Inum Beevi vs K.S. Syed Ahamed Kabir (Died) And 15 ... on 17 November, 2000

[Cites 18, Cited by 5]

Madras High Court

Inum Beevi vs K.S. Syed Ahamed Kabir (Died) And 15 ... on 17 November, 2000

Equivalent citations: (2001)1MLJ307, AIR 2001 (NOC) 25 (MAD), 2001 A I H C 756, (2001) 1 MAD LJ 307, (2002) 2 MAD LW 357

2. The respondent filed a suit for partition of his three fourth share in the suit property and have separate possession of three fourth suit property and other reliefs. The suit properties only belonged to one Haji Shahul Hameed(SH). He died on 12.1.1986. As per Mohamedan Law the appellant (his wife) and the respondent (his brother) are his heirs, the respondent being entitled to three fourth share and the appellant one fourth. Prior to the suit the respondent sent suit notice dated 27.1.1986 claiming partition to which the appellant replied on 6.7.1986 for which a rejoinder had also been issued. The claim made by the appellant that her husband had given her the properties by a gift deed dated 10.1.1984 was false. The gift deed was obtained from SH when he was under the undue influence of the appellant and not in a lucid mental condition so any document obtained from him is void. Several properties to which SH had neither right nor title have been included fraudulently in the document dated 10.1.1984. Item Nos.11 and 12 of the suit properties actually belonged to SH and they were purchased benami in the appellant's name. The gift deed was also contrary to the Doctrine of Mushaa and hence not valid. A claim was also made in respect of the cement business. Hence the suit for partition.

3. The appellant filed a written statement denying all the averments made by the respondent and his entitlement to three fourth share in the suit property. Item Nos.11 and 12 of the suit properties had been purchased by her under two sale deeds dated 9.1.1956 and 3.5.1975, long prior to the death of her husband from out of her own money and she had been paying taxes and enjoying the same exclusively. The late SH has no right to the properties. Late SH has no right to the other suit properties at the time of death and therefore, the respondent cannot claim any share in them. To the suit notice the appellant had given all the details regarding the gift deed. The gift deed is valid. The late SH had given the suit property out of his own accord and the same had been accepted by the appellant and possession was also taken. Her husband had lived long after the gift deed. The allegations regarding the mental and physical incapacity of her husband was also denied. The gift also was not contrary to the Doctrine of Mushaa, The appellant is not liable to render any accounts nor are there any cement stock with her. The suit had to be dismissed.

4. The learned Sub-ordinate Judge, Ramanathapuram (Madurai) framed seven issues and on a consideration of the oral and documentary evidence, decreed the suit. Against this the present appeal has been filed.

5. The following questions have to be determined:

(1) Whether the Ex-B4 has been validly executed and registered?

(2) Whether the donor executed the gift deed out of his own free will?

(3) Whether there was delivery of possession to complete the gift?

(4) Whether the properties covered by Exs-B2 and B3 were purchased by the appellant's husband benami in her name?

(5) Whether the Doctrine of Mushaa will apply?

6. Mr. V. Raghavachari, learned counsel for the appellant submitted that here was a case of a devoted wife receiving a gift from SH, her husband of 45 years' marriage. The respondent had not been in very amicable terms with SH (his brother), the appellant and SH had no issues. So there was nothing strange in the husband wanting to make provision for his wife. The learned counsel submitted that there was enough evidence to show the appellant had also accepted it and taken possession. Exs-B5 to B7 show that even during the life time of SH, the appellant had applied for mutation of names in the revenue records. Further, when the gift was by a husband to a wife or vice-versa, the strict application of proof of delivery of possession is not required unlike in cases where the gift is to a stranger.

7. The Court below had taken great pains to examine the left thumb impression of SH made at the bottom of each page of the gift deed namely Ex-B4 and the left thumb impression made at the time of registration (Ex-B4 was executed on one day and registered subsequently), and found that there were many differences in the two impressions and therefore, rejected the gift deed. The learned counsel for the appellant submitted that when the execution was admitted there was no warrant for the Court to go into this exercise of comparing the marks made by the donor. Ex-B44 is the legal notice; Ex-B45 is the reply by the appellant; and Ex-B46 is the rejoinder. Ex-B44 only states that SH was made to execute Ex-B4 fraudulently and without his consent or knowledge on a document that had been written in English. Therefore, the case was not one where the execution was disputed but one where execution was admitted, but the deed was sought to be avoided on the ground that the execution was made by force, undue influence and without the knowledge of the contents. Where the execution was admitted it is for the respondent to prove all the factors, which would render the document void and if they were not proved, the document had to be accepted.

8. As regards item Nos.11 and 12 of the suit properties it was submitted that they had been purchased several years prior to the suit. In fact, one sale deed is of the year 1956, which is about thirty years before the suit and there were clear recitals in the documents Ex.B2 and B3 under which these two items were purchased, that the consideration came from the appellant. The respondent had miserably failed to prove the benami nature of these two documents and therefore, he was not entitled to any share. The learned counsel also submitted that the Doctrine of Mushaa would not apply to the gift.

9. In response, Mr. T.R. Mani, learned senior counsel for the respondent submitted that there were several factors, which made Ex-B4 suspect. One, the time lapse between the date of execution and date of registration, two, the variation in the left thumb impression, three, SH did not have the mental capacity to comprehend what he was doing and therefore assuming, without admitting, SH executed the deed, the principle of non est factum would apply, and four, possession was not handed over and hence the gift deed never came into effect. It was submitted that it was not correct to state that the respondent had admitted the execution, on the contrary the respondent had clearly denied the execution and had also added that if some document as spoken to by the appellant existed, it must have been brought about without the knowledge of the donor by virtue of undue influence and coercion before the execution and due registration will have to be proved. When apparently there are discrepancies in the left thumb impression the document is fraudulent and hence void. Continuing, the learned senior counsel submitted that in any event, the gift deed never came into effect. The recital of possession is of no use, since the execution was at Chennai, properties are in Kamanathapuram district and therefore, by no stretch of imagination, could possession have been delivered and unless the donee is given possession there could be no gift. Therefore, the gift cannot be relied on, to deny the respondent his share in the property. It was further submitted that there was no necessity for the respondent to establish the benami nature of item Nos.11 and 12 of the suit property when even as per the evidence of the appellant, it was only SH who had provided funds. Further, there was no pleading regarding advancement and so the properties must be deemed to be available for partition. It was also submitted that SH himself had asked the respondent to take him to his counsel who has deposed as D.W.2 to revoke the gift deed. Therefore, this was an additional factor, which fortifies the case of the respondent. When the properties continued to be in the possession of SH, the mere statement by the appellant that she is a 'Gosha' woman would not help her to demonstrate that her husband was managing the properties. The very fact that she took the initiative to take her husband to Chennai for treatment would go to show that she was not a Gosha. Finally, the learned counsel submitted that the gift was not valid, as it is hit by Mushaa. For all these reasons, the judgment of the Court below had to be confirmed.

10. The suit properties can be divided into three categories. Item Nos. 1 to 5 belong entirely to SH, item Nos. 6 to 10 were properties in which SH held an undivided half share along with the respondent and item Nos. 11 and 12 were in the name of the appellant which are attacked to be benami in nature. For clarity's sake I shall deal with these groups separately.

11. Item Nos. 11 and 12 : Item No. 11 of the suit property was purchased under Ex-B3 on 9.1.1956. Item No. 12 was purchased under Ex-B2 on 3.5.1975. This is said to be purchased by SH out of his funds benami in the name of the appellant and it was also accepted by the trial Court. However, the evidence is quite contrary. Item No. 12 of the suit property is the property at Chennai. Regarding this the evidence of P.W.1, the appellant is As regards item No. 11, She has also deposed that the patta is in her name and she has been paying taxes. In cross-examination, however, she has said as follows :

Of course, thereafter she says that she does not know for how much money it was purchased how much money she gave her husband and for how much is the property has been given for rent etc. As regards item No. 11 of the suit property she says that she does not know for how much it was purchased. It is the respondent's case that this shows that she did not purchase the two properties out of her own funds and her averment to the effect was false, because it is unlikely that a person who has purchased the property would not know the sale consideration. It must be remembered that both these properties were purchased long before this dispute. As regards the Madras property, which was purchased in 1975, the endorsement of the Registrar in the sale deed, Ex-B2 shows that the consideration was paid in his presence by the claimant to the executant. As regards the Kanchirangudi property, item No. 11, the sale deed, which is of the year 1956 and marked as Ex-B3, also shows that the consideration was paid in the presence of the Registrar. It is not the contention of the respondent that the appellant did not have the wherewithal to purchase these properties. In her evidence she has clearly stated that she has purchased the properties. It is not unusual for women in this country to handover their funds to their husband to invest it in a proper manner. Therefore, the evidence of the appellant, that she did not know for how much the property was purchased, does not detract from her case, that she purchased the property out of her own funds.

12. To support his case that the burden of proving that a particular sale is benami always rests on the person asserting it to be so, the learned counsel for the appellant relied on the decisions reported in (1) Jaydayal Poddar (Deceased) through LRs. and another v. Mst. Bibi Hazra and others, . (2) Daryao Singh and others v. Smt. Halkibai and others, . (3) M.S.M. Shikkadai Maracayar v. Abdul Majeed Maraicayar and another, (4) Ponnuswamy Nadar v. Narayanan Nadar, 1976 (1) MLJ 1.

Apart from stating that Exs-B2 and B3 were purchased by his brother benami the respondent has not discharged his burden by adducing any acceptable evidence to prove the fact of benami. It must be remembered that the sale deeds are long prior to the present action and there is intrinsic evidence to show that the appellant herself paid the sale consideration. Therefore, it would not be proper to hold that these sale deeds were purchased by the brother of the respondent in his wife's name on the ground of surmise and conjecture.

13. Suit item Nos.11 and 12 have been purchased by the appellant long before the suit and she had obtained patta in respect of the same and had been enjoying the properties in her own right. At no point of time had SH claimed any right in these properties and as his heir the respondent cannot do so. Therefore, partition cannot be granted in respect of item Nos.11 and 12 as they belong to the appellant.

14. Two other items stand on different footing. The respondent claims that certain properties belonging to the brother of late SH had been gifted to his son Seeni Naina Mohamed, PW3, in 1977 itself. That document has been marked as Ex-A6. Four items are listed in Ex-A6. Item Nos.3 and 4 refer to 0.85 acres in survey No. 155/3 in Tirupullani Village and 0.79 acres (about) in Survey No. 154/5 in the same village. Totally this comes to 1.64 acres. Item No.9 of the suit property is an extent of 3.33 acres comprising of properties in Survey No. 155/36 and 155/5 A in the same village. Out of this according to the respondent he is entitled to half and SH is entitled to half, which comes to roughly 1.66 and the plaintiff claims a share in SH's 1.66 acres. If, according to the respondent SH's 1.64 acres in this survey number has already been given to PW3, his son, then it is difficult to comprehend, how he can claim a share in the same property which according to him had been settled on his son. Therefore, the prayer for partition as regards suit item No.9 will also have to go. Item No.2 of Ex-A6 is an extent of 1.65 acres in survey No.134/2A in Tirupullani Village. Out of the four items listed as item No. 10 of the suit property one is survey number 134/2A comprising of 2.36 acres. Out of this again the respondent claims that he has half share and the late SH had the other half, which roughly comes to 1.65 acres. By the same reasoning adopted for item No.9, I hold that the respondent is not entitled to partition in this property out of item No, 10 of the suit properties.

15. I have dealt with the four properties above separately because the question can be decided even without going into the validity or otherwise of Ex-64 gift deed.

16. Next we come to the question whether the document was validly executed and registered. The Court below has dealt with in, detail the variations between the thumb impressions at the bottom of the pages of Ex-B4 and the one which SH is alleged to have affixed, before the Registrar. Ex-B4 was executed on 10.1.1984 and registered on 4.2.1984, after a gap of one month, which itself according to the learned Senior Counsel for the respondent, is a suspicious factor. There are these following references in the plaint to the execution of the document.

17. This appears to be more in the nature of casting a doubt on the mental capacity of the donor than a denial of execution. This conclusion is reinforced by Exs-B44 and B46. In Ex-B44, the suit notice the averments regarding the gift deed are as follows:

It says therefore, when the husband of the appellant was not well, without his consent and without his knowledge, the appellant had made him sign a gift deed at Chennai in English. To this of course, appellant sent her reply setting out her denial and the circumstances under which the gift deed had been executed and registered and possession taken. Rejoinder is issued. It is marked as Ex-B46, where the stand is again reiterated.

So the respondent has admitted that the execution was by SH. But had attacked Ex-B4 as void, since SH had no knowledge of the contents of the document he had executed.

