Himachal Pradesh High Court
Ms. Rashida Begum vs Ms. Phulan Alias Shakuran Begum on 30 May, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 551 of 2002 .
Judgment reserved on: 29.4.2019 Date of decision:30.05.2019.
Ms. Rashida Begum ....Appellant/Defendant.
Versus Ms. Phulan alias Shakuran Begum ....Respondent/Plaintiff.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes.
For the Appellant : Mr. Bhupender Gupta, Senior Adv.
with Ms. Poonam Gehlot, Advocate.
For the Respondent : Mr. G.D. Verma, Senior Advocate, with Mr. B.C. Verma, Advocate.
Tarlok Singh Chauhan, Judge The defendant is the appellant who aggrieved by the judgment and decree of reversal as passed by learned first Appellate Court, has filed the instant appeal.
The parties shall be referred to as the 'plaintiffs' and the 'defendant'.
2. The brief facts of the case are that plaintiff No.1 Phulan alias Shakuran Begum and the defendant Rashida Begum were the 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 2 daughters of plaintiff No.2 Karam Din, who was lessee of plot No.77-A comprised in Khasra No. 532 Khewat/Khatoni No. 18 min/381, situated .
in Sector 6-A Up-Muhal Main Market, Bilaspur. He constructed a house over this plot. Both the daughters were living in the same building. The dispute in the instant appeal relates to two rooms on the first floor of the building shown as 'ABCD' in red in the map appended with the suit in which the defendant had been living for the last about 28-30 years prior to filing of the suit. According to the plaintiff, the defendant was given these two rooms for her residence temporarily and thus her possession was permissive. Plaintiff No.2 applied to the Deputy Commissioner, Bilaspur as required under the rules for according permission to transfer the plot and the house built thereon in favour of plaintiff No.1. Even though the defendant raised objections before the Deputy Commissioner, however, the same were repelled and the permission was granted to plaintiff No.2 to transfer the plot and the building existing thereon by gift in favour of plaintiff No.1 with further direction that the plaintiff shall take regular proceedings in the civil court for the eviction of the defendant from the premises in her occupation. After obtaining this permission, plaintiff No.2 executed a gift of the plot and the house existing thereon in favour of plaintiff No.1 on 29.5.1990 and this gift was duly registered. It is averred that plaintiff No.1 was put in possession of the plot and the house by plaintiff No.2 ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 3 except for the two rooms which were coming in the possession of the defendant and for that the plaintiff No.2 gave symbolic possession to .
plaintiff No.1. Since the defendant failed to vacate these two rooms despite being permissive possession, therefore, the instant suit came to be filed by the plaintiffs for possession claiming therein that the defendant's possession over these two rooms was unauthorised and illegal.
3. The defendant resisted and contested the suit mainly on the ground that plaintiff No.2 obtained the permission for the transfer of the plot and the house without any legal right and thus the permission granted by the Deputy Commissioner was illegal, wrong and without jurisdiction and thus the transfer on the basis of such permission was void and did not confer any right, title or interest on plaintiff No.1. It was also asserted that the alleged gift was without the delivery of possession and without the acceptance of the gift by plaintiff No.1 and thus this gift was not valid and consequently no right, title or interest had been transferred in favour of plaintiff No.1 on the basis of the alleged gift. It was also asserted that plaintiff No.2 being an old man wanted to divide this property alongwith plot between two daughters and for that purpose he called the defendant to reside with him in the house and gave two rooms for her residence in the first floor. It was further averred that on 20.7.1976 the plaintiff had tried to ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 4 dispossess the defendant from these premises but in spite of this attempt, the defendant did not vacate the premises by asserting her .
title of ownership over the same and since her possession had been coming as continuous, peaceful and without any interference and to the knowledge of plaintiff No.2, thus she had become owner (lessee) of these premises on 20.7.1988 and plaintiff No.2 having lost his right to get the possession back has no locus standi to file the instant suit. It was also averred that the defendant had spent about Rs.40,000/- on the development and repair of these premises and thus at this late stage the plaintiffs were estopped by their acts and conduct to get the possession of these premises. Apart from that, other objections qua limitation, bar of jurisdiction, non-joinder and mis-joinder of parties were also raised.
