Madras High Court
Mrs. Mehrunnissa Bee vs Mahboob Bi (Died), Mohd. Noorulla ... on 4 December, 2001
Author: V. Kanagaraj
Bench: V. Kanagaraj
JUDGMENT V. Kanagaraj, J.
1. This appeal suit is directed against the Judgment and Decree dated 1.3.1979 rendered in O.S.No.1689 of 1973 by the First Assistant Judge, City Civil Court, Madras thereby passing a preliminary decree for partition and separate possession of the plaintiff's half share in the Items 1 to 3 of the plaint schedule properties by metes and bounds and for rendition of accounts by defendants 1 to 5 from the said properties and further declaring that the settlement deed dated 27.11.1970 is not a valid document and is not binding on the plaintiff in any event.
2. The suit was filed by the deceased first respondent in the above appeal suit on averments such as that she is the daughter of one Abdulla Sheriff, through his first wife Choti Bi @ Rahima Bi, for whom she was the only issue and as such she is entitled to a half share in the estate of her father according to Muhamedan law; that the other half share is inherited by defendants 6 to 8; that the defendants 1 to 5 not being the heirs of her father late Abdulla Sheriff, since they are the children of his second wife's sister named Mahboob Bi @ Choti Bi; that late Abdulla Sheriff passed away on 20.6.1971 at Madras leaving behind three properties viz. the House and ground bearing No.4, Kathbada Second lane, Old Washermenpet, Madras-21 (2) House and Ground bearing No.5, Kathivakkam High Road, Madras-21 and (3) the Premises in No.4, New Pensioner's lane, Madras-21; that the first two properties, the deceased Abdulla Sheriff held in his own name and the last one in the name of his second wife Khatoon Bi, benami for him; that he was in exclusive possession and enjoyment of all the three properties collecting rents there from and paying taxes by himself; that these properties are Items 1 to 3 of the plaint schedule property; that her deceased father also left behind moveable properties in the shape of Dekshas Almirahs and cots etc. for that the defendants 1 to 5 have secreted the same and that the plaintiff is not claiming any share in the said assets.
3. The further averments of the plaintiff are that the second wife of her father Abdullah Sheriff viz. Bannied Bee @ Kartoon Bi lived with him till her death on 7.11.1970 and that she died issueless; that the defendants 1 to 5 are the children of her sister Choti Bi @ Mehaboob Bi, started to exercise undue influence and control over the late Abdullah Sheriff, thereby preventing the plaintiff, his daughter, from asserting any right. The other heirs viz. defendants 6 to 8 were residing far away; that so long as the second wife Kartoon Bi was alive, she was kind and affectionate towards the plaintiff and did not allow the defendants 1 to 5 to control over her husband. But, immediately after her death, defendants 1 to 5 indulged in acts of fraud to grab the properties left behind by the deceased Abdullah Sheriff; that when Abdullah Sheriff was suffering from Paralysis and bed-ridden for a long time prior to his death and the at the time of Marzul- Mouth and not having a sound disposing state of mind, the defendants 1 to 5 having entered into a conspiracy about the settlement deed on 27.11.1970 purporting to show that the deceased Abdullah Sheriff conveyed the suit properties to these defendants 1 to 5 as his beneficiaries ignoring the plaintiff and defendants 6 to 8 which is nothing but a piece of fraud and not binding on the plaintiff; that the said settlement deed is not valid in law and the same cannot confer any interest in favour of defendants 1 to 5; that the deceased Abdullah Sheriff did not have any intention whatsoever to convey the plaint schedule properties in favour of defendants 1 to 5 ignoring the plaintiff nor did he deliver possession of the suit properties to these defendants; that the said document is violation of fundamental principles of Muhamadeen law relating to gifts besides be vitiated by Marzul-Mouth. Ignoring the same, the plaintiff has come forward to claim for partition of the suit properties. Hence, the suit for partition and separate possession and for rendition of accounts and for declaration that the settlement deed dated 27.11.1970 is void in law and unenforceable and is not binding on the plaintiff.
4. In the written statement filed by the defendants 1 to 5, they would state that the late Abdullah Sheriff Sahib had declared that the plaintiff was not his daughter and as such the plaintiff was not entitled to any share in the plaint schedule properties and that the plaintiff had no cause of action to file this suit. They would further allege that it is understood that he had settled all the plaint schedule properties on his wife Khatoon Bi and it was not a benami one as falsely alleged by the plaintiff; that after the death of Khatoon Bi, the late Abdullah Sheriff became entitled to a half share in the properties as the heir of his deceased wife and that he had settled this half share on these defendants; that the defendants 6 to 8 do not inherit any of these properties; that the settlement deed dated 27.11.1970 is perfectly valid in law and it was acted upon; that he was not in Marzul Maut when he executed the settlement deed nor was he under the control or influence of these defendants; that late Abdullah Sheriff was in good health and was in a disposing state of mind and he died seven months after the execution of the settlement deed; that out of his own free will and volition and out of love and affection that he bore towards these defendants, the late Abdullah Sheriff had settled his entire share in the suit properties and hence the settlement deed is perfectly valid and in confirmity with the principles of Muslims Law; that the plaintiff at this point of time cannot challenge the settlement deeds dated 27.1.1936 and 20.5.1952 which were executed before 38 and 22 years respectively and therefore the suit is barred by limitation; that it is also contended that the heirs of Khatoon Bi, who have their share in the schedule mentioned properties; that they have not suppressed the age of the said Abdullah Sheriff and that the settlement was prepared at the instance of late Abdullah Sheriff; that the settlement deeds dated 27.1.1936 and 20.5.1972 are not sham and void documents; that they have been given effect to and have been acted upon ;that the Khatoon Bi left behind her as her heirs her brother Syed Ismail and sister Mehaboob Bi, who are the owners of a half share in the schedule mentioned property; that the plaintiff is not entitled to any share in the plaint schedule property on any ground whatsoever; that these defendants are collecting the rents from the plaint schedule properties. In the additional written statement these defendants would state that the non-joinder of Khader Sheriff, who is Abdullah Sheriff's father's brother's son, as a party to suit renders the suit bad; that the defendants 6 to 8 in any event, are not the residuary heirs of late Abdullah Sheriff Sahib. On such averments these defendants would pray to dismiss the suit with costs.
5. Based on these averments, the trial court would frame six main issues and two additional issues as under:
1. Whether the plaintiff is entitled to half share in the suit property?
2. Whether the settlement deed dated 27.10.,1970 vitiated by fraud and misrepresentation?
3. Whether the settlement deeds dated 27.1.1936 and 20.5.1952 are sham and nominal?
4. Whether the defendants 1 to 5 are entitled to any share?
5. Whether the defendants 1 to 5 are liable to render accounts of the rental collections?
6. To what relief?
Additional issues framed on 14-2-1979:
1. Whether D9 excludes D6 and D8 from the list of residuary heirs?
2. Whether the suit is bad for non-joinder of the heirs of Khatoon Bee?
6. Having framed the above issues for determination of all the questions that arose in the suit, the trial court would order for the trial in which on the part of the plaintiff, five witnesses would be examined for oral witness as P.Ws.1 to 5 of whom, P.W.1 is the plaintiff herself. Likewise four witnesses would be examined on the part of the defendants as D.Ws.1 to 4. For documentary evidence, ten documents would be marked on the part of the plaintiff as Ex.A.1 to A10 and 18 documents would be marked on the defendant's side as Exs.B1 to B18. So far as the plaintiff's documents are concerned, Exs.A1 to A3 are the true extracts from the Register of assessment and Collection of Taxes for the suit premises for the period 1971-72 dated 5.10.1971. Ex.A.4 dated 27.11.1970 is the settlement deed Ex.A.5 dated 28.7.1971 is a copy of notice by plaintiff to the defendants . Ex.A6 and Ex. A7 respectively dated 17.11.70 and 20.11.70 are the paper publications, Ex.A.8 dated 8.8.1971 is a notice by defendants to the plaintiff. Ex.A9 is the extract from Nikha Register and Ex.A.10 dated 13.1.1935 is the true copy of the matrimonial certificate.
