Kerala High Court
Shahida vs *1. Abdul Hameed on 27 March, 2012
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 27TH DAY OF MARCH 2012/7TH CHAITHRA 1934
SA.No. 724 of 1998 (C)
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[AS.NO.52/1992 OF THE SUB COURT,ATTINGAL DTD. 30/06/1998,
OS.NO.184/1989 OF THE MUNSIFF'S COURT,VARKALA DTD. 13/03/1992]
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APPELLANTS/APPELLANTS 2 TO 5/ADDL. DEFENDANTS 3 TO 6:
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1. SHAHIDA, D/O. ABUSA UMMAL,
AGED 40, SHAHIDA MANZIL,
VENKULAM, EDAVA.
2. SHYJU,
DO. DO.
3. RAFEEKULLA,
DO. DO.
4. MAHABULLA,
DO. DO.
BY ADVS.SRI.G.S.REGHUNATH,
SRI.MOHAN JACOB GEORGE,
RESPONDENTS/RESPONDENTS/PLAINTIFF & ADDL.2ND DEFENDANT:
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*1. ABDUL HAMEED,
PULIKULATHU VEEDU,
VENKULAM, EDAVA VILLAGE. *(DIED).
2. ABDUL RAHMAN, S/O. SHAHUL HAMEED,
AKOOTOMVILA VEEDU, VENKULAM,
EDAVA.
*ADDL RESPONDENTS 3 TO 5 ARE IMPLEADED:
3. RUKKIA BEEVI, W/O. LATE ABDUL HAMEED,
AGED 85 YEARS, RESIDING AT KUZHIKKALATHU VILA PUTHENVEEDU,
MANTHARA, EDAVA.P.O.
S.A. NO.724/1998-C:
4. JAHANGIR, S/O. LATE ABDUL HAMEED,
AGED 50 YEARS, RESIDING AT
KUZHIKKALATHU VILA PUTHEN VEEDU,
MANTHARA, EDAVA.P.O.
5. NAZEER, S/O. LATE ABDUL HAMEED,
AGED 50 YEARS, RESIDING AT KUZHIKKALATHU VILA PUTHEN VEEDU,
MANTHARA, EDAVA.P.O.
*ADDL. R.3. TO 5 ARE IMPLEADED AS THE LRS OF DECEASED R1. AS PER
ORDER DTD. 21/01/11 IN I.A. 1767/2009.
ADDL. R3 TO R5 BY ADVS. SRI.P.R.VENKETESH,
SRI.P.R.RAJA.
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 13-03-2012, THE COURT ON 27/03/2012 DELIVERED
THE FOLLOWING:
Prv.
P. BHAVADASAN, J.
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S.A. No. 724 of 1998
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Dated this the 27th day of March, 2012.
JUDGMENT
Defendants, who suffered a preliminary decree for partition in O.S. 184 of 1989 before the Munsiff's Court, Varkala are the appellants. Parties and facts are hereinafter referred to as they are available before the trial court.
2. The suit properties belonged to Smt. Athukka Ummal. She had two children, namely, the plaintiff and the defendant. The third defendant is the foster daughter of the first defendant. According to the plaintiff, on the death of Smt.Athukka Ummal, 2/3rd share of the property which belonged to Smt.Athukka Ummal was inherited by him and the 1/3rd share by the first defendant. Though the plaintiff sought for partition of the property, the first defendant was not inclined to such a course and therefore the suit was laid. S.A.724/1998. 2
3. According to the defendants, by virtue of two gift deeds, namely, Exts.B1 and B2, Smt. Athukka Ummal gifted the entire properties which belonged to her to her daughter and the third additional defendant, foster daughter of the first defendant. Accordingly, it was contended that Smt.Athukka Ummal had no rights over the property at the time of her death. Subsequently the donees under Ext.B1 executed settlement deeds in favour of others. Therefore, it was contended that the suit is only to be dismissed.
4. In view of the contentions raised by the defendants, additional defendants were impleaded in the suit as additional defendants 2 to 6.
5. The plaintiff filed a replication contending that Smt.Athukka Ummal had never executed any gift deed and if any such gift deed is put forward by the defendants, that is a fraudulent document and has not been executed by Smt.Athukka Ummal. According to him he had no S.A.724/1998. 3 knowledge of the said deed and he was abroad at the relevant time.
6. On the basis of the pleadings, issues were raised. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The contesting defendants had D.W.1 examined and Exts.B1 to B5(b) marked. On a consideration of the materials before it, the trial court came to the conclusion that in view of the fact that the plaintiff had disputed the execution of Ext.B1 document, Ext.B1 gift had to be proved in accordance with Section 68 of the Indian Evidence Act. Since none of the attesting witnesses have been examined, it is held that the gift was not proved and accordingly a preliminary decree for partition was passed.
7. The aggrieved defendants carried the matter in appeal as A.S.52 of 1992. By way of abundant caution, before the lower appellate court, they also prayed that if in case it was found that further proof was necessary in the matter, the matter may be remanded to the trial court to S.A.724/1998. 4 enable the defendants to adduce evidence regarding the execution of Ext.B1 gift deed. The lower appellate court also found that Ext.B1 gift is not duly approved and there was want of compliance with Section 68 of the Indian Evidence Act. Accordingly, the appeal was dismissed confirming the preliminary decree passed by the trial court.
8. Notice has been issued on substantial questions of law A and G formulated in the memorandum of appeal.
9. Learned counsel appearing for the appellants pointed out that both the courts below have grievously erred in law in holding that since Ext.B1 gift has not been proved in accordance with Section 68 of the Indian Evidence Act, the suit had to be decreed. Both the courts below have omitted to note that the gift involved is a Mohammedan gift, and accordingly the provisions of the Transfer of Property Act relating to execution of gift deed are not applicable to the gift deed on hand. Learned counsel referred to the various provisions of the S.A.724/1998. 5 Registration Act, namely, Sections 60, 34, 35, 58 and 59 and pointed out that the endorsement made by the Sub Registrar while registering the document constitute sufficient proof of execution and the burden is on the plaintiff to show that the gift is not duly executed. In support of his contention, learned counsel relied on the decision reported in Ishwar Dass Jain v. Sohan Lal ((2000) 1 SCC 434) and Pathu v. Katheesa Umma (1990 (2) K.L.T. SN 35 Case No.49). Referring to the evidence of P.W.1, the plaintiff, it was contended on behalf of the appellants that he has stated that he has not perused Ext.B1 document at all and has not bothered to find out whether it was duly registered or not. His indifferent attitude, according to the learned counsel, is insufficient to doubt the genuineness of Ext.B1 document. Various provisions of the Mohammedan Law relating to the gift were also referred to and it was contended that all that is necessary is to comply with the requirements of Mohammedan Law and the insistence of the courts below that the gift deed should be S.A.724/1998. 6 proved in accordance with Section 68 of the Indian Evidence Act is not legal and sustainable.
10. Learned counsel went on to contend that at any rate if the lower appellate court was of the opinion that further proof regarding execution of Ext.B1 was necessary, it ought to have granted an opportunity to the appellant to adduce further evidence since they had filed a petition for the same before the lower appellate court. Learned counsel went on to contend that except for resorting to such a petition, there is absolutely no reason given by the lower appellate court as to why such a petition should not be allowed and the appellant be given an opportunity to adduce further evidence in support of their case.
11. Learned counsel appearing for the respondents on the other hand pointed out that by way of replication the plaintiff had specifically disputed the execution of Ext.B1 gift deed and under such circumstances the burden was on the defendants to show that Ext.B1 was duly executed and had taken effect. Learned counsel also S.A.724/1998. 7 relied on various provisions of the Mohammedan Law relating to gift and pointed out that in the case on hand the three necessary ingredients to constitute a valid gift are not established and therefore the courts below were justified in holding that execution of the gift is not proved. Learned counsel went on to contend that even assuming that Section 68 of the Indian Evidence Act as such may not be attracted, still it does not relieve the defendants from proving due execution and acceptance of the gift which are essential to constitute a valid gift under the Mohammedan Law. According to the learned counsel, when other evidence are available, the factum of registration by itself cannot be taken as a ground to support the contention that the gift is duly executed. In support of his contention, learned counsel relied on the decision reported in Sumathi Amma v. Kunjulekshmi Amma (1964 K.L.T.945). Learned counsel also contended that in the case on pardanashin lady, the execution of a deed needs to be strictly proved unlike in other cases and in the case on hand there is want of proof in S.A.724/1998. 8 that regard. In support of his contention, learned counsel relied on the decision reported in Kharbuja Kuar v. Jangbahadur Rai (AIR 1963 SC 1203). For the purpose of establishing the essential ingredients necessary to constitute a gift, learned counsel relied on the decision reported in Mahboob Sahab v. Syed Ismail (AIR 1995 SC 1205). According to learned counsel, going by Section 101 and 111 of Indian Evidence Act, the burden is on the defendants to show the due execution of Ext.B1 gift and for the said purpose, learned counsel relied on the decision reported in Krishna Mohan Kul v. Pratima Maity ((2004) 9 SCC 468). According to learned counsel, both the courts below were justified in coming to the conclusion that due execution of Ext.B1 gift is not proved and there was no ground made out to interfere with the preliminary decree passed by the trial court as confirmed by the lower appellate court.
12. After having heard counsel on both sides and after having gone through the records and going by the S.A.724/1998. 9 decisions relied on by both sides, it is felt that it is difficult to sustain the preliminary decree passed by the trial court as confirmed by the lower appellate court. A perusal of the judgment of the lower courts indicate that the courts below were of the opinion that Section 68 applies to the facts of the case and since the gift is not proved in accordance with Section 68, the plaintiff has to succeed. Before going further into the matter, it will be useful to refer to the provisions relating to gift in the Transfer of Property Act. Section 122 of the Transfer of Property Act defines 'gift'. Section 123 deals with how a gift is to be effected. It stipulates that the transfer by way of gift must be effected by way of a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. However, one cannot omit to note Section 129, which reads as follows:
"129. Saving of donations mortis causa and Muhammedan Law.- Nothing in this Chapter relates to gifts of moveable property made in S.A.724/1998. 10 contemplation of death, or shall be deemed to affect any rule of Muhammadan law."
A reading of Section 129 leaves one in no doubt that the provisions relating to gift contained in the Transfer of Property Act are not applicable to Mohammedan Law which separately deals with gifts. It is well settled that under Mohammedan Law an oral gift is also possible. Therefore, it is not necessary that in the case of a Mohammedan gift, even if there is a document, it needs to be attested by two attesting witnesses as Section123 is not applicable in such cases.
13. Section 68 of the Evidence Act, on which considerable reliance was placed on by both the courts below read as follows:
"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness S.A.724/1998. 11 alive and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908(16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
Section 67 may also be of some relevance. Section 68 deals with a case where the document is required in law to be attested. If the execution of such a document is disputed, then the proof of execution of that document has to be proved by examining atleast one of the attesting witnesses. Section 67 on the other hand deals with proof of other documents.
14. As already noticed, the gift in the case on hand is not covered by Section 123 of the Transfer of Property Act and therefore Section 68 of the Indian Evidence Act may not have any application at all. It is S.A.724/1998. 12 significant to notice that even assuming that Section 68 applies and the due execution of Ext.B1 gift deed is proved, that may not by itself is sufficient under the Mohammedan Law to constitute a valid gift.