4. On the basis of the pleadings of the parties, the learned trial Court on 3.12.1991, framed the following issues:
1. Whether the plaintiffs are entitled to the possession of two rooms on the first floor of house situate in plot No.77-A as alleged? OPP
2. Whether the suit is not maintainable? OPD
3. Whether the State of H.P. is necessary party? OPD
4. Whether the plaintiff No.1 has no right, title and interest in the suit land as alleged? OPD
5. Whether the alleged gift is void as alleged? OPD
6. Whether the permission granted by the Deputy Commissioner for transfer of the plot is illegal and void? OPD ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 5
7. Whether the plaintiffs are estopped to file the present suit by their act and conduct? OPD
8. Whether the plaintiffs are barred from getting the possession .
on the principle of acquiescence?OPD
9. Whether the suit is time barred? OPD
10. Whether the civil court has no jurisdiction to entertain and try the suit? OPD
11. Whether the suit is bad for mis-joinder of plaintiff No.1? OPD
12. Whether the suit is liable to be stayed as per the provisions of Section 10 CPC as alleged? OPD
13. Whether the defendant has acquired title to the two disputed rooms by way of adverse possession? OPD
14. Relief.
5. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit on 6.6.1994, constraining the respondent/plaintiff to file an appeal as the plaintiff No.2 had died. The appeal came to be allowed by the learned first Appellate Court vide judgment and decree dated 7.10.2002, constraining the appellant/defendant to file the instant appeal before this Court.
6. On 28.4.2003 the appeal came to be admitted on the following substantial questions of law:
1. Whether the lower Appellate Court has committed grave procedural error in law in not disposing of the application under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence.
2. Whether the lower Appellate Court has misunderstood, misquoted and misapplied the Rules of Mohammedan Law while appreciating the question of validity of the alleged Gift set up by the plaintiff as the foundation of her title? Have not the provisions of Transfer of Property Act, which do not effect the Rules of Mohammedan Law ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 6 been ignored from consideration thereby resulting in wrong recording of findings by the lower Appellate Court?
3. Whether the lower Appellate Court has illegally exercised the .
jurisdiction in allowing the application for deleting the name of plaintiff No.2 Shri Karam Din, before the lower Appellate Court, when the plaintiff- respondent claimed the exclusive title to his estate by virtue of Will? Was not it incumbent for the lower Appellate Court to have examined the validity of the alleged Will as envisaged under the Rules of Mohammedan Law?
I have heard learned counsel for the parties and have gone through the records of the case carefully.
Substantial questions of law No.1 to 3:
Since all these questions are intrinsically interlinked and interconnected, therefore, they are taken up together for consideration and are being disposed of by way of a common reason.
7. It is not in dispute that the application filed by the plaintiff/respondent for leading additional evidence was under Order 41 Rule 27 of CPC remained undecided before the learned first Appellate Court. However, it is relevant to note that while the appeal was pending adjudication before this Court, the plaintiff/respondent filed an application under Section 151 of CPC with a prayer that the application filed by her under Order 41 Rule 27 of CPC before the learned first Appellate Court may be considered as having not been pressed before him vide CMP No. 8983 of 2015 and the said application was ordered to be heard alongwith the appeal. In the ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 7 application, it is averred that during the pendency of appeal, plaintiff No.2 Karam Din, the father of plaintiff No.1 died on 8.10.1994 and .
thereafter plaintiff No.1 filed an application for deletion of his name on 12.12.1994. Reply was filed to this application by the defendant on 3.1.1996 and thereafter issues were framed on 7.8.1996 as to whether the applicant(plaintiff No.1) is the only legal representative of the deceased Karam Din, plaintiff No.2. However, this application was allowed by the learned District Judge on 17.5.1997 because the learned counsel representing the respondent/defendant made a statement that he had no objection if the application filed for deletion of the name of Karam Din was allowed.
8. As regards, the application under Order 41 Rule 27 CPC for production of certain documents, including plaint in other civil suit titled Rashida vs. Shakuran i.e. C.S. No.25/1 alongwith copy of spot inspection report dated 6.4.1991 prepared by the Senior Sub Judge, Bilaspur. This application was contested by the defendant/respondent, however, no order came to be passed on the same. Therefore, the application should be deemed to have not been pressed before the learned District Judge at the time of hearing before him and, therefore, the ground that the learned District Judge has failed to decide the application is not available to the defendant/appellant.
::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 89. The defendant has contested this application by filing reply wherein it was averred that the plaintiff is trying to mislead this .
Court as she has filed an application in the court of learned District Judge, Bilaspur under the provisions of Order 22 Rule 3 of CPC wherein it was specifically averred that Sh. Karam Din aforesaid had executed a Will in respect of his all immovable and moveable properties in favour of the plaintiff and she being the only legal representative of deceased was required to be brought on record. On the basis of such assertion, the respondent/plaintiff claimed that she had been already a party to the appeal, as such, the name of Karam Din, may be deleted. This application was contested by the defendant wherein it was averred that Karam Din was not competent to execute any Will and therefore, the plaintiff No.1 and the defendant both succeeded the property of Karam Din in equal shares. Thereafter, the appeal was fixed for the evidence of respondent/plaintiff to prove the Will. However, learned District Judge vide order dated 17.5.1997 observed that the question of the Will could not be decided in the appeal as Karam Din was the plaintiff in the suit which was dismissed by the learned trial Court, hence the ordered the deletion of the name of Karam Din from the array of the parties. No decision was rendered on the Will as such, it is not proper for the respondent to allege that the application was allowed without objection from the ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 9 appellant/defendant. It is averred that the facts narrated in the application are not correct as in this application dated 10.3.2001, it is .
clearly mentioned in para-3 that the statement of the respondent was necessary regarding the acceptance of the Gift Deed on the basis of which she filed the suit. A prayer was made to permit the respondent to enter in the witness box to depose about the acceptance of the Gift Deed. Besides, making such prayer, the copy of plaint of previous suit and spot inspection note were also sought to be proved by way of additional evidence. It is apparent from the judicial record that the learned District Judge did not decide such application. It is emphatically denied that the said application was not pressed by the respondent before the learned first Appellate Court as neither any statement is available on the record nor any order to this effect has been passed by the learned first Appellate Court.
10. Plaintiff No.1 has thereafter filed rejoinder to the application wherein the corresponding paras made in the application have been reiterated and re-affirmed and it is once again averred that the application filed by the applicant for leading additional evidence under Order 41 Rule 27 of CPC was not pressed during the pendency of the suit.
11. I have gone through the entire record of the learned first Appellate Court and find that there is neither any order disposing of ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 10 the application for additional evidence nor is any statement of plaintiff No.1 to the effect that she does not press the application for .
permission to lead additional evidence. Therefore, under no circumstances, can it be said that the application filed by the plaintiff was rejected by the learned first Appellate Court. There is no provision of law whereby the application for leading additional evidence if not decided can be considered to have not been pressed before the concerned Court until and unless there is some specific order to this effect.
12. Now, the moot question is whether the present application can be permitted to be withdrawn by the plaintiff at this stage. For deciding this question, one will have to go through the contents of the application, though in case any valuable right has been accrued to the opposite party because filing of such application, the same cannot be taken away by this Court.
13. In this background, it would be relevant to note that in the application filed by plaintiff No.1 for leading additional evidence, it has been specifically stated in paragraphs 3 and 4 as under:
"3. The applicant who is illiterate lady had no knowledge of law that her statement regarding the acceptance of Gift Deed was essential in the case and the counsel of the applicant also did not advise her to enter in the witness box in order to depose about the acceptance of Gift Deed.
4. The respondent had also filed the civil suit regarding the stair case adjoining to the house in question wherein the respondent ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 11 admitted the possession of the applicant in the gifted property in the plaint except two rooms and this evidence was also essential to adjudicate the matter in question. Copy of the plaint is attached .
herewith."
14. This application was contested by the defendant by filing reply wherein the aforesaid paragraphs have been replied in the following manner:
"3. Para No. 3 is wrong, hence denied. The applicant is not an illiterate but a litigant lady and who is appearing before the Hon'ble Courts for the last about 20 years and has managed to obtain many documents from her father against his Will and the question of Gift Deed and its acceptance cannot be reopened now.
4. Para No.4 of the application is wrong, hence denied. This fact was also very much in the knowledge of the applicant."
15. Having perused the paragraphs No.3 and 4 of the aforesaid application, it becomes absolutely clear that even the plaintiff was well aware of the fact that the alleged Gift in question was required to be accepted before the same could be considered to be legal one and it is for this precise reason that she moved the aforesaid application. In such circumstances, the defendant cannot be permitted to withdraw this application or claim that the same was deemed to have been dismissed before the learned first Appellate Court as the same remained undecided as valuable right has accrued in favour of the defendant to question the legality of the Gift Deed.
::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 1216. This question assumes greater relevance in view of the fact that at an earlier occasion, it was the plaintiff No.1 herself who .
vide application dated 12.12.1994 under order 22 Rule 3 CPC for deleting the name of Karam Din, appellant No.2 from the array of the appeal as he was stated to have died during the pendency of the appeal on 8.10.1994. Notably, a specific averment was made in para-3 of the application to the effect that Karam Din had executed a Will in respect of his property all moveable and immovable in favour of the applicant, who was the only legal representative of deceased Karam Din and since there was no other legal representative, therefore, no L.R. is required to be brought on record of the deceased as is clear from para-3 of the application, which reads as under:-
"3. That Sh. Karam Din has executed a Will in respect of his property all moveable and immovable in favour of applicant, therefore, the applicant is the only legal representative of the deceased appellant Sh. Karam Din and there is no other L.R. of the deceased and as such, no L.R. is required to be brought on record of the deceased as the applicant/appellant No.1, who is the only L.R. of the deceased according the Will executed by the deceased is already on record, therefore, the name of the deceased Karam Din deserves to be deleted from the array of the appeal."
17. At this stage, I may notice that the specific finding recorded by learned Trial Court was to the effect that Karam Din, the donor, had not relinquished his entire ownership and dominion over the gifted property and, therefore, had no locus standi to file the suit.
::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 13Even though this finding has been set aside by the learned first Appellate Court on the ground that Mohammedan law permitted gift .
without delivery of possession and mere fact that Karam Din is owner of the property in dispute, even after the execution of the Will, was of no avail, since Karam Din was not keeping good health.
18. Now, the moot question is whether the plaintiff/respondent Phulan alias Shakuran Begum has become the owner of the property by virtue of gift alleged to have been executed in her favour or by virtue of Will. In case, it is by Will, then, obviously Karam Din could not have made a Will of his entire property during his life time but only 1/3rd could have been bequeathed by Will, as rightly observed by the learned first Appellate Court in para 16-A of the judgment, which reads thus:-
"16-A I find myself unable to agree with this submission. A man may lawfully make a gift of his property to another during his life time, or he may give it away to someone after his death by Will. The first is called a disposition inter vivos and the second a testamentary disposition. Mahomedan Law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third of the estate. Mahomedan Law allows a man to give away the whole of his property during his life time, but only one third of it can be bequeathed by Will."
19. The observations made by the learned first Appellate Court is in tune with the observations made by the Hon'ble Supreme ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 14 Court in Abdul Rahim vs. Sk. Abdul Zabar (2009) 6 SCC 160, wherein it was held as under:-
.
