High Court · 1955

Judgment

2. Kochunn~ Koebu Mu Ku1!1msnam Pak:utby Koehunni Kunju Path Iara , Aymanam Pakuth.,11 . ,.·,... , {'{ By adToca~es M/.: Respondents - plaintiff 2 and ·. ot Pwa.uthara, KU111anam Kara, of Payyil Veettil, Mallooaseri Abraham and T. Mohamed 1••11 1 • I Kun ju Pills! Muhammac Msllooseeri Kara, i; manem hara and Pakut,lf: now residing at Puthen Purakkal, na Pakuthy, from Parvuthara I Kum-

2.f ''Kochunni lysha Umma Kott.ayam Kara and P Val,iya Veettil, Thazhathangad.1, Respondent 1 by advo, tes Sbri K.'I'. Ninan· kri shna Iyer. ;.: ,snd 1:r. An.antha• This appeal suit harvi the court on 21.12.1955 deli bep tiually heard on 16.9.1955, ed"the following II 1 lI / ( K. T. Koshi, C. J. and Kumara Pillai, J.) Appeal Suit No~ 24 of 1954 JUDGMEMT Delivered..by.±umgra±±ilai.. a. TH!S ap!)eal ar1.sos out of a. suit for partition of the hare of a Mohan@aedan widow in the sstate of ler deceased husband. The husband whose estate is sought to be partitioned was the third husband of plai.ntiff 1, Md pla.i.ntif:f 1 herself was his second wife. Plain-

tiff 1's first husband died in 1077 and her second husband, who married her in 1082, divorced her a year or two after the marriage. In 1085 she was married again by her third husband, Kocheena Kochunni ~ethar, who will hereaftar be referred to in this judgment as Methar. At the time of their marriage plaintiff 1 had children bom to her first husband, and !Yiethar also had ch1287n Ay his first lf'e ho had died about the year

1032. ethar had no children 'by plaintiff 1. He died on 3.9.1121, and on 3.3.112 plaintiffs 1 and 2 brought the present s·uit for partition of the share of plaintiff 1, narsly one-eihtn, in his estate. Defendants 1 to 3 t are Methar 's ehildr.en by his .first wife, defendant 1 be- ing his son and defendants 2 and. 3 daughters. 1-'lain- tif:f 2 is the son of 229inti£ 1 7 gr first husband. Plai.ntiff 1 was seventynine years old at the tirne of the institution of the suit, and she died shortly after- wards. S h i: h d plaint h h transferred to plaint1ff 2 all her rights in the estate of her deceased hsbad fr cons'dcrtior receirsd from him, and after her de8th plaintif.f 2 alone prosecuted the suit. .: ' 2

2. Defendants 1 and 2 contested the suit. Their main contentions were that th9re was an agreement bet ween ?ethar and plaiatiff 1 at the time of their marriage whereby they had agreed that on the death of either of the soouses the survi v o . would n ot ~ im the share which . he or she, as the ease "ffl'BT be, would ordinarily bf! anti tled . to under the Mohammedan Law in the estate left hy the other spouse nd that all the properties left by the de ceased spouse souid be taken only by his or her othor heirs, that plaintiff 1 subsequently executed a deed on 26.3.1117, x. 3, relinquishing her right of inheritance to ethar's estate in the event of his predeceasing her, that this was part of a family settlement, r.nd th&t on accow'lt of it plaintiff 1 was not entitled to claim any share in the estate of Methar. In' regard to this con. tention the plaintiffs' case was that there was no agree ment at the time of th.e marriage as alleged by defen dents 1 and 2, that Ex. I was caused to be executed by I fraud and undue in,fluance practised on plaintiff 1 by Wetnar, an@ that Ex. I and tne relinquishment of her right of inheritance by plaintiff 1 'lfi~ere voi.d and should. not be given effect to. The lor court fund that vitiated by any fraud or undue ir1fluenee ae urged by the plaintiffs. Nevertheless, it refused to give effect to Ex. I on the ground that it was void and invalid. Consequmtly it passed a preliminary decree for partition in favour of plaintiff 2, and this appeal is filed by defendants i and 2 against that preli.wninary decree. I / r ii&li& Pi7Mii£ .. 3

3. 2hac thee as a agreeueni between Methr and plairt~i££ 1 ~t the tine of thoir 111,3.rri.aga t.hat, in the eve-11.t of one of them ?'J."edoceasing the other, the survivor would not claim ar.y right of inheritance in the w,oper t199 1oft by the deceased person and that a fataily settle ment on the lines of this agreement was made on the date of Ex .. ! are matters which adnit of no doubt. Ex. II i.5 a r,ortit,ion deed f:!X~euted by plaintiff 1 and her chil d:ran by the firet hus1an.d by which ell the properties inherited by them from the first husband of plaintiff 1 date and presere& for registration almost; simultaneously a,, t 'he ub k3strarg endorseent 3;·1 2 4 d ' · ·t , cn these documents siof ..:1- • t' _.i.. . • that Ex. II was presented for registration at 12 noon on

26.3. 1417 and Ex. :r r-i.t 12.15 P.M. on tho same day. Io both these cl.oeumerts a brother of plainttf:f 1 as well as Plain- e. brother or her fir$t husband Ttrere att,f!lstors. - t5£f 2 nd his brother and s} str as wmll as tethar were resent in th mh Ros3tr Office Mn connection ~ • . . • •\ . 'n the date i.nt erested / and hrc±hr-!r-law 0f 9la1nt1ff 1, have not been called as witneasGs to prove the allegation of f!"#)Ud and undue influence, and it is dj_fficult to believe tht these •• 4 •• .' close relatives o£ plaintiff 1 and her gro1111 up children, - x. I and themselves participate in the execution of jg pa including plaint if't 2, wcu.ld have allowed her to execute if Meth·ar had induced· her to execute it by fraud and undue influence. ix .. I explicitely tttates that theri was an gresent between Methar and pl4int if f 1 at the timis of the marriage that> i.n the event of one of them predeceasing the other, the survivor would not claim any right of inheritance 1 th;a propert ies left by the - A.t the time or he:r marriage ,,rlth Methar Jecea.r.ea person. pU'iotl.f.t' 1 was thirtjeven years old, and 9s may be seen frcnn I.~x. II she was then in possession of consid.erable properties left by her first husband and belonging after his dea.th to her and her children by him. She and her cildren were then liviug with her father; and after the mcG""riage the children continued to live with and under tht1 guardianship of their maten1al grandfatner. He too was a person of considerable means, and »laintiff 1, being his daughter, was one oi' his neirs. In the circumstances it, is .>nly too probable that, an a.greemertt like this would hav~ been -entered into by Metha'r and plaint if f. 1 at the t3uae of' the marriage with a view to conserve the proper ties 05 plaint;1°1 1 to the lt3mate henefit of her chil ;en toe and the properties of Methar to the ultimate benefit of his children a?one and to aoii fut1re dis put,es and qarre?s betw.en their children. Dealing with t.he subject of marriage contracts, Tyab,ii says ln the third edition of his book on MuhammR.dan Law, page 113, that if the wife has any property of her own it is desirable to make special arrangements about it in the marriage con- tract. Having regard to ct.i.1 thef:te facts and circumstances we think tht i is too probable that tho:re ·:.ra:, an aeree- t ,l s a.iced . b h _, ..... y tue deicins a crsier tha the i f ( I 5 •• findings of the District Judge both in regard to the truth o:f the agreement. at -&;ne time 'of the marriage as wei.l as to ti1e t"alsity or the allegation that Ex. I was caused to be executed by fraud and undue influence prac i;egg •. y isaa da els pt&dad tad« n; 5 2a3 2 ¢ 1 are pg?eotly riht; id nk d.di E;-th d' It is mainly on tJ1e .grou.nd th~t a contingent right

4. oz inn€iance cannot oe transferred or renounced that ts learned iscict Judge has held that the. relin.quish m:::mt oi' rur right of inher·itance in Methar1e. estate by plain±R I Zs vi! d cannot be given ef"feet to, ar-d ho has 1;>l.ace,1 sions nf the Hi1h Ccurts or Bombav.. ancl Madrr-ts in Sumsuddin '.!'.'el ia.nce in this connection on the deci ~-~.............. ..... ., f,:;; Cases 35. c:: th\~ rel:lnqtiisbment oi a eontinp:ent. right of inheritance Dea!ing rich ihe question of the validity - of a Nohaiwaedan heir, , Sir. Lawren.:,e Je.."lkins, Chief Justice, so ueilveed the juigeno of t.-he court ·111 Sum§uddin Goolam huseip ys. bgui Jsein ±glimu@din, {I.L.s.) X.Y..XI Bombay 10,.··~- h ., • t...G sa.t.d a11 page 1 o. the report: "'7 f' 1 .1. . . . td ia 5.se absence of cisar sroor to hc co5.27iy • euclly ai. to» t ear'eu t,I) hv.i..u ta rere is any rule oi :•iohamedcm ia at sa:.ctic.r..:; the t~·au;fer of an expectancy. •. 6 .. By par!t.y of roaooning I corr.e to he further conclusion tbf:t ·there could no't be a release of such e chance: c>0t1piri: Ke:p ve. Jel§tJY.s. (~720} ,,,,han P....,.~,. .. &--"--'•V ... ,..,.. .. , CL '-tf In Jicha Be£ivi J/~• WU2PAA Chet,ty, XlV InM.an Ca$ea 35, a iv4l encl: o? the sores !igh Court has, after consiiera ti.on of the io dee!leisns f that ccuzz to the ,:ontrary it i.s unnecessary· to cot.!si1ar whethe!' this -tran~!~r or rer.unci.ation wu.ld no~ also be invelid ,mder the provi Bi('ms of t,eetion 6 ot.' the 'l're.nsf'er of Prcperty Aet itself'". But an important exception to the general rule that a to inherit bas been recognise.ti ey el"in'7nt writers o£ text TA ft of the erectatior of scceeirg to the eztat '! ot ! ti vt nµ: per"" or_ tc, provided fit tht tmnder Shi: It!na A?ari la the ex7st ag, '>fr of ; l!rig prs; :r.ay em power him ·to dia-p,oEe by rl ll- of pro r:zy sx2?e% 2? h e kq2a9hsl:. "·i zf hies '."'!Ot zt ; a.""ld seeondly · th~t a contract not to "S.state; cl3i: sty ihritsacs ;t £th 11·rlr16 person o~ hts death may validly e gde :e. ecr.t,:-aet .t'°-">r (;'t":C-d :,o;-?31-:::·;-.-atic~. is in the nature of a t'amily arrangement 'the Curt, mney lcck U:cn it with fevc3:." ~'h€'r-,3 ru~l'I est:e of .Ln Mullah's Principles et ~,mhammadan r.,aw, thirteenth / l/ edition, it is said P.t page 45: \ I I rtA Mubamnadan heir may by his conduct be estop ped from claiming the inheritance he has agreed to relinquish 1f ti'M rel ease was part vf a eom promise or family settlement and if he has benefitted ·uy the transaction". .• 7 •• Law t..lcurnal 342 an<i ' ;' 'i~ir-lJJ.-Ea,z vs. ?'§..i:Y>}z-t:1-Rahmp. ~ . . ----•···. .. .. XIX.IV All. L. J. Jk,~ lra.s a ease in wrd.eh th.e second 't-tife -'lf n l-!,'n!1Ai'\l'lA.d'!n l!Xeeuted a. de9d 'jf r~l~ase relinquishing he atrt'-:brtnd lV't" rr:l! th<" !llt!'.'i>.-ra:..1J. drel' H:'.i t•·w tern:flr:d1:,rtp:.:;, J·"-hc and com;t~.tuted hGr chil- "The cont rnct mmie bv an he:tr .for eonsi.deratio11 ...1;.1'.·_; ac~·. t""1 be snid ~1f c,:t:.7'S-":i to terr; ej iueeai r 6ii€en wy eny 2tr 2·art ' en" ~~,:r-s ·::h-~ ~",,.-,sJdf.::;.:,_.ti,,r, is lcrt-r, reeriilred ~d :tt is r.nly a ea.sh c<H1sid.eraticm and the oontr:ict :ls r:mbs~q_uen1~ly sought to be en- ,.t wou.ld bFc a ma:t;ter of diacrel.tion tor forced, th.€ court t,:, to l'!!t.ke t,he !>le:.nt~1 f'f i•H:t eorapenfluti ~m ¥.hen he is not carYYing out his r.:ontjr~ct. ca~~r w1'.::f'rt·-· ti:i' ef,-.':(::J"'ert .h1.:e b:,~: in a for:n -wh:teh mndP :lt imuossi"!h, 2tn· thiS c:r..:urt tc-- rrant ad£-q1..att· net~i:euset-ic,n to the a2r32vd a7% h12 37 3002nt sr +ell ho ::;pfc:,•r:{s,:, anc the ~1J-,ii.r1t-iff l.e ht<J.d t.,ound by it". F!1Jf'Ci fi ~ pe...:·rnr-rJ~c.n"-~ and But in rd.f~ctf!d :rf'f1.l84;:i: «Jf the relinau:tnn"l"t':~'.-i-r ,~ in tl'.'.- '''?tur·e cf" ,!'. tr0¢7 of a e y t: e?got; th!:!n 32, o of course 5t would be void vnder t?1?c·t.1cn 6; my?«r ry pro;srcnt: n. %r':y9gt Hr%, !8 "t¢ for not elaimine .~ col"ti ngent !"i.ght of' inheritance mg;:= Cr .:; par:, :;; would not he 'overned ky the prri1.or of Sec + a22 i 01 at; that. +,h. case was a c;:i.se tn whl.ch ur.Hier the t c?Ml"l5 c,,f. a compr::;mls~ u a lviu.hammedan husband r~li:nquished his right to succeed as \Ii r •• g •• - heir to his wife. It was held in that ease that tne compromise was in the nature or a family settlen1ent and that the relinquiuhnent ct hi.!:! right by the husband to succeed ~-E ho.ir to his ifs was not in thE: circumstances obncxi.ou.e either to }.::.uh!lllmoo1n1 "t,aw or. to ;:·,eetio:n 6 of i;. Frcrr th.:: circumetat1ees of the Ju>es€nt case and tn~= exrrens~ terms of 2x. 1 t11e.rt1 cann,,t c;:, the .least : aon t tna b . . t -- - .:·,X.r:5. .l part& of a family 1:ettlement uncl. th~t tl1e .1.11~linquish.a:;tmt by pl.a.in i:,iff ·1 of 0r:r right- tu 5.ru:c:ri ~ ir:. H~::t.her·'f; estt.:t;e in iH.1 nas bun ported ou& lreedy it l.'aS proper under the }hemaden iaw to sake specil arrange her.ts t 'ke n of h maria abut h p pe rt-t-- which the -wife o\t:ned, and in makirg sucn arrangements abcut t:.hl- pn.1_p€'.;rti~b t).f plaintif r 1 both I-ictllar and plain t1ff 1 hurl agreed that it1 the c~ffe u.f eithc:i: of them pre- decaix.g; tne other : e survivcr would no claim the rii,ht o:f inhii:1·it.ar.tee tc the - e.ett.tc cf 'Lhe decet~sed person. E.ether the rauciti: v the cctire, zi 4.t of in 2et!er Heritrc ade : ie tie c£ ae aux:ie a vaid and e.ZS t eorcu Gr r-ct :Lt if aiJso'.:.ut1.:..ly ci.:ll'ttdn tliat tbs-_;ecet won.l la ±d to z&vu.e ipus bet ./.J_ Jc,t,h f'iGth..r- and plain- <rcn1 of t tr soul. bsv tied the children of the ot'rrr tc sher,;.; in tk cp.is ltt by th,,:Li."' :pEJ.rent. · l cmd II w:;,1·c E.Xe~ ted brrth ri'!t,thar and plaintiff 1 / {, - were well advanced in age and it was diffiOl.lt to predict thew ?& here ntr??y An!rs ta 9 • i"'srfilY ~,;.tle ant, ta «ng:g th paz an hs. rinsetss »f ll tts nasbers 4m the fally p€?am!r th·gt .lv n%%} ts ch{i?re of each.I( a£ thees a? 3rt regs!!s t!!spates hets4 t±4 bi±rs 1't~;i hs .1P1ti.es~ tu tJ:t• fitmU·:t tJ1}t.1c p,1~!~:t arr-i~ nt.. ~ r.f!'ttrle• f·· ,'.lf1t tJti(.:t';f tl ~t:1 ~~G t:~~'i- . &~t.~~l_rlr.t .•mv~('!; ~t ~'!f"f, b0 ll.U:Jl• r.1938 In~ :,;aJ\ tttl.W~ f':tUt:di 1,1. \ 111f rf et int "t: !aliiily 1:it;t.\ :,,.atnit fvl' •v"t~,n~- ~,~t'ble di,•• ! ,.rt-ae, i..r: 't!'(. f~t~t•e l~t•·:HJ;J. \b:c dtil!irc-n t"f pl.1-1nt.\.ff 1 Oft t "'· .m!C' b:3!?-!± ar,d \1:..,i 41.iilt,r~¾'• t';f ~-~hat• - the hr by tStt._\.ih',.f t,·;,x.f1{11..:te-l3· a!.l W.,.'1' ptt,ce:rti.c,., 1,::f f:l1!.lnt,1f"t 1 on i,l,: li!cHU 1 :!'t~:c ...,._ to cla.111 ll rt:.}.11.; o:f luhf.jJ'iti!!'.\t>tt w tt,t t-tsi.~t:f: of 1i~~h.fn" art,er bis ~ ~,; ~l, .I k••·m :<J".I N • : 10 i

6. I~ follows that. the plaintiffs' have no right to claim a part.t.1'ien of t.he pr-«fpvt-ies lert. by Hethar aed that their wit aaO\lld t,e aiand.ned.. · ln the r••lt., 'the appeal 1• allowed,

7.. or the court below ts reversed and the plaintiffs' suit t.he deoree 1• dlsmiaaed. Partiea will bear their ooat• 1n lk>tb 21st December 1955, • K.i . i i i , G.a. :, D • C. KUM.ARA PILLAI, 3 ~e....J 1 I rrue copy I S- t «6. /) ~ I I f ,°Heputy ifeg:istrar ror Hegi strar .. f ; j "1