{"id":3889,"date":"2008-01-21T00:00:00","date_gmt":"2008-01-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohammed-gani-vs-parthamuthu-sowra-on-21-january-2008"},"modified":"2018-12-12T11:17:20","modified_gmt":"2018-12-12T05:47:20","slug":"mohammed-gani-vs-parthamuthu-sowra-on-21-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohammed-gani-vs-parthamuthu-sowra-on-21-january-2008","title":{"rendered":"Mohammed Gani vs Parthamuthu Sowra on 21 January, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Mohammed Gani vs Parthamuthu Sowra on 21 January, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 21\/01\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nA.S.No.1315 of 1989\n\n1.Mohammed Gani\n2.Gulam Mohammed\n3.Sherfuddin\t\t\t... Appellants\/Defendants\n\nVs\n\n\nParthamuthu Sowra\t\t... Respondent\/Plaintiff\n\n\nPrayer\n\n\nAppeal filed under Section 96 of the  Code of Civil Procedure, against\nthe judgment and decree dated 20.06.1989 in O.S.No.76 of 1986 on the file of the\nSubordinate Judge, Pudukkottai.\n\n!For Appellants \t... Mr.G.Sridharan\n\n^For Respondent \t... Mr.K.Srinivasan\n\n\n\n:JUDGMENT\n<\/pre>\n
\tChallenging the judgment and decree dated 20.06.1989 in O.S.No.76 of 1986
\non the file of the Subordinate Judge, Pudukkottai, this appeal has been filed by
\nthe unsuccessful defendants.\n<\/p>\n
\t2. The parties, for convenience sake, are referred to hereunder according
\nto their litigative status before the trial Court.\n<\/p>\n
\t3. Broadly but briefly, precisely but narratively, the case of the
\nplaintiff as stood exposited from the plaint could be portrayed thus:\n<\/p>\n
\tThe properties described in the Schedule of the plaint and other
\nproperties originally belonged to the deceased N.M.Abdul Rahiman Rowther, the
\nfather of the plaintiff and the defendants 1 to 3.  By a registered partition
\ndeed dated 07.11.1963, the said original owner distributed his estate and
\nallotted shares for himself and his sons born through his first wife and
\nseparately allotted a share nomenclatured as ‘D’ Schedule to the plaintiff and
\nthe defendants jointly.  The plaintiff and the defendants were minors at the
\nrelevant time of emergence of the said partition deed and hence their mother
\nrepresented as guardian for the minors.  The defendants after attaining majority
\nadmitted the plaintiff’s share in the suit properties as co-owner entitled to
\nequal share along with the defendants.  The plaintiff decided not to continue in
\njoint possession and enjoyment of the suit properties and hence, the lawyer’s
\nnotice dated 29.10.1980 emerged at her instance calling upon the defendants to
\nagree for amicable partition and for allotment of her 1\/4 th share in the suit
\nproperties, but there was no positive response.  Hence, the suit for partition
\nand for other incidental reliefs as well as for rendition of accounts.\n<\/p>\n
\t4. Per contra, denying and disputing, refuting and challenging the
\naverments\/allegations in the plaint, the defendants filed the written statement
\nwith the averments which would run thus:\n<\/p>\n
\tThe plaintiff is not entitled to 1\/4 th share in the suit properties.  As
\nper Holy Kureon, a daughter could claim only one share whereas a son is entitled
\nto two shares.  The wife is entitled to 1\/8 the share alone in her husband’s
\nproperty in the presence of children.  The defendants have not admitted the
\nplaintiff’s alleged 1\/4 th share in any Court proceedings.  A sum of Rupees One
\nlakh was spent relating to the marriage of the plaintiff and the defendants also
\nspent Rupees Two lakhs for protecting the suit properties.  The mother of the
\nplaintiff and the defendants, Aayisa Beevi Ammal during the life time of the
\ndeceased N.M.Abdul Rahiman Rowther obtained his rice mill in her favour and as
\nsuch, the plaintiff cannot claim partition in the rice mill.  The suit is also
\nbad for non-joinder of Aayisa Beevi Ammal as a party to the suit.   In fact, the
\nplaintiff during her marriage got by way of jewels and other articles worth more
\nthan her share.  The defendants also gave twenty bags of paddy every year to the
\nplaintiff ever since her marriage.  Accordingly, they prayed for dismissal of
\nthe suit.\n<\/p>\n
\t5. The trial Court framed eight issues.  During trial, the plaintiff
\nexamined herself as P.W.1 and Exs.A.1 to A.9 were marked and the first defendant
\nexamined himself as D.W.1 along with D.W.2 and Exs.B.1 to B.52 were marked.\n<\/p>\n
\t6. Ultimately, the trial Court decreed the suit to the effect that the
\nplaintiff is entitled to    1\/4th share and also ordered for rendition of
\naccounts.\n<\/p>\n
\t7. Being aggrieved by and dissatisfied with, the judgment and decree of
\nthe trial Court, this appeal has been filed on the following main grounds inter
\nalia thus:\n<\/p>\n
\tThe trial Court committed error in holding that the plaintiff despite she
\nbeing a Muslim lady, is entitled to 1\/4 th share in the suit properties, even
\nthough she is entitled to only 1\/8th share in the presence of the defendants who
\nare the brothers of the plaintiff.  The defendants are entitled to 7\/8 th share
\nas per Muslim law.  The trial Court failed to hold that according to Muslim law,
\na daughter of the deceased is entitled to one share whereas the son of the
\ndeceased is entitled to double shares.  The trial Court failed to hold that the
\nsuit is bad for non-joinder of Aayisa Beevi Ammal, the mother of the parties.
