Case: Maqbool Alam Khan Vs. Mst. Khodaija &amp; Ors

of 1939. The particulars of the other properties are not disclosed, nor is it shown that he ever took possession of those properties. In the plaint, he made the case that Najma died after making over possession of the tenure to him. This statement is untrue, because Najma had been dispossessed of the tenure in August 1942 and was not in possession of it at the time of the alleged gift. Considering all the circumstances, the High Court held, and, in our opinion, rightly that the appellant failed to prove the alleged oral gift. 5. We also think that the alleged gift was invalid. In February 1943, Khodaija was in possession of the tenure claiming it adversely to Najma. After the alleged gift, Najma neither gave possession of the property, nor did anything to put it within the power of the appellant to obtain possession. The three pillars of a valid gift under the Mahomedan law are declaration, acceptance and delivery of possession. In Mohammad Abdul Ghani v. Fakhr Jahan Begam, 49 Ind App 195 at p. 209: (AIR 1922 PC 281 at p. 288). Sir John Edge said:"For a valid gift inter vivos under the Mohomedan law applicable in this case, three conditions are necessary, which their Lordships consider have been correctly stated thus: (a) manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively (Mahomedan Law, by Syed Ameer Ali, 4th Edn., vol. i, p. 41)." 6. The Prophet has said: "A gift is not valid without seisin." The rule of law is:"Gifts are rendered valid by tender, acceptance and seisin. Tender and acceptance are necessary "because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin." [See Hamiltons Hedaya (Gradys Edn.), p. 482]. 7. Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdore) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in Mullick Abdool Guffoor v. Muleka, (1884) ILR 10 Cal 1112 at p. 1123.But the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. In Mahomed Buksh Khan v. Hosseini Bibi, (1888) 15 Ind App 81 at p. 95 (PC), Lord Macnaghten said:"In this case it appears to their Lordships that the lady did all she could to perfect the contemplated gift, and that nothing more was required from her. The gift was attended with the utmost publicity, the hibbanama itself authorises the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold under these circumstances that there can be no objection to the gift on the ground that Shahzadi had not possession, and that she herself did not give possession at the time." 8. But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If, apart from making a declaration, the donor does nothing else, the gift is invalid.In Macnaghtens Muhammadan Law, Precedents of Gifts, Case No. VI the question was:"A person executed a deed of gift in favour of his nephew, conferring upon him the proprietary right to certain lands, of which he (the donor) was not in possession, but to recover which he had brought an action, then pending, against his wife...... About a month after executing the deed, the donor died, and the donee, in virtue of the gift, lays claim to the litigated property. Under these circumstances is his claim, under the deed, allowable?", and the answer has that the gift was null and the claim of the donee was inadmissible. The precedent covers the present case. Najma did nothing after the alleged declaration. She did not even file a petition in Title Suit No. 127 of 1939 mentioning the gift and asking for the substitution of the appellant in her place. Had she filed such a petition and submitted to an order of substitution, she would have placed it within the power of the appellant to obtain possession of the property; but she did nothing. Nor did the appellant obtain possession of the property during her lifetime with her consent. The gift is, therefore, invalid. 9. It follows that the appellant has no title to the suit property and the High Court rightly dismissed the suit. During the pendency of this appeal, one Babulal, an heir of a co-lessee from Khodaija in respect of plot No. 1400, died, and the appeal has abated against him. The respondent contended that in the circumstances the entire appeal has become defective for non-joinder of necessary parties and must be dismissed.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. The appellant must, therefore, establish his title to the land. He claims that after the preliminary decree Najma orally gave him her entire movable and immovable properties including the tenure, and she died after making over possession of the same. She died leaving her father and mother as her heirs. Both her parents filed petitions in Title Suit No. 127 of 1939 supporting the oral gift of the suit land. This circumstance favours the case of oral gift. The appellant examined himself as a witness in this case. He said that the gift was made on 10-2-1943 in the presence of his parents. His mother was alive, but she was not examined as a witness. The date of the gift was not mentioned in the plaint or in any earlier document; it was disclosed for the first time in the witness-box, and even then, it was not made clear how he remembered the date in the absence of any record. In the petition filed by him on 10-4-1948 in Title Suit No. 127 of 1939 he had made a different case and had stated that the gift was made a few months before her death on 26-2-1943. His case now is that Najma made a gift of her entire movable and immovable properties. This case was not made in the petitions filed in Title Suit No. 127 of 1939. The particulars of the other properties are not disclosed, nor is it shown that he ever took possession of those properties. In the plaint, he made the case that Najma died after making over possession of the tenure to him. This statement is untrue, because Najma had been dispossessed of the tenure in August 1942 and was not in possession of it at the time of the alleged gift. Considering all the circumstances, the High Court held, and, in our opinion, rightly that the appellant failed to prove the alleged oral gift5. We also think that the alleged gift was invalid. In February 1943, Khodaija was in possession of the tenure claiming it adversely to Najma. After the alleged gift, Najma neither gave possession of the property, nor did anything to put it within the power of the appellant to obtain possession. The three pillars of a valid gift under the Mahomedan law are declaration, acceptance and delivery of possession7. Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdore) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in Mullick Abdool Guffoor v. Muleka, (1884) ILR 10 Cal 1112   at p. 1123.But the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession8. But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession. If, apart from making a declaration, the donor does nothing else, the gift is invalidThe precedent covers the present case. Najma did nothing after the alleged declaration. She did not even file a petition in Title Suit No. 127 of 1939 mentioning the gift and asking for the substitution of the appellant in her place. Had she filed such a petition and submitted to an order of substitution, she would have placed it within the power of the appellant to obtain possession of the property; but she did nothing. Nor did the appellant obtain possession of the property during her lifetime with her consent. The gift is, therefore, invalid9. It follows that the appellant has no title to the suit property and the High Court rightly dismissed the suit. During the pendency of this appeal, one Babulal, an heir of a co-lessee from Khodaija in respect of plot No. 1400, died, and the appeal has abated against him.