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Abdul Rahiman Sahib and ors. Vs. Uthumansa Rowther and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1925Mad997; 85Ind.Cas.945
AppellantAbdul Rahiman Sahib and ors.
RespondentUthumansa Rowther and ors.
Cases ReferredKanhai Lal v. Brij Lal A.I.R.
Excerpt:
- devadoss, j.1. plaintiffs are the grandsons of the first defendant by his elder son muhammad ganni, who died in 1911. the second defendant is the younger son of the first defendant. the third defendant is an alienee of some of the properties. the fourth defendant is a lessee and is in possession of some of the plaint properties. the fifth defendant is the plaintiffs' mother. the plaintiffs' case is that their father muhammad ganni and their grandfather, the first defendant khader sahib, traded in natal and acquired considerable properties, that by an arrangement in 1908, evidenced by exhibit b, they became entitled to a and b schedule properties, that their father left a will, exhibit c, to which the first defendant was a consenting party, and that they are, therefore, entitled to the.....
Judgment:

Devadoss, J.

1. Plaintiffs are the grandsons of the first defendant by his elder son Muhammad Ganni, who died in 1911. The second defendant is the younger son of the first defendant. The third defendant is an alienee of some of the properties. The fourth defendant is a lessee and is in possession of some of the plaint properties. The fifth defendant is the plaintiffs' mother. The plaintiffs' case is that their father Muhammad Ganni and their grandfather, the first defendant Khader Sahib, traded in Natal and acquired considerable properties, that by an arrangement in 1908, evidenced by Exhibit B, they became entitled to A and B schedule properties, that their father left a Will, Exhibit C, to which the first defendant was a consenting party, and that they are, therefore, entitled to the whole of the A and B schedule properties; and that the alienation in favour of the third defendant does not bind the plaintiffs and that they are entitled to the G Schedule properties, half of the movables in the D Schedule and to the half-share in the mortgage debt which is set out in Schedule G. The first defendant died without filing a written statement. The second defendant pleads that plaintiffs are entitled to only the property of their father as residuaries that the alienation in favour of the 3rd defendant is binding upon the plaintiffs, that they are net entitled to any of the movables and that they are only entitled to 5-12ths share in the mortgage debt. The third defendant contends that he purchased the property bona fide and for consideration from the guardian of the plaintiffs and that the sale is binding upon the plaintiffs. The Subordinate Judge granted a decree in favour of the plaintiffs for five-sixths of the A and B schedule properties and 5-12ths of the G schedule debt and dismissed their claim as regards the G schedule properties and movables and upheld the alienation in favour of the third defendant. The plaintiffs have appealed in respect of the reliefs denied to them. The second defendant has filed a memorandum of objections.

