Madras High Court
M.Y.Rahamathulla vs S.A.Amanulla on 18 August, 2016
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.08.2016 Coram THE HONOURABLE MS.JUSTICE R.MALA S.A.No.458 of 1990 M.Y.Rahamathulla .. Appellant/Respondent/Plaintiff vs. 1.S.A.Amanulla 2.Suleka Beevi 3.S.A.Amanulla 4.Kathija Begum 5.Parosa 6.Hameeda Begam 7.Baslur Rahman 8.S.Sahira Begum ... Respondents/Appellants/Defendants PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the Decree and Judgment of the learned Subordinate Judge, Nagercoil, in A.S.No.91 of 1988, dated 21.07.1989 on appeal from the judgment and decree of the learned Principal District Munsif, Nagercoil, in O.S.No.753 of 1983, dated 24th August 1987. !For Appellant : Mr. S.Parthasarathy ^For Respondents : Mr.H.Thayumanaswamy for R.3 :No Appearance for R.1, R.2 & R.7 : R.4, R.5, R.6 & R.8-Exparte :JUDGMENT
The plaintiff, as appellant has come forward with the Second Appeal, challenging Decree and Judgment of the learned Subordinate Judge, Nagercoil, in A.S.No.91 of 1988, dated 21.07.1989 by reversing the judgment and decree of the learned Principal District Munsif, Nagercoil, in O.S.No.753 of 1983, dated 24th August 1987.
2. Heard the learned Counsel for the appellant and the learned Counsel appearing for the respondents.
3. The appellant as plaintiff filed a suit in O.S.No.753 of 1983 for declaration of title and for injunction in respect of the suit property ? house by stating that the property was originally owned by one Syed Abubucker, from whom he purchased the same under a sale deed document No.698/1978 and he is in possession and enjoyment of the same. On 25.10.1983, the defendants attempted to interfere with his peaceful possession and enjoyment of the property and began to dug and attempted to remove the soil to put the building and denying the title, hence, he is constrained to file the suit for the above stated relief.
4. Resisting the same, the second defendant filed a written statement by stating that the property is owned by Syed Abubucker, who is none other than the husband of the second defendant and he gifted the same and other properties to the defendants 1 to 7 on 01.02.1967 and the gift was valid and effective and followed by possession of the plaint property which is item No.4 in the settlement deed. So, on the date of sale deed of the year 1978, Syed Abubucker is not the owner. So, he has not conveyed any right under the sale deed in favour of the plaintiff. The defendants put up a building by spending more than Rs.15,000/- and the plaintiff has not questioned the same. So, he is estopped from questioning the same now. Hence, he prayed for dismissal of the suit.
5. Subsequently, the plaintiff has filed an amendment petition to recover the possession by stating that during the pendency of the suit, the defendants encroached upon the property.
6. The second defendant filed additional written statement in which she has stated that they are in possession of the property from 1967 onwards.
7. The gist and essence of the reply statement filed by the plaintiff:-
The gift deed is sham and nominal document and it was not given effective. So, the defendants are not the owners of the property and that has been came into existence clandestinely by the device of Mohamed Abul Khader. The sale deed alone is valid document. Even though, the plaintiff prevented the defendants from putting up the construction and filed a suit, they made a construction and hence he filed a contempt application. He took possession from his vendor Syed Abubucker. In pursuance of sale deed, he is in possession and enjoyment of the property by paying kists. Hence, he denied the averments made in the written statement and prayed for a decree.
8. The trial Court, after considering the averments both in the plaint and written statement and the arguments of both sides, has framed the necessary issues and decreed the suit as prayed for in the plaint. Against which, the defendants preferred an appeal and the appeal has been allowed. Against which, the plaintiff preferred this Second Appeal which was dismissed. Against which, he preferred Special Leave Petition wherein the Honourable Supreme Court remitted back the matter to this Court to decide the matter on merits.
9. Since the appeal is of the year 1990, the documents have been destroyed and hence, they were reconstructed.
10. At the time of admission of the Second Appeal, the following Substantial Questions of Law have been framed:
(1) Whether the lower Appellate Court is justified in upholding Exhibit B.1 Settlement Deed without giving a finding that it was duly executed and attested?
