IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 FAO.No. 262 of 2010 ------------------------------------ AGAINST THE ORDER DATED 26/07/2010 IN IA.2646/2010 IN OS.563/2010 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- DR.B.SUNIL, AGED 41 YEARS, S/O M.K.BASHEER, T.C.3/993, 'MALARVADY', PARUTHIPPARA, MUTTADA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE SMT.MEERA GOPINATH RESPONDENT(S): COUNTER PETITIONER/DEFENDANT ------------------------------------------------------------------------------ DR.M.K.BASHEER, AGED 66 YEARS, S/O MOHAMMED KASIM, 'SHAMS', CHILDRENS' LIBRARY ROAD, KOTTAYAM P.O., KOTTAYAM-686001. BY ADV. SRI.K.V.SOHAN AND SMT.SREEJA SOHAN.K. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07/07/2011 ALONG WITH FAO NO. 266 OF 2010 & FAO NO. 267 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- F.A.O.NOS.262 OF 2010, 266 OF 2010 & 267 OF 2010 ------------------------------------------ Dated this the 7th July, 2011 JUDGMENT K.M. Joseph, J. These Appeals being connected, they are disposed of by this common Judgment. 2. OS. No.563/2010 was filed by the appellant in all these Appeals. The appellant is none other than the son of the respondent. Parties are Mohammedans. According to the appellant, two items of properties were gifted by way of Settlement Deeds executed by the respondent in his favour. The first item of the property scheduled is A schedule in the plaint. The second item of property is scheduled as B schedule. According to the appellant, the respondent has illegally cancelled the Settlement Deed in respect of B schedule property. He also apprehended cancellation of the Settlement Deed in respect of A schedule. It is FAO.262, 266 & 267/2010 2 accordingly that he filed the Suit challenging the cancellation of the Settlement Deed in respect of B Schedule property and seeking injunction against cancellation of the Settlement Deed in respect of A schedule property. In the Suit, the appellant moved IA. No.2646/2010 and IA.No.3178/2010, while the respondent filed IA.No.3084/2010. IA.No.2646/2010 was filed by the appellant seeking to restrain the respondent from creating any document or encumbering the plaint schedule properties. IA. No.3178/2010 was filed for injunction restraining the respondent from trespassing into B schedule property. The respondent filed IA.No.3084/2010 for an injunction restraining the appellant from trespassing into plaint B schedule property. All these three Applications were heard together and a common order was passed dismissing IA. No.2646/10 and IA. No.3178/10 while IA. No.3084/10 was allowed, and these Appeals are filed challenging the common order. FAO.262, 266 & 267/2010 3 3. We heard the learned counsel for the appellant and the respondent. 4. Learned counsel for the appellant, Shri D. Kishore would contend that the lower court has clearly erred in refusing to grant relief to him and in granting relief to the respondent by the common order passed. He would submit that the Settlement Deed in respect of B schedule property was executed in the year 2005. He would further submit that the recitals in the document relating to B schedule property would clearly show that delivery of possession was effected. He would further invite our attention to the following passage in Mulla's Principles of Mahomedan Law: “167. Revocation of gifts.- (1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no completed gift at all. (2) Subject to the provisions of sub-sec.(4) a gift may be revoked even after delivery of possession except in the following cases- (a) when the gift is made by a husband to his FAO.262, 266 & 267/2010 4 wife or by wife to her husband. (b) when the donee is related to the donor within the prohibited degrees; © when the donee is dead; (d) when the thing given has passed out of the donee's possession by sale (e), gift or otherwise; (e) when the thing given is lost or destroyed; (f) when the thing given has increased in value, whatever be the cause of the increase (f); (g) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding (g); (h) when the donor has received something in exchange (iwaz) for the gift (see secs.168 and 169). (3) A gift may be revoked by the donor, but not by his heirs after his death (h). It is the donor's law that will apply to a revocation and not that of the donee (i). (4) Once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor not even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, FAO.262, 266 & 267/2010 5 the donee is entitled to use and dispose of the subject of the gift (j).” He would further rely on the following decisions: 1) Alavi v. Aminakutty & Others (1984 KLT SN 61 Case No.103). 2) Pathumma v. Pocker (1997 (2) KLT 958). 3) Kalukurumban v. Sarojini Amma (1997 (1) KLT 481). 4) Abdul Rahim And Others v. Sk. Abdul Zabar and Others ((2009) 6 SCC 160). 5) Assan Rawther v. Ammu Umma (1971 KLT 684). 6) Meerasayu Nooru Mohamed v. Appikunju Sultan Pillai (1955 KLT 856). In Alavi v. Aminakutty & Others (1984 KLT SN 61 Case No.103), a learned Single Judge of this Court has held as follows: “It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is FAO.262, 266 & 267/2010 6 ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donees. The burden is not on the donee to prove, delivery of possession to them.” In Pathumma v. Pocker (1997 (2) KLT 958), a Division Bench of this Court has held as follows: “As per S.152 of the Mohammedan Law a gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels and the donee formally enters into possession. In the instant case, gift deed itself says donee has been put in possession. A recital in the deed of gift that the donor has divested himself and put the donees in possession binds the donor's heirs even if one of the heirs is later found in possession. When the donor and donee both resides in the property, no physical departure or formal entry is necessary in the case of gift of an immovable FAO.262, 266 & 267/2010 7 property. In such case, gift may be completed by some overt act by the donor and the donee. If the donee is the wife, no mutation of names is necessary if the deed of gift declares that the husband delivered possession to the wife and the deed is handed over to her and retained by her. When it is specifically stated in the gift deed that possession has already been handed over and the donee being the wife of the donor and that the donee and the donor were residing in the property the burden is on the person who attacked the same to show that possession was not in fact handed over.” He would further contend that this is a case where the mutation has been effected in the records and the appellant is shown as the owner. He would contend that the reasoning of the trial Judge is clearly erroneous. He would complaint that the actual owner is now injuncted from entering his own property. He would point out that actually the Commission Report also does not bear out the case of the respondent. 5. Per contra, learned counsel for the respondent Shri K. V. Sohan would point out that this is a case where the respondent has FAO.262, 266 & 267/2010 8 a case that the gift in respect of B schedule property was procured by compulsion. He would further submit that if actually the barbed wire and the concrete pillars which were referred to by the Commissioner in his Report and relied on by the appellant in between the B schedule property and the property where the auditorium was situated, has been put up only recently. He would submit that the question as to whether delivery of possession was given, is a matter of evidence. He would further submit that no case is made out for interference. 6. The trial court has proceeded on the basis that car parking is found in B schedule property. The court has also referred to the Commission Report to the effect that electric connection to the bore well is in B schedule property and the PVC pipeline was drawn from the aforesaid electric connection to the respondent's property, and further that the Commissioner has reported that the connection to the bore well and that too using PVC pipeline has been cut off. It is further stated that the allegation that possession FAO.262, 266 & 267/2010 9 of B schedule was given to the appellant at the time of execution of the Settlement Deed, cannot be accepted at its face value. Thereafter, it is found that since the respondent was running an auditorium in the adjoining property and that too,, by enjoying the facilities in B schedule, the balance of convenience is not in favour of the appellant, but in favour of the respondent. Further, the court took the view that the apprehension of the respondent that the appellant will construct fence to prevent access is well founded and accordingly injunction also was granted against the appellant from trespassing into B schedule property or altering the nature and lie of the same or from constructing any wall or fence on the northern boundary of B schedule till the disposal of the Suit. 7. We notice that the relationship between the parties is one of father and son. Admittedly, the father is running an auditorium. No doubt, the recital in the document that possession is indeed with the father, is entitled to considerable weight and in fact, if possession was granted, the revocation can be done only by a FAO.262, 266 & 267/2010 10 decree, going by what is stated in Mulla on Principles of Mohammedan Law. No doubt, it will be open to the respondent to adduce evidence to show that actually possession was not delivered. It is also brought to our notice that this Court has already passed an order of status-quo which has been continuing for long. 8. Having heard the learned counsel appearing for the parties and having regard to the relationship between the parties, we are of the view that the following order is to be passed. Accordingly, we pass the following order: In view of the fact that the respondent/father is running an auditorium, we direct that the appellant will not interfere with the parking of the vehicles in B schedule property. We order further that the respondent will not interfere with the appellant from exercising his rights over the B schedule property so long as it is done without disturbing the car parking being done in B schedule property. We make it clear that the appellant will not put up any FAO.262, 266 & 267/2010 11 construction so as to impede the car parking being done in the B schedule property. We further order that the respondent shall not create any documents in regard to/or encumber plaint A or B schedule properties or encumber them in any manner. We further direct that the court below will proceed to dispose of the Suit at the earliest and totally untrammeled by the observations by it in the impugned orders or in this Judgment. The order passed in IA. No.785/2011 in FAO. No.267/2010 will continue till the disposal of the Suit. We further order that it will also not stand in the way of the respondent moving an IA. before the court below seeking removal of the generator if maintainable. The Appeals are disposed of as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, kbk. JUDGE //True Copy// PS to Judge FAO.262, 266 & 267/2010 12