Mohammed Farook and Others vs Gulsum Bibi and Adam Mohammed

The Hon'' Ble Mr. Justice M.M. Sundresh

The Defendants are the Appellants herein. The suit has been filed by the Respondents being the Plaintiffs in O.S. No. 317 of 1990 for

declaration and for permanent injunction. The said suit filed was decreed by the learned District Munsif, Paramakudi. The appeal filed by the

Defendants in A.S. No. 14 of 1994, on the file of the Subordinate Judge, Ramanathapuram was also dismissed. Challenging the judgments and

decrees rendered by the Courts below against the Defendants, the present appeal has been filed.

At the time of admitting the Second Appeal, the following Substantial Questions of law have been framed:

(i) Whether the Courts below were right in decreeing the suit in the absence of Sultan not being made a Defendant in the suit, more particularly

when the issue was whether which of his two documents are valid and binding on the parties to the suit?

(ii) Whether the Courts below were not in error in holding that the Plaintiffs are in possession inspite of the fact that the Patta for the suit lands

stand in the name of the original title holder even after the alleged settlement dated 26.08.1969?

(iii) Whether the lower appellate court was not in error in not at all giving any finding with regard to the evidence of PW I, PW II, DW I and DW

II much less even making in the reference to their evidence?

It is the case of the Plaintiff that a registered gift deed -Hiba was executed by the husband of the first Plaintiff being the father of the second

Defendant on 26.08.1969, covering the suit property. In pursuant to the said gift deed, which also specifies that it is irrevocable, possession has

been given in favour of the Plaintiffs and they have been enjoying the suit property as joint owners. Since an attempt has been made by the

Defendants to interfere with the peaceful possession and enjoyment of the suit property, the Plaintiffs have come forward to file the present Suit.

A written statement has been filed by the Defendants by stating that the gift deed executed by the father of the second Plaintiff Sulthan has been

cancelled by the Settlement Cancellation Deed dated 12.10.1982. Thereafter, by a registered sale deed dated 16.07.1990, the suit property has

been sold in favour of the second Defendant. In pursuant to the sale, patta has been changed in favour of the second Defendant on 30.07.1990. It

has been further stated the gift has not come into effect as the declaration, acceptance and possession have not been proved. Therefore, the

Appellants being the Defendants before the trial Court prayed for dismissal of the suit.

The Courts below have held that the gift deed having been executed on 26.08.1969, absolutely no steps have been taken by the father of the

second Plaintiff -Sulthan to cancel the same until 12.10.1982, after long time. If it is the case of the Defendants that the said deed has been

obtained by force and coercion, nothing prevented the donor to take steps within a reasonable time. The Courts below have further held that

Exs.A.2 to A.20 would clearly prove that the Respondents being the Plaintiffs are in actual possession and enjoyment of the suit properties apart

from other properties. Patta has been changed in the name of the Plaintiffs and in order to show the possession, P.W. 2, who is a neighbour

owning the lands has been examined, who has deposed in favour of the Plaintiffs. The Courts below accepted the evidence of P.W.2. It has been

further held by the Courts below that the sale deed under Ex.B.1 has been hurriedly executed, a few days prior to the suit and the patta has been

transferred within two weeks thereafter. The Courts below considered the evidence of D.W.2, who made contrary statements regarding the

possession of Sulthan over the suit property. Therefore, the Courts below have rejected the same on the ground that he has got no knowledge

about the suit properties. Therefore, considering the voluminous evidence, both oral and documentary, the Courts below decreed the suit as

prayed for.

The Learned Counsel for the Appellants has submitted that the declaration of the gift followed by acceptance and delivery of possession has not

been proved by the Plaintiffs. It is his case that a mere factum of a written gift with due registration cannot be a ground to prove its validity and

under the Mohammedan Law, a Hiba does not require registration. Therefore, the donees being the Plaintiffs will have to prove with substantial

evidence that settlement deed has been given effect. The Learned Counsel further submitted that the documents relied upon by the Appellants do

not show the factum of possession and on the contrary the Appellants have produced Exs.B.1 to B.3 in support of their contentions to substantiate

their case.

In support of his contention, the Learned Counsel has made reliance upon the following judgments:

(i) Hafeeza Bibi and Ors. v. Shaikh Farid (Dead) by LRs. and Ors. - CDJ 2011 SC 497.

(ii) D.R. Rathna Murthy Vs. Ramappa, .

(iii) Mahboob Sahab Vs. Syed Ismail and Others, .

(iv) Mst. Noor Jahan Begum Vs. Muftkhar Dad Khan and Others, .

(v) Bibi Riajan Khatoon and Others Vs. Sadrul Alam and Others .

Per contra, the Learned Counsel appearing for the Respondents submitted that the Courts below have given factual findings based upon

evidence, both oral and documentary. The Courts below have relied upon the evidence of P.W. 2, who is a neighbour, cultivating the lands nearer

the suit property and rejected the evidence of D.W.2. The Learned Counsel further submitted that the documents filed under Exs.A.2 to A.20

clearly proved the factum of acceptance and possession of the suit property in pursuant to the Hiba executed under Ex.A.1. The document itself

would make it clear the suit property is given out of love and affection and it is irrevocable. It also speaks about the fact the possession having

been handed over. Therefore, it is submitted, the Second Appeal will have to be dismissed.

Admittedly, Ex.A.1 -Hiba has been executed by the husband of the first Plaintiff, who is the father of the second Plaintiff in their favour. The

document clearly states that it is irrevocable and possession has been handed over to the donees. If it is a case of coercion or undue influence

nothing prevented the donor from taking immediate steps to cancel the Hiba. It is seen the gift was sought to be cancelled unilaterally only on

12.10.1982 under Ex.B.3. It is further to be noted that not only the suit property but also other properties were also covered under Ex.A.1 -Gift

Deed. Exs. A.2 to A.20 are the documents to show that the Plaintiffs are in possession of not only the suit property but also other properties as

well. This is an important factor taken note of by the Courts below for coming to the conclusion that the gift deed has come into existence and in

pursuant to the same possession has been handed over to the Plaintiffs. Therefore, the contention of the Learned Counsel for the Appellants that

the document Ex.A.1 has not come into effect as acceptance and possession have not been proved cannot be accepted. u/s 167(1) of

Mohammedan Law, when possession has been handed over in favour of the donor being the wife, it is not open to the husband to cancel the same

thereafter. The Courts below have concurrently found that the possession has been handed over in favour of the first Respondent in pursuant to the

execution of Ex.A.1.

The Courts below have further found that under Ex.B.1, there is absolutely no evidence regarding the cancellation of gift deed. Further, patta

has been changed immediately after the creation of the sale deed and the sale deed itself has been executed few days prior to the filing of the suit as

the Plaintiffs anticipated the trouble in the hands of the Defendants. The above said facts would clearly show that Ex.A.1 has been acted upon as

there is an acceptance followed by possession on the part of the Plaintiffs.

In Hafeeza Bibi and Ors. v. Shaikh Farid (Dead) by LRs and Ors., CDJ 2011 SC 497, the Hon''ble Apex Court was pleased to hold that

acceptance of the gift by a donee either be expressed or implied and the delivery and taking of possession thereof can either be actual or

constructive. In Mulla, Principles of Mohamedan Law (19th Edition), Page 120, it has been stated as follows:

Under the Mahomedan law the three essential requisite to make a gift valid:

(1) declaration of the gift by the donor

(2) acceptance of the gift by the donee expressly or impliedly and

(3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such as

case.

In the present case on hand, the donor is the husband and father of the Plaintiffs. Therefore, considering the said relationship coupled with

documentary and oral evidence, this Court is of the view that the findings of the Courts below that the declaration, acceptance and delivery of

possession are duly established do not warrant any interference. It is no doubt true that a gift would become valid not withstanding the form but on

satisfying the three criteria of declaration, acceptance and delivery. A deed of gift under Mohammedan law is nothing but a piece of evidence.

