IN THE HIGH COURT OF JUDICATURE AT MADRAS
C O R A M :
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
A.S.No.139 of 1996
5. Musthiri .. Appellants
1. Mahaboob Bivi
2. Jamila Bivi
4. Sait Bowa
5. Sahul Hameed
7. J.Sahul Hameed
12. Haji Rao Bahadur .. Respondents
Appeal filed under Section 96 C.P.C. against the judgment and decree dated 12.9.1994 passed in O.S.No.143 of 1993 on the file of the learned Subordinate Judge, Udumalpet.
For appellants : Mr.A.Prabhakaran for
For R4 and R5 : Mr.S.Parthasarathy
Senior Counsel for Mr.A.S.Kaizer
For R1 to R3,R6
to R11 : No Appearance
J U D G M E N T
This appeal is against the judgment and decree dated 12.9.1994 in O.S.No.143 of 1993 on the file of the Sub Court, Udumalpet, in dismissing the suit, filed by appellants.
2. For convenience, the parties are referred as arrayed in the suit.
3. The plaintiffs state as follows:
The plaintiffs are the daughters of late P.K.Moosa Rowther, who died on 29.6.1984. The first defendant is the widow of the said P.K.Moosa Rowther. The second defendant is another daughter and the defendants 3 to 5 are his sons. The defendants 6 to 12 are tenants in the suit properties. After the death of the said P.K.Moosa Rowther, the properties owned by him would devolve upon the legal heirs. However, the first defendant being the mother of the plaintiffs and the defendants 2 to 5 prevailed upon the plaintiffs and postponed the claims of the plaintiffs for fair partition and division of the suit properties. As on today, all do not appear going well. The defendants 3 to 5 have been enjoying the incomes from the suit properties without giving any share of income to the plaintiffs yet the plaintiffs never revolted against them. The plaintiffs have no ill-will neither against their mother nor brothers. But the stage has come that the plaintiffs can no longer wait without getting their due share in the properties since the defendants 3 to 5 have openly come out asserting their exclusive right and title. However, the first defendant having become silent the defendants 3 to 4 have begun to exercise such rights which apparently shown also on behalf of the plaintiffs herein, now seem to have conceived an idea to claim exclusive right and title which are detrimental to the plaintiff’s legal right. The defendants 3 to 5 have also created certain documents in their favour as if they became entitled to the suit properties to the exclusion of their heirs after the demise of their father. It is stated that the late P.K.Moosa Rowther had executed a will. But no such documents was ever written or executed by the said late P.K.Moosa Rowther. So the suit properties of P.K.Moosa Rowther on his death devolved upon the legal heirs, that is the plaintiffs and also the defendants 1 to 5. Therefore, the plaintiffs have filed the suit for granting a decree for fair partition of the suit properties by metes and bounds and allot their respective shares and also for ordering enquiry for mesne profits under Order 20 Rule 12 C.P.C.
4. The 4th defendant states as follows:
The suit is false, frivolous, vexatious, not at all maintainable in law and on facts. The allegations made in the plaint are denied as false. The fourth defendants states that the late P.K.Moosa Rowther has left neither movable nor any immovable without dispossession. He has disposed off all movable and immovable even during his life time. The plaintiffs have no right, title or any interest in any of the suit properties. Late P.K.Moosa Rowther has executed and registered a Will dated 12.2.1980 bequeathing the item of the ‘B’ Schedule property in favour of the defendants 3 and 5 and the 1st son of the 4th defendant and also executed a registered deed of Hiba dated 24.7.1981 in favour of the 5th defendant and two sons of the 4th defendant giving joint possession immediately on 24.7.1981. The fact which is true is that the defendants 3 and 5 and the 1st son of the 4th defendant are claiming exclusive right title and interest in the 1st item and the 5th defendant and the two sons of the 4th defendant are claiming exclusive right, title and interest in the 2nd item. The defendants 3 to 5 have not created any documents in favour of any person as alleged. The plaintiffs have not issued a pre-suit notice demanding partition. The plaintiffs are not entitled to any share in any of the properties. Hence, he prays the Court to dismiss the suit.
