Ismail Gani vs Maim Ponn Pattu Beevi and another

The first defendant is the appellant. The first respondent herein filed suit O.S.No.140 of 1984 before the District Munsif''s Court, Melur, against

the appellant and the second respondent for declaration and permanent injunction on the following averments:

The suit property of an extent of 60 cents in R.S.No.293/2 out of a total extent of 3 acres 22 cents in Nadumandalam Village, Natham Vattam,

originally belonged to her father Kattuvan Rowther and on his death there was a partition under a registered deed Ex.A-1 on 12th April, 1956.

Under the partition, the suit property was allotted to the first respondent''s mother Ayesha Beevi Ammal. Since the first respondent was not

allotted any share in the properties of her father, the mother Ayesha Beevi executed a gift deed Ex,A-2 dated 7.5.1964 in favour of the first

respondent in respect of the property allotted to Ayesha Beevi. The first respondent in her turn, executed a registered deed of maintenance under

Ex.A-3 dated 7.5.1984 in favour of her mother Ayesha Beevi, under which Ayesha Beevi was given a right to enjoy the income from the

properties without powers of alienation during her life time and thereafter the property was to be taken by the first respondent. Ayesha Beevi was

in enjoyment till she died on 11.11.1982 and since her death the first respondent was in possession of the suit property. As her possession was

sought to be disturbed by the appellant on or about 20.4.1984, the suit came to be filed.

The appellant resisted the suit contending inter alia as follows:

The suit property was purchased by the appellant under Ex.B-1 dated 25.8.1950 and under Ex.B-2 dated 14.5.1951 and the patta for the suit

property also stood in his name. He had been possession and enjoyment of the suit property as would be evident from the various kist receipts

Exs.B-5 to B-23. The gift deed Ex.A-2 in favour of the first respondent was not true and valid. The mother Ayesha Beevi had made a hiba, as

early as 1.7.1963 and therefore the first respondent could not claim title or possession. The suit was therefore liable to be dismissed. The second

respondent did not contest the suit and remained exparte.

The trial court framed as many as five issues and on an appreciation of the materials available, upheld the first respondent''s claim and granted

her a decree as prayed for by its judgment and decree dated 23.4.1985. The trial court found that Ex.A-2 gift deed was true and given effect to. It

also negatived the plea of adverse possession and prescriptive title set up by the appellant.

The appellant filed appeal A.S.No.234 of 1985 before the Subordinate Judge''s Court, Madurai. The learned Subordinate Judge by his

judgment and decree dated 31.10.1986 confirmed the decision of the trial court and dismissed the appeal. Aggrieved the present second appeal

has been filed.

At the time of admission the following substantial questions of law were raised for decision in the second appeal:

(1) Whether the courts below erred in holding that there was a valid operative and legally enforceable hiba or gift under Ex.A-2 in favour of the

plaintiff?

(2) Whether the courts below erred in ignoring the appellant''s title to the suit property under Exs.B-1 and B-2 and in overlooking the fact that

Ex.A-1 and the other evidence on record do not clothe Ayesha Beevi with any title to the suit property? and

(3) Whether the courts below erred in holding that the appellant cannot sustain hiba in his favour and his plea of prescriptive title by adverse

possession was not made out under law on the evidence on record?

Mr.A.Ramanathan, learned Counsel for the appellant, contended that on a reading of Ex.A-2 it would be clear that pursuant to the gift, no

possession was given to the first respondent and under Mohamedan law gift without parting with possession would be invalid. The learned Counsel

also contended that even in the year 1963 long before the execution of Ex.A-2, the mother had given the suit property to the appellant by an oral

hiba and if that oral hiba was accepted, the subsequent gift deed under Ex.A-2 would be invalid and would not give title to the first respondent.

The learned Counsel further contended that the appellant had in any event prescribed for title by adverse possession.

In support of his various submissions the learned Counsel relied on several passages from Mullah on Mohamedam Law, V.R.Verma on Islamic

Law and the following decisions:

(1) Maqbool Alam Khan Vs. Mst. Khodaija and Others, ; (2) Valia Peedikakkandi Kutheessa Umma and Others Vs. Pathakkalan Naravanath

Kumhamu and Others, ; (3) K.S.Mahomed Aslam Khan v. Khalilul Rehman Khan and others. AIR 1947 PC 97; (4) Nasib Ali Vs. Wajed Ali,

Nagoor Ammal (died) and another v. M.K.M.Meeran and others 1954 (I) MLJ 11; (6) Mir Taher Ali Khan Vs. Chairman, A.P. Housing Board

and Others, ; (7) Mahboob Sahab v. Syed Ismail and others 1995 (2) LW 153 SC; (8) S.V.S. Muhammad Yusuf Rowther and Another Vs.

Muhammad Yusuf Rowther and Others, AIR 1931 7 (Oudh) and (10) Mahendra Apex Corporation Ltd., by its General Power of Attorney

holder, K.M. Padmasali Vs. Jafrulla and Others,

The learned Counsel particularly stressed the point that mutation took place in the name of the first respondent only after the life time of the mother

and that the first respondent as P.W.I had admitted that possession was taken by her only after the death of the donor.

Per contra, Mr.K.R.Thiagarajan, learned Counsel for the contesting first respondent, contended that the oral hiba pleaded by the appellant and

also his claim by; adverse possession had been negatived by the courts below and these were factual findings and did not call for interference in

second appeal.

So far as the question of the validity of Ex.A-2 was concerned, the learned Counsel contended on the basis of the very same commentaries by

the learned authors Mulla and Verma on Mahomedan Law and the several decisions cited that there was nothing to show that possession was not

handed over to the first respondent pursuant to Ex.A-2 gift deed and the recitals in Ex.A- 3 also did not show that the first respondent, after taking

the gift under Ex.A-2 gave back possession to her mother. The courts below had property considered the various aspects of Mahomedan Law

and had come to the right conclusion that Ex.A-2 was a valid document transferring rights in favour of the first respondent and no exception could

be taken to the decision rendered by the courts below.

The appellant and the second respondent are the brother, of the first respondent, there mother being Ayesha Beevi. Ayesha Beevi got certain

properties in a partition under Ex.A-1 dated 1.5.1956. At the time of partition, the daughter, viz. the first respondent was not given any property.

Reciting this and with a view to provide for the first respondent, Ayesha Beevi executed Ex.A-2 on 7.5.1964. The recitals in Ex.A-2 are clear

regarding the motive for executing Ex.A-2 and regarding the handing over of possession of the property to the first respondent.

The learned Counsel for the appellant drew attention to paragraphs 148, 149 and 150 of Mulla''s Principles of Mohamedan Law. The relevant

passages run as follows:

Relinquishment by donor of ownership and dominion:- It is essential to the validity of the gift that the donor should divest himself completely

of all ownership and dominion over the subject or the gift.....

The three essentials of a gift:- It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance

of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as

mentioned in sec.150. If these conditions are complied with, the gift is complete.

Delivery of possession:- (1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is

susceptible of. As observed by the Judicial Committee, ""the taking of possession of the subject matter of the gift by the donee, either actually or

constructively,"" is necessary to complete a gift.

Again, in Verma Islamic Law in paragraph 201 it is stated as follows:

A gift is a transfer of property or right by one person to another in accordance with the provisions of this Chapter and includes:-

(a) a hiba, an immediate and unconditional transfer of the ownership of some properly or of so right, without any consideration or with some return;

and

(b) and ariat, the grant of some limited interest in respect of the use or usufruct of some property or right.

(2) Where a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called sadaqah.

In paragraph 208 it is stated as follows:

Gift how made:-

(1) A gift may be made:-

(a) by a declaration made orally or in writing of the gift by the donor or his agent;

(b) by the acceptance of the gift expressly or impliedly by or on behalf or the donee; except in the case of a gift of a debt to the debtor or by a

guardian to his ward; and

(c) by the delivery of possession of the subject of the gift to the donee in the manner required by Sections.209 and 210.

(2) A gift shall take effect from the date on which possession is delivered.

In paragraph 209 it is stated as follows:

Physical possession must be delivered for completing a gift of any property, whether moveable or immovable, except in the following cases:

(a) where the property is in the possession of some other person;

(b) where the nature of the property does not admit of physical delivery;

(c) where the donee is already in possession;

(d) where the donee is the husband or wife of the donor;

(e) where the donee is the word of the donor and the property is in possession of the donor

(f) where the gift is made to a trustee having the custody of the property which is the subject of the gift, provided that the donor-

(i) in case (a) does all that be can to enable the donee to obtain possession;

(ii) in cases (b) to (f) makes a declaration or does any act indicating a clear intention to divest himself of his rights in the property.

In Maqbool Alam Khan Vs. Mst. Khodaija and Others, dealing with the three requirements of a valid gift under Mohamedan Law the

Supreme Court stated as follows:

The three requirements of a valid gift under Mohamedan Law are declaration, acceptance and delivery of possession. ..... To validate the gift

there must also be delivery of possession, or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain

possession. If, apart from making a declaration, the donor does nothing else, the first is invalid.

In Valia Peedikakkandi Kutheessa Umma and Others Vs. Pathakkalan Naravanath Kumhamu and Others, , the question arose whether a gift

by her husband to a minor wife and accepted on her behalf by her mother was valid. The High Court in that case held that in Muhammadan Law

such a gift was invalid. However, the Supreme Court reversed the decision of the High Court and held that,

the intention to make the gift was clear and manifest because it was made by a deed, which was registered and handed over by the donor to his

another-in-law and was accepted by her on behalf of the minor daughter.

In the opinion of the Supreme Court there was a complete intention to divest ownership on the part of the donor and to transfer the property to the

donee, and both on the texts and authorities such a gift must be accepted as valid and complete. The Supreme Court observed that in so far as the

donor was concerned, there was delivery of possession and the deed also recorded that fact. It will be useful to extract a portion of paragraph 11

on this point by the Supreme Court;

The rules on the subject may first be recapitulated. It is only actual or constructive possession that completes the gifts and registration does not

cure the defect nor is a bare declaration in the deed that possession was given to a minor or any avail without the intervention of the guardian of the

property unless the minor has reached the years of discretion. If the property is with the donor he must depart from it and the donee must enter

upon possession. The strict view was that the donor must not leave behind even a straw belonging to him to show his ownership and possession.

Exceptions to these strict rules which are well recognised are gifts by the wife to the husband and by the father to his minor child. Later it was held

that where the donor and the donee reside together an overt act only is necessary and this rule applies between husband and wife.

In AIR 1932 13 (Privy Council) it was held that even mutation of name was not necessary, that it was enough to have declaration of delivery

of possession in the deed and the delivery of deed was sufficient to establish transfer of possession and that the donor must entertain intention to

make the gift and to complete it by some significant overt act.

It is not necessary to refer to the other decisions cited by the learned Counsel for the appellant, particularly when we have the high authority of

the Supreme Court on the question of proper gift.

In the light of the ratio of the Supreme Court; if we examine the materials available in the present case, then there can be no two opinions that

there was a valid gift under Ex.A-2 to the first respondent. At the same time, it may be useful to refer to the decision of this Court in Muhammad

Yusuf Rowther and another v. Muhammad Yusuf Rowther and others1959 (I) MLJ 14 in which it was held that a declaration by the donor in a

deed of gift of having parted with possession of the property gifted is an admission as against the donor and binding upon him those claiming under

him. In Ex.A-2 there is a positive declaration that possession was handed over to the first respondent. The declaration so made would undoubtedly

be binding on Ayesha Beevi and the appellant claiming as he did under Ayesha Beevi was equally bound by such a declaration.

The learned Counsel for the appellant drew my attention to the discussion by the lower Appellate Court regarding the validity of the gift. The

lower Appellate Court has referred to Maqbool Alam Khan Vs. Mst. Khodaija and Others, and observed that even if possession was not actually

handed over to the donee by the donor, under Mohamedan Lawthe gift was a valid gift. For one thing, the decision of the Supreme Court is not to

the effect that for a gift to be valid there need not be handing over of possession. But, having regard to the passages quoted from Mullah and

Verma and the decision of the Supreme Court itself, nowhere is it stated that handing over of possession was not necessary. But, the authorities

are to the effect that mere declaration in the document that possession was handed over would be sufficient to validate a gift. Perhaps the

observation of the lower Appellate Court is not happily worded. It cannot by any stretch of imagination be stated that the Lower Appellate Court

had found or observed that handing over possession was not necessary.

On a conjoint reading of Exs.A-2 and A-3, it is seen that under Ex.A-2 a valid gift was made by Ayesha Beevi in favour of her daughter, the

first respondent therein, that on the very same day the first respondent executed a maintenance deed in favour of her mother Ayesha Beevi giving

her a right to enjoy the income from the properties during her life time and also imposing an embargo on herself that she would not alienate the

property during the life time of her mother. As has been held by the Supreme Court in Maqbool Alam Khan Vs. Mst. Khodaija and Others,

mutaion of the name was totally unnecessary. It should be noted that the mother lived till 1982 and the first respondent and her mother Ayesha

Beevi were living together and after the mother''s death, she got the property transferred in ;her name and obtained a patta. I have already referred

to the fact that the appellant had not established the oral gift or his prescribing title by adverse possession. Now I have held that Ex.A-2 was a

valid gift and delivery of possession was also given to the first respondent pursuant to Ex.A-2. By the text of the Muslim Law there had been a

valid gift by Ayesha Beevi Ammal in favour of the first respondent. Under Ex.A-3 the first respondent did not give back possession to Ayesha

Beevi Ammal. She had only imposed a restriction on herself not to alienate the property during the life time of her mother.

In these circumstances, the conclusion reached by the courts below is unassailable and the substantial questions of law raised have to be

answered against the appellant. Consequently, the second appeal fails and is dismissed. There will, however, be no order as to costs.