IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.946 of 2010 P.M.Nawabjan ... Appellant/Respondent/Defendant vs. Dr.N.Nazeer Ahmed ... Respondent/Appellant/Plaintiff This Second Appeal is focussed as against the judgment and decree dated 16.6.2009 passed by the Principal District Judge, Dharmapuri, reversing the judgment and decree dated 27.8.2008 passed by the Subordinate Judge, Dharmapuri, in O.S.No.59 of 2000. For appellant : Mr.S.B.Fazluddin For respondent : Mr.V.Lakshminarasimhan for for M/s.K.Mohanamurali JUDGMENT This Second appeal is focussed by the defendant, animadverting upon the judgment and decree dated 16.6.2009 passed by the Principal District Judge, Dharmapuri, reversing the judgment and decree dated 27.8.2008 passed by the Subordinate Judge, Dharmapuri, in O.S.No.59 of 2000, which was filed for declaration and permanent injunction. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The respondent herein, as plaintiff, filed the suit seeking the following reliefs: "To pass a judgement and decree "a. declaring the title of the suit property in favour of the plaintiff on the basis of the Settlement deed dated 19.6.1972; https://hcservices.ecourts.gov.in/hcservices/ b. consequently interdict the defendant from alienating or encumbering the suit property by means of permanent injunction; c.award costs of the suit." (extracted as such) (b) The appellant/defendant filed the written statement resisting the suit. (c) Whereupon the trial Court framed the issues. The plaintiff examined himself as P.W.1 and Exs.A1 to A4 were marked. The defendant examined himself as D.W.1 and Exs.B1 to B7 were marked. (d) Ultimately the trial Court dismissed the suit, as against which, the appeal was filed. Whereupon the first appellate Court reversed the judgment and decree of the trial Court and decreed the suit as prayed for. 4. Being aggrieved by and dissatisfied with the said judgment and decree of the first appellate Court, this second appeal has been filed by the defendant on various grounds and also suggesting the following substantial questions of law: "1.When possession of the suit property was admittedly with the appellant herein whether Muslim law permits him to cancel and revoke the deed of settlement Ex.A1 as the gift itself was void ab initio and in these circumstances whether Section 126 of Transfer of Property Act be applicable against the principles of Muslim law relating the law of Gifts? 2. Whether the provisions of the Transfer of Property Act ware applicable to the Muslims transacting transfer of their properties as per the Muslim law (Shariat Law) when Section 2(d) of Transfer of Property Act itself exempts its application by declaring "nothing in the II chapter of this Act shall be deemed to affect any rule of Muhammadan Law? 3.Whether the suit as filed by the respondent/plaintiff after the statutory period of limitation was not barred by Article 59 of the Limitation Act and whether Article 59 of the Limitation Act is not applicable to the present case as held by the lower appellate Court? 4.Whether the appellant herein who was admitted to be continuously in possession even after execution of the deed of settlement Ex.A1 would take benefit of https://hcservices.ecourts.gov.in/hcservices/ plea of adverse possession even though it was not claimed in his written statement while the Hon'ble Supreme Court of India was pleased to hold that in those circumstances it was necessary for the court to give finding on title even if the defendant in possession had not pleaded or proved adverse possession? (AIR 1990 SC 717) 5. Whether the appellant having possession of the suit property for more the statutory period of limitation and in view of his long possession for more than 12 years whether the title of the property became an unassailable one. 6. Whether the conclusion of the lower appellate Court that the revocation of the deed of settlement Ex.A1 was not applicable in Muhammadan Law without getting a decree from a court while the Muslim law clearly holds that gift without delivery of possession was void ab initio and as such its revocation was legal." (extracted as such) 5. Heard both. 6. At the outset itself I fumigate my mind with the principles as found embodied in the following judgments of the Honourable Apex Court: (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL; "24. ........(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." and the other precedents emerged in this regard. (ii) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a https://hcservices.ecourts.gov.in/hcservices/ substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. (iii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iv) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYA: 7. A mere poring over and perusal of those excerpts including the whole judgments would reveal that unless there is any perversity or illegality in the findings of the Courts below or or failing to apply correct law or misleading or misreading of the evidence, the question of interference in the second appeal does not arise. As such it is the paramount duty of the Court to find out as to whether any substantial question of law is involved in the matter. 