Decided on October 05,1972



Obul Reddi, J. - (1.) The short and interesting question that arises in this Letters Patent Appeal relates to the validity of Ex. B-1, a gift deed (Hiba nama) executed by one Nabi Khan on 2-6-1967 in favour of the 1st defendant. The donee is the sisters daughter of the donor. The plaintiffs are the heirs of Nabi Khan and they brought the action for recovery of possession of the house gifted under Ex. B-1. One Subbanna, a usufructuary morgagee, was in possession of the suit house as it was mortgaged to him, by Nabi Khan. the doner, it is not in dispute, died on 9-6-1967, seven days after the execution of Ex. B-1. The donee took possession of the suit house from the usufructuary mortgagee on 9-1-1968 and she has been in uninterrupted possession of the house since then. Though the trial Court upheld the validity of the gift, an appeal was preferred and the Subordinate Judge, who heard the appeal, reversed the judgment and decree of the trial Court holding that there was no actual delivery of possession inasmuch as the house admittedly was in the physical possession and enjoyment of the mortgagee at the date of the gift and death of the donor. It is against that decree and judgment that a second appeal was preferred to this Court. Our learned brother, Madhava Reddy, J., reversed the judgment and decree of the lower Appellate Court and allowed the appeal of the respondents herein. Madhava Reddy, J., while allowing the appeal, observed :-- "Where the property gifted is subject to a usufructuary mortgage. What is gifted is merely the equity of redemption and not physical possession of the property itself. The equity of redemption is not capable of being physically delivered and the donee cannot be put in actual possession." It is the correctness of this view that is now canvassed before us.
(2.) Mr. R. V. Subba Rao, appearing for the appellants of a gift deed by a donor under Mahomedan Law is not sufficient to make it a valid gift unless there is some overt act to show that it was the intention of the donor to divest himself of all his rights in the property; and in this case all that was done by donor was only to hand over the gift deed without any other overt act by way of notice to the mortgagee or by way of beat of drum and as such, it cannot be said that symbolical delivery of the property by handing over a gift deed would constitute a valid gift. In support of his contention the learned Counsel invited our attention to certain passages from Tyabjis Muslim Law (4th Edition) Mahomedan Law by Syed Ameer Ali (Vol. 1. 4th Edition) and Mulla Principles of Mohammedan Law by Hidayatullah, C. J. besides certain decisions of the High Courts.
(3.) The essential ingredients of a gift under Mohammedan Law are stated by the Privy Council in Md. Abdul Ghani v. Mt. Fakhr Jahan , AIR 1922 PC 281. They are: (1) a declaration of gift by the donor: (2) an acceptance of the gift express or implied, by or on behalf of the donee: and (3) delivery of possession of the subject of the gift by the donor to the donee, either physically or constructively. The controversy centres round the third essential regarding delivery of possession of the property gifted under Ex.B-1. Mr. E. Ayyapu Reddy appearing for the respondents contended that it is impossible to give physical delivery of the property, which is in possession of the usufructuary mortgagee and all that possibly could be expected to be done by the donor was to make a symbolical delivery of the property, which alone he is capable of and since there was such symbolical delivery, it would satisfy the well-recognised third condition laid down by the Privy Council.;

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