Nadeera Beevi and others v. Mallika Beevi and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** ## **THURSDAY, THE 28TH DAY OF NOVEMBER 2019 / 7TH AGRAHAYANA, 1941** ## **RSA.No.1047 OF 2012** **AGAINST THE JUDGMENT AND DECREE OF SUB COURT, ATTINGAL IN AS 4/2004 DATED 17.01.2012 PREFERRED AGAINST THE JUDGMENT OF THE MUNSIFF'S COURT, VARKALA IN OS 119/01 DATED 08.10.2003.** **-----** ## **APPELLANTS IN RSA/RESPONDENTS 1 TO 5 IN AS/DEFENDANTS 1 TO 5 IN SUIT :** - **1 NADEERA BEEVI, D/O NOOHUKANNU, RESIDING AT SHAJI BUILDING, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM DISTRICT.** - **2 MUBARAQ,** **S/O MUHAMMED IBRAHIM, RESIDING AT SHAJI BUILDING, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM DISTRICT.** - **3 SHAJAHAN,** **S/O MUHAMMED IBRAHIM,RESIDING AT SHAJI BUILDING, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM DISTRICT.** - **4 JASEENA,** **D/O MUHAMMED IBRAHIM, RESIDING AT SHAJI BUILDING, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM DISTRICT.** - **5 RIYAS,** **S/O MUHAMMED IBRAHIM, RESIDING AT SHAJI BUILDING, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.** **SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.KRISHNA KUMAR SRI.R.SURAJ KUMAR SRI.SUNIL J.CHAKKALACKAL** **RSA.No.1047 OF 2012 -2-** ## **- - RESPONDENTS IN RSA APPELLANTS & RESPONDENTS 6 TO 8 IN AS PLAINTIFFS AND DEFENDANTS 6 TO 8 IN SUIT:** - ***2 1 MALLIKA BEEVI, D/O NOOHULABBA (WRONGLY SHOWN AS NOOHULABU IN THE JUDGMENT AND DECREE IN A.S. AND JUDGEMENT IN O.S.) RESIDING AT BASHEER MANZIL, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM-695604. [DIED; LRs RECORDED]** - **2 JAMEELABEEVI, D/O MUHAMMED IBRAHIM, RESIDING AT ALUMMOOTTU VEEDU, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM-695604.** - ***1 3 SHAINA BEEVI, D/O MUHAMMED IBRAHIM, RESIDING AT THENGUVILA VEEDU, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM-695604. [DIED; LRs IMPLEADED]** - **4 NAZEEMA BEEVI, D/O MUHAMMED IBRAHIM, RESIDING AT BASHEER MANZIL, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM-695604.** - **5 ABDUL SALAM, S/O MUHAMMED IBRAHIM, BASHEER MANZIL, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM-695604. PRESENT ADDRESS: M.ABDUL SALAM, 13 UJLN, DATO MUSA, PENGKALAN, RINTING KAMPUNG PASIR, 81200, TAMPOI, JOHOR BHARU, MALAYSIA.** - **6 MUHAMMED BASHEER, S/O MUHAMMED IBRAHIM, RESIDING AT THENGUVILAVEEDU, PALLICKAL DESOM, PALLICKAL VILLAGE, PALLICKAL P.O., KILIMANOOR, THIRUVANANTHAPURAM-695604. PRESENT ADDRESS: MUHAMMED BASHEER 13 UJLN, DATO MUSA, PENGKALAN, RINTING KAMPUNG PASIR, 81200, TAMPOI, JOHOR BHARU, MALAYSIA.** - ***1 ADDL. RESPONDENTS 7 TO 11** **ADDL. R 7 M.NAZAR, AGED 48 YEARS, RESIDING AT THOTTINKARA PUTHEN VEEDU, THOTTATHARA, ARKANNOOR P.O.,KOLLAM DISTRICT- 691 533.** **RSA.No.1047 OF 2012 -3-** ## *** - 3 ADDL. R8 TO R11 MINORS** **ADDL. R 8 NADIRSHAH, AGED 15 YEARS, S/O. NAZAR, RESIDING AT THOTTINKARA PUTHEN VEEDU, THOTTATHARA, ARKANNOOR P.O., KOLLAM DISTRICT- 691 533.** ## **ADDL. R 9** **SIDIQUE, AGED 12 YEARS, S/O. NAZAR, RESIDING AT THOTTINKARA PUTHEN VEEDU, THOTTATHARA, ARKANNOOR P.O., KOLLAM DISTRICT- 691 533.** **ADDL. R 10 MUNEER, AGED 10 YEARS,** **S/O. NAZAR, RESIDING AT THOTTINKARA PUTHEN VEEDU, THOTTATHARA, ARKANNOOR P.O., KOLLAM DISTRICT- 691 533** **ADDL. R 11 FAIZAL, AGED 14 YEARS, S/O. NAZAR,RESIDING AT THOTTINKARA PUTHEN VEEDU, THOTTATHARA, ARKANNOOR P.O., KOLLAM DISTRICT- 691 533.** ***1** [ **ADDL. RESPONDENTS R7 TO R11 ARE IMPLEADED AS LEGAL HEIRS OF THE DECEASED RESPONDENT NO.3 AS PER ORDER DATED 17/12/2013 IN IA 758/2013]** *** 2 [AS PER THE ORDER DATED 08/08/2017 IN MEMO VIDE CF 4711/2017 DATED 28/7/2017, RESPONDENTS 2 AND 4 TO 6 WHO ARE ALREADY IN THE PARTY ARRAY ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST RESPONDENT]** *** 3 [ADDL. R8 TO R11 ARE MINORS AND THEY ARE REPRESENTED BY GUARDIAN ADDL. R7 WHO IS THEIR FATHER]** ## **R1-2 BY ADV. SRI.M.R.RAJESH** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2019, THE COURT ON 28.11.2019 DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RSA No.1047 of 2012** **= = = = = = = = = = = = = = = = = = Dated this the 28[th] day of November, 2019** ## **JUDGMENT** Defendants 1 to 5 in a suit for partition are the appellants. The suit was dismissed by the trial court. On appeal, the decree was set aside and a preliminary decree for partition was passed. 2. The plaint schedule consists of three items of properties. Item 1 is a commercial cum residential plot and items 2 and 3 are agricultural lands. They belonged to one Muhammed Ibrahim. He had three wives. The first plaintiff is the first wife. The second plaintiff and defendants 6 to 8 are the children born to them. The first defendant is the second wife. Defendants 2 to 5 are the children born in the said wedlock. The third wife (divorced) is Hayarunnisa Beevi. The third plaintiff is the daughter born to Muhammed Ibrahim in her. Muhammed Ibrahim died on 18.11.1995. The suit is filed claiming partition of the properties. 3. Defendants 1 to 5 viz. the wife and children RSA No.1047 of 2012 :- 2 :- in the second wedlock, defend the claim for partition relying on Ext.C1 Will dated 30.06.1981 executed by Muhammed Ibrahim constituting them as the legatees of the properties sought to be partitioned. There is a further contention that plaint schedule item no.1 property was purchased with the consideration obtained by sale of property belonging to the first defendant and that the building thereon was constructed utilising the funds obtained by sale of her other properties. 4. The trial court upheld Ext.C1 Will and dismissed the suit. Lower appellate court set aside the decree and judgment of the trial court and passed a preliminary decree for partition. Aggrieved, defendants 1 to 5 are in appeal. 5. Heard learned Senior Counsel Sri.S.V.Balakrishna Iyer on behalf of the appellants-defendants 1 to 5 and Sri.M.R.Rajesh, learned counsel for respondentsplaintiffs on the following substantial question of law:- “Whether the silence and inaction for a number of years by the heirs excluded under a Will, will not amount to implied consent to the RSA No.1047 of 2012 :- 3 :- bequest when it is proved that they are aware of the will ?” 6. The bequest under Ext.C1 Will being in favour of an heir, under Mahomedan Law, the bequest will be valid only if consented to by the other heirs. It would be apposite to refer to the relevant portion of Paragraph 117 of Principles of Mahomedan Law by Sir Dinshaw Fardunji Mulla which reads thus:- “ **117. Bequests to heirs—** A bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share. A bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. Neither inaction nor silence can be the basis of implied consent.” 7. The consent need not be express and could even been implied. However, mere inaction or RSA No.1047 of 2012 :- 4 :- silence does not amount to implied consent. 8. Admittedly in the case at hand, there is no express consent. It is to be found out if there has been implied consent by the other heirs of Muhammed Ibrahim. The learned Senior Counsel made exhaustive arguments as to whether acquiescence could amount to consent and contended that even passive acquiescence may at times amount to consent. The learned counsel drew my attention to the decision of this Court in Abdul Kadir v. Hameedamma [1988 (2) KLT 643] wherein this Court has laid down the following principles:- (a) Consent can be express or implied; (b) Consent can be inferred from circumstances and conduct; (c) Consent can be inferred even from the conduct of the heirs during the life time of the testator if they had knowledge of the disposition. (d) Long silence after the death of the testator without claiming as a heir and with the knowledge of the bequest, draws a presumption of consent. RSA No.1047 of 2012 :- 5 :- (e) Even passive acquiescence with the knowledge of the disposition can give rise to presumption of consent. (f) Whether there has been consent or not is a question of fact in which an acid test or hard and fast guidelines cannot be provided. 