8. I would like to discuss in seriatim the suggested substantial questions of law as found in the memorandum of grounds of second appeal. 9. Pithily and precisely, the indubitable and indisputable or atleast the undeniable facts would run thus: (i) The appellant/defendant's first wife is the mother of the respondent/plaintiff. It so happened that at the time of contracting second marriage, the defendant executed Ex.A1-the settlement deed dated 19.6.1972 (Hiba) in favour of his the then minor son-the plaintiff, appointing his mother as the guardian. The subject matter of hiba happened to be a building, comprised of residential portion as well as non-residential portion consisting of several shops. (ii) The defendant, on 27.7.1987 executed a cancellation deed, annulling the earlier settlement deed-Ex.A1 dated 19.6.1972 and also informed that fact to the plaintiff through his legal notice dated 30.5.1988; however, there was no reply to it, given by the plaintiff. (iii) The plaintiff subsequently filed the suit on 20.4.2000. 10. The learned counsel for the appellant/defendant would put forth and set forth his arguments, which could tersely and briefly be set out thus: (a) The first appellate Court failed to take into consideration https://hcservices.ecourts.gov.in/hcservices/ the fact that the onus of proof was on the plaintiff to prove that Ex.A1-the settlement deed was not followed by delivery of possession, in any manner recognised by the Muslim Law. (b) Ex.A1-the settlement deed was not acted upon. (c)Despite informing the plaintiff by the defendant about the cancellation of the settlement deed, there was no response from the plaintiff and he kept quiet for more than 12 years and only during the year 2000, he did choose to file the suit, which was barred by limitation. (d) These salient features have not been taken into consideration by the first appellate Court. (e) All standard commentaries on Muslim Law, more specifically, concerning Hiba, would unambiguously and unequivocally highlight and spotlight the fact that to constitute a valid 'Hiba' under Muslim Law, there should be delivery of possession; but in this case, neither in the settlement deed nor by evidence aliunde, there is anything to highlight that consequent upon Ex.A1 or under Ex.A1, delivery of possession of the subject matter of 'Hiba' was handed over by the donor to the donee. (f) The first appellate Court simply assumed and presumed the case of the plaintiff as true and upset the discernible and reasoned judgment of the trial Court. (g) The trial Court went into all aspects of the matter and rendered its judgment; whereas, the first appellate Court failed to consider the plea of limitation raised by the defendant and also rejected the alternative plea of adverse possession, in addition to having totally missed to consider the gamut of the case. (h) De hors Ex.A1-the settlement deed, the defendant continued to be in possession and enjoyment of the suit property and in such a case, Ex.A1 cannot be taken as one interdicted the possession of the defendant. (i) The supine indifference on the part of the plaintiff in not challenging the cancellation deed for over 12 years brought forth as against him the limitation and it would not lie in the mouth of the plaintiff to contend that he could simply ignore the validly executed cancellation deed, which is a registered one. (j) At the earliest point of time, a litigant is expected to object on coming to know of the adverse facts as against him. But in this case, despite the plaintiff having been informed about the cancellation deed, by the legal notice dated 30.5.1988, there was no response at all from the plaintiff, which would connote and denote that the plaintiff accepted the stand of the defendant and in https://hcservices.ecourts.gov.in/hcservices/ such a case, he was not justified in veering round and filing the suit, after 12 years from the date of the cancellation deed dated 27.7.1987. (k) The Transfer of Property Act is not at all application to the 'Hiba' contemplated under the Muslim Law. No interference of the Court also is required to get the 'Hiba' cancelled. In this case, the first appellate Court mis-directed itself by expecting that the defendant should have approached the Court for getting Ex.A1-the settlement deed cancelled. (l) The recitals in Ex.A1 in no way show that the donor parted with the possession of the subject matter of 'Hiba' even in favour of the guardian of the minor donee. Hence, in such a case, the first appellate Court, ignoring the well settled principles enshrined in Muslim Law, decided the lis, by setting aside the judgment and decree of the trial Court and thereby, warranting interference in second appeal. Accordingly, the learned counsel