Nurumahal Nessa and Others vs Dr. Abdul Hakim

M. Sharma, J.—This second appeal has arisen against the judgment and decree dated 7.1.85 passed by the Asstt. District Judge, Dhubri in Title Apple No. 68/84 reversing the judgment and decree passed on 24.2.84 and 8.3.84 respectively by Munsiff No. 2 Dhubri dismissing the Title suit No. 282/81.

The Respondent as Plaintiff filed the above mentioned suit for declaration that the Plaintiff has right, title and interest over the suit land specifically described in Schedule -A and also for declaration decree of permanent injunction on the Defendants restraining them from interfering with the Plaintiff''s possession and construction of building on the said land and from realising rents from two tenants with costs. The claim of Plaintiff said to he on the basis of two deeds of gills executed by his father Bazlur Rahman who had been in exclusive possession of the said land and who became the absolute owner of the property, gifted in the year 1977 That Plaintiff''s father gifted to him the suit land by registered deed dated 30.1.81 and 12.3.81 and delivered vacant possession to the Plaintiff and having accepted the gift took possession of the same and started earth filling and constructed structure of an Assam Type house to which Defendants created obstruction. Hence the suit.

The defence stand in the written statement was that the suit property was gifted to her, she being the second wife of the father of the Plaintiff in the year 1971 without execution of any written instrument but made verbally.

The issue for consideration posed before this Court is whether the gift in question created in 1981 in favour of the Plaintiff was valid within the meaning of Section 123 of Transfer of Properties Act and under the Mohammadan law as the parties in the suit is governed by their personal law.

The creation of the gift in favour of the Plaintiff was not disputed, only-objection of the Defendant was that the gift was not effective as it has not accompanied by delivery of possession as provided under the provisions of Mohammadan law.

The creation of the gift in favour of the Plaintiff is an admitted fact. Defence claim is that the said gifted land has already been verbally gifted away to the Appellant No. 1 by her husband for the maintenance of her children. Apparently Mere was no written gift deed in favour of the Appellant No. 1 The oral gift made in favour of the the Appellant No. 1 causes as the third wife Nurmahal Nessa filed a maintenance suit against her husband. The maintenance was awarded and appeal was preferred by the husband, but in a village ''challsa'' her husband agreed to give the said property to maintain her children. At the time of taking evidence, as it is seen in record, the youngest son of the Appellant was minor of 17/18 years, while the other sons were major. Further evidence on record is that the Appellant No. 1 was a school teacher; that initially one of her sons occupied the house (shed) as their tea stall and afterwards rented out to one Nripen Mahanta and rent was collected by the Appellant through her sons. The fact emerges from the stand of the Appellant that rent of the said house was given to her as maintenance allowance in 1971. In absence of any written document it cannot be ascertained whether the house with the land, as claimed by the Appellant No. 1, was given to her. PW 1 the husband of the Appellant denied any transfer of land by way of gift to his third wife. His further evidence on record is that the suit land on which temporary "Chalis" (Sheds) were standing comprises only 7/8 lechas and this was in his possession; that the remaining land was vacant and this, he gifted to the Plaintiff by registered deed. Taking the entire evidence on record, it emerges that the Plaintiff did allow his third wife Appellant to get the rent amount received from the house as her maintenance. It is his evidence that rent has been collected by his third wife till then (time of giving evidence). His categorical stand was that there was no oral gift to his third wife and whatever was given to her was maintenance allowance, collected from the house which was situated on the land measuring 7/8 lechas; that there was vacant land adjacent to it and the said vacant land was gifted away to his son Plaintiff by registered deed.

Under Mohammadan law, to be a valid gift, three essentials required to be existed are - (a) declaration of gift by the donor; (b) an acceptance of the gift, express or implied, by or on behalf of the donee; and (c) delivery of possession of the subject of gift. Another characteristic of Mohammadan law is that writing is not essential to the validity of a gift either of movable or immovable property.

In this case, the donor of the Appellant had given the house standing on 7/8 lechas of land for her maintenance. PW 1, the husband of the Appellant, admitted that the rent has been collected from the said house by the Appellant. It is also the evidence of the PW 1, as already stated, that there was vacant land adjacent to the said house. From the nature of the collection of the rent, apparently it was absolute as the rent realised was meant for maintenance of the wife with their children. It was an oral transfer in the nature of gift with an intention, i.e., to maintain his family from his third wife and possession was given by allowing exclusively to realise the profit from that property. There is no evidence on record that the rent was allowed to collect for the life lime of the wife only. All the three essential ingredients are present in the transfer and therefore it is a gift under Sec. 150 of the Mohamedan Law. The gift created to the Plaintiff Respondent by the donor, as evident on record, cannot include the land measuring 8 lechas whereon the house gifted to the Appellant stands. That portion of the land has not been delivered as that portion with the house was under the exclusive possession of the Appellants.

In view of my above discussion I hold that the land measuring 8 lechas with the house thereon has been gifted out to the Appellant No. 1 by the donor, her husband, which was under exclusive possession of the Appellants at the time of creation of the subsequent deed of gift in favour of the Plaintiff Respondent and the portion under the possession of the Appellants was not delivered by the said second gift.

In the result the appeal is allowed in part. Respondent is directed to pay cost of Rs. 1000/- to the Appellants.