Madras High Court
Kader Mohideen vs K.P.M. Peer Mohamed on 16 May, 2007
Author: V. Dhanapalan
Bench: V. Dhanapalan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 16/05/2007 Coram: The Honourable Mr. Justice V. DHANAPALAN S.A. No.2001 of 1991 Kader Mohideen .. Appellant vs. K.P.M. Peer Mohamed .. Respondent Second Appeal preferred under Section 100 of Civil Procedure Code against the judgment and decree dated 23.01.1991 passed in A.S. No.49 of 1990 on the file of the Principal Sub-Judge, Tirunelveli reversing the judgment and decree dated 27.11.1989 in O.S. No.985 of 1998 on the file of the District Munsif, Valliyur. !For appellant ... Mr. S. Ramesh for Mr. V. Raghavachari ^For respondent ... Mr. C. Vakeeswaran for Mr. A. Sankarasubramanian :JUDGMENT
The suit filed by the plaintiff was decreed and on appeal by the defendant, the lower appellate court reversed the findings of the Trial Court and dismissed the suit. Aggrieved by the judgment of the lower appellate court, the plaintiff has preferred this Second Appeal.
2. The case of the appellant/plaintiff, in short, is as under:
The defendant's father by name Fakir Mohideen Rowthar executed a Settlement Deed in favour of Mohideen Beevi, his daughter, who in turn, executed a Sale Deed on 21.07.1986 in favour of the appellant/plaintiff for a sale consideration of Rs.13,000/- on account of which the appellant/plaintiff has sole ownership over the suit property. On 28.06.1986, the respondent/defendant, along with his wife, came to Erwadi and resided as licensee in the suit schedule property with due permission from his sister Mohideen Beevi. Since the respondent/defendant refused to vacate the premises even after the sale deed was executed in favour of the appellant/plaintiff, the latter sent a legal notice dated 16.08.1986 to the former and on refusal by the respondent/defendant to vacate the suit schedule property even after receipt of legal notice, the appellant/plaintiff filed a suit for declaration of title and recovery of possession of the suit property.
3. The respondent/defendant filed a written statement contending that :
a. a sale agreement was made between his father Fakir Mohideen Rowthar and himself on 15.08.1985 for a consideration of Rs.10,000/- out of which, he had paid a sum of Rs.7,000/- and agreed to pay the balance of Rs.3,000/- within three months from the date of the sale agreement;
b. the settlement deed was obtained by Mohideen Beevi from Fakir Mohideen Rowther by means of undue influence when he was ill and hence, it is not valid;
c. the sale agreement between Fakir Mohideen Rowther and the respondent/defendant was made prior to the Settlement Deed and the respondent/defendant has been in possession of the suit property from the date of the sale agreement; and d. the suit has to be dismissed for non-joinder of Fakir Mohideen Rowther as a necessary party.
4. While the appellant/plaintiff examined three witnesses and marked five exhibits, the respondent/defendant too examined three witnesses and marked thirty three exhibits before the Trial Court. The Trial Court, on consideration of the oral and documentary evidence, concluding that the Settlement Deed in favour of Mohideen Beevi was obtained when Fakir Mohideen Rowther was in a conscious state of mind and was in accordance with the Mohammedan law and further holding that the sale agreement entered into between Fakir Mohideen Rowther and the respondent/defendant was created for the purpose of the case, decreed the suit.
5. In the appeal preferred by the respondent/defendant, the lower appellate court, though held that delivery of possession was handed over to Mohideen Beevi by Fakir Mohideen Rowther by way of Settlement Deed, concluded that the Settlement Deed was not valid since title was not declared in favour of Mohideen Beevi and accordingly, dismissed the suit.
6. Aggrieved by the judgment of the lower appellate court, the appellant/plaintiff has preferred this Second Appeal which has been admitted on the following substantial question of law:
"Whether the finding of the lower appellate court that the gift deed has been obtained by undue influence is correct especially when it has been held that there has been a valid acceptance of it?."
7. Mr. S. Ramesh, learned counsel appearing for the appellant/plaintiff has contended that the lower appellate court has erred in holding that the Settlement Deed was obtained by Mohideen Beevi by fraud and undue influence and as such, it is not valid in law. He has further contended that the lower appellate court, while holding that the appellant/plaintiff had failed to establish the factum of declaration of gift, has failed to note that Fakir Mohideen Rowther had filed the Interlocutory Application to implead him only at the instigation of the respondent/defendant. It is his further contention that the lower appellate court, having accepted that the delivery of possession is proved, ought not to have held that there was no valid declaration of gift.
