NOORU MOHAMED Vs. SULTAN PILLAI
HIGH COURT OF KERALA
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(1.) The 1st defendant is the appellant. The property described in the plaint scheduled belonged to the 3rd defendant and his mother. They had mortgaged the property with possession under Ext. A dated 2.10.1098 and the mortgage right now vests in defendants 1 and 2. After the death of his mother the 3rd defendant executed a gift deed Ext. B dated 9.9.1110 in favour of his daughter Asma Beevi conveying the equity of redemption over the plaint property as well as some other properties which were in his possession. The plaintiff purchased the equity of redemption from Asma Beevi under Ext. D dated 9.8.1123 and sued for redemption. Defendants 1 and 2 who are now in possession of the property are brothers of Asma Beevi. The 1st defendant contended that Ext. B had not come into effect, that the amount due to her as Stridhanam for which Ext. B was executed was subsequently paid by the 3rd defendant, that on 16.3.1111, the 3rd defendant had executed another gift deed, Ext. II to a younger sister of Asma Beevi, and that the latter had sold the equity of redemption to the 1st defendant on 15.2.1117, Ext. III being the sale deed. The plaintiffs title to redeem was thus disputed. The courts below found that Ext. B was a valid gift which had come into effect and that the plaintiff was entitled to redeem. The suit was accordingly decreed.
(2.) It was contended on behalf of the 1st defendant appellant that the gift evidenced by Ext. B was invalid and that it had not come into effect. Delivery of possession of the subject of the gift by the donor to the donee is an essential requisite of a valid gift under Muhammadan Law, and it was argued that in view of the stipulation in Ext. B that the 3rd defendant was to redeem the mortgage and deliver possession within one year of the date of the execution of Ext. B it should be held that there was no delivery of possession. This argument cannot be accepted because the subject of the gift was the equity of redemption. No doubt there is a clause in Ext. B that the third defendant would redeem the mortgage and give possession to Asma Beevi and that in case of default Asma Beevi was to recover from him the mortgage amount and other damages consequent on such default. What is actually gifted under Ext. B is the equity of redemption which can form the subject of a valid gift under Muhammadan Law. The clause containing the undertaking referred to above cannot affect the validity of the gift. That clause may or may not be enforceable against the 3rd defendant. But the subject of the gift being only the equity of redemption delivery of possession need be only of such possession as the property gifted is capable of. The question remains whether there is sufficient evidence to show that a donor did some act to put the donee in constructive possession of the property conveyed. Shri K.S. Rajamony, learned counsel for the appellant, cited the following passage from Tyabijis Principles of Muhammadan Law:-
Possession of the equity of redemption of the immovable property in the possession of a mortgagee may be transferred by the donor giving to the mortgagee notice of his having conveyed to the donee the property subject to the mortgage, and permitting the donee to exercise all acts of ownership that may be exercised by the owner of the equity of redemption.
This is not exhaustive of the mode in which possession of the equity of redemption may be transferred. There is evidence in this case to show that the donor did not intend to retain any right in the equity of redemption gifted. The gift deed was handed over to the donee and has been produced by the plaintiff. Mutation of names was effected in the revenue records and Asma Beevis name was substituted in place of the 3rd defendant. It has to be mentioned that on the date of the gift Asma Beevi was a minor about 12 years old and that her father the 3rd defendant was her guardian. In the case of a gift by a father to his minor child no transfer of possession is required under Muhammadan Law. All that is necessary is to establish a bona fide intention to give. Such intention can be gathered from the circumstances, referred to above. The fact that the 3rd defendant executed another gift deed one year later does not show the absence of such an intention. Besides the equity of redemption some other properties in the possession of the donor were also gifted under Ext. B. The 1st defendant admitted that Asma Beevi was in possession of those properties. In his testimony as Dw. 1 the 1st defendant admitted that none of the properties gifted to Asma Beevi were included in the later gift Ext. II. The 1st defendant is a brother of Asma Beevi. He took a sale deed from the second donee in the year 1117. But he is seen to have taken an assignment of the mortgage right in the year 1118. If he had become the owner of the equity of redemption under Ext. III it is difficult to understand why he did not take a release instead of an assignment. This shows his consciousness that the equity of redemption did not belong to him. In these circumstances the concurrent findings that the gift to Asma Beevi was valid and that it came into effect must be confirmed.
(3.) No other question arises in this Second Appeal which is dismissed with costs.;
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