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1999 DIGILAW 120 (GAU)

Saiful Islam v. Hasen Ali

1999-04-06

J.N.SARMA

body1999
No substantial question of law was formulated in this case earlier. The substantial question of law which is urged by the learned Advocate for the appellant is that whether the gift is valid under Mahommedan Law. 2. Heard Mr. BD Das, learned Advocate for the appellant. None appears for the respondent. 3. The brief facts are as follows : A plot of land measuring 3 bigha 2 katha 4 lechas covered by Dag No. 366 of PP No. 165 and a plot of land measuring bighas 8 lechas covered by Dag No. 415 of PP No. 165 originally belonged to Jal Mahmud, the predecessor in interest of the plaintiff, defendant Nos. 3, 4 and 5 series. The heirs and successors of late Jal Mahmud amicably partitioned the entire plot of land amongst themselves and became owner and in possession of 1 bighas 1 katha 18 lechas of land each. As per terms and condition of that settlement, the proforma defendant No. 4 occupied and possessed a plot of land along the Northern side of the entire plot of land, proforma defendant No. 5 series occupied and possessed their share which is situated contiguous South of proforma defendant No. 4 to the contiguous South of the plot of land of proforma defendant No. 5 series situates the plot of land belonging to proforma defendant No. 3, Tahiruddin and the plaintiff occupied and possessed the extreme Southern portion of the entire plot of land. Proforma defendant No. 3 later on gifted away his share of land orally to the plaintiff and delivered over possession of the same. Thus the plaintiff became owner in possession in respect of 2 bighas 3 kathas 16 lechas of land along the extreme South portion of the entire plot of land. On 6.5.68 the plaintiff and the proforma defendant No. 4 sold out 1 katha of land each by registered Sale Deed No. 5952 to the proforma defendant No. 8. Then on 5.5.73, the plaintiff sold out 10 lechas of land to the proforma defendant No. 8 by a registered Sale Deed. The plaintiff then sold out 4 kathas 10 lechas of land to proforma defendant No.8 by a registered Sale Deed. Then on 5.5.73, the plaintiff sold out 10 lechas of land to the proforma defendant No. 8 by a registered Sale Deed. The plaintiff then sold out 4 kathas 10 lechas of land to proforma defendant No.8 by a registered Sale Deed. Thus the plaintiff sold out 1 bigha 1 katha of land out of the plot of land owned by him and continued to remain as owner in possession in respect of 1 bigha 2 kathas 16 lechas of land as fully described in the Schedule Ka to the plaint. The defendant No. 1 Saiful Islam at first forcibly dispossessed the proforma defendant No.8 from a plot of land measuring 2 kathas 10 lechas for which the proforma defendant No. 8 instituted a TS No. 25 of 1981 and ultimately obtained possession of the plot of land. The defendant No. l then on 11.3.91 in collusion with the defendant No. 2 dispossessed the plaintiff from a plot of land measuring 2 kathas 10 lechas as fully described in the Schedule Ga to the plaint and constructed a thatched hut thereon denying the right, title, interest of the plaintiff in respect of the suit land. The plaintiff, therefore, instituted this suit with prayer for declaration of right, title etc in respect of the entire Ka Schedule land, confirmation of possession of the plaintiff in respect of Kha Schedule land and for delivery of khas possession of the plot of land mentioned in Schedule Ga to the plaint by evicting the defendants and by removing the structure thereon. The defendant Nos. 1 and 2 contested the suit. The defendants filed written statement inter alia pleading that they have purchased plots of land belonging to Ariruddin, Taleb Ali and Surhab AIL The defendants further submitted that Ariruddi sold out 2 kathas lechas of land to Osman Gani and subsequently Osman Gani sold the land to defendant No. l on 19.4.74 by a registered Sale Deed. The defendants thus claim right, title, interest etc in respect of the Ga Schedule land. 4. On the basis of the pleadings as many as 5 issues were framed. The learned Munsiff in Title Suit No. 56 of 1991 found that the plea of gift as taken up by the plaintiff was not established as: there was no evidence regarding delivery of possession as required under the Muslim Law. 4. On the basis of the pleadings as many as 5 issues were framed. The learned Munsiff in Title Suit No. 56 of 1991 found that the plea of gift as taken up by the plaintiff was not established as: there was no evidence regarding delivery of possession as required under the Muslim Law. Further it was found by the learned Munsiff that defendants could not acquire right, title and interest to the land by adverse possession. Having arrived at this finding, the suit was dismissed. There was an appeal being Title appeal No. 1 of 1993 before the learned Assistant a District Judge at Nagaon and the learned Assistant District Judge on consideration of materials on record found as follows that the defendant could not produce any deed of transfer as claimed by him. (ii) The learned Judge accepted the statement made by the donor that there was delivery of possession and on the basis of this delivery of possession, subsequent transfers as stated above were made by the plaintiff, (iii) Regarding the claim of adverse possession, the learned Judge came to b the finding that the plea of adverse possession has not been established as required under the law. Rather he found on considering the evidence of PW 2 and 3 that the defendants dispossessed the plaintiff 14 months back. Having arrived on this finding the appeal was allowed and the suit was decreed. Hence, this second appeal. 5. Mr. Das, learned Advocate for the appellant strenuously urges that the plea of gift has not been established. Mr. Das places reliance in Mulla's Mahommedan Law and he submits that 3 essentials of gift as pointed out by Mulla in Mahommedan Law are (i) 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. In section 150 regarding delivery of possession Mulla pointed out as follows : “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 (1). In section 150 regarding delivery of possession Mulla pointed out as follows : “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 (1). 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 (n).” 6. In AIR 1973 Gauhati 105 (Mt Jabeda Khatun vs. Makeed Ali) this Court pointed out that when the donee has been possessing the land and got his name mutated in the Revenue record in respect of the land it is implied that there is acceptance on behalf of the donee and coupled with possession which of the property which was delivered to the donee by the donor, No doubt the burden of proof to establish the 3 essentials as indicated above is on the person who claims on the basis of the gift. 7. In this particular case, the learned Assistant District Judge on consideration of the materials on record as indicated above, came to the finding that these 3 essentials/requirements have been fulfilled. Basically this is a finding of fact and in second appeal I am not inclined to reverse/interfere with this finding. The next case relied on by Sri Das in 1991 (1) GLJ 219 (Mustt Kulapjan Bewa & others vs. Shri Panaullah Sekh & others). That was a case were a witness made a statement that a person made a gift or had made a gift of the suit land in favour of his sons and that was not accepted as evidence of gift unless facts relating to the essentials of a valid gift are stated. That is not the position in the case in hand. In this particular case the witness deposed with regard to the three essentials of gift. In the case 1991 (1) GLJ 219 (supra) this Court found that h the finding of the lower appellate Court is based oh no evidence and as such it cannot be accepted. In this particular case that is not the situation, There are materials to come to a finding whether these materials are adequate or sufficient to support the contention of the lower appellate Court is a different question. In this particular case that is not the situation, There are materials to come to a finding whether these materials are adequate or sufficient to support the contention of the lower appellate Court is a different question. The next case relied on by Sri Das is AIR 1966 SC 1194 (Maqbool Alam Khan vs. Mst Khodalja & others). That was a case where the property of the gift which was in possession of a trespasser and the Supreme Court pointed out that in such a situation mere declaration by the donor and acceptance by the donee is not sufficient to validate the gift. There must also be delivery of possession or failing delivery, some overt act by the donor to put it within the power of the donee to obtain possession. Supreme Court pointed out that apart from making a declaration, the donor does nothing else, the gift is invalid. As pointed out above, factually in the present case that is not the position. This case does not help the appellant. The next case relied on by Sri Das is AIR 1998 Karnataka 39 (Abdur Rahman & others vs. Smti Athifa Begum & others) where he relied on paragraph 27 of the judgment where the Karnataka High Court considered the following cases (i) AIR 1991 SC 314 , (ii) AIR 1932 PC 13, (iii) AIR 1964 (4) SCR 549 and AIR 1981 Kerala 230. In paragraph 9 in that particular judgment, the Karnataka High Court pointed out that in none of these cases the possession been transferred by the donor and it was for that reason, that the gift was held to be not valid. It was further pointed out that these cases cited on behalf of the plaintiffs are not applicable to the facts of this case where no possession was retained by the donor and whatever possession that the properties were susceptible of had been transferred to the donees. This case instead of helping the appellant helps the respondents. 8. That being the position, there is no merit in this second appeal and the same is dismissed. However,! leave the parties to bear their own costs.