Topic: Shaik Nurbi vs Pathan Mastanbi And Ors

Shaik Nurbi vs Pathan Mastanbi And Ors
Equivalent citations: 2004 (3) ALD 719, 2004 (4) ALT 624 - Bench: E D Rao - 23 March, 2004

JUDGMENT

Elipe Dharma Rao, J.

1. This second appeal is filed by the unsuccessful plaintiff who lost before both the Courts below.

2. The point for consideration in this second appeal is whether the gift made by late Alikhan bequeathing entire property in favour of the defendants is valid and binding on the plaintiff?

3. In order to appreciate the question, it is necessary to notice the facts of the case. The parties are referred to herein as they are arrayed in the suit.

4. The plaintiff is the daughter of Pathan Alikhan who died intestate on 16-10-1981. First defendant is his wife 'and Defendants 2 to 5 are sons and Defendants 6 and 7 are his daughters. The plaintiff was born through the first wife of Alikhan namely, Tara Bi. Defendants 2 to 7 are the children born through his second wife, first defendant. The suit schedule properties belonged to Alikhan. After his death, first defendant is managing the properties. First defendant accounted for mesne profits only for one year and thereafter no accounts were maintained. Therefore, the plaintiff demanded for partition of the suit schedule properties. In spite of several demands, first defendant did not partition the properties. Hence, the plaintiff filed the suit for partition and to allot 7/88 share to her.

5. First defendant filed her written statement while Defendants 2 to 7 filed a memo adopting the same. It is stated that the mother of the plaintiff died in the year 1965. After her death, Alikhan married first defendant. The plaintiff was married at a very young age. Her marriage was performed with the sister's son of Alikhan. The plaintiff could not be sent to her husband as he was living with a Christian woman. The plaintiffs husband used to harass her for getting property from her father. The property located near K.T. Road was given to the plaintiff. Alikhan and the defendants lived in Item No. 1 house. During his lifetime, Alikhan made a oral gift bequeathing the suit schedule properties i.e., two-storeyed house and agricultural land, in favour of the defendants, in the presence of Pathan Allabaksh and Syed Abdul Majid. First defendant accepted the gift on her behalf and on behalf of her minor children. Thus, they became absolute owners and possessors of the suit schedule properties. The plaintiff never claimed any right in the suit schedule properties and she was not in joint possession of the same.

6. On the basis of the above pleadings, the Trial Court has settled the following issues for trial.

1. Whether the plaintiff is entitled for partition and allotment of 7 shares out of 88 shares of the plaint schedule properties?

2. Whether the plaintiff is entitled for mesne profits on the plaint schedule properties from 1982 onwards till the time of allotment and delivery of the properties?

3. To what relief ?

7. The plaintiff herself was examined as P.W.1 besides examining P.Ws.2 and 3. P.W.2 is one Abdul Faziz and P.W.3 is the husband of the plaintiff. She marked Exs.A1 and A2 - registration extracts of the suit schedule properties standing in the name of Alikhan. First defendant examined herself as D.W.1 and also examined D.Ws.2 to 4 and marked Exs.Bl to B14.

8. Before the Trial Court, it was the case of the plaintiff that Alikhan died on 16-10-1981 leaving behind the plaintiff and the defendants, that after the death of Alikhan, plaintiff and defendants were in joint possession of the suit schedule properties, that first defendant was managing the suit schedule properties, but was not accounting for mesne profits, and, therefore, she filed the suit for partition claiming 7/88th share. The suit was contested by the defendants contending that late Alikhan made a oral gift one month prior to his death bequeathing the suit schedule properties in their favour and, therefore, the plaintiff is not entitled for any share in them.

9. On Issue No. 1, the Trial Court, after considering the evidence on record, and also Section 135 of Mohammedan Law on the point of gift (hiba), observed that the evidence of DWs.1 to 4 clearly goes to establish that Alikhan made a declaration that he is gifting away the plaint schedule properties in favour of his wife (first defendant) and his minor children (Defendants 2 to 7) and in pursuance of acceptance of the gift, first defendant has been in possession of the suit schedule properties and, therefore, the ingredients of gift have been satisfied and accordingly the oral gift made by Alikhan in favour of the defendants is valid. The contention of the plaintiff that even assuming that the gift is true, it is not valid beyond 1/3rd of the estate, was also negatived by the Trial Court on the ground that such plea was not taken by the plaintiff in the pleadings and this point was canvassed only at the time of arguments. Holding thus, the Trial Court dismissed the suit of the plaintiff for partition. Aggrieved by the same, the plaintiff carried the matter in appeal before the II Additional Senior Civil Judge, Vijayawada.

