Andhra HC (Pre-Telangana)
Bepari Shaik Peeran vs Kamalapuram Mahaboob Bi And Ors. on 10 July, 2001
Equivalent citations: 2003(6)ALD31, 2002(6)ALT116
JUDGMENT P.S. Narayana, J.
1. The unsuccessful plaintiff in the Courts below is the appellant. The appellant/plaintiff instituted the suit O.S. No. 4/85 on the file of Principal District Munsif, Proddatur for declaration of title relating to the plaint schedule property and for recovery of possession and also for future mesne profits and for costs of the suit. Since the 2nd defendant died, her legal representatives were brought on record as defendants 3 to 10 by an order in I.A. No. 233/85, dated 16-8-1985.
2. On the strength of the respective pleadings of the parties, Issues were settled and the evidence of PW-1 to PW-6 and DW-1 to DW-4 had been recorded and Exs.A-1 to A-26 and Ex.B-1 were marked and the Court of first instance after recording evidence had arrived at a conclusion that the gift deed Ex.A-1 does not satisfy the third ingredient of delivery of possession under the Muslim law and hence the said document is not valid and after recording certain other findings also apart from this finding, dismissed the suit and aggrieved by the same the unsuccessful plaintiff had preferred A.S. No. 1/87 on the file of Subordinate Judge, Proddatur and the said Appeal also was dismissed and aggrieved by the same the present Second Appeal is filed.
3. The real controversy in the present Appeal revolves around Ex.A-1 - a gift deed, executed by one Jahara Bi in favour of the appellant/plaintiff relating to the plaint schedule property. The principal question which had been argued elaborately by both the counsel is relating to the validity of Ex.A-1. Though in the Grounds of Appeal several questions had been raised and also shown as substantial questions of law, the only substantial question of law that arises for consideration in this Second Appeal is as follows:
Whether the gift deed Ex.A-1 executed by a Muslim is invalid merely because the third ingredient of delivery of possession is not satisfied though she had not retained any other rights over the domain ?
4. Sri K. Subrahmanyam Reddy, the learned Senior Counsel appearing on behalf of the appellant/plaintiff had mainly contended that the findings recorded by both the Courts below that Ex.A-1 is invalid merely on the ground that the third ingredient in the case of a gift by a Muslim i.e., delivery of possession is not satisfied and hence the said gift is invalid, cannot be sustained since except the right to enjoy the property during lifetime even without right of alienation nothing more had been retained by the said Jahara Bi and hence the findings recorded by both the Courts below that the document Ex.A-1 is invalid on the said ground are totally illegal and unsustainable. The learned Counsel no doubt had pointed out to certain other relevant facts also but had mainly concentrated only on this question and the learned Counsel further while elaborating his submissions had maintained that if this question is decided, automatically the appellant/plaintiff is entitled to succeed in the suit, especially in the light of the peculiar findings recorded by both the Courts below. The learned Counsel pointed out to the relevant findings recorded by the Court of first instance and also the appellate Court. The learned Counsel further contended that as per the recitals in Ex.A-1 it is clear that on the date of Ex.A-1 itself absolute rights had been given away to the appellant/plaintiff, and what had been retained is the right to enjoy limiting it to only maintenance without even right of alienation and in the light of these recitals since all the rights had been transferred except retaining the right of enjoyment, the gift cannot be said to be invalid. The learned Counsel also further maintained that when absolute rights had been given under a gift, necessarily