2. First point. - The first point urged by the appellants is that they are entitled to the whole of the properties mentioned in schedules A and B of the plaint. Their argument is that by Exhibit B their father was given only a life interest and that they had a vested interest in the properties and that, even if it be held that their father was entitled to the properties, the plaintiffs are entitled to the whole of them inasmuch as the first defendant gave his consent to the Will, Exhibit C, before it was executed and by his conduct acquiesced in the provisions of the Will subsequent to the death of Muhammad Ganni, and that, in any case, the arrangement evidenced by Exhibits B, C and XIII should be considered as a family arrangement behind which neither the first defendant nor the second defendant could go. Exhibit B was executed on the 11th January, 1908 by Khader Sahib. It is called a deed of settlement, and by it he settled his property upon his two sons Muhammad Ganni and Uthman Sahib. It was argued very strenuously by Mr. T.M. Krishnaswami Iyer that the settlement gave only a life interest to Muhammad Ganni and that the plaintiff got a, vested right to the properties. Reliance was placed upon the following recital in the document : 'Either of my sons shall not subject the properties aforesaid to mortgage with possession, hypothecation, security, sale or to any other alienations and both of them shall live with the income derived from the same every year and thus maintain themselves. After them their descendants shall enjoy the same with the right of making alienations as they pleased.' The suggestion is that Kadher Sahib, who acquired considerable property by trading in Natal for a number of years, was anxious that his grandsons should enjoy the property so that-the family may be perpetuated, and as Muhammad Ganni was in a weak state of health at the time of the execution of Exhibit B it should be considered that Muhammad Ganni took only a life-interest under Exhibit B. The contention that. Muhammad Ganni was given only a life-interest, is opposed to the recital. 'I have given away the nemja, punja, houses and ground and shops specified in schedule A to my eldest son Muhammad Ganni Sahib and he shall enjoy the said properties from this date with all rights, absolute.' In the same manner the settler gave property nanja, punja, house-and ground and shops specified in schedule B to his second son Uthman Sahib. It cannot be said that the settler wanted the sons of Uthman Sahib, who were not then in existence, to take the property subject to the life interest of Uthman Sahib. The Muhammadan Law does not permit such a bequest in favour of unborn sons and it cannot be said that in the case of one son the settler wanted his grandsons to have the benefit subject to a life-interest in favour of his son, and in the case of the second son he gave him the property absolutely. It is unnecessary to speculate as to the intention of the settler. We can only gather his intention from the expressions actually used in the deed of settlement. The direction against alienation is only a restraint upon alienation, a pious wish that the sons should hand down the properties to their children unimpaired. On a careful reading of Exhibit B, the only construction which consistent with the recitals and the clear words of the document is that both Muhammad Ganni and Uthman Sahib took an absolute estate in the properties settled upon them by their father Khader Sahib. In this view it is unnecessary to consider the question whether the Muhammadan Law permits the creation of a vested remainder by a deed of settlement or by Will. Any expression of opinion on the point can only be obiter. In Abdul Wahid Khan v. Nuran Bibi (1885) 11 Cal. 597 their Lordships of the Privy Council observe at page 605 (11 Cal) 'To give the plaintiffs a title to the estate, it must be a vested interest which, on the death of their sons, passed to their heirs, and is similar to a vested remainder under the English Law. Such an interest in as estate does not seem to be recognised by the Muhammadan Law.' In Humeeda v. Budlun and the Government (1869) 17 W.R. 525 their Lordships held that the creation of such a life estate did not seem to be consistent with the Muhammadan usage and that there ought to be very clear proof for so unusual a transaction. It is not opposed to Muhammadan Law to make a bequest in favour of a legatee subject to the legatee paying a certain amount to another person. In other words, a trust can be created subject to which a legatee could take a bequest; but the words must be explicit for the purpose of creating a trust. Tavakalbhai Sultanbhai v. Imtiyazbegam Mirbanesaheb (1917) 41 Bom. 372 and Banoo Begam v. Mir Abed Ali (1910) 32 All. 172. In the present case there is no trust created in favour of the plaintiffs. The settlement is in favour of the plaintiff's father and the plaintiffs can only inherit to their father and cannot claim independently of their father any right to the property settled under Exhibit B.

3. The next contention is that the first defendant consented to the disposition under Exhibit C, the Will of Muhammad Ganni executed on the 11th January, 1908. Three documents, Exhibits B, G and XIII were executed on the same date. Exhibit B is the deed of settlement, Exhibit G is the Will of Muhammad Ganni and Exhibit XIII is the Will of Khader Sahib. Khader Sahib was at that time an old man of 80 years of age. Muhammad Ganni seems to have been in indifferent health and had arranged to leave the place for a time ; for the evidence is that he left shortly after the execution of Exhibit C for Natal where the father and the son carried on a lucrative trade. Mr. Varadachariar, on behalf of the defendants, contends that Exhibit C does not contain any disposition of property that it only gives a direction for the management of the property during the minority of the plaintiffs and that by it only testamentary guardians have been appointed for the management of the properties during the minority of the plaintiffs. Mr. Krishnaswami Ayyar for the appellants, on the other hand, lays stress upon the words 'He shall deliver the same to them.' His argument is that the Will is in Tamil and that there are no proper words in the Tamil language which could clearly express an intention to bequeath property to a legatee. This is rather a startling argument. The Tamil language contains words capable of expressing the intention of a testator who wishes to bequeath property to a legatee. The mere fact that the Will is in the Tamil language is no ground for reading into it something which it does not contain. He relies upon the Tamil sentence : ('Minor Majoronapiragu Avergalvasam oppu vithu vidavendiyathu').

