Sayyed Shabbir, vs Kueshid Begum Kulsum Beedi, Died ...
2023 Latest Caselaw 940 AP

            HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                    APPEAL SUIT No.1951 OF 2000

JUDGMENT:

1. Feeling aggrieved and dissatisfied with the Judgment and Decree

dt.22.06.2000 in O.S. No.95 of 1995 passed by the Principal Senior

Civil Judge, Tenali (for short "the trial court") by which the suit is

decreed for recovery of possession and mesne profits, the defendants

therein have preferred the present appeal.

2. For convenience, the parties will hereinafter be referred to as arrayed

in the suit.

3. The plaintiff filed a suit seeking recovery of possession and mesne

profits. In the nutshell, the averments in the plaint are to the affect

that, the plaintiff is the absolute owner of the plant schedule property;

on 27.08.1984 (in the plaint, the date of the gift deed is mistakenly

mentioned as 27.08.1994), she executed a gift deed in respect of the

plaint schedule property in favour of her son i.e. the first defendant,

to facilitate him to take the loan from the Government. Even after the

gift, the plaintiff continued in possession and enjoyment of the plaint

schedule property by paying taxes. Among Muslims the gift becomes

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invalid if possession of property under gift deed is not delivered. The

first defendant acquired no title to the plaint schedule property

(a) On 15.01.1993 the first defendant executed a gift deed styled as

Hiba-bil-iwaz in respect of plaint schedule property in favour of his

sister i.e., the 2nd defendant. On 28.08.1994 the plaintiff got issued a

registered notice to the first defendant through her advocate, but he

did not give reply to the said notice. On 28.09.1994 the plaintiff

executed a revocation deed cancelling the gift deed dt.27.08.1984. In

the year 1994, the plaintiff authorized her second son to carry on the

construction in the schedule site and provided the necessary funds as

she has to go to Chandigarh. The building was got constructed by the

second son. After the construction, the second defendant requested

her brother Sayyad Shabbir allow her to reside in the scheduled

house until the plaintiff arrived from Chandigarh, and she was

permitted to reside therein. After returning from Chandigarh, the

plaintiff required the second defendant to vacate and deliver

possession of plaint schedule premises. But, she refused to vacate,

setting up false claims to the same. The possession of the second

defendant in respect of the plaint schedule property is illegal and she

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is a trespasser and she is liable to vacate and deliver the possession of

the same.

4. The sum and substance of the written statement filed by the first

defendant is as follows :- His mother, the plaintiff, transferred the

vacant site in his name by way of a registered gift deed dated

29.08.1984 by giving possession out of love and affection and he was

in possession and enjoyment till he made a gift to the second

defendant on 15.01.1993. When the first defendant approached the

Municipal Authorities, they informed him that there was no system of

imposing taxes for vacant lands in the area. The only vacant site that

lies on the northern side of the dwelling house was gifted and the

southern boundary to the gifted site is the dwelling house. The

plaintiff was not paid any taxes for the first defendant's vacant site.

She may have paid taxes on her house only. All the essentials of the

gift as per Section 126 of the Transfer of Property Act were duly

fulfilled, and the gift was completed after the delivery of possession.

The revocation made after possession has been passed to the donee

by the donor is void and carries no legal validity. When the first

defendant approached the plaintiff in the presence of family members,

after receipt of the legal notice the plaintiff orally accepted that she

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had done a foolish thing by sending a legal notice. As such the

plaintiff thought that there was no need to send a reply to the

registered notice. His parents expressed their desire to give this suit

schedule property to the 2nd defendant. As a pious son, this

defendant agreed to retransfer as a gift to the second defendant. As

such, the first defendant has gifted the same to the second defendant,

along with the possession. The second defendant constructed the

house with her own funds.

5. The second defendant filed a written statement in the same lines of

the written statement of the first defendant. It is the case of the

second defendant that the plaintiff's husband purchased the plaint

schedule site in the name of the plaintiff. The plaintiff has no source

of income to purchase the plaint schedule site. The second defendant

is the elder sister of the first defendant and she is a handicapped

woman. On account of love and affection towards the second

defendant, the first defendant gifted the plaint schedule site and

delivered the possession according to Muslim law.

(a) Subsequently, the first defendant confirmed the gift by executing a

gift deed dt.15.01.1993 styled as Hiba-bil-iwaz. Thus, on account

of Hiba-bil-iwz, the second defendant who became the absolute

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owner of the plaint schedule property, constructed a terrace house

from October 1993 to December 1993 and entered into the new

house on 01.01.1994. At the function of the foundation stone

(sankusthapana) of the building in the month of October 1993, the

plaintiff and her husband were present. Even at the time of house

warming ceremony (gruhapravesham), the plaintiff and other

relatives were present, and new clothes were also present, so also

photographs were taken on the auspicious occasion. The plaintiff

has never gone to Chandigarh. The house tax was also levied in

the name of the second defendant by the municipality. The second

defendant obtained electricity supply also for the plaint schedule

property.

6. As seen from the trial court record, the issues are recast on

19.04.2000, which are as follows:

i. Whether the gift by plaintiff in favour of D1 is nominal?

ii. Whether the plaintiff is entitled for recovery of possession of suit property?

iii. Whether the plaintiff is entitled for profits as prayed for?

iv. To what relief?

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7. On behalf of the plaintiff, P.Ws.1 to 3 got examined and marked

Exs.A.1 to A.9. On behalf of the defendant, D.Ws.1 to 3 got

examined and marked Exs.B.1 to B.14.

8. The trial court, after analyzing the evidence on record, answered

issue No.1 by holding that one of the essential ingredients i.e.,

delivery of possession under Mohammadan law is not complied with

and the gift in favour of the first defendant by the plaintiff is not a

valid one.

(a) While answering issue No.2, the trial court held that in view of the

finding given on issue No.1 that the gift executed by the plaintiff

in favour of the first defendant under Ex.B.7 is not valid one and

consequently, Hiba-bil-iwaz under Ex.B.6 is of no use and the

plaintiff is entitled to recover the possession of the property.

(b) While answering issue No.3 the trial court held that the plaintiff is

entitled to mesne profits at Rs.600/- per month. While answering

issue No.4, the tribunal decreed the suit by directing the second

defendant to deliver possession of the plaint schedule property to

the plaintiff.

9. I have given my thoughtful consideration to rival submissions and

perused the material on record.

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10. Now the points that arise for determination are,

Whether the plaintiff is entitled for possession of the schedule property and mesne profits on the ground that the Ex.B7 gift deed was void and revoked ?

POINT :

11. The 1st defendant is the 2nd son ; 2nd defendant is the daughter of the plaintiff; the plaintiff's husband Abdul Hazeez worked as Town Planning Supervisor and retired in the year 1973; the 2nd defendant is a handicapped woman.

12. It is equally an admitted case of both parties that; on 27.08.1984,

the plaintiff executed Ex.B7 Gift deed (i.e., the original of Ex.A1) in

respect of the suit schedule property in favour of 1 st defendant; on

15.01.1993 the 1st defendant executed gift deed as Hiba-bil-iwaz

vide Ex.B6 in respect of plaint schedule property in favour of 2 nd

defendant. On 22.08.1984, the plaintiff got issued registered notice

(i.e., the original of Ex.A3 office copy) calling upon the 1 st

defendant to advise 2nd defendant not to set up any claims to the

plaint schedule property as the gift deed executed in her favour is

invalid and does not convey any title. Admittedly, the first

defendant has not sent any reply to the said notice. On 28.09.1994

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the plaintiff executed Ex.A-2 Revocation deed, revoking gift deed

executed by her in favour of D.1.

13. The plaintiff examined as PW.1, it is her evidence that she

executed Ex.B7 gift deed to facilitate 1st defendant to take loan

from the Government. Though it is recited in gift deed, in fact she

has not delivered the possession of schedule property to the 1 st

defendant as she was instructed to write accordingly, otherwise the

document is not valid.

14. It is the version of the PW.1 that as first defendant executed Ex.B6

in favour of 2nd defendant, she executed gift revocation deed vide

Ex.A2. According to her evidence, she herself constructed the

building in the schedule property while she was in Chandigarh

through her son by sending money to him. The plaint cleverly does

not disclose that the son as referred to in the plaint is no other

than the first defendant. But 2nd defendant entered into the house

under the pretext that she would resides therein for two days and

the 1st defendant allowed her into the building. When she

demanded defendant No.2 to vacate the building, but she did not

vacate. The 2nd defendant has no capacity to construct building.

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2nd defendant has no employment, but in the cross examination

PW.1 stated that the 2nd defendant is working in Leprosy

Department and her husband is working in Health Department

and their marriage took place about 30 years back.

15. It is the evidence of PW.1 that by the date of gift deed, she was

residing in the daba house and defendant No.1 was residing in

Municipeta in a rented house ; PW.1 deposed that two years after

execution of the gift deed, she let out her dhaba house to one Yella

Rao (PW.3), he continued as a tenant for a period of six years by

paying rent of Rs.600/- per month. PW.3 used to enjoy the toilets

and water tap situated in the schedule site. She further deposed

that she let out schedule site to one Sambi Reddy (PW.2), a

mechanic, two years after the execution of the gift deed. 1st

defendant never collected rents from PW.2 or from any other

person.

16. At the outset it is required to be noted that the gist of contention

put forth by the plaintiff is that she has not delivered the schedule

site to the 1st defendant despite execution of Ex.A1 deed. The trial

court had proceed on the assumption that schedule property was

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not delivered. She got constructed the building in the schedule site

through the 1st defendant. The 2nd defendant has no capacity to

construct the building. Whereas, the case of the defendants is that

1st defendant got possession of the schedule property through

Ex.B7 gift deed. The 1st defendant executed the Ex.B6 gift deed in

favour of 2nd defendant in respect of plaint schedule property. The

2nd defendant constructed the building in the schedule site. Ex.A2-

revocation deed executed by the plaintiff is void.

17. Sri.Shafiullah Baig, the learned counsel for the

appellants/defendants assiduously urged that in Ex.B7 gift deed

executed, there is a recital that the possession of the property

which is subject matter of the gift is delivered to the donee, it is an

admission binding on the plaintiff. The burden lies on the plaintiff

being executant of the document to establish that possession was

in fact not affected in favour of the donee as per the recitals of the

gift deed and the onus was wrongly placed by the trial court on the

donee to establish that delivery of possession was actually affected.

