RSA No.859 of 2010 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.859 of 2010 Date of decision:23.2.2010 Mohd.Dilshad and others .....Appellants vs. Habiban ....Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.Amar Vivek, Advocate, for the appellant. -- Rakesh Kumar Garg,J.(Oral) This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for joint possession was decreed and judgment and decree dated 16.11.1996 in civil suit No.107 of 9.4.1996 was set aside and further appellants were restrained from alienating the suit land. Briefly the case of the plaintiff-respondent, as averred in the plaint, was that originally Jani alias Jan Mohd. son of Ghudu was owner in possession of half share in land measuring 35 kanals 10 marlas situated in the revenue estate of Malerkotla as per jamabandi for the year 1968-69 but he was in exclusive possession of land measuring 6 kanal 5 marlas (comprised in khasra No.1504/3/2-5 and 1507/4-0). It was further averred that marriage of plaintiff-respondent was settled with appellant-defendant No.4 on 6.8.1971 who is the son of Jani alias Jan Mohd .In consideration of marriage of appellant-defendant No.4 with the plaintiff-respondent Jani son of Ghudu (father-in-law of the plaintiff-respondent) made a gift of RSA No.859 of 2010 2 aforesaid land measuring 6 kanal 5 marlas in favour of plaintiff-respondent and on the same date registered gift deed was executed in her favour. The aforesaid gift deed was duly thumb marked by Jani (donor) after admitting the same to be correct, the plaintiff-respondent accepted the said gift and also thumb marked the same. Appellant No.4 also signed the same as a consenting party. The said gift deed was presented before the Sub Registrar, Malerkotla for its attestation and registration and it was registered as Deed No.1600 dated 6.8.1971. It was further averred that on 6.8.1971 plaintiff- respondent accepted the gift deed and took actual possession of the suit land as a denee from the donor. Thereafter, the marriage of plaintiff-respondent was solemnized with appellant-defendant No.4 as per Mohammedan rites. The plaintiff-respondent being an illiterate Muslim lady could not get the mutation of the suit land entered and sanctioned in her favour on the basis of the aforesaid gift deed and the name of Jani (father in law of the plaintiff-respondent) continued in the revenue record. Jani was cultivating the suit land under plaintiff-respondent as a licensee and was giving share of the produce. Jani died on 15.9.1997. After his death, appellant- defendants No. 1 to 3 started declaring themselves as the owners of the suit land. They with the help of appellant No.4 forcibly took possession of the suit land on the basis of a judgment and decree dated 16.11.1996 passed in civil suit No.107 of 9.4.1996 and mutation No.22383 sanctioned on the basis of the above said judgment and decree. It was further averred that the said judgment and decree and mutation sanctioned on the basis of the above said decree was illegal and void qua the rights of the plaintiff-respondent and was liable to be set aside. Since the appellants were issuing threats to alienate the suit land in order to defeat the rights of the plaintiff- RSA No.859 of 2010 3 respondent, the present suit was instituted. In response to the notice issued by the Court, the appellants appeared and filed separate set of written statements. In the written statement filed by appellants No. 1 to 3, ownership of the suit land by Jani was admitted. However, it was stated that he was not in exclusive possession of the suit land. The factum of marriage of plaintiff-respondent with appellant No.4 being the real son of Jani was also admitted. However, it was denied that Jani made a registered gift deed of the suit land in favour of the plaintiff-respondent on 6.8.1971. It was further submitted that appellant No.4 never signed the same as a consenting party. The alleged gift deed was fabricated and false document and it was never produced by the plaintiff-respondent since 6.8.1971 upto the filing of the suit, and was never acted upon in the revenue record. The respondent never took actual possession of the suit land as a donee from donor. She never came in actual possession of the suit land as a donee from Jani rather it was Jani who remained as owner in possession of the suit land till he gifted the same to appellants No. 1 to 3. Jani never gave any share of produce of the land to the plaintiff-respondent. It was further submitted by appellants No. 1 to 3 that Jani during his life time, gifted the suit land to them and also given the possession of the suit land. Later on he also suffered a consent decree on 16.11.1996 in favour of appellants No. 1 to 3 and on the basis of the same mutation No.22383 was rightly sanctioned in their favour. Thus, appellants No. 1 to 3 were the owners in possession of the suit land, and dismissal of the suit was prayed for. Appellant No.4 in his separate written statement denied all the averments made in the plaint. It was further pleaded that the plaintiff- RSA No.859 of 2010 4 respondent never came into possession of the suit land. The question of accepting gift by respondent-plaintiff did not arise at all as Jani never executed the same in favour of the plaintiff-respondent. The appellants No. 1 to 3 were the owners in possession of the suit land on the basis of oral gift made by Jani in their favour. It was further submitted that the judgment and decree dated 16.11.1996 was rightly passed by the Court. All other allegations were denied and dismissal of the suit was prayed. The trial Court after appreciating the evidence on record and considering the submissions of the learned counsel for the parties, decreed the suit vide its judgment dated 25.11.2003. Feeling aggrieved therefrom, the appellants have filed an appeal before the lower Appellate Court which was also dismissed judgment and decree dated 30.9.2009. However, while dismissing the appeal, the judgment and decree of the trial Court was modified to the extent that decree dated 16.11.1996 (Ex.P10) passed in civil suit No.107 of 9.4.1996 was set aside qua the rights of the plaintiff- respondent regarding suit land measuring 6 kanal 5 marlas. Still not satisfied, the appellants have preferred the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel appearing on behalf of the appellants has vehemently argued that the Courts below misdirected themselves by construing the transfer of the possession of the suit land in favour of the respondent merely on execution of the gift or on the basis of the recitals contained in the gift deed. The intention of the donor not to divest himself from the property was clear and categoric from the fact that he gave only the rights of enjoyment of the suit property in favour of the plaintiff- RSA No.859 of 2010 5 respondent. According to the learned counsel for the appellants, the gift made in favour of the plaintiff-respondent was not complete in the case in hand, as the possession of the land in question was not delivered to her. The fact that the subject matter of the gift deed remained in possession of the donor has been proved from ample evidence on record. Learned counsel for the appellants has referred to the document mark-A whereby the gift was restricted only to the enjoyment of the property by the donee during her life Thus, according to the learned counsel for the appellants, in the absence of possession having been delivered and the same remaining with the appellants till date, the gift in question was totally invalid, and was neither enforced, nor acted upon. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the following substantial question of law arises in this appeal:- Whether the registered gift deed Ex.P1 executed by Jani alias Jan Mohd was invalid because the third ingredient of a valid will under the Mohammedan law i.e. the delivery of possession was missing ? I have heard the learned counsel for the appellants and perused the impugned judgment and decrees of the Courts below. Section 129 of the transfer of Property Act dealing with the gifts provides that nothing in the Chapter relating to gifts shall be deemed to affect any rule of Mohammedan Lal. Thus, the validity of gift by a Muslim has to be tested as per the Personal Law applicable to the Muslims concerning gifts. According to Mulla in his Principles of Mohammedan Law, a RSA No.859 of 2010 6 `Hiba' or gift is transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. Transfer of ownership in the property is absolutely necessary ingredient of a valid gift. The essential ingredients of a gift under Mohammedan Law are as follows:- “(1) A declaration of gift by the donor;(2) an acceptance of gift, express or implied by or on behalf of the donee; (3) delivery of possession of the subject matter of the gift by the donor to the donee either physically or constructively.” The only question which arises for consideration in this appeal is- whether the third ingredient of a valid gift under the Mohammedan Law that is delivery of possession is satisfied in the present case or not. The aspect of delivery of possession of the subject matter of gift has been dealt with by Syed Ameer Ali in his Work Mohammedan Law as under:- “An acknowledgement of Hiba implies an acknowledgement that all the necessary formalities were complied with. If a man were to say, “I have made a gift of a certain property to Zaid”, such acknowledgement will be effectual also as to possession; in other words, he had delivered possession according to the law. In this view, where a gift is made in writing and the donor acknowledges at the time the deed is registered under the Indian Registration Act, that he had complied with all the requirements of the law, if would simply that possession had been duly parted with”. In the case of Jameela Beevi v. Sheik Ismail, AIR 1979 Madras, 193, it was held that it is well established that in order to constitute a valid gift under Mohammedan Law, three necessary elements which RSA No.859 of 2010 7 constitute such a gift are, a declaration of gift by the donor, acceptance of the gift by the donee, which acceptance may be express or may be inferred by necessary implication and lastly delivery of possession of the subject matter of the gift by the donor to the donee. But, in the course of time, certain exceptions have been engrafted in the matter of upholding of a gift notwithstanding immediate delivery of possession of the subject matter of the gift and one such exception is a case where