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Tuesday, December 9, 2014

Whether there has been an oral gift and subsequent writing evidencing this gift in favour of the plaintiff by Abdul Haq on 9.10.1970 as alleged in the plaint and whether the oral gift reduced in to writing requires stamp duty and registration ? = The possession can be shown not only by enjoyment of the land or premises in question but also by asserting who has the actual control over the property. Someone may be in apparent occupation of the premises, but the other would have control and gaining advantage of possession. In the case at hand plea of actual physical possession by Rasheeda Khatoon does not deserve acceptance. The existence of any overt act to show control requires to be scrutinised. A plea was advanced by the plaintiff that she had been collecting rent from the tenants inducted by the donor, but no rent receipts have been filed. On the contrary certain rent receipts issued by the donor after the execution of the deed of gift have been brought on record. There is no proof that the land was mutated in her favour by the revenue authorities. She was also not in possession of the title deeds. Thus, the evidence on record, on a studied scrutiny, clearly reveal that Rasheeda Khatoon was not in constructive possession. Therefore, one of the elements of the valid gift has not been satisfied. That being the position there is no necessity to advert to the aspect whether the instrument in question required registration or not because there can be certain circumstances a deed in writing may require registration. In the case at hand, we conclusively hold that as the plaintiff could not prove either actual or constructive possession, the gift was not complete and hence, the issue of registration does not arise. 25. In view of the aforesaid premises, we, though for different reasons, affirm the judgment and decree of the High Court and dismiss the appeal as a consequence of which the suit of the plaintiff stands dismissed.=2014-Oct.Part- CIVIL APPEAL NO. 603 OF 2009 Rasheeda Khatoon (D) Through LRs. ...Appellants Versus Ashiq Ali s/o of Lt. Abu Mohd (D) Through LRs. ..Respondents

IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 603  OF 2009


   Rasheeda Khatoon (D)
   Through LRs.                                        ...Appellants


                                   Versus


   Ashiq Ali s/o of Lt. Abu Mohd (D)
   Through LRs.                                     ..Respondents

                                    WITH

                       Civil  Appeal  No.  564 of 2009



                               J U D G M E N T


   Dipak Misra, J.


            Rasheeda  Khatoon,  the  predecessor-in-interest   of   present
    appellants, instituted regular suit No. 31 of  1975  in  the  Court  of
    Civil Judge, Faizabad, seeking recovery of possession from the original
    defendants.  The case of original plaintiff before the trial Court  was
    that one Abdul Haq was the owner of the  house  No.  2868  situated  in
    Mohalla Hayat Ganj in Tanda, District Faizabad. The only son  of  Abdul
    Haq had shifted to Pakistan at the time of Partition and there  was  no
    one to look after him.  The father of Rasheeda  Khatoon,  Hazi  Madari,
    was a close friend of Abdul Haq, and being a neighbour, she was looking
    after him for last 20 years till 24.01.1972 when he breathed  his  last
    at the ripe age of ninety.  Regard being had  to  various  aspects  and
    fruther  being  pleased  with  her  services,  7  years  prior  to  the
    institution of the suit he made an oral gift of the suit house  in  her
    favour which was accepted by her and possession of the house  was  also
    handed over.  Pursuant to the oral gift she lived in  the  premises  in
    question and looked after him.  The tenants who had been staying in the
    southern portion of the house, accepted her status and  started  paying
    rent to her.  Prior to a year of his death being apprehensive that some
    others might disturb in her possession, he executed a deed of  gift  in
    writing evidencing  the  oral  gift  made  earlier  in  favour  of  the
    plaintiff.   As pleaded, within one month from the death of Abdul  Haq,
    the defendants dishonestly moved an application under Section 145  CrPC
    before the SDM, Tanda with an intention to evict the plaintiff  and  in
    the said proceeding the property in  question  was  attached,  and  all
    these circumstances constrained the plaintiff to file  the  civil  suit
    for declaration that she was the owner in possession of  the  house  in
    question.  During the pendency of the suit, as alleged, the  defendants
    took over possession in pursuance of the release order  passed  by  the
    SDM on 12.4.1975 and thereafter the plaintiff amended  the  plaint  and
    sought the relief of recovery of possession.
 2. The defendants entered contest and took various  pleas  to  the  effect
    that the suit was under-valued and the court fee that was paid was  not
    sufficient; that Abdul Haq was in possession  of  the  house  till  his
    death and never parted possession; that  there  was  no  oral  gift  as
    asserted by the plaintiff; that Khairulnisha, Kamrulnisha  alias  Kumul
    and Janharulnisha were the daughters of Abdul  Haq;  that  Khairulnisha
    died during the life time  of  Abdul  Haq  and  her  sons  Mohd.  Ayub,
    Moyuddin, Mohd. Yasin, Sagir Ahmad and Bashir Ahmad were  alive;   that
    the defendant No.1 is the son of Jauharulnisha;  that  Abdul  Haq  died
    leaving behind Kamarulnisha, Jauharulnisha and sons of Khairulnisha  as
    his legal heirs and they had become the owners; that during  life  time
    Abdul Haq had given certain properties to  the  son  of  the  defendant
    No.2; and that  after  the  death  of  Abdul  Haq  defendant  No.2  had
    constructed a shop with the permission of the  defendant  No.1  on  the
    condition that  the  shop  shall  be  let-out  to  him.   It  was  also
    asseverated that Jauhirulnissa had executed a sale deed on 8.3.1972 and
    Usman and Rauf executed a sale deed on 31.3.1972 in respect of the suit
    house in favour of the defendant Nos.  2  and  3  and  since  then  the
    defendants no.2 and 3 had become the owners  in  possession;  that  the
    proceeding initiated under Section 145, CrPC was eventually decided  in
    favour of the defendants; and that the plaintiff had  no  right,  title
    and interest over the suit house;  and  that  the  defendants  are  the
    owners in possession of the suit property.
 3. On the basis of the aforesaid pleadings, the learned trial Judge framed
    the following issues:-

           “1. Whether plaintiff is owner of the disputed house as  claimed
           in plaint?


           2. Whether defendant Nos. 1 to 3 are the owners of the  disputed
           house as claimed in their written statement?


           3. Whether there has been an oral gift  and  subsequent  writing
           evidencing this gift in favour of the plaintiff by Abdul Haq  on
           9.10.1970 as alleged in the plaint?


           4. Whether suit is under-valued and deficient in suit fees?


           5. Whether suit is not maintainable, as alleged in para  no.  29
           of the W.S.?


           6. Whether suit is barred by Section 34 of Specific Relief Act?


           7. To what relief, if any, is  the  plaintiff  entitled  in  the
           case?”


 4. The learned trial Judge on appreciation  of  the  evidence  brought  on
    record came to hold  that  the  plaintiff  had  proved  the  oral  gift
    executed by Abdul Haq in her favour; that the gift deed did not require
    registration; that the deed of gift could not be ignored solely because
    it was not registered when it had demonstrably been established by  the
    oral and documentary evidence that Abdul Haq had made a gift in  favour
    of the plaintiff and had put her in possession; and that  she  was  the
    owner of the suit premises  and entitled to get back possession.  Being
    of the said view, the trial court decreed the suit.
 5. Being dissatisfied with the said judgment and  decree,  the  defendants
    preferred Civil Appeal No. 435 of 1978 and the  first  appellate  court
    concurring with the view  of the trial court as regards  the  character
    and the nature of instrument, that  it  is  an  oral  gift,  based  its
    conclusions on the premises that the contents of the   document  showed
    that the ‘Hiba’ had already been accepted by Rashida Kahtoon before the
    deed was executed; that the document was only an evidence of  the  oral
    gift which had been  made  earlier  by  Abdul  Haq  in  favour  of  the
    plaintiff;  that  the  stand  of  the  defendants-appellants  that  the
    document could not be read in evidence because it was  not   registered
    was bereft of any substance   in  view  of  the  language  employed  in
    Section 129 of the Transfer of Property Act  (for  brevity  ‘the  Act’)
    which lays down that Section 123 of the Act which mandates registration
    in case of a gift of an immovable property does not apply  to any  gift
    made under the Muhammadan Law and a Muhammadan could make an oral  gift
    of immovable property and if a Muhammadan prepares a document  relating
    to gift such deed of gift continues to  be  an  evidence  of  gift.  To
    arrive at the aforesaid conclusions the first  appellate  court  placed
    reliance upon the authorities in Karam Ilahi  v.  Sharfuddin[1],  Nasib
    Ali v. Wajid Ali[2], Bishwanath Gosain v. Dulhin  Lalmani[3]  and  Boya
    Ganganna v. State of Andhra Pradesh[4].
 6. The aforesaid Judgment and decree passed by the first  appellate  court
    was assailed in second appeal and the learned Single Judge taking  note
    of the substantial question of law  opined  that  the  core  issue  was
    whether the document in question is a deed of gift or it evidences  the
    oral gift.  The learned Single Judge was of the view  that  if  it  was
    accepted  as  an  evidence  of  the  oral  gift  it  did  not   require
    registration  and  if  it  is  interpreted   otherwise,   it   required
    registration.  He referred to certain provisions of the Act and Section
    17 of the Registration Act and, thereafter, scrutinized the contents of
    the instrument in question and  came  to  hold  that  the  document  in
    question makes it clear that up to the date of execution of  gift  deed
