Dalpheroo Mian vs Bengali Mali and others

Adami, J.—The plaintiff in the suit out of which this second appeal arises sought for declaration of title and recovery of possession in respect of a house in Mouzah Berhampur. According to his case Musammat Panna received the house from her father and in 1905 made a gift of the house to her daughter''s son, Noor Mohammad, and after Noor Mohammad''s death, his uncle. Sardar Mian, inherited the properties. The plaintiff claimed to have purchased the house from Sardar Mian in 1918.

The defence was, that the house formed the joint property of Mt. Panna''s husband, Ajaeb, and Wali Mohammad, and that, after Ajaeb''s death, Musammat Panna and Wali''s son, Dalpheroo, sold a portion of the house to the defendants in order to pay off a mortgage debt. The allegation of the gift by Musammat Panna to Noor Mohammad was denied by the defendants.

The Munsif dismissed the plaintiff''s suit; he held that the plaintiffs case, that Musammat Panna received the house as a gift from her father, was false and that the house was the property of Ajaeb and Wali Mohammad. He found, too, that the case of a gift had not been made out, inasmuch as Musammat Panna and Dalpheroo had, so soon after the alleged gift, mortgaged the house. He disbelieved the allegation that Sardar Mian had been in possession of the house; in fact, he found that the plaintiff had not proved the exclusive title of Panna, that Dalpheroo had been in possession, that Noor Mohammad had never been in exclusive possession, and that Sardar had never been in possession; and, finally, that the deed of gift had been practically revoked by a transfer to their creditors by Dalpheroo and Panna.

In appeal the learned District Judge has agreed with the Munsif that the house was in the joint possession of Ajaeb and Wali. In his opinion, however, the gift to Noor Mohammad by Musammat Panna was a valid gift, and he held that, as Noor Mohammad was living with Musammat Panna, delivery of possession by vacation of the house or otherwise need not be proved. As he had found, however, that Panna could only inheris her husband''s half share of the houset he held that the plaintiff could obtain under the gift to Noor Mohammad only a half share in the house He, therefore, decreed the plaintiff suit to the extent of a half share in the house.

After the cage had been heard by the Munsif a petition was put in by the plaintiff, asking that the plaint might be so amended as to show a claim only to such share as Musammat Panna had in the house. But the Munsif, I think, rightly refused to grant the petition at that stage, inasmuch as it altogether changed the basis of the plaintiff''s suit.

The first contention by Mr. Abani Bhusan Mukberji on behalf of the appellant is that the learned District Judge is mistaken in finding that, under the Muhammadan Law, Musammat Panna as widow of Ajaeb would be entitled to the whole share which belonged to her husband. It is pointed out that under the Muhammadan Law the widow, if a child was living, would be entitled only to a one-eighth share of her husband''s property while a half share would go to her daughter, if living, and the residue would go to the brother, so that in no case could Musammat Panna have gifted to Noor Mohammad more than her one-eighth share if her daughter was living. If the daughter was living, Noor Mohammad would be able to claim a half share of Ajaeb''s property as being his mother''s share; so that out of the eight-annas share of the house belonging to Ajaeb, the five-annas share would fall to Noor Mohammad through Musammat Panna and his mother, and the other three-annas share of the eight-annas would come to Wali.

Mr. Parmeshwar Dayal, on behalf of the respondents, admits that such would be the shares and that the District Judge is not correct in finding that Ajaeb''s widow would be entitled to a half share of the whole house If, on the other hand, at the time of Ajaeb''s death, the daughter of Ajaeb were no longer living, the widow, Musammut Panna, would be entitled to a quarter share in the house and the residue would go to Wali, the brother, so that at the most Musammat Panna could only have transferred by gift a quarter share of her husband''s half share in the house. It is quite clear that the District Judge was mistaken in his rockoning of the share falling to Musammat Panna which she would have a right to gift to her daughter''s son.

