MUHAMMED VAVUKHAN Vs. KUNJU POUTHAMMAL

JUDGEMENT

(1.) Plaintiff is the appellant. The suit is for partition after setting aside certain gift deeds and sale deeds. The plaint properties belonged to one Mohomed Vava Khan who was a Hanafi Muslim. He died intestate on 22.2.1119 leaving his widow (first defendant) and his three daughters (defendants 2 to 4) as heirs and plaintiff and defendants 10 to 14 as residuaries. Plaintiff and defendants 10 to 14 are entitled to 5/24 share in the properties, the plaintiff being entitled to 5/144 share. Vava Khan executed seven gift deeds and four sale deeds. They are Exts. I to XI. Ext. VI is a gift deed dated 7.4.1102 executed in favour of defendants 2 to 4 in respect of 52 acres and 42 cents in plaint item No. 1. Ext. VII dated 15.7.1103 is a gift deed in favour of the first defendant for 2 acres in item No.1. Ext. VIII dated 2.2.1113 is a gift deed in favour of the third defendant for 16 acres in item No. 1 and the whole of item No. 11. Ext. IX dated 2.2.1113 is a gift deed to the fourth defendant for 16 acres in item No. 1 and also a building (item No. 2) standing in item No. 1. Ext. X dated 2.2.1113 is also a gift deed in favour of the 7th defendant, the daughter of the fourth defendant for 2 acres in item No. 1. Ext. XI dated the same day is a gift to the second defendant for 16 acres in item No. 1. Ext. I dated 20.7.1116 is a sale deed in favour of defendants 2, 4, 8 and 9 for plaint items 3, 4 and 5 for Rs. 950/-. Ext. II dated 7.7.1118 is a sale deed in favour of the first defendant in respect of item No. 6 and 1 acre 48 cents in item No. 1 for Rs. 1500/-. Ext. IV dated 7.7.1118 is a sale deed in favour of the fifth defendant, the husband of the second defendant, in respect of one-half of item, No. 7 for Rs. 200/-. Ext. V dated the same day is a sale deed in favour of the sixth defendant for one-half of item No. 7 and items Nos. 8, 9 and 10 for Rs. 300/-. Ext. III dated 22.11.1118 is a gift deed executed in favour of a Muslim institution, Nurul Islam Druss, represented by defendants 17 to 21 in respect of items 12 and 13. The gift deeds were impeached by the plaintiff as sham transactions, and it was alleged that there was no delivery of possession of the properties to the respective donees. The sale deeds also were impeached as sham transactions and it was alleged that they were not supported by consideration and that possession of the properties continued with Vava Khan. It was further alleged that Exts. II, IV and V, though styled as sale deeds, were really gift deeds and that they and Ext. III were executed during marz-ul-maut (death illness) of Vava Khan and that they could not take effect beyond a third of his estate after payment of funeral expenses and debts.

(2.) Defendants 1 to 4, 5 and 6, 7, 10 to 12 and 14, and the 19th defendant filed written statements. Defendants 1 to 4 in their joint written statement contended as follows: The plaintiffs sisters are necessary parties to the suit. The suit, as framed, is not maintainable. Plaintiff is not entitled to 5/144 share in the assets of deceased Vava Khan. The gift deeds and the sale deeds executed by Vava Khan are valid and are not liable to be set aside. Possession of property passed under the gift deeds. The sale deeds are supported by consideration and they took effect. The donees and the vendees have effected valuable improvements in the respective properties. The plaintiff is not entitled to any share in respect of the properties covered by the gift deeds and the sale deeds.

(3.) Defendants 5 and 6 supported the contentions of defendants 1 to 4. They further contended that the sale deeds in their favour were valid and were supported by consideration and that possession of property passed under those sale deeds.