Kerala High Court
Laila Beevi @ Laila Buhari vs N.Sumina @ Summayya on 13 August, 2009
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 424 of 2009()
1. LAILA BEEVI @ LAILA BUHARI,
... Petitioner
Vs
1. N.SUMINA @ SUMMAYYA , D/O.NAZEER,
... Respondent
2. N.SUDHEER, S/O.NAZEER,
3. T.NAHEEMA BEEVI, D/O.THAJUDEEN,
4. M.MUOHAMMED HUSSAIN,
5. AURANGAZEB, S/O.AHMMED ALI,
6. B.MOHANACHANDRAN NAIR,
7. A.THAHA, S/O.ALIYARKUNJU,
8. A.M.ASHRAF,S/O.ABDUL KARIM,
9. THANUJA ASHRAF, D/O.RAMLA BEEVI,
10. A.THAHA, S/O.ASANARUPILLAI,
11. ABDUL KHARIM, S/O.MUHAMMED THAMPI,
For Petitioner :SRI.B.KRISHNA MANI
For Respondent :SRI.G.S.REGHUNATH(COVEATOR)
The Hon'ble MR. Justice V.RAMKUMAR
Dated :13/08/2009
O R D E R
CR
V. RAMKUMAR, J.
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R.F.A. No. 424 of 2009
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Dated: 13-08-2009
JUDGMENT
The 11th defendant in the suit O.S. No. 137 of 1992 on the file of the Sub Court, Attingal is the appellant in this Appeal.
PRAYER IN THE PLAINT The above said suit instituted by respondents 1 and 2 herein was one for a declaration of the plaintiff's title as per Ext.A3 gift deed dated 27-12-1977 and for a declaration that Ext.A4 cancellation deed and subsequent deeds of transfer executed by the plaintiffs' father (first defendant) are void and for a perpetual injunction restraining the defendants from trespassing into the plaint schedule properties and also for recovery of possession of the plaint schedule properties on the strength of the plaintiff's title in case it is found that possession of the properties are with defendant No. 4 onwards.
THE PLAINT AVERMENTS
2. The case of the plaintiffs can be summarised as follows:-
The two plaintiffs are the children born to the first R.F.A. No. 424 of 2009 -:2:- defendant Nazeer and his wife the 3rd defendant Naheema Beevi. The 2nd defendant Mariyam Beevi is the mother of the first defendant. Since the plaintiffs are minors, the suit is instituted through their maternal uncle acting as their next friend. Plaint schedule item Nos. 1 to 3 were obtained by the first defendant as per a partition deed registered as document No. 2206 of 1975 S.R.O. Kazhakoottam (Ext.B4) and plaint schedule item No. 4 was purchased by the first defendant as per Ext.A2 registered sale deed dated 5-10-1997. The first defendant was in possession and enjoyment of the properties paying the tax etc. While so, defendants 1 and 3 jointly executed Ext.A3 gift deed dated 27- 12-1977 gifting all the plaint schedule properties to the first plaintiff, then a minor child and to the unborn children, if any, to be born to the donors. At the time of the gift deed the 2nd plaintiff was not born. The gift was accepted by the 3rd defendant mother and the 3rd defendant was holding the properties in trust for the donees. Subsequently, the first defendant executed Ext.A4 cancellation deed dated 15-11-1979 revoking Ext.A3 gift . The said cancellation deed was executed without the junction of the 3rd defendant. Ext.A4 cancellation deed is void ab initio and will not affect the right and title of the minor plaintiffs in whose favour Ext.A3 gift executed by defendants 1 and 3 jointly had become complete and irrevocable. The first defendant had filed a suit as O.S. No. 62 of 1979 before the Sub Court, Attingal for R.F.A. No. 424 of 2009 -:3:- setting aside a sale deed executed by him in favour of his wife, the 3rd defendant. The Ist defendant alleged in the said suit that the sale deed was devoid of consideration and was vitiated by fraud and undue influence. The said suit was contested by the 3rd defendant and the Sub Court dismissed the suit. It was during the pendency of the said suit that the first defendant executed Ext.A4 cancellation deed. An appeal filed by the Ist defendant as A.S. No. 125 of 1986 was also dismissed. After Ext.A4 cancellation deed the first defendant executed Exts. A9, A5 and A7 transfers in favour of strangers. The 4th defendant to whom 60 cents of land along with the house in plaint schedule item No. 1 was sold under Ext.A5 has further sold the said property to the 5th defendant as per Ext.A6. Since Ext.A4 cancellation deed is null and void, all subsequent transfers effected by the first defendant father are invalid. Hence, the suit.
3. Initially, defendants 5 and 7 alone filed separate written statements.
DEFENCE OF D5 The 5th defendant contended as follows:-
It is for the plaintiffs to decide as and when they attain majority, whether they should claim any right under Ext. A3 settlement deed and whether they should challenge Ext.A4 cancellation deed. They have a right to ratify Ext.A4 cancellation deed. Hence, the next friend who has filed the suit has no right to R.F.A. No. 424 of 2009 -:4:- maintain the action which which is premature. The plaintiffs are under the care and protection of their mother and not under the next friend. The plaint averment that the plaint schedule items 1 to 3 absolutely belonged to the first defendant is denied. Under the partition deed of 1975 the 2nd defendant who is the mother of the first defendant had a life estate over the properties of the first defendant who is entitled to the properties subject to the right of the 2nd defendant. The properties were in the actual physical possession of the 2nd defendant and not in the possession of the first defendant. The 3rd defendant had no right or possession over the properties. Even though Ext.A3 settlement deed was executed by the first defendant he never had an intention to bring into effect the said document. Nobody had accepted the settlement deed for and on behalf of the plaintiffs. The first defendant was planning to go to Gulf Countries and he wanted the 3rd defendant to look after the properties while he was away. That was the reason why the name of the 3rd defendant was also shown in Ext.A3 settlement deed. Ext.A3 gift is not in accordance with the provisions of Muslim Law. It is not true that the 3rd defendant had accepted the gift for and on behalf of the plaintiffs and the 3rd defendant did not get any right or possession over the property. Since the first defendant did not go to Gulf the document did not come into effect. The settlement deed was executed for a specific purpose and it become void when that R.F.A. No. 424 of 2009 -:5:- purpose failed. It is true that the first defendant had filed a suit against the 3rd defendant and the same was dismissed. This defendant admits the execution of Ext.A4 cancellation deed by the first defendant. By executing the said cancellation deed, Ext.A3 became void. Therefore, the plaintiffs will not get any right under Ext. A3 settlement deed. The sale deeds in favour of defendants 4 and 5 are valid.
