IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 RSA.No. 870 of 2004() --------------------- AS.26/2001 of SUB COURT, NEDUMANGAD OS.292/1997 of ADDL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT/RESPONDENT/PLAINTIFF ------------------------------------------------------------ ALIYARUKUNJU, S/O.VAPPUKANNU, SHAJIMA MANZIL, PEZHUMMOODU, KUTTICHAL, KATTAKADA FROM PUNNAMMOODUVILAKATH VEEDU, KOKKOTHAMANGALAM, ARUVIKKARA, THIRUVANANTHAPURAM. BY ADV. SRI.C.SATHYARAJ RESPONDENT(S): APPELLANT/DEFENDANT ----------------------------------------------------------------- 1. S.BASHEERUDEEN, S/O.SHAKPARITH, THUNDUVILAKATH VEEDU, MUNDELA, PUTHUKULANGARA MURI, VELLANAD VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM. 2. SEENATH BEEVI @ GEETHAKUMARI, THUNDUVILAKATH VEEDU, MUNDELA, PUTHUKULANGARA MURI, VELLANAD VILLAGE, NEDUMANGAD, THIRUVANANTHAPURAM. ADV. SRI.P.V.KUNHIKRISHNAN FOR R1 & 2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12 / 8/ 2011 , THE COURT ON 12/08/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 870 OF 2004 =========================== Dated this the 12th day of August,2011 JUDGMENT Plaintiff in O.S.292/1997 on the file of Additional Munsiff Court, Nedumangad is the appellant. Defendants are the respondents. Second respondent is the wife of the first respondent. First respondent is the son of the brother of the father of the appellant. Plaint B schedule is a building in the plaint A schedule property. Suit was instituted for declaration of his title and for recovery of possession of the plaint B schedule property. Plaint A schedule property, according to the appellant, originally belonged to his father late Vappukannu who died on 3.11.1990. According to the appellant, Vappukannu executed Ext.A1 settlement deed, whereunder as item No.2, plaint A schedule property was settled R.S.A.870/2004 2 in favour of the appellant. Appellant claims that on the death of the father, he became the absolute owner of the plaint A schedule property. Plaint B schedule building was rented out to the first respondent. Respondents are residing therein. Though first respondent paid rent for six months, he failed to pay subsequent rent and started to raise untenable claims. Suit was filed for declaration of title and recovery of possession of plaint B schedule building. Respondents resisted the suit contending that suit is barred by the decree in O.S.350/1980, a suit filed by the appellant along with his father, against the father of the first respondent, O.S.310/1984 a suit filed by the appellant through the brother of the first respondent and O.S.753/1991 a suit instituted by the appellant against the brother-in-law of the first respondent Basheerudeen. All these suits were dismissed and therefore appellant is not entitled to the decree sought for. It was also contended that Ext.A1 settlement deed was executed to raise R.S.A.870/2004 3 false claim in respect of the property and appellant did not derive any right or title or possession under Ext.A1 and Ext.A1 is void ab initio and appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence granted a decree for recovery of possession upholding the title claimed under Ext.A1. Respondents challenged the decree before Sub Court, Nedumangad in A.S.26/2001. Learned Sub Judge on re-appreciation of the evidence found that plaint A schedule property is item No.2 of the properties covered under Ext.A1 settlement deed and it is a gift deed executed by the father, a Muslim, in favour of his sons and unless the requirements to be complied with in execution of a gift deed under Mahomedan Law is established, appellant cannot claim title to the property. On the evidence it was found that Ext.A1 itself shows that the donor retained with him possession of the properties and the right to enjoy the property during his life R.S.A.870/2004 4 time and therefore the corpus was retained with the donor. It was also found that appellant has claimed that subsequent to the death of the father he obtained absolute right and therefore the gift deed is not valid and under Ext.A1 appellant cannot claim tile to the plaint B schedule property. The appeal was allowed and the decree granted by the trial court was set aside and the suit was dismissed. It is challenged in the second appeal. 3. The appeal is admitted formulating the following substantial questions of law. 1. Where there is “no evidence” to substantiate the findings, could the Lower Appellate Court hold that Ext.A1 deed is a muslim gift? 2. In the case where there is “no evidence” to substantiate the findings that Ext.A1 is a muslim gift, could the Lower Appellate R.S.A.870/2004 5 Court impose the said innovation on the parties to the litigation? 3. Where either of the parties have no case that Ext.A1 is a muslim gift, could the Lower Appellate Court declare that Ext.A1 is a muslim gift on an erroneous application of the decision reported in AIR 1977 Ker.54? 4. Where either of the parties to the proceeding had no case that Ext.A1 is a muslim gift, was the First Appellate Court justified in holding that Ext.A1 is not a valid gift and declaring further that the title did not pass on to the appellant? 4. Learned counsel appearing for the appellant R.S.A.870/2004 6 and the respondents were heard. 5. The argument of the learned counsel is that there was no pleading in the written statement that Ext.A1 settlement deed is void or invalid for the reason that it was executed by a Mahomedan in violation of the provisions of Mahomedan Law. The argument of the learned counsel is that when Ext.A1 is challenged only on the ground that the donor had no sound disposition of mind when it was executed and it was not challenged on the ground that it is in violation of the provisions of Mahomedan Law, the first appellate court should not have found that Ext.A1 is a gift deed executed by a Muslim and as the requirements of a valid Mahomedan gift is not proved, appellant has no title under Ext.A1. Learned counsel also argued that Ext.A1 is a settlement deed and not a gift deed and even if it is treated as a gift deed, it shows that appellant was handed over possession of one coconut tree, though the remaining property was retained by the donor. Therefore the finding of the first R.S.A.870/2004 7 appellate court that Ext.A1 is void is unsustainable. Learned counsel also argued that though it was contended that father of the appellant was not having a sound disposing mind to execute Ext.A1 settlement deed, Ext.A2 gift deed in favour of the father of the first respondent was executed immediately after execution of Ext.A1 and therefore it cannot be contended that Ext.A1 is vitiated. It was also argued that as appellant has title to the plaint A schedule property and plaint B schedule building is within plaint A schedule property, the decree for recovery of possession should have been confirmed. Learned counsel for the respondents argued that there is no evidence to prove that the building was rented out to the first respondent. It was pointed out that even when Ext.A1 settlement deed was executed, the building was in the possession of the first respondent and therefore appellant cannot be heard to contend that he obtained possession of the building under Ext.A1. Learned counsel further argued that under R.S.A.870/2004 8 Ext.A1, the donor retained possession of the property as well as the right to enjoy the same during his life time and therefore as rightly found by the learned Sub Judge in the light of the decision of this court in Beepathumma v. M.N.M.Rowther (AIR 1977 Kerala 54) it can only be found that Ext.A1 gift deed is not valid and if so there is no reason to interfere with the findings of the first appellate court. 6. Though learned counsel appearing for the appellant vehemently argued that there is no evidence to prove that Ext.A1 is a Mahomedan gift and it was pointed out that no such contention was raised in the written statement or before the trial court, on the facts, I cannot agree. Nobody can deny the fact that Ext.A1 was executed by a Muslim. It is the case of the appellant also that Vappukannu is a muslim. The appellant and the respondents are also Mahomedans. Ext.A1 shows that under the said gift deed termed as settlement deed, the father had given the properties separately to R.S.A.870/2004 9 his three sons. Appellant was the first donee. item No.2 therein was allotted to the appellant. Item No.2 is the plaint A schedule property. Plaint B schedule building is in plaint A schedule property. It is on that basis appellant claims title to the plaint A schedule property. 7. Though it was contended that on 15.11.1990 plaint B schedule property, which was an existing outhouse in the plaint A schedule property, was rented out to the first respondent on monthly rent and because of the relationship no rent deed was executed when appellant was examined as PW1 it was admitted by PW1 that the building was constructed by his father and brother-in-law of the first respondent who was subsequently examined as PW2, was in possession of the building as a tenant. It is the case that subsequently after three or four years, PW2 left the house and thereafter it was granted on lease to the first respondent. First respondent is denying that case. Though it was contended that a lease in favour of the first R.S.A.870/2004 10 respondent was granted by the appellant, he has no case that the lease in favour of PW2 was granted by the appellant. It could only be by the father of the appellant. If that be so, it is clear that even at the time of execution of Ext.A1, the building which was in existence, was in the possession of a person, who is alleged to be the tenant. The recitals in Ext.A1 shows that the said deed was executed in favour of three sons by the father. Plaint A schedule property was gifted to appellant, the eldest son. Plaint B schedule property was gifted to the second son Abdul Azeez. Plaint C schedule property was gifted to the third son, Shamsudeen. The recitals are to the effect that the properties so divided as schedule A, B and C, were gifted, but possession was returned by the donor. The sons were given right to take income only from one coconut tree. Ext.A1 specifically provides that during the life time of the father, he shall enjoy the property and the children have no right to cause any obstruction to R.S.A.870/2004 11 the said enjoyment and only after the death of the father, property could be enjoyed by the sons as their absolute property. Therefore it is absolutely clear from Ext.A1 that the corpus was retained with the donor, the father, and the document was executed providing that only on the death of the father the corpus could be enjoyed on absolute right by the donees. The question is whether it is a valid gift. 8. Though learned counsel argued that there is no evidence to prove that Ext.A1 is a gift deed executed by a Muslim, when the donor and the donees are all Muslims and Ext.A1 settlement deed was executed by the Mahomedan father, in favour of his Mahomedan sons, no further evidence is necessary to hold that it is a document executed by a Muslim father in favour of his son. An analysis of Ext.A1 establishes that though the nomenclature is that it is a settlement deed, it is a gift deed executed by a Muslim. 9. When Ext.A1 is found to be a gift deed R.S.A.870/2004 12 executed by a Mahomedan, as rightly found by the first appellate court, it would be valid only if the requirements provided under Mahomedan Law are satisfied. 10. Gift is defined in Section 138 of the principles of Mullas Mahomedan Law by M.Hidayathulla, as follows:- “A hiba or gift is “a transfer of property, made immediately, and without any exchange,” by one person to another, and accepted by or on behalf of the latter.”. Though writing is not essential to create a valid gift of either movable or immovable property, in order to have a valid gift, the donor should divest himself completely of the right and dominion over the subject of the gift. Section 148 reads:- “Relinquishment by donor of ownership and dominion- It is essential to the validity R.S.A.870/2004 13 of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.” Relinquishment of control over the subject is thus necessary to complete the gift. A gift with a reservation of possession of the property with the donor during his life is void. 11. This court in Hajee Kunju Mamathu v. Asikutty (1959 KLT 624) had occasion to construe the effect of a gift, where the donor had reservation possession of the property with himself. As is clear from the decision, the disputed gift deed therein, after allotting the properties grouped under various schedules to the several donees, the document termed settlement deed provided that the donor would enjoy all the properties gifted thereunder during his life time and donees would take the property absolutely only after his death. Relying on the decision of the R.S.A.870/2004 14 Madras High Court in K.Veerankutty v. P.Umma (AIR 1956 Madras 514) wherein it was held that “An absolute grant is made in the first instance and the reservation to be in possession of the property and enjoy the income therefrom during the life-time of the donor cannot be understood as derogating from the earlier grant, but it is only an affirmation or reservation of a subordinate right to ensure for a specified period,” it was held that, that was a gift executed by a natural guardian to the first donee and no transfer of possession is required in the case of such a gift. Construing the provision of the disputed gift it was held that as the rule of Mahomedan Law is that, if there is reservation of the possession of the property gifted by the donor during his lifetime, the gift is not competent, and hence the disputed gift is not valid. The same Judge had occasion to construe a similar gift deed executed by Muhammedan in Pichakannu v. Aliyarkunju Lebba (1963 KLT 226). The gift deed involved therein recites that the R.S.A.870/2004 15 properties being gifted in accordance with the provisions thereinafter contained, was subject to the reservation of his possession and enjoyment, which shall not to be disturbed, and the donees may possess and enjoy the properties along with him, and undertook that tax would be paid and receipt taken in their names out of the income. It further stipulated that the donees will take the properties absolutely only after his lifetime. Quoting Mulla on Mahomedan Law that it is essential to a valid gift that there should be delivery of such possession as the subject of the gift is susceptible to. Following the decision of the privy council in Aslan Khan v. Khalilul Rehman Khan (AIR 1947 P.C.97) it was held that a gift with a reservation of possession by the donor, during his life was void. Construing the disputed gift it was held that by reserving undisturbed, his right to be in possession and enjoyment, the donor did not divest himself completely of all dominion over the properties, though in a sense, he purported to R.S.A.870/2004 16 associate the donees with himself; nor could such associating the donees in the matter of possession and enjoyment with him, be deemed to be delivery of such possession, if at all, as the properties were susceptible of. His Lordships held:- I am not prepared to hold that a stipulation that the donor and the donees shall be in joint possession, satisfies the requirement of delivery of possession in a gift under the Mahomedan Law. Even where the donee resides with the donor in the property, although no physical departure by the donor or formal entry by the donee, is necessary, the gift has to be completed by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the R.S.A.870/2004 17 subject of the gift.” A Division Bench of this court considered the question in Beepathumma's case (supra). The relevant clause in that gift provided that till the death of the executant he would have no right of alienation of the property or properties made mention of in each of the documents, but he will have the right to possess the said property or properties and enjoy the same by taking usufructs and that after his death the respective property or properties may be possessed and enjoyed by the executee as he likes with the right of alienation etc. It was held that though clause (2) of the document restricts the right of alienation of the donor during his lifetime, the donor during his lifetime has the right to take usufructs and it would mean that the donees would have no right to take usufructs and it therefore shows that the donor kept with him the right to possess and enjoy the property during his lifetime. Relying on the decision of the Privy Council in Nawazish Ali Khan R.S.A.870/2004 18 v. Ali Raza Khan (AIR 1948 PC 134) it was held that if the donor reserves to himself the right to be in possession of the corpus and the right to enjoy the same, there cannot be a valid gift under Muslim Law. Their Lordships held:- “The Muslim requires the gift of corpus itself and if there is anything repugnant to such a gift, such a repugnant condition would be invalid but it is necessary that the gift should be of the corpus.” Construing clause (2), it was held that there was no gift of the corpus as the executant reserved the right to possess, enjoy and take usufructs in respect of the corpus during his lifetime and therefore the gift is void. The decision in Mohamed Aslan Khan's case was followed. In the light of the settled law when Ext.A1 establishes that though the father divided the property and R.S.A.870/2004 19 settled the respective property by classifying them into three groups and executed the gift deed, the donees thereunder did not get possession of the property, as possession was reserved with the donor. It expressly provided that during his life time, he shall enjoy the property and the donees could enjoy the properties, after his death, absolutely. Though there is a provision that one coconut tree in each of the properties set apart to the three sons were given possession, there is no case in the plaint that under Ext.A1 one coconut tree was taken possession and therefore there was delivery of the corpus under Ext.A1. Though learned counsel argued that respondents did not raise a contention in the written statement, when appellant is claiming title based on Ext.A1, it is for him to prove that it is a valid gift and for that purpose it is necessary for him to plead and prove that there was delivery of possession by the donor in favour of the appellant. On the evidence, first appellate court was fully justified in R.S.A.870/2004 20 holding that appellant is not entitled to claim title or get it declared based on Ext.A1. Appellant is also not entitled to the recovery of possession of plaint B schedule building. Hence dismissal of the suit is perfectly correct. The appeal is dismissed. No costs. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006