QHAMARUNNISSA BEGUM Vs. FATHIMA BEGUM

JUDGEMENT

(1.) THIS appeal arises out of a suit for partition of the estate of one Haji Mohamed asamathulla Badsha Sahib who died on 4-1-1955 at Madras leaving several heirs and considerable movable and immovable properties at Madras and in Arcot, North arcot District. The plaintiff is one of the daughters of the deceased by his second wife, Habeebunnissa Begum, whom he has divorced in 1948. The first defendant is another daughter by this divorced wife and defendants 2 and 3 are sons of the deceased by her. The fourth defendant in the suit is a daughter of the deceased by his first wife who died somewhere in 1938 and defendants 9 to 11 are the daughters of the fourth defendant and minors. The fifth defendant is the third wife of the deceased and the sixth defendant is the minor daughter by the third wife. Defendants 7 and 8 are the 4th and fifth wives of the deceased and they have no issues. The dispute in the appeal relates to (1) interests shown as owned by the 6th defendant Gullzar in Gulzar and Co. , Arcot, valued at about Rs. 15,000; (2)amounts credited in favour of defendants 9 to 11 in the said firm totalling about rs. 7,000 and (3) a sum of about Rs. 16,000 cash, found in the iron-safe at No. 40, Mahmood Shah bazar, Arcot, when an inventory was taken on 11-1-1955. The said house at Arcot with the movable properties therein valued at Rs. 2,000 had been gifted by the deceased to the minor Gulzar by a registered gift deed Ex. B-1 on 29-3-1951. It is the contention of the plaintiff that the amount and investment in Gulzar and Co. in the name of the sixth defendant and minor defendants 9 to 11 really belonged to the estate of the deceased, that there are mere book entries made benami and that the amounts are available for division among the legal heirs of the deceased. On behalf of the sixth defendant and defendants 9 to 11, contra, it is contended that these entries represent completed gift duly accepted on behalf of the minor, and that the said amounts belong to the respective parties and cannot be brought into the general pool for division among the heirs of the deceased. The learned Assistant City Civil Judge rejected the plaintiff's contentions, holding that there was inherent evidence in the book entries relating to the amounts, that Azamatullah relinquished his control over the moneys and divested himself completely of his beneficial interest therein and there was evidence of acceptance of the gift on behalf of the donees. As regards the acceptance of the gift on behalf of the donees, there was no difficulty so far as minor Gulzar was concerned, because the donor was her father. In regard to minor defendants 9 to 11, they had their father and the learned Judge found the validity of the gift holding that there was acceptance of the gift by Azamathulla as de facto guardian of the minors without opposition from the father of the minors who was the legal guardian. The learned City Civil Judge also upheld the contention of the sixth defendant that cash of Rs. 16,000 found in the iron-safe had also been gifted by the deceased to Gulzar.

(2.) WE shall first take up for consideration the credits in favour of minor Gulzar and minor defendants 9 to 11 in the firm of Gulzar and Co. The credits in Gulzar and Co. have come on transfer from the tannery business which Azamatullah had been carrying on. It is seen from the records that the amounts in favour of his three granddaughters, that is, defendants 9 to 11, and Gulzar on the 31st March 1959, Rs. 2,000 for each of the three granddaughters and Rs. 5,000 for his minor daughter Gulzar. Ex B-3 is the day-book of the tannery business for the year 1948-49. The entries have been made by Azamatullah himself, the deceased debiting himself a sum of Rs. 11,000 in all and crediting his daughter and the grand-daughters as aforesaid. The credits are found carried forward in the accounts of the tannery business in the subsequent years and interests is charge and credited. The partnership of Gulzar and Co. was started in December 1953 for carrying on handloom cloth and lungi business and is evidenced by the partnership deed Exhibit B-16. The partners are shown as Azamatullah in the capacity of father and guardian of his minor daughter Gulzar, and one Mir Mohideen Basha who has figured as P. W. 1. A sum of Rs. 15,000 was shown as capital contribution by Azamatullah as father and guardian of Gulzar. The credits in the names of defendants 9 to 11 and Gulzar in the tannery business with the interest accrued were transferred from the tannery business to the lungi trade. This way an amount of Rs. 2,609-1-0 was transferred from the closed tannery business to the credit of each of the grand daughters in the lungi partnership of Gulzar and Co. The amount in the name of Gulzar in the tannery business was similarly transferred to the lungi partnership in her name. A further credit of Rs. 9,000 is found in the name of gulzar as capital amount brought in through her father. The account books show proper and due adjustments of credits and debits and the credits in the names of the three grand-daughters thereafter continued in Gulzar and Co. In transferring these amounts the transfer is directly in the names of minor defendants 9 to 11 and minor Gulzar. The relative books of account of the tannery business is Ex. B 9. The first ledger of Gulzar and Co. Ex. B-11, is for the period from 9-11-1953 to 31-3-1954. As the account books stand, they clearly show that the moneys were treated as belonging absolutely to the persons in whose names they are found credited. Azamatullah, the deceased, had his own ledger page in the books of account. Mr. Mohideen Basha, a partner in Gulzar and Co. , giving evidence for the plaintiffs as P. W. 1, admits that in the accounts Gulzar was shown as a capital contributing partner and the grand-daughters were shown as creditors. So far Gulzar is concerned, P. W. 1 admits that Azamatullah was looking after the minor daughter in respect of the business. One of the reasons suggested by P. W. 1 for having these moneys benami is that Azamatullah wanted to deprive his divorced wife and her children of any property. If that be the reason, the reason given itself, negative the theory of benami. If the intention was to deprive some of the heirs of their lawful shares, it could be successfully achieved only by a real gift and not by nominal entries. If he was spiting his divorced wife by depriving her children of shares in his estate, he could not secure it better than by gifts in favour of his children by his other wives. The unequivocal and unqualified intention of azamatullah to immediately benefit his daughter, Gulzar, and his grand-daughters, defendants 9 to 12 is brought in certain declarations of the deceased himself. Exhibit B-13 is a copy of the plaint in C. S. No. 237 of 1954 on the original side of this Court, a suit instituted for dissolution of the partnership of Gulzar and Co. Azamatullah, as the father and next friend of his minor daughter Gulzar, filed the suit against the partner, P. W. 1, in the present suit. The plaint refers to the investment by the plaintiff, that is, Gulzar of Rs. 15,000 as capital and para 19 of the plaint gives a list of the persons who had invested their moneys in the firm. It is pointed out that these persons have to be paid back their moneys. In the list are shown defendants 9 to 11, the amount due to each of them being given as Rs. 2,350. Azamatullah has verified the said averments in the plaint as true to his knowledge. In the said suit, Azamatullah had also sworn to an affidavit where it is stated in specific terms that the plaintiff, that is, Gulzar, as financing partner, had invested Rs. 15,000. The declarations of the deceased Azamatullah in these proceedings are statements against his interest and clearly establish that the deceased regarded these amounts as belonging absolutely to the person in whose names they stood. They establish that so far as Azamatullah was concerned, he had completely divested himself of all his interest in the funds and had given them to his minor daughter and minor grand-daughters. The only question for consideration is whether they are valid gifts and had been completed according tot he principles of Mahomedan Law so as to pass title to the donees.

(3.) THE three essential requisites that have to be complied with for a valid gift under the Mahomedan Law are (1) a declaration of gift by the donor, (2)acceptance of the gift express or implied, by or on behalf of the donee and (3)delivery of such possession of the subject of the gift by the donor to the donees as the subject of the gift if susceptible of. Learned counsel for the appellant draws our attention to a decision in Md. Hussain v. Aisha Bai, AIR 1935 Bom 84, and submits on the authority of the decision that mere book entries in respect of money which is the subject-matter of a gift is not sufficient to support the gift. It is contended that there must be evidence to show that the donor relinquished his control over the money and divested himself completely of his beneficial interest therein so that he could not have operated on the sum if he wanted to do so. Learned counsel points out that for a valid gift under Mahomedan Law there must not only be a declaration by the donor of his intention to make the gift, but the subject of the gift must be accepted on behalf of the donee. From the resume of facts stated above, it is clear that this is not a case of gift by mere book entries only. There are clear and unequivocal declarations by the deceased of his having divested himself of all interest in the funds and of his intention of vesting of the funds in the donees. There can be no doubt that there has been a clear declaration by the donor of his intention to make the gift and we shall presently consider whether there has been such delivery of possession as the subject of the gift is capable of and whether there has been valid acceptance of the gift by or on behalf of the donees.