A.M. HUSSAINAR v. AYSHA, MOHAMMAD KUNHIAGED, HASSAINARAGED

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **TUESDAY, THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** **RFA.No. 609 of 2016** **AGAINST THE JUDGMENT AND DECREE IN OS 3/2015 of SUB COURT, KASARAGOD DATED 30-06-2016** ## **APPELLANT/ DEFENDANT :** **A.M.HUSSAINAR, S/O.LATE A.M.ABOOBACKER HAJI, RESIDING AT A.M.A.MANZIL, ADHUR(P.O), ADHUR VILLAGE, KASARAGOD TALUK AND DISTRICT, PIN-671543.** **BY ADVS. SRI.T.R.RAVI SMT.CISSY MATHEWS SHRI.JAWAHAR JOSE SRI.T.KRISHNANUNNI (SR.) SRI.V.VINAY MENON** ## **RESPONDENTS/ PLAINTIFF :** **1 AYSHA, AGED 71 YEARS, W/O.LATE A.M.ABOOBACKER HAJI, RESIDING AT A.M.A.MANZIL, ADHUR(P.O), ADHUR VILLGE, KASARAGOD TALUK AND DISTRICT, PIN - 671 543. 2 MOHAMMAD KUNHIAGED, AGED 51 YEARS, S/O.LATE A.M.ABOOBACKER HAJI, RESIDING AT A.M.A.MANZIL, ADHUR(P.O), ADHUR VILLAGE, KASARAGOD TALUK AND DISTRICT, PIN - 671 543.** **RFA.No. 609 of 2016** 2 **3 HASSAINARAGED, AGED 44 YEARS S/O LATE A.M.ABOOBACKER HAJI, RESIDING AT A.M.A.MANZIL, ADHUR(P.O), ADHUR VILLAGE, KASARAGOD TALUK AND DISTRICT, PIN - 671 543.** **BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.P.RAHUL** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **RFA.No. 609 of 2016** 3 ## **JUDGMENT** ## _**K.Harilal, J.**_ The appellant is the defendant in OS.No.3/2015 on the files of the Sub Court, Kasaragod. The aforesaid original suit was one for partition. (Parties are referred to as in the original suit). Plaintiff No.1 is the mother of other plaintiffs and defendant. The plaintiffs 2 and 3 and the defendant are the children borne out of the wedlock between the first plaintiff and one A.M.Aboobacker Haji. They are governed by Muslim Law of Inheritance. According to the averments in the plaint, the plaint 'B' schedule item Nos.1 to C originally belonged to late A.M. Aboobacker Haji. The plaint B schedule consists of 7 items. As regards the title of the deceased Aboobacker Haji, there is no dispute between the plaintiffs and the defendant. According to the petitioners, those **RFA.No. 609 of 2016** 4 properties were in possession and ownership of Aboobacker Haji till his death. Item No.1 of the Plaint B Scheduled property is landed property with a shopping complex having 41 rooms therein. The first defendant has been in possession and management of Item No.1 of the Plaint B Schedule property and the said property fetches an annual income of Rs.14,28,000/- by way of rent and Rs.25,000/- being the value of usufructs. But the defendant has not been paying share of income from the said property to the plaintiff. So also, he has been in possession and enjoyment of Item Nos.2 to 7 properties and taking income therefrom. He has not paid the share of income from those properties also to the plaintiff so far. Thus, the defendant had been in possession and enjoyment of the entire 'B' Schedule properties, according to the plaintiffs. Plaintiff No.1 is having 3/24[th] share over the plaint B schedule properties and **RFA.No. 609 of 2016** **==> picture [6 x 8] intentionally omitted <==** Plaintiff Nos. 2 and 3 and the defendant are having 7/25[th] share each over the said properties. They prayed for partition of the plaint schedule items as per the said ratio. The defendant filed a written statement denying the claim for partition with respect to item No.1 of Plaint B Schedule property only. He has not disputed the fact that plaint B Schedule property originally belonged to late Aboobacker Haji. But, he denied that the income from plaint B Schedule of item No.1 is Rs.14,28,000/- towards rent and Rs.25,000/towards the value of coconuts. He denied the averments that he has been in possession and management of item No.1 for and on behalf of the other co-owners. According to him, his father had executed a Settlement Deed No.1816/2013 of SRO, Badiadka in respect of the plaint B Schedule item No.1 in his favour and he had taken possession of the said property. Thereafter, he has been **RFA.No. 609 of 2016** **==> picture [6 x 8] intentionally omitted <==** collecting rent and taking income from the said property. Nobody has right to claim title over the said property or income from the said property. All the plaintiffs are having separate properties which fetched lucrative income and they are enjoying said properties which is not less than 30 acres in extent. Thus, he prayed for dismissal of the suit with respect to item No. 1 of plaint B Schedule property. 2. The plaintiffs filed a replication disputing the execution of Settlement Deed No.1816/2013 by their father. They denied the contention that the defendant had took possession of plaint B Schedule item No.1 and none other than him is having any right over the said property and income therefrom. According to them, the Settlement Deed alleged to have been executed by late Aboobacker Haji is not true and genuine document. On the other hand, **RFA.No. 609 of 2016** 7 it is a forged, concocted and created document by misrepresentation, impersonation etc. The defendant created the said document in order to defraud the plaintiffs and to gather the properties of the plaintiffs. Late Aboobacker Haji was suffering from various ailments like mental disorder, paralysis, diabetics and blindness etc. since 2010 onwards. He was not in a sound disposing state of mind from 2010 onwards. The alleged settlement Deed is a rank forgery and cannot be relied on for any purpose, according to them. 3. On the rival pleadings, both parties adduced evidence, which consists of the oral evidence of PWs 1 to 3 and Exts.A1 to A23 from the part of the plaintiff and the oral testimony of DW1 and DW2 from the part of the defendants. After having considered the evidence on record, the court below decreed the suit and passed a preliminary decree, as prayed for. This appeal has been filed **RFA.No. 609 of 2016** 8 challenging the legality and correctness of the findings whereby the court below decreed the suit, as prayed for. 4. Heard the learned counsel for the appellant and the learned counsel for the respondents. 5. Going by the impugned judgment, it could be seen that the court below decreed the suit as prayed for on the finding that the defendant failed to prove that Ext.B3 gift is a genuine gift executed by the deceased father Aboobacker Haji. The defendant, who is donee of the gift has not mounted the witness box so as to give evidence as to the acceptance of the gift and delivery of the property thereunder. Though DW1 and DW2 were examined in evidence to prove the execution of the gift deed by the deceased Aboobacker Haji, their evidence cannot be relied on to arrive at a finding on the genuineness of the gift deed. According to **RFA.No. 609 of 2016** **==> picture [6 x 8] intentionally omitted <==** the court below, they are not reliable witnesses. So also, it was found that the evidence of PW3 cannot be relied on as he has not conducted a deep study relating to the signature found in the photocopy of Ext.B3 Settlement Deed and Ext.A22 cannot be relied on to find out whether the signatures in Ext.B3 are that of late Aboobacker Haji or not. A photo copy of the gift deed alone was made available to render an opinion on the signature of the deceased Aboobacker Haji. Ext.A22 is only a study report and not an opinion of an expert. PW3 has compared the signature in the photo copy of Ext.B3 with the signature in Ext.A1 order. Thus, the court below has rejected the evidence of PW3 also. Similarly, the court below found that the registration of Ext.B3 gift deed is defective and suffering from the lack of statutory requirement. Though the gift deed was presented before the SRO office by the power of attorney **RFA.No. 609 of 2016** 10 holder, who is none other than the wife of the defendant, he was also not examined in evidence. According to the court below, the burden of proof was on the defendant as to the execution of gift deed. But the same was not discharged successfully. On that premises, it would follow that all the plaintiffs and defendant are entitled to get share in the properties scheduled in the plaint. Thus, let us examine the statutory requirements for the execution of Muhammedan gift. 6. According to paragraph 138 of the Chapter XI of the Principles of Muhammedan Law by Mulla, a hiba or gift is “a transfer of property, made immediately, and without any exchange,” by one person to another, and accepted by or on behalf of the latter. 'Gift' or 'Hiba' literally means the giving away of such a thing from which the person in whose favour the gift is made draw benefit. The definition of _Hiba_ or Gift has been given in _Kanz_ **RFA.No. 609 of 2016** **==> picture [12 x 8] intentionally omitted <==** _al Daquiq_ in the following words : “ _Hiba_ is the making of another person owner of the corpus of property without taking its consideration from him.” According to paragraph 147, writing is not essential to the validity of a gift either of movable or of immovable property. In _**Kamar-un-nissa Bibi v. Hussaini Bibi**_ , the Privy Council upheld a verbal gift. 7. Coming to Section 129 of the Transfer of Property Act, nothing in this chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Mohammadan Law. 8. Thus, it could be seen that on an analysis of the aforesaid provisions, it could be seen that unlike other gifts contemplated under the Transfer of Property Act, 1882, the writing or registration is not essential to the to the validity of a Muhammedan **RFA.No. 609 of 2016** 12 gift either movable or immovable property. Thus it can be concluded that a gift deed executed under Muhammedan Law is not an instrument effecting, creating or making a gift but it is only a piece of evidence and the deed of gift is not essentially required for creation of a gift under the Muhammedan Law. 9. We have examined the legality and correctness of the aforesaid findings of the court below in the light of the Laws on Muhammedan gift stated above. In the impugned judgment, the court below disbelieved the genuineness of Ext.B2 mainly on the ground that registration of the same was not in conformity with the statutory requirement. We are of the view that where writing or registration is not essential for a valid Muhammedan Gift, the legal infirmities or irregularities in the registration of Ext.B3 gift deed has no relevancy at all. While **RFA.No. 609 of 2016** 13 considering the genuineness of the execution of the gift, it is to be borne in mind that Ext.B3 gift deed itself is a piece of evidence only. Declaration, acceptance and delivery are the essential components constituting a valid gift. Declaration and acceptance can be perfected without a document. But, in the instant case, the declaration has been made through Ext.B3 gift and the defendant has no case that an oral gift was effected earlier and subsequently the oral gift was reduced in writing by Ext.B3. Therefore, we find that though writing is not an essential component of Muslim deed, in the instant case, considering the facts of the case, the declaration can be proved only by proving the genuineness of Ext.B3 gift deed. The plaintiff has examined PW2, the doctor who treated the said Aboobacker Haji and Exts.A16 to A23 were produced to prove that Aboobacker Haji was not in a sound disposing mind **RFA.No. 609 of 2016** 14 at the time of execution of Ext.B3. 10. We have meticulously gone through Ext.A16 to A23. It has come out in evidence in Exts.A16 to A23 that Aboobacker Haji was undergoing treatment in hospital from 2010 onwards for various disease such as hypertension, Cerebra Vascular Accident (stroke), Chronic kidney disease, chronic obstructive pulmonary disease etc. and he was partially blind also. Exts.A17 to A21 were marked through PW2, the doctor. Those documents would show that late Aboobacker Haji was admitted in the hospital of PW2, 5 times during different periods. Ext.A17 would show that he was admitted on 27.02.2013 and discharged on 02.03.2013. It is pertinent to note that Ext.B3 gift deed was executed on 25.03.2013. It has come out in evidence of DW1 that DW1, the scribe who prepared Ext.B2 has come twice in his office. But at the same time, it has come out in evidence that even **RFA.No. 609 of 2016** 15 though the Sub Registrar Office is situated very near to the office of the scribe and the registration was effected immediately after the execution, Ext.B3 was presented before the SRO by a power of attorney and the power of attorney is none other than the wife of the defendant. Neither the power of attorney nor the notary, who notarised the power of attorney has been examined in evidence to prove the conferment of authority by the principal to the agent. The non-examination of them are fatal to the case advanced by the defendant. 11. Similarly, the defendant has not mounted the box to swear about in acceptance of the gift and delivery of the property. The nonexamination of the defendant is also fatal. We are of the considered opinion that, no attempt had been made either by the plaintiffs or by the defendants to prove the genuineness of the signature found in **RFA.No. 609 of 2016** **==> picture [12 x 8] intentionally omitted <==** Ext.B3 gift deed. At the same time, it has come out in evidence that the deceased Aboobacker Haji was a landlord having large extent of properties and shopping complex having large number of tenanted premises. Certainly he might have engaged in several transactions through out his life. According to the Indian Evidence Act, the disputed signature can be proved by employing three methods as provided under Sections 45, 47 and 73 of the Evidence Act. It is to be remembered that the court below has not placed reliance on Ext.A22 as it was not an expert opinion and the person, who has rendered the opinion in Ext.A22 himself has admitted that no conclusive opinion can be formed from Ext.A22. Therefore, the parties to the lease could have resorted to any of the methods for proving the signature in Ext.B3 of the deceased late Aboobacker Haji. We have already held that since the declaration, acceptance and delivery are **RFA.No. 609 of 2016** 17 effected by way of Ext.B3 gift deed only unless the genuineness of Ext.B3 is proved beyond doubt, it cannot be concluded that Ext.B3 was a valid gift executed by the deceased Aboobacker Haji. 12. In the above view, we find that the evidence available on record are not sufficient to arrive at a finding that Ext.B3 is a gift deed executed by late Aboobacker Haji. It is pertinent to note that the plaintiff attempted to prove the gift by Ext.B3 only and no other evidence was adduced to prove the act of gift, though such a written deed is not required under the Muhammedan Law. Therefore, the parties to the lease can be given an opportunity to prove rival the contentions by adducing further evidence. Consequently, the impugned judgment and decree under challenge would stand set aside and the original suit is remitted to the court below for fresh disposal after affording sufficient **RFA.No. 609 of 2016** **==> picture [12 x 8] intentionally omitted <==** opportunities to both parties to adduce further evidence. The court below shall dispose the original suit, at the earliest, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The parties shall appear before the court below on 22.05.2019 and the suit shall be disposed on or before 30.08.2019. **Sd/-** **K.HARILAL, JUDGE** **Sd/-** **ANNIE JOHN, JUDGE** RKM