Maimoon Bivi and Another vs O.A. Khajee Mohideen and Another

Natesan, J.—This is an appeal under the Letters Patent from the judgment of our learned brother Kailasam J. in a regular first appeal. The

suit is one for partition of the properties of a deceased Muhammad Ahmed Meeran who in March 1943, leaving as his heirs his widow Maimoon

Bivi, minor son Khaja Mohideen and minor daughter Mohideen Batharomal, filed by Khaja Mohideen after becoming a major, The widow, the

chief contestant in the suit, is the first defendant. The minor daughter of the deceased represented by her husband as guardian is the third

defendant. She became a major pendente lite. The suit properties comprise the plaint first and second schedule properties. The first schedule

properties were secured as the two-third share of the deceased Ahmed Meeran in his father''s estate under the decree in O.S. No. 329 of 1943

on the file of the District Munsif Court, Tirunelveli. The second schedule property stands in the name of the widow the first defendant, under a

purchase as per the original of Exhibit A-13, 13-3-1955. It is the case of the plaintiff that the second schedule property, though standing in the

name of the first defendant, has to be partitioned among the heirs of the deceased Ahmed Meeran, as the property was purchased in the name of

the first defendant with the surplus income from the first schedule properties for the benefit of all the heirs, There is no dispute as regards the first

schedule properties and the shares the parties are entitled to therein--the plaintiff to 14/24th share, the first defendant to a 3/24th share and the

daughter the third defendant to the remaining 7/24th share. The contest is only in respect of the second schedule property which the first defendant

claims to be an acquisition made by her for herself. The learned Subordinate Judge upheld the first defendant''s exclusive right to the second

schedule property and granted a preliminary decree for partition of the first schedule properties except item 9. On appeal to this Court, our learned

brother, Kailasam J., allowed the appeal upholding the plaintiffs claim for partition of the second schedule property also. The Letters Patent

Appeal is directed against the variation of the decree in respect of the second schedule property.

The short question for consideration is whether the second schedule property was acquired with the income from the first schedule properties as

an accretion to the common estate as pleaded by the plaintiff. The common case of the parties is that, after the death of her husband, the first

defendant along with her children was living in her father''s house and that her father was looking after the first schedule properties, He was

spending out of the income from the properties for the maintenance of the first defendant and her children as well as for education of the children. It

is an admitted fact that he was a well-to-do person. He died on 3-10-1955. It is the plaintiff''s case that the maternal grandfather purchased the

second schedule property with the surplus income from the first schedule properties. The first defendant would contend that she had funds of her

own, that she used to earn by doing yarn-winding, stitching and embroidery work, that her father also used to give her moneys, that she lent out the

moneys and after realising moneys lent, she purchased the secona schedule property.

To start with, certain principles have to be borne in mind while considering the claims made in this case and examining the evidence on record in

relation thereto. We are here concerned with a property acquired by a Muslim woman at a time when her husband''s estate was owned in common

by her along with other heirs, her children. Another important feature is that the common properties were in the management of her father, She was

an adult and the other co-heirs were minors. Under the Muham-madan Law, she was not the property guardian of the minors. Nor was the

maternal grandfather who was actually in management of the properties, guardian of the minors. He had assumed management of the family

properties, no doubt, for the benefit of the co-heirs. It is well established that, even in the case of a joint Hindu family where there is sufficient

nucleus, there is no presumption that property standing in the name of a female member of the family is joint family property. As pointed out in

Abdul Samad Khan Khiladar and Another Vs. Bibijan alias Hanifa Khathu and Others, , there is no provision in Muham-madan Law that the

acquisitions of the several members of a family are made for the benefit of the family jointly; and the principles and presumptions applicable to the

case of a Joint Hindu family are not applicable to a Muhammadan family. At the moment of his death, the estate of a deceased Muhammadan

devolves on his heirs and they take the estate as tenants-in-common in specific shares. The theory of representation is not recognised under the

Muhammadan Law and the interest of each heir is separate and distinct, As observed in (Syed) Abdul Huck and Others Vs. Seetamsetti Narayan

Naidu and Another, , children in a Muhammadan family are not co-owners in the sense that what is pur--chased by one person enures for the

benefit of another. In that case, the children of a deceased Muhammadan were minors at the time of his death and their paternal uncle who

managed the properties on their behalf purchased some property in the name of one of the minors. The contention that inasmuch as the property

was purchased in the name of a minor it must be taken to have been purchased for the benefit of the whole family, was rejected. But, as there was

evidence that some cash left by the deceased was utilised for the purchase, it was held that to the extent the amount was taken for the purchase

from the general estate of the minor in whose name the property was purchased had to give credit to the estate for the amount. It was said that

when accounts were taken the family would be entitled to debit against the per-son in whose name the property was purchased the amounts

utilised for the purchase, and that the fact that the property was purchased by him with money taken from the father''s estate would not make the

property the common property of the family. We may here usefully refer the following observations of ours in P.N. Venkatasubramania Iyer and

Others Vs. P.N. Easwara Iyer and Others, :

Amongst tenants-in-common where one tenant-in-common acquires property in his individual right with no intention of making it common

property, the property will not be divisible..... .As noticed in Kennedy v. De Trafford, 1897 AC 180, there is no fiduciary relation between

tenants-in-common or real estate as such. Nor can one tenant-in-common of real estate by leaving the management of tie property in the hands of

his co-tenant impose upon him an obligation of a fiduciary character. A co-sharer would continue to account for the rents and profits received by

him in excess of his share; but even if he fails to maintain separate account of his lawful share and is in possession of excess profits, the funds

collected by him do not get impressed with the character of joint funds. There is no trust in favour of the persons who have not Joined in the

acquisition of the profits or in investments."" As to Section 90 of the Trusts Act, for it to apply, it must be established that the party against whom

relief is sought availed himself of his position as co-owner and gained an advantage in derogation of the rights of other persons interested in the

property, or as representing all persons interested in the property gained an advantage. Then, of course, he must hold the advantage gained for the

benefit of the other persons interested in the property, but subject to their obligation to share the expenses incurred in acquiring the advantage.

In the present case, admittedly, the management of the common properties was not with the first defendant. The management was by the first

defendant''s father for the benefit of the first defendant and her children and the purchase was made in her name. To make the property acquired in

her name partible, it must be established that the property was purchased in her name as representative of the common estate. It cannot be said

that the Erst defendant had gained an advantage in derogation of her minor children, as she was not in management of the estate. The case of the

first defendant is that the funds of the joint family were not utilised for the purchase of the property and that it was out of her own earnings, to

which was also added moneys given to her by her father, that the property was purchased. True, if it is found that the purchase had been made by

the grandfather from out of the surplus in his hands taking the sale deed in the name of his daughter, the then adult co-owner of the properties, a

case for partition of the property between the co-owners may be held made out. But the burden in this respect is on the parry claiming that it is an

acquisition in the name of the first defendant for and as representative of the co-owners.

The plaintiff relied principally on the evidence of his maternal uncle, the brother of the first defendant who has given evidence as P.W, 2, and the

account book Exhibit A-2 on which our learned brother Kailasam J., rested his decision. Learned counsel for the plaintiff had to concede that, if

the account book Exhibit A-2, and the evidence of P.W, 2 are rejected, the plaintiff has no case for partition of the second schedule property. The

learned trial Judge who heard and saw the witness has rejected the oral evidence of P.W. 2, and, as regards the account book Exhibit A-2, he

concluded that Exhibit A-2 is not a genuine account book and that it was cooked up for the purpose of the suit, Mr. S. V. Venugopalachari,

counsel for the plaintiff, contended that the questions whether Exhibit A-2 is a genuine account or not or whether the evidence of P.W. 2 should bo

accepted or not are pure questions of fact, in respect of which this Court in Letters Patent appeal would not reassess the evidence. It is said that

the matter is now at the second appellate stage. We cannot agree. The appeal under Clause 15 Letters Patent is in the nature of rehearing of the

appeal. While there is a specific inhibition u/s 100, Civil P.C., against interference on facts in second appeal, there no such inhibition under Clause

15, Letters Patent. Clause 15 is differently word-ed from Section 100, Civil P.O., and the appeal before us is from a judgment in a regular appeal

u/s 96, Civil P. G., heard by a single Judge of this Court. Our atten-tion has not been drawn to any rule of law that a finding, arrived at by a single

Judge of the High Court in first appeal, is not open to be challenged on facts under clause 15 Letters Patent. Of course, in a Letters Patent Appeal,

this Court will give the utmost consideration to an inference of fact made by learned single Judge of this Court and will be hesitant to differ from the

same. But there are cases and cases and we are concerned with the reversal of finding of fact depending to an extent on the credibility of witnesses

assessed against by the trial Judge who heard and saw the witnesses. Having regard to this aspect, we cannot, as desired by learned counsel for

the plaintiff, at the outset refuse to re-examine the evidence ourselves. Only when there is no question as to the truthfulness of a witness and the

question is as to the proper inference to be drawn from truthful evidence, the original Court is in no better position to decide the matter than the

appellate Court.

(Their Lordships after discussing the evidence, oral and documentary, in paras 6 to 8, found themselves in entire agreement with the Subordinate

Judge that the acquisition of the second schedule property was for the exclusive benefit of the first defendant and not as representing the co-heirs,

and concluded.)

In the result, the Letters Patent Appeal is allowed and the decree and judgment of the trial Court in regard to the second schedule property are

restored. The parties will bear their respective costs in this appeal.