18. Sri.S.Syam Sundar, the learned counsel for the respondent /

plaintiff submits that the transfer of possession is essential

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ingredient for completing and validating a gift deed under the

Mohammadian Law and without such a transfer of possession, the

gift deed is invalid. The trial court has correctly assessed the

evidence on record and came to a correct conclusion that the

property was not delivered to first defendant despite the execution

of gift deed.

19. As already observed, the plaintiff has executed a deed of gift i..e,

Ex.B7 in favour of the first defendant, the document was registered

as required under law. There is a clear recital to the effect that

possession of the property is delivered in favour of the first

defendant. The procedure prescribed under the transfer of Property

Act in relation to the gifts doesn't apply to the gifts made by

persons professing Islam. However, there is no prohibition for them

to adopt the procedure prescribed under the Act. In India they

have the option either to follow their Personal Law, in the matter of

making the gifts or to follow the law contained in the Act. In the

light of above facts now it is to be seen whether the plaintiff is able

to establish her possession over the schedule property despite

execution of Ex.B7 gift deed.

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20. In support of his submissions, learned counsel appearing for

plaintiff relied on the following citations;

(a) Revappa Vs. Madhava Rao and another1, wherein the High

Court of Karnataka held that:

Under the Mohammadan Law, however, transfer of possession of the property which is the subject matter of the gift is an essential condition to validate the gift. In the absence of such a transfer, the gift becomes invalid.

(b) Moti Vs. Roshan and others2, wherein the High Court of

Himachal Pradesh held that:

In any case, the plaintiff-appellant had not been able to prove that, as a result of some gift to him, a delivery of possession of any part of the plots in dispute took place at all. Under the ordinary Hindu Law delivery of possession is essential to complete a gift, and even registration of a deed of gift has been held to be insufficient to overcome the defect of want of delivery of possession.

(c) Shaik Mahaboob Saheb Vs. Sk.Fareed Rahib 3, wherein this

Court held that:

delivery of possession is essential in order to complete a gift under the Muslim Law notwithstanding the fact that the gift deed is

1 AIR 1960 MYSORE 97 2 AIR 1971 Himachal Pradesh 5 3 1975 (1) (H.C)

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executed and registered under section 123 of the Transfer of Property Act. Even though a gift deed is registered, if delivery of possession of the gifted property which is an essential ingredient in a gift made by a Muslim has not been made over to the done, the gift is incomplete and consequently no title passes to the done.

Essential Ingredients of gift by a Muslim under the Muslim Law are:

           1)     There must be a declaration of the gift by
           the donor showing his intention to divest
           ownership in the property and transfer the
           property to the done.
           2)     There must be acceptance, either express or

implied, of the gift by or on behalf of the done.

3) There must be delivery of possession of the gifted property to the done.

(d) Musa Miya Walad Mahamad Shaffi and anr., Vs. Kadar Bax

Walad Khaj Bax, since deceased and anr., 4 wherein the

Bombay High Court held that:

There is no doubt that the case has to be decided according to Mohamedan law, and that the chapter on gifts in the Transfer of Property Act, 1882, is not applicable.

Their lordships are of opinion that a correct statement of the law on the question under consideration is to be found in the material clauses of Chap.V of Macnaghten's "Principles and Precedents of Mohammedan Law", published in 1825. They are as follows:

4 Vol.XXXII of the Calcutta Weekly Notes

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1. A gift is defined to be the conferring of property without a consideration.

2. Acceptance and seizin, on the part of the donee, are as necessary as relinquishment on the part of the donor.

4. It is necessary that a gift should be accompanied by delivery of possession and that seizin should take effect immediately or at a subsequent period by desire of the donor.

8. A gift cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void where he continues to exercise any act of ownership over it.

9. The case of a house given to a husband by a wife and of property given by a father to his minor child form exceptions to the above rule.

10. Formal delivery and seizin are not necessary in the case of a gift to a trustee having the custody of the article given, nor in the case of a gift to a minor. The seizin of the guardian in the latter case is sufficient.

(e) K.Maqbool Alam Khan Vs. Khodaija5, wherein the Apex

Court held that:

To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If apart from making a declaration, the donor does nothing else, the gift is invalid. In Macnaghten's Muhammadan Law, Precedents of Gifts, Case No.VI.

5 AIR 1996 sc 1194

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The ratiocinations extracted supra propound with clarity

the position of law that under the Mohammedan Law the delivery

of possession is essential in order to complete the gift.

21. Plaintiff has placed much reliance on the evidence of PWs.2 and 3.

The evidence of PW.2, he took the schedule property on lease from

1985 to 1990 for manufacturing business i.e., moulding purpose,

on payment of rent of Rs.100/- per month and by that time one

Yellarao (PW.3) was also residing in the schedule building as a

tenant is not disputed in his cross examination. The evidence of

PW.3 that he resided in the house situated to the southern side of

the schedule property for a period of four or five years and vacated

the same in the year 1989 or 1990 by paying rent at Rs.600/- per

month is not disputed.

