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2021 DIGILAW 417 (TS)

Akhter Begum v. Khadeer Khan

2021-12-17

M.LAXMAN

body2021
JUDGMENT: 1. Since both the appeals raise common substantial questions of law, they were heard together and are being disposed of by this common judgment. 2. S.A.No.882 of 2010 assails the judgment and decree dated 05.03.2010 in A.S.No.310 of 2006 on the file of the II Additional Chief Judge, City Civil Courts, Hyderabad, whereunder the appeal was dismissed confirming the judgment and decree passed in O.S.No.1497 of 1998, dated 21.04.2005 by the IX Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad. 3. S.A.No.114 of 2012 assails the judgment and decree dated 28.02.2011 in A.S.No.107 of 2006 on the file of the XIV Additional Chief Judge (FTC), City Civil Courts, Hyderabad, whereunder the appeal was dismissed confirming the judgment and decree passed in O.S.No.1498 of 1998, dated 21.04.2005 by the IX Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad. 4. Both the aforesaid suits were filed for declaration of title and recovery of possession of the suit schedule properties and also for mesne profits and the same were dismissed. 5. The appellant in S.A.No.882 of 2010 is the plaintiff in O.S.No.1497 of 1998 and the appellant in S.A.No.114 of 2012 is the plaintiff in O.S.No.1498 of 1998. Respondent in both these appeals is the defendant in both the suits. For the sake of convenience, the appellants herein are referred to as the plaintiffs and the respondent herein is referred to as the defendant. 6. The case of the plaintiffs is that Smt.Noorkhatoon, wife of late Mohd.Sharfuddin, was the absolute owner and possessor of house bearing Municipal No.10-5-244, an extent of 235 square yards of land, situated at Ahmed Nagar, First Lancer, Hyderabad. Smt.Noorkhatoon gifted two portions of the said house property comprising an area of 58.75 square yards each, which are suit schedule properties, to the plaintiffs, who are her daughters, through gift deeds both dated 13.07.1984 vide document Nos.1592/1984 and 1590/1984. Similarly, Smt.Noorkhatoon has executed various registered gift deeds in favour of other daughters in respect of other portions of the said house property. 7. The defendant is the maternal uncle of the plaintiffs. The plaintiffs, under an oral agreement of tenancy, handed over the suit schedule properties to the defendant on 01.07.1987 on monthly rent of Rs.400/- payable on or before 5th of each English calendar month. 7. The defendant is the maternal uncle of the plaintiffs. The plaintiffs, under an oral agreement of tenancy, handed over the suit schedule properties to the defendant on 01.07.1987 on monthly rent of Rs.400/- payable on or before 5th of each English calendar month. The defendant committed default in payment of rent, for which, the plaintiff in O.S.No.1498 of 1998 filed an eviction petition in R.C.No.615 of 1994 on the ground of personal requirement against the defendant on the file of the Principal Rent Controller, Hyderabad. The defendant contested the said eviction petition claiming that he is the owner of the property by virtue of a registered sale deed executed on 05.09.1985 by Smt.Noorkhatoon in his favour, after revoking the gifts made in favour of the plaintiffs through registered revocation deeds dated 03.09.1985. The defendant, taking undue advantage of the relationship, had created the alleged deeds of revocation of gift deeds and registered sale deed in his favour. On account of denial of title over the suit properties by the defendant, the Rent Controller dismissed the eviction petition by order dated 23.09.1997 with an observation that there is a serious dispute between the parties with regard to title. 8. The plaintiffs’ pleadings further show that Smt.Noorkhatoon had no right to revoke the gifts executed by her favour of the plaintiffs and she was not competent to execute registered sale deed in favour of the defendant. The revocation deeds as well as the sale deed are fictitious and bogus documents and are not binding on the plaintiffs. The sister of the plaintiffs viz., Zahra Begum filed a criminal case against the defendant for fabricating the sale deed and criminal proceedings are pending. 9. The plaintiffs’ pleadings further show that the plaintiffs are the absolute owners of the suit schedule properties and the defendant is in unauthorized and illegal possession of the same on the basis of bogus and sham documents asserting himself as the owner of the suit schedule properties. Hence, the plaintiffs filed the aforesaid suits. 10. The defendant’s pleadings show that he admits the relationship. He claimed that Mohd.Khan, who is the father of the defendant, was the owner and possessor of house property bearing No.10-5-244 comprising of 200 and odd square yards, situated at Ahmed Nagar, Hyderabad. Hence, the plaintiffs filed the aforesaid suits. 