Madras High Court
Syed Mustan And Anr. vs Syed Mubarak on 24 September, 1996
Equivalent citations: (1997)1MLJ92
Author: D. Raju
Bench: D. Raju
JUDGMENT D. Raju, J.
1. The defendants in O.S. No. 419 of 1981 on the file of the District Munsif Court, Nagapattinam, are the appellants in the above second appeal. The respondent herein filed the suit for declaration of his title to the suit property and for a direction to the defendants to remove the superstructure put up by them on the land and deliver vacant possession of the land and for mesne profits for the immediate past three years.
2. The case of the plaintiff was that the first defendant was his brother and the second defendant was the first defendant's wife, that the plaintiff and the first defendant are the brothers and the sons of Syed Mohammed, that the property originally belonged to the grandfather Hammed Sultan, who settled the same in favour of the plaintiff's father Syed Mohammed under a registered settlement deed dated 3.7.1968 and subsequently, under a settlement deed dated 23.3.1972 an extent of 42 cents in R.S. No. 69/1 and his share in the house came to be settled in favour of the plaintiff out of love and affection, and that the said deed of settlement was duly registered and therefore, the plaintiff is the owner of the property. It is the further case of the plaintiff that the first defendant's brother used to often go to Singapore on business purposes and he requested in the end of 1969 the plaintiff to provide a small portion of suit property for temporarily putting up a small, shed for his residence undertaking to vacate and though in an extent of about 3 cents such superstructure was put up, wherein the first defendant and the second defendant (first defendant's wife) were living, the defendants have not made any arrangement to remove the superstructure and deliver vacant possession. Since the defendants started denying thereafter the right of the plaintiff, after exchange of notices, the suit come to be filed for the relief referred to supra.
3. The second defendant alone filed a written statement, which was adopted by the first defendant, denying the various allegations in the plaint. The settlement deed dated 3.1.1968 was admitted, but it was contended that the subsequent settlement deed dated 23.3.1972 was not valid in law and that the plaintiff was never in the possession of the suit at any point of time and since the property in question is in the occupation of the defendants, particularly the second defendant, there could not have been any proper delivery of possession to complete the gift and consequently, the plaintiff cannot claim any rights whatsoever under the gift deed dated 23.3.1972. The first defendant also claimed to be a co-sharer entitled to be in possession of the suit property and the claim for mesne profits therefore was not said to be sustainable.
4. On the above claims and counter claims, the suit came to be tried and both the parties adduced oral and documentary evidence. The learned trial Judge by his judgment and decree dated 10.11.1982 decreed the suit as prayed for. Aggrieved the defendants filed A.S. No. 6 of 1983 on the file of Sub Court, Nagapattinam. The learned Subordinate Judge also concurred with the findings and conclusions arrived at by the learned trial Judge and dismissed the appeal. Hence the above second appeal.
5. Mr. Vijayakumar, learned Counsel appearing for the appellants, while elaborating the substantial question of law formulated for consideration in the above second appeal at the time of admission, contended that the gift of immovable property, which was in the possession of trespasser cannot be said to be valid under the Mohammedan Law, particularly when the actual delivery of possession of the property gifted was not possible. The learned Counsel in support of his claim placed reliance upon the decisions reported in M.A. Khan v. Khodaija and Johara Bibi v. Subera Bibi (1964) 2 M.L.J. 237.
6. In the decision reported in M.A. Khan v. Khodaija , the Apex Court held that the three requirements of a valid gift under Mohammedan Law are declaration, acceptance and delivery of possession and consequently, ask gift of property in the possession of a lessee or mortgage or a trespasser is not established by mere declaration of the donor and acceptance by the donee and to validate the gift there must also by delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. On the facts and circumstances of the case, the Apex Court found that the donor had done nothing after the alleged declaration to place it within the power of the appellant to obtain possession.
7. In Johara Bibi v. Subera Bibi (1964) 2 M.L.J. 237, Veeraswami, J. as the learned Judge then was, held that when a donor makes a statement in the gift deed that he or she was in possession and put the donee in possession, that is an admission of the donor of the fact of delivery of possession to the donee, and the admission is not an irrebuttable or conclusive one on the question of delivery of possession and the real effect of the recital is only that the person who contends to the contrary, namely that no possession was delivered, should establish the contention.
8. Per contra, the learned Counsel for the respondent relied upon the decision in Kalia Raghuman and Anr. v. Bathummal Beevi and Ors. (1958) 71 LW. 104, whereunder P.N. Ramaswami, J. While dealing with the essentials of a gift under Mohammedan Law, held as follows:
Though the general principle is that possession must be delivered, to this rule, there are certain qualifications and exceptions. Transfer of possession is not necessary, (1) where the donor and the donee reside in the same house; (2) where the gift is from the husband to the wife or vice versa; (3) wherethe father makes a gift to a son; (4) where the mother makes a gift to a son; (4) where the mother makes a gift to a son; (5) where a guardian makes a gift to the ward and (6) where a gift is made to a bailee in possession.
The learned Counsel for the respondent also relied upon the decision in Ayeeshee Bivi v. Shaik Mohammed Alim Sahib (1964) 77 L.W. 65, whereunder Veeraswami, J., as the learned Judge then was, dealt with the case of a gift deed by a mother to her son. In dealing with the aspect of one of the requirements of a valid gift, namely, delivery of possession and what constitutes, such delivery, the learned Judge observed that the requirement of delivery to constitute a valid gift under Mohammedan Law is not that irrespective of the circumstances, there should always be physical delivery, that 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, and 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. In coming to such a conclusion the learned Judge further observed that the recital in the document as to the delivery of possession to the donee is such an overt act and it was not necessary that in addition to such a recital, there should be some other overt act.
9. In the light of the above principles the statement of law contained in Mulla's Principles of Mohammedan Law, 19th Edition, Section 149 has also been pressed into service by the learned Counsel for the appellants. In addition thereto, the learned Counsel invited my attention to the relevant findings of the Courts below to contend that the courts below misdirected themselves to the relevant and guiding principles in adjudicating upon the essential requirement of delivery of possession to make the gift complete under the Mohammedan Law and that the conclusions arrived at by the courts below are not substantiated property by the materials on record. The learned Counsel for the respondent contended that both the courts below have concurrently found that there was necessary overt act in this case to constitute sufficient delivery for the completion of the gift and therefore there is no justification to interfere with the concurrent findings recorded by the courts below in this appeal.
10. I have carefully considered the submissions of the learned Counsel appearing on either side. In my view, the appeal does not merit acceptance of this Court. As rightly contended for the respondent, both courts below have adverted to the relevant documents in the form of correspondence exchanged between the plaintiff and his father living overseas and the authorisation of a power agent to have the gift deed registered at Nagoor in India and the delivery of the document to the plaintiff. That apart, the courts below passed strong reliance upon Ex. A-2, the letter written by the father from overseas about the entrustment of all the properties of the father including the. one in question and acknowledging his possession of the same and keeping in view this peculiar circumstance in the present case, the courts below have concurrently held that the deed executed and delivered, coupled with the previous and subsisting possession of the property by the plaintiff, was sufficient in law to satisfy the requirement of delivery to make the gift complete.
11. That apart, it is also very much doubtful as to whether it is permissible for the defendants to raise such a plea. Normally, the question as to whether possession has been delivered to make the gift complete is considered relevant only when such an issue is raised between the donor or those claiming I under him on the one side and the donee or those claiming under him on the other. As long as the father was alive, that he executed the gift deed, got it registered and delivered it to the donee son and the contents of the various correspondence referred to and relied upon by the courts below would go to show that the defendants, particularly the first defendant, though happened to be another son, cannot go behind the action of the father and yet claim to have any right to challenge the gift as a person claiming under the father. The position would be still worse so far as the second defendant, who will be really a stranger vis-a-vis the transaction is concerned. Once the donee accepts the gift as shown in this case and was also specifically found to have been, even on the date of the gift deed, in possessing of the property, it is not given to persons other than the donor, who was alive to challenge the validity of the gift on the ground of want of delivery of possession. Even the claim by the first defendant that he was a co-owner, whether it is correct or not, amounts to an implied admission of such possession of the plaintiff.
12. So far as the possession of the plaintiff and the nature and character of possession of the defendants, are concerned, both the courts below have concurrently come to the conclusion that it was the plaintiff who was in possession and administering and managing the properties of the father living overseas and the superstructure in question was put up only with the permission of the plaintiff, by the defendants. The case projected by the defendants of putting up such construction with the permission of the father living overseas, was found to be false in the light of the overwhelming material in the form of written correspondence by the father from overseas, the credibility of which remained unchallenged throughout. Consequently, on the basis of the concurrent findings of both the Courts below about possession, which was considered in law to be sufficient to constitute delivery following the execution and acceptance of the gift deed to make the gift in this case complete even under the Mohammedan Law, I do not find any merit whatsoever in the challenge made to the judgments of the courts below. The second appeal therefore fails and shall stand dismissed. No costs.