VENGADAN KUNHAMMAD Vs. AMINA

JUDGEMENT

(1.) THIS second appeal is by the heirs of the plaintiff in a suit for partition.

(2.) THE parties are Muslim Marumakkathayees hailing from malabar. THE plaintiff and defendants 1 to 5 are the children of Kunhammav by his wife Kunhipathumma. THE father died in 1939, while the mother died in 1942. THEre were two more children of the union, viz. Ammed, the eldest who died in or about 1945, leaving as his heirs the defendants 8 to 12 and Beeyathu the youngest, who predeceased the father leaving the defendants 6 and 7 as her heirs. Kunhammav had acquired considerable properties even while young, and these and his future acquisitions he disposed of in favour of the thavazhi of his wife and children, under Ext. B-86 will dated 23-4-1907. Apparently at his instance, kunhipathumma also executed her own will on the same day, providing for the devolution of all her properties also, alike in favour of the thavazhi of the children. Subsequently on 30-11-1913 Kunhammav obtained with his own funds, a kanom deed Ext. B-1 in respect of two items of garden lands scheduled to the plaint, in the sole name of one of the children, viz. the 2nd defendant. THEreafter he advanced more moneys and got Ext. B-14 renewal of the kanom on 13-4-1919, but in the names of his wife Kunhipathumma and three of their children, viz. Ammed and defendants 2 and 3. Finally on 23-9-1927, he purchased the properties outright under Ext. A-1 sale deed in the names of his wife and all the eight children. THE main question in controversy in the case and pursued in this court is whether any rights accrued in the schedule properties to the wife and children under and by virtue of this purchase Ext. A-1 and if so to what extent. THE plaint as originally framed, had proceeded to claim a plaintiff's share on the basis, that Ext. A-1 was intended to be and was operative, so as to invest the properties in the wife and children in equal shares. THE defendants 1 and 5 supported this position. Soon later, the plaintiff got the plaint amended to the effect that the wife and children were nominal purchasers only under Ext. A-1 and the acquirer Kunhammav was the beneficial owner until he died, with the result that the wife and children obtained rights, if at all, in the properties covered by Ext. A-1, only as his heirs under the Mohammadan Law. This change helped to secure a larger share for the plaintiff and possibly was adopted by him, on that account. THE 4th defendant favoured this latter construction. THE defendants 3 and 7 who were the real contestants in the case however disagreed. According to them the plaintiff's original position as modified was the correct one, that is, Ext. A-1 was intended to be and was a real transaction but it enured to the benefit of the thavazhi of the acquirer's wife and children as a whole and not to the wife and children alone individually. THE defendant 13 and 14 were impleaded as the lessees of the 4th defendant in possession of portion of the plaint properties; the 15th defendant came in later as the assignee of the 13th defendant.

(3.) THE later decisions of the Privy Council have affirmed the above principles so that we may take it as well-settled that under the general law in India there is no presumption of an intended advancement as there is in England. Thus, relying on their earlier decision Gurun Datta v. T. Ram datta. A. I. R, 1928 P. C. 172, their Lordships of the Privy Council observed in the latest case before them Shambhu Nath v. Pushkar Nath. A. I. R 1945 P. C. 10, "the deposit by a Hindu of his money in a bank in the joint names of himself and his wife and on terms that it is payable to either as survivor does not on his death constitute a gift by him to his wife. THEre is a resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife".