Madras High Court
Samsubisa Begum vs Thondi Muslim Education Society on 24 September, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 24.09.2018
RESERVED ON : 25.07.2018
DELIVERED ON : 24.09.2018
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
Second Appeal (MD) No.236 of 2018
and
CMP(MD)Nos.6367 and 6368 of 2018
T.M.Hyder Ali (died)
1.Samsubisa Begum
2.Mohammed Iqbal
3.Mohammed Noordeen
4.Zeenath Begum
5.Kairunnisa Begum ... Appellants
through their power of attorney
S.A.J.Kamal Batcha
Vs
Thondi Muslim Education Society
through its Secretary M.Abdul Rawther Nisthar,
12/5, Mohammed Rawther Pillai Street,
Thondi,
Thiruwadanai Taluk,
Ramanathpuram District. ... Respondent
PRAYER : Second Appeal against the judgment and decree dated 26.4.2018
made in A.S.No.2 of 2017 on the file of the Principal District Court,
Ramanathapuram, reversing the judgment and decree dated 5.2.2013 made in
O.S.No.24 of 2006 on the file of the Subordianate Judge, Ramanathapuram.
!For Appellants : Mr.A.Abdul Rahim
^For Respondent : Mr.M.V.Venkataseshan
:JUDGMENT
This Second Appeal arises out of the judgment and decree in A.S.No.2 of 2017, dated 26.4.2018 on the file of the Principal District Judge, Ramanathapuram, reversing the findings of the trial Court in O.S.No.24 of 2006, dated 5.2.2013.
2. The respondent herein is the plaintiff. The plaintiff has filed the suit for declaration to declare that the plaintiff is the lawful owner of the suit properties and for permanent injunction restraining the defendant, his men, rowdy elements from in anyway interfering with the plaintiff's peaceful possession and enjoyment of the suit properties and for costs of the suit.
3. Pending first appeal, the sole defendant Hyder Ali died and his heirs were brought on record as respondents/defendants 2 to 6 in the first appeal.
4. For the sake of convenience, the ?plaintiff? is referred to as ?plaintiff society? and the sole defendant is referred to as ?deceased defendant?.
5. The case of the plaintiff society is that the plaintiff society was formed and administered by the natives of Thondi town and was functioning for development of minority people of Muslim residing in and around Thondi town. The plaintiff society was promoting education, culture etc. The plaintiff society has given authorization to Abdul Rawoof Nisthar to look after the properties of the society and to manage the same for an on behalf of the plaintiff society. On 3.3.1988, the plaintiff society has purchased Nanja and Punja lands measuring 7.87 acres (3 acres 7 + cents nanja and 4 acres 79 , cents punja) at Thiruvadanai Taluk, Tondi from Nathira Barveen and others. The plaintiff society has also purchased 59 + cents of Nanja land and 1 acre 46s cents of Punja lands under registered sale deed dated 6.7.1988 from S.M.M.Mohamed Salim. From the date of purchase, the plaintiff society was in possession and enjoyment of the same.
6. According to the plaintiff society, it has purchased the above said property for construction of educational Institution and also community halls for the benefit of the minority people. Since the above said properties were not enough for construction of Colleges, the plaintiff society approached the northern and western side lands owners by way of letters requesting them to alienate their properties. Accordingly, the adjacent land owner S.M.Ajmal Hussain has given consent to alienate his land to the plaintiff society. Thereafter, plaintiff society searched for the donors to purchase the said lands. Finally, the sole defendant Hyder Ali had given consent to purchase the land in his name and to donate the same to the plaintiff society. Accordingly, the deceased defendant purchased the adjacent Nanja lands measuring 7 acres 87 cents and 6 acres 76 cents Punja lands from Kasabar Alikhan and others under a registered sale deed dated 29.12.1989, which was shown as item No.1 in the suit schedule.