Therefore, by taking into consideration of Ex.A.1 as a piece of evidence, this Court is of the view that it has come into effect.

In the judgments relied on by the Learned Counsel for the appellants in D.R. Rathna Murthy Vs. Ramappa, , the issue was as to whether a

registration is required for a valid gift deed under Mohammedan law. While considering the said issue, the Hon''ble Apex Court has also

considered the ingredients for valid gift. As discussed above, the Plaintiffs have satisfactorily proved the ingredients of a valid gift.

The reliance made by the Learned Counsel for the Appellants in Mahboob Sahab Vs. Syed Ismail and Others, is of no assistance. The issue in

the said case was as to whether the mother of a minor belonging to Muslim religion can act as a legal guardian or not.

In Bibi Riajan Khatoon and Others Vs. Sadrul Alam and Others , considering the scope of Section 167 of the Mohammedan Law, it has been

held as follows:

12... As regards the question whether the donor could cancel the deed of gift by the subsequent deed. Suffice it to say that in the Mohammodan

Law by Mulla, 19th Edition by M. Hidayatullah Article (Section) 167 indicates circumstances under which a deed of gift could be revoked. In case

the donor has not relinquished his control and domination over the property, and before the donee enters into possession the donor is justified in

cancelling the gift. The reason is that before delivery of possession there is no gift under Mohammedan Law. In view of discussions made

hereinbefore, the decree of the lower appellate Court could not be sustained.

As discussed above, in the present case on hand, the Courts below have correctly held that Ex.A.1 has been given effect and therefore, the very

cancellation of gift by settlement deed itself was one without power or authority.

In Mst. Noor Jahan Begum Vs. Muftkhar Dad Khan and Others, , the question for consideration was the presumption in favour of the gift

deed which contains the recital regarding possession. The following passage is apposite:

It seems to me that under Mohamedan Law a recital in the gift deed that possession has been delivered to the donee of the property gifted

gives rise to a presumption only of such delivery and the presumption may be rebutted by those challenging the gift. The presumption may be

rebutted by establishing that the subsequent conduct of the donor is inconsistent with the making of the gift or by demonstrating the patent

improbability of what is stated by the recital.

Applying the said ratio laid down in the said judgment to the present case on hand, this Court is of the view that in view of the clear recital under

Ex.A.1, a presumption has been created in favour of the Plaintiffs regarding acceptance and possession. Such a presumption can only be rebutted

only those who are challenging it. Therefore, it is for the Appellants to rebut the said presumption.

In the present case on hand as discussed above, the donor has not taken any steps excepting revoking it unilaterally in the year 1982.

Admittedly, the Appellants were not aware of the revocation of the deed as seen from the evidence of P.W. 1 as after the execution of A.1, the

donor was not seen several years in the village. Therefore, they were not aware of the execution of Ex.B.3, which has been executed after long

years after the execution of Ex.A.1. Therefore, there is no necessity for making donor as party to the suit and in any case the Appellants have not

taken any steps to examine him as he has executed the sale deed under Ex.B.3 in their favour.

The Learned Counsel for the Appellants submitted that when the findings of the Courts below were based upon perversity, the power u/s 100

of the CPC can be invoked. However, considering the facts of the case, this Court is the view that there is no perversity in the findings rendered by

the Courts below. The Courts below have taken into consideration the documentary evidence filed by the Plaintiffs to substantiate their case that

Hiba has came into effect and the Hiba has covered not only the suit property but also the other properties as well. Therefore, the said document

will amply prove the fact that the Hiba has been come into effect meaning thereby the declaration made by the donor has been accepted and

possession has been handed over to the Respondents. Hence, this Court is of the view, the contention of the Learned Counsel for the Appellants

deserves to be rejected.

For the reasons stated above, this Court does not find any merit in the appeal and substantial questions of law are answered against the

Appellants and in favour of the Respondents.

Accordingly, the Second Appeal is dismissed. In the circumstances of the case, there is no order as to the costs.