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1986 1 MLJ 412
S. Swamikkannu, J.
Fathimuthu
Versus
Ghouse Ahmed Maracayar And Ors.
Decided on : 29/12/1985
Second Appeal No.449 of 1980
Hiba - Mahomedan Law - Gift to unborn person - Void - Life estate - Can be created by Hiba or Will - Restriction on alienation - Void - Gift to two or more donees - Invalid - Subsequent partition - Validates gift.
Fact of the Case:
Plaintiff filed a suit for partition and separate possession of her half share in the suit properties, for future mesne profits and for costs. The suit was filed on the strength of Ex.A-1 hiba deed executed by her grandfather one G.M. Ghouse and his wife. The plaintiff contends that her mother i.e. the 6th defendant was one of the donees under Ex.A-1, that the 6th defendant and other donees concerned in Ex.A-1 had divided the hiba properties under the original of Ex.A-1, that her mother was allotted C Schedule in the said partition deed, that her mother has got no power of alienation as per the terms contained in the hiba Ex.A-1, that her mother had alienated almost all the properties which she got under the hiba to defendants 2 to 5 and that therefore she had come forward with the suit for partition and separate possession of her share on the strength of Ex.A-1.
Finding of the Court:
The court held that Ex.A-1 is a valid Hiba so far as the 6th defendant and other donees are concerned, and that their heirs are not entitled to claim any title over the properties since they were not born on the date of hiba. The court further held that Ex.A-1 hiba deed is a true and valid one under Mahomedan Law, that it was fully acted upon by the parties, and that it would confer absolute title only on 6th defendant-Safeya Bivi, her sisters and brothers only, and that the plaintiff/appellant herein and the first defendant and the heirs of the other donees concerned in Ex.A-1 are not entitled to claim any title over the properties mentioned in it.
Issues: 1. Whether Ex.A-1, the hiba deed dated 19.3.1931 is a true one and whether it was acted upon by the parties? 2. Whether Ex.A-1 the hiba deed dated 19.3.1931 is a valid document under Mahomedan Law? 3. Whether the appellant's suit in the trial court is bad for partial partition? 4. Whether the appellant and the 1st respondent can claim title to the suit properties under Ex.A-1? 5. Whether the appellant/plaintiff is entitled for a decree as prayed for in the trial court?
Ratio Decidendi: 1. A gift to an unborn person is not a valid Hiba under Mahomedan Law. 2. A Mahomedan can create a life-estate by executing a Hiba or Will regarding the usufruct of the property gifted by him. 3. A gift of a life-interest by a Mahomedan is a valid one under law, and it does not become automatically enlarged into a gift of the corpus of the property absolutely. 4. A gift of property which is capable of division to two or more persons without specifying their shares or without dividing it is invalid, but it may be rendered valid if separate possession is taken by each donee of the portion of the property given to him or if there is a subsequent arrangement between all the donees with regard to the possession of the property gifted.
Final Decision: The second appeal is dismissed.
S. Swamikkannu, J.
1. This is a second appeal filed by the plaintiff Fathimuthu in O.S. No. 116 of 1976, on the file of. the learned District Munsif, Chidambaram against the judgment and decree dated 20.8.1979 in A.S.No. 100 of 1978, on the file of the Court of the learned Subordinate Judge, Chidambaram, dismissing the appeal with costs of the contesting respondents and confirming the judgment and decree of the trial court.
2. The suit was filed for partition and separate possession of plaintiff's half share in the suit properties, for future mesne profits and for costs.
3. The case of the. plaintiff in brief is as follows;- One. G.M. Ghouse and his wife originally owned the suit properties and other properties and they had executed a Hiba on 19.3. 1931 in favour of their grand children by name Aliaudeen, Fathima Bivi, K. Shafia Bivi, Kathija Bivi and K. Ameena Bivi who were minors then. The guardian of the donees took possession of the properties and the gift deed was acted upon. Under the said gift deed, the donees were given only the right to enjoy the income from the properties and they were not given any power of alienation. As per the terms contained in the hiba, the grand children of G.M. Ghouse have to enjoy the properties absolutely. The donees mentioned in the hiba effected a partition among themselves regarding the gift properties and in the said partition Shafia Bivi, who is the 6th defendant in the suit, was allotted the properties described in the Schedule-C. The said Shafia Bivi has got a son who is the 1st defendant in the suit, and a daughter who is the plaintiff in the suit. The plaintiff and her brother are entitled to half share in the properties which are given to the 6th defendant under the gift deed. Contrary to the terms of the hiba, and the subsequent arrangements between the donees, the 6th defendant had sold almost all the properties in favour of the defendants 2 to 5. The 6th defendant has got no right to alienate the properties and therefore the alienation by the 6th defendant would not bind the plaintiff and the 1st defendant. The 1st defendant has parted with his interest. Under these circumstances, the plaintiff has come forward with the suit for partition, separate possession and mesne profits, regarding her share in the properties.
4. In the trial court, the defendants 5 and 6 have remained ex parte.
5. Defendants 2, 3 and 5 filed a written statement adopted by defendants 7 and 8, to the following effect:- The hiba dated 19.3.1931 is not a valid document in law. The plaintiff has got no title over the suit properties. The suit is bad for partial partition. In the partition which took place between the heirs of G.M. Ghouse Sahib, the 6th defendant was allotted the properties described in the C schedule therein. The 8th defendant was enjoying her share as an absolute owner, and she had disposed suit item to the defendants 2 to 5 who are bona fide purchasers for value. The 5th defendant is an unnecessary party to the suit. The plaintiff's suit is barred by limitation. Hence the suit may be dismissed.
6. The 4th defendant filed a written statement stating that the settlement deed In favour of the 6th defendant and others by G.M.Ghouse and his wife is not a valid one under Mahomedan Law, that the parties were not given possession of the properties in pursuance of the said hiba, and that Mahomedan Law does not recognise vested estates in remainder. The alienation made by the 6th defendant is valid. Hence the suit may be dismissed.
7. The trial Court had framed the following issues and additional issues for trial:-
1. Whether the alleged hiba dated 19.3.1931 is true, valid, accepted and acted upon?
2. Whether the plaintiff has got title to the suit properties?
3. Whether the suit is bad for partial partition?
4. Whether the plaintiff has got any right over the suit property during the lifetime of the 6th defendant?
5. Whether the 5th defendant is an unnecessary party to suit?
6. Whether the suit is mainta
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