Smt. Subhadramma vs Anees Banu and Others

The legality and correctness of the judgment and decree passed by the learned Civil Judge (Senior Division) Bellary dated 29.03.2007 in O.S. No. 445/2004 is called in question in this appeal. For the sake of convenience, the parties will be referred to as per their status before the Court below.

The plaintiffs who are the children of the first defendant filed the suit for declaration to declare them that they are having absolute right, title and interest in respect of the suit schedule property and for consequential order of possession of the suit schedule property, after the demise of the first defendant who is their mother.

According to the plaint averments, the plaintiffs are the children of defendants 1 and 2, defendants 4 and 5 are the brothers of the plaintiffs. Their maternal grand father-Kasim]; Sab, who was the father of the first defendant was the full and absolute owner of 4 acres 87 cents of land in Sy. No. 50/A-1 situated at Yettinabudihal village in Bellary Taluk, The first defendant is the only legal heir to Kasim Sab, Under a gift deed dated 11.5.1970, Kasim Sab gifted the suit schedule property in favour of the first defendant with a condition that she can enjoy the same during her lifetime and after her death, the same shall go to children born to the first defendant.

It is also stated by the plaintiffs under a registered sale deed dated 10.4.1987, the defendants 1 and 2 sold the plaint schedule property in favour of the defendant No. 3 - appellant contrary to the terms and conditions of the gift deed. Contending that the first defendant can enjoy the suit schedule property till her death and that the plaintiffs and defendants 4 and 5 being the children born to the first and second defendant are entitled for possession of the property, after the demise of the first defendant, the suit was filed.

The defendant No. 3 - purchaser of the suit schedule property from the defendants 1 and 2 contested the suit. She denies the rights of the first defendant only to enjoy the property till her Death, According to her, she is the absolute owner of the property and the alienation made by defendants 1 and 2 in favour of the third defendant was for the benefit of the plaintiffs and defendants 4 and 5. Therefore, she requested the Court to dismiss the suit.

Based on the pleadings, the following issues were framed by the Court below:

(1) Whether the plaintiffs are having, absolute vested right, title and interest on the suit property?

(2) Whether the defendant No. 3 proves that defendant No. 1 has sold the suit property for the welfare and education of plaintiffs and to discharge the loans?

(3) Whether the suit is properly valued and Court fee paid is correct?

(4) What decree or order ?

In order to prove the respective contentions, the plaintiff No. 1 was examined as PW-1 He relied upon Exs. P.1 to P. 14. The defendants did not lead any evidence. The trial Court considering the evidence let in by the parties held issues 1 and 3 in affirmative, issue No. 2 does not arise for consideration. Ultimately by the judgment and decree dated 29.3.2007, the. Court has declared the plaintiffs as the absolute owners of the property and that they are entitled for possession of the property after the demise of the defendant No. 1.

This judgment and decree is called in question in this appeal.

We have heard the learned Counsel for the parties.

The main ground of attack by the appellant before us is that when the defendant No. 1 did not have any issues on the date of her father executing the Gift Deed, the conditions imposed in the Gift Deed that after the demise of the first defendant, the property shall go to her children is contrary to Section 141 of Mahomedan Law. According to Mahomedan Law, gift made in favour of an unborn child is void. Therefore, the condition imposed in the Gift Deed will not enure to the benefit of the plaintiffs and that the suit filed by the plaintiffs was not maintainable.

It is also contended that when Gift Deed is contrary to Section 141 of the Mahomedan Law, Gift Deed has to be held as a void document or at least the condition imposed therein has to be declared as void. Alternatively, he pleads that since Gift Deed was void, defendant No, 1 being the only surviving legal heir of Kasim Sab, she has become the absolute owner of the plaint schedule property and therefore, the sale deed executed by her in favour of the defendant No. 3 (appellant) is valid and therefore, the judgment and decree of the trial Court has to be set aside.

Learned Counsel for the plaintiffs contends that the plea of void Gift was not raised by the defendant No. 3 before the Court below and therefore, she cannot be permitted to raise such a contention before this Court. An attempt is made by him to support the judgment and decree of the trial Court.

Having heard the learned Counsel for the parties, we have to consider the following points in this appeal:

(1) Whether the Gift Deed executed by Late Kasim Sab in favour of the first defendant to enjoy the schedule property during her lifetime and thereafter, to go to her children is valid?

