Kerala High Court
Kadeejammal vs P.N.Laila Beevi on 7 July, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 655 of 1996(C)
1. KADEEJAMMAL
... Petitioner
Vs
1. P.N.LAILA BEEVI
... Respondent
For Petitioner :SRI.PEEYUS A KOTTAM
For Respondent :SRI.T.P.MATHAI
The Hon'ble MR. Justice P.BHAVADASAN
Dated :07/07/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 655 of 1996
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Dated this the 7th day of July, 2011.
JUDGMENT
Muhammed Hussain Rawther and Kadeeja Ummal had seven children, namely, Saidu Muhammed Basheer, Ameer Rawther, Aishamma @ Pathumma, Kadir Beevi @ Hajira Beevi, Subaida Beevi, Laila and Seenath. The couple executed Ext.A1 gift deed in favour of four of their children excluding Subaida, Laila Beevi and Seenath. Consequent on the death of Muhammed Hussain Rawther, Laila Beevi and Seenath filed a suit for partition of the assets left behind by Muhammed Hussain Rawther. He died on 26.3.1988.
2. The suit was resisted by the defendants pointing out that since the parents of the plaintiffs had executed Ext. A1 gift deed, at the time of death of Muhammed Hussain Rawther he retained no properties to which the plaintiffs could succeed as heirs. S.A.655/1996. 2
3. The main question that was posed before the trial court for consideration was whether Ext.A1 gift deed was valid or not. According to the plaintiffs, since the ownership and domain over the property had not passed on to the donees pursuant to Ext.A1 gift deed, the gift was invalid. If that be so, according to them, so far as the properties of Muhammed Hussain Rawther were concerned, he died intestate. The defendants responded by pointing out that the gift had taken effect and delivery of the properties made mention of in the gift deed to each of the respective donees has been effected. The trial court found that Ext.A1 was a valid document and gifts had taken effect and therefore no estate was left behind by Muhammed Hussain Rawther to be inherited by the plaintiffs, their siblings and their mother.
4. The plaintiffs carried the matter in appeal as A.S.61 of 1992 before the Sub Court, Muvattupuzha. The lower appellate court after referring to the various provisions of the Muslim Law found that the gift was invalid and S.A.655/1996. 3 accordingly passed a preliminary decree, which reads as follows:
"In the result, appeal is allowed setting aside the judgment and decree of trial court that (i) a preliminary decree is passed for partition of the plaint A schedule properties allowing the plaintiffs to 6/72 each share of the plaint A schedule properties
(ii) Defendants 3 and 6 are restrained from committing waste in the plaint A and B schedule properties.
(iii) The share of the income entitled by the plaintiffs is left open to be considered in the final decree proceedings. Plaintiffs are free to apply for passing final decree within a period of 3 months from today. Plaintiffs are allowing to get costs of the proceedings from the estate."
5. Defendants 1, 3 and 6 in O.S. 36 of 1990 assailed the lower appellate court judgment and decree on the ground that the lower appellate court was not justified in holding that the gift was invalid.
S.A.655/1996. 4
6. Notice is seen issued on the following questions of law:
"A) Whether Ext.A1 gift deed is a valid one. B) Whether the stipulation in the gift deed that donor reserving the right to recurring income during his life time will made the gift invalid. C) Whether a partition suit is maintainable with regard to property which is not in ownership and possession of the deceased at the time of his death."
7. Learned counsel appearing for the appellants pointed out that the lower appellate court had erred in law and on facts in coming to the conclusion that the gift evidenced by Ext.A1 is invalid. Evidence was clear to the effect that in pursuance to Ext.A1 gift deed, the respective donees had taken possession of the properties and were enjoying it as if it belonged to them. Several assignments have been effected after Ext.A1 and infact donors had conceded that the gift has taken effect by joining in some of the assignment deeds. Learned counsel pointed out that it S.A.655/1996. 5 is true that the donors had reserved life estate over the properties gifted as per Ext.A1, but since the corpus was transferred, reservation of life interest over the suit property and the right to take income therefrom does not derogate from the gift or does not cut down the gift. Even assuming that there are some provisions which derogate from the gift, according to learned counsel, going by Section 164 of the Mohammedan Law, the condition is invalid and gift takes effect. According to learned counsel, the lower appellate court was not justified in coming to the conclusion that the corpus was retained by the donors and there was no delivery of the property. The grounds relied on by the lower appellate court to hold so, according to learned counsel, are totally erroneous. In support of his contention, learned counsel placed reliance on the decision reported in Nawazish Ali Khan v. Ali Raza Khan (AIR 1948 Privy Council 134), Kadija Beevi v. Maria Ummal (AIR 1958 Kerala 264), Ahemmed Kannu Rawther v. Mohammad Kani (1965 K.L.T. 505), Madathil Thattantavita Khalid v. S.A.655/1996. 6 Palott Moothammantakath Sainabi (ILR 1981(2) Kerala
721), M.T.Khalid v. P.M. Sainabi (AIR 1981 Kerala 230), P.Kunheema Umma v. P. Ayissa Umma (AIR 1981 Kerala
176), Ibrahim Kunju v. Pakkeer Muhammed Kunju (1984 K.L.J. 890), Pathu Muthummal v. Asuma Beevi (1986 K.L.T. 1177), Kunhamina v. Katheessa (1989(2) K.L.T. SN 61), (2006(2) K.L.T. 835), Kochu Ahmmed Pillai v. Pathummal (2003(1) K.L.T. 826), and Kadeesabi v. Mohammed Koya (2011(2) KHC 649). Accordingly, it is contended that the findings of the lower appellate court are unsustainable and have to be set aside.
8. Per contra, learned counsel appearing for the contesting respondents pointed out that the lower appellate court has correctly analysed the provisions in the gift deed and has come to the conclusion that there was no transfer of the corpus in pursuance to Ext.A1. On the terms of Ext.A1 it was found, according to learned counsel that the donors had retained control and possession over the corpus and the property were to be taken by the respective donees only S.A.655/1996. 7 after the lifetime of the donors. Learned counsel drew the attention of this court to the recital in Ext.A1 and pointed out that it is not as if the conditions are subsequent. It is clear from a reading of the document that the gift is subject to certain conditions. It can be clearly seen, according to learned counsel, that the donors retained dominion and ownership over the corpus and if that be so, the lower appellate court was perfectly justified in holding that the gift was invalid. Learned counsel went on to point out that the subsequent assignments by the respective donees, even assuming that the donors had joined the said assignments, will not improve the situation. The validity of the gift, according to learned counsel, will have to be determined by referring to the recitals to the document and not by subsequent conduct. Learned counsel went on to point out that subsequent conduct may be a relevant fact when the document is ambiguous or when it is difficult to gather the true intention of the donor from the document. In the case on hand, no such ambiguity exists and the terms of the S.A.655/1996. 8 document are very clear and if that be so, there are no grounds to interfere with the judgment and decree of the lower appellate court. In support of his contention, learned counsel relied on the decisions reported in Beepathumma v. M.N.M. Rowther (AIR 1977 Kerala 54), Mahboob Sahab v. Syed Ismail ((1995) 3 SCC 693), Laila Beevi v. N.Sumina (2009(3) KHC 661) and Abdul Rahim v. Sk. Abdul Zabar ((2009) 6 SCC 160).
9. The fate of this appeal should therefore depend upon the construction of the terms of Ext.A1 document. If on a construction of the terms of the deed, it is found that the gift has taken effect, necessarily the judgment and decree of the trial court will have to be restored. If on the other hand it is found that the donors have retained ownership and dominion over the property and the donees have not obtained possession pursuant to Ext.A1, then of course no interference is called for with the judgment and decree of the lower appellate court.
S.A.655/1996. 9
10. It is trite that each case will have to be considered with reference to the terms of the deed that came up for consideration and precedents are of no help in this regard. Precedents only laid down certain principles to be followed and cannot be readily borrowed to construe the terms of a document. The intention and the consequences of the recitals will have to be ascertained by reading the document as a whole.
11. Ext.A1 is the gift deed in question. The relevant recitals read as follows:
"
, ,
."
(since the marriage of four of you have already been conducted and Subaida, Laila and Seenath have been given all rights which they had at the time of their marriage and it is decided that they need not be given anything further.) S.A.655/1996. 10 ".......
, , ."
(A schedule is set apart to executee No.1, B schedule and the building therein with the foundation for a new building to the second excutee, C schedule to the third executee, D schedule to the fourth executee subject to the conditions herein. It further recites that the donees may effect mutation and pay property tax and make improvements after the death of each of the donors and enjoy as if it belonged to each of the donees.) "...
S.A.655/1996. 11
-
-
."
(The donees have the right to enjoy and take the income from A to D schedule properties now available and that may be available in future and also the right of residence in buildings contained in A and B schedules now available and that may be put up in future consequent on the death of one of the donors the surviving member will have the same rights. In addition the donors have the right to encumber the properties for any amount over any of the properties in S.A.655/1996. 12 A to D schedules and also to create documents in respect of any of the properties. This right may be exercised jointly or any one of the surviving members and the rights so reserved is absolute in nature. The recital also mentions that if any charge is created over the property, that has to be discharged by the respective donees who have been allotted the properties under the gift deed.)
12. It is the above recitals that arise for consideration in this case. As already noticed, the contention of the learned counsel appearing for the appellants are two fold. They are (i) there is a transfer of ownership and dominion over the properties immediately and the donors retained only the right of life estate and the right to take usufructuous from the property, (ii) even assuming that there is a condition limiting the estate, that is void under Section 164 of the Muhammedan Law.
13. Learned counsel for the respondents on the other hand pointed out that a reading of the recitals extracted above will clearly show that there was no S.A.655/1996. 13 divestiture of the rights over the property in favour of the donees and if that be so, the gift is invalid.
14. Before going further into the matter, it will be useful to refer to the relevant provisions of the Muhammedan Law and the decisions relied on by counsel on either side. This court is fortunate to note that the lower appellate court has infact referred to Sections 138, 148, 149 and 150 of the Muhammedan Law by Mulla. Section 138 defines what a gift is. Section 148 mentions about the ingredients necessary for a gift and Section 149 mentions the three essential conditions for a gift and Section 150 speaks about the necessity for delivery of property to complete the gift. In addition to the above provisions, one may also note Section 164, which reads as follows:
"164. Gift with a condition.- 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."
S.A.655/1996. 14
15. After referring to the various decisions, one shall come back to ascertain the true purport and intent as could be gathered from the deed.
16. In the decision reported in Nawazish Ali Khan's case (supra) it was held as follows:
"What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself and the usufruct in the property. Over the corpus of property the law recognizes only absolute dominion , heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests.
"If a person bequeath the services of his slave, or the use of his house, either for a definite or an indefinite period, such bequest is valid; because as an endowment with usufruct, either gratuitous or for an equivalent, is valid during life, S.A.655/1996. 15 it is consequently so after death; and aos, because men have occasion to make bequests of this nature as well as bequests of actual property. So likewise, if a person bequeath the wages of his slave, or the rent of his house; for a definite or indefinite term, it is valid , for the same reason. In both cases, moreover, it is necessary to consign over the house or the slave, to the leatee, provided they do not exceed the third of the property, in order that he may enjoy the wages or service of the slave, or the rent or use of the house during the term prescribed, and afterwards restore it to the heirs."
This distinction runs all through the Muslim law of gifts-gifts of the corpus (hiba) , gifts of the usufruct and usufructuary bequests. No doubt where the use of a house is given to a man for his life he may, not inaptly, be terms a tenant for life, and the owner of the house, waiting to enjoy it until the termination of the limited interest, may be said, not inaccurately, to possess a vested remainder. But though the same terms may be used in English and Muslim law, to describe much the same things, the two systems of law are based on quite different conceptions of ownership. S.A.655/1996. 16 English law recognizes ownership of land limited in duration; Muslim law admits only ownership unlimited in duration, but recognises interests of limited duration in the use of property."
"..... A limited interest takes effect out of the usufruct under any of the schools. Their Lordships feel no doubt that in dealing with a gift under Muslim law, the first duty of the Court is to construe the gift. If it is a gift of the corpus, then the any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest.
17. It needs to be noticed at once that the document construed in the above case is a Will and the recitals in the document have been extracted in paragraph 11 of the judgment. The principle laid down in the said decision appears to be that it is possible to retain a life S.A.655/1996. 17 estate after complete divestiture of the ownership and dominion in favour of the donees. That does not militate against the gift under the Mohammedan Law. It is also discernible from the above decision that any condition subsequent in derogation of the absolute right given to the donees is invalid and void.
18. In the decision reported in Kadija Beevi v. Maria Ummal (AIR 1958 Kerala 264) it was held as follows:
"According to the principles of Muhammadan law a gift of immovable properties of which the donor is in actual possession is not complete unless the donee is given possession. The mere fact that the donor reserves the right to take the usufruct during his life time does not mean that possession is not given to the donees. Such a reservation is quite consistent with delivery of possession of the properties to the donees."
19. In the decision reported in Ahemmed Kannu Rawther v. Mohammed Kani (1965 K.L.T. 505) it was held as follows:
S.A.655/1996. 18
"But the case presents another feature. The parties are Mohammadans. According to the law governing them, life interests and vested remainders are not recognised. Learned counsel reling on Nawazish Ali Khan v. Ali Raza Khan contended for the position, that the grant in this case under Ext.XXXI was not of the corpus of the properties, but only of their usufruct. The Privy Counsel held in the case cited, as follows:
"Their Lordships feel no doubt that in no doubt that in dealing with a gift under Muslim law, the first duty of the court is to construe the gift. It it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest."
It follows that if the grant falls under the former part of the above, the 3rd defendant takes absolutely notwithstanding the restriction or limitation, but if it falls under the latter part, S.A.655/1996. 19 namely, a grant of the usufruct of the property as distinguished from the corpus, the grant limited though it be for the third defendant's lifetime, is valid.
.....The stipulation that the grantee may enjoy the property cannot lend itself to the interpretation that she was merely to collect and enjoy the usufruct of the property. She ws even permitted to grant releases of mortgages concerning the properties, though with the attestation of her husband."
The recitals in the document construed are available in paragraph 2 of the judgment. On the terms of the document, it was held by this court that the third defendant in the said suit had nothing more than a life interest terminable on her death.
20. In the decision reported in Madathil Thattantavita Khadid's case (supra) a distinction was drawn between transfer of ownership and dominion over the property and the right to take usufructuous. The relevant S.A.655/1996. 20 recitals in the document construed in that case is available in paragraph 6 of the judgment. After construing the document it was held as follows:
"Mohammedan Law does not recognise a gift as valid unless three essential elements are found to co-exist. (1) manifestation of the donor's wish to give; (2) acceptance of the gift by the donee either expressly or impliedly; and (3) taking of possession of the subject-matter of the gift by the donee either actually or constructively. Delivery of possession need not necessarily be physical or actual, but it should be delivery of such possession as the subject-matter of the gift is susceptible of. In Mohammedan Law there is a clear distinction between a gift of the corpus and a gift of the usufruts. Over the fomer the Law recognizes only absolute dominion and admits of no condition which seeks to limit that dominion; whereas in the case of the latter a limited interest can be created in which even the dominion over the corpus takes effect subject to that limited interest. Mohammedan law knows of no ownership which is limited in duration; but it S.A.655/1996. 21 recognizes interests of limited duration in the use of the property. The gift deeds were intended to be, and did operate, as an immediate and irrevocable disposition of the properties in question in favour of the donees. The reservation of the usufructs in favour of the donor during his life with authority to collect rents and profits as the agent of the donees did not make the gift void under Mohammedan Law."
21. In the decision reported in M.T. Khalid's case (supra) the distinction between a gift of the surplus and gift of the usufructuous was drawn. It was held as follows:
"In Mohammedan law there is a clear distinction between a gift of the surplus and a gift of the usufructs. Over the former the law recognizes only absolute dominion and admits of no condition which seeks to limit that dominion; whereas in the case of the latter a limited interest can be created in which event the dominion over the corpus takes effect subject to that limited interest. Mohammedan law known of no ownership S.A.655/1996. 22 which is limited in duration but it recognizes interests of limited duration in the use of the property. In Nawazish Ali Khan v. Ali Raza Khan the Privy Council observed:
"In General, Muslim law draws no distinction between real and personal property....... What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself and the usufruct in the property. Over the corpus of property the law recognizes only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests."
We are of the view that Exts. B2 and B3 were intended to be, and did operate, as an immediate and irrevocable disposition of the properties in question in favour of the donees. The reservation of the usufructs in favour of the donor during his life with authority to collect rents and profits as the agent of the donees did not make the gifts S.A.655/1996. 23 void under Mohammedan Law."
22. In the decision reported in P. Kunheema Umma's case (supra) the requirements of a gift of immovable property under Mohammedan Law was highlighted. It was held as follows:
"If as a matter of fact, even prior to the execution of the document, the 1st defendant was in possession of the property as allowed by the donor, it was only the nominal right that the donor was retaining with him that was required to be delivered to the donee. In other words, if the khas possession was already with the donee, what was required to be given by the donor was only the remaining rights. That could be done by mere declaration and by the execution of the document, as no other overt act is necessary. "
23. The decision reported in Ibrahim Kunju's case (supra) considered three aspects. They are (i) a recital in the deed of gift that the property is delivered is S.A.655/1996. 24 prima facie proof of delivery of possession, (ii) reservation of life interest is not objectionable and (iii) condition that the donor can encumber the property is bad in law. In paragraph 12 of the above decision, the recital in the document that came up for consideration is extracted. It was held as follows:
"The Mohammedan Law relating to gifts has been clearly put by Justice Din Mohammed in Nazir Din v. Mohammed Shah in the following words:
"The courts in this country have given effect rather to the spirit of the rule than to its letter and have upheld gifts in all cases in which the intention to give on the part of the donor had been expressed in most unequivocal terms and had further been attended by all honest efforts on his part to complete the gift by divesting himself of the control over the property in such a matter as would clearly imply his divestiture in the eye of the law of the land."
"The raison D"etre of of this rule was the avoidance of gifts that were vague, indefinite or incomplete and the only test that should be S.A.655/1996. 25 applied in such cases is whether the gift in question is open to any of these objections; or in other words, whether the donor has still reserved to himself a loop-hole of escape or not."
As has been pointed out in the Travancore- Cochin case Maitheen Beevi Umma v. Varkey and in the Kerala Case Muhammad Pathummal Kadija Beevi v. Maria Ummal Mohammad Pathummal that while it is true that according to principles of Mohammedan Law a gift of immovable properties of which the donor is in actual possession is not complete unless the donee is given possession, the mere fact that donor reserves the right to take usufruct during his life time does not mean that possession is not given to the donees. Such a reservation is quite consistent with delivery of possession of the properties to the donees. A condition in a deed of gift that the whole of the usufruct would be taken by the donor during his life time would not make the gift invalid if possession of the subject matter of the gift was given to the donees."
S.A.655/1996. 26
24. In the decision reported in Pathu Muthummal's case (supra) in paragraph 3 the relevant recitals in the document are seen extracted. It was held as follows:
"The three essentials to the validity of a gift in Mohammedan Law are (1) a 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 the gift by the donor o the donee as the subject of gift is susceptible of. No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. this rule applies to gifts of immovable property by a wife to the husband and by a 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 S.A.655/1996. 27 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.
......... The document says that the entire rights are given in presente. The donee was authorised immediately to effect mutation in her name and get patta. She was also authorised to pay tax for all the properties immediately. That she complied with these provisions is not in dispute. She was authorised to effect improvements also. There is a provision which says that she has to take possession of item No.1 after the death of the donor. Provision for effecting improvements is commonly made even though there is scope for a contention that regarding item No,1 that provision is also intended to take effect only after the death of the donor. But in the immediate succeeding sentence he made his intention clear. He clearly stated that what he reserved with him was only the enjoyment of the usufructs of item No.1 and the freedom to reside in the building in item No.1 and nothing else. That means he did not even retain possession or right to effect improvements in item S.A.655/1996. 28 No.1 and subject to his right of residence in the building and the right to enjoy the usufructs of that property the entire rights including possession were handed over to the donee. In such circumstances the provision that the donee can possess and enjoy the property after his death could only mean that till his death the wife is not given the right to take usufructs of the property. No other restriction could be inferred from the circumstances. he has further clarified this position by saying that subject to the right to take usufructs and reside in the building as stated above he has relinquished all other rights immediately in favour of the donee. That is further indication that except the two rights he has relinquished all other rights including possession also. The donee was already residing along with donor and that residence is not disturbed. In such a situation the declaration in the gift without any physical departure or formal entry was sufficient to put the donee who was already in the premises into possession. Along with these facts the explicit intention of the donor to gift the properties and the reasons therefor mentioned in the gift deed are also relevant." S.A.655/1996. 29
25. In the decision in Kunhamina's case (supra) it was held as follows:
"In a case where a gift deed has been executed by a Muslim and if it satisfies the essential ingredients of gift under the Mohammedan Law mere recitals in the deed that the donor is at liberty to enjoy the income during his life time cannot render the gift bad. In a case where 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. Mohammedan Law makes a distinction between the corpus of the gift and the usufruct. Any reservation of right in manafi, so long as the ayn is transferred, does not render the gift bad. Thus in a case where there is declaration of the gift by the donor, acceptance of the same, express or implied, by or on behalf of the donee and delivery of possession to the donee a mere recital that usufructs will be enjoyed by the donor will not render the gift bad on the ground that possession of the properties have not been given to the donees. In a case S.A.655/1996. 30 where a donor did not divest himself with the corpus of the gift is bad. It will not be so if the donor reserved right in himself to take the income from the properties during his life time."
26. In the decision in Kochu Ahmmed Pillai's case (supra) the recitals in the document that came up for consideration are seen mentioned in paragraph 3 of the judgment. It was held as follows:
"The unequivocal statement in the gift deed gave absolute right to the first defendant and the further condition that after the death of 1st defendant, the plaintiff will get the property cannot be enforced under the Mohammedan Law. There is no life interest under Mohammedan Law, for the corpus, though it is possible to provide for a provision reserving the right to take usufructs while giving the absolute right in the corpus to the donee."
27. In the decision in Kadeesabi v. Mohammed Koya (2011(2) KHC 649) it was held as follows: S.A.655/1996. 31
"Now examining the decisive question whether Ext. A2 gift deed had come into effect or not, on which both the Courts below have concluded that it has not, accepting the contentions of the defendants, the significance of Ext.A4 consent deed obtained by the donor from the donees under Ext.A2 had been ignored as if that deed was of no consequence. To consider whether there was delivery of possession in favour of the donees after execution of Ext.A2 gift deed, the execution of Ext.A4 consent deed and what are all stated thereunder is of great value, and, in fact, the controversy arising for adjudication in the suit for its resolution irrespective of other materials produced and circumstances presented has to be appreciated in the backdrop of Ext.A4 consent deed. The donor Cheriyakoya Haji, after execution of Ext.A2 gift deed, nearly four months later, got a consent deed (Ext.A4) from the donees to enable him to have enjoyment of the property till his life. Going through Ext.A4 gift deed, it is seen, the donees gave their consent to the donor to enjoy the properties covered by Ext.A3 till his life time. The defendants have no case nor even any challenge over the execution and also S.A.655/1996. 32 acceptance of Ext.A4 by Cheiyakoya Haji, the executant of Ext.A2, and thus, his obtaining of consent from the donees for enjoyment of the properties under Ext.A1 gift deed. If Ext.A2 deed had not taken effect with delivery of possession to the donees, there was absolutely no need for the donor to obtain any sent as under Ext.A4 deed from the donees for his enjoyment of the property. What has been granted by the donees under Ext.A4, it could be seen, is only a consent or permission to the donor to enjoy the property till his life time and not even of handing over the possession of the property, which from the above circumstances itself amply demonstrate that on execution of Ext.A2 gift deed, the possession of the property was delivered over to the donees. Ext.A2 gift deed does not specifically contain a statement as to delivery of possession, is not material as such possession could be proved and established by other circumstances surrounding the execution of the gift and also what transpired after the execution of the deed. In Ext.A2 gift deed, it is specifically stated, after describing the particulars of the properties covered, that it had been given away as a gift to the donees and none S.A.655/1996. 33 other would have any right over that property. No reservation has been made in favour of the donor even in respect of the enjoyment over that property, which was, however, obtained by him later, after Ext.A2 gift deed, under Ext.A4 consent deed from the donee, is a telltale circumstance that by making a declaration that none other would have any right over the property and handing over of possession to the donees on execution of Ext.A2 gift deed."
28. A reading of the above decision shows that there was an absolute gift in favour of the donees by the document executed by the donor. Thereafter donor gets a document executed by the donees entitling the donor to take usufructuous during his lifetime. Later it seems that the donor had cancelled the gift deed. The decision was rendered in that context.
29. One may now refer to the decisions referred to by the learned counsel for the respondents. S.A.655/1996. 34
30. In the decision in Beepathumma's case (supra) the recitals of the document which came up for consideration are extracted in paragraph 5. It was held as follows:
"......The phrase used is "kayvasom veche aadaayangal anufavich varumaanom" which normally should mean that the executant was entitled to be in possession of the property and enjoy the same by taking usufructs. That this is so is clear form the latter portion of clause (2) which specifically authorise the executee to be in possession of the property and enjoy the same --
"Ningal kayvasom vache anulavicha varumaanom" though that right would enure to the executee only after the lifetime of the executant. That if the donor reserves to himself the right to be in possession of the corpus and the right to enjoy the same, there cannot be a valid gift under Muslim law, has been laid down by Sir John Beaumont on behalf of the Board in Nawazish Ali Khan v. Ali Raza Khan. It was said:-
"What Muslim law does recognize and insist upon, is the distinction between the corpus of the property itself and the usufruct in the property. S.A.655/1996. 35 Over the corpus of property the law recognizes only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests."
The passage above quoted would mean that Muslim law requires the gift of corpus itself and if there is anything repugnant to such a gift, such a repugnant condition would be invalid, but it is necessary that the gift should be of the corpus. We have earlier found, construing clause 92) in each of the four documents that there was no gift of the corpus, the executant having reserved to himself all rights in respect of the corpus including the right to take usufructs. To the same effect is the decision of the Privy Council in Mohamed Aslan Khan v. Khalilyl Rehman Khan, AIR 1947 PC 97. Therein it was held that if possession of the property was reserved with the donor the gift is not complete. The afore said decision was followed by this court in Hajee Kunju S.A.655/1996. 36 Mamathu v. Asikutty, 1959 Ker LT 624 and Pichakannu v. Aliyarkunju Lebba, 1963 Ker L.T
226. In the later decision Velu Pillai, J stated that it was a fundamental rule of Muhammedan Law as regards gifts that the donor should divest himself completely of all ownership and dominion over the subject of the gift and that a gift with a reservation of possession by the donor during his lifetime was void as held in Mohamed Aslan Khan v. Khalilul Rehaman Khan, AIR 1947 PC 97. In view of the decisions mentioned above we are at one with the lower court in holding that the gifts Exts.B1, B4, B6 and B7 are bad under the Muslim law and that the same could not confer on the respective executee any right in respect of the property stated to have been gifted thereunder."
31. In the decision reported in Mahboob Sahab's case (supra) it was held as follows:
"....It would thus be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, S.A.655/1996. 37 there should be a declaration of the gift by the donor; acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession of the property, the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift."
32. In the decision reported in Laila Beevi's case (supra) it was held as follows:
"....The burden of proof is, therefore, on the person who sets up a gift to show that the rigid forms stipulated by the Muslim Law have been complied with. It is, hence, essential to the validity of a Muslim gift that the donor should divest himself or herself completely of all ownership and dominion over the subject of the gift before he or she can effect delivery of possession of the property gifted. Actionable claims and even incorporeal property can form the S.A.655/1996. 38 subject matter of the gift. If the gift is in respect of immovable property, it must effect an immediate transfer of the corpus of the property. Where a gift of the corpus is given and the donor does not reserve any dominion over the corpus but merely retains his right to take the produce or income or usufructus from the property, the gift is valid."
33. In this context it will also be useful to refer to the decision reported in Hafeeza Bibi v. SK. Farid ((2011) 5 SCC 654) wherein it was held as follows:
"The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are:
(1) declaration of the gift by the donor; (2) acceptance of the gift by the donee; and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials makes the gift complete and irrevocable. However, the donor may record the transaction of gift in writing."
S.A.655/1996. 39
34. From a reading of the relevant provisions of the Mohammedan Law and also the decisions referred to above, under the Muhammedan Law for validity of a gift four elements appears to be necessary. They are
(i) Declaration of gift by donor.
(ii) Relinquishment by donor over ownership and domain.
(iii) Acceptance of gift by the donee.
(iv) Delivery of possession of property by the donor.
35. It cannot be doubted that in order to complete the gift, the donor has to relinquish control and ownership over the property absolutely in favour of the donee. The donee should accept the gift. The acceptance signifies the intention of the donee to take the property. The gift is complete only on acceptance. It is also evident from the decisions on the point that the delivery of possession of the subject matter of gift is essential for a valid gift. It need not always be actual physical delivery. Such delivery as the S.A.655/1996. 40 subject matter would make it possible is sufficient. However, it is very evident from a reading of the decisions on the point that each case depended upon the facts and circumstances of that case and the recitals in the deed which came up for consideration.
36. Keeping the above principles in mind, an attempt shall now be made to ascertain the true purport of the recitals in Ext.A1 which had already been extracted. The question that arises for consideration is whether on the terms of the recitals extracted in the earlier portion of the judgment, it could be said that soon after the execution of the document there is a transfer of the properties dealt with under the document in favour of the donees. The next question is whether the donees have accepted the gift and there has been a delivery of possession.
37. One is left with no doubt regarding the fact that if an absolute estate is created initially and then a condition is included derogating from the absolute estate so created, the subsequent condition is void. It needs to be S.A.655/1996. 41 noticed that in the cases relied on by the learned counsel for the appellants, those were all cases an absolute estate was created and thereafter clause violating the absolute estate was incorporated in favour of the donor. Of course in one of the cases, there was a subsequent clause which enabled the donor to encumber the property to certain limit. Still it was held that the gift was valid.
38. In the case on hand, the recitals extracted above indicate the following:
(i) the donors can encumber any property to any extent.
(ii) can create documents in respect of any of the properties.
(iii) the right of the donees to take the property absolutely arises on the death of the donors.
(iv) the deed does not mention that possession has infact been given.
S.A.655/1996. 42
39. Apart from the above factors, the donors have reserved the right to reside in the buildings in A and B schedule properties and to take income that is available and that will be available in future from all the properties.
40. Much was argued regarding the above aspects by the learned counsel for the appellants. It was pointed out that subsequent conduct is a relevant factor and reference was made to Exts.A2 to A5, which are assignment deeds executed by the donees along with the donors in respect of the properties which are the subject matter of Ext.A1. The contention is that the fact that the donors have joined in some of those assignments will clearly reveal that the intention of executing Ext.A1 was to transfer the possession of the property and the property was taken delivery of by the respective donees.
41. It is true that subsequently documents have been executed in respect of the properties covered by Ext.A1 and it is also true that the donors have joined in some of them. D.W.1, who is one of donors under Ext.A1 S.A.655/1996. 43 has stated that pursuant to Ext.A1, the donees had taken possession of the property and they were in enjoyment of the same. She has also stated in her evidence that the intention of the donors was to give the properties forthwith to the respective donees. Reference was also made to the evidence of P.W.1, who says that the respective donees are in possession of the properties.
42. P.W.1 in her cross-examination of course stated that whatever stated in Ext.A1 is correct and that as per Exts.A2 to A5 the respective properties are in the possession of the respective persons.
43. Reference has already been made to the evidence of D.W.1, who as already noticed, is one of the donors under Ext.A1. She would also say that the property set apart to Ayishamma and Subaida had been alienated after the properties were given to them as per Ext.A1. In some of the documents, she says that, she and her husband also joined. But her cross examination would reveal that she had little knowledge about the contents of S.A.655/1996. 44 Ext.A1. She had absolutely no idea as to who had given instructions to prepare the written statement in the suit and she is ignorant about the contents in the plaint as well as in the written statement.
44. D.W.2 is the sixth defendant. He claims to have put up a house in the property allotted to him. He also speaks about Exts.A2 to A5 assignment deeds. According to him even though it is recited in Ext.A1 that the donors could encumber and alienate the property, they have no right to do so. He has also stated that Ext.B2 was executed in his name by his parents. In cross examination he would admit that Ext.A1 recital is to the effect that the properties are to be enjoyed by the donees after the death of the donors. He would also concede that as per the recital in the document, the properties are to devolve on the donees subject to certain conditions. He would not dispute the recitals in Ext.A1.
45. The core question that arises for consideration is whether one has to go by the terms in S.A.655/1996. 45 Ext.A1 or by the subsequent conduct. Primarily the law seems to be that the document has to be construed and the intention has to be ascertained. If only the terms of the document are ambiguous and the intention is not discernible from the recitals, then one can look into the subsequent conduct. The trial court took the view that since the donees are in possession of the property as per Ext.A1 document, the gift has came into effect. The court was of the view that the right to take usufructuous does not derogate from the absolute grant by Ext.A1 document and that is the well recognised mode of gift.
46. However, the lower appellate court took a different view and on the terms of the document came to the conclusion that since the donors during their lifetime had retained the right to take usufructuous, encumber the property and also alienate the property, it could not be said that delivery has been given immediately and possession has been taken by the donees in pursuance to Ext.A1 document. The lower appellate court also took aid of S.A.655/1996. 46 Exts.A2 to A5 to come to the conclusion that since donors had joined the documents, it is clear that they have retained rights over the properties which are the subject matter of Ext.A1. According to the lower appellate court if as a matter of fact the donors had completely relinquished their rights, it is unnecessary for them to join Exts.A2 to A5.
47. There can be no dispute regarding the fact that going by the terms of Ext.A1 donors have the right to take usufructuous, encumber the property to any extent and also to alienate the property. The recital indicate that during the lifetime of the donors, donees are not to enjoy the property. It is not a case where there is an absolute gift followed by the reservation of taking usufrctuous only from the property or in other words it is not a case where the corpus is transferred and the right to take usufructuous is retained. It is not possible to accept the contentions raised by the appellants that since there have been subsequent assignment deeds and the respective donees have dealt with the properties, it should be presumed that possession S.A.655/1996. 47 has been given and delivery has been effected.
48. True, the subsequent conduct may be a relevant factor. But one cannot ignore the terms of Ext.A1. The nature of right reserved by the donors, the mode of enjoyment, and also the extent of rights retained for themselves clearly show that there is no divestiture of ownership and dominion completely over the property in favour of the donees. If on a reading of Ext.A1 one concludes that there is no deliverty of possession and that the donors have retained control over the properties, then it is doubtful how far subsequent conduct can help the defendants. It is significant to notice that there is nothing to indicate that donees have effected mutation or paid property tax in respect of the property in pursuance to Ext.A1. Ext.A1 is dated 8.8.1979 and Exts.A2 to A5 are from 1985 to 1989. Ext.B1 building tax paid by the sixth defendant is in the year 1986. At the risk of repetition, one may notice that the donors reserved the right to enjoy the property, they reserved the right of residence, they retained S.A.655/1996. 48 the right to encumber the property to any extent and also to alienate the same. The essential ingredients to constitute ownership and possession therefore are retained by the donors. It is not a case where an absolute grant is made and thereafter conditions in derogation of the absolute grant is included in Ext.A1. As already noticed, the deed begins by saying that it is subject to certain conditions. That means, the transaction effected as per Ext.A1 document is subject to the conditions which are to follow. The condition is not a subsequent one which is to be treated invalid or void. Of course in one of the decisions relied on by the learned counsel for the appellants, it was held that the mere fact that the donors retained the right to encumber the property to some extent by itself is not a ground to hold that there is no delivery of possession and acceptance of the gift. But that was on the basis of the recital in the document that had come up for consideration in that case. In the case on hand, it does not appear that the donors have completely given up all their rights over the property covered by Ext.A1 S.A.655/1996. 49 and infact it would appear that they have retained their rights and it was intended that the settlement should take effect in favour of the donees after the death of the donors.
49. The trial court does not appear to have taken note of the relevant recitals in Ext.A1 and was carried away by the fact that the right is only to take the usufructuous which is not objectionable in a deed of gift. However the lower appellate court has considered the document and its recitals and has come to the conclusion that the gift is objectionable.
50. A very feeble contention was raised by the learned counsel for the appellants that the gift is of the year 1979 and the suit was brought only in 1990. Meanwhile the transactions have been challenged by the plaintiffs. Without seeking recovery of possession, the suit was not maintainable.
51. The contention is only to be rejected. Plaintiffs have stated that they were unaware of the gift. The mere fact that certain transactions have been effected S.A.655/1996. 50 by the donees does not destroy the right of the plaintiffs and the contention raised in this behalf is only to be rejected.
52. It cannot be said that the lower appellate court had erred in any manner in coming to the conclusion that the gift had not taken effect. The findings were essentially based on the contents of the document and it could not be said that the interpretation given by the lower appellate court was quite unwarranted or unjustified by the recitals in Ext.A1.
The result is that this appeal is without any merits and it is liable to be dismissed. I do so confirming the judgment and decree of the lower appellate court. There will be no order as to costs.
P. BHAVADASAN, JUDGE sb.