Karnataka High Court
Md. Khalilur Rahman vs Md. Fazlur Rahman on 18 April, 1986
Equivalent citations: ILR1986KAR2115
JUDGMENT Nesargi, J.
1. Respondent-1 - plaintiff filed the suit on 15-11-1967 praying for a decree that he is entitled to 7/44th share in all the suit properties and for directing the present appellants who were defendants 1 to 3 in the suit to pay his share of the mesne profits for the past three years from 1-9-1964 amounting to Rs. 1260/- and also requesting for a direction to hold an enquiry under Order 20 Rule 12 of the Code of Civil Procedure regarding future mesne profits.
2. Originally there were seven defendants. Defendant-4 is the mother of defendants 1 to 3 and the plaintiff. Respondent-2 who has died during the pendency of this second appeal, is defendant-4. Respondents-3 to 5 are defendants 5 to 7. They are the daughters of defendant-4.
3. The suit properties consist of ten items. The two Courts below decreed the suit of the plaintiff in regard to items 1, 2 and 9. Exhibit P1 dated 25-3-1953 is the settlement deed executed by Mohamad Ummar Saheb, father of the appellants-defendants-1 to 3 and the plaintiff and defendants 5 to 7 who were respondents 3 to 5 and husband of original defendant-4. ln the settlement deed his properties are classified into A, B, C, D, E and F Schedules. Suit items 1, 2 and 9 are the items in 'A' Schedule. Respondent-1 plaintiff has not filed either cross-objections or appeal in regard to the relief denied to him by the two Courts below that is in regard to the remaining suit items. Hence, only suit items 1, 2 and 9 which are the items in 'A' Schedule in Exhibit P1, are concerned in this appeal.
4. The undisputed facts are that Mohamad Ummar Saheb and his wife defendant-4 have as their sons, plaintiff and defendants 1 to 3 and as daughters, defendants 5 to 7 namely, respondents 3 to 5. He executed Ex. P.1 dated 25-3-1953 and got it registered. By Ex. P.1, he settled the properties in Schedule 'B' in favour of defendant-4 - his wife, the propertities in Schedule 'D' in favour of defendant-1, the properties, in Schedule 'E' in favour of defendant-2 and the properties in Schedule 'F' in favour of defendant-3. Plaintiff and defendants 1 to 4 took possession of their respective properties immediately after Ex, P. 1. Mohamad Ummar Saheb retained the properties in the 'A' Schedule in Ex. P.1 for himself and stated in Ex. P.1 that, after him, defendant-3 would get the said properties. He died on 10-1-1954. By the year 1945, the plaintiff had migrated to Madras. Even after the death of Mohamad Ummar Saheb, he remained in Madras. Defendant -4 came to be in possession and enjoyment of the 'A' Schedule properties which are concerned in this appeal. Defendant-1 being the eldest of defendants 1 to 3, has been managing the properties. Defendant-4, executed Ex. P.3 dated 5-8-1965, a settlement deed, settling all her properties including the 'A' Schedule properties in favour of defendants 1, 2 and 3, the present appellants. As already stated, she has died during the pendency of this appeal. On 25-7-1966, plaintiff issued notice to defendant- 4 as per Ex. P.4, asserting his right to his share in the suit items 'A' Schedule properties in Ex. P.1. Thereafter he has filed the present suit on 15-11-1967.
5. The plaintiff's case is that Ex.P.3 was brought about by exercising undue influence coercion etc., on defendant-4 by defendants 1 to 3 and he is entitled to his share in all the properties in Ex. P.3. In regard to the remaining items of the suit properties, he contended that they had been in fact acquired by his father Mohamad Ummar Saheb in the name of defendant-4 and therefore, he Was entitled to a share in those properties also. These properties are part and parcel of the properties in Ex.P.3. It may be stated here that this part of the case of the plaintiff has been negatived by the two Courts below and he has not challenged the same.
6. In regard to suit items 1. 2 and 9, that is, properties in 'A' Schedule in Ex.P.1, he contended that the relevant clause in Ex.P.1 amounts to a bequest in favour of defendant-4 and such bequest is invalid according to the Mahommedan Personal Law and therefore, he is entitled to his share.
7. The defendants 1 to 4 contested this claim on many grounds. Firstly they contended that Mohamad Ummar Saheb had gifted suit properties to defendant-4 and had retained his right of maintenance during his life time, Nextly they contended that defendant-4 had perfected her title by adverse possession. The two Courts below have interpreted the narration in Ex.P.1 as a will. They have held that Mohamad Ummar Saheb had bequeathed the items in dispute in this appeal to defendant-4 and such bequest is invalid for want of consent of the remaining heirs, namely, plaintiff and defendants 1 to 3 as per the Mahommedan Personal Law. The contention of defendants 1 to 3 that defendant-4 had perfected her title by adverse possession has been negatived on the reasoning that when once the bequest, in favour of defendant-4 came to be legally invalid, the plaintiff is entitled to his share.