DEFENCE OF D7
4. The suit was resisted by the 7th defendant contending inter alia as follows:-
The next friend who has instituted the suit on behalf of the minor plaintiffs has no locus standi to do so or to represent the minors. The suit has been filed by the next friend in collusion with the 3rd defendant who is the mother and natural guardian of the plaintiffs. The 3rd defendant is not contesting the suit on account of the said collusion. The next friend is a close relative of the 3rd defendant. The minor plaintiffs were not under the care and protection of the next friend as alleged. Execution of Ext.A3 gift deed is admitted. But the said gift deed was cancelled and the gift is no more in force. The averment that the gift was accepted by the 3rd defendant for and on behalf of the plaintiffs is denied. There was no acceptance of the property mentioned in the gift R.F.A. No. 424 of 2009 -:6:- deed. Defendants 1 and 3 were not on good terms. Ext.A3 settlement deed will not create any right or interest over the properties in favour of the plaintiffs. The 3rd defendant is not in possession of the properties as alleged. The plaintiffs never accepted the gift deed. The 3rd defendant also had not accepted the gift deed. The gift deed had not become absolute or irrevocable as it was not accepted. The property was not physically handed over to the plaintiffs. The first defendant had every right to cancel the settlement deed since it was not accepted by the donees. Exts.A5 sale deed dated 4-7-1981 and Ext.A6 sale deed dated 15-12-1990 are valid documents. Likewise, Ext.A10 sale deed dated 15-10-1988 is also valid. Similarly, Ext.A9 mortgage deed executed by defendants 1 and 2 in favour of the 8th defendant is also valid. The plaint averment that the 8th defendant had fraudulently obtained a certificate of purchase in respect of plaint schedule item No. 4 covered by Ext.A9 sale deed is denied. The Civil Court cannot consider the correctness or otherwise of the certificate which is not challenged. This defendant is a bona fide purchaser of plaint schedule item No. 4 as per Ext.A10 sale deed and 23 cents out of plaint schedule item No. 1 as per Ext.A7 sale deed. None of the documents executed by the first defendant pursuant to Ext.A4 cancellation deed is invalid or inoperative. The suit properties have not been properly valued and the Court Fees paid is insufficient. The R.F.A. No. 424 of 2009 -:7:- plaintiffs are not entitled to any of the reliefs as prayed for in the suit which may be dismissed.
THE EARLIER DECREE
5. Originally as per judgment and decree dated 22-2- 1995 the Court below decreed the suit with regard to the plaint schedule item Nos. 1 to 3 but dismissed the suit so far as it relates the the plaint schedule item No. 4 admeasuring 46 cents covered by Ext.A9 mortgage dated 20-3-1981 executed by the first defendant and his mother (the 2nd defendant) in favour of the 8th defendant who had obtained a patta in respect of the same and had assigned the same to the 7th defendant as per Ext.A10 sale deed dated 15-10-1988.
THE EARLIER APPEALS
6. Aggrieved by the dismissal of the suit regarding the plaint schedule item No.4 the plaintiffs filed an appeal before this Court as A.S. 233 of 1999. Aggrieved by the decree in so far as it relates to the 60 cents of the plaint schedule item No. 1 along with the building the appellant herein who was then a stranger to the suit filed an appeal as A.S. No. 432 of 1997 before this Court. Both the above appeals were heard together and disposed of by a common judgment dated 10-4-2008. The 7th defendant raised a R.F.A. No. 424 of 2009 -:8:- contention before this Court that since both the plaintiffs were minors on the date of institution of the suit in the year 1990 and also since both of them had the right either to repudiate or ratify Ext.A3 gift, they could have waited till they attained majority and the suit was, therefore, premature. He also contended that the maternal uncle of the minors was incompetent to figure as their next friend as the minors were not under his care or protection. Both these contentions were repelled by this Court holding inter alia that there was no law which compels a minor to wait until he attains majority to institute a suit and that there was nothing to show that the next friend who is the maternal uncle of the minors had any interest adverse to that of the minor plaintiffs and, therefore, the suit as framed was maintainable. In the appeal preferred by the plaintiffs as A.S. 233 of 1999 they had filed I.A. 3792/06 before this Court to amend the plaint so as to delete the original plaint averment to the effect that the 3rd defendant mother accepted the gift on behalf of the donees and was thereafter holding the properties in trust and to substitute the same by incorporating a plea that defendants 1 and 3 together gifted the property and the first defendant father was holding the same as a trustee. The said application was allowed by this Court. This Court also permitted the appellant herein to be impleaded in the suit and to contest the same raising all the defences available to her.
R.F.A. No. 424 of 2009 -:9:-7. In the meanwhile, the 2nd defendant who is the mother of the first defendant died and another son of the 2nd defendant was impleaded as the 12th defendant.
DEFENCE OF D11
8. After the remit by this Court the appellant got herself impleaded as the 11th defendant in the suit. She resisted the suit contending inter alia as follows:-
The suit is not maintainable either in law or on facts. The written statement dated 30-7-1993 filed by the 5th defendant may also be read as part of this written statement. The suit was instituted fraudulently when the minor plaintiffs were under the care and protection of their parents. The right of the first defendant over the plaint schedule properties is by virtue of Ext.B4 partition deed of the year 1975 and the entire properties were in the possession and enjoyment of his mother the 2nd defendant. The first defendant never had any intention to settle the properties in favour of the plaintiffs nor has the settlement deed come into effect. The third defendant who is the mother of the plaintiffs did not have any right over the plaint schedule properties. Ext. A3 gift executed in favour of an unborn child is void as per the Muslim Law. The gift was not accepted for and on behalf of the minor child by anyone. The amended plaint is R.F.A. No. 424 of 2009 -:10:- inconsistent with the earlier pleadings. The properties were never possessed by the first or 3rd defendant as trustees for the benefit of the minors. With the execution of Ext.A4 cancellation deed the earlier settlement deed became invalid and inoperative. The said cancellation deed is valid and binding on the plaintiffs. All the documents executed by the first defendant subsequent to the cancellation deed are valid and the plaintiffs have no right to challenge the same. O.S. No. 62 of 1979 was not in respect of the plaint schedule properties. Ext.A6 sale deed dated 15-12-1990 by the 4th defendant in favour of the 5th defendant was preceded by an agreement for sale. For specific performance of the said agreement the 5th defendant had filed O.S. No. 203 of 1988 before the Sub Court, Thiruvananthapuram and the said suit was decreed. It was pursuant to the decree passed in the said suit that the 4th defendant executed Ext.A6 sale deed. Thereafter the 5th defendant sold 60 cents of land together with the building comprised in plaint schedule item No. I to this defendant as per Exts. B1 and B2 sale deeds dated 23-7-1994 and 19-7-1994 respectively. This defendant had paid adequate consideration for the sale and has got mutation effected in her name. The said property has been in the possession and enjoyment of this defendant since then. The Court fee paid is not proper. This defendant is a bona fide purchaser for a valuable consideration without notice of the pendency of the suit. Even if it is held that R.F.A. No. 424 of 2009 -:11:- the plaintiffs have subsisting title over the plaint schedule properties the first defendant who is the father of the plaintiffs being the vendor of the property is liable to indemnify the loss sustained by the subsequent purchasers including this defendant. The plaintiffs being the legal heirs of the deceased first defendant are liable to indemnify this defendant who has effected valuable improvements in the property. If for any reason it is held that the sale deed in favour of this defendant is not valid, this defendant is entitled to value of improvements and she reserves her right to claim the same at the appropriate stage. The suit is devoid of any merit and may, therefore, be dismissed with compensatory costs.
9. The 12th defendant who was impleaded as the legal representative of the 2nd defendant filed a written statement substantially adopting the contentions of defendants 5, 7 and 11.
THE ISSUES
10. The Court below framed 7 issues and three additional issues as follows:-
1. Is the suit premature ?
2. Whether the gift has not been accepted on behalf of the minor plaintiffs ?R.F.A. No. 424 of 2009 -:12:-
3. Whether the gift deed No. 3919/77 is accepted by the plaintiffs donees and legally valid ?
4. Whether the next friend is competent to sue on behalf of the minor plaintiffs ?
5. Whether the 5th defendant is a bonafide purchaser for consideration ?
6. Whether the cancellation deed and subsequent documents are void for all or any of the reasons mentioned in the plaint ?
7. Reliefs and Costs ?
Addl. issue No. 8. Whether then sale deed No. 2481 dated 15-10-1988 in favour of the 7th defendant is void and whether it is liable to be set aside ?
Addl. issue No. 9 : Whether the additional defendant No. 11 is a bonafide purchaser for valuable consideration in respect of the plaint schedule property extending 60 cents by sale deed No. 1417/94 and sale deed No. 1418/1994 of SRO Murukumpuzha.
Addl. Issue No. 10. Whether the defendants 1 and 2 were trustees on behalf of the plaintiffs by document No. 3919 of 1997 dated 27-12-1977 ?
R.F.A. No. 424 of 2009 -:13:-THE TRIAL AFTER REMAND
11. On the side of the plaintiffs the first plaintiff was examined as P.W.1 and Exts. A1 to A10 were got marked. On the side of the defendants no oral evidence was adduced and Exts. B1 to B5 were got marked.
THE TRIAL COURT 'S DECREE
12. The learned Subordinate Judge after trial, as per revised judgment and decree dated 3-12-2008 decreed the suit as prayed for and prohibitory injunction with regard to the plaint schedule properties except plaint schedule item No. 4 (46 cents) and 60 cents and the building in plaint schedule item No. 1 in respect of which granting a decree for recovery of possession subject to the mortgage rights in respect of plaint schedule item No. 4. It is the said decree which is assailed in this appeal by the 11th defendant whose claim is confined only to the 60 cents of land together with the building in plaint schedule item No. 1.
13. I heard Advocate Sri. S.B. Krishna Mani, the learned counsel appearing for the appellant and Advocate Sri. R.F.A. No. 424 of 2009 -:14:- G.S. Reghunath, the learned counsel appearing for respondents 1 and 2 / the plaintiffs.
ARGUMENTS OF THE APPELLANT (D11)
14. Adv. Sri. Krishna Mani, the learned counsel appearing for the appellant made the following submissions before me in support of the Appeal:-
The suit was originally laid through the next friend of two plaintiffs who were minors. The next friend is none other than the maternal uncle of the plaintiffs. The minors were stated to be under the care and protection of the said next friend. The parties are Muslims. In the case of a Muslim minor the law particularises certain specified relatives as the persons entitled to the custody of such minor. Paragraph 357 of the Principles of Mahomedan Law (19th Edn.) by Mulla enumerates the persons entitled to the custody of minor boys and unmarried girls. The father and the male relations on the paternal side alone are entitled to custody of Muslim minors and if there is no such relative then it is the Court which has to appoint a guardian for the person of such minor. So the suit instituted on behalf of the minors by their maternal uncle styling himself as the next friend was not maintainable. Ext.A3 gift deed was invalid since it does not satisfy the essentials of a valid Muslim gift. There should be R.F.A. No. 424 of 2009 -:15:- an unequivocal declaration of the gift by the donor, acceptance of the gift express or implied by or on behalf of the donee and delivery of possession of the subject of the gift by the donor to the donee to the extent the subject matter of the gift is susceptible of. (Vide paragraphs 149 to 150 Mulla).
Ext.A3 recites at page 5 as follows:-
"
"
(from now onwards mutation to be effected in the names of the donors and their children) The document does not recite that such mutation is to be effected on behalf of the donees. So there was no intention on the part of the donors to divest their title or possession completely to the donees. Where the donor retains possession of the corpus in his own right despite the gift such a gift is invalid.
Vide Beepathumma and others v. Mohammed Nakoor Meera Rowther and others - AIR 1977 Kerala 54 = ILR 1976 (2) Kerala R.F.A. No. 424 of 2009 -:16:-
137. Ext.A3 gift being one to an unborn child is void.
Paragraph 141 of Mulla on Mahomedan Law states as follows:
"141 - Gift to unmborn person:- A gift to a person not yet in existence is void"
(Abdul Cadur v. Turner (1884) 9 Bombay 158;
Mahomed Shah v. Official Trustee of Bengal (1909) 36 Calcutta 431 and Imam Sahib (1955) 1 MLJ
449).
If A3 is void as against the 2nd plaintiff, it is void as against the first plaintiff also . See In Mohd. Amin v. Vakil Ahamad - AIR 1952 SC 358 the Apex Court observed as follows:-
"14. We are, therefore, unable to accept the case as an authority for the proposition that a deed of settlement which is void by reason of the minor not having been properly represented in the transaction can be rehabilitated by the adoption of any such line of reasoning.
15. If the deed of settlement was thus void, it could not be void only qua the minor plaintiff but would be R.F.A. No. 424 of 2009 -:17:- void altogether qua all the parties including those who were sui juris. This position could not be and was not as a matter of fact contested before us".
Even in the case of a minor donee delivery of possession can only be given through the intervention of the proper guardian of such minor. (Vide Katheesa Umma v. Kunhamu - AIR 1964 SC 275 and K.P. Abdul Rahiman v. Kunhi Muhammed - AIR 1975 Kerala 150). In the plaint prior to its amendment what was pleaded was that the gift was accepted by the mother. Admittedly, the first defendant father was alive. If so, the acceptance of the gift by the mother who was incompetent to do the same was without any authority. Under Mohemedan law mother can never be the guardian or custodian of minor children. (Vide Madhavan Pillai v. Abdurhim - 1956 KLT SN
11). Mother of a Muslim minor cannot act or be appointed as the guardian of such minor. (Mahboobh Sahib v. Syed Ismail - AIR 1995 SC 1205). Under Mohammadan Law only the father and relatives on the paternal side are entitled to be the guardian of the property of a minor. Vide Achamma Yousuff and Others - 1958 KLJ 305 and Mohd . Amin v. Vakil Ahmad - AIR 1952 SC 358. In the original plaint the specific case pleaded was that it was 3rd defendant the mother who accepted the gift on behalf of the donee and the mother was holding the R.F.A. No. 424 of 2009 -:18:- property in trust for the donees. It was realising that the mother could never be the guardian competent to accept the gift that the plaint was got amended to delete the above plea and to incorporate a new plea that the gift was accepted jointly by defendants 1 and 3 who are the parents and it was the first defendant father who was holding the properties as a trustee for the donees. Merely because the plaint has been permitted to be amended by this Court during the earlier occasion, it does not preclude the contesting defendants from arguing that the amendment of the plaint was to wriggle out of the fatal plea which was originally taken. It is pertinent to note that the Court below has observed in paragraph 18 of its judgment that even after the amendment the first plaintiff who was examined as P.W.1 has stated that her mother the 3rd defendant was in possession of the property. This means that even after amending the plaint, the plaintiffs go by the stand taken in the unamended plaint. The appellant who is the 11th defendant is a bona fide purchaser of 60 cents of land together with the building forming part of plaint schedule item No. 1. In fact her assignor namely the 5th defendant had purchased the property from the 4th defendant pursuant to a decree for specific performance of an agreement for sale. P.W.1 who is the first among the two donees does not know anything about the properties. She does not even know whether the K.S.R.T.C. Depot is on one side of the property.
R.F.A. No. 424 of 2009 -:19:-Hence, the Court below was not justified in granting a decree to the plaintiffs.
JUDICIAL RESOLUTION
15. I am afraid that I cannot agree with the above submissions.
THE FACTUAL BACKDROP
16. The facts leading to the present suit can be summarised as follows:-
A. The suit was filed in the year 1992. The two plaintiffs (Sumina @ Summayya and her brother Sudheer) are the children born to the first defendant Nazeer and his wife the 3rd defendant Naheema Beevi. The 2nd defendant Mariyam Beevi is the mother of the first defendant. The first defendant died pending suit on 23-10-1993. His mother the 2nd defendant also died pending suit and the 12th defendant who is the elder brother of the first defendant was impleaded as her legal representative.
B. The plaint schedule contains four items of properties. Plaint schedule item No. 1 has a total R.F.A. No. 424 of 2009 -:20:- extent of 83 cents with a house thereon. Bothe defendants 1 and 3 along with their infant daughter (Ist plaintiff) were residing in the house in plaint Schedule item No. 1. Plaint item No. 2 is having an extent of 10 cents and plaint schedule items 3 and 4 are admeasuring 20 cents and 46 cents respectively.
C. Plaint schedule item Nos. 1 to 3 were obtained by the first defendant under Ext.B4 registered partition deed of the year 1975 and plaint schedule item No. 4 was purchased by the first defendant as per Ext.A2 registered sale deed dated 5-10-1977.
D) As per Ext.A3 gift deed dated 27-12-1977 both the defendants 1 and 3 (husband and wife) gifted all the four items of plaint schedule properties to the first plaintiff who was then a minor girl aged about one year and to the children, if any, to be born in future to the donors.
E). Subsequent to Ext. A3 gift there was estrangement between defendants 1 and 3 and the Ist defendant filed a suit O.S. No. 62 of 1979 before the Sub Court, Attingal against the 3rd defendant for R.F.A. No. 424 of 2009 -:21:- setting aside the sale deed executed by him for valid consideration in favour of his wife in respect of another item of property. He alleged that the sale was vitiated by fraud and undue influence besides being devoid of consideration. The said suit was contested by his wife (D3) and was dismissed and an appeal preferred by him as A.S. No. 125 of 1986 was also dismissed. The marital partners parted company culminating in a divorce.
F) During the pendency of O.S. 62 of 1979 referred to above the first defendant executed Ext.A4 cancellation deed dated 15-11-1979 purporting to cancel Ext.A3 gift deed. Thereafter he executed the following documents in the chronological order:-
Ext.A9 mortgage deed dated 20-4-1981 was executed by the first defendant and his mother the 2nd defendant (who purportedly had a life interest) in respect of the plaint schedule item No. 4 in favour of the 8th defendant. The 8th defendant obtained a patta in respect of the said property and subsequently sold plaint schedule item No. 4 to the 7th defendant as per Ext.A10 sale deed dated 15-
10-1988. On 4-7-1981 the first defendant sold 60 cents of land with the building thereon R.F.A. No. 424 of 2009 -:22:- forming part of plaint schedule Item No. I to the 4th defendant as per Ext.A5 sale deed. The first defendant sold the remaining 23 cents of plaint schedule item No. I to the 7th defendant as per Ext.A7 sale deed dated 24-8-1982. The 4th defendant who obtained 60 cents of land together with the building from plaint schedule Item No. I sold the same to the 5th defendant as per Ext.A6 sale deed dated 15-12-1990. The 5th defendant in turn sold the said 60 cents together with the building to the appellant 11th defendant as per two sale deeds dated 23-7-1994 and 19-7-1994 marked as Exts. B1 and B2.