8. In support of his contention that mere handing over of possession is sufficient, the learned counsel for the appellant has relied on a judgment of the Andhra Pradesh High Court reported in AIR 1974 AP 23 in the matter of Amir Ali Khan and others vs. Shahalam Khatoom and another:
". . . . .It would suffice, to constitute a valid gift of property in the possession of a mortgagee, if the donor delivers symbolic possession of the property to the donee by handing over the gift deed divesting himself of his title, rights and interest in the property and it is not necessary that there should be any overt act either by way of beat of tom or publication or notice to the mortgagee or the like."
9. Further reliance has been placed by the learned counsel for the appellant/plaintiff on a Division Bench judgment of this Court reported in AIR 1964 Madras 239 (V 51 C 72) in the matter of E.S. Hajee Abdul Kareem and Son vs. Commissioner of Income Tax, Madras, to strengthen his argument that gift need not necessarily be actually delivered though it is mandated by the Mohammadan Law. The relevant paragraph of the said judgment read as under: (para 5) "On appeal, the Tribunal observed in its appellate order relating to 1954-55 that there had been no proper delivery of the intended gifts, which continued to belong to the partner, i.e. Abdul Kareem. While it is no doubt true that there is no evidence of any actual delivery of cash to the donees of the gifts, the further observation that the amounts continued to belong to the partner Abdul Kareem, the donor, seems to be wholly without any basis. A somewhat consistent feature that is noticeable is that while the interest paid to the donee other than Abdul Gaffer, who was one of the partners, had not been attacked. If the gift in favour of the other donees is invalid for the reason that there was no actual delivery, the same defect should attach to the gift that was made to Abdul Gaffer, the eldest son, who happened to be a partner in the firm."
10. With regard to his contention that the Settlement Deed in favour Mohideen Beevi was not obtained under undue influence, reliance has been placed by the counsel for the appellant on a judgment of this Court reported in 2001(1) CTC 52 in the matter of Inum Bveevi vs. K.S. Syed Ahamed Kabir (died) and 15 others:
"The next question is whether it was brought executed of his own will or about by undue influence, force or coercion. Apart from stating that she had MSif over him, the Vitiating factor of undue influence has not been proved. In fact, in the evidence of P.W.1, the suggestion is when Ex.B.4 was signed SH was not fully conscious i.e. he had no "Raepidt[". In the plaint also, it is his case that she constantly gave him tablets and kept him in control. If he were controlled by drugs and in a non-lucid state of mind, it cannot be said that the document was brought about by undue influence. In the case of a person executing a deed under undue influence, the executant knows what he is doing, but he does it against his will. If the respondent's case is that he was not at all aware of what is happening, the plea of undue influence goes.
The respondent apart from pleading the same has not proved it, on the other hand, had given evidence that the donor was not in full possession of his mental faculties, which contradicts the plea of undue influence. The learned counsel for the appellant relied on Ladli Prashad Jaiswal vs. The Karnal Disteller Co. Ltd., Karnat, AIR 1963 SC 1279, in which the two conditions which are necessary to establish undue influence were set out.
(a) That the party because of undue influence was in a position of dominate the will of the other and
(b) That the said party obtained an unfair advantage by using that possession.
If these two conditions are not fulfilled, the presumption of undue influence will not arise and burden will not shift. The respondent had failed to establish undue influence either by admissions or by other evidence. The other decision cited by the learned counsel for the appellant to support his case that plea of undue influence cannot be accepted was the decision reported in Bishnudeo Narain & another vs. Seogeni Rai & others, AIR 1951 SC 280, where it was held that the case has to be decided on the basis of the particulars of undue influence given in the pleading, there can be no departure from that. The respondent has not established his case of undue influence."
11. Mr. C. Vakeeswaran, learned counsel for the respondent / defendant, per contra, by pointing out that Fakir Mohideen Rowther has filed an Interlocutory Application to implead him as a party in the suit, has argued that Fakir Mohideen Rowther could not have signed the Settlement Deed in favour of Mohideen Beevi in a conscious state of mind. The counsel for the respondent/defendant has further contended that the fluctuating stand of Mohideen Beevi, P.W.3, during her deposition with regard to signature and thumb impression of Fakir Mohideen Rowther would clearly indicate that the Settlement Deed was obtained under influence and as such it is not valid.
