Amina v. Moosa and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN THURSDAY, THE 10TH DAY OF OCTOBER 2013/18TH ASWINA, 1935 Mat.Appeal.No. 645 of 2008 ( ) ------------------------------OP 1446/2006 of FAMILY COURT, PALAKKAD APELLANT/IST RESPONDENT: --------------------------------- AMINA, D/O.MOIDUKUTTY RESIDING AT THIRUTHIL HOUSE, THIRUTHIL HOUSE, UMIKUNNU P.O., PATTAMBI PALAKKAD DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU RESPONDENT(S)/PETITIONER/RESPONDENTS 2 TO 7: -------------------------------------------------------------- 1. MOOSA, S/O.THIRUTHIL MOOSA RESIDING AT NETHIRIMANGALAM AMSOM, OTTAPALAM TALUK PALAKKADDISTRICT. 2. SHAHARBANU, W/O.T.P.AKBAR, RESIDING AT - SHAMI NIVAS, THAVALAMPARAMBIL HOUSE, NJANGATTIRI PATTAMBI, PALAKKAD DISTRICT. 3. T.SUDHEER, S/O.MOOSA, RESIDING AT THIRUTHIL HOUSE, UMIKUNNU, PATTAMBI PALAKKAD DISTRICT. 4. T.SALEENA, W/O.MUKKATTIL NAZEER, RESIDING AT MUKKATTIL HOUSE, THOTTAKKARA, OTTAPALAM PALAKKAD DISTRICT. 5. T.SHEEBA, W/O.AYUB, RESIDING AT THIRUTHIL HOUSE, UMIKUNNU, PATTAMBI PALAKKAD DISTRICT. 6. K.SELVARAJ, RESIDING AT THIRUTHIL QUARTERS, UMIKUNNU, PATTAMBI PALAKKAD DISTRICT. 7. SAIDUKOYA THANGAL, S/O.KUNJI SETHU KOYA THANGAL RESIDING AT THIRUTHIL QUARTERS, UMIKUNNU, PATTAMBI PALAKKAD DISTRICT. MA 645/08 R1 BY ADV. SRI.SANTHEEP ANKARATH R1 BY ADV. SRI.V.C.MADHAVANKUTTY THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10-102013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** --------------------------------------------Mat.Appeal No.645 of 2008 --------------------------------------------Dated 10[th] October, 2013 ## JUDGMENT ## Antony Dominic,J The appeal arises from the judgment of Family Court, Palakkad in O.P.1446/2006. 2. Briefly stated the case is that the appellant and first respondent were husband and wife. Respondents 2 to 5 are their children and respondents 6 and 7 are tenants in a building in the property which is the subject matter of the original petition. It is stated that in 1977, an immovable property was acquired by the appellant wife. By Ext.A1 sale deed, she sold half share of the property covered by the document of 1977 to the first respondent MA.645/08 2 husband in 1987. In 1987 itself and in 2000, both parties jointly executed Exts.A2 and A3 sale deeds respectively, alienating portions of the properties owned by both of them. It is also seen that the couple stayed together till 2001. 3. Thereafter, their relationship got strained and in 2002, O.S.9/2002 was filed by the first respondent before Sub Court, Ottappalam. In the suit he sought partition of the remaining property which was scheduled as A schedule and also B schedule movables. In that suit, the appellant raised a contention that Ext.A1 sale deed executed by her in favourt of 1[st] respondent in 1987 was a sham document as it was executed on coercion and undue influence. MA.645/08 3 4. In the meanwhile, Family court, Palakkad was established and the suit was transferred to that Court which was renumbered as O.P.1446/2006. Before the Family Court first respondent was examined as PW1 and appellant was examined as RW1. Exts.A1 to A8 and Ext.C1 Commission report were marked. On conclusion of the trial, Family Court rendered judgment dated 25/3/2008, whereby a preliminary decree for partition was passed. Aggrieved by that judgment and decree, the appellant has come up in appeal. 5. We heard the counsel for the appellant and learned counsel appearing for first respondent. There is no appearance or representation on behalf of respondents 2 to 7. 6. Impugning the judgment and decree MA.645/08 4 passed by Family Court, Palakkad, first contention raised by the learned counsel for the appellant was that the Family Court erroneously proceeded on the basis that the burden of proof lies on the appellant. The counsel contended that appellant being a Pardahnashin lady, the burden of proof was entirely on the first respondent and that such burden was not discharged by him. The counsel in this context placed reliance on the judgment of this Court in Mohammad ## . v. Kunhapputty (2007 (4) KLT 119) 7. Although in principle we are inclined to agree with the counsel for the appellant that the law has recognized a special protection to Pardahnashin ladies, that protection can be availed of only in a case where the ingredients necessary for that protection are MA.645/08 5 # pleaded and proved. This legal position has been explained by this Court in the judgment of ## Mohammad's case (supra) itself where it was held thus: “9. As declared in _Farid-un-Nisa v. Mukhtar Ahmad_ (AIR 1925 PC 204) in India Pardanashin ladies have been given a special protection in view of the social conditions of times. They are presumed to have imperfect knowledge of the world, as by the pardha system they are practically excluded from social intercourse and communion with the outside world. When a document executed by the Pardahnashin lady is disputed, the burden of proof is on the person who seeks to sustain the document. Apex Court in _Kharbuis Kuer v. Jangbahabur Rai_ (AIR 1963 SC 1203) settled the question holding that as regards documents taken from Pardahnashin women, Court has to ascertain that the party executing them has been a free agent and duly informed of what she was executing. The reason for the rule is that the ordinary presumption that a person understands the document to which he has affixed his name does not apply. The burden of proof shall always rest on the person who seeks to sustain a transaction entered into with a pardahnashin woman to establish that she executed it after clearly understanding the nature of the transaction. That rule is evolved for the protection of Pardahnashin ladies and cannot be confused with the doctrine such as fraud, duress or undue influence which would apply to all persons MA.645/08 6 whether they are pardanashin women or not. The question is whether Pathummakutty Umma was a pardahnashin woman as canvassed by the learned counsel for appellant. 10. As rightly argued by learned counsel appearing for respondents 1 and 2, there is no pleading in the plaint that Pathummakutty Umma was a Pardanashin lady. There is also no pleading that she used to wear pardha and because of exclusion was incapable of knowing the effect of transaction like Ext.A3. Learned counsel appearing for appellant argued that as Pathummakutty Umma is a Muslim lady, she is to be taken as a Pardanashin lady. Learned counsel appearing for respondent relied on a Division Bench decision of this Court in _Popular Bank Ltd. v. Sainuba Beevi_ (1965 KLT 314) where an identical question was considered and submitted that there is no presumption that all Muslim women are pardanashin ladies. In _Sainu Beevi's_ case (supra) a Division Bench of this Court had considered the exact question. As in this case there was no pleading in that case that the lady was a Pardanashin, but evidence was let in to the effect that she was wearing parda, in this case even PW1 did not depose that Pathummakutty Umma was a pardanashin lady or that she was wearing parda. Division Bench ruling shows that a learned Single Judge, on the facts of that case held that she is illiterate and a Muslim woman and even if strictly speaking she is not pardanashin, being a Muslim woman, who are comparatively ignorant and backward, the presumption arising in respect of pardanashin woman is to be applied. The Division Bench MA.645/08 7 did not agree with the view following the decision of the Apex Court in _Kharbuis Kuer's_ case (supra)where reliance was placed on a Privy Council decision in _Faridun-Nisa's_ case (supra). The Division Bench held:- “There is no evidence in the case before us that the Muslim women of this State are pardahnishins entitled to such protection, brought about by the social conditions under which they are excluded from social intercourse and communion with the outside world so as to make their knowledge of the world imperfect. In fact, Raman Nair, J. has not found that the Muslim women of the State are purdahnishins. There is no such plea either in the written statement; nor does the evidence of the 2nd defendant go to that extent”. 11. In the light of the Division Bench decision, for the sole reason that Pathummakutty Umma was a Muslim woman, appellant is not entitled to contend that Pathummakutty Umma was a pardanashin lady and therefore the presumption available to a transaction by a Pardanashin lady is to be applied. ## Now the question to be examined whether there is any pleading or evidence in support of the aforesaid MA.645/08 8 contention. Learned counsel for the appellant took us through the written statement filed by the appellant and in the written statement, we do not see any pleadings raised by the appellant entitling her for the benefit of the protection claimed by her. Her evidence also does not support this case. That apart, this contention was not even urged before the trial Court. Therefore, in the absence of any pleadings or proof, the appellant cannot claim the benefit of protection which is available to Pardahnashin ladies. In such circumstances, we are unable to accept the contention raised by the learned counsel for the appellant. 8. As far as coercion and undue influence pleaded by the appellant is concerned, according to the appellant, first respondent demanded that unless MA.645/08 9 she executed the document in question, he will not co-operate for the marriage of their children. It is stated that it was therefore, she compelled to execute Ext.A1 document. However, evidence before the Family Court shows that her three daughters were given in marriage on 16/4/1986, 18/4/1996 and 10/10/1999 respectively. Admittedly, Ext.A1 sale deed was executed on 8/7/1987. From the above itself, it is obvious that if there was such a demand for execution of the document, the document would have been executed prior to 16/4/1986 when the eldest daughter was given in marriage. Second daughter, as found by the Family Court was only below ten years in 1987 and we are not prepared to hold that appellant would have executed the document in 1987 MA.645/08 10 apprehending that the first respondent would not cooperate with her for the marriage of the second and third daughters as and when it is solemnized in future. Added to this, is the fact that the couple stayed together without any problem till 2001. All these facts would certainly improbablize the case pleaded by the appellant that the document was executed under coercion and undue influence. 9. It is admitted case of the appellant that subsequent to execution of Ext.A1, Exts.A2 and A3 were executed jointly by the parties in 1987 and 2000. Evidence of the appellant shows that after execution of the document in favour of one Usman, she has received part of the sale consideration also. She has not sought to invalidate Exts.A2 and A3. So long as MA.645/08 11 Exts.A2 and A3 remain valid, the appellant is at least impliedly concurring to the validity of Ext.A1 sale deed. 10. As far as the source of money for the acquisition of property in question is concerned, there also the evidence is against the appellant. This issue has been discussed by the Family Court, in pages 10 and 11 of the judgment which read thus: "She has no case that she contributed any money from her own source of income. According to her, her brothers and sisters contributed funds for the acquisition of immovable property and construction of buildings and besides them her daughter contributed for the acquisition of the B schedule movables. Which among the three daughters contributed funds for the acquisition of movables is yet to be disclosed by the 1[st] defendant. The plea of contribution of MA.645/08 12 funds by brothers and sisters have been given up at the time of cross-examination. RW1 deposed that the only person contributted funds for the purchase of the immovable property was her sister's husband. RW1 said no one other than her said brother-in-law contributed funds. The changed version of RW1 cannot be accepted since the same is not supported by pleadings. The pleadings cannot be accepted since the same were abandoned at the time of cross-examination. PW1 had to give up the plea that her brothers and sisters contributed funds and she had to introduce her brother-in-law as the fund provider since it came out in her crossexamination that her brothers were not financially capable of providing funds. RW1 admitted that her husband did send money to her from abroad through the N.R.I account. Therefore, the evidence of PW1 that he is without documentary evidence to prove sending of money does MA.645/08 13 not enfeeble his case." Nothing has been pointed out to us to hold that this reasoning is incorrect and illegal. For all the above reasons, we do not find anything illegal in the judgment of the Family Court holding that the property to be partitioned. Appeal fails and is dismissed. No costs. **(ANTONY DOMINIC) JUDGE.** **(P.D.RAJAN) JUDGE.** uj.