22. The evidence of PWs.2 and 3 coupled with the evidence of 1st

defendant as DW.1 shows that there is no demarcation or

separation of the vacant site and building and both the house and

site are in one compound. In the cross examination DW.3, he

deposed that he doesn't know the names of tenants in the building

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situated in the south of the schedule property and the tenants

have been using bathroom and lavatory with his consent. It

supports the version of plaintiff that the schedule property and

adjacent building were let out.

23. It is not the first defendant's case that he collected rents from the

tenant it would be apposite to refer that DW.1, admitted that both

the vacant site and the building bear one assessment number; his

mother has been paying the tax; he never filed any petition before

Municipality to assess the tax separately to the vacant site belongs

to him. There is no separate assessment number to the site for

which he applied the building plan. Basing on the said evidence of

DW.1 it is contended that despite execution of Ex.B7 gift deed,

plaintiff remains in possession of the schedule property. The

material on record would indicate that the building which is

situated on southern side of the schedule property does not have

toilet facilities. One thing remains certain that in the said building,

plaintiff and his family members including the 1 st defendant used

to reside as on the date of execution of the gift deed. Considering

the relationship between the parties, this Court views that merely

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because the tenants of the building were permitted to use the

toilets that any stretch of imagination as a matter of fact, it cannot

be held that the possession of the property was not delivered to the

1st defendant by virtue of Ex.B7 gift deed and that the gift deed

was not acted upon.

24. However, the 1st defendant who is examined as DW.1 deposed

that in the year 1987 he obtained a loan from the urban bank by

mortgaging the suit schedule property. To establish that, he relied

on Ex.B3 hypothecation agreement with bank and also Ex.B4

security bond with bank ; to establish that, he discharged the

said loan taken from the Urban Bank; he relied on Ex.B5

clearance certificate. To show that he obtained approved plan

from the Municipality in the year 1989 to construct a building in

the schedule property, he relied on Ex.B1 approved plan. It is his

evidence that due to lack of sufficient funds he could not

construct the house, thereafter he settled the property to 2nd

defendant.

25. In this regard, PW.1 stated in cross examination that, she doesn't

know whether the first defendant mortgaged the plaint schedule

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property in a bank and obtained a loan. She never enquired about

the said loan in cooperative bank. She did not enquire with the

first defendant about the loan. She had no dispute with the 1 st

defendant till the date of her giving evidence in the court.

Therefore, there is no manner of doubt that PW.1 has not at all

disputed DW.1's evidence regarding the loan transactions. It

seems that the plaintiff had not made any effort to know about

those transactions even after filing of the written statement. The

evidence of DW.1, the documents relied on by him manifestly

indicate that DW.1 has taken loan from the bank by mortgaging

the schedule property and discharged the loans.

26. It is the contention of the plaintiff that in pursuance of the gift

deed, there is no mutation of names in the Municipal registers.

The 1st defendant/appellant has placed relevant record to show

that he secured the loan amount from the bank on the strength of

the Ex.B7 gift deed and he exercised the right over the schedule

property by securing loans from the bank and subsequently

discharged the same. As it is a vacant site, the 1st defendant is

not expected to place record to show his exclusive or absolute

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possession over the schedule property. Simply because, plaintiff

collected the rents from the tenant, it cannot be concluded that

she has not lost right over the property by virtue of the gift deed.

In the cross examination DW.1 stated that in the year 1979 he

joined in service and he married in the year 1983. Around 1987

for one year he lived separately in Morrispet, till such time he

lived with his parents. The material on record shows that by

virtue of his employment, the 1st defendant used to reside

somewhere else and in the said facts of the case, the collection of

rent by the plaintiff does not defeat the rights of the 1st defendant

over the schedule property. Each case would depend upon its

circumstances. The evidence of DW.1 goes to show that he used

to stay in different places by virtue of his employment. It must be

noted that simply because the plaintiff was entrusted for

collection of the rents from the tenants it cannot be said that the

property was not delivered to first defendant by virtue of the gift

deed. The mere fact that donee who happens to live in the house

abutting to the site and manages the site in absence of her son

because of his employment. At the cost of repetition it is not

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sufficient enough to hold that possession had not passed and the

possession remained with the donor.

27. According to the evidence of DW.1, his parents asked him to

exchange the property covered under gift deed to 2nd defendant

with a view to enable both the sisters to live at same place; as

such he was given a vacant site at Gandhi Chowk and till

execution of gift deed the property was in his possession and

enjoyment with full rights, later 2nd defendant raised house in the

suit schedule property. His mother never gave any amount to him

to construct a house in the schedule property. At the time of

settlement of the property in favour of 2nd defendant in the year

1993, his father purchased a vacant site in his name at Gandhi

Chowk, wherein he constructed a house with his funds. The daba

house adjacent to the suit schedule site is in the name of another

sister since 1992 onwards. The 2nd defendant examined as DW.2,

the father of defendants 1 and 2 examined as DW.3. The said

evidence of DW.1 is supported by the evidence of DWs.2 and 3.

DW.3 stated in his evidence, he attested Exs.B6 and B7

documents. The evidence of DWs.1 to 3 is consistent that as 1 st

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defendant was asked to execute the gift deed in favour of the 2nd

defendant, DW.3 has given the house site situated at Gandhi

Chowk, which belongs to him and therein 1st defendant

constructed the house. The said evidence of DWs.1 to 3 has not

seriously disputed in cross examination. Nothing is elicited in the

cross examination to discredit the evidence. The plaintiff has not

chosen to examine any of other family members to disprove the

said version given by DWs.1 to 3. This court finds no reason for

DW.3 to give evidence against the interest of plaintiff. Otherwise,

there is no compelling reason for the first defendant also to

execute deed against the wishes of her mother.

28. In support of the evidence of DW.1, the 2nd defendant and also

DW.3/father of the defendants 1 and 2 are examined. The 2 nd

defendant examined as DW.2, she deposed that her father

purchased the schedule property in the name of her mother. In

the year 1993 her father called upon all the family members and

expressed his intention to partition all the properties and

obtained their opinion. In the said partition the suit schedule site

was given to her and his father asked 1st defendant to convey the

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same in her favour and accordingly Ex.B6 document was

executed in their joint family house at Gandhi chowk.

29. The evidence of DW.3 - Syed Abdul Azeem, that he attested Ex.B7

document is not disputed. His evidence shows that in pursuance

of Ex.B7, the possession was delivered on 27.08.1984 to the 1 st

defendant, in the morning itself in the presence of family

members including his wife. The document was executed on the

same day at their house at about 09.00AM. When the process of

drafting document was in progress, his son left for his duty in the

midst and later the document was registered. He was also present

at the time of registration.

30. At this stage, it must be referred to that it is the plaintiff's case

only to facilitate the 1st defendant to get a loan from the bank, she

executed Ex.B7 gift deed. This court views that to obtain a loan

one need not transfer the property. The plaintiff herself can

secure the loan amount and give it to the first defendant. The

reason offered by the plaintiff for execution of the gift deed in

favour of her son is not convincing. No doubt it is clearly

mentioned in Ex.B7 the property was delivered to the first

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defendant at the time of execution of the document. The recitals

of the document also supports the first defendant's case. By the

time of execution of Ex.B7- Gift deed he was doing job at Ponnur

and he did not attend at the time of registration and on that day

property was not handed over to him, later the property was

handed over to him and he did not make application for mutation

of property in his name. However, the evidence of DW.1 in cross

examination shows that, he had not taken delivery of the property

on that day. However DWs.2 and 3 stated in their evidence that

the property was delivered to the first defendant on execution of

gift deed. Though the said evidence of DW.1 goes to show that the

property was not delivered as recited in the document, but the

first defendant has placed documentary evidence before the court

to show that he obtained the loan from the bank by mortgaging

the schedule property and discharged the same. The reading of

the evidence of DW.1 in cross examination shows that she has

not at all disputed the said case of the first defendant. The

evidence adduced on behalf of both parties shows that the

plaintiff's another son used to reside at Chandigarh for some time

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and plaintiff used to visit him. It is her evidence that while she

was going to Chandigarh she handed over the necessary funds to

1st defendant to construct house in schedule property. The said

evidence of PW.1 is not supported by the evidence of her husband

(DW.3). The evidence of PW.1 and DW.3 shows that there were no

serious dispute between them, however they are living separately

from the year 1993 onwards. Though the second defendant

contends that all the properties which stand in the name of

plaintiff were purchased by DW.3 in support of the said case, no

evidence is let in. DW.3 also stated in his evidence he purchased

the properties in the name of his wife because of his employment.

As seen from the written statement the first defendant has not

taken such plea. However first defendant has not disputed the

right of the plaintiff over the schedule property covered under

Ex.B7. Basing on the evidence of DW.1 it is the prime contention

of plaintiff that the schedule property was delivered to the first

defendant at the time of execution of the gift deed and therefore,

the gift deed was void. The evidence of DW.3 goes to show that he

partitioned the properties in the year 1993. It is clear from the

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record that after execution of Ex.B6 gift deed in favour of second

defendant by first defendant, the plaintiff has executed gift

revocation deed and she also stated clearly in her evidence. It is

clear from the evidence of PW.1 that she executed revocation deed

as she did not like the execution of gift deed in favour of second

defendant by first defendant. It seems that there are differences

between plaintiff and second defendant which prompted the

plaintiff to execute revocation deed.

31. It is the evidence of DWs.1 to 3 that in the circumstances stated

deposed by them Ex.B6 document was executed in favour of the

second defendant at the joint family house at Gandhi Chowk.

DW.2 stated in her evidence, her father and her third brother

attested the document and handed over the possession of

schedule property to her along with Ex.B7 document. Her

constructing the building in the schedule site is known to all her

family members. The evidence of DW.2 shows that she obtained

electricity connection vide Ex.B12 and paid the electricity

charges; to show the payment of municipal taxes she relied on

Exs.B13 and B14 tax receipts. The evidence of DW.2 that she

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constructed the house after selling away the house site belongs to

