Abdul Muthaliff and Others vs Ayisha Bibi and Others

Ramaprasada Rao, J.—Plaintiffs 2, 3 and 4 in Original Suit No. 2 of 1967 on the file of the Sub Court, Pudukkottai, are the Appellants. The head of a Muslim family was one A. Abdul Rahiman Rowther. He married four times. The first wife died about 38 years ago. The second wife died leaving no heirs. The third wife died leaving behind her the Plaintiffs 2, 3 and 4 as her children through Abdul Rahiman Rowther. The fourth Defendant is the fourth wife, and Defendants 5, 6, 7 and 8 are her children through Abdul Rahiman Rowther. Originally, the second wife filed the suit for partition and separate possession of her share in the properties of her husband. She died, and on her death without leaving heirs, Defendants 1, 2 and 3 have transposed themselves as Plaintiffs 4, 2 and 3 to the action, and they are continuing the same. The general case of the Plaintiffs is that Abdul Rahiman Rowther, who was very much financially involved, was purchasing properties in the names of third parties, and in fact, it was only in 1958, he got back such properties from his benamidars under exhibit B-6. Under this document exhibit B-6 dated 24th February, 1958, it is claimed that, Abdul Rahiman Rowther obtained all the properties which by then were held by one Ibrahim Rowther, and saw to it that the benamititle was totally extinguished. Afterwards, it is the common case of the parties that, Abdul Rahiman Rowther was gifting certain properties in favour of the fourth Defendant, he, by then having partitioned all his properties amongst his heirs and with their consent. It is now the common case of the Plaintiffs that under exhibit B-10, dated 4th November, 1963, Abdul Rahiman Rowther, Plaintiffs 2 and 3 and Defendants 4 to 8 effected a partition amongst themselves, where under each secured their share in the properties of Abdul Rahiman Rowther, and inter alia released in favour of the other sharer their rights in them. It may at once be stated that the fourth Plaintiff was not a party to this partition deed, since under exhibit B-8, the fourth Plaintiff obtained certain properties and released his right over the rest of the properties in favour of Abdul Rahiman Rowther, and there is not even a challenge in these proceedings regarding such release effected by the fourth Plaintiff in favour of Abdul Rahiman Rowther. After effecting a partition, with the consent of the heirs, of his properties, Abdul Rahiman Rowther executed a gift deed, exhibit B-15, dated 5th March 1966 in favour of the fourth Defendant. The Plaintiffs'' case is that the subject matter of the gift was almost the entirely of the properties which Abdul Rahiman Rowther obtained under the partition deed exhibit B-10 and some other properties as well. The main contention of the Plaintiffs is that this gift is a donatio mortis causa or a deathbed gift, and this cannot take effect beyond a third of the content of the disposition. Therefore, the Plaintiffs'' claim is that the remaining two-thirds of the gift under exhibit B-15 ought to be brought into the hotch-pot for purposes of being shared among the heirs of Abdul Rahiman Rowther. The further case of the Plaintiffs is that the fourth Defendant was already married when she married again Abdul Rahiman Rowther. Through her first husband, the fourth Defendant begot Defendants 9 and 11. The Plaintiffs would aver that the properties standing in the name of Defendants 9 and 11 as also the 10th Defendant, who is a stranger to the family, are all standing respectively benami in their name, and the real title in all such properties standing in the name of Defendants 9, 10 and 11 and as set out in the plaint, always vested in Abdul Rahiman Rowther, and therefore, those properties are also liable to be divided amongst the heirs of Abdul Rahiman Rowther after his death on 10th March 1966. Lastly, it is stated that notwithstanding the partition amongst all the available heirs of Abdul Rahiman Rowther including Abdul Rahiman Rowther himself, on 4th November 1963, under exhibit B-10, this deed of partition was never acted upon, and, therefore, exhibit B-10 has to be ignored and the rights of the sharers have to be worked out in accordance with the Muslim Law. The Plaintiffs incidentally question the status of the fourth Defendant, and would allege that the fourth Defendant is not the lawfully wedded wife of Abdul Rahiman Rowther. But, in this appeal, that challenge is not pursued. In fact, the court below found that the fourth Defendant lawfully married Abdul Rahiman Rowther, and that she has to be treated as his fourth wife.

