Kasam Umar a minor by his next friend Momin Bonall vs Nathubhal and Another

Shah, C.J.—This first appeal arises'' from a suit brought by the minor Appellant for possession of the disputed house situated at Henagar as the sole heir of the deceased has an Shoji. The minor Plaintiff is Hagan''s fathers -brother''s son''s son. Defendant 2 Miriam is the daughter of Hagan''s sister Bohemia. Defendant 1 Gulag is a done of the house iron Has an under a deed of gift executed by Has an of 11-0-1SM2 and claims title to the property by virtue of the gift.

Has an died about a month and a shelf after the gift, and the principal question in the appeal Is whether the gift was accompanied by delivery of possession which is an essential requirement for validating a gift under the Mohammedan Law. The suit was also contested by the said Defendant on the ground of limitation. Miriam had brought a suit No 741 of 1949 In the Court of the Civil Judge Senior Division, Bhavnagnr, against Gulag for possession of ''the disputed house claiming to be the sole heir of Has an and disputing the gift in favor of Gulag.

The present Plaintiff''s guardian had applied to be Joins as a party Defendant to the said suit alleging that the minor was .the legal heir to the estate of Has an, but his application was refused and in consequence the present suit was brought on his behalf by his next friend. Miriam later withdrew her suit and she was Joined as a co-Defendant in the present suit.

She claims the house exclusively as the legal heir of Has an and in the alternative a one third share therein on the footing that the house was the property of Shoji, and that her mother Rahall having had a one-third share in Shah-JPL''s estate, she (Miriam) has inherited it as her mother''s heir.

The learned Judge below held that Haann. continued irvllvo In the house till his death that physical possession of the honsn was not

d lo Gulah but that Oulab and Vile wife of leiuod on Hnsan durlim his I Hncs and for that purse they with Hasan, though they principally lived In their own house.

In the learned Judge''s on hit on however the of the delivery of physical possession was not material because the house was under a mortgage and what was gifted was the equity redemption, and the donor had done all that was necessary and possible to deliver rasch possession as the property was capable of.

On the question of limitation he held that the suit was governed by Article 10, Limitation Act and was barred by limitation. As regards Mariam''s claim to the property the learned Judge held that it could not be enquired into that suit an in view of these findings he dismissed the suit) with costs.

The main question argued hi the appeal is as regards the validity of the gift, and though Defendant 2 has made an alternative case that the house in dispute was the property of Shahji and that she owned a one-third share .therein which was inherited by her mother Rahemji, that position is altogether inconsistent, as will be seen hereafter, and it must be taken that Hasan was the absolute owner of the house.

The house had a ground floor and two storey and Hasan occupied the upper storeys, The ground floor was let to a tenant also named Mariam. He mortgaged the house under a possessor mortgage, Ex. 19 to one Odhavji Kalidas, Rs. 1,000/- on 1-9-1942 and he continued to be in possession as Odhavji''s tenant under a contemporaneous rent note Ex. 20.

Ten days thereafter, namely, on 11th September he passed the gift deed in question in favour of Defendant 1 Gulab and admittedly will document was written by the mortgagee Odhavji Kalidas himself and1 was also attested by htm Hasan died about a month and a half after the gift and it is admitted that he was ill from poor to the date of the gift and he remained ill till death, and it is also admitted that he continue to live in the house even after the girt.

But Defendant No l''s plea is that he & his wife were living with Hasan from before the date of the gift & they continued to live with him till his death and it is argued by his learned Counsel that In view of Hasan''s Illness It was not necessary tax Hasan to depart from the house and hand over physical possession thereof to the donee In rockier to validate the gift under the Mahomedan Law,

The learned Judge below has found that the Defendants'' story that they actually lived in the house with Hasan from before the gift and did so thereafter till his death is not proved arid after considering the evidence of the witnesses on this point we agree with this finding.