G) On coming to know of the cancellation deed and the subsequent transfers effected by the first defendant the plaintiffs both of whom were minors instituted the suit through their maternal uncle in the year 1992.
H) the suit was originally disposed of on 22-2-1995 granting a decree to the plaintiffs in respect of plaint schedule item Nos. 1 to 3 but disallowing a decree in respect of plaint schedule item No. 4 resulting in two appeals therefrom to this Court and a remand by this R.F.A. No. 424 of 2009 -:23:- Court to the Court below as mentioned in paragraphs 5 and 6 above.
I) After the remit by this Court on 10-4-2008, the Court below as per the impugned judgment and decree dated 3-12-2008 has decreed the suit as prayed for even with regard to plaint schedule item No. 4. Hence, this Appeal by the 11th defendant who challenges the decree only so far as it relates to the 60 cents of land and the building thereon in plaint schedule item No.1.
J) Neither the 8th defendant to whom the plaint schedule item No. 4 was mortgaged under Ext. A9 nor his assignee the 7th defendant who purchased the same under Ext.A10 sale deed has challenged the decree so far as it relates to the plaint schedule item No. 4.
WHO CAN BE A NEXT FRIEND ?
17. I will first dispose of the contention of the appellant that the maternal uncle of the plaintiffs was incompetent to sue on behalf of the minor plaintiffs by figuring as their next friend. The suit has been instituted by the two minor plaintiffs through their maternal uncle acting as their next friend. The only R.F.A. No. 424 of 2009 -:24:- qualification prescribed by law for the next friend is that he should be a person of sound mind and should have attained majority and does not have any interest adverse to that of the minor plaintiff and is not a defendant in the suit. (Vide Order XXXII Rule 4 C.P.C. ) The next friend or prochein ami is a person who will undertake the infants' cause. He need not be the natural or legal guardian of the minor plaintiff. Even a non-Muslim can be the next friend of a Muslim minor instituting a suit by recourse to Order XXXII C.P.C. In the case of a next friend no permission of the Court is necessary. But if the minor were to be a defendant, then for a person to be appointed as his guardian permission of the Court is necessary. (Vide Gopalaswamy Gounder v. Ramaswamy Gounder and others - 2006 (2) KLT 595 = AIR 2005 Ker. 138). Any person who does not have any of the disqualifications under Order XXXII Rule 4 C.P.C. can act as the next friend of a minor plaintiff and the personal law of the plaintiff in this behalf is irrelevant. Thus, for the institution of a suit by a Muslim minor his or her personal law regarding the guardianship is alien for consideration while examining the qualifications of the next friend. Hence, the suit instituted by the maternal uncle of the two minor plaintiffs as their next friend was perfectly maintainable. In fact, this Court in paragraph 7 of the common judgment dated 10-4-2008 in A.S. Nos. 432/97 and 233/99 had rejected the contention raised by the 7th defendant R.F.A. No. 424 of 2009 -:25:- that the suit was not maintainable at the instance of the maternal uncle of the plaintiffs figuring as their next friend. I, therefore, reject the contention of the appellant that the suit instituted by the two minor plaintiffs through their maternal uncle as next friend was bad and, was, therefore, not maintainable.
IS THE MOTHER COMPETENT TO ACCEPT A GIFT IN FAVOUR OF A FEMALE MUSLIM INFANT ?
18. It is true that in the plaint as originally filed what was pleaded was that the 3rd defendant mother accepted the gift on behalf of the donee and she was holding it in trust for the donees. It is also true that in spite of the objection by the contesting defendants this Court allowed I.A. No. 4792/06 filed by the plaintiffs to amend the plaint so as to delete the above plea and to substitute the same with a plea that the gift was accepted by defendants 1 and 3 and that the first defendant father was holding the property as a trustee. Nothing turns on the amendment of the plaint because Ext.A3 gift deed which was produced along with the plaint and which has to be treated as part of the pleadings does not recite that the 3rd defendant mother or the Ist defendant father had accepted the gift on behalf of the donees. Hence, the plea as originally taken in the plaint was one which was not reflected in the gift deed. The decisions relied on by the learned counsel for the appellant to R.F.A. No. 424 of 2009 -:26:- contend for the position that the mother of a Muslim minor cannot act as the guardian of the minor when the father of the minor or relatives on the paternal side are alive, are all cases in which when the legal guardian of the minor was alive and available, the mother had purported to alienate the property of the minor by figuring as the de facto guardian. That is not the position so far as the case on hand is concerned. The role of the mother was that of a joint donor under Ext.A3 gift deed. I will have occasion to consider later the legal position that no formal act of acceptance or delivery of possession is necessary in the case of a gift by a father in favour of his minor son or daughter. All that the mother did after Ext.A3 gift was to keep possession of the properties on behalf of the donees. It must be remembered in this context that soon after the execution of Ext.A3 gift deed D1 and D3 fell apart and it eventually resulted in their divorce. The first defendant even filed a suit against the 3rd defendant for setting aside a sale deed executed by him for valid consideration in favour of the 3rd defendant. He got worsted in that litigation. It was when the relationship between the husband and the wife got estranged that the husband unilaterally executed Ext.A4 cancellation deed dated 15-11-1979 purporting to cancel Ext.A3 gift deed. When the marital partners had parted company the minor plaintiffs had nobody else except their mother to look after them. The relatives of their father would naturally take only R.F.A. No. 424 of 2009 -:27:- sides with their father. Even the 2nd defendant who is their paternal grandmother had joined the first defendant to execute Ext. A9 mortgage of plaint schedule item No. 4 in favour of the 8th defendant. Under these circumstances, if the 3rd defendant who is their mother kept possession of the properties on their behalf, the first defendant cannot take umbrage under the Muslim personal law to forge a ban on his estranged wife keeping possession of the properties. As a matter of law, the appellant is not justified in contending that the mother of the Ist plaintiff was not her natural guardian during the life time of her father.
