Madras High Court
Mohammed Hussain vs Ahammed Jainool Arif on 26 February, 2010
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 25.10.2018
DELIVERED ON : 02.11.2018
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
S.A.(MD)No. 196 of 2011
Mohammed Hussain .. Appellant
Vs.
1.Ahammed Jainool Arif
2.Parijatham Kanagaraj .. Respondents
PRAYER :Second Appeal is filed under Section 100 of Civil Procedure
Code, against the Judgment and Decree in A.S. No.230 of 2006 on the
file of I Additional District Court, Tiruchirappalli, dated 26.02.2010
confirming the Judgment and Decree in O.S.No.268 of 1999 dated
08.09.2006 on the file of the Principal Subordinate Court, Tiruchirappalli.
For Appellant : Mrs.N.Krishnaveni,
Senior Counsel
For M/s.P.Thiagarajan
For Respondents : Mr.Ajmal Khan,
Senior Counsel
For M/s.Ajmal Associates
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http://www.judis.nic.in
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JUDGMENT
This Second appeal had been filed by the plaintiff in O.S.No.268 of 1999 on the file of the Principal Subordinate Court, Tiruchirappalli.
2.The plaintiff in O.S.No.268 of 1999 on the file of the learned Principal Subordinate Judge, Tiruchirappalli is the Appellant herein. O.S.No.268 of 1999 had been filed by the plaintiff Mohammed Hussain against Ahammed Jainool Arif and Parijatham Kanagaraj, seeking a Judgment and decree for declaration of title of the suit property and for consequential permanent injunction restraining the defendants from interfering with peaceful possession.
3.This suit came up for consideration before the learned Principal Subordinate Judge, Tiruchirappalli, who, by judgment and decree dated 08.09.2006, dismissed the suit. Challenging that judgment, the plaintiff had filed 1st appeal. A.S.No.230 of 2006 came up for consideration before the learned I Additional District Judge, Tiruchirappalli. By judgment and decree dated 26.02.2010, the appeal was dismissed. Challenging that judgment, the plaintiff had filed the present 2nd appeal.
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4.This second appeal was admitted on the following substantial questions of law :-
1.Whether the alleged Hiba effected on 29.01.1991 by the power of attorney is valid in law ?
2.Whether the appellant is in possession of the suit property in terms of the alleged Hiba, dated 29.01.1991 ?
3. Whether the appellant is entitled to the relief sought for in the appeal ?
5.Subsequently, at the instance of both the learned Senior Counsels, during the course of hearing, the following additional substantial question of law has been framed :
1. Whether the alleged oral Hiba effected on 29.01.1991 satisfied the ingredients for a valid Hiba in accordance with Mohammedan Law ?
6. O.S.No.260 of 1999 (Principal Subordinate Court, Tiruchirappalli) The suit had been filed by plaintiff, seeking declaration of title and permanent injunction with respect to the suit property, which is vacant house site in Survey Nos.29/1, 29/2, 29/4 in Kottampatti Village, Subramaniyapuram, Tiruchirappalli, measuring 5415 Square Feet. According to the plaintiff, the suit property originally belonged to http://www.judis.nic.in 4 Mohammed Syed Fathima Nachi, who had purchased it by sale deed dated 30.12.1970. Subsequently, she sold it to the 1st defendant, Ahammed Jainoor Arif, by sale deed dated 07.02.1983. The 1st defendant had executed a power of attorney in favour of K.A.Latheef, with a right to sell or make any encumbrance and gift the property. The power of attorney was also registered. The plaintiff is the brother of the mother of the 1st defendant. He had rendered assistance to her and also to the 1st defendant and also educated him. Consequently, it is stated that the 1st defendant effected a oral gift through the power of attorney agent complying with all requirements of Mohammedan Law and perfecting the gift with delivery of possession and also by delivery of title deeds to the property. The plaintiff was also in peaceful possession of the property. The oral gift was effected on 29.01.1991. It was recorded by a memorandum of gift deed dated 11.02.1992. It was notarized by a notary public at Chennai. According to the plaintiff all the conditions of Mohammedan Law relating to Hiba had been complied with. The plaintiff therefore, claimed to be absolute owner of the said property. He claimed to be in possession from the date of Hiba, dated 29.01.1991. It was stated that the defendants attempted to interfere with his peaceful possession. Under these circumstances, seeking a decree of declaration of title and injunction to protect his possession, the suit had been filed.
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7. The 1st defendant filed written statement. In the written statement, the 1st defendant stated that he had purchased the suit property from Mohammed Syed Fathima Nachi. He had also mortgaged the property and discharged the mortgage. He was in possession and enjoyment of the suit property. He sold the suit property through power of attorney agent Rajesh on 24.10.1996 to the 2nd defendant for valuable consideration. He admitted that he had executed a power of attorney on 25.08.1987 in favour of K.A.Latheef. He also stated that the title deeds of the property was given to the said Latheef. However, after the death of K.A.Latheef, the title deeds could not be traced and his legal heirs could not be identify them. It was stated that the power of attorney was executed for the purpose of selling the property for valuable consideration. The 1st defendant denied that out of love and affection towards the plaintiff he had made an oral gift on 29.01.1991 through his power of attorney K.A.Latheef. He denied that the power of attorney recorded a memorandum of Hiba in favour of the plaintiff. He also denied that the plaintiff was in possession. He claimed that according to Mohammedan Law, a property cannot be gifted through a power of attorney agent. It was stated that the relationship between the 1st defendant and the plaintiff was strained because of business disputes. The 1st defendant claimed that the averments relating to the Hiba are false and created. He claimed that the suit should be dismissed. http://www.judis.nic.in 6
8. The 2nd defendant filed written statement. It was stated that the power of attorney executed by the 1st defendant in favour of K.A.Latheef, was revoked by the registered Power of attorney dated 24.10.1996 executed by the 1st defendant in favour of Rajesh. It was stated that the 2nd defendant purchased the property through the power of attorney agent Rajesh, by sale deed dated 24.10.1996 for valuable consideration. The 2nd defendant claimed that she was in possession of the suit property. She had constructed a compound wall. It was stated that the plaintiff attempted to grab the property. The 2nd defendant denied the averments relating to Hiba and stated that a power of attorney agent cannot gift the property. The 2nd defendant also claimed that the suit should be dismissed.
9. On the basis of the rival pleadings, the learned Principal Subordinate Judge, Tiruchirappalli, framed the following issues for consideration :
1.Whether the plaintiff was entitled for declaration of title ?
2.Whether the plaintiff was entitled to the relief of permanent injunction ?
3.To what relief the plaintiff is entitled to ?
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10.During trial, the plaintiff examined himself as P.W.1. He also examined three other witnesses Radhakrishnan, Nathar Ali, Ramanathan as P.W.2 to P.W.4. The 1st defendant examined himsel as D.W.1. He also examined three other witnesses Rangamani, Mohammed Mustafa and Ahammed Asraf as D.W.2 to D.W.4. The plaintiff marked Exs.A.1 to A.8. Ex.A.2 is the sale deed in favour of the 1st defendant dated 07.02.1983. Ex.A.3 is the power of attorney dated 25.08.1987 in favour of KJ.A.Latiff. Ex.A.4 is the memorandum of Hiba dated 11.02.1992.
11.On the side of the defendants Exs.B.1 to Exs.B.11 were marked. Ex.B.1 is the ration card of the 1st defendant for the period of 1998 to 2003. Ex.B.4 is the ration card of the 1st defendant for the period of 2005 to 2009. Ex.B.5 is the property tax receipt. Ex.B.7 is the sale deed dated 24.10.1996 in favour of the 2nd defendant. During trial, Ex.X.1 and Ex.X.2 were also marked which were said to be specimen signatures of K.A.Latheef.
12.By judgment dated 08.09.2006, the learned Subordinate Judge, Tiruchirappalli, discussed the evidence on record and held that under Muslim Law, Hiba/gift cannot be given through a power of attorney agent. The learned Judge observed that the power of attorney, http://www.judis.nic.in 8 Ex.A.3, the 1st defendant had not specifically mentioned the name of the plaintiff as the Donee. It was stated that the said Hiba in favour of the plaintiff was not a legal or a valid gift. It was also found that the plaintiff cannot get any title over the property. The learned Judge, consequently, refused to grant declaration of title in favour of the plaintiff and dismissed the suit.
13.A.S.No.230 of 2006 ( I Additional District Court, Tiruchirappalli) Challenging the dismissal of O.S.No.268 of 1999 the plaintiff filed A.S.No.230 of 2006 before the I Additional District Court, Tiruchirappalli. This appeal came up for consideration before the learned I Additional District Judge and by Judgment dated 26.02.2010, the learned Judge, re-examined the evidence on record and framed points for determination. The learned Judge found that Ex.A.3 power of attorney had not been executed for the purpose of gifting the property. It was also found that the gift deed in Ex.A.4 cannot be accepted as a legally enforceable document and the learned Judge also dismissed the appeal. This judgment had been attacked by Mrs.N.Krishnaveni, learned Senior Counsel, for M/s.P.Thiagarajan, appearing for the appellant, who claimed that the 1st appellate Court had omitted to consider the earlier oral gift. It was also pointed out that there was also http://www.judis.nic.in 9 no discussion regarding the documents filed. The learned Senior Counsel insisted that the judgment under appeal has to be interfered with.
14.S.A.No.1862 of 2000
This Second appeal had been filed by the plaintiff who suffered an adverse decree in both the Courts below. This second appeal has been admitted on the following substantial questions of law :
1.Whether the alleged Hiba effected on 29.01.1991 by the power of attorney is valid in law ?
2.Whether the appellant is in possession of the suit property in terms of the alleged Hiba, dated 29.01.1991 ?
3. Whether the appellant is entitled to the relief sought for in the appeal ?
15.Subsequently, during the course of arguments, at the instance of both the counsels, the following additional substantial question of law has been framed :
1. Whether the alleged oral Hiba effected on 29.01.1991 satisfied the ingredients for a valid Hiba in accordance with Mohammedan Law ?
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16.Heard, arguments advanced by Mrs.N.Krishnaveni, learned Senior Counsel for Mr.P.Thiagarajan, learned Counsel appearing for the appellant and Mr.Ajmal Khan, learned Senior Counsel for M/s.Ajmal Associates, appearing for the respondents. The Court was also benefited by the submissions advanced by Mr.Ishtiaq Ahamed, learned Counsel who assisted Mrs.N.Krishnaveni, learned Senior Counsel.
17.For the sake of convenience, the parties will be referred to as plaintiff and defendants. The appellant is the plaintiff and the respondents are the defendants.
18.The suit property, vacant house site in survey Nos.29/1, 29/2 and 29/4 measuring 5415 square feet in Kottampatti Village, Subramaniyapuram, Tiruchirapalli, originally belonged to Mohammed Syed Fathima Nachi. She had purchased the property by sale deed dated 30.12.1970. This document had been filed as Ex.A.1. Subsequently, the 1st defendant, Ahammed Jainool Arif, had purchased the property on 07.02.1983. This document has been filed as Ex.A.2. The 1st defendant then executed a power of attorney document dated 25.08.1987 in favour of K.A.Latheef. This document had been filed as Ex.A.3. In Ex.A.3, the 1st defendant had covenanted as follows:
http://www.judis.nic.in 11 “j';fs; ,&;lk; nghy; <L. xj;jp. $hkPd;. fpiuak;. jhdk; ,d;Dk; ,ju mj;ahtrpa gj;jpu';fs; vGjpf; bfhLj;J mtw;wpy; vd; bghUl;L jh';fns ifbaGj;J bra;at[k;. rk;ge;jg;gl;l hp$p!;jh; Mgp!pnyh my;yJ rg;?hp $p!;jh; Mgp!pnyh vdf;fhf jh';fns jh';fs; bra;J. i& gj;jpu';fisj; jh';fns vdf;fhf gjpt[ bra;J bfhLf;ft[k;. bjhiffisg; bgw;Wf; bfhs;st[k;. ,jd;K:yk;. j';fis vdJ gth; Vb$z;lhf kdg;g{h;tkha; epakpj;J. j';fSf;F ghpg{uz chpika[k;. mjpfhuKk; mspj;J ,e;j b$duy; gth; Mg; ml;lh;dp gj;jpuk; vGjpf; bfhLj;jpUf;fpd;nwd;/” It has been further provided that, “jtput[k; rl;lg;gof;Fk;. epahag;gof;Fk; vdf;fhfj; jh';fs; nkw;bfhs;Sk; midj;J fhhpa';fisa[k; ,e;j brhj;ijg; bghUj;jkl;oy;. ehnd nehpy; ,Ue;J vd; brhe;j Rjhtpy; bra;jjhf xg;g[f; bfhz;L vdJ Kgkdr; rk;kjpapy; ehsJ njjpapy; ,e;j gth; gj;jpuk; j';fSf;F vGjpf; bfhLj;jpUf;fpd;nwd;/”
19.This power of attorney is a registered document. It had been registered as document No.511 of 1987 in the Office of the Sub Registrar, Tiruchirapalli. The 1st defendant admits to the execution of this power of attorney document. It is claimed by the plaintiff that since the agent K.A.Latheef, had the power to gift the property, exercising http://www.judis.nic.in 12 such option, K.A.Latheef had executed a oral Hiba on 29.01.1991.
Subsequently, this transaction was also recorded in a memo of gift on 11.02.1992. That document had been produced as Ex.A.4. Ex.A.4 had been notarised by a notary public at Chennai. Ex.A.4 is as follows :
Memorandum of HIBA “This memorandum is recorded on this the 11th day of February 1992 (One Thousand Nine Hundred and Ninety Two) at Madras, by K.A.Latheef, Son of Gouse Mohamed, residing at No.4/106, North Street, Devipattinam, Ramanathapuram District, now come down to Madras, regarding the oral gift (Hiba) effected at Trichy on the 29th day of January 1991 by Ahamed Zainul Ariff, son of M.A.Mohamed Thamby of East Street, Kilakarai, Ramanathapuram District to Mohamed Husain son of K.S.Mohamed Abdul Khader Maricar, residing at No.3, Kasturi Ranga II Street, Madras – 600 086, through me, the Power of Attorney Agent of the said Ahamed Zainul Ariff.”
20.The plaintiff claims that this gift satisfied all the ingredients of Hiba as required under Mohammedan Law.
Mrs.N.Krishnaveni, learned Senior Counsel appearing for the plaintiff pointed out that the above extracted portion and argued that the 1st defendant was the owner of the property and he had executed a registered power of attorney in favour of K.A.Latheef. Under the power http://www.judis.nic.in 13 of attorney document, the agent was given the power to gift the property. Exercising such power the agent had orally gifted the property to the plaintiff on 29.01.1991. Subsequently, the agent had also recorded the said gift by Ex.A.4 on 11.02.1992. In Ex.A.4 it had been very clearly stated that the gift was done out of love and affection by the 1 st defendant for the plaintiff and that the plaintiff had accepted the gift and that possession has also been handed over to the plaintiff. Mrs.N.Krishnaveni, learned Senior Counsel, therefore, stated that all the ingredients of valid gift had been completed. She also pointed out that it has been stated in the plaint that the plaintiff is the maternal uncle of the 1st defendant and had helped the mother of the 1st defendant and also assisted in giving education for the 1st defendant and consequently, it is only natural that the 1st defendant would have love and affection for the plaintiff. The learned Senior Counsel stated that the gift is valid and binding and claimed that both the Courts below erred in their judgment.
21.Mr.Ajmal Khan, learned Senior Counsel appearing for the 1st defendant on the other hand contested this statement of the learned Senior Counsel for the plaintiff. According to the learned Senior Counsel, the concept of Hiba involves a declaration by donor of a gift to be given to a donee who must also accept the same and must also take possession of the gift. The learned Senior Counsel stated that a power http://www.judis.nic.in 14 of attorney cannot gift the property on behalf of the principal. Even if a property can be gifted through a agent then the donor must specify the name of the donee. The learned Senior Counsel stated that Mohammedan Law recognizes oral Hiba but the present case of Hiba be granted through a power of attorney agent cannot be termed as a valid gift.
22.I have carefully considered the rival arguments.
23.The substantial questions of law framed surround the determination of the fact whether the oral Hiba effected on 29.01.1991 is valid in law and whether it confirms to the ingredients of a valid Hiba in accordance with Mohammedan Law.
24.In Mullah Principles of Mohammedan Law, 21st edition, Hiba or gift has been defined as follows :
“S.138.Hiba or gift : A hiba or gift is “a transfer of property, made immediately, and without any exchange, “by one person to another, and accepted by or on behalf of the latter.” In the commentary, it had been further stated as follows :
“The Holy Prophet's saying is, “Exchange gifts among yourselves so that love may increase.” http://www.judis.nic.in 15
25.In B.R.Verma's commentaries on Mohammedan Law, 12th edition, gift had been defined as follows :
“Sec.201.Gifts defined.- (1) A gift is a transfer of property or right by one person to another in accordance with the provisions of this Chapter and includes-
(a) a hiba, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return (ewaz); and
(b) an ariat, the grant of some limited interest in respect of the use or usufruct of some property or right.
(2) Where a gift of any property or right is made without consideration with the object of acquiring religious merit, it is called sadaqah.” In the commentaries it had been stated as follows :
“The term “hiba”and “gift” are often indiscriminately used but the terms “hiba”is only one of the kinds of transactions which are covered by the general term “gift”. The Hedaya defines “hiba”as a transfer of property made immediately and without any exchange.
In Sharaya-ul-Islam the term “hiba” has been defined as “a contract by which the property of a substance http://www.judis.nic.in 16 (ayn) is transferred immediately and unconditionally without any exchange and free from any pious or religious purpose on the part of the donor.” It is sometimes termed as nuhulut and atteut.
Hiba is confined only to the transfer of rights of full ownership of the corpus of any property. Such a transfer by way of hiba must be immediate and not contingent or future. It must also be unconditional. Any conditions imposed in respect of corpus would be void.
But a hiba may be made not only in respect of corporal or tangible property but also incorporeal right (e.g., actionable claims, etc.) A hiba is a transfer without consideration. A gift by a Muslim in favour of his co-religionist must be under the Mohammedan law. It must be established that it was accepted by the donee. If it is a gift for consideration, that would detract from the attribute of a gift. A hiba in some forms may be made with or subject to a condition of some return (or ewaz).” In the very same book, section 208 provides as follows :
“Sec.208.Gift how made.- (1) A gift may be made -
(a) by a declaration made orally or in writing of the gift by the donor or his agent;
(b) by the acceptance of the gift expressly or impliedly by or on behalf of the donee; except in the case of a gift of a debt to the debtor or by a guardian to his http://www.judis.nic.in 17 ward; and
(c) by the delivery of possession of the subject of the gift to the donee in the manner required by Secs.209 and 210.
(2) A gift shall take effect from the date on which possession is delivered.” The differences between the commentaries in Mulla Principles of Mohammedan Law, 21st edition and B.R.Verma's commentaries on Mohammedan Law, 21st edition is that the latter recognise gift by an agent.
26.In “Principles of Muhammadan Law an essay at a complete statement of the personal law applicable to Muslims in British India” by Faiz Badruddin Tyabji, M.A., of the Middle Temple, Barrister at Law, Officiating Judge, High Court, Madras. (D.B.Taraporevala Sons, Bombay, 1913), it had been provided as follows :
(3) Agents of parties.
“365.An agent may be validly authorised by the donor to make a gift, and to transfer possession of the subject of the gift on his behalf.” It is thus seen that this commentaries has also recognized that an agent can give a gift under Mohammedan Law.
27.In “Understanding Islamic Law (Shari'a)”, by Raj Bhala, http://www.judis.nic.in 18 Rice Distinguished Professor, University of Kansas, School of Law, published by Lexis Nexis, it had been stated as follows with respect to gifts :
“In particular, a gift, or donation – called “hibah”(singular) or “hibat”(plural) in Arabic – is considered a contractual arrangement. So long as a gift involved the absolute and unconditional transfer of ownership of an object, then the giving of that gift is considered a contractual transaction.” The learned author also stated as follows:
“If Islamic Law is truly sacred, then it shall have to enjoin some types of secular bargains on religious grounds. Simply put, the starting point for Islamic Contract Law, like any other field of Islamic Law, is not secular freedom, but religious constraint. The constraint is set by God, as revealed to Muhammad and amplified by the Sunnah (tradition of the Prophet), ijma (consensus of scholars in a School, at a particular time), and quyas (analogical reasoning).” “There is only one manner in which an offer cannot be conveyed: silence. Any agreement purportedly reached through a silent offer is invalid. Normally, an offeror is expected to communicate actively via one of the aforementioned means.” http://www.judis.nic.in 19
28.In AIR 1995 Supreme Court – 1205 in the case of Mahboob Sahah Vs. Syed Ismail and others, the essential conditions for a valid gift, had been given. Paragraph No.5 as follows:
5.Under s. 147 of the Principles of Mahomedan Law by Mulla, 19th Ed., Edited by Chief Justice M.Hidayatullah, envisages that writing is not essential to the validity of a gift either of movable or ofimmovable property. Section 148 requires that 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. Under s. 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii)delivery of possession of the subject of the gift by the donor to the donee as mentioned in s.
150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only gift is complete. Section 152 envisages that 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. It would, thus, be clear that though gift by a Mohammadan is not required to be in http://www.judis.nic.in 20 writing and consequently need not be registered under the Registration Act; a gift to be complete, there should be a declaration of the gift by the donor, acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. No evidence has been adduced to establish declaration of the gift, acceptance of the gift by or on behalf of the minor or delivery of possession or taking possession or who had accepted the gift actually or constructively. Admittedly he was in possession and enjoyment of the property till it was sold to the appellant. Equally, in Mohammadan Law mother cannot act nor be appointed as property guardian of the minor. She equally cannot act as legal guardian.”
29.Section 122 of Transfer of Property Act, 1882 as follows :
“122. “Gift” defined. - “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the done, and http://www.judis.nic.in 21 accepted by or on behalf of the done.
Acceptance when to be made.- Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the done dies before acceptance, the gift is void.”
30.Section 129 of Transfer of Property Act, 1882 as follows :
“129. Saving of donations mortis causa and Muhammadan law. - Nothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law.”
31.In a Judgement of Lahore High Court in R.S.A.No.54 of 1997 in the case of Mst. Budhai Vs. Ghulam Mustafa etc, in the Lahore High Court in a Judgment delivered by Justice Amin-Ud-Din Khan, a similar case was discussed when a Gift deed was issued through power of attorney agent. In Paragraph Nos.10, 11 & 12 it was held as follows :
“10.The admitted facts are that there is a power of attorney registered on 02.10.1973, copy of which has been produced as Ex.P-1. On the basis of this power of attorney Ghulam Mustafa, the attorney transferred whole of the land owned by Choghatta, the propositus in favour of his father through gift deed registered on 04.12.1975 on the basis of said power of attorney.
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11.The basic question in this lis is that whether a person in whose favour there is a power of attorney and there is power to gift the property, can transfer the suit property through gift on his own behalf or the powers can be used just to confirm the direction of principal to transfer the property through gift and original gift is to be made by the principal himself and these powers can be used in order to complete the formalities. The second question is whether a person in whose favour there is a power of attorney to transfer the suit property through sale or gift can transfer the suit property in favour of his near relative without the specific or special permission of principal. These are the legal questions, therefore, I would like to dilate upon these questions first.
12.To gift any property to any person mainly without any consideration in shape of tangible material, is due to love and affection of donor with the donee. For dilating upon this question it is necessary that the relevant paras of Mahommedan Law by Mulla i.e. paras No. 138 and 149 are necessary to be quoted, which are as follows:
“138. Hiba or gift: A hiba or gift is “a transfer of property, made immediately, and without any exchange,” by one person to another, and accepted by or on behalf of the latter. “Hiba” means transfer of right of property in http://www.judis.nic.in 23 substance by one person to another without consideration which is a condition to be fulfilled in order to make a gift valid.”
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.” It is clear that gift is a personal action which can be performed by the owner only. Through an attorney in whose favour there are general powers of gift whether the same can be used for completion of formalities if gift is made by the owner, or the attorney can transfer the property through gift, as it is pre- condition for a valid gift, declaration of gift be by the donor. In my view, the attorney in whose favour there is a power of attorney to transfer the suit property through gift has no right to gift the property to any person on his own behalf. These powers can only be used in case the principal transfers the property through gift and only in order to complete the formalities of transfer in shape of registration of gift deed or entry of attestation of gift mutation, the powers can http://www.judis.nic.in 24 be used and the agent i.e. the attorney cannot gift the suit property on his own behalf. Furthermore, the only sentence which is referring to the Principal is that:
does not show that the principal gifted the suit property to the father of attorney and power of attorney has been used just for completion of formalities getting this gift deed registered. The language of this gift deed shows that the attorney on his own behalf is transferring the property through gift in favour of his father, which is not permissible under the law and no gift of property prior to the registration of gift deed has been claimed or proved by the donee from the original owner, i. e. the principal. The sentence noted supra taken from gift deed, which has been produced as Ex.P-2, does not show that any permission was granted to the attorney to transfer the property in favour of near relative of the agent. In this view of the matter, gift deed is nullity in the eye of law on legal premises.”
32.A combined reading of the commentaries and the provisions of Law imply that requisite conditions for a valid gift would require :
1)A Donor
2)A Donee http://www.judis.nic.in 25
3)Declaration of gift
4)Property to be gifted
5)Acceptance of the gift
6)Handing over the possession of the gift
33.A gift is given out of love and affection. In Mulla's Principles of Mohammedan Law, the saying of the Prophet has been given: “Exchange gifts among yourselves so that love may increase.” An essential ingredient for a gift is the satisfaction which the Donor gets by having gifted the property to somebody whom he feels deserves that gift. Mohammedan Law also stipulates that the conditions for a valid gift are :
1)A declaration of gift by the Donor
2)Acceptance of the gift by the Donee
3)Delivery of possession
34.Under Section 122 of the Transfer of Property Act, 1882, gift would require a Donor, a Donee and acceptance by the Donee.