12. The learned counsel for the respondent/defendant, by pointing out Section 149 of the Mohammadan Law, has relied on a judgment of the Supreme Court reported in 1995 AIR SC 1205 in the matter of Mahboob Sahab vs. Syed Ismail & others to substantiate his argument that the ingredients of a gift must be satisfied. (para 5) "Section 152 envisages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act, a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. . ."
13. In support of his contention that the subsequent conduct of the donor has to be taken into account, the learned counsel for the respondent/defendant has brought to the attention of this Court, the judgment of the Allahabad High Court reported in AIR 1970 Allahabad 170 in the matter of Mst. Noor Jahan Begum vs. Muftkhar Dad Khan and others and the relevant paragraph reads as under:
"The subsequent conduct of the donor has been considered by the Courts in India as of great relevance in determining whether possession had been delivered and a valid gift completed. In Sultan Miya vs. Ajibakhatoon Bibi, AIR 1932 Cal 497, Mitter, J. observed:-
"That subsequent conduct of the donor is of great materiality would appear from the remark made by Sir Barnes Peacock in the course of argument in Ammeroonnissa's case (1875 2 Ind App 87. Sir Barnes Peacock remarked as follows:
"But the mode in which the father dealt with the profits would be important as regards the bona fides and completeness of the gift as throwing light upon the intention."
14. To emphasise the valid ingredients of a gift, the learned counsel for the respondent/defendant has relied on a judgment of the Supreme Court reported in AIR 1966 SC 1194 (V53 C 231) in the matter of Maqbook Alam Khan s. Mst. Khodaija & others (paras 8) "But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put in within the power of the donee to obtain possession. If, apart from making a declaration, the donor does nothing else, the gift is invalid. . . ."
15. In order to substantiate his argument that attestation and execution of documents are two different acts and in the event of attestation not being proved, execution is of no avail, the counsel for the respondent/defendant has relied on paragraph 18 of a judgment of this Court reported in (2001) 3 MLJ 420 in the matter of Manikkam Ammal and others vs. Appavu Mudaliar and others which reads as follows:
"Section 68 of the Indian Evidence Act shows that "attestation" and "execution" are two different acts one following the other. There can be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. Section 63 of the Succession Act also lays down certain rules with regard to the execution of unprivileged wills. The word "attested" has been defined in Section 3 of the Transfer of Property Act. Considering all the three provisions, namely, Section 68 of the Evidence Act, Section 63(c) of the Succession Act and Section 3 of the Transfer of Property Act, Their Lordships of the Supreme Court in the case of Kashibai vs. Parwatibai (1995) 6 SCC 213, has observed thus:
"Para 11. . . Having regard to the aforementioned definition on attesting witness is a person who in the presence of an executant of a document puts his signature or mark after he has either seen the executant himself or someone on direction of the executant has put his signature or affixed his mark, on the document so required to be attested or after he has received from the executant a personal acknowledgment of his signature or mark or the signature of mark of such other person. . ."
16. Further, the counsel for the respondent/defendant, in support of his arguments that as per Section 63(c) of the Indian Succession Act, the witnesses to a document ought to have seen the testator affixing signature in the document, has placed reliance on a judgment of this Court reported in 2000 (IV) CTC 490 in the matter of M. Kandiah Pillai (died) and six others vs. S. Mehalingam and seven others and the relevant paragraph reads as under:
"It is also to be noticed that P.W.2, in his capacity as attestor has spoken to his seeing the testatrix affixing her thumb impression only in the last page of Ex.A.1. He had not stated that he saw the testatrix affixing her thumb impression in all the pages of Ex.A.1. The provisions of Section 63(c) of the Indian Succession Act are not satisfied. The lower appellate court has also pointed out that the propounder had failed to prove that P.W.2 was present when the testatrix affixed her thumb impression in all the pages of Ex.A.1."
17. I have given careful consideration to the submissions made by the learned counsel on either side and the judgments of the Courts below. In order to decide the substantial question of law involved in this appeal, the only point that needs to be answered is whether Ex.A.2, Settlement Deed executed by Fakir Mohideen Rowther favouring P.W.3, Mohideen Beevi is genuine or was obtained by the latter by undue influence.