7. The deceased defendant had also purchased the adjacent land from Mohamed Saleem to an extent of 1 acres 52 cents Nanja land and 90 cents Punja under a registered sale deed 29.12.1989 and 30.12.1989 respectively. The deceased defendant had also purchased another 2 acres 30 cents Punja land from one Sulaikabeevi under a registered sale deed dated 29.12.1989 and 30.12.1989. The said lands were shown as item Nos.2 and 3 of the suit schedule.
8. According to the plaintiff society, after purchase, on 13.7.1991, the deceased defendant orally bequeathed the said properties to the plaintiff society before the members of the society as well as before W.P.Abdul Razak of Ex.Thondi Municipal Charman and on M.S.Abdul Solan of Thondi. The plaintiff society took possession of the above lands and was in peaceful possession and enjoyment of the same by paying kist. The oral gift given by the deceased defendant was recorded in the plaintiff's society Minutes book on 1.6.1992 and the oral gift given by the Hyder Ali was valid under Mohammedan Law. While so, the deceased defendant was trying to alienate the suit properties without the knowledge of the plaintiff. On 15.2.2006, the members of the plaintiff society approached the deceased defendant and remained the oral gift given by him. Hence, the plaintiff society has filed the suit.
9. Resisting the suit, the deceased defendant filed the written statement stating that by setting forth the false allegations, the plaintiff society has filed the suit and the same is not maintainable in law and on facts. The alleged consent given by S.M.Ajmal Hussain willing to alienate his land was incorrect. It was false to state that the deceased defendant gave his consent for purchasing the suit lands and to donate the same to the plaintiff society. In fact, the deceased defendant purchased the suit properties under sale deeds dated 27.12.1989 and 29.12.1989 for his own benefit. The oral gift dated 13.7.1991 and taking over of possession of the suit properties by the plaintiff society are false.
10. According to the deceased defendant, he had never intended to gift away the suit properties. The deceased defendant was a non-resident Indian and law abiding citizen. Nobody met the deceased defendant on 15.2.2006. In fact, the deceased defendant was in possession of the suit properties and the original registered sale deeds were in possession of the deceased defendant. The affairs of the deceased defendant were looked after by his son-in-law Kamal Batcha, who was a permanent resident of Chennai. According to the deceased defendant, his son-in-law used to visit the suit village ever and anon. On some occasions, he used to give money for payment of kist and did not care to get back the receipts. The plaintiff society was never in possession and enjoyment of the suit properties. Patta bearing No.215 stands in the name of the deceased defendant Hyder Ali. The deceased defendant was the true owner of the suit properties and prayed for dismissal of the suit.
11. Based on the above pleadings, the trial Court framed the following Issues:
(1)Does the plaintiff hold title to the suit property in manner he pleads? (2)Has the defendant been in possession of the property under title? (3)Is the plaintiff entitled to the relief of title, declaration and consequential injunction?
(4)What's the decree of the court on the suit? What are its terms?
12. Before the trial Court, on the side of the plaintiff society, P.W.1 to P.W.3 were examined and Exs.A1 to A41 were marked. On the side of the deceased defendant, one S.A.J.Kamal Batch was examined as D.W.1 and Exs.B1 to B39 were marked.
13. Upon consideration of the oral and documentary evidence, the trial Court dismissed the suit. Aggrieved by the dismissal of the suit, the plaintiff society has filed first appeal being A.S.No.2 of 2017 on the file of the learned Principal District Court, Ramanathapuram. Pending appeal, the sole defendant Hyder Ali died and his heir were brought on record as respondents/ defendants 2 to 6 in the appeal.
14. Upon hearing both sides, the first appellate Court, allowed the appeal A.S.No.2 of 2017 and reversed the findings of the trial Court, thereby decreed the suit filed by the plaintiff society. Aggrieved by the judgment of the first appellate Court, the defendants 2 to 6 have filed the present Second Appeal, raising the following substantial questions of law:
(1)Whether the findings of the lower appellate court holding that the respondent herein/plaintiff has proved the oral gift to the respondent herein/plaintiff is correct or not as per the provisions under the principles of Mohameden law?
(2)Whether the findings of lower court holding that the respondent herein/plaintiff is in possession of the suit properties when the title documents and the revenue records of the suit properties are standing in the name of the 1st appellant/defendant from the date of purchase and till today? (3)Whether the findings of the lower appellate court based on the oral evidence on the side of the respondent herein/plaintiff over the documentary evidence produced by the 1st appellant/defendant is sustainable or not?
15. The learned counsel for the appellants contended that the first appellate Court has failed to consider that the documents filed by the plaintiff society before the trial Court were not at all connected to the suit properties and in fact, they were pertaining to some other properties. He would submit that the first appellate Court has failed to consider that all the registered sale deeds as well as the revenue records in respect of the suit properties were standing in the name of the deceased defendant, who was the ancestor of the appellants herein, who died during the pendency of the first appeal. The learned counsel submitted that the plaintiff society has failed to prove the alleged oral gift said to have been made by the deceased defendant in favour of the plaintiff society. He would submit that the first appellate Court has failed to consider that the deceased defendant was the absolute owner of the suit properties and was in possession and enjoyment of the same till his death and after his death, the appellants were in possession and enjoyment of the same as an absolute owners. He would vehemently contend that the first appellate Court has given a wrong and erroneous finding that the documents produced by the deceased defendant were all created after the filing of the suit.
16. According to the learned counsel for the appellants, even the documents marked on the side of the plaintiff society viz., Exs.A21 and A23 stood in the name of the deceased defendant. The deceased defendant at no point of time intended to gift the suit properties to the plaintiff society. Without any iota of evidence, the first appellate Court erred in holding that the plaintiff society was in possession and enjoyment of the suit properties and prayed for setting aside the judgment of the first appellate Court.
17. Reiterating the findings of the first appellate Court, the learned counsel for the respondent submitted that the deceased defendant had gifted the suit properties orally on 13.7.1991 to the plaintiff society as per Mohammedan law and from the date of oral gift, the plaintiff society was in possession and enjoyment of the same. He would submit that the deceased defendant was never in possession and enjoyment of the suit properties after the gift. In fact, to show that the deceased defendant was in possession of the suit properties, no documents were marked on the side of the appellants.
18. The case of the plaintiff society is that the plaintiff society was a registered society and the same was functioning for development of the minority people of Muslim residing in and around Thondi town and the plaintiff society was also promoting education and culture among the locality. Since lands possessed by the plaintiff society were not enough for construction of Colleges, they decided to purchase the northern and western side lands of their lands. For that, the deceased defendant had given his consent to purchase the lands in his name and thereafter willing to donate the same to the plaintiff society. The further case of the plaintiff is that on 13.7.1991, the deceased defendant orally gifted the suit properties before the members of the society and he had also handed over possession of the same to the plaintiff society. The oral gift made by the deceased defendant was recorded in the plaintiff's society Minutes Book on 1.6.1992. After giving the oral gift, the deceased defendant denied the title of the suit properties and was trying to sell the suit properties to third parties. Hence, the plaintiff society has constrained to file the suit.
19. On the other hand, it was the case of the deceased defendant, before the trial Court that as per the Bye-laws of the plaintiff society, only the President was empowered to file the suit. No annual account was produced to show that really the deceased defendant gifted the suit properties in favour of the plaintiff society. According to the deceased defendant, he never gifted the suit property to the plaintiff society and in fact, the possession of the suit properties was with the deceased defendant at the time of filing of the suit and after the demise of Hyder Ali, the appellants were in possession and enjoyment of the same.
20. The purchase of the suit properties by the deceased defendant Hyder Ali on 29.12.1989 and 30.12.1989 respectively was not disputed by the plaintiff society. The sale deeds in respect of the suit properties were in the name of the deceased defendant Hyder Ali. In this regard, the plaintiff society stated that they have given money for purchase of the suit properties in the name of deceased defendant and the deceased defendant agreed to bequeath the same in favour of the plaintiff society. Accordingly, he had bequeathed the suit properties orally in favour of the plaintiff society. No proof has been produced to show that only the plaintiff society had given money for purchase of the suit properties. In this regard, it is pertinent to point out that in his cross-examination, P.W.1-Abdul Rawoof Nisthar admitted as jhthr; brhj;Jf;fs; gpujpthjpapd; brhe;j gzj;jpy;jhd; th';fg;gl;lJ. Thus, from the version of P.W.1, it is seen that the suit properties were purchased by the deceased defendant on his own fund. To fortify the same, the learned counsel for the appellants referred the cross- examination of D.W.1, who was deposed as follows:
@gpujpthjpf;F ehd; fhhpajh;rpahf ,Ue;jhYk; ,e;j jhthr; brhj;Jf;fis fpiuak; th';Fk;nghJ ,e;j thjpapd; r';fj;jpDila brayhsh;jhd; fpiuajhuh;fSf;F fpiuaj;bjhifia bfhLj;jhh; vd;why; rhpay;y/@
21. Therefore, the statement of the plaintiff society that they had given money for purchase of the suit properties in favour of the deceased defendant is a self-serving statement. The plaintiff society has failed to prove that they had given money for purchase of the suit properties by way of preponderance of documentary proof. Moreover, no proof has been produced by the plaintiff society to prove that the deceased defendant had given consent for purchase of the suit properties in his favour and then agreed to donate the same to the plaintiff society as alleged by them.
22. As far as oral gift of the suit properties said to have been given by the deceased defendant Hyder Ali in favour of the plaintiff society is concerned, the plaintiff society mainly relied upon the Minutes of the Executive Committee meeting dated 1.6.1992, wherein a Resolution was recorded as 73(2). According to the plaintiff society, the deceased defendant had bequeathed the suit properties orally on 13.7.1991 and the same was evident from the aforesaid Resolution dated 1.6.1992. The xerox copy of the Resolution dated 1.6.1992 has been marked as Ex.A40 before the trial Court, which contains two Resolutions viz., Resolution Nos.73(I) and 73(II) and as far as the present case is concerned, the learned counsel for the plaintiff society relied upon Resolution No.73(II). The appellants have filed the typed set of papers along with this appeal, which contains the Resolution No.73(II) at page 17, which reads as under:
bjhz;o tlf;Fj; bjU jw;fhyk; ,y';ifapy; trpj;J tUk; bjhHpy; mjpgh; J}/K/icwjh; myp mth;fSf;F brhe;jkhd rpd;dj;bjhz;o cl;fl;il ehpf;Fo fpuhkj;jpy; cs;s rh;nt vz;/110-1. 112-1. 112-2B. 112-2C. 118-2B. 120-2. 118-1. 120-1A2. 120-3 Rkhh; 20 Vf;fh; mst[s;s epy';fis ek; bjhz;o K!;yPk; v$%nfc&d; brhirl;of;F fy;tp mYtyf';fs; fl;Ltjw;fhf cwpgh vd;Dk; jhdk; bra;J bfhLj;jJ bjhlh;ghf fy;tp bjhz;oy; Mh;tk; bfhz;ltUk; jd;Dila bgahpy; fy;tp epWtd';fis cUthf;f ntz;Lk; vd;w cahpa vz;zk; bfhz;ltUkhd bjhz;o tlf;Fj; bjU nyl;/jh/Kfk;kJ E}h;jPd; mth;fs; kfd; bjhHpyjpgh; icwjh; myp mth;fs; rpd;dj; bjhz;o cs;fil ehpf;Fo fpuhkj;jpy; jdf;F fpiua ghj;jpakhf cs;s rh;nt vz;/ 110-1. 112-1. 112-
2B. 112-2C. 118-1. 118-2B. 120-1B. 120-2. 120-3. 120-A2. 121-2B2 Mf Rkhh; 20 Vf;fh; mst[s;s epy';fis fy;tp epWtd';fs; fl;Ltjw;fhf ek; brhirl;o cWg;gpdh;fs; Kd;dpiyapYk; bjhz;o tlf;Fj; bjUit nrh;e;j Kd;dhs; ngU:uhl;rp kd;wj; jiyth; be/g/mg;Jy; urhf; kw;Wk; bjhz;o bjw;Fj; bjU M/S/mg;Jy; !yhk; mth;fs; Kd;dpiyapYk; ek; brhirl;oapd; brayhsh; bjhz;o bjw;Fj; bjU (nyl;) Kfk;kJ gh!;fhd; mth;fs; Fkhuh; M/mg;Jy; u$hf; mth;fsplk; 18/2/1989 rdpf;fpHik md;W rl;lg;g{h;tkhd RthjPdk; mila[k; tiuapy; cwPgh jhdk; bra;J bfhLj;Js;shh;/
23. From Ex.A40, it is seen that the deceased defendant Hyder Ali had handed over possession of the aforementioned survey numbers to Abdul Razak on 18.2.1989 in the presence of Former Town Panchayat President Abdul Razak and Abdul Salam. In the plaint paragraph 12, the plaintiff society has averred that the deceased defendant orally bequeathed the properties on 13.7.1991. But, on the contrary, in Ex.A40, it has been stated that on 18.2.1989, the deceased defendant had handed over possession of the properties. In his chief-examination by way of proof-affidavit, P.W.1 stated as under:
@nkw;go thf;fwyhf gpujpthjp jhdk; bra;jij ,e;j thjp jdJ 01/06/92k; njjpa jPh;khd g[j;jfj;jpy; 79?k; gf;fj;jpy; jPh;khdk; vz;/73(2)Mf gjpt[ bra;J mJ njjp KjYk; fpiuak; bra;j njjp KjYk; fle;j 13/07/91k; njjp KjYk; jhth brhj;Jf;fis ,e;j thjp jd;Dila iftrk; mDgtj;ij bgw;Wf; bfhz;L ,Jehs; tiu jhth brhj;Jf;fspy; jdpj;j ghj;jpaj;JlDk;. chpika[lDk;. mDgtj;JlDk; ,Ue;J tUfpwJ/@ Thus, there is a contradiction as to when the deceased defendant had said to have handed over possession of the suit properties to the plaintiff society. There is no explanation forthcoming from the plaintiff society that when really they took possession ? whether on 18.12.1989 or 13.07.1991. Moreover, the plaintiff society failed to explain what prevented them from immediately passing a Resolution, if really the deceased defendant had handed over possession of the suit properties. In the case on hand, only on 1.6.1992, Ex.A40-Resolution came to be passed, which would create suspicion.
24. In this regard, it is pertinent to mention a portion of the deposition from the cross-examination of P.W.1, who admitted that @th/rh/40 13/7/91y; gpujpthjp jhthr; brhj;Jf;fis thjpaplk; jhdkhf bfhLj;jij md;iwa jpdnk jPh;khdk; epiwntw;whky; 1/6/92y; jPh;khdk; Vw;gl;Ls;sJ/@ P.W.2, who is one of the vendors of the portion of the suit properties deposed that at the time of sale, entire rights have been given to the purchaser in respect of suit properties. In his chief-examination by way of proof-affidavit, P.W.3 stated that, on 13.7.1991, the deceased defendant orally donated the suit properties as per Mohammedan law in favour of the plaintiff society in the presence of elders. P.W.3 further stated that the plaintiff society was in possession of the suit properties from the date of sale and till date, the plaintiff society is in possession of the same.