18. To support his case that when there was no specific denial of execution of the mortgage deed, it was not necessary for the plaintiff to call any attestor of the deed into the witness box to support his case, the learned counsel for the appellant relied on the decision reported in Ishwar Dass Jain (dead) through LRS. v. Sohan Lal (dead) by LRs. . In this case though execution had been admitted, still the attesting witnesses of the gift deed have also been examined and have spoken to the due execution and registration of the deed.

19. Once the respondent has admitted the execution it is not necessary for the appellant to prove the same. The next question is with regard to registration. The time gap between the execution and the registration and the alleged variation in the left thumb impression was, pointed out by the learned senior counsel to avoid the gift deed. Of course, there is no pleading regarding the genuineness of the registration. It is possible that the respondent saw the document only during the trial. So even in the absence of pleading, we will see what the evidence is. With regard to this, the respondent, as P.W.1 takes inconsistent stands, as to whether he knew about the execution of the gift deed even during the life time of his brother and whether he had a copy of the same before his brother's death. P.W.2 is an advocate, a very senior member of the Ramanathapuram bar. According to the evidence of P.W.1, SH wanted to take steps with regard to the gift deed and therefore, SH took him and his son, P.W.3 to the house of P.W.2. According to P.W1, the appellant had chased her husband after obtaining the gift deed from him and the grief-stricken brother had complained of this to the respondent and declared his intention to take steps with regard to the gift deed. However, P.W.2's evidence does not throw light in this regard. All that the witness says is, SH was brought to his office by P.W.1 who said that his brother wanted to take steps regarding the gift deed. But, the words spoken by the SH were incoherent and he could not understand even one word and soon thereafter, the appellant came upon the scene and there was a loud altercation in front of P.W.2's house and the matter ended there. P.W.2 who had, until then been not just an advocate but also a family advisor, told P.W.1 categorically that he would not be involved in this matter at all. Nothing really can be adduced from the evidence of P.W.2. Only two factors are clear. P.W.1, the respondent, and SH came to P.W.2's house. SH viz., the donor said something incoherent to P.W.2. That is all. Of course, it is possible that SH wanted to revoke the gift deed and attempted to say words to the effect. But we must remember that it is also possible that taking advantage of the incoherence in his brother's speech, the respondent took him along to the advocate informing the advocate that his brother wanted to revoke the gift deed. The incoherent words uttered by SH could even have been denial of any such intention to revoke. We do not know. But, what we know is that P.W.2 washed his hands off this matter. There were other lawyers available. SH had extensive properties in three villages in Ramanathapuram and who was managing them and also administering the properties at Chennai, which is item No. 12, suit property. He was not an ignorant man. Had he wanted to revoke Ex-B4, he would have done so. We also have to see the conduct of the parties. Though it is the case of the respondent that the appellant treated her husband with cruelty and that she would not even give him food properly in fact, they lived together for 45 years almost and he died in his house, and his wife was with him then. It is the admission of P.W.1, Therefore, his statement that the appellant wanted to throw her husband out the moment she obtained the gift deed is false, because he lived for nearly two years after Ex-B4. On the other hand there were litigations between the respondent and SH, admittedly. As regards registration of the document, D.W.I viz., the appellant had stated that she had not asked her husband to settle any properties on her and that he did on his own accord and that he affixed his left thumb impression because his right hand was paralyzed and that she accepted the gift and took possession and also made application for mutation of records. She has also stated that the Registrar had come to the house and her husband had executed it in his presence and that she took the document from him. Apart from a suggestion that the appellant's husband was not in a sound state of mind at the time of execution of Ex-B4 no question has been asked regarding the identity of the person who affixed the left thumb impression before the Registrar. D.W.2, one of the attesting witnesses, has also said that the donor affixed his thumb impression before the Registrar and before D.W.3. D.W.3 in his evidence had stated that he first attested Ex-B4 and one month later he attested it in the presence of the Registrar and that only SH sent for him to be a witness at the time of registration. D.W.3 clearly says that he signed Ex-B4 only twice and that with a time interval of one month between the two occasions and that he did so in the presence of SH. No attempt was made on behalf of the respondent to elicit from these witnesses any answer to the effect that the person who affixed the left thumb impression in January 1984 was not the person who affixed the left thumb impression in February 1984. Without either pleading or proof, the Court below has embarked on an imprudent course of comparison of the thumb impression, which is the domain of experts. The Supreme Court and this Court have repeatedly held that even in the case of handwriting, comparisons are best made by experts and it would be too risky for a Court to do its own comparison and to reject the document which is the crux of the case. When this is so with regard to signatures, it is needless to say that thumb impressions cannot be compared by Courts, since there are experts in this field.