10. It was contended by the plaintiff before the first appellate Court that even if the alleged gift is true, it is valid only to the extent of 1/3rd share of the properties as it was a death-bed gift. On the other hand, the defendants contended that the gift cannot be termed as death-bed gift as the donor (Alikhan) was suffering from Tuberculosis for a considerable long time and, therefore, the gift made prior to one month before his death is valid and binding on the plaintiff.

11. The learned Senior Civil Judge pointed out that the plaintiff herself, in her cross-examination, stated that her father was suffering from Tuberculosis for about two-three years prior to his death. Taking this into consideration, the learned Senior Civil Judge held that the disputed gift cannot be termed as made during marz-ul-mout (death illness) since Alikhan was suffering from Tuberculosis for a long time and there was no immediate apprehension of death in his mind. The first appellate Court also observed that physical possession of the defendants over the suit schedule properties is not necessary as the donor and donee were living together in Item No. l house at the time of making the gift. The lower appellate Court also held that the plaintiff had knowledge about the gift made in favour of the defendants and she had kept quiet for about three years before filing the suit and this circumstance probabilises that there was no demand from her to partition the properties. The learned Senior Civil Judge further held that. the defendants acted upon the gift and got their names mutated in the concerned records and, therefore, established the oral gift. Holding so, the learned Senior Civil Judge confirmed the judgment of the Trial Court and dismissed the appeal. Hence, this second appeal.

12. Learned Counsel for the appellant-plaintiff, Mrs. G. Jyothi Kiran, reiterated the same grounds as urged before the Courts below. She contends that the gift in respect of the entire property in favour of the defendants is void as the donor can gift only to the extent of 1/3rd of his estate during death illness period according to Section 135 of Mohammdan Law. She submits that the gift was not valid as there was no consent from all the legal heirs of Alikhan. She also contends that late Alikhan did not specify the individual shares of the defendants and, therefore, the gift is not valid. She further contends that both the Courts below erred in rejecting the contention that the gift beyond l/3rd of the estate is invalid on the ground that the said plea was not taken in the pleadings. She submits that plea on any established or settled law can be raised at any point of time even without filing rejoinder or any petition to amend the plaint. In support of her contention, she placed reliance on the judgments of the Supreme Court in Kedar Lal v. Hari Lal, , Subhanrao v. Patankar v. Masu Daju Pote, , Ram Sarup Gupta v.

Bishun Narain Inter College, , State of U.P. v. Anupam Gupta, and Bhanwar Lal v. T.K.A. Abdul Karim,

.

13. On the other hand, Sri Potti Venkata Ramana Rao, learned Counsel for the respondents submits that the gift made by late Alikhan cannot be termed as death-bed gift as there was no apprehension of immediate death in the mind of Alikhan. He submits that Alikhan was suffering from Tuberculosis for about two-three years prior to his death and, therefore, there was no imminent death. The plaintiff is not entitled to claim any share in the suit schedule properties, as she was given valuable house property during the lifetime of Alikhan. He contends that the plaintiff had knowledge about the gift made in favour of the defendants and she had kept quiet for about three years and at the instance of her husband filed the suit for partition. He also contends that the plaintiff cannot be permitted to take the plea that gift before 1/3rd of the estate is not valid at the time of arguments. In support of his contentions, he placed reliance on the judgment of the Privy Council in Atta Md. v. Emperor, AIR 1930 PC 57 (1), and the judgments of the Supreme Court Abubakar Abdul Inamdar v. Harun Abdul Inamdar, , and Bondar Singh v. Nihal Singh,

, for the proposition that when no plea is taken in the pleadings, no evidence can be looked into in relation thereto. He also placed reliance on the judgments of the Supreme Court in Trojan & Co. v. Nagappa, , and H.D. Vashishta v. Glaxo

Laboratories, , in support of his contention that

where there is no pleading, no relief can be granted. For the proposition that the plaintiff cannot give up the case set out in the pleadings and propound a new and different case, the learned Counsel placed reliance on the judgments of the Supreme Court in Chapsibhai v. Purushottam, , Bhim Singh v. Kan Singh,

, and Vinod Kumar v. Surjit Kaur, .

He also submits that the plaintiff failed to prove that the gift made in favour of the defendants is invalid and alternatively she contends that gift beyond l/3rd estate cannot be made. The plaintiff has to succeed on the strength of her own case and cannot be permitted to take a different plea. For this proposition, he placed reliance on the judgment of the Calcutta High Court in State v. Subimal Kumar, . He also submits that according to Section 135 of

Mohammedan Law, three conditions have to be satisfied to establish Marz-ul-Maut, which are - (1) proximate danger of death, so that there is a preponderance of apprehension of death; (2) some degree of subjective apprehension of death in the mind of the sick person and (3) some external indicia, chief among which would be inability to attend to ordinary avocations. These three conditions are lacking in this case to term the gift made by Alikhan as death-bed gift, in that, Alikhan was suffering from Tuberculosis for the last about two-three years before his death and there is no proximate danger of death or apprehension of death in his mind. Therefore, the gift cannot be termed as Marz-ul-maut. He placed reliance on the judgments reported in Bhagbhari v. Khatun, AIR 1921 Sind 177, Mt. Zamro v. Sher Mohammad, AIR 1934 Peshawar 91 and Jafar Ali v. Nasimannessa Bibi, AIR 1937 Cal. 500.

14. First, I may refer to the judgments relied on by the learned Counsel for the appellant.

15. In Subhanrao v. Patankar v. Masu Daju Pole (supra), the Supreme Court was dealing with a case where the appellants had raised a contention before the Supreme Court that the sub-tenancy was illegal and hence the first respondent was not entitled to protection from eviction. The Supreme Court permitted the appellants to raise such contention observing that fairness and justice demand that an opportunity should be given to the first respondent to meet this contention which has been raised for the first time on behalf of the appellants.

16. In Kedar Lal v. Hari Lal (supra), the Supreme Court observed that "the Court would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs".

17. In Ram Sarup Gupta v. Bishun Narain Inter College (supra), the Apex Court held that "it is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities."

18. However, in this case, there was no pleading by the plaintiff that the gift made by Alikhan in favour of the defendants was death-bed gift and, therefore, gift beyond 1/3rd of the estate is invalid. The plaintiff failed to establish that the gift was invalid. It is only at the time of arguments, the plaintiff came forward with such a plea that gift beyond 1/3rd of the estate is invalid.

19. In State of U.P. v. Anupam Gupta (supra), the Supreme Court was dealing with the validity of the prescription of 50% minimum marks eligibility criteria for admission to P.G. Medical course. A contention was raised before the Supreme Court that the note inviting applications for the entrance examination did not say that 50% minimum marks in the entrance examination as a condition for admission into the postgraduation. The Supreme Court observed that though it was never raised, nor argued, since it is a pure question of law arises from record, it can be gone into.

20. In Bhanwar Lal v. T.K.A. Abdul Karim (supra), the Supreme Court observed that "even if we assume for the purposes of this judgment that an argument on a point of law can be canvassed for the first time in this Court provided the factual foundation for it exists on the record, we cannot entertain this argument on a point of law for the factual foundation for it does not exist on the record."

21. Now I may refer to the judgments relied on by the learned Counsel for the respondents.

22. In Bondar Singh v. Nihal Singh (supra), the Supreme Court observed that "it is settled law that in the absence of a plea no amount of evidence led in relation thereto can be looked into."

23. In this case, as already noticed, the plaintiff did not take the plea that the gift beyond l/3rd of the estate is not valid as it is a death-bed gift. Therefore, she is not entitled to take such plea at the time of arguments.

24. In Abubakar Abdul Inamdar v. Harun Abdul Inamdar (supra), the Supreme Court observed that when the plea of adverse possession was not raised in the pleadings, no amount of proof can substitute the pleadings which are the foundation of a claim of a litigating party.

25. In Atta Md. v. Emperor (supra), the Privy Council observed that no amount of evidence can be looked into upon a plea which was never put forward.

26. In Trojan & Co. v. Nagappa (supra), the Supreme Court held that "it is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."

27. In H.D. Vashishta v. Glaxo Laboratories (supra), the Supreme Court observed that "in a suit for setting aside dismissal of an employee as illegal and contrary to the Standing Orders applicable to the industry, the material facts necessary to constitute a cause of action about the illegality of the dismissal had not been averred in the plaint. There was no averment to the effect that the past record of the worker had not been considered while making the order of dismissal. On this alone the suit must fail."

28. In Vinod Kumar v. Surjit Kaur (supra), the Supreme Court held that "the pleadings of the parties form the foundation of their case and it is not open to mem to give up the case set out in the pleadings and propound a new and different case."

29. In Chapsibhai v. Purushottam (supra), the Supreme Court observed that "parties to a suit, are, it is true, entitled to make contradictory pleas in the alternative in their pleadings. But at the stage of the evidence, no serious attempt was made by the appellant to establish accession by adverse possession. On the contrary, the appellant sought to make out a case of easementary rights by prescription, a case incompatible with the claim of adverse possession where a party claims title over the land of another as his own and therefore there would be no dominant tenement claiming a right by prescription over a servient tenement. In this state of the evidence the Letters Patent Bench, in our judgment, was right in rejecting the claim of accession which the learned Single Judge had erroneously accepted."

30. In Bhim Singh v. Kan Singh (supra), the Supreme Court referred to its earlier decision in Bhagwati Prasad v. Chandramaul, , wherein it was observed:

"There can be no doubt that if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new......"

31. In State v. Subimal Kumar (supra), the Calcutta High Court held that it is for the plairitiff to prove his case because the principle of law is that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant's version.

32. In Bhagbhari v. Khatun (supra), the Sind High Court considered the effect of a divorce in death-illness or Marz-ul-maut and following the leading case on the subject in Sarabai v. Rabiabai, (1906) 30 Bom,537 and held that three conditions must be present to establish Marz-ul-maut, which were already referred to hereinabove.

33. In Jafar Ali v. Nasimannessa Bibi (supra), the Apex Court held that "if an illness is prolonged or lingering as in the case of consumption or phthisis, so as to remove the apprehension of immediate fatality or to accustom the patient to the malady, so much so that it becomes a part of his physical system, it will not be marulmaut; and the executant of a deed could not be held to be under an apprehension of death on the day he executed the same, and that the mere fact that he was suffering from phthisis or that he died a few days after was not enough to warrant the application of doctrine of marzulmaut."

34. In Mt. Zamro v. Sher Mohammad (supra), the Peshawar High Court went to the extent of observing that a Pathan can gift away his property to anyone he likes. It was further observed as follows.

"On the whole therefore I am of opinion that there are no indications that Sarbiland was actually in apprehension of death when he executed the document now before me. I therefore hold that the deed is that of gift and is not a will. There is no doubt whatsoever that a Pathan can gift away his property to anyone he likes, and in fact this position has not been seriously controverted in the Courts below."

35. Placing reliance on the above decisions, learned Counsel for the respondents submits that in the present case, the plea of Section 135 of Mohammedan Law is raised for the first time during the course of arguments and the defendants are not aware of the substance of the pleadings and the Court has rightly found that the plaintiff has not adduced the evidence. Therefore, there is no sufficient evidence in the present case as held by the Trial Court, the ruling of the Supreme Court cannot be applied to the facts and circumstances of the case.

36. With regard to the judgment in Subhanrao v. Patankar v. Masu Daji Pote (supra), learned Counsel for the respondents submits that this judgment was rendered under Article 136 of the Constitution of India and the Supreme Court has got wide powers to grant the relief as prayed for. This present appeal is filed under Section 100 of the Code of Civil Procedure, and, therefore, the enquiry is very limited, more so, to the substantial question of law. Moreover, the Supreme Court after coming to a conclusion that plea was raised under Section 27 of the Bombay Tenancy and Agricultural Lands Act and fairness and justice demand that an opportunity should be given to the first respondent therein to meet his contention which has been raised for the first time on behalf of the appellants, the matter was remitted back to the Revenue Tribunal.

37. In this case, it is not the plea of the appellant to remit the matter for reconsideration by the Trial Court. No suggestion is made by the learned Counsel for the appellant based on the above said judgment to remit the matter for reconsideration by the Trial Court.

38. With regard to the judgment in State of U.P. v. Anupam Gupta (supra), learned Counsel for the respondents submits that the matter purely arose under Article 226 of Constitution of India. It is settled principle of law that enquiry under Section 100 C.P.C. is limited. Moreover, the Supreme Court held that a new plea which is purely a question of law arising from the record can be considered for the first time in appeal.

39. From the above stated facts and circumstances, the learned Counsel for the respondents submits that a reading of the Supreme Court decision relied on by the learned Counsel for the appellant cannot be applied to the facts and circumstances of the case. Both the Courts on consideration of both oral and documentary evidence, observed that the respondents-defendants have established their case by oral and documentary evidence and that by virtue of settlement in 1975 plaintiff was given valuable property and subsequently after the death of her mother the Defendant No. l was married as a second wife and the plaintiff never lived with the defendants, and her father. Therefore, the question of joint claim of possession of the property does not arise. He also submits that there is no proximate danger of death so that there is a preponderance of apprehension of death and these conditions have not been satisfied to term the gift as death-bed gift.

