Dost Mohammad v. Saghir Ahmad — 1980 DIGILAW 712 (ALL)

JUDGMENT : S.D. Agarwala, J. These are two connected appeals arising out of two suits filed for ejectment of the Appellants from the two portions of the house in suit. The house in dispute is house No. 112(old) and house No. 282(new) situate in Mohalla Bahadurganj, in the City of Allahabad. Dost Mohammad the Appellant in second appeal No. 711 of 1974 is occupying the ground floor of the said house. Mohammad Rati, Appellant in second appeal No. 712 of 1974 is occupying the upper portion of the said house. The Suit No. 591 of 1963 was filed by Sagir Ahmad, (the Respondent in both the appeals) against Dost Mohammad for ejectment and arrears of rent. Suit No. 592 of 1963 was filed by Saghir Ahmad against Mohammad Rafi also for ejectment and arrears of rent in respect of the portion of the house occupied by him. 2. The case of the Plaintiff-Respondent was that he is the owner and landlord of the premises in suit and the Appellants are the tenants of the said premises at a monthly rent of Rs. 4/- and 10/- respectively. It was further alleged that the Appellants are defaulter in payment of rent since 1st June, 1961 and that the Plaintiff-Respondent had purchased the property in dispute along with the right to realise the arrears of rent from the previous owner. The notice of demand and termination of tenancy was served on the Appellants but they neither paid the rent nor delivered the possession and hence the suit. 3. A common defence was taken by both the Appellants. They denied their contract of tenancy. They further alleged that the vendors of the Plaintiff-Respondent were not the owners of the property in dispute. In fact the property in dispute is a waqf property and as such they were not liable for ejectment from the said house. 4. Initially the trial court by judgment dated 21th May, 1964 decreed both the suits. Against the said judgment an appeal was filed before the lower appellate court. The ground taken by the Appellants before the appellate court was that the property in dispute in which the Appellants were tenants was the waqf property and so it could not be transferred in favour of the Plaintiff-Respondent. Against the said judgment an appeal was filed before the lower appellate court. The ground taken by the Appellants before the appellate court was that the property in dispute in which the Appellants were tenants was the waqf property and so it could not be transferred in favour of the Plaintiff-Respondent. The appellate court by its judgment dated 10th February, 1965 accepted the contention of the Appellants to the effect that this was material question to be decided in the case as to whether the property in dispute was the waqf property or not and as to whether the waqf was actually acted upon or not. The appeal was, therefore, allowed and the case was remanded to the trial court for decision afresh. The trial court thereafter again decided the suits in the light of the observations made by the appellate court and again decreed both the suits on 2-6-1970. Against the said judgment again appeals were filed by the Appellants before the lower appellate court. The lower appellate court dismissed both the appeals on 1st March, 1974. Against the said judgment two appeals have been filed in this Court, second appeal No. 711 of 1974 by Dost Mohammad and second appeal No. 712 of 1974 by Mohammad Rati. 5. Since both the appeals raise common questions of fact and law and arise out of the common judgment, I am also deciding both the appeals by a common judgment. Learned Counsel for the Appellants as well as Respondent have also urged similar question in both the appeals. 6. The lower appellate court has recorded a finding of fact on various questions which arose during the pendency of the appeals. It has been found that Rajjab Ali was the owner of the entire property. After his death, two annas share went to Hafizan Bibi and 14 annas to Khatun. Khatun transferred 14 annas in favour of Hafizan her mother and thus she became the owner of all the property owned by Rajjab Ali. She executed two gift deeds on 1-2-34 one in favour of Khatoon in respect of house No. 113 which fell in two annas share. She executed another gift deed in favour of Rasool in respect of house No. 112 which fell in 14 annas share and this was the residential house. She executed two gift deeds on 1-2-34 one in favour of Khatoon in respect of house No. 113 which fell in two annas share. She executed another gift deed in favour of Rasool in respect of house No. 112 which fell in 14 annas share and this was the residential house. There was delivery of possession in favour of Rasul and, therefore, the gift in respect of house No. 112 was valid and complete and Rasool became the owner of