Kerala High Court
Chavittumparakkal Thamasikkum ... vs Pokku And Ors. on 13 November, 1997
Equivalent citations: AIR1998KER134, AIR 1998 KERALA 134, ILR(KER) 1998 (1) KER 659, (1998) 1 HINDULR 533, (1997) 2 KER LJ 806, (1998) 1 MARRILJ 403, (1998) 1 RECCIVR 268, (1998) 2 CIVLJ 316
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
JUDGMENT Radhakrishnan, J.
1. Appellant is the plaintiff in a suit for partition.
2. Plaint A and 2 schedule properties originally belonged to one Kaderkully Haji. He died intestate and had no issues. First defendant is the widow of Kaderkutty Haji. Defendants 2 to 5 are the children of the deceased brother of Kaderkutty Haji and plaintiff is his sister. Since Kaderkutty Haji died intestate, according to the plaintiff, she got half share of the properties of Haji and first defendant has got half of the remaining half and that defendants 2 to 5 had got the remaining half share. Kaderkutty Haji had other items of properties and those items were partitioned as partition deed dated 11-11-82. However, the plaint schedule items were net included in the said partition. Later mediators intervened and tried to settle the matter relating to the plaint schedule properties but the same was not materialised. Defendants 2 to 5 later filed O.S. 474/83 which was dismissed for default. However, a contention was raised in the said suit by first defendant that the plaint schedule properties were gifted to her. According to the plaintiff even if the gift deed was executed the same is invalid. She, therefore, sought for partition and separation of half share of plaint A and B schedule properties.
3. In the suit defendants 4 and 5 remained ex pane. Defendants 2 and 3 admitted the plaint claim. First defendant contended that the plaint schedule properties are not available for partition. It is her case item Nos. 2 to 5 and half right over item No. 1 were gifted by Kaderkutty Haji vide Ext. B3 document. The remaming half right over item No. 1 along with item Nos. 6 and 7 were gifted in her favour vide Ext. B4 document dated 21-2-1077. She was also put in possession and she is in absolute enjoyment of the propertion virtue of the abovemenlioned documents after items 1 and 4 to 7 were assigned by her to 6th defendant, brother of the first defendant, vide Ext. B9 document dated 11 -7-84. Item No. 2 was given in wakf vide Ext. B2 document dated 8-8-84 in favour of Jumayath Committee. Item No. 3 was also given in wakf to Jumayath Committee vide document dated 8-8-84. It is her case all the remaining properties left by deceased Kaderkutty Haji were partitioned in between the plaintiff and defendants 1 to 5. Defendants 6 and 7 also filed a written statement supporting first defendant. Eighth defendant also reiterated the same contention.
4. While the suit was pending first defendant died- Sixth defendant, her brother was in the array of parties. Ninth defendant, sister of the first defendant was also later impleaded as legal representative of the first defendant. She filed written statement supporting the plaint claim and contended that she has got 112 share over the right of the first defendant and sought a decree accordingly. After the filing of a written statement plaint was got amended contending that the gift is invalid and that the assignments effected by the first defendant are also invalid. Son of the plaintiff was examined as PW-I. Sixth defendant was examined as DW-I. DW-2 and DW-3 were attestors of Exts. B4 and B3 gift deeds. Variqus documents were marked on the side of the plaintiff as well as on the side of defendants. The Court below considered the entire oral and documentary evidence and dismissed the suit. Aggrieved by the same the plaintiff has come up in appeal.
5. According to the counsel for the appellant plaint schedule properties of Kaderkutty Haji are to be partitioned among the legal heirs. It is her contention that the gift deeds B3 and B 4 have not come into effect. Even if the gift deeds were executed the properties were not put inpossession of first defendant. Deceased Haji had been in possession of the property till his death and he was appropriating the income from the said property. Properties were also not mutated in the name of the first defendant till the death of Haji. On the other hand, counsel for the respondents contended that the gift deeds came into effect and that the entire right of item No. 1 were already gifted to the first defendant and consequently if at all there is any illegality the same had already been cured. It is his further contention that execution of gift deeds have been proved by DW-2 and DW-3.
6. The entire case of the first defendant is depended upon the validity of Exts. B3 and B4 gift deeds. The question to be considered in this case is as to whether those gift deeds have come into effect. In order to prove execution of B3 and B4 gift deeds first defendant examined DW-2 and DW-3. DW-2 is the first witness to Ext. B3 and DW-3 is the second witness to Ext. B4. They have deposed regarding the execution of the gift deeds by deceased Haji. DW-3 had deposed about attestation of B3. The other attesting witness is no more. It has come out in evidence that both the gift deed's were executed just before the Haj Pilgrimage of Kaderkutty Haji. He had also deposed that possession have already been handed over to first defendant. On the side of the plaintiff only her son PW-1 was examined. He had no direct knowledge with regard to any of the transactions, fn the absence of other attesting witnesses we do not find any illegality in Court below accepting the evidence of DW-2 and DW-3 with regard to the execution of the gift deeds. We, therefore, concur with the finding of the Court below that Ext. B3 and Ext. B4 gift deeds were validly executed by Kaderkutty Haji in favour of his wife.
7. The next question to be considered is as to whether those gift deeds have actually come into effect. Three essential ingredients for the validity of a Mohamedan gift are as follows : (I) Declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of gift is susceptible of. As per Section 152 of the Mohamedan Law 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. In the instant case gift deed itself says donee had been put in possession. As held by the Patna High Court in Ismail v. Idrish, AIR 1974 Pat 54, a recital in the deed of gift that the donor has divested himself and put the donees in possession binds the donor's heirs even if one of the heirs is later found in possession. When the donor and donee both reside in the property no physical departure or formal entry is necessary in the case of gift of an immovable properly. In such case gift may be completed by some overt act by the donor and the donee.
8. In the instant case the gift deeds were lexecuted by the husband in favour of the wife.
Section 153 of the Mohamedan Law incorporates the rule laid down in Section 152(3) of the Act. If the donee is the wife no mutation of names is necessary if the deed of gift declares that the husband delivered possession to the wife and the deed is handed over to her and retained by her. When it is specifically stated in the gift deed that possession has already been handed over and the donee being the wife of the donor and that the donee and the donor were residing in the property the. burden is on the person who attacked the same to show that possession was not in fact handed over In this connection it may be relevant to refer to the decision in Balammal v. Susanrha Kumari, 1984 KLJ 60.
9. The abovementioned facts and circumstances positively show that Kaderkutty Haji had executed Exts. B3 and B4 gift deeds and the same has come into effect and the properties were under the possession and enjoyment of his wife, first defendant. Since we have found that the gift deeds executed by Kaderkutty Maji in favour of the first defendant is valid the subsequent documents executed by her in favour of D6 and D7 are also valid. Under such circumstances, we arc cf the view that the plaint schedule properties are not available for partition. The Court below is justified in dismissing the suit.
11. The appeal is accordingly dismissed.