FAKIR NYNAR MUHAMAD ROWTHER Vs. KANDASAWMY KULATAU VANDAN

JUDGEMENT

(1.) We are constrained to hold that the Lower Appellate Court has not satisfactorily determined the two main questions raised in the suit. The first question is whether the sale by the second defendant to the third defendant was nominal. That is the subject-matter of the first issue. On this there is no finding by the District Judge. The question involved in the second issue is whether the gift in favour of the plaintiff by the third defendant is valid. As to this what the Judge says is that having regard to the previous transactions between the parties it is clear that the gift was fraudulent. It is difficult to understand what the exact significance of the finding is. Supposing the sale to the third defendant was valid and effectual the property passed to her from the moment of the sale and any gift subsequently made by her of the property would be valid if it were in accordance with the provisions of the law. It does not appear to have been alleged that the third defendant made the gift in order to defraud any creditors of hers, if she had in fact any creditors to defraud. We must therefore ask the District Judge to submit fresh findings on issues Nos. 1 and 2 upon the evidence on the record.

(2.) The findings should be submitted in eight weeks, and seven days will be allowed for filing objections.

(3.) In compliance with the order contained in the above judgment, the District Judge of Coimbatore submitted the following Finding--It is difficulty to ascertain the facts accurately. But as far as I can make out they are as follows: One Fakir Nina Rowther died about 1880. He left one son who is the second defendant, a widow who is the third defendant, and 5 daughters; three of whom were born to different wives who are dead. Thus his property goes into eight shares, of which the son is entitled to two and each of the females to one. 2. On 13th June 1883, by exhibit IV, two of the daughters sold their shares to the son, and on 15 th October 1884, by exhibit V, the son and his mother sold the same two shares to the wife of the son. Another daughter seams to have sold her one share to the son; but there is not any document filed for this transaction. Thus second defendant s wife had two shares, and the second defendant himself had three shares; the widow and her daughters had three shares among them. The shares were never ascertained. 3. On 24th July 1891, by exhibit A, second defendant sold his three shares to his mother, third defendant. A month later, he executed exhibit II, dated 21st August 1891 by which he hypothecated all the property except the two shares of his wife. A suit was filed on this hypothecation, Original Suit No. 863 of 1902, The property was brought to sale and first defendant purchased something Exactly what ha got is not clear. For the decree is not clear. Apparently he got the three undivided shares belonging to second defendant; the sale certificate is dated 3rd March 1904. Meantime, third defendant; had executed exhibit VIII, dated 20th July 1899. This purports to be a deed of gift;, for three shares, to the son of second defendant. These are apparently the three shares, which were transferred under exhibit A. The grandson now sues to recover the undivided shares. 4 The High Court asks me to find whether the sale, exhibit is nominal; and whether the gift, exhibit VIII, is valid. 5. Exhibit A recites that "the sale amount Rs. 500 has been received in cash this day." The second defendant examined as defence first witness says that ha executed exhibit A to his mother for three shares and she paid him Rs. 500 at the time of the registration, Third defendant examined as defence second witness says that her son did not sell her any land and she did not pay Rs. 500; she says that the second defendant had the sale-deed in his possession and gave it to her only two months before she was examined in Court. She does not explain for what purpose the sale-deed was got up nominally. Defence third witness is the writer of exhibit A. He says that money was not paid in his presence. It does not follow, that money was never paid. Defence fourth witness is an attestor of exhibit) A. Ha says that money was not paid in his presence, but ha adds, that when he questioned second defendant why the price was low, second defendant replied that he was charging a low price because the sale was to his own anther. I think this goes to show that the transaction was real, There is no other evidence on the, point, 6. The District Munsif found that exhibit A was a genuine transaction. I see no reason to differ People wishing to sat aside a registered document must show claarly, for what reason it was got up nominally. Such evidence is entirely absent in this case. I find that the sale, exhibit A, is valid and not nominal. 7. With regard to the so-called deed of gift, I have no doubt that the third defendant registered it. Plaintiff s first witness is the karnam of the village; he attested the document and he says that the third defendant touched the pen. Third defendant now says that she executed the document under the influence of her son. Except her own statement, there is nothing to show that the son used any improper influence. He was not cross-examined on the point. If the parties had not been Muhatnmadans, I should hold that the gift was valid and binding. 8. But to make a valid gift under Muhammadan Law, it is essential that the donee should be at once put in possession. In the present case, as far as I can see, the donee had never any possession. Plaintiff s first witness the karnam, speaks of possession by defendants Nos. 3, 2 and 1, but makes no reference to any possession by plaintiff, The Munsif has referred to this matter in paragraphs 16, 17 and 18 in his judgment. I agree with him that the dead of gift is not valid under the Muhammadan law,