NJAMA v. HAMEEDA and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944** **RSA NO. 872 OF 2010** **AGAINST THE JUDGMENT IN OS 26/2007 OF PRINCIPAL SUB COURT,NORTH PARAVUR AS 157/2008 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR** **-----** ## **APPELLANTS/APPELLANTS/DEFENDANTS 2 & 4:** 1 NJAMA, W/O NISSAR, AGED 36 YEARS, KATTEKKATTU HOUSE, ERUMATHALA, KEEZHMADU KARA,, ALUVA VILLAGE, ALUVA TALUK. 2 NISSAR SO.MUHAMMED AGED 39 YEARS, KATTEKKATTU HOUSE, ERUMATHALA, KEEZHMADU KARA, ALUVA VILLAGE, ALUVA TALUK. BY ADVS. SRI.K.NARAYANAN (PARUR) SRI.V.RAJENDRAN PERUMBAVOOR ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1&3:** 1 HAMEEDA, AGED 53, W/O.HYDROSE, KURUMBANKUDI HOUSE, MANNAM MAKKANAI DESOM, PARAVOOTHARA MURI, PARAVUR VILLAGE, PARAVUR TALUK-683520. 2 ASHRAF, S/O.HYDROSE, AGED 39, KURUMBANKUDI HOUSE,, MANNAM MAKKANAI DESOM, PARAVOOTHARA MURI, PARAVUR VILLAGE, PARAVUR TALUK-683520. 3 RAMLA, AGED 33, D/O.HYDROSE, KURUMBANKUDI HOUSE, MANNAM MAKKANAI DESOM, PARAVOOTHARA MURI, PARAVUR VILLAGE, PARAVUR TALUK-683520. BY ADVS. P.A.AYUB KHAN NIJI K.SHAHUL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.872 of 2010** **= = = = = = = = = = = = = = = = = = Dated this the 7[th] day of October, 2022** ## **J U D G M E N T** Defendants 2 and 4 in a suit for setting aside Exts.A2 Gift Deed and Ext.A3 Sale Deed, and for partition are the appellants. The suit was decreed concurrently by the courts. 2. The plaintiff is the mother; the first defendant is her son, and defendants 2 and 3 are her daughters. The 4[th] defendant is the husband of the second defendant. The suit property belonged jointly to the plaintiff and her husband (father of defendants 1 to 3). The husband is no more. The suit is filed alleging that Ext.A2 Gift Deed dated 26.08.2004 executed by her in the name of defendants 2 and 3, and Ext.A3 Sale Deed dated 07.10.2006 executed by her in the name of the second defendant were caused to be executed by defendants 2 and 4 by fraud and misrepresentation. The plaintiff was made to believe that, for the business of the 4[th] defendant **R.S.A. No.872 of 2010** -: 2 :- he needed to avail a loan, and required the plaintiff to mortgage the property. The plaintiff agreed for the same. Making the plaintiff believe that a mortgage deed is being executed, she was caused to execute Ext.A2 Gift Deed. Subsequently, representing Ext.A3 to be a deed of renewal of the mortgage, a Sale Deed was caused to be executed. Coming to know about the fraud played by defendants 2 and 4, the suit has been filed to set aside the documents Exts.A2 and A3 and for partition. It is the plaintiff's case that she is an illiterate lady, that her son, the first defendant was abroad and defendants 2 and 4 were rendering necessary assistance to the plaintiff. This circumstance was taken advantage of by defendants 2 and 4 in causing execution of Exts.A2 and A3 documents. 3. Defendants 2 and 4 denied the plaint allegations. 4. The trial court found that the documents are vitiated by misrepresentation. It was also found that ## **R.S.A. No.872 of 2010** -: 3 :- the gift in question was in respect of undivided share of property, which is not valid under Mohammedan Law. It was also held that, there is no evidence to show delivery of possession under the gift. The findings were affirmed in appeal. It is aggrieved thereby that this Regular Second Appeal has been filed. 5. Heard learned counsel on either sides on the following substantial questions of law:- - _(i) Do the circumstances obtaining in the case justify_ - _the plea of misrepresentation and fraud urged by the plaintiff ?_ _(ii) Is not the joint possession by the donee along with the donor sufficient enough to find acceptance and delivery of possession of gift under the Mohammedan Law?_ _(iii) Is it an absolute rule under the Mohammedan Law that, gift of undivided interest over the property is invalid?_ 6. According to the plaintiff, she is an illiterate lady. Her son, the first defendant was abroad. Defendants 2 and 4 were attending to her requirements. ## **R.S.A. No.872 of 2010** -: 4 :- They represented to her that amounts were needed for the business of the 4[th] defendant and sought for her help by mortgaging the property. She agreed for the same and executed the document prepared by them. According to her, she realised the true nature of the documents only when she was threatened to be evicted from the property. 