Madras High Court
Moosa Sulaiman, Zubeida Moosa, Hashim ... vs Abdul Khader Yunus on 14 March, 2002
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
JUDGMENT S. Jagadeesan, J.
1. The appellants herein are the defendants in C.S.No.877 of 1999 on the file of this court. The respondent herein filed the said suit praying for a decree for partition and separate possession of his 2/9th share in the suit property and for consequential reliefs.
2. The suit property originally belonged to three brothers, sons of Zackria Sait. To appreciate the relationship between the parties, it is better to have a look at the genealogical tree.
Md. Yunus Zackria Md. Yusuf Md. Sulaiman
. Zackria Sait.
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. .
................................. . .
Abdul Zubeida Hava Ameena . .
Khadar Moosa Ismail . .
Yunus (D2) . .
(P) ............................. .
Zaibunissa Razia Kaneez .
Hashim (D4) Humayune Khadar .
.
.
....................................................
Md. Ismail Sofia Hashim Zulaikha Moosa Sheher
Sulaiman Ahmed Sulaiman Jaffer Sulaiman Banu
() (D3) (D1)
............()...............
Aathika Ayesha Sarah
Ifthikar Ghayaz Ismail
(D5) (D6) (D7)
3. Each brother is entitled to 1/3rd share. They executed separate settlement deeds on 12.9.1957. The respondent's father executed a settlement deed in respect of the second appellant herein who is none other than the sister of the respondent. Similarly the other brother Yusuf Zackria executed a settlement deed in favour of his daughter, the fourth appellant herein. The other brother Sulaiman Sait executed three settlement deeds Ex.A1 series in favour of his sons the appellants 1,3 and the father of the appellants 5 to 7, bequeathing each 1/9th share.
4. The case of the respondent is that his sister the second appellant herein made an oral gift of her 2/9th share in the suit property and pursuant to the oral gift the respondent was permitted to get the proportionate income from out of the property, since the property is an indivisable one. Though the share in the rental income from out of the suit property was paid to the respondent till 1992, subsequently the appellants failed to pay the share of the rental income from out of the property to the respondent; especially the rent received from the hoardings put up in the open terrace. Hence the suit for partition was laid.
5. The appellants filed a joint written statement. In the written statement they admitted about the ownership of the property of three brothers and their execution of the five settlement deeds in favour of the appellants 1 to 4 and the father of the appellants 5 to 7. So far as the oral gift by the second appellant in favour of the respondent is also admitted. But the only dispute is that the second appellant did not bequeath the immovable property to the respondent and she has bequeathed only the right to receive the income from out of the suit property. Hence the suit for partition is not maintainable. It is their further case that the settlement deed in favour of the appellants do not include the terrace of the building. The terrace of the building was given under an oral gift by two brothers Yunus Zackria and Yusuf Zackria in favour of their younger brother Sulaiman Sait. After the death of the said Saulaiman Sait, the terrace rights had devolved upon the appellants 1,3 and the father of the appellants 5 to 7 who are the sons of Md. Ismaill Sulaiman. In the year 1968, the second appellant, under pressure and influence of her mother, orally gifted the usufructs of the office space alone in respect of her 2/9th share in the suit property. She retained her 1/3rd share in the usufructs and the right in the entire building. The entire management of the property remain with the appellants 1 and 3. Hence the rental income from out of the office space was divided among the sharers. The respondent is not entitled for any share from out of the income from the terrace of the building and the respondent is entitled only to collect his share of the rental income.
6. On the above pleading, the parties let in evidence. The respondent got examined himself as P.W.1. The second appellant was examined as D.W.1. The third appellant was examined as D.W.2. On the side of the respondent Ex.A1 series, A3 series, A4 to A7, A8 series and A9 were marked. On behalf of the appellants Ex.B1 to B8 were marked. The learned Judge after considering the evidence let in by both the parties found that the oral gift given by the second appellant in favour of the respondent is valid and the same is in respect of 2/9th share in the immovable property and it does not restrict to the right to receive the rental income alone and consequently decreed the suit as prayed for. So far as the dispute regarding the extent of the property is concerned, the learned Judge observed that the same can be gone into at the time of the final decree proceeding when the Commissioner will take measurement of the property and divide the same in accordance with the shares of the parties. Aggrieved by the said judgment and decree the appellants have preferred this appeal.
7. Ms. Chitra Narayanan, the learned counsel for the appellants vehemently contended that it is incumbent on the part of the respondent to plead and prove the acceptance of the oral gift and taking possession of the immovable property. When admittedly the property is indivisable, the oral gift pleaded by the respondent has to be rejected, as there is no element of acceptance and taking possession of the property. It is further contended that when once it is established that the property is indivisable, then the question of taking possession will not arise and in all probability the plea of the appellants that the gift is only in respect of the usufructs from the property has to be accepted. The reliance placed by the learned Judge in respect of the lease deed cannot be taken into consideration, since the said document was not a registered one. The document itself is not admissible in evidence and as such the recitals in such document cannot be relied upon or taken into consideration. Hence the findings of the learned Judge is liable to be set aside.
8. On the contrary, the learned counsel for the respondent contended that the appellants have admitted the oral gift in favour of the respondent. When that be so, it is incumbent on their part to establish their plea that the said gift is pertaining to the share in the income from out of the immovable property.
9. The short question for consideration is whether the gift is in respect of the share in the immovable property itself or whether it relates to the income from out of the property alone? When that be so, the question has to be decided on the basis of the intention of the parties as to how they treated the transaction. When the documents are available to establish that the respondent had been treated as one of the co-owners of the property along with the appellants herein, then there is no question of the respondent was gifted only with the share in the income from out of the property. The learned Judge has correctly appreciated the evidence available on record and ultimately decreed the suit which needs no interference.
10. On the above contentions, the short question for consideration is whether the respondent was bequeathed with the immovable property or gifted with 2/9th share of the income of the property by the second appellant?
11. We carefully considered the above contentions of both the counsel. It is an admitted case that the second appellant orally gifted 2/9th share in the suit property in favour of the respondent. There is no dispute that the second appellant is entitled for 1/3rd share in the suit property by virtue of the settlement deed executed by her father. The respondent is none other than the brother of the second appellant. Though the appellants filed joint written statement stating that the second appellant orally gifted to the respondent herein only the right to collect the rent in respect of her 2/9th share, the second appellant did not in specific terms depose her intention as to whether she gifted to the respondent herein only the right to collect the rent or 2/9th share in the immovable property itself. She also did not speak about any pressure from her mother for gifting 2/3rd share in favour of the respondent. When the oral gift is admitted by all the appellants herein, it is only for the second appellant to explain the situation. Though in the written statement it has been stated that the second appellant orally gifted 2/9th share in favour of the respondent only under the compulsion of their mother, the second appellant did not depose in her oral evidence about such compulsion and give out the details either the nature of coercion or the compulsion. The plea put forth in the written statement cannot be accepted in the absence of any oral evidence in this regard. Hence it is for this court to gather the intention of the second appellant, as to either oral gift is in respect of the collection of the rental income or the property itself, from the documents produced by either side.
13. It was the contention the learned counsel for the appellant that the Muslim Law requires three ingredients in respect of an oral gift viz.,
(i) declaration by the donor
(ii) acceptance by the donee; and
(iii) delivery of possession.
Hence in order to attract the oral gift in respect of the immovable property is concerned, it is but essential that the delivery of possession should follow the declaration and acceptance. In this case, the property being indivisible one and is in possession of the tenants, there is no delivery of possession and as such it has to be presumed that the oral gift is only in respect of the collection of the rent.
13. In considering this contention of the learned counsel, it is for this court to have in mind the concept of hiba. As rightly pointed out by the learned counsel for the appellant, to require a valid hiba, the above three requirements are necessary i.e., declaration by the donor; acceptance by the donee; and delivery of possession to the donee.
14. So far as the declaration by the donor and acceptance by the donee is concerned, there is no dispute, as the second appellant herself admitted that she has orally gifted her 2/9th share. The dispute for consideration is whether it relates to the right in the immovable property or the collection of rent. Here alone the vital factor of the delivery of possession has been brought in to play to contend that no such delivery of possession of the property was made.
15. While considering the question of delivery of possession, admittedly the property is indivisable one and is in possession of the tenants. All the co-sharers are sharing the rent alone. The second appellant, the owner of the 1/3rd share of the property also receive her share in the rent. While she gifted her 2/9th share to the respondent herein, it has to be noted as to whether she had transferred whatever rights she possessed on the date of the gift.
16. While considering this question, it is not the actual physical possession in every case of gift, the delivery of which is insisted upon in the Muslim Law. The following basic Rules govern this requirement:
(i) Whatever kind of possession the donor herself has, the same is required to be transferred to the donee;
(ii) This may be either physical possession or what is known in law as constructive possession;
(iii) Only such possession has to be necessarily transferred as the subject of a particular gift may be a susceptible of; and
(iv) the donor must divest herself of the ownership and dominion over the gifted property.
17. When the property is in possession of the tenants, the attornment of the tenancy in favour of the donee will be a vital factor in respect of the delivery. Equally the payment of the government revenue by the donee is also another factor in respect of delivery. In this case, there is absolutely no dispute that the respondent is collecting rent of his 2/9th share from out of the suit property. When the appellants 1 and 3 are incharge of the collection of rent and the payment of the respondent's share will definitely amount to the attornment of the tenancy in favour of the respondent by the donor, the second appellant. In fact the second appellant had deposed in her evidence that the respondent is receiving his share of rental income from the tenants directly. In that case, the attornment of tenancy in favour of the respondent is made out. Ex.A2 series which are the Corporation Tax Receipts and Water Tax Receipts issued by the Madras Metropolitan Water Supply and Swerage Board reveal that the respondent paid the revenue due to the statutory authorities. When that be so, definitely it will amount to a total divest of the right of the donor in favour of the donee.
18. It may be worthwhile to refer the judgment reported in Mohd. Abdul Gani v. Fakkar Jahan Begum, 49 Ind App 195 = (AIR 1922 Privy Council 281) where Sir John Edge, speaking for the Board said:-
For the valid gift inter vivos under the Mohammedan Law applicable in this case, three conditions are necessary, which their Lordships consider have been correctly stated thus:
(a) manifestation of the wish to give on the part of the donor;
(b) the acceptance of the donee either impliedly or expressly; and
(c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively. ... On the execution of the deed of gift in 1884, Lutf Ullah Khan did obtain mutation of names in his favour of all the other zamindari property and from the 7th March 1884, until Munni Bibi died in 1906, he paid the Government Revenue which became due in respect of the Taluqdari part of the property now in question. In Lutf Ullah Khan had received after the 7th March, 1884 and before Munni Bibi died in 1906, any of the rents or profits of the property now in question, he would be held to have received them as a trustee for Munni Bibi, although the title to the corpus of the property was in him. In their Lordships' opinion Lutf Ullah Khan must be regarded as having been constructively in possession, although not in physical possession of the corpus of the property now in question from 1884 until 1906, and the gift was a valid gift."
The prophet has said: "A gift is not valid without seisin" the rule of law is stated in Islamic Law thus:-
"Gifts are rendered valid by tender, acceptance and seisin. Tender and acceptance are necessary 'because a gift is a contract, and tender and acceptance are requisite in the formation of all contractrs', and seisin is necessasry in order to establish a right of property in the gift, because a right of property according to our doctors, is not established, in the thing given merely by means of the contract, without seisin."
19. In the judgment reported in ABDUL BASIT v AHMAD MIAN the learned Judges have held as follows:
"While delivery of possession is an essential condition for the validity of the gift, it is not necessasry that in every case there should be a physical delivery of possession. Possession, the delivery of which would complete a gift may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the gift. (Mohd. Baksh v. Hossaini Bibi, ILR 15 Cal 684). The relinquishment of control is thus necessary to complete the gift. Constructive possession of the subject of the gift is, therefore, sufficient. Delivery of possession can be made in such a manner as the subject of the gift is susceptible of (Sadik Hussain Khan v. Hashim Ali Khan, 43 Ind App 212 = (AIR 1916 Privy Council 27). If the property is in possession of the tenants then the donor may put the donee in possession by asking the tenants to attorn to the donee."
20. From the above principles, it is clear that the delivery of possession of the gift may be actual or constructive. When physical delivery of possession is not possible, such possession as the property admits, can be delivered. The donor must of course divest herself of her possession. The payment of government revenue by the donee after the date of the gift in respect of the property amounts to constructive possession of the property about the donee and the gift is completed by such possession. The delivery of property in possession of tenants is completed by asking the tenants to attorn the tenancy to the donee.
21. When Section 123 of the Transfer of Property Act is not applicable for a Muslim gift and when the oral gift is admitted, the delivery of possession has to be considered on the available evidence.
22. Yet another document Ex.A6 is the lease deed entered into between the owners of the property and the lessees where it has been mentioned that the respondent is also one of the joint owners of the property. When the co-owners of the property had described the respondent as one of the co-owners in Ex.A6 which came into existence as early as 1.6.1993, much earlier to the dispute arose, is a relevant factor as to how the respondent was treated by the co-owners themselves.
23. Even though the learned counsel for the appellants contended that Ex.A6 had been executed for collateral purpose and the same cannot be considered to decide the question of title of the parties, we are unable to agree with the said contention. Ex.A6 is a lease deed between the lessors, the owners of the property and the lessees. When that be so, the contention of the learned counsel for the appellants cannot be countenanced.
24. Yet another argument was advanced by the learned counsel for the appellants to get over the recitals in Ex.A6, the lease deed. It is her contention that a person who is entitled to receive the rent is also a landlord, as defined under the Tamil Nadu Buildings (Lease and Rent Control) Act and as such the mentioning of the respondent's name in the lease deed Ex.A6 will not amount to the conferment of any right in the immovable property; but on the contrary it is only to show that he is entitled to receive the rent. We are unable to appreciate the said contention of the learned counsel for the appellants for the simple reason that no such explanation was offered either by D.W.1 or by D.W.2 for such recitals in the lease deed Ex.A6. As already we have pointed out when once, on the principles, the constructive possession had been given to the respondent, the formalities of the gift required under the Mohamadan law is completed in toto.
25. Though the learned counsel for the appellants referred to number of judgments on various aspects, we are of the view that those judgments have no relevance to decide the issue involved in this appeal. In view of the above findings by us that the constructive possession had been handed over to the donee, the gift in favour of the respondent by the second appellant had become conclusive and as such the respondent is entitled for a share in the property.
26.Accordingly the judgment of the learned Judge is confirmed and the appeal is dismissed. However, taking into consideration of the relationship of the parties, they are directed to bear their respective costs.