules of Mohamedan law, but because fateha is not a charity in the sense in which that term is used in the case law of wakf. But it is pointed out in the same page that, in the view taken by the Bench which heard an appeal under the Letters Patent from the judgment of Karmat Hussain J. the question of the validity of a wakf for fateha ceremonies did not arise. At page 405 of the decision there are passages from the judgment of Karamat Hussain J., extracted to show that the fateha ceremony in its popular sense means the preparation of food or sweets at the death anniversary of a deceased Muhammadan which, after the recital of a fateha, is distributed among the friends and the relations of the person who spent the money over it without any regard to the poverty of the recipients. It has been held in that decision that fateha expenses are valid objects of wakf.

12. In this appeal we are not concerned with the question whether the offering of fateha could be a valid object of a wakf, but with the question as to the incidents of such a ceremony. In Hashim Haroon v. Gounsalishah, AIR 1942 Sind 137, the meaning of the word fateha has been explained. Tyabji J. has stated in that judgment that fateha is not a ceremony, but merely the name of a very small sura from the Quoran which contains a few expressions in praise of God as the Lord of all the worlds and a prayer that one may be guided along the path which leads to mercy and not along the path which calls for the wrath of God. he has further explained it in the following words--

'It takes about ten seconds to recite the 'fateha' even when it is slowly and solemnly recited and it is the universal practice among Muslims, whenever anything is done in the name of a departed soul, to say the 'fateha'. No ceremony is involved in saying these verses, when distributing alms to the poor in the name of a departed soul. A Muslim, even without there being any particular injunction upon him to do so, would naturally and almost inevitably recite the fateha at the time of distributing the alms, so that no other cost save that of the sums distributed by way was involved in these items.'

In Azimunnissa Begum v. Ali Khan, 29 Bom LR 434 : AIR 1927 Bom 387, it has been held that under the Mohamedan Law, the fateha ceremony and Urs ceremony, are religious and charitable objects. The following at p. 439 clearly explains the incidents of fateha or Urs ceremony:

'The fateha ceremony on the anniversary of the death of a saint is called by the more dignified name of Urs as a much larger section of the Mussalman public participates in the ceremony and the ceremony itself is on a larger scale. In matters of this kind, courts of law are not primarily concerned with what may be the true tenets and practice of a religion as propounded by its founder, but they have to take into consideration the tenants and practice of the religion as understood and practised by the people professing such religion in the country. Where the courts are administering the law. According to that practice and belief it would appear that in this country at least the anniversary fateha or Urs ceremonies at the tombs of ordinary individuals and specially of saints from an integral part of the religious life of the general body of Mahommedans. Indeed such ceremonies are also observed by them once every year for the benefit of all Moslem souls generally on what may be called an 'All Souls day' (Shab-e-barat) when cemeteries are illuminated, fateha recited and food and other alms distributed among the poor assembled there. Except for a small sect known as the Wahabies who call themselves puritans or reformers the general body of Mohammadans in any event in India would resent the suggestion that such ceremonies are superstitious or forbidden to them by their religion as savouring of idolatry in respect of tombs.'

13. It has been rightly pointed out in the above passage that in matters of this kind, courts of law are not primarily concerned with what may be true tenets and practice of a religion as propounded by its founder. but they have to take into consideration the tenets and practice of the religion as understood and practised by the people professing such religion in the country where the courts are administering the law. It may be that there is no text to support the statement of P.W. 2 that persons used to tell the names of ancestors upto four generations. It is however clear from what we have stated that such ceremony is not confined to one dead person. The practice is common among Hindus to remember the names of the ancestors for several generations on the occasions of the annual and other ceremonies and it is quite possible that the small number of 2500 Muslims of Melur living in the midst of a large number of Hindus imitate the custom of remembering or mentioning the names of ancestors for several generations. There is really no reason to doubt the evidence of P.W. 2 Kezi Mohammed batcha Sahib, who admittedly took part in the funeral ceremonies of Hanifa Rowther, He has acted as Kazi for 36 or 37 years and prior to him his father was holding the office. He has produced the Nikka Book and given evidence about the entries therein relating to the marriage of the plaintiff and Mohammed Hanifa Rowther. He denied the suggestion that he was asked to vacate the house occupied by him on account of alleged misappropriation of Pallivasal funds. It is true he has mentioned in his statement Ex. B-3 that he did not remember the father's name of Ismail Rowther. But the frankly admitted it when he was questioned in this suit. The mere fact that he forgot the name of the father of Ismail Rowther when he was examined in the O.P. proceedings is no ground for discrediting his evidence. He was able to recollect that name when he was examined in the suit. In fact, Ex. B-3 shows the Hanifa Rowther had told him that the fifth defendant was his pangali. This is an admission which could be used against the appellants. It is clear from his evidence that he has recited fateha in the houses of the fifth defendant and the first defendants husband and that they used to tell the names of the ancestors upto four generations at that time. There is therefore no reason to doubt the evidence of P.W. 1 to 4 about the practice of mentioning the names of the ancestors at the time of the ceremony of fateha.