the donor without reserving a dominion over the corpus of the property or any share therein stipulates over the corpus of the property or any share therein stipulates only for a right to enjoy the income from the property during his lifetime or makes a gift subject to a condition that the donee shall pay the whole of the income from the property or a part thereof to a person of his choice during the life time of such a person. In the case of K.Veerankutty v. P.Umma AIR 1956 Madras 514, it was held that where property is transferred by way of a gift and the donor does not reserve dominion over the corpus of the property, or any share of dominion over the corpus but stipulates simply for and obtains a right to the recurring income during his life, the gift and the stipulation are both valid and the reservation of usufruct does not by itself make the gift of the property in question void under the Mohammedan Law and that applies not only to Shias but also to Sunnis. In the case of Nawab Mirza Mohammad Sadiq Ali Khan v. Nawab F.Jahan Begam AIR 1932 PC 13, it was held that the declaration in the deed was binding on heirs of donor and that actual vacation by the husband and an actual taking of separate possession by the wife was not RSA No.859 of 2010 8 necessary. The declaration made by the husband, followed by the handing over of the deed, was amply sufficient to establish a transfer of possession. The principle that execution of a deed of gift in favour of wife amounts to manifestation of intention of husband divesting himself of his ownership of the property in favour of the donee and the delivery of deed to his wife or someone on her behalf makes the gift complete was approved by the Hon'ble Supreme Court in Nagraj v. State of Mysore AIR 1964 SC 275. The Hon'ble Supreme Court in Nagraj's case (supra) has after taking into consideration texts and earlier precedents has approved the practice that declaration of delivery of possession in the registered deed coupled with delivery of such deed to the donee in person who could accept the delivery of deed where donee is minor, on donee's behalf, the delivery is sufficient to constitute a valid gift in the eye of law. In the present case, there is no dispute with regard to the declaration of gift by donor through a registered deed and acceptance of that deed by the donee i.e. the daughter-in-law of the donor. In that view of the matter, so far as the ingredients of firstly manifestation of wish of the donor to give, secondly, acceptance of the gift by the donee is complete and in fact is not disputed. It may further be noticed that the parties to the transaction of gift are that the donor is father-in-law, donee is daughter-in- law of the donor and the delivery of possession of the property is declared to be given to the daughter in law in the deed itself before her marriage was solemnized with the consent of the donor. According to the learned counsel for the appellants in view of RSA No.859 of 2010 9 the subsequent writing mark-A between the donee and the donor the intention of the donor not to divest himself of the proprietary interest and control of the property is clear and, therefore, no divesting of ownership which is an absolute necessity to complete the gift has taken places and where the donor continues to exercise rights of ownership over the property inconsistent with the transfer of proprietary interest, the gift has to be held as inoperative. The argument advanced by the learned counsel for the appellant is without any merit. The mere execution of the subsequent document mark-A does not detract from the intention to make absolute gift of corpus in favour of the donee. The conditions reflected in mark-A are subsidiary to gift and do not make the gift dependent upon it.All these conditions are not conditions preceding the gift. The gift deed being not a contingent gift or a gift for life interest or gift of property on happening neither of certain event, nor of the property in future the possession of corpus being made the gift is complete. Any such condition even if it were in derogation with the absolute enjoyment of rights of ownership by the donees, must be held to be void and not the gift. Moreover, the document mark-A cannot be read into evidence being inadmissible in evidence as the same has not been proved in accordance with law. A gift does not become void on account of an invalid condition. Accordingly, when an arrangement is entered into between a father-in-law and daughter-in-law in regard to their respective rights, subsequent to the execution of registered gift deed but the fact that the property was already conveyed on the basis of registered gift deed and does not become void for any subsequent conditions. The Courts below on appreciation of evidence have recorded a RSA No.859 of 2010 10 finding of fact that delivery of possession has been proved and Jani was cultivating the suit land as licensee through respondent and the appellants have failed to lead any rebuttal evidence in this regard. In view of the aforesaid, I find no merit in the arguments advanced by the learned counsel for the appellants. No substantial question of law, as argued, arises in this appeal. Dismissed. ( Rakesh Kumar Garg) Judge February 23, 2010 rk