Another point taken by Mr. Mukerji is, that the learned District Judge is incorrect in his view that it was not not necessary to show that there was actual delivery of possession in order to complete the gift. Mr. Macnaghten in his Precedents of Muhammadan Law, in Case No. 19 at page 233, shows that a gift by a woman to her grandson is legal and valid and cannot be revoked; and in Case No. 22, on page 231 of the same work, it is said: "In books of law it is expressly stated that if a person disposed of by gift a house to another, and continued himself to inhabit it, or even keep some part of his property therein, the gift is void from the circumstance of complete delivery and possession not having been established." Exception is made in that case to the gift of a house by a wife to her husband in which the parties continue both to reside and also exception is made in a case of the transfer by a father of his house to his son while himself continuing to occupy it, and the only exceptions to the rule that there must be actual delivery of possession seem, according to that case, to be the gift of a house by a wife to a husband or a husband to a wife, and a gift to sons by parents. This case has been upheld in the case of Azim-un-nissa Begum v. Clement Dale [1868] 6 M.H.C.R. 455. In the case of Bava Saib v. Mahomed [1896] 19 Mad. 343 it was held that where a Muhammadan woman made an oral gift of her husband''s house to her nephew on the occasion of his marriage, but subsequent to the gift continued to live with him in the house, the gift was null and void, as there was no entire relinquishment of the house of the donor and the case did not fall within the exception allowed by the Muhammadan Law. In the case of Bibi Khaver Sultan v. Bibi Rukhia Sultan [1905] 29 Bom. 468: 7 Bom L.R 443 it was held that a temporary abandonment of possession of house by the donor would be sufficient to show delivery of possession in order to complete a gift, and it is shown in that case that for the completion of the gift, abandonment even for a short time by the donor would be necessary. It seems, then, settled that in the present case the gift of the house to Noor Mohammad could not have been made complete, unless Musammat Panna, for a time at least, abandoned possession in favour of Noor Mohammad; and it is not shown that in this case there was any such vacation of the house by the lady. In the case of Saikh Ibrahim v. Saikh Suleman [1884] 9 Bom. 146 it was held that for the purpose of completing a gift of immoveable property by delivery and possession, no formal entry or actual physical departure is necessary, it is; sufficient that the donor and the donee are present on the premises, and an intention on the part of the donor to transfer has been unequivocally manifested.

In this case beyond the written deed of gift, there is no such unequivocal intention manifested; on the contrary, the donor, Mammmat Panna, soon after her deed of gift, joined in mortgaging the house which according to the plaintiff, was wholly hers, though she had already executed the deed of gift. This action of her would tend to show that there was no such intention expressed as would render unnecessary the vacation of the house by her.

These are the two chief points in the Muhammadan Law which, I think, from good ground for finding that the decision of the learned District Judge was not correct.

It remains to be considered whether the plaintiff would be entitled in this suit to recover possession of any part of the house as being his share. The plaintiff''s case was that the whole house had been Musammat Panna''s property under a gift from her father and this case has been found to be false. The plaint rests the claim wholly on the gift by Musammat Panna to Noor Mohammad and makes no claim on account of the interest inherited by Noor Mohammad or Ajaeb. It is impossible to decide what share Noor Mohammad would be entitled to, if any, for there is no finding whether Noor Mohammad''s mother, the daughter of Ajaeb, was alive at the time of Ajaeb''s death. The fact of the daughter''s existence at the time of Ajaeb''s death would make a considerable difference to the share to which Noor Mohammad would be entitled; in fact if she were not alive he would not be entitled to anything as a share in Ajaeb''s property. It is impossible to allow the plaintiff to change his case altogether from the case made in the plaint and depend on the case of the defendants for relief.

Having found that the gift by Musammat Panna to Noor Mohammad was not completed by such delivery of possession as is required by the Muhammadan Law, and having no satisfactory evidence on which to decide the share, if any, which Noor Mohammad would have acquired, I am of opinion that the plaintiff''s case must fail and the appeal must be allowed.

The decree of the lower appellate Court is, therefore, set aside and that of the Munsif restored. The appeal is allowed with costs.