Alavi v. Aminakutty Umma — 1984 DIGILAW 253 (KER)

JUDGMENT K.S. Paripoornan, J. 1. The 1st plaintiff and the legal representatives of the 2nd plaintiff in O. S. No. 5 of 1974 of the Munsiff's Court, Manjeri (re-numbered as O. S.193 of 1974, Munsiff's Court, Perintalmanna) are the appellants. The defendants in the suit are the respondents. The suit was one for partition of the properties belonging to Mammussan Haji who died on 12-12-1972. The plaint schedule contained 4 items. Mammussan Haji died leaving behind the 'plaintiffs (brothers), defendants 1 and 2 (daughters) and the 3rd respondent (wife) as legal heirs. Deceased Haji had no male issue. All the 4 items of the properties belonged to deceased Haji and were in his possession. The plaintiffs claimed that they are entitled to 5/24 shares, defendants 1 and 2 together to 12/24 shares and the 3rd defendants to 3/24 shares. A notice was issued to the defendants on 23-8.1973 demanding partition. The defendants denied the claim The plaintiffs are not aware of the gift in favour of defendants 1 and 2 by late Haji as mentioned in the reply notice. Items 1 and 2 of the plaint schedule were purchased by late Haji in the name of defendants 1 and 2, benami. On these averments the plaintiffs prayed for partition and recovery of their shares with future mesne profits. The defendants denied the plaint claim. It was contended that items l and 2 belong to defendants 1 and exclusively by virtue of Ext.B1 deed dated 17-1-1950. Defendants 1 and 2 specifically stated that decreased Haji has no right in items 1 and 2. Regarding items 3 and 4 of the plaint schedule, defendants 1 and 2 contended that Mammussan Haji executed Ext.B2 gift deed on 4-8-1970 in their favour and that they are in actual possession and enjoyment of the said items pursuant thereto. The claim, of the plaintiffs for partition and for allotment of shares in the plaint items was denied. 2. The Trial Court found that items 1 and 2 of the plaint schedule belonged to defendants 1 and 2 exclusively by virtue of Ext. B 1 and as such are not available for partition. It was also found that deceased, Mammussan Haji gifted items 3 and 4 of the plaint schedule in favour of defendants 1 and 2 by Ext.B2 document dated 4-8-1970. The gift was accompanied by delivery of possession. On these premises, the suit was dismissed. B 1 and as such are not available for partition. It was also found that deceased, Mammussan Haji gifted items 3 and 4 of the plaint schedule in favour of defendants 1 and 2 by Ext.B2 document dated 4-8-1970. The gift was accompanied by delivery of possession. On these premises, the suit was dismissed. An appeal was filed by the plaintiffs as A. S.5 of 1976 before the subordinate Judge's Court, Manjeri. The only question that was canvassed was whether Ext.B2 gift deed dated 4-8-1970 was valid and defendants 1 and 2 had taken possession of the properties. The Lower Appellate Court after adverting to Ext. B2 gift deed and Exts.B5 to B11 assessment receipts, held that there was a valid and complete gift and dismissed the appeal filed by the plaintiffs. The plaintiffs have come up in Second Appeal. 3. At the time of admission of the Second Appeal, the following 4 questions of law were formulated as substantial questions of law arising for consideration in the appeal; (a) Whether a mere recital in a deed of gift authorising the donees to take possession without even any evidence as to the handing over of actual possession of the property or even of the title deeds or of the deeds of gift itself is sufficient under Mohammedan Law to make a valid gift of property. (b) In the absence of any evidence as to delivery of possession, not even a recital as to actual delivery of possession in the document of gift, is the court below justified in holding that there is a valid gift under Mohammedan Law. (c) Is the court below justified in inferring delivery of possession on the recital authorising the donee to take possession in the absence even of the original deed of gift indicating thereby that even the original of the deed of gift was not handed over to the donees ? (d) Is a gift of the entire property in favour of some among the legal heirs of the donor to the exclusion of others valid in Mohammedan Law ? 4. I heard counsel for the appellants, Mr. Ramkumar and also counsel for the respondents, Balasubramaniam. The only question canvassed before me by the appellants' counsel was that Ext. (d) Is a gift of the entire property in favour of some among the legal heirs of the donor to the exclusion of others valid in Mohammedan Law ? 4. I heard counsel for the appellants, Mr. Ramkumar and also counsel for the respondents, Balasubramaniam. The only question canvassed before me by the appellants' counsel was that Ext. B2 gift deed dated 4-8-1970 by deceased Haji in favour of his daughters, defendants 1 and 2, is invalid since there was no delivery of possession. Counsel contended that one of the essential conditions to the validity of a gift under Mohammedan Law is that there should be delivery of possession of the subject of the gift by the donor to the donee. The courts below approached the question as if the burden is on the plaintiffs to prove that there was no delivery of possession. It was also contended that the absence of production of the original gift deed (Ext.B2) by the defendants, taken along with the evidence of DW1 (husband of the 2nd defendant) will go to show that there was no delivery of possession in pursuance to Ext. B2. Counsel stressed the fact that defendants 1 and 2 were not examined in the case, that the recital in Ext, B2 stating that possession is given by itself is insufficient and that there should be some overt act to prove delivery of possession and that Exts. B 6 to B11 do not advance the case of defendants 1 and 2 in any manner or to any extent. On the other hand, counsel for the respondents, Mr. Balasubramoniam, contended that the question as to whether there was delivery of possession of the subject of the gift by the donor to the donee is a question of fact. On that question, the courts below have concurrently held that there was delivery of possession and that Ext. B2 gift is valid. No substantial question of law arises for consideration, relating thereto. Respondents' counsel also contended that there is a recital in Ext. B2 gift deed that possession was handed over or given, such recital is prima facie proof to show that there was delivery of possession of the property and the burden of proof is on the persons who allege the contrary to specifically plead and prove that there was no delivery of possession. Even in the reply notice (Ext. B2 gift deed that possession was handed over or given, such recital is prima facie proof to show that there was delivery of possession of the property and the burden of proof is on the persons who allege the contrary to specifically plead and prove that there was no delivery of possession. Even in the reply notice (Ext. A2) dated 30-8-1973 the gift was pleaded. The plaint averments, Para.4, 5 and 9 also mention the gift. All that PW1 (2nd plaintiff) deposed was that the gift by late Haji was invalid, since it was benami. The plaintiffs had no case about the invalidity of the gift on the ground of nondelivery of possession. This is a new plea which has no basis. The approach and conclusion of the courts below in finding Ext. B2 gift deed is valid is based on a proper understanding of the relevant law and is also based on sufficient evidence. No interference is called for in the Second Appeal. 5. It is true that in Mohammedan Law there are three essentials for a valid gift. They are, (1) a declaration of gift by the donor, (2) 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. In principles of Mohammedan Law, by Mulla, Eighteenth Edition (1977) Para.150 (4), at page 158 it is stated; "(4) A declaration in a deed of gift that possession has been given binds the heirs of the donor." Again, at page 161 it is stated: "A recital in the deed of gift that the donor has divested himself and put the donees in possession binds the donor's heirs even if one of the heirs is later found in possession. Such a gift is vaild." (Ismail v. Idrish - ( AIR 1974 Pat. 54 D. B) Tyabji on Muslim Law, 4th Edition 0968). Such a gift is vaild." (Ismail v. Idrish - ( AIR 1974 Pat. 54 D. B) Tyabji on Muslim Law, 4th Edition 0968). Para.421, at page 393 state: "From the donor's acknowledgment of having made a gift and delivered possession, it may be presumed against the donor and persons claiming under him, that the gift was completed as acknowledged." Again, at page 394 it is stated: "A declaration on the deed that possession was transferred, as a declaration of fact, must be regarded as binding on the heirs of the donor." It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebutable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that inspite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donees. The burden is not on the donee to prove, delivery of possession to them. That this is the position in law is evident from the decisions reported in Muhammad Mumtaz Ahmed v. Subaida Jan (16 Indian Appeals 205 = (1889) 11 All. 460 (P. C); Mohammad Sadiq v. Fakhr Fahan (1932) 59 IA 1); Sardar Khatun v. Secretary of State (AIR 1939 Sind 9); S. V. S. Muhammad Yusuf Rowther v. Muhammad Yusuf (AIR 1958 Madras 527; Mst.. Azizi v. Sona Mir (AIR 1962 J & K 4) and Ismail v. Idrish (AIR 1974 Patna 54). 6. The relevant Passages occurring in the gift deed have been extracted in Para.9 of the judgment of the Lower Appellate Court. The relevant passages in Ext. B2 are as follows:- XXX XXX XXX A fair reading of the gift deed, Ext. B2 as a whole, cannot admit of any doubt that there is definite recital therein admitting that the possession of the subject matter of the gift has been delivered over to the donees. In the light of the legal position stated above, the declaration of delivery of possession in the registered deed, Ext. B2 as a whole, cannot admit of any doubt that there is definite recital therein admitting that the possession of the subject matter of the gift has been delivered over to the donees. In the light of the legal position stated above, the declaration of delivery of possession in the registered deed, Ext. B2, will ordinarily suffice. The burden of proof is on the plaintiffs to allege and affirmatively prove that no delivery of possession took place. This has not been done. In this context, Para.4, 5 and 9 of the plaint, taken along with the evidence of PW1 stating that the gift deed Ext. B2 by late Haji to his daughters, defendants 1 and 2, was effected benami is very relevant. The plaintiffs had no case that the gift is invalid due to non-delivery of possession. Such a plea seems to have been advanced during arguments in the trial Court for the first time. The plaintiffs have not adduced any evidence, to rebut the presumption of delivery of possession, flowing from the recitals in Ext. B2 gift deed. The legal effect flowing from the recital contained in Ext. B2 is not in any way off-set or disproved by any evidence adduced on behalf of the plaintiffs. The courts below were justified in relying upon the recitals in Ext. B2. In addition to the presumption flowing from the recital in Ext. B2, the courts below have also adverted to Exts. B6 to B11, revenue receipts of which B6 and B7 were for the years 1970-71 and 1971-72. The tax was paid (as evidenced by Exts. B6 and B 7 receipts) long before the demise of Haji. The courts below were of the view that these documents also indicate that the donees were exercising act of possession over the subject matter of gift. I am of the view that the courts below approached the question involved in the case from a correct angle and also reached a proper conclusion, the light of the available evidence in the case. The courts below have concurrently found that Ext. B2 is valid and legal. The contention of the plaintiffs that there was no delivery of possession of the property which was the subject matter of the gift, was also concurrently negatived. There is no error of law either in the reasoning or in the conclusion of the courts below upholding Ext. The courts below have concurrently found that Ext. B2 is valid and legal. The contention of the plaintiffs that there was no delivery of possession of the property which was the subject matter of the gift, was also concurrently negatived. There is no error of law either in the reasoning or in the conclusion of the courts below upholding Ext. B2 gift deed and in negativing the plaintiffs' case. 7. The appellants have filed C. M. P. 2456 of 1981 praying for admission of additional evidence in the Second Appeal. This is opposed by the respondents counsel. No sufficient or valid reason, to justify the admission of additional evidence at the stage of the Second Appeal is alleged or proved. As to why such documents were not produced earlier is not explained or stated. There is inordinate delay on this score. No explanation is stated for the delay. The documents produced do not appear to be necessary or useful, for the disposal of the contentions raised in this second Appeal. I reject C. M. P. No. 2456 of 1981 filed by the appellants for receiving additional evidence in the Second appeal. 8. The judgments and decrees of the courts below do not call for any interference. The Second Appeal is without merit. It is dismissed. However, there shall be no order as to costs.