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2012 DIGILAW 1574 (MAD)

Kaliamurthy (Died) v. A. Sherafunnisa

2012-03-29

R.S.RAMANATHAN

body2012
Judgment :- 1. The second defendant is the appellant. 2. The first respondent herein filed the suit for the relief of declaration that she is the absolute owner of 'A' schedule property, as per the oral gift deed, dated 04.08.2004, and for recovery of possession of 'B' and 'C' schedule properties from the appellant and the second respondent herein and for injunction. 3. The Trial Court dismissed the suit and the First Appellate Court reversed the findings of the Trial Court and allowed the Appeal. Hence, the Second Appeal is filed by the second defendant in the suit. 4. The case of the first respondent was that the property originally belonged to one Mr.Sheik Dawood and one Mrs.Zubaida Beevi was his wife. The said Mr.Sheik Dawood also married the fourth defendant-Mrs.Jannath Bivi @ Cho-Thi-Kumson, and the 10th defendant-Mrs.Fathima Beevi and the marriage of the fourth and tenth defendant with the said Mr.Sheik Dawood were legal marriages, as per the principles of Mahomedan Law and the defendants 5 to 9, are the children born to the fourth defendant and the defendants 11 to 16, are the children born to the tenth defendant through the said Mr.Sheik Dawood. The defendants 4 and 10 viz., the second and the third wives of Mr.Sheik Dawood, orally gifted the suit properties, on 04.08.2004 to the first respondent/plaintiff in the presence of one Abdul Rahim and another person and therefore, on the basis of the oral gift, the first respondent/plaintiff became absolute owner of the properties and therefore, the suit was filed for declaration and other reliefs. 5. In the suit, the appellant herein was the second defendant and he remained ex parte. The defendants 4 to 16, the second and third wives of Mr.Sheik Dawood and the children born to them were exonerated. The Trial Court dismissed the suit, holding that the first respondent/plaintiff failed to prove the gift in the manner known to law and therefore, she is not entitled to the relief of declaration. 6. The First Appellate Court reversed the findings of the Trial Court and held that the gift was proved through P.W.2, who also corroborated the evidence of P.W.1, and therefore, the first respondent/plaintiff is entitled to the relief prayed for and allowed the Appeal. Hence, this Second Appeal is filed by the appellant/second defendant. 7. 6. The First Appellate Court reversed the findings of the Trial Court and held that the gift was proved through P.W.2, who also corroborated the evidence of P.W.1, and therefore, the first respondent/plaintiff is entitled to the relief prayed for and allowed the Appeal. Hence, this Second Appeal is filed by the appellant/second defendant. 7. Mr.Srinath Sridevan, the learned counsel appearing for the appellants submitted that, admittedly, the suit properties were allotted to the share of the defendants 4 and 10, who were second and third wives of one Mr.Sheik Dawood in the partition suit filed by the mother of the first respondent in O.S.No.1 of 1979. Therefore, the first respondent cannot claim title to the suit properties, unless, she proves that under a valid gift deed, dated 4.8.2004, the properties were given to the first respondent, by the defendants 4 and 10 and it was not proved that on 04.08.2004, the defendants 4 & 10, gifted the properties in favour of the first respondent. Admittedly, the defendants 4 and 10, are living abroad and they cannot speak Tamil and they only know French and Vietnamese languages and admittedly, the properties are in the possession of the tenants and no delivery was effected. Moreover, there was no proof of acceptance of gift and therefore, the gift was not proved by the first respondent and the First Appellate Court erred in holding that the gift was validly proved by the first respondent and hence, she is entitled to the relief prayed for. 8. The learned counsel for the appellants further submitted that, though, the appellant, viz., the second defendant in the suit remained ex parte and did not file any written statement, he could contest the Appeal , questioning the validity of the decree passed in favour of the first respondent and he is entitled to challenge that the decree in favour of the first respondent is not valid, as the gift was not proved and therefore, the Appeal filed by him is maintainable. 9. Per contra, Mr.R.Srinivasan, the learned Senior Counsel for the first respondent submitted that the Appeal filed by the appellant is not maintainable, as he remained ex parte in the suit as also in the first appeal and he did not file any written statement, traversing the allegations made in the plaint. 9. Per contra, Mr.R.Srinivasan, the learned Senior Counsel for the first respondent submitted that the Appeal filed by the appellant is not maintainable, as he remained ex parte in the suit as also in the first appeal and he did not file any written statement, traversing the allegations made in the plaint. Therefore, in the absence of any denial of allegations made in the plaint by the appellant, it is deemed that he has accepted the allegations and therefore, even in the absence of any proof adduced by the first respondent, regarding the gift, she is entitled to the decree and her claim under the gift deed has been not been denied. 