In paragraph 7 of Katheesa Umma v. Narayanan Kunhamu - AIR 1964 SC 275 the Apex Court observed as follows:-
"A mother can exercise guardianship of the person of a minor daughter(Hizanat) till the girl attains puberty after which the guardianship of the person is that of the father if the girl is unmarried and that of the husband if she is married and has gone to her husband".
Thus, the 3rd defendant mother was the guardian of the infant donee namely the first plaintiff and there was absolutely no impediment for her to accept the gift on behalf of the donee (even if the formal act of acceptance was necessary) and keep R.F.A. No. 424 of 2009 -:28:- possession of the properties for and on behalf of the donee. In Katheesumma's case (supra) the gift in question was one made by a person called Mammotty in favour of his 15 year old wife called Sainabha. Mammootty who was ill was at the time of making the gift living along with his wife Sainabha in the house of Sainabha's mother. The gift was accepted by the mother of Sainabha on her behalf. Her father and father's father were not then alive. Reversing the decision of this Court reported in 1960 KLJ 1042 the Apex Court held that the gift was valid notwithstanding the fact that the possession of the property was not given to a guardian specifically appointed for the purpose by the Civil court.
WHETHER EXT. A3 GIFT IS VALID ?
19. I now proceed to consider the main contention of the appellant that Ext.A3 gift deed was invalid for want of proof of the essentials of a valid Muslim gift and also for the reason that the gift in favour of an unborn child is void. A Muslim gift is called "Hiba" . The person making a Hiba must be the owner (malik) of the property which is the subject matter of the Hiba. Such a person must have attained majority (bulugh) and should have the sanity (rushd ) for making the Hiba. (See pages 195 and 196 of the Muslim Law of India (1980 Edition) by Dr. Tahir R.F.A. No. 424 of 2009 -:29:- Mahmood). Thus every Muslim who has attained majority and is of sound mind can make a gift and a Muslim woman has the same right to make a gift as a man and her marriage does not entail any disabilities in this regard. (See Section III of Chapter - I of Ameer Ali's Commentaries on Mahommedan Law).
20 Sections 120 to 129 in Chapter VII of Transfer of Property Act, 1882 (hereinafter referred to as the "T.P. Act" for short) , deal with gifts. Section 123 of the T.P. Act provides that a gift of immovable property should be effected by a registered instrument signed by the donor and attested by at least two witnesses . But Section 129 of the T.P.Act declares that nothing in Chapter VII thereof shall be deemed to affect any rule of Mahomedan Law. Thus under Mahomedan Law writing is not essential for the validity of a gift of immovable property. The validity of Muslim gifts has to be decided as per the Mahomedan Law and the Chapter on gifts in the T.P.Act is not applicable. (Vide Moosa Miya and Anr. v. Kadar Bux and Another - 55 Indian Appeals 171 (PC)). The three essentials of a gift under the Mahommedan Law are:-
i) a declaration of the gift by the donor
ii) an acceptance of the gift, express or implied by or on behalf of the donee and
iii) delivery of possession of the subject of the gift by the donor to the donee.R.F.A. No. 424 of 2009 -:30:-
If these conditions are satisfied the gift is complete even though it is not effected by a registered instrument or if effected by a written instrument, the instrument is not attested. (See the notes under para 147 of Mulla's Mahomedan Law).
21. A Mahomedan cannot by a testamentary instrument dispose of among his heirs more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequest in excess of the above one third cannot take effect unless the heirs consent to the bequest after the death of the testator. If the bequest exceeds the legal third and the heirs of the testator refuse their consent the bequest will abate and if there are more bequests they will abate rateably. (Vide paras 118 and 119 of Mulla's Mahommedan Law). Thus, under the Muslim personal Law a Muslim cannot give away more than one-third of his property by way of testamentary disposition. (See also paragraph 39 at page 217 of Outlines of Mahommedan Law by A.A.A. Fyzee (4th Edition). Therefore, if he were to dispose of his property by means of a gift by violating the limit on his testamentary power and thereby indirectly defeating the policy of Mahomedan Law, the law insists upon strict proof of the formalities of a valid Muslim gift. The Privy Council in Khajooroonissa v. Rowshan Jehan - ILR II Calcutta 184 observed as follows:-
"The policy of the Mahomedan law appears to be to R.F.A. No. 424 of 2009 -:31:- prevent a testator interfering by will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger. But it also appears that a holder of property may, to a certain extent, defeat the policy of the law by giving in his lifetime the whole or any part of his property to one of his sons, provided he complies with certain forms. It is incumbent, however, upon those who seek to set up a proceeding of this sort, to show very clearly that the forms of the Mahomedan law, whereby its policy is defeated, have been complied with".
This is the reason why strict adherence to the essentials of a valid Muslim gift is insisted upon by courts when a party sets up a gift in his favour. The burden of proof is, therefore, on the person who sets up a gift to show that the rigid forms stipulated by the Muslim Law have been complied with. It is, hence, essential to the validity of a Muslim gift that the donor should divest himself or herself completely of all ownership and dominion over the subject of the gift before he or she can effect delivery of possession of the property gifted. Actionable claims and even incorporeal property can form the subject matter of the gift. If the gift is in respect of immovable property it must effect an immediate transfer of the corpus of the property. Where a gift of the corpus is given and the donor does not reserve any dominion over the corpus but merely retains his right to take the produce or income or usufructs from the property, the gift is valid. (See (1867) 11 Mores Indian Appeals 517 P.C. and R.F.A. No. 424 of 2009 -:32:- Mohammad Abdul Khani Khan and Another v. Mt. Fakhr Jahan Begam and Others - AIR 1922 P.C. 281. Where, however, the donor retains possession of the corpus in his own right despite the gift and reserves to himself the right to enjoy the same, such a gift would be invalid. See K.S. Mahomed Aslam Khan v. Khalilul Rehman Khan and Others - AIR (34) 1947 PC 97; Nawazish Ali Khan v. Ali Raza Khan - AIR 1948 PC 134 , Hajuee Kunju Mamthu v. Asikutty - 1959 KLT 624, Pichakannu v. Aliyarkunju - 1963 KLT 226; AIR 1922 P.C.
281. Beepathumma and Others v. Mohamed Nakoor Meera Rowther and Others - ILR 1976 (2) Kerala 137 = AIR 1977 Kerala 54. Where there is an absolute gift of the property with a clause prohibiting an alienation by the donee, the said clause which is repugnant to the absolute grant will be treated as void in law. (1892) 19 Indian Appeals 170 P.C. = ILR 17 Bombay 1. Where a condition repugnant to the whole enjoyment of the gifted property is attached to the gift, the condition would be treated as bad and not the grant . (1867) 11 Moores Indian Appeals 517 (PC). A condition inconsistent with the absolute dominion over the subject matter will be rejected as repugnant - Nawazish Ali Khan v. Ali Raza Khan - AIR (35) 1948 P.C. 134, 1956 KLT 444 and Mundayat Vadakke Purayil Kunhayissu and Others v. Chirukandan and Others - 1971 KLJ 796. The strict requirement that the gift will not be complete unless the R.F.A. No. 424 of 2009 -:33:- donor physically departs from the premises with all the goods and chattels and the donee formally enters into possession of the property , is however, subject to certain well known exceptions which are the following:-
i) Where the donor and donee reside together in the property gifted at the time of gift, the law does not insist on a physical departure by the donor or a formal entry by the donee so as to complete the gift . (Vide Mulla Sec. 152 (3), Dr. Tahir Mohammed page 203 point No. 9, Abdul Razak Saheb v. Zainab Bi
- AIR 1933 Madras 86, Shaik Ibrahim v. Shaik Suleman - ILR 9 Bombay 146, Humera Bibi v.
Najm-un-Nissa Bibi - ILR 28 Allabad 147, Ma mi and another v. Kallander Ammal - AIR 1927 P.C. 22, Baldeo Prasad Balgovind v. Shubbratan - 1936 Allahabad LJ 590, Kandath Veettil Bava v.
Musaliam Veettil Pakrukutty and Others - ILR 30 Madras 305, Maitheen Beevi Umma v. Ithappiri Varkey - 1956 KLT 444. ILR 9 Bombay 146;
Rahmat Ali v. Mt. Daulat - AIR 1925 Lahore 501; Abdul Razak Saib v. Zainab Bi. - 1932 Mad. W.N. 1178). In all the above cases it has been held that the mere fact that the donor continues to reside with the donee will not constitute non-delivery of possession R.F.A. No. 424 of 2009 -:34:- so as to invalidate the gift.
ii) Where the gift is in favour of minors (See
Ahmedkutty v. Ismalu - 1981 KLT 918, Valia
Peedikakkandi Katheesa Umma and Others v.
Pathakkalan Narayanath Kunhamu - AIR 1964 SC
275 and The Official Receiver, Kozhikode v. T.
Moideen Koya and Others - 1969 KLR 508; G.
Abdul Rahim Sahib v. Zeenath Bi and Others - AIR 1963 Madras 186. In Ibrahim Shah Mohammed and Others v. Noor Ahmed Noor Mohamed and Others - 1984 Gujrat 126 it was held that possession given to the mother in the case of a gift by father to minor son in spite of the fact that the minors grandfather (guardian) was alive, will not invalidate the gift.
iii) Where the gift is by a Muslim husband to his wife (AIR 1927 P.C. 22, AIR 1932 P.C. 13, Mulla -
Paragraph 153).
22. As regards the case on hand, the facts of the case present no difficulty at all for the court to arrive at the right conclusion. Even though the plaint schedule properties R.F.A. No. 424 of 2009 -:35:- absolutely belonged to the first defendant, Ext.A3 gift was made by both the first defendant and his wife the 3rd defendant. It is a registered document. The only named donee under Ext.A3 gift was Summaiya the first plaintiff who is the daughter of the joint donors and she was then an infant hardly aged one year. Ext.A3 does not recite as to who has accepted the gift on behalf of the donee. Since acceptance of the gift is an act subsequent to the gift, the document need not necessarily mention as to who accepts the gift on behalf of the minor donee. Ext.A3 recites that pursuant to the decision taken to the effect that the four items of properties described therein (which are the plaint schedule properties) and any property to be acquired in future shall be given absolutely to Summayia the daughter born to the first executant in the 2nd executant and to the children to be born to them in future, the properties are thereby given absolutely. Nothing more is necessary to evince an intention on the part of the donors to divest their rights over the properties absolutely. Paragraph 155 of Mulla's Mahomedan Law reads as follows:-
"155. Gift to a minor by father or other guardian - 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 bona fide intention to give".
In Muhammed Sadiq Ali Khan v. Fakr Juhan Beegum - AIR R.F.A. No. 424 of 2009 -:36:- 1932 P.C. 13 following an earlier decision of the Privy Council in Ameeroonissa Khatoon v. Abedoonissa Khatoon - 2 Indian Appeals 87 - the Privy Council observed as follows:
"In the case of a gift by a Mahomedan father to his infant child no transfer of possession is required ; it is only necessary to establish a bona fide intention to give".
In AIR 1927 P.C. 22 it was held that where a husband makes a gift of a house to his wife and notwithstanding the gift he continues to live in the house or continues to receive the rents after the gift, such conduct will not invalidate the gift and that the presumption in such a case would be that the rents are collected by the husband on behalf of the wife and not on his own account. Delivery of possession in order to complete the gift may be either actual or constructive. All that is necessary is is relinquishment of control. Even symbolic possession of property is sufficient to make a valid gift. Where an oral gift of the property in the possession of complainant's tenants was followed by the donor asking the tenants to attorn to the donee the gift was held to be valid. (See Hafiz Abdul Basit v. Ahmed Mian - AIR 1973 Delhi 280). Where there is on the part of a father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without change of possession, and R.F.A. No. 424 of 2009 -:37:- will presume the subsequent holding of the property by the father or other guardian to be on behalf of the minor donee. This principle also applies to a gift of her property made by a Muhammadan lady to her minor son adopted by her and is living with her under her guardianship. (Vide Munni Bai v. Abdul Gani - AIR 1959 Madhya Pradesh 225). As mentioned earlier Ext.A3 does not contain any recital indicating as to who had accepted the gift on behalf of the donee. But since soon after Ext.A3 gift there was estrangement between defendants 1 and 3 it was the 3rd defendant mother who was looking after the minor children as well as the properties. Hence, the plaintiffs might have thought it fit to plead in the plaint, as originally filed, that it was the mother who accepted the gift on behalf of the donee and was holding the properties in trust for the donee. Such a plea was fully in accord with the canons of Muslim Law since it has already been seen that the mother is the natural guardian of her infant daughter. No doubt, the said plaint averment was subsequently got amended so as to substitute the same with a plea that both defendants 1 and 3 accepted the gift and the first defendant held the properties in trust for the donee. The amended plea also does not militate against the plaintiffs' case. Ext.A3 gift deed itself was produced along with the plaint and it can therefore, be read as part of the pleadings.