always the ingredient of delivery of possession need not be satisfied and it is one of the exceptions. The learned Counsel also had drawn my attention to the finding recorded by the trial Court that absolute interest had passed in favour of the appellant/plaintiff under Ex.A-1. The learned Counsel further pointed out that it was held to be invalid only on the ground that possession was not delivered and the third condition relating to the validity of a gift by a Muslim had not been satisfied. The learned Counsel also commented that the gift was questioned only on the ground of fraud or coercion, but however the Courts below had gone a step further and had arrived at the conclusion that Ex.A-1 is invalid for want of satisfaction of the third condition for the validity of a gift by a Muslim i.e., delivery of possession. The learned Counsel incidentally had referred to certain other documents like Ex.A-2 - registration copy of the gift deed, executed by Jahara Bi in favour of the 1st defendant and Ex.A-3 - registration copy of the sale deed executed by the 1st defendant in favour of the 2nd defendant and also the other documents, Exs.A-4 to A-22 and also Exs.A-23, A-24, A-25 and a-26. The learned Counsel also had placed reliance on NAWAZISH ALI KHAN Vs. ALI RAZA KHAN, AIR 1948 PC 134 , MD.ABDUL GHANI Vs. Mt. FAKHR JAHAN, AIR 1922 PC 281 , MASTAN BI Vs. BIKARI SAHEB, 1958 [2] AN W.R.473 , K. VEERANKUTTY Vs. P. UMMA, AIR 1956 MADRAS 514 , MOHAMED Vs. KAIRUM, AIR 1954 MADRAS 769 , DURIESH MOHIDEEN Vs. MADRAS STATE, , JAMEELA BEEVI Vs. SHEIK ISMAIL, , SHAIK KHATUM BIBI Vs. MAHAMAD ZAHINA BI, 1956 AN W.R. 771 .
5. Sri Narasimha Reddy, the learned Counsel representing the contesting respondents, on the contrary had contended that both the Courts below had recorded concurrent findings to the effect that Ex.A-1 is invalid since it does not satisfy the most essential ingredient of delivery of possession in the case of a gift by a Mohammadan. The learned Counsel also had drawn my attention to the essential ingredients of a gift under Mohammadan law and had commented that the recitals of the document Ex.A-1 are clear and no absolute rights or absolute domain as such had been created, but in fact, possession was not delivered and it is not a case of retaining only enjoyment, but it is a case of non-delivery of possession on the date of Ex.A-1 and hence unless the third essential ingredient also is satisfied, such a gift by a Muslim is definitely invalid and there cannot be any doubt as far as this aspect is concerned. The learned Counsel also with all emphasis had contended that under Ex.A-2, not only the gift was accepted, even possession was delivered and hence Ex.A-2 is definitely a valid document, whereas Ex.A-1 is an invalid document. Relating to the absence of plea on the aspect of delivery of possession, the learned Counsel commented that it is a matter relating to interpretation of a document and when the validity of Ex.A-1 was specifically raised, all these questions are only incidental questions and hence the Courts below are well justified in recording such findings. The learned Counsel also had drawn my attention to Ex.A-23 and Ex.A-24 and had commented that these documents - G.P.A. dated 8-12-1983 and also the registered will dated 20-12-1983, clearly go to show that the appellant/plaintiff also was conscious of the fact that this Ex.A-1 is an invalid document and if that is not the reason there is no necessity of having Ex.A-23 or Ex.A-24. The learned Counsel also had meticulously taken me through the findings recorded by both the Courts below and had ultimately concluded stating that at any rate there is no substantial question of law involved in the matter and hence in the light of the concurrent findings, the Second Appeal is bound to fail in view of the limitations imposed on this Court under Section 100 of the Code of Civil Procedure.
6. Heard both the counsel at length.
7. The only substantial question of law which arises for consideration in this Second Appeal had been already specified supra. The plaint schedule property is an extent of Acs.2-42 cents in Maduru Village. It is not in dispute that originally this property belonged to one Jahara Bi w/o. Fakruddin and she is the mother's sister of the appellant/plaintiff. The said Jahara Bi had only one son and he died long ago and therefore she developed love and affection towards the appellant/plaintiff and he was brought up as her foster son and out of love and affection she had gifted the plaint schedule property on 7-5-1973 in favour of the appellant/plaintiff and executed a registered gift deed - Ex.A-1. This is the crucial document around which the whole controversy revolves. As per the terms of this Ex.A-1, the donor had to enjoy the income from the property during her life but however she had no right of alienation and the other absolute rights had been given to the appellant/plaintiff. The said gift deed was voluntarily executed and the same was accepted by the appellant/plaintiff and no doubt subsequent thereto there were certain ill-feelings and hence the donor left the house of the appellant/plaintiff and executed another gift deed dated 28-9-1979 - Ex.A-2, in favour of the 1st defendant in respect of the plaint schedule property. The 1st defendant had executed a sale deed in favour of the 2nd defendant and as already referred to supra, the legal representatives had been brought on record. The said sale deed dated 26-6-1980 is marked as Ex.B-1 and the registration copy of the said sale deed is marked as Ex.A-3. Inasmuch as the said Jahara Bi died on 14-12-1984 and in view of the fact that the cause of action arose only subsequent to her death, the suit was instituted. No doubt, it is recorded that the 2nd defendant died even prior to the institution of the suit but however defendants 3 to 10 were brought on record and defendants 5 to 10 remained ex parte. Defendants 1 and 4 filed separate written statements and the 3rd defendant filed adoption memo. The stand taken by them is to the effect that Jahara Bi was the absolute owner of the property and the appellant/plaintiff had exercised undue influence and by playing fraud, obtained the gift deed - Ex.A-1, and no doubt several other allegations had been made relating to the aspect of undue influence and fraud. It was also further pleaded that Jahara Bi had learnt that fraud was played on her and hence she executed another gift deed in favour of the 1st defendant with full rights and thus she became absolute owner of the plaint schedule property by virtue of the gift deed defendant 28-9-1979, marked as Ex.A-2. The 4th defendant had taken a stand that the 1st defendant is the owner of the plaint schedule property and she had executed a registered sale deed in favour of the 2nd defendant - Ex.B-1, and since then the 2nd defendant was in possession till her death and subsequent thereto defendants 3 and 4 are in possession of the property. A specific stand was taken that the appellant/plaintiff will not get any title to the plaint schedule property under the invalid gift deed - Ex.A-1.
8. As can be seen from the material available on record, the appellant/plaintiff is the donee under Ex.A-1 and the 1st defendant/1st respondent is the donee under the original of Ex.A-2 and the 1st defendant is the vendor and the 2nd defendant who is no more is the vendee under Ex.B-1. Several of the facts are not in dispute and hence those facts need not be discussed in detail. The Courts below, apart from Ex.A-1 to Ex.A-3, had also discussed Ex.A-4 to Ex.A-22 and also Ex.A-23 to Ex.A-26. The plaintiff had examined himself as PW-1 and apart from his evidence there is evidence of PW-2 to PW-6. No doubt, PW-1 had deposed about Ex.A-1 to Ex.A-26 and he had also taken specific stand that Jahara Bi in fact was living with him only in the same house. PW-2 is a licenced document writer at Proddatur and the scribe of Ex.A-1. PW-3 is the attestor of the will Ex.A-24. PW-5 is one of the attestors of Ex.A-1 gift deed. These witnesses no doubt had deposed about the voluntary execution of the gift deed Ex.A-1 by Jahara Bi in favour of the appellant/plaintiff. PW-6 is the attestor of Ex.A-22 - Mahazarnama. The 1st defendant was examined as DW-1 and DW-2 is the husband of DW-1. DW-3 is a resident of Chenchupalle village who stated that he cultivated the suit land on lease for 35 years and he was giving 14 bags of paddy to Jahara Bi towards lease and he gave grains for 2 years to DW-1 and thereafter stopped cultivation. The 4th defendant was examined as DW-4.
9. Though several documents had been marked, Ex.A-1 to Ex.A-3 alone are crucial for the present purpose. As far as fraud and undue influence are concerned, the Courts below had recorded finding that Jahara Bi executed Ex.A-1 voluntarily. However the main ground on which Ex.A-1 was held to be invalid and consequently Ex.A-2 and Ex.A-3 were held to be valid, was that there was no delivery of possession under Ex.A-1 gift deed. The essential ingredients of a gift under Mohammadan law are as follows:
A declaration of gift by the donor; An acceptance of gift, express or implied by or on behalf of the donee; delivery of possession of the subject matter of the gift by the donor to the donee either physically or constructively.