7. So far as the documents marked on the part of the defendants in `B' series are concerned, Ex.B.1 dated 27.11.1970, the deed of settlement which is Ex.A4 also, Ex.B.2 dated 27.1.36 and Ex.B.3 dated 20.5.1952 are also settlement deeds. Ex.B.4 dated 23.9.1978 is the death certificate of Abdullah Sheriff and Ex.B.5 dated 27.11.1970 is the publication of notice Ex.B.6 is the letter from Abdullah Sheriff to the Editor, Ex.B.7 is the true copy of a letter dated 15.1.1971 from Muthavalli to Abdullah Sheriff, Ex.B.8 dated 17.1.1971 is also another letter by Abdullah Sheriff to the Alijnab Secretary Committee Majid, EX.B.9 & B.10 are letters dated 29.1.1971 from Abdullah Sheriff, Ex.B.11 & B12 are the series of Challan for payment tax to the Corporation. Ex.B.13 is the copy of the notice dated 28-7-1971, Ex.B.14 is a letter dated 5-2-1974 from the Commissioner, Corporation of Madras, Ex.B.15 is a Challan for payment of tax. Ex.B.16 dated 27.11.1970 is the death certificate issued to Abdullah Sheriff. Ex.B.17 dated 25.11.1970 is a letter of Dr. Rajaiah & Ex.B.18 is dated 29.11.1970 is the translated version of a letter from Mahaboob Ali Sahib, to the Secretary.
8. The trial court in consideration of the facts and circumstances of the case as put forth by the parties and having regard to the materials placed on record and upon allowing the counsel to exhaust their remedies, has ultimately arrived at the conclusion to decree the suit as prayed for. It is only aggrieved against the said decree and Judgment passed by the lower curt, the second defendant in the suit, M/s Meharunnisa Bi has come forward to prefer the above appeal suit, on certain grounds, as brought forth in the grounds of appeal.
9. During arguments, the learned counsel appering on behalf of the appellant would submit that the second defendant in the suit is the appellant and the suit is for partition and separate possession filed informa pauperis for rendition of accounts and mesne profits and for declaration that the settlement deed dated 27.11.1970 is an invalid and unenforcenable document. The learned counsel would point out that the plaintiff's case is that she is the daughter of Abdullah Sheriff through his first wife Choti Bi and that she is entitled to half share in the whole of the property the other half share being inherited by defendants 6 to 8; The further case of the plaintiff is that the defendants 1 to 5 are not the heirs of the deceased, they being the childen of Abdullah Sheriff 's second wife's Sister Mehabob Bi @ Choti Bi and that the settlement deed dated 27.11.1970 is vitiated by fruad and misrepresentation and also the other two earlier settlements dated 27.11.1936 and 20.5.1952 in favour of the second wife is also void and unenforceable.
10.The learned counsel at this juncture would cite the following Judgments:
(i) (EXPRESS NEWSPAPERS VS.
SOMAYAJULU)
(ii) (BHOONA BI V. GUJAR BI)
(iii) AIR 1922 P.C. 281 (MD. ABDUL GHANI VS. MT. FAKHR JAHAN)
(iv) AIR 1921 SINDH 177 (BHAGBHARI VS. KHATUN)
(v) AIR 1956 T.C.238 (MAITHEEN BEEVI V. ITHAPPIRI VARKEY).
10(i) So far as the first Judgment cited above is concerned, it is held as follows:
"In our judgment the gift in the present case was a valid gift. Mamooty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mother's house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mamooty to his mother-in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mamootty and to transfer the property to the donee. If Mamooty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother-in-law in whose charge his wife was during his illness and afterwards Mamooty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete. The appeal therefore succeeds. The Judgment of the High Court and of the Courts below are set aside and the suit of the plaintiff is ordered to be dismissed with costs throughout."
10(ii). In the second Judgment cited above, it is held as follows:
"To constitute a malady, marz-ul-maut, there must be (1) proximate danger of death, so that there is a preponderance of apprehension of death, (2) some degree of subjective apprehension of death in the mind of the sick person and (3) some external indicia, chief among which would be inability to attend to ordinary avocations. (Sarabai v. Rabiabai, 30 Bom 537, 551) although his attending his ordinary avocations does not conclusively prove that he was not suffering from marz-ul-maut"
In Ibrahim Goolam Ariff v. Saiboo (1907) 34 Ind App 167, 177, the Privy Council ruled that a gift must be deemed to be made during marz-ul-maut, if it was made under pressure of the sense of imminence of death."
