Sustainability of plea taken by stranger on the question of delivery of possession.

Defendants 1 to 9 are the appellants. Katheeja Bi, the 10th defendant, had three sons, Abdul Razack, Abdul Subbhan and Abdul Sukoor. Abdul Razack died in 1944. Abdul Subbhan died in 1947. Under the Mahomedan Law on the death of these sons Katheeja Bi became entitled to a one-sixth share in their estates. On 17th June, 1948, she executed a deed of settlement, Exhibit A-1 whereby she gave the one-sixth share which she inherited in the estate of Abdul Razak as also the one-sixth share which she inherited in the estate of Abdul Subban jointly to plaintiffs 1 and 2. The first plaintiff, Marian Bi, it may be stated is the only daughter of Katheeja Bi and the second plaintiff is the husband of Marian Bi. On the strength of this settlement deed the plaintiffs instituted O.S. No. 81 of 1948, on the file of the Subordinate Judge, Vellore, for the partition of the estate of Abdul Razack. The suit was compromised on 23rd January, 1950 and the plaintiffs obtained for themselves the properties set out in Exhibit B-2. In September or October 1950, the plaintiffs instituted the suit, out of which the present appeal arises, for partition and separate possession of the estate of Abdul Subbhan wherein they claimed a one-sixth share on the basis of Exhibit A-1.

The defendants put the plaintiffs to strict proof of the truth, validity and the execution of the settlement deed Exhibit A-1. They took the further plea that even if Exhibit A-1 is proved to be genuine and to have been executed by Katheeja Bi with complete comprehension of its contents still the settlement deed is void since it offends against various rules of Mahomedan Law. The learned Subordinate Judge ovrruled these contentions and decreed the suit as prayed for. Defendants 1 to 9 have therefore appealed.

It may be mentioned here that Katheeja Bi died in 1952 while the suit was pending in the trial Court and that no one has been specifically added as her legal representatives.

It seems to us that the genuineness of the settlement deed is beyond question. The evidence shows that Katheeja Bi went to the house of P.W. 1, a leading advocate of Vellore, and told him what she wanted to be done. He thereupon drafted the document Exhibit A-1 and it was typed in his office. A junior of his, who has subsequently become a Judicial Magistrate, made certain corrections in the document. Thereafter it was attested by three persons one of whom was P.W. 2. P.W. 2 deposed that at the time he gave evidence both the other attestors were dead. Katheeja Bi herself presented the document for registration and it was duly registered.

The next question is whether when Katheeja Bi executed the settlement deed she had a complete comprehension and full understanding of the nature of the document and the effect of the dispositions she was making.

Here it must be borne in mind that a gift deed executed by a pardanashin lady stands in a peculiar position. As explained in Farid-un-nissa v. Mukhtar Ahmad1.

“The real point is, that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it..................If, however, the settlor’s freedom and comprehension can be otherwise established or, if, as is the respondent’s case here, the scheme and substance of the deed were themselves originally and clearly conceived and desired by the settlor, and were then substantially embodied in the deed, there would be nothing further to be gained by independent advice.

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They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension” .

See also Inche Noriah v. Shaik Allie Bin Omar2, where their Lordships observed:

“ It is necessary for the donee to prove that the gift was the result of the free exercise of indepedent will. The most obvious wa