Kerala High Court
Abdul Latheef vs Abdul Salam on 22 May, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
R.S.A. No.361 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
RSA NO. 361 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 04.02.2023 IN AS NO.35
OF 2019 OF SUB COURT,KATTAPPANA
ARISING OUT OF JUDGMENT AND DECREE DATED 22.08.2019 IN
OS.40/2018 OF MUNSIFF COURT, IDUKKI
APPELLANT/APPELLANT/PLAINTIFF:
ABDUL LATHEEF
S/O. ISMAIL, AGED 50 YEARS, ELAVUMTHADATHIL HOUSE,
RAJAMUDY P.O., PATHINARAMKANDOM,
VATHIKUDY VILLAGE, IDUKKI TALUK,
IDUKKI DISTRICT, PIN - 685604
BY ADVS.SRI GEORGE MATHEW
SMT.ELSA DENNY PINDIS
SRI M.D.SASIKUMARAN
SRI SUNIL KUMAR A.G
SRI MATHEW K.T.
SRI GEORGE K.V.
SRI STEPHY K REGI
SRI ADARSH KURIAN
MS.MEDHA B.S.
RESPONDENTS/RESPONDENTS & ADDL.RESPONDENT/DEFENDANTS:
1 ABDUL SALAM
S/O. ISMAIL, AGED 64 YEARS, ELAVUMTHADATHIL HOUSE,
KARIKODU P.O., UNDAPLAVU KARA, KARIKODU VILLAGE,
THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685584
2 ABDUL KARIM
S/O. ISMAIL, AGED 68 YEARS, ELAVUMTHADATHIL HOUSE,
KARIKODU P.O. UNDAPLAVU KARA, KARIKODU VILLAGE,
THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685584
R.S.A. No.361 of 2023
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3 NAZER
S/O. MYTHENE, AGED ABOUT 53 YEARS, KOCHUKUDIYIL
HOUSE, MURICKASSERY KARA, VATHIKUDY VILLAGE, IDUKKI
TALUK, IDUKKI DISTRICT, PIN - 685604
SRI K.R.PRATHISH (FOR CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 18.12.2023, THE COURT ON 22.5.2024 DELIVERED THE FOLLOWING:
R.S.A. No.361 of 2023
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T.R. RAVI, J.
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R.S.A. No.361 of 2023
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Dated this the 22nd day of May, 2024
JUDGMENT
The plaintiff has preferred this second appeal challenging
the concurrent findings of the trial court and the first
appellate court. The substantial questions of law which have
been formulated in the Memorandum of Second Appeal are as
follows:
1) Are the Courts below justified in dismissing the suit
and appraised when it is specifically pleaded and proved that
possession of the property as not been handed over to 1 st
defendant pursuant to Ext.A1?
2) Are the Courts below justification in dismissing the
suit and appraised when it has been specifically pleaded and
proved that necessary ingredients to constitute a gift is absent
in Ext.A1?
3) Are the courts below justified dismissing the suit
ignoring the admission made by late Sri.Ismail and 1 st
defendant with regard to Ext.A1?
2. It can be seen that the only contention of the
appellant is that possession has not changed hands and hence
Ext.A1 gift deed has not taken effect and is not valid, since it
does not comply with the requirements of a valid
Muhammadan gift.
3. I have heard the counsel for the appellant in detail
and considered the judgments of the trial court and the first
appellate court.
4. The plaintiff and defendants are brothers. Their
father died on 02/12/2016. Three years prior to the death, the
father had executed a registered gift deed document
No.2906/2013 dated 07/11/2013, registered with the Sub
Registrar's Office, Rajakumari. It is the above said document,
that is contended to be null and void, and not binding upon
the paint schedule property. The trial court and the first
appellate court have specifically found that the appellant's
father had settled his properties before his death, to his wife
and children. The plaint schedule property is one of the
properties that were settled in the name of the 1 st defendant.
On the very same day on which Ext.A1 was executed, the
appellant's father had settled another 15 cents of land by
document No.2905/2013 of SRO, Rajakumari. The appellant
does not dispute the said document as one which has been
executed by the father without really intending to be a
settlement of his properties. The courts found that the
appellant's father had the necessary capacity to execute a
document. There is no allegation that any fraud was
committed in the Registrar's office. It is also evident from
Ext.A1 that the document was produced before the Registrar
by the appellant's father himself. As such, the validity of the
execution of the document cannot be further challenged in
this appeal. Then the only question is about the requirement
of delivery of possession by the donor to the donee which is an
essential element of a Mohammedan gift.
5. As per the renowned author Mulla on the principles
of Mahomedan Law, a gift is a transfer of property, made
immediately, and without any exchange, by one person to
another, and accepted by or on behalf of the latter. It is
further stated by the author that in every gift there should be
a bonafide intention on the part of the donor to transfer the
property from the donor to the donee. For the validity of the
gift, the donor must divest himself completely of all ownership
and dominion over the subject of the gift (Musammat Bibi v.
Sheik Wahid (A.I.R (1928) Pat.183). In Clause 149 of his
book the author says that the three essentials of a gift 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.
6. In paragraph 150, the author says that it is essential
to the validity of a gift that there should be a delivery of
possession of the subject. The author says that as observed by
the Judicial Committee, the taking of possession of the subject
matter of the gift by the donee, either actually or
constructively, is necessary to complete the gift. The author
also says that registration of a deed of gift does not cure the
want of delivery of possession. In paragraph 154 the author
says that a declaration in a deed of gift that possession has
been given binds the heirs of a donor. Reference has been
made to the decision in Muhammad Mumtaz v. Zubaida
Jan (1889) 16 I.A. 205 and other cases. In Ismail v. Idrish
(A.I.R.1974 Pat.54) it has been held that a recital in a deed
of gift that the donor has divested himself and put the donees
in possession binds the donor's heirs even if one of the heirs is
later found in possession. It was held that such a gift is valid.
In Abdul Sattar Ostagar v. Abu Bakkar Ostagar (A.I.R.
1977 Cal.132) a Division Bench of the Calcutta High Court
held that when a father makes a gift of the dwelling house to
his sons, and both the father and the donees are residing in
the house, there is no need for delivery of possession. Bearing
in mind the above legal propositions, I shall examine the case
on hand.
7. In the case on hand the courts have specifically
found that the mother of the appellant who had given
evidence as DW2 and the sister of the appellant who had
given evidence as DW5 admit about the gift in favour of the 1st
defendant. It can thus be seen that when constructive
possession alone is required and there has been a properly
executed and registered document whereby the property has
been gifted to the 1st defendant, the gift cannot be nullified at
the instance of another heir of the donor on a contention that
possession has not been handed over to the 1 st defendant.
When the gift deed specifically states about handing over
possession, no further proof of delivery of possession is
required, as far as another legal heir is concerned. The trial
court and the First Appellate Court have considered the issue
from the correct legal perspective and the decisions do not
warrant any interference
No grounds are made out. No substantial questions of
law arise. The second appeal fails and is dismissed.
Sd/-
T.R. RAVI
JUDGE
mpm