10(iii) In the third Judgment cited above, it is held as follows:
"The object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donar and the donee intended at the time that the title to the property should pass from the donar to the donee, and that the handing over by the donar and the acceptance by the donee of the property should be good evidence that the property had been given by the donar and had been accepted by the donee as a gift.
For a valid gift inter vivos under the Mohammedan Law applicable in this case, three conditions are necessary, `which, their Lordships consider, have been correctly stated thus:- "(a) Manifestation of the wish to give on the part of the donar; (b) the acceptance of the donee, either impliedly or expressly; and (c) the taking of possession of the subject matter of the gift by the donee, either actually or constructively" ("Mohammedan Law"
by Syed Ameer Ali, 4th EWd.
Vol.1, P.41).
10(iv) In the fourth Judgment cited above, it is held as follows:
"In order to establish Marz-u-maut there must be present at lease three conditions:
(1) Proximate danger of death, so that there is a preponderance of apprehension or Khou that at a given time death must be more probable than life;
(2) there must be some degree of subjective apprehension of death in the mind of the sick person;
and (3) there must be some external indicia chief among which would be the inability to attend to ordinary avocations, 30 Bom. 537;
31 Bom. 264 and 31 Cal. 319 Foll.
Too narrow a view must not be taken of the doctrine of death-illness. The question is, was the disease of such a nature or character as to induce in the person suffering, the belief that death would be caused thereby or to engender an apprehension of death and was the illness such as to incapacitate him from the pursuit of his ordinary avocations or standing up for prayers, a circumstance which might create in the mind of the sufferer an apprehension of death. 3 C.W.N. 57 Foll.
10(v) In the fifth Judgment cited above, it is held as follows:
"Muhammadan Law Gift -
Donor not retaining any dominion over corpus - Condition that usufruct would be in donor's use for his life time and thereafter to his wife for her life time is valid."
11. The learned counsel pointing out that the donor in a gift must have the intention to give and the donee must accept it, would cite yet another Judgment (MUNNI BAI V. ABDUL GANI) wherein it is held that the three conditions which are necessary for a valid gift under the Mohammaden Law are as follows:
(1) Manifestation of the wish to give on the part of the donar;
(2) Acceptance of the donee, either expressly or impliedly; and (3) Taking of possession of the subject-matter of the gift by the donee, either actually or constructively;
12. The other Judgment reported in AIR 1932 PRIVY COUNCIL 13 (NAWAB MIRZA MOHAMMAD SADIQ ALI KHAN VS. NAWAB FAKR JAHAN BEGAM) wherein it is held that in Mohammedan Law, so far as it is concerned with gift in between the husband and wife, if the husband is donar and the wife is donee, declaration of delivery of possession in deed and delivery of deed held sufficient to establish transfer of possession.
13. Regarding the proof, the learned counsel pointing that the person who is attacking the gift should only prove it would cite four more judgments respectively reported in (1) (RAMAN NAMBIAR VS. KRISHNAN NAMBIAR AND OTHERS) (2) AIR 1937 CALCUTTA 500 (JAFAR ALI KHAN VS. NASIMANNESSA BIBI) (3) AIR 1922 CALCUTTA 429 (BIBI JINJIRA KHATUN VS. MOHAMMAD FAKIRULLA MIA) (4) AIR 1958 MADRAS 527 (VS.V.S. MUHAMMAD YUSUF ROWTHER VS. MUHAMMAD YUSUF ROWTHER).