5. The 5th defendant states as follows:
The suit is false and not maintainable either in law or on facts. The allegations made in the plaint are denied as false. The allegation that ‘B’ Schedule property are owned by the said P.K.Moosa Rowther is denied. The said P.K.Moosa Rowther executed a deed of Hiba dated 24.7.1981 in favour of the 5th defendant and two minor sons of the 4th defendant by giving joint possession. The plaintiffs have not asked for any share in the suit properties. The allegation that the fifth defendant postponed the claims of the plaintiffs for partition of the suit properties is an imaginary one. The allegation made by the plaintiff that the defendants 3 to 5 have created forged documents in their favour in respect of the suit properties is also false and imaginary one. For that, the 5th defendant is going to take separate action against the plaintiffs. The fifth defendant is ready and willing to partition the first item of the “B” schedule properties and ready to pay the court fee in respect of the same.
6. The defendants D1 to D3 and D6 to D12 remained absent and exparte before lower court.
7. The 3rd plaintiff was examined as P.W.1 and Exs.A1 to A3 were marked on the side of the plaintiffs in order to prove their claim. D.W.1 to D.W.4 were examined and Exs.B.1 to B6 were marked on the side of the defendants for disputing the claim of the plaintiffs.
8. The lower Court, after analysing the evidence in depth, came to the conclusion that the plaintiffs are not entitled to the suit property and accordingly, dismissed the suit. Aggrieved by the said decision of the trial Court, the present appeal is filed by the plaintiffs.
9. Heard Mr.A.Prabhakaran, the learned counsel for Mr.H.Nazirudden, the learned counsel appearing for the Plaintiffs/Appellants and Mr.S.Parthasarathy, the learned Senior Counsel for Mr.A.S.Kaizer, the learned counsel appearing for the respondents 4 and 5.
10. The learned counsel for the appellants/plaintiffs would submit in his argument that the lower court had erroneously dismissed the suit for partition filed by the plaintiffs without reasons and improper manner when the plaintiffs are admittedly the daughters born to the deceased P.K.Moosa Rowther and the 1st defendant Mahaboob Bivi. He would further submit in his argument that the alleged will said to have been executed by the testator late P.K.Moosa Rowther is not a valid document since the other heirs did not consent for the bequest after the death of the testator as per the Mohamedan Law. He would further submit in his argument that even otherwise the said will was not proved as per the provisions of Sec 63 of Indian Succession Act and Sec.68 of Indian Evidence Act. Even if true the said will being a Mohamedan will is valid upto 1/3rd of estate of the deceased person and for the remaining 2/3rd of the estate, the suit filed by the plaintiffs ought to have been decreed.
11. He would further submit in his argument that the heirs who are to give consent to the will must concur on the date of death of the deceased person and not on the date of execution of the will. He would further submit that the alleged “Hiba” gift deed was also contrary to the provisions of Mohamedan Law and in the absence of complete divesting of interest over subject matter, it will not create a Hiba gift nor any gift under Transfer of Property Act. He would further submit that lower court ought to have considered the alleged gift deed Ex.B.2 as a peremptory will, which has postponed the absolute right on the death of the executant and should have come to a conclusion that the gift without getting possession is an invalid one. He would further submit in his argument that the donor namely P.K.Moosa Rowther did not divest himself from the property during his life time and therefore, the said gift did not come into operation. He would further submit in his argument that the judgment of the lower court is not in accordance with law and the and the right of the plaintiffs for partition has been unlawfully negatived despite there is a settled position of law to the effect that the Mohamedan Will will be valid in respect of 1/3rd of the property only. For the said position of law he would draw the attention of the court to a judgment reported in 2001 (3) M.L.J. 141 in between Noorunissa alias Pichamma v. Rahaman Bi and others. He would again cite yet another judgment of this court for the same proposition of law reported in 2000 (IV) CTC 454 in between Sulaika Bivi and Six others vs. Rameeza Bivi and 10 others. He would also submit in his argument that the valid gift has to be completed with the declaration of the gift by the donor to the donee. However, in this case the recitals of the gift deed Ex.B.2 would go to show that the possession was not handed over nor the title to the suit property was divested from the donor. He would draw support from a judgment of Hon’ble Apex court reported in AIR 1995 SC 1205 in between Mahmoob Sahab v. Syed Ismail and Others. In view of the defects found in Ex.B.1 Will and Ex.B.2 gift deed they are not valid in law and therefore the defence raised by the defendants 4 and 5 are not sustainable and therefore the suit ought to have been decreed in favour of the plaintiffs for their legitimate share. He would further submit that the lower court had not gone through these circumstances but had simply dismissed the suit filed by the plaintiffs which is contrary to the law. Therefore, he would request the court to set aside the judgment and decree passed by the lower court and to allow the appeal and thereby to decree the suit as prayed for.
12. Learned Senior Counsel Mr.S. Parthasarathy appearing for the respondents 4 and 5 would submit in his argument that the will executed by the father P.K.Moosa Rowther was in favour of the defendants 3 and 5 and the legal heirs namely first son of 4th defendant. He would further submit in his argument that the said first son of 4th defendant was not impleaded as party to the suit. He would also submit that the gift deed Hiba was executed by the father Moosa Rowther in favour of D5 and other minor sons of D4 namely Ahmed Sheriff and Umar Sheriff represented through guardian Mehaboob Bivi, 1st defendant and the said minor donees should have been made as parties. He would again submit in his argument the suit filed without impleading the necessary parties is liable to be dismissed for non-joinder of necessary parties. He would rely upon the judgment of this court reported in AIR 1997 Madras 226 in between Shanmugham and others vs. Saraswathi and others for the said proposition. He would also draw the attention of the court to the judgment of this court reported in 100 LW 486 in between A. Ramachandra Pillai vs. Valliammal (died), for the similar proposition.
13. He would also submit in his argument that the stipulation imposed in the gift deed that the donee has to maintain the donor till his life time is not a condition at all and physical delivery is not necessary to constitute the Mohamedan gift for that proposition of law, he would cite a judgment of this court reported in AIR 1964 Madras 309 in between Ayeeshee Bivi vs. K.S.A.Shaik Mohamed Alim Sahib and others. He would also submit in his argument that the mere factor that the donor continue to live in the house donated by him is not enough to have that there is delivery of possession. He would also cite a judgment of Patna High Court AIR 1972 PATNA 279 in between S.M.S. Hashmi vs. S.A. Fateh and others. He would further submit in his argument that the non-joinder of necessary parties would invite the court to dismiss the suit filed by the plaintiffs and therefore the judgment and decree of the lower court need not be interfered and set aside.
14. On perusal of the pleadings, oral and documentary evidence adduced on either side, the judgment and decree of lower court and the grounds raised in the appeal memo and the arguments advanced on either side the following points are found emerged for consideration in this appeal.
1. Whether the Will dated 12.02.1980 was executed by Moosa Rowther in a sound and disposing state of mind in the presence of two attesting witnesses and if so whether it is valid and enforceable in accordance with law?
2. Whether the gift deed 24.07.1981 was executed by Mohammed Moosa Rowther in respect of his property and is it valid and has it come into effect?
3. Whether the suit is barred for non-joinder of necessary parties?
4. Whether the judgment and decree passed by the lower court are liable to be set aside and the appeal is allowable?
5. To what relief the appellants are entitled for?
15. I have given anxious thoughts to the arguments advanced on either side.
Points 1,2 and 3:
The suit has been laid for partition and separate possession of the suit items 1 and 2 of properties, by the plaintiffs 1 to 5 in respect of their 35/96 share in the suit properties. The two items of suit properties were admittedly belonging to P.K.Moosa Rowther the father of the plaintiffs 1 to 5 and defendants 2 to 5 and husband of the 1st defendant. The defendants 6 to 12 are the tenants in the suit properties. According to the plaintiffs 1 to 5 the said Moosa Rowther died intestate leaving the widow 1st defendant and the sons namely defendants 3 to 5 and the daughters namely plaintiffs 1 to 5 and the 2nd defendant as his heirs and accordingly plaintiffs and the 2nd defendant are each entitled to 7/96 share and the 1st defendant widow is entitled for 1/8th share and the sons defendants 3 to 5 are each entitled to 14/96 share in the suit properties. However, the case of the defendants 4 and 5 would be that the father P.K.Moosa Rowther before his death had executed a Will in respect of the 1st item of the suit property on 12.02.1980 bequeathing the said property in favour of the defendants 3,5 and first son of 4th defendant and after his death the will came into force and therefore the plaintiffs are not entitled to the said property. Similarly the defendants 4 and 5 had raised another plea that item 2 of the suit properties was settled by father P.K.Moosa Rowther in favour of 5th defendant and two sons of 4th defendant represented by 1st defendant as guardian through Hiba gift deed dated 24.07.1981 and the said gift deed had also come into effect and therefore, the plaintiffs are not entitled for any partition in respect of item 2 of the suit property also.