10. The learned Senior Counsel for the first respondent further submitted that, when the properties are in possession of the tenants, constructive delivery is sufficient and relied upon the various judgments of this Court, in support of his contention that the gift has been validly made. The learned Senior Counsel further submitted that the appellant, who remained ex parte in the suit, is not entitled to challenge the decree passed by the First Appellate Court and relied upon the judgments reported in (1997) 1 M.L.J. 92 in the case of [ Syed Mustan and another Vs. Syed Mubarak ] , (1996) 1 M.L.J. 98 in the case of [ The Regional Manager, Punjab National Bank, Madras Vs. D.P.Venkataraman and others ] A.I.R. (1995) S.C. 1205 in the case of [ Mahboob Sahab Vs. Syed Ismail and others ] andA.I.R. (1976) Karnataka 226 in the case of [ Sakina Bee Vs. Mohamed Ameer Saheb and others ] in support of his contentions. 11. Mr. Srinath Sridevan, the learned counsel for the appellants relied upon the judgment reported in (2005) 1 S.C.C.787, in the case of [ Bhanu Kumar Jain Vs. Archana Kumar and another ] in support of his contention that eventhough a person remained ex parte, he is entitled to file the Appeal against the ex parte decree, challenging the decree, stating that the decree ought to have been passed, having regard to the allegations made in the plaint and also relied upon the judgment reported in (2004) 2 M.L.J. 402 : (2004) 2 C.T.C. 481 : (2004) 2 L.W. 637 in the case of [ Kasi Viswanathan Vs. Jayalakshmi and others]. 12. Jayalakshmi and others]. 12. On the basis of the above submissions, made by the learned counsel on either side, the following substantial questions of law arise for consideration:- i) Whether the first respondent proved the oral gift deed by the defendants 4 and 10? ii) Whether the Appeal filed by the appellant/second defendant is maintainable? 13. It is not in dispute that the appellant was set ex parte and he did not file any written statement and in the First Appeal also, he remained ex parte and therefore, we have to see whether he can maintain the Second Appeal, challenging the decree passed in the First Appeal. 14. In the judgment reported in (1996) 1 M.L.J. 98 ( supra), it has been held that when the appellant has not appeared in the Trial Court or in the First Appellate Court, not filing any written statement, not cross examining the witnesses, then, his rights cannot be said to have been substantially affected. Therefore, the Second Appeal filed by him is not liable to be dismissed. Further, the Hon'ble Supreme Court, in the judgment reported in (2005) 1 S.C.C. 787 ( supra) has held that the party, who remained ex parte in the Trial Court can challenge the decree, on the basis of the allegations made in the plaint, stating that the decree could not be passed in favour of the plaintiff. Therefore, I hold that the Second Appeal is maintainable. Hence, the substantial question of law No.2 is answered in favour of the appellants. 15. The first respondent/plaintiff filed the suit on the basis of the gift deed, dated 4.08.2004. Therefore, she has to prove that gift was validly made in her favour. Admittedly, O.S.No.1 of 1979, was filed by the mother of the first respondent, claiming 23/144 shares in the properties belonged to Mr.Sheik Dawood and that was decreed and in the final decree, the mother of the first respondent/plaintiff was allotted the properties representing her 23/144 share and the defendants 4 to 16, were allotted the remaining 121/144 shares. Admittedly, the first respondent/plaintiff is not in possession of the properties allotted to the share of the defendants 4 to 16, and it is the case of the first respondent/plaintiff that the defendants 4 to 16, after the final decree, left India, without taking possession of the property. Admittedly, the first respondent/plaintiff is not in possession of the properties allotted to the share of the defendants 4 to 16, and it is the case of the first respondent/plaintiff that the defendants 4 to 16, after the final decree, left India, without taking possession of the property. It is further admitted that she is not in possession of the property and that is the reason for praying for the relief of recovery of possession. Therefore, we will have to see whether there was a valid gift in the eye of Mahomedan Law in favour of the first respondent. 16. In the judgment reported in A.I.R. (1995) S.C. 1205 ( supra) the essential ingredients of a valid gift under the Mohamaden Law has been stated as under:- “Though gift by a Mahomedan is not required to be in writing and consequently, need not be registered under the Registration Act; a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift." 17. Therefore, to make the gift a valid one, there should be a) Declaration of the gift by the donor, b) Acceptance of the gift, expressed or implied, by or on behalf of the donee, (and) c) Delivery of possession. Hence, we will have to see whether the three ingredients of a valid gift, as stated under the Mahomedan Law has been proved in this case. 18. Admittedly, first respondent/plaintiff did not examine herself to prove the gift. She examined two attesting witness to prove the gift. One Mr.Gunasekaran-P.W.1 and the other P.W.2-Mr.Abdul Rahim. Therefore, we will have to see whether the gift has been validly proved through the evidence of P.Ws.1 and 2 in the absence of any evidence produced by the first respondent/plaintiff. 19. 18. Admittedly, first respondent/plaintiff did not examine herself to prove the gift. She examined two attesting witness to prove the gift. One Mr.Gunasekaran-P.W.1 and the other P.W.2-Mr.Abdul Rahim. Therefore, we will have to see whether the gift has been validly proved through the evidence of P.Ws.1 and 2 in the absence of any evidence produced by the first respondent/plaintiff. 19. P.W.1, who is the Power Agent of the first respondent has stated in chief examination that, when the defendants 4 to 16 came to India, on 4.08.2004, in the presence of defendants 1 and 2 and in the presence of himself and P.W.2 Abdul Rahim, they orally gifted the properties to the first respondent and that was also accepted by her and she also took possession of the same. P.W.1, has also admitted that the defendants 1 and 2, also agreed to give the income from the properties to the first respondent/plaintiff from the date of the gift. Therefore, from the evidence of P.W.1, physical possession was not taken by the first respondent/plaintiff and constructive possession was taken and the properties are in possession of defendants 1 and 2. In the cross examination, he admitted that the defendants 4 to 16, did not know Tamil and they speak only Vietnamese language and in the suit in O.S.No.1 of 1979, filed by the mother of the first respondent for partition, the defendants gave evidence through an interpreter, who know Vietnamese language and when the gift was given on 04.08.2004, they have not taken any person, knowing Vietnamese language. 20. P.W.2, the other witness stated in chief examination that in the year 2004, an oral gift was given in the presence of himself and P.W.1 and the first respondent and the defendants 4 to 16, told that they were giving the properties as gift to the first respondent. He further stated that he did not know whether the first respondent/plaintiff took possession of the properties, which were gifted to her. 21. As stated supra, in order to declare the gift, a valid one, it has to be proved that there was a declaration of the gift by the donor. According to the admission of P.W.1, the defendants 4 to 16 do not know Tamil and they know only Vietnamese language and P.Ws.1 and 2, and the first respondent/plaintiff did not take any Translator on 04.08.2004, when the gift was made. According to the admission of P.W.1, the defendants 4 to 16 do not know Tamil and they know only Vietnamese language and P.Ws.1 and 2, and the first respondent/plaintiff did not take any Translator on 04.08.2004, when the gift was made. It is not the evidence of P.Ws.1 and 2, they made the gift by speaking in Tamil or English. Therefore, having regard to the fact that the defendants 4 to 16, know only Vietnamese language and they do not know Tamil, it is highly suspicious how they could have expressed their willingness to give the property to the first respondent/plaintiff as gift. Therefore, the first ingredient to make the gift a valid one is absent and in the absence of any declaration, it cannot be stated that there was a valid gift. Further, the properties are in the custody of the tenants and admittedly, the defendants 1 and 2 are managing the properties and the suit is also filed for relief of recovery of possession and therefore, in the absence of any evidence that constructive possession was taken on the date of gift, it cannot be stated that possession was handedover to the first respondent/plaintiff and the gift has become complete. When the properties, which are the subject matter of the gift are in possession of the tenants, delivery can be effected through handing over of documents of title, asking the tenants to attorn tenancy in favor of the donor. In this case, there was no handing over of possession of documents of title and it is not the case of the first respondent that the tenants were there and they were informed and they agreed to attorn the tenancy in favour of the first respondent/plaintiff. The first defendant denied the gift by the defendants 4 to 16 in his presence by filing a statement and by giving evidence. Further, the first respondent/plaintiff is a competent person to speak about the oral gift and she is competent to speak that the gift was accepted by her and possession was taken by her and she was not examined in Court, to prove the gift. Though, it was stated by P.W.1 that the first respondent was not physically all right and she was not in a position to attend the Court, nothing prevented the first respondent to examine herself by the Commissioner. Though, it was stated by P.W.1 that the first respondent was not physically all right and she was not in a position to attend the Court, nothing prevented the first respondent to examine herself by the Commissioner. By reason of the non examination of the first respondent an adverse inference can be drawn against the first respondent. 22. Therefore, having regard to the fact that there was no proof of declaration of gift by the donor viz., the defendants 4 to 16, and there was no proof of delivery of possession or acceptance of gift, no valid gift had taken place and therefore, the first respondent/plaintiff cannot claim any right or title under the oral gift deed, dated 04.08.2004. Further, no proof was made available that the defendants 4 to 16 had came to India during the relevant time. The conduct of the defendants 4 to 16, would also prove that they could not have orally gifted the properties to the first respondent. 23. Admittedly, in the suit in O.S.No.1 of 1979, filed by the mother of the first respondent, for partition, the defendants 1 to 16, contested the suit and got their share of properties and participated in the final decree and got their share. Therefore, it is highly improbable that such persons would have gifted the properties to the first respondent, especially, when there is no love and affection between the first respondent and the defendants 1 to 16. This fact would also prove that the gift alleged by the first respondent cannot be genuine. These aspects were not properly appreciated by the First Appellate Court. Hence, the substantial question No.1 is also answered in favour of the appellant and I hold that the first respondent failed to prove oral gift deed, dated 04.08.2004 and therefore, she is not entitled to the relief prayed for. 24. In the result, the judgment and decree of the First Appellate Court is set aside and that of the Trial Court is confirmed and the Second Appeal is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.