13(i) The first Judgment cited above it is held as follows:
"It is true that according to principles of Mohammedan law a gift of immoveable properties of which the donor is in actual possession is not complete unless the donee is given possession. The mere fact that the donar reserves the right to take the usufruct given in his life time does not mean that possession is quite consistent with delivery of possession of the 13(ii) In the second Judgment cited above, it is held as follows:
"If an illness is prolonged or lingering as in the case of consumption or phthisis, so as to remove the apprehension of immediate fatality or to accustom the patient to the malady, so much so that it becomes a part of his physical system, it will not be marz-ul-maut; and the executant of a deed cannot be held to be under an apprehension of death on the day he executed the same, and the mere fact that he was suffering from phthisis or that he died a few days after, is not enough to warrant the application of doctrine of marz-ul-maut; AIR 1926 Cal 401; AIR 1925 CAL 537 AND AIR 1929 Lah 721"
13(iii). In the third Judgment cited above, it hs held as follows:
"Whether or not a particular illness constitutes marz-ul-maut is primarily a question of fact.
But it may sometimes to be mixed question of law and fact, for instance, where the question arises whether the facts found as to the physical condition of the deceased at the date of execution of the deed constitute the essential elements of marz-ul-maut as formulated by Mohamedan Jurists.
13(iv). In the fourth Judgment cited above, it is held as follows:
"It is no doubt true that delivery of possession of gifted properties is an essential condition of the validity of the gift and its operative nature under the Muslim law and it would be for the donees to establish it.
But where in the deed of gift executed by the deceased, there is a recital that the possession of the property which is the subject-matter of the gift is delivered to the donees, it is an admission binding on the deceased and those claiming under him. Consequently the burden lies on those who claim under the deceased, to prove that no delivery of possession was in fact effected in favour of the donees. Burden in such a case is not on the donees to prove the delivery of possession to them. ILR. 11 All 460 (PC) and AIR 1939 Bom 449, Relied on AIR 1939 Bom 449, Distinguished.
"Where the donor and donee are staying jointly in the house, which is the subject-matter of the gift in order to effectuate the delivery of possession, the donor need not remove himself from the
14. Citing the above judgments, the learned counsel would further recite from the Mohammedan Law by P. R. Verma at Page 627 wherein it is given as follows:
The donor may make an uneven distribution among his children and may even give the whole property to any one. A gift made with the object of excluding other heirs is immoral but is valid.
Regarding the burden of proof, it is given therein as follows:
"A declaration in the deed of gift may bind the heirs but not those who are not claiming as heirs and is not conclusive.
Where there is a deed of gift in which it is admitted that the possession had been delivered to the donee and the deed is subsequently registered the burden of proving that possession was not given is on the person asserting its invalidity. Strict proof would however, not be necessary in the case of gifts between the spouse.
Where the donor and donee jointly residing in the premises, which forms one of the items of properties gifted, there is no necessity for the donor to remove himself from the premises in order that the gift might be valid.
All gratuitous transfers made during the death-illness take effect to the extent of one-third of the property of the deceased. A Mohammedan has unlimited powers to dispose of his property by way of gift.
15. In reply the learned counsel appearing on behalf of respondents 10 to 14 would submit that they are the plaintiff's legal representatives; that the plaintiff passed away on 19.4.1982; that the second defendant in the suit is the appellant herein; that Abdullah Sheriff to whom three properties belonged passed away on 20.6.1971 had only one daughter through his first wife and that was the plaintiff; that the first wife is Chooti Bi @ Raheema Bi; that the second wife is Bannie Bi @ Khatoom Bi; that the second wife had no issue; that the first wife died before 1970; that the second wife also passed away on 7.11.1970; that Abdullah Sheriff passed away on 20.6.1971; that at the time of his demise, only one daughter was alive i.e. the plaintiff; that one single daughter cannot take the entire property under Muslim Law; she can take only half, the other half would go to his other legal heirs like brothers and sisters; that defendants 6,7 and 8 are Abdullah Sheriff's sister's children; that the 9th defendant is the Abdullah Sheriff's brother son, so the other half share will go to them i.e. D6 to D9, since they are the brother's and Sister's children; that defendants 1 to 5 are Abdullah Sheriff's second wife's younger sister's children; that at the time of his passing away, none of his wife was alive except his daughter. If they are alive, they get 1/8th share; that the daughters of Abdullah Sheriff's sister are defendants 15 to 21; that Abdullah Sheriff's second wife was servant under his first wife in her household; that Abdullah Sheriff was an aged man affected by Paralysis when he passed away; that he was almost in a serious condition for 1 1/2 years; that so long as the second wife was alive, she did not allow her younger sister's children to interfere with, but she treated the first wife's daughter as her own daughter; that only on 7.11.1970, the second wife passed away, then the second wife's younger sister's children, defendants 1 to 5 entered into the property; that on 17.11.1970 and 20.11.1970 publications were effected in "Dinathanthi" by the plaintiff stating that she was the only daughter etc.; that they gave counter publication; that on
27.,11.1990, D1 to D5 took Abdullah Sheriff to the Registrar's office and got the settlement deed registered in their name; that Abdullah Sheriff died on 20.6.1971 that coming to know of the settlement deed on the death of her father, the plaintiff filed the suit for partition of her half share of future mesne profits and for declaration that the settlement in favour of the second wife's younger sister's children are not valid.
