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2008 DIGILAW 649 (GAU)

Md. Sadek Hussain v. Mustt. Himani Begum

2008-09-03

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. This appeal under Section 100, Code of Civil Procedure is directed against the judgment and decree dated 9.10.2007 passed by the learned Civil Judge, Dhubri in Title Appeal No. 14/2006 dismissing the appeal preferred by the present Appellant and affirming the judgment and decree dated 19.1.2006 passed by the learned Civil Judge (Junior Division) No. 1, (now Munsiff No. 1), Dhubri in decreeing the Title Suit No. 125/2000. 2. The Respondent/Plaintiff instituted Title Suit No. 125/2000 in the Court of the learned Civil Judge (Junior Division) No. 1, Dhubri for declaration of right, title and interest and also for recovery of khas possession as well as for a direction for correction of revenue records and also for permanent injunction in respect of the plot of land measuring 1 Katha 13 Lehas covered by Dag No. 89 Khatian No. 55 of village Hatsingimari under Mankachar Revenue Circle in the district of Dhubri contending, inter alia, that the suit land was gifted by the present Appellant (Defendant in the title suit) in favour of the Plaintiff (wife of the Defendant) by executing a registered deed of gift No. 583/96 on 25.5.1996 and the possession of which was also delivered to the Plaintiff on the same date. But on 30.4.1998, the Defendant without any cause drove the Plaintiff and her minor daughter out from the house over the suit land at the instigation of his other wife and accordingly she was dispossessed from the suit land. The Plaintiff therefore filed the said suit with the aforesaid reliefs claimed. The Appellant/Defendant contested the suit by filing written statement mainly contending that the registered gift deed executed on 25.5.1996 is not valid as the possession of the gifted property was not handed over to the Plaintiff and also contending that the said gift deed was revoked by executing a registered deed of revocation No. 250/2000. According to the Appellant/Defendant, the decree as prayed for, therefore, cannot be granted. 3. The learned trial Court upon appreciation of evidence on record arrived at the finding to the effect that the possession of the suit land was handed over to the Plaintiff/Respondent. Learned trial Court further held that in view of Section 167(2) of the Mohammedan Law, gift made by a husband to his wife or by the wife to her husband is not revocable. 4. Learned trial Court further held that in view of Section 167(2) of the Mohammedan Law, gift made by a husband to his wife or by the wife to her husband is not revocable. 4. Being aggrieved, the Appellant/Defendant preferred Title Appeal No. 14/2006 in the Court of the learned Civil Judge, Dhubri, which was also dismissed by the first appellate Court vide judgment and decree dated 9.10.2007 affirming the judgment and decree passed by the learned trial Court concurring with the findings recorded therein, hence the present appeal. 5. It has been submitted by Mr. Siddique, learned Counsel for the Appellant that the finding recorded by the learned trial Court regarding delivery of possession of the land in question is not a correct finding and is perverse. It has further been submitted that in fact the possession of the property in question was never delivered to the Plaintiff and the gift deed, being Exhibit-I, executed by the Appellant/Defendant in favour of the Respondent/Plaintiff on 25.5.1996 being subsequently revoked by a registered deed of revocation being No. 250/2000 in the year 2000 no decree declaring right, title and interest in favour of the Respondent/Plaintiff by virtue of such gift deed dated 25.5.1996 could be declared. It has further been submitted by the learned Counsel that since the land under the gift deed (Ext-I) is a part of Dag No. 89 and such land being an Ejmali land, there is no question of delivery of possession of the gifted property in favour of the Respondent/Plaintiff. 6. It appears from the judgment and decree passed by the learned Courts below that a finding of fact has been recorded on the basis of the evidence adduced by the parties that the Ext-I gift deed in favour of the Respondent/Plaintiff was executed by the Appellant on 25.5.1996 when both of them were staying together as husband and wife. It has also been established from the evidence that till 1998 both of them stayed together as husband and wife i.e. two years from the date of execution of the said gift deed. The Appellant/Defendant, in fact, has not disputed the execution of the gift deed in favour of the Respondent/Plaintiff, but contended that since the possession was not handed over and the said deed was subsequently revoked, no title vests on the Respondent/Plaintiff by virtue of such gift deed. 7. The Appellant/Defendant, in fact, has not disputed the execution of the gift deed in favour of the Respondent/Plaintiff, but contended that since the possession was not handed over and the said deed was subsequently revoked, no title vests on the Respondent/Plaintiff by virtue of such gift deed. 7. Section 149 of the Mulla' Principle of Mohammedan Law (in short 'Mohammedan Law') requires that to constitute a valid gift three conditions are required to be fulfilled namely (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. In the event all these three conditions are complied with, a gift deed is complete. Section 150 provides that delivery of possession of gifted property may be either actual or constructive. 8. In the instant case, it is not in dispute that both the Plaintiff and the Defendant lived together as husband and wife two years after execution of the gift deed (Ext-I) executed by the Defendant in favour of the Plaintiff. The Plaintiff having continued to be in possession of the property which was gifted to her by Ext. I, it implies delivery of the property gifted away, amounting to constructive delivery of possession. The Defendant also could not prove that the land was part of Ejmali land. There being no dispute that the gifted land was in exclusive possession of the donor, who has share in the property, even if the land in question is a part of Ejmali land, it cannot be said that possession of the gifted property cannot be taken by the donee. There is no dispute in the present case relating to the execution of the deed of gift Ext. I and consequent declaration by the executor i.e. Defendant. Acceptance of the gift under the Mohammedan Law may be express or implied by and on behalf of the donor. The gift being a registered deed, registered under the provisions of the Indian Registration Act and the Plaintiff/donee being continued to be in possession of the property, there is implied acceptance of the gift. Therefore, all the three conditions stipulated to constitute a valid gift have been fulfilled. 9. The gift being a registered deed, registered under the provisions of the Indian Registration Act and the Plaintiff/donee being continued to be in possession of the property, there is implied acceptance of the gift. Therefore, all the three conditions stipulated to constitute a valid gift have been fulfilled. 9. Section 167(1) of the Mohammedan Law provides that a gift may be revoked by the donor at any time before delivery of possession. Sub-section (2) provides that a gift may be revoked even after delivery of possession except in cases mentioned in Clauses (a) to (h) thereof. Clause (a) of Section 167(2) provides that such gift made by the husband to his wife or by wife to her husband, is not revocable. In the instant case, as noticed above, both the learned Courts below have come to the conclusion that the possession of the property in question was delivered to the Plaintiff after the gift deed (Ext. I) was executed and such concurrent findings of fact cannot be disturbed in a second appeal unless, of course, perversity is shown. Learned Counsel for the Appellant could not demonstrate any perversity in such findings. Therefore, in the instant case the revocation of gift deed (Ext. I) under Section 167(1) of the Mohammedan Law does not arise at all as it provides that revocation of a gift deed is to be made before delivery of possession. The gift, (Ext. I), also cannot be revoked by invoking the provisions contained in Section 167(2) the same being a gift made by the husband to his wife. Therefore, the plea that the gift deed was revoked by subsequent registered deed of revocation (Ext. A), in my considered opinion, has rightly been negated by both the learned Courts below. 10. In view of the above, I am of the view that no substantial question of law is involved in the present appeal. Accordingly, the appeal stands dismissed with no order as to costs. Appeal dismissed.