Zarab Khan vs Lal Bibi and Others

Ramesam, J.—In this case the point that arises for decision is one of Mahomedan law. The facts may be stated as follows : One Mohideen

Khan died on 11th January 1917 issueless after having suffered from beriberi for two or three months before his death. Before his death he

executed two documents (described as gift deeds) namely, Exs. 2 and 3, dated 13th November 1916 and 8th January 1917, respectively. We

have nothing to do at present with the second deed in this case. When Mohideen Khan died he left behind him a widow, defendant 1, a brother

Dada Sahib and two sisters, defendants 2 and 3. According to Mahomedan law if he had died intestate, the widow would be entitled to 1/4th,

Dada Sahib to 3/8ths and defendants 2 and 3 each to 3/16ths share of his property. Dada Saheb ignoring the gift deeds sold his 3/8th share in

Mohideen Khan''s property to the plaintiff by a sale deed dated 28th November 1922: Ex. A. The present suit is filed by the plaintiff for a

declaration that the gift deeds are not valid and binding on the heirs and for recovery of 3/8ths share of the property. The District Munsif found that

the gift deed, Ex. 2, was made for consideration, the consideration being dower due from Mohideen Khan to his widow. He dismissed the suit so

far as Ex. 2 is concerned. On appeal the then District Judge of Masulipatam (now Curgenven, J.) held that Ex. 2 was executed when Mohideen

Khan was suffering from death-bed illness and it is therefore vitiated by the doctrine of Marzulmout. He called for a finding as to the value of the

property. When the case came back for disposal, another District Judge succeeded Mr. Curgenven and he held, differing from his predecessor,

that Ex. 2 is not vitiated by the principle of Marzulmout. He found that the value of the property dealt with by Ex. 2 is Rs. 1,650 and that the

dower duo from Mohideen Khan to his wife was only Rs. 250. He therefore confirmed the decree of the District Munsif and the plaintiff now

appeals.

In second appeal respondent 1''s learned advocate made an attempt to question the finding that Mohideen Khan was in death-bed illness at the

time of the execution of Ex.2. Mohideen Khan was suffering from beriberi. He refers to his illness as the reason for the execution of Ex. 2. He was

aged 60. He died two months after the execution of the document. Even if there is any apparent improvement during the interval, it does not

matter. It is clear that Mohideen Khan died of beriberi and was under the apprehension that he would die of it when he executed Ex. 2. The finding

must therefore be accepted. The question next arises how far is a gift for consideration particularly where the consideration is ''the dower due to

the wife affected by the principle of Marzulmout, where the consideration for the gift is inadequate. It is never suggested that so far as it is

supported by consideration that portion is invalid. Any attack against the gift can be made only in respect of the portion not supported by

consideration. This distinction seems to have been overlooked by the District Judge. The earliest case in the reports is Ghulam Mustafa v. Hurmat

[1879] 2 All.854 and. that case is based upon Case No. 21 in Macnaghten''s Precedents of Marriage, Divorce, etc. It was said in the answer:

Should a man in his last sickness, acknowledge a debt to be due to his wife on account of dower, the acknowledgment will be good to such extent

of the property as amounts to her proper dower, or such as it has been customary for her equals in condition to receive, but to no more.

This answer is very plain. But unfortunately its wording seems to have been ignored by the learned District Judge. If the amount of dower which

is the consideration for the gift is equal to the value of the property, then the gift should be entirely upheld. But if it is inadequate it will be upheld

only to the extent of the consideration and no more. In the decision in Ghulam Mustafa v. Hurmat [1879] 2 All. 854 the amount of dower due was

far more than the value of the property and therefore the whole of the transfer was upheld in that case. That decision is therefore perfectly correct.

