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AIYESHAGANI versus ABU HANIFA

High Court of Madras

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Aiyeshagani v. Abu Hanifa - A.S.No. 1119 of 1989 [2002] RD-TN 186 (22 March 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22-03-2002

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ A.S.No. 1119 of 1989

Aiyeshagani ... Appellant -Vs-

1. Abu Hanifa 2. Aminagani

3. Mohamed Abdul Kader @

Sinnathambi

4. M.S.Mohamed Hussain

5. Mohamudha Ummal @

Muthamadha

6. Haja Maricar

7. Jareen (Minor)

8. Assab Ali (Minor)

9. Najlin (Minor)

10.Sidhi @ Hammed Fathima

11.Pakrudeen Ali

(Minors rep. By the

5th defendant) ... Respondents Appeal preferred against the judgment and decree dated 2-2-1988 made in O.S.No. 14/1985 on the file of the Additional District Judge, Pondicherry at Karaikal.

For appellant : Mr.T.R.Rajagopal, SC

for Mr.T.Susindran For respondents:Mr.K.Yamunan

: J U D G M E N T



The above Appeal Suit is directed against the judgment and decree dated 2-2-1988 made in O.S.No. 14/1985 on the file of the Additional District Judge, Pondicherry at Karaikal, thereby, dismissing the suit filed by the plaintiff praying for declaration that the plaintiff is the absolute owner of the suit property and the defendants have no interest, right or title to the suit property, for a further declaration that the plaintiff is entitled to possession of the suit property; to direct the defendants to hand over possession of the suit property to the plaintiff and further praying to hold an enquiry under Order 20 Rule 12 for ascertaining the future mesne profit and for costs of the suit.

2. Tracing the history of the Appeal coming to be preferred it comes to be known that it is the appellant who filed the suit on plaint averments such as that she is the elder sister of the defendants 1 and 2 and their mother is Balkisummal @ Balkis Nachial, who died on 2-3-1985; that her father Khader Sahib Maricar died in 1974; that the parents and the defendants 1 and 2 were residing in the suit property till their death; that the suit property is a tiled house; that she is the absolute owner of the same which was gifted to her during her marriage as per a "Kalyanakaditham"; that the suit property is a part of the larger extent of the house situate at No.23, Kailasanathar Koil Street, Karaikal; that one Ahamedu Maricar who was the original owner of the house donated it to his two daughters namely, Kathija Nachial and Mohamed Thayar in equal shares; that the plaintiff is the grand-daughter of Mohamed Thayar and daughter of Balkisummal; that the owner of the other half share Kathija Nachial died during 1918 and her share devolved on her father, husband, daughter and son; that their father and husband conveyed their share in favour of their son and daughter namely, Fathima Joharan and Mohamed Hussain and the said Mohamed Hussain also died in 1921 leaving his father Ahamed Maricar as legal heir who became the owner of the share of his son which he donated to his daughter Fathima Joharan in 1933, then Fathima Joharan becoming the sole owner of the share of her mother Kathija Nachial and the said Fathima Joharan donated her moist in favour of four brothers, namely, Syed Abdul Kader Maricar, Mohamed Sali Maricar, Ahamadu Maricar and Dawood maricar, thus they becoming the owner of the share of Kathija Nachial during 1951, in which the descendants of Mohamed Thayar had half share.

3. The plaintiff would further submit that the share owned by Balkisummal was donated to the plaintiff as the Sridhana property during her marriage which was solemnised according to the Mohamaden custom on 19-08-1940 and this "Kalyanakaditham" was drawn in which the donation was also referred to; that the title as well as the possession of the above portion of the house was handed over to the plaintiff and she became the absolute owner of the above portion; that the plaintiff consented separately for her father and mother for living in the portion donated to her till their lifetime; that the possession by her father and mother was a permissive one and out of love and affection without affecting the right of the donee, and during 1951 the plaintiff became entitled to the donated portion of half share and the said four brothers became the owners of the other portion of the house; that for effective enjoyment of the property the plaintiff and the four brothers entered into an exchange arrangement under a document dated 27-08-1953 whereunder the plaintiff had surrendered her right with respect to her portion in the house in favour of the four brothers and in turn they surrendered their rights with respect to their portion in favour of the plaintiff, further agreeing to erect a partition wall dividing the house into two separate complexes, one having the entrance towards Kailasanathar Koil Street and the other towards Moulasa Maricar Street, thus the plaintiff becoming the owner of the house facing Kailasanathar Koil Street and the four brothers becoming the owners of the house facing Moulasa Maricar Street.

4. The further case of the plaintiff is that her father died in the year 1974 and her mother died on 2-3-1985 having lived in her house till their death; that during the last days of her mother, her another daughter Julikaummal who is also residing at Karaikal came to the suit property for taking care of the ailing old lady; that the defendants 1 and 2 had long before left their mother and are living at Manthopu near Mayuram and Nagore respectively; that when their mother became seriously ill, it was she who took steps to inform the death of her mother to defendants 1 and 2; that even prior to the end of 40 th day mourning, the defendants 1 and 2 made it known to others that they have interest over the suit property which annoyed the plaintiff especially when she is the absolute owner of the suit property and hence she issued a notice ascertaining her right for which the defendants 1 and 2 isued a reply pointing out the mistake found in the name of the plaintiffs mother and the door number of the house and therefore, the plaintiff issued another corrected notice for which no reply was given by the defendants 1 and 2; that in the meantime the defendants 1 and 2 filed a suit on the file of the Court of Principal District Munsif, Karaikal in O.S.No. 72 of 1985 for a permanent injunction; that on an injunction order passed by the said Court, the defendants 1 and 2 inducted the other defendants i.e., defendants 3 to 5 as tenants under them without any right and collecting the monthly rent of Rs.500/- from April, 1985, and hence, the suit for the prayers extracted supra.

5. The first defendant had died during the pendency of the suit and hence the defendants 6 to 12 being his Legal Representatives they were impleaded as parties to the suit as such. The second defendant has filed a written statement which has been adopted by the first defendant thereby repudiating that the plaintiff became the owner of the suit property under the "Kalyanakaditham" and further submitting that the gift was not a valid gift under law; that since it is a gift under French Law no gift given in intervivos is valid, unless and until the deed of donation is drawn in the office of notaire; that the " Kalyanakaditham" is not a notaire nor it had been deposited in the office of notaire; that it is also not a valid gift deed under Mohamedan Law, since at the time of the alleged gift the plaintiff was aged 14 years and was not competent to accept the gift nor did any one accepted the gift on her behalf and the same is hit by the doctrine of Musha; that the suit is also barred by statute of limitation; that the plaintiff was not in possession either physically or constructively for 45 years; that immediately after the marriage, she left her parents' abode and started residing with her husband and for those years the property was exclusively possessed by Balkisummal, the mother of the plaintiff and the defendants adverse to the interest of the plaintiff and the Revenue Municipal Records etc. carried the name of mother till 1972; that the tax was paid by mother, the power connection, water charges stood in the name of the father; that it was the mother who was attending to the repairs and leasing out the portion of the properties and was maintaining the same for 40 years; that there is yet another sister namely, Kathija Nachial, who is a necessary party to the suit since she would also inherit from the mother and the suit is therefore, bad for non-joinder of necessary parties. On such grounds the defendants would ultimately pray to dismiss the suit with costs.

6. Based on the above pleadings the trial Court would frame the following issues namely;

(i) Whether the gift dated 19-8-1940 is valid ? (ii) Whether the plaintiff has absolute title over the suit property ?

(iii) Whether the property described in the gift and the property described in the plaint schedule are one and the same after exchange? (iv) Whether the suit is barred by limitation ?

(v) Whether the suit is bad for non joinder of necessary parties ?

(vi) What is the amount of mesne profits which the defendant is liable to pay if any to the plaintiff ?

(vii) Whether the suit is properly valued ?

Thereafter, the trial Court would order for the trial to be held during which one witness would be examined on either side as P.W.1 and D.W.1 for oral evidence and for documentary evidence, the plaintiff would mark seven documents as Exs.A.1 to A.7, Ex.A.1 dated 19-08-1940 is the Marriage certificate of Abdul Hamid, Ex.A.2 dated 27-08-1953 is the Exchange Deed, Ex.A.3 dated 27-03-1985 is the legal notice, Ex.A.4 dated 2.4.1985 is the Reply Notice to Ex.A.3, Ex.A.5 dated 8.4.1985 is the Rejoinder Issues and Ex.A.6 and Ex.A.7 both dated 9-4-1985 are the Postal Acknowledgments. On the part of the defendants, the documents marked are two in number i.e., Exs. B.1 and B.2 which are respectively the Electricity and House Tax receipts.

7. The trial Court would first deal with issues No. 1,2 and 4 and would examine the oral evidence adduced by P.W.1 the husband of the plaintiff and Ex.A.1, the "Kalyanakaditham" and would trace the history of the suit property and Ex.A.2, Exchange Deed and their recitals, further taking stock of the situation that the plaintiff permitting her parents to reside in the house and after the death of the parents the defendants 1 and 2 coming to light and claiming the property subsequently, inducting the defendants 3 to 5 as their tenants. The Court below would then go into dissecting the validity of the gift made under Ex.A.1, the "Kalyanakaditham" and analysing the three ingredients, namely;

(i) declaration of donation;

(ii) acceptance by the donee; and

(iii)delivery of possession

and having its own discussions would remark that there is no evidence to show that the plaintiff received any income nor there is any evidence to prove that she carried down any repair. The Court below would not admit the plea of the plaintiff that she has permitted her parents to reside there till their death and therefore the possession and enjoyment by her parents must be deemed to be permissive possession. The Court below would further remark that the electricity service connection, water connection were also stand in the name of her father and the electricity charges were paid by her father only and the tax receipts bearing the name of the plaintiff's mother and that it was the parents who, were, for all practical purposes, in possession of the suit house and therefore, in the absence of such evidence to prove the delivery of possession to the donee, the lower Court would arrive at the conclusion that the claim of the plaintiff becomes invalid.

8. The lower Court would further take into account the accusation levelled by the defendants that at the time of gift the plaintiff was hardly 14 years of age and she could not validly accept the gift and regarding this question of age also since there is no evidence to the effect that the plaintiff attained puberty at the time of marriage so as to consider to have attained majority as per Mulla's Mohammedan Law, the lower Court would not accept that she was a major, capable of accepting the gift.

9. Further going to the French Civil Law and commenting on Ex.A.1 having not been executed in the presence of a notaire and stating that it is laid down under Article 931 of the French Civil Code that the donation gift deed can be executed only before the notaire, if it is to be valid and further accepting that the customary law for Muslim has been accepted by the French Code Civil and approving that Ex.A.1, "Kalyanakaditham" would be approved under the religious usages of the Muslim Law, but would take exception for the same not having been regularised by executing the same before a notaire and since the same being a civil right regulated by Civil Acts and the same having not been in accordance with Article 931, the Court below would hold that Ex.A.1 is not a valid document under the then existing law.The Court below further remarking that for having not accepted and taken possession of the property for over 30 years, the plaintiff's right got extinguished under Article 2232 of Code Civil. Further commenting that though the plaintiff might had permitted her parents to reside in the house, it does not mean that she should completely refrain from exercising any right over the property and in the absence of any proof in exercise of her ownership for a period of 30 years the trial Court would ultimately hold the right of the plaintiff is barred by limitation under Article 2232 of Code Civil and hence under this score also, the plaintiff is not entitled to the suit property, thus deciding all the three issues against the plaintiff, consequently, deciding the other issues which are almost halfshoots of the result of the main issues, the trial Court would ultimately dismiss the suit altogether, but without costs.

10. During arguments the learned counsel appearing for both the parties would only repeat the factual position of the case as projected before the lower Court and on the part of the respondents, the learned counsel would sail along with the judgment of the lower Court with no new or additional materials or any law having been brought forth anew and therefore, this Court is left with no choice but to decide the above matter based on the materials placed on record.

11. In the above facts and circumstances of the case, the only point that arises for consideration is "Whether the lower Court is right in dismissing the suit holding that Ex.A.1 is invalid, since the possession was not delivered to the plaintiff and since the plaintiff was a minor and further holding that Ex.A.1 is hit by Articles 931 and 2 232 of the Pondicherry Civil Code ?".

12. It is a case by one of the daughters as plaintiff praying for declaration that she is the absolute owner of the suit property; that the defendants have no interest, right or title to the suit property and yet another declaration that the plaintiff is entitled to the possession of the suit property and to direct the defendants to hand over physical possession of the same, wherein, the defendants are none other than her own brothers and sisters and some of them being deceased, the legal representatives have been brought on record as necessary parties to the proceedings.

13. The plaintiff's case in a nut shell is that her father died in the year 1974 and her mother died on 2-3-1985; that her mother Balkisummal @ Balkis Nachial being the absolute owner of the suit property at the time of her marriage on 19-08-1940, which was solemnised according to the Mohammedan Law and custom, she donated the suit property to the plaintiff as the sridhana property as it is the custom in vogue, writing it down in the form of "Kalyanakaditham" marked as Ex. A.1 and thus the title and possession of the portion of the suit property was handed over to the plaintiff and she became the absolute owner of the above portion, of course with her consent, it was also written in Ex.A.1 to the effect that the parents could live for their life in a portion of the donated property and the said possession by the parents is only a permissive occupation and out of love and affection without affecting the rights of the donee thus herself becoming entitled to the half share of the suit house, her four brothers became entitled to the other half share and on an exchange deed dated 27-08-1 953 the portions belonging to the plaintiff and the four brothers have been exchanged by mutual consent; that after the death of her parents even prior to the end of the 40th day mourning, the defendants 1 and 2 made it known to others that they have interest over the suit property and they went to the extent of even filing the suit for permanent injunction and on temporary injunction order passed by the Court the said defendants inducted the other defendants 3 to 5 as their tenants without any right and collecting the monthly rent of Rs.500/- from April 1985 and hence, the suit on the prayer extracted supra.

