S.M.M. Mohamed Mydeen vs S.N. Peer Mohamed

Honourable Mrs. Justice Aruna Jagadeesan

These Second Appeals are filed against the Judgement and Decree dated 28.11.2006 passed in AS.Nos.6 and 7/2006 by the learned I

Additional District Judge, Tirunelveli, confirming the Judgement and Decree dated 10.08.2005 passed in OS. Nos. 46/1997 and 308/1999 by the

learned II Additional Sub Judge, Tirunelveli. The Appellant herein filed the above said suit in OS. No. 46/1997 on the file of the I Additional Sub

Court, Tirunelveli against the Respondent herein for declaration and recovery of possession of the house bearing Door No. 155, Pulianjuvanam,

7th Street, Thiruvaranganeri, Eruvadi. He claims title of the above said property on the basis of a registered sale deed dated 18.04.1994 executed

by his mother Asan Pathumal, who in turn got the property by way of a registered gift deed dated 29.04.1993 from her husband. The brother of

the Appellant had filed a suit for partition of his share in the suit property and one another property against his mother and the Appellant herein

before the District Munsif Court, Valliyoor in OS. No. 308/1999. The said suits in OS. No. 46/1997 and OS. No. 308/1999 were tried jointly.

The suit in OS. No. 46/1997 was dismissed and the suit in OS. No. 308/1999 was decreed by the II Additional Sub Court, Tirunelveli by

common judgement dated 10.08.2005. Aggrieved by the same, the Appellant preferred appeals in AS.Nos.6 and 7/2006 and the same were

dismissed by the I Additional District Judge, Tirunelveli by common judgement dated 28.11.2006. As against the same, the present second

appeals are filed by the Appellant.

In so far as the 2nd item of the suit property in OS. No. 308/1999 is concerned, the Appellant has no objection for decreeing the suit. The

dispute between the Appellant and the Respondent is only in respect of the suit property in OS. No. 46/1997, which is the 1st item in OS. No.

308/1999 filed for partition.

According to the Appellant, the property in dispute originally belonged to the father of the Appellant and the Respondent, by name, Nagoor

Meera Sahib. He executed a deed of Hiba Ex.A5 in favour of his wife, namely, Asan Pathumal, under a registered deed dated 29.04.1993 and

delivered possession of the house to her. She accepted the gift and took possession of the property and was living thereon. The Respondent, who

is the brother of the Appellant, was permitted to reside with her. She sold the property to the Appellant by way of a registered sale deed dated

18.04.1994 under Ex.A13. Since the Respondent/Defendant refused to surrender possession to the Appellant, the suit in OS. No. 46/1997 was

filed for declaration and recovery of possession.

The suit in OS. No. 46/1997 was resisted by the Defendant/Respondent on various grounds. The defence of the Respondent/Defendant was

that the suit property did not belong to their father exclusively, but, the same was purchased from and out of the income of the joint business

carried on by Nagoor Meera Sahib and his sons, including the Defendant. As such, Nagoor Meera Sahib had no right to give the property under a

deed of Hiba in favour of his wife Asan Pathumal. The gift deed in favour Asan Pathumal is invalid, because there was no delivery of possession

and acceptance of gift. Further, the deed of Hiba is a sham and nominal transaction of Nagoor Meera Sahib and consequently, the sale deed in

favour of the Plaintiff is not true and valid and not binding on the Respondent/Defendant.

Before the Trial Court, the Appellant/plaintiff examined himself as PW.1 and examined PW.2 and PW.3 and marked Ex.A1 to Ex.A13 on his

side. The Respondent/Defendant examined himself as DW.1 and marked Ex.B1 to Ex.B16.

On analysing the evidence, the Trial Court held that Ex.A5 deed of Hiba is not valid, because there was no delivery of possession and there was

also no valid acceptance on the part of the donee Asan Pathumal and accordingly dismissed the suit in OS. N.46/1997 and decreed the suit in OS.

No. 308/1999 for partition.

The first appellate court also confirmed the said findings of the Trial Court and dismissed the appeals in AS.Nos.6 and 7/2006. As against

which, the present second appeals are filed.

At the time of admission, the following substantial questions of law were framed for consideration:

Whether the findings of the courts below regarding the factum of delivery of possession in respect of Hiba Deed; Ex.A5 is wrong and perverse,

since the courts below have failed to follow the settled law that where the dead of Hiba contains clear recitals to the effect that the donor divested

all interested into gifted property amounts to completion of delivery of possession and hence warrants interference?

Whether the courts below have failed to follow the principle of law that recitals in the deed of Hiba that the donor had handed over the

possession to the donee is binding upon the heirs of the donor who is disputing the validity of the Hiba deed?

Whether the courts below have failed to note that in a case of gift by a Mohammedan husband to his wife, the recital in the deed that possession

has been handed over to the wife is enough and so the courts below gave erroneous finding in this aspect and therefore, the said finding warrants

interference?

Whether the judgements and decree of the courts below are erroneous on account of non consideration of admissions made by the Respondent

in his pleadings?

The learned counsel for the parties were heard at length. The main attack of the learned counsel for the Appellant Mr. M. Vallinayagam was that

the courts below arrived at the findings without considering the material evidence on record and misapplied the law relating to a Mohammedan gift

and therefore, as per the principles of law laid down by the Honourable Supreme Court and this court in various decisions, this court can interfere

with the findings of the courts below u/s 100 of CPC. The learned counsel drew the attention of this court to the principles laid down by the

Honourable Supreme Court in Hero Vinoth (minor) Vs. Seshammal, . The learned counsel vehemently contended that the courts below

concurrently erred in not appreciating the oral and documentary evidence properly and failed to consider the admissions of the parties and in the

said view of the matter, the High Court is at liberty to re-appreciate the evidence as per the law laid down by the Honourable Supreme Court in

the decision reported in Ramlal and Another Vs. Phagua and Others, .

The learned counsel for the Appellant in support of the above said contentions relied on the observations made by this court in 1999-1-LW-

536 (Rajiah Nadar Vs. Manonmani Ammal), wherein it was observed that question of fact is not a taboo for Section 100 of CPC, when finding of

fact is rendered without evidence and further observed that bulk of second appeal litigants belonged to the middle class and poor section of the

Society and it has to be borne in mind that second appeal for all practical purposes would be the final stage of the litigation and interference by or

even admission of any appeal by the Honourable Supreme Court as against the judgement of the High Court is conceivable only in very few cases.

On the other hand, Mr. M.P. Senthil, the learned counsel for the Respondents contended that the Ex.A5 gift deed is invalid, because three

essential conditions of gift under the Mohammedan Law were not fulfilled. It was argued that three essential conditions are that there should be

declaration of gift by the donor and the second is that there should be acceptance of gift by donee and the last is delivery of possession of property

by the donor to the donee. It was vehemently argued that those essential conditions were not fulfilled and hence, the gift deed is invalid. The

learned counsel contended that the courts below have appreciated the evidence placed on record in a right perspective manner and no interference

by this court in second appeal is warranted in the concurrent findings of fact. In support of his contention, he placed reliance on the decisions of this

court reported in Manivanna Gounder Vs. Pachaiappa Gounder, and R. Anandavalli Vs. Alagammal and Others, .

The main question for consideration is regarding the validity of the gift deed. The donor, namely Nagoor Meera Sahib, is the husband of the

donee Asan Pathumal. The execution of the gift deed by the donor is not disputed. The first appellate court has, in its judgement, held that the

Respondent/Defendant laid emphasize on the acceptance and delivery of possession and not about the execution of the gift deed. Before looking

into the validity of the gift deed, the essential conditions of a gift deed under the Mohammedan Law have to be kept in mind. The principles of

Mohammedan Law, 19th Edition by Mulla lays down three essential conditions of a gift u/s 149. It is provided that it is essential to the validity of a

gift that there should be (i) declaration of gift by the donor, (ii) an acceptance of the gift, express or implied by or on behalf of the donee and (iii)

delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150 of the said Book. If these conditions are

complied with, then the gift is complete.

