Kerala High Court
Habeeb Thazhavadakkayil vs Kunhami on 25 June, 2024
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 25TH DAY OF JUNE 2024 / 4TH ASHADHA, 1946
RSA NO. 1251 OF 2015
AS NO.31 OF 2014 OF SUBORDINATE COURT, VATAKARA
OS NO.190 OF 2012 OF MUNSIFF COURT, NADAPURAM
APPELLANT/2ND RESPONDENT IN AS 31/2014 - SUB JUDGE,
VATAKARA/2ND DEFENDANT IN OS 190/2012 - MUNSIFF, NADAPURAM
HABEEB THAZHAVADAKKAYIL
AGED 35 YEARS
S/O.AMMED, TRADER, KAYAKKODI AMSOM DESOM, VATAKARA
TALUK, KOZHIKODE DISTRICT, KERALA STATE
BY ADVS.
SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
RESPONDENTS/APPELLANT & 1ST RESPONDENT IN AS NO.31/2014 -
SUB JUDGE, VATAKARA/PLAINTIFF & 1ST DEFENDANT IN OS
NO.190/2012 - MUNSIFF, NADAPURAM
1 KUNHAMI
AGED 53 YEARS
W/O.AHAMMED, HOUSEWIFE, CRESCENT MAHAL, AYANCHERI
AMSOM DESOM,VATAKARA TALUK, KOZHIKODE
DISTRICT,KERALA STATE -673101
2 PATHU VALIYA PARAMBATH
AGED 51 YEARS
W/O. AMMED, HOUSEWIFE, KAYAKKODI AMSOM DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE
673101
BY ADVS.
SRI.K.V.SOHAN
ATUL SOHAN
R.REJI (ATTINGAL)(K/1471/2003)
RSA 1251/2015
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SREEJA SOHAN K.(K/001271/2001)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 20.6.2024, THE COURT ON 25.06.2024 DELIVERED
THE FOLLOWING:
RSA 1251/2015
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C.R.
C.PRATHEEP KUMAR, J.
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R.S.A.1251 of 2015
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Dated : 25th June, 2024
JUDGMENT
1. This Second Appeal has been preferred by the 2 nd respondent in A.S.31/2014 on the file of the Subordinate Judge of Vatakara, who is the 2nd defendant in O.S.190/2012 on the file of the Munsiff's Court, Nadapuram against the judgment and decree of the 1 st Appellate Court dated 25.9.2015 allowing the appeal and decreeing the Suit. For the purpose of convenience, the parties are hereafter referred to as per their rank in the trial Court.
2. The plaintiff filed this suit seeking partition and separate possession of one-third share from the plaint schedule property. The plaint schedule property originally belonged to Vadakkayil Aysu who died leaving the plaintiff and the 1st defendant who are her children and 2 nd defendant, who is the son of her pre-deceased son Ammed as her legal heirs. According to the plaintiff, after the death of Aysu, she along with defendants 1 and 2, are the legal heirs of Aysu and therefore, she prayed for a decree for partition.
3. According to 2nd defendant, Aysu orally gifted the plaint schedule property to her son Ammed. He had accepted the gift and was also RSA 1251/2015 4 paying land tax for the said property. On the death of Ammed on 22.11.2004, the 2nd defendant became the absolute owner of the plaint schedule property and as such, according to the 2 nd defendant, the plaint schedule property is not partible and that the plaintiff and the 1 st defendant are not entitled to get any share from it.
4. After the conclusion of the trial Court, the trial Court dismissed the suit, accepting the contention that Aysu gifted the plaint schedule property to Ammed and as such, the plaint schedule property is not partible. In appeal, the 1st Appellate Court found that the plaintiff could not prove the claim of oral gift and as such, the 1st Appellate Court reversed the finding of the trial Court and decreed the suit, holding that the plaintiff and defendants 1 and 2 are entitled to get 1/3 share each from the schedule property. Dissatisfied with the above judgment and decree of the 1st Appellate Court, the 2nd defendant preferred this Second Appeal raising various contentions. At the time of admission this court formulated the following substantial questions of law:
"i) Whether the First Appellate Court was justified in refusing to accept the oral gift propounded by the 2 nd defendant when there is no pleading from the side of the plaintiff disputing the oral gift or challenge in evidence of the said oral gift propounded by the 2nd defendant in cross examination.RSA 1251/2015
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ii) Whether the First Appellate Court was justified in reversing the decree and judgment of the trial Court accepting the oral gift propounded by the 2nd defendant when the said plea was accepted by the trial Court based on cogent materials viz evidence."
5. Heard both sides on the above substantial questions of law.
6. The 2nd defendant is relying upon an oral gift allegedly made by Aysu in favour of Ammed in the year 2000. As per paragraph 147 of "The principles of Mahomedan Law" by Mulla, a gift can be made and writing is not essential to the validity of a gift either of movable or of immovable.
7. An oral gift of immovable property can be effected in the manner prescribed under paragraph Nos.148 and 149 which are extracted below for reference :
148. Relinquishment by donor of ownership and dominion. It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.
S.149. The three essentials of a gift : It is essential to the validity of a gift that there should be (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 RSA 1251/2015 6 the subject of the gift by the donor to the donee as mentioned in S.150. If these conditions are complied with, the gift is complete."
8. In the decision in Illahi Shamsuddin Nadaf v. Jaitunbi Makbul Nadaf, 1994 (5) SCC 476, the Hon'ble Supreme Court held that an oral gift is perfectly valid under Mahomedan Law.
9. In the decision in Hafeeza Bibi and Others v. Shaikh Farid (Dead) by LRs and Others, 2011 (5) SCC 654, relied upon by the learned counsel for the plaintiff, the Hon'ble Supreme Court held in paragraph 27 as follows :
"27. 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; (i) 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 make the gift complete and irrevocable.
However, the donor may record the transaction of gift in writing. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds : (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument RSA 1251/2015 7 of gift; such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient. "
10. In the decision in Rasheeda Khatoon v. Ashiq Ali, 2014 KHC 4652, the Hon'ble Supreme Court in paragraph 16 reiterated the three essential features necessary for an oral gift under the Mahomedan Law as follows :
"16. From the aforesaid discussion of the propositions of law it is discernible that a gift under the Muhammadan Law can be an oral gift and need not be registered; that a written instrument does not, under all circumstances require registration; that to be a valid gift under the Muhammadan Law three essential features namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act. "
11. In the decision in Jamila Begum (D) Thr.Lrs. v. Shami Mohd. (D) Thr. LRs 2019 (2) SCC 727, another two-Judges Bench of the Hon'ble Supreme Court unequivocally stated that under the Mahomedan Law RSA 1251/2015 8 making oral gift is permissible.
12. In the light of the above decisions it can be seen that an oral gift is permissible under the Mahomedan Law provided three essential features namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly and (iii) delivery of possession to the donee are satisfied.
13. It is also well settled that the burden is on the person who claims oral gift, to prove that all the essential requirements of an oral gift exists in the case on hand. In the decision in Md. Abul Fazal v. Md.Kubbas Ali, AIR 2017 Gau. 76, the Guahati High Court had occasion to consider the nature of proof required in an oral gift. In paragraph 11 of the judgment the court held as follows:
"11. From the discussions made herein above with regard to the findings of the learned first appellate court, it is found that there is no illegality in coming to the conclusion with regard to the facts. Rather, the learned courts below have correctly come to the finding that the appellant defendant has failed to prove the oral gift, inasmuch as, in order to prove an oral gift under the Mahomedan Law, it is the burden on the person claiming to be the person who has accepted the gift from the donor that the person making the gift had divested himself from the right, title and interest of the property included in the gift and the said act must be proved by witnesses. Similarly, the fact of delivery of RSA 1251/2015 9 possession to the person accepting the gift must also be proved by witnesses. In the case in hand, more specifically in the written statement, there is no single whisper with regard to the person who witnessed the whole episode of the oral gift by Amiruddin to the appellant defendant No. 1. Regarding the fact of possession and dispossession, the learned first appellate court has conclusively held on the basis of proper preponderance of the evidence and the materials on record and no perversity can be attributed to the learned courts below while passing the impugned judgment and decree. Accordingly, the submission of Mr. Choudhury, learned counsel for the appellant, that this second appeal gives rise to substantial question of law is not accepted, inasmuch as, from the discussions made herein above, this court finds that the findings of the learned courts below do not involve any substantial question of law to be decided by this court. Accordingly, this second appeal is dismissed at the admission stage. "
14. However, as noticed by the 1 st Appellate Court, in the written statement of the 2nd defendant the details regarding the date of oral gift, the date of declaration made by the owner, the date of delivery of the property etc., are not mentioned. Only at the time of evidence, an attempt was made to show that the oral gift was made in the year 2000. As rightly RSA 1251/2015 10 held by the 1st Appellate Court, DW1, who alone was examined on the side of the 2nd defendant to prove the oral gift, had no direct knowledge about the oral Gift. There is absolutely no other evidence to prove the alleged oral gift. It was in the above context, the 1 st Appellate Court found that the 2nd defendant could not prove the oral gift.
15. The learned counsel for the plaintiff invited my attention to the fact that the plaintiff has not denied the oral gift claimed by the 2 nd defendant by filing a replication and also that the evidence of PW1 regarding the oral gift was not challenged in cross-examination. As rightly held by the 1st Appellate Court, in order to prove the oral gift the entire burden is on the 2nd defendant and for the aforesaid purpose, he could not rely upon the defect or weakness in the plaintiff's case. Since the 2 nd defendant has not given specific pleadings in the written statement with regard to the essential requirements of a valid oral gift as claimed and DW1 had no direct knowledge with regard to the oral gift claimed in the written statement, there is inherent weakness in the case set up by the 2 nd defendant.
16. In the light of the above discussions, it is to be concluded that, the 1st Appellate Court was perfectly justified in holding that the 2nd defendant could not prove the oral gift as claimed in the written statement. The above finding of the 1st Appellate Court is in tune with the evidence on record and as such I do not find any irregularity, illegality or RSA 1251/2015 11 perversity in the above finding of the 1st Appellate Court so as to call for any interference. Therefore, the specific questions of law formulated are answered accordingly. No other specific questions of law were raised by the learned counsel, at the time of argument.
In the result, this Second Appeal is dismissed, confirming the judgment and decree of the Subordinate Judge's Court, Vatakara in A.S.No.31/2014.
All pending interlocutory applications stand closed.
Sd/-
C.Pratheep Kumar, Judge Mrcs/6.6.