    no gift was made; that the executant of the deed was in  possession  of
    the house; that the deed transferred the property in favour of Rasheeda
    Khatoon in praesenti; and that it is clear from the  language  employed
    in the gift deed that the executant had not delivered possession to the
    donee.  Being of this view, he came to hold that both the courts  below
    had misread the deed dated 9.10.1970 executed by Abdul Haq and  treated
    it to be an oral gift though it was a document under which transfer was
    made and, therefore, it was compulsorily registrable  and  accordingly,
    allowed the appeal.  Hence, the present appeal by special leave.
 7. We have heard Mr. Fakhruddin, learned senior counsel for the  appellant
    and Mr. A. G. Chaudhary, learned senior counsel for the respondents.
 8. The gravamen of the controversy as is demonstrable pertains to  is  the
    nature and character of the document executed by Abdul Haq in favour of
    Rasheeda  Khatoon,  the  predecessor-in-interest  of  the   appellants.
    Before we keenly scrutinize the document,  we  think  it  necessary  to
    refer to certain authorities in the field  that  have  dealt  with  the
    concept of oral gift in Muhammadan Law.  In this context  Sections  123
    and 129 of the Transfer of Property Act  have  to  be  taken  note  of.
    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  savings  of  donations
    mortis causa and the gifts made under the Muhammadan Law.  It is  clear
    from the said provision that the Chapter relating  to  gifts  including
    registration would not effect any rule of Muhammadan Law.
 9. In Karam Ilahi (supra) it has been held as follows:-
           “It is admitted that a Muhammadan may make an oral gift  provided
           that possession follows.  It seems to us  quite  clear  that  the
           provisions of Section 123  are  inapplicable  to  gifts  made  by
           Muhammadans and valid according to their law.  It is quite  clear
           that the Legislature had in its mind the  provisions  of  Section
           123 when enacting  Section  129.   Section  123  is  specifically
           referred to in Section 129.  The deed of gift  is  admissible  to
           prove that a gift was made.”


10. In Nasib Ali (supra) Suhrawardy, J. referred to  Kamarunnissa  Bibi  v.
    Hussaini Bibi[5]  and Karam Ilahi (supra) and came  to  hold  that  the
    essentials of a gift under the Muhammadan  Law  are  a  declaration  of
    ‘hiba’ by the donor, an acceptance, express or implied, of the gift  by
    the donee, and delivery of possession of  the  property,  the  subject-
    matter of the gift, according to its nature. A simple gift can only  be
    made by going through the above formalities and no  written  instrument
    is required. In fact no writing is necessary to validate a gift and  if
    a gift is made by a written instrument without delivery of  possession,
    it is invalid, in law. Thereafter, the learned judge stated thus:-
           “The position under the Mohammadan Law is this: that  a  gift  in
           order to be valid must be  made  in  accordance  with  the  forms
           stated above; and even if it is evidenced by writing, unless  all
           the essential forms are observed, it is not  valid  according  to
           law.  That being so, a deed of gift executed by a  Mohammadan  is
           not the instrument effecting, creating or making the gift  but  a
           mere piece of evidence.  It may so happen after a lapse  of  time
           that the evidence of the observance of the above forms might  not
           be forthcoming, so it is sometimes thought prudent to reduce  the
           fact that a gift has been made into writing.  Such writing is not
           a document of title but is a piece of evidence. ”


11. In Mahboob Sahab  v.  Syed  Ismail  and  Others[6]  a  two-Judge  Bench
    referred to Section 147 of the Principles of  Mahomedan  Law  by  Mulla
    wherein the essentials of valid gift under the Muhammadan Law have been
    elucidated and proceeded to  explicate  the  principle.  We  think  the
    reproduction of the relevant passage would be seemly:-
              “Under Section 147 of the  Principles  of  Mahomedan  Law,  by
           Mulla, 19th  Edn.,  edited  by  Chief  Justice  M.  Hidayatullah,
           envisages that writing is not essential to the [pic]validity of a
           gift either of moveable or of  immovable  property.  Section  148
           requires that it is essential to the validity of a gift that  the
           donor should divest  himself  completely  of  all  ownership  and
           dominion over the subject of the gift. Under Section  149,  three
           essentials  to  the  validity  of  the  gift  should  be,  (i)  a
           declaration of gift by the donor, (ii) 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 Section 150. If  these  conditions  are
           complied with, the gift is  complete.  Section  150  specifically
           mentions that for a  valid  gift  there  should  be  delivery  of
           possession of the subject of the gift and taking of possession of
           the gift by the donee, actually or constructively. Then only  the
           gift is complete. Section 152 envisages that where the  donor  is
           in possession, a gift of immovable property 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.  It  would,  thus,  be
           clear that though gift by a Mohammedan is not required to  be  in
           writing  and  consequently  need  not  be  registered  under  the
           Registration Act; for 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.”
                                        [Emphasis supplied]


12. Recently in Hafeeza Bibi and Others v. Shaikh Farid (Dead) by LRS.  and
    Others[7]  a two-Judge Bench referred to the authority in  Mohd.  Abdul
    Ghani v. Fakhr Jahan Begam[8] wherein the  Privy  Council  had  made  a
    reference to  Muhammedan  Law  by  Syed  Ameer  Ali  and  approved  the
    statement as regards the essential three conditions for a  valid  gift.
    Thereafter, the learned Judges referred to  Nasib  Ali  (supra),  Assan
    Ravther v. Manahapara Charayil[9] and  Javeda Khatun v. Moksed  Ali[10]
    and stated the position of law thus:-
              “The position is well  settled,  which  has  been  stated  and
           restated time and again, that the  three  essentials  of  a  gift
           under Mohammadan Law are: (1) declaration  of  the  gift  by  the
           donor; (2) acceptance of the gift by the donee; and (3)  delivery
           of possession. Though, the rules of Mohammadan Law  do  not  make
           writing essential to  the  validity  of  a  gift;  an  oral  gift
           fulfilling all the three essentials makes the gift  complete  and
           irrevocable. However, the donor may  record  the  transaction  of
           gift in writing.”


13. After so stating the court referred to Asaf A.A.Fyzee  in  Outlines  of
    Muhammadan Law[11] and  Mulla,  Principles  of  Mahomedan  Law[12]  and
    eventually ruled thus:-
           “In our opinion, merely because the gift is reduced to writing by
           a Mohammadan instead of it having been made orally, such  writing
           does not become a formal document or instrument of gift.  When  a
           gift could be  made  by  a  Mohammadan  orally,  its  nature  and
           character is not changed because of it  having  been  made  by  a
           written document. What  is  important  for  a  valid  gift  under
           Mohammadan  Law  is  that  three  essential  requisites  must  be
           fulfilled. The form is immaterial. If  all  the  three  essential
           requisites  are  satisfied  constituting  a   valid   gift,   the
           transaction of gift would not be rendered invalid because it  has
           been written on a plain piece of paper. The distinction that if a
           written deed of gift recites the factum of prior gift  then  such
           deed is not required to be registered but  when  the  writing  is
           contemporaneous  with  the  making  of  the  gift,  it  must   be
           registered, is inappropriate and does not seem to  us  to  be  in
           conformity with the rule of gifts in Mohammadan Law.”
                                                            [Emphasis added]


14. For a clear understanding of the conception of the valid gift under the
    Muhammadan Law we think it  apposite  to  reproduce  the  passage  from
    Mulla, Principles of Mahomedan Law that has been quoted and approved in
    Hafeeza Bibi (supra):-

               “Under the Mahomedan 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.”


15. At this stage,  it  is  condign  to  state  that  the  two-Judge  Bench
    ultimately has ruled that it is not the requirement in all cases  where
    the gift deed is contemporaneous to the making of the  gift  then  such
    deed must be registered under Section 17 of the Registration  Act,  and
    each case would depend on its own facts.  Be it stated, the  Court  did
    not approve the view expressed in Govt. of Hyderbad (Deptt. of Revenue)
    v. Tayyaba Begum[13], Ghulam Ahmad  Sofi  v.  Mohd.  Sidiq  Dareel[14],
    Chota Uddandu Sahib v. Masthan Bi[15], Amirkhan  v. Ghouse Khan[16] and
    Sunkesula Chinna Budde Saheb v. Raja Subbamma[17].
16. From the  aforesaid  discussion  of  the  propositions  of  law  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.
17. At this juncture, it is pertinent  to  refer  to  a  three-Judge  Bench
    decision  in  Valia  Peedikakkandi  Katheessa  Umma   and   others   v.
    Pathakkalan Narayanath Kunhamu  (deceased)  and  after  him  his  legal
    representatives and others[18] where the question arose whether a  gift
    by a husband to his minor wife and accepted on her behalf by her mother
    is valid.  Dealing with the concept of gift under  Muhammadan  Law  the
    Court observed that:-
           “...  Muhammadan  Law  of  gifts  attaches  great  importance  to
           possession  or  seisin  of  the  property  gifted  (Kabz-ul-Kami)
           especially of immovable property.  The Hedaya says that seisin in
           the case of gifts is expressly ordained and Baillie  (Dig  P.508)
           quoting from the Inayah refers to a Hadis of the Prophet-“a  gift
           is not valid unless possessed.”  In the Hedaya  it  is  stated  –
           “Gifts are rendered  valid  by  tender,  acceptance  and  seisin”
           (p.482) and in the  Vikayah  “gifts  are  perfected  by  complete
           seisin” Macnaghten (202).”


          After so stating the Court proceeded to lay down that it  is  only
    actual  or  constructive  possession  that  completes  the   gift   and
    registration does not cure the defect nor is a bare declaration in  the
    deed that possession was given to a minor  of  any  avail  without  the
    intervention of the guardian of  the  property  unless  the  minor  has
    reached the years of discretion.  It has been  further  opined  therein
    that if the property is with the donor he must divest from it  and  the
    donee must enter upon possession.  However,  to  that  rule  there  are
    certain exceptions which the Court took note of, stating thus:-
           “Exceptions to these strict rules which are well  recognized  are
           gifts by the wife to the husband and by the father to  his  minor
           child (Macnaghten, page 51 principles 8 to 9). Later it was  held
           that where the donor and donee reside together an overt act  only
           is necessary and this rule applies between husband and wife.   In
           Mahomed Sadiq Ali Khan v. Fakhr Jahan Begum, 59 Ind App 2 :  (AIR
           1932 PC 13) it was held  that  even  mutation  of  names  is  not
           necessary if the deed declares that possession is  delivered  and
           the deed is handed to the wife.”

            We have  referred  to  this  decision  only  to  highlight  the
    principle that either there has to be  actual  delivery  of  possession
    from the donor or the donee must be in constructive possession to  make
    a gift valid under the Muhammadan Law.
18. Presently, we shall deal  with  the  factual  score.   Mr.  Fakhruddin,
    learned senior counsel would submit that when concurrent findings  were
    returned that the plaintiff was in possession on the date of  execution
    of the gift deed as the donee had started residing with the  donor  the
    High Court should not have dislodged the finding of  possession  solely
    on the ground that the gift deed was a contemporaneous  document  which
    required registration.   Per  contra,  Mr.  Chaudhary,  learned  senior
    counsel would submit that both the courts below had  committed  serious
    illegality by coming to hold that an oral gift was made  in  favour  of
    the plaintiff seven years prior the date of execution of gift deed  and
    factum of the said document only evidenced the oral gift, though  there
    is no mention of it in the deed itself.  It is urged by him that by  no
    stretch of examination such a finding could have been recorded.  As  we
    notice, the trial court as well as the appellate court has  returned  a
    finding that there was an earlier oral gift by Abdul Haq in  favour  of
    the original plaintiff.  The same is not reflectible from the  document
    itself.  That apart, there is nothing else on  record  to  support  the
    same.  The finding of the learned trial Judge as well as the  appellate
    Judge is based on unwarranted inferences which are not supported by the
    evidence brought on record.  While not accepting the  said  finding  of
    the courts below we are also unable to accept  the  conclusion  of  the
    High Court that  the  document  being  a  contemporaneous  document  or
    document in praesenti required registration.
19. The real thrust of the matter, as we perceive, is whether the essential
    ingredients of the gift as is understood in  the  Muhammadan  Law  have
    been satisfied.  To elaborate, a deed of gift solely because  it  is  a
    written instrument does not require registration.   It  can  always  be
    treated as a piece of evidence  evidencing  the  gift  itself,  but,  a
    significant one, that gift must fulfill the three essential  conditions
    so that it may be termed as a valid gift under the Muhammadan Law.
20. The aforesaid being the position, we are obliged to scrutinize the deed
    of gift and the material brought on record.  It has become  necessitous
    in the instant case as the original and the first appellate court  have
    recorded findings which are contrary to material brought on record  and
    the High Court has proceeded exclusively on the concept of  a  deed  in
    praesenti.  Be it stated, this Court in exercise of power under Article
    136 of the Constitution can interfere with the concurrent  findings  of
    fact, if the  conclusions  recorded  on  certain  factual  aspects  are
    manifestly perverse or unsupported by the evidence on record.   It  has
    been so held in Alamelu & Another v. State[19], Heinz  India  (P)  Ltd.
    and Another v. State of U.P. and Others[20] and Vishwanath Agrawal  s/o
    Sitaram Agrawal v. Sarla Vishwanath Agrawal.[21]
21. In this backdrop we proceed to scan the gift deed.  On a perusal of the
    gift deed it is manifest that Abdul Haq had declared  therein  that  he
    had always been the owner in possession and the entire house was in his
    exclusive ownership and possession  and  free  from  all  encumbrances.
    Thus, the said recital belies the case of the plaintiff that there  was
    an oral gift seven years prior to filing of the suit, that is, sometime
    in the year 1968.  The learned trial Jude  as  well  as  the  appellate
    court has brushed aside the said aspect by  stating  that  it  has  not
    affected the stand of the plaintiff inasmuch  as  some  witnesses  have
    deposed about the gift having been made in 1968.   As  the  deed  would
    show the executant had stated that he had executed a  Will  earlier  in
    favour of Rasheeda.  That apart, such a fact, had it  been  true  would
    have definitely formed a part of the written instrument.   Omission  of
    such a fact, in our view, defies common sense.  The conclusion that the
    gift  deed  dated  9.10.1970  evidences  such  a  gift,  is  absolutely
    unacceptable.  Be that as it may, the issue is whether the document and
    the concomitant factors establish factum of gift made by the donor.  As
    stated earlier, if the essential features are met with no  registration
    is necessary.  On a perusal of  the  deed  of  gift  and  the  evidence
    brought on record it is demonstrable that Abdul  Haq  remained  in  the
    premises in question.  He did not part with physical  possession.   The
    case of  the  plaintiff  is  that  she  resided  with  Abdul  Haq  and,
    therefore, the principle of donor getting  fully  divested  or  handing
    over of physical possession is not attracted.  Though, such  a  finding
    has been recorded, we find  it  wholly  contrary  to  the  evidence  on
    record.  The plaintiff  was  staying  with  her  husband.   The  family
    register and voters list, Exhibit 122 to 124 C indicate  that  Rasheeda
    Khatoon was residing in her house with her husband.   Though  the  gift
    deed mentions that she was entitled to get her name mutated in  respect
    of the premises, yet it was not done.   On the analysis of evidence  in
    the backdrop of the deed, it is extremely difficult to  hold  that  she
    was residing with Abdul Haq in the premises in question.  The first two
    courts have based their conclusions on conjecture and inferences.   The
    High Court, as we notice, has not dwelled upon this aspect and has only
    negatived the finding of the courts below that  the  document  did  not
    evidence an oral gift.  Thus scrutinized there  remains  no  shadow  of
    doubt that she was not in actual physical possession.
22. We have already stated, actual physical possession may  not  be  always
    necessary if there is constructive possession of the  donee.   In  this
    context  we  may  reproduce  Section  152,  sub-Section(3)  of  Mulla’s
    Muhammadan Law:-
           “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.  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  divert
           himself of all control over the subject of the gift.”


23. Possession has been defined in Section 394 of the Muslim Law by Tyabji.
     It is thus:-
           “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. From the aforesaid it is vivid that the possession  can  be  shown  not
    only by enjoyment of the land or  premises  in  question  but  also  by
    asserting who has the actual control over the property.  Someone may be
    in apparent occupation of  the  premises,  but  the  other  would  have
    control and gaining advantage of possession.  In the case at hand  plea
    of actual physical possession by  Rasheeda  Khatoon  does  not  deserve
    acceptance.  The existence of any overt act to show control requires to
    be scrutinised.  A plea was advanced by the plaintiff that she had been
    collecting rent from the tenants inducted by the  donor,  but  no  rent
    receipts have been filed.  On the contrary certain rent receipts issued
    by the donor after the execution of the deed of gift have been  brought
    on record.  There is no proof that the land was mutated in  her  favour
    by the revenue authorities.  She was also  not  in  possession  of  the
    title deeds.  Thus, the evidence on  record,  on  a  studied  scrutiny,
    clearly  reveal  that  Rasheeda  Khatoon  was   not   in   constructive
    possession.  Therefore, one of the elements of the valid gift  has  not
    been satisfied.  That being the  position  there  is  no  necessity  to
    advert to the  aspect  whether  the  instrument  in  question  required
    registration or not because there can be certain circumstances  a  deed
    in  writing  may  require  registration.   In  the  case  at  hand,  we
    conclusively hold that as the plaintiff could not prove  either  actual
    or constructive possession, the gift was not complete  and  hence,  the
    issue of registration does not arise.
25. In view of the aforesaid premises, we, though  for  different  reasons,
    affirm the judgment and decree of the High Court and dismiss the appeal
    as a consequence of which the suit of the plaintiff  stands  dismissed.
    There shall be no order as to costs.
    Civil  Appeal  No.  564 of 2009
26. In view of the dismissal of Civil Appeal No. 603 of  2009  the  present
    appeal stands dismissed.  There shall be no order as to costs.
                                             .............................J.
                                                               [Dipak Misra]



                                             .............................J.

[Vikramajit Sen]
   New Delhi;
   October 10, 2014



-----------------------
[1]   AIR 1916 All 351
[2] AIR  1927 Cal  197
[3] AIR 1968 Pat 481
[4] AIR 1976 SC 1541
[5] (1880) 3 All 266
[6]  (1995) 3 SCC 693
[7]  (2011) 5 SCC 654
[8]  (1921-22) 49 IA 195  :  AIR 1932 PC 13
[9] AIR 1972 Ker 27
[10] AIR 1973 Gauhati 105
[11]  5th Edn. (edited and revised by Tahit Mahmood) at P. 182
[12] (19th Edn.) P.120
[13] AIR 1962 AP 199
[14] AIR 1974 J&K 59
[15] AIR 1975 AP 271
[16] (1985) 2 MLJ 136
[17] (1954) 2 MLJ 113 (AP)
[18] AIR 1964 SC 275
[19] (2011) 2 SCC 385
[20] (2012) 5 SCC 443
[21] (2012) 7 SCC 288

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