25. On the other hand, as recorded by the trial Court, the deceased defendant had produced Exs.B1 to B39 to show that the suit properties were in possession of deceased defendant Hyder ali. The deceased defendant had produced Exs.B3 to B5-sale deeds before the trial Court to show that he had purchased the suit properties. Ex.B6 is the Proceedings of the Tahsildar, Thiruvadanai qua change of patta in the name of Hyder Ali. The deceased defendant had also produced other revenue documents viz., chitta, adangal and kist receipts to show that the suit properties were in his possession. The plaintiff society has also marked kist receipts standing in his name qua the suit properties.
26. In the case on hand, both the plaintiff society and the deceased defendant have claimed right over the suit properties. As stated supra, the plaintiff society claims right over the suit properties on the strength of oral gift (Hiba) said to have been given by the deceased defendant Hyder Ali.
On the contrary, it is the say of the appellants, who are the legal heirs of the deceased defendant Hyder Ali, represented through the power of attorney, that the suit properties were never gifted by Hyder Ali to the plaintiff society.
27. Admittedly, the parties are governed by Mohammedan Law. The following are the three conditions necessary for a valid gift by a Muslim:
(a) manifestation of the wish to give on the part of the donor;
(b) the acceptance of the donee, either impliedly or expressly;
(c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively.
28. Thus, the position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Muhammadan Law are; (i) declaration of the gift by the donor; (2) acceptance of the gift by the donee and (3) delivery of possession. Though, the rules of Mohammedan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials make the gift complete and irrevocable. However, the donor may record the transaction of gift in writing.
29. Asaf A. A. Fyzee in Outlines of Muhammadan Law, Fifth Edition (edited and revised by Tahir Mahmood) at page 182 states in this regard that writing may be of two kinds: (i) it may merely recite the fact of a prior gift; such a writing need not be registered. On the other hand, (ii) it may itself be the instrument of gift; such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author says that registration, however, by itself without the other necessary conditions, is not sufficient.
30. Mulla, Principles of Mohammedan Law (19th Edition), Page 120, states the legal position in the following words :
"Under the Mahomedan law the three essential requisites to make a gift valid : (1) declaration of the gift by the donor: (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case."
31. It is to be borne in mind that the term 'Hiba' and 'Gift' are more often employed, but the term 'Hiba' is only of the kind of transactions which are covered by the general term 'Gift'. 'Hiba' is confined only to transfer of rights of full ownership or corpus of any property. Such a transfer by means of 'Hiba' must be immediate and not contingent. It must be unconditional. Any conditions imposed in respect of corpus would be void.
32. As a matter of fact, the burden of proving that the formalities of law have been complied with lies on the person claiming to be the Donee. The burden of proof is then shifted on those who challenge the validity of gift in the considered opinion of this Court. Really speaking, the burden of establishing that possession has been delivered is on the Donee .
33. It is true that in order to create a valid gift of movable or immovable property, writing is not essential under Muhammadan Law. The provisions of Section 123 of the Transfer of Property Act do not apply to Muhammadan gifts vide Section 129 of the Transfer of Property Act. The registration of a deed of gift does not cure want of delivery of possession. But, if a gift is reduced to writing, it requires to be registered under Section 17 (i)(a) of the Registration Act. Even if by virtue of the terms of Section 129 of the Transfer of Property Act, a deed of gift executed by a Muhammadan does not require to comply with the provision of Section 123 of the Transfer of Property Act, still it requires to be registered under Section 17 (i)(a) of the Registration Act when the gift relates to immovable property.
34. As stated supra, it is settled that under the Mahomedan Law, gift of immovable property can be made orally provided three ingredients are satisfied, namely (i) a declaration of gift by the donor (ii) acceptance of the gift by the donee and (iii) delivery of possession of subject-matter of gift to the donee. Even if actual possession is not given, possession which the property is capable of being given would satisfy the requirement. Unless the three valid requirements of declaration, acceptance and delivery of possession are satisfied, oral gift under Mohammedan Law is not valid. In order to establish a declaration of gift it must be shown that the donor either in the presence of the witnesses or otherwise made a public statement that he gifted the property in favour of the donee and that he divested himself of the ownership of the property by delivering such possession as the property is capable of to the donee who accepted the gift. A declaration cannot be made unilaterally without making a public statement of the gift.
