Srinivasan, J.

Introduction: This appeal arises out of a suit filed by the first respondent herein for declaration of title, partition and separate possession of one half share in the suit properties described in Schedules ‘A’ to ‘N’ attached to the plaint. The claim of the plaintiff is that the suit properties belonged to the estate of Haji Abdul Rahman, who died on 7-10-1974, and she being his only daughter is entitled to a half share therein. According to the plaintiff, her father had three wives and her mother was the first wife, who predeceased her father. Defendants 1 and 2 are the other wives. Defendants 4 and 5 are the brothers of the deceased, defendants 6 to 10 are the sisters, 11th defendant is the son of the third defendant, while the 12th defendant is the daughter of the third defendent. Defendants 13 to 18 are impleaded as lessees and tenants in the suit properties. According to the plaintiff, defendants 1 to 6 are each entitled to 2/32 share and defendants 7 to 10 are entitled to 1/32 share each. There was no dispute in the trial Court regarding the division of ‘A’ Schedule properties. Defendants 1, 11 and 12 are the main contesting defendants. According to them, the second defendant is not a legally wedded wife of the deceased and some of the suit properties belonged to them exclusively and some of the properties are not available for partition, as a few of them are non-existent and the remaining are dedicated to a Wakf. The plaintiff gave up her claim to ‘L’ Schedule at the time of trial. The trial Court has passed a decree for partition and separate possession of half share in favour of the plaintiff in respect of Schedules ‘A’ to ‘I’, items 2, 4, 5, 6 and 14 to 21 in ‘J’ Schedule, item 2 in ‘K’ Schedule ‘M’ and ‘N’ Schedule properties. The trial Court has held that the second defendant is a legally married wife of the deceased and is entitled to 1/32 share. Defendants 1, 11 and 12 are directed by the decree to render accounts to the plaintiff in respect of Schedule ‘B’ to ‘G’ from the date of death of Abdul Rahman, i.e, 7-10-1974. The suit is dismissed in other respects. Aggrieved by that decree, defendants 1, 11 and 12 have preferred this appeal. The plaintiff has preferred a Memorandum of Cross Objections in so far as the decree of the trial Court is against her. Pending the appeal, the first defendant, who is the first appellant, died and the remaining appellants have been recorded as her legal representatives, besides appellants 4 and 5, who have been brought on record as such. For the sake of convenience, we will refer to the parties by their rank in the trial Court.

2. Status of the Second Defendant: The first question to be decided is whether the second defendant is the legally wedded wife of the deceased father of the plaintiff. The first defendant in her written statement has stated that the plaintiff has been falsely putting up the second defendant as the wife of her father with ulterior motives to minimise her share. She was married to Abdul Rahman on 21-4-1946 and she is his only surviving wife. The difference in age between the first defendant and the second defendant, even as shown in the plaint, is pointed out in the written statement and it is added that the second defendant could never have been the second wife of Abdul Rahman. The second defendant in her written statement has asserted that she married the deceased Abdul Rahman in a function held in P.N.S Mahal at Madurai on 25-6-1961 according to Muslim rites and ceremonies and the same has been recorded in the relevant registers maintained in the normal and routine course by East Street Muslim Jamath Pallivasal at Kilakkarai in Ramanathapuram District. The deceased declared her as his wife during his lifetime in several documents and records. She has travelled with her husband twice to Singapore holding passports and other travel documents recording her status as the wife of Abdul Rahman. She had lived with him in India and abroad as his wife. The plaintiff has, in her reply statement, averred that the second defendant was the second wife of Abdul Rahman and is entitled to a share in his estate. The second defendant examined herself as D.W 1 on commission. She has also produced Exs. B-18 to B-40 in support of her case. No doubt she admitted that she was married to one Mohammed Nooruddin, who was alive at the time of her marriage with Abdul Rahman in 1961; but she said that Mohammed Nooruddin divorced her by pronouncing ‘talaq’ thrice and that the first marriage was not subsisting. Her sister's husband has been examined as D.W 3. He has deposed that her first husband divorced the second defendant by pronouncing triple ‘talaq’ and she married the deceased Abdul Rahman at Madurai. He claims personal knowledge of boththe divorce as well as the subsequent marriage. Nothing has been elicited in the cross-examination to discredit his evidence. We have already notice that the 11th defendant is also contesting the status of the second defendant. However, his father, who is the third defendant in the suit, has filed a written statement admitting the fact that the second defendant is the wife of the deceased Abdul Rahman. Paragraph 5 of the written statement reads thus:—

“This defendant admits that the 2nd defendant is the widow of the deceased and the deceased duly married her as per the well established convention of Islam and hence this defendant submits that the second defendant was the legally wedded wife of the deceased.”

It should be noted that the third defendant is a brother of the deceased Abdul Rahman. There is no earthly reason as to why he should support the second defendant, if really she had not married the deceased.

3. Exs. B-20 to B-26 are letters written by the deceased Abdul Rahman to the second defendant. She is addressed as “Dear Fathima”. Learned counsel for the appellants contends that in none of the letters she is described as the wife of the deceased. There is no merit in this contention. A persual of the letters shows that unless there has been a lawful relationship between the deceased and the second defendant, they would not have been written by the deceased. There is no specific case on the part of the appellants that the second defendant was having illicit intimacy with the deceased. They have stopped with denying the legal relationship between them. In the appeal, learned counsel focussed his attention to the divorce between the second defendant and her first husband and argued that there is no acceptable evidence before the Court to prove the said divorce. He has referred to some portions of the evidence and pointed out that there is discrepancy in the evidence as regards the ‘mahar’ paid or payable to her on the pronouncement of ‘talaq’ by her first husband. He also referred to the admission of D.W 1 that she did not attend the funeral ceremonies of the decesed Abdul Rahman. She has explained the reason therefor by saying that she was indisposed and her health did not permit her to travel from Kilakkarai to Nagore. Learned counsel also points out certain discrepancies regarding the authorship of Exs. B-27 to B-37 letters produced by the second defendant to prove her status. We do not find any merit in these contentions. The discrepancies pointed out by learned counsel are trivial which would not dislodge the positive evidence adduced by the second defendant. D.W 2, belonging to Kilakkarai Pallivasal Jamath, has spoken to the certificate issued by him and marked as Ex. B-41 evidencing the triple ‘talaq’ pronounced by the first husband of the second defendant. Learned counsel submits that the original register of the Pallivasal, on the basis of which the certificate has been issued by D.W 2, is not produced in Court and no reliance can be placed on the certificate. The appellants did not issue any notice to the second defendant or D.W 2 to produce the original register. D.W 2 has not only spoken to the contents of Ex. B-41 but also to the entries in the Pallivasal Register. Besides, he has spoken to the factum of divorce.

4. Ex. B-18 is the passport of the second defendant. In page 5 thereof, the name of her husband is mentioned as Haji Abdul Rahman. The comment made by learned counsel for the appellants is that the name of the holder of the passport is mentioned therein as Segu Mohamed Hiluru Fathima. He expressed a doubt as to whether the passport relates to the second defendant. There is no merit in this contention. No doubt the plaint describes the second defendant as Khider Fathima Nachiar. But in the written statement of the second defendant, she has signed as S. M. Hiluru Fathu Ummal. The initials ‘S.M’ are in English and the remaining part is in Tamil. In her deposition also she has signed as Hiluru Fathu Ummal, without putting the initials. The passport contains her signature as well as photograph. There, she has signed the initials also in Tamil. The entire signature reads .

There is no question in the cross-examination that the passport produced by her does not relate to her. Obviously, such a question could not have been put as her photograph is affixed in the passport. Hence, there is no merit in the contention now put forward by the appellants' counsel. Learned counsel submits that the passport has been issued on 30th March, 1963 and was valid only upto 29-3-1966. But, Ex. B-23 dated 6-11-1969, a letter written by the deceased Abdul Rahman to the second defendant directs her to inform him the number of the passport as soon as it is obtained. Learned counsel wants to build an argument on the contents of the said letter that the second defendant had no passport prior to 1969. There is absolutely no merit in this contention. The passport issued in 1963 was renewed in 1966 and it expired on 29-3-1969. The entry in page 9 of the passport shows that the renewal was final. Obviously, the second defendant had to apply for a fresh passport after 29-3-1969. Ex. B-23 is only referring to the new passport for which she had applied and which was expected to be obtained by her when the letter was written to her. Again no question was put to the second defendant when she was examined on this aspect of the matter. Learned counsel places reliance on the admission of the second defendant in her deposition that she never lived with the first defendant and she was always living separately and cooking her food. There is nothing unnatural in such a conduct of the two wives living separately from each other and nothing turns on the said admission. We find that there is overwhelming evidence on record, both oral and documentary, to prove that the second defendant was a legally wedded wife of the deceased Abdul Rahman. Hence, the contention of the appellants in this regard is rejected.

5. Just before the close of arguments by the appellants' counsel, the respondents' counsel orally reported that the second defendant died on 25-7-1990. Admittedly, no information was given to the appellants' counsel as required by O. 22, R. 10-A of the Code of Civil Procedure, earlier. Nor any affidavit or memorandum has been filed to that effect. Learned counsel for the respondents said that he himself came to know of the death of the second defendant only then. As we have already heard the arguments and felt that there is no merit in the contention of the appellants and that the appeal would only have to be dismissed in that regard, we do not think it necessary to grant time to the appellant to file applications for bringing on record the legal representative of the deceased second defendant and for setting aside abatement etc. Such a course would be necessary only if there is merit in the appellants' contention deserving a notice to the legal representatives and giving them an opportunity to contest the same. In the view we have taken on the merits, we hold that it is not necessary to implead the legal representatives of the deceased second defendant in this appeal as parties. However, it is open to the parties to implead such legal representatives in the final decree proceedings. It may also be necessary for the appellants to implead the legal representatives of the deceased second defendant in the event of their challenging the correctness of this finding in the Supreme Court of India.

6. ‘B’ and ‘F’ Schedule Properties: The property described in ‘B’ Schedule is a building bearing Door No. 45 in Nagore South Street in T.S No. 2117. The subject matter of ‘B’ Schedule is only the third compartment of the house with the appurtunant backyard etc. Schedule ‘F’ describes a wet land in R.S No. 379/1 of an extend of 3.21 acres as item No. 1, a building in Door No. 83 in Nagore Big Bazaar Street as item No. 2 and the first two compartments with appurtunant backyard etc., in ‘B’ Schedule property as item No. 3. Thus, it is clear that item No. 3 in ‘F’ Schedule and the ‘B’ Schedule together make one complete building. The plaintiff has claimed half share in the aforesaid three properties on the footing that they are the private properties of the deceased Abdul Rahman and divisible as such. The first defendant has contended that the said items have been dedicated to a Wakf under a deed dated 22-9-1954 which related to the ‘F’ Schedule properties. The ‘B’ Schedule property was purchased subsequently on 7-12-1958 under Ex. B-15 by Abdul Rahman as the trustee of the Wakf. The trial Court has treated them as private properties and passed a decree for partition on the footing that there is no dedication of the same to the Wakf. The trial Court has also observed that the plaintiff claims only a right of residence in the house, but proceeded to grant a decree for partition as prayed for by her. Learned counsel for the appellants invites our attention to the terms of Ex. A-19, the deed of Wakf. It is dated 23-9-1954. There is no dispute that it is executed by the deceased Abdul Rahman. In the preamble, the document is described as a deed of charity known as Wakfnama created in accordance with the provisions of Act VI of 1913. (The Act is known as “The Musalman Wakf Validating Act”.) It is recited in the document that the properties have been dedicated for the charity. The Tamil expression used is The first item in the document is the house. It is recited that in the said house, himself, his daughter, his brother and his wife and their children and their heirs shall reside hereditarily and from the income yielded by the wet lands as well as the shop shall be collected and spent after paying the Municipal taxes etc., for the charities detailed therein. In the month of Rabiyul Avval every year, Moulud Sheriff should be recited in the said building with the divine name of the Prophet and after giving five kalams of rice as charity after invoking the blessings of God. The remaining paddy shall be sold and the proceeds utilised by the members of the family and other Muslims after invoking the blessings of God. Learned counsel for the plaintiff contends tha there is no dedication of the properties to charitable purposes and in as much as the document provides for the benefit to the family members also, the dedication is invalid. He relies on paragraph 180 at page 198 in Mulla's “Principles of Mahomedan Law”, 18th Edition, which reads thus:—

“180. Where a wakf is created for mixed purposes, some of which are lawful and some are not, it is valid as to the lawful purposes, but invalid as the rest, and so much of the property as is dedicated for invalid purposes will revert to the wakif (dedicator). Where the property is not specifically dedicated to an object which fails, the whole amount will be devoted to the valid objects of charity.”

He has also drawn our attention to the rulings in G.M.A Bhamia v. Madras State Wakf Board ((1968) I M.L.J 410) and Coimbatore Athar Jamat v. The Tamil Nadu Wakf Board ((1987) II MLJ 438 = 100 L.W 949) in which it is held that ‘Wakf’ in Muslim Law means a permanent dedication by a Muslim of any property for any purpose recognised by Muslim Law as religious, pious and charitable. Reference is made in the earlier judgment to a private Wakf for the benefit of the settlor's family and descendents which was validated by the Musselman Wakf Validating Act, 1913. We are unable to accept the contention of the plaintiff. A perusal of the document clearly shows that the three properties mentioned in the document are intended only for the charitable purposes set out therein. Learned counsel submits that the document provides that the relatives and descendents of the settlor are directed to reside permanently in the house and, therefore, the said property is a private property. We do not agree. The right to reside is conferred only for the purpose of performing the charity. The members of the family can reside therein only as trustees of the Trust. They cannot deny the trust and claim a share in the property. Learned counsel for the plaintiff also said that he would confine his claim to a right of residence and being the only daughter of the deceased, she must be permitted to reside there to the exclusion of others. We have already referred to the statement found in the judgment of the trial Court in which the plaintiff is said to have claimed only a right of residence in the property. In as much as the suit is for partition and separate possession on the footing that the property is a private property, that relief cannot be granted to the plaintiff, as we have no hesitation in holding that there is a dedication of the properties set out in Schedules ‘B’ and ‘F’. Our conclusion is fortified by the recital in Ex. B-15, which is a document under which the deceased Abdul Rahman purchased the ‘B’ Schedule Property on 7-12-1958. He has described himself as the trustee of the Wakf and 1 only in that capacity he has purchased the property. Hence, the properties described in Schedules ‘B’ and ‘F’ are not available for division among the sharers.

7. However, the decree will have to provide for the performance of the trust created by the deceased. We direct the trial Court to hear all the parties and frame an appropriate scheme for conducting the Wakf as directed in Ex. A-19. The scheme may also provide for the residence of the trustee or trustees in the house, which is described in Schedule ‘B’ and item 3 of Schedule ‘F’.

8. Schedules ‘C’, ‘D’ and ‘E’: Schedule ‘C’ comprises of four items, three of which are wet lands of an extent of 3 acres 76 cents and the fourth being a building in Kalikutti Naicken Street, Nagore. Schedule ‘D’ comprises of ten items of lands. Items 1 to 6 are in Tiruvaduraimangalam. Items 1 to 5 are wet lands and item 6 is a dry land. Items 7 to 10 are wet lands in Sholanganallur village. The total extent of ‘D’ Schedule properties is 9 acres 43 cents. Schedule ‘E’ comprises of three items of wet lands in Sholanganallur village of an extent of 1.40 acres and one item of wet land measuring 2.42 acres in Tiruvaduraimangalam village. Admittedly, Schedule ‘C’ stands in the name of the first defendant. Schedules ‘D’ and ‘E’ are in the names of defendants 11 and 12 respectively. It is the case of the plaintiff that they were all purchased by her deceassed father benami in the names of defendants 1, 11 and 12 respectively. The trial Court has accepted her contention and granted a decree in her favour. During the pendency of this appeal, the Benami Transactions (Prohibition) Act, 1988 has come into force. Learned counsel for defendants 1, 11 and 12 relies on the judgment of the Supreme Court in Mithilesh Kumari v. Prem Behari Khare (A.I.R 1989 S.C 1247) and submits that the Act is applicable to pending proceedings, with the result the plaintiff is statutorily prohibited from pleading benami. The said contention is well founded. The Supreme Court has ruled in the above case that the Act is retrospective in its operation and will apply to pending proceedings. Section 4(2) of the Act bars any defence based on any right in respect of any property held benami against the person in whose name the property is held.

9. Learned counsel for the plaintiff contends that the Act has come into force long after the filing of the appeal and the only question before us is to see whether the judgment of the trial Court is in accordance with the law as it stood at that time. In view of the judgment of the Supreme Court, we cannot accept that contention. It is next argued that in so far as the properties described in Schedule ‘C’ are concerned, they will fall under the exception contained in S. 3(2) of the Act and, therefore, the Court has to consider the question of benami, S. 3 of the Act reads as follows:—

“3.(1) No person shall enter into any benami transaction.

(2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.

(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three hears or with fine or with both.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) an offence under this section shall be non-cognizable and bailable.”

Learned counsel submits that in view of S. 3(2), the remaining provisions of the Act will not operate. We do not agree. A careful reading of Ss. 3 to 5 shows that the exception contained in S. 3(2) is with the limited purpose of ushering the doctrine of advancement into this country. Sub-section (1) of S. 3 prevents any person from entering into a benami transaction. If anybody enters into such a transaction, he shall be punishable under sub-S. (3), as it is an offence. S. 5 provides for acquisition of the said property without payment of any compensation. Section 4 relates to both past and future transactions. In any suit, claim or action, no person can claim title to the property held benami by another person on the basis that he is the real owner. In the light of the aforesaid provisions, the only way in which sub-section (2) of S. 3 can be construed is that it enables a person to purchase property in the name of his wife or unmarried daughter without being liable to be prosecuted and in such cases, the property will not be liable for acquisition. It is only to protect a person who purchases property in the name of his wife and unmarried daughter for their benefit as against prosecution and compulsory acquistion of property, S. 3(2) has been introduced. Whenever a property is purchased by a person in the name of his wife or unmarried daughter, the Act provides for a mandatory presumption that the said transaction is for the benefit of wife or the unmarried daughter, as the case may be. In such cases, the burden is on the person who claims it to be a benami transaction for the benefit of the purchaser and not for the benefit of his wife or unmarried daughter to prove the contrary and rebut the presumption. The Section does not mean that whenever a property is purchased in the name of a wife, it is open to the purchaser himself or persons claiming under him to put forward a case of benami.

10. This interpretation receives support also from the Statement of Objects and Reasons of the Act. The relevant part of the same reads as follows:—

“To implement the recommedations of the fifty-seventh Report of the Law Commission of Benami Trancsactions, the President promulgated the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, on the 19th May, 1988.

2. The Ordinance provided that no suit, claim or action to enforce any right in respect of any property held benami shall lie and no defence based on any right in respect of any property beld benami shall be allowed in any suit, claim or action. It, however, made two exceptions regarding property held by a coparcener in a Hindu Undivided Family for the benefit of the coparceners and property held by a trustee or other person standing in a fiduciary capacity for the benefit of another person. It also repealed S. 82 of the Indian Trusts Act, 1882, S. 66 of the Code of Civil Procedure and S. 281A of the Income-tax Act, 1961.

3. The provisions of the Ordinance received a mixed response from the press and the public. There had been criticism also that the Ordinance was a half-hearted measure and had not tackled the problem effectively and completely. It was therefore, felt that the Bill to replace the Ordinance may be brought out as a comprehensive law on benami transactions touching all aspects and accordingly the Law Commission was requested to examine the subject in all its ramifications. The Law Commission has submitted its 130th Report titled “Benami Transactions a Continum” and has made certain recommendations.

4. The Law Commission has, inter alia, recommended the inclusion of the following provisions in the Bill to replace the Ordinance, namely:—

(i) benami transactions should cover all kinds of property;

(ii) entering into a benami transaction after the commencement of the new law should be declared as an offence. However, an exception should be made for transactions entered into by the husband or father for the transfer of properties in the name of the wife or unmarried daughter for their benefit. By his, the doctrine of advancement as obtaining in the English law will be incorporated into the Indian Statute Book;

(iii) voluntary organisations, should be authorised to file complaints about the entering of benami transactions and the District Judges should be designated as Tribunals. Even Gram Nyayalayas recommended by the Law Commission may also be utilised for this purpose;

(iv) as both the benamidar and the true owner are equal participants to a criminal transaction, by prohibiting the true owner's right to recover property, held benami as provided in the Ordinance will be providing for an undue enrichment to the benamidar. As such, the Commission has suggested that the properties should be acquired from him by resorting to a procedure analogous to Chapter XX-A of the Income-tax Act, 1961. It has been suggested that the same action has to be taken when benamidar retransfers the property back to the true owner for an apparent or no consideration to circumvent the provisions of the Ordinance;

*** *** *** *** *** ***

5. The recommendations of the Law Commission have been examined. It is felt that the recommendations of the Law Commission, except the recommendation regarding authorising voluntary organisations to file complaints before tribunals and the appointment of an authority, like the Charity Commissioner, for supervising private trusts, may be specifically provided in the Bill, and the other two recommendations would, it is felt, come into effect automatically as a result of the prohibition of benami transaction and the provision for acquisition of all properties held benami. The Bill accordingly provides for the following, among other things, namely:—

(a) entering into benami transactions after the commencemtn of the new law will be an offence, with an exception for the transfer of properties by the husband or father for the benefit of the wife or unmarried daughters;

(b) all the properties held benami will be subject to acquisition by such authority, in such manner and after following such procedure, as may be prescribed by rules under the proposed legislation. As a result of the provisions of the Ordinance and the prohibition of entering into benami transactions, the benamidar would be acquiring the rights to the property by the mere lending of his name and without investing any money for the purchase of such property. Accordingly, it is provided that no amount shall be payable for the acquisition of any property held benami..”

*** *** *** *** *** ***

Hence, we hold that the plea of benami is not available to the plaintiff in respect of ‘C’ Schedule properties. A fortiori, the position is the same with respect to Schedules ‘D’ and ‘E’. As the properties in the three Schedules are standing in the names of first defendant, 11th defendant and 12th defendant respectively, they are not available for division. Hence, the decree of the trial Court has to be vacated.

11. “G” Schedule: The plaint ‘G’ Schedule relates to a business in the name of Kalic Gems, Nagore. The 11th defendant claims it to be his property. The business is carried on at 45, South Street, Nagore, which was the residence of the deceased Abdul Rahman. The business consisted of purchase of precious stones and sending them to Dawood Maracair Sons (Private) Limited at Singapore, which was being conducted by the deceased Abdul Rahman. According to the plaintiff, the business in India was really that of her father. As he was a Singapore citizen, he could not carry it on in his name and he did it in the name of the 11th defendant, who was his foster son. It is not in dispute that the business was stopped after the death of the plaintiff's father. It is the contention of the plaintiff's counsel that the said business is exclusively intended for supplying gems to the Singapore business of the deceased and the only inference possible is that it also belonged to the deceased. It is not in dispute that the licence for the business stood in the name of the 11th defendant. Ex. B-156 is a power of attorney executed by the 11th defendant in favour of deceased Abdul Rahman authorising him to act on his behalf. In order to get rid of the provisions of the Benami Transcations (Prohibition) Act, learned counsel for the plaintiff contends that it is a joint business owned by the deceassed as well as the 11th defendant and the latter is only a trustee standing in a fiduciary capacity. Learned counsel submits that S. 90 of the Indian Trusts Act will come into play and S. 4 (3)(b) of the Benami Transactions (Prohibition) Act would apply. There is no merit in these contentions. No plea was raised at any time before the trial Court or in the memorandum of Cross-Objections in this Court that the business was owned by both the deceased and the 11th defendant and that they were co-owners. No evidence has been adduced to that effect. The contention is also unsustainable on the facts of the case. Admittedly, the 11th defendant was a Director in Dawood Maricair Sons, Singapore and later he became the Managing Director. If the 11th defendant was a co-owner along with the deceased, some records would be available to prove the same. The Power of Attorney executed by the 11th defendant, referred to earlier, will also prove the contrary. In the circumstances, S. 4(3)(b) of the Benami Transactions (Prohibition) Act cannot be invoked by the plaintiff. There is nothing on record to show that the deceased Abdul Rahman had any interest in the business described in ‘G’ Schedule or that he owned the same. The trial Court has erred in drawing an inference in favour of the plaintiff from the fact that the 11th defendant was supplying stones only to the business of the deceassed at Singapore. The conclusion of the trial Court in this regard is unsustainable and the decree has to be set aside.

12. “H” Schedule: This Schedule comprises of two Life Insurance Policies taken by the deceased. The first defendant is said to be the nominee in one policy and the 11th defendant is said to be the nominee in the other policy. On the basis of the nominations, it is contended by counsel for defendants 1 and 11 that the policies have become their property on the death of Abdul Rahman. According to him, the nomination would amount to a will or assignment in their favour. He relies on a judgment of the Division Bench of this Court in D. Mohanavelu Mudaliar and another v. Indian Insurance and Banking Corporation Ltd. Salem and another (A.I.R 1957 Madras 115). The two Life Insurance Policies were taken by a person who become indebted to a bank. The bank filed a suit to recover the amount due and attached the policies before the judgment. A decree was also passed in the suit. The policy holder died and his wife, as the nominee, claimed that she was entitled to the money due under the policy. She also died and her daughter filed a claim petition that the amounts had become the assets of her and they were not liable to satisfy the decree debt. The Bench negatived that contention. While doing so, the Bench said that the nomination could only be construed as a testament, which would be subject to all the liabilities which the assured had to discharge and in that case, the debt due to bank was payable from out of the amounts due under the policy. The contest in that case was not between two heirs of the assured and the Bench had no occasion to consider the effect of nomination vis-a-vis the claim of a co-heir against a nominee.

13. It is, however, not necessary for us to deal with the question at length in view of the authoritative pronouncement of the Supreme Court in Sarbati Devi v. Usha Devi (A.I.R 1984 S.C 346). The Court has held in unequivocal terms that the nomination does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the policy on the death of the assured and that it only indicates the hand which is authorised to receive the amount, on the payment of which, the insurer gets a Valid discharge of its liability under the policy. The Court said that the amount can be claimed by the heirs of the assured in accordance with the law of succession governing them. Hence, the properties described in ∼ H’ Schedule are liable to be divided among the heirs of the deceased Abdul Rahiman. The view taken by the trial Court in this regard is correct.

14. “I” Schedule: This Schedule comprises of seven items of deposits in banks and Savings Bank Accounts. In paragraph 17 of the written statement, the first defendant has stated that she is not aware of the particulars or details of the items in the Scehdule and she has no objection to the plaintiff taking a half share in all the deposits which may be proved by her and which stand in the name of the deceased Abdul Rahman. It is now not in dispute that the deposits are all available excepting small amounts having been adjusted towards cash credit account or overdraft account. The decree passed by the trial Court with regard to this Schedule will stand. However, the actual amounts available on the date of the death of the deceased shall be decided in the final decree proceedings by the trial Court.

15. “J” Schedule: The Schedule sets out twenty one items, the last item being the cattle owned by the deceased. The trial Court has passed a decree with reference to items 2, 4 to 6 and 14 to 21. The relevant discussion is found in paragraphs 57 to 69 of the judgment of the trial Court. The availability of each item has been considered by the trial Court. The appeal relates to the items for which the Court below has passed the decree while the plaintiff has filed a Memorandum of Cross-Objections with reference to disallowed items. The case of the appellants is that item 2 is not existing while items 4 to 6 are in the hands of the 6th defendant. Items 14 to 21 are claimed to be the exclusive properties of the first defendant. The trial Court has found that item No. 2 is in the possession of the 6th defendant and defendants 1 and 11 are not liable for the said item. But, in the decree there is no mention of the 6th defendant being liable for the said item. Clause 1 of the decree merely declares that the plaintiff is entitled to partition and separate possession of half share in respect of the properties set out therein. The first defendant has admitted that the 6th defendant removed a gold chain and a ring from the body of the deceased. The evidence of P.W 1, P.W 8 and D.W 4 is to the same effect. Hence, the existence of the item is proved. What is required is only to specify in the decree that the 6th defendent is liable to produce them or pay the value thereof. A similar direction is to be given with respect to items 4 to 6 also. Even in the plaint, the allegation is that those items were removed by the 6th defendant from the body of the deceased and it was admitted by the first defendant in her written statement. The 6th defendant filed a written statement denying the same, but he has not given evidence in support of his case. In the circumstances, the Court below is right in holding that the sharers can proced against the 6th defendant. However, the Court has failed to include a clause in the decree with regard to the same. That has to be rectified.

16. As regards items 14 to 21, they are dealt with by the trial Court in paragraphs 67 to 69 of the judgment. The evidence on record has been fully considered. We do not find any justification to interfere with the finding. The contentions of the appellants cannot be accepted in this regard.

17. There is no merit in the Memorandum of cross-objections regarding the disallowed items. The evidence on record does not support the Claim of the plaintiff. Hence, the decree of the trial Court will have to stand.

18. “K” Schedule: There are two items in this Schedule. Item 1 is cash of Rs. 1,00,000/- and item 2 is cash of Rs. 39,300/-, received from Enforcement Directorate. The trial Court has granted a decree for the second item only, while dismissing the suit for the first item. The plaintiff has filed a Memorandum of Cross-Objections with reference to the first item. There is no evidence on record to prove the existence of cash to the extend of Rs. 1,00,000/- at the time of the death of Abdul Rahman. The view taken by the trial Court is correct. The Memorandum of Cross-objections has to fail.

19. As regards item 2, the contention of the appellants is that the said amount of Rs. 39,300/- was received by the son-in-law of the plaintiff, who was the counsel helping the deceased in the, proceedings before the Enforcement Directorate and he has given the money to the plaintiff. The plaintiff has denied the same. Her son-in-law is examined as P.W 9. According to him, the amount was received actually by the deceased himself and he had only identified the deceased before the Authorities. Ex. A-21 is a letter written by the Assistant Director, Enforcement Directorate, Madras, on 28-9-1978 to the plaintiff enclosing therewith a photostat copy of receipt given by the deceased Abdul Rahman acknowledging receipt of Rs. 39,300/-. The said copy of the receipt is marked as Ex. A-22. It is seen therefrom that Abdul Rahman received the amount of Rs. 39,300/- on 21-9-1974 from the Deputy Director, Enforcement Directorate, Madras. P.W 9 has identified the deceased. Learned counsel for the plaintiff contends that there is no reason whatever to disbelieve P.W 9, who is a member of the Bar and in that capacity was helping the deceased in the proceedings before the Enforcement Directorate. A suggestion was made to P.W 9 that he had obtained signatures from the deceased on blank papers. He has denied the same. There is no reason to doubt the version of P.W 9 that the amount was taken by the deceased himself from the Directorate. In about 16 days thereafter, Abdul Rahman died. No evidence has been placed before the court to show that the amount was spent by the deceased before his death. There is no evidence to prove the specific case of the first defendant that the amount was taken by P.W 9 and handed over to the plaintiff. In the circumstances, we do not find any justification to differ from the view taken by the trial Court. The finding as regards this item is, therefore, confirmed.

20. “M” Schedule: Learned counsel for the appellants submitted that he is not questioning the decree relating to ‘M’ Scedule.

21. “N” Schedule: The Schedule comprises of four items of immovable properties, three of which are buildings. There is no dispute that the property belonged to the father of the deceased. Defendants 3 to 10 were co-sharers with the deceased. All the heirs of the plaintiff's grandfather are parties to the suit. The only contention urged by the appellants is that Exs. A-27 and A-28 prove that the properties are in the possession of defendants 5 and 6 and they alone should be made liable to account for the income. While the trial Court has referred to Exs. A-27 and A-28, it has not taken note of the fact that the properties are with defendants 5 and 6. Appropriate provision has not been made in the decree as regards the same. Apart from that, the decree erroneously declares that the plaintiff is entitled to one half share in the suit properties and that defendants 2 and 8 are entitled to 1/16th and 1/32nd shares therein. The plaitiff has claimed only 1/14th share in Schedule ‘N’ Properties. The decree has to be rectified accordingly.

22. Conclusion: In the result, the appeal is partly allowed and the Memorandum of Cross-Objections is dismissed. Consequently,

(a) the decree of the trial Court relating to Schedules ‘B’, ‘C’, ‘D’, ‘E’, ‘F’ and ‘G’ is set aside and the suit is dismissed with regard to the said Schedules excepting ‘B’ and ‘F’ Schedules.

(b) As regards the properties described in Schedules ‘B’ and ‘F’, they are declared to be Wakf properties. The trial Court shall frame an appropriate Scheme for the management of the same in the final decree proceedings.

(c) In so far as the Bank Deposits in Schedule ‘I’ are concerned, the trial Court shall determine the actual amounts available for division at the time of the death of the deceased and divide the same in the final decree.

(d) The 6th defendant is in possession of items 2 and 4 to 6 in ‘J’ Schedule. He shall produce the same and make them available for division among the sharers or pay the value thereof to be divided among the sharers.

(c) The plaintiff is entitled only to 1/14th share in Schedule ‘N’ properties. Defendants 5 and 6 should make the the said properties available for division.

(f) Defendants 2 and 8 are entitled to 1/16 and 1/32 shares in ‘A’, ‘H’ and ‘I’ Schedules, items 2, 4 to 6 and 14 to 21 in ‘J’ Schedule, item 2 in ‘K’ Schedule, ‘M’ Schedule and 1/112 and 1/224 share respectively in ‘N’ Schedule properties.

(g) The decree of the trial Court directing defendants 1, 11 and 12 to render accounts with respect to Schedule ‘B’ to ‘G’ properties is set aside.

(h) In other respects, the decree of the trial Court will stand.

The parties will bear their respective costs in the appeal and in the Memorandum of Cross-Objections.

KA/RR/VCS