From the above, it is clear that the Donor must be the owner of the property which is to be gifted. He must gift the property to a specific person called the Donee. If he is to gift the property through an agent then the Donee must be specified expressly and implicitly by the Donor. A gift is done for the personal satisfaction of the Donor and not for the http://www.judis.nic.in 26 satisfaction of the agent. A gift is made to ensure that the Donor gets immense satisfaction by the said kind act “.....so that love may increase.” In the present case in Ex.A.3 Power of attorney, which is relied on by the learned Senior Counsel for the plaintiff, even though the power of attorney document had been validly executed, the name of the Donee had not been given. A careful reading of the power of attorney document shows that the agent had been given the power to “lease, mortgage, give as a security, sell and gift” the property. As consideration for these acts, the agent was also given the authority to “bjhiffis bgw;Wf;bfhs;st[k;” which means he has the right to collect the consideration or the monetary value. In the case of lease, he has the right to collect the lease amount. If the property is kept on mortgage, he has the right to collect the mortgage amount. If the property has been provided as security, he has to collect the consideration for the same. If he sells the property, he has the right to receive the sale price. If he gifts the property, then nothing is mentioned with respect to consideration namely, love and affection. This aspect of love and affection is something personal to the principal. He alone has to privilege to specify the particular person to whom the property must be gifted so that the principal will get satisfaction out of it and “.... love may increase.” The agent cannot gift the property to anybody he prefers and then justify his http://www.judis.nic.in 27 action. The oral Hiba on 29.01.1991 had been executed to a Donee, who had not been specifically pointed out by the Donor. In all other aspects under Ex.A.3, the 1st defendant had the expectation of receiving monetary value of the transactions. For a gift of the property he cannot expect monetary value. But he would have the satisfaction that the property had been gifted to a person for whom he has love and affection. That is the element which is missing in the instant case. The object of Hiba “so that love can increase”has not been fulfilled by the property being gifted to the plaintiff. Mere ritual of a gift is not sufficient the inner purpose of the concept of Hiba must be satisfied. Consequently, I hold that the oral Hiba on 29.01.1991 does not confirm to the conditions of a valid Hiba. It is not in conformity to the essential ingredients of a valid gift under Mohammedan Law.
35.To reiterate, under Mohammedan Law, the fundamental principles of gift has given in Mulla Principles of Mohammedan Law, 12th edition is “The Holy Prophet's saying, “Exchange gifts among yourselves so that love may increase”. This can be given effect to only when a gift is made to a specific Donee. Even though the commentaries particularly, B.R.Verma's and Principles of Muhammadan Law by Gaiz Badruddin Tyabji, recognised the gift through an agent, the crucial point is that the agent must be a trusted person. The trust which an agent http://www.judis.nic.in 28 possesses is to carry out the wish of the principal. The wish of the principal can be carried out only when the donee is specifically mentioned. If that is not done so then the agent can never discharge the wish of his principal. If he still gifts the property to a third party then he can even be charged with dishonesty and betrayal of that trust.
36.In view of the above reasoning, I hold that the alleged Hiba effected on 29.01.1991 does not satisfy the ingredients of a valid Hiba. This finding would cover the substantial questions of law framed at the time of admission and the additional substantial question of law.
37.The 2nd substantial question of law is whether the appellant is in possession of the suit property. In the written statement of the 2nd defendant, it has been stated that the 2nd defendant is in possession and had also put up a compound wall. The defendants have produced Ex.B.9 dated 06.12.2003 which is the order of the Special Tahsildar, Tiruchirapalli. In the same, it is seen that the Tiruchirapalli Municipality had mutated the revenue records in the name of the 2nd defendant. Possession follows title. Once it is held that the plaintiff cannot get a relief of declaration of title on the basis of the oral Hiba set up by him naturally his suit has to fail.
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38.In the judgment of the Trial Court, a discussion had been made with respect to the signatures in Ex.X1 and Ex.X2 and the signature in Ex.A.4. However since, it is held that the oral gift does not have the necessary ingredients expected under Mohammedan Law, I am not entering into a discussion on that aspect.
39.For all the reasons stated above, the second appeal is dismissed with costs. Consequently the judgment and decree of the 1st appellate Court in A.S.No.230 of 2006 dated 26.02.2010 and the judgment and decree in O.S.No.268 of 1999 dated 08.09.2006 of the Trial Court are both confirmed.
40.The Second Appeal is dismissed with costs.
02.11.2018
Internet : Yes/No
Index : Yes/No
rm
To
1.The I Additional District Judge,
Tiruchirappalli.
http://www.judis.nic.in
30
2.The Principal Subordinate Judge,
Tiruchirappalli.
3.The Record Keeper,
VR Section,
Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 31 C.V.KARTHIKEYAN, J.
RM Pre-Delivery Judgment in S.A.(MD)No. 196 of 2011 02.11.2018 http://www.judis.nic.in