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1999 DIGILAW 623 (KER)

Pocker v. Kathiya

1999-11-30

K.A.ABDUL GAFOOR

body1999
Judgment :- KA. Abdul Gafoor, J. Plaintiff sued for an injunction restraining the defendants not to alienate the property covered by Ext. Al and not take any possession there of Defendant No.1 gifted the property concerned to the plaintiff. Later by Ext. B3 she revoked it. It is in the above circumstances the suit was filed. According to the plaintiff there was a complete gift in terms of Ext. Al by the donor expressing intention to make the gift to the plaintiff donee, the latter accepting the same and a change of possession of the property concerned. Therefore, there was no reason at all to revoke the gift and the revocation is illegal and the plaintiff continued to be the owner of the property in terms of the said gift. But, both the Courts below concurrently dismissed the suit finding that there was no delivery of the possession of the property gifted in favour of the donee to complete the last among three essentials of a Mohammedan gift. That concurrent finding is under challenge in this Second Appeal. 2. Relying on the decision reported in Mahboob Sahab v. Syed Ismail (1995 (3) SCC 693) it is contended that as both the donor and donee were residing together, no separate parting away of the property was essential and it could be presumed that there was a complete Mohammedan gift on execution of Ext. Al itself. It is also contended, relying on Mulla on Mohammedan Law that the said position shall always be accepted when both donor and donee are living together in the same premises. 3. Whatever that be, residence of the donor and donee in the same building will not take away any of the three essential ingredients of a Mohammedan gift being complied with. A declaration of the gift by the donor is of course there in Ext. Al. It also can be said that the plaintiff had accepted the gift in Ext. Al. But these two essentials alone will not make Mohammedan gift complete unless there is delivery of the possession of the property gifted. In this case, Ext. Al deed specifically mentions that the plaintiff donee shall change the mutation and pay the taxes. The only evidence to show that he had paid the tax was Ext. A2 a document made just before the institution of the suit; whereas Ext. In this case, Ext. Al deed specifically mentions that the plaintiff donee shall change the mutation and pay the taxes. The only evidence to show that he had paid the tax was Ext. A2 a document made just before the institution of the suit; whereas Ext. B1, extract of the 1 and revenue register shows that far later to the execution of Ext. Al gift deed itself, on 23.1.81,29.3.83,1.9.83 and 30.3.84. The donor herself had paid the land revenue in respect of the plaint schedule property. Had the gift been accepted and if there was delivery of possession of the property gifted, there was no reason at all, when there was a document like Ext. Al, for the plaintiff not to pay the basic tax. Thus, it was based on evidence that the lower appellate Court has found as follows: "Except Ext. A2 which was obtained on the eve of the suit there is no other document to show that the plaintiff was given possession of the properties covered by Ext. Al. As stated earlier Ext. Al cannot be relied on to hold that he was put in possession of the property. The first defendant who is examined as DW1, who was aged 75 years, says that plaintiff was not given possession of the properties. She says that she has been through out in possession of the plaint schedule properties. The plaintiff relies on an admission made by DW1 which is to the effect that she gifted the property thinking that plaintiff will maintain her. It has to be remembered that DW1 was a woman aged 75 years and that one solitary answer by way of admission cannot be blown up dis-proportionately to hold that she had parted with possession of the property. On going through the entire disposition it can safely concluded that she had not parted with possession of the property and that there was no manifestation of the declaration of the intention to part with the property. Her evidence is corroborated by DW3 an independent witness who says that the plaint schedule property has been in the possession of the first defendant. The second defendant who is examined as DW2 has stated that as the President of the Islam Sangam he had purchased 11 cents of land out of the plaint schedule properties from the first defendant and that he is in possession of the said property. The second defendant who is examined as DW2 has stated that as the President of the Islam Sangam he had purchased 11 cents of land out of the plaint schedule properties from the first defendant and that he is in possession of the said property. PW1 has admitted that even prior to the date of the suit he had come to know of the fact that the first defendant had alienated 10 cents of land to the second defendant, but conveniently he omitted to state anything about the said alienation in the plaint. Any way the oral evidence of DWs.1 to 3 and Ext. B1 would clearly show that the first defendant was in possession of the property even after Ext. Al. In these spate of evidence I must hold that the first defendant has discharged the burden cast on her and has established that plaintiff was not given possession of the properties on the strength of Ext. Al." The finding of the lower appellate court of course is totally based on evidence with regard to delivery of possession of the gifted property. That is a concurrent finding as well. In such circumstances, this Court cannot reappreciate the evidence to come to a different finding, even if it is possible on the basis of the available evidence. The limitation imposed on this Court by S.100 of the Code of Civil Procedure is that this Court shall not reappreciate the evidence to come to a different finding of fact. The rulings relied as above by the counsel for the appellant cannot persuade me to come to a different finding with respect to the completion of a Mohammedan gift. Even going by those decisions unless there was delivery of possession of the property gifted, it cannot be found that the gift had been completed. As the defendants had retained possession, there was no delivery of the gifted property in favour of the donee. There is no reason for interference with that finding. Appeal therefore fails. Dismissed. No costs.