Madras High Court
Chandma Bibi vs Sheik Mohamed Sahib And Three Ors. on 31 July, 1996
Equivalent citations: (1997)1MLJ631, 1997 A I H C 725, (1997) 3 CIVLJ 57, (1997) 1 MAD LJ 631, (1997) 1 MAD LW 391
JUDGMENT S.S. Subramani, J.
1. This second appeal is by the plaintiff in O.S. No. 155 of 19S6, on the file of the District Munsifs Court, Tirukoilur. She filed the suit for declaration of her title over the schedule properties, and also for a declaration that she is entitled to the same after the lifetime of the 4th defendant, and for a permanent injunction restraining the 4th defendant from alienating suit items 7 and 8, and for costs of suit.
2. The material averments of the case that led to the filing of the present second appeal may be summarised as follows:
The Scheduled properties belonged to late Ibran Khan Sahib son of Khadhar Khan Sahib. He executed a settlement deed on 20.7.1946 in favour of his daughter, the 4th defendant herein, and her husband Sheik Ghouse SahibThe husband of the 4th defendant also happened to be the sister's son of the executant. As per that deed, the settlees were to enjoy the properties settled without any power of alienation during the lifetime of the settlor and his wife Ayeesha Bivi and after their lifetime absolutely to the male or female issues of the settlees. It is said that the settlement deed was accepted and acted upon, pattas for the properties also were changed in the name of the settlees. In pursuance of the deed, the settlees took possession of the properties, enjoyed them and paid kist also. It is further said that on the execution of the settlement deed, the settler's title was lost by valid and due execution of the gift deed and possession passed on to the settlees in pursuance of it. It is further averred that a sale deed was executed by the settlor on 6.7.1950 in favour of the same persons in respect of the same properties for a stated consideration. According to the plaintiff, the document is not valid and the recitals as to consideration were absolutely false. Once the settlement deed was executed, he had no right to convey the title to the same person or to any other person. The settlees also do not claim any title under the latter deed. It is said that the plaintiff is the only daughter of the 4th defendant. The father of the plaintiff who happens to be one of the beneficiaries under the settlement deed dated 20.7.1946, namely, Sheik Ghouse Sahib died on 24.5.1982, and, under the terms of the settlement deed, the plaintiff is entitled to absolute title after the lifetime of the-4th defendant. It is further said that the settlees have executed a settlement deed in favour of the first defendant who is also a close relation, in respect of some or the plaint items they have also executed a sale deed in respect of some of the items, in favour of the second defendant, and the 4th defendant has executed a document in favour of the third defendant. These alienations, according to the plaintiff, are invalid, and even if they have got any validity, they come to an end on the death of the 4th defendant. It is further said that there was no necessity for the 4th defendant to throw away the properties to the detriment of the plaintiff since the 4th defendant is entitled to be in possession during the lifetime, and there is no question of limitation for recovery of possession. It is on the above allegations, the suit was filed for the reliefs stated above.
3. In the written statement filed by the first defendant, he has stated that the suit is not maintainable and the document dated 20.7.1946 is a sham document, which has not come into effect, and the original owner continued to deal with the property. In fact, the document was executed at a time when some litigations were pending against the executant, initiated by his brother and his brother's children. It is said that a reading of the document also makes it clear that if was not intended to come into operation, and possession continued to be with the original owner. It is said that he got valid title by virtue of the documents executed by the 4th defendant and her husband, who obtained title as per sale deed executed by the original owner on 6.7.1950.
4. The other defendants have also put forward more or less similar contentions, and they are claiming portion of the scheduled items as absolute owners. All of them dispute the title of the plaintiff claimed by her on the basis of the settlement deed dated 20.7.1946.
5. During trial, plaintiff got herself examined as P.W. 1, and both oral and documentary evidence was produced before trial court. The trial court, after considering the entire evidence, came to the conclusion that the suit is not maintainable, and Ex. A-1 is not a valid document, which confers any title to the plaintiff. It also came to the conclusion that Ex. A-1 is against the provisions of Muslim Law, and the title continued to be with the settlor, and, therefore, it is an invalid document. It also came to the conclusion that possession also was not delivered to the settlees, and even if they had any possession, that can be only for the purpose of taking the usufructs from the property, and the possession was retained with the owner himself. It further came to the conclusion that as per Ex. B-4, the 4th defendant's husband obtained valid title, as the document is supported by consideration. It was also found that the plaintiff herself has obtained a document from the executant in respect of Item No. 7, and thereafter she sold the same to a stranger under Ex. B-2. Therefore, the principle of estoppel also applies to dispute the title of the executant. Finally, it came to the conclusion that the suit itself is filed at the instance of the 4th defendant, and the same is lacking in good faith the suit was accordingly dismissed.
6. Against that decision, plaintiff preferred A.S. No. 43 of 1994, on the file of District Judge, Villupuram. The Appellate Court also confirmed the judgment of the trial court and dismissed the appeal with costs. It is against the concurrent judgments of both the Courts below, this second appeal is filed.
7. When the matter came for admission, I ordered notice of motion, and the case was directed to be posted for hearing after the respondents also entered appearance. Accordingly, after the respondents also entered appearance. The matter was listed and the second appeal was heard for final disposal.
8. In the Memorandum of Appeal, the appellant has raised the following as substantial questions of law:
(1) Whether the courts below erred in law in holding that settlement deed Ex. A-1 is not valid and was not acted upon by referring to Ex. B-4 which is a document alleged to have been executed 4 years after execution of Ex. A-1?
(2) Whether the courts below had not erred in law in failing to advert to the fact that once an estate is vested in favour of a person or persons by execution of a settlement deed, the grantor loses all right in favour of the grantee and subsequent thereto the grantor will have no right to divest the grantees of the interest conferred on them by the deed executed by grantor.
(3) Whether the courts below had not erred in law in assuming that the appellant plaintiff was not born on the date of Ex. A-1, particularly when no such plea had been raised by the respondents 1 to 3 the contesting defendants, and no issues had been framed on that point and (4) Whether the courts below had not erred in law in deciding the question the validity of settlement deed in favour of respondents 1 to 3 without applying the true and correct principles of Mohamedan Law as interpreted and recognised in various decisions of Apex Court and High Courts?
9. According to me, all these questions can be considered together, for, everything depends upon the validity of Ex. A-1.
10. Ex. A-1 is dated 20.7.1946.1 will extract (in translation) the relevant portion of Ex. A-1. In the preamble portion, it is said that the settlees are the daughter and son-in-law of the executant, and they will be his legal heirs on his death. He also said that he has no male issue. The value of the property will be around Rs. 800. He further says that on the basis of the document, the 4th defendant and her husband are to enjoy the property during the lifetime of the settlor and his wife, and they have no power of alienation. They have to take the income and also maintain the settlor and his wife. It is further said that after the death of the settlor and his wife, the property will be taken by the children, whether male or female, born to the 4th defendant and they will deal with the property as absolute owners. In the last portion of the document, he further says that possession was also handed over to the 4th defendant and her husband. This is the sum and substance of Ex. A-1.
11. A reading of Ex. A-1 makes it clear that so far as the 4th defendant and her husband are concerned. only a right of enjoyment has been given. The executant did not say that he divested himself of the ownership over the property. The preamble portion further makes it clear that what he wanted was to provide something after his life. Further down, he says that after the death of the settlor and his wife, the ownership over the property shall be taken by the issues of the 4th defendant, whether male or female. So, so far as the plaintiff is concerned, who claims to be a daughter of the 4th defendant, she is not getting any right during the lifetime of the settlor and his wife.
12. Learned Counsel for the appt ant contended that even though the plaintiff is not named in Ex. A-1, a reading of the document makes it clear that it had been executed for her benefit, and that she obtained a vested right, but the right of enjoyment is postponed during the lifetime of the 4th defendant. This, according to the learned Counsel, is a valid gift under Muslim Law. He also says that even if life interest is not recognised, that could be taken as a right to take the usufructs, and, for the said purpose, learned Counsel submitted that possession was also handed over to the 4th defendant and her husband. The last sentence in Ex. A-1 was given imperative by the learned Counsel.
13. Against the said contention, learned Counsel for the respondents submitted that. Ex. A-1 is not a valid document under Muslim Law and even the subsequent conduct of the parties shows that the executant continued to be the owner, and the plaintiff is one of the persons who has taken document from the original owner subsequent to Ex. A-1. Learned Counsel also submitted that for the purpose of interpretation of a document, the subsequent conduct though not relevant, can be taken into consideration to show the intention of the parties when Ex. A-1 was executed. According to learned Counsel, it is because the executant did not divest himself of his right over the property, that he was capable of executing documents in favour of the 4th defendant and her husband in the nature of sale deed and also "Sridhana" in favour of the plaintiff subsequently. He also said that under Muslim Law, a gift has to comply with three conditions, namely, (1) a declaration of gift whereby the settlor divests himself of all his right over the property; (2) delivery of possession which is succeptible at the time of gift, and (3) acceptance of the same by the donee or on her behalf. According to learned Counsel, none of these conditions has been satisfied in the present case and, therefore, the gift is invalid. When the donees themselves have purchased the property from the donor subsequently, that also shows that the executant continued to be the owner. He further contended that at the time when Ex. A-1 was executed, litigation was pending and the intention was to shield the property from others.
14. Both the courts below have come to the conclusion that Ex. A-1 is not a gift, and it is an invalid document. It was also found that the executant continued to be the owner who alienated the property subsequently, and plaintiff was also one of the beneficiaries of such alienation. The courts below further found that the plaintiff was not born on the date when Ex. A-1 was executed and, therefore, for that reason also, she has no locus standi to file the suit.
15. In State of Uttar Pradesh v. Sayed Abdul Jalil . Their Lordships held that while interpreting a document, the entire document has to be read as a whole, and, in the case of Muslim gift, the following conditions will have to be satisfied.
...In a document meant for a transfer of ownership, the purpose is generally stated clearly to be that the property given will be owned and possessed henceforth by the donee in such a way that he could use it or deal with it as he liked.
A transfer of ownership would, in the ordinary course, be expected to be evidenced by much more clear and unequivocal language. The appropriate proceeding after a gift is that of mutation in Municipal records. There being no mention either of rights of ownership or those of life-estate holder, the mere use of the words "inteqal" and "atta" does not determine what was really meant to be granted or transferred.
The plaintiff failed to prove either a grant of the "corpus" or of the usufruct of the house to him for his life by its owner. The transaction would amount to nothing more than the grant of licence, revocable at the grantor's option to reside in the house so long as the grantor allowed the license to do so. Such a grant is known as "areeat" in Mohamedan Law.
The very first of the three conditions of a valid gift, given in Mulla's principles of "Mohamedan Law" - that of a "declaration of gift by the donor" - is lacking here. Such a declaration must indicate, with reasonable" clarity, what is really gifted.
16. In Mulla's Principles of Mohamedan Law, 18th Edition in Chapter XI, while dealing with 'Gift' under Section 149, the learned Author has said thus:
The three essentials of a gift:
It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express of implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete.
17. In Asaf A.A. Fyzeei's 'Outlines of Mohammaden Law' - Third Edition (1964), while dealing with 'Gifts' according to Mohammedan Law, the learned author has considered what is the scope of creating a life interest and how far the same is valid in accordance with Mohammaden Personal Law. At pages 234 to 237, the learned Author has said thus":
'Estate' in a term of art in English law and has a definite meaning in its technical sense. A 'life estate' implies the transfer of the corpus of the property to a certain person with certain limitations as to its use and alienation. In this technical sense of the term a life estate is now declared by the Privy Council (Nawazish Ali Khan's case) to be unknown to Mohammaden Law as administered in India but life interests are well known and can be created in the following ways:
I. By Family Wakfs II. By Wills III. By the Rule in Nawab Umjad Ally Khan's Case (1867) 11 M.I.A. 51:
IV. By the law of Gifts as explained in Amjad Khan v. Ashraf Khan (1929) 56 I.A. 213: and in V. Sardar Nawazish Ali Khan's case (1948) 75 I.A. 62.
VI. By family settlements (...) We shall deal with each of these cases briefly, paying special attention to the last three, for the first two will be dealt with fully in the chapters on Wakfs and Wills, respectively.
Before coming to the law of gifts in this respect, it is necessary to remind ourselves of the difference between the corpus ('ayn) and the usufruct (Manafi) of property according to Mohammaden Law where both the corpus and the usufruct can be the subjects of gift.
The 'ayn is the substance of a thing, e.g., a plot of land, a house, a camel or a book. This is also called 'corpus' in modern text-books in India. Manafi (singular, manfa' a is literally the profits or the produce. It means, not the thing itself but its use, benefit, produce or profits or instance, the right to reside in a house, the right to fish in a stream, the right to take the produce of a garden, the recurring income of a partnership or dividends on shares or interest on Government loans or stock.
The main distinction is this with the right to take the produce is intimately connected the notion of time or duration; so that you may transfer the Manafi, usufruct, for a specified time, but not the corpus.
If the corpus is transferred, in Islamic Jurisprudence, there can be no question of a time limit; It is the absolute transfer of ownership and is therefore for an indeterminate duration or, in ordinary parlance, for every.
Now hiba in Mohammaden law is a transfer of the corpus. Hence the rule in the texts that when hiba has been made, you cannot cut it down by a condition repugnant. The well-known tradition of the prophet as regards' umra is an illustration. According to the traditionist Bukhari, it is related on the authority of Jahir that the Prophet decided in the matter of 'umra that it is for him to whom it has been gifted. Now if the text is looked at, it contains the words li-man wunnibat iaunu, that is, to whom it has been made hiba. The expression used is, the verbal form of a root-word from which is derived the noon hiba, gift of the corpus.
The prophet therefore says nothing more than this "When you have made an absolute gift of a house, you cannot cut it down by conditions repugnant to it; you cannot restrict the use of the property to the lifetime of a man in such a case."
Therefore, according to Mohammaden law as received in India, you can make a gift of the corpus; this is called hiba. Or you may make a gift of the usufruct this can be done by the rules as to ariya, wasiyyat bi':
Manafi twrith and in various other ways. A life interest may therefore, by considered as a transfer of the usufruct for a well defined period and, Sir John Beaumont has declared such interests to be valid in all schools of Mohamedan Law in Sardar Nawazish AH Khan's Case, where he says:
Limited in interests have long been recognised under shia Law. The object of Habs. is the empowering of a person' to receive the profit or usufruct of a thing.
With a reservation of the owner's right of property in it.
I have bestowed on thee this mansion...for thy life or my life or for a fixed period' is binding by seisin on the part of the donee. Bail : II 226 See also Banno Begum v. Mir Abed Ali. Their Lordships think that there is no difference between the several schools of Muslim law in their fundamental conception of property and ownership. A limited interest takes effect out of usufruct under any of the schools. Their Lordships feel no doubt that in dealing with a gift under Muslim law, the first duty of the court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if on construction;
the gift is held to be one of limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest.
18. In Tyabji on 'Muslim Law' - 4th Edition (1968) by Muhsin Tayyibji, while dealing with the subject matter of 'Gift' under Section 376 (at pages 331 and 332), the learned author has said thus:
A leading distinction in Muslim Law is that between (a) ayn, or mal, or the substance of a thing, or itscorpus, or the thing itself, (viz. a determinate physical object such as a plot of land or a camel or house or horse) and (b) the manafi of such a thing, or its produce, or fruits, or usufruct, or use, or the right to take its benefits, or its services, or what it produces. Gifts of these two forms of property fall under different categories.
This distinction which the late author had been trying to get recognised for several decades had ultimately received full recognition in Nawazish Ali Khan v. Ali Raza Khan (1948) 75 I.A. 62 : A.I.R. 1948 P.C. 134. Under Muslim Law, the gift of the corpus must be outright and unconditional. But the gift of the usufruct is capable of manipulation so as to effectuate the various kinds of settlements met with in English law; viz., life-interest, vested remainders, etc., But when drafting the gift deed care must be taken to make the form in conformity with the system of Muslim law. Blindly following English precedents can lead to unexpected complications.
19. In The Muslim Law of India' by Dr. Tahir Mahmood published in 1980, the learned Author has dealt with (at pages 209 and 210) limited interest and how far the same is valid and how the document has to be interpreted in law. The relevant passages reads thus:
Limited Interests:
1. Confused with the rule of Muslim law which insists that hiba must be.
unconditional, the law of Islam relating to gratuitous transfer of limited interests in property was in accurately interpreted by the courts in British India in several old cases. The inaccuracy emanated also partly from an unwarranted attempt to read the concepts of English property law into the Muslim jurist prudence and party from a failure to appreciate the distinction in Islamic law between transfer of corpus (ayn) and that of usufruct (manafe). However, now this confused and inaccurate understanding of the rule's of Muslim Law has no more than a historical importance. At present, the law relating to transfer of limited interests, applicable to muslims of India, stands judicially settled to a large extent. The rules now laid down in this regard by the Courts constitute law in this country, whether they fully and truly conform to principles of Islamic jurisprudence or not.
2. The following general principles are now settled:
(i) in Muslim law hiba is not the only form of gratuitous transfer of property; it accommodates also some other forms of such transfer (not amounting to hiba);
(ii) such other forms of gratuitious transfer of property are not to be governed by all the rules regulating gifts amounting to hiba;
(iii) an owner of property may transfer only some rights in it, independent of its corpus'
(iv) where an owner has gratuitously transferred only some limited rights in his property, it does not lie in the jurisdiction of the courts to enlarge this transfer into that of the corpus of that property;
(v) though an owner cannot transfer corpus of a property for a fixed duration, the usufruct (or any limited right short of ownership of the corpus) may be transferred by way of gift;
(vi) the rules relating to delivery of possession and revocability, which apply to hiba, should ordinarily apply also to gifts not amounting to hiba;
(vii) limited rights in the property (short of its ownership) can be, transferred not only by transfer inter vivos, this may be done also by a testamentary disposition or by recourse to the law of wakfs;
(viii) the intention of the donor is decisive; where on a construction of the gift deed it is clear beyond doubt that he made a conditional transfer of the corpus, the conditional will be void without affecting the gift, but where it appears that he wished to transfer some rights short of ownership of the corpus, his intention should be given effect.
3. Specifically, it is not fully settled that a Muslim owner of property while gifting its corpus to donee, may reserve for himself the right to receive, or benefit from, any part (or from) of its usufruct. This principle was first established in 1S67 by the Privy Council, and has been applied in several later cases. However, as stressed in a 1977 case by the Kerala High Court if the donor reserves the corpus of the gifted property for himself (for his life) the gift will be invalid.
4. As regards a gift of usufruct to the donee for his life only (which may be termed as umra), the validity and enforceability of this type of gratuitous transfer of property under the Hanqfi, Shafei and Ithna Ashari laws is also now fully established. It has been specifically recognised, in the recent past, by several High Courts including those of Calcutta, Bombay, Nagpur and Kerala.
5. The owner may lawfully gift the corpus of the property to one person and part of its income to another. This may take the for of hiba in favour of the former with a stipulation that he or she must pay part of the property's income (or other usufruct) to the latter for his or her life. Such a stipulation may also be made in favour of several persons to benefit from it, either simultaneously, or in succession one after another.
[Italics supplied]
20. In B.R. Verma's 'Islamic law' - 6th Edition (1991), at page 596 the learned Author has said thus:
If the document in terms creates only a life-estate, there is no warrant to construe the same as one creating an absolute estate with a condition against alienation, on the theory that life-estates by way of gift are unknown to Mohammedan Law If such theory holds good under a document creating a life estate the dbnee would get nothing and not an absolute estate. It should be taken to be settled law that if in a Mohammedan gift, life-estate is created, it would take effect out of the usufruct (Italics supplied)
21. From the above position of law, it is clear that the Muslim Law does not recognise a gift of life-estate and creation of life-estate. If a life-estate is created, at the most it can be said that a right of enjoyment or right of usufruct is given to the donees and ownership is retained by the owner himself. Such a gift cannot be enlarged, nor can it be contended that the gift is on the corpus with a condition I am supported to take this view by the decision reported in Mrs. Hazara Bai v. Moham0ed Adam Sait where a learned Judge of this Court has held thus:
...If, under Mohamedan Law, life-estate cannot be created by gift, then in this case it must be held that the plaintiff got nothing under the document, if the document in terms creates only a life estate, there is no warrant to construe the same as one creating an absolute estate with a condition against alienation, on the theory that life estates by way of gift were unknown to Mohamedan Law If such theory holds good, under a document creating a life estate the donee would get nothing and not an absolute estate. It should be taken to be settled law that if in a "Mohamedan gift, life-estate is created it would take effect out of the usufruct. Therefore, in the present case the plaintiff having been granted only a life estate it takes effect out of the usufruct."