9. The subsequent judgment of this Court in Abdulkadar v. Pathumma Mohammedan [1993 (2) KLT 1025] has also taken the same view. Dilating on the meaning of the term “acquiescence”, the learned Senior Counsel drew my attention to various authorities. In K.S.Chidambaram v. Gomathi Ammal & Ors. [(1996) 2 MLJ 59] the term was explained thus, “Acquiescence” imports not only full knowledge of facts, which will enable the parties to the factual and actual action, but also wilful shutting of his eyes and the positive inaction tantamounting to an implied consent. In Jago Bundhoo Tewaree v. Kurum Singh [22 W R 341] it was held, “ Before a man can be held to have given by his conduct an implied assent to a transaction especially one which operates as a conveyance of a valuable estate, it RSA No.1047 of 2012 :- 6 :- must be shown that he was fully aware of what the transaction was, and what effect it would have upon his interests at assent.” In Black's Law Dictionary , the meaning is ascribed thus, “Acquiescence arises where a person who knows that he is entitled to impeach a transaction or enforce a right neglects to do so for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right. A form of equitable estoppel”. This court in Sulaiman v. Abubacker [1990 (2) KLT SN. Case No.22] held, a cquiescence means absent or acceptance by a party when he came to know that his right has been transgressed. Acquiescence does not simply mean standing by. It does not mean quiescence only. It means assent, after the party has come to know of his right. In Izzul Jabbar Khan Azizul Jabbar and Ors. v. Chairman District Council Kuchery Ward Seoni and Ors. [AIR 1957 Nag 84] it was observed, “ It would be impossible to imply consent of the heir unless it was shown that they knew of the will, knew of its contents and, RSA No.1047 of 2012 :- 7 :- deliberately stood by and allowed the village to be mutated in the names of the legatees”. 10. What appears to be significant is that, mere inactivity or refraining from taking any action or claiming as an heir is not sufficient. That has to be coupled with the knowledge regarding the disposition. 11. The materials in the present case are to be analysed to find out if there has been acquiescence or a passive inaction by the other legal heirs of Muhammed Ibrahim with due knowledge regarding Ext.C1 Will. 12. Muhammed Ibrahim died on 18.11.1995. The present suit is filed in the year 2001. The period of six years could not be by itself regarded as a period of long silence. Even assuming it to be so, as noticed supra the main question to be answered is, did the other heirs have knowledge of the disposition - Ext.C1 Will. The learned Senior Counsel for the appellants rely on various conveyances executed by Muhammed Ibrahim in his life time to all the heirs except defendants 1 to RSA No.1047 of 2012 :- 8 :- 5, as a circumstance to contend that all the heirs had acquiesced to the disposition. He relies on Ext.B5 conveyance in respect of three acres of property to the sixth defendant, Ext.B6 conveyance with respect to 75 cents in favour of the third plaintiff and Ext.B33 conveyance with respect to 25 cents in favour of Hayarunnisa Beevi. He would also incidentally refer to Ext.B7 to B16 conveyances whereunder various extents of properties covered under Ext.C1 Will was also disposed of by Muhammed Ibrahim. In my view the above conveyances made by Muhammed Ibrahim would at best enable the court to find that there has been equitable distribution of assets by him. However, that will not enable the Court to find that the other heirs of Muhammed Ibrahim were aware of Ext.C1 Will or according their consent. No material could be brought out to indicate that the other heirs of Muhammed Ibrahim were aware about the disposition. In the absence thereof, mere inaction or silence would not help to make out a case of implied consent. Therefore, in the absence of any RSA No.1047 of 2012 :- 9 :- circumstances indicating knowledge and consent of the disposition on the legal heirs of Muhammed Ibrahim, Ext.C1 Will cannot be upheld. The substantial question of law is thus answered against the appellants. 