THE HON’BLE MR JUSTICE L. NARASIMHA REDDY Second Appeal No.1012 of 2011 JUDGMENT: The 2nd defendant in O.S.No.101 of 1991 on the file of the Junior Civil Judge, Markapur, is the appellant. The suit was filed by the 1st respondent for the relief of partition of the suit schedule house into 8 equal shares by metes and bounds and to put it in possession of 5/8th of the property. The trial Court passed a preliminary decree through judgment, dated 27.03.2002. Challenging the same, the appellant filed A.S.No.178 of 2007 in the Court of VI Additional District Judge, Markapur. The appeal was dismissed on 18.04.2011. Hence, this second appeal. The 1st respondent, a Mosque, prayed for a preliminary decree by pleading that: Original owner of the suit schedule property one Sri Mohd. Khasim had two sons, by name Shaik Abdul Kareem and Shaik Khaja Miah and 4 daughters, by name Nathad Be; Abbas Be; Zaina Bee; and Khasim Be. After the death of Mohd. Khasim, the sons are said to have succeeded to the property to the extent of 2/8th share, each, and each daughter to 1/8th. Shaik Khaza Miah is said to have acquired the shares of his three sisters and executed a deed of gift in favour of the 1st respondent on 20.05.1967, marked as Ex.A.6 donating 5/8th of the suit property and delivered possession of the same. The appellant is the daughter and the 2nd respondent (3rd defendant) is the wife of Abdul Kareem. Respondents 3 to 7 are the legal heirs of Nathad Bee. It was pleaded that the 1st respondent became entitled to 5/8th share by virtue of Ex.A.6 and that it is entitled to put in separate possession of that share. The suit was mainly contested by the appellant. Written statement filed by her was adopted by her mother, the 2nd respondent herein. She pleaded that the suit schedule property was absolutely owned by her father - Abdul Kareem and that her uncle – Khaja Miah had no right to gift any part of it, much less 5/8th share. It was also pleaded that Khasim Miah himself realised the fraud played by the 1st respondent upon him in procuring Ex.A.6 and has cancelled Ex.A.6 by executing a deed of cancellation, viz., Ex.B.47. The trial Court held that the plea of the appellant that the suit schedule property was exclusively owned by her father is not proved and that Ex.B.47 does not have any effect upon Ex.A.6. Accordingly, it passed a preliminary decree, as prayed for. The lower Appellate Court confirmed the same. S r i K.G.Krishna Murthy, learned counsel for the appellant, submits that a gift made through Ex.A.6, was impermissible in law, since it was in respect of an undivided property. He contends that there was no valid gift in the eye of law, since exclusive possession of the property covered by that document was not, and, in fact, could not have been delivered. He submits that the 1st respondent did not file any rejoinder to the plea raised by the appellant as regards cancellation of gift. It is urged that though no issue was framed in relation thereto, a finding was recorded contrary to law and evidence on record. He contends that the trial Court placed the entire burden on the appellant, as though she filed the suit. S r i Mirza Nisar Ahmed Baig, learned counsel for the 1st respondent, on the other hand, submits that it is permissible for a Muslim to donate his undivided share and that Ex.A.6 accords with the settled principles of law. He contends that the possession of the property was also delivered to the appellant, and thereby, a valid and complete gift came into existence. Learned counsel submits that even if Ex.B.47 was proved, it has no legal effect, since a gift, which was made in accordance with law and accepted by the donee, cannot be cancelled, particularly in Muslim law. He further submits that the trial Court and the lower Appellate Court have examined the matter in detail and no interference is warranted with the concurrent judgments. The suit was filed for the relief of partition on the basis of a gift said to have been made in favour of the 1st respondent, through Ex.A.6. The principal contest to the suit was by the appellant herein. Initially, the trial Court framed only one issue, viz., “Whether the plaintiff is entitled for partition and separate possession of the suit schedule house as prayed for?”. At a later stage, an additional issue touching on the jurisdiction, in the light of constitution of a Wakf Tribunal, was framed. On behalf of the 1st respondent, PWs.1 to 4 were examined and Exs.A.1 to A.9 were filed. On behalf of the appellant and other defendants, DWs.1 to 3 were examined and Ex.B.1 to B.47 were filed. A preliminary decree was passed by the trial Court and in A.S.No.178 of 2007 filed by the appellant, the lower Appellate Court framed the following points for its consideration: i) “Whether Ex.A.6 gift deed dated 20.05.2007 executed by Shaik Khajamia in favour of Jumma Masjid is valid and binding on defendants? ii) Whether the possession of schedule property by D.1 and D.2 is adverse to plaintiff and suit is barred by limitation? iii) Whether