14. There is one other circumstance which probabilises the case of the plaintiff. Hanifa Rowther's mother is Selma Bivi who is daughter of Viyathamma Bivi. Viyathamma Bibi is the paternal aunt of the plaintiff. Selma Bivi is the sister of Amina Bivi, who is the maternal grandmother of P.W. 3, Adam and she is also the sister of the fourth defendant Zulaika Bibi who was second respondent in succession certificate O.P. 7 of 1961. P.W. 3 deposed that his mother's mother and Hanifa Rowther's mother are sisters and that Viyathumma brought up Hanifa Rowther. P.W. 3 was employed in the ship of Hanifa Rowther for eight years and he knew him well. P.W. 4 Ibreahimnsa Pulavar deposed that his paternal aunt Viyathumma brought up Hanifa Rowther and that his elder brother Kalanjiya Pulavar and Viyathamma supplied him with funds for starting the shop,. The first defendant pleaded ignorance whether her mother-in-law's mother was Vaiyathammal and whether her husband was brought up by Vaiyathammal. But when she was examined in the succession certificate O.P. 7 she had admitted that Viyathammal brought up her husband when he was a child. There can be no doubt that the first defendant has gone back on several of her admissions made in Ex. A-10 as they would weaken her case considerably.

15. It is clear from what we have already stated that P.W. 3 is a relation of Hanifa Rowther as his maternal grandmother and Hanifa's mother are sisters, He gave evidence in support of the relationship between the plaintiff and Hanifa Rowther as put forward in the genealogical table. It is true he could have no personal knowledge about it as he was only forty seven years old when he gave evidence. But he stated in cross-examination that his grandmother Amina Bivi, who is no other than the sister or Hanifa Rowther's mother, had told him about his ancestors as set out in the genealogical tree. It is true he was only aged 7 years at that time and was studying in school. But having regard to the close relationship between him and Hanifa Rowther, there is no reason to doubt his evidence.

16. Mr. Aundaram Iyer, the learned advocate for the appellants, commented on the non-examination of the several other persons mentioned in the genealogical tables who are alive. But no such comment appears to have been made in the lower court and in fact no ground has been taken in the memorandum of grounds of appeal about it. Even if the plaintiff had examined any of his. other relations mentioned in the genealogical tables who are alive, it would also be liable to be attacked as interested. It should be noted that the plaintiff and the fifth defendant would not have given the genealogical tables Exs. A-1 and B-1, if really they were not true, showing the relationship of a large number of persons not only in the branches of the two brothers Umar Pulavar and Magudam batcha Rowther, but also in the branches of their step brothers, as a they would run the risk of their case being discredited on the ground that some of the persons mentioned in the genealogical tables are not related to each other as mentioned therein. In fact, the plaintiff and his witnesses including the fifth defendant, were cross-examined at length about the relationship of the persons mentioned in the genealogical tables and they stood the test of cross-examination. it is true they could not have nay personal knowledge of the relationship between Umar Pulavar and Magadum Batcha Rowther. But having regard to the period in which they lived it is inevitable. They could be expected only to give evidence which would be admissible under Section 32, Clause 5 or Section 50, of the Evidence Act. On the other hand, the first defendant made some admissions during the enquiry in the succession certificate proceedings, but went back on the same during the trial.

17. Thus on a consideration of the entire evidence in this case we agree with the finding of the learned Second Additional Subordinate Judge that the paternal grandfather of the plaintiff and the fifth defendant and the paternal great grandfather of Hanifa Rowther were brothers and that the plaintiff and the fifth defendant are entitled to succeed to the estate of Hanifa Rowther as the nearest residuaries along with the first defendant are entitled to succeed to the estate of Hanifa Rowther as the nearest residuaries along with the first defendant and sharer.

18. The decree and judgment of the trial court are correct and they are confirmed and the appeal is dismissed with the costs of the contesting respondents-one set.

19. Appeal dismissed.


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