13. Relying on the exposition of the meaning of the term “acquiescence” referred to above, the learned Senior Counsel would raise an argument that, Defendants 6, 7 and 8 remained ex parte and therefore, it constitutes passive inaction with knowledge of the right and that amounts to acquiescence and implied consent. In spite of the view taken by certain Courts against that contention I would have ventured to consider the argument, but for the fact that, this is not a suit filed asserting a Will and claiming rights thereunder. The suit is filed challenging the Will alleging lack of consent and it is in the said proceeding that they have chosen not to appear. At best it can only be considered that they have no objection to the plaint claim or that they also support the plaint claim, implying thereby that RSA No.1047 of 2012 :- 10 :- they also support the case that no consent is given under Ext.C1 Will. Therefore the said contention fails. 14. Another contention of the appellants is that plaint item no.1 property was purchased utilizing the funds obtained by sale of property of the first defendant. The mere proximity in the two transactions would not be by itself sufficient to uphold the said contention. The further contention that the building situated in plaint item no.1 was put up utilizing the consideration obtained by sale of properties of the first defendant under Exts.B3 and B4 conveyance, is also not supported by materials. 15. The fact that the appellants-defendants 1 to 5 are residing in the residential building in plaint item no.1 is not disputed. Ext.B18 is the ration card, Exts.B24 to 30 are the building tax receipts in favour of the defendants 1 to 5. PW1 in cross-examination admits the residence of defendants 1 to 5 in plaint item no.1 property. Rent Control Proceedings were initiated by defendants 4 and 5 as RCP Nos.2/2000 and 3/2000 RSA No.1047 of 2012 :- 11 :- before the Rent Control Court, Varkala, against a tenant with respect to shop rooms. Order of eviction was passed by the Rent Control Court therein, on 31.07.2001. Rent Control Appeals are stated to have been filed as RCA Nos.75/01 and 76/01. It is only to notice that the appellants appear to have been dealing with the shopping complex situated in plaint item no.1. Though the plaintiffs claimed that the rent of the shop rooms are being received by them, no evidence in the said regard is produced. 16. The plaintiffs are entitled to only 14/224 shares each thus totalling to 42/224 shares. Defendants 6, 7 and 8 remained ex parte and have not come forward claiming any share. The appellants-defendants 1 to 5 are residing in plaint 1. The lower appellate court has directed allotment of item 1 to defendants 1 to 5-appellants herein as far as possible. But on the facts as noticed above, I deem it appropriate that the shares of the appellants-defendants 1 to 5 be allotted exclusively from plaint item no.1. The residential RSA No.1047 of 2012 :- 12 :- building shall be allotted exclusively to defendants 1 to 5. The shares of the plaintiffs shall be allotted from plaint item nos.2 and 3. The value of the shares can be equalized by payment of owelty. 17. While upholding the decree of the lower appellate court regarding partibility of the properties, the direction therein regarding the allotment of the properties in final decree shall stand modified to the above extent. The appeal is allowed as above. No costs. **Sd/SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge