Noorjahan Bibi vs Abdul Wahab Rawther and another

T.N. Vallinayagam, J.—The Second Appeal has been admitted on the following substantial question of law:- Whether the courts, below are

right in interpreting the recitals of Ex. AG document and in holding that the plaintiff is entitled to one of the properties dealt with under Ex. AG and

whether the judgments of the courts below are in accordance with the ratio laid down in Jameela Beevi and Others Vs. Sheik Ismail, ? The facts of

the case in short are:- There was one Mohamad Ibrahim Rowthar, who had a son by name. Abdul Wahab and daughter by name Aleema Bibi.

They are the plaintiffs and 1st defendant respectively in O.S. No. 472 of 1986 on the file of Sub Court, Tiruchirapalli. We are not concerned with

the other issues of Mohamad Ibrahim Rowthar. Abdul Wahab has a daughter in the name of Noorjahan Bibi, who is the second defendant in the

suit. The 3rd defendant is only a tenant. The suit was laid by Abdul Wahab Rowthar against his sister Aleema Bibi and his own daughter

Noorjahan Bibi and it was for a declaration that the plaintiff Abdul Wahab is the ultimate absolute owner of the suit property after the life time of

the first defendant and consequently for possession of the suit property from the defendants.

The lower Court granted the declaration as prayed for, but restricted such declaration that the right of the plaintiff as the absolute owner shall

commence after the life time of the first defendant. The appellate court concurred with such findings in the appeal filed by the first defendant. I am

informed that the 1st defendant died on 8.11.1990 and the Second Appeal is filed by the second defendant, who claims as legal representative by

virtue of Exhibit B15, wherein it is said that the right of the 1st defendant is settled on the second defendant, who is the appellant herein.

The suit property was purchased under Exhibit A3 by Sulthan Rowthar, the husband of the first defendant on 30.9.1954. Sulthan Rowthar

settled the property in favour of his wife Aleema Bibi and the plaintiff, his brother-in-law under Exhibit AG dated 15.10.1954. In that document, he

has created a life interest in favour of his wife the ultimate settee/beneficiary being the plaintiff. It is seen that under Exhibit A7 a mortgage was

created by the plaintiff and first defendant along with one Jaleel Rowthar (who has nothing to do with the suit property) on 2.4.1958.

The attacks now made by the appellant are on Exhibits A6 and A7. The first attack is, Exhibits A6 and A7 were not signed by the executant

alleged to have signed the documents. The second attack is Sulthan Rowthar has no right to create life interest in favour of his wife and the third

attack is the settlement has not been acted upon.

I have to repel the first attack in view of the fact that Exhibits A6 and A7 are validly executed registered documents. Exhibit A3 is dated

15.10.1954 and it is seen that the executant had gone to the Registrar''s Office at Tiruchirappalli and he was identified by two witnesses.

Therefore, it is too late in the day for the appellant herein to attack the said Exhibit A6, saying that it was not executed by Sulthan Rowthar at all.

Coming to Exhibit A7 dated 2.4.1958, I see that Exhibit A6 has been not only accepted, but also acted upon by the settees in creating Exhibit A7.

Exhibit A7 is the mortgage deed in favour of a third party, one Rajagopal Pillai and here also, I see that both the mortgagors have presented

themselves before the Registrar of Tiruchirapalli and affixed their thumb impression before such Registrar and admitted their possession. It is also

seen that this document is also executed by the aforementioned Jaleel Rowthar, which will go a long way to show the validity of this document. An

attack is made on this Exhibit A7 on the ground that the consideration was not received by the alleged life interest holder, but was received only by

the plaintiff. Another attack is that while examining herself as D.W. 1, the executant denied that she has raised any mortgage over the suit properly.

These attacks also must fail for the simple reason that it is not necessary that both the mortgagors should gel the consideration either equally or in a

particular share. If one mortgagor feels that the second mortgagor can have the entire consideration, I do not think that such a transaction can be

said to be wrong. The evidence of D.W. 1 is very vague. It is also to be mentioned that she was 70 years of age at the time when she was

examined. In the chief examination, she simply denies that she and the plaintiff have signed the mortgage, but unfortunately no particulars are given

in the suggestions made and not even Exhibit A7 was brought to her notice. A perusal of the cross-examination would go to show that she was not

able to remember anything about the properly, leave alone the earlier settlement deed. In my opinion, a registered document has to be taken to be

proved until positive evidence is produced to nullify the document. The presumption in favour of registered documents cannot be easily thrown out,

simply because there are suggestions, here and there. The final argument made by the appellant is, Exhibits B1 to B3, demand notice, house tax

receipts and last receipt, which show the property continued to be in the name of the original settler and therefore, it should be presumed that

possession was not taken from him. But, this argument cannot be accepted for two reasons, one is I have already held that Exhibit A7 executed in

1958 clearly shows that the settlement deed has been acted upon. Secondly, the question of plaintiff taking possession will not arise because

admittedly, there is life interest created in favour of the 1st defendant. The mere fact there is a failure on the part of the present owners to effect

mutation of names in the Corporation register or the municipal records, will not go to show that the person in whose name the tax receipts or

demand notice alone are issued is a real owner, I can understand if the original records from the Corporation is produced to show that the mutation

of names were never attempted at any point of time. But in this case, no attempt has been made in this regard also. The Second Appeal is

therefore, dismissed. In the second Appeal, there shall be a decree, declaring that in view of the death of the life interest holder, viz. the 1st

defendant, the plaintiff shall be the absolute owner of the property and he is also entitled to a decree for possession. No costs.