18. The undisputed facts in this case are that the respondent/defendant has been in occupation of the suit property and Fakir Mohideen Mohideen Rowther was not enjoying sound health at the time when Ex.A.2, Settlement Deed was executed. While the case of the appellant/plaintiff is that the respondent/defendant has been staying in the suit property as a licencee with the approval of P.W.3, his sister, it is the case of the respondent/defendant that he has been staying in the suit property based on Ex.B.3, Sale Deed executed in his favour by Fakir Mohideen Rowther.
19. Firstly, from a perusal of the judgment of the Trial Court, it is seen that it has omitted to deal with an important point, i.e. filing of I.A. No.2683 of 1986 by Fakir Mohideen Rowther in which he had sought to be impleaded in the suit. In the Interlocutory Application which is filed five months after the date of Ex.A.2, Settlement Deed, he has stated that he is the owner of the suit property and as such, he has to be necessarily impleaded as a party to the suit. Had Fakir Mohideen Rowther really gifted away his property by way of Ex.A.2, there would have been no necessity for him to file such an Interlocutory Application. It is to be noted in this context that the judgment reported in AIR 1970 Allahabad 170, relied on by the counsel for the respondent/defendant is squarely applicable to the case on hand. Though it is argued on the side of the appellant/plaintiff that the said I.A. has been filed at the instigation of the respondent/defendant, there is no evidence let in by the appellant/plaintiff to prove his case. From this, it is crystal clear that Ex.A.2 was not executed when Fakir Mohideen Rowther was in sound consciousness.
20.Secondly, one of the debatable reasonings given by the Trial Court, while decreeing the suit is that Exs.B.3 to B.33, Electricity bills, pertain to the period subsequent to 1986 and the respondent/defendant has failed to mark any exhibit dated prior to 1986 to prove that he was in possession. It is to be noted that it is the case of the respondent/defendant that he was staying in the suit property with his father. Even assuming without conceding that Fakir Mohideen Rowther had executed Ex.A.2, Settlement Deed with his full knowledge and consciousness, I find no reason to believe as to why Fakir Mohideen Rowther had continued to pay electricity bills even after gifting away his property to P.W.3, Mohideen Beevi. Of course, there is no wonder in a father gifting away his property to his daughter; but, from a perusal of Exs.B.3 to B.33, what is amusing in this case is that Mohideen Rowther, the donor, had continued to pay electricity bills to the property which he has already gifted to his daughter. When the fact remains that his father also was staying with the respondent/defendant, naturally, the electricity bills could be only in the name of the respondent/defendant's father. Therefore, this reasoning given by the Trial Court for decreeing the suit cannot be accepted.
21.Thirdly, the case of the appellant/plaintiff is that Fakir Mohideen Rowther was attacked by paralysis and he was not in a position to affix his signature and hence, his thumb impression was obtained in Ex.A.2, Settlement Deed. It is not his case that he was struggling for his very life. In such a case, I find no emergent necessity from the side of Fakir Mohideen Rowther to execute the Settlement Deed in favour of P.W.3, Mohideen Beevi. In other words, he need not have deviated from his usual practice of affixing signature by affixing his thumb impression when his life was not in extreme danger. Last but not the least, though it is stated in the plaint that the respondent/defendant has given a Release Deed to Fakir Mohideen Rowther in respect of the suit property, the appellant/plaintiff has failed to mark the same as documentary evidence. From this aspect also, it can be inferred that the claim of the appellant/plaintiff cannot be a genuine one.
22. In the light of what has been stated above, I am of the considered view that the Trial Court has erred in decreeing the suit and the lower appellate court has rightly reversed the judgment of the Trial Court by coming to the conclusion that Ex.A.2, Settlement Deed is not a valid document in the eye of law since it was obtained by P.W.3 by undue influence when her father Fakir Mohideen Rowther was not physically sound. Thus, having come to the conclusion that Ex.A.2 is not a valid document in the eye of law, I am of the considered opinion that there is no reason to go into the aspect as to whether the lower appellate court is correct in holding that there is valid acceptance of gift and the substantial question of law is answered accordingly.
In the result, the Second Appeal which is devoid of any merit, stands dismissed without any order as to costs.
cad To
1. The Principal Sub-Judge, Tirunelveli
2. The District Munsif, Valliyur