KOCHUNNI KOCHU MUHAMMED Vs. KUNJU PILLAI MUHAMHED

JUDGEMENT

(1.) This appeal arises out of a suit for partition of the share of a Mohammedan widow in the estate of her deceased husband. The husband whose estate is sought to be partitioned was the third husband of plaintiff 1, and plaintiff 1 herself was his second wife. Plaintiff 1's first husband died in 1077 and her second husband, who married her in 1082, divorced her a year or two after the marriage. In 1085 she was married again by her third husband, Kochuena Kochunni Methar, who will hereafter be referred to in this judgment as Methar. At the time of their marriage plaintiff 1 had children born to her first husband, and Methar also had children by his first wife who had died about the year 1082. Methar had no children by plaintiff 1. He died on 3.9.1121, and on 3.3.1124 plaintiffs 1 and 2 brought the present suit for partition of the share of plaintiff 1, namely one eighth, in his estate. Defendants 1 to 3 are Methar's children by his first wife, defendant 1 being his son and defendants 2 and 3 daughters. Plaintiff 2 is the son of plaintiff 1 by her first husband. Plaintiff 1 was seventy nine years old at the time of the institution of the suit, and she died shortly afterwards. She had stated in the plaint that she had transferred to plaintiff 2 all her rights in the estate of her deceased husband for consideration received from him, and after her death plaintiff 2 alone prosecuted the suit.

(2.) Defendants 1 and 2 contested the suit. Their main contentions were that there was an agreement between Methar and plaintiff 1 at the time of their marriage whereby they had agreed that on the death of either of the spouses the survivor would not claim the share which he or she, as the case might be, would ordinarily be entitled to under the Mohammedan Law in the estate left by other spouse and that all the properties left by the deceased spouse should be taken only by his or her other heirs, that plaintiff 1 subsequently executed a deed on 26.3.1117, Ext. I, relinquishing her right of inheritance to Methar's estate in the event of his predeceasing her, that this was part of a family settlement, and that on account of it plaintiff 1 was not entitled to claim any share in the estate of Methar. In regard to this contention the plaintiffs case was that there was no agreement at the time of the marriage as alleged by defendants 1 and 2, that Ext. I was caused to be executed by fraud and undue influence practised on plaintiff 1 by Methar, and that Ext. I and the relinquishment of her right of inheritance by plaintiff 1 were void and should not be given effect to. The lower court found that there was an agreement at the time of the marriage as alleged in the written statement, and that Ext. I was not vitiated by any fraud or undue influence as urged by the plaintiffs. Nevertheless, it refused to give effect to Ext. I on the ground that it was void and invalid. Consequently it passed a preliminary decree for partition in favour of plaintiff 2, and this appeal is filed by defendants 1 and 2 against that preliminary decree.

(3.) That there was an agreement between Methar and plaintiff 1 at the time of their marriage that, in the event of one of them predeceasing the other, the survivor would not claim any right of inheritance in the properties left by the deceased person and that a family settlement on the lines of this agreement was made on the date of Ext. I are matters which admit of no doubt. Ext. II is a partition deed executed by plaintiff 1 and her children by the first husband by which all the properties inherited by them from the first husband of plaintiff 1 and all the properties which plaintiff 1 got from her father were settled upon and partitioned between those children. Both Exts. I and II were executed on the same date and presented for registration almost simultaneously. The Sub Registrars endorsement on these documents show that Ext. II was presented for registration at 12 noon on 26.3.1117 and Ext. I at 12.15 P.M. on the same day. To both these documents a brother of plaintiff 1 as well as a brother of her first husband were attestors. Plaintiff 2 and his brother and sister as well as Methar were also present in the Sub Registry Office in connection with the registration of these documents. On the date of these documents plaintiff 1 was seventy two years old and plaintiff 2 forty three years old. Plaintiff 2 is a merchant by occupation. Except his own interested statement plaintiff 2 has absolutely no evidence to show that plaintiff was caused to execute Ext. I by any fraud or undue influence practised by Methar. The attestors to the documents, who are his own uncles and the brother and brother inlaw of plaintiff 1, have not been called as witnesses to prove the allegation of fraud and undue influence, and it is difficult to believe that these close relatives of plaintiff 1 and her grown up children, including plaintiff 2, would have allowed her to execute Ext. I and themselves participated in the execution of the documents if Methar had induced her to execute it by fraud and undue influence. Ext. I explicitly states that there was an agreement between Methar and plaintiff 1 at the time of the marriage that, in the event of one of them predeceasing the other, the survivor would not claim any right of inheritance in the properties left by the deceased person. At the time of her marriage with Methar plaintiff 1 was thirty seven years old, and as may be seen from Ext. II, she was then in possession of considerable properties left by her first husband and belonging after his death to her and children by him. She and her children were then living with her father; and after the marriage the children continued to live with and under the guardianship of their maternal grandfather. He too was a person of considerable means, and plaintiff 1, being his daughter, was one of his heirs. In the circumstances it is only too probable that an agreement like this would have been entered into by Methar and plaintiff 1 at the time of the marriage with a view to conserve the properties of plaintiff 1 to the ultimate benefit of her children alone and the properties of Methar to the ultimate benefit of his children alone and to avoid future disputes and quarrels between their children. Dealing with the subject of marriage contracts, Tyabji says in the third edition of his book on Muhammadan Law, Page 118, that if the wife has any property of her own it is desirable to make special arrangements about it in the marriage contract. Having regard to all these facts and circumstances we think that it is too probable that there was an agreement as alleged by the defendants and consider that the findings of the District Judge both in regard to the truth of the agreement at the time of the marriage as well as to the falsity of the allegation that Ext. I was caused to be executed by fraud and undue influence practised by Methar on plaintiff 1 are perfectly right.