Mt. Naurozi vs Nafaf Ali Sah and Others

James, J.—This is a second appeal from the decision of the Subordinate Judge of Gaya reversing a decision of the Munsif. On 11th July 1921, Najaf Ali Shah executed a deed of gift whereby he purported to convey the whole of his property to his daughters Mt. Latifan and Mt. Mahbuban. In 1926 Najaf Ali and his daughters joined in executing a usufructuary mortgage of certain jagir land which had formed part of the subject-matter of the deed of gift to Mt. Naurozi, wife of Abdul Ghani. In 1935, Mt. Naurozi who had been ejected from the mortgaged property instituted a suit for the mortgage money and damages against Najaf Ali and his daughter. Mt. Mahbuban had died before the suit was decided and her daughter Mt. Kanizan was substituted as her personal representative. On 19th June 1935, Mt. Naurozi entered into a compromise with Mt. Latifan and Mt. Kanizan whereby it was agreed that the name of Najaf Ali should be expunged from the record as a person having no interest in the mortgaged property and that there should be a money-decree against the daughter and grand-daughter for the amount claimed. On 23rd September 1935, Mt. Kanizan instituted a partition suit against her aunt Mt. Latifan in which Najaf Ali was subsequently impleaded, while later still the purchaser of the property with which we are here concerned was added as a defendant.

Mussamat Naurozi ''put her decree into execution attaching the property which had been mortgaged under Order 21, Rule 54. Najaf Ali thereupon on 16th March 1936 preferred a claim under Order 21, Rule 58, which was dismissed on 21st of March apparently for default. He then instituted the suit out of which this appeal arises under Order 21, Rule 63 making defendants Mt. Naurozi and his own daughter and grand daughter. During the pendency of the suit the property was brought to sale in the execution proceedings when it was purchased by Umacharan Lal. This man was not a party to the present suit, but he was added as has been stated above as a defendant in Mb. Kanizan''s suit for partition. Najaf Ali prayed for a declaration that the property in suit belonged to him and not to his daughter and granddaughter; and he prayed for an injunction restraining Mt. Naurozi from putting up the property for sale; but, he failed to obtain an injunction before the execution proceedings came to an end. Mt. Naurozi by her written statement alleged that the plaintiff had acquiesced in the compromise in the mortgage suit and that the claim under Order 21, Rule 58 had merely been made in order that it might be possible for Najaf Ali to institute a suit under Rule 63. She put forward the deed of gift of 11th July 1921 and alleged that the plaintiff had not been in possession of the property of which title was transferred by the deed of gift.

At the trial of the case the issues between the parties were stated in very broad and general terms; but when the parties came to evidence the Munsif remarked that the plaintiff admitted execution of the deed of gift and the usufructuary mortgage, but alleged that both of these transactions were mere benami transactions carried out at the instance of Abdul Ghani, Mt. Naurozi''s husband. There was no suggestion in the plaint that these transactions had been benami or collusive on which account the Munsif declined to consider the evidence on that point. For the rest, the Munsif found that possession had been given of the property conveyed by the deed of gift which was therefore valid and effective and he dismissed the suit. He also remarked that after the purchase by Umacharan Lal, it was necessary for the plaintiff if he wished to succeed to amend his plaint and pay ad valorem court-fees.

The decision was reversed on appeal by the Subordinate Judge who stated the points for determination as follows: (1) whether the suit is maintainable without a prayer for recovery of possession, and whether the court-fee paid on the plaint is insufficient, (2) whether the deed of gift by the plaintiff in favour of his two daughters is a farzi transaction, and whether the gift is invalid for want of delivery of possession of the property to the donees, and whether the property was liable to be attached in execution of the present defendant l''s decree against defendants 2 and 3 only.

On the first point he found in favour of the appellant and this matter need not now be further discussed, because the plaintiff ''was entitled to institute a suit under Order. 21 Rule 63, against the persons who had been parties to the case under Order 21, Rule 58,,and he was not obliged subsequently to implead the auction-purchaser unless he chose to do so. On the second point the Subordinate Judge found in favour of the plaintiff. He remarked that it was incumbent upon the defendant who sought to set up the gift to show very clearly that all necessary formalities were observed by the plaintiff; and he went on to say that

a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession.

Mr. B.P. Sinha on behalf of the appellant takes exception to each of these propositions. The burden of proof lay upon the plaintiff to show that he was entitled to resist the attachment of this property: AIR 1930 255 (Privy Council) . Mr. B.P. Sinha is correct in the manner ''in which he states this proposition; but if this mere misstatement of the burden of proof stood alone; it would perhaps not be of very great importance, because on the whole, the evidence discussed by the learned Subordinate Judge is that which is adduced by the plaintiff; but, the learned Subordinate Judge apparently misdirected himself on the point of law when he stated that it was necessary that the donor should physically depart from the premises with all his goods and chattels and the donee should then formally enter into possession. Mr. Sinha cites the decision pronounced by Sir George Lowndes in AIR 1932 13 (Privy Council) wherein it was observed that there was no necessity in the case of a gift by a husband to his wife of actual vacation by the husband and actual taking of separate possession by the wife; and it was remarked that the declaration made by the husband, followed by the handing over of the deed, were simply sufficient to establish a transfer of possession.

This decision was relied upon by a Division Bench of this Court in of Mt. Kanizan Vs. Mt. Latifan and Others, wherein it was held that the same principle would apply in the case of father and daughter, and that the declaration of possession which was given to Mahbuban would be sufficient to give possession at any rate of the house in which lived the family consisting of the, donor and the donees of ''the gift. The learned Subordinate Judge was thus misled in imagining that the donor had to do very much more than actually was necessary in order'' to validate his gift under Mahomedan law; and he has further made mistakes in dealing with the evidence in the case. He remarks that.

it is an undisputed fact that after the date of the deed of gift an usufructuary mortgage bond was executed jointly by the plaintiff and his two daughters in favour of defendant 1 and a sale deed was also executed jointly by the plaintiff and his two daughters.

He goes on to say that.

if the gift by the plaintiff to his two daughters had been valid, the plaintiff would not have joined in the usufructuary mortgage bond and the sale deed.

It is curious to observe that from the facts attending the execution of these two deeds, the Division Bench of this Court in the appeal in the partition suit came to a conclusion exactly opposite to that of the learned Subordinate Judge; and it appears that the learned Subordinate Judge erred in stating that it was an undisputed fact that these two deeds were executed, if by that he meant that it was admitted that the deeds were executed by Najaf Ali as the person who purported to be the owner of the property sold or mortgaged. The learned Subordinate Judge has also remarked that the husband of defendant 1 has stated in his evidence that the plaintiff''s daughters got possession over the gifted property five or six years after the gift, wherein the learned Subordinate Judge has misread the record of evidence made by the Munsif. What the witness said was that the plaintiff''s daughters got possession over the gifted property and that five or six years after the gift they mortgaged it to Mt. Naurozi.

I consider that in the circumstances the decision of the learned Subordinate Judge cannot be supported and the case in any event must be remanded in order that the appeal may he reheard. The lower Appellate Court should remember that the issues on which definite finding of fact is required are not whether the deed of gift was benami or collusive since that was not alleged in the plaint; but the questions are: (1) Did the plaintiff give actual possession to his daughters of the property conveyed by the deed of gift? or (2) Did he give constructive possession of this property? (3) If not, was the deed of gift inoperative? I would se aside the decision of the lower Appellate Court and remand the appeal to the District Judge for disposal by himself or by a Court subordinate to him in accordance with law. Costs may abide the final event. I may add after hearing the judgment of my learned brother that I entirely agree with his observations.

Rowland J.

The trial was embarrassed by the state of the pleadings, the plaintiff having simply alleged in para. 6 of his plaint that the properties do hot belong to defendant 2 or defendant 3 and the plaintiff has indefeasible right, title and interest and the plaintiff is still in possession and possession did not pass to defendants 2 and 3. He said nothing whatever in his plaint about the deed of gift. In the written statement in paras. 11 and 12, the contesting defendant denied the allegations in para. 6 and asserted that the plaintiff had gifted away the property in dispute to his two daughters and put them in possession. In para. 12 she added that thereafter the two daughters dealt with portions of the properties by several registered deeds and the plaintiff admitted their right to so deal with them. The plaintiff could have filed a rejoinder denying execution of the deed or denying the registered deeds referred to in'' para. 12 or denying his admission of any right of his daughters to deal with the properties. There is no such rejoinder or denial. The only point on which there is a direct contradiction of fact between the plaint and the written statement is as to possession.

If the plaintiff wishes to controvert the other allegations in defendants'' written statement, paras. 11 and 12, I would like to leave it open to the Subordinate Judge to permit him to do so, otherwise the statements of fact not controverted by him may be taken to be admitted. Should he contradict the statements I have referred to, the defendant should be permitted to give proof of those allegations. I agree with the proposed order.