Kerala High Court
Naseer T.K vs Mariayamma on 3 September, 2024
Author: Sathish Ninan
Bench: Sathish Ninan
2024:KER:66529
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
RFA NO. 75 OF 2015
AGAINST THE JUDGMENT DATED 19.11.2014 IN OS NO.72 OF 2012 OF
SUB COURT, KASARAGOD
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APPELLANT/PLAINTIFF:
NASEER T.K.,
AGED 34 YEARS,
S/O.LATE T.K.ABDULLA, AUTORICKSHAW DRIVER RESIDING AT
RAFEEQUE COMPOUND, ANANGOOR, KASARAGOD VILLAGE AND
POST, KASARAGOD TALUK, KASARAGOD DISTRICT.
BY ADVS.
SRI.K.P.HARISH
RESHMA E. (K/685/2022)
ANJITHA SANTHOSH(D/8428/2023)
RESPONDENTS/DEFENDANTS:
*1 MARIAYAMMA, [DIED; LRs recorded]
AGED 61 YEARS,
W/O.LATE T.K.ABDULLA, RESIDING AT RAHATH VILLA, NEAR
CHANDAGIRI SCHOOL, MELPARAMBA, KALNADU VILLAGE,
KASARAGOD TALUK - 671 121.
*[IT IS RECORDED THAT THE 1ST RESPONDENT IS NO MORE AND HER LEGAL
HEIRS ARE ALREADY IN THE PARTY ARRAY AS THE APPELLANT AND THE 2ND
RESPONDENT AS PER ORDER DATED 08.12.2021 IN MEMO DATED 04.12.2021]
2 BEEBI,AGED 40 YEARS,
D/O.LATE T.K.ABDULLA, RESIDING AT RAHATH VILLA,
NEAR CHANDAGIRI SCHOOL, MELPARAMBA, KALNADU VILLAGE,
KASARAGOD TALUK, PIN - 671 121.
2024:KER:66529
RFA NO. 75 OF 2015 -2-
3 AXIS BANK,
KASARAGOD BRANCH, BANK ROAD, KASARAGOD DISTRICT,
REPRESENTED BY ITS MANAGER, PIN - 671 121.
BY ADVS.
SRI.D.KRISHNA PRASAD - R1 & R2
SMT.MINI V.MENON - R1 & R2
SRI.P.VISHNU PRASAD - R1 & R2
V.R.KESAVA KAIMAL - R2
MADHURADHAKRISHNAN - R3
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
03.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
JOHNSON JOHN, JJ.
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R.F.A. No.75 of 2015
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Dated this the 3rd day of September, 2024
J U D G M E N T
Sathish Ninan, J.
Challenging the dismissal of a suit for partition,
the plaintiff is in appeal.
2. The first defendant is the wife of late Abdulla.
The plaintiff and the second defendant are their
children. The properties sought to be partitioned
consists of immovable properties as described in
schedules 'B' and 'C', and the movable properties as
described in schedule 'D', to the plaint. The third
defendant is the Bank wherein it is claimed that late
Abdulla had deposits with. Abdulla died on 24.07.2011.
The plaintiff seeks for partition and separate
possession of his share.
3. The claim for partition was challenged by
defendants 1 and 2 relying on Exts.B1 and B2 Gift Deeds
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executed by Abdulla in favour of the second defendant-
daughter. The very existence of the plaint 'D' schedule
was denied.
4. The trial court upheld Exts.B1 and B2 Gift Deeds
and denied the claim for partition over the plaint 'B'
and 'C' schedule properties. As regards the claim over
the plaint 'D' schedule it was held that the plaintiff
has failed to prove the existence of the same.
Accordingly the suit was dismissed.
5. We have heard the learned counsel Sri.K.P.Harish
on behalf of the appellant and Sri.V.R.Kesava Kaimal on
behalf of the contesting respondents.
6. The points that arises for determination are :-
(i) Is the finding of the trial court on the validity of
Exts.B1 and B2 Gifts Deeds, supported by the evidence on
record ?
(ii) Has the second defendant succeeded in proving the
essentials of a valid gift under the Mohammedan Law ?
7. The learned counsel for the appellant at the
outset submitted that, the claim in so far as it relates
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to plaint 'D' schedule is not being pursued.
8. The claim of the plaintiff for partition of the
plaint 'B' and 'C' schedule properties are sought to be
defeated by defendants 1 and 2 on the strength of
Exts.B1 and B2 Gift Deeds dated 29.03.1997 and
28.09.2010 executed by late Abdulla in favour of the
second defendant. The essentials of a valid Mohammedan
Gift are - (i) declaration, (ii) acceptance, and (iii)
delivery of possession. In Maqbool Alam Khan v. Mst Khodaija and
Ors. (1966 AIR SC 1194) the Apex Court held, "The three pillars of a
valid gift under the Mahomedan law are declaration, acceptance and delivery of
possession". A Mohammedan gift is complete only if the
three essentials as above are proved.
9. In the proof affidavit of the plaintiff he has
denied Exts.B1 and B2 Gift Deeds. The contention of the
defendants that the second defendant was put in
possession of the properties and that she had accepted
the gifts were denied.
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10. In spite of the contentions as above, the
second defendant who is the donee under Exts.B1 and B2
is not examined. The donee would be the best person to
speak about acceptance of the gift and delivery of
possession. Her abstention from the witness box is
significant.
11. Though the first defendant-mother when examined
as DW1 has deposed that pursuant to the gift deeds the
properties were mutated in the name of the donee, no tax
receipt is produced to prove the same. Such tax receipt
would have been the best piece of evidence to prove the
acceptance of the gifts.
12. DW1 would claim that, though the second
defendant did not take physical possession of the
property, she had leased out the building to a third
party, and rent is being collected therefrom. However,
no scrap of paper evidencing the grant of lease or
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receipt of rent by the second defendant is produced.
13. On the contrary, Ext.A8, copy of the building
tax assessment register for the period from 1997-98 to
2011-12 would show that the building continued to be
assessed in the name of Abdulla even after the gift
deed. There is no explanation offered for the same.
14. In Ebrahim Alibhai Akujl v. Bai Asi AIR 1934 Bom.21, it was
held, "In all cases in which the question is raised whether a gift governed by
Mahomedan law has been completed, the most satisfactory method of dealing with
the question is to direct attention to the conduct of the donor and the donee after
the time when the gift is said to have been completed."
15. The trial court failed to take note of the
above circumstances. There is total lack of evidence on
the part of defendants 1 and 2 to find that the
ingredients of a valid gift under the Mohammedan Law has
been satisfied. The trial court has relied solely on the
recitals in Exts.B1 and B2, that possession of property
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has been handed over to the donee. Of course, the said
recital has significance, but by itself is not
determinative.
16. The learned counsel for the respondent would
submit that, so long as Exts.B1 and B2 gifts remain
unchallenged by incorporating appropriate reliefs,
questions regarding validity of the gifts does not
arise. It is to be noticed that, the defendants are
seeking to deny the claim for partition by putting forth
the gift deeds. The plaintiff has in his chief affidavit
has denied the gifts. Unless the essentials of a
Mohammedan gift are proved they cannot defend the claim
for partition.
17. The learned counsel for the respondent-
plaintiff would contend that, by virtue of the bar
contained under Section 92 of the Indian Evidence Act,
on the face of the recitals in Exts.B1 and B2 that
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possession was handed over to donee, it is not open for
the defendants to contend that possession was not handed
over. We are afraid that the said contention has no
force. As is evident from the Section itself, the bar
applies only, between the parties to the instrument or
their representatives. The plaintiff being not a party
to the documents the bar is not attracted. That apart,
the statement in Exts.B1 and B2 with regard to handing
over of the possession is a mere recital of fact. There
is distinction between the 'terms of a contract' and
'recital of fact'[Thomman v. Taluk Land Board (1976 KLT 840),
Kunhammed Kutty v. Avokker (1984 KLT 716)]. The defendants are
entitled to prove that the recital of fact is not
correct. So also, the defendants are not relying on the
document and attempting to vary its terms, in which
event only the bar under Section 92 is attracted.
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18. The evidence on record cannot lead to a finding
that there is a complete gift under the two deeds. The
finding of the trial court to the contrary is liable to
be set aside. The decree and judgment of the trial court
cannot be sustained.
19. We do notice that it is the claim of the
defendant that, pursuant to the gift deeds mutation was
effected and tax was being paid. The donee was not
examined. Though it is stated that there was a rent
arrangement in respect of the building situated in one
item of property no evidence in the said regard is
produced. Considering the totality of the circumstances
we are of the opinion that it would be proper that an
opportunity be granted to the respondents-defendants to
adduce evidence in support of Exts.B1 and B2 Gift Deeds.
Necessarily the plaintiff also could be permitted to
adduce further evidence. The suit is thus liable to be
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remanded back.
20. In the result, the decree and judgment of the
trial court are set aside. The suit is remanded back to
the trial court for fresh disposal after affording
adequate opportunity to both sides to adduce further
evidence.
Parties to appear before the trial court on
26.09.2024.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
JOHNSON JOHN
JUDGE
kns/-
//True Copy//
P.S. To Judge