16. Continuing the arguement, the learned counsel would further submit that from out of three items, two have already been settled in favour of the second wife, but she pre-deceased her husband; that the family doctor who treated Abdullah Sheriff was examined; that Ex.A.9 is the Nikha certificate of the plaintiff in which the plaintiff was described as Abdullah sheriff's daughter. This is a public document within the meaning of Section 74 of the Evidence Act; that Khazi is the Official appointed under Khazis Act 1880 , that it is the Government which appoints the Khazis; that the Chief Khazi appoints Naib Khazi; that under Section 3 of the Act, Khazi is a Public Officer. In the first settlement, Katoon Bi is a benami; that the tenant was examined to show that he was collecting the rents; that the settlement deed 27.11.1990 is fraudlently obtained after the death of second wife and seven months after the death of Abdullah Sheriff; that had he intended to settle the same in favour of D1 to D5 and these defendants cannot also claim to be the heirs of Abdullah Sheriff, but for the settlement, they would not become entitled to any share; that admittedly Abdullah Sheriff was bed-ridden and paralysed and unable to move and unable to do anything; that taking advantage of his illness, defendants 1 to 5 have achieved their illegal designs of getting the settlement deed executed in their favour; that the three fundamental essential of gift deed which are (1) Act of offer by the settlee or beneficiaries (ii) acceptance there of and (iii) delivery of possession. The true attonment of the tenancy have not been complied eith in this case. At this juncture, the learned counsel would refer Section 149-II of Mulla Mohammedan Law at Page 141 and would remark that the plaintiff caused publication knowing the defendants fascination (Exs./ A6 and A7); that the defendants 1 to 5 hurriedly brought about Ex.B1; that the fundamental principles of Mohammedan Law that deliberate suppression of fact that the deceased scribbled his name in the document; that Exs. B2 and B3 are the settlement deeds in favour of the second wife which are sham and nominal documents not acted upon; that Kartoon Bi, the second wife herself did not assent with the document; that her brother one Ismail does not claim any right, but her sister's children defendants 1 to 5 can claim; that there was no residence even to show that they are the children of her sister.
17.At this juncture, learned counsel would submit the following Judgments:
(1) AIR 1948 Oudh 301 (2) AIR 1919 CALCUTTA 644 (3) AIR 1948 NAGPUR 367 AND (4) AIR 1933 ALLAHABAD 341.
17(i). So far as the first case cited above is concerned, it is held therein as follows:
"The doctrine of marzulmaut applies to cases where the gift is made under pressure of a sense of imminence of death. The essential condition, thus, for its application is that there must be a subjective feeling in the mind of the patient that he is not going to recover; in other words, there must be a proximate danger of death resulting subjectively in the preponderance of apprehension. The facts have to be proved like any other fact and may be evidenced by some external indicia in the patient's condition or his expressions and declarations."
17(ii). In the second Judgment cited above, the Division Bench of Calcutta High Court has held that "in the case of gift or other voluntary dispossession of property under Mohammedan Law, the doctrine of Marzul Maut only applies when the gift is made during death-bed-illness.
17(iii). In the third Judgment cited above, it is held that "finding that transferee did not act in good faith is a finding of fact and must be accepted in second appeal.
17(iv) In the last Judgment cited above, the Allahabad High Court has held that for applicability of Marzul maut it is necessary (1) that the illness must be the immediate cause of death (2) that there must be an apprehension of death in the mind of the donar and (3) that the physical weakness must be so great that the person may be incapable of pursuing his ordinary avocation.
