Hajee Kunju Kamathu vs Asikutti and Others

S. Velu Pillai, J.—This appeal by the 3rd defendant was pressed only as regards item 1 of the suit properties. He laid claim to it under Ext. III which for the purpose of this appeal may be taken to be a gift deed under Muhammadan Law. The 1st defendant was admittedly the owner of item 1 and if Ext. III is valid, the plaintiff represented here, by respondents 1 to 10, or shortly, the respondents would have no right to a decree concerning this property. The court of first instance upheld the validity of Ext. III on the view that the 3rd defendant was constructively in possession of the property under Ext. III. The lower appellate court holding that Ext. III was not a(sic)panied by delivery of possession, granted a decree to the plaintiff with respect (sic) this property also. Hence this appeal. In coming to the conclusion that the appellant was constructively in possession of the property pursuant to Ext. III, the trial court relied on mutation in the name of the appellant and on the payment of tax by him. Apparently the court was relying on the observations of the Privy Council in AIR 1922 281 (Privy Council) , extracted at page 114 in Mulla''s commentaries on Mohammadan Law, 14th Edition. In the aforesaid case, a portion of an impartible zamindari had already passed to the donee under the gift. Their Lordships observed that the whole zamindari and not a part of it only must for the purpose of the case be regarded as one property, the taking possession of any part of it, being constructively, the taking possession of the whole. This was the principle upon which the case was decided, a principle which can have no application to the present case where no part of item 1 was taken possession of by the appellant. On this very ground Md. Abdul Ghani v. Mt. Fakhr Jahan was distinguished by the Bombay High Court in Kadarbhai Gulamhusein and Others Vs. Nanibibi and Others, . In a later case Mohammed Aslam Khan v. Khalilul Rehman Khan, AIR 1947 P.C. 97, the Privy Council reiterated the rule of Mohammadan Law that if there is a reservation of the possession of the property gifted by the donor during his life, the gift is not competent.

In the present case under Ext. III, after allotting the properties grouped under various schedules to the several donees, Ext. III provided that the 1st defendant donor would enjoy all the properties gifted during his life-time and the donees would take the property absolutely only after him. It was further provided that he could encumber the properties to the extent of Rs. 500/- but so as not to make it liable for interest. In other words the donor could transfer possession of any of the properties in Ext. III, while encumbering the same. The learned counsel who appeared for the appellant relied only on the following observations in K. Veerankutty Vs. Pathummakutty Umma and Others, .-"An absolute grant is made in the first instance and the reservation to be in possession of the property and enjoy the income therefrom during the life-time of the donor cannot be understood as derogating from the earlier grant, but it is only an affirmation or reservation of a subordinate right to enure for a specified period". Counsel therefore contended that under Ext. III, also by the earlier recital allotting various properties by the schedules in which they are comprised, there was an absolute grant and the subsequent reservation to be in possession of the property and enjoy the income thereform cannot be understood as derogating from the earlier grant. I cannot agree to this construction of Ext. III. The operative part of the disposition in favour of the donees in Ext. III comes after the creation of the life-interest and says that after the donor''s life-time the donees may enjoy the properties absolutely. So, even on the terms of the document the present case is distinguishable from the case aforesaid. The gift which was the subject of consideration by the Madras High Court was made by the natural guardian of the first donee. No transfer of possession is required in the case of such a gift-see Mulla on Mohammadan Law, 14th Edition, Section 155. K. Veerankutty v. P. Umma is therefore distinguishable. The Travancore-Cochin (sic) Court in Mytheen Beevi Umma v. Ittappiri Varkey, 1956 KLT 444 also he (sic) view that where the donee was not to take the possession of the property in the life-time of the donor the gift cannot be valid. It follows therefore that there is nothing in the present case to take Ext. III out of the general rule of the Mohammadan Law.

It was faintly suggested that there is a finding of the trial court that the appellant had come into possession of the property after Ext. III. This cannot avail the appellant. He had set up a case that he was in possession of this item of property even before the date of Ext. III under a lease which was found against. If subsequent to the date of Ext. III by some arrangement the appellant came into possession of the property, he derived no advantage so far as Ext. III was concerned. In order that it may be valid it must have been accompanied by delivery of possession. The appellant is not therefore entitled to succeed. The appeal is dismissed with costs.