22. The contention of learned Counsel for the appellant is that the plaintiff obtained a vested right as per Ex. A-1 on the date of the document itself though the right of enjoyment is postponed during the lifetime of her parents. The said contention cannot be accepted. Even though the plaintiff is the only issue to her parents, she is not named in the document, even though the case put forward by the appellant is that she was born when Ex. A-1 was executed. The executant further declares that his daughter and son-in-law will be legal heirs on his death, and he wants the to provide for him during his lifetime. It is in view of the said intention, he says that his daughter and son-in-law may possess the property, take the income, maintain the executant and his wife during their lifetime, and, after their death, the ownership will go to the male or female issue of the fourth defendant A reading of the document makes it clear that the executant has no intention to divest himself of the corpus and he retained ownership over the same. There is no provision in the document to change the patta in the name of the 4th defendant and her husband, though there is a provision to pay tax for the same. For the purpose of taking the usufruct, possession is handed over but handing over possession is not on behalf of the plaintiff, but, to enable (he 4th defendant and her husband to take the income. A reading of the entire document makes it clear that it is not a gift under Muslim Law, but it is a document which creates a life-interest or limited interest, the ownership being retained by the owner himself; If life-interest cannot be created under Muslim Law, it follows that the 4th defendant is not getting anything. If the intention of the donor was to provide the plaintiff with a vested right over the corpus, nothing prevented him from executing a document in her favour postponing right of enjoyment luring the lifetime, in favour of the 4th defendant and her husband. The contention of the learned Counsel that it is a gift under the Muslim Law is therefore, rejected.
23. Under Ex. B-4, the executant himself executed a sale deed in respect of most of the items covered by Ex. A-1, and the purchasers are none other than the 4th defendant and her husband. That was within three years after the execution of Ex. A-1. In that document, he says that he continues to be the owner and is in possession of the property. The purchaser is none other than the beneficiary under Ex. A-1. When she herself takes the sale deed and pays consideration for the same, it follows that Ex. A-1 was not intended to be given effect to Ex. B-4 goes against the interest of the 4th defendant and her husband. It is further seen that the executant himself executed a 'Sreedhana' deed in favour of the plaintiff under Ex. B-1. The plaintiff herself accepts the same, admitting the ownership of the executant. Thereafter, she conveys the same to a stranger under Ex. B-2. Item No. 7 of Exs. the plaint schedule property is the one covered under Exs. B-1 and B-2. That also shows that the plaintiff also accepted the reality and recognised the executant as owner. That also shows that Ex. A-1 was not acted upon.
24. Learned Counsel for the appellant submitted that the patta has been changed by her parents immediately after Ex. A-1, and that shows that Ex. A-1 was acted upon. I cannot agree with the said submission. There is no provision in Ex. A-1 to change the patta Exs. A-2 and A-3 will not help the plaintiff in any way since even as per Ex. B-4 the fourth defendant and her husband became the owners, that too within two years from the date of Ex. A-1. No document has been produced to show that before Ex. B-4, patta has been changed.
25. The revenue receipt also will not help the plaintiff in any way, for, Ex. A-1 provides for"payment of tax by the 4th defendant and her husband, on behalf of the executant.
26. When the document itself is clear, the interpretation of the same will have to be within the four corners of the recitals therein, unless there is any ambiguity.
27. Learned Counsel for the appellant submitted that there is delivery of possession which makes the gift complete. He also said that the 4th defendant has accepted the gift. It is true that there is a recital in Ex. A-1 that possession was handed over to the 4th defendant and her husband. It is also true that there is a presumption that when there is a statement or declaration by the donor that the property has been delivered, it binds the persons claiming under them. But that is only a presumption which could be rebutted by other evidence. By taking Exs. B-4 and B-1 and the subsequent conduct of the plaintiff and the 4th defendant, it is clear that possession was not handed over, and the recitals in Ex. A-1 remain only in paper and not in reality. Even if possession was handed over, that is only for the purpose of taking the income, which will not confer any right on the plaintiff.
28. Learned Counsel submitted that the lower appellate court had gone wrong in finding that the plaintiff was not born when Ex. A-1 was executed. To substantiate the same he filed C.M.P. No. 8665 of 1996 before this Court, to receive additional evidence under Order 41, Rules 27, C.P.C. The fact that the plaintiff was born even before Ex. A-1 is clear from other evidence in this case, and the said finding by the lower appellate court may not be correct. But that by itself is not going to help the plaintiff in any way, if Ex. A-1 does not confer on her any right. I do not find any ground to receive additional evidence in this second appeal, for, the same is not necessary for proper disposal of this second appeal.
29. In the result, I do not find any question of law much less substantial question of law in. this case. Confirming the concurrent judgments of both the courts below, I dismiss the second appeal with costs.