for the defendant would pray for setting aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court in dismissing the original suit. 11. In a bid to make mincemeat of the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would advance his arguments, which could pithily and precisely be set out thus: (i) The first appellate Court, adhering to the well settled provisions enshrined in the Muslim Law, decided the appeal, warranting no interference in second appeal. (ii) The donee happened to be the minor son of the donor, hence, as per Muslim Law, the father being the donor appointed the minor's mother as the guardian for the minor donee and executed Ex.A1-the settlement deed, strictly in accordance with the principles enshrined in Muslim Law relating to 'Hiba'. (iii) The recitals in Ex.A1 would unambiguously and unequivocally point out that the donor parted with the possession and all control over the suit property in favour of the guardian of the minor donee, so as to obtain the res on behalf of the minor and preserve the same and hand over delivery of possession of it to the minor donee after he having attained majority. Such recitals themselves would be much more sufficient to constitute a valid 'Hiba'. (iv) According to authoritative text on Muslim Law, if the donee happened to be the minor son of the donor, then such delivery of possession itself is not necessary, as it is expected in case of other donees under a 'Hiba'. https://hcservices.ecourts.gov.in/hcservices/ (v) The question of limitation does not arise for the reason that the cancellation deed is non est in the eye of law and it was a void one and in such a case, pressing into service Article 59 of the Limitation Act by the defendant was not tenable and the first appellate Court rightly rejected the same. (vi) The defendant only as an after thought did choose to execute the cancellation deed on 27.7.1987, so to say, after a decade and half from the date of execution of the settlement deed dated 19.6.1972. (vii) The admitted case of the defendant himself was that the income derived from the subject matter of 'Hiba' was used for bringing up and educating the plaintiff, strictly incommensurate with Ex.A1-the settlement deed. (viii) Simply because the defendant was collecting rents from the building concerned, that it does not mean that he was owning and enjoying the subject matter of 'Hiba' in his capacity as owner of it de hors Ex.A1. What all the defendant did, was only for the welfare of the plaintiff incommensurate with the intention as found embodied in Ex.A1. (ix) The plea of adverse possession is a misconceived one for the reason that by taking such a plea, impliedly the defendant admitted the ownership of the plaintiff and the onus of proof was on the defendant to prove adverse possession, but he failed to consider discharge his burden. As such, the first appellate Court, taking into consideration all these facts decided the lis, warranting no interference in second appeal. Accordingly, the learned counsel for the respondent/plaintiff would pray for confirming the judgment and decree of the first appellate Court and for dismissing the second appeal. 12. I recollect and call up the following maxims: (i) Affirmatis est probare – He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio – The burden of proof lies upon him who affirms, not upon one who denies. 13. It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect. 14. So, at the first instance it has to be seen as to whether on whom the onus of proof lies to prove the validity or otherwise of Ex.A1-the settlement deed. https://hcservices.ecourts.gov.in/hcservices/ 15. It is a fact that the plaintiff-the donee under Ex.A1 filed the suit, asserting his right as owner over the suit property. In such a case, no doubt initially the burden is on the plaintiff to prove his case; however the burden of proof is ambulatory and not static. At this juncture, it is just and proper to look into the fact as on whom the burden of proof lies to prove anything contrary to the recitals as found in Ex.A1. 16. On the one hand, the learned counsel for the defendant would contend that it is for the plaintiff to prove that delivery of possession of the suit property was given under Ex.A1 by the donor, so to say, the defendant, in favour of the donee/plaintiff and it is not the duty of the defendant to prove non-delivery of it; whereas the learned counsel for the plaintiff would argue that when minor donee is involved in a 'Hiba', the burden is on the donor to prove non-delivery and as per him proving delivery itself is not a sine quo non for upholding the validity of 'Hiba' given by the father to his minor son. 17. In support of their respective contentions, the learned advocates on both sides would cite various decisions. Hence, it is just and proper to consider all those decisions: (a) The learned counsel for the appellant/defendant would cite the following decisions: (i) 2011 (3) SCC 608 – HAFEEZA BIBI AND OTHERS V. SHAIKH FARID (DEAD) BY LRS AND OTHERS, certain excerpts from it would run thus: "29. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Moshammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law. 30. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani stated that when the old and https://hcservices.ecourts.gov.in/hcservices/ authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed." (ii) 1958(1) M.L.J.14 – S.V.S.MUHAMMAD YUSUF ROWTHER AND ANOTHER V. MUHAMMAD YUSUF ROWTHER AND OTHERS, certain excerpts from it would run thus: " . . . . . . But this apart, there was also the further fact that on the facts proved in the Bombay case those who impugned the gift had been able to establish that possession was not in fact transferred. In my judgment there are no such circumstances in the present case. The proper rule to apply here as regards the burden of proof would be to hold that the declaration by the donor of his having parted with possession was an admission binding upon the plaintiffs and the 3rd defendant which however they might by cogent evidence disprove but that in the absence of independent proof by them the presumption raised by the admission ought to suffice to support the deed. Both the Courts below have based their decision against the appellants not having discharged the burden of proof thrown upon them to establish the essential condition of law to sustain the validity of the gift. The concurrent finding of both the Courts below merely goes to this length, namely, that the appellants had not proved that the gift was operative. In considering the question in this manner the Courts have committed an error and I cannot therefore accept that finding as binding on me." (iii) (2007) 13 SUPREME COURT CASES 210 – ASOKAN V. LAKSHMIJKUTTY AND OTHERS, certain excerpts from it would run thus: "16. While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. It is not a case that the appellant was not aware of the recitals contained in deeds of gift. The very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometimes indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift. 20. When a registered document is executed and the https://hcservices.ecourts.gov.in/hcservices/ executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. (See Prem Singh v. Birbal.) When such a presumption is raised coupled with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and not on the donee. (emphasis supplied) 21. In Alavi, Paripoornan, J. (as His Lordship then was) held: (KLT p.61) “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 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.” (emphasis in original) 22. Section 91 of the Evidence Act covers both contract as also grant and other types of disposal of property. A distinction may exist in relation to a recital and the terms of a contract but such a question does not arise herein inasmuch as the said deeds of gift were executed out of love and affection as well as on the ground that the donee is the son and successor of the donor and so as to enable him to live a good family life." (iv) AIR 1934 ALLAHABAD 179 – IFTIKHAR WALI KHAN AND OTHERS VO. SIKANDAR BEGAM AND ANOTHER, certain excerpts from it would run thus: ". . . . . A the same time, it should not be overlooked that the essential part of a gift, under Mahomedan law, is delivery of possession. It was open to the plaintiff to revoke the gift before delivery of possession. She could, without expressly revoking the gift, practically annul the transaction by withholding possession of the property to the guardian of the minor. If, before delivering possession, she declared certain conditions, subject to which alone the donee could take it, and the latter's guardian, with full knowledge of those conditions, accepted the gift and took possession of the property, he must be deemed to have accepted the https://hcservices.ecourts.gov.in/hcservices/ conditions imposed by her. It was open to her to have refused to accept the gift subject to the conditions which she chose to lay down. Unless therefore the conditions mentioned in the registration endorsement are inadmissible in evidence and cannot be proved, the donee is bound by them, though they did not form part of the transaction as originally settled between the parties." . . . . . (v) AIR 1924 ALLAHABAD 370 – MT.MULANI V. MAULA BAKSH, an excerpt from it would run thus: " . . . . . Where a deed of gift is executed by a person governed by the Muhammedan law and the possession of the property comprised in the gift has not been delivered, the gift would be void ab initio, and as held in Serajul Hag v. Khaddim Hussain (1) and Meda Bibi v. Imaman Bibi (2) no question of limitation will arise in such circumstances. The right of the plaintiff to impeach such a gift can only accrue from the moment when by receipt of possession the gift becomes operative by law." (vi) AIR 1928 PRIVY COUNCIL 108 – MUSA MIYA WALAD MAHAMMAD SHAFFI AND ANOTHER V. KADAR