Supreme Court: Sadiq Ali-Appellant filed the present appeal challenging the judgment dated 18-02-1948, passed by the Chief Court of Avadh at Lucknow (‘the High Court’). The Division Bench of Mehr Chand Mahajan* and S.R. Das, JJ., opined that that there was ample material on record to establish that Sharaf Jahan was an intelligent woman with a strong mind and will of her own. Since 1931-1932 she had been thinking of transferring her properties to her second son, Kazim Ali-Respondent, to give him some relief against the inequalities caused by the rule of single heir inheritance with respect to the taluqdari properties. The Supreme Court noted that only persons who were entitled to Sharaf Jahan’s estate were her two sons. Real purpose of Sharaf Jahan in making these transfers was to provide a suitable living for Kazim Ali who was not well off, and that purpose would have been defeated if she had started benefiting all her relations by making transfers in their favour.
Thus, the Supreme Court opined that it agreed with the High Court that all the deeds of transfer made by Sharaf Jahan in favour of Kazim Ali were intelligently executed by her with a full appreciation of their effect over her interests and accordingly, dismissed the present appeal.
Background
Nawab Baqar Ali Khan, a Talukdar of Oudh died on 17-01-1921 leaving taluqdari and non-taluqdari properties and leaving him surviving two widows, Sharaf Jahan and Fakhar Jahan, four sons and two daughters and a brother, Jafar Ali Khan and his descendants.
In January 1934, Sharaf Jahan by means of three documents transferred her rights in other properties in favour of Kazim Ali. On 11-1-1934, she transferred her rights whatever they might in the contribution suit and on 13-1-1934, two documents were executed by Sharaf Jahan, the first one being a hiba-bil-awiz, which concerned fifty-five mortgage deeds, and these were transferred for a nominal sum of Rs 500. Further, the second being the deed of transfer, and by this deed Sharaf Jahan transferred her 37/144th share in the property that she was to get in pursuance of the preliminary partition decree. Thus, Sharaf Jahan gave away all her share in the inheritance of her and her right in the inheritance of her son Naqi Ali, to her second son Kazim Ali. Not only did she make him owner of her share in the inheritance of her husband and son, she also gifted him favour a major part of the amount realised by various processes in execution of her dower decree.
In the partition suit of 1921, two applications were made on 19-5-1934, one by Kazim Ali and the other by Sharaf Jahan for the allotment of share of Sharaf Jahan in Kazim Ali’s favour. Sadiq Ali contested this request and contended that Kazim Ali had acquired no right in the share of Sharaf Jahan. Kazim Ali made a request that a commissioner be appointed to ascertain whether the application alleged to have been made by Sharaf Jahan had been made with her consent and under her instructions. The court appointed Choudhry Shahid Ali, pleader, to examine Sharaf Jahan and take her statement to verify the fact. On examination by the Commissioner, she supported all the transactions she made for the benefit of Kazim Ali.
Between September 1934 and the Sharaf Jahan’s death on 17-5-1940, Sadiq Ali was not able to persuade her to resile from the various transfers she had made in favour of Kazim Ali. Within nine months of Sharaf Jahan’s death, Sadiq Ali instituted the suit out of which this appeal arises, for partition of the properties. Sadiq Ali alleged that he had been left by his mother and claimed a half-share in the properties. Sadiq Ali averred that Kazim Ali was the manager of the property, and that the entire income of Sharaf Jahan was kept with him. Kazim Ali denied that he was the manager of his mother’s properties.
The Trial Court held that Kazim Ali was managing the properties and was accordingly liable to account for the income which the Begam received from January 1921 to 1940. Dissatisfied with that decree, Kazim Ali preferred an appeal to the High Court. The High Court held that these deeds were intelligently executed by Sharaf Jahan with a full appreciation of their effect upon her interest. It was further found that no plea of undue influence was taken in the case and no particulars of undue influence had been furnished and that that being so, it was not necessary to investigate that question. In the result the appeal was allowed, the decree of the Trial Court was set aside.
Thus, the present appeal was filed by the Sadiq Ali.
Analysis, Law, and Decision
The Supreme Court opined that there was ample material on record to establish that Sharaf Jahan was an intelligent woman with a strong mind and will of her own. Since 1931-1932 she had been thinking of transferring her properties to her second son, Kazim Ali, in order to give him some relief against the inequalities caused by the rule of single heir inheritance with respect to the taluqdari properties. On the other hand, she took care to see that her eldest son, Sadiq Ali was taken into confidence and the matter was not kept secret from him. The Supreme Court opined that she was confident of her powers of persuasion in bringing him round. For about two years she manoeuvred around Sadiq Ali and eventually, felt satisfied that he would not feel offended by her transferring the properties to Kazim Ali.
Further, the Supreme Court on perusal of all the facts provided on record opined that these facts proved that Sharaf Jahan was not a person who could be influenced by any of her sons, or who would play into the hands of other people and put her signature/thumb impression on documents without fully understanding their tenor and effect. The Supreme Court noted that only persons who were entitled to Sharaf Jahan’s estate were her two sons. Real purpose of Sharaf Jahan in making these transfers was to provide a suitable living for Kazim Ali who was not well off and that purpose would have been defeated if she had started benefiting all her relations by making transfers in their favour. The Supreme Court opined that there was no satisfactory evidence on the record to prove that Sharaf Jahan had become absolutely a cripple and dependant on Kazim Ali at the time of these transfers. It was not likely that a woman of the position, intelligence and character of Sharaf Jahan could be domineered by any person.
Thus, the Supreme Court opined that it was in agreement that all the deeds of transfer made by Sharaf Jahan in favour of Kazim Ali were intelligently executed by her with a full appreciation of their effect over her interests and they gave effect to her natural desire to make a provision for her second son who had got a much smaller share in the inheritance of his father than his elder brother did. Sharaf Jahan not only executed these deeds after fully having them explained to her, but during the six or seven years that she lived after having executed them, whenever there was occasion to do so she not only confirmed them but took active steps to see them given effect to in proceedings pending before the different courts. The Supreme Court after perusal of Sharaf Jahan’s statement to Choudhry Shahid Ali, opined that these statements fully proved that these documents were the result of her free will and free mind, and she made them because she intended to benefit her second son. Accordingly, the Supreme Court dismissed the present appeal.
[Mohd. Sadiq Ali Khan v. Mohd. Kazim Ali Khan, (1953) 1 SCC 371, decided on 03-03-1953]
*Judgment authored by- Justice Mehr Chand Mahajan
Note: Transfer of Property
Generally, a gift is regarded as a transfer of ownership of a property where the individual transferring the property willingly brings into effect such transfer without any compensation or consideration in monetary value. Section 122 to Section 129 under Transfer of Property Act, 1882 deals with gifts. Essential elements of a valid gift includes- 1. Transfer of Ownership; 2. Existing Property; 3. Transfer without consideration; 4. Voluntary transfer with free consent; 5. Acceptance of gift. Section 129 provides the gifts which are made in contemplation of death and are known as donatis mortis causa. Such gifts are exempted from the operation of chapter VII by virtue of Section 129 of Transfer of Property Act, 1882.
Advocates who appeared in this case :
For the Appellants: Iqbal Ahmad, Senior Advocate (Ali Hasan, Advocate, with him);
For the Respondents: S.P. Sinha, Senior Advocate (Onkar Nath Srivastava, Advocate with him).
