IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 AS.No. 351 of 2000(A) ------------------- OS.51/1997 OF DISTRICT COURT, LAKSHADWEEP ................. APPELLANTS :- (PLAINTIFFS) ------------------------------------------- 1. PENTAMVELIPPURA SHAIK KOYA, S/O. SEKKUMMADA KOYA. 2. -DO- POOKOYA, S/O. KOYA. 3. -DO- NALLAKOYA, S/O. KOYA. 4. -DO- KUNHIKOYA, S/O. KOYA. 5. -DO- MUTHUKOYA, S/O. KOYA. 6. -DO- JAMALUDHEEN, S/O. KOYA. (ALL ARE ANDROTH ISLANDERS) (THE 1ST APPELLANT IS THE POWER OF ATTORNEY HOLDER OF APPELLANTS 2 TO 6) BY ADVS. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR SRI.K.JAYESH MOHANKUMAR RESPONDENTS :- (DEFENDANTS 1 TO 7) ----------------------------------------------------------- *1. SEKKUMMADA SYEDKOYA, S/O. ATTAKOYA (DIED) 2. -DO- BEEBI, D/O. SYEDKOYA 3. -DO- MARIYOMMABI, D/O. -DO- 4. -DO- SHAIK KOYA, S/O. -DO- 5. -DO- KUNHIBI, D/O. -DO- ...2/- AS.No. 351 of 2000(A) -2- 6. -DO- PATHUMMABI, D/O. -DO- 7. -DO- MULLABI, D/O. MARIYOMMABI (ALL ARE ANDROTT ISLANDERS) *ADDITIONAL RESPONDENTS 8 TO 13 IMPLEADED *8. CHODOTH SAFIYABI, AGED 50, W/O. SYEDKOYA *9. CHODOTH SALIHA, AGED 22, S/O. -DO- -DO- *10. MULHAKKADA CHERIYAKOYA, AGED 28, S/O. -DO- *11. MULHAKKADA SUHARABI, AGED 31, D/O. -DO- *12. CHERIYODAM ATTAKOYA, AGED 45, S/O. -DO- *13. CHEKKIKULAM AYSHAMMABI, AGED 40, D/O. -DO- *LEGAL HEIRS OF THE DECEASED R1 ARE IMPLEADED AS ADDL. R8 TO R13 VIDE ORDER DATED 9/12/2002 ON CMP 6866/2000. R3 TO R7 BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn M.N.KRISHNAN, J ===================== AS No.351 OF 2000 & Cross Objections ===================== Dated this the 9th day of November 2010 JUDGMENT This appeal is preferred against the judgment and decree passed by the District Court, Lakshadweep in O.S.No.51 of 1997. The suit is one for cancellation of a Will, declaration and possession. The trial court, on consideration of the materials, dismissed the case in relation to the setting aside of the document but granted a decree with respect to the amount in deposit by allotting 2/3 share to the plaintiffs and 1/3rd share to the defendants. 2. The brief facts necessary for the disposal of the appeal are stated as follows: The common ancestors are one Kunhibi and her husband Shaik Koya. They had three children, viz., Attabi, Ayishabi and Koya. The children of the said Koya are the plaintiffs in the suit. Attabi and Ayishabi died issueless. AS 351/2000 -:2:- Kunhibi had married one Attakoya in which a son and a daughter were born. The first defendant is the son of Kunhibi born in Attakoya. Defendants 2 to 6 are the children of the daughter born to Kunhibi in Attakoya. 7th defendant is the daughter of the 3rd defendant. There was a partition suit O.S.No.1/1985 which was filed by the first defendant herein against Attabi and others, wherein the present first plaintiff was the 9th defendant. The present plaint A schedule property was set apart to the share of Attabi and plaint B schedule property i.e., 1/7th of the property set apart to the share of Attabi and others in common. Since Attabi died issueless plaintiffs are claiming right under the Mohammedan Law. According to them, a document Ext.A8 executed by Attabi in favour of defendants 3 and 7 are vitiated by coercion and undue influence and further that more than 1/3rd of the property cannot be given away in a Will and therefore with respect to the excess, the document is invalid. AS 351/2000 -:3:- 3. Now the crux of the question is whether Ext.A8 document is a Will or a gift and if it is a Will is it valid because it exceeds transfer of the property of more than 1/3rd and whether that document is vitiated by undue influence or coercion. 4. Let me first consider whether the document is a Will or a gift. It is a settled principle of law that the nature of a document cannot be decided by mere nomenclature of the document. Similarly in order to constitute a valid Mohammedan gift there must be an unequivocal declaration by the donor, acceptance by the donee and delivery of possession. Under the Mohammedan Law a gift is not a compulsorily registerable document. The difference between a gift and a Will is that there is divestiture of title immediately in the case of a gift and in the case of a Will the delivery and passing of title is postponed and it arises only on the death of the executant. Now Ext.A8 is the registration copy of the AS 351/2000 -:4:- document. I had gone through the Commentaries of Mohammedan Law by B.R.Verma and in the 9th edition, it is very clearly stated that in the case of a Will, the validity of a Will made in writing is no way affected due to non-attestation thereof by the witnesses or failure to prove attestation. Therefore, the non-examination of any of the witnesses will not go against the validity of a Mohammedan Will. As stated by me earlier, a perusal of Ext.A8 would reveal that whatever possession therein, the executant had not handed over. But it is made clear that it will come to vest with the persons mentioned in the document either on the death of the executant or by the intervention of the court. In so many places, it is stated that the document is an 'ossiyath aadharam'. Not only in the opening page, even in the concluding portion, it is very clearly stated ................................................................................................. ............................................................................................................. ...........................................................................................................” AS 351/2000 -:5:- So, the manifest intention of the testator is clear from the recitals in the document that it is a Will and there is a mention about the vesting after the death. Therefore I agree with the trial court that the document in question, viz., Ext.A8 is a Will and not a gift. Therefore there is no merit in the cross objection and it is to be dismissed. 5. So far as the validity of Ext.A8 is concerned, on the ground of coercion, undue influence, etc. there are no materials supplied to prove the same. It is a settled principle of law that fraud, coercion and undue influence are not to be inferred by mere conjectures and surmises. At the same time, it is equally a settled principle that there will not be any direct evidence but it can be inferred from the surrounding circumstances. No surrounding circumstance vitiating the document as contemplated under Sections 16 to 18 of the Indian Contract Act is made out and therefore it cannot be held that the Will is vitiated on those grounds. But a question that may have to be AS 351/2000 -:6:- considered in this case is regarding the extent to which this Will can be said to be valid. Under the Mohammedan Law, a person is entitled to execute a Will independently only with respect to 1/3 of the surplus of his estate and that too to a non- heir as his power is not subjected to consent of the heirs bequest to that effect immediately on the death of the testator. The question of consent in case of bequest to non-heir is relevant only regard to the balance of 2/3rd share. When a person is claiming property under a Will or in other words, it is for the propounder of the Will to satisfy the conscience of the court regarding all the necessary ingredients to uphold the validity of the Will including this factor as well as any suspicious circumstances surrounding the execution of the Will. As stated by me earlier, no surrounding suspicious circumstances are pleaded or proved and so the main question that requires an answer is whether Attabi had only bequeathed the property to an extent of 1/3 for the reason that there is no AS 351/2000 -:7:- case for the other side that the Will has been executed with the consent of the other legal heirs. The trial court simply brushed aside that argument on the ground that there is no pleading. It has to be stated that when the court is construing the correctness and validity of the Will, this forms an essential ingredient under Mohammedan Law and therefore the court should have applied its mind or directed the parties to produce materials to show that only 1/3 of the property is bequeathed in favour of the persons. Unfortunately it has not been done. Materials are also lacking in this case to find out the same and therefore it has become inevitable for this Court to send back the case for the limited purpose of finding out whether Attabi had bequeathed the property belonging to her which exceeds in 1/3, then necessarily such a Will cannot confer right on the legatees under the Will in excess of 1/3rd. For that limited purpose, parties are directed to produce both documentary as well as oral evidence in support of their respective contentions AS 351/2000 -:8:- and then the court is directed to dispose of the matter in accordance with law. In the result, the appeal is allowed by way of remand and the cross objections are dismissed. The scope of remand is as stated in the previous paragraph of the judgment. Parties are directed to appear before the District Court on 22.12.2010. M.N.KRISHNAN, JUDGE Cdp/-