15. Here one needs to notice the decisions relied on by the learned counsel for the appellant regarding registration which according to him is sufficient to prove due execution of the document. In the decision reported in Ishwar Dass Jain's case (supra) it was held as follows:
"We shall next refer to the vital evidence or facts relating to the mortgage which have not been considered by the courts below. The defendant admitted in his evidence as D.W.2 that the mortgage deed was executed by him. The endorsement of the Sub-Registrar shows that the amount of Rs.1000 was paid as mortgage money. There is a presumption of the correctness of the endorsement made by the Sub Registrar under Section 58 of the Registration Act (vide Baij Nath Singh v. Jamal Bros. & Co.Ltd.); it can be rebutted only by strong evidence to the contrary." S.A.724/1998. 13
16. In the decision reported in Pathu's case (supra), it was held as follows:
"Registration of a document is a solemn act to be performed in the presence of the Sub Registrar, who is statutorily authorised for that purpose. He is duty bound to see that documents are executed by proper and competent persons. He has to get the parties identified by proper persons if they are not personally known to him. he has to ascertain from the executant that the execution was on free will after understanding the contents. When it is proved that the document as executed and registered, the presumption is that all the formalities are property and regularly undergone by the registering authority. Then it is for the party challenging execution and registration to prove that some deliberate fraud was played on the Sub Registrar and the registration was not legal and proper."
17. Section 60 of the Registration Act deals with certificate of registration. Section 34 deals with the enquiry to be made before registration by the Registering Officer. S.A.724/1998. 14 Section 35 deals with the procedure on admission and denial of execution respectively. Section 58 deals with the particulars to be endorsed on documents admitted to Registration. Going by the provisions of the Registration Act and also the principle laid down by the decisions relied on by the learned counsel for the appellant, it is true that registration is treated to be a solemn duty and the endorsements made by the Registration Officer have considerable value with regard to the registration of the document. In the decision reported in Sumathi Amma's case (supra) relied on by the learned counsel for the respondents, it was held as follows:
"2. I regard the Privy Council decisions in Gangamoyi Debi v. Troiluckhya Nath Chowdhury (I. L. R.33 Calcutta 537), Md. Ihtishan Ali v. Jamma Prasad (AIR 1922 P. C. 56) and Gopal Das v. Sri Thokurji (AIR 1943 P. C. 83) See also Vishwanath v. Rahibai (AIR 1931 Bombay 105), Pandappa v. Shivalingappa (AIR 1946 Bombay
193) and Kalu v. Bapurao (AIR 1950 Nagpur 6) as S.A.724/1998. 15 authority for the proposition that, in cases where S.68 of the Evidence Act has no a application, the certificate of registration in the light of the presumption in S.114 Illustration (e) of the Evidence Act is evidence of execution and can, in fit cases, be accepted as proof thereof and with the contrary view expressed in Salimatul-Fatima alias Bibi Mossini v. Koylashpoti Narain Singh, (I. L. R.17 Calcutta 903), Marati Balaji v. Dattu (AIR 1923 Bombay 253) and Bulakidas Hardas v. Chotu Paikan (AIR 1942 Nagpur 84) neither what is said in the Privy Council decisions nor the wording of S.60(2) of the Registration Act lends the least support to the statement in the last mentioned case that the certificate is only corroborative and not substantive evidence; the section says that the certificate is admissible for proving certain facts which can only mean that it is substantive evidence regarding those facts I must express my respectful dissent. To the argument noticed in Ara Begam v. Depuiy Commr., Gonds (AIR 1941 Oudh 529 at 548), Bulakida Hardas v. Chotu Paikan (AIR. 1942 Nagpur 84 at 85) and Ramanna v.
Sambamoorthi (AIR. 1961 Andhra Pradesh 361 at
369) that, if the certificate of registration were to S.A.724/1998. 16 be accepted as proof of execution, a party who is required to prove a document would, if it is registered, be relieved of the necessity of examining any witnesses to prove it and could rest solely on the certificate, thus opening the way to fraud and fabrication, the answer is obvious. It is that the court is not bound to accept the certificate as sufficient proof, and, where better evidence is available, can insist on better evidence, drawing the presumption in Illustration
(g) of S.114 of the Evidence Act against the party who withholds this better evidence. The better evidence in the present case, I might remark, would be the evidence of the alleged executant herself who it is not disputed is alive there is no evidence to show whether the attestors or the executee or others connected with the document are alive or dead and, in the circumstances of the case, I think it would be for the defendants rather than for the plaintiff to examine her. For, if, in truth, she did not execute the document, it would obviously be in her interest to come forward and deny execution; it would be against her interest to come forward and admit execution even if that be the truth; and her evidence should have been S.A.724/1998. 17 more readily available to the defendants than to the plaintiff.