The learned judgment into the question and found that the partition deed, exhibit B-10 is true, that the gift deed, exhibit B-15 is not a death-bed gift, and that the properties standing in the names of Defendants 9, 10 and 11 are their own, and the heirs of Abdul Rahiman Rowther are not entitled to any share therein. As against this, the Plaintiffs, 2, 3 and 4 have appealed.

We shall now take up the first contention that exhibit B-15 is a death-bed gift and that, therefore, it can act only within the prescribed limitations of the personal law of parties and cannot take effect in accordance with its tenor as set out in exhibit B-15. It is no doubt true that under exhibit B-15, Abdul Rahiman Rowther gifted away a major portion of his properties which he secured as his share under the partition deed exhibit B-10, besides including in the deed of gift certain other properties as well. The question is whether the gift under exhibit B-15 could be unequivocally termed as a death-bed gift. The death-bed gift to otherwise known as a gift made during marz-ul-maut has a peculiar signification in the personal law of Muslims. It cannot be said, as if it was automatic, that if death followed a gift, then it has to be characterized as a marz-ul-maut. The very essence of a gift marz-ul-maut appears to be that at the time when the donor executed the deed he must be conscious that he was going to die and malady which afflicted him would not spare him and it is in that awakening that he was gifting away his properties to his near and dear, excluding some of his heirs, who would otherwise be entitled to a share in the gifted properties in accordance with the personal law of the parties. An over-statement of a gift made during marz-ul-maut is unnecessary as it would be convenient to quote the well-known author, Mulla. In the Seventeenth Edition of Principles of Mahomedan Law, at page 134, the learned author says:

To constitute a malady marz-ul-maut, there must be (1) proximate danger of death, so that there is a preponderance of apprehension of death, (2) some degree of subjective apprehension of death in the mind of the sick person and (3) some external indicia, chief among watch would be in ability to attend to ordinary a vacations,

On a fair understanding of the essential ingredients of marz-ul-maut it is clear that if a person is ordinarily attending to his avocation, and cannot in the circumstances beside to be preponderously apprehensive of his death or subjectively satisfied about his end, and, if he cannot be characterized as a sick person, then the essential elements. which collectively constitute a gift as having been made during marz-ul-maut do not exist. What is urged before us by the learned Counsel for the Appellants is that under exhibit B-14 Abdul Rahiman Rowther settled only a small extent of land in favour of the fourth Defendant and that about a month later, he gifted away a large slice of the properties to her, and this by itself creates a suspicion that the donar was suffering from a malady which apparently is incurable as a result of which he entertained a reasonable apprehension that he was already in the clutches of death. This is a far-fetched contention. It is no doubt true. hat a few months before the execution of these gift deeds, Abdul Rahiman Rowther was in hospital for urinary trouble for which he was operated upon. The case of consumption or albuminuria, when there is no immediate apprehension of death has been held by Baillie as a malady which is not marz-ul-maut. A fortiori an urinary affection, which has been operated upon successfully and which made Abdul Rahiman Rowther to attend to his normal avocations cannot by any stretch of imagination be characterized as marz-ul-maut or a malady which has injected into the mind of Abdul Rahiman Rowther the fear of certain death very shortly. Again, there is the uncontradicted evidence that on the day prior to his death, Abdul Rahiman Rowther attended a civil Court in connection with a pending litigation. It is also brought out that it was Abdul Rahiman Rowther who went from his place of residence to the office of the Sub-Registrar which was 12 miles away from it, to cause the registration of the document exhibit B-15 on 5th March, 1966. These features which were brought to light in this case undoubtedly do not throw light upon a malady which was in Abdul Rahiman Rowther and of which he should be preponderously said to be apprehensive of. The normal inference is that before the execution of the gift deed, exhibit B-15, Abdul Rahiman Rowther was attending to his normal duties, particularly, to attend matters in Court to seek registration of documents of which he was the, executant, etc. We are, therefore, unable to accept the contention of the learned Counsel for the Appellants that under exhibit B-15, a gift was made during marz-ul-maut by Abdul Rahiman Rowther.

