Madras High Court
H. Chand Basha vs Abdul Wahid on 11 August, 2021
S.A.No.850 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2021
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.850 of 2008
H. Chand Basha ...Appellant
Vs.
1. Abdul Wahid
2. The Tahsildar
Vaniyambadi
3. The Collector
Vellore District
Vellore ... Respondents
Prayer: Second Appeal filed under Section 100 of CPC, 1908 against the
decree and judgment dated 24.09.2007 on the file of the Sub-ordinate
Court, Thirupattur, in A.S. No.58/06, upholding the decree and judgment
dated 25.02.2005, on the file of the District Munsif-cum Judicial
Magistrate Court, Ambur, in O.S. No.206/04.
For Appellant : Mr. L. Prabakar
For R1 : No appearance
For R2 & R3 : Mr. Mr. M.R. Gokul Krishnan
Government Advocate.
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S.A.No.850 of 2008
JUDGMENT
The unsuccessful plaintiff before both the courts below, has
filed the present Second Appeal.
2. For the sake of convenience, the parties are referred to as per
their ranking before the trial court.
3. The brief facts of the case of the appellant/plaintiff are as
follows:
The suit property is the property of the appellant/plaintiff and
the first respondent/defendant and their father executed a gift settlement
deed (Hiba) dated 20.02.1986, through the original of Ex.A1 in favour of
the appellant and his sister Dowlath Bi. The possession of the suit
property was also handed over to them. However, the first defendant, in
order to grab the suit property, created a cancellation deed dated
26.11.1986 cancelling the gift deed dated 20.02.1986. According to the
appellant/plaintiff, the first respondent is attempting to get the mutation
of records in his name and that as per Mohammedan law, the first
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S.A.No.850 of 2008
defendant does not have any right over the suit property. He, therefore,
prayed for the following reliefs.
1) a decree of declaration that the plaintiff and
his sister Dowlath Bi are the absolute owners
of the suit property by means of the gift
settlement deed dated 20.02.1986.
2) for a mandatory injunction directing the
respondents 2 and 3 to include the names of
the plaintiff and his sister Dowlath Bi in the
revenue records and
3) for costs.
4. The suit was resisted by the first respondent/defendant on
the following grounds.
1) The appellant has filed the suit without
disclosing the actual facts.
2) The settlement deed dated 20.02.1986 was
cancelled on 26.11.1986 through a registered
Cancellation deed. The father of the plaintiff
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S.A.No.850 of 2008
and the first defendant earlier executed a
settlement deed in favour of his first wife
Bibijohn during the year 1981, who in turn
executed a settlement deed in favour of the
first defendant on 24.04.1997. By virtue of the
said settlement deed executed by Bibijohn in
favour of the first defendant, the first
defendant became entitled to the suit property
and patta was also issued in favour of the first
defendant. The plaintiff did not raise any
objection at the time of issuance of patta in
favour of the defendant.
3) Neither the plaintiff nor his sister was in the
possession of the suit property.
4) Since Dowlath Bi has not been impleaded as a
party to the suit, the suit is bad for non joinder
of necessary parties.
The first defendant, therefore, prayed for dismissal of the suit.
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S.A.No.850 of 2008
5. In the written statement filed by the second
respondent/second defendant and which was adopted by the third
respondent/third defendant, it is averred that they granted patta to the
first defendant after perusing the various documents provided by the first
respondent/appellant including the settlement deed dated 24.04.1997
executed in his favour and that the appellant/plaintiff did not raise any
objection at the time of issuance of patta, They had, therefore, prayed for
the dismissal of the suit.
6. The trial court, after framing necessary issues, dismissed the
suit vide its decree and judgment dated 25.02.2005. The first appellate
court also upheld the findings of the trial court vide its decree and
judgment dated 24.09.2007. Both the courts concluded that the
appellant/plaintiff did not adduce any acceptable evidence to show that
the possession of the suit property was handed over to the plaintiff after
the execution of the settlement deed (Ex.A1).
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S.A.No.850 of 2008
7. Now the present second appeal is filed on the following
substantial questions of law:
1) "Whether the judgments and decree of the
courts below are perverse on account of its
misconception of the documents in Ex.P1?
2) Whether the settlement deed executed by the
father of the appellant/plaintiff is liable to be
rejected when there is no reservation made in
the deed of settlement enabling the settlor to
cancel the said deed on a subsequent
occasion?
3) Whether the findings of the courts below with
respect to possession is erroneous, perverse
and based on no evidence?"
8. Mr. L. Prabakar, learned counsel for the appellant/plaintff
contended that when there is a specific recital in the settlement deed
(Ex.A1) as to the handing over of possession of the suit property, both
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S.A.No.850 of 2008
the courts below had wrongly recorded a finding that the possession of
the suit property is not with the plaintiff. He would further contend that
since the suit property is a vacant land, the appellant/plaintiff could not
adduce any documentary evidence to prove his possession over the suit
property.
9. Per contra, Mr. M.R. Gokul Krishnan, Government
Advocate (Civil side) contended that patta was issued in favour of the
first respondent/defendant by the official respondents after verifying the
documents adduced by the first respondent and hence, prayed for
dismissal of the appeal.
10. In Mulla's Principles of Mohammedan Law, 18th Edition in
chapter XI, while dealing with "Gift" under Section 149, the learned
Author had said this.
The three essentials of a gift:
It is essential to the validity of a gift that there
should be
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S.A.No.850 of 2008
1) a declaration of gift by the donor,
2) an acceptance of the gift, express or implied,
by or on behalf of the donor and,
3) delivery of possession of the subject of the gift
by the donor to the donee as mentioned in
Section 50.
If these conditions are complied with, the gift is complete.
(Hiba in Mohammedan law is a transfer of the corpus).
11. Learned counsel for the appellant submitted that there is
delivery of possession as per the recitals of the Hiba (Ex.A1) and
therefore, the gift is complete.
12. It is true that there is a presumption that when there is a
statement or declaration by the donor that the property has been
delivered, it binds the persons claiming under them. But that is only a
presumption, which could be rebutted by other evidence. Both the courts
below had concurrently held that no documentary evidence was adduced
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S.A.No.850 of 2008
on the side of the appellant/plaintiff to show that he and his sister
Dowlath Bi took delivery of possession of the property. Apart from this,
the settlor, subsequent to the execution of Ex.A1 settlement deed, had
cancelled the same within one year of the execution of the settlement
deed on 27.11.1986 by observing that though he (settlor) executed a gift
settlement deed in favour of his son and daughter, he is cancelling the
same as the purpose for which the gift was executed was not fulfilled and
that the possession was not also handed over to his son (plaintiff) and
daughter Dowlath Bi. It is contended that once the settlement deed is
executed, the same cannot be cancelled especially when the settlor has
not reserved his right of cancellation of the deed.
13. But in the instant case, the handing over possession of the
gifted property has to be proved by the plaintiff, since as per the
Mohammedan law, for a gift to be complete, handing over possession of
the property is a prerequisite. Section 150(2) of the Mohammedan Law
specifically states that a registration of a deed of gift does not cure the
want of delivery of possession. Therefore, the mandate of Section 150 of
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S.A.No.850 of 2008
the Mohammedan Law is very clear that in order to make a gift valid, the
factum of delivery of possession a sine qua non, which cannot be
dispensed with notwithstanding its Registration. Section 152 of the
Mohammedan Law stipulates that the donor has to physically depart
from the premises and the donee must have to formally enter into
possession. Section 167 of the Law speaks about the revocation of gifts
before the delivery of possession, mainly, thereby the gift would not be
completed without possession. It is pertinent to note that Section 167(4)
of the Mohammedan Law mandates that once possession is delivered, the
gift would become final and it cannot be revoked except by a decree of
Court. The question as to whether the possession has been given or not
is a question of fact, which both the courts below, after appreciating the
evidence adduced on both sides, had concurrently held that there is no
valid gift in favour of the appellant as the possession has not been
actually given to him and his sister Dowlath Bi. The plaintiff, in fact, did
not adduce any documentary evidence to show that he is in possession of
the suit property and on the other hand, the first defendant had adduced
(i) a copy of "A" Register (Ex.B2), in which his name appears as the
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S.A.No.850 of 2008
owner of the suit property and (ii) a patta (Ex.B3) issued in his favour.
The Village Administrative Officer (V.A.O) (Malayampattu Village)
(D.W.2) also deposed that the first defendant has been in possession of
the suit property. There is no good ground to reject the evidence of
D.W.2. Both the courts below, based on the evidence adduced on both
sides, had concurrently held that the possession of property gifted to the
plaintiff and his sister has not been handed over to them after the
execution of Ex.A1Settlement Deed. As already observed, one of the
three important ingredients of a valid gift is delivery of possession of
subject of the gift. The fact that the name of the first defendant appears
in the 'A' Register and a patta (Ex.B3) was also issued to him shows that
the gift is not complete as contemplated under Mohammedan Law. It is
also to be noted that even among Muslims, when a gift is reduced in
writing and registered, such an act of registration would not remove and
take away the applicability of the possession of Mohammedan Law by
which conditions have been imposed for a valid gift. In the
circumstances, the substantial questions of law 1 to 3 are answered
against the appellant.
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S.A.No.850 of 2008
In the result, the second appeal is dismissed and the findings of
both the courts below are upheld.
11.08.2021
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
To
1. The Sub-ordinate Court, Thirupattur
2. The District Munsif-cum Judicial Magistrate Court, Ambur.
3. Section Officer, VR Section, High Court, Madras
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S.A.No.850 of 2008
R. HEMALATHA, J.
bga
S.A.No.850 of 2008
11.08.2021
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