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Hiba -Amongst the Ismaili school of the Shia sect a gift made during death-bed illness by a person is not valid to any extent, when it is made to one of more of several heirs to the exclusion of other legal heirs. On this point, the Shia school of law lays down, the same rule as that of the Hanafi law. 29. In the decision Saira bai w/oAsgar Hussain vs. S.S.Joshi and another reported in AIR 1960 Madhya Pradesh 260 it has been held that under Mohammedan Law, merely because a gift deed has been registered, the same cannot dispense with delivery of possession, which is one of the essential requirements of a valid gift under Mohammedan Law. 30. It is not in dispute that under Mohammedan Law, a gift made during death-bed illness (Marzur muth) is not valid, when it is made to one of several heirs to the exclusion of other heirs. Even in AIR 1936 Mds. 432 (cited supra), the same has been made clear. Even if the gift is given, by way of a registered document, under Mohammedan Law, for a valid gift, delivery of possession is mandatory, which cannot be dispensed with. 31. Therefore, in the light of the decisions referred above, I am of the view that Ex.B2, Settlement Deed had been executed while Abdul Raheem was in his death-bed, counting his days. There is no implied or expressed acceptance of Ex.B2 by the first respondent and the extend of possession and enjoyment of the first item of property by the appellant and the first respondent, would also show that the settlement deed, Ex.B2, has not been acted upon, prior to the death of late Abdul Raheem or subsequently

IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 05.03.2008
CORAM :
THE HONBLE MR. JUSTICE S.TAMILVANAN
A.S.No.618 of 1996

A.R. Abdul Latheef … Appellant/Plaintiff

vs.
1.A.R.Mohammed Iliyas
2.Fathima Bibi
3.Mumtaz Begum
4.Karur Vysya Bank,
rep. by its Manager, Peria Kadai Street,
Anamalai,
Pollachi Taluk. … Respondents/D-1 to 4
Appeal is filed against the Judgment and Decree dated 30.09.1994 made in O.S.No.198 of 1990 on the file of the Subordinate Judge, Udumalpet.
For Appellant : Mr.C.R.Prasanna
For RR 1 to 3 : Mr.A.S.Vijaya Raghavan
For R4 : Mr.Udayakumar

– – – – –
JUDGMENT
This appeal is directed against the judgment and decree dated 30.09.1994 made in O.S.No.198 of 1990 on the file of Sub Court, Udumalpet.

2. The appellant herein was the plaintiff in the suit before the Trial Court and the suit was filed for partition of the schedule mentioned properties of the plaint.

3. It is an admitted fact that the appellant/plaintiff and the first respondent/first defendant are brothers and also sons of one Abdul Raheem. The second respondent is the wife and the third respondent is daughter of the said Abdul Raheem, who died on 07.04.1990.

4. According to the appellant/plaintiff, the said Abdul Raheem died intestate leaving the schedule of properties, described in the plaint. Though the respondents 1 to 3 have admitted their relationship and the relationship of the appellant with the deceased Abdul Raheem, they have alleged in the written statement that late Abdul Raheem had executed two settlement deeds marked as Exs.B.1 and B.2 in favour of the first respondent. They have also disputed the existence of the properties described as item Nos.3 to 6 in the schedule of property. It is seen that item No.3 is stated as a vacant site of 9 cents in Anamalai Village, without furnishing any survey number, four boundaries and other details. Similarly, item No.4 is stated as Jewels and Cash at Karur Vysya Bank, belong to the family, without furnishing details and valuation of the same. Item No.5 is stated as household articles to the value of Rs.20,000/- without any description or details. Item No.6 is stated as Cattle, Bullocks, Carts to the value of Rs.30,000/- for which also there is no details available in the schedule of properties. According to the respondents 1 to 3, properties stated as item Nos.3 to 6 are not in existence. The Trial Court has also held on the basis of the evidence available on record that the aforesaid properties are not in existence for partition.

5. In this appeal, it is clear that item No.1 is a land measuring 3.25 acres in S.F.No.659, Anamalai Village, Pollachi Taluk, Item No.2 is a house bearing Door No.11/34, Sahib Rowther Street, Anamalai Village, Pollachi Taluk. As per the impugned judgment, the Trial Court held that in the first item of property measuring about 3.25 acres of land, the first appellant is entitled to partition and separate possession of 14/40 shares only in 2.25 acres of land. The trial court granted preliminary decree for partition, for 14/40 shares in 2.25 acres of land and with regard to the other item of properties described in the schedule, the suit was dismissed. Aggrieved by the judgment and decree, the plaintiff therein has preferred this appeal.
6. According to the learned counsel for the appellant, the settlement deeds Exs.B.1 and B.2 are not legally sustainable on the ground that the settlement deeds were executed by late Abdul Raheem, during Marz-ul-Maut, while he was in the death-bed. He has further contended that as per Mohammedan Law, when a person is in the death-bed, executing gift settlement deed (Hiba), it will bind only 1/3 of properties, after discharging liabilities.
7. Mr.C.R.Prasanna, learned counsel appearing for the appellant has further submitted that under the Islamic Law, for a valid gift settlement, three essential factors are required to complete a gift, namely declaration, acceptance and delivery of possession of the gifted property. In the instant case, according to him, there is no evidence to make the gift complete and there is no evidence for the acceptance and delivery of possession of the gifted property, since the first respondent was admittedly not present, while the deceased Abdul Raheem was executing the settlement deeds Exs.B.1 and B.2 and that there is no averments available in the settlement deeds for the acceptance of the gift and that delivery of possession was also not given during the life time of late Abdul Raheem. Therefore, according to the learned counsel for the appellant, the settlement deeds Exs.B.1 and b.2 were not acted upon.

8. The appellant has raised the plea that the possession of the gifted properties were only in the possession of the donor till the date of his death, on 07.04.1990. Ex.X.1 is the carbon copy of the House Tax Receipt available in the receipt book and Ex.X.2 is the House Tax Demand Register the said documents were received from the Municipal Authorities. According to the learned counsel for the appellant, the respondent had failed to establish the alleged expenses incurred by him for the treatment of late Abdul Raheem and Exs.B11 to B14 are only created documents for the purpose of the suit.

9. The appellant as P.W.1 has deposed in his evidence that he was with his father Abdul Raheem till he died on 07.04.1990 and that he was in possession and enjoyment of 2.25 acres of land belonged to his father and the other properties were in the joined possession and enjoyment of the appellant and the respondents 1 to 3 and therefore, he is entitled to 14/40 shares in said properties.

10. It is seen that the following issues were framed by the Trial Court.

(1) Whether the gift settlement deeds(Heba) dated 24.07.1997 and 02.11.1989 were obtained by the first respondent/D1 under threat and coarsen?

(2) Whether the settlement deeds dated 24.07.1997 and 02.11.1989 were acted upon;
(3) Whether the appellant was entitled to permanent injunction as prayed for?
(4) What relief the plaintiff/appellant is entitled to?

In the schedule of properties the appellant / plaintiff has stated six items of properties and for the third item of the suit property, a vacant site measuring 9 cents, at Anamalai Village, Pollachi Taluk no survey number, four boundaries and other descriptions have been given. Similarly for the alleged fourth item, jewels and cash at Karur Vysya Bank, Anamalai Branch, account number of the Bank and other details were not given. Item number five has been stated as house hold articles worth about Rs.20,000/- without any details. Item number six of the schedule of properties, is Carts, Bullocks, Cattle etc., to the value of Rs.30,000/-. As found by the Trial Court, there is no evidence available to establish the existence of the aforesaid properties.

11. In the written statement filed by the defendants 1 to 3 the existence of item No.3 to 6 in the schedule of properties has been denied. As there is no positive evidence for the availability of the aforesaid properties, this Court is of the view that the Trial Court has rightly rejected the claim of the appellant with regard to items 3 to 6 of schedule of properties. Both the learned counsel, during the course of arguments also placed their reliance only with reference to items Nos.1 and 2 of the schedule of properties, in this appeal. As per the finding of the Trial Court, the appellant/plaintiff is entitled to 14/40 share only in 2.25 acres of land in S.No.659 in Anamalai Village, Pollachi Taluk instead of 14/40 share in the total extend of 3.25 acres in the said survey number. The second item of property, is a residential house bearing D.No.11/34, Sahib Rowther Street, Anamalai Village of Pollachi Taluk. Taking into consideration of the gift settlement deeds, Exs.B1 and B2 executed by late Abdul Raheem, in favour of the first respondent the claim of 14/40 share by the appellant was negatived by the Trial Court, except the share in 2.25 acres of land in S.No.659. Aggrieved by which this appeal has been preferred by the appellant.

12. Mr.C.R.Prasanna, learned counsel appearing for the appellant submits that Exs.B1 and B2 gift deeds alleged to have been executed by Abdul Raheem on different dates in favour of the first respondent are not valid documents as per Mohammedan law and therefore, the first respondent cannot claim any right over and above his 14/40 share in the first and second items of the suit properties.