20. In the face of the evidence of D.W.2 and D.W.3 regarding due execution and registration and absence of either pleading or proof that the person, who affixed the thumb impression before the Registrar is not the person who affixed the thumb impression at the bottom of Ex-B4, the question arises whether the Court below ought to have taken upon itself the task of comparing the two thumb impressions. For this purpose, the learned counsel for the appellant relied on the judgment reported in Somasundaram v. Palani, . The learned Judge held therein that it was improper on the part of the Court below to have itself done the comparison relying on three decisions of the Supreme Court wherein it was held that prudence demands that Courts should be extremely slow in venturing an opinion on the basis of mere comparison and that Judges should as a matter of prudence and caution hesitate to base their finding with regard to the identity of a handwriting which forms the sheet-anchor of the case. The Supreme Court in O. Bharathan v. K. Sudhakaran and another, quoted a portion of the decision in State Delhi Admn. v. Pali Ram, to hold that the prudent course is to obtain the opinion and assistance of an expert.

21. The ease advanced by the respondent regarding his brother's intention to revoke the settlement deed is totally absent in his plaint. He knew about the settlement deed since, in Ex-B45 the appellant had categorically stated that her husband had gifted her the various properties to which, the rejoinder Ex-B46 was issued. Thereafter, according to him his brother came and wept on his shoulder wanting to take steps with regard to this document and he, his son and his brother have also gone to a very senior lawyer's office. If his case that the donor himself wanted to revoke the gift were true, it would have found a place in the pleadings. For these reasons, I hold that Ex-B4 was duly executed and registered.

23. The respondent apart from pleading the same has not proved it, on the other hand had given evidence that the donor was not in full possession of his mental faculties, which contradicts the plea of undue influence. The learned counsel for the appellant relied on Ladli Prashad Jaiswal v. The Karnal Disteller Co. Ltd. Karnal, , in which the two conditions which are necessary to establish undue influence were set out.

(a) that the party because of undue influence was in a position to dominate the will of the other and

(b) that the said party obtained an unfair advantage by using that possession.

24. If these two conditions are not fulfilled the presumption of undue influence will not arise and burden will not shift. The respondent had failed to established undue influence either by admissions or by other evidence. The other decision cited by the learned counsel for the appellant to support his case that plea of undue influence cannot be accepted was the decision reported in Bishundeo Narain & another v. Seogeni Rai & others, , where it was held that the case has to be decided on the basis of the particulars of undue influence given in the pleading, there can be no departure from that. The respondent has not established his case of undue influence.

25. The learned senior counsel said the principle of non est factum would apply and that SH did not know the nature of the document that he had executed. As against the evidence of D.Ws. 2 and 3, (I am not for the moment considering D.W.1's evidence), that it was SH, who called them and asked them to attest the deed which means that he was aware of what was happening, we only have the interested evidence of P.Ws.1 and 3 who state that the SH cried to them that his wife had obtained the document fraudulently from him and intended to chase him out and that he wanted to revoke it. In fact she did not chase him out and he did not revoke it, even though he lived for two years after the execution of Ex-B4.

26. The learned senior counsel appearing for the respondent submitted that it was the case of the respondent that the appellant's husband had no knowledge of the character of the document and for this the decision reported in Smt. Dularia Devi v. Janardan Singh and others, was relied on. According to the learned Senior Counsel if the mind of Shahul Hameed did not accompany the signature then the document itself is void. In that case the donor affixed a thumb impression on a sale deed thinking that it was a gift deed in favour of a daughter. In this case according to the respondent his brother told him that the appellant had obtained a settlement deed from him and he wanted to lake steps with regard to the said document. It is true in Ex-B44, the suit notice it is stated that the signature of the donor had been obtained in the document without his knowledge of the contents. It is not the case of the respondent that his brother affixed his signature on certain documents believing it to be something other than what it actually was. It is not his case that there was a fraudulent misrepresentation as to the character of the document itself. Therefore, this decision will not apply to this case. It is difficult to believe that SH did not know what he was doing when he executed Ex-B4. He knew what he was doing and there was no undue influence, fraud or coercion to vitiate it.

27. Muslim Law requires three essential factors to complete a gift, declaration, acceptance and delivery. If there is no delivery, the defect cannot be cured even by valid registration. The declaration can be ascertained from the deed itself and the acceptance can also be seen from the deed itself, where the appellant has signed to signify the acceptance of her gift. It is also her evidence that she was informed that to sustain the gift she had to accept it and therefore, she affixed her signature but all this would come to naught if there is no delivery. The recital of the decision regarding delivery of possession raises an initial presumption. But this presumption is rebuttable as held in various decisions of the Supreme Court and this Court. What is the material evidence to show that the appellant had accepted the gift? The learned Senior Counsel pointed out to the various dates of the lax receipts filed by the appellant as defendant's exhibits. In all these exhibits but one or two, it is only SH who is shown as the owner of the properties. The production of just two exhibits bearing the name of the appellant will not prove delivery of possession, submitted the learned Senior Counsel. In fact, he put it picturesquely and said one swallow does not make a summer. The other documents which bear her name are subsequent to the suit. But we are faced with Exs-B5, B6 and B7 which are all proceedings of the Revenue Authorities in respect of the suit properties upon the application made by the appellant for mutation of names in the revenue record replacing her husband's name by her name. In Ex-B5, the application has been made on 6.1.1985, in Ex-B6, the order has been passed on 15.12.1984, in Ex-B7 the order has been passed on 13.12.1984. SH died only in June 1986. Therefore, even during his life time the appellant had taken steps to show that possession was delivered to her. But the learned counsel for the respondent pointed out that though the gift deed was dated January 1984 the first application is only made in December 1984 and this was a suspicious factor. I do not think so. One must remember that SH was a sick man. His right side was paralyzed and the appellant was consulting Doctors and going to Chennai for his treatment. Though the respondent would cry hoarse, that she was a bad wife it is borne out by facts that until his death she tended him. When her life partner is not well and taking treatment it is unlikely that she would proceed to take all these steps before the Revenue Authorities the morning after the gift deed was registered. Steps had been taken some reasonable time after the gift deed and before the donor's death, to show that even during his life time she, after taking delivery of the properties, had exercised her right.

28. As regards delivery of possession, what is the nature of proof that is required by the person who comes to the Court with the case that there was indeed delivery of possession under the gift deed? The learned counsel for the appellant relied on the following decision:

(1) Syed Md. Saleem Hashmi v. Syed Abdul Fateh and others, (2) Qhamarunnissa Begum v. Fathima Begum, (3) Nawab Mirza Mohammad Sadiq Ali Khan and others v. Nawab Fakrjahan Begam and another, AIR 1932 P.C.13 (4) Ibrahim Bivi and others v. K.M.M. Pakkir Mohideen Rowther, (5) Babu Hitendra Singh and others v. Maharajahdihraj Sir Rameshwar Singh Bahadur and others, 1998 IC 141(Pat) (6) Johara Bibi v. Subera Bibi, and (7) Noohu Pathuammal and others v. Ummathu Ameena and others, .

29. In all these cases the Courts have held that when the husband is the donor and the wife is the donee or when the father is the donor and the minor child is the donee no proof of delivery of possession is required and all that is necessary is to establish a bona fide intention to give. In fact it has been held that even mutation of names is not necessary if the gift deed has a declaration that delivery of possession has been given. In the decision reported in Noohu Pathuammal and others v. Ummathu Ameena and others, this is what the learned Judge says:

"The fact that the husband continued to live in the house or to receive the rents after the date of the gift will not invalidate the gift, the presumption in such a case being that the residence was on account of matrimonial obligation and that the rents are collected by the husband on behalf of the wife and not on his own account."

30. In the Privy Council case it was held that actual eviction by the husband and actual taking of separate possession was not necessary. Declaration of delivery of possession and delivery of deed would be sufficient to establish transfer of possession. No doubt, the recital as to delivery of possession is not conclusive. The learned Judge in Johara Bibi v. Subera Bibi and others, has quoted from the decision reported in Mohamed Yusuf Rowther v. Mohamed Yusuf Routher, AIR 1958 Mad. 527 to hold that, " the proper rule to apply here as regards the burden of proof would be to held that the declaration by the donor of his having parted with possession was an admission binding upon the parties which however they might by cogent evidence disprove but in the absence of independent proof by them the presumption raised by the admission ought to suffice to support the deed."

31. In that case the lower appellate Court whose judgment was assailed before this Court came to the conclusion that there was no delivery, on the basis of a number of circumstances namely there was no mutation of names or change of patta. We have already seen in this case that even during the life time of the appellant's husband the appellant had taken steps to record mutation of names and further the donor being the husband and the donee being the wife the strict proof of delivery of possession between strangers would not apply. The learned Senior Counsel for the respondent said that unless there was proof to show that donor took the donee to the places where the various immovable properties were situate it was not possible to conclude that from Chennai, the site of execution of Ex-B4 he could have given, delivery of possession. This cannot be accepted. There is clear recital regarding delivery of possession in the deed and acceptance of transfer and there is no independent proof to rebut it. D.W.I has said that she took delivery of the property in her evidence and she took steps to have the complete transfer to her name. Exs-B5, B6 and B7 points out to the fact that she had taken delivery.

32. In the decision reported in Mst. Noor Jahan Begum v. Muftkhar Dad Khan and others, 1970 All. 170, the Division Bench of the Allahabad High Court held that the presumption of delivery may be rebutted by establishing that the subsequent conduct of the donor is inconsistent with the making of the gift or by demonstrating the patent improbability of what is stated by the recital. In that case, the gift was in favour of the daughter-in-law and the Bench held that in some cases departure is made by the Courts in India from the strict rule of Mohamedan Law with regard to the handing over of factual and physical possession.

"In the opinion of the Judicial Committee the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession. This indeed is a departure from the original test of the Mohomedan Law.

... But all cases where the Courts have shown a departure from the strict Mohamedan Law, are confined to a narrow class of gifts-gifts between husband and wife and gifts to a minor. The present case does not fall in that class."

32. The other question raised is the Doctrine of Mushaa. Item Nos.1 to 5 are the properties standing in the name of SH and enjoyed separately by him. Item Nos.6 to 10 are undivided share held by him jointly with his brother, the respondent. Once the gift deed is accepted item Nos.1 to 5 cease to be available for partition because they have passed on to the donee namely the appellant. There is one more objection to the validity of the gift regarding items 6 to 10.

The learned Senior Counsel for the respondent argued that these gifts were hit by the Doctrine of Mushaa. The word "Mushaa" is derived from the Persian word "Shuyuu", which signifies "confusion". When undivided shares are gifted and it is not possible to ascertain the extent of the property that passed on to the donee if was said that it would be hit by "Mushaa". But this defect will not affect the gift when the donor has parted with his entire right, title and interest, even though in a undivided share. In a case if the donor retains some portion of the undivided share and gave some to the donee, it would not be possible to ascertain, what exactly was transferred under the gift and would give raise to confusion and hence would be hit by "Mushaa".

33. The Privy Council has held that "the doctrine relating to the invalidity of gifts of Mushaa is wholly unadapted to a progressive state of society and ought to be confined within the strictest rules."

34. The decision reported in Kairum BI w/o. Abdul Shukan and others v. Nariam Bi and another, ,. Division Bench is relevant to this case "The reason for the rule that the gift of an undivided share (musha) is bad is to be found in the desire to avoid what has been described as confusion. If the property is capable of separate possession but nevertheless the donor does not separate what he intends to give from his other possessions, one cannot find out what he intended to give and there is bound to be confusion. The reason of the rule is wholly absent in a case where the donor gave away the entirety of her interest in the estate."

35. The Division Bench of this Court quoted from Zahuran v. Abdus Salam, AIR 1930 Oudh 71, "...We may legitimately ask as was asked by Lord Macnaughten in the case of Mahomed Buksh Khan v. Hossein Bibi, ILR 15 Cal 684 : 15 IA 81 (PC), what confusion can it introduce if the owner of a definite share in immovable property makes a gift of that share in favour of another person and has himself nothing left in that property after the gift? It seems to us that the only answer that can he given to this question is in the negative."

This is wholly applicable to this case since Shahul Hameed has divested himself of his half share in item Nos. 6 to 10. He had nothing left in those properties. Thereafter, there is no room for confusion, Mushaa will not apply.

36. As regards deposit made in the cement company and the stocks the pleading are vague and even that is not supported in the evidence of P.W.1. Hence no relief can be granted.

37. For the aforesaid reasons I set aside the judgment of the Court below. The respondent is not entitled to seek partition in the suit properties. The appeal is allowed. However, in view of the relationship between the parties, no costs.

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Madras High Court