3. With great respect I think that the attempt made in Indernath Modi v. Nandram (AIR. 1957 Rajasthan 231) to distinguish the Privy Council cases on the ground that those cases apply only, "where it is not possible to take recourse to the method provided in S.67 because of the fact that the executant and the marginal witnesses are either dead or cannot be found" and that it is only in such cases that recourse can be had "to the presumption under S.60 (2) of the Registration Act" is vitiated by the assumption that S.67 of the Evidence Act prescribes a mode of proof and requires the executant or the "marginal witnesses" to be examined. S.67 says nothing of the kind. It only says what what facts have to be proved, and, unlike S.68, does not prescribe any particular mode of proof. The facts required to be proved under S.67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of sub- section (2) of S.60 of the Registration Act and by S.A.724/1998. 18 the presumption in Illustration (e) of S.114 of the Evidence Act, is to be excluded.
4. It is pointed out that R.46(2) of the rules made under the Travancore Registration Act, which requires that the thumb impression of an executant admitting execution who is not personally known to the Registrar shall invariably be taken in the document, has not been complied with in this case. But, the operation of sub-section (2) of S.53 does depend on such compliance but only on compliance with the requirements of the section itself. Moreover, the evidence in this case shows that Kaliamma Pillai was a leper, and, in the case of lepers, R.48 dispenses with the taking of the thumb impression and requires only a note to be made in the register of thumb impressions (not in the document itself) explaining why the thumb impression was not taken."
18. In the case on hand, even assuming that there is due registration of the document, that by itself may not be sufficient to prove the validity of the gift in view of the S.A.724/1998. 19 various provisions under the Mohammedan Law. Both sides referred to Sections 138, 139, 142, 147, 148, 149, 150 and 151 of Mohammedan Law by Mulla, 19th Edn. with reference to the Mohammedan gift and the conditions necessary to constitute a valid gift.
19. As already noticed, it is not necessary that a Mohammedan gift deed should be effected by a document. There can be an oral gift also. Section 147 says that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 says that the essential ingredient to the validity of a gift is that the donor should divest himself completely of all ownership and dominion over the subject matter of the gift. Section 149 deals with the three essential ingredients of the Mohammedan gift. They are (i) there should a declaration of gift by the donor,
(ii) an acceptance of the gift, express or implied by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee as contemplated under Section 150. Section 150 deals with S.A.724/1998. 20 delivery of possession. Section 150 is of some relevance and it reads as follows:
"150. Delivery of possession.- (1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of (l). As observed by the Judicial Committee, "the taking of possession of the subject-matter of the gift by the donee, either actually or constructively," is necessary to complete a gift (n). See secs.145, 146, 152, 154.
(2) Registration.- Registration of a deed of gift does not cure the want of delivery of possession.
(3) If it is proved by oral evidence that a gift was completed as required by law (secs. 149 and 150), it is immaterial that the donor had also executed a deed of gift, by the deed has not been registered as required by the Registration Act, sec.17(a)(o).
(4) A declaration in a deed of gift that possession has been given binds the heirs of the donor (p). But such a declaration is not conclusive and a recital in a deed of gift that possession has been given to a minor nephew S.A.724/1998. 21 (without the intervention of a father or guardian-
sec.156) was on the facts held to be insufficient to support a gift as against the heirs of the donor
(q)."