40. In reply to the decision of the Supreme Court in Kedar Lal v. Hari Lal (supra), learned Counsel for the respondents submits that on the facts set out by the plaintiff, the Supreme Court came to a conclusion that it is evident that he is entitled to contribution, but the method of computation is a matter of law, it is for the Judges to apply the law to the facts stated and give the plaintiff such relief as is appropriate to the case. But to apply Section 135 of the Mohammedan Law to the facts and circumstances of this case and to prove the gift as invalid, the plaintiff has to satisfy three conditions. On appreciation of evidence, the Trial Court came to a conclusion that the plaintiff has not adduced any substantial evidence to disprove the execution of the gift deed.

41. In reply to the decisions relied on by the Counsel for the respondent, it is submitted by the learned Counsel for the appellant that having regard to the judgment of the Supreme Court in Ram Sarup Gupta v. Bishun Narain Inter College (supra), it is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about the lack of pleadings is raised, the enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case proceeded to trial of those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. Further, if the pleading is based on the record it has to be allowed to be raised. Even in the absence of pleadings in the plaint and if it is purely pleading based on record, it is for the Court to give relief if such relief is appropriate to the case.

42. On the other hand, it is the contention of the learned Counsel for respondents that if there is no plea in the plaint, no issue can be framed and the evidence in relation thereto cannot be looked into. He also contends that no evidence was adduced by the plaintiff to prove the gift as death-bed gift. As held by the Supreme Court in Abubakar Abdul Inamdar v. Harun Abdul Inamdar (supra), no amount of proof can substitute pleadings which are the foundation of claim when no such plea was raised.

43. Learned Counsel for the respondents further submits that even though some evidence was adduced in relation to a pleading, as held by the Supreme Court in Trojan & Co. v. Nagappa (supra), the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case.

44. There is no averment in the plaint to the effect that the oral gift deed is not in accordance with Section 135 of Mohammedan Law. Therefore, as held by the Supreme Court, no amount of evidence can be looked into. The plaintiff cannot give up the case set out in the pleadings and propound a new and different case. During the course of arguments, no adverse and contrary pleas in the alternative cannot be made. It is for the plaintiff to prove her case. The principle of law is that the plaintiff has to succeed on the strength of his own case and not on the weakness of the defendant's version.

45. From the above discussion, it is clear that it is settled principle of law that even for raising new plea on the basis of provision of law it must have its foundation in the pleadings and in the absence of pleading in the plaint even though evidence is adduced by the party it cannot be looked into for the reason that opposite party could not have any opportunity to contradict the above said pleading. When a pleading is raised in the plaint, the plaintiff has to adduce evidence in support of it. If the Court accepts the new plea based on a legal provision of law to meet the fair plea and to give an opportunity to the opposite party the matter has to be remitted to the original Court for a fair re-trial of the matter to give an opportunity to the opposite party.

46. Considering the facts and circumstances of the case, relying on the latest judgment of the Supreme Court reported in Bondar Singh v. Nihal Singh, wherein it was held that in the absence of pleadings in written statement on a issue no evidence can be looked into in relation thereto and following the judgment of a three-Judge Bench in H.D. Vashishta v. Glaxo Laboratories, wherein it was held mat there must be an averment in the plaint and material facts necessary to constitute a cause of action and a new plea, cannot be taken without a factual foundation in the pleadings supported by evidence. Therefore, I am not able to appreciate the submissions made by the learned Counsel for the appellant that the legal plea can be raised at any time of the case and it is for the Court to grant relief in appreciation of the material placed on record and evidence.

47. From the above discussion I hold that an oral gift deed was executed as pleaded by the defendants and that the said oral gift was executed in a sound and disposing state of mind and it is valid. The principles laid down in Section 135 of the Mahomedan Law envisage that a gift made by a Mohammedan during marz-ul-maut or death-illness cannot take effect beyond one-third of his estate after payment of burial expenses and debts, unless the heirs give their consent, after the death of the donor, to the excess taking effect; nor can such a gift take effect if made in favour of an heir unless the other heirs consent thereto after the donor's death. As stated earlier, under Section 135 of Mohammedan Law, three conditions have to be satisfied to establish marz-ul-maut viz., (1) proximate danger of death so that there is a preponderance of apprehension of death (2) some degree of subjective apprehension of death in the mind of the sick person (3) and some external indicia, principal among which would be inability to attend to ordinary avocations. Therefore, applying these principles to the facts and circumstances of the case, I am satisfied to hold that both the Trial Court and the lower appellate Court have come to a right conclusion holding that the gift made by late Alikhan in favour of the defendants is valid. As per the evidence of the defendants Alikhan was suffering from Tuberculosis for the last two-three years before death and, therefore, is no proximate danger of death so that there is a preponderance of apprehension of death. Therefore, the oral gift made by Alikhan even though he died after one month does not amount to death- bed gift and it is valid.

48. In the result, for the above reasons, the appeal fails and is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs.