Madras High Court
K.Mohamed Ayub Ali vs M.Loganathan on 5 July, 2021
S.A.No.936 of 1999
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 15.03.2021
PRONOUNCED ON : 05.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.936 of 1999
1.K.Mohamed Ayub Ali
2.Shesira Bibi
3.Thakria Bibi
4.K.M.Kamaruzaman (died) ... Appellants/Plaintiffs
Vs.
1.M.Loganathan
2.S.Bhuvaneswari
3.Kairunissa Bibi(died)
4.Faride Bibi ... Respondents/Defendants 1 to 4
Prayer: Second Appeal has been filed under Section 100 of the Civil
Procedure Code against the judgment and decree of the learned Second
Additional District Judge, Erode, in A.S.No.228 of 1997, dated 19.08.1998
preferred against the judgment and decree of the learned Principal Subordinate
Judge, Erode, in O.S.No.752/1992, dated 15.11.1996.
For Appellants : Mr.A.K.Kumarasamy
Senior Counsel
for Mr.Kaithamalai Kumaran
For Respondents : Mr.A.Sundaravadhanam
https://www.mhc.tn.gov.in/judis/
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S.A.No.936 of 1999
JUDGMENT
(The case has been heard through Video Conference) The defeated plaintiffs are the appellants herein.
2.During the pendency of the Second Appeal, fourth appellant died and the plaintiffs 1 to 3 were recognized as the legal representatives, they were already on record. The third respondent also died, since he already sold the property to the respondents 1 and 2, they are recognized as successor in interest.
3.For the sake of convenience, the parties will be referred to as per the ranking before the Trial Court.
4.The plaintiffs have filed a suit in O.S.No.752 of 1992 before the learned Principal Subordinate Judge, Erode, for declaration of their title and for mandatory injunction restraining the defendants from putting up any construction; The third defendant has filed another suit in O.S.No.39 of 1994, before the learned Principal Subordinate Judge, Erode, to declare her right to the property. Therefore, a joint trial was conducted in both the suits, evidence https://www.mhc.tn.gov.in/judis/ 2/15 S.A.No.936 of 1999 was recorded. The suit filed by the plaintiffs in O.S.No.752 of 1992 was decreed and as against the same, the defendants 1 & 2 have filed an appeal suit in A.S.No.228 of 1997 before the learned II Additional District Court, Erode and the same was partly allowed and consequently, the above said suit was dismissed. While the suit filed by the third defendant was dismissed and as against the same, the third defendant has preferred an appeal suit in A.S.No.158 of 1997 and the same was dismissed. Aggrieved against the order passed in A.S.No.228 of 1997, the plaintiffs have preferred this Second Appeal.
5.The above Second appeal was admitted on the following substantial questions of law:
“Whether the interpretation of the Lower Appellate Court with respect to the recitals in Ex.A1 settlement deed that the life interest granted to the settlee would flower into absolute interest even in respect of a settlement deed executed in favour of a Muslim lady is correct or not?”
6.Admitted factual matrix of the case are as under:
(a).The suit property is originally belonged to one Sheik Dawood Sahib, who died intestate without issues. One Sarkari Moideen Shahib, who is the brother of the said Sheik Dawood Sahib, had two sons and two daughters viz., https://www.mhc.tn.gov.in/judis/ 3/15 S.A.No.936 of 1999 Mohamad Basha Sahib, Mohamad Habibullah Sahib, Kairunissa Bibi and Ayesha Bibi. Ayesha Bibi died in the year 1997, leaving behind, the plaintiffs are the legal representatives of the said Ayesha Bibi, viz., the first plaintiff is the son, plaintiffs 2 & 3 are the daughters and the fourth plaintiff is the husband.
(b).The said Sheik Dawood Sahib, by a gift deed dated 26.11.1963, had settled the property to the sons and daughters of his brother, wherein, “A” schedule property was given to the said Ayesha Bibi by way of gift under Ex.A1/gift deed and third defendant Kairunissa Bibi was given only a life estate and on her death, the property will devolve upon the said Ayesha Bibi and there is further recital in the said gift deed/Ex.A1 that in the event of the said Ayesha Bibi, predeceasing the third defendant (viz., Kairunissa Bibi), property has to devolve upon the legal representatives of the said Ayesha Bibi namely, the plaintiffs/appellants herein.
(c).Based upon the above recital in Ex.A1/settlement deed, the plaintiffs have filed a suit for declaration of their title and for permanent injunction restraining the defendants from putting up superstructure on the footing that since, the said Ayesa Bibi died in the year 1997, the life estate holder namely https://www.mhc.tn.gov.in/judis/ 4/15 S.A.No.936 of 1999 Kairunissa Bibi, who had sold the property to the defendants 1 and 2 herein and hence, the said sale deeds under Exs.A2 and A3, executed by the said Kairunissa Bibi are not valid in law and hence, prayed for relief as stated supra.
7.The sum and substance of the written statement filed before the Trial Court is that since Ayesha Bibi pre-deceased Kairunissa Bibi, life estate given to Kairunnissa Bibi has flowered into absolute right and hence, she can deal with the property, as such as, had executed Exs.A2 & A3/ sale deed in favour of the defendants 1 and 2, claimed that, the said sale deeds were valid in law.
8.The entire issues surrounds on recital in the settlement deed executed on 26.11.1963 in favour of Kairunissa Bibi, who is arrayed as the third defendant in the suit. She was given life estate in the “A” schedule property without power to make any encumbrance. Further, it is mentioned in the settlement deed that after the life of Kairunissa Bibi, the property should go to her sister Ayesha Bibi and it is also mentioned that if Ayesha Bibi unfortunately dies prior to Kairunisa Bibi, the property will go to her legal representatives. While things be so, the third defendant viz., Kairunissa Bibi sold the property to the first and second defendants and on the above factual background the legal representatives of the Ayesha Bibi have filed the suit for https://www.mhc.tn.gov.in/judis/ 5/15 S.A.No.936 of 1999 relief as stated supra.
9.The interpretation of the recitals in the settlement deed alone is centre for determining the issues raised in the suit.
10.The Trial Court has decreed suit filed by the plaintiffs and the Appellant Court has allowed the appeal and dismissed the suit. Hence, the second appeal and it was admitted on the above substantial question of law.
11.The construction of Ex.A1/settlement deed will solve the crux of the issue involved in this Second Appeal, the relevant portions are extracted hereunder:
///eP';fs; mDgtpj;Jf; bfhs;s ntz;oaJ/// ///mjhtJ ,jdoapy; 'V ' bc&l;a{ypy; fhz;fpd;w epntrdk; tifawhf;fis c';fspy; 4 yf;fkpl;ltuhfpa ifUd;dprh gPgp jd; $Pt jpir tiuapy; vt;tpjkhd tpy;y';f tptcwhu';fSf;Fk; cl;gLj;j mjpfhukpy;yhky; mtw;wpd; tUkhdj;ij kl;Lk; rh;t Rje;jpukhf mile;j mtw;wpd; Kdprpgy; thp Kjypaitfs; bfhLj;J tu ntz;oaJ/// ///ic& 4 yf;fkpl;lthpd; $Pt jpirf;F gpwF 'V' bc&l;a{y;
brhj;ij c';fspy; 3 yf;fkpl;l Maprh gPgp rh;t https://www.mhc.tn.gov.in/judis/ 6/15 S.A.No.936 of 1999 Rje;jpukhft[k; jhdhjp tpf;fpua tpdpnahf';fSf;F nahf;fpakhft[k; mile;J mDgtpj;Jf; bfhs;s Rfj;Jld; ,Ue;J tuj;jf;fJ/// ///xUf;fhy;. bja;thjPdkhf Maprh gPgp 4 yf;fkpl;lthpd; $Pt jpirf;F Kd; fhykhfp tpl;lhy; 4 yf;fkpl;lthpd; $Pt jpirf;F gpd; 'V' bc&l;a{y; brhj;Jf;fis c';fspy; 3 yf;fkpl;l Maprh gPgpapd; thhpRfs; rh;t Rje;jpukhft[k; jhdhjp tpf;fpua tpdpnahf';fSf;F nahf;fpakhft[k; milaj;jf;fJ/ (emphasis supplied)
12.In Mahomedan law, there is a distinction between corpus of the gift (Ayn) and the Usufruct (Manafi). Further the owner may lawfully gift the corpus of the property to one person and part of its income to another person.
