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M. Masthan Rowther and ors. Vs. Sulaika Beevi (Dead) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)1MLJ320
AppellantM. Masthan Rowther and ors.
RespondentSulaika Beevi (Dead) and ors.
Excerpt:
- t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and..........of the parties to the litigation. the plaintiff in the suit is the sister of the deceased alla pichai. defendants 1 and 2 are the widows of alla pichai. defendants 3 and 4 are the children of a pre-deceased sister of alla pichai. defendants 5 and 6 are merely tenants of the property. since alla pichai had no children, after he had died intestate, the plaintiff as the sister of the deceased alla pichai, would have been an heir and entitled to a share in his estate. it is in that context only that the plaintiff instituted the suit for partition. she was met with the defence that alla pichai had disposed of the property under the original of exhibit b-2 and that therefore there wag no property to be inherited by her. one of the points that would appear to have been considered was.....
Judgment:

M.M. Ismail, J.

1. The only question involved in this second appeal is about the validity of the original of Exhibit B-2 dated 21st September, 1958, executed by one Alla Pichai. Several contentions would appear to have been advanced as to the nature of the transaction brought about by Exhibit B-2, namely, as to whether it was a gift or a will or a settlement or a family arrangement. Before the terms of this document are considered and a decision reached as to its character, it is necessary to refer to the relationship of the parties to the litigation. The plaintiff in the suit is the sister of the deceased Alla Pichai. Defendants 1 and 2 are the widows of Alla Pichai. Defendants 3 and 4 are the children of a pre-deceased sister of Alla Pichai. Defendants 5 and 6 are merely tenants of the property. Since Alla Pichai had no children, after he had died intestate, the plaintiff as the sister of the deceased Alla Pichai, would have been an heir and entitled to a share in his estate. It is in that context only that the plaintiff instituted the suit for partition. She was met with the defence that Alla Pichai had disposed of the property under the original of Exhibit B-2 and that therefore there wag no property to be inherited by her. One of the points that would appear to have been considered was as to whether the original of Exhibit B-2 was a spurious document and never intended to be acted upon or not. Both the Courts below have concurrently held that it was a real transaction and not a spurious one and in view of the concurrent finding of the Courts below regarding Exhibit B-2, that question is no longer open in the present second appeal.

2. Consequently the only question that arises for consideration is, what exactly is the nature of the transaction covered by the original of Exhibit B-2 and whether it is valid or not. The appellants contended that if the transaction was a gift, there was no valid gift because there was no delivery of possession of the property, that if it was a will, it could take effect only to the extent of one-third of the estate of the deceased and not the whole of the property and that therefore the transaction would not be effective at all either as a gift or as a will. At the same time the respondents namely, the defendants had also put forward the case that the transaction was a family arrangement. Though the learned District Munsif, who tried the suit, accepted the case of the plaintiff and decreed the suit of the plaintiff for partition, on appeal preferred by defendants 1 to 4, the Famed Additional District Judge of Tirunelveli reversed that conclusion and dismissed the suit. In paragraph 16 of his judgment, the learned Additional District Judge has pointed out:

In view of the above discussion, I hold that the original of Exhibit B-2 was a family arrangement entered into by Alla Pichai and the appellants herein (defendants 1 to 4) and that the same was supported by consideration and is valid in law.

In view of this conclusion, as I have pointed out already, the suit was dismissed by the learned Additional District Judge. Hence the present second appeal by the legal representatives of the plaintiff in the suit.

3. As I have pointed out already, the only question that arises for consideration in this second appeal is, as to what exactly is the nature of the transaction brought about by the original of Exhibit B-2 and what is its legal effect. The document is styled as a settlement and is stamped as a settlement and has been registered as a settlement. The executant of the document had stated that he had married defendants 1 and 2, that he had no children through either of them, that he had brought up the children of his younger sister, defendants 3 and 4 as his own children along with his two wives defendants Nos. 1 and 2 and that after having brought them up, he had also at his own expense performed the marriage of the third defendant. He also stated that he and his wives and these two children were living as one family, that he was aged 70, that for sometime past he was suffering from illness, that since he did not feel confident that he would live for a long time, he wanted to make some provision with regard to the property covered by the document of the value of Rs. 1,000, which was his own self acquired property during his lifetime itself and that therefore he was executing the document. The recitals in the document expressing the desire of the executant are:

(1) He and his wives, and defendants 3 and 4 were, living as one family so far and they would continue to live as one family;

(2) He and his two wives will enjoy the property without subjecting it to any encumbrance or alienation;

(3) After his lifetime and the lifetime of his two wives, defendants 3 and 4 will have to take the property absolutely and in equal moieties and they will have to pay the municipal tax and also have the mutation of names effected in their favour;

(4) The third defendant will have to maintain the settlor and his two wives and perform their funeral rites;

(5) The property should be in the possession and enjoyment of the executant during his lifetime and after his death the two wives will have no right to ask for a share in the property;

(6) Since the fourth defendant's marriage had not been performed and if the executant happened to borrow any money on the security of the property, defendants 3 and 4 will have to discharge the debt; and

(7) The executant had no right to alter or cancel the provisions made in the settlement and even if he purported to do the same, that would not be valid.

It is on the basis of these recitals in the document that we have to consider the nature of the document.

4. Mr. M. Srinivasan learned Counsel for the appellants, contended that since there was no dispositive clause in the document, it could not be construed either as a gift or even as a settlement, the therefore no interest in the property passed from Alla Pichai under the original of Exhibit B-2 and that, as a result, the property remained as the property of Alla Pichai at the time of his death, in which under the Mohamedan law of inheritance, the plaintiff became entitled to have a share. I am of the opinion that this argument has to be rejected. When the Court is called upon to construe a document, the document has to be construed as a whole, after taking into account all the provisions contained therein One cannot merely rely upon one word here and another word there for the purpose of finding out what exactly is the nature of the transaction and what was the intention of the executant of the document. Even though there is no specific provision that in praestnti defendants 3 and 4 will obtain an interest in the property, that inference can be drawn from a reading of all the clauses together, because the document contemplated only such a situation. If there was no transfer in praesenti there was no question of the executant providing that after his death, his two wave would not be entitled to claim any share in the property or the executant imposing an obligation on the third defendant to maintain him and his wives and perform their funera rites. Consequently, if all the clauses are rear together, there can be no doubt whatever that the intention of the executant was to create an interest in praesenti in favour o defendants Nos. 3 and 4. Therefore the argument of the learned Counsel for the appellants that there was no transfer of interest in praesenti fails.

5. If there was a transfer in praesenti then what exactly was the character of the transaction, whether it was a gift or a settlement. From what I have already pointed out, it ii clear that the transaction was not intended to be a simple gift. The recitals themselves show that the executant and his two wives and defendants 3 and 4 were living as a single family and that he wanted to make some provision or arrangement with regard to his property during his life time. One such provision naturally concerned his two wives after his death But for this document, his two wives, namely, defendants 1 and 2 would be his heirs and they would be entitled to have a share in the property. Secondly there is provision for consideration proceeding from defendants 3 and 4, namely, to maintain the executant and his two wives for their life and to perform their funeral rites. That will certainly constitute consideration for the interest which the executant created in favour of defendants 3 and 4. Hence whether the document can be considered to be a family arrangement in the orthodox sense or not, it is certainly a settlement and equally certainly it is not a simple gift. If it is not a simple gift, the requirement of Mohamedan Law for a valid gift will not be attracted and therefore we have to test the validity of the transaction from the ordinary standards of general law of the land. If these standards are applied, the transaction as a settlement is a valid one and therefore the deceased Alla Pichai could not be said to have died leaving the suit property available to be inherited by his heirs.

6. In view of these circumstances, I am of the opinion that the conclusion of the lower appellate Court is correct The second appeal therefore fails and is dismissed. There will be no order as to costs.


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