In so far as the first condition is concerned, it is apparent from the gift deed Ex.A5 that there is a clear declaration of gift by the donor in favour

of the donee. The relevant portion of this gift deed reads as under:

The courts below found that only one ingredient for a valid gift was established by the Plaintiff viz. there was declaration of gift by the donor in

favour of the donee. Regarding the other two conditions, the courts below found that delivery of possession was not proved nor acceptance of gift

by the donee was established. This finding of the courts below has been challenged by the learned counsel for the Appellant. His contention has

been that in so far as the delivery of possession is concerned, the courts below have neither considered the principles of Mohammedan Law nor

the evidence on record. He has rightly placed reliance on Section 150 of the Principles of Mohammedan Law, which lays down that it is essential

to the validity of the gift that there should be a delivery of such possession as the subject of the gift is susceptible of. Section 152 further lays down

as to what manner delivery of possession of immovable property is to be established. Sub Section (3) of Section 152 deals with case when donor

and donee both reside in the property. It further lays down that no physical departure or formal entry is necessary in the case of a gift of immovable

property in which the donor and the donee are both residing at the time of gift. In such a case, the gift may be completed by same overt act by the

donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift.

Section 153 of the Principles of Mohammedan Law is directly applicable in the instant case, because the donor was the husband and the

donee is the widow of the donor. From a joint reading of the aforesaid Sections 152(3) and Section 153, it is clear that formal delivery of

possession is not necessary, where the gift was made by husband in favour of the wife and both were jointly residing in the house at the time of

declaration and creation of the gift.

The recitals, as extracted supra, give definite intention of the donor that he has divested himself of all control over the subject matter. There is

no evidence on record to show that the donor had done any act showing that he had no intention to transfer possession of the subject matter of the

gift. In this regard, it is relevant to refer to the observation made by their Lordships of the Privy Council in Ameeroonnisa Khatoon Vs.

Abedoonisa Khatoon (2 Ind App 87 PC) that under the Mohammedan Law, where there is, on the part of a father or other guardian, a real and

bona fide intention to make a gift, the law will be satisfied without change of possession and will presume the subsequent holding of the property by

the father or the guardian to be on behalf of the minor donee. The said principle was applied in AIR 1932 13 (Privy Council) to a case of gift by a

Mohammedan in favour of his wife, where there was no change of possession or mutation of name during the life time of the husband, even though

the property was susceptible of physical delivery of possession. It is also held that the Mohammedan Law does not require actual vacation by the

husband and an actual taking of separate possession by the wife and the declaration made by the husband followed by the handing over of the

deed are sufficient to establish a transfer of possession.

In the instant case, there is a recital in the deed that the possession is delivered to the donee and therefore, it is an admission binding on the

donor and those claiming under him. It is laid down in Ismail and Others Vs. Idrish and Others, that where a deed of gift contains a clear recital

that the donor has divested all his interest in the gifted property and put the donee in possession treating them as full owner, the gift is valid and

binding on the donor''s heirs and the fact that subsequently one of the heirs of the donor, who is disputing the validity of the gift, is found in

possession of the gifted lands, cannot detract from the completeness of the gift.

By applying the said principle enunciated by the courts in the decisions cited supra, the gift is binding on the Respondent, who admittedly is one

of the legal heirs of the donor. As rightly pointed out by the learned counsel for the Appellant, the courts below have not taken into consideration

of the recitals regarding delivery of possession made in the deed and its binding nature upon the Respondent herein.

At this juncture, it is relevant to refer to the observations made by the courts below that Asan Pathumal did not live with her husband Nagoor

Meeran Sahib at the time of execution of Ex.A5 Hiba deed dated 29.4.1993. The courts below have relied upon Ex.B16 dated 18.06.2004,

death certificate of Asan Pathumal. The date of death of Asan Pathumal is 7.6.1996. A different address is given as address of Asan Pathumal on

the date of her death. At the most, It may only be presumed that on 7.6.1996 Asan Pathumal was residing in the address given in the said death

certificate. It cannot be a document to disprove the fact that she was living in Door No. 155, Pulianchuvanam, 7th Street, Eruvadi at the time of

execution of Ex.A5.

The courts below failed to note and consider the material pleading on this aspect. In paragraph 3 of the Written Statement of the

Respondent/Defendant in OS. No. 46/1997, it is stated as follows:

So, it is admitted by the Respondent/defendant that Asan Pathumal was residing in the gifted property.

That apart, the Respondent/Defendant had presented the plaint in OS. No. 308/1999 originally before the District Munsif Court, Valliyoor on

15.4.1994 i.e. one year after the execution of Ex.A5 dated 29.4.1993 and two years prior the the death Asan Pathumal in the month of June1996.

In the plaint in OS. No. 308/1999, the address given by him to Asan Pathumal, who was the 1st Defendant in the said suit, is 155,

Pulianchuvanam, 7th Street, Eruvadi. Further, in paragraph 7 of the said plaint, it is averred as follows:

The combined reading of the pleading of the Respondent in OS. No. 46/1997 and OS. No. 308/1999 extracted above clearly established that

Asan Pathumal was living in the suit house during 1993 and 1994. Therefore, it is established that Asan Pathumal was living in the suit house during

the execution of Ex.A5 gift deed even on the admission of the Respondent/Defendant in his pleading.

Further, PW.1 has stated that his mother was residing in Door No. 4B, 6th Street, which is a rented house, a week before her death. He has,

further, stated that his mother was residing in the suit house at the time of execution of Ex.A5 gift deed. There is no evidence on record to

contradict the aforesaid evidence of PW.1. The courts below have failed to consider the above material aspects available on record.

The Respondent, further, contended that there was no mutation in favour of Asan Pathumal in pursuance of the gift deed Ex.A5 and the house

tax stood in the name of donor even after Ex.A5 as per Ex.B11 house tax receipts. As has been held by the Honourable Supreme Court in

Maqbool Alam Khan Vs. Mst. Khodaija (AIR-1966-SC-1194), mutation of the name was totally unnecessary. It is also relevant to point out to

the decision of this court referred to by the learned counsel for the Appellant in the case of Inum Beevi Vs. K.S.Syed Ahamed Kabir (died) and

15 others (2001-1-CTC-52) wherein a single Judge of this court has dealt with as to what is the nature of proof that is required by the person who

comes to the court with the case that there was delivery of possession under the gift deed. In paragraphs 28 and 29 of the said decision, the

learned Judge has held as below:

As regards delivery of possession, what is the nature of proof that is required by the person who come to the court with the case that there

was indeed delivery of possession under the gift deed? The learned counsel for the Appellant relied on the following decisions:

(1) Dalip Singh Vs. Rajinder Singh and Others, , (2) Qhamarunnissa Begum Vs. Fathima Begum and Others, , (3) AIR 1932 13 (Privy Council) ,

(4) Ibrahim Bivi and Others Vs. K.M.M. Pakkir Mohideen Rowther, , (5) Johara Bibi Vs. Subera Bibi and Others, and (7) Noohu Pathuammal

and Others Vs. Ummathu Ameena and Others, .

In all these cases, the Courts have held that when the husband is the donor and the wife is the donee or when the father is the donor and the

minor child is the donee no proof of delivery of possession is required and all that is necessary is to establish a bona fide intention to give. In fact, it

has been held that even mutation of names is not necessary if the gift deed has a declaration that delivery of possession has been given. In the

decision reported in Noohu Pathuammal and Others Vs. Ummathu Ameena and Others, this is what the learned Judge says:

The fact that the husband continued to live in the house or to receive the rents after the date of the gift will not invalidate the gift, the presumption in

such a case being that the residence was on account of matrimonial obligation and that the rents are collected by the husband on behalf of the wife

and not on his own account.

From the above decision, it is manifest that in the case of a gift of a house by the husband to the wife, it is not necessary that a donor should

depart from the house in order to make the gift effective.

It has been held in decided cases that where the donee is in possession along with the donor and both residing in the same property at the time

of gift, the gift may be completed by the indication of a clear intention on the donor''s part to transfer possession. The delivery of possession may

be presumed from the circumstances of the case and actual transfer of possession will not be needed, when the property is in the use of donor and

the donee jointly for purposes of residence. It is also well settled that in the case of a gift of immovable property by the husband to the wife, the

fact that the husband continues to live in the house gifted or to receive the rents after the date of gift, will not invalidate the gift, the presumption

being that the rents are collected by the husband on behalf of the wife and not on his own accord.