20. In the decision reported in Mahboob Sahab's case (supra), it was held as follows:
"5. Under S. 147 of the Principles of Mahomedan Law by Mulla, 19th Ed. Edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential, to the validity of a gift, that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under S. 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in S. 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of S.A.724/1998. 22 the gift and taking of possession of the gift by the donee, actually or constructively. Then only gift is complete. 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, and delivery of possession of the property, the subject-matter of the gift by the donor to 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. In case of immovable property in the possession of the doner, he should completely divest himself physically of the subject of the gift. No evidence has been adduced to establish declaration of the gift, acceptance of the gift by or S.A.724/1998. 23 on behalf of the minor or delivery of possession or taking possession or who had accepted the gift actually or constructively. Admittedly he was in possession and enjoyment of the property till it was sold to the appellant. Equally, in Mohammadan Law mother cannot act nor be appointed as property guardian of the minor. She equally cannot act as legal guardian."
21. It is thus discernible from the above provisions and decisions that it is not necessary that a Mohammedan gift should be in writing and the document should be registered as contemplated under the Transfer of Property Act. The ingredients to constitute a valid Mohammedan gift are totally different as could be seen from the provisions referred to. While the registration may be of some help to come to the conclusion that the document is duly executed and that by itself is sufficient to constitute a valid gift under the Mohammedan Law.
22. Learned counsel for the appellant relied on certain portions of the evidence furnished by P.W.1 to the S.A.724/1998. 24 effect that he had absolutely no idea about the document and also that he had not cared even to verify Ext.B1 document. It is also pointed out by the learned counsel for the appellant that after the execution of Ext.B1 in 1972, there have been subsequent transfers by the donees. It is inconceivable according to learned counsel that the plaintiff was not aware of the gift deed and that his denial of execution of the gift deed cannot be accepted.
23. As rightly pointed out by the learned counsel for the respondents, since the execution of the gift is disputed, the burden is on the defendant to show that there is valid gift as contemplated under the Mohammedan Law. Learned counsel for the respondents also relied on the portion of the evidence given by D.W.1 to the effect that till the date of her death, Smt.Athukka Ummal was taking income from the property. It is therefore contended on behalf of the respondents that Smt.Athukka Ummal did not divest herself completely of the domain over the property and if that is so, there is no valid gift. It was also contended S.A.724/1998. 25 that the foster daughter of the first defendant being a minor, she could not have accepted the gift and also that her mother could not have accepted the gift on her behalf.
24. As to whether the necessary ingredients to prove execution of a valid gift are available or not have not been gone into by the courts below and as already noticed, both the courts below gone on the premise that since Section 68 has not been complied with, the gift is not duly proved. As already noticed, Section 68 of the Indian Evidence Act may not have much relevance.
25. Further, as rightly pointed out by the learned counsel for the appellant, if the lower appellate court was of the opinion that there was want of evidence from the side of the defendants to prove the due execution of the gift, it ought to have given an opportunity to the defendants to adduce further evidence. They had also filed a petition for the same before the lower appellate court. Except for mentioning that such a petition has been filed, no reasons are given as to why an opportunity should not be given to S.A.724/1998. 26 the appellant before the lower appellate to adduce further evidence in support of their case.
26. It may not be quite correct to say that the foster daughter being a minor at the relevant time was incapable of accepting the gift. Even if she is a minor, she could accept the gift. There is yet another fact. Smt.Athukka Ummal and her daughter and the foster daughter of the defendant were residing together and in such case, the burden of proving the acceptance of the gift is very light.
27. The above aspects have not been looked into by the courts below and therefore it is difficult to sustain the judgment and decree passed by the courts below.
28. Law on the point has not been adverted to and both the courts below have been carried away by irrelevant considerations. The law applicable has not been noticed and the relevant provisions of the Mohammedan law have not been adverted to.
S.A.724/1998. 27
In the result, this appeal is allowed, the impugned judgment and decree are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has been stated above. Parties shall appear before trial court on 11.4.2012. The trial court may make every endeavour to dispose of the suit as expeditiously as possible at any rate within a period of six months from the re-opening of the court after summer vacation. The parties are at liberty to adduce further evidence if they so choose.
P. BHAVADASAN, JUDGE sb.