14. On the part of the defendants their main attack is the " Kalyanakaditham" and classifying the donation of the property given in favour of the plaintiff at the time of her marriage as a gift and would put up the argument that under the French Law a gift had to be drawn in the office of a notaire and since the plaintiff at the time of her marriage was only 14 years old, being a minor it was not a valid gift, since under Mohammedan Law, any such gift cannot be given in favour of a minor without appointing guardian on her behalf; that the suit was also barred by limitation, since she was not in possession either physically or constructively for a long period.

15. On such legal grounds admitting Ex.A.1 deed drawn at the time of the marriage of the plaintiff, the defendants would put up a case of gift and the Court below also having framed the issues in the same line would ultimately conclude dismissing the suit filed by the plaintiff since on such parameters of Ex.A.1 branding it as a gift deed the lower Court was able to arrive at only such conclusion and hence the Appeal on such grounds as brought forth in the grounds of Appeal.

16. A perusal of the issues framed by the lower Court, the Court below even without having a discussion on Ex.A.1, whether it could be fundamentally accepted as a gift deed has completely framed the issues branding the same as a gift and framing the issues, whether it is valid ? and whether the plaintiff has absolute title over the suit property ? etc.

17. On the otherhand the lower Court should have focussed its attention that it is not the term gift that is employed for the property conveyed under Ex.A.1, in favour of the plaintiff, but the donation as a sridhana property at the time of her marriage as it is the custom in vogue and therefore, the characteristic of gift and the consequences of the same could not be seen in a donation made in favour of a minor girl at the time of her marriage by the Muslim parents nor is it the admitted case of the plaintiff that it is a gift in the legal sense of the term, but something different from that of the gift. However, even presuming that it is a gift as per Section 155 of the Mohammedan Law, it is very clearly contemplated as follows: "No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward, all that is necessary is to establish a bonafide intention to give".

From the above section of the Mohammedan Law, it is very clear to the effect that firstly no transfer of possession is required in the case of a gift by a father to his minor child, consequently, it is also necessary to establish a bondfide intention to give and ultimately, it is further clear thatn when a father or mother themselves as the natural guardian bequeathed the property on his or her minor child at the time of the marriage, no other guardian need be appointed as it is required of in this case by the defendants and by the lower Court in its judgment.

18. The other big question that is to be answered in this Appeal is, "Whether Ex.A.1. "Kalyanakaditham" is to be signed by a notary, as it is said to be required under Article 931 of the French Code?"

19. For the above general rule, Chapter 8 of the French Code, " dealing of donations made in the marriage contract to the parties to the marriage and to the issue of the marriage", under Article 1081 " requiring that it should be signed before a notary" still under Article 10 86 (f) the explanation serves as an exception, wherein, it is made crystal clear that "the French Law wished to favour marriage and such gifts are therefore, not subject to the restrictions contained in the above mentioned Articles".

20. For all the above clarifications of the legal position which are inherently built in the Act itself, it is not a subject that it could be very easily decided giving real interpretation which is generally applicable to gifts under Pondicherry Civil Code, but the subject has to be looked into from the point of view of the property being conveyed as a donation by the parents in the form of sridhana property at the time of the marriage of the dauther as it is seen under Ex.A.1 . In the case in hand especially when natural parent is offering such property in favour of a minor daughter at the time of her marriage and in this factual situation, applying the position of law, assessing the same in depth and giving real interpretation for the same specifically applying the legal norms to the facts of the case the only decision that could be arrived at by the lower Court is to decree the suit as prayed for.

21. Patent errors of law and perversity in approach Writs-Large in not only the erroneous conclusions arrived at by the trial Court, but also in the manner in which the same has been arrived at and therefore, the judgment and decree passed by the trial Court only become liable to be set aside. The point is thus answered against the respondents and in favour of the appellant.

In result,

i.The above Appeal Suit succeeds and the same is allowed; ii.The Judgment and Decree dated 2-2-1988 made in O.S.No. 14/1985 on the file of the Court of Additional District Judge, Pondicherry at Karaikal, are set aside;

iii.The suit in O.S.No. 14 of 1985 on the file of the Additional District Judge, Pondicherry at Karaikal, is decreed; iv.However, there shall be no order as to costs. 22-03-2002

Index : Yes

Website: Yes

paa

To

1. The Additional District Judge

Pondicherry.

2. The Section Officer

V.R. Section

High Court

Madras 104.

V.KANAGARAJ,J

Judgment

in A.S. No. 1119/1989

22-03-2002




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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