Muthuirulan Servai vs Chan Bibi and others

Mohan, J.—The first defendant is the appellant before me. The short facts are follows:

The plaint schedule property originally belonged to one Mohammed Akbar Sahib. He had a wife by name Vazeer Bibi, three daughters (Plaintiffs 1

and 2 and 3rd defendant), and a son (2 defendant). Under Ex. B-9, dated 15th August, 1922, Mohammed Akbar, created an othi in favour of one

Palaniammal. Mohammad Akbar died in 1937. On his death, his widow, Vazeer Bibi became entitled to 5/40th share, while the plaintiffs to

14/40th share, the third defendant to 7/40th share, and the 2nd defendant to 14/40th share.

Nevertheless, Vazeer Bibi under Ex. B-8, dated 13th April, 1941, sold the equity of redemption in favour of the first defendant. On 2nd June,

1941, the first defendant redeemed the othi. Contending that pursuant to the sale by Vazeer Bibi, what passed on under Ex. B-8 was only the

5/40th or 1/8th share of their mother, and, therefore, the first defendant could only be a co-mortgagor and the plaintiffs will be entitled to redeem

their respective shares on payment of the proportionate mortgage amount the plaintiffs filed O.S. No. 458 of 1967 before the District Munsif of

Madurai Town.

In defence it was contended by the first defendant, that on 16th May, 1936, Mohammad Akbar made an oral gift in favour of his wife, Vazeer

Bibi, which was evidenced by Ex. B-10 of the same date, a letter which confirmed the said oral gift. Farther, there were several documents from

which it could easily be found that the oral gift was true. Pursuant to this oral gift, sales were also effected by Vazeer Bibi and one of the plaintiffs

had even attested one such sale deed. By reason of these transactions, the plaintiffs and the other claimants would be estopped from questioning

the sale transaction in favour of the first defendant. In any event the claim of the plaintiffs was barred by adverse possession.

On trial, the learned District Munsif upheld this contention of the defendant and dismissed the suit. Aggrieved by the same, A.S. No. 295 of

1969 was preferred by the plaintiffs to the learned Subordinate Judge of Madurai. The lower Appellate Court reversed the findings of the trial

court and passed a preliminary decree Hence, the present second appeal.

Mr. A. Sundaram Iyer, learned counsel for the appellant strenuously urged before me that the interpretation placed by the lower Appellate

Court on the terms of Ex. B-10 is wrong, and it is not a case of sale. According to him, to constitute a proper Hiba-bil-inaz the consideration

should have been actually bona fide paid. In support of this submission, the learned counsel relies on Khajooroenissa v. Rowshan Jahan ILR 2 Cal.

The mere fact that Ex. B-10, the letter (referred to by the lower court as Varthamanam letter) was not registered, could not mean that it

would not be admissible in evidence. Even putting aside that letter, there are a number of transactions like Exs. B-39, B-8, B-40, B-12, B-6, etc

from which, it will be clearly seen that pursuant to the oral gift, Vazeer Bibi was selling. One such sale, Ex. B-39, was attested by one of the

plaintiffs. From that it will clearly follow that she had not only the knowledge of the oral gift but also she stood by it. This would, in law, mean

estoppel by conduct, and the lower Appellate Court was wrong in holding that there must be a representation for estoppel. The learned counsel

places reliance on Sarat Chunder Dev v. Gopal Chunder Laha 20 Cal. 296, Muhammed Batcha Sahib v. Arunachalam Chettiar 49 M.L.J. 896.

Even otherwise in so far as the second defendant has signed in very many of these documents, including the sale under Ex. B-8, undoubtedly it

would constitute an estoppel as far as he is concerned. The admission by one of the co-owners would bind the other co-owners also. For this

submission, support is derived from Kowsulliah Sundari Dasi v. Mukta Sundari Dasi 11 Cal 588 and Brajendra Nath v. Kashi Bai AIR 1946

Patna. 177.

Mr. T.S. Ragavachari, learned counsel appearing for the plaintiffs submitted that Ex. B-10 is inadmissible for two reasons (1) it is not the

original, but only a copy of it. In so far as no explanation was forthcoming as to why it was not possible for the appellants to produce the original

and no evidence having been let in as to whether it was lost, the same is inadmissible. (2) Even otherwise, the terms of Ex. B-10 would constitute

Hiba-bill-iwaz in the nature of a sale. Mair constitutes consideration for a sale under Mohamedan Law as laid down in Vali v. Modin ILR 1952

Mad. 1010; 65 L.W. 320 (D.B.) and also rajunnissa Bibi Ammal v. Rahmath Bibi Ammal 1959-(I)-M.L.J. 221;72 L.W. 169 and in such a case,

the property being of a value more than Rs. 100/-, it should have been registered. The requirement under the Indian Stamp Act, 1899 cannot be

dispensed with and there cannot be any reception of secondary evidence on this score as laid down in Kesava Rao v. Venkata Subba Rao. 1972

(II)-M.L.J.-5 (S.C.) As regards estoppel, this is not a case falling under S.115 of the Evidence Act................It appears nowhere in the evidence

that any representation to the first defendant was made. It is too much to hold, that merely because the plaintiffs had marked one of it by a line in

support of the attestation, it cannot be presumed that the contents of the document, especially about the nature of oral gift; could be imputed to her,

more so when, admittedly she is a Purdanishin lady. There is no question of estoppel by conduct in this case, since about the suit transaction,

neither of the plaintiffs had any knowledge whatsoever. That being the position, the question that the admission by one co-owner is binding upon

the other co-owners does not arise here. The fact that the plaintiffs did not come forward earlier cannot be a ground to defeat the claim of the

plaintiffs who are seeking redemption only as against the co-mortgagors.

From the above, it will be clear that five points arise for my determination: (1) the nature of transaction covered by Ex. B-10 (2) the effect of

non-registration of Ex. B-10 and the document not conforming to the requirements of the Indian Stamp Act as also its admissibility as a piece of

Secondary evidence (3) estoppel by conduct, (4) admission by the second defendant, one of the co-owners, whether binding on the plaintiffs, and

(5) the question of adverse possession.

Hiba-bill-iwaz is defined in Mulla''a Mohamedant Law, 17th Edition (1972) at page 162, paragraph 168, as follows:

Hiba-bill-iwaz (Gift with exchange).

Hiba-bill-iwaz, as distinguished from a hiba or simple gift, is a gift for a consideration. It is in reality a sale, and has all the incidents of a contract of

sale. Accordingly possession is not required to complete the transfer as it is in the case of a hiba, and an undivided share (mushaa) in property

capable of division may be lawfully transferred by it, though this cannot be done in the case of a hiba. Two conditions, however, (must concur to

make the transaction valid, namely. (1) actual payment of consideration iwaz on the part of the donee, and (2) a bona fide (intention on the part of

the donor to divest himself in praesenti of the property and to confer it upon the donee.

In the instant case, a careful perusal of Ex. B-10 clearly goes to show that in order to discharge his obligation, which was fixed during the marriage

of Vazeer Bibi with Mahamed Akbar, he conveyed the immovable property mentioned thereunder in favour of the said Vazeer Bibi. As rightly held

by the Appellate Court, it partakes the nature of a conveyance for consideration, which is the distinguishing feature of a sale or Hiba-bill-iwaz. No

doubt the consideration is not mentioned in the document itself. But, a reading of Ex. B 39 shows the Mahr debt was Rs. 1000/- To the same

effect is the evidence of D.W.4, who says that ""Vazeer Bibi told that her Mahr amount was Rs. 1,000/- and I ascertained it and noted it."" Mahr,

being a valid consideration for a sale has been recognised under Mahomedan Law. This is clear from Vali v. Modin 11 Cal 588. In that case, the

question that arose was, one touching the validity of the oral transfer of the suit house by one Khasim Peern to his wife in consideration of her

dower debt. It was held that the preponderance of authority seems to be in favour of the view that such transaction is a sale within the meaning of

S. 54 of the T.P. Act and will not be valid unless accompanied by a registered document. This case clearly supports the respondents.

In Khajooroonissa v. Rowshan Jahan ILR 2 Cal. 184. It was held:

...............In order to make the deed valid in this view of the case, two conditions at all events must concur, viz., an actual payment of the

consideration on the part of the donee, and a bona fide intention on the part of the donor to divest himself in Praesenti of the property and to

confer it upon the donee. Undoubtedly, the adequacy of the consideration is not the question.

Turning to the requirement of the Stamp Act, it was laid down in Kesava Rao v. Venkata Subba Rao 1972-2 M.L.J. 5 (S.C.)

S. 35 of the Indian Stamp Act imposts a bar on the reception of any but the original instrument and forbids the reception of secondary evidence. S.

36 lifts that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to admissibility was taken at the

first stage. The decisions of different High Courts make it quite clear that the cause of the non-production of the original instrument is immaterialize

whether it was lost or whether it was destroyed or even if it was the allegation of the party seeking to prove its contents by alleging that the

document was suppressed by his opponent.

This ruling is a complete answer to the arguments of the appellant that Ex. B-10 could be looked into even though the original was not forthcoming,

since the original was retained by Vazeer Bibi, as seen from the recitals in Exs. B-39 and B-8.

I may also note that in the instant case, as rightly contended by Mr. T.S. Raghavachari, no attempt has been made, nor was any evidence let in

to show as to what had happened to the original whether it was lost or destroyed, and in such a case, the secondary evidence is inadmissible.

However, I am not resting my conclusion merely on that ground. Thus, it has to be necessarily held from Ex. B-10 that the oral gift cannot be

proved, assuming it to be a gift.

Regarding the conduct of the parties, no doubt, Ex. B-39 contains the attestation of the first plaintiff. The attestation mentions only that the

attestor had drawn in a line in token of attestation and Ex. B-39 relates to an entirely different property and not to the suit properly. No evidence

has been let in to show that the contents of the document were made known to the attestors, or they were aware of the contents. Therefore, it is

impossible to hold that by merely drawing the line not only the contents of the document relating to the sale, but also the contents of the

Varthamanam letter were known to the attestors. Having regard to these circumstances, there cannot be any estoppel.

The position is still worse if Ex. B.8 is looked at. Neither of the plaintiffs have anything to do with the transaction under Ex. B-8, which alone is

the material document, at far as the present case is concerned. Even the subsequent conduct after Ex. B-8 is not questioning the sale cannot be

urged against the plaintiffs, since, as I said above neither of the plaintiffs had anything to do with the sale in favour of the first defendant.

Both Sarat Chander Dev v. Gopal Chunder Laha 20 Cal. 296 and Muhammed Batchal Sahib v. Arunachalam Chettiar 49 M.L.J. 396 laid

down the general principles relating to estoppel by conduct. But, I am unable to see any such conduct in the instant case. Therefore, these rulings

have no application. The finding of the lower Appellant Court in this regard is entirely correct and I see no reason to differ from the same.

No doubt, the admissions made by the second defendant would bind him. Mr. Kothandarama Nainar was not able to make out any case to

show, as to how it would not be binding. What is urged on behalf of the appellant is that the admission by one of the co-owners would bind the

plaintiffs also, in support of which Kowsulliah Sundari Dasi v. Mukta Sundari Dasi 11 Cal. 588 and Brajendra Nath Ghosh and Others Vs. Sm.

Kashi Bai and Others, are relied on. As pointed out by the lower Appellate Court, the admission of the second defendant in Exs. B-13. B-14, B-

40 and B-47 recognising the conveyance under the Varthamanan letter do not contain any statement that the plaintiffs and the third defendant have

any interest in the suit property. In fact, the plaintiffs and the second and the third defendants have the same interest in the suit property. This apart,

Ex. B-10 itself, I have held to be inadmissible and in the absence of any registration, it could not constitute a valid sale, and, therefore, the

admissions under Exs. B-13, B-14, and B-10 and B-47 are of no help to the first defendant.

I have already held that by reason of drawing a line by way of attestation of Ex. B.39, knowledge relating to the gift cannot be attributed to the

plaintiffs. No doubt, the evidence of D.W. 4 would go to show that he was present at the same time. It has to be noted that the plaintiffs being

Purdanishin ladies, being illiterate, could not be attributed with the knowledge of the conveyance. In this view, I am unable to see any scope for the

application of either of these rulings, viz., Kowsulliah Sundari Dasi v. Mukta Sundari Dasi 11 Cal. 588 and Mt. Ramjhari Kuer and Others Vs.

Deyanand Singh and Others, .

Lastly, on the question of adverse possession, I am unable to see how this question could arise. The first defendant could, at best, by virtue of

his purchase under Ex. B-8, lay a claim to the 1/8 share of Vazeer Bibi, in which event, he would be a co-mortgagor and it will be open to the

non-redeeming co-mortgagors to seek redemption. In addition to this, Vazeer Bibi was throughout asserting her title to the property and when she

sold the suit property, the mortgagee was in possession. It is only subsequent to the purchase the first defendant redeemed the mortgage and

entered into possession. As such, there is not even an ouster. On a consideration of all the above, I hold that there are no merits in this second

appeal. Consequently, it will stand dismissed with costs. No leave.