This may take the form of Hiba (Gift) 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 later for his or her life.
“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 the gifted property is contemplated, and whether such enjoyment is by the donor or by his nominee, it would not tantamount to the taking away of a portion of the corpus https://www.mhc.tn.gov.in/judis/ 7/15 S.A.No.936 of 1999 of the property, but it is only a temporary right to enjoy the usufruct there from....”
13.The learned counsel for the respondents would contend that since vested remainder - right holder viz., Ayesha Bibi died even during the life time of the said Kairunissa Bibi (life estate holder), the entire gift deed is invalid because of the contingent clause in the gift deed.
14.Per contra, Mr.A.K.Kumarasamy, learned Senior Advocate representing for Mr.Kaithamalai Kuman, learned for the plaintiffs/appellants herein would contend that on a construction of Ex.A1/gift deed, which is in clear terms as made out, the said Kairunissa Bibi has only life interest with vested remainder Ayesha Bibi. Furthermore, there is an additional clause that in the event of Ayesha Bibi pre-deceased Kairunissa Bibi, the property shall devolve upon the legal representatives of Ayesha Bibi viz., the plaintiffs herein.
15.The recitals in Ex.A1/gift deed, which are extracted above, are to the effect that the life estate was given to the Kairunissa Bibi/third defendant and vested remainder was given to the Ayesha Bibi, who is the mother of the plaintiffs 1 to 3. It is also provided therein that in the event of the vested https://www.mhc.tn.gov.in/judis/ 8/15 S.A.No.936 of 1999 remainder namely Ayesha Bibi predeceasing life estate owner, after the death of Kairunissa Bibi viz., the life estate beneficiary, the property shall fall upon the legal representatives of the Ayesha Bibi viz., plaintiffs 1 to 3.
16.As per recital in Ex.A1/settlement deed, the delivery of possession was given to Ayesha Bibi viz., vested remainder and it is satisfied prima facie, the delivery of possession in accordance with Mahomedan Law.
17.The core issue that has to be gone into for answering substantial question of law is that whether can there be a vested remainder right be given to a muslim women, after reserving the right during the life time of another muslim women and thereafter, the questions remains as to whether the muslim women on her death losses her vested remainder right, on the property.
18(a).In the decision reported in 1997 TNLJ 99 – [Mrs.Hazara Bai Vs. Mohamed Adam Sait and others), this Court has held as follows:
“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. It cannot be construed as an absolute gift of the corpus with an invalid https://www.mhc.tn.gov.in/judis/ 9/15 S.A.No.936 of 1999 condition attached to it.” 18(b).In the decision reported in 1979 AIR (Madras) 193 – [Jameela Beevi and others Vs. Sheik Ismail, this Court has held as follows:
“Reservation of a right to enjoy the income, though ordinarily called a life estate does not militate against the validity of the gift because the corpus of it is absolutely given over to a named individual and the condition whereby the income should be enjoyed either by the donor or his nominee does not detract from or violate the essence of a valid gift.” 18(c).In the decision reported in 1983 TNLJ 169 – [Fathima Gani Ammal Vs. Ameena Bivi Ammal and another], this Court has held that reservation of donor as well as his wife's right to reside till their life time – gift is held to be valid.