With the above arguments, the learned counsel would pray to dismiss the appeal with costs.
18.In consideration the facts pleaded by parties, having regard to the materials placed on record and upon hearing the learned counsel for both sides, what comes to be known is that it is an appeal preferred by the second defendant in the suit against the Judgment and decree of the trial court dated 1.3.1979 wherein in the suit filed by the deceased, the first respondent herein viz. Mehaboob Bi @ Bibi Jan, praying for partition and separate possession of her half share in Items 1 to 3 of plaint schedule properties and for rendering rendition of accounts by defendants 1 to 5 therein further declaring the settlement deed dated 27.11.1970 to be not valid documents and is not binding on the plaintiff, the lower court having framed eight issues, six main issues and two additional issues based on the facts and circumstances pleaded by parties for determination of all those issuesd and having allowed the parties to record their evidence, the plaintiffs would examine five witnesses as PWs.1 to 5 including herself as P.W.1 and on the part of the defendants also four witnesses would be examined as D. Ws 1 to 4 and for documentary evidence, the plaintiff would marked 10 documents as Exs. A1 to A10 and the defendants would mark 18 documents as Exs. B1 to B18 as already elaborated in Paragraphs 6 and 7 supra and the trial court in consideration of all these materials placed on record would ultimately arrive at the conclusi8on to decree the suit as prayed for, testifying the validity of which the second defendant therein has come forward to prefer the above appeal on certain grounds as brought forth in the grounds of appeal.
19. During arguments, the learned counsel for the appellants would argue that the plaintiff's case is that she is the daughter of Abdullah Sheriff through his first wife Choti Bi @ Rahima Bi; that she is entitled to a half share in the whole property, the other half being inherited by defendants 6 to 8; that the defendants 1 to 5 are not the heirs of the deceased; they being the children of Abdulla Sheriff's sister Mahboob Bi @ Choti Bi; that the settlement deed dated 27.11.1970 is vitiated by fraud and misrepresentation and that the earlier settlements in favour of the second wife respectively dated 27.1.1936 and 20.5.1952 are also void and unenforceable.
20. The learned counsel would further argue that the lower court in accepting the case of the plaintiff has decreed the suit as prayed for, but on the contrary forgetting the fact that the late Abdulla Sheriff had declared that the plaintiff was not his daughter and as such she was entitled to any share in the plaint schedule properties and therefore he settled all the plaint schedule properties in the name of his wife Khatoon Bi; that after her death, Abdulla Sheriff came to be entitled to half share in her properties as heir of the deceased and he settled this half share in the name of defendants 1 to 5, the defendants 6 to 8 do not inherit any of these properties; that the settlement deed 27.11.1970 is perfectly valid in law and it was acted upon; that the Abdulla Sheriff was not in marzul-maut when he executed the said settlement deed nor had he been under the control of influence of defendants 1 to 5; that he was in good health and in a disposing state of mind and died seven months after the execution of the settlement deed.
21. The learned counsel in order to prove that late Abdulla Sheriff was not in Marzul-maut at the time he executed the settlement deed would cite number of decisions, likewise on the part of respondents also four decisions would be cited to the said effect from old judgments as seen in Paragraph 16 supra. The big question would be raised on the part of the learned counsel for the respondents was that had it been true that Abdulla Sheriff had voluntarily and in a genuine manner executed the settlement deed in favour of defendants 1 to 5, he could have better done it when he was enjhoying the good health and that defendants 1 to 5 have absolutely no reason to become the beneficiaries and yielded undue influence in the absence of the plaintiff and by manipulation of the situation and taking advantage of the Marzul-maut and indisposing state of mind, got the document executed in their favour and the same is not accepted by the lower court.
22. So far as the lower court is concerned dealing with issues 1 to 4 altogether since being inter-connected and having a clear discussion on the evidence of P. Ws and D. Ws and the exhibits marked as 'A' and 'B' series and appreciating the evidence adduced on the part of P.W.1 in accordance with the pleadings of the plaint and supported by documents in Ex.A9 and A10 and has spoken about PWs.2 to 5 ascertaining that the plaintiff is the daughter of Abdul Sheriff and his acquitance with Abdullah Sheriff and his household and that the sickness of Abdulla Sheriff and the serious illness of Abdullah Sheriff during his last 1 1/2 years and the treatment imparted by him and further taking into account of the evidence of D. W.1 who is the third defendant who would only show that he would not be know that Abdulla Sheriff was first married to Chooti Bi @ Raheema Bi and that if P.W.1 was born through Choti Bi @ Raheema Bi and that he does not deny that P.W.1 was born to Abdulla Sheriff and Choti Bi and further in consideration of P.W.4, the lower court would arrive at a conclusion that it is not at all probable for Abdulla Sheriff to have given a letter to the effect that P.W.1 is not his daughter and further holding that Abdulla Sheriff had made two settlements in favour of his second wife, the first one dated 27.1.1936 under Ex.B.1 and the second one dated 20.5.1952 under Ex.B.3 in respect of items No.1 to 3, but the settlement deeds are sham and nominal and not been acted upon nor had they been given effected by himself, but continue to assert full and absolute right over the plaint schedule property and collected rents till his death and since these documents are not asserted by Katoon Bi herself and since there is no imputation in favour of Khatoon Bi in the records of the Corporation and further since there cannot be any quarrel with the proposal that delivery of possession of the gift property is an essential condition of the validity of the gift and it is in operative nature under the Mohammedan Law, the court below would not attach any improvements to these documents nor would it accept the case of defendants 1 to 5; that Abdullah Sheriff had settled the properties in favour of these defendants and would ultimately arrive at a conclusion to hold that the settlement deed dated 27.11.1970 is vitiated by fraud and misrepresentation thus answering issue No.2 and further answering Issue No.3 that the settlement deeds dated 27.1.1936 and 20.5.1952 are sham and nominal and would offer its findings and issue No.4 that the defendants are not entitled to any share in the suit properties thus deciding these issues accordingly.
23. Likewise, the court below would further go into the merits of the case pertaining into Issue No.5 regarding the rental collections by defendants 1 to 5 from the date of death of the father of the plaintiff that was on 26.11.1971 and since it had already been found by the lower court that defendants 1 to 5 are not entitled to any share in the suit property, they are liable to render accounts of the rental collections to the plaintiff at the rate of Rs.300 per month, thus answering issue No.5 accordingly. For the additional issue No.1, the lower court would find that D9 does not claim any share in the suit properties and hence D9 does not exclude D6 to D8 from the list of residuary heirs, thus answering the additional Issue No.1 in the said manner. For Additional Issue No.2, the lower court would answer that the suit is not bad for non-joinder of heirs of Khatoon bi.
24. On an overall consideration of the facts and circumstances, in the light of evidence made available before the lower court below would ultimately arrive at the conclusion to answer Issue No.6 thus passing a preliminary decree declaring that the settlement deed dated 27.11.1970 is not valid in law and is not binding upon the plaintiff; that for partition and separate possession of the plaintiff's half share in items 1 to 3 described in the plaint schedule properties by metes and bounds and for rendition of accounts by defendants 1 to 5 who collected rents from these items in the suit schedule properties, ordering the same accordingly and further remarking that the question of accounting will be gone into in the final decree proceedings and directing defendants 1 to 5 to pay the costs of the suit to the plaintiff and the court fee, would pass the decree in favour of the plaintiff.
25. It is not only the decision arrived at by the lower court as aforeseen, but also the manner in which the said decision has been arrived at on trial recording the evidence following the procedures established by law, the lower court cannot be said to be either on the error or to be unfair. This court is not able to see any patent error of law or perversity in approach or any legal infirmity or inconsistency in the whole of the judgment rendered by the court below and therefore the interference of this court that is sought to be made into the well considered and merited judgment and decree passed by the lower court, is neither necessary nor warranted in the circumstances of the case.
26. In result, the above appeal suit fails and the same is dismissed. The Judgment and decree dated 1.3.1979 rendered in O.S.No.1689 of 1973 by the First Assistant Judge, City Civil Court, Madras is hereby confirmed. However, there will be no order as to costs.