R.F.A. No. 424 of 2009 -:38:-GIFT TO UNBORN PERSON
23. The further question to be considered is as to whether Ext.A3 gift is void for the reason it is a gift to an unborn person. There cannot be any quarrel about the principle of Mahommedan Law that a gift to a person not yet in existence is void. But Ext.A3 is not a gift to an unborn person. It is a gift made in favour of a living person and also in favour of children to be born to the donors. Even under paragraph 141 of Mulla's Mahomedan Law it is observed that a gift does not fail in its entirity if it is made in favour of living persons and also in favour of unborn persons and that it would be void only to the extent to which interest is created in favour of unborn persons. The Muslim law does not recognise a gift in favour of an unborn person through the medium of trust. (Vide paragraph 151 of Mulla's Mahomedan Law) . Under the general law governed by the provisions of the T.P.Act , however, gifts to unborn persons through the medium of trust is recognised. (See Saraswathi v. Devaki Amma - 1985 KLT 217) . In F.M. Devaru Ganapati Bhat v. Prabhakar Ganapati Bhat - AIR 2004 SC 2665 - It was held that where a gift was made by a woman in favour of her brother's son then living with a stipulation that if other male children were later born to her brother they shall also be joint holders with the donee who was living at the time of gift, the R.F.A. No. 424 of 2009 -:39:- stipulation would not be hit by Sec. 13 of T.P. Act but would be permissible and valid in view of Sec. 20 of T.P. Act. Assuming that the Muslim law does not recognize a gift in favour of unborn person even through the medium of trust, then the only consequence is that the 2nd plaintiff who was not born on the date of Ext.A3 will not be entitled to claim any right over the suit properties. That is a matter to be resolved as between the first and the second plaintiff and the gift of the entire suit properties so far as it relates to the first plaintiff who was the named donee under Ext.A3 is valid in all respects. I, therefore, fully endorse the finding recorded by the court below that Ext.A3 gift was valid and since it was a gift in favour of the minor child of the donors, there was no requirement of formal delivery of possession so as to validate the gift. The gift will be presumed to have been accepted by the maternal guardian on behalf of the donee. It is further found that the 3rd defendant mother had full authority to keep possession and manage the properties on behalf of the named minor donee who is none other than her own female child of whom she was the natural guardian.
WAS THE REVOCATION OF THE GIFT VALID ?
24. Now coming to the validity of Ext.A4 cancellation deed, it is pertinent to note that all the contesting defendants would contend that Ext.A3 gift deed became invalid and inoperative consequent on Ext.A4 cancellation deed. Such a R.F.A. No. 424 of 2009 -:40:- contention involves an admission that Ext.A3 gift deed was valid until it was cancelled. It has already been found that Ext.A3 gift was a valid gift and will be presumed to have been accepted on behalf of the donee by her guardian and the gift had, therefore, been acted upon. If so, the gift had become irrevocable . The normal rule of Mahomedan Law is that a gift can be revoked at any time before delivery of possession, subject, of course, to certain exceptions where a gift can be revoked even after delivery of possession. But where the donee is related to the donor within the prohibited degrees, the aforesaid exception does not apply. (See para 167 of Mulla's Mahomedan Law). Here the donors are the parents of the named donee and adopting the reasoning in Tajjin Khan v. Mazhar Khan - AIR 1952 Allahabad 614, the donors are related to the donee within prohibited degrees. All that apart, Ext.A3 itself contains a recital as follows:-
"
"
It states that the donors have no right either to amend or cancel the terms and conditions of the gift. If so, it was not open to the first defendant to execute Ext.A4 cancellation deed purporting to R.F.A. No. 424 of 2009 -:41:- cancel Ext.A3 gift which had become irrevocable.
25. As to the recital in Ext.A3 that mutation shall be effected thereafter in the names of the donors and their children, the same does not in any way militate against the grant given under Ext.A3 gift. When the named donee was an infant aged about one year there could be no mutation in the name of the donee or the subsequently born children of the donors. Hence, a recital in the document that thereafter mutation of the properties shall be effected in the name of the donors and their children is not in any way repugnant to the gift. Even assuming that such a condition is repugnant to the gift, the law is well settled that the repugnant condition will be treated as void and not the grant. (See N.U. Ally Khan v. M.M. Begum - (1867) 11 Moores Indian Appeals 517 P.C. and Abdul Gafur and Others Nizamudin and Others - (1892) 19 Indian Appeals 170 P.C. = 17 Bombay 1). Paragraph 164 of Mulla 's Mahomedan Law reads as follows:-
"164. Gift with a condition:- When a gift is made subject to a condition which derogates from the completeness of the grant , the condition is void, and the gift will take effect as if no conditions were attached to it".R.F.A. No. 424 of 2009 -:42:-
THE CONCLUSION The result of the foregoing discussion is that Ext.A3 gift was validly executed, at any rate, in favour of the first plaintiff who was a minor aged about one year. With the execution of the gift by both the donors the gift had thereby become irrevocable on the strength of the stipulation incorporated in Ext.A3 itself.
The first defendant did not thereafter have any right to revoke the document. Ext.A4 cancellation deed was, therefore, invalid and inoperative . If so, Ext.A9, A5 and A7 documents executed by the first defendant alienating portions of the property to strangers also could not have any efficacy or validity. Consequently, the subsequent sale deeds under which the appellant/11th defendant claims right over 60 cents of plaint schedule item No. 1 are also of no avail to her. The suit was rightly decreed as prayed for. No interference is called for at the hands of this Court. This appeal R.F.A. No. 424 of 2009 -:43:- is , accordingly dismissed. However, having regard to the peculiar facts and circumstances of the case, the parties are directed to bear their respective costs.
Dated this the 13rd day of August, 2009.
Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani.
R.F.A. No. 424 of 2009 -:44:- 7