(2) Whether the sale deed executed by the first defendant in favour of the third defendant can be questioned by the plaintiffs?

(3) Whether the judgment and decree of the Court below requires to be set aside or not?

All the three points formulated by us are inter-linked with each other. We would like to deal with them together.

Admittedly, the point now raised by the appellant was not raised before the Court below. Even such a defence had not been taken by the appellant. Since the point now raised is a legal point, it can be considered even by the Appellate Court. The present appeal being the first appeal has to be dealt by this Court by reappreciating the entire pleadings, evidence and questions of law raised. Therefore, the contention of the plaintiffs Counsel that the plea of validity of the Gift Deed was not raised and therefore, the appellant cannot be permitted to raise such a question in this appeal has to be rejected. Then the question would be what are the terms and conditions of the Gift Deed and whether under the Gift Deed, the plaintiffs have acquired any right to institute the suit.

Gift deed is produced as per Ex. P.4, Exs. P.1 to P.3 are the study certificates and birth certificate of the plaintiffs to show when they are born to defendants 1 and 2. By looking to Exs. P.1 to P.3, it is clear to the Court that none of the plaintiffs or defendants 4 and 5 were born to defendant No. 1 on the date of the Gift Deed. The Gift Deed is dated 11.5.1970. The Gift Deed reads that the first defendant being the only daughter of Kasim Sab, out of love and affection Kasim Sab has gifted the property by putting the first defendant in possession of the suit property. However, it is further recited in the deed that the first defendant can enjoy the property till her death and thereafter, it shall go to children born to her. Relying upon the condition imposed in the Gift Deed, the present suit is filed challenging the sale deed executed by the defendants along with her husband on 10.4,1987 in favour of the appellant, who was the third defendant before the Court below. The sale deed is produced as per Ex. P.5. The sale deed shows that the property is sold for the benefit of defendants 1 and 2 and. their children. Be that as it may, Section 141 of the principles of Mahomedan Law authored by Mulla reads as hereunder:

Gift to unborn person.-- A Gift to a person not yet in existence is void.

The appellant''s Counsel contends in view I of the aforesaid provision of law, the condition imposed by Kasim Sab, while executing the Gift Deed in favour of the first defendant is void and therefore, the said condition need not be looked into and the property gifted to defendant No. 1 is held to be absolute gift, gifting the property to her only. He further contends that even if the entire document is held to be void, then also alienation made by the first defendant in favour of the third defendant cannot be attacked by the plaintiffs because she was the only daughter to Kasim Sab and Kasim Sab did not have any other legal heir. This position is not disputed by the Counsel for the plaintiffs. He further contends that if for any reason this Court holds that the entire Gift Deed is held to be void then also as the only sole surviving heir of Kasim Sab, first defendant was entitled to alienate the property and such alienation cannot be attacked by the plaintiffs as void. Even otherwise, under similar circumstances, there was an occasion for the Patna High Court to decide such an issue in Jagdeo Sharma v. Nandan Mahto and others-reported in Jagdeo Sharma Vs. Nandan Mahto and Others, There it is held that alienation by a limited owner cannot be attacked by a person having interest in the property and a similar question had also come up for consideration before the High Court of Kerala in Kochu Ahammed Pillai v. Pathummal and others, reported in Kochu Ahmmed Pillai Vs. Pathummal, which is also in favour of the appellant.

In view of the aforesaid provision of law and in view of the factual aspect that Kasim Sab did not have any other children and even if it is held that the entire document is a void gift, then also sale made by first defendant in favour of the third defendant cannot be held to be illegal and therefore, the plaintiffs did not have right, title or interest over the same.

The trial Court without considering the legal position has wrongly decreed the suit of the plaintiffs by relying upon the recitals in the Gift Deed. Therefore, the findings of the trial Court has to be considered as perverse and liable to be set aside. Accordingly, we do so. In the result, the appeal is allowed. The judgment and decree passed by the Civil Judge (Senior Division) Bellary in O.S. No. 445/2004 dated 29.03.2007 is hereby set aside. The suit filed by the respondents 1 and 2 (plaintiffs) is dismissed. The parties to bear their own costs.