THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No.318 of 1999 Dated:- 17th August, 2010 Between: Abdul Nabi died per LRs …Appellant AND Hameedabi (died) and others …Respondents THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR SECOND APPEAL No.318 of 1999 JUDGMENT: This appeal by the defendant in original suit is directed against the Decree and Judgment dated 12.02.1999 in A.S.No.19 of 1996 on the file of the I Additional District Judge, Kadapa, whereby and whereunder, the decree and judgment passed in favour of plaintiff dated 22.02.1996 has been confirmed. 2. The parties will be referred to as they are arrayed in the original suit. 3. The brief facts of the case are as follows:- The plaintiff filed the suit for declaration of title and permanent injunction. The suit schedule property originally belongs to one Ismail Sab. The second plaintiff – Budan Bi is the second wife of Ismail Sab. The first plaintiff-Hameeda Bi is the youngest daughter of Ismail Sab and Budan Bi. The first defendant is the son of Ismail Sab through his first wife. The defendants 2 to 4 are the daughters of Ismail Sab and the second plaintiff. Other daughters of Ismail Sab i.e., Juleka Bi and Jaibunnisa died before the litigation started. 4. The suit schedule property is a house property. The southern portion of the said house is A D E H and the northern portion is E J M H. These two havelis are separated by a narrow space. The specific case of the plaintiffs is as follows. Ismail Sab, who was the absolute owner of the two portions (two tiled havelies), executed a registered gift deed, dated 30.11.1966 / Ex.A.2, bequeathing the southern side portion, which is the plaint schedule property to the plaintiffs and to his another daughter Juleka Bi and thereby conferred both possession and title to them. However, Ismail Sab reserved the right to manage the said property and to lease out the same on their behalf and to pay the balance of rent amount to the plaintiff after meeting the necessary expenditure for its maintenance. Their further case is that the gift was accepted by the donees. It is also their case that the first defendant was married by then and he was staying in the Northern side haveli with his family and Ismail Sab was residing with the plaintiffs in the southern side of haveli. Ismail Sab died in 1973. The plaintiffs continued to reside in the suit schedule property after the death of Ismail Sab. Since the first plaintiff’s husband deserted her, she was also residing with his minor son. The defendants 2 to 4 orally relinquished their shares, which devolved upon them after the death of Juleka Bi in favour of the first plaintiff i.e., in the undivided 1/3rd share of Late Juleka Bi. The first plaintiff died during the pendency of the second appeal. There is one door to the eastern compound wall through which the plaintiffs and the first defendant enter the premises. It is alleged that the first defendant was not allowing the first plaintiff to effect repairs to their portion and creating troubles to the plaintiffs and not allowing them to open the door in the eastern wall shown as “A H” of their portion. The plaintiffs filed the suit for declaration of their title and for permanent injunction to restrain the first defendant from interfering with their possession and opening the door in the eastern wall of their house shown as “A H” and from constructing the wall along with G H in the plaint plan and for costs. 5. The first defendant filed the written statement. As seen from the contents of the written statement, the first defendant admitted the relationship of the plaintiffs with his father Ismail Sab and that Ismail Sab executed a gift deed in respect of the southern haveli including the open space on the east and west in favour of the plaintiffs and his minor daughter Juleka Bi. The specific case of the defendant is that the said gift deed dated 30th November, 1966 is only a nominal one and possession of the property was not delivered to the donees and no rights were created under the said gift deed. The further case of the defendant is that possession and management of the property continued with Ismail Sab and he was alone paying the house taxes. It is also his further case that subsequently, Ismail Sab thought that it is not safe to keep the nominal gift deed dated 30.11.1966 in force and therefore, he cancelled the same on 07.02.1967 by executing a cancellation deed – Ex.B.1. It is also the case of the first defendant that the plaintiffs know about the cancellation of the gift deed. It is also the case of the first defendant that Ismail Sab executed a gift deed in his favour on 16.02.1967 and delivered possession to him. It is also his case that all the members of the family were living in the entire property i.e., in two havelies. It is also his case that since the date of execution of gift deed and delivery of possession on the same day i.e. on 16.02.1967, he has been paying the house taxes. He denied that the plaintiffs tried to repair G F wall and that he was not allowing the plaintiffs to repair the said wall. It is the further case of the first defendant that when he asked the plaintiffs to vacate the suit house, the plaintiffs filed this false case. According to the first defendant, Ismail Sab died in 1970 and not in 1973. His specific case is that he had permitted the plaintiffs to live in the suit Haveli with a specific understanding that they should vacate it as and when demanded by him. It is also denied that the undivided 1/3rd share of Juleka Bi devolved on the plaintiffs as D2 to D4 relinquished their shares. The first defendant however, admitted that there is one doorway to the house in the northern corner. He has also admitted that the northern portion was pulled down and he remodeled it. It is also his case that when he wanted to remodel the suit property, the plaintiffs did not cooperate with him and they did not vacate the suit schedule house. 6. The trial Court framed the following issues:- 1. Whether the plaintiff is entitled for declaration and permanent injunction as prayed for? 2. To what relief? Additional issues:- 1. Whether the gift deed dated 30.11.1966 executed by late Ismail Sab is nominal and not intended to be acted upon? 2. Whether late Ismail Sab executed a document dated 07.02.1967 cancelling the gift deed dated 30.11.1966 and if so, whether it is valid and binding upon the plaintiffs? 3. Whether late Ismail Sab executed a fresh gift deed dated 16.02.1967 gifting his entire property including the suit schedule property in favour of the 1st defendant, if so whether it is valid and binding upon the plaintiffs? 7. On behalf of the plaintiffs, P.Ws 1 to 3 were examined and Exs.A.1 to A.3 were marked. On behalf of the defendants, D.Ws.1 and 2 were examined and Exs.B.1 and B.2 were marked. The Advocate- Commissioner’s report and plan were marked as Ex.C1 and C2. 8. The trial Court came to the conclusion that since the plaintiffs and Ismail Sab were residing in the plaint schedule house, the question of delivery of possession to the donees does not arise. It is further observed that the plaintiffs were in possession of the plaint schedule property right from the date of execution of Ex.A.2. It is further held that Ex.A.2 is not a nominal document and that the revocation or cancellation of a gift deed can be done by filing a suit subject to some conditions and not by executing a cancellation deed. It is also observed that the donor-Ismail Sab did not state in Ex.B.1-cancellation deed that the donees had made any misrepresentation or played fraud on him compelling him to execute Ex.A.2. The trial Court also observed that D.W.2 himself stated in his evidence that he was not present at the time of execution of originals of Exs.B.1 and B.2. It was also held that since the house is having only one door and even though the first defendant has paid the house tax, it does not confer any title on him. Relying on Ex.C.1, the trial Court came to the conclusion that the walls and roof of the house are in damaged condition and this shows that the first defendant caused obstruction to the plaintiffs in effecting repairs to the suit schedule property. Finally, the trial Court decreed the suit as prayed for. 9. Challenging the said judgment, the first defendant filed the appeal in A.S.No.19 of 1996. The learned I Additional District Judge, Kadapa also having appreciated the oral and documentary evidence, confirmed the judgment passed by the trial Court. During the pendency of second appeal, first defendant died and his LRs were brought on record. The learned appellate Judge observed that since Ismail Sab and plaintiffs were living together, the question of delivering possession by Ismail Sab to the plaintiffs does not arise. It was also observed that P.W.2 – second wife of Ismail Sab categorically deposed that she accepted the gift. It was also observed by the appellate Court that the facts and circumstances of the case sow that the gift is not nominal and there may be no mis-representation or fraud in obtaining Ex.A.2 – Gift Deed. Finally, the appellate Court held that the defendants failed to prove Ex.B.2. 10. Heard the learned counsel on record. 11. Sri Y. Neela Lohitha Sastry, the learned counsel for the appellant i.e., the first defendant, submitted that recitalsof Ex.A.2 – Gift Deed shows that Ismail Sab did not deliver possession and that there is no evidence to show that the plaintiffs were put in possession of the property after the execution of the gift deed and that once the possession is not delivered, it is clear that the gift was not acted upon. It is also his submission that there is no evidence to show that the plaintiffs have accepted the gift. It is also argued that in fact, the recitals of Ex.A.2 shows that it is not a gift deed but it is a will. His main submission is that when the first defendant had categorically stated that Ismail Sab executed Ex.B.1 cancellation deed and Ex.B.2 another gift deed in his favour, the plaintiffs have not filed any rejoinder denying the contentions of the first defendant and therefore, it is deemed that the plaintiffs have admitted the execution of Exs.B1 and B2. It is his submission that once the execution of Ex.B.1 and B.2 is not in dispute the question of proving the same does not arise. It is also his submission that Ex.A.2 would come into effect only after the death of donor and therefore, it should be treated as a will. So, the sum and substance of the arguments of the learned counsel for the first defendant is that execution of gift deed is only a nominal one and it was not acted upon and that for valid reason it was cancelled. It is also his submission that there is no evidence to show that the said gift deed was accepted and that there was no delivery of possession in pursuance of Ex.A.2 and therefore, both the Courts below went wrong in relying on Ex.A.2 for granting a decree in favour of the plaintiffs when it was subsequently cancelled by execution of Ex.B.1. The learned counsel for respondents / plaintiffs supported the judgments of the Courts below and submitted that there is nothing to interfere with the concurrent findings of the Courts below. 12. The substantial questions of law that arise for consideration is as to whether the Courts below are wrong in relying on Ex.A.2 by granting a decree in favour of the plaintiffs when it has been subsequently cancelled by execution of Ex.B.1 and whether the Courts below have not properly appreciated the evidence and went wrong in holding that the plaintiffs established the delivery of possession and acceptance of gift. 13. It is not in dispute that Ismail Sab was the original owner and possessor of the suit schedule property which consists of two separate houses. However, both the houses are in the same compound with the same house number. Admittedly, the southern portion of the house was in the possession of the first defendant and in the northern portion, the plaintiffs were residing with Late Ismail Sab and defendants 2 to 4. It is also not in dispute that Ismail Sab is the husband of the second plaintiff and father of the first plaintiff (first plaintiff died during the pendency of the proceedings). It is also not in dispute that the first defendant herein is son of Ismail Sab through his first wife and that defendants 2 to 4 are the daughters of second plaintiff and Ismail Sab. It is also not in dispute that Ismail Sab executed a gift deed dated 30.11.1966 and got it registered and that the original gift deed has been handed over to the second plaintiff. 14. It is the contention of the learned counsel for the first defendant that once the possession is not delivered and Ismail Sab retained the possession, the gift deed is not complete. There cannot be any doubt to say that it is essential for the validity of the gift deed under the Mohammedan Law that the donor should divest himself completely from all the ownership and dominion over the subject of the gift and should deliver the possession to the donee. However, as seen from the contents of Ex.A.2 – Gift Deed, Ismail Sab gifted the suit property, i.e., tiled Haveli situated in the southern portion of the property and the vacant site of the east and west of the property in favour of his wife and second plaintiff and his two daughters – first plaintiff and one Julekabee (his fourth daughter). Admittedly, the daughters were minors under the guardianship of the second plaintiff – their mother. Thus, it is clear that the gift was in favour of his wife and minor children. When it is a gift in favour of his wife, Section 153 of the Mohammedan Law applies. 15. Section 153 of the Mohammedan Law reads as follows:- “153. Gift of Immovable property by husband to wife:- The rul laid down in Sec.152(3) applies to gifts of immovable property by a wife to the husband (l), and by a husband to the wife, whether the property is used by them for their joint residence (m), or is let out to tenants (n). The fact that the husband continues to live in the house or to receive the rent after the date of the gift will not invalidate the gift, the presumption in such a case being that the rents are collected by the husband on behalf of the wife and not on his own acccont (o).” 16. Considering the relationship between the second plaintiff and her husband Ismail Sab, a natural presumption arises that even if the husband continues to live in the house and received rents after the date of the gift, these circumstances will not invalidate the gift. The only presumption in such a case is that the rents are collected by the husband on behalf of his wife {Refer Noodu Pathuammal Vs. Ummathu Ameena (AIR 1980 Madras 66)}. Therefore, the gift in favour of others is governed by Section 152 of Mohammedan Law and in such a case, the gift of immovable property will not be incomplete unless the donors physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. Such condition is not required when it is a gift in favour of wife. 17. Gift in favour of minor children has been envisaged under Section 155 of the Mohammedan Law, which reads as under. “155.Gift to a minor by father or other guardian:- No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bonafide intention to give.” 18. Now it has to be seen whether the gift was accepted. Admittedly, in this case, Ex.A.2 – Gift Deed was handed over by Ismail Sab to his wife – second plaintiff. The act of Ismail Sab handing over the gift deed and the receipt of the same by his wife – second plaintiff, in my considered view, amounts to acceptance. Therefore, the condition validating the gift appears to have been complete in this case. 19. It is true that in Ex.A.2 – Gift Deed itself, Ismail Sab had categorically stated that he will be collecting rents on behalf of donees and after retaining some amounts for his necessities, the remaining amount will be paid to the donees and that the donees have to pay the municipal taxes etc. Even if it appears that the gift deed is a conditional gift, Section 164 of the Mohamedan Law envisages that “when the gift is made subject to a condition which derogates from the completeness of the grant, the condition is void, and the gift will take effect as if no conditions were attached to it”. 20. Now it has to be seen whether Ismail Sab has revoked the gift. Section 167 of the Mohammedan Law deals with the topic of revocation. It reads as under. 167.Revocation of gifts:- (1) A gift may be revoked by the donor at any time before deliver of possession. The reason is that before delivery there is no completed gift at all. (2) Subject to the provision of sub- sec.(4), a gift may be revoked even after the deliver of possession except in the following cases:- (a) When the gift is made by a husband to his wife or by wife to her husband; (b) When the donee is related to the donor within the prohibited degrees; (c) When the donee is dead; (d) When the thing given has passed out 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 this 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 nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of the subject of the gift (j). 21. Sub-Section 2(a) of Section 167 of the Mohamedan La applies for the instant case. A fair reading of Ex.A-2 – Gift Deed reveals that the settler has not retained any power of revocation. It has to be seen that Ismail Sab had to perform the marriage of his two minor daughters and it appears that he wanted to provide shelter to his wife. Thus, the circumstances show that Ismail Sab executed a gift except mentioning that he would collect rents on behalf of donees and utilize the rents for himself and give the remaining amount to the plaintiffs. He had also mentioned that it is for the plaintiffs to pay municipal taxes and to attend repairs to the scheduled property. He had not stated that the gift deed would come into force after his death. However, he had mentioned that the plaintiffs and his minor daughter Juleka Bi may divide the property equally among themselves. A reading of Ex.A.2 shows that it is only a conditional gift and the same cannot be treated as a will. Since the donor had no unilateral right to revoke a completed gift, there is no need to consider the other evidence, Ex.B.1 and B.2. Moreover, the appellate Court observed that the first defendant failed to examine the attestors of Ex.B.2 and thus failed to prove the same. Merely because the plaintiff did not file rejoinder denying the averments of written statement, it does not mean that Ex.B.1 and B.2 are admitted. The entire evidence and pleadings have to be taken into consideration before holding that the parties have admitted certain facts. 22. Having considered the entire oral and documentary evidence available on record, it appears that there is no force in the contention of the learned counsel for the appellant / first defendant that there is misreading of evidence by the Courts below. It is clear that the Courts below have not committed any error in relying on Ex.A-2 – Gift Deed and granting decree in favour of the plaintiff. There is nothing erroneous in the well-reasoned judgments passed by both the Courts below and there is nothing to distrust the concurrent findings of both the Courts below as such, no substantive question of law arises for adjudication by this Court in this appeal and the same is liable to be dismissed. 23. In the result, the Second Appeal is dismissed. No costs. _______________________________ JUSTICE B.CHANDRA KUMAR August 17, 2010 Bvv