35. Admittedly, in the case on hand, the plaintiff society has failed to produce any record to show that the deceased defendant Hyder Ali made a public statement that he had gifted the suit properties in favour of the plaintiff society. But, the first appellate Court wrongly understood and observed that from the oral and documentary evidence produced on the side of the plaintiff society, it was clear that the suit properties were purchased by the deceased defendant and thereafter he had gifted the same to the plaintiff society and from the date of oral gift, they were in possession and enjoyment of the suit properties.
36. As stated supra, when there was no public statement by the deceased defendant Hyder Ali that he was gifting the suit properties to the plaintiff society, the first appellate Court went wrong and came to the conclusion that the suit properties have been orally gifted by Hyder Ali. The plaintiff society cannot rely upon Ex.A40-Resolution for oral gift said to have been made by Hyder Ali for the reason that the same has been passed after a long time and there was suspicion over the same.
37. If we analyse the present case on hand on the aforesaid principles of Mohammedan Law, admittedly, there was no declaration of the gift by the donor Hyder Ali and also acceptance of the gift by the donee. In the written statement of the deceased defendant and in the oral evidence of D.W.1, who is the power agent of the deceased defendant, it has been specifically stated that the deceased defendant Hyder Ali never intended to orally gift (Hiba) the suit properties to the plaintiff society.
38. It is the duty of the plaintiff society to establish that there was a clear manifestation of wish of the donor Hyder Ali to part away with the suit properties and acceptance of the same by the donee. As stated earlier, at one place, the plaintiff society stated that the deceased defendant had given oral gift on 13.7.1991. In his evidence, P.W.1 stated that he had taken possession of the suit properties from the date of purchase of the suit properties by the deceased defendant. Thus, there is total contradiction on the side of the plaintiff society to prove the oral gift (Hiba) by the deceased defendant Hyder Ali. As stated supra, if really, the deceased defendant has orally gifted the suit properties to the plaintiff society in the year 1989 or 1991 as alleged, nothing prevented them from passing a Resolution about the oral gift made by the deceased defendant immediately. It is admitted by the plaintiff society that only on 1.6.1992, the Executive Committee has passed the Resolution about the oral gift made by the deceased defendant, which has not been proved by cogent evidence.
39. In its judgment, the trial Court observed that the plaintiff has not established the oral gift by the deceased defendant and subsequent taking possession of the suit property. On the other hand, the first appellate Court held that though the deceased defendant gifted the suit properties to the plaintiff on 13.7.1991, as per the Resolution dated 1.6.1992, it came to light that the deceased defendant had gifted the suit properties to the plaintiff society. Thus, the first appellate Court was not constant to hold that when the deceased defendant orally gifted (Hiba) the suit properties to the plaintiff society and whether the same has been proved by way of oral and documentary evidence. Only on the presumption, the first appellate Court held that the deceased defendant Hyder Ali orally gifted the suit properties to the plaintiff society.
40. In the case on hand, the deceased defendant had produced Exs.B5 to B9, B24, B25, B35, B38 and B39 to show that at the relevant point of time, he was in possession and enjoyment of the suit properties as an absolute owner. It is to be noted that Exs.A21 and A23 produced by the plaintiff society stood in the name of the deceased defendant Hyder Ali. According to the appellants, the kist receipt produced by the plaintiff society pertains to some other property and no revenue record has been produced to correlate the same. Since the suit has been filed by the plaintiff society seeking declaration, it is the bounden duty of the plaintiff society to prove their ownership over the suit properties by way of reliable and/or cogent revenue documents. Though the plaintiff society has produced kist receipts, they have not filed any patta in their name for the suit properties. Whereas the deceased defendant had produced Ex.B6, proceedings of the Tahsildar, Thiruvadanai, which would show that the patta for the suit properties stands in the name of the deceased defendant Hyder Ali. During trial, on the side of the deceased defendant, D.W.1 has produced Exs.B11 and B12, chitta extract to show that the suit properties still stand in the name of Hyder Ali. To rebut the same, the plaintiff society has not marked any documents.
