MT ABBASUNNISA Vs. MTNISAR FATMA

JUDGEMENT

(1.) The plaintiffs, the widow and the daughters of Syed Imtiaz Husain, who died on 31 January 1988, filed this suit for possession of certain properties in villages Karari and Hasanpur on the allegation that the properties in suit belonged to Imtiaz Husain. On the death of Imtiaz Husain they had filed an application for mutation of their names, but certain objections were filed by the defendant, Mt. Abbasunnissa Bibi, sister of Imtiaz Husain and Mt. Khatamunnisa Bibi, mother of Imtiaz Hussain and the objections were allowed by the revenue Court; hence the suit. Mt. Abbasunnisa Bibi in her written statement pleaded that the property in suit did not belong to Imtiaz Husain but to Akbar Husain, father of Imtiaz Husain and Abbasunnisa Bibi. On the death of Akbar Husain about the year 1924 his property was inherited by his widow, Khatamunnissa Bibi, and his son and daughter, Imtiaz Husain and Abbasunnisa Bibi. The parties are Shia Mahomedans and their shares were as laid down in the Shia law. According to the defendant, the parties were in possession of their respective shares, though the entire property was being managed by Imtiaa Husain who was the only male member of the family and he was realising the entire rent. It was pleaded by the defendant that on 7 September 1929 Imtiaz Husain got from the defendant as well as from Khatamunnisa Bibi, their mother, two documents which were deeds of gift. According to the defendant, she and her mother did not know that they were deeds of gift and their signatures were obtained on the two deeds on the representation that they were needed merely for purposes of facility of management, as there was some trouble in the year 1929 in realisation of rent from the tenants, due to movements started for non-payment of rent. That Imtiaz Husain, however, continued to pay her and her mother their share of the rent and in the year 1937 just before his death on 3l December, he made an oral gift by which he returned the property. Imtiaz Husain had a stroke of paralysis on 30th December 1937. On 12 January 1938 he had a second stroke and on 31st January 1938 he died. Mt. Khatamunnisa Bibi survived him and she died on some date in the year 1939.

(2.) The learned Munsif in a very careful judgment went through the evidence and the circumstances and accepted the. defendant's case both as regards the first two gifts of 7 September 1929 and the second gift dated 3lat December 1937 and dismissed the plain-tiffs suit. The plaintiffs appealed. The lower appellate Court allowed the appeal, set aside the decree of the trial Court and decreed the plaintiffs suit. The defendant has filed this second appeal. It is argued on behalf of the defendant that the two gifts dated 7 September 1929 were said to have been executed by furdahnashin ladies in favour of Syed Imtiaz Husain who was the brother of one and the son of the other and thus stood in a position of fiduciary relationship to them. It is said that the lower appellate Court did not appreciate the law relating to purdahnashin women and failed to record the necessary findings which could justify its setting aside the decree of the trial Court. According to learned Counsel it was not only necessary for the plaintiffs to prove due and proper execution of the deeds of gift but it was further necessary to prove that the ladies had received independent advice. On behalf of the plaintiffs it is urged that the finding recorded by the Court below that the gift deeds were executed by the defendant and her mother intelligently after having fully understood their contents was enough to dispose of the case in favour of the plaintiffs and that under the law it I was not necessary to consider whether the donors had any independent advice. It was I further pleaded that it was clear from the I statement of Eamzan Husain, defendant's I witness, that Mohammad Halim, Mukhtar, was consulted.

(3.) It is not disputed now that the property I in suit belonged to Akbar Husain and; on his death, his widow Mt. Khatamunnisa had I a share in the property and that the rest of I the property went to his son and daughter, I the son getting a share twice as big as the I daughter. It is further not denied that Imtiaz Husain was managing the property on behalf of the two ladies before the alleged I gift- deeds dated 7 September 1929. There I is no mention made of the gifts in the plaint I and there is, therefore, no explanation given in the plaint, nor is there any reason given by the witnesses for the plaintiffs, so far as have been able to find out, why the I donors gave away their entire inheritance to Imtiaz Husain. The defendant's case was that the deeds were executed for facility of management and the executants never understood that they were parting with their title to the property. It was further the defendant's case that she was, as a matter of fact,. receiving benefit from this property inasmuch as her share of the profits was given to her by Imtiaz Husain and was later sent to her son to help him in his education in a a college at Allahabad. The lower Court has not entirely disbelieved this case of the defendant that Imtiaz Husain was helping the defendant's son at Allahabad, but it has said that it was on grounds of charity because he was the maternal uncle. The trial Court relied on various decisions of this Court and of the Privy Council and held that in view of the fact that Imtiaz Husain was a person who was in a position of fiduciary relationship to the defendant and to his mother, it was necessary for the plaintiffs to prove that they had received independent advice. That it was absolutely necessary for the plaintiffs to explain the origin of the transactions and to tell the Court how the defendant was actuated with the desire to benefit her brother when she had a family of her own to support and look after. The lower appellate Court, however, did not approach the case, from that point of view at all. Though the plaintiffs have given no explanation for the gifts the lower Court in its judgment has said that it would have been difficult for the defendant to manage her small share from the village where she was residing with her husband and, therefore, she made the best use of her share, i.e., gave it away to her brother. Learned Counsel has argued that the findings recorded by the Court below are legally insufficient to prove the validity of the gifts.