8. Sri H.R.Venkataramanaiah, learned Counsel appearing on behalf of the appellants-defendants 1 to 3 argued in the first instance, that the relevant narration in Ex.P.1 makes out that Mohamad Ummar Saheb had, during his life time, by executing Ex.P.1, gifted the items in dispute, which will be here-in-after referred to as 'A' Schedule properties, with reference to Ex.P.1, in favour of his wife-defendant-4 and had, retained for himself only the right to be maintained out of, that. The relevant narration in Ex.P.1 reads as follows:-
Plain reading of this narration leaves, no doubt, in my opinion, that he did not part with possession of the 'A' Schedule properties in favour of defendent -4 during his life time. He only allowed her to manage the properties and maintain the family out of the income. It is to be remembered that on the date of Ex.P. 1, defendants 2 and 3 were minors and plaintiff and defendant -1 were major sons of Mohamed Ummar Saheb. In this view of the matter, it is not possible to accept this contention of Sri H. R. Venkataramanaiah. The conclusion recorded by the two Courts below in this behalf is. sound. Sri Venkataramanaiah nextly argued that defendant-4 Shazadabi, wife of Mohamad Ummar Saheb, entered into possession of 'A' Schedule properties, enjoyed 'A' Schedule properties immediately after the death of Mohamad Ummar Saheb on 10-1-1954 because of the devolution of the properties on her under Ex.P.1, that is, as absolute owner and therefore, her possession would be adverse to the interest of all the other heirs including the plaintiff. He urged that the two Courts below have missed this aspect of the matter Sri M.S.Gopal, learned Counsel appearing on behalf of the contesting respondent-1, argued that as the plaintiff had not given his consent to the bequest after the death of Mohamad Ummar Saheb, his right to claim his share cannot be denied, because, defendant-4 Shazadabi, would be in possession as a tenant in common with respondent-1' plaintiff.
9. Mahommedan Personal Law dictates that if a Muslim executes a Will, bequeathing any of his properties or all his properties in favour of one of his heirs, consent of the remaining heirs would be necessary to validate the bequest. It is not in dispute that the plaintiff has never given his consent expressly to the bequest of 'A' Schedule properties in favour of defendant-4. Sri Venkataramanaiah argued that consent of the plaintiff to the bequest is implied and it can also be seen that the plaintiff has acquiesced, when his conduct after the death of Mohamad Ummar Saheb is taken into consideration. He placed reliance on the decisions in Daulatram v. Abdul Kayam, ILR 26 Bombay 497, Mohamed Hussein Haji Gulam v. Mohamed Ajam Aishabi and ors., AIR 1935 Bombay 84, Ma Khatoon v. Ma Mya and ors., AIR 1936 Rangoon 448, Fakir Mohammad Khan v. Hasan Khan, AIR 1941 Oudh 25 and Izzul Jabbar Khan Azizul Jabbar and ors. v. Chairman District Council Kuchery Ward Seoni District Chhindwara and ors., AIR 1957 Nagpur 84. It may be stated that the Nagpur case has referred to the other decisions cited earlier. He argued that in the year "1945, the plaintiff settled in Madras. He took possession of 'C' Schedule properties (as narrated in Ex.P.1) on the execution of Ex.P.1 on 25-3-1953 by Mohamad Ummar Saheb. These facts show that plaintiff was fully aware of the bequest of 'A' Schedule properties by Mohamad Ummar Saheb in favour of defendant-4. Even then, he kept quiet till 25-7-1966, when he issued notice Ex.P.4. By that time, he was very well aware of the fact that defendant-4 was in possession and enjoyment of 'A' Schedule properties as per the terms of the bequest and was managing the properties on her own with the aid of her sons particularly defendant-1. It is only by Ex.P.4 dated 25-7-1966 that the plaintiff asserted his right to his Share in 'A' Schedule properties. By that time, the period of 12 years from 10-1-1954 had expired. Though the plaintiff had the knowledge of the bequest, he had not taken any steps to challenge the bequest. He had not even taken any steps to claim his share by way of a suit for partition of the 'A' Schedule properties on the ground that he had not consented to the bequest and therefore, his share had remained untouched by the bequest. According to Sri Venkataramanaiah, these facts depict the conduct of the plaintiff and that conduct leads to one and the only conclusion that he had either acquiesced to the bequest or atleast had impliedly consented to the bequest, in favour of defendants 1 to 4.
10. Sri. M. S. Gopal, argued that mere silence by an heir in regard to a bequest cannot amount to consent as laid down in the decision of Nagpur High Court relied upon by Sri Venkataramanaiah. Perusal of the evidence of the plaintiff does not render any assistance on this question, as nothing by way of explanation of the facts narrated already, as pointed out by Sri Venkataramanaiah in regard to his conduct, is stated by him. The relevant facts in A. I. R. 1957 Nagpur page 845 are as follows :
(i) There was no material to show that they were aware of the mutation proceedings.
(ii) Publication of the notice in the tahsil office and in the village in regard to the mutation proceedings was not sufficient notice to the immediate heirs. There was no evidence to show that the female heirs were aware of the mutation proceedings and the mutation made in favour of the appellants therein. There was no material to show that the female heirs know such a bequest in favour the appellant had been made.
It is in view of these factors that the Nagpur High Court held that acquiescence or implied consent by the female heirs could not be inferred.
11. It is already shown that the plaintiff was very much aware of this bequest contained in Ex.P.1 not only because, it is a registered document, but also because he was allotted 'C' Schedule properties and he himself took possession of the same and came to be in enjoyment. Plaintiff was aware of the fact that defendant-4 had entered into possession and was in enjoyment of the 'A' Schedule properties immediately after the death of Mohamad Ummar Saheb by virtue of the bequest under Ex.P.1. These two factors take the present case out of the ambit of the principle laid down by the Nagpur High Court in the said decision. The question is, whether these factors would be sufficient to conclude that there was either acquiescence or implied consent by the plaintiff to the bequest by Mohamad Ummar Saheb in favour of defendant-4. In A.I.R. 1941 Oudh p.254 it is held that :
"Where a Mahomedan, by his will bequeaths more than one third of his whole property to a stranger the consent of his heirs to such bequest need not be express : it may be signified by conduct."
What has been further laid down is as follows :
"As the will was registered it may be presumed that all the parties concerned had knowledge of it, though this has been disputed by Learned Counsel for the appellant, and the conduct of the widow and the daughter would appear to indicate consent to it. The main difficulty relates to the sister, Mt. Bashiran, who died very shortly after her brother Abdul Ghani. It is not shown that she left any heirs, but if she did - as has been suggested by the Learned Counsel for the appellant - then their consent may be presumed as the bequest was not challenged by any of them during the long period that elapsed between the death of Abdul Ghani and the institution of the suit."
It is plain that knowledge of the bequest and inaction for a long period by an heir in challenging the bequest have been considered as sufficient to presume that the said heir had signified consent by his conduct. The factors stated above would be within the four corners of this decision. Hence, I hold that the plaintiff has signified his consent to the bequest, by Mohamad Ummar Saheb in favour of defendant-4 by his conduct.
12. Regarding adverse possession, it may not be necessary to go into this question in this appeal, in view of the conclusion reached in the preceding paragraphs, it is clear that defendant-4 entered into possession and came to be in enjoyment of 'A' Schedule properties not in her capacity as one of the heirs of Mohamad Ummar Saheb (according to Mahommedan Personal Law, she is an heir while defendants 1 to 3 are residuaries), but by virtue of the bequest made in her favour by her husband Mohamad Ummar Saheb. This fact was within the knowledge of the plaintiff. Therefore, it was all the more necessary for the plaintiff to challenge the bequest, but he has not done so. When that is so, possession of defendant-4 as owner of 'A' Schedule properties is certainly adverse to the interest of the plaintiff. The plaintiff has instituted the suit on 5-11-1967 more than 12 years from 10-1-1954, the date of death of Mohamad Ummar Saheb. As already painted out, he has asserted his right for the first time on 25-7-1966 by issuing Ex.P.4. This assertion of right does not interrupt the adverse possession, which had already commenced in favour of defendant-4 and against him, as laid down by the Supreme Court in Wuntakai Yalpi Chennabasavanna Gowd v. Rao Bahadur Y. Mahabaleshwarappa and Anr., . Therefore, the conclusion reached by the two Courts below in this suit cannot be sustained. It will have to be held that defendant-4 had perfected her title to Suit 'A' Schedule properties by adverse possession.
13. In view of the foregoing reasons, I allow this appeal and set-aside the judgments and decrees passed by the two Courts below. No order as to costs throughout, in view of the facts and circumstances of the case.