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Allahabad High Court
Jan Ali Shah vs Umrao Bibi on 14 June, 1898
Equivalent citations: (1898) ILR 20 All 465
Author: Blair
Bench: Blair, Burkitt


Blair, J.

1. The plaintiff’s suit was for cancellation of a deed of gift. It was based on the allegation that the execution of the deed had been obtained by fraud. There was an allegation in the plaint, apparently intended to support the plaintiff’s statement that he never made such a deed, to the effect that he had never given up to the defendant possession of the property the subject of the deed of gift. The allegation of fraud has been found not to have been proved, and the plaintiff relies upon the ground that a deed of gift, made without possession being given of the subject of that deed, is void in law. The plaintiff is in this dilemma. If the deed is a nullity for lack of giving over of possession, it is a document from which the plaintiff can entertain no reasonable apprehension of injury. If, on the other hand, possession was non-essential to its validity, then it would he a good deed of gift. In either the one or the other case it is not a document which a Court can be properly called upon to cancel. I would allow the appeal and dismiss the plaintiff’s suit with costs.

Burkitt, J.

2. I am also of the same opinion, and am of opinion that the appeal must DO allowed and the suit dismissed.

3. The plaintiff came into Court alleging an act of fraud against the defendant, in that he (the plaintiff) had been fraudulently made to execute a deed of gift in favour of the defendant, who was his niece, he at the time believing that it was in favour of his own daughter. Further on in his plaint he alleged that no transfer of possession had taken place, apparently adducing that matter in corroboration of the allegation of fraud. In the first Court the plaintiff failed to prove the allegation of fraud, and as to possession it was found that no transfer had taken place. The Munsif thereupon records: “I find that defendant did not take possession of the gifted property, and hence the gift not being complete is liable to be revokod. Hence I give a decree for the plaintiff for cancellation of the deed.” Now as to those words, it is to be remarked that the plaintiff nowhere asserted any revocation of the deed of gift; so the Munsif set up for the plaintiff a case he had not made and a case totally inconsistent with the plaintiff’s case; and though the Munsif says: “Hence I give a decree,” he has not referred to any authority justifying such action. The defendant being defeated in the first Court, appealed to the District Judge, and of course based her appeal on the question decided against her by the Munsif, i.e., the question of transfer of possession. On that issue the Judge in appeal concurred with the Court below, and affirmed the decree cancelling the deed. The ground on which the deed has been cancelled has been explained to us today by the learned Counsel for the respondent to be because it violated the rule of Muhammadan law, which requires that transfer of possession shall accompany a gift of immoveable property. It may be that the deed of gift is open to that objection; it may be that it is a deed not worth the paper it is written on; it may be that no action could successfully be taken on it in any Court, and that it is perfectly ineffectual for the purpose it purports to effect; I do not decide any of those points. But, assuming that the deed is open to all those objections, assuming it is waste paper, I am of opinion that that is no reason why a Court of Justice should be called on solemnly to cancel that which had no existence in law. Had the plaintiff made out the allegation of fraud, the case would have been different. Proof of that allegation would have been ample reason for cancelling the deed, but that allegation having failed, 1 see no reason why the document should be set aside simply because it may turn out to be one which has not complied with the provisions of the Muhammadan law.

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