In fact, the decision cited by the learned Counsel for the Appellants in Bhoona Bi v. Gujar Bi AIR 1973 Mac. 154 , does not support him, MAHARAJAN, J., speaking for the Bench said,-

This whole some sense of evanescence of life, which if we interpret D.W. 3''s evidence properly, her husband must have had at the time of exhibit B-2, falls far short of the conditions of marz-ul-maut, to constitute which there must be, first a malady, which in all probability is likely to issue fatally, and second, a conscious apprehension in the mind of the patient of the imminence of death.

All the authors and the decision of Court lay accent upon the word patient. Obviously, therefore, there must at least be print facie evidence that the donar was patient in the medical sense. This probably is the main reason why, the learned author, and nay, all others also characterize such gifts as death-bed gifts. Some nexus must be thought of between the gift and the illness. It may not be necessary for the donor to be actually in bed. But the conditions must be such that reasonably it could be inferred that a person ought to have been in bed in such physical circumstances and that the pressure of that malady cannot permit him to look after to his normal avocations. These essential elements are absent in the instant case. The first contention of the learned Counsel for the Appellants that exhibit B-15 is a death-bed gift is untenable.

The second condition of the learned Counsel for the Appellants is based on the theory of benami. According to him, the properties standing in the name of Defendants 9, 10 and 11 should be deemed to be the properties of late Abdul Rahiman Rowther and they should also be brought into the hotch-pot for purposes of division amongst the available sharers. The tenth Defendant remained ex-parte and did not even file a written statement. But he chose to examine himself on the Plaintiffs, side as P. W. 6. The tenth Defendant is a stranger to the family. Even the title dead has not been produced, but in his testimony he would say that his father purchased the property and held the same benami for late Abdul Rahiman Rowther and that the consideration was paid only by the letter. It is always the accepted convention in law that the solemn recitals in a document have to prevail over the breezy testimony of interested witnesses. What prompted P. W.-6 to remain ex-parte without contesting the suit and to help the Plaintiffs at the time of trial is not very clear.

The next phase of the argument under this head is that the properties standing in the name of Defendants 9 and 11, who ere the sons of the fourth Defendant through her first husband, are also properties which have to be treated as the properties of Abdul Rahiman Rowther. Exhibits B-1 to B-3 are produced by Defendants 9 and 11. P. W.7, Who speaks about it, merely says through his hat that Defendants 9 and 11 are benamidars for Abdul Rahiman Rowther. There is no basis given by him for his story. P. W. 7 admit that his father sold the property to the ninth Defendant, but says that no consideration passed and the possession always was with late Abdul Rahiman Rowther. Such kind of witnesses can be procured in any number. In order to thwart the real intendment and the force of the recitals in a registered document, much more categorical and acceptable material is required. On the other hand, Defendants 9 and 11 examined as D.Ws. 2 and 3 assert their real title. Repeatedly, this Court has laid down many tests to prove that a property is held benami by one for the benefit of another. The title deeds always remained with the present holder of the property whose title is challenged, There is no evidence contrary to the recitals in the documents to prove that Abdul Rahiman Rowther paid the consideration. Above all, the parties, shrewd as they are, when they entered into the partition deed, exhibit B-10 on 4th November, 1963, deliberately omitted the properties standing in the name of the Defendants 9, 10 and 11. This is an acceptable indicia to hold that all the family members including the father treated these properties outside this sphere of partible properties. We ere unable to place any reliance upon the testimony of P. Ws. 6 and 7 who have been procured by the Plaintiffs to help their untenable claim. The trial court, therefore, rightly rejected the theory of benami and up-held the title of the properties under this head which vested by then in the Defendants 9 10 and 11. It, therefore, follows that the properties standing in the name of the above Defendants are not partible properties.

