Madras High Court
S.M.Syed Mohammed Bucary vs S.M.S.Mohammed Mohideen on 3 January, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.333 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2025
CORAM
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
S.A.No.333 of 2024
and
C.M.P.Nos.9986 & 9989 of 2024
and
CMP.No.20397 of 2024
S.M.Syed Mohammed Bucary ... Appellant/ appellant / plaintiff
Vs
S.M.S.Mohammed Mohideen ... Respondent / respondent/defendant
PRAYER: Second Appeal filed Under Section 100 of the Civil Procedure
Code, against the Judgment and decree dated 11.03.2024 made in
A.S.No.221 of 2023 passed by the learned III Additional Judge (FAC) II
Additional Judge, City civil Court, Chennai by confirming the Judgement
and Decree dated 19.06.2023 in O.S.No.8904 of 2019 on the file of the
learned XVII Assistant Judge, City Civil Court, Chennai.
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https://www.mhc.tn.gov.in/judis
S.A. No.333 of 2024
For Appellant : Mr.N.Jothi, Senior Counsel
for Mr.G.V.Sridharan
For Respondent : Mr.V.Raghavachari, senior counsel
for Mr.E.Prabu
JUDGMENT
The appellant has filed this Second Appeal against the judgment and decree dated 11.03.2024, passed in A.S.No.221 of 2023 by the learned III Additional Judge (FAC), II Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 19.06.2023 in O.S.No.8904 of 2019 on the file of the learned XVII Assistant Judge, City Civil Court, Chennai.
2. Heard Mr. N. Jothi, learned Senior Counsel appearing for Mr. G.V. Sridharan, learned counsel for the appellant, and Mr. V. Raghavachari, learned Senior Counsel appearing for Mr. E. Prabu, learned counsel for the respondent, and perused the material available on record.
3. For the sake of convenience, the parties herein are referred to as they were ranked in the suit.
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4. The appellant herein is the unsuccessful plaintiff before the Courts below. The plaintiff filed a suit to declare the revocation deed, as well as the settlement deed executed by his father in favor of the defendant, as null and void, along with other consequential reliefs. The defendant appeared and contested the suit. The suit was dismissed, prompting the plaintiff to file an appeal in A.S.No.221 of 2023, which was also dismissed by the learned First Appellate Judge. Aggrieved by the concurrent findings of the Courts below, the plaintiff has preferred this Second Appeal.
5. The brief facts of the case are as follows: The plaintiff, the eldest son of Mr. S.M.M. Mohideen, claims ownership of a portion of the property located at Corporation Door No. 112, Soorappa Madali Street, Triplicane, Chennai, originally owned by his father. The plaintiff asserts that he acquired 847 sq. ft. of the property through a registered settlement deed dated 03.05.1952 and has since been in uninterrupted possession and enjoyment of the property. Mr. Mohideen, who had five sons and six daughters, executed four settlement deeds during his lifetime, dividing the property equally among his four surviving sons, including the plaintiff. The 3\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 settlement deed in favor of the plaintiff, dated 11.08.2004, granted him absolute ownership of the house and the ground floor, with no conditions except for his father’s lifetime residence. The original property documents were handed over to the plaintiff's brother, S.M. Abdul Jalal.
6. In 2011, the plaintiff attempted to renovate the dilapidated tiled roof of his portion of the property, but the defendant resisted, claiming that the plaintiff’s settlement deed had been revoked. The plaintiff discovered that his father had unilaterally executed a deed of revocation on 18.07.2011 and subsequently settled the property in favor of the defendant through a new settlement deed dated 22.07.2011. Disputing the legality of these actions, the plaintiff approached the Madras High Court in W.P. No. 18051/2011, seeking a declaration that the revocation and subsequent settlement were void. This petition was dismissed on 09.12.2011, and his subsequent writ appeal (W.A. No. 1283/2012) was also dismissed on 28.06.2018. During the pendency of the writ appeal, the plaintiff’s father passed away intestate on 01.08.2014. The plaintiff later filed a review application (Rev. Application No. 195/2018) before the Madras High Court 4\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 but withdrew it on 18.11.2019. Contending that the revocation and subsequent settlement deed were invalid, the plaintiff has now filed the current suit, seeking relief from the court. The suit emphasizes his original ownership through the settlement deed of 2004 and challenges the defendant's claims based on the 2011 revocation and settlement deeds.
7. On receipt of notice, the defendant appeared and filed a written statement asserting that the suit is barred by limitation and prayed for its dismissal on the following grounds:
• The suit is barred by limitation, as the plaintiff failed to approach the court within three years from the date of cancellation of the settlement deed in 2011.
• The plaintiff filed a suit for bare cancellation of the instrument without seeking relief of declaration of title and recovery of possession, which is not maintainable.
• The settlement deed dated 11.08.2004 in favor of the plaintiff is legally unenforceable, as the physical possession of the suit property was not handed over by the settlor (the plaintiff's father). Under 5\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 Mohammedan law, a gift without physical possession is invalid and does not create any rights or title over the property.
• The plaintiff failed to take steps to update public records, pay statutory taxes, or obtain mutation of patta, demonstrating that the settlement deed was not acted upon.
• The plaintiff's father retained physical possession and enjoyment of the property, asserting his ownership by paying property tax and other charges until 22.07.2011. The defendant contends that the revocation and subsequent settlement deed executed by the plaintiff's father were valid as the original settlement deed had not been acted upon.
8. The plaintiff voluntarily gifted and handed over possession of the suit property to the defendant through a settlement deed dated 22-07-2011. Based on this, the defendant has been enjoying the property as its absolute owner, transferring all public records to his name and paying taxes related to the suit property. There was an error in the document, which was subsequently rectified. The defendant submits that the plaintiff has no right 6\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 or title over the property and has never taken possession of it. The defendant contends that the settlement deed was not acted upon, thereby granting his father the right to revoke the said document. Consequently, the defendant asserts that there is no cause of action for the plaintiff to file the suit and prays for its dismissal.
9. Before the trial court, both parties adduced oral and documentary evidence. The plaintiff was examined as P.W.1, with Ex.A1 to Ex.A3 marked on his side. The defendant was examined as D.W.1, with Ex.B1 to Ex.B9 marked on his side.
10. The trial court framed three issues, including: “Whether the suit is barred by limitation? Whether the plaintiff is entitled to relief for declaration?”.
11.Upon examining the evidence on record, the learned trial Judge held that the suit was not barred by limitation. The judge reasoned that the plaintiff approached the Court in 2011, immediately after discovering the 7\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 cancellation of the settlement deed. The matter escalated to a writ appeal in 2018, where the plaintiff was granted liberty to approach the Civil Court since the dispute involved questions of right, title and possession of the property. Accordingly, the plaintiff filed the suit in 2018, and the trial Court held that it was within the limitation period.
12. In respect of the relief of declaration, the learned trial judge held that both the plaintiff and his father are Mohammedans. The alleged settlement deed executed by his father in favour of the plaintiff must satisfy the three essential conditions.
i. Declaration of the gift by the donor.
ii. Acceptance of the gift by the donee.
iii. Delivery of possession of the property.
13. Although oral gifts are permissible under Mohammedan law, the plaintiff was required to prove that he accepted the gift. However, as per the plaintiff’s oral evidence, he became aware of the settlement deed only 10 days after its execution. He admitted that he had not taken possession of the 8\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 property, paid taxes, or updated the revenue records in his name. Furthermore, possession was not handed over by the father. Therefore, the trial court concluded that the settlement deed (Ex.A1) was not acted upon and dismissed the suit.
14. Challenging the said finding, the plaintiff filed an appeal before the III Additional (FAC), II Additional City Civil Court, Chennai, in A.S. No. 221 of 2023, raising various grounds. He argued that the trial court failed to consider that the declaration, acceptance, and possession of the property were admittedly available in the settlement deed. The trial court also failed to consider the petitioner's representation, which stated that once the gift was registered and possession was given, the gift could not be revoked under Section 167(4) of Mohammedan Law. He further contended that the trial judge failed to appreciate the fact that the transferor/settler had executed a return instrument. He prayed to set aside the trial court's findings.
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15. The appellate court independently reviewed the evidence and upheld the trial court’s findings. The appellate judge concluded that the plaintiff was never in physical possession of the suit property, did not update revenue records in his name, and failed to act on the settlement deed. Since possession had not been handed over, the settlor (plaintiff's father) retained the right to revoke the settlement deed. The appellate court further held that the plaintiff could not rely on the Transfer of Property Act, Indian Evidence Act, or Registration Act to circumvent the requirements of Mohammedan law. Consequently, the appeal was dismissed.
16. Challenging the concurrent findings, the plaintiff filed the present appeal, raising the following substantial prime grounds:
i)The Learned first appellant judge failed to consider that once the executor of the settlement deed had given the name to the deed as settlement deed it can have a re course only to the provisions of section 2(24) which defines settlement under Indian Stamps act, recourse to 10\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 Mohamedan personal law of gift is not applicable to the present instrument since the transferor did not choose to give gift by oral in terms of Mohamedan law. Once the transferor voluntarily choose a civil law in classifying an instrument as settlement and there after registering the same instrument under section 17(1) (b) there is absolutely no space for pleading the personal law of the transferor in this case. Once a Mohamedan law chooses as do some act under a civil (secular law) the protection of personal law is not available.
ii. The Learned first appellant judge failed to consider the point the Mohamedan law enables oral gift is of no relevance as in the instant case the transferor opted to execute the written instrument and registered under the Registration Act as per section 48 all other oral transfer prior to the registration will ceased to have any effect. Further under Rule 167 (1) of Mohamedan Law the gift can be revoked only before delivery of possession. And further except a decree of a Court to revoke the gift it cannot be revoked by any other manner. In the instant case admittedly in the document of settlement it is categorically held that the settlee was in 11\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 possession and accepted the settlement deed. It is therefore either by document or written statement no averment can be made to nullify the registered instrument of transfer(settlement deed).
iii. The Learned first appellant judge failed to consider the points raised in respect of declaration, acceptance and possession for making a valid gift were admittedly available in the instrument of settlement. Further it is sufficient to follow the requirement of section 2(24) to make valid settlement which states a settlement deed is a non testamentary disposition in writing of immovable property for the purpose of disturbing the property of the settlor among his family or those for whom he desires to provide or for the purpose of providing for some depended on him.
iv. The Learned first appellant judge failed to consider even if the instrument is classified as gift once it is registered and the possession is admittedly given to the transferee who accepts the gift as per the terms of the deed it cannot be revoked under section 167(4) of the Mohamedan Law without recourse to civil Court. In whatever manner it is looked upon 12\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 whether as settlement deed or a registered Mohamedan gift it cannot be unilaterally revoked either under the terms of Mohamedan law referred above or under the provisions of Registration Act as interpreted by the Judgment of the Fully Court of this Court referred above.
v. The Learned first appellant judge failed to consider the legal position that once a written instrument of transfer ( gift/settlement) is made it cannot be unilaterally revoked was held as early as 1948 reported in A.R.1948, Nagpur 328 para 9. The same principal followed in AIR 1954 (2) MLJ.
vi. The Learned first appellant judge failed to consider yet another judgment rendered by Justice K.Shanmugam in 1985 (2) MLJ page No. 138 where interesting question was raised for consideration whether the gift of immovable property by a Mohamedan if reduce writing, request registration and concluded that when it is reduced to writing it has to be compulsorily registered ad further concluded that " it follows that all documents of gift either created by Mohamedan or by a non Mohamedan 13\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 are governed by the Registration Act. The combined force of section 17 and section 49 requires that any deed of gift if reduced to writing should be registered, otherwise it would not be admissible in evidence".
Vii. The Learned first appellant judge failed to see the exhibit A-1 registered settlement deed document No.1045 of 2004 in and favour of the appellant, Page no 6 of the settlement deed very clearly stated that, "The settlor has this day put the settlee in possession of the schedule property, the settlee shall enjoy the schedule property henceforth the as absolute owner with full powers of alienation and also handed over the all originals and possession in and favour of the plaintiff/appellant.
Viii. The Learned first appellant judge wrongly come to conclusion that the Settlement deed exhibit No.Al as a gift deed. But the said document as registered settlement deed executed by appellant father in and favour of appellant not for Gift Deed. The variation of Settlement Deed and Gift deed has not been ascertained by the Lower Court.
14\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 ix. The Learned first appellant judge does not apply his mind that the settlor and settle are Muslim in which the Mohamedan law shall applies. The first appellate judge baseless observation given in his judgment, the settlement deed has executed by appellant father under the Registration Act not for Mohamedan law in which Mohamedan law does not apply in this case.
x. The Judgment of the Learned first appellant judge is against law, weight of evidence and all probabilities of the case and liable to be set aside.
xi. The Judgment of the Learned first appellant judge is arbitrary and the same is liable to be set aside.
Xii. The Judgment of the Learned first appellant judge is sheer abuse of process of law and is one sided and biased and has caused miscarriage of justice.
Xiii. Once Settlement Deed was executed and registration fees were 15\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 paid by the person. The said transaction automatically comes under the Transfer of Property Act, Indian Stamp Act, and Registration Act.
17. By relying all the grounds, the Learned Counsel for the Appellant submits that the following substantial question of law is aroused.
a. Whether in this present appeal the appellant is entitled to applicable under Mohammedan law or other Indian laws like Stamps Act, Registration Act, and Transfer of Property Act?
b. Whether the Appellant father executed settlement deed in favour of the appellant document No.1045/2004 dated 11.08.2004, the said settlement deed was revoked on 18.07.2011, registered as document No.781/2011 without knowledge of appellant. Now question is the said transactions covered under Mohammedan Law or other Civil laws like Stamps Act, Registration Act, and Transfer of Property Act?
c. Whether the execution of settlement deed is absolute or not? Once settlement deed is executed by the settlee, who is become owner of property or not?
d. The Father of Appellant has executed a Registered Settlement 16\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 deed or Gift deed ?
e. Once settlement deed was executed by the appellant's father in favour of the appellant, the possession of property is mandatory or not?
f. Whether the unilateral cancellation of Settlement deed is valid or not? without giving proper notice before cancellation of documents.
18. The Learned Counsel for the Appellant argues that the plaintiff's father executed four settlement deeds in favor of his four surviving sons. The plaintiff, being the elder son, was the beneficiary of the suit property through one such settlement deed. The deed, however, was subject to a life interest retained by the father, granting him the right to reside in the property during his lifetime. Despite this condition, symbolic possession of the property was handed over to the plaintiff. The defendant, who is the plaintiff's sister's son, clandestinely obtained a settlement deed in his favor by revoking the original settlement deed executed in the plaintiff's name. This act was allegedly done with ulterior motives and has caused significant disturbances to the plaintiff. At the earliest opportunity, the plaintiff approached this Court by filing a Writ Petition seeking directions 17\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 to the concerned officials. However, the Writ applications were disposed of with a direction to approach the Civil Court. Consequently, the plaintiff approached the Civil Court to assert his right, title, and possession. Despite presenting both oral and documentary evidence, the trial court erroneously concluded that the settlement deed in favor of the plaintiff had not been acted upon. This decision was subsequently upheld by the first appellate court. The appellant contends that the findings of the courts below are perverse, illegal, and a misapplication of both facts and law. Accordingly, the appellant prays for the findings to be set aside.
19. To support his arguments, the plaintiff's counsel relied on the following authorities:
I) AIR 1948 NAGPUR 328, in which stated as follows:
" 6. On the main question of title to the field in suit the decision of the lower appellate Court is indeed difficult to understand. It is clear from the record that the plaintiff and her brother insisted on some property being gifted to the plaintiff as a condition precedent to her marrying Dalpat by pat. Dalpat accepted this condition and actually fulfilled it by executing a valid gift deed in plaintiff's favour. The gift deed was produced by the plaintiff in Court and on that account it 18\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 can be safely presumed that this gift deed was handed over by Dalpat to the plaintiff and it remained all along with her. The gift deed was acted upon by the plaintiff and she actually married Dalpat and they two lived happily and cordially together until Dalpat's death in or about 1932."
II)1959 SCC Online Mad 281, in which stated as follows:
" Mahomedan Law-Gift of a shasre by a co-heir- Delivery of possession - Essentials - Validity of gift of an undivided share - Musha, what is - Defence as to dlivery not having been made - who can raise - Third parties, if can be allowed to raise.
The rules of Mahomedan Law do not require that to make a gift valid the donor must have physical possession of the property, and must hand over the physical possession to the donee. It is enough if he has got legal possession of the property and transfers to the donee such possession as the matter is susceptible of".
III)1964 Supreme Court 275, in which stated as follows:
" Where a husband, a Hanafi, makes a gift of properties, including immovable property, by a registered deed, to his minor wife who had attained puberty and discretion, and the gift is accepted on her behalf by her mother in whose house the husband and wife were residing, when the minor's father and father's father are not alive and there is no executor of the one of the other, such a gift must accepted as valid and complete, although the deed is handed over to the minor's mother and possession of the property is not given to a guardian specially appointed for the purpose by the Civil Court. There can be no question that there was a complete intention to divest ownership, on the part of the husband the donor, and to transfer the property to the donor.
19\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 If the husband had handed over the deed to his wife, the gift would have been complete under Muhammadan Law and it is impossible to hold that by handing over the deed to his mother - in - law, in whose charge his wife was, the husband did not complete the gift. Muhammadan Law texts and authorities and case-law discussed."
IV)AIR 1989 KERALA 148, in which stated as follows:
" Transfer of Property Act (4 of 1882), S.129, S.123, S.54- Registration Act (16 of 1908), S.17-'Hiba' contemplated in Mohammedan law does not attract registration under S.123, T.P.Act - gift of immovable property in writing is compulsorily registrable under S.17, Registration Act. - However, Hiba bit-iwaz of India is sale- property being immovable and worth Rs.100/- or more it is registrable. (Muslim law-oral gift -'hiba' and 'hibabil-iwaz' distinguished
- Requirement of registration); Registration Act (16 of 1908), S.17-"
V) (2007) 13 Supreme Court 210, in which stated as follows:
" B. Transfer of Property Act, 1882 - Ss. 122, 123 and 127- Gift deed Conditions precedent for validity of and grounds for rescission of a completed and valid gift - Irrelevance of subsequent conduct of donee Held, gift deed should be: (i) without any consideration, (ii) voluntary, and
(iii) not induced by undue influence - Father, out of love and affection for his son and also to enable the latter to live a peaceful life, executing a registered deed of gift in favour of son - No proof of undue influence to bring the case within the purview of S. 16, Contract Act- In such circumstances keeping in view the relations of the parties and the fact of long 20\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 absence of the donee from India, held, possession of the gift deed and payment of tax by the donor or non-mutation of the donee's name in revenue records not by themselves sufficient to show that the execution of- the gift deed was involuntary -
Hence, gift deed could not be rescinded on the premise that the gift was an onerous gift and that the donee had failed to fulfil the condition for the gift viz. contributing towards the marriage of his (donee's) sister the sum specified - Contract Act, 1872-S. 16 - Evidence Act, 1872-S. 114 - Presumptions - Gift deed - Presumption regarding averments in - Gift Tax Act, 1958, S. 2(xii)
25. Our attention has been drawn to a decision of the Privy Council in Nawab Mirza Mohammad Sadiq Ali Khan v. Nawab Fakr Jahan Begam wherein again while dealing with a case of gift governed by Mohammedan Law, it was stated:
(AIR p. 18) "The first objection being against the tenor of the deed, the burden of proof is clearly upon those who dispute the gift. No possible reason is suggested why Baqar Ali should have desired to put a portion of this property in anyone else's name except, possibly, an inherent propensity for benami or 'ism farzi' transactions. On the other hand, the reason recited in the deed that he desired to provide his favourite wife with an alternative residence at Kairabad is to say the least of it, understandable. The portion assigned to her contained the zenarna quarters, where she ordinarily put up when accompanying her husband on his apparently not infrequent 21\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 visits to the kothi, and it is clear from the evidence of his other gifts to her which are now established, that he had a great desire to provide for her future comfort on a generous scale. Against this all that can be said is that during his lifetime she exercised no individual acts of proprietorship over any portion of the Kairabad establishment; that in her and her husband's absence the serai was occupied by the servants of the estate; that such repairs as were necessary were done at Baqar Ali's expense, and that no mutation of names was made in the government records. In Their Lordships' opinion, these facts are not sufficient to establish that the transaction was merely colourable. The deed was handed over to the donee and remained in her possession, and Their Lordships have no doubt that Baqar Ali intended to make a genuine gift of the property to her."
In regard to handing over of the possession, it was held: (Nawab Mirza cases, AIR p.19) "... In the second place, the deed of gift was handed over to the donee as soon as it was registered. In the case of a gift by a husband to his wife, Their Lordships do not think that Mahomedan Law requires actual vacation by the husband and an actual taking of separate possession by the wife. In their opinion the declaration made by the husband, followed by the handing over of the deed are amply sufficient 22\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 to establish a transfer of possession."
Vi) 2012 (4) CTC 138, in which stated as follows:
" Transfer of Property Act, 1882 (4 of 1882), Section 2,8 & 129 – Mohammedan Law – Document reduced in writing concerned with donor and donee being Mohammedan can be stated to be compulsorily registrable, however, validity of valid gift would be governed only by Mohammedan Law and not by 1882 Act.” Vii) MANU/TN/5674/2021, in which stated as follows:
" Property - Legality of Hiba - Whether Courts below are right in failing to note that plaintiff in relevant suit had failed to establish truth and validity of oral Hiba? - Held, factum of registration is a non issue in instant case as Ex.A.2 only reduces into writing as earlier oral Hiba already given effect to - Mahomedan Law makes it clear that delivery of possession could be actual or constructive - Admittedly, in case on hand, donor and donee who are mother and son respectively are residing in subject matter of gift and therefore, there is a presumption that possession was taken over - Further, a reading of Ex.A.2 would show that on relevant date itself, constructive possession had been handed 23\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 over to plaintiff who had accepted same Therefore, ingredients of IJAB, QABUL and QUABZA are manifest in instant Hiba Coming to secon limb of argument that Hiba is invalid on ground that there were no witnesses present at time of donor effecting Hiba, reference to Ex.B.2 would make useful reading - This is Plaint that had been fiied by plaintiff in other relevant suit - In said suit filed against S, plaintiff has not only spoken about oral Hiba but also Ex.A.2 - While discussing oral Hiba, plaintiff had stated that oral gift had been made in presence of his father and another well wisher of their family A Defendant's mother had not refuted any of these contentions and on contrary, she had submitted herself to a decree which is evident from reading of Ex.A.4 which is Judgment in relevant suit Therefore, it is ver clear that oral Hiba of S which has been reduced into writing thereafter under Ex.A.2 is a valid Hiba as plaintiff has established existence of three important ingredients namely, tendering of gift, acceptance and taking delivery of possession of subject matter of gift gift-Second Appeals are dismissed, however, there shall be no order as to costs. [31],[32], [33],[34]” viii. The learned counsel for the appellant would rely on the following Judgments in support of his case:
(1) MANU/PR/0002/1931: AIR 1932 PC 13 at 19 [Nawab Mirz Mohammad Sadiq Ali Khan and others v.
24\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 Nawab Fakr Jahan Begam and others) (2) MANU/TN/0379/1957: AIR 1958 Mad 527 at 531 [S.V.S. Muhammad Yusuf Rowther and others v. Muhammad Yusuf Rowther and others] (3) MANU/SC/0129/1963: AIR 1964 SC 275 [Valia Peedikakkandi Kutheessa Umma and others v. Pathakkalan Naravanath Kumhamu and others] (4) MANU/SC/0283/1966: AIR 1966 SC 1194 [Maqbool Alam Khan v. Mst. Khodaija and others) (5) MANU/KE/0007/1972: AIR 1972 Ker 27 [Makku Rowther's Children Assan v. Manahapara Charayil] (6) MANU/AP/0127/1975: AIR 1975 AP 271 [Chota Uddandu Sahib v. Masthan Bi (died) and others] (7)MANU/TN/0456/2002: 2002 (1) MLJ 836 [N.A. Abdul Rahim and Razia Begam v. A.M.K. Mariam Bibi, S.M. Mumtaz] (8) in S.A. No. 367 of 2021 dated 15.04.2021 in the case of Gaffor Sahib v. Mumtaj.
20. By way of reply, the learned counsel for the respondent/defendant submits that the courts below rightly dismissed the suit, as the appellant/plaintiff failed to prove his case both legally and factually. He further argues that both the plaintiff and his father are Mohammedans, and the alleged settlement deed (Ex.A-1) must satisfy the three essential ingredients required for a valid gift under Section 149 of Mohammedan Law. These essentials are as follows:
i. A declaration of the gift by the donor.
25\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 ii. Acceptance of the gift, either express or implied, by or on behalf of the donee.
Iii. Delivery of possession of the subject of the gift by the donor to the donee, as mentioned in Section 150.
21. If these three conditions are satisfied, the gift is considered complete. In the present case, although the document was titled as a settlement deed, it is effectively a gift deed. Therefore, compliance with the three necessary ingredients is mandatory. While the execution of the settlement deed by the father is undisputed, the plaintiff has failed to prove the acceptance of the gift and the delivery of possession. As a result, the gift deed was not acted upon, and this was rightly held by the learned trial judge, warranting no interference.
22. Furthermore, the learned counsel highlighted that in the writ appeal filed by the plaintiff, W.P. No.1283 of 2012, the Hon'ble Bench of this court had already held that the mere registration of a document does not validate it unless accompanied by independent evidence. Under 26\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 Mohammedan law, oral evidence is impermissible to establish validity. Thus, the three essential ingredients outlined in Section 149 must be strictly complied with.
23 Though Ex.A-1, named as a Settlement Deed, was a registered document with recitals of handing over possession, it would not validate the gift unless the plaintiff independently proves that he accepted the gift and physically took possession of the suit property. However, the plaintiff failed to provide evidence to this effect before the trial court. On the contrary, his own evidence revealed that he only became aware of the document ten days after its execution. Additionally, the plaintiff admitted that his father was in possession of the property, which demonstrates that he neither took physical possession nor took steps to mutate records in his name.
24. By his own admission, the plaintiff established that the gift document was not acted upon. Consequently, the courts below rightly concluded that the document had no legal effect. Therefore, the father was entitled to cancel and revoke the document and execute a fresh gift deed in 27\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 favor of the defendant. The learned counsel further contended that the substantial question of law raised by the appellant is untenable, and no substantial question of law arises in this case. The courts below have thoroughly analyzed all the issues, and their findings are well-reasoned, requiring no interference. Accordingly, the learned counsel prays to dismiss the appeal as devoid of merits.
25. To support his arguments, he relied the following authorities.
i. 1973SCC Online Gau 7: AIR 1973 Gau 105, in which stated as follows:
“ 6. Under the Mohaomedan Law three things are necessary for the creation of a gift. They are (i) a 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. A deed of gift is immaterial for creation of gift under the Mahomedan Law. A gift under the Mahomedan Law is not valid if the above- mentioned three essentials are not fulfilled, even if there be a deed of gift or even a registered deed of gift. In other words even if there be a declaration and 28\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 acceptance of the gift, there will be no valid gift under the Mahomedan Law if there be no delivery of possession, even though there may be a registered deed of gift. Therefore, in the instant case, had the defendants produced the deed of gift, at best it would have proved a declaration of the gift by the donor and an acceptance thereof by the donee; but in addition, the defendants would have to lead independent oral evidence to prove delivery of possession, in order to prove a valid gift under the Mahomedan Law. That being the legal position a deed of gift under the Mahomedan Law does not create "a disposition of property" and therefore oral evidence led by the defendants to prove the gift is not hit by Section 91 of the Evidence Act.
7. Interpreting Section 91 of the Evidence Act the Supreme Court in the case of Hira Devi v. Official Assignee of Bombay, reported in AIR 1958 SC 448 has held as follows:-
"Section 91 is based on what is sometimes described as the 'best evidence rule'. The best evidence about the contents of a document is the document itself and it is the production of the document that is required by Section 91 in proof of its contents. In a sense, the rule enunciated by Section 91 can be said to be an exclusive rule inasmuch as it excludes the 29\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 admission of oral evidence for proving the contents of the document except in cases where secondary evidence is; allowed to be led under the relevant provisions of the Evidence Act.” ii. 1939 SCC Online Bom 126: AIR 1939 Bom 449: (1939) 41 Bom LR825, in which stated as follows:
(1) A gilt is defined to be the conferring of property without a consideration. (2) Acceptance and seizin, on the part of the donee, are as necessary as relinquishment on the part of the donor. (4) It is requisite that a gift should be accompanied by delivery of possession, and that seizin should take effect immediately, or, if at a subsequent period, by desire of the donor. (8) A gift cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it. (9) The cases of a house given to a husband by a wife, and of property given by a father to his minor child, form exceptions to the above rule. (10) Formal delivery and seizin are not necessary in the case of a gift to a trustee, having the custody of the article given, nor in the case of a gift to a minor. The seizin of the guardian in the latter case is sufficient.” iii. Judgment of Hon'ble Supreme Court in Civil Appeal No.4213 of 2009, stated as follows:
“ 28. Under Mohammedan Law, a gift is to be effected in the manner laid down under the law. If the conditions prescribed by that law are fulfilled, the gift is valid, even though it is not effected by a registered instrument. But if the conditions are not fulfilled, the gift is not valid even though it may have been effected by a registered instrument. Therefore, a valid gift could be made by oral statements as well so long 30\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 as the three requirements as discussed above are met thereby. This is because registration is not a requirement which obviates the need for a gift to be reduced in writing.”
26. At the time of admission, this Court admitted the second appeal with seven questions of law. However, as per the objections raised by the learned counsel for the respondent, all those questions of laws were deemed untenable. Upon considering the submissions in their entirety, this Court has reframed the following questions of law, which are deemed necessary to adjudicate the issues between the parties.
a. Whether the findings rendered by the courts below are perverse, illegal, and liable to be set aside?
b. Whether the courts below erred in the application of the legal proposition regarding validity?
c. Whether the Transfer of Property Act and the Registration Act are applicable to the present case?
27. It is undisputed fact that the plaintiff and his father, as well as the defendant are belongs to Mohammedians and come under Mohamedan Law. Admitted fact that, plaintiff's father had four surviving sons and the entire extent of property being the house and ground and Corporation Door 31\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 No.112 (Old No.2/20, later changed to 41), Soorappa Mudali Street, Triplicane, Chennai-600 005, with an extent of 3725 sq.ft. with land and building absolutely belongs to him through the settlement deed dated 03.05.1952. S.S.M. Mohideen executed four settlement deeds in favor of his surviving sons, dividing the property into four equal portions (A, B, C, and D). The C portion, which is the suit property, was settled in favor of the plaintiff (the elder son) through a settlement deed dated 11-08-2004 (Document No. 1045/2004). This deed was subject to the father retaining a life interest in the property, with possession to remain with him until his lifetime.
28. The defendant, who is the plaintiff’s nephew (sister’s son), claimed that his grandfather canceled the settlement deed in favor of the plaintiff through a revocation deed executed in 2011. Subsequently, the grandfather executed a fresh settlement deed in favor of the defendant, thereby granting him absolute right and title over the suit property. This led to the present dispute, prompting the plaintiff to approach the court. 32\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024
29. Upon learning of the alleged revocation of the settlement deed, the plaintiff filed a writ petition (W.P. No. 18051 of 2011) before this court against the Sub-Registrar and his father. He sought a declaration that the deed of revocation and the subsequent settlement deed were illegal and void as they contravened the provisions of the Transfer of Property Act and the Registration Act. However, the writ petition was dismissed, with the court providing the following reasons:
"28. The learned counsel appearing for the respondents has also made reliance upon the judgment of the Kerala High Court in Makku Rawther's Children: Assan Ravther and others Vs. Manahapara Charayil (AIR 1972 Kerala 27). The decision of the Kerala High Court was taken into consideration by this Court in a subsequent was taken into consideration by this Court in a subsequent pronouncement in AMIRKHAN vs.GHOUSE KHAN [(1985) 2 MLJ 136] wherein, it has been held that when a gift deed is reduced in writing even among Mahomedans then the same is required to be registered under the provisions of the Registration Act, 33\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 1908. The said decision has no relevancy and application to the present case as the gift deed is registered voluntarily.
Section 129 of the Transfer of Property Act, 1882 recognizes the applicability of the rule of Mahomedan Law which would include the conditions for a valid gift. The word "rule"would include the conditions of a valid gift. Further the Court was only concerned with the admissibility of an unregistered gift deed. The question for consideration in the present case is not as to whether a gift deed reduced in writing required registration or not but whether the Muslim personal Law governing the Mahomedans would cease to apply by an act of Registration. In fact, this Court was pleased to hold in the said case that the very purpose of 129 of the Transfer of Property Act, 1882 is to avoid any friction. Section 123 of the Transfer of Property Act, 1882 and the Muslim personal law relating to Mahomedans.
......
31.Therefore as discussed above, the Transfer of 34\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 Property Act, 1882 and the Registration Act, 1908 on the one hand and the Mahomedan Law on the other hand will have to be read together being complementary to each other. By applying the said principle, the irresistible conclusion would be that even among Muslims when a gift is reduced in writing and registered, such an act of registration would not remove and take away the applicability of the provisions of Mahomedan Law by which conditions have been imposed for a valid gift. By holding so in effect would not only destroy the provisions of the Mohomedan Law but also the protection given under the Transfer of Property Act, 1882 as well."
30. Against Writ Appeal No.1283 of 2012, preferred by this plaintiff, has also been dismissed by the Hon'ble Division Bench of this Court for the following reasons.
"22. When the factum of delivery of possession and transfer of title are in dispute, the remedy is not a writ petition under Article 226 of the Constitution. The aggrieved 35\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 must approach the jurisdictional Civil Court o declare the validity of the impugned transaction. The appellant must plead and prove that the settlement deed executed in his favour satisfies the essential ingredients of a valid gift under the Mohamedan Law. The forum for giving such declaration is only the Civil Court. We are therefore of the view that the learned Single Judge was correct in dismissing the Writ Petition."
31. Subsequently, the plaintiff filed the instant case before the Civil Court. As discussed above, both the plaintiff, his father, and the present defendant are Mohammedans. Therefore, they are governed by Section 9 of Mohammedan Law.
32. Mohammedan Law provides as follows:
“9. The Muslim Personal Law (Shariat) Application Act (26 of 1937) came into existence on 07.10.1937. The clear prescription of the said Act is that in a case of gift involving 36\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 a donor and donee being Muslims, the law applicable to them shall be the Muslim Personal Law (Shariat). Section 2 of the said Act is extracted herein for better appreciation:
"2. Application of Personal Law to Muslim;- Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of under contract or gift or any other provision of personal Law, marriage, dissolution of marriage, including talaq, ila, Zihar, lian, Khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religion endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim personal Law (Shariat)."
10. Chapter-XI of the Mahomedan Law deals with a hiba or a gift. Section 147 of the Mahomedan Law stipulates that writing is not essential to the validity of a gift either of a movable or immovable property. Under Section 149 of the Mohamedan Law, the prescription of a valid gift are as follows:
"149. (i) a 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 either actually or constructively to the donee, are to be satisfied; that solely 37\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 because the writing in contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act."
33. The document dated 11.08.2004, executed by S. M. M. Mohideen, the father of the plaintiff, in favor of the plaintiff, is titled as a settlement deed based on its nomenclature. The learned counsel for the plaintiff argues that it is not a gift deed. The plaintiff's father, after executing the document, registered it as a settlement deed, as required under the Transfer of Property Act. Therefore, the gift deed as described under Mohammedan Law does not apply to the case at hand.
34. While disposing of the Writ Petition as well as the Writ Appeal, this Court categorically held that both the plaintiff and his father are Muslims, and thus, personal laws applicable to Muslims govern this matter. Under Mohammedan Law, an oral gift is valid, provided the necessary conditions are satisfied. The mere registration of the gift deed does not 38\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 override the provisions of Muslim Personal Law. Under Mohammedan Law, a registered gift deed serves merely as a piece of evidence and does not eliminate the rights and liabilities associated with a valid gift, as per personal law. Furthermore, Section 129 of the Transfer of Property Act acknowledges the applicability of Mohammedan Law and its conditions for a valid gift. This was also confirmed in Writ Appeal No. 1283/2012. Consequently, the findings rendered by this Court affirm that Mohammedan Law governs the parties in this case. Therefore, although the document is labeled as a settlement deed, it is construed as a gift deed under Mohammedan Law.
35. As discussed above, the registration of the document serves as evidence. However, the plaintiff is required to establish that the three essentials of a valid gift under Mohammedan Law have been satisfied. For the gift deed to be considered valid, the plaintiff must demonstrate the transfer of physical possession of the property. The defendant's primary defense is that the plaintiff neither took physical possession of the property nor took steps to have his name entered in the revenue records. Therefore, 39\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 the gift deed was not acted upon. The applicability of the Transfer of Property Act and the Registration Act is not an issue to be decided by this Court, as these matters have already been discussed and concluded in the writ petitions and writ appeals filed by the plaintiff in W.P. No. 1801/2011 and Writ Appeal No. 1283/2012. Question of law C is answered accordingly.
36. The defendant contends that the plaintiff did not take possession of the property, nor did he receive the original document on the date of execution of the alleged settlement deed. Furthermore, the plaintiff did not exercise his rights as an absolute owner by paying taxes or taking steps to mutate the records in his name. The defendant relies on the evidence of PW1, a 78-year-old man, who deposed that he became aware of the documents only 10 days after their execution. PW1 also admitted that he did not pay taxes because the father was still in possession of the property. The trial court, relying on the evidence of PW1, dismissed the suit, holding that the plaintiff had not taken physical possession of the property nor taken steps to change the patta or pay taxes as an absolute owner. The first 40\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 appellate judge confirmed the findings of the trial court after appreciating the evidence presented.
37. Admittedly, the certified copy of the settlement deed was produced by the plaintiff as Exhibit A1. The original gift deed was produced by the defendant during his evidence, specifically at the time of his cross-examination, and was marked as Ex.B1.
38. The learned counsel for the plaintiff submits that, since the plaintiff's father reserved his right to reside in the property for his lifetime, he remained in possession of the property and continued paying the taxes. However, symbolic possession was handed over to the plaintiff at the time of executing the document. The recitals in the said document clearly establish this fact, indicating that the plaintiff was put in legal possession of the property.
39. Considering this, the relevant recitals in the alleged settlement deed are as follows:
41\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 "Whereas the Settlor/plaintiff's father out of natural love and affection for the settlee / plaintiff, who is his son is desirous of executing a settlement deed reserving life interest to reside in respect of ground floor having a built up area of 702 sq.ft. with tiled roof, common open terrace with a right to ingress and egress in the common pathway, borewell, staircase and the right to use over head tan, sump water and sewerage line, together with 847 sq.ft. undivided share in the land measuring 3725 sq.ft. or thereabouts in all that land and building comprising of terraced and tiled roofing bearing Corporation Door No.112(Old door No.2/20 Inter changed to 41), Soorappa Mudali Street, Triplicane, Chennai-600 005 within Chennai 600 005 within Corporation Zone No.VI, Division No.87, comprised in R.S.No.957, O.S.No.627 C.C.NO.1316 admeasuring 3725 Sq.ft. or thereabouts morefully described in the schedule hereunder and referred to as schedule mentioned property.
Now his deed witnesses that, the Settlor does hereby out of his natural love and affection for his son and out of free will, without any force, compulsion, undue influence and with a keen desire to settle the schedule mentioned property to the Settlee grant convey and transfer by way of settlement reserving life interest to reside in respect of all that land and building in ground floor having a built up area of 702 sq.ft. 42\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 with tiled roof, common upen terrace with a right to ingress and egress in the common pathway, borewell, staircase, and the right to use over head tank, sump, water and sewarage line, together with 847 sq.ft. undivided share in the land measureing 3725 sq.ft. or thereabouts in all that land and building comprising of terraced and tiled roofing bearing Corporation Door No.112 (Old Door No.2/20 later changed to 41), Soorappa Mudali Street, Triplicane, Chennai 600 005 within Corporation Zone No VI, Division No.87, comprised in R.S.No.957, O.S.No.627, C.C.No.1316 admeasuring 3725 sq.ft. or thereabouts morefully described in the Schedule hereunder and referred to as schedule mentioned property to the Settlee.
The Settlor has this day put the Settlee in possession of the schedule mentioned property. The Settlee shall enjoy the schedule mentioned property henceforth as absolute owner with full powers of alienation subject to life interest reserved by the Settelor and is entitled to mutation of name in revenue records etc., without any further reference to the Settlor.
The Settlor has handed over all the original parent documents to his son S.M.Addul Jalal who is also a co-owner along with the settlee and the name shall available for inspection and security as and when required by the settlee.
The Settlee is in possession and has accepted the 43\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 settlement of the property morefully described in the Schedule hereunder and coloured red and marked "C" in the sketch annexed hereto."
40. The entire recitals of the document clearly reveal that, without any coercion, the plaintiff's father executed the said settlement, reserving his life interest in the suit property. Furthermore, there is a recital indicating that the settlor/plaintiff's father placed the plaintiff/settlee in possession of the property mentioned in the schedule, allowing him to enjoy the same as the absolute owner, with the right of alienation, subject to the settlor's life interest. Additionally, it is stated in the document that the settlee/plaintiff accepted the settlement and is in possession of the property.
41. Based on these recitals, the learned counsel for the plaintiff submits that the document's recitals themselves are the best evidence under Section 91 of the Evidence Act, against which oral evidence is not permissible. Consequently, even the evidence of P.W.1 does not contradict the recitals of the said document. The document itself substantiates the claim. However, the courts below failed to properly appreciate Ex.A1. 44\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 Therefore, he contends that the findings of the courts below are illegal and unjustifiable.
42. In response, the learned counsel for the respondents argues that while Section 91 of the Evidence Act prohibits oral evidence to prove the contents of a document, this principle does not apply to documents of gift under Mohammedan law. Under Mohammedan law, the contents of a document cannot alone establish a gift. The plaintiff is independently required to prove the three essential elements of a valid gift, as supported by the legal precedents. In 1973 SCC Online, Gau.7: AIR 1973 GAU 105, stated as follows:
"9. Shri Sen takes reliance on this decision. In our view this decision, of the Supreme Court does not help the appellant. What the Supreme Court has held is that if the document itself creates a contract or a grant or a grant or any other disposition of property, then the terms of that contract or grant or any other disposition of property, then the terms of that contract or grant or disposition of property, cannot be proved by oral evidence. But in the instance case, as we have held above, under the Mohamedan Law the 45\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 contents of the document cannot prove a gift under the Mahomedan Law. The oral evidence led by the defendant is therefore not hit by Section 91 of the Evidence Act."
43. Considering these arguments, under Mohammedan law, an oral gift is permissible. Thus, even if a document is returned, the essentials of a valid gift must be independently established by the concerned parties. It is pertinent to note that the execution of the settlement deed by the plaintiff's father is an undisputed fact. Although termed a settlement deed, the intention of the plaintiff’s father clearly indicates that, out of love and affection, he executed the said document in favor of the plaintiff and his other three sons on the same date, covering his entire property equally.
44. Therefore, the desire and intention of the plaintiff's father to transfer the suit property to the plaintiff out of love and affection clearly satisfy the three essential conditions for a valid gift under Mohammedan law: Declaration of Gift by the Donor: The plaintiff has established this requirement. During cross-examination, the defendant, examined as DW-1, admitted that his grandfather executed a settlement deed in favour of the plaintiff. This demonstrates the donor/plaintiff’s father's declaration of the 46\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 gift.
45. The second condition, the acceptance of the gift by the donee, either expressly or impliedly, is also met. According to the plaintiff, he became aware of the gift executed by his father about 10 days after its execution. However, as per the recitals of Ex.A1, the plaintiff was in possession of and accepted the settlement of the immovable property. Furthermore, PW-1’s evidence shows that the document remained in force until it was revoked by the plaintiff’s father after nearly seven years, which implies that the plaintiff had accepted the gift. Based on these findings, the essential conditions for a valid gift under Mohammedan law are satisfied.
46. As per the evidence of PW.1, it was revealed that he came to know about the documents nearly ten days later. However, the acceptance of the gift, whether express or implied, need not necessarily be explicit. The acceptance can also be inferred from the circumstances. Even assuming that the plaintiff became aware of the documents after ten days, his actions demonstrate acceptance. This is evident as he retained the right to reside in the property, a fact clearly revealed from his evidence. 47\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024
47. The argument advanced by the respondent that the defendant did not immediately accept the gift, as such does not apply to the present facts of the case. Furthermore, the document remained in force for over seven years, during which the plaintiff's father continued to reside in the said property, retaining his right to reside there as reserved in the deed.
48. The conduct of the parties clearly reveals that the plaintiff accepted the gift by allowing his father to reside in the property until his lifetime. However, the courts below failed to appreciate this legal principle and erroneously dismissed the plaintiff's claim. Such dismissal is wholly illegal and against the evidence presented.
49. Regarding the delivery of possession of the gifted property, the plaintiff contended that he was in legal possession of the property while his father resided there, as per his reserved right to live on the property until his lifetime. As per the recitals of Ex.A1, the father granted absolute rights to the plaintiff, subject to his right to reside in the property for life. Delivery 48\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 of possession, whether actual or constructive, satisfies the requirement under the law. Considering the facts of this case, the father retained the right to reside in the property until the revocation of the settlement deed in 2011. He continued to live in the property during this period. Therefore, the issue of physical possession does not arise, and the plaintiff’s possession is deemed constructive.
50. For this, the plaintiff relied on the following authorities, which are squarely applicable to the facts of the case: In MANU/TN/5674/2021, stated as follows:
"32. Let us consider the argument regarding delivery of possession reading of Para 149 of the Mulla's Mahomedan Law makes it clear that the delivery of possession could be actual or constructive. Admittedly, in the case on hand, the donor and the donee who are the mother and son respectively are residing in the subject matter of the gift and therefore, there is a presumption that the possession was taken over. Further, a reading of Ex.A.2 would show that on 07.01.2000 itself, the constructive possession had been handed over to the plaintiff who had accepted the same. Therefore, the ingredients of IJAB, QABUL and QUABZA are manifest in 49\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 the instant Hiba. "
51. In the present case, the father retained the right to reside in the property for his lifetime, which establishes constructive possession by the plaintiff. Unfortunately, this aspect was not properly appreciated by the courts below. Moreover, the defendant did not plead in his written statement about the right of the plaintiff’s grandfather to reside in the property. However, during cross-examination, the defendant admitted that his grandfather had reserved the right to reside in the property. This critical fact was suppressed in the written statement.
52. The defendant's claim that the plaintiff did not take possession of the property is untenable and does not apply to the present case. All the other sons of the family were enjoying the property per the terms of the settlement deed executed by the father. The plaintiff, being the eldest son, has been harassed by the defendant, who clandestinely obtained a revocation deed from their grandfather at the age of 82 years and, within a week, executed a settlement deed in his favor.
50\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024
53. A bare perusal of the revocation deed and settlement deed, marked as Ex.A-2 and Ex.A-3, reveals that the stamped paper for both documents was purchased on 07-07-2011 and drafted by the same advocate, Subramaniam. The witnesses for both documents are identical. This prima facie proves that both documents were executed on the same day. However, the revocation deed was registered earlier, and the settlement deed in favor of the defendant was registered within five days. This sequence of events shows the defendant acted with ulterior motives, not only obtaining these documents but also retaining the original settlement deed. The defendant did not mention the custody of this document in his written statement but produced it during cross-examination. This conduct indicates an intent to defeat the lawful rights of the plaintiff, his paternal uncle. At the age of 82, the grandfather was coerced into executing these documents, subjecting the plaintiff to unnecessary harassment. The courts below failed to properly appreciate these facts.
54. Both courts erred in not considering that the plaintiff’s father, by 51\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 reserving his right to reside in the property, would naturally pay the property taxes. The payment of taxes or mutation of records by the plaintiff would not arise during his father’s lifetime. This fact was also not adequately considered by the courts below.
55. The reason for the revocation stated that the document was not acted upon, as the plaintiff did not take steps to pay taxes or change the records. Admittedly, the father was residing in the property, so changing the revenue records did not arise. The plaintiff would have taken such steps after his father’s demise. However, the revocation of the deed, based on the advice of the advocate who drafted it, claiming it was not acted upon, is wholly untenable. Therefore, the revocation deed and the subsequent settlement deed are invalid, non-est, and not binding on the plaintiff.
56. Consequently, the plaintiff is entitled to approach the civil court to declare these documents invalid under the law. Despite not praying for other reliefs, the plaintiff’s claim stands justified, and the courts below have failed to deliver justice.
52\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024
57. The courts below failed to appreciate all the relevant facts and illegal propositions, erroneously dismissing the plaintiff's claim. This amounts to a complete misapplication of law and fact. Ordinarily, the findings rendered by the courts below do not require interference unless there is an improper appreciation of facts or the findings are perverse in nature. In this case, the findings warrant interference by this court.
58. As discussed above, the findings of the courts below are either perverse or illegal and therefore require interference. Consequently, the findings rendered by the courts below are set aside. Accordingly, questions of law A and B are answered.
59. Assuming the transaction in question is a gift deed, the three essential requirements under Mohammedan Law have been duly complied with by the plaintiff. As such, the plaintiff is the absolute owner of the property. The Plaintiff has proved his right and title to the property. Therefore the prayer claimed in the suit is sustainable. Therefore, suit decreed as prayed for, as evidenced by the Ex.A1 documents. Thus 53\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 defendant, who has trespassed on the property and is running a biryani shop, is liable to vacate the premises within eight weeks from the date of this order.
60. The plaintiff, an 82-year-old man who appeared before this court in a wheelchair requiring 50% oxygen support, must be granted prompt relief. If possession is not handed over within eight weeks, the plaintiff is entitled to approach the trial court to execute the decree. Should such an application be filed within twelve weeks, the trial court is directed to dispose of the execution application expeditiously, without granting unnecessary adjournments, considering the plaintiff's advanced age.
61. Accordingly, this Second Appeal is allowed, and exemplary costs of Rs. 25,000/- (Rupees Twenty Five Thousand only) are ordered to be paid to the Legal Services Authority. Consequently, connected miscellaneous petitions are closed.
03.01.2025 54\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 Index : Yes/No Neutral Citation : Yes/No Speaking/Non Speaking order rri To
1. The III Additional Judge (FAC) II Additional Judge, City civil Court, Chennai.
2. The XVII Assistant Judge, City Civil Court, Chennai.
3.The Section Officer, VR Section, High Court of Madras.
T.V.THAMILSELVI, J.
rri S.A.No.333 of 2024 and C.M.P.Nos.9986 & 9989 of 2024 55\56 https://www.mhc.tn.gov.in/judis S.A. No.333 of 2024 and CMP.No.20397 of 2024 03.01.2025 56\56 https://www.mhc.tn.gov.in/judis