ABDUL KAREEM Vs. ZULEIKA BI

JUDGEMENT

(1.) APPELLANTS are the brother's sons and heirs of one Kadir Mohideen, who died on 16-6-1948. They filed the suit to recover possession of two shops, bearing door nos. 33 and 34, Main Road in Shalavalli village, as belonging to the estate to Kadir mohideen. The first defendant Zuleika Bi is the daughter's daughter of Kadir mohideen's sister-in-law and she claimed title to the suit shops under a gift deed, ex. A-14, dated 27-5-1945 executed by Kadir Mohideen, and also on the basis of adverse possession. There can be no doubt in this case that Kadir Mohideen executed the gift deed and intended to give the shops to the first defendant, zulaika Bi. But the trial Court found that the gift was invalid, as it was not accepted by or on behalf of the donee Zulaika Bi, and the donor Kadir Mohideen did not deliver possession of the suit shops and the lower appellate court concurred with this finding. The trail court also negatived the plea of adverse possession put forward by the first defendant Zulaika Bi, but the lower appellate court differed from that finding and dismissed the suit, Ramakrishnan, J. , who heard the second appeal, has stated that one of the crucial questions for consideration in this case is whether Hidayatullah, the father of the first defendant, zulaika Bi, had given his consent to the terms of the gift deed. He has observed that "neither of the lower courts has approached the case from this point of view to find out whether the circumstances relating to the participation of Hidayathullah in the execution of the gift deed would amount to an implied acceptance of the gift on the part of Hidayathullah. "relying on the powers conferred under Section 103, civil Procedure Code, the learned Judge considered the evidence in this case and found that in the arrangement made in the gift deed by Kadir Mohideen, he had the full concurrence of Hidayathullah, the natural guardian of the then minor zulaika Bi, and that this was sufficient to support a finding that there was implied acceptance of the gift by the natural guardian of the minor on her behalf. He found that there were sufficient circumstances to constitute a valid delivery of possession of the suit shops in pursuance of the gift deed and upheld the gift. He also accepted the finding of the lower appellate court that the suit is barred by limitation.

(2.) EX. A-14 is the gift deed executed by Kadir Mohideen in favour of the first defendant, Zuleika Bi, who was then 9 years old. It is clear from the recitals in the document that Kadir Mohideen brought up his wife's sister's daughter Fathima Bi, the mother of the first defendant. Even at the time of the marriage of Fathima Bi, to Hidayathullah, Kadir Mohideen had promised to help her to the extent of his means and it was in pursuance of the same, he has purported to execute the gift deed, Ex. A-14. Both the trial court and the appellate court have found the gift to be true and that Kadir Mohideen intended to give the suit shops to the first defendant. Kadir Mohideen was divided from his only brother Abdul Kadir Rowther, the father of the plaintiff-appellants, and there is no dispute that he is the owner of the properties covered by the gift deed. Ramakrishnan, J. , has rightly pointed out that there was a certain amount of hard swearing by witnesses on both sides and that a part of their evidence suffered from inconsistencies. Thus the second plaintiff Mohamed Ali (P. W. 1) went to the extent of stating in his chief examination that his father was not divided from the deceased Kadir Mohideen. But he had to admit the fact when he was confronted in cross-examination with the partition deed Ex. A-2 dated 21-10-1927.

(3.) THE appellants put forward a fantastic and unacceptable case that after registering the gift deed, Kadir Mohideen gave it to his sister. The contrary version of the first defendant that the gift deed was handed over to her father hidayathullah (D. W. 2) and that he kept it in the box of Kadir Mohideen did not also favourably impress the trial court, or the appellate court. It is clear from the scored out portion of Ex. A-14 that Kadir Mohideen originally intended to execute the gift deed in favour of the first defendant Zulaika Bi, represented by her father and guardian Hidayatullah. But he has subsequently scored out the aid recitals and constituted himself as the guardian of Zulaika Bi. It is true that the evidence does not make it clear why he did so and it is not possible to speculate about it. It may be that as Fathima Bi was dead and Hidayathullah had married another wife and was living separately, Kadir Mohideen changed his mind at the time of the execution of the gift deed. Having regard to the terms of the gift deed there is nothing unnatural in Kadir Mohideen keeping the gift deed in his custody, D. W. 2, hidayathullah attempted to prove that he was collecting rents from the suit shops even during the lifetime of Kadir Mohideen. But this was also not accepted by the trial Court, or the appellate court, having regard to the entries in the account book kept by Kadir Mohideen. The collection of rent by Kadir Mohideen is consistent also with the recitals in Ex. A. 14 that Kadir Mohideen had constituted himself as the guardian of the first defendant Zuleika Bi and delivered possession to the first defendant Zuleika Bi represented by himself as guardian. Both the trial Court and the appellate Court found that it was only Kadir Mohideen who collected rents from the two tenants of the two suits shops so long as he was alive and not D. W. 2 hidayatullah. But the trial Court and the appellate Court have erred in throwing the burden on the first defendant to prove that the income from the shops was spent by Kadir Mohideen for her maintenance. Thus the Appellate Court has observed in paragraph 19 of its judgment that there is no evidence at all to show that the income was spent for the maintenance of the minor and that on the other hand, the case of the defendants ''is that she was throughout being maintained by kadir Mohideen''. The suit is for declaration of the plaintiffs' title to the suit properties and for recovery of possession of the same from the defendants with future mesne profits. It is clear from the evidence in this case that within a few days after the death of Kadir Mohideen, D. W. 2 Hidayatullah took possession of the suit shops as the guardian of the first defendant, who was then a minor. The first defendant is now in possession of the suit shops by virtue of the gift in her favour. The donor Kadir Mohideen has described himself in the gift deed as the grandfather and guardian of the first defendant and he has stated that possession of the suit shops has been delivered to the donee. Hence it is not reasonable to presume that Kadir Mohideen who was in a fiduciary capacity as de facto guardian of the first defendant, Zulaika Bi, committed breach of trust by utilising the income from the shops for his own purposes. It is more reasonable to presume that he spent the income from the shops for the maintenance of the first defendant zuleika Bi. It is true the registry of the shops in the Municipal records continued in the name of Kadir Mohideen. It is true as found by Ramakrishnan, J. , and the lower Courts that a clumsy attempt was made by the defendants to tamper with the Municipal registry for these shops and to make out that even in 1947, before kadir Mohideen's death the registry was changed to the minor's name. There can be no doubt that the registry has been changed only on 10th July, 1948, that is within a month after Kadir Mohideen's death. It is on account of the above circumstances and the Privy Council decision in Musa Miya v. Kadar Bux, 55 Ind app 171 = (AIR 1928 PC 108) that the trial Court as well as the Appellate Court found that the gift deed Ex. A-14 though true, was not valid.