In the present case, there is such clear intention of the donor to make declaration of gift in favour of the donee. Since the donor and the donee

in the present case are husband and wife and both were living together in the said house jointly, in view of Section 152 read with Section 153,

there was no necessity for formal departure of the donor and formal entry of the donee in the property and the recital made in Ex.A5 is very clear

that the donor had clear intention on his part to transfer possession and to divest himself of the control over the suit house. In view of the above

decisions, I am unable to agree with the finding of the courts below that the second ingredient regarding delivery of possession is not proved. On

the other hand, it is proved from the cogent evidence on record that the donor had delivered possession of the property to the donee.

In so far as the third condition regarding acceptance of gift is concerned, it can be presumed to have received implied consent of the donee,

who was none else, but the wife of the donor. She never repudiated during her life time the gift made by her husband. On the other hand, she had

sold the property to the Plaintiff under Ex.A13 dated 18.4.1994. Therefore, no further evidence is needed to prove the acceptance of gift by Asan

Pathumal.

Yet another submission was made by the learned counsel for the Respondent that the original deed of Ex.A5 gift deed has not been produced.

No doubt, original of Ex.A5 has not been produced. Admittedly, the Respondent/Defendant is living in the suit house. It is the case of the Plaintiff

that the Respondent had taken away all originals on the date of death of Asan Pathumal. The version of PW.1 in his evidence has not been

contraverted to by the Respondent/Defendant in cross examination. There is not even a suggestion put to PW.1 denying the same as false. Even

when the Defendant examined himself as DW.1, he has not denied the Plaintiff''s version as false. In the said view of the matter, the uncontraverted

evidence of the Plaintiff that the original gift deed had been taken away by the Defendant has to be accepted.

Thus, in my view, all the three essential conditions of a valid gift, as laid down in Section 149 of the Principles of Mohammedan Law are made

out. Therefore, the gift is perfectly valid and the view taken by the courts below is erroneous and contrary to the real intention of the donor.

Once it is found that Ex.A5 gift deed is valid, then Asan Pathumal being the owner of the suit house was competent to transfer the same to the

Plaintiff, Ex.A13 and the sale deed dated 18.4.1994 executed by Asan Pathumal in favour of the Plaintiff is also consequently valid.

The Respondent has attacked the sale deed on the ground that no consideration has been passed for the said transaction. The Respondent

relied upon the payment recitals in Ex.A13 and the oral evidence of PW.1 regarding payment of sale consideration as contradictory and therefore,

he would submit that the sale deed is invalid. As rightly contended by the learned counsel for the Appellant, Ex.A13 sale deed is a registered

document. There is clear recital in Ex.A13 regarding payment of consideration. The vendor, namely, Asan Pathumal had never raised the plea of

no consideration. As far as the Respondent is concerned, he is a stranger to the transaction of sale and he is not entitled to question the sale deed

on the ground of no consideration. Therefore, the sale deed cannot be assailed on the said ground.

For the reasons stated above, I find that all the three ingredients for valid gift under the Mohammedan Law were established by the

Plaintiff/appellant and the courts below, in my view, was apparently in error in disbelieving the gift. The suit in OS. No. 46/1997 was wrongly

dismissed by the courts below. Accordingly, the substantial questions of law are answered in the way that the gift deed is valid and consequently

the sale deed also being valid, the suit of the appellant/Plaintiff is liable to be decreed. Thus, the substantial questions of law are answered in favour

of the Appellant. In the result, these Second Appeals are allowed. The Judgement and Decree of the courts below are set aside. In so far as the

claim for mesne profits is concerned, it is relegated to a separate proceedings under Order 20 Rule 12 of CPC. The Trial Court is directed to hold

an enquiry as to such mesne profits from the date of the institution of the suit till the date of delivery of possession and pass orders in accordance

with the result of such enquiry. However, in the circumstances of the case, there will be no order as to costs. Consequently, the connected MPs

are closed.