Gujarat High Court
Noorbibi vs Ayeshabibi And Ors. on 25 March, 1998
Equivalent citations: AIR1999GUJ27, (1998)3GLR2515, AIR 1999 GUJARAT 27, (1998) 3 GUJ LR 2515, (1999) 2 MARRILJ 492, (1999) 1 RECCIVR 716, (1999) 2 CIVLJ 479
Author: D.C. Srivastava
Bench: D.C. Srivastava
JUDGMENT D.C. Srivastava, J.
1. These three matters involving common questions of law and fact are proposed to be disposed of by a common Judgment.
2. In the trial Court two Suits Nos. 409 of 1971 and 1000 of 1972 were disposed of by consolidated Judgment against which two Civil Appeals and cross-objections were filed in the lower Appellate Court.
3. The brief facts are that two houses Nos. 497 and 498 together with open land on the east of House No. 497 situated in village Katargam, District Surat were owned by Jahangir Vazir alias Malik Jahangir. Suit No. 409/71 was filed by the sons of Malik Jahangir. It was alleged that Kulsumbibi was married to Malik Jahangir and at that time Malik Jahangir made gift of house No. 497 in her favour through registered Gift Deed dated 16-4-1928. This house measured 13'.8" x 30'.2". However, some error crept in the deed and diamension was incorrectly shown therein. This Gift Deed was attacked on the ground that it was a conditional gift and that gift was not followed by delivery of possession and that the gift was also contingent and the contingency contemplated in the Gift Deed never arose. Hence the gift was invalid. The defendants Nos. 11 and 12 holding power of attorney of Kulsumbibi executed Sale Deed of House No. 497 in favour of defendant No. 10 on 8-8-1967 and the defendant No. 10 thereafter executed a Sale Deed of the same house in favour of defendant No. I on 11-8-1970. Malik Jahangir died in 19,61 and Kulsumbibi expired in the year 1967. The plaintiffs and the defendants Nos. 1, 2 & 9 pleaded that after the death of Malik Jahangir they became owners of the property bearing House Nos. 497 and 498 and open land towards east of House No. 497 as his heirs. In the alternative it was pleaded that if Gift Deed dated 16-4-1928 is held to be invalid then also Kulsumbibi became owner of House No. 497, but she had no right title or interest on the open land towards east. It was further alleged that defendant No. I after purchasing the house No. 497 opened the doors and windows on the eastern side of house No. 497 and constructed staircase on the eastern side of the open land. As such declaratory suit with relief of mandatory injunction for removal of encroachment was filed. The Gift Deed and subsequent Sale deeds were challenged and declaration about their (sic) was sought.
4. (sic) by defendant No. 1 on the ground that the Gift Deed in favour of Kulsumbibi was valid and she had right to transfer the property to the defendant No. 10. It was also pleaded that open land towards east of house No. 497 is part of the said property over which she had right to open doors and windows and to raise stair-case. It was also pleaded that for the last 70 to 80 years the ancestors of the contesting defendants were in possession over open land towards east of house No. 497 and she acquired title by adverse possession. It was also pleaded that the suit is barred by limitation.
5. Civil Suit No. 1000/72 was filed by the defendant of Regular Civil Suit No. 407 of 1971, pleading that the gift in favour of Kulsumbibi is valid and in view of subsequent transfer through registered Sale Deed dated 11-8-1970 the defendant became owner of the property. It was also pleaded that under the Gift Deed House No. 498 is also covered so also the open land. The Suit was filed for recovery of possession of House No. 498 along with open land against defendant of this Suit.
6. This suit was resisted on numberof grounds. It was maintained that the Gift is illegal and that it never covered other house and open land. The alleged encroachment was also denied.
7. The trial Court decreed Civil Suit No. 409/ 71 for possession of open land. It further declared defendant No. 1 to be the owner of house No. 497 measuring 13'.8" x 30'.2". The trial Court further found that defendant No. 1 is not entitled to any land toward east of house No. 497. It, however, found that defendant No. 1 has right to open doors and windows in the eastern side wall of house No. 497 and to raise staircase outside the said house. For the remaining relief this suit was dismissed. The other suit No. 1000/72, on the other hand, was dismissed. Accordingly two Appeals and Cross-object ions were filed. The Lower Appellate Court reversed the Judgment and Decree of the trial Court in Suit No. 409/71 and dismissed the Suit. The Judgment of the trial Court dismissing Suit No. 1000/72 was confirmed. Accordingly these two Appeals were filed in which Cross-Objection was also filed in Second Appeal No. 126 of 1980.
8. In the Cross-objection the finding of the lower Appellate Court regarding invalidity of the gift was assailed as well as the finding of the lower Appellate Court regarding opening of doors, windows and the staircase.
9. Following substantial questions of law were formulated in this Appeal :
1. Whether the lower appellate Court has erred in permitting the defendant No. I to raise the contention regarding the maintainability of the Suit at the appellate stage in the absence of any pleadings and issues in the trial Court;
2. Whether the lower appellate court has materially erred in law in holding that the Suit in the present form was not maintainable;
3. Having rightly held that the deceased Kulsumbibi did not acquire right under the Gift Deed and hence the sale of the suit property ultimately in favour of the defendant No, 1 was not binding upon the plaintiff and other co-sharers, whether the lower appellate court has erred in not decreeing the Suit?
10. The learned Counsel for the parties were heard at length. The main attack of the learned Counsel for the appellant was that the Gift Deed is invalid because three essential conditions of Gift under the Mahomedan Law were not fulfilled. It was argued that the three essential conditions are that there should be declaration of gift by the donor and the second is that there should be acceptance of the gift by the donee, and the last is delivery of possession of property by the donor to the donee. It was vehemently argued that the third essential condition regarding delivery of possession of property is not fulfilled, hence the gift deed is invalid. It was also urged that the Gift Deed is conditional and such conditional Gift Deeds are invalid. Another contention has been that the Gift Deed is in the nature of gift in future hence also invalid. No gift in future is permissible under the Mahomedan Law. The last contention has been that this Gift Deed is contingent upon happening of acontingency that there should be quarrel between husband and wife, viz. donor and the donee and the donor was unwilling to keep the donee with him, in that event the donee was entitled to shift to the other house belonging to the donor and then only she will be absolute owner. Regarding maintainability of the Suit it was argued that this plea was not raised in the trial Court nor any issue framed nor any finding was given and therefore the lower Appellate Court was not justified in holding that the Suit in the present form was not maintainable.
11. The main question for consideration is regarding validity of the Gift Deed. The Gift Deed is in Gujarati. It is, of course, registered document. English translation of the Gift Deed was supplied by the appellant's Counsel. The Gift Deed is certainly ambiguous and suffers from some mistake in its body. It, therefore, requires interpretation of the court to find out the real intention of the parties. The first mistake is regarding dimension of the house No. 497. The second mistake is regarding house to which the donee was lo shift in case any dispute arose between the donor and the donee. These two points have to be interpreted.
12. Before interpreting the Gift Deed the essential conditions of gift under the Mahomedan Law have to be kept in mind. The principle of Mahomedan Law; 19th Edition by Mulla as revised by M. Hidayatullah and Arshad Hidayatullah lays down three essential conditions of a gift under Section 149 of this Book. It is provided that it is essential to the validity of a gift that there should be (i) declaration of gift by the donor, (ii) an acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150 of the Book. If these conditions are complied with the Gift is complete.
13. Section 150 of the Book provides for delivery of possession. It is narrated that it is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of taking of possession of the subject matter of the gift by the donee either actually or constructively.
14. Section 152 of the same book provides for delivery of possession of immovable property. It says that a gift of immovable property by which donor is in actual possession is not complete unless donor physically departs from the premises with all his goods and chattels and the donee formally enters into possession. Sub-section (3) of Section 152 of the Book lays down that where donor and donee both reside in the property no physical departure or formal entry is necessary in the case of a gift of immovable property. In such a case the gift may be completed by some overt-act by the donor indicating aclear intention on his part to transfer possession and to divest himself of all control over the subject of the gift.
15. Reference to Section 153 of the Book is also necessary because admitted position is that donor Malik Jahangir was husband of the donee Kulsumbibi.
16. Section 153 lays down that the rule laid down in Section 152 (3) applies to gifts or immovable property by a wife to the husband and by husband to the wife, whether the property is used by them for their joint residence or is let out to tenants. The fact that the husband continues to live in the house or to receive the rents after the date of the gift will not invalidate the gift, the presumption in such a case being that the rents are collected by the husband on behalf of the wife and not on his own account.
17. Gift in futuro has been dealt with under Section 162 of this Book, which says that a Gift cannot be made of anything to be performed in futuro, nor can it be made to take effect at any future period whether definite or indefinite.
18. Contingent gift has been dealt with under Section 163 of the Book, which provides that gift cannot be made to take effect on the happening of a contingency.
19. Section 164 of the Book deals with gift with a condition. It lays down that when a gift is made subject to a condition which derogates from the completeness of the grant, the condition is void and the gift will take effect as if no conditions were attached to it.
20. Keeping in view these provisions under the Mahomedan Law the Gift deed in question is to be interpreted.
21. As observed earlier it is admitted case of the parties that the donor Matik Jahangir was husband of the donee Kulsumbibi. There was disparity in age of the couple, Malik Jahangir was aged about 40 years whereas Kulsumbibi was aged about 27 years. It was out of love and affection and second marriage with young girl that the Gift deed was executed in her favour.
22. So far as first condition is concerned it is apparent from the deed that there was clear declaration of gift by the donor in favour of the donee. The relevant portion of this gift Deed reads as under :
"I have written this gift deed for you as per my knowledge and belief and all of it is binding upon me."
Therefore, there is clear intention of the donor to make declaration of a gift in favour of the donee. So far as acceptance of the gift is concerned there is no recital to this effect in the gift deed, but mere absence of recital about the delivery of possession will not invalidate the gift. Since it was between husband and wife and both were living in the said house jointly, in view of Section 152 read with Section 153 (supra) there was no necessity for formal departure of the donor and formal entry of the donee in the property. In such a case the gift may be completed by some overt-act by the donor indicating clear intention on his part to transfer possession and to divest himself of the control over the subject matter of the gift. Section 152(3) will apply to gift by husband to wife as mentioned in Section 152.
23. There is no evidence on record to show that the donor had done any act showing that he had no intention to transfer possession of the subject matter of the gift. The said fact is safely proved from the following recital in the Gift Deed.
"..... and therefore I am gifting my house No. 1, the detail of which is given below for the eternal period, the rights of which concerning the internal and external portion of the house and the land below the building on the condition that, when in that house, you have any quarrel with me and when I do not keep you with me then you will go and reside in that house and then onwards only you will become the independent Owner of the house and you can deal with it as you desire and nobody can dispute over it in any manner whatsoever. I have given you my ownership right of that house and from now on, no rights and claim whatsoever of mine or my heirs remains on it and if any claim is made that it is void in all respect. That house is not under the burden of any kind of mortgage etc. and if any body sues as amortgagor or as a claimant then the responsibility will be mine."
The above recitals, therefore, give definite intention of the donor that he has diverted himself of all control over the subject matter. Thus, in absence of formal delivery by possession the gift can not be invalid. So far as the third condition regarding acceptance of gift is concerned it can be presumed to have received implied consent of the donee, who was none else, but the wife of the donor. She never repudiated during her life time the alleged gift. On the other hand after the death of her husband she, through her power of attorney, transferred the property bearing House No. 497 to defendant No. 10 Maulvi Mohmed Anvar.
24. Thus, in my view three essential conditions of a valid gift as laid down in Section 149 (supra) are made out.
25. The learned Counsel for the appellant, however, contended that the Gift Deed in the first place is contingent, in the second place it is in the nature of gift in futuro and as such it is invalid transaction. In support of her contention the learned Counsel made reference to certain portions in the Gift Deed. I have already pointed out earlier regarding certain mistakes in the Gift Deed. The first mistake is regarding description of the house. In the Gift Deed the House No. 1 was gifted. It was actually House No. 497 which was gifted. The next mistake is regarding dimension of the house in question. The length of the house mentioned to be 60 ft. and the bredth is 25 ft. However, the boundaries have also been given in the Gift Deed. The eastern boundary is relevant which is described as "my another open land". This shows that the open land was excluded. The western boundary is also relevant, it is described as "my second house". It was an obvious reference to house No. 498. When there is conflict regarding description of property in dimension and in the boundary settled view is that the description of property by boundary will prevail. Since there was mistake regarding dimension of the gifted house, a Commission was issued and the Commissioner found that the dimension of the gifted house was much less than shown in the plaint on the basis of the Gift Deed. Thereafter the plaint was amended. Consequently it is clear from the description of boundary of the gifted house that only house No. 497 was gifted and not house No. 498 was gifted nor open land towards east of house No. 497. This inference can safely be drawn and findings given on the strength of eastern and western boundary of the gifted house.
26. Next mistake is regarding the house to which the donee was expected to shift after quarrel arose between the parties. There is cogent evidence on the record that till the death of Malik Jahangirin 1961 he resided along with his wife in House No. 497 and was using open land towards east of this house. It is also in evidence, that no dispute of any kind arose between husband and the wife during life-time of the donor. Consequently there was no occasion for the donee to shift to other house No. 498 of Malik Jahangir. In this view of the matter if recital in the Gift, viz. "On the condition that when in that house you have any quarrel with me and when I do not keep you with me then you will go and reside in that house and then onwards you will become independent owner of the house and you can deal with it as you desire and nobody can dispute over it in any manner whatsoever", is correctly interpreted, it would indicate that there was confusion in the mind of the donor as to which house the donee was to shift in case of dispute. She was already in possession of House No. 497. If in case of dispute she was to shift in other house No. 498 then she was not to become owner of that house. She was already owner of house No. 497 by virtue of gift Deed. The condition aforesaid, to my mind, is superfluous and full of mistakes and it does not indicate clear intention of the donor that the gift was conditional or it was to mature on the happening of the contingency, viz. quarrel between husband and wife and unwillingness of the husband to keep the wife with him. Such superfluous and redundant recital in Gift Deed will neither render gift deed to be in future nor conditional gift. These recitals, therefore, do not invalidate the gift deed. The previous two recitals that I am gifting my house No. 1 for the eternal period and subsequent recital that I have given you my ownership right of that house and from now onwards no rights and claim whatsoever of mine or my heirs remains on it, will clarify that the gift is not conditional but it came into force on the date it was executed by the donor and accepted by the donee. The intervening portion seems to be superfluous and mistaken.
27. Even if it is said to be a conditional Gift Deed, the condition is such which derogates from the completeness of the grant and such condition is void in view of Section 164 of the aforesaid Book of Mulla wherein it is said that the gift in such cases will take effect as if no conditions were attached to it. Thus, in the first place the gift is not conditional and in the second place if it is said to be conditional then the condition derogates from completeness of grant hence such condition is liable to be ignored being void.
28. The gift was not dependent upon happening of the contingency, viz. quarrel between the husband and wife. As observed earlier it was superfluous recital. The Gift Deed also cannot be , said to be in future.
29. For the reasons stated above the gift is perfectly valid and the view taken by the trial. Court was perfectly justified and that of the lower Appellate Court seems to be erroneous and contrary to the real intention of the donor.
30. If the Gift Deed is valid then Smt, Kulsumbibi, being the owner of house No. 497 was competent to transfer the same to defendant No. 10. Subsequent Sale Deed by defendant No. 10 in favour of defendant No. 1 is also consequently valid. These Sale Deeds cannot be assailed for the reasons set out in the plaint.
31. Another point for consideration is what was given to Kulsumbibi under the Gift Deed. After going through the judgments of the two Courts below and examining description of the property in the Gift Deed I find" that only No. 497 was gifted. The eastern boundary and western boundary of the gifted house in the Gift Deed show that towards cast of the gifted house was another open land of the donor and towards west was his second house. Thus, the second house and the open land towards east was not the subject matter of the gift, it is further clear from the Gift Deed that house No. 1 mentioned hereinabove corresponding to house No. 497 only was accepted. As such on the basis of the Gift Deed Kulsumbibi did not become owner of house No. 498 and open land towards east of house No. 497. These properties were owned by Malik Jahangir. After his death his heirs including Kulsumbibi became entitled to share according to Mahomedan Law in House No. 498 and the open land. House No. 498 cannot be given to the defendant No. I so also open land.
32. The contention regarding open land was that after the death of Malik Jahangir open land was inherited by his heirs including Kulsumbibi and if Kulsumbibi sold the open land also atleast the sale was valid to the extent of her share and the purchaser defendant No. 10 from Kulsumbibi became co-owner of the open land to the extent of share of Kulsumbibi. Likewise defendant No. 1 being purchaser from defendant No. 10 because co-sharer in the same manner and a co-sharer is entitled to use the joint property unless there is partition by metes and bounds or a suit for recovery of possession of share in the property is filed by other co-sharer. In this view of the matter if the stair-case was raised on the open land it is not liable to be demolished nor it can be said to be in the nature of encroachment. Likewise if defendant No. I became owner of house No. 497 on the basis of sale deed this defendant has right to open doors and windows in the house, may be towards eastern side. Unless such opening of doors and windows is obstructed by real owner no injunction could be granted for closing of such doors and windows.
33. The learned Counsel for the appellant further argued that issue on maintainability of the suit was not framed by the trial Court nor any. such finding was given by the trial Court. Hence, the Appellate Court fell in error in permitting this plea to be raised for the first time in Appeal. After going through the judgment of the Lower Appellate Court I find that because it held in respect of open land that the plaintiff is also one of the co-sharers the suit against defendant No. I against another co-sharer for demolition of a structure raised over joint property is not maintainable in absence of partition or suit for recovery of possession. This view could be taken as a result of finding recorded by the lower Appellate Court and it did not commit any illegality in permitting this point to be raised in Appeal or giving finding on this point. Substantial Question No. I is answered accordingly.
34. Question No. 2 is a consequence of substantial question No. I which is also answered accordingly.
35. Substantial question No. 3 is answered in the way that in view of the Gift Deed and subsequent sale deed being valid the suit of the plaintiff in respect of the Gift Deed and Sale Deeds was liable to be dismissed. Likewise the suit for removal of the stair-case was also liable to be dismissed, so also the prayer for closure of doors and windows in the eastern wall of the defendant No. 1.
36. So far as cross-objections are concerned, in view of the findings above the cross objection succeeds and it is held that the lower Appellate Court was in error in holding that there was no valid gift in favour of Kulsumbibi. On the other hand it is held that the gift in favour of Kulsumbibi was valid. Para 9 of the cross-objection also succeeds, as staled above.
37. The findings of the trial Court regarding encroachment made by defendant No. I over the land situated towards south-east of house No. 498 does not require any interference.
38. In view of foregoing discussion the judgment and decree of the trial Court in Civil Suit No. 1000/72 as dismissed by the trial Court and confirmed by the lower Appellate Court does not require any interference.
39. So far as the Decree in Civil Suit No. 409 of 1971 is concerned it was set aside by the lower Appellate Court and this portion of the judgment and Decree of the Lower Appellate Court is liable to be disturbed in view of aforesaid findings and the Decree of the trial Court in Civil Suit No. 409 of 1971 is to be upheld subject to the modification that the defendant No. I is entitled to the share of Kulsumbibi in open land situated towards cast of house No. 497 being successor in interest of Kulsumbibi, other portion of the Decree of the trial Court is maintained. In the circumstances of the case parlies shall bear their own cost of these Appeals and Cross objections.