18(d).In the decision reported in 2014 (9) SCC 350- [ V.Sreeramachandra Avadhani (dead) by legal representatives Vs. Shaik Abdul Rahim and another], the Hon'ble Supreme Court has held as follows:
“in a gift which contemplates the transfer of the corpus, there is no question of such transfer being https://www.mhc.tn.gov.in/judis/ 10/15 S.A.No.936 of 1999 conditional. The transfer is absolute” 18(e).In the decision reported in 81 CWN 1967 - [Marzina Bibi Vs. Anjaman Bibi], wherein the Court has held as follows:
“A grant, however, creating a limited interest which can be construed without any inconsistency as one limited merely to the use of the property and enjoyment of the usufruct thereof, is valid under the Mahomedan law.” 18(f). In the decision reported in AIR 1991 SC 414 – [Jameela Begum Vs. Controller of Estate Duty Madras], the Hon'ble Supreme Court has laid down that “Mahomedan law makes a distinction between the corpus of a gift (Ayn) and the usufruct (Manafi). A reservation of rights in 'Manafi' so long as the 'Ayn' is transferred does not render the gift bad.” 18(g).Further, Section 164 of the Mahomedan Law, 21st Edition, reads as follows:
“Gift with a condition When a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it.” https://www.mhc.tn.gov.in/judis/ 11/15 S.A.No.936 of 1999
19.On consideration of the recitals in the documents along with law pronounced by the various decisions referred above on a proper construction of the gift deed Ex.A1, this Court has no hesitation in coming to the conclusion that none of the recitals in the said documents will not in any way invalidate the gift deed.
20(a).In view of the specific recitals in the said documents, I find that the possession of the corpus was duly handed over to the beneficiary namely Ayesha Bibi, on the date of the gift deed itself and usufruct namely, the enjoyment of the property for life time was given to the third defendant/Kairunissa Bibi and hence, on no stretch of imagination, on the death of the Ayesha Bibi, it can not be construed that the right of life estate given to the third defendant/Kairunissa Bibi will flowered into absolute right.
20(b).In such view of the matter, this Court finds that the Lower Appellate Court has committed a mistake in assuming that since the vested remainder viz., Muslim women died prior to the life estate holder person, the life estate has flowered into absolute right which is erroneous in law.
20(c).In view of the specific recitals contained therein, there can be no https://www.mhc.tn.gov.in/judis/ 12/15 S.A.No.936 of 1999 quarrel upon the validity of the gift deed under Ex.A1. So also, on mere death of the Muslim Women, on whom the vested remainder was given, her legalheirs cannot loses right over the property and hence, I find that there cannot be in enlargement of the life estate right into the absolute right on the death of the Muslim Women with whom absolute right of vested remainder was given under the gift deed and hence, the substantial question of law is answered in favour of the appellant and the reasoning given by the Lower Appellate Court is not sustainable in law.
20(d).Accordingly, the said finding rendered by the Lower Appellate Court is hereby stands vacated and the life estate right given to the third defendant/Kairunissa Bibi will not be flowered into the absolute right. On the death of the Ayesha Bibi, the legal representative of the vested remainder as per the recital in the documents are entitled to the property and therefore, the contra finding recorded by the Lower Appellate Court is hereby vacated
21.In view of the above, this Second Appeal stands allowed the and judgment and decree passed by the learned Second Additional District Judge, Erode, in A.S.No.228 of 1997, dated 19.08.1998 is set aside and the judgment and decree passed by the learned Principal Subordinate Judge, Erode, in https://www.mhc.tn.gov.in/judis/ 13/15 S.A.No.936 of 1999 O.S.No.752/1992, dated 15.11.1996 is hereby restored. No costs.
05.07.2021 Index:yes/no Speaking order/non speaking order dua RMT.TEEKAA RAMAN, J.
dua To:
1.The Second Additional District Judge, Erode.
2.The Principal Subordinate Judge, Erode.
Pre-delivery judgment made in S.A.No.936 of 1999 https://www.mhc.tn.gov.in/judis/ 14/15 S.A.No.936 of 1999 05.07.2021 https://www.mhc.tn.gov.in/judis/ 15/15