It cannot apply to a case where the amount of dower which is the consideration is far less than the value of the property. That case is therefore

distinguishable on that ground and cannot help the respondents. So also in the case in Esahaq Chowdhry v. Abedunnessa Bibi [1915] 42 Cal. 361

there was no suggestion that the amount of dower was less than the value of the property. No such question was discussed or raised. We must

assume that in that case the amount of dower was equivalent to or more than the value of the property. That in such a case the transaction cannot

be affected by the principle of marzulmout is all that that case decided. It is curious that Richardson, J., who agrees with Fletcher, J., does not refer

to case No. 21 in the Precedents of Macnaghten relating to Marriage, Divorce, etc but to case No. 12 in the Precedents of Gifts which was not a

case relating to dower. Anyhow the decision in Esahaq Choudhry v. Abedunnessa Bibi cannot help the respondent or support the lower Court''s

decision. Two other decisions referred to by the lower Court are Abbas All Shikdar v. karim Baksh Shikdar [1909] 4 I.C. 436 and Bilijambi v.

Hazrath Saib [1911] 12 I.C. 457 and they are not cases of transactions during death-bed illness and are not relevant to our present case. It is true

that in Abbas Ali Shikdar v. Karum Baksh Shikdar [1909] 4 I.C. 436 it was said:

Any consideration such as a copy of Koran will support a gift for consideration.

That is true but it is not in a case of a transaction which was affected by marzulmout. It is a simple hiba bil evaz. The principle of marzulmout is

stated in Bailie''s Mahomedan Law, Vol. 2, p. 212:

If one in death illness should make a wakf a gift, a muhabat sale...and neither of the acts is allowed by his heirs, all are valid if they can be carried

into effect out of a third of his estate.

The principle is really a general principle. It applies to wakfs; it applies to a gift even if it is for consideration, when consideration is inadequate

so far as the portion not supported by consideration is concerned and to a muhabat sale, that is a contract of sale for inadequate consideration.

The principle is also stated at p. 57 of Ameer All''s Mahomedan Law, Vol. 1. No exception is stated that it does not apply to a case of gift for

dower. Of course to the extent that the dower due supports the gift it is not vitiated at all. Any contention in favour of the application of the

principle is only in respect of that portion which is not supported by the dower and to that extent no exception has been made by any text-book

writer. After all the dower is only one kind of consideration and it doe3 not differ from any other kind of consideration and if the principle applies

even to contracts or sales for indequata consideration, it equally applies to a gift in consideration of dower. Ameer Ali, p. 578, Illus-(d), shows that

it applies to muhabat sales: vide also Ameer Ali-the illustration stated at pp. 160 and 161-Tyabji''s Mahomedan Law, p. 670, Illus. 4 applies the

principle of marzulmout to a mohabat sale. The principles are stated in Section 600 at p. 814. Illus. 2 is the case of deathbed gift for consideration

which is inadequate. Illus. 4 is the case of muhabat sale. No exception is stated in the section itself in favour of a gift where the consideration is

dower. Mr. Ramakrishnier relied on a case from the Oadh Chief Court reported in Sadiq Ali v. Mt. Amiran AIR 1929 Oudh 439.

On a perusal of the judgment I find that none of the reasons adverted to by me were present before the learned Judges who decided that case.

Neither the case No. 21 in Macnaghten''s Precedents was referred to nor the other textbooks. It is therefore of no authority and cannot help the

respondent. I am therefore of opinion in this case that Ex. 2 should be supported to the extent of Rs. 250 and as the donee is an heir, the rest of it

is invalid. Of the rest of the property worth about Rs. 1,400 the plaintiff will be entitled to three-eighths of it. Three eighths of Rs. 1,400 is

equivalent to Rs. 525 and Rs. 525 is seven-twenty-second of Rs. 1,650. The plaintiff is therefore entitled to recover seven-twenty-seconds share

of the property covered by Ex. 2 besides the share decreed in the property covered by Ex. 3 by partition. There will be a preliminary decree for

partition to that effect. The District Munsif will appoint a commissioner to separate the plaintiff''s share of the properties and will give a final decree

for that share. The plaintiff will also be entitled to mesne profits from the date of plaint up to three years from the date of the final decree. The

appellants will have their proportionate costs throughout.

The appeal having been set down to be spoken to this day, the Court made the following

ORDER

Defendants 2 and 3 (respondents 2 and 3) will be entitled to a decree for seven-forty-fourths share each on paying the proper court-fees before

the passing of the final decree.