the decree and judgment passed by the trial Court is sustainable?” The appeal was dismissed. The trial Court answered the additional issue against the appellant and held that the suit is not barred. That issue is not seriously pursued before this Court. The 1st respondent is not a legal descendant of the person, who owned the suit property. The relief of partition is claimed on the strength of a gift deed - Ex.A.6, said to have been executed by one of the sons of the original owner, Mohd. Khasim. The gift was in respect of an undivided share of 5/8th. The appellant opposed the suit by raising two important contentions, viz., a) the property was exclusively owned by her father and Abdul Kareem, the other son of Mohd. Khasim; and that b) Ex.A.6 was cancelled by Mohd. Khaja Miah through Ex.B.47. It may be true that in a suit for partition, various questions touching upon the title and possession of the items included in the suit schedule, can be decided comprehensively, even if separate relief as to declaration is not prayed for. However, when a specific plea as to the validity of a particular document that constituted the basis was raised, effective adjudication can take place, only when the relevant issues, touching on each of the important questions, are framed. Another aspect of the matter is that, if in a suit for partition, the defendant pleads certain facts, which if not denied, would cut at the root of the case presented through the plaint, the plaintiff can overcome the same only by filing a rejoinder. It is only then that the Court can undertake the examination of the relevant issue. If for instance, the relief of declaration of title is claimed on the basis of inteste succession and the defendant in that suit pleads testate succession under a Will, the plaintiff can proceed further, only by filing a rejoinder, expressing his view about the Will. His silence as regards that, would render the suit, almost nugatory. In the instant case, the sole basis for the 1st respondent was Ex.A.6. The appellant raised the plea that Ex.A.6 was cancelled through Ex.B.47. The 1st respondent did not file any rejoinder, much less did the trial Court frame any issue. The effect of Ex.B.47 was considered by the trial Court in para 23 of its judgement almost in a cursory manner, on the assumption that it is opposed to settled principles of law. An observation was made to the effect that the gift through Ex.A.6 became operative and in that view of the matter, Ex.B.47 has no force in law. The trial Court did not address the important issue as to whether Ex.A.6 has given rise to any definite rights. A gift either made under Section 123 of the Transfer of Property Act or under Mohamadan law, would become complete, only when it is accepted by the donee. If what is gifted is an item of immovable property, assumption of possession by the donee on being delivered by the donor, would constitute acceptance. Two aspects assume importance, in this regard. The first is that what was donated in Ex.A.6 was an undivided share. Serious doubt exists as to whether the effective possession of an undivided share can be delivered at all. The second is that one of the subsidiary prayers in the suit was to put the 1st respondent in possession of 5/8th share of suit schedule property after affecting its partition. It would suggest that the 1st respondent was not in possession of the property, by the time the suit was filed. Though not as an expression of final opinion on the issue, reference is being made to these aspects to indicate that the adjudication by the trial Court and the lower Appellate Court was not perfect and complete. This Court would have decided the said aspects here itself, but for the fact that the parties did not have opportunity to address the same on account of the fact that the relevant issues were not framed and pointed discussion was not undertaken. It is felt that remand of the matter to the trial Court is the only alternative, left before this Court. Hence, the second appeal is allowed and the judgments rendered and decrees passed by the trial Court and the lower Appellate Court are set aside. The 1st respondent i.e. the plaintiff is given an opportunity to file a rejoinder, expressing its view as regards the deed of cancellation, marked as Ex.B.47, if it is so advised, within 4 weeks from the date on which the matter is first posted before the trial Court, after remand. If such a rejoinder is filed, the trial Court shall frame the following additional issues and decide the matter, in accordance with law, after giving opportunity to both the parties to adduce evidence. 1) Whether a valid gift as provided for in law has been made in favour of the plaintiff through Ex.A.6? 2) If so, whether the gift made through Ex.A.6 was cancelled through Ex.B.47? The matter is remanded to the trial Court for fresh consideration and disposal. If no rejoinder is filed as directed, the suit shall stand dismissed. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J Dt:26.12.2011 GJ