Abdul Latif vs Kurshid John Begum and 2 others

V. Kanagaraj, J.—This Appeal Suit is directed against the judgment and decree dated 21.1.1984 made in O.S.No. 337 of 1978 by the

Court of Subordinate Judge, Coimbatore thereby dismissing the suit without costs. Tracing the history of the case it comes to be known that the

appellant herein has filed the suit in forma pauparis for declaration that he is entitled to the suit schedule of properties and for recovery of

possession and for cancellation of the three settlement deeds all dated 15.6.1976 and for costs. On plaint averments such as that the defendants

are the children of late Zubida Begum, who is the daughter of his paternal aunt Aiyasha Bibi, to whom the suit properties originally belonged, which

she purchased out of the estate left behind by her mother Jainabi; that the same had been purchased by the plaintiffs father Khader Khan in the

name of the said Aiyasha Bibi: that as Khader Khan pre-deceased his mother Janibai, Aiyasha Bibi inherited the properties; that the said Aiyasha

Bibi also died on 28.8.1976; that taking advantage of the plaintiffs absence just prior to the death of Aiyasha Bibi, the defendants have obtained

the settlement deeds executed by Aiyasha Bibi in respect of the suit properties by coercion and fraud and in exercise of undue influence; that as per

the personal law of Sunni School of Muslims, to which the plaintiff belongs, he inherits the estate from Aiyasha Bibi exclusively and the defendants

do not have any right whatever on the said properties; that the three settlement deeds purport to convey the plaint A,B and C schedule of

properties to defendants 1 to 3 respectively; that the defendants have also forcibly entered into possession evicting the plaintiff and let out some of

the properties to the tenants and collecting rents therefor and in spite of a legal notice dated 30.8.1977, there was neither compliance nor any reply

by the defendants and hence the suit for the reliefs extracted supra.

In the written statement filed by the defendants, besides denying the allegations of the plaint in general, they would also specifically submit that

the plaintiff has no semblance of right in the suit properties; that the suit properties are in absolute ownership, possession and enjoyment of the

defendants; that it is false to allege that the suit properties were belonging to late Aiyasha Bibi, their grand-mother at the time of her death since

during her lifetime, she had settled the suit properties in their favour by means of settlement deeds giving life interest for them and absolute interest

devolving upon the children of defendants 2 and 3; that it is false to state that Aiyasha Bibi inherited the properties after the death of Jaina Bibi; that

Aiyasha Bibi acquired the title to the suit properties by means of a sale deed, paying the consideration and that the plaintiff did not attend even the

funeral of Aiyasha Bibi and Syed Nabi, the husband of Aiyasha Bibi, who died later. On such allegations, the defendants would pray to dismiss the

suit with exemplary costs.

Based on these pleadings by parties, the trial Court having framed three main and one additional issue, such as,

Whether the gift deed in favour of the defendants are valid and enforceable?

Whether the suit property has been correctly valued for the purpose of Court Fees and jurisdiction ?

To what reliefs the defendants 1 to 3 are entitled ?

Additional issue : 1. To what relief the plaintiff is entitled ?

would conduct a thorough trial into the facts and circumstances encircling the whole case, wherein on the part of the plaintiff, the plaintiff besides

examining himself as P. W. 1 would also examine another witness viz. S.M. Abu Sahib as P.W. 2 for oral evidence. On the part of the defendants,

the first defendant would enter into the box and depose to the effect of the defendants case. So far as the documentary evidence is concerned, six

documents would be marked on the part of the plaintiff as Exs. A. 1 to A. 6 and the number of documents marked on the part of the defendants is

three, as Exs.B.1 to B.3. Exs.A.1 to A.3 all dated 15.6.1976 are the settlement deeds executed by Aiyasha Bibi respectively in favour of the first,

third and second defendants, Ex.A4 dated 30.8.1977 is the copy of the legal notice issued by the plaintiff to the defendants, Exs.A.5 and A.6 are

the postal acknowledgments respectively signed by the second and first defendants both dated 31.8.1977. So far as the documents marked on the

part of the defendants is concerned, Ex.B.1 dated 3.12.1975 is the printed copy of judgment in O.S.No. 333 of 1974 on the file of the Court of

District Munsif, Coimbatore, Ex.B.2 dated 18.12.1975 is the original inam settlement deed executed by Aiyasha Bibi to Kursheed Begum and Ex.

B.3 dated 20.11.1934 is the original sale deed executed by Jan Bibi and another in favour of Aiyasha Bibi for Rs. 1500/-.

With these evidence placed on record, the trial Court, having discussed the merit of the case in application of the facts arid circumstances to the

evidence and appreciating the same in the manner expected by law, would arrive at the conclusion to dismiss the suit but without costs. It is only

aggrieved against the said judgment of the trial Court, the plaintiff has come forward to prefer the above appeal suit as indigent person on certain

grounds as brought forth in the memorandum of grounds of appeal.

During arguments, the Learned Counsel appearing on behalf of the appellant, having narrated the facts and circumstances as pleaded by parties

would contend that under Mohammedan Law, giving of life estate is unknown and if this proposition is accepted, then the settlement deeds

executed by Aiyasha Bibi under Exs. A. 1 to A.3 giving life estate to the defendants, have to be set aside; that if Aiyasha Bibi is taken to have died

intestate, the plaintiff would become entitled to the entire property, in law; that the lower Court held that it was not a Hiba, which is nothing but a

gift deed, but plaintiff says that it is unknown to Mahomedan Law and that the settlement has to be considered under the General Law and the

Contract Act.

At this juncture, the learned counsel for the appellant would cite two judgments for the proposition that life estate cannot be created under

Mahomedan Law and if it is done, it is invalid. The first judgment cited by the learned counsel for the appellant is one delivered by a learned single

Judge of this Court in Mrs. Hayara Bai v. Mohammed Adami Sait etc. reported in (1977) I M.L.J. 291 = AIR 1977 Madras 374=90 L.W.490

and the second judgment cited by the learned counsel for the appellant is also one delivered by another learned single judge of this Court in

Chandma bibi v. Sheik Mohamed Sahib & 3 Others reported in 1997- 1-L.W. 391.

So far as the first judgment cited above is concerned, the learned single Judge of this Court relying on a privy Council judgment delivered in

Amjad Khan v. Ashraf khan reported in AIR 1929 PC 149 = 30 L.W.91 held as follows:

If the document in terms creates only a life estate, there is no warrant to construe the same as one creating an absolute estate with a condition

against alienation, on the theory that life-estates by way of gift are unknown to Mohammedan Law. If such theory holds goods, under a document

creating a life-estate the donee would get nothing and not an absolute estate.

The learned single Judge would further hold:

It should be taken to be settled law that if in a Mohammadan gift, life-estate is created, it would take effect out of the usufruct. Therefore, in the

present case, the plaintiff having been granted only a life-estate it takes effect out of the usufruct. It cannot be construed as an absolute gift of the

corpus with an invalid condition attached to it.

In the second judgment cited by the learned counsel for the appellant, the learned single Judge of this Court has extracted from ""The Muslim

Law of India"" by Dr. Tahir Mahmood published in 1980, the settled general principles, which are given hereunder:

(i). in Muslim law Hiba is not the only form of gratuitous transfer of property; it accommodates also some other forms of such transfer (not

amounting to hiba):

(ii). such other forms of gratuitous transfer of property are not to be governed by all the rules regulating gifts amounting to hiba

(iii). an owner of property may transfer only some rights in it, independent of its corpus:

(iv). where an owner has gratuitously transferred only some limited rights in his property, it does not lie in the jurisdiction of the Courts to enlarge

this transfer into that of the corpus of that property:

(v). though an owner cannot transfer corpus of a property for a fixed duration, the usufruct (or any limited right short of ownership of the corpus)

may be transferred by way of gift:

(vi). the rules relating to delivery of possession and revocability, which apply to hiba. should ordinarily apply also to gifts not amounting to hiba:

(vii) limited rights in the property (short of its ownership) can be transferred not only by transfer inter vivos, this may be done also by a

testamentary disposition or by resource to the law of wakfs:

(viii) the intention of the donor is decisive; where on a construction of the gift deed it is clear beyond doubt that he made a conditional transfer of

the corpus, the condition will be void without affecting the gift, but where it appears that he wished to transfer some rights short of ownership of the

corpus, his intention should be given effect.

Extracting the above part and relying on the first judgment cited by the learned counsel for the appellant (A.I.R. 1977 Madras 374 = (1977)

I.M.L.J. 291), the learned single Judge held as follows :

... it is clear that the Muslim Law does not recognise a gift of life-estate and creation of life-estate. If a life-estate is created, at the most it can be

said that a right of enjoyment or right of usufruct is given to the donees and ownership is retained by the owner himself. Such a gift cannot be

enlarged, nor can it be contended that the gift is on the corpus with a condition.

With the above arguments, the learned counsel for the appellant would ultimately pray to allow the above appeal suit, setting aside the judgment

and decree of the trial Court.

In reply, the learned counsel appearing on behalf of the respondents would submit that the question of life estate arises only for Exs.A.2 and A.3

and so far as Ex.A.1 is concerned, it is a direct settlement. The learned counsel would cite the following from Ex.A.2 meaning that enjoying the

income (usufructs) alone.

The learned counsel would further argue that according to Mahomedan Law, there is no prohibition for creating a life estate regarding the usufructs

of the properties. To support the case of the defendants, the learned counsel for the respondents would cite from the the Nineteenth Edition of

''Mulla''s Principles of Mahomedan Law ''the commentaries for Life-estate and vested remainder,'' at pages 38 to 42, which are extracted

hereunder :

Life-estate and vested remainder: (1) Sunni Law: The Judicial Committee in Humeeda v. Budlum (1872) 17 W.R. 525 observed that the

creation of (such) a life estate does not seem to be consistent with Mahomedan usage and there ought to be very clear proof of so unusual a

transaction"" and in Abdul Gafur v. Nizamuddin (1892) 19 LA. 170 referred to ""life-rents"" as a kind of estate which does not appear to be known

to Mahomedan law"". The difficulty arises out of the mahomedan law of gift and does not appear to extend beyond cases of pure hiba whether inter

vivos or by Will. As explained in Chapter XI (of s.164 below) if a gift be made subject to a condition which derogates from the grant, the

condition is void, e.g., a partial restraint on alienation; but a condition which does not affect the corpus of the thing given is not within the rule e.g.

when there is a reservation of income to the donor or a gift of usufruct to another donee. In the Hedaya (489) the principle is applied to amrees.

(gift for life). The prophet approved of amrees but held the condition annexed to them by the grantor to be void. ""...the meaning of amree

moreover is nothing but a gift and a condition and the condition is invalid; but a gift is not rendered null by involving an invalid condition"".

Accordingly it was held in certain cases that a gift for life operates as an absolute gift (Nizamuddin v. Abdul Gufur (1888) 13 Bom. 264 Abdoola

v. Mahomed (1948) 75 I.A. (48) A.PC. 134. (1905) 7 Bom. L.R. 306)."" "" The Calcutta, Bombay, Nagpur and Travancore- Cochin High Courts

have held that a gift of a life interest is valid Bai Saroobai Vs. Hussein Somji, Achiruddin Ahmad v. Sakina Bewa (1946) 50 C.W.N. 59, 222 I.C.

585 (46) A.C. 288; Maitheen Bivi Umma v. Ithappiri Varkey (1956) Trav-C. 292 (56) A. Trav.-C 268; Anjumanara Begum v. Nawab

AsifKadar (1955) 2 Cal.109). The Chief Court of Oudh has held that the bequest of a life interest by will is invalid ( Naziruddin v. Khariat Ali

(1938) 172 I.C.384, (38) A.O.51). In Nawazish Ali Khan v. Ali Raja Khan ((1948) 75 I.A. 62 (48) A.P.C. 134), although a Shia case, the Privy

Council have made observations which are sufficiently ample to cover Sunni Cases. The effect of the decision is that a life estate as known to

English law cannot be created by hiba whether inter vivos or by Will. The question is always one of construction. In a case of gift to A for life and

thereafter to B, the Courts will presumably construe the gift as a gift of the corpus to B absolutely and of the usufruct of A for life. The gift,

however, to A life would be constructed as a gift of an interest to A, and the corpus would vest in the heirs.