7. The courts relied on the fact that the plaintiff is an illiterate lady, and also that none of the witnesses to Exts.A2 and A3 were examined to prove the documents. It was held that the documents are vitiated. According to me, the circumstances as above does not by itself entail a finding that the documents are vitiated by misrepresentation and fraud. It is the definite case of the plaintiff in the plaint that, defendants 1 and 2 were repeatedly making demands to the plaintiff to convey the rights of the plaintiff and the first defendant over the property in their favour. The plaintiff and the first defendant were even threatened by defendants 2 and 4, it is alleged. Even in the said **R.S.A. No.872 of 2010** -: 5 :- backdrop, when a request was made by defendants 2 and 4 to mortgage the property as security for a loan of the 4[th] defendant, the plaintiff is stated to have readily agreed for the same without any demur. According to the plaintiff, she went to the office of the document writer and also the Sub Registrar, for execution of Exts.A2 and A3. Ext.A3 was executed making her believe that it is the renewal of the mortgage, is the case set up. As noticed above, when the plaintiff alleges that there was severe threat and compulsion from defendants 2 and 4 to convey the property to them, it is difficult to believe that on the request of defendants 2 and 4, the plaintiff without any hesitation went and executed some documents under the belief that it is a mortgage and its renewal. Though the son was also aware of the threat and he had also refused permission to the mother-plaintiff to convey their share over the property, he allowed the mother to go with defendants 2 and 4 to the Sub Registry to execute a mortgage; and thereafter they did not even **R.S.A. No.872 of 2010** -: 6 :- try to ascertain the nature of the documents executed. The above case of the plaintiff is very difficult to believe. The claim of the plaintiff that she is illiterate is not seen seriously challenged. But that by itself will not lead to a conclusion that on the mere allegation of the plaintiff regarding misrepresentation, the documents are vitiated. No doubt, the 2[nd] defendant has to prove that the plaintiff had executed the documents Exts.A2 and A3 knowing fully well about the nature of the documents. I proceed to analyse the materials with regard to the same. 8. Ext.A2 Gift Deed was executed on 26.08.2004. Subsequently, on 01.03.2006 the son, the first defendant executed Ext.B3 Gift Deed in favour of the plaintiff regarding his share. Pertinently, Ext.B3 Gift Deed refers to Ext.A2 Gift Deed by the mother in favour of defendants 2 and 3. It is the 1[st] defendant, son who has executed Ext.B3. Therefore, he was aware of the gift by mother. This is of significance in the background of the **R.S.A. No.872 of 2010** -: 7 :- plea in the plaint that, the plaintiff and the son were even threatened to convey the property to the 2[nd] defendant but the mother and the son (plaintiff and 1[st] defendant) refused. Strangely, as regards Ext.B3 Gift by the first defendant to the plaintiff, it is pleaded in the plaint that, though such a gift deed was executed, that gift was not accepted by the plaintiff. No reason is suggested as to why she refused to accept the gift. It is obvious that since Ext.B3 acknowledged Ext.A2 gift, the plaintiff was attempting to get over the same by making such statement. Though Ext.A2 Gift is of the year 2004, the suit is filed only in the year 2007. It is also relevant to note that, the first defendant remained ex parte in the suit, and the third defendant filed a written statement supporting the plaintiff's case. Incidentally it is also noticed that, the first defendant-son was given 14 cents of property at Aluva exclusively, which might have reasoned for Exts.A2 and A3. ## **R.S.A. No.872 of 2010** -: 8 :- 9. The courts have held that, Exts.A2 and A3 documents were not proved by examination of the attesting witnesses. It is to be noted that, it is not the plea of the plaintiff that Exts.A2 and A3 are forged documents. She admits that she had signed both the documents. According to her, she was misrepresented about the nature of the documents. An attesting witness is not required to know about the contents of the documents _**[Kumaran Kidavu v. Damodaran Nair (2013 (2) KLT 129), Salim v. Saru Umma (2011 (3) KLT 280), Mary George v. Lily (2009 (1) KLT 265), State of Kerala v. Babu (2003 (2) KLT 526), Ganesh Bhandary v. Ambunhi (1989 (2) KLT 882), Banga Chandra Dhur Biswas v. Jagat Kishore Acharjya Chowdhuri & Ors (AIR 1916 PC 110)]**_ . He need only to vouch to the signature of the executant. Therefore, non-examination of the attesting witnesses is of no consequence in the case at hand. The circumstances in the case does not enable to arrive at a conclusion that Exts.A2 and A3 documents are vitiated by fraud and misrepresentation. I am unable to agree with the ## **R.S.A. No.872 of 2010** -: 9 :- reasonings given by the courts to arrive at such a conclusion. The various circumstances as noticed above, have not been considered by the courts. Substantial question of law _(i)_ is answered accordingly. 