"15. We may notice the definition of gift as contained in various textbooks. In Mulla's Principles of Mahomedan Law the 'hiba' is defined as a transfer of property made immediately without any exchange by one person to another and accepted by or on behalf of latter. A.A.A. Fyzee in his Outlines of Muhammadan Law defined 'gift' in the following terms:
'A MAN may lawfully made a gift of his property to another during his lifetime; or he may give it away to someone after his death by will. The first is called a disposition inter vivos; the second, a testamentary disposition. Muhammadan law permits both kinds of transfers; but while a disposition inter vivos is unfettered as to quantum, a testamentary disposition is limited to one-third of the net estate. Muhammadan law allows a man to give away the whole of his property during his lifetime; but only one-third of it can be bequeathed by will.' "
20. Now, it would be necessary to refer to certain provisions from the Principles of Mohammedan Law by Sir Dinshaw Fardunji Mulla, which are as under:-
Section 118. Limit of testamentary power. A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator.
Section 148. Relinquishment by donor of ownership and dominion. It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 15
Section 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 Section 150. If these conditions are complied with, the gift is complete.
Section 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 vs. Hashim Ali (1916 43 I.A. 212. 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.
Section 152. Delivery of possession of immovable property (1) Where donor is in possession- A gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession.
21. In Maqbool Alam Khan vs. Mst. Khodaija and others AIR 1966 SCC 1194, the Hon'ble Supreme Court categorically laid down that the three pillars of a valid gift under Muhammaden law are declaration, acceptance and delivery of possession. It is further evident that there can be a valid gift of property in the possession of lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. It is lastly held that the donor may lawfully make a gift of the property in the possession of the trespasser and such a gift is valid, provided the donor either obtains and gives possession of the property to the donee ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 16 or does all that he can to put it within the powers of the donee to obtain possession. Therefore, if apart from making a declaration, the .
donor does nothing else, the gift is invalid.
22. In this background, it would be relevant to reproduce para-8 of the judgment, which reads as under:-
"But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If, apart from making a declaration, the donor does nothing else, the gift is invalid. In Macnaghten's Muhammadan Law, Precedents of Gifts, Case No. VI the question was:
"A person executed a deed of gift in favour of his nephew, conferring upon him the proprietary right to certain lands, of which he (the donor) was not in possession, but to recover which he had brought an action, then pending, against his wife..... About a month after executing the deed, the donor died, and the donee, in virtue of the gift, lays claim to the litigated property. Under these circumstances is his claim, under the deed, allowable?", and the answer was that the gift was null and the claim of the donee was inadmissible. The precedent covers the present case.
Najma did nothing after the alleged declaration. She did not even file a petition in Title Suit No. 127 of 1939 mentioning the gift and asking for the substitution of the appellant in her place. Had she filed such a petition and submitted to an order of substitution, she would have placed it within the power of the appellant to obtain possession of the property; but she did nothing. Nor did the appellant obtain possession of the property during her lifetime with her consent. The gift is, therefore, invalid."::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 17
23. What will be the essentials of a valid gift was a subject matter of case title Hafeeza Bibi and others vs. Shaikh Farid (dead) .
By Lrs. And others (2011) 5 SCC 654, wherein it was held that there were three essentials of a valid gift under the Mohammedan law, namely (i) declaration of gift by donor; (ii) acceptance of gift by donee;
(iii) the delivery of possession.
24. It is pertinent to mention the relevant observations as contained in paras 24 to 29 of the judgment, which read as under:-
24. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan 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.
25. 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.
26. Mulla, Principles of Mahomedan Law (19th Edition), Page 120, states the legal position in the following words :::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 18
"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 Mohammedan 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."
27. In our opinion, merely because the gift is reduced to writing by a Mohammedan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Mohammedan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammedan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammedan Law.