Stress was laid by Mr. Lakshi for Defendant 1 on the evidence of witness Parlnbanu, ''3ic. 16, who gave tuition to the niece of the Defendant, that she went to the suit house for the purpose and that Hasan and Gulab messed toe-ether. But she went to Hasan''s house during the day avid her evidence is not sufficient to show that Gulah and his wife actually lived with Hasan. That-finding cannot be reached from the other evidence too.

All the same, the evidence does show, and that is also the view of the learned Judge below, that the Defendant and his wife spent most of their time during the ''"ay with Hasan since he was lytmr 111 and they supplied meals to him find that they looked after him and nursed html during bin Illness right up to his death Ten the view we part taking this fact assumes material importance on the question of the delivery of possession In this case .

Mr. Shah has anrued at lanai on that nature of the mortgage transaction between Pea an and Odhavji and has urged that it is not a mortgage with possession and that possession had hot been delivered to the mortgagee and had remained with the mortgagor. The precise nature of the transaction is really not material since the dispute is not between the mortgagor and the mortgagee.

However, it appears from the recitals of the document that it was an anomalous mortgage, and so far as the possessor part thereof, is concerned, the mortgagee must be deemed to be in possession, and Hasan''s possession was in his capacity as a tenant of o nun tagged under the rent note, Ex. 2o, and not in his own right us owner of the property.

Now Hasan was a Momna while Defendant 1 is a Sipoy and the two belonged to different communities and were not related to each other. Hasan was unmarried and he made the gift in favour of the Defendant because the Defendant and his wife had been looking after him since long and were almost members of his family.

The document Ex. 21 recites that the donor was making a gift of his house and had also given possession thereof to the done and had made the done full owner of the property with all powers of alienation; It further recites that the house was under a mortgage with Odhavji Kali-dash for Rs. 1,000/- and it says that the mortgage debt was to be paid by the done, Gulab, and the dons was also to spend for the obsequies and funeral of the donor.

Mr. Shah has contended that the gift is not of the equity of redemption but of the property itself and therefore the incidents as to the delivery of possession attaching to the case of an equity of redemption do not arise here and the gift could not be complete without delivery of physical possession to the done

The gift deed no doubt says that the donor was making a gift of the house and that possession was delivered to the done, but these are formal recitals made with the object of divesting the owner of all the proprietary Interest in the property. It is inconceivable that the donor was gifting the property itself even while he had only ten days previously mortgaged it with Odhavji Kalidas for Rs. 1,000/-. Odhavji Kalidas was present and has written and attested the gift deed and in fact he was privy to the gift.

In the circumstances it is quite improbable that'' the gift would be of the property itself ignoring the fact of the mortgage. As it is, the fact of the mortgage has been recited in the document itself and the done is asked to redeem the mortgage. That was with the consent of the mortgagee who thereby accepted the done as the person entitled to redeem.

The done was thus to be in the same position as the mortgagor and the donor thus divest-ed himself of all his rights in the property, a position which the mortgagee himself accepted. It is quite clear that the sift was of the sanity of redemption and the mortgagor had done all that was possible to divest himself of all rights in the property and to place the done in his position.

Mr. shah then argued that the Mahom Medan Law did not contemplate the gift of an equity of redemption inasmuch as a gift in order to be valid has to be accompanied bah delivery of possession and where the property is mortgagee art the mortgagee was in possession, the donor could nay effect delivery of possession and, therefore, could not validly make a gift.

That an equity of redemption cannot be the subject of a gift under the Mohammedan Law was no doubt the view taken in two decisions of the Bombay High Court .''''Mohinudin v. Manchershan 6 Bom 650 (A) and ''Ismail v. Ramji'', 23 Bom 682 (B), but that view has been dissented Iron by the other High Courts.

In a later Bombay case Hashimbi Yakubsaheb Beg Vs. Ajamatbi Maktumsaheb, , the question whether the equity of redemption, when the property is in the possession of the mortgagee, could form the subject-matter of a valid gift according to Mahomedan Law was not decided and was left open. All the same on theist facts of the their Lordships held in favour of the validity of the gift.