10. It is not in dispute that, after execution of Ext.A2 gift deed the plaintiff-mother was residing in the property. It is in evidence that the second defendant also resided with her occasionally. Even going by the plaintiff's case, defendants 2 and 4 have been residing with her since the year 2004 which correlate to the period of execution of Ext.A2 gift deed. So also, according to the plaintiff, the first defendant-son is residing elsewhere, though it is pleaded that it is consequent on the threat of defendants 2 and 4. This indicates the possession of the property by the second defendant. After closure of evidence, the second defendant had filed I.A. No.2586 of 2008 producing therewith a property tax receipt and building tax receipt with respect to the property and building ## **R.S.A. No.872 of 2010** -: 10 :- situated therein to show that, based on the documents the property and the building were mutated in the names of the donees. The documents were not accepted in evidence by the trial court. The original Gift Deeds and Sale Deeds have been produced by the 2[nd] defendant as Exts.B2, B3 and B4 respectively. 11. Under Ext.A2 gift, the plaintiff reserved her right to take usufructs from the property. Law is settled that, though Mohammedan Law does not recognise retaining of a life interest, reserving the right to take usufructs and enjoyment during the life time of the donor is valid _[_ _**Sreeramachandra Avadhani V. (D) by Lrs. v. Shaik Abdul Rahim and Anr. (2014 (9) SCC 350)**_ ; _**Ahemmed Kannu Rowther v. Mohammad Kani (1965 KLT 505)**_ ; _**Alima Ummal v. Aluma Ummal (1988 (2) KLT SN 11)**_ ; _**Ibrahim Kunju Shahul Hameed and Ors. v. Pakkeer Muhammed Kunju and Ors. (1984 KLJ 890)**_ ; _**Kochu Ahammed Pillai v. Pathummal (2003 (1) KLT 826)** ]_ . A Division Bench of this Court, in _**Pathumma v. Pocker (1997 (2) KLT 958)**_ held that, ## **R.S.A. No.872 of 2010** -: 11 :- when the donor and donee are residing together, no formal entry or physical departure is necessary to prove delivery of possession. The materials on record indicate declaration, acceptance and delivery of possession, which are the essential ingredients of a valid Mohammedan Gift. Substantial question of law _(ii)_ is answered as above. 12. The trial and appellate courts held that, Ext.A2 gift being only in respect of undivided rights ( _Musha_ ) is not valid. Mulla on, “Principles of Mahomedan Law” (23[rd] Edition) defines _Musha_ as, an undivided share in the property. A gift of undivided property is, under Mohammedan Law, considered to be irregular, though not void. It could be perfected by a subsequent partition and delivery. The reason behind such principle is understood to be that, such transactions would lead to confusion in the enjoyment of the property. At least since the year 1889 in _**Muhammad Mumtuz v. Zubaida Jan**_ **R.S.A. No.872 of 2010** -: 12 :- _**[(1889) 11 All 460]** ),_ the courts have consistently held that the doctrine of invalidity of gifts on the principle of _Musha_ , is unadapted to a progressive state of society, and ought to be confined within strictest rules. The courts have always devised methods to gloss over the said rule. Various exceptions have been drawn by the courts with regard to the applicability of the rule. Justice V. R. Krishna Iyer, in _**K.P.Khader v. K.K.P.Kunhamina and Ors. (1970 KLT 237)**_ referred to _Muhammad Mumtuz's_ case (supra) and observed thus:- _“..... After hearing counsel at great length I am satisfied that the doctrine of musha is more a museum piece rather than an active principle of Muslim Law in India and its application is so encumbered with exceptions or, may be, embroidered by refinements that what survives as extant law is as difficult to decipher as the moth eaten pages of a hoary book handed over to a modern man. Indian Courts have been unwilling to abrogate the rule but equally reluctant to apply it.”_ ## **R.S.A. No.872 of 2010** -: 13 :- 13. The learned Judge referred to the decision of the Lahore High Court in _**Nazir Din & Anr. v. Mohammad Shah & Ors. [AIR 1936 Lah. 92]**_ which had stated the reason for the rule thus:- _“The raison d'etre of this rule was the avoidance of gifts that were vague, indefinite or incomplete, and the only test that should be applied in such cases is whether the gift in question is open to any of these objections; or in other words, whether the donor has still reserved to himself a loophole of escape or not. If this is not so and if the donor has done all that the law of the land requires to be done to separate himself from the property, a gift of Musha will be as valid as that of property which can be physically handed over to the donee.”_ Finally the Court concluded thus:- _“In the present times, the conditions under which the doctrine prevailed no longer hold good. Concreteness and visible change were insisted upon by the Muslim doctors of law to avoid confusion in the matters of rights and enjoyment. Those simple days are gone and in the sophisticated thinking_ **R.S.A. No.872 of 2010** -: 14 :- _of modern communities there is no likelihood of confusion if an undivided interest is made over to another. Intangible and incorporeal rights are dealt with facilely by modern jurisprudence and therefore the principle of public policy which prompted the doctrine of musha is obsolete now. Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself. Cessante ratione legis cessat ipsa lex, says the Latin maxim. May be, in the present case, I need not hold that the doctrine is dead but, being moribund, in our municipal courts that rule can be virtually removed from the armoury of a desperate Muslim donor (and his heirs) who wants to attack his own gift but has no rational ground to do so.”_ 14. In _**Kunhimoideenkutty v. Abdulkhader (1977 KLT 193)**_ while expressing the same view, this Court pointed out that the courts have carved out various exceptions to the conservative garb. This Court held:- - _“The exceptions laid down by judicial precedents_ _indicate that if the gift of the undivided share cannot affect the_ **R.S.A. No.872 of 2010** -: 15 :- _normal enjoyment of the property or if a physical partition may detrimentally affect the enjoyment of the property a gift shall not fail because it is the transfer of an undivided share in the property.”_ 15. Therein this Court held that, the rule of _Musha_ has to be specifically pleaded since necessary facts constituting the basis for the rule needs to be looked by the court. This Court further affirmed that the gift of Musha is not void ab initio and can be perfected by subsequent partition and delivery of possession. 16. In _**Hajira v. Sam Bai [1990 (1) KLT 767]**_ referring to Mulla's principle on Mohammedan Law, this Court noted the following exceptions to the Rule:- _“In the following cases gift of an undivided share though_ _it be a share in the property capable of division is valid from the moment of the gift even if the share is not divided and delivered to the donee:-_ - _(1) Where the gift is made by one coheir to another;_ - _(2) Where the gift is of a share in a zemindari or taluka;_ **R.S.A. No.872 of 2010** -: 16 :- _(3) Where the gift is of a share in freehold property in a large commercial town;_ _(4) Where the gift is of shares in a land company.”_ 17. In the case at hand, there is no specific plea that the gift deeds Exts.A2 and B3 are invalid consequent on the Musha Rule. As noticed in Kunhimoideenkutty's case (supra), specific plea of the rule is necessary. That apart, the property belonged jointly to the plaintiff and her husband (the father of defendants 1 to 3). On the death of the father, his rights devolved on the plaintiff and defendants 1 to 3 as legal heirs. Therefore, the first exception to the applicability of the Rule stated in Mulla's principle of Mohammedan Law, and held by this Court in Hajira's case (supra), applies. Exts.A2 and B3 gifts are by co-heirs to another co-heir. Therefore, they fall within the exception noticed above. The third substantial question of law is answered accordingly. ## **R.S.A. No.872 of 2010** -: 17 :- 18. On the above, the conclusions arrived at by the courts that the gift is bad, it being of undivided share and for non-delivery of possession, cannot be accepted. The challenge against Exts.A2 and A3 documents fail. Exts.A2 and A3 documents are held to be valid. In the result, the Regular Second Appeal is allowed. The decree and judgment of the Courts below are set aside. The suit will stand dismissed. Sd/- **SATHISH NINAN** **JUDGE** kns/- //True Copy// P.S. to Judge