MARANGAMI ROWTHEN Vs. KARUPATI NAGUR MEERA LABBAI ROWTHEN

JUDGEMENT

(1.) The facts necessary for the decision of this Second Appeal may very briefly be stated. Vavukhan Rowther, a Mahomedan, had two wives. The plaintiffs are his sons by his junior wife. By his senior wife he had a son named Nagore Meeranna who died in 1906. The plaintiffs suit is to recover their share by inheritance in the property of Nagore Meeranna. They put forward two instruments; one of them was a deed of gift, under which item No. 1 of the plaint properties was claimed as belonging to Nagore Meeranna, executed by his natural grand- mother, and the other a deed of settlement executed by Vavukhan in favour of his senior wife, the 1st defendant and his son Nagore Meeranna. The defendants contended that possession was not given under the deed of gift, that it was therefore invalid and that the property therefore did not belong to Nagore Meeranna. This plea has been found against by both the Lower Courts and as there is no legal objection to that finding we must accept it in Second Appeal.

(2.) With regard to items Nos. 2 and 3 included in the deed of settlement, the plea was that they belonged to the 1st defendant Ismail Ammal herself although the document under which they were purchased was in the name of her husband, and that even if they belonged to the latter, the property belonged to herself under the settlement deed. The Lower Courts have found that the items did not belong to the 1st defendant but to Vavukhan the executant of the deed of settlement. The only question we have to deal with in Second Appeal is as to the rights created by Exhibit D. The substantial portion of the settlement deed is in these terms : "As I have given you with perfect willingness the undermentioned immoveable property worth Rs. 1,800 for the Mahar and share according to the Mahomedan Law, of Ismail Ammal, one of you and for the share of Nagore Meeranna Rowthen and as I have made you entitled thereto by Inams of this settlement deed, providing that Ismail Ammal one of you shall enjoy it during her life-time and that afterwards Nagore Meeranna Rowthen shall enjoy it from generation to generation and that you shall have no claim whatsoever to the other immoveable and moveable properties that are in my possession you shall enjoy it according to the terms mentioned above." The 1st defendant s contention is that according to the Mahomedan Law the gift in favour of Nagore Meeranna was invalid as it was of an estate in remainder and that the life estate in her own favour would operate as an absolute conveyance. The District Munsif was apparently of opinion that her contention was sound. But after coming to that conclusion he observed that "supposing both the life estate in favour of 1st defendant and vested remainder in favour of her son are void, the document must be treated to have conferred an absolute right on both," relying on the words "I give the property to you both." He held that the instrument must be treated not as a simple gift or Hiba but as a sale, as it was made in consideration of the rights of Mahar and inheritance of the donees, and that the 1st defendant and her son took as tenants-in-common absolutely and the plaintiffs would be entitled to their share of Nagore Meeranna s half share.

(3.) On Appeal the District Judge held that Exhibit D must be treated as a sale and that although the release by Nagore Meeranna of his right of inheritance to the remainder of Vavakhan s properties could not be construed as a valid consideration the dower due to Ismail Ammal was sufficient consideration in law for the conveyance both to her and to her son.