Decided on August 30,1944

A. Samankatha Nadar And Anr. Respondents


Somayya, J. - (1.) THE main question for decision in this second appeal is whether the gift under Ex. F, executed on 2lst October 1939 by the plaintiff's father in favor of the plaintiff is valid and effective to pass title to the plaintiff. The trial Court found in favor of the plaintiff and decreed the suit. On appeal the Subordinate Judge held that though the document was proved to have been executed and registered by the donor the gift is invalid for the reason that possession as required by Mahomedan law was not given to the donee. Hence this second appeal. At the time when the gift deed in question was executed, a final decree in a partition suit had been passed vesting various properties that belonged to the co -sharers severally in the several sharers. Plaintiff's father was a party to the partition suit and the properties in question and some other properties were allotted to him. Unfortunately, the decree did not; provide for possession being taken in execution of the final decree in the partition suit. The defendants in the present suit were also parties to the final decree in the partition suit and in that suit, to which the plaintiff's father and the defendants were parties, the suit properties were allotted to the share of the plaintiff's father. The partition decree was passed on 5th March 1938, and the gift deed in favour of the plaintiff (EX. F) was executed on 2lst. October 1939, and it was duly registered. The material portion of the document runs thus: Whereas I have decided that even during my lifetime suitable properties should be given possession of to you and that you should be made entitled thereto, I have this day by means of this deed gifted to you out of my free will and satisfaction, the under mentioned properties worth about Rs. 3000 which I got for my share in the final decree in that partition suit in O.S. No. 46 of 1932, on the file of the Sub -Court, Tuticorin (which was a suit between me and my mother, etc.) and which properties are in my enjoyment and other properties belonging to me and purchased in my name and out of my own earning and which are in my enjoyment. You have also accepted them and I have left those properties under your control and enjoyment. Hence from this day you are entitled to and enjoy the properties mentioned in the schedule below with absolute rights of ownership according to your will and pleasure from generation to generation with rights to sell, gift and alienate. Since out of my free will, I have gifted away all the under mentioned properties to you and since you have accepted them and since their enjoyment was got to you I hereby declare that I have no power for any reason whatsoever to cancel OE change this gift. Even if I cancel this gift it will not be valid.
(2.) THE plaintiff alleged that her father was in possession of the suit property and that she got possession of the property. The District Munsif held that the donor was in possession on the date of the gift deed, Ex. F, and that he gave to the plaintiff such possession as the property was capable of. He held that it was not necessary that actual possession should be given by the father to the daughter particularly when the donee was living with the donor at the time of the gift deed. He also held that the defendant got into possession of the suit property only in November 1939. Defendant 1, who is the contesting defendant, alleged that the donor was never in possession of the suit property and that he did not in fact give possession to the plaintiff. According to him the suit property was always in the possession' of one Sadak Maracair, the son of the donee's uncle and defendant 1 took possession of the property after purchasing it in court auction held in pursuance of a mortgage decree which he obtained against that Sadak on a mortgage executed by him. Defendant 1 got possession in court auction only in November 1939. The suit gift deed was executed in October of that year. So even if defendant 1 got possession in November 1939, in pursuance of the court sale on which he purchased the property, that would not affect the validity of the gift deed if on the date when the gift deed was executed, all the requirements of Mahomedan law were complied with. Before proceeding further, it is important to notice that the gift deed comprises not merely the suit property which was allotted to the plaintiff's father in the partition decree but also other properties which were admittedly the self -acquired properties of the donor. In fact, four properties, three houses and a wet land are comprised in the gift in question. The first consists of two houses bearing Door Nos. 108 and 175 in the 20th Ward, Tuticorin Municipality, the second is a house bearing Door No. 129 in the same town; the third is wet land bearing Section No. 318/3 and situated in the village of Iruvappapuram, Kumarapuram, Srivaikuntam taluk, and the last item is a house in Madura Municipality. Of these, the property that was purchased by defendant 1 in execution of the mortgage decree against Sadak and which is involved in this suit is the wet field mentioned above. In a case where there are a number of properties comprised in the gift deed and the donee is put in possession of some of them, the High Court of Bombay hold in Chand Sahib Kashim Sahib v. Gangabai, A.I.R. 1921 Bom. 248 that the requirements of Mahomedan law are satisfied even as regards the properties of which actual delivery was not made. The requirements of Mahomedan law as to seisin are satisfied in a case where possession of the bulk of the properties is given to the donee. In that case there were a number of fields covered by the gift deed. Possession was given of several of them but not of a few. The question arose whether the gift was invalid as regards the property of which actual possession was not given. The High Court held that in such a case the entire gift is valid. In that case, the property of which possession was not delivered was in the possession of a mortgagee and this High Court has held that in such a case possession is not necessary. But this apart, the Bombay High Court considered the question on the assumption that possession even in such a case was necessary, whether the gift was valid having regard to the fact that all the other properties were put in the possession of the donee. The learned Judges say this at page 1300: But another question arises whether we should not look at the gift as a whole and not merely look at that portion of it which purported to convey to the donee the equity of redemption in the mortgaged properties. There is here a gift of five properties which are set out at page 1 in the judgment of the Second Class Subordinate Judge in remand. Certain of those properties which were in the possession of the donor were actually handed over to the donee, and our attention has not been drawn to any authority which goes to show that we are bound to split up a deed of gift, by which various properties are given, into its component patts, and consider the gift in respect of that portion of the property of which possession could be given as valid, and in respect of that portion of the property of which possession could not be given as invalid. That being the case, we see no reason why we should not consider that; the principles of Mahomedan law were complied with when possession was given to the donee of the properties then in possession of the donor, and that, would be sufficient to support a claim to redeem the properties which were in possession of the mortgagee.
(3.) THE Judicial Committee held in Muhammad Abdul Ghani v. Mt. Fakhr Jahan Begam, A.I.R. 1922 P.C. 281 that delivery of part of the zamindari which was the subject of the gift was delivery of the whole. On pages 314 and 315 the Judicial Committee say this: But in the Courts below and in this appeal it has been contended that the deed of 7th March 1884, is void so far as it purported to be a gift of the property in question in this suit on the ground that no possession was actually taken of this particular property, and no mutation of names in respect of this particular property was obtained by Lutf -Ullah, Khan until Munni Bibi had died in 1906. That contention has raised a question by no -means easy of solution. The solution of that question depends upon what are the facts here and upon, what is the rule of Mahomedan law applicable to those facts; in considering what is the Mahomedan law on the subject of gifts inter vivos their Lordships have to bear in mind that when the old and admitted authoritative texts of Mahomedan law were promulgated, there were not in the contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land or any zamindari estates, large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that the titles to lands had passed. The object of the Mahomedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee, and that the handing over by the donor and the acceptance by the donee, of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift.;

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