the said property on the basis of the gift-deed. Smt. Hafizan Bibi did not remain the owner of house No. 112 and, therefore, could not execute any gift deed in favour of Khatoon by cancelling the earlier deed on 27-2-34. It was further found that house No. 112 belonged to Rasool and 113 to Khatoon Bibi. Khatoon Bibi executed a waqf deed in favour of house No. 113. There is no question of any waqf in favour of house No. 112 as it was never owned and possessed by Khatoon and as such house No. 112 was not the waqf property. House No. 112 continued to be in the ownership of Rasool and after his death Najimunnisan Bibi being the only lady left in the family got the same. She transferred the property in favour of Onkar Nath who transferred it to Gaus Mohammad and Gaus Mohammad transferred it to the Plaintiff-Respondent. As such he is the owner of house No. 112 and it is not a waqf property. 7. On a perusal of the parties case it is clear that the entire case hinges on the validity of the gift-deed dated 1-2-1934 executed by Hafizan Bibi in favour of Rasool son of her first husband. In case this gift deed is held to be valid, then the Plaintiff-Respondent has the title to the property being the transferee from Rasool. If, however, it is held that this gift-deed was invalid in law, then the Plaintiff-Respondent cannot have valid title to the property. The Learned Counsel, therefore, argued on the validity of the gift dated 1-2-1934 executed by Hafizan Bibi In favour of Rasool. 8. If, however, it is held that this gift-deed was invalid in law, then the Plaintiff-Respondent cannot have valid title to the property. The Learned Counsel, therefore, argued on the validity of the gift dated 1-2-1934 executed by Hafizan Bibi In favour of Rasool. 8. Learned Counsel for the Appellants has contended firstly that the lower appellate court has erred in relying upon a recital in the gift-deed that the possession has been delivered to the donee and in the absence of any other evidence, the lower appellate court should have held that there was no delivery of possession and as such the gift-deed dated 1-2-1934 did not give valid title to Rasool. 9. The second argument of the Learned Counsel is that in any case the gift deed dated 1-2-1934 was subsequently revoked by another deed dated 24th February, 1934 executed by Hafizan Bibi and as such no title could pass on the basis of the gift-deed dated 1-2-1934 executed by Hafizan Bibi in favour of Rasool. 10. In support of the first submission made by the Learned Counsel, the Learned Counsel has relied upon two cases of this Court. The first case relied upon by the Learned Counsel is 1972 AWR 125 Atma Ram v. Girdhari Lal. The other case relied upon by the Learned Counsel is Mst. Noor Jahan Begum Vs. Muftkhar Dad Khan and Others, AIR 1970 All 170 . 11. In outlines of Muhammadan Law by Fyzee, Fourth Edition at page 232 the learned author has observed as follows: The general principle is that possession must be handed over; to this rule there are certain qualifications and exceptions which we shall now proceed to consider. Transfer of possession is not necessary (1) where the donor and the donee reside in the same house; (2) where the gift is from the husband to the wife or vice versa; (3) where the father or the mother makes a gift to a child; (4) where a guardian makes a gift to the ward; or (5) where a gift is made to a bailee in possession; or (6) where the Fatmid law is applicable. 12. Elaborating the first exception Fyzee observed: (1) Residence in the same house. 12. Elaborating the first exception Fyzee observed: (1) Residence in the same house. Where the donor and the donee reside in the same house, the donor can complete the gift without physical transfer of possession, but there must be the unequivocal manifestation by the donor of an intention to transfer exclusive possession to the donee. A muslim lady, who had brought up her nephew as her son, executed a deed of gift, in favour of the nephew of a house in which they were both residing at the time of the gift. The donor never departed from the house physically, nor was the house formally handed over to the donee, but the property was transferred, and the rents were recovered, in his name. It was held that the gift was valid, although there was no physical delivery of possession. 13. In principle of Mohamedan Law by Mulla, Sixteenth Edition Article 152, Sub-clause (3) following proposition of law has been laid down: (3) Where donor and donee both reside in the property.--No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee or both residing at the time of the gift. In such a case the gift may be completed by some overtact by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. 14. In the instant case the lower appellate court has found that Rasool is the son of Hafizan who executed the gift-deed. It has also been found by the lower appellate court that Rasool lived with Hafizan Bibi, the donor. There is no evidence to the contrary by the Appellants, that Rasool did not live with Hafizan Bibi. In view of the law laid down above, it is clear that the actual delivery of possession is not necessary in a case where the donor and donee both reside in the house. In the circumstances in the absence of evidence of actual delivery of possession, it cannot be said that the gift-deed was not effective. In the case of Atma Ram (supra) as well as in the case of Mst. Noor Jahan Begum (supra) this Court did not consider the question involved in the present case, namely where the donor and donee both are in possession of the property. In the case of Atma Ram (supra) as well as in the case of Mst. Noor Jahan Begum (supra) this Court did not consider the question involved in the present case, namely where the donor and donee both are in possession of the property. Learned Counsel has placed specific reliance on the case of Mst. Noor Jahan Begum for the submission that recitals in the deed cannot be considered as evidence of possession. In this case the Division Bench of this Court has held as follow: Under the Mahomedan Law a recital in the gift-deed that possession had been delivered to the donee of the property gifted gives rise to a presumption only of such delivery and the presumption may be rebutted by those challenging the gift. The presumption may be rebutted by establishing that the subsequent conduct of the donor is inconsistent with the making of the gift or by demonstrating the patent improbability of what is stated by the recitals. 15. The case of Noor Jahan Begum (supra) in my opinion is of no assistance to the Appellant. This Court has clearly laid down that a recital of gift-deed that possession has been delivered to the donee gives rise to a presumption of delivery. In the instant case there is a recital in the case that possession has been delivered to Rasool. In the circumstances, on the principle laid down in this case the lower appellate court was justified in law in holding that the delivery of possession was given to Rasool in view of the recital in the gift-deed. 16. Learned Counsel has, however, urged that subsequent conduct would clearly establish that this presumption should not be drawn in this case. For the subsequent conduct the Learned Counsel has only relied on a deed dated 27th February 1934 by which the gift was revoked. Rasool was the son of Hafizan Bibi. It is therefore, quite natural that he would be living with Hafizan Bibi being her only son. If the first document was a legal document, the subsequent document is of no avail. The second document has been written in order to take away the legal effect of the gift-deed dated 1-2-1934 and therefore in my opinion, from the mere execution of the deed dated 27-2-1934 the effect of the gift-deed which was a valid document cannot be taken away in the eyes of law. The second document has been written in order to take away the legal effect of the gift-deed dated 1-2-1934 and therefore in my opinion, from the mere execution of the deed dated 27-2-1934 the effect of the gift-deed which was a valid document cannot be taken away in the eyes of law. There is no other evidence of any other conduct which could establish that Rasool was not living with Mst. Hafizan Bibi. In view of the above, I am of the opinion that both the cases relied upon by the Learned Counsel for the Appellant do not assist the arguments raised on behalf of the Appellant. Since the delivery of possession has been given in accordance with law to Rasool the gift deed dated 1-2-1934 is a valid gift-deed in the eyes of law. The judgment of the lower appellate court, therefore is in accordance with law. 1 do not find any error of law in the said judgment. 17. In regard to the second contention raised by the Learned Counsel for the Appellant, once it is held that the gift-deed dated 1-2-1934 was a valid gift-deed then under the principles of Mahomedan Law as laid down by Mulla, the gift-deed could not have been revoked. The gift could have been revoked by the donor only at any time before the delivery of possession. In the circumstances, the second deed dated 27th February, 1934 does not have any legal effect on the validity of the gift-deed dated 1-2-1934. 18. In the result, both the appeals fail and are accordingly, dismissed but in the circumstances of the case, parties are directed to bear their own costs. 19. Learned Counsel for the Appellants prays for time to vacate the premises. This prayer, in my opinion is justified. I grant the Appellants four months time to vacate the premises in dispute.