There the gift was of a house possession of which was immediately transferred to the done and of certain lands which were in possession of the mortgagee and of which immediate transfer of possession was not possible. It also appeared, that nothing was done to give intimation to the mortgagee at the time of the gift. However in a subsequent litigation between the done and the mortgagee''s their the done got possession, but the donor had died long before then.

It was held that in the circumstances the gift was a valid1 one and reliance was placed for this view on ''Chandsaheb Kasirnsaheb v. Gangabhai Vishnu'', AIR 1921 Bom 248 (D). In my opinion the ratio decidendi of this decision equally applies to the facts of the instant case.

In 6 Bom 650 (A) the property in dispute was mortgaged to one Manchershah. After the mortgage one Nurbibi brought a suit against the mortgagors for a partition and obtained a decree and in execution certain lands were measured and marked with pegs as lands falling to her share. Manchershah was not a party to the suit and he objected to the partition, and Nurblbi did not take any further steps.

She, however, made a gift of the lands to Mohinudin and on Manchershah having obtained a decree on the mortgage and having proceeded to attach the land Mohinudin brought a suit to establish his right on the basis of the gift. Thus at the date of the gift the subject of the gift was in possession of a third person who claimed adversely to the donor and it was on these peculiar facts that it was held that the gift was bad; at the same time it was observed that it followed as a necessary consequence that the mortgagor was not in possession and could not therefore pass the property by way of a gift.

There can be no quarrel with the general proposition that property not in possession of the donor but in the hands of a trespasser cannot not be validly gifted under the Mahomedan Law, The fact''s of, the instant case are however, different and. the point of the decision in that case does not arise here. Apart from it this general proposition was dissented from by the Allahabad High Court in ''Rahim Bash v. Muhammad Human 11 All 1 (E), where Manhood J. observed that "it probably carries the rule as to seizing too far.

The facts in 23 Bom 682 (B), were again different and there the gift was subsequently revoked by the donor, These two Bombay decisions were considered in ''Tara Prasana v, Shandhi Bibi, AIR 1922 Cal 422 (F). and were explained as being justified by their particular fact: and at the ''nun., time it was held that under the Mahan medan Law the right of the equity of redemption can be the subject of a valid gift. Reliance was particularly placed on ''Anwari Begum Nizam untie be the dart Law is ions of the v. Mancher-v. Rarnjl'', 23 dissented Ajiun at Lion where the proper-Image, could ill''s according and was left of the case .0 validity of possession of to the done possession of irate transfer also appeared nation to the however in a nee and the soon, but the instances the is placed for b v. Gangalu my op-vision equally isle.

In dispute Ail or the against the iced a decree leisured and her share.

suit and he jib did not ,he lands to long obtained g proceeded not a suit to gilt. Thus the fifth \\us ft ad-HE''S peculiar wiz bat); at , followed as n-favor was ore pass the general possession of can-midair Law wither, did flu-on in that 1, lilt''s the All-v. Muham-niood J. ob-ilea as to sell-were again eauentty re-ay decisions inndhl Bibi'', lined be the at r the Mahorcdemptioni elate wait 7, Nlam- uddiln Shaha'', 21 All 165 (O), and the following observations were quoted with approval:

There is no doubt that the principle of Mahomedan Law is that possession is necessary to make a good gift, but the question is, possession of what? If a idonor does not transfer to the done, so far as he can all the possession which he can transfer the gift is not a good one. As we have said above, there is, in our judgment nothing in the Mahomedan Law to prevent the gift of a right to property.

The donor must, so far as It Is passable for him. transfer to the done that .which he gives,'' namely, such rights as he himself has; but this does not imply that, where a right to Property forms the subject of a gift, the gift will be invalid, unless the donor transfers what he himself does not possess, namely, the corpus of the property. He must evidence the reality of the gift by divesting himself so far as he can, of the whole of what he gives".