The last contention is that the petition, deed exhibit B-10, dated, 4th November 1963 has not been acted upon. For this purpose, reliance is placed upon the attitude of the father having sold certain properties, which were released in favour of his son under exhibit A-14. Reliance is also placed upon exhibit A 15 under which a demand notice was issued by the Taluk Supply Officer to Abdul Rahiman Row her instead of to Defendants 4 and 8 in whose favour the properties which were the subject matter of exhibit A-15 were allotted. It should, however, be noted that prior to the partition deed, exhibit B10 and even prior to the release executed by the fourth Plaintiff under exhibit B-8 the Defendants 2 and 3 (now the Plaintiffs 2 and 3) executed a release in favour of their father and others after taking certain properties to themselves. These releases are under exhibit B-7 and B-9. Exhibit B-7 and B-9 are not registered, though they deal with the immovable properties over Rs. 100 in value. There is the evidence of P. W. 8, the attester to exhibit B-7, that the release deeds were intended to defeat the provisions of the agricultural Income Tax Act and the Land Ceiling Act. It was also pointed out that they were formally executed in order to allay the fears of the Plaintiffs 2 and 3, who were also clamoring for separate possession of their share of the properties as was given to the fourth Plaintiff under exhibit B-8. Exhibit B-8 as already stated has not been challenged. From the conduct of the parties such as the sales under exhibit A-12 and A-14 it is clear that the unregistered release deeds exhibits B-7 and B-9 were only intended to be provisional. Not only for the reason that exhibit B-7 and B-9 were unregistered documents, but also for the reason that the parties themselves ignored the same, it cannot be said that exhibits B-7 and B-9 were real documents and were intended to be acted upon. But, on this basis, can it be held that the main partition deed exhibit B10 to which all the available sharers were parties and which came into existence long after exhibits B-7 and B-9 could ever be said to be not acted upon. One line of argument taken is with reference to the conduct of Abdul Rahiman Rowther himself. It is said that Abdul Rahiman Rowther kept the properties nominally in the name of one Ibrahim and Kadir Mohideen, and therefore it was usual for the family to take properties in the names of third parties or relatives and it is in this light the argument is pressed that exhibit B-10 is only a nominal unacceptable deed. This is a fallacious contention. In fact, Ibrahim and Kadir, Mohideen, at the appropriate times, released their rights in favour of the real owners. Under exhibit B-6, Ibrahim so released the properties which he was holding as early as 1958 in favour of Abdul Rahim Rowther. There was a concession in that deed that Ibrahim was holding the properties nominally for the benefit of the family as a whole. Even so, when Kadir Mohideen executed the sale deed in favour of Defendants 9 and 11, he conceded that the latter were the real owners. Therefore, it cannot be automatically pleaded and contended that for the reason that at some point of time, the properties of the family were in the names of third parties and they were holding them for the benefit of the family, it should be concluded as a matter of course that all documents entered into by one or the other of the parties to this litigation with or without Abdul Rahiman Rowther should automatically be held to be nominal documents. Even so, exhibit B 10, the partition deed, cannot for the above reason, be held to be an unenforceable and empty document. On the other hand, we notice that under exhibit B-17 to B-21 the Defendants 2 and 3 (now the Plaintiffs 2 and 3) sold the properties which they obtained under the partition deed exhibit 10 to third parties for valuable consideration. These salts are not challenged by any of the sharers. In order to establish the nominality of a transaction, there should be sufficient pleading and proof. No doubt, the necessary pleadings here, but the subject has not been established by proof. The mere communication of a Taluk Supply Officer under exhibit A-15, wherein Abdul Rahiman Rowther was treated as the apparent owner of the subject mentioned property, though the said properties were by then allotted to Defendants 4 to 8 in the partition deed, cannot be the basis to hold that exhibit B-10 was not acted upon. It is common knowledge that in spite of partition among the family members, may be Muslims or Hindus, no mutation is effected, so that in the public registers, the name of the original owner continues, though the property has been allotted to the other sharers in a real partition amongst them. It is in these sense, much reliance cannot be placed upon exhibit A-15.

Having regard to the general conduct of the parties and the way in which they have rightly ignored exhibit B-7 and B-9 at the time when the partition was effected under exhibit B-10 and having regard to the other surrounding circumstances and also for the reason that there is no material to avoid a pucca registered partition deed, we are unable to accept the contention of the learned Counsel for the Appellant that the partition deed was not acted upon.