\nAccordingly, they prayed for setting aside the judgment and decree of the trial
\nCourt or at the most, for decreeing the suit only to the extent of 1\/8th share
\nin favour of the plaintiff.\n<\/p>\n
\t8. The point for consideration are:\n<\/p>\n
\t(i) Whether the respondent\/plaintiff is entitled to 1\/4 th or 1\/8 th share
\nin the suit properties as per the Muslim law and more particularly,  in the wake
\nof the recitals in Ex.A.1, the partition deed dated 04.11.1963?\n<\/p>\n
\t(ii) Whether the suit is bad for non-joinder of the mother of the
\nplaintiff and the defendants as a party to the suit?\n<\/p>\n
\t(iii) Whether there is any infirmity in the judgment and decree of the
\ntrial Court?\n<\/p>\n
\t9. All the points are taken together for discussion as they are
\ninterlinked with one another.\n<\/p>\n
Point Nos:(i) to (iii)<\/p>\n
\t10. The learned Counsel for the defendants placing reliance on Ex.A.1, the
\npartition deed would develop his argument to the effect that the deceased
\nN.M.Abdul Rahiman Rowther allotted the suit properties which were described as
\n‘D’ Schedule in Ex.A.1 in favour of the plaintiff and the defendants jointly by
\nappointing their mother as guardian; the recitals in Ex.A.1 would demonstrate
\nthat the plaintiff and the defendants were expected to enjoy jointly the suit
\nproperties and nowhere it is found specified therein that the plaintiff and the
\ndefendants should share equally the suit properties.  Whereas the trial Court
\nerroneously in the judgment understood as though the deceased N.M.Abdul Rahiman
\nRowther had given the properties to the plaintiff and the defendants, for being
\nshared equally among them; as per Muslim law, the plaintiff being the daughter
\nand the defendants 1 to 3 being the sons of the deceased N.M.Abdul Rahiman
\nRowther, should take one share by the plaintiff and double shares by the
\ndefendants and accordingly, the plaintiff is entitled to only 1\/8th share.
\nAccordingly, they prayed for modifying the judgment and decree of the trial
\nCourt by allotting only 1\/8th share in favour of the plaintiff.\n<\/p>\n
\t11. The learned Counsel for the plaintiff would interpret  Ex.A.1 to the
\neffect that as per the recitals in Ex.A.1, the plaintiff and the defendants were
\ngiven with ‘D’ Schedule properties to be enjoyed equally and in such a case,
\neach of them is entitled to 1\/4 th share and that the Muslim law relating to the
\nallotment of shares should not be pressed into service.\n<\/p>\n
\t12. The cardinal point which required to be decided in this case is as to
\nwhether the deceased N.M.Abdul Rahiman Rowther intended that the plaintiff, his
\ndaughter and the defendants, his sons should take equally 1\/4th share in the
\nsuit properties.  Ex facie and prima facie, the trial Court fell into error in
\ngiving a finding that as per the recitals in Ex.A.1, the said N.M.Abdul Rahiman
\nRowther intended that the plaintiff and the defendants should share equally the
\nsuit property.  Nowhere in Ex.A.1, it is found stated like that.  It is just and
\nnecessary to extract certain portions in Ex.A.1 thus:
\n\t“4tJ ghh;l;o ikdh;fs; ehy;tUk; ndp 1yf;f jhuUf;Fk; 4tJ ghh;l;ofspd;
\nfhh;oad; Map&h gPtpf;Fk; re;jjp Vw;gl;lhy; mth;fSk; Brh;e;J xU ghfkhf mDgtpj;Jf;
\nbfhs;sBtz;oaJ  Map&h gPtpf;F Vw;fdBt xJf;fg;gl;oUf;fpwgo mth;fs; mile;J bfhs;s
\nBtz;oaJ ndp xUtUf;bfhUth; jpBuf rk;ke;jBk jtpu mh;j;j rk;ke;jKk; gpd; ghj;jpaKk;
\nJlh;r;rpa[k; ny;iy.”\n<\/p>\n
\t13. A mere perusal of it, would pave no way for ambiguity as the recitals
\nwould demonstrate that he intended the plaintiff and the defendants should
\njointly enjoy the property.  He also set out therein that for his wife so to
\nsay, the mother of the plaintiff and the defendants, he had given separate
\nproperties during his life time.  It is therefore crystal clear that the father
\nof the plaintiff and the defendants intended that the plaintiff and the
\ndefendants should enjoy the property jointly, but he never contemplated and
\nmandated therein as to how the inter se partition should take place among them.
\nSo long as, they have to enjoy jointly, the question of share would not arise.
\nBut, once the property which they got it from their father should be
\npartitioned, automatically Muslim law of inheritance will come into vogue.\n<\/p>\n
\t14. The main point to be taken into consideration here is that the
\nplaintiff and the defendants constitute one group under Ex.A.1 and they are the
\nlegal heirs of the deceased N.M.Abdul Rahiman  Rowther and it is not as though
\nN.M.Abdul Rahiman Rowther gave the property to some third parties.  During his
\nlife time itself, the said N.M.Abdul Rahiman Rowther in order to avoid disputes
\namong the children born through his several wives, executed the partition deed
\nEx.A.1.  As such, he intended that the suit property, that is ‘D’ Schedule in
\nEx.A.1, should go to the children born through his wife Aayisa Beevi Ammal, so
\nthat his other children born through his other wives would not be able to make
\nany claim.\n<\/p>\n
\t15. It is not a mere Hiba given by the said N.M.Abdul Rahiman Rowther to
\nstrangers comprised of males and females.  But, he gave it to his own children
\nborn through one of his wives so as to make them to enjoy jointly leaving open
\nthe application of Muslim law in the event of they opting for partition.  As
\nsuch, Ex.A.1, the partition deed is not having the effect of ousting the
\napplication of Muslim law of inheritance when the question of inter se partition
\namong the heirs born through his wife Aayisa Beevi Ammal, arises.  Hence, the
\nargument advanced on the side of the plaintiff that once the plaintiff and the
\ndefendants jointly got the suit properties under Ex.A.1, the question of
\napplying the Muslim law of inheritance does not arise, fails to carry conviction
\nwith this Court in view of the reasons set out supra.\n<\/p>\n
\t16. The paramount intention of the said N.M.Abdul Rahiman Rowther was to
\nprotect the children born through his wife Aayisa Beevi Ammal from the
\ninterference of other children born through his other wives and it was not his
\nintention that the plaintiff, his daughter should take equal share with his
\nsons, the defendants 1 to 3 ousting the Muslim law of inheritance.  The trial
\nCourt’s finding that the non-joinder of the said mother who was given with the
\nproperties separately, was not a necessary party to the proceedings, requires no
\ninterference.  It is therefore clear that the judgment and decree of the trial
\nCourt is liable to be modified declaring that the plaintiff is entitled to 1\/8th
\nshare and the defendants are entitled to the remaining 7\/8 share.\n<\/p>\n
\t17. There is one other alternative plausible legal view available in this
\ncase.  It is worthwhile to refer to the principles of Mohammedan Law.  I suo
\nmotu referred to the principles of Hiba and mushaa and called upon the learned
\nAdvocates on either side to argue on it as those are all pure questions of law
\nwhich could be raised at any stage including the appellate stage as it is the
\ncase herein.  The learned Advocates on either side also concentrated on those
\nprinciples and argued in entirety.\n<\/p>\n
\t18. It is a trite proposition of Muslim Law, there is no distinction
\nbetween ancestral property and self-acquired property.  A Muslim can transfer
\ninter vivos his properties by Hiba (gift).  By birth, a descendant  is having no
\nright over his ascendant’s properties during the life time of the latter.  In
\nthis factual matrix, what the said Abdul Rahim Rowther as per Ex.A.1, intended
\nwas to donate his properties by hiba, in favour of his sons born through his
\nother wives and the ‘D’ Schedule properties as one lot in Ex.A.1 (i.e, the suit
\nproperties herein) in favour of his children who were born through his third
\nwife and also to the children yet to be born to him through his same third wife.\n<\/p>\n
\t19. At this juncture, I would like to reproduce the relevant excerpts from
\nthe famous Treatise “Mulla’s Principles of Mahomedan Law” [19th Edition – by
\nM.Hidayathullah and Arshad Hidayatullah] thus:\n<\/p>\n
\t“160. Gift of mushaa where property divisible.-\n<\/p>\n
   A gift of an undivided share (mushaa)in property which is capable of division
\nis irregular (fasid), but not void (batil).  The gift being irregular, and not
\nvoid, it may be preferred and rendered valid by subsequent partition and
\ndelivery to the donee of the share given to him.  If possession is once taken
\nthe gift is validated.\n<\/p>\n
\tExceptions._ A gift of an undivided share (mushaa), though it be a share
\nin property capable of division, is valid from the moment of the gift, even if
\nthe share is not divided off and delivered to the donee, in the following
\ncases:_
\n\t(1) where the gift is made by one co-heir to another;\n<\/p>\n
Kanij Fatima v. Jai Narin (1944) 23 Pat. 216, (’44) A.P.334 (a case of gift by
\nmother to daughter of two anna share in lands, the daughter having taken joint
\npossession).\n<\/p>\n
\t(2) where the gift is of a share in a zemindari or taluka;
\n\t(3) where the gift of a share in freehold property in a large commercial
\ntown;\n<\/p>\n
\t(4) where the gift is of shares in a land company.\n<\/p>\n
161. Gift to two or more donees._ A gift of property which is capable of
\ndivision to two or more persons without specifying their shares or without
\ndividing it is invalid, but it may be rendered valid if separate possession is
\ntaken by each donee of the portion of the property given to him or if there is a
\nsubsequent arrangement between all the donees with regard to the possession of
\nthe property gifted. This rule does not apply to the case mentioned in the third
\nException to sec. 160 (h), nor, it is conceived, to the cases mentioned in the
\nother Exceptions.”\n<\/p>\n
\t20. Admittedly, the parties are covered by the Sunni Law as they are
\nresidents of Tamil Nadu.  The recitals in Ex.A.1, obvious as they are, do not
\ndemonstrate that the said Abdul Rahim Rowther intended the suit properties,
\nreferred to in the ‘D’ Schedule of Ex.A.1, should be divided equally among his
\nsons and daughters and the children to be born to his third wife.  In fact, he
\nwent a step further and set out therein that he wanted that ‘D’ Schedule
\nproperties as one lot should be enjoyed jointly by his children namely the
\nparties to this suit and his children to be born through his third wife quite
\nantithetical to the principles of Muslim law relating  to Hiba and mushaa.\n<\/p>\n
\t21. The learned Counsel for the plaintiff placing reliance on the said
\nrecitals in Ex.A.1, would develop his arguments that had the donor intended that
\nhis sons and daughters should take equal specific shares, he might not have set
\nout  therein that his male or female children to be born also should enjoy those
\nproperties.  As such, it is obvious that there is no certainty or specificity of
\nshares to be taken by his children under Ex.A.1, which is ex facie and prima
\nfacie against the Muslim law which precisely prohibits confusion leading to
\nlitigative partition among the donees.\n<\/p>\n
\t22. The concept ‘mushaa’ which as per Muslim Law, prohibits donation to
\nseveral donees without specifying as to what are the specific shares of the
\ndonees by metes and bounds.  No doubt, the learned Counsel for the defendants
\nwould argue that at the time of the said hiba arrangement, the defendants were
\nminors and hence, on behalf of them, their mother accepted the gift of
\nproperties.   No doubt, as per the Muslim Law, there might be acceptance by the
\nmother on behalf of the minors.  But, there should have been specification of
\nshares of the donees.\n<\/p>\n
\t23. It is an incontrovertible proposition of Muslim law that the father
\nhas got the right to make gifts of unequal shares to his children quite contrary
\nto the shares and arrangement contemplated in the Muslim law of inheritance.\n<\/p>\n
\t24. However, had the donor specified the exact shares, then the matter
\nwould have been different, but it had not been done so under Ex.A.1.  Adding
\nfuel to fire, he even mandated that his children to be born also would be
\nentitled to enjoyment and that clearly evidences that at the time of executing
\nEx.A.1, the shares were uncertain relating to the donees and the number of
\ndonees also were uncertain.  the unassailable Muslim Law proposition is that
\ndonation can be given to a child in the womb “en ventre sa mere”, but not to a
\nchild not yet conceived in the mother’s womb.  As such, I am of the considered
\nopinion that to that much portion of Ex.A.1 falls foul of Muslim Law and as
\nsuch, the suit properties should be treated as the properties inherited by the