(2) Whether the Power Exhibit B.4 is valid and if not Exhibit B.1 was not validly registered?
(3) Whether recital in Exhibit B.1 alone is suffice to prove delivery of possession when the Settlor retained original title deed and did not change the registry??
11. The learned Counsel appearing for the appellant would submit that Syed Abubucker is the owner of the property and he purchased the same under Ex.A.2, dated 09.07.1979 from one Ganapathy. He executed a sale deed in favour of the appellant under Ex.A.1 dated 06.03.1978 and the possession was handed over to him and he is in possession. During the pendency of the suit, the defendants encroached upon the property. Hence, the plaintiff has filed a petition to amend the suit for recovery of possession.
12. The learned Counsel would further submit that even though the defendants has raised a plea that Syed Abubucker has settled the property by way of settlement deed in favour of the second defendant on 01.02.1987 under Ex.B.1, a special Power of Attorney has been executed by Syed Abubucker in favour of Mohamed Abul Khader in front of Indian High Commissioner at Singapore under Ex.B.4, however the possession has not been handed over. As per Rule 149 of of Principles of Mahomedan Law, the Corpus has not been handed over. So, Ex.B.1 was not come into effect.
13. The second limb of the argument made by the learned Counsel for the appellant is that Ex.B.1 contains some conditions. So as per Mahomedan law, the gift under Ex.B.1 with condition is a void document. Hence, that factum was not considered by the first appellate Court. There is no document filed by the respondents to prove that the suit property has been handed over to them and possession has been given to them.
14. In support of his contentions, he relied upon a decision in Chandma Bibi Vs. Sheik Mohamed Sahib and 3 Others reported in 1997-1-L.W.391. He would submit that the settlement deed under Ex.B.1 itself is void, since only life estate has been given. Hence, he prayed for setting aside the impugned judgment and decree passed by the first appellate Court.
15. Resisting the same, the learned Counsel appearing for the respondents would submit that the plaintiff/appellant is none other than the sister's son of Syed Abubucker. He paid tax and executed Ex.A.1, which shows his malafide intention of Syed Abubucker. In support of his contention he would rely upon a decision in V.Sreeramachandra Avadhani (D) by L.Rs Vs. Shaik Abdul Rahim & another reported in 2015-1-L.W.118. He would further submit that the gift is valid and the condition is void. As per the decision of the Honourable Apex Court, the gift is valid. He would further submit that item No.4 in Ex.B.1 is the suit property. In respect of other properties, there is no dispute. On the date of execution of Ex.A.1 dated 06.03.1978, Syed Abubucker, vendor of the appellant, has no right over the property. That factum was rightly considered by the first appellate Court. Hence, he prayed for dismissal of this Second Appeal.
16. Considering the rival submissions made by both sides and a perusal of typed set of papers, the admitted facts are that the suit property is belonging to Syed Abubucker, who is none other than the husband of the second defendant, father of the defendants 1, 3 to 7. To prove Ex.B.1, the attester was examined. At this juncture, it is appropriate to consider Rule 149 of Principles of Mahomedan Law which deals with three essentials of a gift, which is extracted as follows:
?$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 the subject of the gift by the donor to the donee as mentioned in $150. If these conditions are complied with, the gift is complete.?
It is also appropriate to extract Rule 150 of Principles of Mahomedan Law, which is extracted hereunder:
?$150. Delivery of possession:(1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of Sadik Husain V. Hashim Ali. As observed by the Judicial Committee, ?the taking of possession of the subject-matter of the gift by the donee, either actually or constructively,? is necessary to complete a gift.
17. So, the declaration of gift by the donor and the acceptance of the gift, express or implied or on behalf of the donee, the donee, the delivery of possession of the subject of the gift by the donor to the donee as mentioned in $150. If there conditions are complied with, the gift is complete. It is pertinent to note that Ex.B.1 was alleged to be executed on 01.02.1967. Ex.B.4 Power Attorney deed has been executed in favour of Mohamd Abdul Khader before the Indian High Commissioner of Singapore. On perusal of Ex.B.1 that endorsement has been made. So, here in Ex.B.4 itself, it was specifically mentioned that on 15-February-1967 before Indian High Commissioner at Singapore in front of Secretary No.3, the special Power of Attorney has been executed and on that basis document has been registered.
It is appropriate to incorporate Ex.B.4 wherein it was specifically stated as follows:
?Whereas I am now at Singapore in connection with my business and could not present myself before the Sub Resigtrar, Edalakkudy for presenting the Settlement Deed executed by me on 1st February 1967 in favour of my wif Sulaika Beevi daughter of Yoosuf Sahib, of Vembaditheru, Kottar, Vadiveeswaram Village, Kanyakumari District of the properties scheduled hereunder fixing the value at Rs.13,000/- I do hereby nominate, constitute and appoint the above said Mohammed Abdul Kadir aged 70 son of Sheik Mohammed Kassim Sahib of Vembaditheru, Kottar, Vadiveeswaram, to be my true and lawful attorney to present the said settlement deed before the Sub Registrar, Edalakkudy, give statements sign on my behalf and do what all acts to effectively carry on the duties for the proper registration of the said document, as if I am personally present.?
It shows the first condition of a declaration of gift by the donor. The original deed has been produced by the defendants. So, they accepted the same. The only point to be decided by this Court is as to whether the corpus has been handed over. It is an admitted fact that the suit property is item No.4 in Ex.B.1. It is appropriate to consider whether Syed Abubucker has dealt with the property and is in possession of the property till he alienates the property under Ex.B.1. But admittedly he was at Singapore then went to Malaysia and got another marriage. He never visited the suit property. Admittedly, the suit property at the time of purchase under Ex.A.1, is a vacant site. He has paid tax on 01.03.1978 and sold the property on 06.03.1978. But there is no document to show that after Ex.B.1 dated 01.02.1967 that Syed Abubucker was and is in possession of the property till he executed Ex.A.1. In such circumstances, the argument advanced by the learned Counsel for the appellant that the corpus has not been given to settlee does not merit acceptance. Admittedly, the appellant is none other then the sister's son of Syed Abubucker. He may very well aware of the fact that the property has been settled in favour of his wife, who is the second defendant/second respondent. It is also pertinent to note that Syed Abubucker has got married at Malaysia and he has not taken care of his children and then only he sold the property which has been disposed by the second respondent. So, with a view to harass the respondents who are his first wife and children, he has executed the sale deed viz., Ex.A.1. It is pertinent to note that before purchasing the property, the appellant herein has not obtained Encumbrance Certificate. It is well settled principle that the buyer should be vigilent by applying the principle of ?buyer beware?. Under such circumstances I am of the view that the appellant is not entitled to question Ex.B.1. Moreover, it is true as per Mahomedan Law, the condition gift is not valid under law. For that reason, the learned Counsel for the appellant relied upon a decision in Chandma Bibi Vs. Sheik Mohamed Sahib and 3 Others reported in 1997-1-L.W.391, wherein it was held that the execution of settlement deed in favour of settlor's daughter (4th defendant) and her husband, stating that settlees were to enjoy the properties without power of alienation during lifetime of settlor and his wife and after their lifetime, absolutely either to male or female issues of settlees. So it was held that the gift is not valid because the life interest has been retained by the settlor and his wife. There is no transfer of corpus on the basis of the gift deed. Hence it was held void. So, the above citation is not applicable to the facts of the present case, because in this citation, the possession is with the settlor till their life time. So, the delivery of possession which makes the gift complete was absent. So, in the above citation, it was held that the gift is void, since the ownership is being retained by the owner himself. But, in the case on hand the settlement has been executed. Since the settlor was residing at Singapore for his business purpose, he executed the Special Power of Attorney in front of Indian High Commissioner at Singapore and on that basis document has been registered and the possession has been given. So the above citation is not applicable to the facts of the present case.
18. At this juncture it is appropriate to consider the decision relied upon by the learned Counsel appearing for the respondents in V.Sreeramachandra Avadhani (D) by L.Rs Vs. Shaik Abdul Rahim & another reported in 2015-1-L.W.118, wherein in paragraph Nos.17 and 18, it was held as follows:
17. Having concluded that the donor Sheikh Hussein through the gift deed dated 26.04.1952, had transferred the corpus of the immovable property to his wife Banu Bibi, it is natural to conclude that the gift deed executed in favour of Banu Bibi, was valid. Likewise, while applying the principles of Page 21 21 Muhammedan Law expressed in recognized texts, and the decision of the Privy Council in Nawazish Ali Khan's case (supra) it is inevitable to hold, that all conditions depicted in the gift deed dated 26.04.1952, which curtail use or disposal of the property gifted are to be treated as void. In the above view of the matter, the conditions depicted in the gift deed, that the donee would not have any right to gift or sell the gifted property, or that the donee would be precluded from alienating the gifted immovable property during her life time, are void. Similarly, the depiction in the gift deed, that the gifted immovable property after the demise of the donee, would devolve upon her off spring and in the event of her not bearing any children, the same would return back to the donor or to his successors, would likewise be void.
18.Having held that the gift deed dated 26.04.1952 irrevocably vested all rights in the immovable property in Banu Bibi, it is natural for us to conclude, that the sale of the gifted immovable property by Banu Bibi to V.Sreeramachandra Avadhani on 02.05.1978, was legal and valid. Consequently, the claim of the respondents to the gifted property, on the demise of Banu Bibi on 17.02.1989, is not sustainable in law.
It is also necessary to consider paragraph No.11 of the above said judgment which is as follows:
?11.Learned counsel for the appellants also placed reliance on a ?Digest of Moohummudan Law?, by Neil B.E.Baillie (part first, second edition, London:
Smith, Elder & Co., 1875). The relevant extract of the text relied upon is being reproduced hereunder: ?Gift is of two kinds, tumleek (already described), and iskat, which means literally, `to cause to fall?, or extinguish. The legal effects of gift are-1st. That it establishes a right of property in the donee, without being obligatory on the donor; so that the gift may be validly resumed or cancelled. 2nd . That it cannot be made subject to a condition; though if a gift were made with an option to the donee for three days, and were accepted before the separation of the parties, it would be valid. And 3rd That it is not cancelled by vitiating conditions; so that if one should give his slave on condition of his being emancipated, the gift would be valid, and the condition void.? (emphasis is ours) A perusal of the above text inter alia reveals, that under Muhammadan Law, a gift has to be unconditional. Therefore, conditions expressed in a gift, are to be treated as void. A conditional gift is valid, but the conditions are void.?
(emphasis supplied)
19. In that it was specifically mentioned that under Muhammadan La, a gift has to be unconditional. Therefore, the conditions expressed in a gift are to be treated as void. A conditional gift is valid, but the conditions are void. So applying the dictum laid down in V.Sreeramachandra Avadhani (D) by L.Rs Vs. Shaik Abdul Rahim & another reported in 2015-1-L.W.118, I am of the view that Ex.B.1 is valid and the conditions imposed in that is void.
So, as already held by this Court that item No.4 in Ex.B.1 is the subject matter of the suit, which is a vacant cite. Possession follows title. Here, once Ex.B.1 is valid, possession follows title. Hence, the first appellate Court has rightly held that the appellant has not derived title under Ex.A.1, since on the date of execution of Ex.A.1, Syed Abubucker has no right over the property. So, the first appellate Court has rightly dismissed the appeal. The Substantial Questions of Law 1 to 3 are answered accordingly. In view of the answer given to the Substantial Questions of Law 1 to 3, the Judgment and Decree passed by first Appellate Court is hereby confirmed.
20. Accordingly, the Second Appeal is liable to be dismissed and it is hereby dismissed by confirming the Judgment and Decree passed in A.S.No.91 of 1988, dated 21.07.1989 on the file of the Subordinate Judge, Nagercoil. No costs.
To
1.The Subordinate Judge, Nagercoil.
2.The Principal District Munsif, Nagercoil..