KATHEESSA UMMA Vs. KUNHAMU

JUDGEMENT

(1.) IN this second appeal on behalf of the appellants,defendants 1 to 3,their learned counsel Shri M.K.Nambiar challenges the concurrent view expressed by both the subordinate courts that the gift deed executed on 7 -4 -1944,Ext.B1,by one Mammootty in favour of his then minor wife,Seyinaba is not valid under Mohamedan Law.

(2.) THERE is no controversy that Mammootty,the executant of the gift deed,Ext.B1,was the owner of the properties mentioned therein.Under the said gift deed,Mammootty purported to make a gift of the 11 items of properties stated therein,in favour of his wife Seyinaba,who was on the date of the gift a minor,represented by her mother,the first defendant,as guardian.Mammootty died on 8 -5 -1946 and Seyinaba herself died on 15 -2 -1947.

(3.) THE plaintiff further alleged that the remaining three -fourth share has devolved upon the plaintiff and defendants 4 and 5.But defendants 1 to 3 were denying the rights of the plaintiff on the ground that Mammootty had executed a gift deed in favour of his wife on 7 -4 -1944 and,therefore,the plaintiff has no right to claim any share in the suit properties.Therefore,the plaintiff alleged that the gift deed stated to have been executed in favour of Seyinaba,is not valid under Mohammedan Law.In consequence,the plaintiff claims 6/16th share in the suit properties,ignoring the gift deed,Ext.B1.The appellants contended that the gift deed executed by Mammootty in favour of Seyinaba,namely,Ext.B1,is perfectly valid in law,and that the plaintiff has no right to challenge the same nor claim any right in the suit properties.The gift deed was executed bona fide and it was intended to be acted upon and was in fact acted upon also by the parties and possession also was handed over to the donee.The allegation of the plaintiff that the gift was executed while Mammootty was on his death bed is not true.It was also stated that,in case the gift deed is set aside,the various debts of Mammootty discharged in pursuance of the directions contained in the gift must be refunded by the plaintiff and that the appellants should also be awarded the value of improvements effected by them on the properties.