One another circumstance may also be incidentally referred to. The parties are so careful as to eliminate and keep out properties which do not belong to the family. For instance, exhibit B-1 and B-3 relate to properties which were kept back by Defendants 9 and 11, who are the sons of the fourth Defendant by her first husband. Infect, as already touched upon by us, one Nilayampatti Kadir Mohideen who originally held the properties under exhibit B-37, transferred the same to Defendants 9 and 11 as they were the real owners. If really these properties belonged to Abdul Rahiman Rowther, the sharers in the family would not have kept quiet and would have included these properties also in the partition deed. This is not done. Considering all these factors, we hold that under exhibit B-10 a real partition was effected and there is therefore no necessity or occasion to disturb the finding of the Court below.

The appeal, therefore, fails and it is dismissed, but without costs.

Defendant 4 has filed a memorandum of cross objections against the finding of the Court below that the fourth Defendant has to account for a sum of Rs. 12,000. The next ground of attack of the cross-objector is that she has to account for the value of the jewels worth about Rs. 3,000 which were said to be in the house occupied by her and the deceased Abdul Rahiman Rowther.

In so far as the first objection of the cross-objector is concerned, there is an admission by the fourth Defendant as D.W. 1 that she had received a sum of Rs. 12,000 by sale of Annavasal properties which were transferred to her by the late Abdul Rahiman Rowther a month prior to his death. She however, claims that the properties were gifted to her. But there is no acceptable evidence for the same. The fact, however, remains that she admits the receipt of Rs. 12,000 and in the absence of proof that it was gifted to her valid by Abdul Rahiman Rowther, she is accountable for it. But then, the question remains whether she has to account wholly for the sum of Rs. 12,000. According to the fourth Defendant, she has spent large sums of money towards medical expenses of the late Abdul Rahiman Rowther and his funeral expenses. What amount she has spent and what could be the net amount available with her on the date of death of Abdul Rahiman Rowther are matters which have to be gone into and decided at the time of final decree. It is in this respect Mr. Rajagopalan, the learned Counsel for the cross-objectors says that the carteblanche direction by the Court below that fourth Defendant has to account for the sum of Rs. 12,000, as though the totality of the amount was available with her on the date of death of Abdul Rahiman Rowther is challenged. There is some reason behind this contention. Whilst therefore, we uphold the finding of the Court below that the fourth Defendant has to account for the sale proceeds which she admittedly received by the sale of Annavasallands and which according to her, was Rs. 12,000, it is open to her to establish in the final decree proceedings as to what amount was law fully spent out of it towards the medical and funeral expenses of her husband. It is only the net amount after deducting such amounts towards the above expenses that she should ultimately account for to the other sharers.

As regards the second objection, this is based on pure conjecture. The Plaintiff''s case is that their mother''s jewels should be deemed to be with the fourth Defendant, who is the fourth wife and it is in this behalf she is a accountable to a sum of Rs. 3,000 which according to them is the worth of such jewels. In order to make a party an accountable party, it has been repeatedly said that there should be a findings that the party against whom such an account is directed is accountable and it should also be made out by clear evidence as to what is the quantum of liability as well. Both the essential elements which would prompt the Court to direct an account taking are absent in this case. It cannot be presumed as a matter of course that since the first wife''s jewels are not available with the Plaintiffs 2 to 4, such jewels must have been in possession of the fourth wife of Abdul Rahiman Rowther. There must be some more acceptable evidence to show that the Plaintiffs'' mother''s jewels were handed over by Abdul Rahiman Rowther to the fourth Defendant as his fourth wife. The link is absent. Therefore, the question of accountability does not arise in this case. If the fourth Defendant is not accountable in that sense, to quantity such a liability to account, is a misconception. We therefore, set aside the judgment and decree of the lower Court as far as it directed the fourth Defendant to render accounts for the jewels of the mother of the Plaintiffs worth about Rs. 3,000 which were supposed to be in the house kept by her and the deceased Abdul Rahiman Rowther.

The memorandum of cross-objection is allowed to the extent indicated above, but without costs.

The receiver appointed in course of this appeal in Original Miscellaneous Petition Nos. 7208 of 1973 and 1294 of 1974 is discharged. It is represented to us that the party receiver was so appointed to take charge of the properties admittedly gifted by Abdul Rahiman Rowther to the fourth Defendant. As the fourth Defendant has succeeded both in the trial Court and before us, the receiver shall hand over possession of the rice mill, which is one of the properties which is the subject matter of exhibit B-15 to the fourth Defendant.