28. In considering what is the Mohammedan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani1 ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 19 stated that when the old and authoritative texts of Mohammedan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any .
Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.
29. Section 129 of T.P. Act preserves the rule of Mohammedan Law and excludes the applicability of Section 123 of T.P. Act to a gift of an immovable property by a Mohammedan We find ourselves in express agreement with the statement of law reproduced above from Mulla, Principles of Mohammedan Law (19th Edition), page 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.
25. Similar reiteration of law can be found in a very recent judgment of the Hon'ble Supreme Court in Jamila Begum (Dead) through Legal Representatives vs. Shami Mohd. (Dead) through Legal Representatives and Anr. (2019) 2 SCC 727, wherein it was observed as under:-
"23. Under the Mohammedan law, no doubt, making oral gift is permissible. The conditions for making valid oral gift under the Mohammedan law are: (I) there should be wish or intention on the part of the donor to gift; (ii) acceptance by the donee and (iii) taking possession of the subject-matter of the gift by the donee. The essentials of a valid and complete gift under Mohammedan law have been succinctly laid down in Abdul Rahim v. Sk. Abdul Zabar (2009) 6 SCC 160, as under:-
"13. The conditions to make a valid and complete gift under the Mohammedan law are as under:-::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 20
(a) The donor should be sane and major and must be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the time of hiba.
.
(c) If the thing gifted is divisible, it should be separated and made distinct.
(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things not gifted i.e. should be free from things which have not been gifted.
(f) The thing gifted should come in the possession of the donee himself, or of his representative, guardian or executor.
14. It is also well settled that if by reason of a valid gift the thing gifted has gone out of the donee's ownership, the same cannot be revoked. The donor may lawfully make a gift of a property in the possession of a lessee or a mortgagee. For effecting a valid gift, the deliver of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissible in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession."
26. Thus, what can be deduced from the aforesaid discussion is that the learned Lower Appellate Court was bound to have decided the application preferred by the plaintiff under Order 41 Rule 27 of the CPC and having failed to do so, the same cannot be deemed to have been not pressed, as contended by the learned by the learned counsel for the respondent.
27. Apart from that, even if the respondent does not want to press the application, even then the respondent is bound by the contents thereof and would be estopped from alleging the contrary.
::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 21Estoppel, then may itself be the foundation of a right as against the person estopped, and indeed if it was not so it is difficult to see what .
protection the principle of estoppel can afford to the principle by whom it may be invoked or what disability it can create in the person against whom it operates, in case effecting rights. The rights which involved the estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights.
28. In view of the aforesaid discussion, substantial question of law No. 1 is answered by concluding that the learned lower Appellate Court has committed the grave procedural error in law in not disposing of application under order 41 Rule 27 CPC for leading additional evidence. This question is also answered by concluding that the defendant cannot be permitted to withdraw this application or claim the same was deemed to have been dismissed before the learned first Appellate Court as the same remained undecided as the valuable right had already accrued in favour of the defendant to question the legality of the gift. Whereas question No. 2 is answered by holding that the learned lower Appellate Court has misunderstood/misquoted and mis-applied the Rules of Mohammedan law while appreciating the question of validity of the alleged gift set up by the plaintiff as the foundation of the title. And likewise question No. 3 is also answered by concluding that the learned lower Appellate Court illegally exercised ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP 22 the jurisdiction in allowing the application for deleting the name of plaintiff No. 2 Karam Din, especially, when the plaintiff/respondent .
claimed exclusive title to his estate by virtue of Will, which in no event could have exceeded 1/3rd of the share.
29. The appeal is accordingly allowed and the judgment and decree passed by the learned first Appellate Court is set aside and that of the learned Trial Court is affirmed. Pending application, if any, also stands disposed of.
Tarlok Singh Chauhan) 30th May, 2019. Judge (GR/Sanjeev) ::: Downloaded on - 31/05/2019 00:15:29 :::HCHP