(2) Family settlement: A life-estate may be created by an argument in the nature of a family settlement, whether such agreement is preceded by

litigation or not, but the creation of such a life-estate does not seem to be consistent with Mahomedan usage, and there ought to be very clear

proof of so unusual a transaction"" [Humeeda v. Budlun (1872) 17 W.R. 525]. Such an agreement is from its very nature a transaction for a

consideration, and it must be distinguished form a pure hiba or gift mentioned in sub-sec. (1) above. [Umjad Alii Khan v. Mohumdee Begum

(1867) 11 M.I.A. 517 at 548; Khwajeh Solehman v. Nawab Sir Salimullah (1022) 49 1.A. 153. 49 Cal. 820, 69 I.C. 138, (22)

A.PC.107;Jagdish Narain v. Bande Ali Mian (1939)20 P.L.T. 328, 183 I.C. 467, (39) A.P.406.].

Citing the above passages from the Mulla''s Principles of Mahomedan Law, the learned counsel for the respondents would conclude his argument

saying that there is absolutely no hindrance for granting the usufructs of the property in favour of a party in a settlement deed and it is not a bar nor

does it in any manner affect the characteristics of a gift under Mahomedan Law and would pray to dismiss the above Appeal suit.

In consideration of the pleadings by parties and having regard to the materials placed on record and upon hearing the learned counsel for both,

the only point that is to be answered in the above Appeal suit is, whether the life estate could be given in a gift settlement deed under the

Mahomedan Law so as to hold the life estate created under Exs.A.1 to A.3 valid?

So far as the lower Court is concerned, dealing with this legal point in para No.8 of its judgment and quoting the arguments of the learned

counsel for the defendants to the effect that the settlement deeds under Exs.A. 1 to A.3, which are in question in this suit, are not assumed to be a

Hiba in Mahomedan Law and would remark that it is not the stand of either party to the suit that it is a Hiba and hence so far as these settlement

deeds are concerned. Only the General Law and the Law of Contract would be attracted. The learned trial Judge further remarking that in the

circumstances, the donor herself has not called it as a Hiba and has negatived the argument advanced by the learned counsel for the plaintiff that a

life estate cannot be created in favour of the settlor''s husband and therefore would decide the question holding that Exs.A. 1 to A.3 are valid

documents and the same are binding on the plaintiff.

Even the judgments cited on the part of the learned counsel for both are specific to the effect that though there cannot be any reservations

regarding a Mahomedan settlement, there is no bar in giving the life estate in favour of the donees regarding the usufructs of the properties and that

it is now fully settled that a Muslim owner of the property while gifting its corpus to the donee may reserve for himself the right to receive his benefit

from any part of its usufructs and this principle was first established in 1861 by the Privy Council and has been applied in several cases at later

points of time but however, if the donor reserves the corpus of the gifted property for himself for land, the gift will be invalid. This is not the case of

reserving the usufructs for the donor herself so far as the case in hand is concerned, but such life estate has been created only in favour of the

defendants and hence there is absolutely no hindrance in creating such life interest even under Mahomedan Law and therefore it is safe to conclude

that in a Mohomedan gift, if life estate is created, it would take effect out of the usufruct and since the defendants are destined only to enjoy the

usufructs of the suit properties under Exs.A. 1 to A.3 settlement deeds, there is absolutely no bar for creating such a right under these deeds.

Therefore, this question is answered against the appellant and in favour of the respondents. Consequently, the appeal has to fail even so far as the

allegation of the plaintiff that Exs.A.1 to A.3 are created by the defendants by coercion and threat in exercise of undue influence to suit their

convenience, since the appellant has not established his contentions to the requirements of law and hence the lower Court has found this point also

against the plaintiff. Therefore, there is nothing left with for the plaintiff to gain in the suit as prayed for, projected and argued. In the above

circumstances of the exists for this Court to interfere with the judgment and decree passed by the lower Court nor is there any infirmity or

inconsistency that has crept into the judgment of the lower Court so as to warrant interference by this Court. Therefore, it is hereby concluded that

the interference sought to be made by the appellant into the well considered and well merited judgment of the lower Court is not only unnecessary

but unwarranted as well.

In result, the above appeal suit fails and the same is dismissed.

The judgment and decree dated 21.1.1984 made in O.S. No.337 of 1978 by the Court of Subordinate Judge, Coimbatore is hereby confirmed.

The appellant is directed to pay the Court Fee due both in the suit and the appeal.

However, in the circumstances of the case, there shall be no order as to costs.