The lower court had considered their pleas and had come to the conclusion that the defendants have proved that the father P.K.Moosa Rowther had executed a Will in Ex.B.1 in respect of item 1 of the suit properties and also executed Ex.B.2 Hiba gift deed and they came into effect and accordingly the lower court dismissed the suit. The plea of the defendants that the sons of 4th defendant who is a legatee of the will and the sons of 4th defendant the donees along with D5 in respect of the Hiba gift deed were not impleaded as parties and since they are necessary parties who were not impleaded, the suit was barred for non-joinder of necessary parties and is liable to be dismissed on that score. The said plea of the defendants 4 and 5 was not accepted by the lower court and the finding was given against them that the suit was found in order.
According to the submission made on behalf of the appellant that the will dated 12.02.1980 produced in Ex.B.1 was not a valid document and the attestation and execution was not proved in accordance with law and even if it is true, the said will would bind 1/3rd of the estate of the testator and the lower court had come to a conclusion that the will is valid in respect of the whole of the property and had dismissed the suit which is directly against Mohamedan Law. It has been brought to the notice of this court that a judgment reported in 2000 (IV) CTC 454 in between Sulaika Bivi and six others vs. Rameeza Bivi and 10 others for the proposition that in Mohamedan Law, if more than 1/3rd of testator’s estate is bequeathed the consent of the heirs of the testator has to be obtained after the death of the testator. The relevant passage would run as follows:
“20. ….under MohamedanLaw, it is well settled that a Mohamedan can will away only to an extent of one-third of his estate and not beyond, and every Muslim who is sane and rational is entitled to make a will. When a Muslim dies, his debts and funeral expenses are to be paid first and thereafter out of the residue, only one-third can be disposed of by the Will. Whether the bequests exceeding the bequeathable third, will take effect without the consent of the heirs, depends upon the sect such as Shafi, Hanafi, etc., to which the concerned Muslim belongs. As to whether the consent should be obtained after the death of the testator or before the death ofthe testator depends upon the sect. As far as those persons who belong to the Hanafi sect, it is certain that such consent must be obtained after the death of the testator depends upon the sect. As far as those persons who belong to the Hanafi sect, it is certain that such consent must be obtained after the death of the testator. Reference can be had to Tyabji’s book of Mohamedan Law, Paragraph 579 C. It is also well settled that where the bequest taken in the aggregate exceed the bequeathable third and the heirs do not consent, in Hanafi Law, bequest abate rateably.”
For the similar view yet another judgment of this court reported in (2001) 3 M.L.J.141 in between Noorunissa alias Pichamma vs. Rahaman Bi and others. The relevant passage would run as follows:
“14. In support of the above said views that the testator or testatrix cannot bequeath more than on-third share of his own assets the following legal positions are taken into consideration:
(i) In Chapter XXIII of Mohammadan Law of Wills Second Edition 1965, by T.R.Gopalakrishnan, under the head “Limits of testamentary poser in Mohammadan Law, it has been commented that the power of Mohammadan to dispose of by Will is circumscribed in two ways and the first limit is to the extent. A Mohammadan can validly bequeath only one third of his net assets, when there are heirs. This rule is based on a tradition of the prophet and the courts in India have enforced the rule from early times. The object of this rule is to protect the rights of the heirs and where there is no heirs and when all the heirs agree and give their consent the one-third limit may be exceeded. While the rule is that a muslim can bequeath only one third of his assets, a bequest in excess of one third is rendered valid by the consent of the heirs whose rights are infringed thereby or where there are no heirs at all.”
