The above appeal has been filed by the plaintiff in the suit in O.S.No.48 of 2007 on the file of the Principal District Court, Theni. The plaintiff filed a suit in O.S.No.48 of 2007 for partition of her 3/20 share in all the suit properties and to grant a decree for permanent injunction and consequently restraining the defendants 2, 3, 5 and 6 from alienating the third item of suit property to the seventh defendant in the suit. The suit property consists of three items. The first item is a house property. The second item consists of two parts ? described as 2nd Item (a) and 2nd Item
(b). The 2nd Item (a) part consists of 14 items and (b) part consists four items. The third item is a house site measuring an extent of 2796 square feet.
2.The case of the plaintiff in the plaint are as follows: 2.1.The plaintiff is the daughter of first defendant and sister of defendants 2 and 3. The fourth defendant is the widow of plaintiff's yet another brother by name S.Ahmad Mohideen. Since the said brother is no more, his legal heirs namely his wife, 4th defendant and children-defendants 5 and 6 are impleaded in the suit. The 7th defendants is impleaded as he intended to purchase one item of suit property from other defendants. The father of plaintiff is S.V.M.Shaeed Saibu. The suit property originally belonged to S.V.M.Shaeed Saibu. The first item was gifted to him by his father one S.Velliah Rauthar on 11.08.1955. The second item of suit properties were purchased by plaintiff's father out of his own funds. Though the plaintiff's father died on 29.11.1968, the third item of suit property was purchased in the year 1972 by the savings of the plaintiff's father. The plaintiff's father and the first defendant have four children ? the plaintiff, defendants 2 and 3 and the husband of fourth defendant.
2.2.After the demise of plaintiff's father in the year 1968, the plaintiff's husband was managing the entire properties upto 1978 and the third item of properties was purchased in the year 1972 by two documents in the name of first defendant utilising the savings of plaintiff's father.
2.3.The first defendant mother is not doing well for the past three years. On 14.12.2006 by coercion and undue influence, the defendants 2 to 6 obtained a gift deed from the first defendant in respect of the entire third item of suit properties in their favour. Though the plaintiff questioned the gift obtained by the defendants and demanded partition, the defendants refused to give the plaintiff's share. There was also a panchayat at the instance of the plaintiff, by the member of Jamath in Periyakulam Thenkarai mosque. However, it failed due to various reasons. During the Panchayat, the defendants admitted the factual position that the third item of property was purchased in the name of plaintiff's mother namely the first defendant out of the savings left by the plaintiff's father. As the daughter of first defendant, the plaintiff is entitled to 3/20 share in all the suit properties.
3.The defendants contested the suit mainly on two grounds. Though the plaintiff's claim was admitted in respect of some of the suit properties, the defendants specifically denied the plaintiff's contention that she is the daughter of first defendant. It is the specific case of the defendants that the plaintiff is the daughter of father of defendants 2 and 3 through his first wife. The defendants specifically raised a plea that the plaintiff executed a lease deed on 24.07.1972 after receiving a sum of Rs.15,000/- from the defendants and that the plaintiff is therefore, not entitled to any share in the properties for which she had executed a lease deed. It was the contention of the defendants that the suit third item was purchased by first defendant and that the suit is not maintainable during her life time. It was further contended that the first defendant executed a gift deed in respect of third item in favour of the defendants 2,3,4 and 5 without any coercion, compulsion or undue influence. Hence, the plaintiff is not entitled to any relief in respect of the suit third item. The seventh defendant who is only an agreement holder also filed a written statement claiming to have paid a sum of Rs.4,00,000/- for the third item of suit property.
4.The trial Court framed necessary issues. Though the relationship of plaintiff as daughter of first defendant was seriously disputed by the defendants, the trial Court gave a categorical finding that the plaintiff is only the daughter of first defendant and not the daughter of one Ayisha @ Ponnuthai Beevi, the first wife of S.V.M.Shaeed Saibu. Now, before this Court, this issue is not argued. Hence, this Court also proceeded to consider the rights of plaintiff accepting the case of the plaintiff that she is the daughter of S.V.M.Shaeed Saibu and the first defendant and the sisters of defendants 2 and 3. The trial Court held that the release deed executed by the plaintiff under Ex.B1 dated 24.07.1972 in favour of the defendants is valid and binding on the plaintiff. Since the release deed is only in respect of six items of the properties referred to as second item, the trial Court held that the plaintiff is not entitled to any share in respect of those properties covered by the document Ex.B1. The trial Court, disbelieved the case of the plaintiff that the third item of suit properties was purchased out of the savings of plaintiff's father S.V.M.Shaeed Saibu. The trial Court therefore held that the suit third item is the absolute properties of first defendant and that she is not entitled to any share in the property. The trial Court also accepted the gift deed executed by the first defendant in favour of the other defendants under Ex.B4 dated 14.12.2006. Hence, the suit filed by the plaintiff was decreed only in respect of the first item and some of the items of suit properties described as second item which are not covered by the release deed stated to have been executed by the plaintiff in favour of the defendants under Ex.B1, dated 24.07.1972. The plaintiff aggrieved by the judgment and decree of the trial Court, has preferred the above appeal claiming 3/20 share in respect of other properties for which the suit for partition was dismissed by the trial Court.
5.The learned counsel appearing for the appellant submitted that the trial Court while dealing with the first issue whether the plaintiff is the daughter of first defendant or not categorically held that the document Ex.B1 namely the release deed dated 24.07.1972 contains false recitals as to the relationship of plaintiff and first defendant. Having regard to the fact that the recitals in the document Ex.B1 are not true, the trial Court ought to have held that the document Ex.B1 is a sham and nominal document and that the same was never acted upon. Since the properties were purchased in the name of first defendant out of the savings of plaintiff's husband, the first defendant cannot claim any ownership over the suit third item. The gift deed executed by the first defendant in favour of defendants under Ex.B4 dated 14.12.2006, is therefore, invalid and not binding on the plaintiff. Even assuming that the third defendant is the absolute owner in respect of third item of the suit property, the gift under Ex.B4 dated 14.12.2006 is a death bed gift and hence, it is not valid since it is beyond her capacity. In other words, the third defendant herself has no right to execute the gift deed, more than 1/3 of the property belong to her by way of gift (Hiba) particularly, when the gift deed was at the time when she was ill and in her death bed.
6.Mr.G.Prabhu Rajadurai, learned counsel for the respondents, however, argued that the release deed is perfectly valid. Since it is argued by the learned counsel for the appellant that the gift deed is a sham and nominal, the learned counsel for the respondents pointed out that there is no plea in the plaint or by way of replication describing the character of the document Ex.B1 as sham and nominal and that therefore such a plea cannot be entertained. Having regard to the well settled proposition that no amount of evidence can be admitted without a plea, it was contended that the appellant is precluded from relying upon her evidence. Since no issue was framed by the trial Court because of want of plea, this point cannot be allowed to be raised. Regarding the third item, it was the case of the respondents that the property was purchased only in the name of first defendant. The Court can presume that it is for her benefit and that therefore, it is not open to the plaintiff to dispute the title of first defendant over the third item of suit property. The learned counsel for the respondents further submitted that the plaintiff cannot succeed in claiming a share in the property described in the third item unless, she proves that the sale deed in favour of the first defendant was a benami transaction and that the property was purchased only for the benefit of the estate of plaintiff's father. It is also further contended by the learned counsel for the respondents that a gift deed executed by the first defendant in favour of the other defendant is valid and binding on the plaintiff. Though the plaintiff has come with a plea that the gift deed is invalid and the same was executed by force and compulsion and by undue influence, absolutely, there is no evidence forthcoming from the plaintiff to substantiate his case. Finally, he also pleaded that the gift deed under Ex.B4 is not a death bed gift as contended by the learned counsel for the respondents.
7.Having regarding to the submissions on respective counsels, this Court framed the following points for determination:
(i) Whether the release deed alleged to have been executed by the plaintiff in respect of some of the items shown in suit second schedule is true, valid and binding on the plaintiff and proved in accordance with law and whether the document Ex.B1 is a sham and nominal transaction which was never acted upon?
(ii) Whether the property shown in the third item is the separate property of the first defendant?
(iii) Whether the first defendant has got right to execute the settlement deed in respect of the third item?
(iv) Whether the gift is a death bed gift?
Point No.1:
8.The fact that the document under Ex.B1 dated 24.07.1972 executed by the plaintiff is not in dispute. However, it was submitted by the learned counsel for the appellant that the same was never acted upon. First of all, the release deed was not referred to in the entire plaint. However, the suit itself was filed only after the matter was referred to the Jamath of Thenkarai Palli Vasal, Periyakulam. The parties knew well about their claim and the documents on the basis of which the plaintiff's claim is sought to be proved or non-suited. However, in the plaint, the plaintiff has not referred to this release deed as a sham and nominal transaction. The learned counsel for the appellant referred to paragraph 17 of the judgment wherein the description of the plaintiff in Ex.B1 as the daughter of first wife of S.V.M.Shaeed Saibu was found artificial and contrary to truth. The findings of the trial Court does not give any indication about its validity. The document has been accepted as a true and bona fide transaction. Merely from the findings of trial Court about description of a person in the document, as erroneous, the contention of the appellant does not stand to reason nor appealing to this Court.
9.The document Ex.B1 admittedly executed by the plaintiff in favour of the defendants. The document Ex.B1 is after receiving a consideration of Rs.15,000/-. Having released the property after receiving a sum of Rs.15,000/- in the year 1972, it is strange that the plaintiff challenges this document as a sham and nominal transaction which was never intended to be acted upon. The receipt of consideration under Ex.B1 is not denied by a specific pleading. In such circumstances, this Court is unable to accept the contention of the learned counsel for the appellant questioning the genuineness. The plea that a document was a sham and nominal transaction or that a document was never intended to be acted upon, cannot be accepted without a specific plea. Under the Transfer of Properties Act, even a release deed if it is a registered one, it conveys the interest in immovable property in favour of the releasee. Since the transfer of interest takes place by the release deed, the releasee gets title to the property conveyed. Hence, the plea that a sale deed or release deed is a sham and nominal document, cannot be entertained unless there are acceptable evidence which are required to prove a benami transaction. When a document of conveyance is executed without any intention to convey the title, it is an unnatural transaction which might be required for some specific purpose or for any compelling circumstances. Hence, one could prove the real nature of transaction and the real intention of parties which may not be evident from the document as such but only by other evidence. In this case, there is no plea in the plaint about the sham and nominal nature of transaction. Absolutely, there is no evidence to suggest any motive for such sham and nominal transaction under Ex.B1. Hence, the case of the appellant that the document Ex.B1 is a sham and nominal document is liable to be rejected. Point No.2:
10.It is not in dispute that the property referred to in third item of suit properties was purchased in the name of first defendant under Ex.B2 and B3, dated 15.04.1972 and 19.09.1972. The recitals of document Ex.B2 and B3 do not disclose that the sale consideration for the property came from the savings of the first defendant's husband. The properties were purchased four years after the death of plaintiff's father. Even if he has left substantial amount as savings, the first defendant is only expected to hold the money in trust for the benefit of other heirs of plaintiff's father. Though she is accountable for the money which she has received, the property acquired by the first defendant in her name cannot be claimed as the property of the family. The concept of joint family or co-pacenary is alien to Muslim Law. In such circumstances, the purchase of property by the first defendant cannot be treated as an acquisition for the benefit of all the heirs of plaintiff's father. Secondly, in this case, there is no evidence forthcoming to prove that the entire sale consideration for Ex.B2 and B3 came out of the savings of plaintiff's father. Absolutely, there is no evidence to prove the case of plaintiff. The learned counsel for the plaintiff relied upon the document Ex.A12. Ex.A12 is the statement submitted by the defendants before the President of the Jamath at Thenkarai Palli Vasal, Periyakulam. The statement is in response to the complaint earlier given by the plaintiff for getting her legitimate share in the properties left by her father. In this statement, the defendants have, of course, referred to the savings of plaintiff's father. First of all, this document was not marked through proper persons. However, this document is only in contemplation of a compromise. Further, it is evident from the statement that major portion of the savings of father was with the plaintiff's husband and hence, the admission cannot be taken in isolation of the context. It can at best be taken that the first defendant was given some amount for purchasing the 3rd item of suit property from the father's savings. Since the compromise has not been arrived at, the statement of parties relates to or in contemplation of or in expectation of an amicable settlement, cannot be taken as an admission to put it against the person making the same. This position is well accepted in different context by various Courts.
11.In the case of Smt.Surjit Kaur v. Gurcharan Singh reported in AIR 1973 Punjab and Haryana 18 wherein Section of 23 of the Indian Evidence Act has been reiterated that if an admission is made upon an express condition that evidence regarding it would not be given or under circumstances from which the Court could infer that the parties had agreed that the evidence regarding it would not be given, then such an admission would not be relevant. In the case before the Punjab and Haryana High Court, the letter containing admission of cruelty and seeking apology which was during the period of negotiations of compromise in a petition filed under Section 9 of Hindu Marriage Act was held to be a privileged document and that the same cannot be taken as an admission of cruelty. In the absence of any other evidence to prove the source for the documents Ex.B2 and B3, the document Ex.A12 cannot be relied upon to hold that the third item of suit properties was acquired only by the savings of the plaintiff's father namely the husband of first defendant.
12.Assuming for a moment that the properties were purchased out of the savings of the first defendant's husband, as pointed out earlier, it has to be taken that the property was purchased for the benefit of the first defendant. Applying the principles of law which are also the foundations for our procedural laws, the property purchased by the defendants under Ex.B2 and B3 is the absolute properties of the first defendant.
13.As regards the contention that the property was purchased by the first defendant out of the savings of her husband, the learned counsel for the respondents submitted that the ingredients for describing the transaction as a benami one is absent in this case. The Hon'ble Supreme Court in the case of Jaydayal Poddar v. Bibi Hazra reported in AIR 1974 SC 171 wherein it has been held as follows:
?6.It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute of proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale.?
14.The learned counsel for the respondents relied upon another judgment of the Hon'ble Supreme Court in the case of Valliammal v. Subramaniam reported in (2004) 7 SCC 233 wherein the six circumstances which are to be considered as a guide to determine the nature of transaction are stated. They are extracted as follows:
?(1) the source from which the purchase money came:
(2) the nature and possession of the property, after the purchase;
(3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale.? (Jayadayal Poddar v. Bibi Hazra, SCC p. 7, para 6)?
15.The circumstance indicated above are not exhaustive as expressed in the same judgment. Hence, this Court find that the first defendant in the absolute owner of suit property.
Point Nos.3 and 4:
16.It was further contended by the learned counsel for the appellant that the gift deed under Ex.B4 is a death bed gift. First of all, there is no plea that the gift deed under Ex.B4 was executed at the time when the first defendant was in her death bed. However, there is a plea in the plaint that the first defendant was not doing well for the past three years and that she is not moving around. By this, the plaintiff only wanted to establish that the gift was obtained by coercion and undue influence from the first defendant. The plea of coercion is not appropriate when it is also sought to be established that the gift was a death bed gift. This Court find that the first defendant executed the gift deed in the year 2006. The suit was filed in the year 2007 and she lived for more than five years after the institution of the suit. The first defendant has also signed the written statement. In such circumstances, without even a plea in the plaint, the appellant cannot be permitted to come forward with the plea that it is a death bed gift and that therefore, the gift deed is not valid as the conveyance under the gift deed exceeded the proportion which is permissible under the Muslim Law (where death bed gift cannot exceed more than 1/3rd of the estate of the deceased).
17.The learned counsel for the respondent has relied upon a judgment of the Division Bench of this Court in the case of Bhoona Bi v. Gujar Bi alias Hamida Bi reported in 1972 (II) MLJ 624 wherein the Hon'ble Division Bench had an occasion to consider similar issue. The Hon'ble Division Bench held in that case that in the absence of any specific plea or unequivocal admission by the other side in the witness box, the Court cannot permit the plaintiff to raise a plea later touching a factual issue which depends upon the existence of crucial fact. In that case, the requirement of specific pleading about mars-ul-mant has been dealt with in the following lines:
?In the absence of any foundation in the pleadings of gift being made during marz-ul-mant and in the absence of any unequivocal admission from the defendant in the witness box, the trial Court ought not to have either permitted the plaintiff to raise the plea in question or accepted it, when the evidence on record hardly justified its acceptance.?
18.The principle of Mohamedan Law borrowed from Mulla's Principles of Mohamedan Law (16th Edition) was referred to in the same judgment as follows:
?To constitute a malady, marz-ul-maut, there must be (I) 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 (Sarabai v. Rabiabai (1906) ILR 30 Bomb.), although attending to his ordinary avocations does not conclusively prove that he was not suffering from marz-ul-maut.?
19.Then the Hon'ble Division Bench has further clarified the position after referring to the statement of plaintiff witness in that case about the physical condition of the deceased. In the same judgement, the ruling of Privy Council was relied upon in the following lines:-
?In Ibrahim Goolam Ariff v. Saibee [(1907) 34 I.A. 167 : 17 MLJ 408], the Privy Council ruled that a gift must be deemed to be made during marz-ul-maut, if it was made under pressure of the sence of imminence of death.?
20.The Bombay High Court in the case of Abdul Hafiz Beg v. Sahebbi reported in AIR 1975 Bombay 165 dealt with a case where a gift was made 24 hours before death. The relevant portion from the above judgment is extracted for convenience:
?18.Therefore, once there is evidence to support the findings reached by the Courts of fact either coming from those who were near the deceased during the relevant period or as may be disclosed by the documentary evidence throwing light on that period, the matter is not open to investigation in second appeal for the provision of Section 100 Civil P.C. Do not permit the such a challenge unless the appreciation of evidence can itself be shown to be perverse or against record. Merely because medical evidence is not put forth, the principle does not change. Adequacy of evidence and its fullness are still the matters in the ken of considerations that satisfy the conscience of the Court which is required to find facts. By that no question of law is raised. The usual submission based on the principle of onus of proof would be irrelevant once the matter had been understood by the parties and they were obliged to lead evidence on the relevant facets of the doctrine. No doubt, the initial burden to prove the requirements of Marz-ul-maut is on the person who sets up such a plea as affecting the disposition of a dead person; that can be discharged by the proof of the facts and circumstances in which such person met his death and the attendant events preceding and succeeding the disposition itself. Once the possibility of a subjective apprehension of death in the mind of suffering person who made the gift is raised, clearly the burden shifts to that party who takes under the disposition or sets up the title on its basis. Such party may prove the facts and circumstances which would enable the Court to hold that the disposition itself was not made while the suffering person was under the apprehension of death. It is, therefore, necessary for the party setting up the disposition to rebut the proof that may be indicative that the disposition is within the mischief of marz-ul-maut. That cannot be done by merely relying on the abstract doctrine of onus of proof or insisting upon the evidence of medical experts not tendered by the opposite party. In a given case such evidence may not be at all available.?
21.In a case of this nature, the plaintiff is required to approach the Court with a clear-cut case when she challenges the gift executed by the first defendant in favour of the other defendants. If it is a death bed gift, it is no doubt true that the gift of more than 1/3rd of the estate of the deceased is bad. However, without a specific plea, it is not possible for the trial Court to frame an issue. In this case, the plaintiff has not only failed to raise a plea on this issue but also failed to let in any evidence. Even before this Court, in the memorandum of appeal, there is no plea describing the gift under Ex.B4 as a death bed gift. In such circumstances, this Court is not in a position to entertain the plea of appellant to contend that the gift deed under Ex.B4 is a death bed gift. This position has been dealt with by the Gujarat High Court in the case of Haji Osman Haji Ajij and others v. Memon Bai Jenam Kasambhai reported in (1992) 2 GLR 1112. Starting from the famous expression of the Privy Council ?No amount of evidence without plea is admissible?, the law is well settled now that in the absence of a plea no amount of evidence can be looked into. The Hon'ble Supreme Court has approved this position in a catena of decisions. The position has been improved by holding that the parties cannot be permitted to travel beyond their pleading. The objective and purpose of pleading is to enable the adversary party to know the case he has to meet in defence. In the present case, not only there is lack of pleading but also lack of evidence suggesting the gift as a death bed gift. When it is pointed out that the appellant has not even raised a ground raising this plea, describing the gift under Ex.B4 as a death bed gift, the case of the appellant is rejected.
22.In this case, of course, the existence of some of the circumstances cannot be denied but then the nature and possession of property after purchase, the custody of the title after the purchase, the conduct of the parties concerned in dealing with the property after the sale, would clearly indicate that the property was never purchased in the name of first defendant for the benefit of the estate of her husband. Having regard to the discussion made above and the conclusion on the points that were framed for determination, this Court hold that the appellant has failed to prove her case. Hence, this Court also confirm the findings of the trial Court in the light of the conclusion reached by this Court on the points framed. This Court find no legal infirmity in the judgment and decree of the trial Court and hence, has no hesitation to uphold the same. As a result, this Appeal is dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.
To
1.The Principal District Judge, Theni.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai..