Andhra HC (Pre-Telangana)
Zulaiqa Be And Anr. vs Mohd. Mahamood Khan on 14 June, 1991
Equivalent citations: 1991(2)ALT432
JUDGMENT Jagannadha Rao, J.
1. This Letters Patent Appeal is preferred by the defendants 1 and 2 against the judgment of the learned single Judge in CCCA No. 304/82 dt. 13-3-91 confirming the judgment of the trial court in OS No. 233/78 on the file of the II Addl. Judge, City Civil Court, Hyderabad dt. 4-10-82. The respondent before us is the plaintiff. The suit was filed by the respondent in 1978 for a declaration of title in respect of the house property in Hyderabad City and for possession from the defendants 1 and 2 and for future mesne profits from the date of suit. Both the courts have decreed the suit granting a declaration and possession.
2. The brief facts of the case are as follows:--One Hazi Hidayath Khan had a son by name Rahmath Khan. The said Rahmath Khan had two wives and the 1st defendant (1st appellant before us) is the daughter born to his first wife. The second appellant before us is the 2nd defendant and is the husband of the 1st defendant. The respondent-plaintiff was born to the said Rahmath Khan by his second wife. The grand-father i.e., Hazi Hidayath Khan died on 3-4-72 and the property originally belonged to him. According to the respondent-plaintiff, the property devolved on Rahmath Khan, s/o. Hazi Hidayath Khan (i.e. plaintiff's father) and that subsequently the said Rahmath Khan through his general power of attorney executed a registered gift deed, Ex. A. 5 on 30-4-73 in favour of plaintiff. It is also the plaintiff's case that Rahmath Khan executed the general power of attorney, Ex. C. 1 (copy of which is marked as Ex. A. 4) on 1-6-72 and that it was in pursuance of the said G.P.A. that the gift deed was executed in favour of the plaintiff. By that time, Rahmath Khan was suffering from paralysis.
3. On the other hand, it is the case of the appellants-defendants that there was an oral gift of the suit house property by the paternal grand father Hazi Hidayath Khan in favour of the 1st defendant in 1967 and that in view of the said gift, Rahmath Khan had no title to gift the suit property to the plaintiff. Alternatively, it is their contention that even assuming that the oral gift by Hazi Hidayath Khan in favour of 1st defendant is not established, still the gift, Ex. A. 5 dt. 30-4-73 is invalid inasmuch as there is no proof of delivery of possession by the donor in favour of the donee. It is also pointed out that the defendants 1 and 2 have been in possession of the property from the time the property was under the ownership of the paternal grand father before 3-4-72 when he died, and even there after when it devolved on Rahmath Khan the father of the 1st defendant. The trial Court as well as the learned single judge came to the conclusion that the oral gift by Hazi Hidayath Khan in favour of the 1st defendant was not established. It was also found that the gift, Ex. A. 5, dt. 30-4-73 executed by Rahmath Khan in favour of the plaintiff was valid inasmuch is it was accepted and possession was given to the plaintiff in accordance with the law. On those findings, the suit was decreed by both the courts.
4. In this appeal, it is contended by the learned counsel for the appellant, Sri Syed Sadatulla Hussaini, that the evidence supports the case of oral gift by Hazi Hidayath Khan in favour of 1st. defendant. We have been taken through the evidence and we are in entire agreement with the concurrent findings of both the Courts that the oral gift in favour of the 1st defendant by the paternal grand father is not made out. The learned counsel then contended that the gift deed by Rahmath Khan in favour of the plaintiff is not valid inasmuch as there is no proof of its acceptance or proof of delivery to the plaintiff. It is pointed out that the property had been in possession of the defendants 1 and 2 even during the life time of Hazi Hidayath Khan and that therefore possession could not have been given to the plaintiff. Even now, the defendants are in possession. The learned counsel placed reliance to the judgment of the Supreme Court in Maqbool Alam v. Khodaija, for the proposition that to validate the gift there must be either delivery of possession or failing such delivery some overt act by the donor to put the property within the power of the donee "to obtain possession". If apart from making a declaration the donor does nothing else, the gift would be invalid.
5. On behalf of the respondent-plaintiff, it is contended by Sri C. Poornaiah that the gift deed is valid and the principle mentioned in the judgment of the Supreme Court is not applicable to the facts of the present case.
6. It is true that under the Mahomedan Law three essentials are necessary for a gift to take effect. It is essential that (1) there is a declaration of the gift by the donor, (2) there is acceptance of the gift, express or implied by or on behalf of the donee and (3) there is delivery of possession of the subject of the gift by the donor to the donee. If these conditions are satisfied the gift will be complete.
7. So far as delivery is concerned, it has been held by the Privy Council in Mohammad Abdul Ghani v. Mt. Fakhra Jahan Begum, ( AIR 1922 P.C. 281) that the taking of possession of the subject matter of the gift by the donee either actually or constructively is necessary to complete the gift. When physical delivery of possession is not possible, such possession as the property admits of, may be delivered. In other words, the donor must divest himself of Ins possession to complete the gift. Hafiz Abdul Basil v. Hafiz Ahmad Mian, .
8. The question, however, is as to what would be the position in case the gift is by the father in favour of his minor child or by the legal guardian in favour of the Ward. Here the difficulty is that the minor or ward is represented by the donor himself and they cannot accept delivery except through the father or guardian. Bus, the point can be easily resolved if we keep in mind the exception to the general rule and other basic concepts.
9. While it is true that possession is to be deivered to the donee, there are exceptions to that rule. It is stated in Mulla's Principles of Mahomedan Law, 19th Edn. (1990) Para 155 as follows :- "No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give. Ameeroonissa v. Abadonissa,( (1875) 15 Bang. L.R. 67--21 A 87) Mohammad Sadi v. Fakhr Johan, ( AIR 1932 P.C. 13). "It is also pointed out quoting the text of Mahomedan Law that where there is, on the part of the father or guardian, a real and bona fide intention to make the gift, the law will be satisfied without change of possession and will presume the subsequent holding of the property to be on behalf of the minor. It has also been held recently by the Bombay High Court in Kadder Anbi v. Fatima Bid that when a father gifts the property to his child, the position is peculiar. It was stated that a father or guardian could make a valid gift in favour of a minor child or ward without actually delivering possession. Insistence on delivery of possession would be practically difficult firstly because the minor may not be able to take possession except through the father or guardian and secondly because the donor is again the person who has to accept possession for the minor or ward. It was also held that delivery of possession by a Mohamedan father to his minor child is, for all practical purposes, delivery by the right hand to the left hand, we are in agreement with this view.
10. It therefore follows that the gift by a father to his minor child or by a lawful guardian to his ward is an exception to the general rule that possession should be delivered. In the case of such gifts, it is sufficient if it is established that the donor had a bona fide intention to make the gift. We are, therefore, of the view that even if physical possession is not actually given to the plaintiff-respondent in the present case, the gift does not become invalid on that ground.
11. It is, however, pointed out that the donor himself was not in physical possession of the property at the time of the gift on 30-4-73 and that the appellants were then in possession and that therefore there must at least be a recital in the gift deed that the donor "authorised the donee to obtain possession". It is in this context that reliance is placed on the decision of the Supreme Court in Maqbool Alam v. Khodaija (1 Supra) referred to above. It will be necessary to understand the observations of the Supreme Court in that case. The relavant passage reads as follows :--
"But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by a donee. To validate the gift there must also be either 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. If apart from making a declaration the donor does nothing else, the gift deed is invalid".
It will be noticed that the principle mentioned by their Lordships is in the context of a case where, by the date of the gift by a donor to a donee, the property is in the possession of a person who is in the position of a trespasser, that is, a person denying the title of the donor. That principle is no doubt well settled as mentioned in para 146 of Mulla's principles of Mahomedan Law, 19th Edn. page 115. It is there stated that "the gift of property in the possession of a person who claims it adversely to the donor is not valid, unless the donor obtains and delivers possession thereof to the donee or docs all that he can to complete the gift so as to put it within the power of the donee to obtain possession."
12. It is clear, therefore, that the above said principle would apply only if by the date of gift, there is somebody in possession who is a trespasser and who is claiming adversely to the donor. In the present case, there is no pleading or evidence that by 30-4-73 when Rahmath Khan executed the gift deed in favour of his minor son, the appellants had already claimed the title adverse to Rahmath Khan, the donor. The claim by way of a direct oral gift from Hazi Hidayath Khan (father of Rahmath Khan) was made long after the gift deed dt. 30-4-73. By the date of the gift in 1973 if the appellants had not claimed adversely to Rahmath Khan, it must naturally be held that their possession was permissive and Rahmath Khan who was the donor was entitled to describe in the gift deed that he was in possession of the property and that he was handing over such possession to the donee. We are, therefore, of the view that the decision of the Supreme Court is not applicable to the facts of the case in as much as no adverse title was claimed by the appellants at any time before 30-4-73, the date of the gift.
13. For all the aforesaid reasons, we confirm the finding of the lower courts that the gift in favour of the plaintiff is valid. The betters Patent Appeal is accordingly dismissed.