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2015 DIGILAW 410 (GAU)

Sukur Ali v. Jarina Bibi

2015-04-02

A.K.GOSWAMI

body2015
JUDGMENT : ” This second appeal is directed against the judgment and decree dated 17.12.2008 passed by the learned Court of Civil Judge, Dhubri, in Title Appeal No. 18/2006 whereby the judgment and decree dated 21.01.06 passed by the learned Court of Munsiff No. 1, Dhubri, in Title Suit No. 287/2003 was reversed. 2. I have heard Mr. B. Sinha, learned counsel for the appellant. None appears for the respondent. 3. The appellant was the defendant. The defendant-appellant is the son of the brother of Gulbhan Bibi, who, according to the plaintiffs, made an oral gift in their favour. 4. The respondent along with one Jahar Ali filed a suit stating, inter alia, that one Gulbhan Bibi owned and possessed land measuring 6 Bigha 4 Katha 18 Lecha as described in the Schedule to the plaint in various Dags of Patta Nos. 65 and 66 of Rangapani Pt-II in the District of Dhubri. She and her husband, Akbar Ali, had no issue and they brought up the plaintiffs as daughter and son from their childhood and after they had attained majority, the couple gave each of them in marriage. The plaintiffs had looked after them as parents till their death living in the same mess and house. Akbar Ali pre-deceased Gulbhan Bibi. It was pleaded that Schedule land was gifted to them by Gulbhan Bibi in equal shares and delivery of possession was also given to them. The defendant was not an heir of late Gulbhan Bibi and, thus, not entitled to any share of the land and that he was only an ' Adhiar' in the suit land. The plaintiffs had filed a petition for mutation and said petition was rejected on 02.06.2003 on an objection being lodged by the defendant. 5. Accordingly, suit was filed praying for a decree declaring right, title and interest of the plaintiffs over the suit land on the basis of the gift and for correction of the records by cancelling the mutation in the name of the defendant, if any, and for khas possession by evicting the defendant and for a decree of compensation at the rate of Rs. 100/- per day for illegal occupation upon the suit land. 6. 100/- per day for illegal occupation upon the suit land. 6. A written statement was filed by the defendant taking usual pleas such as non-maintainability of the suit, the suit being barred by waiver and acquiescence, suit being barred by law of limitation, lack of cause of action, etc. The allegations made in the plaint were denied. It was stated that plaintiff No. 1 was a maid servant in the house of Gulbhan Bibi and that the suit land was not gifted to the plaintiffs and that they are not in possession. 7. On the basis of the pleadings, the learned trial Court framed the following issues: ' 1. Is there any cause of action for the suit? 2. Whether the plaintiffs have right, title and interest over the suit land? 3. Whether the suit is maintainable? 4. Whether the plaintiffs are entitled to reliefs as prayed for?' 8. The plaintiffs adduced the evidence of five witnesses; whereas the defendants adduced no evidence but cross-examined the witnesses examined on behalf of the plaintiff. 9. On the basis of the evidence on record, learned trial Court concluded that the plaintiffs had failed to prove the oral gift as pleaded in the plaint and, accordingly, held that the plaintiffs have no right, title and interest over the suit land. In view of the above finding in issue No. 2, the suit came to be dismissed. 10. Only plaintiff No. 1 preferred an appeal against the judgment and decree of the learned trial Court. 11. The learned appellate Court allowed the appeal by holding that the gift made was valid under Muhammadan Law. 12. This appeal was admitted by an order dated 04.09.2009 on the following substantial question of law: ' 1. Whether the plaintiff could prove the three essential conditions to constitute a valid oral gift within the meaning of Section 149 of the Muhammadan Law?' 13. Mr. Sinha has submitted that the plaintiffs miserably failed to prove that there was any valid oral gift. There is no pleading as well as evidence as to when the oral gift was made and when there was so-called delivery of possession. Relying on Clause 149 of the ' Mahomedan Law' by Mullah, 20th Edition, he submits that delivery of possession is an essential ingredient to the validity of an oral gift in Muhammadan Law. There is no pleading as well as evidence as to when the oral gift was made and when there was so-called delivery of possession. Relying on Clause 149 of the ' Mahomedan Law' by Mullah, 20th Edition, he submits that delivery of possession is an essential ingredient to the validity of an oral gift in Muhammadan Law. It is submitted by him that the learned lower appellate Court committed manifest error of law in holding that the oral gift was valid as symbolic delivery of possession is sufficient in view of the fact that the donor and the donee resided in a joint mess overlooking the fact that the alleged gifted property was not where the plaintiffs and the donor resided in a joint mess. He has submitted that the plaintiff No. 2 did not even come to depose with regard to gift made in his favour. He has relied on a judgment of the Apex Court in the case of Rasheeda Khatoon (Dead) through LRs v. Ashiq Ali, s/o Lt. Abu Mohd. (Dead) through LRs, reported in (2014) 10 SCC 459 : (AIR 2015 SC (Civ) 226). 14. At this stage, it will be appropriate to refer to Sections 123 and 129 of the Transfer of Property Act, 1882, for short, ' the Act” . Section 123 of the Act stipulates that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 129 provides for saving of donations mortis causa and Muhammadan Law, wherein it is stated that nothing in this Chapter, meaning thereby Chapter-VII under the heading ' OF GIFTS” , relates to gifts of movable property made in contemplation of death and shall be deemed to affect any rule of Muhammadan Law. Thus, for the purpose of Muhammadan Law, provisions relating to gifts as contained in the Act are not applicable. 15. In Karam Ilahi v. Sharfuddin, reported in AIR 1960 All 351, it was held that the provisions of Section 123 of the Act are inapplicable to gifts made by Muhammadans and valid according to their law. It was also held that the Legislature had in its mind the provision of Section 123 when enacting Section 129. 16. 15. In Karam Ilahi v. Sharfuddin, reported in AIR 1960 All 351, it was held that the provisions of Section 123 of the Act are inapplicable to gifts made by Muhammadans and valid according to their law. It was also held that the Legislature had in its mind the provision of Section 123 when enacting Section 129. 16. In ' Mahomedan Law' by Mullah, in Clause 149, the three essentials of a gift are noted. It is provided that three indispensible essential requisites for the validity of a gift there should be (i) a declaration of gift by the donor, (ii) an acceptance of the gift, express or implied, by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Clause 150. If these conditions are complied with, the gift is complete. 17. Clause 150 of ' Mahomedan Law' by Mullah, in essence, provides that it is essential to the validity of a gift that there should be a delivery of such possession as a subject of the gift is susceptible of. The taking of possession of the subject-matter of the gift by the donee actually or constructively is necessary to complete a gift. 18. Clause 152 of ' Mahomedan Law' by Mullah deals with delivery of possession of immovable property (i) where donor is in possession, (ii) where property is in the occupation of the tenants and (iii) where donor and donee both reside in the property. 19. A gift of immovable property, under Clause 152 above, of which the donor is in actual possession, is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. A gift of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee, or by delivery of title deed or by mutation in the revenue register or the landlord” s sherista. A gift of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee, or by delivery of title deed or by mutation in the revenue register or the landlord” s sherista. No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift and in such a case, the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. 20. In Nasib Ali v. Wajid Ali, reported in AIR 1927 Cal 197, it was held that the essentials of a gift under the Muhammadan law are a declaration of ' hiba' (gift) by the donor, an acceptance, which may be express or implied, of the gift by the donee, and delivery of the possession of the property which is the subject-matter of the gift, according to its nature. 21. In Hafeeza Bibi v. Sk. Farid, reported in (2011) 5 SCC 654 : ( AIR 2011 SC 1695 ), the Apex Court stated as follows: ' 26. Under the Mahommedan law the three essential requisites to make a gift valid are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee expressly or impliedly, and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 of the Transfer of Property Act excludes the rule of Mahomedan Law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case.' 22. In Rasheeda Khatun (AIR 2015 SC (Civ) 226) (supra), the Apex Court at paragraph 17 had stated as follows: ' 17. Whether the writing requires registration or not depends on the facts and circumstances of each case.' 22. In Rasheeda Khatun (AIR 2015 SC (Civ) 226) (supra), the Apex Court at paragraph 17 had stated as follows: ' 17. it is discernible that a gift under the Muhammadan Law can be an oral gift and need not be registered; that a written instrument does not, under all circumstances require registration; that to be a valid gift under the Muhammadan law three essential features, namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act.' 23. In Section 394 of the ' Muslim Law' by Tyabji, ' possession' has been defined as under: ' A person is said to be in possession of a thing, or of immovable property, when he is so placed with reference to it that he can exercise exclusive control over it, for the purpose of deriving from it such benefit as it is capable of rendering, or as is usually derived from it.' 24. The learned lower appellate Court allowed the appeal by holding thus: ' That apart, the delivery of possession of a gift may be actual or constructive; when physical delivery of possession is not possible such possession as the property admits may be delivered. The donor must of course divest himself of his possession to complete the gift. In our instant case, the donor and the donee resided in a joint mess and in such case, symbolic delivery of possession of property is sufficient to make the gift a valid one and in every case, no physical departure or formal entry is necessary in case of a gift of immovable property where there is clear intention to transfer the possession to the donee. Therefore, I am of the opinion that the gift is valid under Mahomedan Law.' 25. The appellate Court pre-supposed that as the donor and the donee resided in a joint mess, symbolic delivery of possession of property is sufficient to make the gift a valid one. Therefore, I am of the opinion that the gift is valid under Mahomedan Law.' 25. The appellate Court pre-supposed that as the donor and the donee resided in a joint mess, symbolic delivery of possession of property is sufficient to make the gift a valid one. It is to be noted that the principle will apply to gift of the immovable property in which the donor and donee are both residing at the time of the gift. Even assuming that the donor and donee were residing together, the property in which they were residing together is not the subject-matter of gift and, therefore, the aforesaid principle will not come into play. The plaint version was that the defendant was an ' Adhiar' , i.e. a kind of tenant. There is no evidence that there was any request to the defendant to attorn to the donee or that delivery of title deed was delivered to the donee. In the order of the learned trial Court, while referring to the evidence of PW1, it has been recorded as, ' we have possessed the suit land¦ Sukur Ali is in possession of the entire suit land' . The first part is not correctly reproduced inasmuch what was stated by PW1 in cross-examination was that ' we never possessed the suit land' . When the oral gift was made or when the alleged delivery of possession was made is neither pleaded nor deposed. The learned trial Court, marshalling the evidence on record, had correctly assessed that plaintiffs were never delivered possession of the suit land. Thus, one of the essentials of an oral gift, namely, delivery of possession, is lacking in the instant case. The concept of symbolic delivery of possession, on which the impugned judgment of the appellate Court is based, is not applicable in the facts and circumstances of the case. 26. In view of the above discussions, the impugned judgment of the lower appellate Court is set aside. Resultantly, the appeal is allowed. No cost. 27. Send down the LCR. Appeal allowed.