In Taru Prasana''s'' case (F) the validity of the gift was disputed because the lands which were the subject of the gift were- in possession of the mortgagees at the time of the gift, and there could, therefore, be "no delivery of possession to the done. In ''Anvari Begum''s'' case (G) the gift. was of the property attached by the Collector and taken possession of by him under a local law.

Their Lordships in ''Tara Prasana''s'' case (P) held that on principle there was hardly any difference between ''Anwari Begum''s'' case (G) and the case before them, The gift of a property la possession of a tenant or lessee may be valid If the donor does all he can to put the donee in his place as regards possession which In the circumstances would be constructive, and this proposition is Indisputable.

Their Lordships of the Calcutta High Court in ''Tara Prasana''s'' case (P) said that if possession through a tenant may be constructive possession capable of being delivered so as to validate a gift, there was no reason why property in possession of the mortgagee should1 not likewise be considered to be in the constructive possesion of the mortgagor as in both cases some kind of right to proparty is left in the owner and finally they held Hut It was well settled that by possession in connection with the law of gift is meant such possession ns the nature of the subject of the gift is capable of.

This decision was followed in Muhara Bibi and Another Vs. Maharulla Mondal and Others, , where it was held that an "equity of redemption of a usufructuary mortgage can be the Subject of a valid gift even though the delivery of, actual physical possession cannot be made to the donee nod that In such cases the Intention of the parties must, be enoulred into. It was even observed that a gift invalid for want, of delivery of possession at 1.1 if time nimbi" validated by obtaining possession subsequent to the gift,

In Mt. Jamilunnissa and Another Vs. Sheikh Mohammad Zia it was held that under the Mahn-mednn Law delivery of actual possession was not necessary where the property gifted Is not ''capable of being possessed physically and all that is required is that steps Should be taken to place the done in a position to take possession effectively and- invest him with authority for that put-upon.

The patina Hal''s Court has held in Abdul Kabir and Others Vs. Mt. Jamila Khatoon and Others, that the raft of land In possession of the mortgagee IMP valid1, as possession in connection with Mohammedan Law'' of gift means only such possession as the nature of the subject of the gift Is capable-of. A gift of mere equity of redemption in ''and in possession of the mortgagee is therefore valid and conveys good title to the done.

The position, therefore, is tilt, acuity, of redemption of a mortgaged property can tee the subject of a valid; gift under the Mohammedan Lave; i and if the mortgagee is in possession then the gay-i need not be accompanied by immediate delivery] of possession, but the donor should divest himself of all his rights and should put the done in a| position to recover possession and should invest him with authority for that purpose.

Now here the mortgage was with possession1 though the actual possession was with the mortgagor under a rent note executed in favor of the mortgagee. Being in possession through the mortgagee, the donor could not be expected quit the house and put the clones in possession; he could1 not do so in law because his possession was merely of a tenant on behalf of the mortgagee.

It is urged that one Merriam, who was a tenant on the ground floor, ought to have been asked to attorney to the done, but by virtue of the mortgage Miriam too became the mortgagee''s tenant Ana the same objection obtained in her case too. It was also urged that Miriam actually paid rent to Has an after the deed of gift, but the evidence as to this is rather scrappy and there is no precise material to show that Miriam had act ally paid rent to Has an during the period between the date of the gift and his death.

Reliance was placed for the Appellant on a statement in Para 10 of Defendant l''s evidence, Ex. 23, but the statement read1 as a whole merely says that Miriam used to pay rent to them, that they kept this rent because they, that is Has an and Defendant 1, were messing together. However, it is a general statement and it does not necessarily mean that Marian had actually paid rent to Has an after the date of the gift.

The statement in Defendant l''s deposition that Miriam would be deemed to be Hagan''s tenant is a mere emersion of opinion, which lies scarcely relevant. Therefore the question of the delivery of physical possession to the done was out of question, in- this case and for the same reasons it was not possible to ask Miriam to attorney to the done.

The possession in law was that of the mortgagee, and Has an did1 all that was possible in the circumstances of the case by divesting himself of all the rights in the property and by putting Defendant 1 in a position to redeem the mortgage and by making the mortgagee to agree to a redemption of the mortgage by Defendant 1.

The question of delivering actual poi session of the property does not arise In this case, the property Rifted being an equity of redemption but assailing that It does rides. Hasan um ill since long before the gift and he could not be expected to leave the house and hand1 over your soon to the done. It is true that defile". I did not actually leave his own house and earn is to reside with Hasan in the suet house, All the same he and his wife were attending-on Hasan all the time and were with him at least during a major part of the day and for all practical purposes the were staying with him. Defendant 1 entered into actual possession of the house on Hasan''s death and is in possession since then. He performed Hasan''s obsequies & also spent for the funeral. He redeemed the morgue on V.5-2-1943 on payment of Rs, 1,575/- to Dhal aim'' (b) Civil P.O. (1908), Order 6 It. 2 - Alternative and inconsistent defence.

Where the Plaintiff claims certain property as the sole heir of H, on the basis that the property belonged to H the Defendant who also claims as the sole legal heir of H, cannot be allowed to put forward an alternative claim on the-basis of succession to one S because that would change the Plaintiff''s case altogether and would raise complex questions, as to ownership of property and of limitation etc.

(Para all)

Anon: AIR Com CPC Order 6 Rule 2 N. 5; 1953 Mullah: Order 6 Rule 2, P 578 N "Alternative... .allegations" (7 Pts extra in AIR Com. AIR Com. note illustrative).

(c) Limitation Act (1908), Articles and 144 Applicability Suit I'' or possession on nasal? of heir ship to donor after setting'' aside gift.

A sail'' for recovery of posse ion of house on the basis that the Plaintiff was the ,;ole heir to ''die deceased donor alter retting aside the-gift deed in favor of the Defendant would be governed1 by Art, 01 and not by Article 144, Limitation Act. If that gift was not revocable the donor himself would i.e. bound by it until it was judicially avoided or cancelled through Court and1 the Plaintiff who claimed through him would be equally bound by it until the gift was cancelled or set aside through Court. Such a suit is governed by Article 91 and if no such suit is brought within limitation, then the Plaintiff cannot sue to recover the estate on'' the footing of his heir fillip to the deceased, a relief which in icon stint with the gift.

Anon: AIR Com, Lim. Act, Article 91 N. 2, 3.(d):

disability.

It aioli of Win deer Article the plait the gift plaint ill Mortgaged the house- to Anr. person. The fact of his taking over actual possession immediately on Hasan''s death is an additional circumstance to he tauten leno account in considering the validity air the gift.

In the circumstances of the case, therefore, "V3n if actual possession were deemed to be a necessary requirement in order to validate the gift, the above facts should be taken as sufficient to the date the gift. We agree with the lower Court derriere, that the gift you Hasan in labor of Defendant 1 is valid under the Mahomedan Law with the result that the Plaintiff is not entitled to any reileft.

As for the case made by Defendant 2, in the first place the has not appealed against the tower Cotuit''s decree, and her learned advocate, .therefore requested that we should deal with her case in exercise of our powers under Order 41, Rule 33, CPC However, in view of the pleadings and He history of the case it becomes unnecessary to consider this aspect of the question.

In the present suit she claims the house exclusively as Hasan''s heir and in the alternative a one third thereof, for her mother''s share in Shahji''s property on the footing that it was Shahji''s property, This latter claim is, however, unsustainable. Even in the previous suit No. 741 of 11) 49 filed by her in the Bhavnagar Court her case was that on Shahji''s death the property was inherited Ay Hasan and she claimed it as Hasan''s sole heir. No claim was there made that her mother Uahemjl took a one-third share and the said share was inherited by her from her mother.

In the present suit the Plaintiffs claim inheritance to Hasan the basis that the house was Hasan''s property and the question arising for decision is as to whom the heir or heirs of Hasan are. The succession claimed here is not to Shah and a claim based on that footing cannot be ''entertained in the present suit, because that would but Introducing Anr. case and would raise compiled questions as to ownership of the property and of limitation etc. & the learned Judge was, therefore right in disallowing Mariam''s claim on the footing of heir ship to Shahji.