her house site at Mangaligiri is not disputed. The evidence of

DW.3 also shows that he and his another son attested the Ex.B6

gift deed. DWs.1 to 3 stated in their evidence that all the family

members including the plaintiff were present at the time of

housewarming ceremony and Exs.B8 to B11 photographs were

taken at that time, the said evidence of DWs.1 to 3 is not

disputed. The normal course of events that can be visualized

basing on the evidence that the plaintiff attended the

housewarming ceremony knowing fully well that the 2nd

defendant constructed house in the schedule property. The 2 nd

defendant spent an amount of Rs.80,000/- for construction of

building besides giving amount by his youngest daughter. The

other contention of the plaintiff is that the 2nd defendant has no

source of income to construct the building. The evidence of DWs.1

to 3 is clear enough as to how she secured the amount. The

unchallenged evidence of DWs.1 to 3 goes to show that the

second defendant has got house property, she and her husband

are in the employment; the evidence of DWs.1 to 3 also goes to

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show that younger daughter of plaintiff who was allotted house

property has given Rs.60,000/- for construction of house by the

second defendant in pursuance of family arrangements. It is

pertinent to note that though the plaintiff is blessed with five sons

and two daughters, she did not examine any one of her children

to support her case. Admittedly, she is residing with her elder

son. He also has not come forward to support her mother. The

plaintiff has not examined her second daughter to disprove the

case of second defendant with regard to giving of Rs.60,000/- to

her. If really plaintiff given the amount to 1st defendant to

construct house, her version is expected to be supported by

atleast some of the family members. Her evidence is not

supported by any independent evidence. In the said facts of the

case the Trial Court is not supposed to have accepted the

evidence of PW.1 in this regard. The material on record shows

that she attended to the all the ceremonies held by the 2nd

defendant in respect of the plaint schedule property, but she has

given inconsistent pleas. On one hand she contends that the first

defendant trespassed into the property and on the other hand the

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plaintiff contended that the second defendant entered into the

possession of the property with permission. She executed

revocation deed though the plaintiff claims that the 2nd defendant

entered to the possession of the schedule property as trespasser.

The evidence of DWs.1 to 3 coupled with the photographs relied

on by the 2nd defendant shows that he has not taken the

possession of the schedule property as a trespasser.

32. The material on record goes to show that the second defendant

constructed the house in the schedule property. She is paying

electricity and house taxes.

33. The learned counsel for the appellant submits that Ex.B7 is a

registered gift deed and hence in terms of proviso 4 of Section 92

of the Evidence Act, it is not permissible for the defendant to lead

oral evidence contradicting, varying, adding or subtracting to form

the terms of the document and the oral evidence was not

permissible and The trial court has committed error in taking into

consideration of oral evidence. Section 91 of the Evidence Act

prohibits any oral plea, contrary to the recitals in a written

document.

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34. The whole thrust of arguments of the learned counsel for

respondent/plaintiff is that Ex.B7 gift deed was never intended to

be acted upon.

35. In this regard, it would be profitable to refer a case of Gangabai Vs. Chhabubai6, wherein the Hon'ble Apex Court held that ;

Section 91 of the Indian Evidence Act deals with the terms of contracts or of grants or of any other disposition of the property, which are in fact reduced to the form of a document, though not required by law to be so reduced, and those which are required by law to be reduced in the form of documents. It mandates that no evidence shall be given in proof of the terms of any contract, grant or other disposition of property or of such matter, except the document itself, or the secondary evidence of its contents, as is admissible under the provisions of the said Act. Section 91 is thus based on the best evidence principle and it excludes extrinsic evidence of the terms.

36. Section 92 of the Indian Evidence Act mandates that no evidence

of any oral agreement or statement shall be admitted, as between

the parties to any such instrument or their representatives in

interest, for the purpose of contradicting, varying, adding to or

subtracting from, its terms. Thus, the parties to any such

instruments or their representatives in interest are prevented

6 AIR 1982 SC 20

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from leading parol evidence of any oral agreement or statement

for the purpose of contradicting, varying, adding to or subtracting

from, the terms of contract which are required by law to be

reduced to a form of a document. There are, however, certain

exceptions contained in proviso (1) to (6) to the aforesaid principle

under Section 92 of the said Act. The present case is concerned,

only with provisos (1) and (4) therein and hence the same are

considered.

37. In terms of proviso (1) Section 92 of the said Act, any fact may be

proved which would invalidate any document, or which would

entitle any person to any decree or order relating thereto; such a

fraud, intimidation, illegality, want of due execution, want of

capacity in any contracting party, want or failure of consideration,

or mistake in fact or law. Thus a plea to invalidate any document

proved in accordance with Section 91 is available, where a case is

made out of fraud, intimidation, illegality, want of due execution,

want of capacity in any contracting party, want or failure of

consideration, or mistake in fact or law.

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38. Proviso (4) to Section 92 of the said Act provides that where a

contract or disposition not required by law to be reduced in writing

has been arrived at orally, then existence of any distinct

subsequent oral agreement, modifying or rescinding the said

contract or disposition can be substantiated by parol evidence and

such evidence is admissible. There is however, proviso to this

proviso, contained in the second part of proviso (4) itself, which

does not permit leading of parol evidence for proving a subsequent

oral agreement modifying or rescinding the registered instrument.

It means that if initial document is registered, the modification or

substitution of its terms can only be by another registered

document.

39. As seen from the Paragraph No.34 of the Judgment of Trial Court,

the same contention is raised by relying on the decision in

M.Saireddy Vs. Balaiah @ Baburao and others 7. The trial court

has not upheld the contentions of the counsel for the appellant

that by observing that in this case on hand, the plaintiff

specifically pleaded and proved that possession was not delivered.

1997(6) ALT 321

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Thus the embargo placed by Section 92 cannot be made applicable

to the facts of the case on hand.

40. It is palpably evident that the plaintiff has not disputed the

execution of the Ex.B7 gift deed. It is not the case of the plaintiff

that the document is to be invalidated because of fraud,

intimidation, illegality, want of due execution, want of capacity in

any contracting party, want or failure of consideration, or mistake

in fact or law. It is the case of the plaintiff that she was aware that

a recital mentioned regarding the delivery of property and the gift

deed is executed to facilitate the 1st defendant to obtain a loan. The

said reason stated by the plaintiff is not acceptable for the reasons

stated supra. As such, it cannot be considered as a case of mistake

of fact. Even otherwise, if the evidence of DW.1 that the property

was not delivered on the date of execution of the gift deed is

considered, it cannot be interpreted in such a way that he deposed

that the property was not at all delivered subsequently also. In the

said facts of the case, the trial court should not have given

importance to the evidence of DW.1 as pointed out above.

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41. There can be no controversy that the plaintiff executed revocation

deed of gift, ten years after its execution. From the version given in

cross examination of PW.1, it is clear that as the 1st defendant

executed gift deed in favour of 2nd defendant, the 1st defendant

revoked the Gift. The evidence on record shows that even by the

time of revocation of the deed, the donee under Ex.B7 executed gift

deed vide Ex.B6 in favour of 2nd defendant in respect of the

schedule property and she constructed a house therein. But that it

is not the end of the matter, having knowledge about the

construction of house by 2nd defendant in the schedule property

the plaintiff participated in the ceremonies relating to the house,

the plaintiff revoked the gift executed in favour of 1st defendant. By

the time of revocation of Ex.B7 gift deed vide Ex.A2 third party

interest is created and third party took possession of the property.

The execution of Ex.A2 deed certainly effects the rights of the third

parties.

42. The question as to whether a document which is validly executed

can be cancelled at a subsequent point of time considered in a

decision in case of Fazal Ullah Khan Vs. The State of A.P and

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Ors.,8 this Court held by referring to a decision of full bench of this

that in Yanala Maheswari Vs. Ananthula Sayamma 9, the Full

Bench took the view that the remedy for an aggrieved party is only

to file a suit and the Registering Authority cannot be said to have

committed any illegality by registering a deed of cancellation

without participation of both the parties. That view, however, was

found fault with the Hon'ble Supreme Court in Civil Appeal No.317

of 2007, their Lordships took the view that once the title in respect

of the property is transferred through a transaction, the same

cannot be cancelled without the participation of both the parties.

Reference was made to Rule 26 (i) (k) (i) of the Rules framed by the

Government.

43. In the context of the law laid down, which has been extracted

above, this court views that the plaintiff is not supposed to cancel

the gift deed unilaterally. A perusal of the rule 26(1)(k)(i) shows

that it covers not only the sale deeds, but also to the deeds of the

gift also. On such unilateral cancellation of the gift deed, the

8 Manu/AP/0195/2012 9 MANU/AP/0686/2006 : 2006 (6) ALT 523 (F.B)

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plaintiff is not entitled to seek possession of the schedule

property. I would like to consider the facts of the case by

assuming that schedule property was not delivered to first

defendant on the day of Ex.B7 by adverting to some decisions

which clinch the issue.

44. In a case Sk.Golam Gous Vs. Sk. Raujan 10, the High Court of Calcutta held that:

"Under the Muhammadan law, where a property the subject matter of a gift is in actual possession of the donor and the done, who are related and the donor declares in unequivocal language that he has divested himself of ownership and authorises the done to take possession, the character of the donee's possession which already existed is altered and for all formal purposes the gift must be considered to have been perfected by such delivery of possession as is feasible in the circumstances".

In a case Shaik Ibhram Vs. Shaik Suleman11, the High Court of Bombay held that:

For the purposes of completing a gift of immovable property by delivery and possession, no formal entry or actual physical departure is necessary: it is sufficient if the donor and done are present on the premises, and an intention on the part of the

10 (1946) 50 Cal WN 81 11 (1885) ILR 9 Bom 146

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donor to transfer has been unequivocally manifested".

45. The case of Muhammad Abdul Ghani V. Fakhr Jahan Begam12

was decided by the Privy Council on the footing that the mere fact

that the donor continued to remain in possession of part of the gifted

property did not necessarily mean that the gift in respect of that

part, or any other part, was invalid. Reliance was placed on the

principle that where everything reasonable had been done to perfect

a contemplated gift, nothing more is required.

46. The decision of their Lordships of the Privy Council in Nawab Mira

Mohammad Sadiq Ali Khan Vs. Nawab Fakr Jahan Begum 13. In

that case also the deed contained the recital "I deliver possession of

the gifted property to my said wife" and the deed of gift was handed

over to the wife. It was held that the declaration in the deed of gift

must be regarded as binding on the heirs of the donor and that

actual vacation by the husband and an actual taking of separate

possession by the wife was not necessary. It was also held that the

12 I.L.R 44 Alld. 301 13 AIR 1932 PC 13

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declaration made by the husband, followed by the handing over of

the deed, was amply sufficient to establish a transfer of possession.

47. Keeping in mind the above principles, have evolved over a period of

time and emanates from the decisions cited supra that the delivery

of possession can be taken effect at a subsequent period by the

desire of the donor. When once the first defendant is able to

establish that his possession over the schedule property in

pursuance of Ex.B7 gift deed, the non taking of delivery of

possession of property on the day of execution of Ex.B7 gift deed

does not defeat the rights of the first defendant in any way. It is

not the case of the plaintiff that the documents relating to the

schedule property are not handed over to the first defendant it is

an established fact by mortgaging the schedule property, the first

defendant secured the loan and its original is also marked on his

behalf.

48. It is pertinent to note that, the execution of the gift deed by the

plaintiff in favour of 1st defendant is not challenged on the ground

that it was hit by fraud or undue influence or misrepresentation. It

is not her case that the execution of the gift deed was not a free

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and voluntary act. There is a clear recital in the gift deed that

there was a declaration of gift by the donor and the execution of

the gift deed and acceptance of gift by the 1st defendant and also

delivery of possession of property and PW.1 admitted in her

evidence, the said recitals of Ex.B7 gift deed. There is a clear

recital in the gift deed to the effect that the donor had divested all

her interest in the site and transferred the same to the appellants.

49. The sum and substance of the gift deed and the facts and

circumstances clearly show that there was definite intention on the

part of the donor to transfer the property in favour of the done i.e.,

1st defendant.

50. It is worth mentioning that Ex.B7, the gift deed did not reserve any

right for the donor. After the execution of the gift deed the plaintiff

had no locus standi to file a suit for possession of the property, as

possession was already delivered to first defendant and later it was

delivered to second defendant by virtue of Ex.B6 document. Ex.B7

gift deed had no condition, wherein it could be cancelled by the

donor. The plaintiff divested herself any right of title in the suit

property which was passed to the donee. Once the registered gift

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deed had been executed without reserving any right in the suit

property, it could not be revoked. There is one further

circumstance which is a bar against the plaintiff succeeding in the

suit. From the narration of the facts stated supra, it could be seen

that the plaintiff revoked Ex.B7 gift deed dt.27.08.1984

unilaterally by executing Ex.A2 revocation deed dt.28.09.1994. It

transpires from the record that Ex.B7 gift deed was cancelled by

the plaintiff ten years after its execution. Under Article 59 of the

Indian Limitation Act the prescribed period of limitation is three

years from the date of execution of first become knowledge to the

plaintiff. It is not in dispute that Ex.B7 gift deed dt.27.08.1984 is

very well in the knowledge of the plaintiff right from the day of its

execution and therefore, the suit for cancellation of the document

if any she intends to file a suit it is supposed to be filed within

three years from this date. The suit has been filed in the year

1995. What needs to be stated here is that as on the date of filing

of the suit or as on the date of Ex.A2 revocation deed, the plaintiff

could not have filed the suit for the relief seeking cancellation of

document. In such is a case it is highly difficult to accept the

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contention of the plaintiff that she can revoke the gift deed

unilaterally ten years after its execution without filing the suit for

cancellation of the document. Under such circumstances, the

cancellation of gift deed made by plaintiff vide Ex.A2 document is

not valid in the eye of law. As on the date of execution of the

document, she had no right over the property and she had already

lost her rights in the suit schedule property. The upshot of the

aforementioned discussion is that the Ex.B7 - Gift Deed executed in

favour of the first defendant is valid and schedule property was delivered

in pursuance of the gift deed to the first defendant and Ex.A2 revocation

of the gift deed by the plaintiff vide Ex.A2 is not valid and the plaintiff is

not entitled to the relief claimed.

51. The conclusion which can be reached is that the trial court is not

justified in upholding that the case of the plaintiff that the plaint

schedule property was not delivered to the plaintiff in pursuance of

Ex.B7 gift deed. The Trial court was, therefore, apparently wrong

in coming to the conclusion that Ex.B7 gift deed was ineffectual

merely because the donor had collected the rent from the tenants

having regard to the relationship of the parties and the tenants

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were allowed to use the toilets and so it cannot be said that there

was no transfer of possession. Applying the principles laid down

the cases referred to above I am of opinion that there was sufficient

evidence to show the delivery of possession by the donor to the

donee in this case, to validate the gift according to Mohammedan

Law.

52. For the reasons stated above and having regard to the facts of the

case, this court is of view that plaintiff has failed to establish her

case. The findings and conclusion recorded by the trial court are

not based on proper appreciation of evidence on record. The

Judgment of the trial court is erroneous and cannot be sustained

and is liable to be set aside and the appeal deserves to be allowed

with costs.

53. In the result,

(a) The Appeal is allowed, with costs.

(b) The Judgment and Decree passed by the Trial Court in

OS.No.95 of 1995, dt.22.06.2000 are set aside.

(c) The suit is dismissed with costs.

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(d) Miscellaneous petitions, if any, pending in this appeal shall

stand closed.

___________________________ T.MALLIKARJUNA RAO, J Dt.16.02.2023.

BV/KGM