41. It was the case of the deceased defendant before the trial Court that the Secretary of the plaintiff society viz., Adul Rawoof Nisthar had sold the society properties and in this regard, no Resolution was passed empowering him to sell the society properties. In his evidence, P.W.3 admits that they sold the properties belong to the plaintiff society and the sale was effected after filing of the suit. As rightly held by the trial Court, when the plaintiff alleges that the suit properties were given by way of oral gift for establishment of educational Institution, what made the plaintiff society to sell the other properties to third parties without there being any Resolution to that effect. There is no proper explanation forthcoming from the side of the plaintiff society. Moreover, the plaintiff society has not produced any document to show that the sale proceeds have been accounted in the annual statement and also not produced any document to show that the same has been intimated to the Registrar of Societies. As rightly held by the trial Court, though the plaintiff society has produced number of documents, the same were not connected to the issue in dispute.
42. It is reiterated that as per the settled proposition of law, qua oral gift (Hiba) of the immovable property, there should be a declaration of gift and acceptance and delivery of possession. There should be a clear manifestation of the wish to give on the part of the donor and acceptance of the donee and taking possession of the subject matter of the suit. In this case, as stated supra, nothing has been produced by the plaintiff society to show that there was clear manifestation of the wish to give the suit properties by the deceased defendant Hyder Ali in favour of the plaintiff society. All the revenue records namely patta, chitta and patta proceedings were in the name of the deceased defendant Hyder Ali.
43. In the absence of proof that the deceased defendant Hyder Ali orally gifted the suit properties to the plaintiff society, the theory of oral gift (Hiba) as alleged by the plaintiff society has not been proved by the plaintiff society by preponderance of evidence. The alleged possession of the suit properties by the plaintiff society has also not been proved.
44. It is the duty of the plaintiff to prove its case and they cannot take advantage on the loop holes in the case of the defendant. The burden of proof lies on a person who obtained title by way of oral gift (Hiba) to prove the same. The said view is fortified by a decision of the Hon'ble Supreme Court in Kamakshi Builders v. Ambedkar Educational Society, (2007) 12 SCC 27. Taking into consideration of the evidence on both sides and the documents produced by both sides, I am of the view that the plaintiff society has not established its title over the suit properties in the manner they pleaded. Therefore, the plaintiff society is not entitled to the relief of declaration and the consequential permanent injunction as prayer for. Thus, the trial Court was right in dismissing the suit holding that the plaintiff society has failed to prove its case. Only on the presumption, the first appellate Court reversed the findings of the trial Court, which cannot be endorsed by the second appellate Court in the absence of cogent evidence.
45. For the foregoing reasons, I am of the view that there is no satisfactory evidence in proof of oral gift (Hiba) and declaratory affidavit and/or public statement by the deceased defendant Hyder Ali. There is also no written proof of acceptance of oral gift (Hiba) and delivery of possession of the suit properties. Thus, the theory of oral gift (Hiba) has not been proved by the plaintiff society and also the alleged possession in accordance with law. Therefore, in the absence of material evidence, the first appellate Court was not right in setting aside the judgment of the trial Court.
46. In the result, the Second Appeal is allowed and the judgment and decree of the first appellate Court in A.S.No.2 of 2017, date 26.4.2018 is set aside and the judgment and decree of the trial Court is restored. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Principal District Judge, Ramanathapuram.
2.The Sub-Judge, Ramanathapuram.
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