IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 RSA.No.497 of 2005 (A) ---------------------------- AS.34/2003 of DISTRICT COURT, KOZHIKODE OS.32/2000 of II ADDL.SUB COURT,KOZHIKODE .................... APPELLANTS/APPELLANTS/DEFENDANTS ------------------------------------------------- 1. B.P.MOIDEEN SEVAMANDIR, REPRESENTED BY ITS DIRECTOR K.KANCHANA, D/O.ACHUTHAN, THAZHEKODE AMSOM AND DESOM, KOZHIKODE TALUK. 2. K.ANANDA KANAKAM, D/O.K.ACHUTHAN, CO-ORDINATOR, B.P.MOIDEEN SEVAMANDIR, MUKKOM, THAZHEKODE AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.K.RAMAKUMAR RESPONDENT/RESPONDENT/PLAINTIFF: ------------------------------------------------ A.M.KUTTY HASSAN, S/O.ARIPATTA MANNIL UNNIMOYAN, KODIYATHOOR AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. ........................................... R.S.A.No.497 OF 2005 ............................................. Dated this the 2nd day of November, 2009 J U D G M E N T This is an appeal preferred against the judgment and decree in A.S.No.34/2003 of the District Judge, Kozhikode. The said appeal was in turn preferred against the judgment and decree in O.S.No.32/2000. O.S.No.32/2000 was a suit for mandatory injunction, prohibitory injunction and in the alternative for recovery of possession. It is the case of the plaintiff that the property described in the plaint schedule along with its remainder were gifted in his favour by one Pathumma as per a registered gift deed dated 17.8.1994 and thereby he is having absolute title and possession over the property and the defendants, who are having a permissive possession over the property, are bound to vacate the premises and therefore the suit is filed. On the contra, the defendants would contend that the said Pathumma did not have the mental capacity to execute a gift deed of that nature and it has not been executed by her knowing the consequences of her action and further she : 2 : R.S.A.No.497 OF 2005 had not put the plaintiff in possession of the property which is a sine qua non for a valid Muhammdan's gift and therefore by virtue of that document, the plaintiff did not have the right or title over the property and so the plaintiff is not entitled to any relief. It is also contended that by virtue of an unregistered agreement dated 10.9.1992, the said Pathumma had put the property in the possession of defendants and thereby making it very clear that she would not have been in a position to hand over the possession of that property. It is also contended relying on the recitals in the document that it is an irrevocable permission and therefore the plaintiff cannot vacate the defendants by filing the suit of this nature. In the trial court as well as in the appellate court, it was found on facts that the gift was validly executed by Pathuma and that the plaintiff has got possession over the property and further that the document relied upon by the defendants does not confer any right on them and it is only a permissive possession and therefore, the plaintiff is entitled to the relief prayed for. Accordingly, the suit was decreed by the trial court and confirmed by the appellate court. It is against that decision, the defendants : 3 : R.S.A.No.497 OF 2005 have come up in appeal and the following substantial questions of law had been raised in the appeal which are shown as follows: 1. Whether a Mohammedan gift will become valid only on actual physical possession being handed over to the donee. 2. Whether during the continuance of the irrevocable agreement between the parties can a gift of the same property be created by the party, who has entered into an irrevocable agreement. 3. Whether the gift in question on which the suit is filed being valid the suit itself is maintainable. 4. In any event the agreement between the parties is not valid and enforceable through a court of law. 2. Points 1 to 4: Heard the learned counsel for the appellants as well as the respondent in this appeal. The point that has been strongly argued before me is that since the plaintiff did not obtain possession over the property which is described in plaint B schedule, by virtue of the gift deed, Ext.A1, the plaintiff will not have any title and therefore he is not entitled to the property. It is further contended that being an irrevocable agreement, that will also debar the plaintiff from getting any relief. So far as the execution, mental : 4 : R.S.A.No.497 OF 2005 capacity etc are concerned, both the courts below on appreciation of the facts, had arrived at a decision that Ext.A1 gift deed has been executed by Pathumma knowing the full significance of the same and it has been properly proved by PWs 1 and 2 in the case. As per the decision of the Supreme Court reported in Gur Dev Kaur v. Kaki (AIR 2006 SC 1975), the Apex Court has cautioned that when two courts have taken a view on facts concurrently even if it is erroneous, the court of second appeal shall not interfere with the said finding and further it should not attempt to conduct a re-trial of the case. Therefore, the scope for interfering with the factual findings of a case where there are concurrent findings is very remote. That is why the court cautioned really that there must be a substantial question of law to consider the case. In this case, the projected substantial question of law is with respect to the non delivery of possession of B schedule property over the defendants' claim for exclusive possession by virtue of Ext.B5 agreement. The learned counsel would contend that unless possession of B schedule has also been handed over to the plaintiff by virtue of Ext.A1 document, the plaintiff will not : 5 : R.S.A.No.497 OF 2005 get the right over the property. First, I will refer to the document itself wherein there are clear recitals that even prior to the execution of the gift deed, the property had been orally gifted and possession handed over to the donee and he had in acceptance of the same, had planted trees and repaired the house and he is in possession of the same. As stated by the appellate court, the recital in a document is also a piece of evidence regarding the possession given by the donor. There is again a very clear recital that the absolute right had been conferred upon the donee and thereby the donor has got herself to extinguish all the rights in the property. Both the courts below on considering the documentary evidence available, which are records maintained by the village officer and the panchayat authorities, came to the conclusion that the donee has established his possession over the property by virtue of those documents. Now it is true that there is a finding recorded by the appellate court as well that execution of Ext.B5 document is proved in this case. What shall be the legal impact of such a document is the next point to be considered. Under the Muhammedan's law while the plea : 6 : R.S.A.No.497 OF 2005 of possession is an essential condition for the validity of the gift, it is not necessary that in every case there should be a physical delivery of possession, delivery of which would complete a gift either may be of actual or constructive. All that is necessary is that the donor should divest himself completely of the ownership and dominion over the subject of the gift. By the documents and by the conduct of the donee, it is very clear that the owner has completely diverted her title and the donee has been enjoying the property as the absolute owner of the property. 3. Ext.B5 by itself does not create any right on the second executant therein. What is stated in Ext.B5 is to the effect that the son of the first executant namely B.P. Moideen was conducting the Children's Club and after his death there has been a direction by the mother to run that club. So, what is granted by Ext.B5 is a permissive possession to continue what has been done by the son. Just because it is recited that it was an irrevocable document, law does not recognise such a thing unless it is by methods known to law. A right in an immovable property whose : 7 : R.S.A.No.497 OF 2005 value is more than Rs.100/= cannot be created by writing in an ordinary agreement without registration. The other method is under Section 60 of the Easement Act. Section 60 (a) deals with a situation where there is a transfer. Here there is no transfer but only a permission to continue. Then under Section 60 (b). On the basis of a licence, permanent structures are created whereby it creates an irrevocable right. There is no proof for the defendants that on the basis of Ext.B5, structures had been constructed which are of a permanent character so as to make that permission irrevocable. Therefore the materials available do not establish that there has been any irrevocable grant or licence in favour of the defendants in the case. As stated by me earlier, majority of the matters are on facts which had been concluded by the concurrent findings of the court below and the substantial question of law regarding actual plea of possession also cannot be availed of by the defendants for the reason that Ext.A1 document of title of the donor had been given in favour of the donee. What ever possible possession that can be handed over was accompanied by virtue of the same. So, Ext.A1 document is : 8 : R.S.A.No.497 OF 2005 an out and out gift which had conferred right title on the plaintiff. When the possession of the defendant is that of a licencee has not matured into any irrevocable right under the provisions of the Easement Act, it amounts to only permissive possession which can be revoked and which will lapse at least at the death of the person who has granted the licence. Therefore under law, the plaintiff is entitled to the relief for mandatory injunction as well . Therefore, I do not find any ground to interfere with the well considered judgment passed by the court below. Points of law are answered against the appellants and the appeal is dismissed but under circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl