THE HONOURABLE SRI JUSTICE P.S.NARAYANA
S. A NO.442 OF 1991
10/07/2001
BEPARI SHAIK PEERAN
petitioner
KAMALAPURAM MAHABOOB BI
AND OTHERS
respondent
COUNSEL FOR THE APPELLANT: MR. K. SUBRAHMANYAM REDDY
COUNSEL FOR THE RESPONDENTS: MR. NARASIMHA REDDY
:JUDGMENT:-
The unsuccessful plaintiff in the Courts below is the appellant. The
appellant/plaintiff instituted the suit O.S.No.4/85 on the file of Principal
District Munsif, Proddatur for declaration of title relating to the plaint
schedule property and for recovery of possession and also for future mesne
profits and for costs of the suit. Since the 2nd defendant died, her legal
representatives were brought on record as defendants 3 to 10 by an order in
I.A.No.233/85, dated 16-8-1985.
On the strength of the respective pleadings of the parties, Issues were settled
and the evidence of PW-1 to PW-6 and DW-1 to DW-4 had been recorded and Exs.A-1
to A-26 and Ex.B-1 were marked and the Court of first instance after recording
evidence had arrived at a conclusion that the gift deed Ex.A-1 does not satisfy
the third ingredient of delivery of possession under the Muslim law and hence
the said document is not valid and after recording certain other findings also
apart from this finding, dismissed the suit and aggrieved by the same the
unsuccessful plaintiff had preferred A.S.No.1/87 on the file of Subordinate
Judge, Proddatur and the said Appeal also was dismissed and aggrieved by the
same the present Second Appeal is filed.
The real controversy in the present Appeal revolves around Ex.A-1 - a gift
deed, executed by one Jahara Bi in favour of the appellant/plaintiff relating to
the plaint schedule property. The principal question which had been argued
elaborately by both the counsel is relating to the validity of Ex.A-1. Though
in the Grounds of Appeal several questions had been raised and also shown as
substantial questions of law, the only substantial question of law that arises
for consideration in this Second Appeal is as follows:
Whether the gift deed Ex.A-1 executed by a Muslim is invalid merely because the
third ingredient of delivery of possession is not satisfied though she had not
retained any other rights over the domain ?
Sri K.Subrahmanyam Reddy, the learned Senior Counsel appearing on behalf of the
appellant/plaintiff had mainly contended that the findings recorded by both the
Courts below that Ex.A-1 is invalid merely on the ground that the third
ingredient in the case of a gift by a Muslim i.e., delivery of possession is not
satisfied and hence the said gift is invalid, cannot be sustained since except
the right to enjoy the property during lifetime even without right of alienation
nothing more had been retained by the said Jahara Bi and hence the findings
recorded by both the Courts below that the document Ex.A-1 is invalid on the
said ground are totally illegal and unsustainable. The learned Counsel no doubt
had pointed out to certain other relevant facts also but had mainly concentrated
only on this question and the learned Counsel further while elaborating his
submissions had maintained that if this question is decided, automatically the
appellant/plaintiff is entitled to succeed in the suit, especially in the light
of the peculiar findings recorded by both the Courts below. The learned Counsel
pointed out to the relevant findings recorded by the Court of first instance and
also the appellate Court. The learned Counsel further contended that as per the
recitals in Ex.A-1 it is clear that on the date of Ex.A-1 itself absolute rights
had been given away to the appellant/plaintiff, and what had been retained is
the right to enjoy limiting it to only maintenance without even right of
alienation and in the light of these recitals since all the rights had been
transferred except retaining the right of enjoyment, the gift cannot be said to
be invalid. The learned Counsel also further maintained that when absolute
rights had been given under a gift, necessarily always the ingredient of
delivery of possession need not be satisfied and it is one of the exceptions.
The learned Counsel also had drawn my attention to the finding recorded by the
trial Court that absolute interest had passed in favour of the
appellant/plaintiff under Ex.A-1. The learned Counsel further pointed out that
it was held to be invalid only on the ground that possession was not delivered
and the third condition relating to the validity of a gift by a Muslim had not
been satisfied.The learned Counsel also commented that the gift was questioned
only on the ground of fraud or coercion, but however the Courts below had gone a
step further and had arrived at the conclusion that Ex.A-1 is invalid for want
of satisfaction of the third condition for the validity of a gift by a Muslim
i.e., delivery of possession. The learned Counsel incidentally had referred to
certain other documents like Ex.A-2 - registration copy of the gift deed,
executed by Jahara Bi in favour of the 1st defendant and Ex.A-3 -
registration copy of the sale deed executed by the 1st defendant in favour of
the 2nd defendant and also the other documents, Exs.A-4 to A-22 and also Exs.A-
23, A-24, A-25 and a-26. The learned Counsel also had placed reliance on
NAWAZISH ALI KHAN Vs. ALI RAZA KHAN 1, MD.ABDUL GHANI Vs. Mt.FAKHR JAHAN 2,
MASTAN BI Vs. BIKARI SAHEB 3, K.VEERANKUTTY Vs. P. UMMA 4, MOHAMED Vs. KAIRUM 5,
DURIESH MOHIDEEN Vs. MADRAS STATE 6, JAMEELA BEEVI Vs. SHEIK ISMAIL 7, SHAIK
KHATUM BIBI Vs. MAHAMAD ZAHINA BI 8.
Sri Narasimha Reddy, the learned Counsel representing the contesting
respondents, on the contrary had contended that both the Courts below had
recorded concurrent findings to the effect that Ex.A-1 is invalid since it does
not satisfy the most essential ingredient of delivery of possession in the case
of a gift by a Mohammadan. The learned Counsel also had drawn my attention to
the essential ingredients of a gift under Mohammadan law and had commented that
the recitals of the document Ex.A-1 are clear and no absolute rights or absolute
domain as such had been created, but in fact, possession was not delivered and
it is not a case of retaining only enjoyment, but it is a case of non-delivery
of possession on the date of Ex.A-1 and hence unless the third essential
ingredient also is satisfied, such a gift by a Muslim is definitely invalid and
there cannot be any doubt as far as this aspect is concerned. The learned
Counsel also with all emphasis had contended that under Ex.A-2, not only the
gift was accepted, even possession was delivered and hence Ex.A-2 is definitely
a valid document, whereas Ex.A-1 is an invalid document. Relating to the
absence of plea on the aspect of delivery of possession, the learned Counsel
commented that it is a matter relating to interpretation of a document and when
the validity of Ex.A-1 was specifically raised, all these questions are only
incidental questions and hence the Courts below are well justified in recording
such findings. The learned Counsel also had drawn my attention to Ex.A-23 and
Ex.A-24 and had commented that these documents - G.P.A. dated 8-12-1983 and
also the registered will dated 20-12-1983, clearly go to show that the
appellant/plaintiff also was conscious of the fact that this Ex.A-1 is an
invalid document and if that is not the reason there is no necessity of having
Ex.A-23 or Ex.A-24. The learned Counsel also had meticulously taken me through
the findings recorded by both the Courts below and had ultimately concluded
stating that at any rate there is no substantial question of law involved in the
matter and hence in the light of the concurrent findings, the Second Appeal is
bound to fail in view of the limitations imposed on this Court under Section 100
of the Code of Civil Procedure.
Heard both the counsel at length.
The only substantial question of law which arises for consideration in this
Second Appeal had been already specified supra. The plaint schedule property is
an extent of Acs.2-42 cents in Maduru Village. It is not in dispute that
originally this property belonged to one Jahara Bi w/o.Fakruddin and she is the
mother's sister of the appellant/plaintiff. The said Jahara Bi had only one son
and he died long ago and therefore she developed love and affection towards the
appellant/plaintiff and he was brought up as her foster son and out of love and
affection she had gifted the plaint schedule property on 7-5-1973 in favour
of the appellant/plaintiff and executed a registered gift deed - Ex.A-1. This is
the crucial document around which the whole controversy revolves. As per the
terms of this Ex.A-1, the donor had to enjoy the income from the property during
her life but however she had no right of alienation and the other absolute
rights had been given to the appellant/plaintiff. The said gift deed was
voluntarily executed and the same was accepted by the appellant/plaintiff and no
doubt subsequent thereto there were certain ill-feelings and hence the donor
left the house of the appellant/plaintiff and executed another gift deed dated
28-9-1979 - Ex.A-2, in favour of the 1st defendant in respect of the plaint
schedule property. The 1st defendant had executed a sale deed in favour of the
2nd defendant and as already referred to supra, the legal representatives had
been brought on record. The said sale deed dated 26-6-1980 is marked as Ex.B-1
and the registration copy of the said sale deed is marked as Ex.A-3. Inasmuch
as the said Jahara Bi died on 14-12-1984 and in view of the fact that the cause
of action arose only subsequent to her death, the suit was instituted. No
doubt, it is recorded that the 2nd defendant died even prior to the institution
of the suit but however defendants 3 to 10 were brought on record and defendants
5 to 10 remained ex parte. Defendants 1 and 4 filed separate written statements
and the 3rd defendant filed adoption memo. The stand taken by them is to the
effect that Jahara Bi was the absolute owner of the property and the
appellant/plaintiff had exercised undue influence and by playing fraud, obtained
the gift deed - Ex.A-1, and no doubt several other allegations had been made
relating to the aspect of undue influence and fraud. It was also further
pleaded that Jahara Bi had learnt that fraud was played on her and hence she
executed another gift deed in favour of the 1st defendant with full rights and
thus she became absolute owner of the plaint schedule property by virtue of the
gift deed defendant 28-9-1979, marked as Ex.A-2. The 4th defendant had taken
a stand that the 1st defendant is the owner of the plaint schedule property and
she had executed a registered sale deed in favour of the 2nd defendant - Ex.B-1,
and since then the 2nd defendant was in possession till her death and subsequent
thereto defendants 3 and 4 are in possession of the property. A specific stand
was taken that the appellant/plaintiff will not get any title to the plaint
schedule property under the invalid gift deed - Ex.A-1.
As can be seen from the material available on record, the appellant/plaintiff is
the donee under Ex.A-1 and the 1st defendant/1st respondent is the donee under
the original of Ex.A-2 and the 1st defendant is the vendor and the 2nd defendant
who is no more is the vendee under Ex.B-1. Several of the facts are not in
dispute and hence those facts need not be discussed in detail. The Courts
below, apart from Ex.A-1 to Ex.A-3, had also discussed Ex.A-4 to Ex.A-22 and
also Ex.A-23 to Ex.A-26. The plaintiff had examined himself as PW-1 and apart
from his evidence there is evidence of PW-2 to PW-6. No doubt, PW-1 had deposed
about Ex.A-1 to Ex.A-26 and he had also taken specific stand that Jahara Bi in
fact was living with him only in the same house.PW-2 is a licenced document
writer at Proddatur and the scribe of Ex.A-1. PW-3 is the attestor of the will
Ex.A-24. PW-5 is one of the attestors of Ex.A-1 gift deed. These witnesses no
doubt had deposed about the voluntary execution of the gift deed Ex.A-1 by
Jahara Bi in favour of the appellant/plaintiff.PW-6 is the attestor of Ex.A-22 -
Mahazarnama.The 1st defendant was examined as DW-1 and DW-2 is the husband of
DW-1. DW-3 is a resident of Chenchupalle village who stated that he cultivated
the suit land on lease for 35 years and he was giving 14 bags of paddy to Jahara
Bi towards lease and he gave grains for 2 years to DW-1 and thereafter stopped
cultivation. The 4th defendant was examined as DW-4.
Though several documents had been marked, Ex.A-1 to Ex.A-3 alone are crucial for
the present purpose. As far as fraud and undue influence are concerned, the
Courts below had recorded finding that Jahara Bi executed Ex.A-1 voluntarily.
However the main ground on which Ex.A-1 was held to be invalid and consequently
Ex.A-2 and Ex.A-3 were held to be valid, was that there was no delivery of
possession under Ex.A-1 gift deed. The essential ingredients of a gift under
Mohammadan law are as follows:
A declaration of gift by the donor; An acceptance of gift, express or implied by
or on behalf of the donee; delivery of possession of the subject matter of the
gift by the donor to the donee either physically or constructively.
Both the Courts below had recorded a finding that inasmuch as it is not the case
of the appellant/plaintiff that he had taken possession of the plaint schedule
property under Ex.A-1 and there is no recital also to that effect, the gift is
invalid. This is the exact question which had been elaborately argued by both
the counsel.
In THIMMAIAH Vs. NINGAMMA 9 it was held that unless the High Court in Second
Appeal expressly arrives at a conclusion contrary to the concurrent findings of
the courts below, it must be taken that such findings are accepted and necessary
inferences from such findings must be necessarily made. In VEERAYEE AMMAL Vs.
SEENI AMMAL10 it was observed that it is distressing that despite amendment, the
provisions of Section 100 of the Code have been liberally construed and
generously applied by some Judges of the High Court with the result that the
objective intended to be achieved by amending Section 100 appears to have been
frustrated. It is also true that no doubt the High Court while deciding a
Second Appeal arising out of concurrent findings should be more careful and
cautious while deciding the matter (V.PECHIMUTHU Vs. GOWRAMMAL 11, PADIKAL
MADAPPA Vs. C.B. KARIAPA AND OTHERS 12). In HAFAZAT HUSSAIN Vs. ABDUL MAJEED 13
it was held that the rule of non-interference in the case of concurrent findings
is not an absolute rule of universal application. In the present case on hand,
the main question is interpretation of the recitals of Ex.A-1 and the legal
effect thereof. No doubt, certain other documents had been marked and some oral
evidence also had been let-in by the parties. On appreciation of facts, the
concurrent recorded by both the Courts below is that Ex.A-1 is invalid since it
does not satisfy the third ingredient of delivery of possession since it is a
gift made by a Muslim. Since it is only the interpretation of a document, the
same being a pure question of law, can be definitely gone into in a Second
Appeal, since that by itself will be a substantial question of law.
The recitals of Ex.A-1 already had been dealt with supra. The validity of Ex.A-
2 and Ex.A-3 will depend upon the validity or otherwise of Ex.A-1. Further,
when Ex.A-1 is held to be valid, the subsequent documents Ex.A-2 and Ex.A-3 will
automatically fall to the ground. It is no doubt true that to constitute a valid
gift made by a Mohammadan, three ingredients are to be satisfied and the third
ingredient is delivery of possession. Here is a case where as can be seen from
the recitals of Ex.A-1 absolute rights had been given to the appellant/plaintiff
and what had been retained was the limited right of maintenance to enjoy the
income out of the property and that too even without the right of alienation.
Thus, the intention of the donor Jahara Bi while executing Ex.A-1 is very clear
that she intended to deliver the entire domain of this property with absolute
rights in favour of the appellant/plaintiff, but however only retaining the
right to enjoy the income without the right of alienation during her lifetime.
This recital of postponement of the right to enjoy income from out of the plaint
schedule property by the appellant/plaintiff is construed to be non-delivery of
possession under Ex.A-1 and consequently it was contended by the learned Counsel
for the respondents that the document is an invalid document. It is pertinent
to note that when absolute domain or absolute rights had been created in favour
of the appellant/plaintiff under Ex.A-1, the mere fact that the right to enjoy
the property under the said document had been postponed and that right of
enjoyment had been retained by Jahara Bi, by itself cannot invalidate Ex.A-1.
In the decision referred (7) supra, it was held that it is well established that
in order to constitute a valid gift under Mohammadan Law, three necessary
elements which constitute such a gift are, a declaration of gift by the donor,
acceptance of the gift by the donee, which acceptance may be express or may be
inferred by necessary implication and lastly delivery of possession of the
subject matter of the gift by the donor to the donee. But, in the course of
time, certain exceptions have been engrafted in the matter of upholding of a
gift notwithstanding immediate delivery of possession of the subject matter of
the gift and one such exception is a case where the donor without reserving a
dominion over the corpus of the property or any share therein stipulates only
for a right to enjoy the income from the property during his lifetime or makes a
gift subject to a condition that the donee shall pay the whole of the income
from the property or a part thereof to a person of his choice during the
lifetime of such a person. In the decision referred to (1) supra, the Privy
Council held as follows:
".....In general, Muslim Law draws no distinction between real and personal
property, and their Lordships know of no authoritative work on Muslim law,
whether the Hedaya or Baillie or more modern works, and no decision of this
Board which affirms that Muslim law recognizes the splitting up of ownership of
land into estates, distinguished in point of quality like legal and equitable
estates, or in point of duration like estates in fee simple, in tail, for life,
or in remainder. What Muslim law does recognize and insist upon, is the
distinction between the corpus of the property itself (ayn) and the usufruct in
the property (manafi). Over the corpus of property the law recognizes only
absolute dominion, heritable and unrestricted in point of time; and where a gift
of the corpus seeks to impose a condition inconsistent with such absolute
dominion the condition is rejected as repugnant; but interests limited in point
of time can be created in the usufruct of the property and the dominion over the
corpus takes effect subject to any such limited interests."
Reliance also was placed on the decision of the Privy Council on the decision
referred to (2) supra in this regard. In the decision referred to (4) supra, it
was held that where property is transferred by way of a gift and the donor does
not reserve dominion over the corpus of the property, nor any share of dominion
over the corpus but stipulates simply for and obtains a right to the recurring
income during his life, the gift and the stipulation are both valid and the
reservation of usufruct does not by itself make the gift of the property in
question void under Muhammadan law and that applies not only to Shias but also
to Sunnis. In fact, the Division Bench of the Madras High Court in this decision
had followed the decision of the Privy Council referred (2) supra and also NAWAB
UMJAD ALLY KHAN Vs. Mt.MOHUMDEE BEGUM 14. The construction of a gift creating
life interest in income of certain land under Muhammadan law had been dealt with
in the decision referred (5) supra. In the decision referred to (8) supra, it
was held that in the case of a gift to A for life and thereafter to B where
there is no compelling language to the contrary, Courts might reasonably
construe the gift as a gift of the corpus absolutely to B and of the usufruct to
A for life so as to conform to the Muslim Law governing Hiba. In the decision
referred to (3) supra where the intention indicated by the documents was that
the donees were being then vested with the right which the donor had and
thereafter the donor reserved for herself the retention of the properties which
according to the later passages in the documents were for enjoying the produce
till the donor's life time, by mere use of the word 'life-time' in the documents
it cannot be said that the donee intended to convey only vested remainders in
favour of the donees and that had that been her intention she would not have
applied for transfer of patta in favour of one of the donees nor the gift deeds
would have been accompanied with the possession of the property and in view of
the language of the gift deeds the gifts in question were held to be valid.
Further, reliance also was placed on the decision referred (6) supra.
It is no doubt true that certain of the decisions cited are distinguishable on
facts. But the question is when absolute rights had been transferred under a
gift by a Mohammadan, whether such document will be invalid for the mere reason
that the right to enjoy the property is postponed inasmuch as such rights are
retained by the donor herself for life ? From the recitals of Ex.A-1, the
intention of the donor is clear and categorical to convey absolute rights in
favour of the appellant/plaintiff. In fact, while retaining the right to enjoy
the income for maintenance, a restriction not to have the right of alienation,
also is imposed and this is also suggestive of the fact that what had been
conveyed by the donor to the donee under Ex.A-1 are absolute rights in the
plaint schedule property and hence the mere fact that there was no delivery of
possession in presenti on the date of the document cannot by itself invalidate
Ex.A-1. In fact this is the view expressed even by the Privy Council in the
decision referred (2) supra. On a careful reading of the decisions referred to
supra, it can be seen that no contrary opinion had been expressed in this
regard. In the case of passing of absolute rights under a gift by a Muhammadan,
the postponment of enjoyment will definitely fall under an exception and on that
ground it cannot be said that Ex.A-1 is invalid and this view expressed by me
also is in accordance with the view expressed by our High Court in the decision
referred to (3) supra and also a Division Bench of the Madras High Court
referred (7) supra. It is needless to point out that in the light of the view
expressed by me relating to the validity of Ex.A-1, the appellant/plaintiff is
entitled to the relief prayed for since the validity of Ex.A-2 and Ex.A-3 will
depend upon Ex.A-1 only. Except this Point, no other Points had been urged
though relating to the conduct of the parties certain documents like Ex.A-23 and
Ex.A-24 had been referred to.
Hence, in view of the findings recorded by me relating to the interpretation of
Ex.A-1, I am of the considered opinion that the appellant/plaintiff is bound to
succeed in this Second Appeal.Accordingly, the Second Appeal is allowed. No
order as to costs.
?1 AIR 1948 P.C. 134
2 AIR 1922 P.C. 281
3 1958(2) An.W.R. 473
4 AIR 1956 MADRAS 514
5 AIR 1954 MADRAS 769
6 AIR 1957 MADRAS 577
7 AIR 1979 MADRAS 193
8 1956 An.W.R. 771
9 (2000) 7 SCC 409
10 (2002) 1 SCC 134
11 AIR 2001 S.C. 2446
12 AIR 2001 S.C. 2695
13 (2001) 7 S.C.C. 189
14 (1867) 11 M.I.A. 517
