LAWS(KER)-1965-1-17

AHEMMED KANNU ROWTHER Vs. MOHAMMAD KANI

Decided On January 20, 1965
AHEMMED KANNU ROWTHER Appellant
V/S
MOHAMMAD KANI Respondents

JUDGEMENT

(1.) This second appeal by the plaintiff arises in a suit for partition of his share of the suit properties and concerns only items 1 to 6 and 8 in A schedule and the moveables in B schedule of the plaint, which have all been held by the lower courts to be not partible. Items 1 to 6 and 8 in A schedule were owned by Theethar Kani Rawther and were the subject of a disposition by him in favour of his wife, the 3rd defendant, by Ext. XXXI or Ext. I. The partibility of these items depends upon the true construction and the legal effect of Ext. XXXI. According to the plaintiff, by Ext. XXXI there was a grant by Theethar Kani Rawther to the 3rd defendant, only for enjoyment by her of the usufruct of items 1 to 6 and 8 for her lifetime, and a testamentary disposition to their daughter Hameedumma, to take effect after both their lives, but according to the contesting respondents who claim under the 3rd defendant, she took the properties absolutely for herself. The two courts have accepted the latter contention and declined to allow partition with respect to these properties.

(2.) In Ext. XXXI Theethar Kani Rawther declared, that separate funds of the 3rd defendant having been utilised by him and being himself unable to reimburse her, she shall enjoy the properties specified, subject to the conditions thereinafter detailed, paying tax in the name of the mortgagors for the mortgaged properties, and in her name for the jenmom properties on effecting mutation. Then followed the schedule of properties and thereafter a set of provisions. Some of these which are pertinent, are that should the 3rd defendant die in his lifetime, the properties would be in his possession absolutely, that after both of them the properties shall go to Hameedumma their daughter, and to issues who may be born thereafter, and that the 3rd defendant was not to exercise any power of alienation except jointly with himself. Though there are no dispositive words as such in Ext. P. 1 conferring an estate of inheritance on the 3rd defendant; from the stipulation enabling the 3rd defendant to effect mutation in her name, the courts below came to the conclusion, that the grant in her favour was absolute, and that the subsequent provisions referred to above are void for repugnancy. I cannot find my way to accept this interpretation of Ext. XXXI. If there is any dispositive word in it in favour of the 3rd defendant, that word is only "A[o-\-¯nte¡v " which is quite colourless and which itself is expressly qualified by or made subject to the other provisions of the document. Nothing in law precludes the holder of a life interest from getting mutation of names in the revenue records, if possible. The provision for mutation is not conclusive to establish, that the 3rd defendant took the properties absolutely for herself. The normal rule is, that a document must, if possible, be so interpreted as to harmonise all its provisions, subject of course to the fundamental rule that where the grant evidenced by it is absolute, nothing can derogate from it. On the terms and provisions of Ext. XXXI, I hold, differing from the courts below, that the 3rd defendant could not take anything more than an interest terminable at her death. In the events that happened, Hameedumma was the first to die after the execution of Ext. XXXI followed by Theethar Kani Rawther; there was no other issue of the 3rd defendant. A question was raised whether the disposition in favour of Hameedumma which was to take effect on the death of her parents was testamentary, but that has ceased to be of any practical importance, because of her death earlier than was provided for or anticipated. So under the ordinary law, upon the death of the 3rd defendant, the properties would have vested in the heirs of Theethar Kani Rawther. The 3rd defendant too died after the decision of this case in first appeal and before this second appeal was filed; her legal representative who had been impleaded in second appeal also died and his legal representatives are now on record.

(3.) But the case presents another feature. The parties are Mohammadans. According to the law governing them, life interests and vested remainders are not recognised. Learned counsel relying on Nawazish Ali Khan v. Ali Raza Khan ( AIR 1948 PC 134 ) contended for the position, that the grant in this case under Ext. XXXI was not of the corpus of the properties, but only of their usufruct. The Privy Council held in the case cited, as follows: