Ayeesha Beevi vs K.S.A. Shaik Mohamed Alim Sahib and Others

K. Veeraswami, J.—This Second Appeal by the plaintiff is against the concurring judgments of the Courts below. She sued for a declaration

against the defendants, of whom the first who was her son had pendente lite died and the others were the Union of India and the Deputy Custodian

of Evacuee Property, that a deed of gift executed by her on 4th August, 1943, was not valid but void. There is no dispute that she owned the

property which was the subject-matter of the gift. The ground on which she wanted the declaration was that the gift was subject to a stipulation

and that she was entitled to revoke it as her son, the donee, failed to fulfil the stipulation. She also asserted that the gift was not completed by

delivery. The Courts below found against the plaintiff on both the points. There was a further point in the plaint that, weak as she was in age and

mind, she was made to execute the gift in favour of her son. But this was not decided by the lower appellate Court, and on verification it is found

that not even a ground was taken on that point in the lower appellate Court. Though, for the appellant here, the point was reiterated, in view of

what I have just now said I do not think it necessary to consider this aspect in this appeal. On those findings and on the ground that the suit was not

maintainable u/s 46 of the Administration of Evacuee Property Act, 1950, the suit was dismissed and the plaintiff''s appeal failed.

On the view I take on the nature of tenor of the gift deed and on the question of delivery of possession and the right of the donor to revoke a

gift, it is not necessary to consider the maintainability of the suit u/s 46 of the said Act. It is argued for the appellant that the gift contained a

stipulation and it was not, therefore, an absolute gift. But it seems to me that what learned Counsel for the appellant styles as a stipulation in that gift

deed is no more than desire or expectation on the part of the donor that her son would maintain her. In the gift deed she stated that out of love and

affection for him and in the expectation that, as a son, he would maintain her, she made gift of the property to him. That, in my view, is, not a

stipulation. A stipulation should be a demand as part of the bargain or agreement. Nowhere in the gift deed does it appear that the donee

undertook to maintain her. Learned Counsel for the appellant strongly relied on Mogulsha v. Mahaned Saheb ILR (1887) 11 Bom. 517. 36, in

support of his contention that even a desire of the donor, as in this case, can be regarded as a stipulation. In that case, it is true two learned Judges

of the Bombay High Court were of the view that a recital that the donee a father had protected the donor and that she gave him the property in full

confidence that he would continue to do so, was a stipulation. What the actual terms of the gift deed were in that case do not appear from the

report of the judgment. If all that the deed in that case had mentioned was only that the donor would continue to maintain her, I for my part, with

due respect to the learned Judges of the Bombay High Court, am not able to concur that it amounts to a stipulation. A stipulation, in my view is

something more than an expression by the donor of a confidence of that nature in the donee or a desire or a wish or an expectation that the donee

would maintain the donor. A stipulation means, according to the Concise Oxford Dictionary, demand as part of bargain or agreement. Even by

acceptance of the gift as it seems to me, it cannot be taken that the donee lifted the desire to the position of an undertaking by him to maintain the

donor. Learned Counsel for the appellant also referred me to Shepherd v. Harrison (1869) L.R. 4 Q.B.D. 196. But, I think, this case is of no

assistance to him. In my opinion, the Courts below were right in holding that the gift was an absolute one and had no stipulation such as would

entitle the donor to revoke the gift.

The second contention for the appellant is that there was no delivery of possession to complete the gift. The subject-matter of the gift was a

house in which the donor, her five daughters and her son the donee were residing at the time the gift was made by her. The words in the gift

relevant to delivery of possession are.

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I think these words are clearly expressive of the fact that the donee was put in such possession as the property was capable of. The requirement of

delivery, to constitute a valid gift under the Mohamedan Law, is not that, irrespective of the circumstances, there should always be physical

delivery. The requirement is only that there should be such delivery to the donee as the property which is the subject-matter of the gift is capable

of. In view of the fact that the donor and the donee were, at the time of the gift, residing in the house, the recitals extracted above from the gift

deed are enough to indicate that the donee was put in possession of the house, such possession as it was at that time capable of. In order to make

a valid gift by completing delivery, it was not necessary that the mother should immediately go out of the house. As Mulla in his ''Principles of

Mahomedan Law points out, no physical departure or formal entry is necessary in the case of gift of immovable property in which the donor and

the donee are both residing at the time of the gift, and in such a case the gift may be completed by some overt act by the donor indicating a clear

intention on his part to transfer possession and to divest himself of all control over the subject of the gift. The recital in the document as to the

delivery of possession to the donee is such an overt act. It is not necessary that in addition to such a recital, there should be some other overt act.

Where some such other overt act can reasonably be expected it may be perhaps necessary. What delivery the property is capable of and whether

such delivery as the property is capable has been given would depend upon the particular facts in each case. But the contention for the appellant is

that at the time the gift was made, not only the mother but also her five daughters were living in the house, that, under the Mahomedan Law, the

mother was obliged to maintain the daughters, and that being the case there was no effective delivery of the house to the donee or a valid gift of it

made by her to her son. But the obligation of the mother was not on the property, which she was free to deal with either by sale or mortgage or

gift. Merely because a Mahomedan lady had dependants whom she was obliged under the Mahomedan Law to maintain, it did not follow that

there was any limitation upon her capacity or right to deal with her own property, such an obligation being only personal to her. I consider

therefore, that the Courts below were right in their opinion that the donee was put in such possession pursuant to the gift as the property was

capable of.

The Second Appeal is dismissed, but with no costs.

No leave.

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