The dispute in the present suit has to be decided on the case made by the Plaintiff, added Defendant 2 cannot be permitted to introduce anther case, different from and inconsistent with that Plaintiff''s case. As I said, her own case Ire the former suit was that the property was left by Hasan and It seems that realizing that she had no of a claim on that basis, she now seeks o introduce the claim on an altogether different basis.

But whatever that might be, she cannot be permitted to change the Plaintiff''s case altogether to have the suit treated as one of heir ship to Shahji. Admittedly she cannot claim as an heir to Hasan, and If she cannot do it, then she can (have no relief in the present suit, even assuming; that the gift was invalid.

Turning next to the question of limitation the suit is for recovery of possession after setting aside the gift deed, that being a relief specifically claimed in para 11(1) of the plaint, and on the case made by the Plaintiff himself it is evident that the suit is governed by Article 91, Limitation Act, the cause of action arising when the facts entitling the Plaintiff to have the instrument set aside become known to him.

Mr. Phah has urged that since the Plaintiff sues to recover the estate of \\i.e. deceased as his ''heir, he not sue to cancel or set aside the gift, and insanity as the suit Is for recovery of possession of property, not based on an allegation that the Plaintiff was in prior possession and was dispossessed,, nor again that he discontinued possession, Article 144 will govern the case. In the first place there Is no scope for the contention because, in point of fact, the Plaintiff has sued for setting aside the document of gift.

Secondly the Plaintiff claims as an heir of Hasan, and therefore through Hasan, who was party to the document and he is bound to have the gilt set aside in order that he can successfully claim the gifted property. The gift here was not revocable once it was made and even Hasan coils not have revoked it.

If for any reason he had wished! to avoid It, he was bound to have it cancelled or set asido through Court because at best it was a avoidable transaction; and if Hasan was so bound, a fortiori. the Plaintiff would be bound, and until the instrument was judicially avoided or cancelled the Plaintiff could not claim the relief for possession, Such a suit is governed by Article 91 and if no such suit is brought within limitation, then the Plaintiff cannot sue to recover the estate on the footing of his heir ship to the deceased, a relief which is Inconsistent with the gift.

The Plaintiff alleges In para 0 of the plane; that he came to know of the gift about a month prior to the suit, that Is, in February 1950, and he seeks to taring the suit within limitation as having been brought within three years from the of knowledge. In a sense therefore he himself concedes that the suit is governed by Article 91. But apart from it as I said above, there can be no, doubt that the suit is governed by the said Article.

The allegation that the Plaintiff came to know of the gift deed in February 1950 is again not true. Defendant 1 was attending on Hasan during hoi illness and he used to be at Hagan''s house for that purpose. He attended to the funeral and to the obsequies of Hasan which were performed in the suit house and soon alter Hasan''s death he actually entered into possession and has continued in possession since then.

obviously these were facts which must have given Umar, father of minor Plaintiff, to know that Gulab was claiming and had occupied the house by'' virtue of the gift, made by Hasan in hair favor. It is not alleged that he was not aware of the gift and the allegation that the Plaintiff, meaning his next friend, came to know of the gift only in February 1950 is on the face of it untrue, and has been put forward with the sole object of bringing the suit within limitation.

As Umar was alive at the date of Ilasruij: death and knew of the gift, limitation for setting aside the gift deed would start from, at any rate, the time when Defendant 1 entered into possession! of the house which was at the end of October or beginning of November 1942. Limitation having: once commenced to run it will not be interrupted by the fact of the plantlet''s minority and the ski!) having been brought more than three years from that date it is clearly barred by limitation.

In the result, therefore, we confirm the-trial Court''s decree and dismiss this appeal, the Appellant paying Respondent l''s costs and bearing his own. Respondent 2 will back her own canals.

Baxi, J.

I agree.