13. Per contra, Mr.A.S.Vijaya Raghavan, learned counsel appearing for the respondents 1 to 3 submitted that Exs.B1 and B2 are valid gift settlement deeds under the Mohammedan law and hence, the appellant is not entitled to any share in the property, gifted to the first respondent by way of Exs.B1 & B2.

14. The points for determination in this appeal are:
1)Whether the appellant/plaintiff is entitled to 14/40 shares in the first item of land, measuring 3.25 acres in S.F.No.659, Anamalai Village and in the second item, house bearing D.No.11/34, Sahib Rowther Street, Anamalai Village, Pollachi Taluk as claimed by him.
2) Whether the appeal has to be allowed?
Points 1 & 2:
It is an admitted fact that late E.Abdul Raheem owned 1 & 2 items of property, land measuring 3.25 acres in S.F.No.659 and the house bearing D.No.11/34 Rawther Street, Anamalai Village, Pollachi Taluk. Similarly it is not in dispute that the appellant and the first respondent are the sons of late E.Abdul Raheem, the second and third respondent are respectively, wife and daughter of late Abdul Raheem.

15.Mr.A.S.Vijaya Raghavan, learned counsel appearing for the respondents 1 to 3 submitted that though the appellant is the elder son of late E.Abdul Raheem, he was leading a wayward life and also left the family and lived with his uncle separately for about 13 years and that is why is father Abdul Raheem, by Ex.B1,Gift Settlement Deed dated 24.06.1987, executed his residential house, second item of the property in favour of the first respondent herein and as per Ex.B2, Gift Settlement Deed (Hiba), out of 3.25 acres of land in S.F.No.659, Anamalai Village, the first item of property, one acre was gifted to the first respondent and therefore the appellant is entitled to get only 14/40 share in the remaining 2.25 acres of land in S.F.No.659. Learned counsel appearing for the respondents 1 to 3 further submitted that late E.Abdul Raheem had been a heart patient and for his treatment the respondents 1 to 3 had spent nearly Rs.50,000/-.

16. According to the learned counsel for the appellant, the appellant was also living with his father Abdul Raheem and shared the medical expenses of his father. However, the first respondent taking advantage of his father’s ill health has got Exs.B1 and B2, Settlement Deeds executed with the help of D.W.2, his close relative. According to him, under Mohammedan law, the aforesaid Gift Settlement Deeds are not legally valid documents. Further arguments advanced by the learned counsel for the appellant is that there was no delivery of possession of the property in favour of the first respondent, pursuant to the execution of the settlement deeds, Exs.B1 and B2. Hence, the aforesaid documents were not acted upon and it is admitted by the first respondent that he was not present while Exs.B1 and B2 were being executed by late Abdul Raheem. Therefore, there is no acceptance of Exs.B1 and B2 by the first respondent and the Gift Settlement Deeds have not come into existence. On the above grounds, the learned counsel for the appellant pleaded that the first respondent cannot claim exclusive right for one acre of land in the first item of property and also the second item of property, namely the residential houses by virtue of Exs.B1 and B2. In support of his contention he relied on the following decisions:

1.Noorunissa alias Pichamma vs. Rahaman Bi and others(2001(3)MLJ 141)

2.Inum Beevi vs. K.S.Syed Ahamed Kabir(died) and others (2001(1)MLJ 307)

3.N.A.Abdul Rahim and another vs. A.M.K.mARIAM Bibi and others (2002(1)MLJ 836)

4.Saira Bai vs. S.S.Joshi and another
(AIR 1960 MP 260)

5.Said Hassan vs. Shah Hussain (AIR 34 1947(Lahore) 272)

6.Sharof Ali Abdul Ali Shat vs. Safiaboo and others (AIR 1936 Madras 432)

17.The Division Bench of this Court in the decision reported in 2002(1) MLJ 839 has held that as per Mohammedan Law, even though gift(Hiba) can be made orally, there should be declaration of the gift by the donor; acceptance of the gift, expressly or impliedly, by or on behalf of the donee; and must be followed by delivery of possession of the gifted property by the donor to the donee.

18. This Court in the decision in Inum Beevi vs. K.S.Syed Ahamed Kabir(died) and others reported in 2001(1) MLJ 307 has clearly held as follows:

“Muslim Law requires three essential factors to complete a gift, declaration, acceptance and delivery. If there is no deliver, the defect cannot be cured even by valid registration. The declaration can be ascertained from the deed itself and the acceptance can also be seen from the deed itself, where the appellant has signed to signify the acceptance can also be seen from the deed itself, where the appellant has signed to signify the acceptance of her gift. It is also her evidence that she was informed that to sustain the gift she had to accept it and therefore, she affixed her signature but all this would come to naught if there is no delivery. The recital of the decision regarding delivery of possession raises an initial presumption. But this presumption is rebuttable as held in various decisions of the Supreme Court and this Court.”

19. The Division Bench of this Court in the decision in Noorunissa alias Pichamma vs. Rahaman Bi and others reported in 2001(3) MLJ 141 has held that:

“The principle laid down with regard to bequeathing of property of a Mohammedan would clearly go to show that a Mohammedan cannot bequeath more than one third of his property and even with regard to that one third he cannot bequeath it to his heirs. If the bequest is to an heir it can be validated by the consent of all the heirs after the death of the testator. It is also clear that bequest in excess of one third estate cannot take effect unless such bequest is consented by heirs after the death of the testator.”

20. According to the appellant, he is cultivating 2.25 acres of land directly out of 3.25 acres of land specified as first item and other properties are also in his joint possession and enjoyment. It is an admitted fact that Abdul Raheem died on 07.04.1990 only on 02.11.1989 and nearly six months prior to the date of his death the Gift Settlement Deed, Ex.B2(Heba) was executed by E.Abdul Raheem. The first respondent, as D.W.1 has admitted in his evidence that he did not inform anything about the suit settlement deeds Exs.B1 & B2, to his brother, the appellant herein and he did not know whether the appellant had knowledge about the settlement deeds, Exs.B1 and B2 or not.

21. It is seen that as per Ex.B1, Abdul Raheem had executed settlement deed dated 24.06.1987, whereby, gifted his residential house at D.No.11/34, Sahib Rawther Street, Anamalai Village, Pollachi Taluk. As per the averments of Ex.B1, Abdul Raheem had handed over the possession of the property to the first respondent on the date of the document. The house tax receipts dated 11.09.1991, paid in the name of the first respondent Mohammed Iliyas has been marked as Ex.B3 and as per Ex.X1, it is seen that property tax was paid for the same in the year 1989-90, only in the name of Abdul Raheem.

22. According to the learned counsel for the appellant, only subsequent to the date of death of Abdul Raheem the house tax was transferred in the name of the first respondent and therefore, Ex.B1 was not acted upon on the date of a death of Abdul Raheem.

23. The house tax receipt dated 25.02.1994 relating to the second item of property issued subsequently in the name of the first respondent has been marked as Ex.B4. The settlement deed, Ex.B1 relating to the residential house was executed by late Abdul Raheem on 24.07.1987. As found by the Court below the execution of the document has been proved by way of examining the attester to the document as D.W.2. Abdul Raheem died only on 07.04.1990 nearly two years and ten months after the execution of the Settlement Deed, Ex.B1. The respondents 2 & 3 respectively wife and daughter of Abdul Raheem having interest in the property and also direct knowledge about the possession and enjoyment of the house property have not disputed Exs.B1, Settlement Deed. According to P.W.2, Bill Collector, Anamalaui Village, till July 1990, the house tax was paid in the name of Abdul Raheem and copy of the demand register relating to the suit residential house was marked as Ex.X2 through him. It is seen that the house property was in the name of Abdul Raheem till his death and subsequently, the property was transferred in the name of the first respondent. After the death of Abdul Raheem, the first respondent is paying the property tax in his name which has been established by way of marking the tax receipts.

24. Under such circumstances, this Court is of the view that there is an implied acceptance of the gift under Ex.B1, by the first respondent and the same was acted upon. It cannot be construed that the Gift Deed Ex.B1 was executed by Abdul Raheem, while he was at his death-bed, since he died nearly two years and 10 months after executing Ex.B.1. Therefore,this Court is of the view that Ex.B1, Settlement Deed relating to the residential house, item No.2 in the plaint schedule, is perfectly valid and as such the appellant cannot claim any right in the said property.

25. The first item of property is an agriculture land of an extent of 3.25 acres in S.F.No.659, Analamai Village as per Ex.B2, dated 02.11.1989 out of the aforesaid extent, one acre of land is alleged to have been gifted in favour of the first respondent. The first respondent, who was examined as D.W.1 has admitted that late Abdul Raheem was suffering from heart ailment and he was also aware of his imminent death. Admittedly, Ex.B2, Settlement Deed was not executed along with Ex.B1, but only on 27.07.1987 nearly five months prior to his death, Abdul Raheem had executed the settlement deed, while he was suffering from heart ailment and also having faced his second heart attack. As per the evidence of the appellant, who was examined as D.W.1, in the first item of property, an agriculture land, he is cultivating 2.25 acres of land and his brother, the first respondent is cultivating only one acre. During the cross-examination, while he was questioned, it was suggested that after filling of the suit, he had encroached 1.25 acres of land and was cultivating the same, which was denied by the appellant.

26. As contended by the learned counsel for the respondent, the above suggestion by the respondent would make it clear that the first respondent is not cultivating the land by virtue of the settlement deed, Ex.B2. The first respondent who was examined as D.W.1, had also admitted that the appellant is in possession and enjoyment of 1 1/4acre of land by way of encroachment from the date of filing of the suit. Even as per his evidence, during the life time of his father the kist receipt for the aforesaid land was issued in the name of late Abdul Raheem. In the cross examination, the first respondent had categorically admitted that his father late Abdul Raheem had heart attack twice and he had the feeling that at any time he would be collapsed. Therefore, so far as the first item of property of 3.25 acre of land is concerned, it is clear that late Abdul Raheem had executed the settlement deed, while he was expecting his death due to the second time of his heart attack. There is no evidence to show that the possession of the said gifted land was entrusted to the first respondent by virtue of the settlement deed, Ex.B2, while Abdul Rahim was alive.

27. Under such circumstances, it cannot be construed that there was valid implied acceptance of the gift under Ex.B2 by the respondent, since ambition is different from acceptance. Though the first respondent had stated that he had spent nearly Rs.50,000/- for the medical expenses of his father late Abdul Raheem, there is no sufficient evidence to establish the same. Ex.B11 is only a hand written note book and as such a self-serving document, written by pall point pen, without any signature and the other documents marked as Ex.B14 series would also show that only a lesser amount has been spent towards the medical expenses of Abdul Raheem. During the cross-examination, it was suggested that the value of the property under Exs.B1 and B2 would be around Rs.6,00,000/- however, the same has been denied by the first respondent. Even considering the equity, after executing the residential house in favour of the first respondent, there could be no necessity for Abdul Raheem to execute one acre of land in the first item of property, in favour of the first respondent, so as to affect the right of his another son, the appellant herein.
28. As per the decision in Sharof Ali Abdul Ali Shat vs. Safiaboo and others reported in AIR 1936 Mds. 432, it has been held that Amongst the Ismaili school of the Shia sect a gift made during death-bed illness by a person is not valid to any extent, when it is made to one of more of several heirs to the exclusion of other legal heirs. On this point, the Shia school of law lays down, the same rule as that of the Hanafi law.

29. In the decision Saira bai w/oAsgar Hussain vs. S.S.Joshi and another reported in AIR 1960 Madhya Pradesh 260 it has been held that under Mohammedan Law, merely because a gift deed has been registered, the same cannot dispense with delivery of possession, which is one of the essential requirements of a valid gift under Mohammedan Law.

30. It is not in dispute that under Mohammedan Law, a gift made during death-bed illness (Marzur muth) is not valid, when it is made to one of several heirs to the exclusion of other heirs. Even in AIR 1936 Mds. 432 (cited supra), the same has been made clear. Even if the gift is given, by way of a registered document, under Mohammedan Law, for a valid gift, delivery of possession is mandatory, which cannot be dispensed with.

31. Therefore, in the light of the decisions referred above, I am of the view that Ex.B2, Settlement Deed had been executed while Abdul Raheem was in his death-bed, counting his days. There is no implied or expressed acceptance of Ex.B2 by the first respondent and the extend of possession and enjoyment of the first item of property by the appellant and the first respondent, would also show that the settlement deed, Ex.B2, has not been acted upon, prior to the death of late Abdul Raheem or subsequently. Therefore, in the first item of property, an extent of 3.25 acres of land, the appellant is entitled to claim 14/40 share, since Ex.B2, Settlement deed was not acted upon. Therefore, this Court is of the view that Ex.B2, is not a valid document under Mohammedan law.

31.In the result, the appeal is partly allowed. So far as the first item of property is concerned, the judgment and decree passed by the Court below is set aside and out of 3.25 acres of land in S.F.No.659, stated as first item of the suit property, the appellant/plaintiff is entitled to 14/40 share, for which preliminary decree for partition is passed. The impugned judgment and decree with reference to the second item of property namely the residential houses is concerned, the judgment and decree passed by the Court below is confirmed. However, both the parties are directed to bear their own costs.

05.03.2008
Index : Yes/
Internet : Yes/
Smi
To

1.The Subordinate Judge, Udumalpet
2.The Record Keeper, V.R.Section, High Court, Madras

S.TAMILVANAN, J.

Smi
Judgment in
A.S.No.618 of 1996

05.03.2008

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