\nplaintiff and the defendants from their father.\n<\/p>\n
\t25. A doubt might arise as to whether the other wives and children born
\nthrough other wives would  lay claim over the suit properties herein.  The fact
\nremains that the donor during his life time settled various properties in favour
\nof his other children born through his other wives and he also gave properties
\nto his third wife and as per the recitals in Ex.A.1 itself, such donees
\nvirtually accepted their snapping of their interest over the ‘D’ Schedule
\nproperties.\n<\/p>\n
\t26. The learned Counsel for the defendants also would submit that in the
\nprevious litigation before the Court, the plaintiff and the defendants jointly
\nas one group got a finding from the Court itself that Ex.A.1 is a valid
\ndocument.  Ex.A.9, is the certified copy of the judgment dated 15.03.1972, in
\nO.S.No.2 of 1967 passed by the Sub Judge, Pudukkottai, which was filed by one of
\nthe widows of the said Abdul Rahim Rowther, against the sons born through his
\nthird and fourth wives and also against his fourth wife and others for
\npartition.\n<\/p>\n
\t27. No doubt, in that case, the document Ex.A.1 herein, was also marked as
\nEx.B.10 and ultimately, the Court did not disturb the validity of even a portion
\nof Ex.A.1 herein.  In my opinion, such judgment emerged on a different footing
\nand this legal point was not raised therein and obviously there was no
\nadjudication on that.\n<\/p>\n
\t28. This judgment is one passed ‘in personam’ and not ‘in rem’.  So far,
\nthe rights of others are concerned, the parties to those proceedings are bound
\nby it and the arguments of the learned Counsel for the defendants herein would
\nbe a good answer for those other heirs of the donor if they try to lay claim
\nover the ‘D’ Schedule property in Ex.A.1, but among the plaintiff and the
\ndefendants herein, the suit properties should be divided among them by applying
\nthe Muslim law of inheritance.  Simply because, in the previous proceedings, the
\nother heirs of Abdul Rahim Rowther did not raise such plea that it does not mean
\nthat in the inter se dispute between the plaintiff and the defendants, the
\nembargo contemplated as against Ex.A.1 under Muslim law should not be invoked or
\nconsidered.\n<\/p>\n
\t29. Be that as it may, without being tautologous, I would reiterate that
\nthe judgment to be passed herein, is only a judgment ‘in personam’ and not a
\njudgment ‘in rem’.  Accordingly, if viewed, it is clear that as per the Muslim
\nlaw, the plaintiff is entitled to 1\/8th share in the suit property and the
\nremaining shares belong to the defendants.  As such, Ex.A.1 settlement relating
\nto the D Schedule property, even if taken as valid in toto, yet the plaintiff is
\nentitled to 1\/8th share and alternatively as per the second view expressed
\nsupra, that much portion of Ex.A.1 fails as it falls foul of the principles of
\nhiba and in such an event once again, the plaintiff would be entitled to 1\/8th
\nshare and the defendants would be entitled to the remaining shares.\n<\/p>\n
\t30. In fact, the division should be as follows:\n<\/p>\n
\tThe entire suit properties should be divided to 7 shares.  1\/7th share
\nshall be allotted to the plaintiff and each of the defendants is entitled to 2\/7
\nth share.\n<\/p>\n
\t31. In the result, this appeal is disposed of accordingly, modifying the
\njudgment and decree of the trial Court.  No costs.\n<\/p>\n
rsb<\/p>\n
To<\/p>\n
The Subordinate Judge, Pudukkottai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Mohammed Gani vs Parthamuthu Sowra on 21 January, 2008 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21\/01\/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.1315 of 1989 1.Mohammed Gani 2.Gulam Mohammed 3.Sherfuddin … Appellants\/Defendants Vs Parthamuthu Sowra … Respondent\/Plaintiff Prayer Appeal filed under Section 96 of the Code of Civil Procedure, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-3889","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMohammed Gani vs Parthamuthu Sowra on 21 January, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohammed-gani-vs-parthamuthu-sowra-on-21-january-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohammed Gani vs Parthamuthu Sowra on 21 January, 2008 - 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