10. The defendant’s pleadings show that he admits the relationship. He claimed that Mohd.Khan, who is the father of the defendant, was the owner and possessor of house property bearing No.10-5-244 comprising of 200 and odd square yards, situated at Ahmed Nagar, Hyderabad. After his demise, his wife - Khateeza Bee executed a document in favour of Smt.Noorkhatoon, who is the sister of the defendant, gifting the said property. The defendant called upon the plaintiffs to prove the gift deeds vide document Nos.1592/1984 and 1590/1984 in accordance with law, to claim their title. The plaintiffs have not explained any reason for non-filing of the original gift deeds. The defendant had denied the plaintiffs’ claim that he obtained the suit properties on lease on monthly rent and claimed that such a plea is fabricated and therefore, there is no question of committing any default in payment of rent, since there is no tenancy. The defendant admits the eviction proceedings at the instance of the plaintiff in O.S.No.1498 of 1998. By virtue of gift deed, revocation deeds and sale deed, Smt.Noorkhatoon was holding title and possession in between 13.07.1984 to 05.09.1985 and the defendant acquired better title and possession under the said sale deed. 11. The defendant’s pleadings further show that the plaintiffs are having knowing about the execution of revocation deeds dated 03.09.1985, so also the registered sale deed dated 05.09.1985, for the reason that they are the attestors to the both the documents along with other sisters. Suppressing the same, the present suits have been filed abusing process of law. The documents referred in the plaints prove that Smt.Noorkhatoon was in possession of the property till she executed the sale deed in favour of the defendant. The complaint filed by the sister of the plaintiffs was closed by filing final report, and on the protest petition, the criminal proceedings are continuing. As per the expert opinion, all the documents were found genuinely executed. The defendant filed O.S.No.4584 of 1995 on the file of the VIII Junior Civil Judge, City Civil Court, Hyderabad, for declaratory relief and injunction against one of the sisters of the plaintiffs and the same is pending. According to the defendant, the plaintiffs have no title or possession and there is no question of grant of any mesne profits and prayed to dismiss the suit. 12. According to the defendant, the plaintiffs have no title or possession and there is no question of grant of any mesne profits and prayed to dismiss the suit. 12. The trial Court, on the basis of the above pleadings, has framed the following issues: “1. Whether the plaintiff is entitled for declaration that she is the absolute and exclusive owner of the suit schedule property? 2. Whether the plaintiff is entitled for recovery of the possession in the suit schedule property? 3. Whether the plaintiff is entitled for the past mesne profits? 4. Whether the valuation and court fee paid is sufficient? 5. To what relief? 13. The plaintiff in O.S.No.1497 of 1998, to support her case, examined P.W.1 and relied upon Exs.A-1 to A-3 and the plaintiff in O.S.No.1498 of 1998 examined P.W.1 and relied upon Exs.A-1 to A-4. The defendant, to support his case, examined D.Ws.1 and 2 in both the suits and relied upon Exs.B-1 to B-6 in O.S.No.1497 of 1998 and Exs.B-1 to B-4 in O.S.No.1498 of 1998. 14. The trial Court, after appreciating the evidence on record, found that the essential elements of gift under Mohammedan Law were not established, and dismissed both the suits. The plaintiffs preferred separate appeals vide A.S.No.310 of 2006 and A.S.No.107 of 2006, and in the appeals also, the findings of the trial Court were confirmed by the first appellate Courts. Aggrieved by the same, the present Second Appeals were filed. 15. Heard both sides. 16. Upon hearing both the counsel, the following common substantial questions of law are framed in both the appeals: “1. Whether the cancellation of deed under Ex.B-2 was executed in violation of Rule 182 of the Principles of Mohammedan Law? 2. Whether the limitation commences from the date of sale deed in the absence of proof of tenancy between the plaintiffs and the defendant or from the date of denial of notice issued by the plaintiffs for eviction or from the date of order of Rent Controller? 3. Whether the non-examination of attestors to the gift deeds dispense with the burden of proof due to execution of revocation deeds under Exs.B-2? 4. Whether the acts of the plaintiffs being the attestors to Ex.B-2 and B-3 tantamount to knowledge about the facts under the documents and amount to consent?” Question No.3: 17. 3. Whether the non-examination of attestors to the gift deeds dispense with the burden of proof due to execution of revocation deeds under Exs.B-2? 4. Whether the acts of the plaintiffs being the attestors to Ex.B-2 and B-3 tantamount to knowledge about the facts under the documents and amount to consent?” Question No.3: 17. Learned counsel for the defendant/respondent has contended that when the defendant denied execution and contents of the gift deeds, the plaintiffs cannot rely upon them, unless the gift deeds are proved in terms of Section 68 of the Indian Evidence Act, 1872. 18. Learned counsel for the plaintiffs/appellants has contended that when the defendant himself is claiming right over the suit schedule properties by virtue of revocation of gift deeds executed in favour of the plaintiffs and subsequent sale deed executed by the donor under the gift deeds, the revocation itself presupposes the execution and admission of the documents by the parties. When the parties admit the execution, there is no requirement to prove gift deeds by examining the attestors for the reason that the gift deeds are compulsory attestable documents. 19. In this regard, the recent judgment of the Apex Court in Govindbhai Chhotabhai Patel v. Patel Ramanbhai Mathurbhai, Civil Appeal No.7528/2019 dated 23.09.2019, clears the contentions of both the parties and the relevant paras read as under: “22) The other material question is whether the appellants have specifically denied the execution of the gift deed in terms of proviso to Section 68 of the Evidence Act, to make it mandatory for the defendant to examine one of the attesting witnesses to prove the Gift deed in his favour. 23) Section 68 of the Evidence Act, reads as under: “68. 23) Section 68 of the Evidence Act, reads as under: “68. Proof of execution of document required by law to be attested- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” 24) A gift deed is required to be compulsorily attested in terms of Section 123 of the Transfer of Property Act, 1882. Similar is the provision in respect of execution of a Will which is required to be attested in terms of Section 63 of the Indian Succession Act, 1925. Section 68 of the Evidence Act makes it mandatory to examine one of the attesting witnesses for the purpose of proving of the execution of Will but such limitation is not applicable in respect of proof of execution of any document which has been registered in accordance with provisions of the Indian Registration Act, 1908, unless the execution is specifically denied.” 20. As per the provisions of Section 68 of the Indian Evidence Act, the examination of attesting witness in proof of examination of document is not necessary when such a compulsory attestable document is registered in accordance with the provisions of the Registration Act, 1908, unless its execution by a person by whom it purported to have been executed is specifically denied. In the present case, the defendant set up his title and possession on the basis of the sale deed and the revocation of gift deeds. The revocation of gift deeds, by the executant of the gift deeds in favour of the plaintiffs, presupposes the admission of execution of documents by the donor. When the donor by acts of revocation admits the execution, there is no need to examine the attestor to the document. Therefore, the contention of the defendant is not sustainable. Accordingly, this question is answered in favour of the plaintiffs. When the donor by acts of revocation admits the execution, there is no need to examine the attestor to the document. Therefore, the contention of the defendant is not sustainable. Accordingly, this question is answered in favour of the plaintiffs. Question Nos.1 and 4: 21. Admittedly, both the parties to the present litigations are Muslims by religion and the gift deeds and revocation deeds under dispute are executed in terms of the provisions of the Mohammedan Law. Sections 122 to 129 of the Transfer of Property Act deal with gift of immovable property. By virtue of Section 129 of the Transfer of Property Act, the provisions of Transfer of Property Act dealing with the gift are not applicable to Muslims. Rule 177 of the principles of Mohammedan Law of Second Edition 1998 by Dr.Nishi Purohit (for short, Rules) requires the following essentials to create a valid gift in between the Muslims:- “Rule 177. A gift how made:-Under Mohammedan Law a gift may be made:- (i) by a clear and unequivocal declaration of intention of making a gift made orally or in writing by the donor or his agent and (ii) accepted expressly or impliedly by the donee or his agent except in the case of a gift, a) by a guardian to his ward; or b) of a debt to the debtor; and (iii) Such declaration and acceptance must be followed by the delivery of possession (actually or, constructively) of the subject-matter of the gift by the doner or his agent to; a) the donee or his agent; or b) to the guardian, if the donee is a minor or lunate; or c) to the husband if the donee is a minor wife provided that the marriage has been consummated; or d) to the trustees, if the gift is made through a trust (iv) on the delivery of possession, a gift becomes complete, immediately.” 22. A glance of the above Rules show that firstly, there must be declaration of gift by the donor; secondly, there must be acceptance of gift either expressly or impliedly by the donee; and lastly there must be delivery of possession of subject matter of gift by the donor to the donee. If all these three conditions are fulfilled, the gift under Mohammedan Law is completed. 23. The plaintiffs claim gift under Ex.A-1 and the defendant claims revocation of such gift under Ex.A-2. If all these three conditions are fulfilled, the gift under Mohammedan Law is completed. 23. The plaintiffs claim gift under Ex.A-1 and the defendant claims revocation of such gift under Ex.A-2. Both are registered documents, and further both the documents are unilaterally executed by Smt.Noorkhatoon (the donor of the gift). The main area of dispute between the plaintiffs and the defendant is that there is no sanctity for revocation of gift deeds according to the plaintiffs for the reason that the gift essentials are completed and possession of the properties was also delivered, and any cancellation of such a gift must be mutual in accordance with Rule 182 of the Rules. According to the plaintiffs, the document under Ex.B-3 was unilaterally executed after the gifts became valid and hence, such a unilateral cancellation/revocation is in violation of Rule 182 of the Rules. 24. On the contrary, the case set up by the defendant is that the essential elements of gift were not completed. The recitals of revocation deed show that there was no acceptance of gift by the plaintiffs and there is no delivery of possession of the subject matter of gift. These two essential elements, out of three elements, required for valid gift under the Mohammedan Law have not been established by the plaintiffs. It is also the case of the defendant that revocation deeds and the sale deeds were attested by the plaintiffs and they are signatories to both the documents and such attestation was done after elaborate discussions among the mother and daughters before and at the time of execution of Exs.B-2 and B-3 documents. These circumstances indicate that the plaintiffs are aware of the contents of the documents and actions of the donor and these circumstances establish that they acknowledged non-fulfillment of essential conditions of gift as referred under the revocation deed. 25. To the said argument, the learned counsel for the plaintiffs/appellants has contended that mere attestation of the document cannot be taken to mean that the attestor knows the contents of the document. Attestation, at the most, is relevant to establish the execution of the document, and such attestation cannot be taken to mean that attestor knows the contents and consent is given to such a document. 26. In support of his contention, he relied upon the Privy Council judgment in Pandurang Krishnaji v. Markandeya Tukaram, Indian Law Reports Vol.XLIX. Attestation, at the most, is relevant to establish the execution of the document, and such attestation cannot be taken to mean that attestor knows the contents and consent is given to such a document. 26. In support of his contention, he relied upon the Privy Council judgment in Pandurang Krishnaji v. Markandeya Tukaram, Indian Law Reports Vol.XLIX. A reading of the ratio in the said judgment indicates that attestation implies only witnessing the execution of the deed, and if there are circumstances which would show that witness attesting the deed, in fact, knows the contents of the document, an inference can be drawn about the knowledge of the contents of the document. However, by mere attestation, no inference can be drawn that the attestor knows the contents of the document. 27. The evidence adduced on behalf of the defendant, more particularly D.W.2, the witness to Ex.B-3 sale deed, and oral evidence of D.W.1 go to show that the donor and her daughters deliberated thoroughly, and after unity of their minds, they offered to sell the property to the defendant by revoking the previous gift deeds, and therefore, the contents of the revocation deeds, which necessitated to cancel the gift deeds, were within the knowledge of the plaintiffs and other daughters of the donor. After knowing fully well, the plaintiffs have signed as attestors to the documents. 28. In this regard, it is also relevant to refer to some of the judgments of various High Courts and the Apex Court dealing with the effect of attestation to the document. In Narayana Aiyar v. Rama Aiyar, ILR Mad. 396, Justice Sadasiva Ayyar speaking for the Division Bench observed as follows: “6. …in the later case of Vadrevu Banganayakamma v. Vadrevu Bulli Bamayya {(1879) 5 C.L.R. 439} at page 447, the Privy Council approvingly say' but it frequently occurs in native (Indian) documents that a man signs as a witness to show that he is acknowledging the instrument to be correct'. I may respectfully add that, in my pretty long experience as a Judicial Officer, if the attestor of the document has an existing interest in the property dealt with in the document, it has been always the case that this attestation has been taken in order to bind him as to the correctness of the recitals therein.” 29. I may respectfully add that, in my pretty long experience as a Judicial Officer, if the attestor of the document has an existing interest in the property dealt with in the document, it has been always the case that this attestation has been taken in order to bind him as to the correctness of the recitals therein.” 29. In case of State of Kerala v. Babu, 2003 (2) K.L.T. 526 , a learned Single Judge of Kerala High Court observed as follows: “4. …Attestor to a document cannot by mere attestation be imputed with the knowledge of the contents of the document. However, on the facts of a given case where there is a close relationship between the executant and the attestor such as husband and wife, father and son, the possibilities of the attestor having knowledge regarding the recitals in the documents and about the circumstances under which the document came to be executed cannot be ruled out…” 30. The Apex Court in Mehboob Sahab v. Syed Ismayil, AIR 1995 S.C. 1205 , held as follows: “7. Admittedly, the father continued to be in possession and enjoyment of the lands as owner as evidenced by the revenue records until it was mutated in the name of the Appellants to the extent of 16 acres purchased by him as per the aforesaid sale deeds Exts. D-1 and D-3. Ibrahim has attested Ext. D-1 when his father conveyed the lands as an owner. Though the sale was against his interest, he had not objected to the sale. He thereby, is estopped by conduct and record to assail Ext. D-1 sale or to claim any interest in the lands.” 31. It is also relevant to refer to the decision of Apex Court in Chandrakantaben v. Vadilal Bapalal Modi, AIR 1989 SC 1269 , wherein the Apex Court held that an attesting witness of a document is not presumed to be aware of its contents. The observations of the Apex Court in this regard read as under:- “15. …Reliance has been placed on the attestation of Bapalal, the father of the executants. Two days earlier i.e. on 22.10.1954 he had executed a release deed, Ext.222 giving up his right in the family properties for a sum of money named therein. He was already staying in Vrindavan for sometime past and proposed to spend rest of his life there. …Reliance has been placed on the attestation of Bapalal, the father of the executants. Two days earlier i.e. on 22.10.1954 he had executed a release deed, Ext.222 giving up his right in the family properties for a sum of money named therein. He was already staying in Vrindavan for sometime past and proposed to spend rest of his life there. The release deed however, did not contain any list of properties and the document, therefore, is not of any help to either side. So far the agreement Ext. 167 is concerned, it has not been stated by anybody that Bapalal went through its contents or that somebody read the same to him before he attested it…” 32. From a reading of the above decisions, what is clear is that mere attestation to a document cannot be imputed that the attestor had knowledge about the contents of the document. There may be circumstances which would show that the attestor to the document had knowledge about the contents of the facts and one of the relevant circumstances was the close relation between the executant of the document and attestor to the document. The knowledge to the contents of the document cannot be inferred mere fact of attestation. 33. Looking at the above requirements of law of attestation, in the present case, the plaintiffs are the daughters of the executatnt of revocation deeds and the fact remains that on the same day, not only the present gift deeds of the plaintiffs were revoked, but the gift deeds of other daughters were also revoked. There is consistent evidence from D.Ws.1 and 2 to the effect that all the daughters of the executant of the revocation deeds have participated in the deliberations which finally led to execution of revocation deeds as well as the sale deed. The plaintiffs initially contended that the revocation deeds and the sale deed were fabricated and they have not admitted their signatures on the documents. During the course of trial, such a stand was reversed and they have admitted their signatures on Exs.B-2 and B-3. All these circumstances would go to show that the plaintiffs being the attestors not only know the execution, but also aware of the contents of the documents for which they were the signatories in the capacity of attestors. 34. During the course of trial, such a stand was reversed and they have admitted their signatures on Exs.B-2 and B-3. All these circumstances would go to show that the plaintiffs being the attestors not only know the execution, but also aware of the contents of the documents for which they were the signatories in the capacity of attestors. 34. In case of Narayana Aiyar (supra), it was rightly observed that the normal experience and practice that is adopted in the execution of document is by taking the signatures of multiple attestors. Such a multiple attestation was taken from the existing interest holder of the property that is under transaction in the document and that was only to bind such a witness to the correctness of the recitals therein. In the present case, the daughters of the executants of gift deeds have signed as witnesses to the deeds of revocation and the purpose of obtaining signatures of the daughters of executant of the gift deeds is to see that they have not only witnessed the execution of deeds of revocation by the executant, but also to bind them and prevent them from challenging such documents in future. Similarly, the plaintiffs were also made as witnesses to the sale deed executed in favour of the defendant. The purpose of obtaining the signatures of the plaintiffs on the two documents is not only to make them witness the execution of the documents, but also with an intention to bind them with regard to correctness of the recitals of the documents, so that in future, they cannot resile denying the recitals therein and challenge such documents. This is the common practice which is normally adopted in transactions where multiple interests are involved, so that beneficiary under the document would get undisputed title to the property which is subject matter of the documents. 35. From the facts and the evidence on record, it is clear the plaintiffs in the capacity of attesotrs to Exs.B-2 and B-3 not only witnessed the execution but also their knowledge about the recitals can be imputed and further, it can also inferred by the conduct of the parties that the plaintiffs had consented and acknowledged the transactions dealt with by the executant of the gift deeds as well as the revocation deeds. 36. 36. The next contention of the learned counsel for the plaintiffs is that the donor and the donee under the gift deeds were staying together in a common house at the time of execution of the gift deeds. The gift deeds were executed and registered and the donees are already in possession of the properties, and therefore, it is not required to be exhibited that the donor must live out of such a common possession so as to indicate the delivery of possession. According to him, as per Rule 182 of the Rules, when possession has been delivered, any revocation of gift deed must be by mutual consent. In this case, there is unilateral revocation of gift deeds without mutual consent. Therefore, the revocation is bad and consequently the sale deeds executed subsequent to revocation deeds are also invalid and no title conferred on the defendant. 37. In this regard, the contention of the learned counsel for the defendant is that the recitals of revocation deeds clearly demonstrate that the gifts were not accepted by the plaintiffs and possession of the properties was not delivered. Further, the plaintiffs failed to establish the overt acts to demonstrate the acceptance of the gifts and there is no proof to show that the possession of the properties under the gift deeds was delivered to the plaintiffs. 38. In the light of the above submissions, it is required to look into Rule 182 of the Rules which read as under: “Rule 182. Revocation of gifts: (i) Before the delivery of possession to the donee all gifts are revocable by mere declaration by the donor. 38. In the light of the above submissions, it is required to look into Rule 182 of the Rules which read as under: “Rule 182. Revocation of gifts: (i) Before the delivery of possession to the donee all gifts are revocable by mere declaration by the donor. (ii) After the delivery of possession to the donee by the donor, all gifts are revocable either with the mutual consent of the parties or by a decree of the Court, except in the following cases:- (a) where a gift is made by one spouse to another during the subsistence of marriage; (b) where the donor and the donee are related within the prohibited degrees by consanguinity; (c) where the donee or the donor is dead; (d) where the gift is of a debt to the debtor discharging the debtor from liability; (e) where the subject-matter of the fit is lost or destroyed; (f) where the value of the subject-matter of the gift has increased; (g) where the identity of the subject-matter of the gift has been completely lost or destroyed; (h) where the donor has received some consideration for the gift; and (i) where the gift is in sadaq form. (iii) The Shia Law regarding revocation of gifts after delivery of possession differs from the Sunni Law in the following respects : (a) Mere declaration of the revocation by the donor is sufficient; (b) A gift made to a spouse is revocable; and (c) A gift to a relation whether within the prohibited degrees or not is irrevocable. Shaffis also agree with the Shias except in the case of a gift by a father or other ascendants to his descendants.” 39. Looking at the above contents of Rule 182 of the Rules, it contains two parts. The first part deals with power of revocation vested with the donor unilaterally in a case where possession was not delivered and revocation can be done by mere declaration by the donor. The second part deals with cases where revocation is done after delivery of possession. When the possession is delivered, revocation can be done either mutual consent of the parties or by decree of Court. There are other exceptions created for such revocation, but they are not relevant for the purpose of the present case. The second part deals with cases where revocation is done after delivery of possession. When the possession is delivered, revocation can be done either mutual consent of the parties or by decree of Court. There are other exceptions created for such revocation, but they are not relevant for the purpose of the present case. To simplify further, before delivery of possession, a unilateral revocation is permitted, but after delivery of possession, there must be mutual consent for revocation or by Court decree. 40. The plaintiffs’ case is that gifts were completed and possession was delivered under the gifts. The evidence on record shows that at the time of execution of gift deeds as well as revocation deeds, the donor and the donees were staying together and the same is clear from the addresses of the respective parties given under the gift deeds as well as the revocation deeds. It is also not in dispute that the original gift deeds are not in the possession of the plaintiffs and they are with the defendant. 41. In the above factual matrix, the learned counsel for the plaintiffs relied upon the decisions of various High Courts and Apex Court i.e., Ismail v. Idrish, AIR 1974 PATNA 54, S.V.S. Muhammad Yusuf Rowther v. Muhammad Yusuf Rowther, AIR 1958 MADRAS 527, Ayeeshee Bivi v. K.S.A. Shaik Mohamed Alim Sahib, AIR 1964 MADRAS 309 and Asokan v. Lakshmikutty, (2007) 13 SCC 210 . 42. A reading of the above judgments would indicate that the subject matter of gifts was a house in which both the donor and the donees lived together when the said gift deeds were executed. The recital in the gift deeds that the donor has delivered the possession of the properties to the donees itself is enough to indicate that the donees were put in possession of the properties. It does not require that the donor shall vacate himself/herself from the property donated and the burden lies on the person who claims that under the gift deed, no delivery of possession was given to the donee and the donee is not required to prove his/her delivery of possession. 43. It is required to refer to paras 20 and 21 of the decision of the Apex Court in case of Asokan (supra) which read as under: “20. 43. It is required to refer to paras 20 and 21 of the decision of the Apex Court in case of Asokan (supra) which read as under: “20. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. [See Prem Singh and Ors. v. Birbal and Ors. (2006) 5 SCC 353 ] When such a presumption is raised coupled with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and not on the donee. 21. In Alavi {1984 KLT 61 (SN)}, Paripoornan, J. (as His Lordship then was) held: “It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donees.” 44. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises with regard to correctness of the recitals thereunder. The onus is on the person who denies the recitals to prove that they are correct. 45. In this regard, it is also relevant to refer to the decision of a division Bench of Allahabad High Court in Mst.Noor Jahan Begum v. Muftkhar Dad Khan, AIR 1970 All 170 , wherein it is held as follows: “7. It seems to me that under the Mahomedan Law a recital in the gift deed that possession has been delivered to the donee of the property gifted gives rise to a presumption only of such delivery and the presumption may be rebutted by those challenging the gift. It seems to me that under the Mahomedan Law a recital in the gift deed that possession has been delivered to the donee of the property gifted gives rise to a presumption only of such delivery and the presumption may be rebutted by those challenging the gift. The presumption may be rebutted by establishing that the subsequent conduct of the donor is inconsistent with the making of the gift or by demonstrating the patent improbability of what is stated by the recital.” 46. A glance of the judgment of the Apex Court in case of Asokan (supra) and the judgment of the Allahad High Court in case of Mst.Noor Jahan Begum (supra) would indicate that basing on the recitals, a presumption is available in favour of the beneficiary under the document, and such a presumption is a weak presumption and it is a rebuttable presumption. In the present case, the original gift deeds were made unilaterally. The donees have not participated in the execution process. In the course of examination P.W.1 has clearly admitted that she does not know who prepared the gift deed and where it is executed. This means, she has not participated in the execution process. 47. Admittedly, the gift deeds are registered documents and originals are not with the plaintiffs. The pleadings are silent with regard to the mode of acceptance of gifts. The acceptance of gift can be either by possession of gift deed or by possession of the subject matter of gift or by any other overt act. In the present case, the plaintiffs are not in possession of the original gift deeds and there is no other overt act to indicate that the unilateral gifts which were executed by the donor have been accepted by the donees. Though the possession was shared with the donor, such a possession cannot be indicative factor to show the acceptance of gifts. The reason is that the plaintiffs were sharing the possession of subject matter of the gifts along with the donor, and in such a circumstance, staying in the subject matter of the gifts itself is not an indicator or demonstrative factor to infer that there was acceptance of gifts. 48. The reason is that the plaintiffs were sharing the possession of subject matter of the gifts along with the donor, and in such a circumstance, staying in the subject matter of the gifts itself is not an indicator or demonstrative factor to infer that there was acceptance of gifts. 48. The case set up by the plaintiffs is that they have given the possession of the suit properties to the defendant in the year 1987 on oral lease, but they failed to establish existence of oral lease to indicate that there was some overt act on their part so as to assume that they came into possession of the suit properties under the gift deeds, which is one of the facts to indicate acceptance of gifts. 49. Apart from the above circumstances, the plaintiffs being the signatories to Exs.B-2 and B-3 demonstrated that they acknowledged the truthfulness of the contents of the revocation deeds, whereunder the cancellation was done on two grounds i.e., non-acceptance of gifts by the donees and non-delivery of possession of the properties. Apart from that, the conduct of the donor is also relevant to demonstrate whether the gifts were acted upon or not. The mode and manner of execution of the gift deeds on the same day and obtaining signatures of all the daughters of the donor, who were having gift deeds, and consequent registration of the sale deed in favour of the defendant, would demonstrate that they know the consequences of the transactions and participated in the transactions, which clearly demonstrate non-compliance of all the requirements of gift under Mohammedan Law. The plaintiffs cannot backdrop and claim that essentials of the gift under the Mohammedan Law were completed prior to the execution of revocation deeds. 50. The pleadings and the evidence of the plaintiffs are also contradictory to each other. One way, they say that the possession held by the defendant over the suit properties was under oral lease and other way, they plead that the possession is illegal and unauthorized. When the plea of tenancy is set up, there is no question of illegal and unauthorized possession. The illegal possession and unauthorized possession demonstrate that the defendant’s possession is not under the Tenancy Act and such a possession is not authorized from the plaintiffs. 51. When the plea of tenancy is set up, there is no question of illegal and unauthorized possession. The illegal possession and unauthorized possession demonstrate that the defendant’s possession is not under the Tenancy Act and such a possession is not authorized from the plaintiffs. 51. The contention of the learned counsel for the plaintiffs/appellants is that mutual consent is required for execution of revocation deeds, which is absent. This contention stands to fall. The reason is that the recitals of the documents would show that the cancellation was on the premise of non-completion of essentials of valid gift under the Mohammedan Law i.e., there was no acceptance from the donees and no delivery of possession was given to the donees. The question of mutual consent would arise where all the essentials of the gift deed are completed, and in such eventuality, the cancelation must be with mutual consent or by Court decree or must fall under the exceptions created under Rule 182 of the Rules. 52. Though the plaintiffs have got initial presumption with regard to truthfulness of recitals of the documents, the said presumption is a weak presumption. The evidence of the defendant clearly goes to show that he has demonstrated that there is no overt act or no other facts to demonstrate the acceptance of gifts on the part of the plaintiffs. The reason is that the original gift deeds were unilaterally executed. If it is a case of bilateral execution by participation donor and donee, there can be imputation of knowledge of the gift. In the present case, it is a case of unilateral execution. Though they are registered, there must be other evidence to establish acceptance of gifts from the donees. In the light of the evidence placed by the defendant more particularly possession of gift deeds, absence of any overt act and common sharing of possession of the subject matter of the gifts with the donor prior to gift, the evidentiary burden is shifted to the plaintiffs and they failed to establish fulfillment of all essentials of gift. Therefore, the plaintiffs cannot contend that all the essentials of the gifts have been complied with. There is no infraction of Rule 182 of the Rules as pleaded by the plaintiffs. Accordingly, these questions are answered in favour of the defendant. Question No.2: 53. Therefore, the plaintiffs cannot contend that all the essentials of the gifts have been complied with. There is no infraction of Rule 182 of the Rules as pleaded by the plaintiffs. Accordingly, these questions are answered in favour of the defendant. Question No.2: 53. The learned counsel for the defendant has contended that the relief prayed in the suit is barred by limitation for the reason that the defendant obtained possession of the suit properties under the sale deed which was executed in the year 1985 and the suits were filed in the year 1998. He has also contended that the suits for declaration should have been instituted under Article 58 of the Limitation Act within three years from the date of denial of title. The own documents of the plaintiff in O.S.No.1498 of 1998 i.e., Ex.A-2 – the order in R.C.No.615/1994 on the file of the Rent Controller, Hyderabad, shows that the defendant, to the notice issued by the plaintiff prior to the eviction proceedings, denied the title of the plaintiff. Therefore, such denial is prior to institution of Rent Control proceedings that had occurred in the year 1994 and the suits were filed in the year 1998, which is more than three years. Therefore, the declaration cannot be granted by virtue of efflux of limitation. 54. The learned counsel for the plaintiffs has contended that the denial of title even if it is also barred by limitation, the suit is filed for declaration and possession, the benefit of extended limitation under Article 65 of the Limitation Act governs the proceedings. As per Article 65, the limitation is 12 years from the date when the possession of the defendant adverse to the plaintiffs. According to him, the date of rent control order, whereunder the Rent Controller has passed an order holding that there is a bona fide title dispute, has to be taken as the date for limitation under Section 65 of the Limitation Act, since the possession of the defendant became adverse to the plaintiffs’ interest. 55. In the present case, the plaintiffs failed to establish their original plea of tenancy, which according to them, the possession was given to them in the year 1987. The plaintiffs failed to establish the possession under tenancy, and the defendant claims possession under Ex.B-3 sale deed. 55. In the present case, the plaintiffs failed to establish their original plea of tenancy, which according to them, the possession was given to them in the year 1987. The plaintiffs failed to establish the possession under tenancy, and the defendant claims possession under Ex.B-3 sale deed. In the light of the plaintiff’s own averment that the possession of the defendant is illegal and unauthorized, it must be inferred that the possession of the defendant must be under the sale deed only. This means, the possession of the defendant was in the year 1985 on the basis of the sale deed. When the limitation is computed from the date of sale deed under Ex.B-3, the suit is barred even under Article 65 of the Limitation Act. 56. The learned counsel for the plaintiffs has relied upon a recent decision of the Apex Court in case of Sopanrao v. Syed Mehmood, AIR 2019 SC 3113 , whereunder it was held that when the suit is filed for declaration and possession, and when the relief of declaration is barred, it does not mean that outer limitation prescribed under Article 65 of the Limitation Act is barred, still the plaintiff can hold the suit within limitation, if he establishes that the running of limitation under Article 65 is within 12 years. 57. In the present case, the defendant asserted that he obtained possession of the subject matter of gifts of the suits on the strength of the sale deed which is adverse to the interest of the plaintiff’s possession. This means, the date of sale under which the possession was obtained is the commencing point for start of limitation under Article 65 of the Limitation Act. If the date of Ex.B-33 sale deed is considered, the suit is expressly barred by limitation even under Article 65 of the Limitation Act. 58. In the present case, there is no issue framed by both the Courts below on the aspect of limitation. It is the duty of the Courts dealing with the suit to see that whether the suit is within limitation, even in the absence of any such plea from either of the parties. Absence of pleadings from the defendant debars adjudication of such a limitation aspect by the Courts dealing with the litigation. 59. It is the duty of the Courts dealing with the suit to see that whether the suit is within limitation, even in the absence of any such plea from either of the parties. Absence of pleadings from the defendant debars adjudication of such a limitation aspect by the Courts dealing with the litigation. 59. In this regard, it is apt to refer to the decision of the Apex Court in case of Nazir Mohamed v. J.Kamala, Civil Appeal Nos.2483-2844 of 2010, dated 27.08.2020, wherein it has been held as under: “53. A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.” 60. Therefore, even though there is no pleading from the defendant and no finding from both the trial Court as well as first appellate Courts with regard to limitation, by virtue of substantial question of law framed in the present appeals, I hold that the suits for recovery of possession based on title are also barred under Article 65 of the Limitation Act. Accordingly, this point is also answered in favour of the defendant. 61. In the result, both the Second Appeals are dismissed with costs. Miscellaneous petitions, if any, pending, shall stand closed.