4. The testator appointed his father guardian of his minor sons should he survive him, and appointed Ahmed Karim as guardian in case Khader Sahib died before the minors attained majority and directed Uthman Sahib to manage the properties along with his (the testator's) wife Amir Bai after he attained majority. Both in the case of his father and in the case of Ahmed Karim the words used are the same, namely, that the guardian should, on the minor's attaining majority, hand over the property to them. This expression by itself cannot mean that he bequeathed the properties to them and there are no other words in the will bequeathing properties to the plaintiffs. From a careful reading of Exhibit C, it is clear that Muhammad Ganni wanted to provide for the management of the properties after his death and during the minority of his sons and the specific directions as regards the amount to be spent for their marriages and the marriage 61 the daughter are clear indications that by Exhibit C he only appointed testamentary guardians and did not devise the properties to the plaintiffs. It is unlikely that a Muhammad an would not have given a portion of his property to his daughter if it be contended that Exhibit C is a Will. The argument on the side of the plaintiffs is that the plaintiffs' family, though Muhammadan, was Hindu in sentiment and, therefore, it was likely that Muhammad Ganni did not want to give a share to his daughter. This argument is not a sound one, for the mother of the plaintiffs is not likely to have consented to an arrangement by which her daughter was deprived of her share of her father's property. In construing Exhibit 0, attention has to be paid to Exhibit XIII. By Exhibit XIII Khader Sahib appointed Khader Mastan Sahib, guardian of his second son Uthman Sahib who was a minor, and he directed how the property should be managed. It cannot be said that by Exhibit XIII he devised the properties to his son Uthman Sahib, for he had no power of disposition over the properties as he had already settled the properties upon him under Exhibit B Exhibits C and XIII are almost similar in their terms as regards the main portions and the contention that Exhibit C is a will bequeathing property to the plaintiffs is very much weakened by the recitals in Exhibit XIII, by which Khader Sahib could not have devised the properties covered by Exhibit B to his son Uthman.

5. It is urged on behalf of the appellants that the grandfather consented to the disposition under Exhibit C and, therefore, he is bound by such consent. Granting for argument's sake that Exhibit G is a Will under which the plaintiffs took the property, let us see whether there is any evidence to support the contention that Khader Sahib consented to the disposition after the death of Muhammad Ganni.

6. The parties are Sunni Muhammadans. Under the Sunni Law a testamentary disposition by a Musalman is invalid in so far as it purports to dispose of more than one-third of the testator's estate or to benefit any of his heirs unless the heirs whose rights are affected by such disposition consent to it after his death expressly or impliedly or by passive acquiescence - Tyabji's Muhammadan Law, page 526. Consent during life is not enough under the Sunni Law. Vide Nusrut Ali v. Zeinunnissa (1866) 15 W.R. 146. In Khajoomissa v. Bowshanjehan (1877) 2 Cal. 184 their Lordships of the Privy Council observed at page 196. 'The policy of Muhammadan Law appears to be to prevent a testator from interfering by Will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger.' It is incumbent, however upon those who seek to set up a proceeding of this sort, to show very clearly that the forms of the Muhammadan Law, whereby its policy is defeated, have been complied with. Such being the principle of Muhammadan Law, it is necessary to see whether the first defendant did consent to the disposition after the death of Muhammad Ganni. Muhammad Ganni, who returned from Natal in 1910, died in April, 1911. Khader Sahib acted as guardian of the minors from the time of the death of Muhammad Ganni to the middle of 1914 when disputes seem to have arisen between the first plaintiff and his maternal uncle on the one hand and Khader Sahib on the other. The appellants strongly rely on the fact that Khader did not expressly claim a share in Muhamad Ganni's property and that he did not in any way set up a title to any portion of such property in antagonism to the plaintiffs. Khader was a very old man and did not probably intend to claim a share in his son's property till disputes actually arose. He gave almost all his property to his two sons in 1908 under Exhibit B and perhaps he did not expect to survive his son Muhammad Ganni. It is not likely, therefore that he thought of succeeding to his son Ganni and wished to claim any interest in his property after his death. The plaintiffs were minors, and Khader Sahib had probably no object or at least no occasion to claim a share in his son's estate. It was only after disputes arose that ho thought of claiming a share in the son's estate. The plaintiffs are, no doubt, entitled to rely on the absence of any expression of any intention on the part of Khader to claim a share before 1919 but there are a few circumstances from which it can be inferred that the parties were alive to the fact that Khader Sahib as well as the fifth defendant were entitled to a share in the estate of Muhammad Ganni.

7. Exhibit XXIII is a sale deed in favour of the third defendant in which Khadar Sahib, Uthman Sahib, Amir Bi, and the plaintiff's joined. The plaintiffs were represented by their grandfather Khadar Sahib. The fact that Amir Bi was made to join in the document is a circumstance going to show that the parties to the 'document were alive to the fact that Amir Bi had a share in Muhammad Ganni's property. Amir Bi did not receive any bequest under Exhibit C. Her right to the property could have been only independently of Exhibit C. If that was so can it reasonably be contended that Khader Sahib was not also aware that he had a share in Muhammad Ganni s property? Exhibit XVIII is a lease deed executed by one Swaminatha Piilai to the first and the fifth defendants and to the first defendant as guardian of the second defendant. In this there is an indication that the fifth defendant was considered entitled to an interest in Muhammad Ganni's property. Exhibit XXV is a hypothecation bond by the third defendant in favour of the first, second and fifth defendants and plaintiffs represented by their grandfather. These documents go to show that the parties were alive to the fact that the fifth defendant also had a share in Muhammad Ganni's property. It is strongly urged that Khadar Sahib acted as guardian of the plaintiffs from 1911 to 1914 and that he got the plaintiff's suit, O.S. No. 8 of 1916 dismissed on the ground that he was the guardian of the second plaintiff who was then a minor, and it is not open to him now to say that he did not consent to the dispositions under Exhibit C. The first defendant pleaded that on the plaintiff's own case, the suit should be dismissed as the first plaintiff could sue as second plaintiff's guardian without removing the testamentary guardian. The Sub-Judge dismissed the suit on this ground, vide Exhibit E. First defendant in his evidence went the length of denying any knowledge of the Will, vide Exhibit N 1. A technical plea based on the averments in the plaint cannot be construed as an expression of consent to the dispositions under the Will.

8. Disputes arose between the first defendant and the plaintiffs in the middle of 1914. There were criminal proceedings and also civil proceedings. As soon as disputes arose, the first defendant transferred his right in A, B and C schedule properties to his second son Uthman Sahib by Exhibit XXII, and by Exhibit XXII-A he assigned his right in the mortgage bond for Rs. 2,000 executed by the third defendant for the balance of the purchase money due in receipt of the sale evidenced by the Exhibit XXIII. By an application made in 1914, the first defendant amended his written statement in O.S. No. 106 of 1912 of the Kumbakonam Subordinate Judge's Court, Exhibit C, by setting up a claim to a share in Muhammad Ganni's property. Prom the evidence it is clear that, after disputes arose, Khader Sahib did all he could for the purpose of claiming a share in Muhammad Ganni's property. There was no opportunity for Khader Sahib before 1914 to express his intention as regards claiming a share in Muhammad Ganni's property. If an occasion had arisen, and if he had omitted or neglected to claim a share it might be contended with some show of reason that he acquiesced in the disposition of the property under Exhibit G. On the other hand, the moment disputes arose, Khader Sahib not merely claimed a share in Muhammad Ganni's properties but also made it impossible for anyone to doubt his intention by transferring his interest in them to the second defendant by Exhibit XXII. In this connection it is urged by the respondents that the B schedule properties were acquired after the date of Exhibits C and XIII and granting that Khader did consent to the disposition of the properties under Exhibit C, it could not be said' that he consented to relinquishing his rights in proparties which were acquired after the date of Exhibit C. The answer to that is that by Exhibit C were devised all the properties of Muhammad Ganni to his sons and, therefore, Khader must be taken to have consented not only in respect of properties then in existence but also in respect of properties to be acquired thereafter : but the consent before the execution or at the time of the execution of Exhibit C is immaterial. Only the consent subsequent to the death of Muhammad Ganni is of importance. In that view this argument by the respondents is not of much weight.

9. The next contention is that Exhibits B. C and XIII evidenced a family arrangement by which Khader Sahib settled his properties upon his two sons and consented to or acquiesced in Muhammad Ganni disposing of his property in favour of his sons, and such an arrangement could not be departed from by any of the parties to it. Reliance is placed upon Kanhai Lal v. Brij Lal A.I.R. 1918 P.C. 70 in support of this contention. If there was a dispute and if all the members of that family came to an arrangement, no doubt it would not be open to any of the parties to go behind such an arrangement, but where the father and the sons amicably arranged that the father should settle all the properties upon the sons reserving to himself little or nothing, it cannot be said that the essentials of a family arrangement are present which would preclude any of them from claiming by inheritance to one of the parties to such an arrangement. At the time of the execution of the documents it was not perhaps in the minds of either the first defendant or of Muhammad Ganni that the first defendant would survive Muhammad Ganni. No doubt under Exhibit G the first defendant is appointed guardian of the minor sons in case Khader Sahib survived Muhammad Ganni, but that alone is not a sufficient circumstance to show that Khader Sahib relinquished his right to succeed to Muhammad Ganni's estate in case Muhammad Ganni, should predecease him. tinder the Muhammadan Law a father is an heir, and granting that Khader Sahib could relinquish his rights of inheritance, to Muhammad Ganni's property it would require very strong evidence to make out such an intention on the part of Khader Sahib. Khader Sahib gave away all his properties to his sons. He was not anxious to reserve anything to himself. He was an old man of eighty. At that time there were no disputes as regards either shares or particular items or as to anything about which the parties could disagree. In order to make out a valid family settlement by which a person could relinquish his right to property not only in praesenti but also infuturo, there must be in the first place consideration for such relinquishment; in the second place there must be words which would convey such an expression of intention on the part of any of the parties to the document. So long as the arrangement is merely a one-sided arrangement or where there is no dispute to be settled, a mere settlement of property by one upon another cannot be considered to be a family arrangement under which it can be said that certain rights which would accrue in future have been given up. I do not consider that the arrangement evidenced by the three documents can be construed as a family arrangement which would prevent the first defendant from claiming a share in, his son Muhammad Ganni's property. I hold that the Subordinate Judge is right in giving the plaintiffs five-sixths of the properties mentioned in & and B SC schedule properties chedules to the plaint.

10. The next point urged by the appellants is that the C Schedule properties were-purchased by the first defendant out of the income of Muhammad Ganni's property and that, therefore, they are entitled to them. They contend that in any event they are entitled to half the property. The C Schedule properties were purchased under Exhibits II U and II W on the 25th November, 1908 and the 22nd December, 1908 for Rs. 144 and Rs. 100 respectively. The appellants rely upon a statement of Khader Sahib contained in Exhibit N-1, deposition in Original Suit No. 8 of 1915 in the Subordinate Judge's Court, Kumbakonam. 'I had no separate property after the date of the settlement-deed. Upon this stray statement the appellants want to build a case that G schedule properties were purchased out of the income of the property settled or Muhammad Ganni. Muhammad Ganni was absent at Natal from the middle of 1908, returned to India towards the close-of 1910 and died in 1911. There is no evidence that the income of Muhammad Ganni's property was utilised for the purpose of buying G schedule properties. The first defendant made a statement that he had no property after the date of the settlement-deed and added that he had some money paid to him by one of the creditors. Reliance is placed also by the appellants on a statement of the 2nd defendant in Exhibit J, deposition in Original Suit No. 8 of 1915, to the effect, that he did not know if the G Schedule properties were purchased out of the income of the property settled on Muhammad Ganni. The sale-deed being in the name of the first defendant, the onus is on the plaintiffs to show that they were purchased with the income of the property belonging to their father. After the return of Muhammad Ganni, no claim seems to have been made in respect of such properties and such properties were not divided between Muhammad Ganni and Uthman Sahib. In fact no arrangement was made in respect of such properties. If the plaintiffs had not quarrelled with him, he might have given half of them to the plaintiffs, but inasmuch as they bad quarrelled with him, he transferred his right in them to his second son. There is no evidence on the side of the appellants to show that the C schedule properties were acquired with the income of Muhammad Ganni's property. The claim of the plaintiffs to a half-share therein would depend upon the proof that they were acquired partly with the income of the properties settled upon Muhammad Ganni and Uthman Sahib. There is no such evidence forthcoming and the first defendant stated in Exhibit N-1 that he purchased them with some money of his own. The consideration for the two documents being only Rs. 200 and odd, it was very likely that the first defendant had some funds of his own with which he purchased these properties. Anyhow the onus is on the plaintiffs and they have not discharged it. I, therefore, find this point against the appellants.

11. The third point is as regards items Nos. 114 to 135 of the A schedule. These items were sold under Exhibit XXIII for Rs. 7,000 on the 29th April, 1912 to the third defendant by the first defendant, the second defendant, the fifth defendant and the plaintiffs represented by their grandfather, the first defendant. The appellants, contention is that there was no necessity to sell these items, that the plaintiffs were minors at the time and that unless the third defendant could establish the necessity for sale, the sale is voidable as against them. This argument overlooks the fact that by Exhibit XXIV, an agreement dated the 25th March, 1911, the first defendant and Muhammad Ganni agreed to convey these properties to the third defendant for Rs. 7,000, and that, after the death of Muhammad Ganni, the first defendant and others carried out the agreement. I have already found that Muhammad Ganni was the owner of the properties settled under Exhibit B. and that the plaintiffs had no vested right in the lifetime of their father. Under the Muhammadan Law the father is entitled to deal with the properties as he likes and the sons cannot question any alienation made by him. This alienation was for the discharge of debts and the plaintiffs cannot contest an alienation which as arranged to fee made by their father and carried out by their guardian after his death. Even if it be granted that the plaintiffs had a right to the property independent of the father, the sale by their guardian for the purpose of discharging a debt incurred in the lifetime of their father is a prudent act and is one which is binding upon the plaintiffs. It is unnecessary to discuss this point any further. I find this point against the appellants.

12. The fourth point urged is as regards moveables, which are mentioned in the D schedule to the plaint. The present contention of the appellants is that there was a division of the moveables after the death of their father and that the moveables remained in their possession in the front portion of the house which fell to their share and that they were taken away by a Commissioner appointed in Original Suit No. 8 of 1915. That suit was filed by the plaintiffs and their mother against Khader Sahib for possession of the moveables. The learned Subordinate Judge who heard the case dismissed it on the ground that the first defendant was the testamentary guardian of the second plaintiff and, therefore, it was competent for the first plaintiff to sue as guardian of the second plaintiff. In the course of the suit, a Commissioner was appointed for taking an inventory of the moveables in the portion occupied by the plaintiffs. Exhibits A(1) to A(7) are the lists prepared by the Commissioner. The appellant's contention is that that they are entitled to them inasmuch as they were found in the portion of the house occupied by them. The front portion of the family house was given to Muhammad Ganni. Till at least May, 1914 the parties seemed, to have lived amicably. About the end of May, 1914 the parties seemed to have quarrelled, and the first defendant filed a criminal complaint against the first plaintiff and his maternal uncle in June 1914 accusing them of theft of jewels. If the plaintiffs could substantiate their story that there was a division of all the moveables before May, 1914, no doubt they would be able to make out a case, but there is no reliable evidence that the first defendant divided all his moveables between the plaintiffs and the second defendant. The appellants are not consistent in the case they put up. They contended in the flower Court that a great many of the moveables were brought from Natal by their father when he returned in 1910 and that it was their exclusive property. In this Court they want to make out that they got them in a division with their grandfather. Some of the moveables are four Deksas said to be worth Rs. 1,000. The Subordinate Judge has rightly disbelieved their story that they were brought from Natal. They are, therefore, obliged to fall back upon the other contention that they got it in a division with their grand-father. The evidence as regards division is as meagre as it is unreliable. Great reliance is placed on a statement in Exhibit-G (para. 3). 'I effected a division of all the moveable properties as well as the grain in the house.' The original of this is in Tamil and it does not support the contention of the appellants. What the document says is that * * * were divided. The translation 'all the moveables' is not correct. A reading of Exhibit G clearly shows that only the necessary articles for separate living were given and that is made dear by a statement of the second defendant in Exhibit J that only the necessary moveables were then divided by the mediators and given to each party. It is admitted that these moveables were taken out from the front portion of t he house which was given to Muhammad Ganni under Exhibit B. The mere fact that the moveables were found in that portion of the house would not necessarily make them the property of the plaintiffs. If the plaintiffs had been living for a considerable time apart from their grand-father and if there was some evidence of a division at the time when they began to live separately, a strong presumption will arise in favour of the contention that the property found in their possession is theirs, but the evidence on the side of the plaintiffs is unsatisfactory. On the other hand, the evidence on the side of the defendants is that the first defendant and the plaintiffs began to live separately only about May, 1914 and that only a few necessary things were given to the plaintiffs and their mother for the purpose of enabling them to live separately. The other moveables remained in the possession of the first defendant and the plaintiffs cannot claim them as theirs. Mr. Krishnaswami Ayyar, as a last resort, contended that the plaintiffs were at least entitled to half of them. It is difficult to see on what basis he could claim half of the moveables. If they were the joint property of the plaintiffs and the first defendant, no doubt, they would be entitled to half, but if they were the property of the first defendant, the plaintiffs would not be entitled to them, as the appellants are not heirs to their grandfather under the Muhammadan Law, for the second defendant excludes them. Some of the properties were handed over to the plaintiffs with the consent of the first defendant so far back as 1914. Exhibit A(7) is a list of such properties and Khader Sahib, the old man, had no reason for making a false statement in order to gain a few moveables. The whole of his conduct seems to be that of a loving grandfather who tried to do his best for his sons as well as his grandsons, but the first plaintiff, evidently under the evil advice of his maternal uncle, quarrelled with the old man, which made him complain of theft against his own grandson. That the feeling became bitter after that is clear from the various proceedings, but even after such conduct on the part of the plaintiffs, the first defendant would have given to the plaintiffs half of the property that remained with him. In the light of the evidence in the case it is impossible to hold that the plaintiffs are entitled to the moveables in the D schedule or to a share in them. I find this point against the appellants.

13. The fifth point is as regards the mortgage debt set out in the G Schedule. When the third defendant purchased under Exhibit XXIII, the property belonging to the family for Rs. 7000 he paid Rs. 5,000 and for the balance he executed a hypothecation bond in favour of the vendors. Exhibit XXV is a hypothecation bond. It was in favour of the first, second and the fifth defendants as well as of the plaintiffs represented by their guardian, the first defendant. The plaintiffs have been given five-sixths share of the amount. They claim half the amount on the ground that Khader Sahib was not entitled to his one-sixth share of the mortgage debt. I have already held that the first defendant had no idea of relinquishing his right to share in his son's estate and it is unnecessary to go over the same ground again. The document is in favour of the 1st defendant as well as in favour of defendants Nos. 2, 5 and the plaintiffs. That being so, the plaintiffs are not entitled to claim half the amount. I find this point also against the appellants.

14. In the result the appeal fails and is dismissed with costs, one set to second respondent and another to the other respondents proportionate to the value of their interest in the appeal.

15. The memorandum of the objections is as regards the share of the mother which has been decreed in the plaintiff's favour. The second defendant-respondent contends that the lower Court was wrong in granting a decree for five-sixths of the property in favour of the plaintiffs. The fifth defendant, their mother, is a party to the suit. The jurisdiction of the Court is not taken away in a case like this to grant the plaintiffs a decree in respect of their mother's share as well. If the mother was dead or if the mother was not a party it might be said that the Court should not have given a decree in respect of her share to the plaintiffs, but when she was a party to the suit, though she remained ex parte, the Court was not only justified but well advised in giving a decree to the plaintiffs; for thereby the Court saved another suit by her for her share. There is no substance in this contention and I find this point against the second defendant.

16. The next point is as regards the fourth item which is dealt with in para. 54(IV) of the judgment of the lower Appellate Court. The second defendant urges that the plaintiffs should be made liable for their share of the debt. Defendants Nos. 1 and 2 executed a mortgage, Exhibit XXXIII in favour of Vythilinga Odayar on the 29th October, 1912. There is no evidence to connect Exhibit XXXIII with anything that was done to benefit the plaintiffs. There is no evidence that that debt was incurred on behalf of the plaintiffs. The first defendant was a guardian of the plaintiffs and he did not choose to execute the deed as guardian of the plaintiffs. There is no reliable evidence that any debt was borrowed under Exhibit XXXIII for any purpose which could bind the plaintiffs. The lower Court has rightly disallowed this claim of the second defendant. It is also significant that, before this suit was filed, no claim was put forward in respect of this debt against the estate of Muhammad Ganni.

17. The next item is No. 7 which is dealt with in para. 54 (VII) of the lower Court's judgment. The second defendant's contention, if upheld, would only mean that the C Schedule properties were purchased out of loans borrowed on behalf of the plaintiffs as well. I have already found that the C schedule properties belonged' to the first defendant and any debt incurred for the purchase of those properties could not possibly bind the plaintiffs. There is no evidence that this debt could not have been paid out of the income of Muhammad Ganni's estate. The first defendant did not maintain any account as regards the income of the estate of Muhammad Ganni and there is no proof that this debt was incurred for any purpose which could bind the plaintiffs or that it could not have been paid out of the income of Muhammad Ganni's estate. I find this point against the second defendant.

18. In the result the memorandum of objections is dismissed with costs.

Spencer, J.

19. I agree on all points.


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