JAMEELA BEEVI Vs. SHEIK ISMAIL

JUDGEMENT

(1.) The unsuccessful appellants in A.S. No. 755 of 1969 have preferred the above Letters Patent Appeal. One Sheik Ismail filed a suit for partition and separate possession of his share in B, C and D schedule properties. The short case of the plaintiff was that he is the eldest son of Shamsuddin and the first defendant in O.S. No. 38 of 1960 is his sister. Defendants 2 and 3 are the sons of first defendant. Shamsuddin had another son by name Abdul Khader who died in the year 1964 and the 4th defendant is the wife of the said Abdul Khader. The plaintiff's mother Hussain Beevi wife of Shamsuddin dies in the year 1962. According to the plaintiff B schedule properties belong to his mother and he is entitled to a 3/10 share in those properties. His further case was that C and D schedule properties are family properties and he is entitled to a share in the said properties. His further case was that Shamsuddin has executed two documents, under Exs. B-7 and B-10 in the year 1966 without the consent of the other shares and the said two settlement deeds are not valid and binding on him.

(2.) Therefore, he claims a share in the properties. Defendants 1 to 3 contended that the plaintiff is not entitled to any share in the properties except in item 3 of B schedule. They also disputed the share of the plaintiff. Inter alia, these defendants contended that by a settlement deed under Ex. B-7, dated 10-11966, Shamsuddin has settled the first item of C schedule properties to defendants 1 to 3, reserving to himself only the income therefrom for his life. They also contended that item 2 in C schedule has been settled by Shamsuddin on the second defendant by a deed dated 10-6-1966 and possession was given to the second defendant. Therefore they contended that the plaintiff cannot claim any share in the C schedule property. We are not concerned with the remaining facts of the case. The trial Court on going through the documents and also the oral evidence, held that the plaintiff is entitled to a share in item 3 of B schedule and item 1 in C schedule. He has also granted a decree for a sum of Rs. 307/- towards 2/3rd share of the plaintiff with respect to the movables in D schedule, and directed the plaintiff to pay a sum of Rs. 3,910/-, to defendants 1 to 3 towards the debts payable by his father and left by him at the time of his death. The learned trial Judge has also directed the plaintiff to pay a sum of Rs. 667/- to defendants 1 to 3 payable by the plaintiff towards his share with respect to the funeral expense of his father Shamsuddin. It is against this Judgment and decree in O.S. No. 38 of 1968, defendants 1 to 3 preferred A.S. No. 755 of 1969 to this Court. The main contention and attack of defendants 1 to 3 in A.S. No. 755 of 1969 to the trial Court decree was that the trial Court erred in granting a decree with respect to item 1 of C schedule property in favour of the plaintiff. Let us see what is C schedule property an under what instrument the plaintiff claims that he is entitled to a share in that property. Shamsuddin who is the father of the first defendant and grandfather of defendants 2 and 3 has executed a settlement deed Ex. B-7 dated 10-1-1966 in favour of the first defendant. Item 1 of this settlement deed is a rice mill, item 2 is a trust property wherein certain directions are given for the performance of certain fathias from and out of the income of the said item. Item 3 is a house property in which Shamsuddin claims a share in item 1 of the C schedule property. As far as item 3 of C schedule is concerned, there is no dispute and nothing has been argued before N. S. Ramaswami, J. who heard the appeal A.S. No. 755 of 1969. The main contention of defendants 1 to 3 who are the appellant before us and who were the appellants in A.S. No. 755 of 1969 is that the plaintiff is not entitled to a share in item 1 of C schedule because, under the settlement deed Ex. B-7, the disposition was in favour of Shamsuddin so long as he was alive and subsequent life estate in favour of the fist defendant and ultimately the property goes to defendants 2 and 3. According to the appellants, such a settlement is valid and binding on the plaintiff and the decree granted by the trial Court to the plaintiff with respect to this item is illegal and invalid.

(3.) When the appeal was heard by N. S. Ramaswami, J. it was erroneously argued on behalf of defendants 1 to 3 that Ex. B-7 is a gift deed. The donor, Shamsuddin, has given and gifted item 3, the house property, under the same deed and therefore it has to be presumed that item 1 of the C schedule as also been gifted to the first defendant. The learned counsel presuming that Ex. B-7 is a gift deed, argued that a valid gift has been granted to defendants 1 to 3 and therefore the plaintiff is not entitled to a share in item 1 of C schedule property. N. S. Ramaswami, J. on the basis of the arguments of the appellants' counsel held that the document Ex. B-7 is a gift in future and not a gift in praesenti and therefore the said document with respect to item 1 is invalid. According to the learned Judge, the donor has clearly stated in Ex. B-7, that as far as item 1 of the C schedule is concerned, after the donor's lifetime, his daughter, the first defendant, should get the property and that too not corpus but only the usufruct and that corpus should be taken ultimately by the grandchildren who are defendants 2 and 3. The learned Judge held that the trial Court was right in its conclusion that the gift is only in future and as such the donor did not intend to transfer any interest in the property in praesenti. With these observations, the learned Judge (N. S. Ramaswami, J.) dismissed the appeal. It is against the dismissal of A.S. No. 755 of 1969, the above Letters Patent Appeal has been preferred.