{"id":45969,"date":"2006-04-20T00:00:00","date_gmt":"2006-04-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-abdul-aleem-vs-h-rehima-bi-on-20-april-2006"},"modified":"2016-12-15T09:12:45","modified_gmt":"2016-12-15T03:42:45","slug":"h-abdul-aleem-vs-h-rehima-bi-on-20-april-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-abdul-aleem-vs-h-rehima-bi-on-20-april-2006","title":{"rendered":"H.Abdul Aleem vs H.Rehima Bi on 20 April, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
H.Abdul Aleem vs H.Rehima Bi on 20 April, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated: 20\/04\/2006 \n\nCoram \n\nThe Hon'ble Mr. Justice T.V. MASILAMANI  \n\nA.S. No.35 of 1992\n\n\n1. H.Abdul Aleem \n2. H.Basheerunnizamma              .. Appellants\n\n-vs-\n\n1. H.Rehima Bi \n2. H.Halima Bi\n3. H.Rahamath Bi \n4. H.Ayisha Bi\n5. H.Mahaboob Bi \n6. H.Kathiza Bi\n7. H.Abdul Rahim                  .. Respondents\n\n\n        Appeal Suit against the judgment and decree dated 20.12.1991  made  in\nO.S.  No.520 of 1989 on the file of the Principal Subordinate Judge, Salem.\n\n\n!For Appellants :  Mr.R.Subramanian\n\n^For Respondents :  Mr.R.Mohan  \n...\n\n\n:JUDGMENT   \n<\/pre>\n
        The  appellants  are  the  defendants  who  have preferred this appeal
\nchallenging the judgment and decree dated 20.12.1991 in O.S.No.520 of 19 89 on
\nthe file of the Principal Subordinate Judge, Salem.\n<\/p>\n
        2.  The first plaintiff (since deceased) and the respondents  1  to  7
\nherein\/plaintiffs  2 to 8 filed the suit for declaration of title and recovery
\nof possession of the suit property from the appellants and also for damages at
\nthe rate of Rs.250\/- per month for illegal  occupation  from  1.7.1988.    The
\nappellants,  who  are  none  else  than the other sons of the first plaintiff,
\nresisted the suit on various grounds.  The learned  Subordinate  Judge  having
\nanalysed  the  evidence of both sides and upon hearing the submissions made on
\nbehalf of them decreed the  suit  as  prayed  for  with  costs.    Hence,  the
\nappellants have filed this appeal challenging the legality of the judgment and
\ndecree passed by the trial court.\n<\/p>\n
        3.   The  contentions  of the respondents\/plaintiffs in the plaint are
\nbriefly as follows:-\n<\/p>\n
                (a) The first plaintiff was the absolute  owner  of  the  suit
\nproperty  and he was in possession and enjoyment of the same in his own right.
\nHe has gifted the suit  property  to  the  plaintiffs  2  to  8  by  means  of
\nregistered gift deeds dated 16.6.1986 and 17.6.1986 and necessary changes have
\nbeen made in the municipal register and in revenue records in favour of donees
\nwho have been paying the taxes thereafter.\n<\/p>\n
                (b)  The  defendants,  who are the sons of the first plaintiff
\nand brothers of plaintiffs 2 to 8, have no manner of right  or  interest  over
\nthe suit  property.    The  plaintiffs  and the defendants are governed by the
\npersonal law, namely, Muslim law.   The  first  plaintiff,  who  retired  from
\nJudicial  Department  in  the  year 1965, purchased the suit property with two
\ntiled buildings and a thatched shed in the year 1942.  Even after  retirement,
\nhe  was  working  as  a  job  typist  and  earned considerable income so as to
\nmaintain the family and  also  to  perform  the  marriages  of  his  sons  and
\ndaughters.  He  has also improved the property by putting up tiled house.  The
\ndefendants 1 and 2 have not contributed anything towards such improvement.\n<\/p>\n
                (c) The first plaintiff allowed the defendants to reside in  a
\nportion  of  the  suit  property  and  therefore  their  possession  is purely
\npermissive in nature.  On 7.3.1986, the first plaintiff revoked the leave  and
\nlicence  and called upon them to vacate the premises the premises bearing Door
\nNos.88 and 89 Jalal Khan  Street,  Fort,  Salem-1.    The  possession  of  the
\nproperty  by  the  defendants  thereafter was that of trespassers and they are
\nliable to pay damages for wrongful use and occupation.\n<\/p>\n
                (d) The defendants 1 and 2 out of jealousy and ill-will  filed
\na suit in O.S.No.309 of 1986 on the file of the District Munsif, Salem.  After
\nconsiderable  delay,  interim applications filed by them in the said suit were
\ndismissed on merits and the matter went up to the High Court with reference to
\nthe orders in the said applications.  Again the defendants amended the  plaint
\nand  moved the Subordinate Court wherein the suit was registered as O.S.No.112
\nof 1988 on the file of the Additional Subordinate Judge, Salem and ultimately,
\nthey allowed the suit to be dismissed on 25.7.1989.  Therefore the  defendants
\nare  in unlawful possession without paying any amount and hence the plaintiffs
\nare constrained to file the suit.  The first  plaintiff  died  on  27.6.1  990
\nleaving  behind  the  plaintiffs 2 to 8 and the defendants as his legal heirs.
\nHence the suit.\n<\/p>\n
        4.  The averments  in  the  written  statement  filed  by  the  second
\ndefendant and adopted by the first defendant are briefly as follows:-\n<\/p>\n
                (a)  It  is  false  to  allege that the first defendant is the
\nabsolute owner of the suit property and that he has gifted  the  same  to  the
\nplaintiffs 2 to 8 under the gift deeds dated 16.6.1986 and 17.6.1986.  But, on
\nthe  other  hand,  the  suit  properties  are  the  absolute properties of the
\ndefendants and the first plaintiff had no interest or title over the  same  on
\nthe alleged  date  of  gift deeds.  The gift deeds are hit by the principle of
\nlis pendens.  Further the gift deeds are not valid as the first plaintiff  had
\nno ti tle to the same.\n<\/p>\n
                (b)  The  other allegations in the plaint are denied as false.
\nThe suit properties were partitioned and the defendants put up  the  buildings
\nin the suit properties in their own right in the year 1960.\n<\/p>\n
                (c)  The  plaintiffs  2  to  8 obtained the documents by undue
\ninfluence and misrepresentation made to the first plaintiff  as  he  was  aged
\nabout 80  years  at  that  time.    Therefore  he  was  not having a sound and
\ndisposing state of mind on the date of the gift deeds.   Hence,  there  is  no
\ncause of  action  and  the  one alleged is false.  In these circumstances, the
\nsuit may be dismissed with costs.\n<\/p>\n
        5.  The averments in the additional written  statement  filed  by  the
\nsecond defendant are as follows:-\n<\/p>\n
                The  first  plaintiff  had  no  right  or  interest  over  the
\nbuildings bearing Door Nos.88 and 89 described in the plaint schedule.    Even
\nif the defendants had any defect in their title, they have prescribed title by
\nadverse  possession,  as  they  were  in  continuous,  uninterrupted  and open
\npossession and enjoyment of the properties  to  the  knowledge  of  the  first
\nplaintiff and other plaintiffs from 1960.  They have put up fresh construction
\nin the  suit  properties in their own right.  Hence, the suit may be dismissed
\nwith costs.\n<\/p>\n
        6.  On the above pleadings,  the  trial  court  framed  the  following
\nissues:-\n<\/p>\n
        (1)  Whether  the  gift  deeds dated 16.6.1986 and 17.6.1986 are true,
\nvalid and binding on the defendants?\n<\/p>\n
        (2) Whether the defendants have prescribed title to the suit  property
\nby adverse possession?\n<\/p>\n
        (3) Whether the plaintiffs are entitled to the relief as prayed for?
\n        (4) To what relief, the plaintiffs are entitled?<\/p><\/blockquote>\n
        7.   The  respondents  as  plaintiffs  in  the  suit  examined the 8th
\nplaintiff as P.W.1 and two other witnesses as P.Ws.2 and 3  and  produced  the
\ndocuments under  Exs.A-1  to  A-30.  The appellants as defendants examined the
\nsecond appellant as D.W.1 and another witness as D.W.2 and also  produced  the
\ndocuments  under Exs.B-1 to B-31 in support of their respective contentions in
\nthe pleadings.  Learned Principal Subordinate Judge, Salem having analysed the
\nevidence both oral and documentary adduced on either side and upon hearing the
\narguments of both sides held on issue Nos.1 and 2 that the  gift  deeds  dated
\n16.6.1986 and 17.6.1986 are true, valid and binding on the defendants and that
\nthe defendants have not acquired title to the suit property by prescription on
\naccount of  their  adverse  possession.   Further he held on issue Nos.3 and 4
\nthat since the plaintiffs have proved their title to the suit  property,  they
\nare  entitled  to  the  reliefs  of  declaration and recovery of possession as
\nprayed for.  Similarly, learned Subordinate Judge held that the plaintiffs are
\nalso entitled to recover damages for use and occupation of the property by the
\ndefendants as prayed for.  Therefore he held on issue No.4 that the plaintiffs
\nare entitled to a decree as prayed for with costs.\n<\/p>\n
        8.  Heard Mr.R.Subramanian, learned counsel  for  the  appellants  and
\nMr.R.Mohan, learned counsel for the respondents.\n<\/p>\n
        9.   Learned  counsel  appearing  for  the  appellants  submitted  the
\nfollowing contentions in support of the appellants herein:-\n<\/p>\n
                (a) The court below erred in  holding  that  the  gift  deeds,
\nExs.A-1 and A-19 are true, valid and binding on the defendants.  Similarly, he
\nfailed  to  appreciate the evidence on record to show that the first plaintiff
\ncould not have sound and disposing state of mind on the date  of  the  alleged
\nexecution  of  Exs.A-1 and A-19, gift deeds in favour of the plaintiffs 2 to 8
\nand therefore the said  documents  have  been  obtained  by  undue  influence.
\nTherefore,  Exs.A-1  and A-19 are not valid and not binding on the defendants.
\nIn the circumstances, learned  Subordinate  Judge  should  have  rejected  the
\nevidence  of  P.W.3  especially  in view of the fact that another attestor and
\nscribe of the document have not been examined.\n<\/p>\n
        (b) Further the  court  overlooked  the  fact  that  it  is  essential
\ncondition  of  the  gift that there should be actual delivery of possession of
\nthe property to the donee and therefore since the possession of  the  property
\ncontinued  to  be  with  the  defendants,  the plaintiffs could not have taken
\ndelivery of the property as per the gift deeds Exs.A-1 and A-19 and  therefore
\nthe same are invalid under law.\n<\/p>\n
                (c)  Even otherwise the gifts in favour of two or more persons
\nwithout specifying their specific share and without dividing the property  are
\ninvalid.   Therefore  the  said  documents  should  have been brought about to
\ndefeat the claim of the appellants in the suit in O.S.No.112 of  1988  on  the
\nfile  of  the Subordinate Judge, Salem (O.S.No.309 of 19 86 on the file of the
\nDistrict Munsif Court, Salem).\n<\/p>\n
        (d) On the contrary, learned Subordinate Judge on  the  basis  of  the
\nevidence  of  the  defendants’  side  should  have held that their case in the
\nwritten statement is true and they have proved conclusively that they  are  in
\npossession of the suit properties in their own right.  The defendants were put
\nin possession of the suit properties even in the year 1960 and thereafter they
\nmade improvements  to  the same.  Hence, they have prescribed title by adverse
\npossession of the suit property over 25 years.\n<\/p>\n
        (e) Similarly, learned Subordinate  Judge  overlooked  the  fact  that
\nsince  Exs.A-1  and A-19 are executed during the pendency of the suit filed by
\nthe defendants in O.S.No.309 of 1996 referred to above and therefore since the
\ngift deeds were hit by the doctrine of lis pendens, the  court  below  is  not
\njustified in passing the decree.  Similarly, the amount of damages at the rate
\nof Rs.250\/- per month without any evidence cannot be sustained herein.\n<\/p>\n
        10.   In  the  above  circumstances,  the  following  points arise for
\ndetermination:-\n<\/p>\n
        (1) Whether the finding rendered by the  trial  court  that  the  gift
\ndeeds  dated  16.6.1986  and  17.6.1986  are  true,  valid  and binding on the
\nappellants is not supported by any evidence?\n<\/p>\n
        (2) Whether the gift deeds dated 16.6.1986 and 17.6.1986  executed  by
\nthe deceased first plaintiff, the father of the appellants and the respondents
\nare hit by the doctrine of lis pendens?\n<\/p>\n
        (3) Is the court below not correct in holding that the appellants have
\nnot acquired title to the suit properties by adverse possession?\n<\/p>\n
        (4) Whether the decision rendered by the court below with reference to
\ndamages for use and occupation is not sustainable?\n<\/p>\n
        (5) To what relief the parties are entitled to?\n<\/p>\n
        11.   Since all the above issues are with reference to the same set of
\nfacts and evidence, they are considered together and answered as under.    For
\nthe  sake  of  convenience,  the  parties  to  this  appeal may be referred to
\nhereunder as they were arrayed in the suit before the trial court.\n<\/p>\n
        12.  The relationship among the members of the family of the  deceased
\nfirst  plaintiff  and  his  sons  and  daughters,  who  are the appellants and
\nrespondents herein, is not under dispute.    Admittedly,  the  deceased  first
\nplaintiff,  father  of  the  appellants\/defendants  and  the plaintiffs 2 to 8
\nworked in the Judicial Department till his retirement in the year 1965 and  he
\npurchased the suit properties comprising of two tiled buildings and a thatched
\nshed under  Ex.A-4  registered  sale  deed  dated 11.2.1942.  Therefore, under
\nMuslim law, the father of the plaintiffs 2 to 8 and  the  defendants,  namely,
\nthe  deceased  first  plaintiff  should  be  held  to  have  acquired the suit
\nproperties as his separate properties and that he had absolute  dominion  over
\nthe same to deal with as he liked during his life time.\n<\/p>\n
        13.  According to the plaintiffs, even after retirement, their father,
\nwas  doing  job work as typist and out of his own income and pension, improved
\nthe properties by putting up a  tiled  structure  in  the  place  of  thatched
\nportion and  also  performed  the marriage of his sons and daughters.  Exs.A-1
\nand A-19 are the gift deeds executed by the first plaintiff in respect of  the
\nsuit  properties  in favour of the plaintiffs 2 to 8 and Exs.A-21 and A-22 are
\nthe drafts of the said gift deeds written  by  the  first  plaintiff  himself.
\nSimilarly,  on  account of the mistake in quoting the assessment number of the
\nsuit properties in the gift deeds referred supra, the first plaintiff executed
\nthe rectification deeds dated 3.7.1986 copies of which form part and parcel of
\nthe said documents under Exs.A-1 and A-19.  It is no doubt  true  that  during
\nthe  pendency  of the suit and before ever the evidence was adduced, the first
\nplaintiff died on 27.6.1990, leaving  behind  the  other  plaintiffs  and  the
\ndefendants as his heirs.\n<\/p>\n
        14.   In  the above circumstances, the first contention of the learned
\ncounsel for the appellants that the gift deeds under Exs.A-1 and A-19 are  not
\ntrue, valid and binding on the defendants has to be considered. It  is  not in
\ncontroversy that the defendants filed the suit in O.S.No.306 of  1986  on  the
\nfile of the District Munsif Court, Salem which was subsequently transferred to
\nthe  Additional  Subordinate Court, Salem and renumbered as O.S.No.112 of 1988
\nand the defendants have questioned the validity of the gift deeds executed  by
\nthe  first  plaintiff in the said suit itself on the ground that the same were
\ncreated by disobeying the the order of injunction in their  favour.    As  has
\nbeen rightly argued by the learned counsel for the respondents, the defendants
\nhowever  allowed  the  said suit to be dismissed for nonprosecution ultimately
\nand therefore he has contended that the defendants are estopped  from  setting
\nforth  the  same  plea  again  in this suit with reference to the validity and
\nbinding nature of the gift deeds Exs.A-1 and A-19.\n<\/p>\n
        15.  Be that as it  may,  since  the  question  has  been  raised  and
\nanswered on the basis of the evidence adduced by both sides in this suit, this
\nCourt  is  of  the  considered view that the defendants are not precluded from
\nraising the dispute in this suit, as the earlier suit was not disposed  of  on
\nmerits.   However,  the fact remains that the first plaintiff executed Exs.A-1
\nand A-19 gift deeds during the pendency of  the  earlier  suit  filed  by  the
\ndefendants  against  the plaintiffs and the first plaintiff herein, father has
\nalso filed the written statement in the said suit along with  the  other  sons
\nand  daughters  setting  forth  all the necessary averments so as to prove his
\nexclusive title to the suit properties and that he had executed the gift deeds
\nEx.A-1 and A-19 in favour of the other plaintiffs in this suit  and  delivered
\npossession of  the  same, complying with the requirements under Muslim law.  A
\ncareful perusal of the records of the case would  disclose  the  above  facts.
\nApart from the production of the said documents in support of the claim in the
\nsuit, evidence has been let in by the plaintiffs to prove the execution of the
\ngift deeds, Exs.A-1 and A-19 and the validity as well as the binding nature of
\nthe documents.\n<\/p>\n
        16.  In this context, learned counsel for the respondents has referred
\nme  to the evidence of P.Ws.1 and 3 to show that besides the admission made by
\nthe deceased first plaintiff who executed the said gift deeds when he was in a
\nsound and disposing state of mind, the evidence of P.W.1, the 8th plaintiff as
\nson of the deceased first plaintiff who executed the  gift  deeds  is  to  the
\neffect  that  till  the  date  of  death on 27.6.1990, his father was hale and
\nhealthy, that he had not only executed the gift deeds in favour of him and his
\nsisters, but also delivered the constructive possession of  the  same  as  the
\nmutation  in the records had been carried out in the names of the donees, that
\nhis father permitted the defendants to occupy portion of the house by  way  of
\npermissive  occupation, that he was occupying the house in Door No.89 and that
\ntherefore the defendants are not in possession of  any  portion  of  the  suit
\nproperties in their own right.  It is in his evidence that right from the date
\nof  execution  of  Exs.A-1  and  A-19  in  198 6 till the date of his death on
\n26.7.1990, his father was in a sound and disposing state of mind living  along
\nwith  his  sister  in house bearing Door No.91 and in the year 1987 his father
\nleft his sister and began to reside in a rental house till his death.\n<\/p>\n
        17.  The evidence of P.W.1 is corroborated by P.W.2, who is his sister
\nand 7th plaintiff in the suit, in  all  respects  and  therefore  the  learned
\ncounsel  for  the respondents would urge that the contentions put forth by the
\nappellants that due to old age and debility of mind, the plaintiffs influenced
\nthe deceased first plaintiff and got the gift deeds under Exs.A-1 and A-19  is
\nnot supported  by  any  independent evidence.  Admittedly, the first defendant
\nbeing the elder brother of the second defendant  has  not  gone  into  box  in
\nsupport of  the  claim  put  forth  in the written statement.  The evidence of
\nD.W.1, the second defendant though relied on by the learned  counsel  for  the
\nappellants  to  prove  the  claim  made  in  the  written  statement  that the
\nplaintiffs 2 to 8 obtained the gift deeds Exs.A-1 and A-19 from  their  father
\nby  undue influence when the executant of the documents was not in a sound and
\ndisposing state of mind, his self serving testimony is not  supported  by  any
\nindependent evidence.\n<\/p>\n
        18.   Though  D.W.2 has been examined on the side of the defendants to
\nprove the plea of partition  set  forth  in  the  written  statement,  he  has
\ncandidly  admitted  in  his cross-examination that he is not aware whether the
\nfirst plaintiff divided the properties and put the defendants in possession by
\nway of oral arrangements or by means of any document such as gift deed or sale
\ndeed in their favour.  Therefore it has been rightly  argued  by  the  learned
\ncounsel  for  the respondents that the evidence of D.W.2 is not helpful in any
\nway to advance the case of the defendants and that therefore the self  serving
\ntestimony  of  the second defendant as D.W.1 is the only evidence available on
\nrecord in support of the contentions put forth in the pleadings.\n<\/p>\n
        19.  It follows necessarily that the defendants have miserably  failed
\nto prove their contention that the properties had been allotted to their share
\nin  the  partition  in the year 1960 as alleged and therefore this Court is of
\nthe opinion that their plea of adverse possession also falls to the ground, as
\nthe same is not only contrary to their earlier contentions  that  they  became
\nentitled  to  the  suit property by virtue of the partition in the family, but
\nalso not supported by any evidence worth mentioning on their side.\n<\/p>\n
        20.  Per contra, the evidence of P.W.3, an attestor who had  witnessed
\nthe  execution  of  the  gift  deeds,  Exs.A-1  and A-19 by the deceased first
\nplaintiff is relied on by the learned counsel for the respondents  in  support
\nof  his  contention that such evidence when considered in the circumstances of
\nthe case as narrated above would go to show and prove  the  execution  of  the
\ngift deeds by the first plaintiff in a sound and disposing state of mind.\n<\/p>\n
        21.   Though  the  learned  counsel for the appellants has strenuously
\ncontended that the non-examination of the other witness and the scribe of  the
\ngift  deeds,  Exs.A-1  and A-19 is a valid ground in support of his contention
\nthat the evidence of P.W.3 itself would not ipso facto prove the factum of the
\nexecution of the said  documents,  I  am  unable  to  give  credence  to  such
\ncontention  for the simple reason that the execution of the gift deeds was not
\nonly admitted by the defendants in the prior suit filed by them against  their
\nfather,  but  also  proceeded  to take contempt action against him therein and
\nfailed in their attempt as seen from the records of the case.  Therefore,  the
\nevidence  of P.W.3 in my opinion would be sufficient to prove the execution of
\nExs.A-1 and A-19 by the deceased first plaintiff.  Having regard to the  above
\nfactual  aspects of the case, this Court is of the considered opinion that the
\nfindings rendered by the learned Subordinate Judge that the  gift  deeds  were
\nduly  executed by the father of the other plaintiffs and the defendants cannot
\nbe interfered with.  It is therefore sustained.\n<\/p>\n
        22.  The next question for consideration is whether the gift deeds are
\nnot valid for the reason of non delivery of possession of the property to  the
\ndonees.   It  is  no  doubt  true  that delivery of possession of the property
\ngifted is the sine qua non under Muslim law.  According  to  the  evidence  of
\nP.W.1,  immediately  after  the execution of Ex.A-1 in his favour, mutation in
\nthe records had been carried out and that he paid house taxes  (vide)  Exs.A-2
\nand A-3.    Similarly, the evidence of P.W.2, 7th defendant is that her father
\nexecuted the gift deed Ex.A-19 in favour of  her  as  well  as  to  the  other
\nsisters,  namely plaintiffs 2 to 6 in respect of Door No.91 and that since the
\ndefendants were residing in the same house claiming right over  their  portion
\nof  the  house,  her  father  joined  them  in  filing  the  suit  against the
\ndefendants.  She has categorically stated that the said property had not  been
\nallotted to the defendants by any partition arrangement as alleged by them.\n<\/p>\n
        23.   Learned  counsel  for  the appellants has placed reliance on the
\ndecisions M.BABU v.  MRS.KHAMIRUNNIASA BEGUM (1990 T.L.N.J.  298) and  MAHBOOB
\nSAHAB v.   SYED  ISMAIL  (AIR<\/a> 1995 S.C.  1205) in support of his argument that
\nthe essentials of a valid gift under Mohammedan law have not been fulfilled in
\nthis case and that therefore there could not have been a valid  gift  made  by
\nthe  deceased  first  plaintiff by executing Exs.A-1 and A-19 in favour of the
\nplaintiffs 2 to 8.  He has submitted that there was no delivery of  possession
\nof  the  property  in favour of the donees in this case and that therefore the
\nimportant requirement under Mohammedan law for  a  valid  gift  had  not  been
\ncomplied with.    As has been rightly contended by the learned counsel for the
\nrespondents in the case in 1990 T.L.N.J.  298, the settlor reserved her  right
\nto  live in a portion of the suit properties, to appropriate the entire income
\nderived from the properties, to lease out the properties and to determine  the
\nrent during her life time and therefore on account of such reservation made by
\nthe  donor  inconsistent  to the requirement of absolute dominion conferred on
\nthe donees, the gift in that case was held as invalid.  A careful  reading  of
\nthe  said decision would disclose the above said facts and therefore the ratio
\nlaid down therein is not applicable to the facts of this case.\n<\/p>\n
        24.  In the case reported in AIR 1995 S.C.  1205, the question whether
\nthe mother of a minor can act as a guardian  under  Muslim  law  came  up  for
\nconsideration and in that context, while deciding several other questions, the
\nHonourable Supreme Court held in paragraph (5) as follows:-\n<\/p>\n
“It  would, thus, be clear that though gift by a Mohammedan is not required to
\nbe in writing and consequently need not be registered under  the  Registration
\nAct;  a  gift  to be complete there should be a declaration of the gift by the
\ndonor; acceptance of the gift, expressed or implied, byor  on  behalf  of  the
\ndonee,  and  delivery of possession of the property, the subject-matter of the
\ngift by the donor to the donee.    The  donee  should  take  delivery  of  the
\npossession of  that  property  either actually or constructively.  On proof of
\nthese essential conditions, the gift becomes complete and valid.  In  case  of
\nimmovable property in the possession of the donor, he should completely divest
\nhimself physically of the subject of the gift.”\n<\/p>\n
Further  in  that case, since it was not proved that the gift was declared and
\naccepted by and on behalf of the minor or delivery  of  possession  or  taking
\npossession  or  who  had  accepted the gift actually or constructively, it was
\nheld on facts that the gift in that case was not valid in law.    However  the
\nprinciple  of  law as quoted above regarding the gift in Mohammedan law is not
\nin controversy.  In view of  the  factual  position,  this  Court  is  of  the
\nconsidered  opinion that the above decisions are not helpful in any way to the
\nappellants in this case.\n<\/p>\n
        25.  Learned counsel for the respondents has contended in his argument
\nthat even though Muslim Law  mandates  that  delivery  of  possession  of  the
\nproperty  by  the donor to the donee of the property gifted is sine quo non to
\nvalidate the gift, there is nothing in the personal law of Muslim to prevent a
\ngift of right to property and that therefore in this case, the  donor  namely,
\nthe  first  plaintiff  put  the  donees,  plaintiffs  2  to  8 in constructive
\npossession of the property and joined with them in filing the suit against the
\ndefendants for declaration and recovery of possession of  the  suit  property.
\nHe has however cited the decisions, QHAMRUNNISSA BEGUM v.  FATHIMA BEGUM<\/a> (1968
\n(1) M.L.  J.   470) and M.A.KHAN v.  KHODAIJA<\/a> (1996 (3) SCR 479) in support of
\nsuch proposition of law put forth by him.  The ratio laid  down  in  1968  (1)
\nM.L.J.  470 on this aspect of the matter reads as under:-\n<\/p>\n
        “The  three  essential  requisites that have to be complied with for a
\nvalid gift under the Muhammadan law are (i)  a  declaration  of  gift  by  the
\ndonor, (ii) acceptance of the gift, express or implied, by or on behalf of the
\ndonee  and  (iii)  delivery of s possession, of the subject of the gift by the
\ndonor to the donee as the subject of gift is susceptible of.\n<\/p>\n
        There can be no doubt that taking of possession of the  subject  of  a
\ngift  may  be  either  actual or constructive and constructive possession is a
\nquestion of fact depending on the circumstances.”\n<\/p>\n
        26.  Further, “Principles of Mahomedan Law” by Mulla 15th  edition  at
\npage 157 is quoted therein and it runs as follows:-\n<\/p>\n
        “Learned  author  points out that there is nothing in Mahomedan Law to
\nprevent a gift of right to property.  In such a case the donor must so far  as
\nit is possible for him, transfer to the donee that which he gives, namely such
\nrights  as  he  himself  has  but  this  does  not imply that where a right to
\nproperty forms a subject of a gift, the gift will be invalid unless the  donor
\ntransfers what he himself does not possess, namely corpus of the property.  He
\nmust evidence the reality of the gift by divesting himself so far as he can of
\nthe whole of what he gives.”\n<\/p>\n
        27.   Similarly, the principle of law on the subject as laid down in 1
\n996 (3) S.C.R.  479 is as under:-\n<\/p>\n
        “In Mohammad Abdul Ghani v.  Fakhr Jahan Begam (1992  L.R.    49)  Sir
\nJohn Edge said:\n<\/p>\n
        “For  a  valid  gift inter vivos under the Mohomedan law applicable in
\nthis case, three conditions are necessary, which their Lordships consider have
\nbeen correctly stated thus:  (a) manifestation of the wish to give on the part
\nof the donor; (b) the acceptance of the donee either impliedly  or  expressly;
\nand  (c)  the  taking  of  possession of the subject matter of the gift by the
\ndonee, either actually or constructively (Mahomedan Law, by  Syed  Ameer  Ali,
\n4th ed.  vol.I, pg.41)”\n<\/p>\n
        28.   On  a  careful reading of the said decisions in the light of the
\nprinciple of law enunciated on the subject under consideration, it would  thus
\nbe  seen  that if the donor has divested of his whole interest in the property
\nin favour of the donee and delivery of such possession of the subject  of  the
\ngift  as  susceptible  of  has  been  given,  the  gift  deeds are valid under
\nMohammedan law.  Therefore in this case the deceased first plaintiff  had  not
\nonly  duly executed the gift deeds, Exs.A-1 and A-19 but also divested all the
\nrights over the properties in favour of the donees and joined  with  them  and
\nfiled  the  suit  for  declaration  and  recovery of possession of the subject
\nmatter of the gift  from  the  defendants.    Hence,  this  Court  is  of  the
\nconsidered  view  that  the  gift  deeds, Exs.A-1 and A-19 are true, valid and
\nbinding on the defendants.\n<\/p>\n
        29.  Learned counsel for the respondents has drawn  the  attention  of
\nthis  Court  to the recitals in Ex.A-1 which categorically show that the donor
\nhad settled the properties in favour of the donees with immediate  effect  and
\nalso  expressed  his  intention  to  deliver possession of the property to the
\ndonees on the date of the gift deeds by  effecting  mutation  in  the  revenue
\nrecords  in favour of the donees and that he had no right or interest over the
\nproperties thereafter so as to enable him to cancel the deeds of gift executed
\nby him.  Moreover, the subsequent conduct on the part of both  the  donor  and
\ndonees  in filing the suit against the defendants for declaration and recovery
\nof possession of the suit properties would lend support to the contentions  of
\nthe learned counsel for the respondents in the light of the ratio laid down in
\nthe  decisions  cited  by  him  that  the  donor  had  delivered  constructive
\npossession of the property to the donees as the subject of gift is susceptible
\nof and that the donees’ acceptance of the gift is also implied as they  joined
\nwith the  donor  and filed the suit for the reliefs as prayed for.  In view of
\nthe above factual aspects of the case in the light of the ratio laid  down  in
\nthe decisions relied on by the learned counsel for the respondents, this Court
\nis  of the considered view that the gift deeds, Exs.A-1 and A-19 were executed
\nin accordance with the Mohammedan law and are therefore valid and  binding  on
\nthe defendants.\n<\/p>\n
        30.   Similarly,  the issue with reference to the question whether the
\nsaid gift deeds are hit by the doctrine of lis  pendens  does  not  arise  for
\nconsideration  for  the  simple  reason  that  the  earlier  suit filed by the
\ndefendants against their father, the donor under the said gift deeds  was  not
\ndecided  and  disposed  of  on merits and therefore, I am unable to accept the
\ncontention of the learned counsel for the appellants that  by  reason  of  the
\ndoctrine  of  lis  pendens the gift deeds under Exs.A-1 and A-19 are not valid
\nunder law.\n<\/p>\n
        31.  For the aforesaid reasons, this Court renders the findings on the
\nabove said points against the appellants and therefore the judgment and decree
\npassed by the court below are sustained.  Thus the appeal  is  dismissed  with
\ncosts.\n<\/p>\n
dpp <\/p>\n
To<\/p>\n
1.  The Principal Subordinate Judge, Salem.\n<\/p>\n
2.  The Section Officer, V.R.Section, High Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court H.Abdul Aleem vs H.Rehima Bi on 20 April, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 20\/04\/2006 Coram The Hon’ble Mr. Justice T.V. MASILAMANI A.S. No.35 of 1992 1. H.Abdul Aleem 2. H.Basheerunnizamma .. Appellants -vs- 1. H.Rehima Bi 2. H.Halima Bi 3. H.Rahamath Bi 4. H.Ayisha Bi 5. H.Mahaboob […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-45969","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nH.Abdul Aleem vs H.Rehima Bi on 20 April, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/h-abdul-aleem-vs-h-rehima-bi-on-20-april-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"H.Abdul Aleem vs H.Rehima Bi on 20 April, 2006 - 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