10. Both the Courts below had recorded a finding that inasmuch as it is not the case of the appellant/plaintiff that he had taken possession of the plaint schedule property under Ex.A-1 and there is no recital also to that effect, the gift is invalid. This is the exact question which had been elaborately argued by both the counsel.
11. In THIMMAIAH Vs. NINGAMMA, it was held that unless the High Court in Second Appeal expressly arrives at a conclusion contrary to the concurrent findings of the courts below, it must be taken that such findings are accepted and necessary inferences from such findings must be necessarily made. In VEERAYEE AMMAL Vs. SEENI AMMAL,
11. it was observed that it is distressing that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some Judges of the High Court with the result that the objective intended to be achieved by amending Section 100 appears to have been frustrated. It is also true that no doubt the High Court while deciding a Second Appeal arising out of concurrent findings should be more careful and cautious while deciding the matter (V. PECHIMUTHU Vs. GOWRAMMAL, , PADIKAL MADAPPA Vs. C.B. KARIAPA AND OTHERS, . In HAFAZAT HUSSAIN Vs. ABDUL MAJEED, [2001] 7 SCC 189, it was held that the rule of non-interference in the case of concurrent findings is not an absolute rule of universal application. In the present case on hand, the main question is interpretation of the recitals of Ex.A-1 and the legal effect thereof. No doubt, certain other documents had been marked and some oral evidence also had been let-in by the parties. On appreciation of facts, the concurrent recorded by both the Courts below is that Ex.A-1 is invalid since it does not satisfy the third ingredient of delivery of possession since it is a gift made by a Muslim. Since it is only the interpretation of a document, the same being a pure question of law, can be definitely gone into in a Second Appeal, since that by itself will be a substantial question of law.
12. The recitals of Ex.A-1 already had been dealt with supra. The validity of Ex.A-2 and Ex.A-3 will depend upon the validity or otherwise of Ex.A-1. Further, when Ex.A-1 is held to be valid, the subsequent documents Ex.A-2 and Ex.A-3 will automatically fall to the ground. It is no doubt true that to constitute a valid gift made by a Mohammadan, three ingredients are to be satisfied and the third ingredient is delivery of possession. Here is a case where as can be seen from the recitals of Ex.A-1 absolute rights had been given to the appellant/plaintiff and what had been retained was the limited right of maintenance to enjoy the income out of the property and that too even without the right of alienation. Thus, the intention of the donor Jahara Bi while executing Ex.A-1 is very clear that she intended to deliver the entire domain of this property with absolute rights in favour of the appellant/plaintiff, but however only retaining the right to enjoy the income without the right of alienation during her lifetime. This recital of postponement of the right to enjoy income from out of the plaint schedule property by the appellant/plaintiff is construed to be non-delivery of possession under Ex.A-1 and consequently it was contended by the learned Counsel for the respondents that the document is an invalid document. It is pertinent to note that when absolute domain or absolute rights had been created in favour of the appellant/plaintiff under Ex.A-1, the mere fact that the right to enjoy the property under the said document had been postponed and that right of enjoyment had been retained by Jahara Bi, by itself cannot invalidate Ex.A-1. In the decision referred (7) supra, it was held that it is well established that in order to constitute a valid gift under Mohammadan Law, three necessary elements which constitute such a gift are, a declaration of gift by the donor, acceptance of the gift by the donee, which acceptance may be express or may be inferred by necessary implication and lastly delivery of possession of the subject matter of the gift by the donor to the donee. But, in the course of time, certain exceptions have been engrafted in the matter of upholding of a gift notwithstanding immediate delivery of possession of the subject matter of the gift and one such exception is a case where the donor without reserving a dominion over the corpus of the property or any share therein stipulates only for a right to enjoy the income from the property during his lifetime or makes a gift subject to a condition that the donee shall pay the whole of the income from the property or a part thereof to a person of his choice during the lifetime of such a person. In the decision referred to (1) supra, the Privy Council held as follows:
".....In general, Muslim Law draws no distinction between real and personal property, and their Lordships know of no authoritative work on Muslim law, whether the Hedaya or Baillie or more modern works, and no decision of this Board which affirms that Muslim law recognizes the splitting up of ownership of land into estates, distinguished in point of quality like legal and equitable estates, or in point of duration like estates in fee simple, in tail, for life, or in remainder. What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafi). Over the corpus of property the law recognizes only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests."