On a careful perusal the aforesaid principles laid down in the judgments of this court it could be understood that they would go a long way to show that for enforcing the will executed by a Mohammedan which is more than 1/3rd of the whole, the consent of the heirs of the testator after his death shall be obtained. The said consent is a mandatory one and therefore the lower court ought to have satisfied and come to a conclusion that the other legal heirs have given their consent for the said will by admission, if any in their evidence. P.W.1 the 3rd plaintiff knew about the will and Hiba that they talked compromise with the brothers. The said knowledge over the Will will not in anyway lead to any consent to the bequest made in the Will. Giving any implied consent by his act admitting the Will in anyone of the proceedings or by admitting the will to any person would not amount to giving consent to the said Will. But the evidence of P.W.1 would go to show that she was not admitting the execution of the will itself even if it is taken that her consent is true as held by the lower court it will not tantamount to give consent of the other plaintiffs 1 to 4,5 and 1st and 2nd defendant. The consent to be given by other heirs must be clear and unequivocal. In the aforesaid circumstances the conclusion reached by the lower court that the other heirs have given their consent after the death of the testator in respect of the bequests made in Ex.B.1, is erroneous.
It is also brought to the notice of the court that Mohamedan cannot bequeath properties in favour of any of his heirs. However in Ex.B.1 Will it has been bequeathed in favour of defendants 3 and 5 alongwith first son of 4th defendant. The defendants 3 and 5 who were already legal heirs cannot be bequeathed the beneficiaries of the said Will said to have been executed by the testator.
As regards the truth and genuiness of the Will when we peruse the evidence of D.W.1 the attester of the Will he would promptly speak about the attestation of P.K.Moosa Rowther was in a sound and disposing state of mind at the time of execution of the will. Nothing was elicited in his cross examination any thing contra nor it was impossible for R.P.K.Moosa Rowther to execute the Will at the time of signing the will. Therefore, the proof of the will was perfectly done by the plaintiff’s in accordance with Sec.63 of the Indian Succession Act and 68 of the Indian Evidence Act. However, the will EX.B.1 would be valid only to an extent of 1/3rd of item 1 of the suit property and the bequest made to defendants 3 and 5 are invalid in accordance with law. When we approach the said issue that the Will is true and genuine we could see that the only bequest in favour of the son of 4th defendant alone is valid. Therefore, the first son of the 4th defendant is alone entitled to the bequest made to him from the 1/3rd of the item 1 of the property bequeathed under Ex.B.1.
So far as item 2 of the suit property is concerned it could be seen from the evidence that D.W.2 and 3 who were examined for the purpose of proving the said document, that Ex.B.2 is a gift deed and the attesters have spoken promptly about the attestation and the execution of said gift deed by P.K.Moosa Rowther and therefore we see that the said gift under Ex.B2 was also proved through their evidence. However it has been seen in the document Ex.B.2 as follows:
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According to the said recitals in the said document Ex.B.2 the title to the said property (i.e) item 2 of the suit property has been postponed after life time of P.K.Moosa Rowther and he had also not parted with possession of the property but has retained the possession alongwith said lessee. In the said circumstances the judgment of Hon’ble Apex court reported in AIR 1995 SC 1205 in between Mahboob Sahab v. Syed Ismail and Others the relevant guiding lines would be helpful and are running thus:
It would thus be clear that though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act; a gift to be complete there should be a declaration of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. No evidence has been adduced to establish declaration of the gift, acceptance of the gift by or on behalf of the minor or delivery of possession or taking possession of who had accepted the gift actually or constructively. Admittedly he was in possession and enjoyment of the property till it was sold to the appellant.”
The aforesaid judgment would go to show that the donor should not be in possession of the gifted property after it has been effected by the way of gift. As far as this case is concerned the recitals of Ex.B.2 would go a long way to show that the donor and lessee were possession and enjoyment of item 2 of the property after execution of the said ‘Hiba’ gift deed. It would further promptly show that the possession was not parted by the donor and the recitals there in would further disclose that the right over the property was not immediately divested from the donor. Therefore, it cannot be considered as a valid gift deed. On the other hand the lower court had come to a conclusion that the said gift was a valid one and was enforceable as a gift deed is not permissible in law.
It was stressed by the learned senior counsel on behalf of the respondents 4 and 5 that the non-joinder of parties is a important one and it can be raised at any time and therefore, the suit filed by the plaintiffs without impleading the persons interested in the property cannot be sustained, for the proposition laid down in the judgment of this court reported in 100 L.W. 486 in between A. Ramachandra Pillai v. Valliammal (died). The relevant portion would run as follows:
“7…… We are accordingly of the view that the finding of the learned Subordinate Judge on issue No.10 holding that the suit is not bad for non-joinder of Nagarathinam’s heirs is unsound and liable to be set aside. Accordingly, we hold that the suit is liable to be dismissed for non-joinder of the heirs of Nagarathinam”
Yet another judgment of this court reported in AIR 1997 Madras 226 in between Shanmugham and others vs. Saraswathi and others relied upon by the respondents 4 and 5 for that position of law:
” 9. There is no merit in the contentions. The question of non-joinder of necessary parties in a suit for partition can be raised at any time as it goes to the root of the matter. It is well settled that a suit for partition is not maintainable in the absence of some of the co-sharers.”
On a careful reading of the judgments cited, we could understand that the failure to implead the legal heirs of deceased person was found fatal to the case and failure to implead the co-sharer as a party to the suit has been found against the plaintiffs, in a suit for partition. This suit is also for partition and separate possession of the suit property. But for the Will and the gift deed the legal heirs of Moosa Rowther namely the plaintiffs 1 to 5, defendants 1 to 5 were all on record. The contention was that the legatee of item 1 of the suit property and the settlee of the item 2 of the suit properties were not made as parties. As far as the suit is concerned the non-joinder of a co-sharer or co-owners are found to be fatal, the lower court had come to a conclusion and gave a finding to the effect that the non-joinder of the first son of 4th defendant and the sons of 4th defendant as legatee and donees Ex.B.1 and B.2 were not necessary parties to the suit and the suit is not bad for non-joinder of necessary parties. Against the said finding the respondents 4 and 5 did not prefer any cross objection. Therefore, the said principle laid down by this court in the aforesaid judgments are applicable to the facts of this case. It is also not germane for this court to find that the suit is bad for non-joinder of parties. The said parties necessary to the suit were not legal heirs of the said P.K.Moosa Rowther, but for the Will Ex.B.1 and the ‘Hiba gift’ deed Ex.B.2. Therefore, this court is of the view that the ‘Hiba gift’ deed executed by Moosa Rowther in respect of item 2 of the suit property is not valid and the will dated 12.02.1980 in Ex.B1 was valid to an extent of 1/3rd, partition of item 1 of the suit property and that too in favour of the non-heir namely the son of 4th defendant and it is not valid for defendants 3 and 5. Accordingly the remaining 2/3rd share of 1st item of the suit property and the entire 2nd item of the suit property are liable for partition and separate possession as sought for by the plaintiffs. The plaintiffs are entitled to 7/96 share each out of 2/3rd share of item 1 suit property and in the entire 2nd item of the suit properties. Accordingly all the three points are decided against the respondents 4 and 5.
In view of the findings reached in the previous points that the plaintiffs 1 to 5 are entitled to 7/96 share in the 2/3rd of item 1 and entire item 2 of the suit properties the judgment and decree of the lower court dismissing the claim of the plaintiffs are liable to be set aside and the suit filed by the plaintiffs before the lower court for partition and separate possession of the suit properties is preliminarily decreed to that extent. This point is answered accordingly.
As per discussion held above, the judgment and decree of the lower court are set aside and the appeal is allowed and the suit filed by the plaintiffs before the lower court is preliminarily decreed to an extent of 2/3rd share of the item 1 and the entire item 2 of the suit properties. Since the parties to the suit and appeal are closely related to each other they are directed to bear their respective costs.
The Subordinate Judge,
A.S.No.139 of 1996