13. Reliance also was placed on the decision of the Privy Council on the decision referred to (2) supra in this regard. In the decision referred to (4) supra, it was held that where property is transferred by way of a gift and the donor does not reserve dominion over the corpus of the property, nor any share of dominion over the corpus but stipulates simply for and obtains a right to the recurring income during his life, the gift and the stipulation are both valid and the reservation of usufruct does not by itself make the gift of the property in question void under Muhammadan law and that applies not only to Shias but also to Sunnis. In fact, the Division Bench of the Madras High Court in this decision had followed the decision of the Privy Council referred (2) supra and also NAWAB UMJAD ALLY KHAN Vs. Mt. MOHUMDEE BEGUM, [1867] 11 MIA 517 . The construction of a gift creating life interest in income of certain land under Muhammadan law had been dealt with in the decision referred (5) supra. In the decision referred to (8) supra, it was held that in the case of a gift to A for life and thereafter to B where there is no compelling language to the contrary, Courts might reasonably construe the gift as a gift of the corpus absolutely to B and of the usufruct to A for life so as to conform to the Muslim Law governing Hiba. In the decision referred to (3) supra where the intention indicated by the documents was that the donees were being then vested with the right which the donor had and thereafter the donor reserved for herself the retention of the properties which according to the later passages in the documents were for enjoying the produce till the donor's life time, by mere use of the word 'life-time' in the documents it cannot be said that the donee intended to convey only vested remainders in favour of the donees and that had that been her intention she would not have applied for transfer of patta in favour of one of the donees nor the gift deeds would have been accompanied with the possession of the property and in view of the language of the gift deeds the gifts in question were held to be valid. Further, reliance also was placed on the decision referred (6) supra.
14. It is no doubt true that certain of the decisions cited are distinguishable on facts. But the question is when absolute rights had been transferred under a gift by a Mohammadan, whether such document will be invalid for the mere reason that the right to enjoy the property is postponed inasmuch as such rights are retained by the donor herself for life ? From the recitals of Ex.A-1, the intention of the donor is clear and categorical to convey absolute rights in favour of the appellant/plaintiff. In fact, while retaining the right to enjoy the income for maintenance, a restriction not to have the right of alienation, also is imposed and this is also suggestive of the fact that what had been conveyed by the donor to the donee under Ex.A-1 are absolute rights in the plaint schedule property and hence the mere fact that there was no delivery of possession in presenti on the date of the document cannot by itself invalidate Ex.A-1. In fact this is the view expressed even by the Privy Council in the decision referred (2) supra. On a careful reading of the decisions referred to supra, it can be seen that no contrary opinion had been expressed in this regard. In the case of passing of absolute rights under a gift by a Muhammadan, the postponement of enjoyment will definitely fall under an exception and on that ground it cannot be said that Ex.A-1 is invalid and this view expressed by me also is in accordance with the view expressed by our High Court in the decision referred to (3) supra and also a Division Bench of the Madras High Court referred (7) supra. It is needless to point out that in the light of the view expressed by me relating to the validity of Ex.A-1, the appellant/plaintiff is entitled to the relief prayed for since the validity of Ex.A-2 and Ex.A-3 will depend upon Ex.A-1 only. Except this Point, no other Points had been urged though relating to the conduct of the parties certain documents like Ex.A-23 and Ex.A-24 had been referred to.
15. Hence, in view of the findings recorded by me relating to the interpretation of Ex.A-1, I am of the considered opinion that the appellant/plaintiff is bound to succeed in this Second Appeal. Accordingly, the Second Appeal is allowed. No order as to costs.